[Federal Register Volume 70, Number 227 (Monday, November 28, 2005)]
[Rules and Regulations]
[Pages 71240-71242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23324]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-048-FOR, Amendment No. XXXV]


North Dakota Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed 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 proposed revisions to its statute which reduce notice 
requirements associated with bond release applications. North Dakota 
intends to revise its program to improve operational efficiency.

EFFECTIVE DATE: November 28, 2005.

FOR FURTHER INFORMATION CONTACT: Acting Field Office Director Frank 
Atencio, Telephone: 307/261-6550, e-mail address: <a href="/cdn-cgi/l/email-protection#a3c5c2d7c6cdc0cacce3ccd0ced1c68dc4ccd5"><span class="__cf_email__" data-cfemail="64020510010a070d0b240b170916014a030b12">[email protected]</span></a>.

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) 
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 April 20, 2005, North Dakota sent us an amendment 
to its program (amendment number XXXV, Administrative Record No. ND-JJ-
01) under SMCRA (30 U.S.C. 1201 et seq.). The amendment includes 
changes made at the State's initiative. The provisions of its North 
Dakota Century Code (NDCC) that North Dakota proposed to revise are 
NDCC 38-14.1-17.1.a and b, Release of performance bond `` Schedule--
Notification--Public hearing.
    We announced receipt of the proposed amendment in the July 5, 2005, 
Federal Register (70 FR 38639), Administrative Record No. ND-JJ-07. 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. We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on August 4, 2005. We 
received one comment from the North Dakota State University.

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.

A. Minor Revisions to North Dakota's Statute

    North Dakota proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved statute: NDCC 38-14.1-17.1.a and b.
    Because these changes are minor, we find that they will not make 
North Dakota's statute less stringent than SMCRA.

B. Revisions to North Dakota's Statute That Have the Same Meaning as 
the Corresponding Provisions of SMCRA

    The following revisions to the NDCC proposed by North Dakota 
contain language that is the same as or similar to the corresponding 
sections of SMCRA.
    NDCC 38-14.1-17.1.a and b (SMCRA 519(a)), [Release of performance 
bond-Schedule-Notification-Public hearing]
    The first change deletes the requirement that the permittee publish 
newspaper notices in daily newspapers of general circulation in the 
mine's locality. However, the permittee is still required to publish 
bond release

[[Page 71241]]

notices, once a week for four consecutive weeks, in the official county 
newspaper where the bond release tract is located. SMCRA requires that 
the bond release notice be published in a newspaper of general 
circulation in the locality of the mine. The publication of the notice 
in the official county newspaper where the bond release is located is 
consistent with that provision.
    The second change in this amendment deletes the language that 
requires the permittee to send bond release notices to subsurface 
owners of tracts proposed for bond release. Mining companies will still 
be required to send bond release notices to surface owners of the bond 
release tract and the adjoining property owners. This is consistent 
with the Federal counterpart in SMCRA that requires applicants to 
submit as part of any bond release application copies of letters which 
the applicant has sent to adjoining landowners and others in the 
locality in which the mining took place notifying such entities of the 
applicant's intention to seek bond release.
    Because this North Dakota statute change contains language that is 
the same as or similar to SMCRA, we find that it is no less stringent 
than SMCRA.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. ND-JJ-03). North Dakota State University replied on May 18, 
2005, that it agreed with the amendment (Amendment Record No. ND-JJ-
04).

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 No. ND-JJ-03). Two Federal agencies (U.S. 
Natural Resources Conservation Service and U.S. Geological Survey) sent 
us letters (May 23, 2005 and June 7, 2005, respectively) stating that 
they had no comments.

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 Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) or the 
Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that North Dakota proposed to make in this 
amendment pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.

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 April 25, 2005, we requested comments on North Dakota's 
amendment (Administrative Record No. ND-JJ-03), but neither SHPO or 
ACHP responded to our request.

V. OSM's Decision

    Based on the above findings, we approve North Dakota's April 20, 
2005, 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.

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.

[[Page 71242]]

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4321 et 
seq.).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

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; 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 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 29, 2005.
Allen D. Klein,
Regional Director, Western Regional.

0
For the reasons set out in the preamble, 30 CFR part 934 is amended as 
set forth below:

PART 934--North Dakota

0
1. The authority citation for part 934 continues to read as follows:

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

0
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:


Sec.  934.15  Approval of North Dakota regulatory program amendments.

* * * * *

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     Original amendment           Date of final
       submission date             publication      Citation/description
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                              * * * * * * *
April 20, 2005..............  November 28, 2005...  NDCC 38-14.1-17.1.a
                                                     and 2005b.
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[FR Doc. 05-23324 Filed 11-25-05; 8:45 am]
BILLING CODE 4310-05-P


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