40790 Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations

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

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

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, Interior.

ACTION: Final rule.

SUMMARY: The Governor of the State of

Montana (Governor) and the Secretary

of the Department of the Interior

(Secretary) are amending 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.

Cooperative agreements are provided for

under section 523(c) of the Surface

Mining Control and Reclamation Act of

1977 (SMCRA). These amendments

clarify Montana’s responsibility for the

administration of its approved State

program on lands subject to the Federal

lands program in Montana.

EFFECTIVE DATE: August 31, 1998.

FOR FURTHER INFORMATION CONTACT:

Ranvir Singh, P.E., 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

II. Summary of the Cooperative Agreement

Article I: Authority, Purposes, and

Responsible Agencies.

Article II: Effective Date.

Article III: Definitions.

Article IV: Applicability.

Article V: Requirements for the Agreement.

Article VI: Review and Approval of the PAP

or Application for Transfer, Assignment

or Sale of Permit Rights (Transfer

Application).

Article VII: Inspections.

Article VIII: Enforcement.

Article IX: Bonds.

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.

Article XI: Termination of the Agreement.

Article XII: Reinstatement of the Agreement.

Article XIII: Amendments to the Agreement.

Article XIV: Changes in State or Federal

Standards.

Article XV: Changes in Personnel and

Organization.

Article XVI: Reservation of Rights.

III. Procedural Determinations

1. Executive Order 12866—Regulatory

Planning and Review

2. Regulatory Flexibility Act

3. Small Business Regulatory Enforcement

Fairness Act

4. Unfunded Mandates

5. Executive Order 12630—Takings

6. Executive Order 12612—Federalism

7. Executive Order 12988—Civil Justice

Reform

8. Paperwork Reduction Act

9. National Environmental Policy Act

10. Author

I. Background

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 the Office of Surface

Mining Reclamation and Enforcement

(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

in accordance with the revised Federal

lands regulations at 30 CFR Part 740 (48

FR 6912, February 16, 1983). OSM

published the requested amendments in

the January 10, 1997, Federal Register

(62 FR 1408) and announced a public

comment period on the proposed rules

until March 11, 1997. The notice also

provided that, if requested, OSM would

hold a public hearing. However, since

no person contacted OSM to express an

interest in testifying at the public

hearing, no public hearing was held.

OSM reopened the comment period on

the proposed rule for an additional 30

days on April 7, 1997 (62 FR 16506) but

did not receive any written comments

on the proposed amendments during

either of the two comment periods.

II. Summary of the Cooperative

Agreement

No written comments were received

from any person or organization on the

proposed amendments during the

specified comments period. Therefore,

no changes are being made and the

proposed amendments as published in

the Federal Register on January 10,

1997 (62 FR 1408) are being adopted as

final. A discussion of the terms of the

cooperative agreement follows.

Article I: Authority, Purposes, and

Responsible Agencies

Paragraph A of Article I sets forth the

legal authority for the Montana

Cooperative Agreement (Agreement);

which is provided by section 523(c) of

SMCRA. This paragraph states that the

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.

Paragraph B sets out the purposes of

the Agreement.

Paragraph C states that the

Department of Environmental Quality

(DEQ) is the agency responsible for

administering the Agreement on behalf

of the Governor of Montana. Paragraph

C also names OSM as the agency

responsible for administering the

Agreement on behalf of the Secretary.

Article II: Effective Date

Article II provides that after the

Agreement has been signed by the

Secretary and the Governor, it will

become effective 30 days after

publication in the Federal Register. It

will remain in effect until terminated as

provided in Article XI.

Article III: Definitions

Article III provides that the terms and

phrases used in the Agreement, except

the term ‘‘permit application package

(PAP),’’ would have the same meanings

as they have in SMCRA, 30 CFR Parts

700, 701, 740, and the State Program. As

explained in the proposed rule

published in the Federal Register on

January 10, 1997, 62 FR 1408, 1409–

1410, additional language has been

included in Article III to define the term

‘‘Permit Application Package (PAP).’’

Defining terms and phrases in this

manner ensures consistency between

applicable regulations and the

Agreement. Where there is a conflict

between the referenced State and

Federal definitions, the definitions used

in the State Program will apply, unless

otherwise required by Federal

regulation.

Article IV: Applicability

Article IV states that the laws,

regulations, terms and conditions of the

State Program are applicable to Federal

lands in Montana except as otherwise

stated in the Agreement, SMCRA, 30

CFR 740.4, 740.11(a), and 745.13 or

other applicable Federal laws, Executive

Orders, or regulations.
Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations 40791

Article V: Requirements for the

Agreement

Paragraph A mutually binds the

Governor and the Secretary to comply

with all provisions of the Agreement.

Paragraph B.1 requires DEQ to devote

adequate funds to the administration

and enforcement of the requirements of

the State Program on Federal lands.

OSM is required to reimburse the State,

as provided in section 705(c) of SMCRA

and 30 CFR 735.16, for the costs of

administration and enforcement if the

State complies with the terms of this

Agreement and necessary funds have

been appropriated to OSM. 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.

Paragraph B.2 provides that 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.

Paragraph B.3 provides that the funds

reimbursed to DEQ under this

Agreement will be adjusted in

accordance with the program income

provisions of 43 CFR Part 12.

Paragraph C provides that DEQ shall

submit annual reports to OSM as

required by 30 CFR 745.12(d). The

report will contain information about

DEQ’s compliance with the terms of the

Agreement. OSM and DEQ shall

exchange information that is developed

under the Agreement, unless prohibited

by Federal or State law. OSM is also

required to provide DEQ with a copy of

OSM’s final evaluation report regarding

State administration and enforcement of

the Agreement, and if the State has any

comments on the evaluation report,

OSM shall attach those comments to the

report before sending it to the Congress

or other interested parties.

Paragraph D requires DEQ to maintain

necessary personnel to fully implement

the Agreement in accordance with the

provisions of SMCRA, the Federal lands

program, and the State Program.

Paragraph E provides that DEQ shall

assure itself access to equipment,

laboratories, and facilities to perform all

necessary inspections, investigations,

studies, tests, and analyses.

Paragraph F states that the amount of

fee charged from an applicant to obtain

a permit to conduct surface coal mining

and reclamation operations, will be

determined by the provisions of section

82–4–223(1) of Montana Code

Annotated (MCA), and the applicable

provisions of Federal law. Permit fee

collected by DEQ will be considered

program income, and all permit fees and

civil penalty fines shall be accounted for

in accordance with the requirements of

43 CFR Part 12. However, civil penalty

fines shall not be considered program

income. The Financial Status Report

submitted by DEQ pursuant to the

requirements of 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

(Transfer Application)

Paragraph A describes the process

that DEQ is required to follow for

receipt and distribution of the PAP or

transfer application.

Under paragraph A.1 an applicant

proposing to conduct surface coal

mining and reclamation operations on

Federal lands is required by DEQ to

submit an appropriate number of copies

of a PAP or transfer application to DEQ.

Such PAP or transfer application shall

be in the form required by DEQ and

shall, at a minimum, contain the

information required by 30 CFR 740,

and any supplemental information

required by OSM, the Bureau of Land

Management (BLM) and the Federal

land management agency.

Under paragraph A.2, upon receipt of

the PAP or transfer application, DEQ

shall ensure that an appropriate number

of copies of the PAP or transfer

application are provided to OSM, the

Federal land management agency and

any other appropriate Federal agency.

Paragraph B describes the procedures

for review of the PAP or transfer

application.

Paragraph B.1 describes the

responsibilities of DEQ with respect to

review, analysis, and approval or

disapproval of the permit application

component of the PAP or transfer

application. As authorized in 30 CFR

740.4(c), DEQ is responsible for: (1)

being the primary point of contact with

the applicant regarding the review of the

PAP or transfer application, and all

decisions and determinations on the

PAP or transfer application; (2) analysis,

review and approval or disapproval of

the PAP or transfer application; (3)

obtaining comments and findings of

Federal agencies; (4) obtaining OSM’s

determination if a permit revision

issued by DEQ will constitute a mining

plan modification pursuant to 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

as required by 30 CFR 740.4(c)(2); (6)

consulting and obtaining the consent, as

necessary, of BLM as required by 30

CFR 740.4(c)(3); (7) approval and release

of performance bonds, and approval and

maintenance of liability insurance; (8)

review and approval of exploration

operations as provided in 30 CFR

740.4(c)(6); (9) preparation of

documentation to assist OSM in

assuring compliance with the

requirements of the National

Environmental Policy Act (NEPA) and

preparation of a State decision package

when a mining plan action is required

pursuant to 30 CFR 746.18. In the

proposed rulemaking, paragraph

B.1.a(2) provided, among other things,

that DEQ is responsible for the analysis,

review, and approval, conditional

approval, or disapproval of the permit

application component of the PAP or

the transfer application for surface coal

mining and reclamation operations on

Federal lands in Montana.

In ‘‘Article III: Definitions’’ of the

proposed rule, the term PAP was

defined, for purposes of the Agreement,

to mean ‘‘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 of

1920 (MLA) and its implementing

regulations.’’

Pursuant to the Agreement, DEQ has

the responsibility to analyze, review,

and approve, conditionally approve or

disapprove only that information in the

PAP that is submitted by the applicant

for a permit, permit revision, permit

amendment, or permit renewal, and all

information required by SMCRA, the

Federal regulations, the State Program.

The phrase ‘‘the permit application

component of the PAP,’’ therefore,

clarifies that DEQ will not be expected

to review, analyze, review, and approve,

conditionally approve or disapprove the

information in the PAP that is submitted

by the applicant pursuant to the

requirements of ‘‘all other applicable

laws and regulations, including, with

respect to leased Federal coal, the MLA

and its implementing regulations.’’

Paragraph B.2 describes the

responsibilities of OSM with respect to:

(1) making determinations and

evaluations for NEPA compliance

documents required by 30 CFR

740.4(c)(7)(i) through (vii); (2) reviewing

appropriate portions of the PAP to
40792 Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations

assure compliance with the nondelegable responsibilities of the

Secretary pursuant to SMCRA and 30

CFR 745.13; (3) consulting with BLM

prior to making a determination

required by 30 CFR 746.18; (4)

exercising its responsibilities in a timely

manner; (5) providing assistance to DEQ

in carrying out its responsibilities; and

(6) when a mining plan action is

required pursuant 746.18, consulting

with and obtaining concurrences of

BLM, the Federal land management

agency, and any other Federal agency,

resolving issues when certain

conditions required by the Federal land

management agency are not included in

the permit by DEQ, and preparing a

decision document and

recommendations to the Secretary for

approval, disapproval or approval with

conditions of a mining plan or

modification thereof pursuant to 30 CFR

746.13.

Paragraph B.3 provides that the

Secretary shall: (1) concurrently and in

a timely manner, carry out his

responsibilities that cannot be delegated

to DEQ pursuant SMCRA and 30 CFR

745.13 and other laws and regulations;

(2) reserve the right to act

independently of DEQ under laws other

than SMCRA, and to delegate some of

the responsibilities to OSM; and (3)

approve, disapprove, or approve with

conditions, the mining plan actions for

leased Federal coal pursuant to 30 CFR

740.4(a)(1).

Paragraph B.4 sets forth the

coordination obligations of OSM and

DEQ in order to meet the purposes of

the Agreement. Accordingly, OSM and

DEQ will be required to coordinate with

each other in developing a work plan

and designating project leaders for the

PAP or transfer application review

process, and in scheduling meetings

with the applicant. OSM will not

independently initiate contacts with

applicants regarding completeness or

deficiencies during the review of a PAP

or transfer application. As review of the

PAP or transfer application progresses,

DEQ will keep OSM informed of its

findings that may affect the

responsibilities of OSM and other

Federal agencies. DEQ will also send to

OSM copies of any correspondence with

the applicant, and allow OSM access to

DEQ files concerning operations of

Federal lands. Likewise, OSM shall

send to DEQ copies of the

correspondence or any other

information received from the applicant.

Any differences of opinion that may

surface during the PAP or transfer

application review process, should be

resolved at the lowest possible staff

level.

Paragraph B.4 also provides for OSM

and DEQ, with the concurrence of any

appropriate Federal agency, to enter into

working agreements without amending

this Agreement to delegate to DEQ

additional responsibilities and decisions

that are authorized under applicable

Federal laws other than SMCRA. DEQ is

also required to work with appropriate

agency to develop mutually acceptable

terms and conditions for inclusion in

the permit issued pursuant to section

522(e)(3) to mitigate adverse impacts on

any publicly owned park or places

included in the National Register of

Historic Sites (NRHS).

Paragraph C describes the process that

DEQ is required to follow during the

approval of the PAP or transfer

application.

Paragraph C.1 provides that DEQ shall

make a decision on the permit

application component or the PAP or

transfer application on Federal lands.

In paragraph C.2, during this

decision-making process, DEQ is

required to consider the comments of

Federal agencies in the context of

permit issuance and document these

comments in the record of permit

decisions. If the permit conditions

recommended by Federal agencies are

not adopted by DEQ, DEQ is required to

provide OSM with documentation as to

why they were not included as permit

conditions.

Under paragraph C.3, if DEQ approves

the PAP or transfer application before

the Secretarial decision on a mining

plan, DEQ is required to advise 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.

Paragraph C.4 provides that after

making a decision on the PAP or

transfer application, DEQ is required to

send a copy of the signed permit form

and State decision document to the

applicant, OSM and other appropriate

agencies.

Article VII: Inspections

Paragraphs A and B state that DEQ

will conduct inspections on lands

covered by this Agreement and prepare

and file State inspection reports in

accordance with the State Program.

Paragraph C designates DEQ as the

point of contact and inspection

authority in dealing with the operator.

However, this Agreement shall not

prevent inspections by authorized

Federal or State agencies for purposes

other than those covered by this

Agreement.

Paragraph D provides that 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.

Paragraph E states that when OSM

intends to conduct an inspection under

30 CFR 842.11, DEQ will be given

reasonable notice of such an inspection

to provide opportunity for State

inspectors to join in the inspection.

When OSM intends to conduct an

inspection in response to a citizen

complaint supplying adequate proof of

imminent danger to public health and

safety, or a significant imminent

environmental harm to land, air, or

water resources, DEQ will be given at

least a 24-hour notice, if practicable, to

facilitate a joint Federal-State

inspection. Citizen complaints not

involving an imminent harm to the

public or the environment will be

initially referred to DEQ for action.

However, 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

Article VIII sets forth the enforcement

obligations and authorities of OSM and

DEQ.

Under paragraph A, DEQ will have

primary enforcement authority on

Federal lands in accordance with the

requirements of the Agreement and

State Program. Enforcement authority

given to the Secretary under Federal

laws and Executive Orders will be

reserved by the Secretary.

Under paragraph B, DEQ will have

primary responsibility for enforcement

during joint inspections with OSM.

Paragraph B also includes a requirement

that DEQ notify OSM prior to

suspending or revoking a permit, BLM

of any suspension, rescission or

revocation of a permit containing leased

Federal coal.

Paragraph C preserves OSM’s

authority to take any enforcement action

necessary to comply with 30 CFR Parts

842, 843, 845 and 846 where OSM

conducted an inspection or where,

during a joint inspection with DEQ, the

two cannot agree on the appropriateness

of a particular enforcement action.

Paragraph D provides that OSM and

DEQ will notify each other of all

violations of applicable regulations and

all actions taken on the violations.

Paragraph E provides that personnel

of DEQ and OSM will be mutually

available to serve as witnesses in

enforcement actions taken by either

party.

Paragraph F specifies that this

Agreement will not limit the Secretary’s
Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations 40793

authority to enforce Federal laws other

than SMCRA.

Article IX: Bonds

Under paragraph A, DEQ and the

Secretary will require each operator

conducting operations on Federal lands

to submit a single performance bond,

sufficient to cover the operator’s

responsibilities, jointly payable to both

the United States and DEQ. All

applicable State and Federal

requirements must be fulfilled during

the bond period. If the Agreement is

terminated, paragraph A requires that

the portion of the bond covering Federal

lands shall be payable only to the

United States.

Paragraph B provides that DEQ will

have the primary responsibility to

approve and release performance bonds,

however, DEQ must obtain OSM’s

concurrence prior to releasing a

performance bond on lands subject to an

approved mining plan. OSM, in turn,

will be required to coordinate with the

appropriate Federal land management

agency before concurring to such bond

release. DEQ will annually advise OSM

of any adjustments to the performance

bond.

Paragraph C states that forfeiture of

performance bonds will be in

accordance with the State Program and

subject to OSM concurrence.

Paragraph D clarifies that the

performance bond does not meet the

requirement for a Federal lease bond

under 43 CFR Part 3474, or for the

lessee protection bond 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

Paragraph A.1 provides that a petition

to designate areas of Federal lands as

unsuitable for all or certain types of

surface coal mining and reclamation

operation will be filed with OSM for

processing in accordance with 30 CFR

769, and that the Secretary reserves the

authority to designate or terminate such

designation.

Paragraph A.2 provides that DEQ and

OSM will notify each other of any

petition to designate lands as unsuitable

that could impact adjacent Federal and

non-federal lands, and solicit and

consider each other’s views on a

petition. OSM will coordinate with the

Federal land management agency with

jurisdiction over the area covered by the

petition, and will solicit comments.

OSM and DEQ shall fully consider data,

information, and recommendations of

all agencies.

Paragraph B.1 provides that the

Secretary will make the valid exiting

rights (VER) determination for Federal

lands within the boundaries of any areas

specified under section 522(e)(1) of

SMCRA. Where surface coal mining and

reclamation operations would be

conducted on both Federal and nonFederal 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.

Paragraph B.2 states that the Secretary

will make VER determinations 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). OSM will process requests for

determinations of compatibility under

section 522(e)(2) of SMCRA and part 30

CFR 761.12(c).

Paragraph B.3 provides that DEQ will

make the VER determination when a

VER determination is requested for

Federal lands protected under section

522(e)(3). DEQ will determine, in

consultation with the State Historic

Preservation Officer, whether any

proposed operation will adversely affect

any publicly-owned park or place listed

on the NRHS.

Paragraph B.3 also states that 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. In these instances, 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.

Paragraph B.4 provides that DEQ will

process determinations of VER on

Federal lands for all areas limited or

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

of SMCRA as unsuitable for mining.

Paragraph B.5 states that 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

Article XI specifies that the

Agreement may be terminated as

specified under 30 CFR 745.15.

Article XII: Reinstatement of the

Agreement

Article XII provides that, if

terminated, the Agreement may be

reinstated under 30 CFR 745.16. That

provision allows for reinstatement of a

cooperative agreement upon application

by the State after remedying the defects

for which the agreement was terminated

and the submission of evidence to the

Secretary that the State can and will

comply with all of the provisions of the

Agreement.

Article XIII: Amendments to the

Agreement

Article XIII provides that the

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

Paragraph A recognizes that the

Secretary or the Governor may, from

time to time, revise and promulgate new

or revised performance or reclamation

requirements or enforcement and

administrative procedures. If it is

determined to be necessary to keep this

Agreement in force, each party shall

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.

Paragraph B requires that DEQ and

OSM to 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

Paragraph A states that DEQ and OSM

shall 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.
40794 Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations

Paragraph B provides that if 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 the transfer. The

provisions in this Agreement shall

thereafter apply to that agency.

Article XVI: Reservation of Rights

This agreement will not be construed

as waiving or preventing the assertion of

any rights 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 of this

Agreement.

III. Procedural Determinations

1. Executive Order 12866—Regulatory

Planning and Review

This document is not a significant

rule and is not subject to review by the

Office of Management and Budget under

Executive Order 12866.

(1) This rule will not have an effect of

$100 million or more on the economy.

It will not adversely affect in a material

way the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local,

or tribal governments or communities.

(2) This rule will not create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency.

(3) This rule does not alter the

budgetary effects or entitlements, grants,

user fees, or loan programs or the rights

or obligations of their recipients.

(4) This rule does not raise novel legal

or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior

certifies 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.). This rule will amend

the cooperative agreement between the

Department of the Interior and the State

of Montana. It will 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. It will eliminate

duplicative permitting requirements,

thereby increasing governmental

efficiency. The rule will also update the

cooperative agreement to reflect current

regulations and agency structures.

3. Small Business Regulatory

Enforcement Fairness Act

This rule is not a major rule under 5

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

Regulatory Enforcement Fairness Act.

This rule:

a. Does not have an annual effect on

the economy of $100 million or more.

The rule only affects the State of

Montana and the costs of carrying out

the functions under the cooperative

agreement are offset by grants from the

Federal government.

b. Will not cause a major increase in

costs or prices for consumers,

individual industries, Federal, State, or

local government agencies, or

geographic regions because the rule

does not impose any new requirements

on the coal mining industry or

consumers. The functions being

performed by the State under the

cooperative agreement are offset by

grants from the Federal government.

c. Does not have significant adverse

effects on competition, employment,

investment, productivity, innovation, or

the ability of U.S.-based enterprises to

compete with foreign-based enterprises

for the reasons stated above.

4. Unfunded Mandates

This rule does not impose an

unfunded mandate on State, local, or

tribal governments or the private sector

of more than $100 million per year. The

rule does not have a significant or

unique effect on State local or tribal

governments or the private sector. A

statement containing the information

required by the Unfunded Mandates

Reform Act (1 U.S.C. 1531, et seq.) is not

required.

5. Executive Order 12630—Takings

In accordance with Executive Order

12630, the rule does not have significant

takings implications. The rule revises an

existing cooperative agreement at the

request of the State of Montana and will

result in the delegation of authority to

the State. A takings implication

assessment is not required.

6. Executive Order 12612—Federalism

In accordance with Executive Order

12612, the rule does not have significant

Federalism implications to warrant the

preparation of a Federalism Assessment.

The rule revises an existing cooperative

agreement at the request of the State of

Montana and will result in the

delegation of authority to the State.

Therefore, a Federalism assessment is

not required.

7. Executive Order 12988—Civil Justice

Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that this rule does not

unduly burden the judicial system and

meets the requirements of sections 3(a)

and 3(b)(2) of the Order.

8. Paperwork Reduction Act

This regulation does not require an

information collection from 10 or more

parties and a submission under the

Paperwork Reduction Act is not

required. An OMB form 83–I is not

required.

9. National Environmental Policy Act

This rule has been reviewed by OSM

and it has been determined to be

categorically excluded from the NEPA

process in accordance with the

Departmental Manual 516 DM 6,

Appendix 8.4(B)(21).

10. Author

The principal author of this final rule

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

Coal mining, Intergovernmental

relations, Surface mining, Underground

mining.

Dated: June 15, 1998.

Sylvia V. Baca,

Acting Assistant Secretary, Land and

Minerals Management.

Accordingly, 30 CFR Part 926 is

amended as follows:

PART 926—MONTANA

1. The authority citation for part 926

continues to read as follows:

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

2. Section 926.30 is revised to read as

follows:

§ 926.30 State-Federal cooperative

agreement.

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
Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations 40795

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

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

2See explanation in Article II at 46 FR 20983,

April 8, 1981.

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

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

C. Responsible Agencies

The Montana Department of

Environmental Quality (DEQ) shall

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 a rule making

in the Federal Register.2 This Agreement

shall remain in effect until terminated as

provided in Article XI.

Article III: Definitions

The term 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 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 of 1920 (MLA)

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

The Governor and the Secretary affirm that

they will comply with all provisions of this

Agreement.

A. 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.

B. Reports and Records

1. 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.

C. 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.

D. 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.

E. Permit Application Fees and Civil

Penalties

The amount of the fee accompanying the

PAP 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 the 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 (Transfer Application)

A. Receipt and Distribution of the PAP or

Transfer Application

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 transfer application. The

PAP or transfer application 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 supplement 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 MLA,

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

transfer application, DEQ shall ensure that an

appropriate number of copies of the PAP or

transfer application are provided to OSM,

Federal land management agency, and any

other appropriate Federal agency.

B. Review of the PAP or Transfer Application

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 transfer application and communications

regarding all decisions and determinations

with respect to the PAP or transfer

application;

(2) Analysis, review, and approval,

conditional approval, or disapproval of the

permit application component of the PAP or

the transfer application 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

transfer application, unless otherwise agreed

in writing by Federal agencies. DEQ shall

request such Federal agencies to provide to
40796 Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations

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

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 National

Environmental Policy Act (NEPA). However,

OSM will retain the responsibility for the

exceptions in 30 CFR 740.4(c)(7)(l) 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 the 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)(l) 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 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 transfer application

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 transfer application 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 transfer

application. 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 transfer application. 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 National Register

of Historic Sites, 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 Transfer

Application

1. DEQ shall make a decision on approval,

conditional approval, or disapproval of the

permit application component of the PAP or

the transfer application 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
Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations 40797

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 the 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

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 or transfer

application, 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 NRHS

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 an

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 board 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

advice OSM of adjustments to the

performance bond.

C. Performance bonds will be subject to

forfeiture with he 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, the 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
40798 Federal Register / Vol. 63, No. 146 /Thursday, July 30, 1998 /Rules and Regulations

determination. DEQ will determine, in

consultation with the State Historic

Preservation Officer, whether any proposed

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

National Register of Historic Sites (NRHS).

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

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 is determined 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

the 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.

Approved:

Dated: May 8, 1998.

Marc Racicot,

Governor of Montana.

Dated: July 7, 1998.

Bruce Babbitt,

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 eq 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. 98–20195 Filed 7–29–98; 8:45 am]

BILLING CODE 4310–05–M