81120 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

[FR Doc. 2010–32418 Filed 12–23–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 934 

[SATS No. ND–051–FOR; Docket ID No. 

OSM–2009–0013] 

North Dakota Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We are approving an 

amendment to the North Dakota 

regulatory program (the ‘‘North Dakota 

program’’) under the Surface Mining 

Control and Reclamation Act of 1977 

(‘‘SMCRA’’ or ‘‘the Act’’). North Dakota 

proposes revisions to rules and statutes 

that will allow the revegetation 

responsibility period to be reduced from 

ten years to five years for lands eligible 

for remining. North Dakota intends to 

revise its program to be consistent with 

the corresponding Federal regulations 

and to improve operational efficiency. 

DATES: Effective Date: December 27, 

2010 

FOR FURTHER INFORMATION CONTACT: 

Jeffery Fleischman, Field Office 

Director, Casper Field Office, Office of 

Surface Mining Reclamation and 

Enforcement, 150 East B Street, Room 

1018, Casper, Wyoming 82604–1018, 

307–261–6552, jfleischman@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Program 

II. Submission of the Proposed Amendment 

III. Office of Surface Mining Reclamation and 

Enforcement’s (OSM’s) Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the North Dakota 

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 North 

Dakota program on December 15, 1980. 

You can find background information 

on the North Dakota program, including 

the Secretary’s findings, the disposition 

of comments, and conditions of 

approval in the December 15, 1980, 

Federal Register (45 FR 82214). You can 

also find later actions concerning North 

Dakota’s program and program 

amendments at 30 CFR 934.15, 934.16, 

and 934.30. 

II. Submission of the Proposed 

Amendment 

By letter dated November 12, 2009, 

North Dakota sent us an amendment to 

its program (Amendment number 

XXXVIII, Administrative Record Docket 

ID: OSM–2009–0013) under SMCRA 

(30 U.S.C. 1201 et seq.). North Dakota 

submitted the amendment on its own 

accord. The amendment reduces the 

reclamation liability period on 

previously mined areas from ten full 

years to five full years. The Federal 

regulations at 30 CFR 816.116 provide 

incentives for eligible remining 

operations including reduced 

revegetation responsibility periods (2 

years in the East and 5 years in the 

West). 

Specifically, North Dakota proposes 

revisions to the North Dakota Century 

Code at Chapter 38–14.1–24(18) 

(Environmental protection performance 

standards) and to the North Dakota 

Administrative Code at Article 69–05.2– 

09–02(14) (Permit applications— 

operation plans—maps and plans) and 

Article 69–05.2–22–07(2) and (4)(i) 

(Performance standards— 

Revegetation—Standards for success). 

North Dakota proposes to reduce the 

reclamation liability period on 

previously mined areas from ten years 

to five years. This change will apply to 

the North Dakota Century Code as well 

as the North Dakota Administrative 

Code. North Dakota defines previously 

mined areas as ‘‘lands that were affected 

by coal mining activities prior to 

January 1, 1970.’’ North Dakota also 

proposes to require permit applications 

that include previously mined areas to 

include additional maps and 

information addressing potential 

environmental and safety problems that 

might occur at the mining site. 

We announced receipt of the 

proposed amendment in the February 9, 

2010, Federal Register (Vol. 75, No. 26, 

FR page number 6330). In the same 

document, we opened the public 

comment period and provided an 

opportunity for a public hearing or 

meeting on the amendment’s adequacy 

(Administrative Record Docket ID: 

OSM–2009–0013). 

We did not receive any comments. We 

did not hold a public hearing or meeting 

because no one requested one. The 

public comment period ended on March 

11, 2010. 

III. OSM’s Findings 

Following are the findings we made 

concerning the amendment under 

SMCRA and the Federal regulations at 

30 CFR 732.15 and 732.17. We are 

approving the amendment as described 

below. 

A. Revisions to North Dakota’s Rules 

and Statutes That Have the Same 

Meaning as the Corresponding 

Provisions of the Federal Regulations 

and/or SMCRA 

North Dakota proposed revisions to 

the following rules containing language 

that is the same as or similar to the 

corresponding section of the Federal 

regulations. North Dakota 

Administrative Code (NDAC) 69–05.2– 

22–07 (30 CFR 816.116), Performance 

standards—Revegetation—Standards for 

success. 

North Dakota proposes for areas 

meeting the definition of previously 

mined area to require a five year 

liability period for revegetation success. 

All other areas in North Dakota have a 

ten year liability period. The Federal 

regulations at 30 CFR 818.116 allow the 

same five year period. 

Because these proposed rules contain 

language that is the same as or similar 

to the corresponding Federal 

regulations, we find that they are no less 

effective than the corresponding Federal 

regulations and we approve it. 

B. Revisions to North Dakota’s Rules 

That Are Not the Same as the 

Corresponding Provisions of the Federal 

Regulations 

North Dakota Century Code Chapter 

(NDCC) 38–14.1–24(18) (SMCRA 

Section 515(20)(B)), Environmental 

Protection Performance Standards. 

North Dakota proposes to add a 

definition for ‘‘previously mined areas.’’ 

The definition would adopt January 1, 

1970, the effective date of North 

Dakota’s first reclamation law, as the 

cut-off eligibility date for lands eligible 

for remining. Previously mined areas are 

those that were mined prior to January 

1, 1970. The Federal definition of 

previously mined areas are those mined 

prior to August 3, 1977, and for which 

investigation reveals, are not reclaimed 

to the standards of SMCRA. Under 

North Dakota’s proposed definition far 

fewer lands would be considered but 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 81121 

there is no determination as to their 

condition. 

This date is more restrictive than 

SMCRA as clarified by the State. North 

Dakota states, ‘‘North Dakota’s definition 

of lands eligible for remining will apply 

to fewer lands as compared to the 

SMCRA provisions. Since North 

Dakota’s first reclamation law went into 

effect on January 1, 1970, we will only 

apply the special performance standard 

(the reduced revegetation liability 

period) to lands that were mined prior 

to that date. Therefore, for the purposes 

of remining under the coal regulatory 

program, land must have been mined 

prior to January 1, 1970, and be left in 

an inadequate reclamation status. Any 

lands that were mined in North Dakota 

between January 1, 1970, and August 3, 

1977, are subject to certain reclamation 

standards as required by the preSMCRA State reclamation laws and will 

not be eligible for the reduced 5-year 

revegetation liability period. However, 

under the SMCRA provisions, the 

special remining standards can be 

applied to lands that were mined prior 

to August 3, 1977. We consider North 

Dakota’s remining provisions to be more 

stringent than SMCRA since fewer lands 

are eligible for the special performance 

standards. In North Dakota, lands mined 

between January 1, 1970, and August 3, 

1977, that are proposed to be remined 

or re-disturbed will be subject to the 10- 

year revegetation liability period, 

whereas under SMCRA they could 

qualify for the 5-year liability period.’’ 

North Dakota’s explanation that the 

special performance standard (the 5- 

year revegetation liability period) will 

only apply to lands that were mined 

prior to January 1, 1970, but not to those 

lands mined between January 1, 1970, 

and August 3, 1977, that are proposed 

to be remined or re-disturbed, clarifies 

which lands qualify for the shorter 

responsibility period under its revised 

statute at NDCC Chapter 38, Section 

14.1–24, subsection 18. North Dakota’s 

adoption of the January 1, 1970, date 

rather than August 3, 1977, (the 

effective date of SMCRA) renders its 

definition no less stringent than the Act 

and we approve it. 

C. Revisions to North Dakota’s Rules 

With No Corresponding Federal 

Regulation 

NDAC 69–05.2–09–02, Permit 

applications—Operation plans—Maps 

and plans. 

This addition to North Dakota’s rules 

does not have a Federal Counterpart. It 

requires the permit application under 

the remining provision to include 

potential environmental and safety 

hazards that could be reasonably 

anticipated to occur as well as include 

the mitigative measures that will be 

taken to ensure that the applicable 

reclamation requirements can be met. It 

is more stringent than the Federal rules 

since the Federal rules have no such 

requirement and we approve it. 

IV. Summary and Disposition of 

Comments 

Public Comments 

We asked for public comments on the 

amendment (Administrative Record 

Docket ID: OSM–2009–0013), but did 

not receive any. 

Federal Agency Comments 

Under 30 CFR 732.17(h)(11)(i) and 

section 503(b) of SMCRA, we requested 

comments on the amendment from 

various Federal agencies with an actual 

or potential interest in the North Dakota 

program (Administrative Record Docket 

ID: OSM–2009–0013). 

Environmental Protection Agency (EPA) 

Concurrence and Comments 

Under 30 CFR 732.17(h)(11)(i) and 

(ii), we are required to get concurrence 

from EPA for those provisions of the 

program amendment that relate to air or 

water quality standards issued under 

the authority of the Clean Water Act (33 

U.S.C. 1251 et seq.) or the Clean Air Act 

(42 U.S.C. 7401 et seq.). 

We note that none of the proposed 

changes relate to air or water quality 

standards. Nevertheless, under 30 CFR 

732.17(h)(11)(ii), OSM requested 

comments on the amendment from EPA 

(Administrative Record Docket ID: 

OSM–2009–0013). EPA did not respond 

to our request. 

State Historic Preservation Officer 

(SHPO) and the Advisory Council on 

Historic Preservation (ACHP) 

Under 30 CFR 732.17(h)(4), we are 

required to request comments from the 

SHPO and ACHP on amendments that 

may have an effect on historic 

properties. On November 25, 2009, we 

requested comments on North Dakota’s 

amendment (Administrative Record 

Docket ID: OSM- 2009–0013), but 

neither responded to our request. 

V. OSM’s Decision 

Based on the above findings, we 

approve North Dakota’s November 12, 

2009, amendment. 

To implement this decision, we are 

amending the Federal regulations at 30 

CFR Part 934, which codify decisions 

concerning the North Dakota program. 

We find that good cause exists under 5 

U.S.C. 553(d)(3) to make this final rule 

effective immediately. Section 503(a) of 

SMCRA requires that the State’s 

program demonstrates that the State has 

the capability of carrying out the 

provisions of the Act and meeting its 

purposes. Making this regulation 

effective immediately will expedite that 

process. SMCRA requires consistency of 

State and Federal standards. 

VI. 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 

(Regulatory Planning and Review). 

Executive Order 12988—Civil Justice 

Reform 

The Department of the Interior has 

conducted the reviews required by 

section 3 of Executive Order 12988 and 

has determined that this rule meets the 

applicable standards of subsections (a) 

and (b) of that section. However, these 

standards are not applicable to the 

actual language of State regulatory 

programs and program amendments 

because each program is drafted and 

promulgated by a specific State, not by 

OSM. Under sections 503 and 505 of 

SMCRA (30 U.S.C. 1253 and 1255) and 

the Federal regulations at 30 CFR 

730.11, 732.15, and 732.17(h)(10), 

decisions on proposed State regulatory 

programs and program amendments 

submitted by the States must be based 

solely on a determination of whether the 

submittal is consistent with SMCRA and 

its implementing Federal regulations 

and whether the other requirements of 

30 CFR parts 730, 731, and 732 have 

been met. 

Executive Order 13132—Federalism 

This rule does not have Federalism 

implications. SMCRA delineates the 

roles of the Federal and State 

governments with regard to the 

regulation of surface coal mining and 

reclamation operations. One of the 

purposes of SMCRA is to ‘‘establish a 

nationwide program to protect society 

and the environment from the adverse 

effects of surface coal mining 

operations.’’ Section 503(a)(1) of SMCRA 

requires that State laws regulating 

surface coal mining and reclamation 

operations be ‘‘in accordance with’’ the 

requirements of SMCRA, and section 

503(a)(7) requires that State programs 

contain rules and regulations 

‘‘consistent with’’ regulations issued by 

the Secretary pursuant to SMCRA. 


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81122 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Rules and Regulations 

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 

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) et seq.). 

Paperwork Reduction Act 

This rule does not contain 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). 

Regulatory Flexibility Act 

The Department of the Interior 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.). The State submittal, 

which is the subject of this rule, is based 

upon counterpart Federal regulations for 

which an economic analysis was 

prepared and certification made that 

such regulations would not have a 

significant economic effect upon a 

substantial number of small entities. In 

making the determination as to whether 

this rule would have a significant 

economic impact, the Department relied 

upon the data and assumptions for the 

counterpart Federal regulations. 

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 934 

Intergovernmental relations, Surface 

mining, Underground mining. 

Dated: August 12, 2010. 

Allen D. Klein, 

Regional Director, Western Region. 

■ For the reasons set out in the 

preamble, 30 CFR part 934 is amended 

as set forth below: 

PART 934—NORTH DAKOTA 

■ 1. The authority citation for part 934 

continues to read as follows: 

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

■ 2. Section 934.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 934.15 Approval of North Dakota 

regulatory program amendments 

* * * * * 

Original amendment submission date Date of final publication Citation/description 

*******

November 12, 2009 ..................................................... December 27, 2010 ..................................................... NDCC 38–14.1–24(18). 

NDAC 69–05.2–09–2. 

2NDAC 69–05.2–22–07. 

[FR Doc. 2010–32414 Filed 12–23–10; 8:45 am] 

BILLING CODE 4310–05–P 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 943 

[SATS No. TX–059–FOR; Docket No. OSM– 

2010–0001] 

Texas Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are approving an amendment to 

the Texas regulatory program (Texas 

program) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). Texas proposed 

revisions to its regulations regarding 

annual permit fees. Texas revised its 


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