71428 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of 

SMCRA requires that State laws 

regulating surface coal mining and 

reclamation operations be ‘‘in 

accordance with’’ the requirements of 

SMCRA, and section 503(a)(7) requires 

that State programs contain rules and 

regulations ‘‘consistent with’’

regulations issued by the Secretary 

pursuant to SMCRA. 

Executive Order 13175—Consultation 

and Coordination With Indian Tribal 

Governments 

In accordance with Executive Order 

13175, we have evaluated the potential 

effects of this rule on Federallyrecognized Indian tribes and have 

determined that the rule does not have 

substantial direct effects on one or more 

Indian tribes, on the relationship 

between the Federal Government and 

Indian tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian tribes. 

This determination is based on the fact 

that the Missouri program does not 

regulate coal exploration and surface 

coal mining and reclamation operations 

on Indian lands. Therefore, the Missouri 

program has no effect on Federallyrecognized Indian tribes. 

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. 4332(2)(C)). 

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. 

3507 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. 

Small Business Regulatory Enforcement 

Fairness Act 

This rule is not a major rule under 5 

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

Regulatory Enforcement Fairness Act. 

This rule: (a) Does not have an annual 

effect on the economy of $100 million; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and (c) Does not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. This 

determination is based 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 925 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: November 18, 2005. 

Charles E. Sandberg, 

Regional Director, Mid-Continent Region. 

[FR Doc. 05–23456 Filed 11–28–05; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 926 

[MT–025–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 (hereinafter, the 

‘‘Montana program’’) under the Surface 

Mining Control and Reclamation Act of 

1977 (SMCRA or the Act). Montana 

proposes revisions to, additions of, and 

deletions of rules about: Definitions; 

permit application requirements; 

application processing and public 

participation; application review, 

findings, and issuance; permit 

conditions; permit renewal; 

performance standards; prospecting 

permits and notices of intent; bonding 

and insurance; protection of parks and 

historic sites; lands where mining is 

prohibited; inspection and enforcement; 

civil penalties; small operator assistance 

program (SOAP); restrictions on 

employee financial interests; blasters 

license; and revision of permits. 

Montana intends to revise its program 

to be consistent with the corresponding 

Federal regulations and SMCRA, and to 

clarify ambiguities. 

This document gives the times and 

locations that the Montana program and 

proposed amendment to that program 

are available for your inspection, the 

comment period during which you may 

submit written comments on the 

amendment, and the procedures that we 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71429 

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. December 29, 2005. If 

requested, we will hold a public hearing 

on the amendment on December 27, 

2005. We will accept requests to speak 

until 4 p.m., m.s.t. on December 14, 

2005. 

ADDRESSES: You may submit comments, 

identified by ‘‘MT–025–FOR,’’ by any of 

the following methods: 

• E-mail: rbuckley@osmre.gov. 

Include ‘‘MT–025–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, 

Federal Building, 150 East B Street, 

Room 1018, Casper, WY 82601–1018, 

(307) 261–6550. 

• Fax: (307) 261–6552. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Instructions: All submissions received 

must include the agency name and the 

identifier ‘‘MT–025–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 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) 

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, 

Federal Building, 150 East B Street, 

Room 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 Determination 

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 August 29, 2005, 

Montana sent us a proposed amendment 

to its program (MT–025–FOR, 

Administrative Record No. MT–22–1) 

under SMCRA (30 U.S.C. 1201 et seq.). 

Montana sent the amendment in 

response to legislative revisions to its 

statutes, to the required program 

amendments at 30 CFR 926.16(e)(1), (k), 

(l), and (m), 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 Administrative 

Rules of Montana (ARM) that Montana 

proposes to revise, delete, and/or add 

are: ARM 17.24.301, definitions; 

17.24.302, permit application format; 

17.24.303, application requirements for 

legal, financial, and compliance 

information; 17.24.306, application 

requirements for baseline environmental 

information; 17.24.305, permit 

application map requirements; 

17.24.306, prime farmland investigation; 

17.24.308, operations plan; 17.24.312, 

fish and wildlife plan; 17.24.313, 

reclamation plan; 17.24.315, plans for 

ponds and embankments; 17.24.321, 

transportation facilities plan; 17.24.322, 

geologic information and coal 

conservation; 17.24.323, grazing plan; 

17.24.324, prime farmland special 

application requirements; 17.24.401, 

application filing and notice; 17.24.404, 

application review; 17.24.405, findings 

and decision; 17.24.412, extension of 

time to commence mining; 17.24.413, 

permit conditions; 17.24.416, permit 

renewal; 17.24.427, change of 

contractor; 17.24.501, backfilling and 

grading; 17.24.515, highwall reduction; 

17.24.520, thick overburden and excess 

spoil; 17.24.522, permanent cessation of 

operations; 17.24.523, coal fires and 

coal conservation; 17.24.602, location of 

roads and railroads; 17.24.603, road and 

railroad embankments; 17.24.605, 

hydrologic impact of roads and 

railroads; 17.24.609, other support 

facilities; 17.24.623, blasting schedule; 

17.24.624, surface blasting 

requirements; 17.24.626, blasting 

records; 17.24.633, water quality 

performance standards; 17.24.634, 

reclamation of drainage basins; 

17.24.635, diversions; 17.24.636, 

temporary diversions; 17.24.638, 

sediment control; 17.24.639, sediment 

ponds and other treatment facilities; 

17.24.642, permanent impoundments; 

17.24.645, ground water monitoring; 

17.24.646, surface water monitoring; 

17.24.701, soil removal; 17.24.702, soil 

storage and redistribution; 17.24.703, 

soil substitutes; 17.24.711, revegetation 

establishment; 17.24.714, soil 

stabilization; 17.24.716, revegetation 

methods; 17.24.717, tree and shrub 

planting; 17.24.718, soil amendments 

and land use practices; 17.24.719, 

grazing; 17.24.720, revegetation 

inspections; 17.24.723, revegetation 

monitoring; 17.24.724, revegetation 

success standards; 17.24.725, 

responsibility period; 17.24.726, 

vegetation measurement; 17.24.730, 

seasonality; 17.24.732, revegetation of 

previously cropped areas; 17.24.733, 

measurement of trees and shrubs; 

17.24.751, fish and wildlife protection; 

17.24.761, air quality protection; 

17.24.762, postmining land use; 

17.24.764, cropland; 17.24.815, prime 

farmland revegetation; 17.24.821, 

alternate reclamation—alternative 

postmining land use, plans; 17.24.823, 

alternate reclamation— alternative 

postmining lands use, approval of plan; 

17.24.824, alternate reclamation and 

alternative postmining land use; 

17.24.825, alternate reclamation, 

alternate revegetation; 17.24.826, 

alternate reclamation, liability period; 

17.24.832, auger mining; 17.24.901, 

underground mining application 

requirements; 17.24.903, underground 

mining performance standards; 

17.24.911, subsidence control; 

71430 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

17.24.924, underground development 

waste, general; 17.24.927, durable rock 

fills; 17.24.930, coal processing waste; 

17.24.932, disposal of coal processing 

waste; 17.24.1001, prospecting permit 

application; 17.24.1002, prospecting 

monthly reports; 17.24.1003, renewal 

and transfer of prospecting permits; 

17.24.1017, bond release for drilling 

operations; 17.24.1018, notice of intent 

to prospect; 17.24.1104, bonding 

amounts; 17.24.1106, bond terms and 

conditions; 17.24.1108, certificates of 

deposit; 17.24.1109, letters of credit; 

17.24.1116, bond release; 17.24.1125, 

liability insurance; 17.24.1129, annual 

report; 17.24.1131, protection of parks 

and historic sites; 17.24.1132, lands 

prohibited, definitions and standards; 

17.24.1133, lands prohibited, 

procedures; 17.24.1201, inspections; 

17.24.1202, compliance reviews; 

17.24.1206, enforcement; 17.24.1211, 

civil penalties; 17.24.1212, civil penalty 

point system; 17.24.1219, individual 

civil penalties; 17.24.1225, small 

operator assistance program (SOAP); 

17.24.1226, SOAP providers; 

17.24.1250, restrictions on employee 

financial interests; 17.24.1255, multiple 

interest advisory boards; 17.24.1263, 

revocation or suspension of blasters 

license; and 17.24.1301, revision of 

existing permits. 

Specifically, Montana proposes to the 

following revisions to its rules, all 

contained within the Administrative 

Rules of Montana (ARM). We note that 

in many but not all cases, Montana has 

proposed changing the numbering 

scheme for sub-requirements within the 

revised rules. 

17.24.301, Definitions 

(6) ‘‘adjacent area’’ proposed to be 

revised by deleting the existing 

definition and incorporating the 

statutory definition at 82–4–203(2), 

Montana Code Annotated (MCA). 

(11) the definition is proposed to be 

changed from ‘‘alternate reclamation’’ to 

‘‘alternative postmining land use’’. 

(13) ‘‘approximate original contour’’ is 

proposed to be extensively revised to 

read as follows: 

‘‘Approximate original contour’’ is defined 

in 82–4–203, MCA, as ‘‘that surface 

configuration achieved by backfilling and 

grading of the mined areas so that the 

reclaimed area, including any terracing or 

access roads, closely resembles the general 

surface configuration of the land prior to 

mining and blends into and complements the 

drainage pattern of the surrounding terrain, 

with all highwalls, spoil piles, and coal 

refuse piles eliminated so that: 

(a) the reclaimed terrain closely resembles 

the general surface configuration if it is 

comparable to the premine terrain. For 

example, if the area was basically level or 

gently rolling before mining, it should retain 

these features after mining, recognizing that 

rolls and dips need not be restored to their 

original locations and that level areas may be 

increased; 

(b) the reclaimed area blends with and 

complements the drainage pattern of the 

surrounding area so that water intercepted 

within or from the surrounding terrain flows 

through and from the reclaimed area in an 

unobstructed and controlled manner; 

(c) postmining drainage basins may differ 

in size, location, configuration, orientation, 

and density of ephemeral drainageways 

compared to the premining topography if 

they are hydrologically stable, soil erosion is 

controlled to the extent appropriate for the 

postmining land use, and the hydrologic 

balance is protected as necessary to support 

postmining land uses within the area affected 

and the adjacent area; and 

(d) the reclaimed surface configuration is 

appropriate for the postmining land use.’’

(26) ‘‘community or institutional 

building’’ is proposed to be extensively 

revised to read as follows: 

‘‘Community or institutional building’’

means any structure, other than a public 

building or a dwelling, which is used 

primarily for meetings, gatherings or 

functions of local civic organizations or other 

community groups; functions as an 

educational, cultural, historic, religious, 

scientific, correctional, mental-health or 

physical health care facility; or is used for 

public services, including, but not limited to, 

water supply, power generation or sewage 

treatment. 

(33) ‘‘diversion’’ is proposed to be 

extensively revised to read as follows: 

‘‘Diversion’’ means a channel, 

embankment, or other manmade structure 

constructed to divert undisturbed runoff 

around an area of disturbance and back to an 

undisturbed channel. 

(36) a new definition of ‘‘dwelling’’ is 

proposed to be added to read as follows: 

‘‘Dwelling’’ means a building inhabited by 

or useful for habitation by a person or 

persons. 

(38) the existing definition of 

‘‘ephemeral stream’’ is proposed to be 

revised to quote the statutory definition 

of ‘‘ephemeral drainageway’’ at 82–4–

203(17), MCA. 

(46) a new definition of ‘‘good 

ecological integrity’’ is proposed to be 

added to read as follows: 

‘‘Good ecological integrity’’ means that the 

complex of community of organisms and its 

environment functioning as an ecological 

unit possesses components and processes in 

good working order. Pastureland and 

cropland managed in accordance with county 

or local conservation district or state or 

federal best management practices (resource 

management strategies, such as normal 

husbandry practices, used to manage or 

protect a resource and promote ecological 

and economic sustainability) generally reflect 

good ecological integrity with regard to such 

land uses. 

(50) the definition of ‘‘higher or better 

uses’’ is proposed to be revised to quote 

the statutory definition at 82–4–203(23), 

MCA. 

(53) the definition of ‘‘historically 

used for cropland’’ is proposed to be 

revised by adding a new subparagraph 

(53)(c) to read as follows: 

(c) lands that would likely have been used 

for cropland for any five or more years out 

of the 10 years immediately preceding such 

acquisition but for the same fact of 

ownership or control of the land as in (53)(a) 

unrelated to the productivity of the land. 

(53) the definition of ‘‘hydrologic 

balance’’ is proposed to be revised to 

quote the statutory definition at 82–4–

203(24), MCA. 

(59) the definition of ‘‘incidental 

boundary change’’ is proposed to be 

revised to read ‘‘incidental boundary 

revision’’. 

(64) The introduction to and 

subparagraphs (b), (c), (d), (g), and (h) of 

the definition of ‘‘land use’’ is proposed 

to be revised to quote from the statutory 

definitions at 82–4–203, subparagraphs 

(28), (37), (22), (21), (43), and (20), MCA, 

to read as follows: 

‘‘Land use’’ is defined in 82–4–203, MCA, 

as ‘‘specific uses or management-related 

activities, rather than the vegetative cover of 

the land. Land uses may be identified in 

combination when joint or seasonal uses 

occur and may include land used for support 

facilities that are an integral part of the land 

use. Land use categories include cropland, 

developed water resources, fish and wildlife 

habitat, forestry, grazing land, industrial or 

commercial, pastureland, land occasionally 

cut for hay, recreation, or residential.’’

(a) [remains the same] 

(b) ‘‘Pastureland’’ is defined in 82–4–203, 

MCA, as ‘‘land used primarily for the longterm production of adapted, domesticated 

forage plants to be grazed by livestock or 

occasionally cut and cured for livestock 

feed.’’

(c) ‘‘Grazing land’’ is defined in 82–4–203, 

MCA, as ‘‘land used for grasslands and forest 

lands where the indigenous vegetation is 

actively managed for livestock grazing or 

browsing or occasional hay production.’’

(d) ‘‘Forestry’’ is defined in 82–4–203, 

MCA, as ‘‘land used or managed for the longterm production of wood, wood fiber, or 

wood-derived products.’’

(e) Through (f)(ii) [remain the same] 

(g) ‘‘Recreation’’ is defined in 82–4–203, 

MCA, as ‘‘land used for public or private 

leisure-time activities, including developed 

recreation facilities, such as parks, camps, 

and amusement areas, as well as areas for 

less intensive uses, such as hiking, canoeing, 

and other undeveloped recreational uses.’’

(h) ‘‘Fish and wildlife habitat’’ is defined 

in 82–4–203, MCA, as ‘‘land dedicated 

wholly or partially to the production, 

protection, or management of species of fish 

or wildlife.’’

(i) [remains the same] 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71431 

(67) a new definition of ‘‘material 

damage’’ is proposed to be added to 

quote the statutory definition at 82–4–

203(30), MCA. 

(68) the definition of ‘‘materially 

damage the quantity or quality of water’’

is proposed to be revised by deleting 

references to other definitions. 

(90) the definition of ‘‘prime 

farmland’’ is proposed to be revised to 

quote the statutory definition at 82–4–

203(40), MCA. 

(103) the definition of ‘‘reference 

area’’ is proposed to be revised to quote 

the statutory definition at 82–4–203(44). 

(107) the definition of ‘‘road’’ is 

proposed to be revised to delete the 

final sentence of the main clause, which 

currently reads: 

The term does not include pioneer or 

construction roadways that are used for part 

of the road construction procedure and that 

are promptly replaced by roads associated 

with the prospecting or mining operation in 

the identical right-of-way as the pioneer or 

construction roadway. 

Further, subparagraph (107)(b), 

defining ‘‘haul road,’’ is proposed to be 

revised to read as follows: ‘‘ ‘Haul road’

means a road used for more than six 

months to transport coal, soil, or spoil.’’

(143) a new definition of ‘‘wildlife 

habitat enhancement features’’ is 

proposed to be added to quote from the 

statutory definition at 82–4–203(55), 

MCA. 

17.24.302, permit application 

requirements. Montana proposes to 

revise subparagraphs (1) and (2) to 

require that information in the 

application must be accurate, and that 

all tests, analyses, surveys, and data 

collection must be carried out at 

appropriate times and under 

appropriate conditions. 

17.24.303, permit application legal 

and financial requirements. Montana 

proposes to require that applications 

include a copy of the proposed 

newspaper advertisement and proof of 

publication after it is published. 

17.24.304, permit environmental 

baseline information. Montana proposes 

to: (1) Add a requirement that the uses 

of springs and uses of surface water 

bodies be added to the required listings; 

(2) revise the requirements for 

vegetation information to change the 

word ‘‘vegetative’’ to ‘‘vegetation,’’

revise the description of dominant 

species by deleting the phrase ‘‘2 or 

more’’ and change the term ‘‘number’’ to 

‘‘density’’; (3) delete the requirements 

for a narrative discussing current 

condition or trend for plant community 

sub-types and also delete the 

requirement for a range site map; (4) 

specify that the operator contact the 

department (of Environmental Quality) 

at least three months before planning 

the required wildlife survey; (5) revise 

the requirement for a listing of fish and 

wildlife species by specifying all species 

and deleting the non-inclusive list that 

now exists; and (6) revising land use 

information to require the condition, 

capability, productivity, and history of 

use of the land and vegetation within 

the proposed permit area. 

17.24.305, maps and plans. Montana 

proposes: (1) To revise subparagraph 

(1)(j) to require that maps showing the 

land to be affected include the pre-mine 

topography; (2) to revise subparagraph 

(2)(a) to require that map certifications 

submitted separately from the map must 

be in affidavit form; (3) revise 

subparagraph (2)(b) to add to the list of 

maps, plans, and cross-sections that 

must be prepared by (or under the 

direction of) and certified by a licensed 

professional engineer, the materials 

required under subparagraphs (1)(d), (e), 

(j), (k), (p), (q), (x), and (z); and (4) revise 

subparagraph (2)(b)(i) to add to the list 

of required materials that may be 

prepared by (or under the direction of) 

and certified by a licensed professional 

land surveyor, the materials required 

under subparagraphs (1)(d), (p), (x), and 

(z). 

17.24.308, operations plan. Montana 

proposes to: (1) Revise the description 

of the operations for which a 

description is required by deleting the 

word ‘‘mining’’ and the phrase ‘‘within 

the proposed mine plan area’’; (2) add 

to the requirements for which the 

narrative must demonstrate compliance 

the applicable rules of subchapter 10 

(underground mining); and (3) add to 

the proposed operations for which 

compliance must be demonstrated a 

new subsection which reads as follows: 

(vii) facilities or sites and associated access 

routes for environmental monitoring and data 

gathering activities [or] for the gathering of 

subsurface data by trenching, drilling, 

geophysical or other techniques to determine 

the nature, depth, and thickness of all known 

strata, overburden, and coal seams. 

Montana notes that the bracketed 

word ‘‘or’’ was mistakenly omitted but 

will be added in the next rule-making. 

17.24.312, fish and wildlife plan. 

Montana proposes: (1) To change from 

‘‘statement’’ to ‘‘description’’ the 

description of the required plan; (2) to 

delete the statement that nothing 

‘‘herein’’ may be construed to weaken 

the requirement of 82–4–233(1)(a), 

MCA; and (3) to add a requirement for 

a description of the wildlife habitat 

enhancement features that will be 

integrated with other land uses, 

pursuant to 82–4–232(9), MCA, and 

ARM 17.24.313. 

17.24.313, reclamation plan. Montana 

proposes: (1) To require that the 

reclamation plan include the proposed 

postmining land use pursuant to ARM 

17.24.762; (2) to require that the 

timetable for completion of reclamation 

steps be ‘‘detailed’’; (3) add ‘‘other 

means as approved by the department’’

to other specified means for showing the 

plan of highwall backfilling, reduction, 

‘‘or an alternative thereof’’; (4) deleting 

a provision for ‘‘alternate plans other 

than highwall reduction’’ if ‘‘consistent 

with the purposes of 82–4–232(7), MCA, 

and ARM 17.24.821 through 17.24.824’’; 

(5) add a new requirement that the 

backfilling plan contain: 

a demonstration that the proposed 

postmining topography can be achieved. This 

demonstration must include a cross-section 

or set of cross-sections, or other method as 

approved by the department, to depict the 

removal of overburden and mineral and the 

replacement of the swelled spoil; 

(6) delete an existing requirement for 

a plan for early detection of grading 

problems; (7) add a requirement to 

include: 

a description of postmining drainage basin 

reclamation that ensures protection of the 

hydrologic balance, achievement of 

postmining land use performance standards, 

and prevention of material damage to the 

hydrologic balance in adjacent areas, 

including: 

(i) A comparison of premining and 

postmining drainage basin size, drainage 

density, and drainage profiles as necessary to 

identify characteristics not distinguishable 

on the premining and postmining 

topographic maps; 

(ii) A discussion of how, within drainage 

basins: 

(A) The plan meets each performance 

standard in ARM 17.24.634; 

(B) The requirements of 82–4–231(10)(k), 

MCA, and ARM 17.24.314 will be met where 

the postmining topography differs from the 

premining as allowed by ARM 

17.24.301(13)(c); 

(f) Drainage channel designs appropriate 

for preventing material damage to the 

hydrologic balance in the adjacent area and 

to meet the performance standards of ARM 

17.24.634, including: 

(i) Detailed drainage designs for channels 

that contain critical hydrologic, ecologic or 

land use functions not already addressed in 

this rule such as alluvial valley floors, 

wetlands, steep erosive upland drainages, 

drainages named on USGS topographic maps, 

or intermittent or perennial streams. Detailed 

drainage designs include fluvial and 

geomorphic characteristics pertinent to the 

specific drainages being addressed; and 

(ii) For all other channels, typical designs 

and discussions of general fluvial and 

geomorphic habit, pattern, and other relevant 

functional characteristics; 

(8) revise the plans for material 

handling to require: 

71432 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

plans for removal, storage, and redistribution 

of soil, overburden, spoils, and other material 

in accordance with ARM 17.24.501, 

17.24.502, 17.24.503, 17.24.504, 17.24.505, 

17.24.507, 17.24.510, 17.24.514, 17.24.515, 

17.24.516, 17.24.517, 17.24.518, 17.24.519, 

17.24.520, 17.24.521, and 17.24.522, and 

17.24.701 through 17.24.703; 

(9) require that the operator must 

submit plans for any necessary 

monitoring of soils, overburden, spoils, 

or other materials; (10) require that the 

narrative of revegetation methods 

include a discussion of revegetation 

types, including the acreage of each; and 

(11) require that the discussion of 

measures to be used to determine the 

success of revegetation include the use 

of reference areas and/or technical 

standards in relation to the revegetation 

types. 

17.24.315, plans for ponds and 

embankments. Montana proposes to 

change the phrase ‘‘registered 

professional engineer’’ to the phrase 

‘‘licensed professional engineer’’ in 

three places. 

17.24.321, transportation facilities 

plan. Montana proposes (1) to delete the 

limiting words ‘‘haul’’ and ‘‘access,’’

leaving the general word ‘‘road’’; (2) 

revise the requirements for application 

materials to ‘‘the following as 

appropriate for the type of construction’’

and deleting in several subsequent 

itemized requirements the word 

‘‘appropriate’’; (3) to change the phrase 

‘‘registered professional engineer’’ to the 

phrase ‘‘licensed professional engineer’’; 

(4) add low water crossings to the plans 

and drawings required to be prepared by 

(or under the direction of), and certified 

by, a ‘‘licensed professional engineer’’; 

and (5) add 17.24.602, 17.24.603, 

17.24.605, and delete 17.24.606, to and 

from the specified performance 

standards. 

17.24.322, geologic information and 

coal conservation plan. Montana 

proposes: (1) To delete, from the coal 

conservation plan requirements, the 

location and dimensions of existing 

areas of spoil, waste, and garbage and 

other debris disposal, dams, 

embankments, other impoundments, 

and water treatment and air pollution 

control facilities within the proposed 

permit area; and (2) to add a 

requirement that: 

For an operator with a federal resource 

recovery and protection plan, the department 

may review all applicable coal recovery 

information retained by the bureau of land 

management, in lieu of or in addition to the 

information requirements under (3). 

17.24.323, grazing plan. Montana 

proposes to delete this rule. 

17.24.324, prime farmland special 

application requirements. Montana 

proposes to delete ARM 17.24.821 

through 17.24.825 (alternate 

reclamation) from the performance 

standards which the prime farmland 

reclamation plan must address. 

17.24.401, filing of permit application 

and notice. Montana proposes in two 

places to revise the phrase ‘‘alternate 

reclamation plan(s)’’ to the phrase 

‘‘alternative postmining land use 

plan(s).’’

17.24.404, review of application. 

Montana proposes: (1) To delete 

paragraph (9), which provides the 

applicant with the opportunity for a 

hearing under the Montana 

Administrative Procedure Act; and (2) 

to delete paragraph (10), which forbids 

the department to approve applications 

that may be inconsistent with other 

existing, proposed, or anticipated coal 

mining and reclamation operations in 

adjacent areas. 

17.24.405, findings and notice of 

decision. Montana proposes: (1) To 

revise the date by which the department 

must approve or deny an application to 

‘‘no later than 45 days from the date of 

the acceptability determination except 

as provided by 75–1–208(4)(b), MCA; (2) 

revise the allowed time for an 

environmental impact statement from 

‘‘within 365 days of its notice given 

pursuant to ARM 17.24.401(2)’’ to ‘‘in 

accordance with 82–4–231, MCA’’; (3) 

delete a requirement that the 

department publish a summary of the 

decision in a newspaper in the vicinity 

of the proposed project; (4) among the 

required findings, revise the finding 

dealing with ‘‘alternate reclamation’’ to 

‘‘alternative postmining land use’’ and 

add 17.24.821 to the requirements that 

must be met; and (5) delete paragraph 

(7), which provides the applicant with 

an opportunity for a contested case 

hearing if prior violations prohibit 

issuance of the permit. 

17.24.412, extension of time to 

commence mining. Montana proposes: 

(1) To add a requirement that requests 

for extensions are subject to the public 

participation requirements of 

17.24.401–17.24.403; and (2) to delete 

from paragraph (3) a requirement for 

special newspaper notices of the 

request. 

17.24.413, conditions of permits. 

Montana proposes to add an additional 

condition to all permits, to read as 

follows: 

A permittee shall immediately notify the 

department whenever a creditor of the 

permittee has attached or obtained a 

judgment against the permittee’s equipment 

or materials in the permit area or on the 

collateral pledged to the department. 

17.24.416, permit renewals. Montana 

proposes to revise the required 

newspaper notice so that the renewal 

application must include the proposed 

newspaper notice and proof of 

publication in a newspaper approved by 

the department. 

17.24.427, change of contractor. 

Montana proposes: (1) To revise 

paragraph (1) to require that the 

permittee must notify the department of 

any proposed new contractor or changes 

in an existing contractor, and require 

that notification to the department is 

required prior to proposed contractor 

changes if the permit has not been 

transferred; and (2) to revise paragraph 

(2) by deleting the existing requirement 

and adding a new requirement to ensure 

that the contractor may not conduct any 

activities on the permit area unless and 

until the department determines that the 

information submitted is acceptable and 

satisfies the requirements of ARM 

17.24.303. 

17.24.501, general backfilling and 

grading requirements. Montana 

proposes to revise paragraph (4) to: (1) 

Require that grading to approximate 

original contour must be in accordance 

with 82–4–232(1), MCA; (2) delete 

existing requirements that final slopes 

be graded to prevent slope failure, not 

exceed the angle of repose, and achieve 

a minimum long-term safety factor of 

1.3; (3) revise subparagraph (4)(a) to 

require that the operator transport, 

backfill, and compact to ensure 

compliance with subparagraph (3)(b) 

and ARM 17.24.505; (4) further revise 

subparagraph (4)(a) to require that 

highwalls must be reduced or backfilled 

in compliance with ARM 17.24.515(1) 

or approved highwall reduction 

alternatives in compliance with ARM 

17.24.515(2); and (5) still further revise 

subparagraph (4)(a) to delete existing 

requirements pertaining to box-cut 

spoils. Montana further proposes to 

revise paragraph (4) by adding a 

requirement that depressions must be 

eliminated except as provided in ARM 

17.24.503(1). 

Montana also proposes to revise 

17.24.501, subparagraph (6)(d), to 

require that all backfilling and grading 

achieve the approved postmining 

topography. Montana also proposes to 

add a new paragraph (7), requiring the 

operator to notify the department, in 

writing, upon detection of grading 

problems that would result in 

topography not consistent with the 

approved postmine topography. 

17.24.515, highwall reduction. 

Montana proposes to revise paragraph 

(1) to require that highwalls must be 

eliminated and the reduced highwall 

slope must be no greater than whatever 

slope is necessary to achieve a 

minimum long-term static safety factor 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71433 

of 1.3. Montana also proposes to revise 

paragraph (2) by deleting existing 

subparagraph (2)(c) (which provides 

that highwall reduction alternatives 

must comply with 17.24.313, 17.24.821–

17.21.824). Montana proposes 

additional new language to read as 

follows: 

(2) Highwall reduction alternatives may be 

permitted only to replace bluff features that 

existed before mining and where the 

department determines that: 

(a) Postmining bluffs are compatible with 

the proposed postmining land use; 

(b) Postmining bluffs are stable, achieving 

a minimum long-term static safety factor of 

1.3; 

(c) Similar geometry and function exists 

between pre- and postmining bluffs; 

(d) The horizontal linear extent of 

postmining bluffs does not exceed that of the 

premining condition; and 

(e) Highwalls will be backfilled to the 

extent that the uppermost mineable coal 

seam is buried in accordance with ARM 

17.24.505(1). 

17.24.520, thick overburden and 

excess spoil. Montana proposes to 

change the phrase ‘‘registered 

professional engineer’’ to ‘‘licensed 

professional engineer.’’ Montana further 

proposes in subparagraph (3)(k) to 

delete a reference to 17.24.520(13) in 

addressing coal mine wastes disposed in 

mine excavations. Montana further 

proposes to revise at subparagraph 

(3)(m) the requirements for a program to 

return wastes to underground workings 

to include the performance standards of 

17.24.920, 17.24.924(1), 17.24.930, and 

17.24.932(1). 

17.24.522, permanent cessation of 

operations. Montana proposes to delete 

the first two sentences of paragraph (3), 

which provide for completion of 

backfilling and grading within 90 days 

after the department determines the 

operation is completed, and that final 

pit reclamation must be as close to the 

coal loading operation as technical 

factors allow. 

17.24.523, coal fires and coal 

conservation. Montana proposes to add 

a second paragraph to read as follows: 

(2) Strip or underground mining operation 

must be conducted to prevent failure to 

conserve coal, utilizing the best technology 

currently available to maintain appropriate 

environmental protection. 

The operator shall adhere to the approved 

coal conservation plan required in ARM 

17.24.322. 

17.24.601, road and railroad facility 

construction requirements. Montana 

proposes to change the phrase 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

17.24.602, location of roads and 

railroad facilities. Montana proposes to 

delete a requirement that the proposed 

locations of these facilities be marked 

on site prior to pre-inspection of the 

proposed operation. 

17.24.603, road and railroad 

embankments. Montana proposes at 

paragraph (4) to delete a requirement for 

a minimum seismic safety factor, and 

revise the required minimum static 

safety factor from 1.5 to 1.3. 

17.24.605, hydrologic impact of roads 

and railroads. Montana proposes to 

revise the existing requirement that 

drainage structures are required for 

stream channel crossings. The revision 

would allow the use of riprap for road 

crossings of ephemeral streams that are 

too shallow for placement of a culvert. 

17.24.609, other support facilities. 

This rule requires that certain support 

structures meet certain design and 

construction requirements. Montana 

proposes to revise the rule to specify 

additional facilities, including septic 

systems and sewage lagoons, fuel 

storage and distribution facilities, and 

environmental monitoring sites. 

17.24.623, blasting schedule. Montana 

proposes to revise paragraph (2) to 

require that blasting schedules be 

delivered to each residence within onehalf mile of the permit area. Montana 

further proposes to revise at 

subparagraph (5)(b) the information 

required in blasting schedules, to 

include the township, range, and 

section of the specific areas, and to 

delete the requirement that specific 

blasting areas that are described be 

compact and no larger than 100 acres. 

17.24.624, surface blasting 

requirements. Montana proposes to 

revise paragraph (4) to delete the phrase 

‘‘at all points’’ within the one-half mile 

range for audibility of blast warnings. 

Montana proposes to revise 

subparagraph (6)(a) to require that 

airblast be controlled at any dwelling, or 

public, commercial, community or 

institutional building, unless the 

structure is owned by the operator. 

Similarly, Montana proposes to revise 

subparagraph (7)(a) to require that 

(unless approved by the department), no 

blasting be conducted within 1,000 feet 

of any dwelling or public, commercial, 

community or institutional building. 

Montana proposes to revise paragraph 

(11) to specify that peak particle 

velocities apply at any dwelling, or 

public, commercial, community or 

institutional building. Montana 

proposes to revise paragraph (14) to 

specify that the scaled-distance formula 

be calculated from the blast hole nearest 

to a dwelling, or public, commercial, 

community or institutional building, 

except as noted in paragraph (12). 

17.24.626, blasting records. Montana 

proposes to revise subparagraph (1)(d) 

to require that blast records include 

direction and distance, in feet, from the 

blast hole nearest to a dwelling or 

commercial, public, community, or 

institutional building. Montana 

proposes to revise subparagraph (1)(j) to 

require blast records to contain total 

weight of explosives used and total 

weight of explosives used in each hole. 

17.24.633, water quality performance 

standards. Montana proposes to revise 

paragraph (2) to read as follows: 

(2) Sediment control through BTCA [best 

technology currently available] practices 

must be maintained until the disturbed area 

has been restored, the revegetation 

requirements of ARM 17.24.711, 17.24.713, 

17.24.714, 17.24.716 through 17.24.718, 

17.24.721, 17.24.723 through 17.24.726, and 

17.24.731 have been met, the area meets state 

and federal requirements for the receiving 

stream, and evidence is provided that 

demonstrates that the drainage basin has 

been stabilized consistent with the approved 

postmining land use. 

17.24.634, reclamation of drainage 

basins. Montana proposes numerous 

revisions to paragraph (1); the proposed 

paragraph (1) reads as follows: 

(1) Reclaimed drainage basins, including 

valleys, channels, and floodplains must be 

constructed to: 

(a) Comply with the postmining 

topography map required by ARM 

17.24.313(1)(d)(iv) and approved by the 

department; 

(b) Approximate original contour; 

(c) An appropriate geomorphic habit or 

characteristic pattern consistent with 82–4–

231(10)(k), MCA; 

(d) [Remains the same] 

(e) Provide separation of flow between 

adjacent drainages and safely pass the runoff 

from a six-hour precipitation event with a 

100-year recurrence interval, or larger event 

as specified by the department; 

(f) Provide for the long-term relative 

stability of the landscape. The term 

‘‘relative’’ refers to a condition comparable to 

an unmined landscape with similar climate, 

topography, vegetation and land use; 

(g) Provide an average channel gradient 

that exhibits a concave longitudinal profile; 

(h) Establish or restore a diversity of 

habitats that are consistent with the approved 

postmining land use, and restore, enhance 

where practicable, or maintain natural 

riparian vegetation as necessary to comply 

with ARM subchapter 7; and 

(i) Exhibit dimensions and characteristics 

that will blend with the undisturbed drainage 

system above and below the area to be 

reclaimed and that will accommodate the 

approved revegetation and postmining land 

use requirements. 

Montana also proposes to revise 

paragraph (2) to change the phrase 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

17.24.635, general requirements for 

diversions. Montana proposes to revise 

paragraph (5) to change the phrase 

71434 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

Montana also proposes to delete 

paragraphs (6) and (7). 

17.24.636, special requirements for 

temporary diversions. Montana 

proposes several revisions to existing 

paragraph (1), to read (renumbered) as 

follows: 

(1)(a) remains the same, but is renumbered 

(1). 

(2) If channel lining is required to prevent 

erosion, the channel lining must be designed 

using standard engineering practices to safely 

pass design velocities. 

(3) Freeboard must be as specified by the 

department, but no less than 1.0 foot. 

Montana also proposes to delete 

existing subparagraph (2)(a). 

17.24.638, sediment control measures. 

Montana proposes to revise 

subparagraph (2)(a) to change the 

specified performance standards that 

must be met to minimize sediment, to 

include ARM 17.24.711, 17.24.713, 

17.24.714, 17.24.716 through 17.24.721, 

and 17.24.723 through 17.24.726. 

17.24.639, sediment ponds and other 

treatment facilities. Montana proposes 

to add a new subparagraph (1)(e), to 

require that sediment ponds be 

constructed as approved unless 

modified under ARM 17.24.642(7). 

Montana further proposes to revise 

paragraph (2) by deleting the final 

clause of existing subparagraph (2)(a) 

[‘‘except as provided below’’] and 

existing subparagraphs (b) through (e). 

Montana proposes to revise paragraph 

(3) to specify that the inlet to dewatering 

devises must not be below the 

maximum elevation of the sediment 

storage volume. Montana proposes to 

revise subparagraph (7)(a) to require that 

spillway designs assume the 

impoundment is at full pool; and further 

to delete a provision that no spillway is 

required if the sediment pond is entirely 

excavated. Montana proposes to revise 

paragraph (10) by adding a provision 

allowing the department to exempt the 

top-width requirement for some ponds. 

Montana proposes to revise paragraph 

(11) to require that the side slopes of the 

settled embankment must not be steeper 

than 3h:1v upstream and 2h:1v 

downstream, unless otherwise approved 

by the department. Montana proposes to 

revise paragraph (17) to change the 

phrase ‘‘registered professional 

engineer’’ to ‘‘licensed professional 

engineer.’’ Montana proposes to revise 

subparagraph (20)(a) to require that 

spillway designs assume the 

impoundment is at full pool. Montana 

proposes to revise subparagraph (22)(a) 

to read as follows: 

(22)(a) All ponds with embankments must 

be designed and inspected regularly during 

construction under the supervision of, and 

certified after construction by, a qualified 

licensed professional engineer experienced 

in the construction of impoundments. After 

construction, inspections and certifications 

must be made and reports filed with the 

department, pursuant to ARM 17.24.642(4). 

Inspection and certification reports must be 

submitted until the embankments are 

removed. 

Montana further proposes to delete 

subparagraph (22)(c). Montana proposes 

to revise paragraph (23) to limit 

inspection requirements to ponds with 

embankments. At newly renumbered 

paragraph (25), Montana proposes to 

change the list of required revegetation 

performance standards to include ARM 

17.24.711, 17.24.713, 17.24.714, 

17.24.716 through 17.24.718, 17.24.721, 

17.24.723 through 17.24.726, and 

17.24.731. At renumbered subparagraph 

(28)(a), Montana proposes that 

excavated sediment ponds require no 

spillway and must be able to contain the 

10-year, 24-hour precipitation event, 

and conform with paragraphs (1), (2), 

(4), (6), (18), (22)(a), (24) and (27). At 

subparagraph (28)(b), Montana proposes 

to change the phrase ‘‘registered 

professional engineer’’ to ‘‘licensed 

professional engineer.’’

17.24.642, permanent impoundments 

and flood control impoundments. 

Montana proposes to revise paragraph 

(1) to read as follows: 

(1) Permanent impoundments are 

prohibited unless constructed in accordance 

with ARM 17.24.504 and 17.24.639, and have 

open-channel spillways that will safely 

discharge runoff resulting from a 100-year, 

24-hour precipitation event, assuming the 

impoundment is at full pool for spillway 

design, or larger event specified by the 

department. The department may approve a 

permanent impoundment upon the basis of a 

demonstration that: 

Montana further proposes to delete 

subparagraphs (1)(g), (1)(h), and (1)(i). At 

paragraph (2), Montana proposes to limit to 

permanent impoundments the existing 

requirement that impoundments meet the 

performance requirements of 17.24.639. 

Montana proposes to delete paragraphs (3) 

through (6). Montana proposes to revise the 

maintenance provisions of renumbered 

paragraph (3) to require that all permanent 

impoundments be routinely maintained, and 

that ditches and spillways must be cleaned. 

Montana proposes to revise the inspection 

and certification provisions of renumbered 

paragraph (4) to limit the requirement to 

permanent impoundments, change the 

phrase ‘‘registered professional engineer’’ to 

‘‘licensed professional engineer,’’ and require 

inspection reports until phase IV bond 

release. In the content requirements for 

inspection reports at subparagraphs (4)(c) 

and (4)(d), Montana proposes to change the 

phrases ‘‘dam or embankment’’ to the term 

‘‘impoundment.’’ Montana proposes to delete 

existing paragraphs (9) and (10). Montana 

proposes new requirements to read as 

follows: 

(5)(a) Flood control impoundments are 

located upstream of disturbance areas for the 

purpose of preventing or controlling flooding 

or discharge and are not designed for 

sediment control or to be permanent. 

(b) Flood control impoundments with 

embankments must be constructed in 

accordance with (1)(f) and ARM 17.24.639(7) 

through (21), and be inspected, maintained 

and certified according to (3), (4)(a), (4)(d), 

and (6) and ARM 17.24.639(22) and (23). 

(c) Excavated flood control impoundments: 

(i) Must be in compliance with ARM 

17.24.639(18); 

(ii) Must have perimeter slopes that are 

stable; and 

(iii) Must be protected against erosion 

where surface runoff enters the 

impoundment area. 

(d) An initial pond certification report and 

inspections must be made for excavated flood 

control impoundments in accordance with 

ARM 17.24.639(28)(b). If the volume of the 

flood control impoundment is used in 

determination of required volume for a 

downstream pond, annual certification 

reports are required in accordance with 

(4)(a), (4)(c), and (4)(d). 

(e) Prior to construction, flood control 

impoundments must be approved by the 

department. 

(6) Permanent impoundments and flood 

control impoundments with embankments 

meeting the size or other criteria of 30 CFR 

77.216(a) or the Class B or C criteria for dams 

in TR–60 [Technical Release 60] must be 

routinely inspected by a qualified licensed 

professional engineer or by someone under 

the supervision of a qualified licensed 

professional engineer, in accordance with 30 

CFR 77.216–3. 

(7) Plans for any enlargement, reduction in 

size, reconstruction, or other modifications of 

permanent impoundments and flood control 

impoundments must be submitted to the 

department and must comply with the 

requirements of this subchapter. Except 

where a modification is required to eliminate 

an emergency condition constituting a hazard 

to public health, safety, or the environment, 

the modification must not be initiated until 

the department approves the plans. 

17.24.645, ground water monitoring. 

Montana proposes to revise paragraph 

(1) by deleting ‘‘infiltration rates’’ from 

the required parameters, and adding 

that the monitoring must be based on 

the monitoring program under 

17.24.314, and changing the phrase ‘‘in 

the mine plan and adjacent areas’’ to ‘‘in 

the permit and adjacent areas.’’ In 

paragraph (3), Montana proposes to 

revise the allowance for additional 

‘‘hydrologic tests’’ to additional 

‘‘observations and analyses.’’ At 

paragraph (6), Montana proposes to 

update the citations of water sampling 

guidelines and the department’s address 

where the guidelines may be obtained. 

17.24.646, surface water monitoring. 

Montana proposes to revise paragraph 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71435 

(1) to require that the monitoring be 

based on the information submitted 

under 17.24.304. At paragraph (4), 

Montana proposes that data from postgrading monitoring must be used to 

determine whether runoff meets 

requirements, that those data must be 

used by the department to review 

requests for water treatment systems; 

also, other information may be used for 

those purposes with departmental 

approval. At paragraph (6), Montana 

proposes to update the citations of water 

sampling guidelines and the 

department’s address where the 

guidelines may be obtained. 

17.24.701, removal of soil. Montana 

proposes to delete existing paragraph 

(3), and add a new paragraph (4) 

providing that soil removal is not 

required for minor disturbances which 

occur at the site of small structures such 

as power poles, signs or fences or where 

operations will not destroy vegetation 

and cause erosion. 

17.24.702, redistribution and 

stockpiling of soil. Montana proposes to 

revise paragraph (4) to include 

requirements for the distribution of soil 

substitutes, and too revise subparagraph 

(4)(b) to provide that the department 

may grant exemptions from the 

requirement to scarify spoil materials, 

and provide that if no adverse effects to 

the redistributed material or postmining 

land use will occur, such treatments 

may be conducted after the soil or soil 

substitute is replaced. At paragraph (6), 

Montana proposes to delete a 

requirement that soil replacement be 

done on the contour whenever possible. 

17.24.703, soil substitutes. Montana 

proposes that one requirement for soil 

substitutes is that the medium must be 

the best available in the permit area to 

support revegetation. 

17.24.711, establishment of 

vegetation. Montana proposes extensive 

revisions, to read as follows: 

(1) Vegetation must be reestablished in 

accordance with 82–4–233(1), (2), (3), and 

(5), MCA, as follows: 

(a) Sections 82–4–233(1), (2), and (3), 

MCA, state: ‘‘(1) The operator shall establish 

on regraded areas and on all other disturbed 

areas, except water areas, surface areas of 

roads, and other constructed features 

approved as part of the postmining land use, 

a vegetative cover that is in accordance with 

the approved permit and reclamation plan 

and that is: 

‘‘(a) diverse, effective, and permanent; 

‘‘(b) composed of species native to the area 

or of introduced species when desirable and 

necessary to achieve the postmining land use 

and when approved by the department; 

‘‘(c) at least equal in extent of cover to the 

natural vegetation of the area; and 

‘‘(d) capable of stabilizing the soil surface 

in order to control erosion to the extent 

appropriate for the approved postmining 

land use. 

‘‘(2) The reestablished plant species must: 

‘‘(a) be compatible with the approved 

postmining land use; 

‘‘(b) have the same seasonal growth 

characteristics as the original vegetation; 

‘‘(c) be capable of self-regeneration and 

plant succession; 

‘‘(d) be compatible with the plant and 

animal species of the area; and 

‘‘(e) meet the requirements of applicable 

seed, poisonous and noxious plant, and 

introduced species laws or regulations. 

‘‘(3) Reestablished vegetation must be 

appropriate to the postmining land use so 

that when the postmining land use is: 

‘‘(a) cropland, the requirements of 

subsections (1)(a), (1)(c), (2)(b), and (2)(c) are 

not applicable; 

‘‘(b) pastureland or grazing land, 

reestablished vegetation must have use for 

grazing by domestic livestock at least 

comparable to premining conditions or 

enhanced when practicable; 

‘‘(c) fish and wildlife habitat, forestry, or 

recreation, trees and shrubs must be planted 

to achieve appropriate stocking rates.’’

(b) Section 82–4–233(5), MCA, states: ‘‘For 

land that was mined, disturbed, or 

redisturbed after May 2, 1978, and that was 

seeded prior to January 1, 1984, using a seed 

mix that was approved by the department 

and on which the reclaimed vegetation 

otherwise meets the requirements of 

subsections (1) and (2) and applicable state 

and federal seed and vegetation laws and 

rules, introduced species are considered 

desirable and necessary to achieve the 

postmining land use and may compose a 

major or dominant component of the 

reclaimed vegetation.’’

(2) For areas designated prime farmland, 

the requirements of ARM 17.24.811 and 

17.24.815 must be met. 

(3) The department shall determine cover, 

planting, and stocking specifications either 

on a programmatic basis or for each operation 

based on local and regional conditions after 

consultation with and approval by: 

(a) [remains the same] 

(b) the department of natural resources and 

conservation for reclamation to land uses 

involving forestry. 

17.24.714, soil stabilization. Montana 

proposes to revise this rule to read as 

follows: 

(1) Such practices as seedbed preparation, 

mulching, or cover cropping must be used on 

all regraded and resoiled areas to control 

erosion, to promote germination of seeds, and 

to increase the moisture retention of the soil 

until an adequate, permanent cover is 

established. This requirement may be 

suspended if the operator demonstrates to the 

department’s satisfaction that it is not needed 

to control air or water pollution and erosion. 

17.24.716, method of revegetation. 

Montana proposes to revise paragraph 

(1) by changing the phrase ‘‘manner that 

encourages a prompt vegetative cover 

and recovery of productivity levels’’ to 

‘‘manner that encourages prompt 

vegetation establishment.’’ At paragraph 

(3), Montana proposes to delete a 

requirement that the operator shall 

utilize seed and seedlings genotypically 

adapted to the area when available in 

sufficient quality and quantity. Montana 

proposes to revise paragraph (4) by 

deleting a requirement that the 

department approve specific weed 

control plans. Montana also proposes to 

delete existing paragraph (5), addressing 

the use of introduced species. 

17.24.717, planting of trees and 

shrubs. Montana proposes several 

revisions, to read as follows: 

(1) Tree or shrub species necessary to meet 

the approved postmining land use must be 

adapted for local site conditions and climate. 

Trees and shrubs must be planted in 

combination with herbaceous species as 

necessary to achieve the postmining land use 

and as approved by the department. If 

necessary to increase tree and shrub survival, 

seeding of the herbaceous species may be 

delayed providing that measures are taken to 

control air and water pollution and erosion. 

17.24.718, soil amendments and 

management practices. Montana 

proposes to revise paragraph (2) and add 

a new paragraph (3) to read as follows: 

(2) An operator may use only normal 

husbandry practices to ensure the 

establishment of vegetation consistent with 

the approved reclamation plan. 

(3) Reclamation land use practices 

including, but not limited to, grazing, haying, 

or chemical applications, may not be 

conducted in a manner or at a time that 

interferes with establishment and/or 

persistence of seeded and planted grasses, 

forbs, shrubs, and trees or with other 

reclamation requirements. 

17.24.719, livestock grazing. Montana 

proposes to delete this rule. 

17.24.720, annual inspections of 

revegetated areas. Montana proposes to 

delete this rule. 

17.24.723, reclamation monitoring. 

Montana proposes to revise paragraph 

(1) to require monitoring under plans 

submitted under ARM 17.24.312(1)(d) 

and 17.24.313(1)(f)(iv) and (1)(g)(ix) and 

the approved postmining land use as 

approved by the department. Paragraph 

(2) is proposed to be revised by adding 

that monitoring is to demonstrate 

compliance with other State and Federal 

laws, in addition to Montana’s 

equivalent of SMCRA. Montana 

proposes to revise paragraph (3) to 

delete the requirement that corrective 

actions be proposed to and approved by 

the department, but also to require the 

operator to implement measures to 

comply with permit requirements. 

Montana also proposes to delete 

paragraph (5), which referred the reader 

71436 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

to ARM 17.24.645, 17.24.646, and 

17.24.1129. 

17.24.724, revegetation success 

criteria. Montana proposed extensive 

revision to this rule, to read as follows: 

(1) Success of revegetation must be 

determined by comparison with unmined 

reference areas or by comparison with 

technical standards. Reference areas and 

standards must be representative of 

vegetation and related site characteristics 

occurring on lands exhibiting good ecological 

integrity. The department must approve the 

reference areas, technical standards, and 

methods of comparison. 

(2) Reference areas are parcels of land 

chosen for comparison to revegetated areas. 

A reference area is not required for vegetation 

parameters with approved technical 

standards. Reference areas must be in a 

condition that does not invalidate or 

preclude comparison to revegetated areas and 

the operator must: 

(a) Have legal right to control the 

management of all approved reference areas; 

and 

(b) Manage reference areas in a manner that 

is comparable to the management of the 

revegetated areas and in accordance with the 

approved postmining land use. 

(3) Technical standards may be derived 

from: 

(a) Historical data generated for a sufficient 

time period to encompass the range in 

climatic variations typical of the premine or 

other appropriate area; or 

(b) Data generated from revegetated areas 

that are compared to historical data 

representing the range of climatic conditions 

comparable to those conditions existing at 

the time revegetated areas are sampled; or 

(c) U.S. department of agriculture, U.S. 

department of the interior, or other 

publications or sources relevant to the area 

and land use of interest and approved by the 

department. 

17.24.725, period of responsibility. 

Montana proposes to revise paragraph 

(1) so that the responsibility period 

begins after any activity related to phase 

III (rather than final) reclamation. 

17.24.726, vegetation measurements. 

Montana proposes to revise this rule 

extensively, to read as follows: 

(1) Standard and consistent field and 

laboratory methods must be used to obtain 

and evaluate vegetation data consistent with 

82–4–233 and 82–4–235, MCA, and to 

compare revegetated area data with reference 

area data and/or with technical standards. 

Specific field and laboratory methods used 

and schedules of assessments must be 

detailed in a plan of study and be approved 

by the department. Sample adequacy must be 

demonstrated. In addition to these and other 

requirements described in this rule, the 

department shall supply guidelines regarding 

acceptable field and laboratory methods. 

(2) Production, cover, and density shall be 

considered equal to the approved success 

standard when they are equal to or greater 

than 90% of the standard with 90% 

statistical confidence, using an appropriate 

(parametric or non-parametric) one-tail test 

with a 10% alpha error. 

(3) The revegetated areas must meet the 

performance standards in (1) and (2) for at 

least two of the last four years of the phase 

III bond period. Pursuant to ARM 17.24.1113, 

the department shall evaluate the vegetation 

at the time of the bond release inspection for 

phase III to confirm the findings of the 

quantitative data. 

(existing 9) remains the same, but is 

renumbered (4). 

17.24.728, composition of vegetation. 

Montana proposes to delete this rule. 

17.24.730, season of use. Montana 

proposes to delete this rule. 

17.24.732, vegetation requirements for 

previously cropped areas. Montana 

proposes to delete this rule. 

17.24.733, measurement standards for 

trees and shrubs. Montana proposes to 

delete this rule. 

17.24.751, fish and wildlife. Montana 

proposes to revise paragraph (1) by 

adding a requirement for the operator to 

report any bald or golden eagle roost 

site, seasonal concentration area, or 

breeding territory; and also by adding a 

requirement that protective measures 

required by the U.S. Fish & Wildlife 

Service must be implemented when 

determined by the department in 

consultation with the U.S. Fish & 

Wildlife Service. Montana proposes to 

revise subparagraph (2)(a) by requiring 

that all powerlines be constructed in 

accordance with ‘‘Suggested Practices 

for Raptor Protection on Power Lines: 

The State of the Art in 1996 (Avian 

Power Line Interaction Committee, 

1996)’’; and further by deleting a 

requirement that distribution lines must 

be designed and constructed in 

accordance with ‘‘REA Bulletin 61–10, 

Powerline Contacts by Eagles and Other 

Large Birds,’’ or in alternative guidance 

manuals approved by the department. 

Montana proposes to revise 

subparagraph (2)(c) to require operators 

to design and construct fences, overland 

conveyers, and other potential 

structures to permit passage of large 

mammals, except where the department 

determines that such requirements are 

unnecessary. Montana proposes to 

revise subparagraph (2)(e) to delete a 

requirement that that reclamation 

provide habitat in an equal or greater 

capacity than was provided prior to 

mining, and replace it with a 

requirement to provide habitat in 

accordance with the approved 

postmining land use; a requirement for 

inanimate habitat features is proposed 

to be revised by citing 82–4–231(10)(j) 

and 82–4–232(9), MCA; and a 

requirement that vegetative cover may 

not be less than that required by the 

approved postmining land use is 

proposed for deletion. Montana 

proposes to revise subparagraph (2)(f) to 

add the requirements of 82–4–231(10)(j), 

82–4–232(9) for wetlands, riparian 

vegetation along rivers and streams and 

bordering ponds and lakes. Montana 

proposes to delete subparagraphs (2)(g), 

(2)(i), and (2)(j). 

17.24.761, air resources protection. 

Montana proposes to delete most of this 

rule, leaving only existing paragraph (4) 

(renumbered as paragraph (2)) and, in 

paragraph (1), the requirement that 

operators employ fugitive dust controls 

in accordance with 82–4–231(10)(m), 

MCA, the operator’s air quality permit. 

17.24.762, postmining land use. 

Montana proposes to largely revise this 

rule, to read as follows: 

(1) The postmining land use must satisfy 

82–4–203(28) and 82–4–232(7), MCA. In 

applying 82–4–232(7), MCA, the following 

principles apply: 

(a) The premining uses of the land to 

which the postmining land use is compared 

are those that the land previously supported 

or could have supported if the land had not 

been mined and had been properly managed. 

(b) The postmining land use for land that 

has been previously mined and not reclaimed 

must be judged on the basis of the land use 

that existed prior to any mining. If the land 

cannot be reclaimed to the use that existed 

prior to any mining because of the previously 

mined condition, the postmining land use 

must be judged on the basis of the highest 

and best use that can be achieved and is 

compatible with surrounding areas. 

(c) The postmining land use for land that 

has received improper management must be 

judged on the basis of the premining use of 

surrounding lands that have received proper 

management. 

(d) If the premining use of the land was 

changed within five years of the beginning of 

mining, the comparison of postmining use to 

premining use must include a comparison 

with the use of the land prior to the change 

as well as its uses immediately preceding 

mining. 

(2) Alternative postmining land uses may 

be proposed and must be determined in 

accordance with 82–4–232(7) and (8), MCA, 

and ARM 17.24.821 and 17.24.823. 

(3) Certain premining facilities may be 

replaced pursuant to 82–4–232(10), MCA. 

17.24.764, cropland reclamation. 

Montana proposes to add this new rule, 

to read as follows: 

17.24.764 CROPLAND RECLAMATION (1) 

The department may not approve a 

postmining land use of cropland unless the 

following criteria are met: 

(a) Prior to mining, all soils within the 

proposed cropland reclamation area must 

have been at least capability class IV, based 

on U.S. natural resources conservation 

service criteria; 

(b) Soils proposed for use must have the 

following properties: 

(i) Loamy texture, as defined by the U.S. 

soil conservation service in the Soil Survey 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71437 

Manual, chapter 4 as revised May, 1981, pp. 

4–56 and 4–57; 

(ii) Rock fragment (gravels, cobbles, and 

channers only) contents less than 20% in the 

first lift and less than 35% in the second lift; 

(iii) After materials are replaced, no greater 

than moderate wind and water erosion 

hazards as determined by U.S. natural 

resources conservation service procedures; 

and 

(iv) Levels of electrical conductivity, 

sodium adsorption ratio, and plant available 

water-holding capacity meeting the criteria 

for class III soils according to the ‘‘Land 

Capability Guide for Montana, U.S. Soil 

Conservation Service, June 1988’’, which is 

incorporated by reference into this rule. A 

copy of this document may be obtained from 

the Natural Resources Conservation Service, 

10 E. Babcock St., Bozeman, MT 59715; 

(c) Soil materials must be capable of 

selection and handling in such a way, and 

redistribution to such a thickness, and the 

underlying regraded spoil properties must be 

of sufficient quality, that the postmining 

productivity of the root zone will be 

sufficient to support cropland as the 

postmining land use; 

(d) Slope gradients must not exceed 8%; 

(e) The area must receive a minimum of 12 

inches average annual precipitation, or there 

must be sufficient irrigation water available 

and committed to maintain crop production; 

(f) The area must not be subject to flooding 

that would impair its suitability as cropland 

due to flood effects including, but not limited 

to, erosion, siltation, and inundation; 

(g) The area must have a minimum of 90 

frost-free days per year; and 

(h) The department must determine that: 

(i) Saline seep on the proposed cropland 

area will not occur; and 

(ii) The reclaimed area will not function as 

a saline seep recharge area for lands downgradient. 

(2) The operator shall comply with the 

following requirements in reclaiming to 

cropland: 

(a)(i) Soil materials must be selected and 

handled in such a way and redistributed to 

such a thickness, and the underlying 

regraded spoil properties must be of 

sufficient quality such that the postmining 

productivity of the root zone will be 

sufficient to support cropland as the 

postmining land use. 

(ii) The following minimum requirements 

must be met: 

(A) Soils must be replaced to a minimum 

thickness of 24 inches; and 

(B) The root zone thickness must be 

consistent with the requirements of ARM 

17.24.501(2); 

(b) If necessary to protect replaced soil 

materials from wind and water erosion, or if 

necessary to enhance soil productivity, 

stability or the capacity for root penetration, 

a grass-legume mixture must be planted and 

maintained as determined by the department; 

and 

(c) Soil amendments must be added in 

accordance with ARM 17.24.718. 

17.24.815, prime farmland 

revegetation. Montana proposes to 

create a new subparagraph (1)(a) to 

require that if the approved postmining 

land use is not cropland, either (1) test 

plots must be cropped to demonstrate 

restoration of productivity; the rest of 

the area, and the test plots after 

productivity demonstration, must be 

revegetated in accordance with the 

standards of ARM 17.24.711, 17.24.713, 

17.24.714, 17.24.716 through 17.24.718, 

17.24.721, 17.24.723 through 17.24.726, 

and 17.24.731 and with the approved 

postmining land use; or (2), the entire 

disturbed area might be cropped until 

productivity demonstration, after which 

the entire area must be revegetated as 

above. Montana also proposes a new 

subparagraph (1)(b) to provide that if the 

approved postmining land use is 

cropland, that the area be permanently 

reclaimed to cropland. 

17.24.821. Montana proposes to 

change the title of this rule from 

‘‘Alternate Reclamation’’ to ‘‘Alternative 

Postmining Land Uses: Submission of 

Plan.’’ The body of the rule is proposed 

to be revised extensively, to read: 

(1) An operator may propose to the 

department a plan for a higher or better use 

as an alternative postmining land use 

pursuant to 82–4–232(7) and (8), MCA. With 

appropriate maps, narrative, and other 

materials, the plan must: 

(a) describe the nature of the alternative 

postmining land use; 

(b) address all of the criteria in 82–4–

232(8) and (9), MCA; and 

(c) address the applicable requirements of 

ARM 17.24.823(1). 

(2) Each application for alternative 

postmining land use is subject to public 

review requirements of subchapter 4 either as 

part of a new application or as an application 

for a major revision. However, in its notice 

of application to government entities 

pursuant to ARM 17.24.401, the department 

shall allow 60 days for submission of 

comments from authorities having 

jurisdiction over land use policies and plans, 

and from appropriate state and federal fish 

and wildlife agencies. 

17.24.823. Montana proposes to 

change the title of this rule from 

‘‘Alternate Reclamation: Approval Of 

Plan And Review Of Operation’’ to 

‘‘Alternative Postmining Land Uses: 

Approval of Plan.’’ The body of the rule 

is proposed to be revised extensively, to 

read: 

(1) The department may approve a 

proposed alternative postmining land use if 

all of the following criteria are met: 

(a) the requirements of 82–4–232(8) and 

(9), MCA; 

(b) the proposed postmining land use is 

compatible, where applicable, with existing 

local, state or federal land use policies or 

plans relating to the permit area. 

Demonstration of compatibility with land use 

policies and plans must include, but is not 

limited to: 

(i) written statement of the authorities with 

statutory responsibilities for land use policies 

and plans submitted pursuant to ARM 

17.24.821(2); and 

(ii) as applicable, obtaining any required 

approval, including any necessary zoning or 

other changes required for land use by local, 

state or federal land management agencies. 

This approval must remain valid throughout 

the strip or underground mining operations; 

(c) specific plans are submitted to the 

department that show the feasibility of the 

postmining land use as related to projected 

land use trends and markets and that include 

a schedule showing how the proposed use 

will be financed, developed, and achieved 

within a reasonable time after mining and 

how it will be sustained. These plans must 

be supported, if appropriate, by letters of 

commitment from parties other than the 

operator; 

(d) as applicable, provision of any 

necessary public facilities is ensured as 

evidenced by letters of commitment from 

parties other than the operator as 

appropriate, to provide the public facilities in 

a manner compatible with the plans 

submitted; 

(e) plans for the postmining land use are 

designed under the general supervision of a 

licensed professional engineer, or other 

appropriate professional, to ensure that the 

plans conform to applicable accepted 

standards for adequate land stability, 

drainage, and aesthetic design appropriate for 

the postmining use of the site; 

(f) the use will not involve unreasonable 

delays in reclamation; and 

(g) appropriate measures submitted by state 

and federal fish and wildlife management 

agencies to prevent or mitigate adverse 

effects on fish, wildlife, and related 

environmental values and threatened or 

endangered plants have been incorporated 

into the plan. 

17.24.824, alternate reclamation; 

alternative postmining land uses. 

Montana proposes to delete this rule. 

17.24.825, alternate reclamation; 

alternative revegetation. Montana 

proposes to delete this rule. 

17.24.826, alternate reclamation; 

period of responsibility for alternate 

revegetation. Montana proposes to 

delete this rule. 

17.24.832, auger mining performance 

standards. Montana proposes to revise 

paragraph (4) by deleting the existing 

contemporaneous reclamation standard 

and replacing it with a cross-reference 

to the requirements of 17.24.501(6)(c). 

Montana also proposes to add a new 

subparagraph (5)(b) to require that each 

auger hole discharging water not 

containing acid- or toxic-forming 

materials must be sealed with an 

impervious noncombustible material, as 

contemporaneously as practicable with 

the augering operation, as approved by 

the department. And Montana proposes 

to revise subparagraph (5)(c) to change 

the requirement for auger holes not 

discharging water to be sealed within 30 

days to ‘‘as contemporaneously as 

71438 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

practicable with the augering 

operation.’’

17.24.903, underground mining, 

general performance standards. 

Montana proposes to add a new 

paragraph (2) to require that adversely 

affected water supplies must be 

replaced in accordance with 82–4–243 

and 82–4–253, MCA, and ARM 

17.24.648. 

17.24.911, subsidence control. 

Montana proposes to delete 

subparagraph (7)(d), which required 

replacement of any adversely affected 

domestic water supply. 

17.24.924, disposal of underground 

development waste, general 

requirements. At subparagraphs (4)(a), 

(18)(a), and (18)(d), Montana proposes 

to change the phrase ‘‘registered 

professional engineer’’ to ‘‘licensed 

professional engineer.’’ At paragraph 

(9), Montana proposes to revise the list 

of revegetation performance standards, 

to include ARM 17.24.711, 17.24.713, 

17.24.714, 17.24.716 through 17.24.718, 

17.24.721, 17.24.723 through 17.24.726, 

and 17.24.731. 

17.24.927, disposal of underground 

development waste, durable rock fills. 

In paragraphs (1) and (2), Montana 

proposes to change the phrase 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

17.24.930, placement and disposal of 

coal processing waste: special 

application requirements. At 

subparagraph (2)(a)(i), Montana 

proposes to change the phrase 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

17.24.932, disposal of coal processing 

waste. At subparagraph (5)(a), Montana 

proposes to change the phrase 

‘‘registered professional engineer’’ to 

‘‘licensed professional engineer.’’

17.24.1001, prospecting permit 

requirement. At subparagraph (1)(b), 

Montana proposes to add a requirement 

for a prospecting permit if conducted on 

an area designated unsuitable for strip 

or underground coal mining pursuant to 

ARM 17.24.1131. Montana also 

proposes to add a new subparagraph 

(2)(d), to read as follows: 

(d) For any lands protected under 82–4–

227(13), MCA, or ARM 17.24.1131, a 

demonstration that, to the extent 

technologically and economically feasible, 

the proposed prospecting activities will 

minimize interference with the values for 

which those lands were designated. The 

application must include documentation of 

consultation with the owner of the feature 

causing the land to come under the 

designation, and, when applicable, with the 

agency with primary jurisdiction over the 

feature with respect to the values that caused 

the land to be so designated; 

Montana further proposes to add a 

new subparagraph (1)(q), to require a 

public notice and proof of publication 

in accordance with 17.24.303(23), and 

providing that the procedures of 

17.24.401(3) and (5), 17.24.402, and 

17.24.403 must be followed. Montana 

further proposes several new provisions, 

to read as follows: 

(6) The department may not approve a 

prospecting permit application unless the 

application affirmatively demonstrates and 

the department finds in writing, on the basis 

of information set forth in the application or 

information otherwise available that is 

compiled by the department, that: 

(a) The application is complete and 

accurate and that the prospecting and 

reclamation will be conducted in accordance 

with all applicable requirements of this 

subchapter; 

(b) The proposed prospecting operation 

will not jeopardize the continued existence 

of endangered or threatened species or result 

in destruction or adverse modifications of 

their critical habitats; 

(c) The application complies with 

applicable federal and state cultural resource 

requirements, including ARM 17.24.318, 

17.24.1131 and 17.24.1137; and 

(d) The proposed prospecting activities 

will meet the requirements of (2)(d) and that 

the owner of the feature causing any land to 

come under a protected designation, 

pursuant to 82–4–227(13), MCA, or ARM 

17.24.1131, and, when applicable, with the 

agency with primary jurisdiction over the 

feature with respect to the values that caused 

the land to be so designated, have been 

provided the opportunity to comment on the 

department’s finding on this matter. 

(7) Prospecting related activities or 

facilities that are conducted or created in 

accordance with this rule and ARM 

17.24.1002 through 17.24.1014 and 

17.24.1016 through 17.24.1018 must be 

transferred to a valid strip or underground 

mining permit whenever such activities or 

facilities become part of mine operations in 

conjunction with ARM 17.24.308(2) or 

17.24.609. 

17.24.1003, renewal and transfer of 

permits. Montana proposes only to 

revise the title of this rule by adding the 

words ‘‘and transfer.’’

17.24.1018, notice of intent to 

prospect. Montana proposes to revise 

this rule by deleting existing 

subparagraph (1)(b)(i), which provides 

for a notice of intent if the purpose of 

the prospecting is not to determine the 

location, quality or quantity of a natural 

mineral deposit. Montana also proposes 

to add a new paragraph (2), to provide 

for a notice of intent if the prospecting 

is to gather environmental data. 

Montana also proposes to revise 

paragraph (9) to require that ARM 

17.24.1001(2)(k) and (q) are applicable 

to notices of intent. 

17.24.1104, bonding, adjustment of 

amount. Montana proposes to revise 

paragraph (1) to change bond 

‘‘adjustments’’ to ‘‘bond increases’’ and 

‘‘area revised’’ or ‘‘work changes’’ to 

‘‘increases.’’ Montana proposes to revise 

paragraph (3) to limit bond adjustments 

for ‘‘other circumstances’’ to those not 

related to the completion of reclamation 

work, and to provide that bond 

reductions involving disturbed land 

previously released from reclamation 

liability in accordance with ARM 

17.24.1111 through 17.24.1115 and 

17.24.1116(6) are not considered bond 

releases subject to 17.24.1111. 

17.24.1106, bonding: terms and 

conditions of bond. Montana proposes 

to delete existing paragraph (1), which 

provides that the department may not 

accept surety bonds in excess of 10% of 

the surety company’s capital surplus 

account as shown on a balance sheet 

certified by a certified public 

accountant. Montana also proposes to 

add a new subparagraph (1)(b) 

providing that the department may not 

accept surety bonds from a surety 

company that is not listed in the U.S. 

Department of the Treasury’s listing of 

approved sureties (Circular 570). 

17.24.1108, bonding, certificates of 

deposit. Montana proposes to revise 

paragraph (1) to allow additional 

institutions to determine the maximum 

insurable amount. Montana also 

proposes to revise paragraph (2) to limit 

automatically renewable certificates of 

deposit to banks insured by the FDIC or 

credit unions insured by the national 

credit union administration. 

17.24.1109, bonding, letters of credit. 

Montana proposes to revise 

subparagraph (1)(d), and add new 

subparagraphs (1)(e) through (1)(g), to 

read as follows: 

(d) The letter must not be for an amount 

in excess of 10% of the bank’s capital surplus 

account as shown on a balance sheet certified 

by a certified public accountant for the most 

recent annual reporting period. 

(e) Using the balance sheet referenced in 

(1)(d) and a certified income and revenue 

sheet, the bank must meet the three following 

criteria: 

(i) The bank must be earning at least a 1% 

return on total assets (net income/total assets 

= 0.01 or more); 

(ii) The bank must be earning at least a 

10% return on equity (net income/total 

stockholders equity = 0.1 or more); and 

(iii) Capital or stockholders’ equity must be 

at least 5.5% of total assets ((total 

stockholders equity [shareholders equity + 

capital surplus + retained earnings])/total 

assets = 0.055 or more). 

(f) Under a general financial health 

category, from either Sheshunoff Information 

Services, Moody’s (Mergent Ratings Service) 

or Standard and Poor’s, the bank must have 

a b+ or better rating for the current and 

previous two quarters. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71439 

(g) The bank’s qualifications must be 

reviewed yearly prior to the time the letter 

of credit is renewed. 

17.24.1116, bonding, criteria and 

schedule for release. Montana proposes 

to delete paragraph (6), which addresses 

alternate reclamation. Montana also 

proposes to revise subparagraphs (6)(b) 

through (6)(d), and to add a new 

paragraph (7), to read as follows: 

(b) Reclamation phase II is deemed to have 

been completed when: 

(i) [remains the same]. 

(ii) At least two growing seasons (spring 

and summer for two consecutive years) have 

elapsed since seeding or planting of the 

affected area; 

(iii) Vegetation is establishing that is 

consistent with the species composition, 

cover, production, density, diversity, and 

effectiveness required by the revegetation 

criteria in ARM 17.24.711, 17.24.713, 

17.24.714, 17.24.716 through 17.24.718, 

17.24.721, 17.24.723 through 17.24.726, 

17.24.731 and 17.24.815 and the approved 

postmining land use; 

(iii) through (v) remain the same, but are 

renumbered (iv) through (vi). 

(c) Reclamation phase III is deemed to have 

been completed when: 

(i) The applicable responsibility period 

(which commences with the completion of 

any reclamation treatments as defined in 

ARM 17.24.725) has expired and the 

revegetation criteria in ARM 17.24.711, 

17.24.713, 17.24.714, 17.24.716 through 

17.24.718, 17.24.721, 17.24.723 through 

17.24.726, 17.24.731 and 17.24.815, as 

applicable to and consistent with the 

approved postmining land use are met; 

(ii) A stable landscape has been established 

consistent with the approved postmining 

land use; 

(iii) The lands are not contributing 

suspended solids to stream flow or runoff 

outside the permit area in excess of the 

requirements of ARM 17.24.633 or the 

permit; and 

(iv) As applicable, the provisions of a plan 

approved by the department for the sound 

future management of any permanent 

impoundment by the permittee or landowner 

have been implemented to the satisfaction of 

the department; or 

(v) The lands meet the special conditions 

provided in 82–4–235(3)(a), MCA; 

(d) Reclamation phase IV is deemed to 

have been completed when: 

(i) All disturbed lands within any 

designated drainage basin have been 

reclaimed in accordance with the phase I, II, 

and III requirements; 

(ii) through (v) [remain the same]. 

(vi) Implementation of any alternative land 

use plan approved pursuant to ARM 

17.24.821 and 17.24.823 has been 

successfully achieved; and 

(vii) [remains the same]. 

(7) Information from annual reports and 

monitoring data, generated pursuant to ARM 

17.24.645, 17.24.646, 17.24.723, and 

17.24.1129, and from department inspection 

reports may be used or referenced to support 

applications for bond release. 

17.24.1125, liability insurance. 

Montana proposes to revise paragraph 

(2) to require that liability insurance 

policies must be maintained in full force 

until final bond release on the permit 

area. 

17.24.1129, annual report. Montana 

proposes to revise subparagraph (2)(e) to 

require to be included in annual reports 

any vegetation monitoring data and 

analyses pursuant to 17.24.723. 

Montana also proposes to revise 

paragraph (3) to clarify that only maps 

containing information listed in ARM 

17.24.305(1) must be certified in 

accordance with ARM 17.24.305. 

17.24.1131, protection of parks, 

historic sites, and other lands. Montana 

proposes to revise this rule to clarify 

that it applies to lands protected under 

paragraph (13) of 82–4–227, MCA. 

17.24.1132, lands where mining is 

prohibited. Montana proposes to revise 

subparagraph (1)(a) to define ‘‘valid 

existing rights’’ to have the same 

definition as the definition of the term 

contained in 30 CFR 761.5 (2003), 

which is incorporated by reference into 

the rule. 

17.24.1133, lands where mining is 

prohibited, procedures. Montana 

proposes to revise paragraph (2), add 

new subparagraphs (2)(a) and (2)(b) and 

new paragraph (3), to read as follows: 

(2) Whenever a proposed operation would 

be located on any lands listed in 82–4–227(7) 

or (13), MCA, (except for proximity to public 

roads) or ARM 17.24.1131, the department 

shall reject the application unless: 

(a) The applicant has valid existing rights 

for the proposed permit area; or 

(b) The operation existed when the land 

came under the protection of 82–4–227(7) or 

(13), MCA, (except the proximity of public 

roads) or ARM 17.24.1131. This exception 

applies only to land within the permit area 

as it exists when the land comes under this 

protection. 

(3) Procedures for submitting requests and 

for determining valid existing rights must be 

conducted in accordance with 30 CFR 761.16 

(2003), which is incorporated into this rule 

by this reference. Copies of 30 CFR 761.16 

may be obtained from the department at its 

Helena office. 

17.24.1201, inspections. Montana 

proposes several revisions to this rule, 

to read as follows: 

(1) The department shall conduct an 

average of at least one partial inspection per 

month of each active mining operation and 

such partial inspections of each inactive 

mining operation as are necessary to enforce 

the Act, the rules adopted under the Act and 

the permit, at least one complete inspection 

per calendar quarter of each active and 

inactive mining operation, and such periodic 

partial or complete inspections of 

prospecting operations as are necessary to 

enforce the Act, the rules adopted pursuant 

thereto, and the permit. 

(2) A partial inspection is an on-site or 

aerial observation of the operator’s 

compliance with some of the mining or 

prospecting permit conditions and 

requirements. Aerial inspections shall be 

conducted in a manner and at a time that 

reasonably ensure the identification and 

documentation of conditions at each 

operation in relation to permit conditions 

and requirements. 

(3) A complete inspection is an on-site 

observation of the operator’s compliance 

with all of the mining or prospecting permit 

conditions and requirements within the 

entire area disturbed or affected by the 

operation. 

(4) Inspections must occur without prior 

notice to the permittee, except for necessary 

on-site meetings, be conducted on an 

irregular basis, and be scheduled to detect 

violations on nights, weekends, and holidays. 

17.24.1202. Montana proposes 

revisions to both the title and body of 

this rule, to read as follows: 

17.24.1202 CONSEQUENCES OF 

INSPECTIONS AND COMPLIANCE 

REVIEWS 

(1) Inspectors shall examine mining and 

reclamation activities and promptly file with 

the department inspection reports adequate 

to determine whether violations exist. 

(2) If it is determined on the basis of an 

inspection that the permittee is, or any 

condition or practice exists, in violation of 

any requirement of this part or any permit 

condition required by this part, the director 

or an authorized representative shall 

promptly issue a notice of noncompliance or 

order of cessation for the operation or the 

portion of the operation relevant to the 

condition, practice, or violation in 

accordance with 82–4–251, MCA, and this 

subchapter. 

(3) The department may order changes in 

mining and reclamation plans as are 

necessary to ensure compliance with the Act 

and the rules adopted pursuant thereto. 

(4) If on the basis of field inspection or 

review of records or reports the department 

determines that reclamation is unsuccessful 

in terms of the Act, the rules adopted 

pursuant thereto or permit conditions or 

requirements, the department shall order the 

operator to immediately investigate and 

determine the cause. The operator shall 

subsequently submit an investigative report 

along with a prescribed course of corrective 

action, so that alternatives can be employed 

to promptly ensure compliance with the Act, 

the rules adopted pursuant thereto, and the 

permit. 

17.24.1206, enforcement. Montana 

proposes to revise paragraph (4) to 

delete a provision that if a notice of 

noncompliance or cessation order does 

not require any abatement, terminations 

of abatement need not be issued. 

Montana proposes to revise 

subparagraph (5)(d) to clarify that 

requests for abatement extensions 

beyond 90 days must be submitted to 

the board of environmental review, and 

that hearings must be a contested case 

71440 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 

hearings in accordance with 82–4–206, 

MCA. 

17.24.1211, civil penalties. Montana 

proposes to revise paragraph (2) to 

clarify that to contest the fact of 

violation or the amount of penalty, 

requests for hearings must be submitted 

to the board of environmental review, 

and that hearings must be a contested 

case hearings in accordance with 82–4–

206, MCA. 

17.24.1212, civil penalty point 

system. Montana proposes to revise 

paragraph (4) to clarify that the hearings 

specified are those requested under 82–

4–254(3), MCA. 

17.24.1219, individual civil penalties, 

procedures. Montana proposes to revise 

paragraph (2) to reduce the time for an 

assessment to become final from 30 days 

to 20 days, and decreases the length of 

time allowed for an individual to 

request a hearing from 30 days to 20 

days; also, Montana proposes that a 

request for hearing is a hearing under 

82–4–254(3), MCA. Montana proposes 

to revise paragraph (4) to provide that 

the hearing on the individual civil 

penalty must be a contested case 

hearing conducted in accordance with 

82–4–206(2), MCA. 

17.24.1226, small operator assistance, 

qualifications of providers. Montana 

proposes to revise subparagraph 

(2)(a)(vi) to require providers to be 

capable of meeting the applicable 

standards and methods contained in 

ARM 17.24.645 and 17.24.646. 

17.24.1263, suspension or revocation 

of blasters license. Montana proposes to 

revise paragraph (3) to clarify that 

blasters have a right to request a 

contested case hearing before the board 

of environmental review. 

17.24.1302, revision of permits. 

Montana proposes many revisions to 

this rule, to read as follows: 

(1) Within one year of October 22, 2004, 

each operator and each test pit prospector 

shall submit to the department an application 

for all permit revisions necessary to bring the 

permit and operations conducted thereunder 

into compliance with subchapters 3 through 

12 as they read on October 22, 2004. 

(2) A permit revision application submitted 

solely for purposes of (1) is a minor revision 

for purposes of subchapter 4. 

(3) No permittee may continue to mine or 

reclaim under an operating permit after the 

midterm (date that is two and one-half years 

after permit issuance or renewal) of the 

permit or the permit renewal date, whichever 

occurs later, unless the permit has been 

revised to comply with subchapters 3 

through 12, as amended on October 22, 2004. 

In addition to the proposed revisions 

described above, Montana proposed 

numerous editorial revisions and 

codification changes necessitated by 

additions or deletions of provisions. 

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. 

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. We will not consider 

or respond to your written comments 

when developing the final rule if they 

are received after the close of the 

comment period (see DATES). We will 

make every attempt to log all comments 

into the administrative record, but 

comments delivered to an address other 

than the Casper Field Office may not be 

logged in. 

Electronic Comments 

Please submit Internet comments as 

an ASCII file avoiding the use of special 

characters and any form of encryption. 

Please also include ‘‘Attn: SATS No. 

MT–025-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. In the final rulemaking, we 

will not consider or include in the 

administrative record any electronic 

comments received after the time 

indicated under DATES or at e-addresses 

other than the Casper Field Office. 

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 

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 December 14, 2005. 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 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71441 

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 one or more 

Indian Tribes, on the relationship 

between the Federal Government and 

Indian Tribes, or on the distribution of 

power and responsibilities between the 

Federal Government and Indian Tribes. 

The rule does not involve or affect 

Indian Tribes in any way. 

Executive Order 13211—Regulations 

That Significantly Affect the Supply, 

Distribution, or Use of Energy 

On May 18, 2001, the President issued 

Executive Order 13211 which requires 

agencies to prepare a Statement of 

Energy Effects for a rule that is (1) 

considered significant under Executive 

Order 12866, and (2) likely to have a 

significant adverse effect on the supply, 

distribution, or use of energy. Because 

this rule is exempt from review under 

Executive Order 12866 and is not 

expected to have a significant adverse 

effect on the supply, distribution, or use 

of energy, a Statement of Energy Effects 

is not required. 

National Environmental Policy Act 

No environmental impact statement is 

required for this rule since agency 

decisions on proposed State regulatory 

programs and amendments thereof are 

categorically excluded from compliance 

with the National Environmental Policy 

Act (42 U.S.C. 4321 et seq.) by the 

Manual of the Department of the Interior 

(516 DM 6, appendix 8, paragraph 

8.4B(29)). 

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. 

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: October 27, 2005. 

James F. Fulton, 

Acting Regional Director, Western Region. 

[FR Doc. 05–23396 Filed 11–28–05; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 943 

[Docket No. TX–055–FOR] 

Texas 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, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are announcing receipt of a 

proposed amendment to the Texas 

regulatory program (Texas program) 

under the Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act). Texas proposes revisions to and 

additions of regulations and statutes 

regarding the State’s annual fees that are 

required from coal mining permit 

holders. In addition to the current 

annual fee, Texas proposes to add two 

new annual fees. Texas intends to revise 

its program to reduce the economic cost 

to the coal mining industry as a whole 

and to require coal mining permit 

holders that have ceased mining to pay 

annual fees. 

This document gives the times and 

locations that the Texas program and 

proposed amendment to that program 

are available for your inspection, the 

comment period during which you may 

submit written 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., c.t., December 29, 2005. If