Montana Regulatory Program, 15090-15095 [E6-4360]
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cannot absolve the operator of liability
in the event of an accident, the
document will provide proof that the
passenger has been advised of the risks
inherent in the type of operation to be
conducted. In addition, the signature
will acknowledge the fact that the FAA
has NOT made a determination that the
aircraft is considered safe to carry
passengers for compensation or hire.
14. Crew Qualification and Training
a. Pilots must possess a minimum of
a commercial pilot certificate with
instrument rating appropriate to the
category and class of aircraft to be
flown. They must also hold a type rating
is required by the type of aircraft flown
along with a current second class
medical certificate.
b. Initial and recurrent training must
be performed to current ATP Practical
Test Standards for aircraft requiring a
special authorization or type rating to
operate.
c. An initial ground and flighttraining program must be developed by
the organization and completed by all
pilots.
d. Recurrent ground training must be
developed and completed by all pilots
or an annual cycle.
e. An annual proficiency check must
be conducted and if necessary, recurrent
flight training will be required. A
minimum activity level and satisfactory
flight proficiency check may allow the
requirement for recurrent flight training
to be waived.
f. The petitioner will state the
minimum flight experience required for
each pilot position.
g. Pilots will maintain takeoff and
landing currency in each make and
model.
h. A system for documenting and
recording all crew qualifications,
required training, checking and
currency must be developed and
maintained.
i. All training and checking programs
must be approved by the FAA.
15. Maintenance/Inspection of
Aircraft
a. The maintenance history of each
individual aircraft must be provided.
b. The petitioner must provide an
FAA approved maintenance/inspection
program that may be a program based on
military and/or original manufacturer’s
manuals and must be in accordance
with the type certification data sheet
and the aircraft’s operating limitations.
c. All maintenance and inspections
will be documented and recorded.
d. Applicants may be required to
submit an operational history of the
make/model/type in order for the FAA
to verify that the submitted
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maintenance/inspection program is
adequate.
16. All maintenance or operational
incidents will be reported to the Flight
Standards District Office in whose
district the organization’s principal base
of operations is located.
17. Passenger Safety and Training
a. An FAA approved passenger
briefing must be conducted appropriate
to the scope of operations. Passengers
must be fully informed of the risks
associated with the proposed rides, and
that occupying a seat in these aircraft
may subject the rider to a high level of
risk. Some operations may require
passenger-briefing cards.
b. The passenger briefing must
include normal and emergency egress
procedures, passenger seating, and
overview of safety restraint systems.
c. Passenger training equivalent to
that provided for Department of Defense
familiarization flights must be approved
by the FAA and conducted for all flights
involving any of the following:
i. Ejection seats, if the aircraft is so
equipped;
ii. High altitude operations, if flight
will be conducted above 10,000 feet
MSL;
iii. Oxygen system, for flights above
10,000 feet MSL or if use of the system
is required by type of operation.
Petitioners will be required to
demonstrate their ability to safely
perform the operations requested and to
meet all operating and maintenance
requirements. The extent of this
demonstration will be dependent on the
scope of the operation requested.
Petitioners who have conducted this
type of operation must provide a
summary of their operating history.
Additionally, all petitioners will be
required to submit documentation
sufficient to allow the FAA to determine
the number of passenger seats to be
utilized during compensated operations
and the FAA approval status of those
seats. Petitioners will also be required to
provide the U.S. registration number
and make/model/serial number of the
aircraft to be used.
Petitioners who have submitted
requests should review this draft policy
statement and consider supplementing
their petitions if they have not
previously provided the necessary
information. The FAA will consider any
information submitted and determine
whether more information is necessary
to make a decision on whether it is
appropriate to grant an exemption for a
particular aircraft. The FAA anticipates
that some aircraft models that have been
granted exemptions may no longer
qualify for future exemptions.
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Petitioners should be precise
regarding the requirements from which
they seek relief. In addition petitioners
should provide copies of the
airworthiness certificate, including a
copy of the operating limitations issued
for each aircraft that would be subject to
the conditions and limitations of the
proposed exemption. Those submitting
petitions for exemption or additional
information should submit the required
information to the following: (1) for
paper submissions, send the original
signed copy of your submission to the
U.S. Department of Transportation,
Docket Management System, 400 7th
Street, SW., Room PL 401, Washington,
DC 20591–0001; or (2) for electronic
submissions, submit your information to
the FAA through the Internet using the
Docket Management System Web site at
this Internet address: https://
dms.dot.gov/. If you already have
received a docket number, you must
reference that docket number in your
request.
The FAA is soliciting comments from
the public regarding this draft policy
statement. We will not consider any
new requests for exemption from the
date this proposed policy is published
to the time at which all comments are
received and adjudicated.
Issued in Washington, DC on March 21,
2006.
James J. Ballough,
Director, Flight Standards Service.
[FR Doc. 06–2915 Filed 3–24–06; 8:45 am]
BILLING CODE 4910–13–M
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 926
[MT–026–FOR]
Montana Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment
period and opportunity for public
hearing on proposed amendment.
AGENCY:
SUMMARY: We are announcing receipt of
a proposed amendment to the Montana
regulatory program under the Surface
Mining Control and Reclamation Act of
1977 (SMCRA or the Act).
This document gives the times and
locations that the Montana regulatory
program and proposed amendment to
that program are available for your
inspection, the comment period during
which you may submit written
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comments on the amendment, and the
procedures that we will follow for the
public hearing, if one is requested.
DATES: We will accept written
comments on this amendment until 4
p.m., m.s.t., April 26, 2006. If requested,
we will hold a public hearing on the
amendment on April 21, 2006. We will
accept requests to speak until 4 p.m.,
m.s.t., on April 11, 2006.
ADDRESSES: You may submit comments,
identified by ‘‘MT–026–FOR,’’ by any of
the following methods:
• E-mail: rpair@osmre.gov. Include
‘‘MT–026–FOR’’ in the subject line of
the message.
• Mail/Hand Delivery/Courier:
Richard Buckley, Acting Director,
Casper Field Office, Office of Surface
Mining Reclamation and Enforcement,
150 East B St., Rm. 1018, Casper, WY
82601–1018. (307) 261–6550.
rbuckley@osmre.gov.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Instructions: All submissions received
must include the agency name and
indicate docket number ‘‘MT–026–
FOR.’’ For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the ‘‘Public Comment Procedures’’
heading of the SUPPLEMENTARY
INFORMATION section of this document.
Docket: Access to the docket, to
review copies of the Montana regulatory
program under the Surface Mining
Control and Reclamation Act of 1977
(SMCRA or the Act) (hereinafter, the
‘‘Montana program’’), this amendment, a
listing of any scheduled public hearings,
and all written comments received in
response to this document, may be
obtained at the addresses listed below
during normal business hours, Monday
through Friday, excluding holidays. You
may receive one free copy of the
amendment by contacting Office of
Surface Mining Reclamation and
Enforcement (OSM’s) Casper Field
Office. In addition, you may review a
copy of the amendment during regular
business hours at the following
locations:
Richard Buckley, Acting Director,
Casper Field Office, Office of Surface
Mining Reclamation and Enforcement,
150 East B St., Rm.1018, Casper, WY
82601–1018. (307) 261–6550.
rbuckley@osmre.gov.
Neil Harrington, Chief, Industrial and
Energy Minerals Bureau, Montana
Department of Environmental Quality,
P.O. Box 200901, Helena, MT 59620–
0901. (406) 444–2544.
neharrington@mt.gov.
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FOR FURTHER INFORMATION CONTACT:
Richard Buckley, Telephone: (307) 261–
6550. E-mail: rbuckley@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Montana Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
and non-Indian lands within its borders
by demonstrating that its State program
includes, among other things, ‘‘a State
law which provides for the regulation of
surface coal mining and reclamation
operations in accordance with the
requirements of this Act * * *; and
rules and regulations consistent with
regulations issued by the Secretary
pursuant to this Act.’’ See 30 U.S.C.
1253(a)(1) and (7). On the basis of these
criteria, the Secretary of the Interior
conditionally approved the Montana
program on April 1, 1980. You can find
background information on the Montana
program, including the Secretary’s
findings, the disposition of comments,
and conditions of approval of the
Montana program in the April 1, 1980,
Federal Register (45 FR 21560). You can
also find later actions concerning
Montana’s program and program
amendments at 30 CFR 926.15, 926.16,
and 926.30.
II. Description of the Proposed
Amendment
By letter dated January 18, 2006,
Montana sent us a proposed amendment
to its program (MT–026–FOR,
Administrative Record No. MT–023–01)
under SMCRA (30 U.S.C. 1201 et seq.).
Montana sent the amendment in
response to an April 2, 2001, letter that
we sent to Montana in accordance with
30 CFR 732.17(c) [pertaining to valid
existing rights], and to include the
changes made at its own initiative. The
full text of the program amendment is
available for you to read at the locations
listed above under ADDRESSES.
The provisions of the Montana Code
Annotated (MCA) that Montana
proposes to revise or add are:
MCA 82–4–206, Procedure for
contested case hearings; MCA 82–4–
223, Permit fee and surety bond; MCA
82–4–225, Application for increase or
reduction in permit area; MCA 82–4–
226, Prospecting permit; MCA 82–4–
227, Refusal of permit; MCA 82–4–231,
Submission of and action on
reclamation plan; MCA 82–4–232, Area
mining required—bond—alternative
plan; MCA 82–4–233, Planting of
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vegetation following grading of
disturbed area; MCA 82–4–235,
Determination of successful
reclamation—final bond release; MCA
82–4–251, Noncompliance—suspension
of permits; MCA 82–4–254, Violation—
penalty—waiver; MCA 82–4–1001,
Penalty factors; and MCA 82–4–1002,
Collection of penalties, fees, late fees,
and interest.
Specifically, Montana proposes to
revise these sections as follows:
Revise 82–4–206, MCA, to provide
that an applicant, permittee, or person
with an interest that is or may be
adversely affected may request a hearing
before the board on decisions of the
department pertaining to (a) approval or
denial of an application for a permit
pursuant to 82–4–231; (b) approval or
denial of an application for a
prospecting permit pursuant to 82–4–
226; (c) approval or denial of an
application to increase or reduce a
permit area pursuant to 82–4–225; (d)
approval or denial of an application to
renew or revise a permit pursuant to 82–
4–221; or (e) approval or denial of an
application to transfer a permit pursuant
to 82–4–238 or 82–4–250.
Revise 82–4–223, MCA, to delete
‘‘permit fee’’ from the title and delete
the provision for a permit application
fee, and for editorial changes.
Revise 82–4–225, MCA, to delete the
requirement for an application fee for
increased or reductions in permit area.
Revise 82–4–226, MCA, to delete the
requirement for an application fee for
prospecting permits.
Revise 82–4–227, MCA, to add ‘‘the
national system of trails,’’ Wild and
Scenic Rivers Act study rivers and study
river corridors, and Federal lands
within National Forests, to areas where
mining is prohibited (subject to valid
existing rights).
Revise 82–4–231(9), MCA, to specify
the Environmental Quality Board, or its
hearing officer, as the authority to hold
hearings on permit decisions, and to
provide that hearings may be started
(rather than held) within the 20-day
timeframe.
Revise 82–4–232(6), MCA, concerning
bond release applications to:
(1) Change bond release requests to
bond release applications;
(2) Provide that a bond release
application is administratively complete
if it includes
(i) The location and acreage of the land for
which bond release is sought;
(ii) The amount of bond release sought;
(iii) A description of the completed
reclamation, including the date of
performance;
(iv) A discussion of how the results of the
completed reclamation satisfy the
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requirements of the approved reclamation
plan; and
(v) Information required by rules
implementing this part.
(7) Provide that
(3) Provide that the Department (of
Environmental Quality) notify the
applicant in writing of its determination
no later than 60 days after submittal of
the application; if the department
determines that the application is not
administratively complete, it shall
specify in the notice those items that the
application must address; after an
application for bond release has been
determined to be administratively
complete by the department, the
permittee shall publish a public notice
that has been approved as to form and
content by the department at least once
a week for 4 successive weeks in a
newspaper of general circulation in the
locality of the mining operation.
(4) Provide that
any person with a valid legal interest that
might be adversely affected by the release of
a bond or the responsible officer or head of
any federal, state, or local governmental
agency that has jurisdiction by law or special
expertise with respect to any environmental,
social, or economic impact involved in the
operation or is authorized to develop and
enforce environmental standards with
respect to the operation may file written
objections to the proposed release of bond to
the department within 30 days after the last
publication of the notice. If written
objections are filed and a hearing is
requested, the department shall hold a public
hearing in the locality of the operation
proposed for bond release or in Helena, at the
option of the objector, within 30 days of the
request for hearing. The department shall
inform the interested parties of the time and
place of the hearing. The date, time, and
location of the public hearing must be
advertised by the department in a newspaper
of general circulation in the locality for 2
consecutive weeks. Within 30 days after the
hearing, the department shall notify the
permittee and the objector of its final
decision.
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(5) Provide that without prejudice to
the rights of the objector or the
permittee or the responsibilities of the
department pursuant to this section, the
department may establish an informal
conference to resolve written objections.
(6) Provide that
for the purpose of the hearing under
subsection (6)(d), the department may
administer oaths, subpoena witnesses or
written or printed materials, compel the
attendance of witnesses or the production of
materials, and take evidence, including but
not limited to conducting inspections of the
land affected and other operations carried on
by the permittee in the general vicinity. A
verbatim record of each public hearing
required by this section must be made, and
a transcript must be made available on the
motion of any party or by order of the
department.
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if the applicant significantly modifies the
application after the application has been
determined to be administratively complete,
the department shall conduct a new review,
including an administrative completeness
determination. A significant modification
includes, but is not limited to:
(i) The notification of an additional
property owner, local governmental body,
planning agency, or sewage and water
treatment authority of the permittee’s
intention to seek a bond release;
(ii) A material increase in the acreage for
which a bond release is sought or in the
amount of bond release sought; or
(iii) A material change in the reclamation
for which a bond release is sought or the
information used to evaluate the results of
that reclamation.
(8) Provide that the department
conduct an inspection and evaluation of
the reclamation work involved within
30 days of determining that the
application is administratively complete
or as soon as weather permits;
(9) Provide that
the department shall review each
administratively complete application to
determine the acceptability of the
application. A complete application is
acceptable if the application is in compliance
with all of the applicable requirements of this
part, the rules adopted under this part, and
the permit
(10) Provide that
(i) The department shall notify the
applicant in writing regarding the
acceptability of the application no later than
60 days from the date of the inspection.
(ii) If the department determines that the
application is not acceptable, it shall specify
in the notice those items that the application
must address.
(iii) If the applicant revises the application
in response to a notice of unacceptability, the
department shall review the revised
application and notify the applicant in
writing within 60 days of the date of receipt
as to whether the revised application is
acceptable.
(iv) If the revision constitutes a significant
modification, the department shall conduct a
new review, beginning with an
administrative completeness determination.
(v) A significant modification includes, but
is not limited to:
(A) The notification of an additional
property owner, local governmental body,
planning agency, or sewage and water
treatment authority of the permittee’s
intention to seek a bond release;
(B) A material increase in the acreage for
which a bond release is sought or the amount
of bond release sought; or
(C) A material change in the reclamation
for which a bond release is sought or the
information used to evaluate the results of
that reclamation.
(11) Delete existing detailed contents
required for the public notification
requirements for bond release requests;
and
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(12) Delete the provisions of existing
82–4–232(6)(f)–(h) concerning hearings
and appeal rights.
Revise 82–4–233, MCA, by deleting
existing paragraph (5) concerning
special revegetation requirements for
land that was mined, disturbed, or
redisturbed after May 2, 1978, and that
was seeded prior to January 1, 1984.
Revise 82–4–235(3)(a), MCA, to
specify that special revegetation bond
release criteria on certain lands are
applicable only under a permit issued
under this part.
Revise 82–4–251(3), MCA, to provide
for a contested case hearing on a permit
suspension or revocation by filing a
request for hearing, specifying the
grounds for the request, within 30 days
of receipt of the order of suspension or
revocation; the order would be effective
upon expiration of the period for
requesting a hearing or, if a hearing is
requested, upon issuance of a final order
by the board; the hearing would be
conducted in accordance with the
requirements of Title 2, chapter 4, part
6, MCA.
Revise 82–4–251(5), MCA, to provide
that informal public hearings on notices
or orders that require cessation of
mining must be requested by the person
to whom the notice or order was issued.
Further, if the Department receives a
request for an informal public hearing
21 days after service of the notice or
order, the period for holding the
informal public hearing will be
extended by the number of days after
the 21st day that the request was
received.
Revise 82–4–251(6), MCA, to change
the provision allowing an alleged
violator to apply for a review by the
department to allow him to ‘‘request a
hearing before the board,’’ and delete
existing requirements for Departmental
investigation.
Revise 82–4–254(1), MCA, to provide
individual administrative penalties for
persons who purposely or knowingly,
rather than willfully, authorize, order,
or carry out violations. Further, such
penalties must be determined in
accordance with 82–4–1001, MCA.
Revise 82–4–254(2), MCA, to add
provision that the department may not
waive a penalty assessed under this
section if the person or operator fails to
abate the violation as directed under
MCA 82–4–251.
Add new requirements at 82–4–
254(3)(a), MCA, providing that to assess
an administrative penalty, the
Department must issue a notice of
violation and penalty order to the
person or operator, unless the penalty is
waived under paragraph (2); further, the
notice and order must specify the
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provision of this part, rule adopted or
order issued under this part, or term or
condition of a permit that is violated
and must contain findings of fact,
conclusions of law, and a statement of
the proposed administrative penalty; the
notice and order must be served
personally or by certified mail [service
by mail is complete 3 business days
after the date of mailing]; the notice and
order become final unless, within 30
days after the order is served, the person
or operator to whom the order was
issued requests a hearing before the
Board. Further add to paragraph (3)(a) a
requirement that on receiving a request,
the Board must schedule a hearing.
Revise language at newly designated
paragraph (3)(b) to indicate that only a
person or operator issued a final order
may obtain judicial review. Revise
language at newly designated paragraph
(3)(c) and paragraph (4) to allow the
department, rather than the Attorney
General, to file actions for collection,
allow filing in the first judicial district
(if agreed by the parties), and allow the
department, rather than the Attorney
General, to bring actions for judicial
relief.
Revise 82–4–254(6) and (8), MCA, to
provide criminal sanctions against
persons who purposely or knowingly,
rather than willfully, commit certain
acts.
Add new paragraph 82–4–254(10),
MCA, providing that within 30 days
after receipt of full payment of an
administrative penalty assessed under
this section, the department will issue a
written release of civil liability for the
violations for which the penalty was
assessed.
Regarding the proposed revisions to
MCA 82–4–254, Montana notes in a
narrative explanation that the terms
‘‘purposely or knowingly’’ are used in
the Montana Criminal Code, and
‘‘willfully’’ is not. Further, the changes
in proposed MCA 82–4–254(3)(a) are for
the purpose of converting the two-step
process of assessing a penalty into a
more streamlined one-step process. The
Department would now issue a Notice
of Violation and Administrative Penalty
Order (NOV/APO) that would contain
all of the relevant components from the
existing two-step process. The NOV/
APO would contain a notice of
violation, findings of fact, conclusions
of law, penalty assessment, and an order
to pay a proposed penalty. The operator
would have 30 days after issuance of the
NOV/APO to submit an appeal. If an
appeal is not submitted, the NOV/APO
would become final, eliminating the
need to issue separate findings and
conclusions of law, and the penalty
would be due in 30 days.
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Add a new section 82–4–1001, MCA,
as follows:
Penalty factors. (1) In determining the
amount of an administrative or civil penalty
assessed under the statutes listed in
subsection (4), the department of
environmental quality or the district court, as
appropriate, shall take into account the
following factors:
(a) The nature, extent, and gravity of the
violation;
(b) The circumstances of the violation;
(c) The violator’s prior history of any
violation, which:
(i) Must be a violation of a requirement
under the authority of the same chapter and
part as the violation for which the penalty is
being assessed;
(ii) Must be documented in an
administrative order or a judicial order or
judgment issued within 3 years prior to the
date of the occurrence of the violation for
which the penalty is being assessed; and
(iii) May not, at the time that the penalty
is being assessed, be undergoing or subject to
administrative appeal or judicial review;
(d) The economic benefit or savings
resulting from the violator’s action;
(e) The violator’s good faith and
cooperation;
(f) The amounts voluntarily expended by
the violator, beyond what is required by law
or order, to address or mitigate the violation
or impacts of the violation; and
(g) Other matters that justice may require.
(2) Except for penalties assessed under 82–
4–254, after the amount of a penalty is
determined under (1), the department of
environmental quality or the district court, as
appropriate, may consider the violator’s
financial ability to pay the penalty and may
institute a payment schedule or suspend all
or a portion of the penalty.
(3) Except for penalties assessed under 82–
4–254, the department of environmental
quality may accept a supplemental
environmental project as mitigation for a
portion of the penalty. For purposes of this
section, a ‘‘supplemental environmental
project’’ is an environmentally beneficial
project that a violator agrees to undertake in
settlement of an enforcement action but
which the violator is not otherwise legally
required to perform.
(4) This section applies to penalties
assessed by the department of environmental
quality or the district court under 82–4–141,
82–4–254, 82–4–361, and 82–4–441.
(5) The board of environmental review and
the department of environmental quality
may, for the statutes listed in subsection (4)
for which each has rulemaking authority,
adopt rules to implement this section.
Add a new section 82–4–1002, MCA,
as follows:
Collection of penalties, fees, late fees, and
interest.
(1) If the department of environmental
quality is unable to collect penalties, fees,
late fees, or interest assessed pursuant to the
provisions of this chapter, the department of
environmental quality may assign the debt to
a collection service or transfer the debt to the
department of revenue pursuant to Title 17,
chapter 4, part 1.
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(2)(a) The reasonable collection costs of a
collection service, if approved by the
department of environmental quality, or
assistance costs charged the department of
environmental quality by the department of
revenue pursuant to 17–4–103(3) may be
added to the debt for which collection is
being sought.
(b)(i) All money collected by the
department of revenue is subject to the
provisions of 17–4–106.
(ii) All money collected by a collection
service must be paid to the department of
environmental quality and deposited in the
general fund or the accounts specified in the
statute for the assessed penalties, fees, late
fees, or interest, except that the collection
service may retain those collection costs or,
if the total debt is not collected, that portion
of collection costs that are approved by the
department.
In various provisions mentioned
above, Montana also proposes changes
to paragraph numbering where
provisions are proposed to be added or
deleted or for clarity. Montana also
proposes editorial revisions not
specified above.
III. Public Comment Procedures
Under the provisions of 30 CFR
732.17(h), we are seeking your
comments on whether the amendment
satisfies the applicable program
approval criteria of 30 CFR 732.15. If we
approve the amendment, it will become
part of the Montana program. We cannot
ensure that comments received after the
close of the comment period (see DATES)
or at locations other than those listed
above (see ADDRESSES) will be
considered or included in the
Administrative Record.
Written Comments
Send your written or electronic
comments to OSM at the address given
above. Your comments should be
specific, pertain only to the issues
proposed in this rulemaking, and
include explanations in support of your
recommendations.
Electronic Comments
Please submit Internet comments as
an ASCII or MSWord file avoiding the
use of special characters and any form
of encryption. Please also include ‘‘Attn:
SATS No. MT–026–FOR’’ and your
name and return address in your
Internet message. If you do not receive
a confirmation that we have received
your Internet message, contact the
Casper Field Office at (307) 261–6550.
Availability of Comments
We will make comments, including
names and addresses of respondents,
available for public review during
normal business hours. We will not
consider anonymous comments. If
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Federal Register / Vol. 71, No. 58 / Monday, March 27, 2006 / Proposed Rules
individual respondents request
confidentiality, we will honor their
request to the extent allowable by law.
Individual respondents who wish to
withhold their name or address from
public review, except for the city or
town, must state this prominently at the
beginning of their comments. We will
make all submissions from
organizations or businesses, and from
individuals identifying themselves as
representatives or officials of
organizations or businesses, available
for public review in their entirety.
Public Hearing
If you wish to speak at the public
hearing, contact the person listed under
FOR FURTHER INFORMATION CONTACT by 4
p.m., m.s.t., on April 11, 2006. If you are
disabled and need special
accommodations to attend a public
hearing, contact the person listed under
FOR FURTHER INFORMATION CONTACT. We
will arrange the location and time of the
hearing with those persons requesting
the hearing. If no one requests an
opportunity to speak, we will not hold
the hearing.
To assist the transcriber and ensure an
accurate record, we request, if possible,
that each person who speaks at a public
hearing provide us with a written copy
of his or her comments. The public
hearing will continue on the specified
date until everyone scheduled to speak
has been given an opportunity to be
heard. If you are in the audience and
have not been scheduled to speak and
wish to do so, you will be allowed to
speak after those who have been
scheduled. We will end the hearing after
everyone scheduled to speak and others
present in the audience who wish to
speak have been heard.
Public Meeting
sroberts on PROD1PC70 with PROPOSALS
If only one person requests an
opportunity to speak, we may hold a
public meeting rather than a public
hearing. If you wish to meet with us to
discuss the amendment, please request
a meeting by contacting the person
listed under FOR FURTHER INFORMATION
CONTACT. All such meetings are open to
the public and, if possible, we will post
notices of meetings at the locations
listed under ADDRESSES. We will make
a written summary of each meeting a
part of the administrative record.
IV. Procedural Determinations
Executive Order 12630—Takings
This rule does not have takings
implications. This determination is
based on the analysis performed for the
counterpart Federal regulation.
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18:28 Mar 24, 2006
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Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
(OMB) under Executive Order 12866.
Executive Order 12988—Civil Justice
Reform
The Department of the Interior has
conducted the reviews required by
section 3 of Executive Order 12988 and
has determined that this rule meets the
applicable standards of subsections (a)
and (b) of that section. However, these
standards are not applicable to the
actual language of State regulatory
programs and program amendments
because each program is drafted and
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.
Executive Order 13132—Federalism
This rule does not have federalism
implications. SMCRA delineates the
roles of the Federal and State
governments with regard to the
regulation of surface coal mining and
reclamation operations. One of the
purposes of SMCRA is to ‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations.’’ Section 503(a)(1) of
SMCRA requires that State laws
regulating surface coal mining and
reclamation operations be ‘‘in
accordance with’’ the requirements of
SMCRA. Section 503(a)(7) requires that
State programs contain rules and
regulations ‘‘consistent with’’
regulations issued by the Secretary
pursuant to SMCRA.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
In accordance with Executive Order
13175, we have evaluated the potential
effects of this rule on Federally
recognized Indian tribes and have
determined that the rule does not have
substantial direct effects on any Tribe,
on the relationship between the Federal
Government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
Government and Indian Tribes. The
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Fmt 4702
Sfmt 4702
State of Montana, under a Memorandum
of Understanding with the Secretary of
the Interior (the validity of which was
upheld by the U.S. District Court for the
District of Columbia), does have the
authority to apply the provisions of the
Montana regulatory program to mining
of some coal minerals held in trust for
the Crow Tribe. This proposed program
amendment does not alter or address the
terms of the MOU.
Executive Order 13211—Regulations
That Significantly Affect The Supply,
Distribution, or Use of Energy
On May 18, 2001, the President issued
Executive Order 13211 which requires
agencies to prepare a Statement of
Energy Effects for a rule that is (1)
considered significant under Executive
Order 12866, and (2) likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Because
this rule is exempt from review under
Executive Order 12866 and is not
expected to have a significant adverse
effect on the supply, distribution, or use
of energy, a Statement of Energy Effects
is not required.
National Environmental Policy Act
This rule does not require an
environmental impact statement
because section 702(d) of SMCRA (30
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. 4321 et seq.).
Paperwork Reduction Act
This rule does not contain
information collection requirements that
require approval by OMB under the
Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior
certifies that this rule will not have a
significant economic impact on a
substantial number of small entities
under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). The State submittal,
which is the subject of this rule, is based
upon counterpart Federal regulations for
which an economic analysis was
prepared and certification made that
such regulations would not have a
significant economic effect upon a
substantial number of small entities. In
making the determination as to whether
this rule would have a significant
economic impact, the Department relied
upon the data and assumptions for the
counterpart Federal regulations.
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Federal Register / Vol. 71, No. 58 / Monday, March 27, 2006 / Proposed Rules
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2) of the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
This determination is based upon the
fact that the State submittal which is the
subject of this rule is based upon
counterpart Federal regulations for
which an analysis was prepared and a
determination made that the Federal
regulation was not considered a major
rule.
Unfunded Mandates
This rule will not impose an
unfunded mandate on State, local, or
tribal governments or the private sector
of $100 million or more in any given
year. This determination is based upon
the fact that the State submittal, which
is the subject of this rule, is based upon
counterpart Federal regulations for
which an analysis was prepared and a
determination made that the Federal
regulation did not impose an unfunded
mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface
mining, Underground mining.
Dated: March 6, 2006.
Allen D. Klein,
Director, Western Region.
[FR Doc. E6–4360 Filed 3–24–06; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 100
[CGD05–06–020]
sroberts on PROD1PC70 with PROPOSALS
RIN 1625–AA08
Special Local Regulation for Marine
Events; Nanticoke River, Sharptown,
MD
Coast Guard, DHS.
Notice of proposed rulemaking.
AGENCY:
ACTION:
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18:28 Mar 24, 2006
Jkt 208001
SUMMARY: The Coast Guard proposes
temporary special local regulations
during the ‘‘Bo Bowman Memorial—
Sharptown Regatta’’, a marine event to
be held on the waters of the Nanticoke
River near Sharptown, Maryland. These
special local regulations are necessary to
provide for the safety of life on
navigable waters during the event. This
action is intended to restrict vessel
traffic in the Nanticoke River during the
event.
DATES: Comments and related material
must reach the Coast Guard on or before
April 26, 2006.
ADDRESSES: You may mail comments
and related material to Commander
(oax), Fifth Coast Guard District, 431
Crawford Street, Portsmouth, Virginia
23704–5004. The Fifth Coast Guard
District maintains the public docket for
this rulemaking. Comments and
material received from the public, as
well as documents indicated in this
preamble as being available in the
docket, will become part of this docket
and will be available for inspection or
copying at the Fifth Coast Guard District
office between 9 a.m. and 2 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
Dennis Sens, Project Manager, Auxiliary
and Recreational Boating Safety Branch,
at (757) 398–6204.
SUPPLEMENTARY INFORMATION:
Request for Comments
We encourage you to participate in
this rulemaking by submitting
comments and related material. If you
do so, please include your name and
address, identify the docket number for
this rulemaking (CGD05–06–020),
indicate the specific section of this
document to which each comment
applies, and give the reason for each
comment. Please submit all comments
and related material in an unbound
format, no larger than 81⁄2 by 11 inches,
suitable for copying. If you would like
to know they reached us, please enclose
a stamped, self-addressed postcard or
envelope. We will consider all
comments and material received during
the comment period. We may change
this proposed rule in view of them.
Public Meeting
We do not now plan to hold a public
meeting. But you may submit a request
for a meeting by writing to the Coast
Guard at the address under ADDRESSES
explaining why one would be
beneficial. If we determine that one
would aid this rulemaking, we will hold
one at a time and place announced by
a later notice in the Federal Register.
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15095
Background and Purpose
On June 17 and 18, 2006, the Carolina
Virginia Racing Association will
sponsor the ‘‘Bo Bowman Memorial—
Sharptown Regatta’’, on the waters of
the Nanticoke River at Sharptown,
Maryland. The event will consist of
approximately 100 hydroplanes and
runabouts conducting high-speed
competitive races on the waters of the
Nanticoke River between the Maryland
S.R. 313 Highway Bridge and Nanticoke
River Light 43 (LLN 24175). A fleet of
spectator vessels normally gathers
nearby to view the competition. Due to
the need for vessel control before,
during and after the event, vessel traffic
will be temporarily restricted to provide
for the safety of participants, spectators
and transiting vessels.
Discussion of Proposed Rule
The Coast Guard proposes to establish
temporary special local regulations on
specified waters of the Nanticoke River
near Sharptown, Maryland. The
regulated area includes the waters of the
Nanticoke River between the Maryland
S.R. 313 Highway Bridge and Nanticoke
River Light 43 (LLN 24175). The
temporary special local regulations will
be enforced from 9:30 a.m. to 6:30 p.m.
on June 17 and 18, 2006, and will
restrict general navigation in the
regulated area during the power boat
race. Except for persons or vessels
authorized by the Coast Guard Patrol
Commander, no person or vessel may
enter or remain in the regulated area
during the enforcement period. The
Patrol Commander may allow nonparticipating vessels to transit the
regulated area between races, when it is
safe to do so. This regulated area is
needed to control vessel traffic before,
during and after the event to enhance
the safety of participants, spectators and
transiting vessels.
Regulatory Evaluation
This proposed rule is not a
‘‘significant regulatory action’’ under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and
does not require an assessment of
potential costs and benefits under
section 6(a)(3) of that Order. The Office
of Management and Budget has not
reviewed it under that Order. It is not
‘‘significant’’ under the regulatory
policies and procedures of the
Department of Homeland Security
(DHS).
We expect the economic impact of
this rule to be so minimal that a full
Regulatory Evaluation under the
regulatory policies and procedures of
DHS is unnecessary. Although this
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]]>Agencies
[Federal Register Volume 71, Number 58 (Monday, March 27, 2006)]
[Proposed Rules]
[Pages 15090-15095]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-4360]
=======================================================================
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 926
[MT-026-FOR]
Montana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
-----------------------------------------------------------------------
SUMMARY: We are announcing receipt of a proposed amendment to the
Montana regulatory program under the Surface Mining Control and
Reclamation Act of 1977 (SMCRA or the Act).
This document gives the times and locations that the Montana
regulatory program and proposed amendment to that program are available
for your inspection, the comment period during which you may submit
written
[[Page 15091]]
comments on the amendment, and the procedures that we will follow for
the public hearing, if one is requested.
DATES: We will accept written comments on this amendment until 4 p.m.,
m.s.t., April 26, 2006. If requested, we will hold a public hearing on
the amendment on April 21, 2006. We will accept requests to speak until
4 p.m., m.s.t., on April 11, 2006.
ADDRESSES: You may submit comments, identified by ``MT-026-FOR,'' by
any of the following methods:
E-mail: rpair@osmre.gov. Include ``MT-026-FOR'' in the
subject line of the message.
Mail/Hand Delivery/Courier: Richard Buckley, Acting
Director, Casper Field Office, Office of Surface Mining Reclamation and
Enforcement, 150 East B St., Rm. 1018, Casper, WY 82601-1018. (307)
261-6550. rbuckley@osmre.gov.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and indicate docket number ``MT-026-FOR.'' For detailed instructions on
submitting comments and additional information on the rulemaking
process, see the ``Public Comment Procedures'' heading of the
SUPPLEMENTARY INFORMATION section of this document.
Docket: Access to the docket, to review copies of the Montana
regulatory program under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA or the Act) (hereinafter, the ``Montana program''), this
amendment, a listing of any scheduled public hearings, and all written
comments received in response to this document, may be obtained at the
addresses listed below during normal business hours, Monday through
Friday, excluding holidays. You may receive one free copy of the
amendment by contacting Office of Surface Mining Reclamation and
Enforcement (OSM's) Casper Field Office. In addition, you may review a
copy of the amendment during regular business hours at the following
locations:
Richard Buckley, Acting Director, Casper Field Office, Office of
Surface Mining Reclamation and Enforcement, 150 East B St., Rm.1018,
Casper, WY 82601-1018. (307) 261-6550. rbuckley@osmre.gov.
Neil Harrington, Chief, Industrial and Energy Minerals Bureau,
Montana Department of Environmental Quality, P.O. Box 200901, Helena,
MT 59620-0901. (406) 444-2544. neharrington@mt.gov.
FOR FURTHER INFORMATION CONTACT: Richard Buckley, Telephone: (307) 261-
6550. E-mail: rbuckley@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Montana Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Montana Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Montana program on April 1, 1980. You can
find background information on the Montana program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Montana program in the April 1, 1980, Federal Register
(45 FR 21560). You can also find later actions concerning Montana's
program and program amendments at 30 CFR 926.15, 926.16, and 926.30.
II. Description of the Proposed Amendment
By letter dated January 18, 2006, Montana sent us a proposed
amendment to its program (MT-026-FOR, Administrative Record No. MT-023-
01) under SMCRA (30 U.S.C. 1201 et seq.). Montana sent the amendment in
response to an April 2, 2001, letter that we sent to Montana in
accordance with 30 CFR 732.17(c) [pertaining to valid existing rights],
and to include the changes made at its own initiative. The full text of
the program amendment is available for you to read at the locations
listed above under ADDRESSES.
The provisions of the Montana Code Annotated (MCA) that Montana
proposes to revise or add are:
MCA 82-4-206, Procedure for contested case hearings; MCA 82-4-223,
Permit fee and surety bond; MCA 82-4-225, Application for increase or
reduction in permit area; MCA 82-4-226, Prospecting permit; MCA 82-4-
227, Refusal of permit; MCA 82-4-231, Submission of and action on
reclamation plan; MCA 82-4-232, Area mining required--bond--alternative
plan; MCA 82-4-233, Planting of vegetation following grading of
disturbed area; MCA 82-4-235, Determination of successful reclamation--
final bond release; MCA 82-4-251, Noncompliance--suspension of permits;
MCA 82-4-254, Violation--penalty--waiver; MCA 82-4-1001, Penalty
factors; and MCA 82-4-1002, Collection of penalties, fees, late fees,
and interest.
Specifically, Montana proposes to revise these sections as follows:
Revise 82-4-206, MCA, to provide that an applicant, permittee, or
person with an interest that is or may be adversely affected may
request a hearing before the board on decisions of the department
pertaining to (a) approval or denial of an application for a permit
pursuant to 82-4-231; (b) approval or denial of an application for a
prospecting permit pursuant to 82-4-226; (c) approval or denial of an
application to increase or reduce a permit area pursuant to 82-4-225;
(d) approval or denial of an application to renew or revise a permit
pursuant to 82-4-221; or (e) approval or denial of an application to
transfer a permit pursuant to 82-4-238 or 82-4-250.
Revise 82-4-223, MCA, to delete ``permit fee'' from the title and
delete the provision for a permit application fee, and for editorial
changes.
Revise 82-4-225, MCA, to delete the requirement for an application
fee for increased or reductions in permit area.
Revise 82-4-226, MCA, to delete the requirement for an application
fee for prospecting permits.
Revise 82-4-227, MCA, to add ``the national system of trails,''
Wild and Scenic Rivers Act study rivers and study river corridors, and
Federal lands within National Forests, to areas where mining is
prohibited (subject to valid existing rights).
Revise 82-4-231(9), MCA, to specify the Environmental Quality
Board, or its hearing officer, as the authority to hold hearings on
permit decisions, and to provide that hearings may be started (rather
than held) within the 20-day timeframe.
Revise 82-4-232(6), MCA, concerning bond release applications to:
(1) Change bond release requests to bond release applications;
(2) Provide that a bond release application is administratively
complete if it includes
(i) The location and acreage of the land for which bond release
is sought;
(ii) The amount of bond release sought;
(iii) A description of the completed reclamation, including the
date of performance;
(iv) A discussion of how the results of the completed
reclamation satisfy the
[[Page 15092]]
requirements of the approved reclamation plan; and
(v) Information required by rules implementing this part.
(3) Provide that the Department (of Environmental Quality) notify
the applicant in writing of its determination no later than 60 days
after submittal of the application; if the department determines that
the application is not administratively complete, it shall specify in
the notice those items that the application must address; after an
application for bond release has been determined to be administratively
complete by the department, the permittee shall publish a public notice
that has been approved as to form and content by the department at
least once a week for 4 successive weeks in a newspaper of general
circulation in the locality of the mining operation.
(4) Provide that
any person with a valid legal interest that might be adversely
affected by the release of a bond or the responsible officer or head
of any federal, state, or local governmental agency that has
jurisdiction by law or special expertise with respect to any
environmental, social, or economic impact involved in the operation
or is authorized to develop and enforce environmental standards with
respect to the operation may file written objections to the proposed
release of bond to the department within 30 days after the last
publication of the notice. If written objections are filed and a
hearing is requested, the department shall hold a public hearing in
the locality of the operation proposed for bond release or in
Helena, at the option of the objector, within 30 days of the request
for hearing. The department shall inform the interested parties of
the time and place of the hearing. The date, time, and location of
the public hearing must be advertised by the department in a
newspaper of general circulation in the locality for 2 consecutive
weeks. Within 30 days after the hearing, the department shall notify
the permittee and the objector of its final decision.
(5) Provide that without prejudice to the rights of the objector or
the permittee or the responsibilities of the department pursuant to
this section, the department may establish an informal conference to
resolve written objections.
(6) Provide that
for the purpose of the hearing under subsection (6)(d), the
department may administer oaths, subpoena witnesses or written or
printed materials, compel the attendance of witnesses or the
production of materials, and take evidence, including but not
limited to conducting inspections of the land affected and other
operations carried on by the permittee in the general vicinity. A
verbatim record of each public hearing required by this section must
be made, and a transcript must be made available on the motion of
any party or by order of the department.
(7) Provide that
if the applicant significantly modifies the application after
the application has been determined to be administratively complete,
the department shall conduct a new review, including an
administrative completeness determination. A significant
modification includes, but is not limited to:
(i) The notification of an additional property owner, local
governmental body, planning agency, or sewage and water treatment
authority of the permittee's intention to seek a bond release;
(ii) A material increase in the acreage for which a bond release
is sought or in the amount of bond release sought; or
(iii) A material change in the reclamation for which a bond
release is sought or the information used to evaluate the results of
that reclamation.
(8) Provide that the department conduct an inspection and
evaluation of the reclamation work involved within 30 days of
determining that the application is administratively complete or as
soon as weather permits;
(9) Provide that
the department shall review each administratively complete
application to determine the acceptability of the application. A
complete application is acceptable if the application is in
compliance with all of the applicable requirements of this part, the
rules adopted under this part, and the permit
(10) Provide that
(i) The department shall notify the applicant in writing
regarding the acceptability of the application no later than 60 days
from the date of the inspection.
(ii) If the department determines that the application is not
acceptable, it shall specify in the notice those items that the
application must address.
(iii) If the applicant revises the application in response to a
notice of unacceptability, the department shall review the revised
application and notify the applicant in writing within 60 days of
the date of receipt as to whether the revised application is
acceptable.
(iv) If the revision constitutes a significant modification, the
department shall conduct a new review, beginning with an
administrative completeness determination.
(v) A significant modification includes, but is not limited to:
(A) The notification of an additional property owner, local
governmental body, planning agency, or sewage and water treatment
authority of the permittee's intention to seek a bond release;
(B) A material increase in the acreage for which a bond release
is sought or the amount of bond release sought; or
(C) A material change in the reclamation for which a bond
release is sought or the information used to evaluate the results of
that reclamation.
(11) Delete existing detailed contents required for the public
notification requirements for bond release requests; and
(12) Delete the provisions of existing 82-4-232(6)(f)-(h)
concerning hearings and appeal rights.
Revise 82-4-233, MCA, by deleting existing paragraph (5) concerning
special revegetation requirements for land that was mined, disturbed,
or redisturbed after May 2, 1978, and that was seeded prior to January
1, 1984.
Revise 82-4-235(3)(a), MCA, to specify that special revegetation
bond release criteria on certain lands are applicable only under a
permit issued under this part.
Revise 82-4-251(3), MCA, to provide for a contested case hearing on
a permit suspension or revocation by filing a request for hearing,
specifying the grounds for the request, within 30 days of receipt of
the order of suspension or revocation; the order would be effective
upon expiration of the period for requesting a hearing or, if a hearing
is requested, upon issuance of a final order by the board; the hearing
would be conducted in accordance with the requirements of Title 2,
chapter 4, part 6, MCA.
Revise 82-4-251(5), MCA, to provide that informal public hearings
on notices or orders that require cessation of mining must be requested
by the person to whom the notice or order was issued. Further, if the
Department receives a request for an informal public hearing 21 days
after service of the notice or order, the period for holding the
informal public hearing will be extended by the number of days after
the 21st day that the request was received.
Revise 82-4-251(6), MCA, to change the provision allowing an
alleged violator to apply for a review by the department to allow him
to ``request a hearing before the board,'' and delete existing
requirements for Departmental investigation.
Revise 82-4-254(1), MCA, to provide individual administrative
penalties for persons who purposely or knowingly, rather than
willfully, authorize, order, or carry out violations. Further, such
penalties must be determined in accordance with 82-4-1001, MCA.
Revise 82-4-254(2), MCA, to add provision that the department may
not waive a penalty assessed under this section if the person or
operator fails to abate the violation as directed under MCA 82-4-251.
Add new requirements at 82-4-254(3)(a), MCA, providing that to
assess an administrative penalty, the Department must issue a notice of
violation and penalty order to the person or operator, unless the
penalty is waived under paragraph (2); further, the notice and order
must specify the
[[Page 15093]]
provision of this part, rule adopted or order issued under this part,
or term or condition of a permit that is violated and must contain
findings of fact, conclusions of law, and a statement of the proposed
administrative penalty; the notice and order must be served personally
or by certified mail [service by mail is complete 3 business days after
the date of mailing]; the notice and order become final unless, within
30 days after the order is served, the person or operator to whom the
order was issued requests a hearing before the Board. Further add to
paragraph (3)(a) a requirement that on receiving a request, the Board
must schedule a hearing. Revise language at newly designated paragraph
(3)(b) to indicate that only a person or operator issued a final order
may obtain judicial review. Revise language at newly designated
paragraph (3)(c) and paragraph (4) to allow the department, rather than
the Attorney General, to file actions for collection, allow filing in
the first judicial district (if agreed by the parties), and allow the
department, rather than the Attorney General, to bring actions for
judicial relief.
Revise 82-4-254(6) and (8), MCA, to provide criminal sanctions
against persons who purposely or knowingly, rather than willfully,
commit certain acts.
Add new paragraph 82-4-254(10), MCA, providing that within 30 days
after receipt of full payment of an administrative penalty assessed
under this section, the department will issue a written release of
civil liability for the violations for which the penalty was assessed.
Regarding the proposed revisions to MCA 82-4-254, Montana notes in
a narrative explanation that the terms ``purposely or knowingly'' are
used in the Montana Criminal Code, and ``willfully'' is not. Further,
the changes in proposed MCA 82-4-254(3)(a) are for the purpose of
converting the two-step process of assessing a penalty into a more
streamlined one-step process. The Department would now issue a Notice
of Violation and Administrative Penalty Order (NOV/APO) that would
contain all of the relevant components from the existing two-step
process. The NOV/APO would contain a notice of violation, findings of
fact, conclusions of law, penalty assessment, and an order to pay a
proposed penalty. The operator would have 30 days after issuance of the
NOV/APO to submit an appeal. If an appeal is not submitted, the NOV/APO
would become final, eliminating the need to issue separate findings and
conclusions of law, and the penalty would be due in 30 days.
Add a new section 82-4-1001, MCA, as follows:
Penalty factors. (1) In determining the amount of an
administrative or civil penalty assessed under the statutes listed
in subsection (4), the department of environmental quality or the
district court, as appropriate, shall take into account the
following factors:
(a) The nature, extent, and gravity of the violation;
(b) The circumstances of the violation;
(c) The violator's prior history of any violation, which:
(i) Must be a violation of a requirement under the authority of
the same chapter and part as the violation for which the penalty is
being assessed;
(ii) Must be documented in an administrative order or a judicial
order or judgment issued within 3 years prior to the date of the
occurrence of the violation for which the penalty is being assessed;
and
(iii) May not, at the time that the penalty is being assessed,
be undergoing or subject to administrative appeal or judicial
review;
(d) The economic benefit or savings resulting from the
violator's action;
(e) The violator's good faith and cooperation;
(f) The amounts voluntarily expended by the violator, beyond
what is required by law or order, to address or mitigate the
violation or impacts of the violation; and
(g) Other matters that justice may require.
(2) Except for penalties assessed under 82-4-254, after the
amount of a penalty is determined under (1), the department of
environmental quality or the district court, as appropriate, may
consider the violator's financial ability to pay the penalty and may
institute a payment schedule or suspend all or a portion of the
penalty.
(3) Except for penalties assessed under 82-4-254, the department
of environmental quality may accept a supplemental environmental
project as mitigation for a portion of the penalty. For purposes of
this section, a ``supplemental environmental project'' is an
environmentally beneficial project that a violator agrees to
undertake in settlement of an enforcement action but which the
violator is not otherwise legally required to perform.
(4) This section applies to penalties assessed by the department
of environmental quality or the district court under 82-4-141, 82-4-
254, 82-4-361, and 82-4-441.
(5) The board of environmental review and the department of
environmental quality may, for the statutes listed in subsection (4)
for which each has rulemaking authority, adopt rules to implement
this section.
Add a new section 82-4-1002, MCA, as follows:
Collection of penalties, fees, late fees, and interest.
(1) If the department of environmental quality is unable to
collect penalties, fees, late fees, or interest assessed pursuant to
the provisions of this chapter, the department of environmental
quality may assign the debt to a collection service or transfer the
debt to the department of revenue pursuant to Title 17, chapter 4,
part 1.
(2)(a) The reasonable collection costs of a collection service,
if approved by the department of environmental quality, or
assistance costs charged the department of environmental quality by
the department of revenue pursuant to 17-4-103(3) may be added to
the debt for which collection is being sought.
(b)(i) All money collected by the department of revenue is
subject to the provisions of 17-4-106.
(ii) All money collected by a collection service must be paid to
the department of environmental quality and deposited in the general
fund or the accounts specified in the statute for the assessed
penalties, fees, late fees, or interest, except that the collection
service may retain those collection costs or, if the total debt is
not collected, that portion of collection costs that are approved by
the department.
In various provisions mentioned above, Montana also proposes
changes to paragraph numbering where provisions are proposed to be
added or deleted or for clarity. Montana also proposes editorial
revisions not specified above.
III. Public Comment Procedures
Under the provisions of 30 CFR 732.17(h), we are seeking your
comments on whether the amendment satisfies the applicable program
approval criteria of 30 CFR 732.15. If we approve the amendment, it
will become part of the Montana program. We cannot ensure that comments
received after the close of the comment period (see DATES) or at
locations other than those listed above (see ADDRESSES) will be
considered or included in the Administrative Record.
Written Comments
Send your written or electronic comments to OSM at the address
given above. Your comments should be specific, pertain only to the
issues proposed in this rulemaking, and include explanations in support
of your recommendations.
Electronic Comments
Please submit Internet comments as an ASCII or MSWord file avoiding
the use of special characters and any form of encryption. Please also
include ``Attn: SATS No. MT-026-FOR'' and your name and return address
in your Internet message. If you do not receive a confirmation that we
have received your Internet message, contact the Casper Field Office at
(307) 261-6550.
Availability of Comments
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If
[[Page 15094]]
individual respondents request confidentiality, we will honor their
request to the extent allowable by law. Individual respondents who wish
to withhold their name or address from public review, except for the
city or town, must state this prominently at the beginning of their
comments. We will make all submissions from organizations or
businesses, and from individuals identifying themselves as
representatives or officials of organizations or businesses, available
for public review in their entirety.
Public Hearing
If you wish to speak at the public hearing, contact the person
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t., on
April 11, 2006. If you are disabled and need special accommodations to
attend a public hearing, contact the person listed under FOR FURTHER
INFORMATION CONTACT. We will arrange the location and time of the
hearing with those persons requesting the hearing. If no one requests
an opportunity to speak, we will not hold the hearing.
To assist the transcriber and ensure an accurate record, we
request, if possible, that each person who speaks at a public hearing
provide us with a written copy of his or her comments. The public
hearing will continue on the specified date until everyone scheduled to
speak has been given an opportunity to be heard. If you are in the
audience and have not been scheduled to speak and wish to do so, you
will be allowed to speak after those who have been scheduled. We will
end the hearing after everyone scheduled to speak and others present in
the audience who wish to speak have been heard.
Public Meeting
If only one person requests an opportunity to speak, we may hold a
public meeting rather than a public hearing. If you wish to meet with
us to discuss the amendment, please request a meeting by contacting the
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings
are open to the public and, if possible, we will post notices of
meetings at the locations listed under ADDRESSES. We will make a
written summary of each meeting a part of the administrative record.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and 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.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian tribes
and have determined that the rule does not have substantial direct
effects on any Tribe, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian Tribes. The
State of Montana, under a Memorandum of Understanding with the
Secretary of the Interior (the validity of which was upheld by the U.S.
District Court for the District of Columbia), does have the authority
to apply the provisions of the Montana regulatory program to mining of
some coal minerals held in trust for the Crow Tribe. This proposed
program amendment does not alter or address the terms of the MOU.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 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. 4321 et
seq.).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
[[Page 15095]]
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2) of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 926
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 6, 2006.
Allen D. Klein,
Director, Western Region.
[FR Doc. E6-4360 Filed 3-24-06; 8:45 am]
BILLING CODE 4310-05-P
