Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations 13015

copy of the proposed rule was

submitted to the Chief Counsel for

Advocacy of the Small Business

Administration in accordance with 26

U.S.C. 7805(f). No comments were

received.

Executive Order 12866

It has been determined that this

regulation is not a significant regulatory

action as defined by Executive Order

12866. Therefore, a Regulatory

Assessment is not required.

Paperwork Reduction Act

The provisions of the Paperwork

Reduction Act of 1995, 44 U.S.C.

Chapter 35, and its implementing

regulations, 5 CFR part 1320, do not

apply to this final rule because there are

no new reporting or recordkeeping

requirements.

Drafting Information

The principal author of this document

is Lisa M. Gesser, Regulations Division,

Bureau of Alcohol, Tobacco and

Firearms.

List of Subjects in 27 CFR Part 22

Administrative practice and

procedure, Advertising, Alcohol and

alcohol beverages, Authority delegations

(Government agencies), Claims, Excise

taxes, Reporting and recordkeeping

requirements, Surety bonds.

Authority and Issuance

Accordingly, title 27, Code of Federal

Regulations part 22 is amended as

follows:

PART 22—DISTRIBUTION AND USE OF

TAX-FREE ALCOHOL

Par. 1. The authority citation for part

22 continues to read as follows:

Authority: 26 U.S.C. 5001, 5121, 5142,

5143, 5146, 5206, 5214, 5271–5276, 5311,

5552, 5555, 6056, 6061, 6065, 6109, 6151,

6806, 7011, 7805; 31 U.S.C. 9304, 9306.

§ 22.21 [Amended]

Par. 2. Amend § 22.21(a) by removing

the word ‘‘bonds’’ from the first

sentence.

§ 22.25 [Removed]

Par. 3. Remove § 22.25.

§ 22.26 [Redesignated]

Par. 4. Redesignate § 22.26 as § 22.25.

§ 22.27 [Redesignated]

Par. 5. Redesignate § 22.27 as § 22.26.

§ 22.43 [Amended]

Par. 6. Amend § 22.43 by revising

paragraphs (a)(2) and (b) to read as

follows:

§ 22.43 Exceptions to application

requirements.

(a) * * *

(2) Applications, Form 5150.22, filed

by applicants, where the appropriate

ATF officer has determined that the

waiver of such requirements does not

pose any jeopardy to the revenue or a

hindrance of the effective

administration of this part.

(b) The waiver provided for in this

section will terminate for a permittee,

other than States or political

subdivisions thereof or the District of

Columbia, when the permittee files an

application to amend the permit and the

appropriate ATF officer determines that

the conditions justifying the waiver no

longer exist. In this case, the permittee

will furnish the information in respect

to the previously waived items, as

provided in § 22.57(a)(2).

§ 22.59 [Amended]

Par. 7. Amend § 22.59 by removing

the second sentence.

§ 22.60 [Amended]

Par. 8. Amend § 22.60 as follows:

a. Remove paragraph (b);

b. Redesignate paragraph (c) as

paragraph (b); and

c. Redesignate paragraph (d) as

paragraph (c).

§ 22.62 [Amended]

Par. 9. Amend § 22.62 by removing

the last sentence.

§ 22.63 [Amended]

Par. 10. Amend § 22.63 as follows:

a. Remove the paragraph letter and

title designation ‘‘(a) Permit’’; and

b. Remove paragraph (b).

§ 22.68 [Amended]

Par. 11. Amend § 22.68 as follows:

a. Remove the paragraph letter and

title designation ‘‘(a) Notice’’; and

b. Remove paragraph (b).

Subpart E—[Removed and Reserved]

Par. 12. Remove and reserve Subpart

E (Bonds and Consent of Surety).

§ 22.152 [Amended]

Par. 13. Amend § 22.152 as follows:

a. Remove paragraph (b); and

b. Redesignate paragraph (c) as

paragraph (b).

Bradley A. Buckles,

Director.

Approved: February 1, 2001.

Timothy E. Skud,

Acting Deputy Assistant Secretary

(Regulatory, Tariff and Trade Enforcement).

[FR Doc. 01–5130 Filed 3–1–01; 8:45 am]

BILLING CODE 4810–31–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 934

[SPATS No. ND–041–FOR, Amendment No.

XXX]

North Dakota Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving this proposed amendment to

the North Dakota regulatory program

(hereinafter, the ‘‘North Dakota

program’’) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). North Dakota proposed

revisions to rules about rulemaking

notices, prime farmland reclamation

plans, permit approval and denial

criteria, performance bond liability

period, bond release applications,

surface water monitoring, revegetation

success standards, prime farmland

reclamation standards, and small

operator assistance.

The State intended to revise its

program to be consistent with the

corresponding Federal regulations and

SMCRA, and improve operational

efficiency.

EFFECTIVE DATE: March 2, 2001.

FOR FURTHER INFORMATION CONTACT: Guy

Padgett, Telephone: 307/261–6550,

Internet address: GPadgett@OSMRE.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

II. Submission of the Proposed Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the North Dakota

Program

On December 15, 1980, the Secretary

of the Interior conditionally approved

the North Dakota program. 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 and

934.16.

13016 Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations

II. Submission of the Proposed

Amendment

By letter dated June 20, 2000, North

Dakota sent us an amendment to its

program (North Dakota Amendment No.

XXX, administrative record No. ND–EE–

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

seq.). North Dakota sent the amendment:

(1) In response to a July 17, 1997 letter

(administrative record No. ND–EE–02)

that we sent to it in accordance with 30

CFR 732.17(c) and (2) to include

changes made at its own initiative. The

provisions of North Dakota’s

Administrative Code that North Dakota

proposed to revise were: (1) NDAC 69–

05.2–01–03, Rulemaking notices; (2)

NDAC 69–05.2–09–15, Prime farmland

reclamation plans; (3) NDAC 69–05.2–

10–03.6.c, Permit approval or denial

criteria; (4) NDAC 69–05.2–12–12.2,

Bond release applications; (6) NDAC

69–05.2–16–05, Surface water

monitoring; (7) NDAC 69–05.2–22–

07.4.1, Revegetation success standards;

(8) NDAC 69–05.2–26–05.3.h, Prime

farmland revegetation requirements; and

(9) NDAC 69–05.2–29–03, Small

operator assistance.

We announced receipt of the

proposed amendment in the July 17,

2000, Federal Register (65 FR 44015). 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 No. ND–EE–05).

We did not hold a public hearing or

meeting because no one requested one.

III. Director’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.

1. Minor Revisions to North Dakota’s

Rules

North Dakota proposed minor

wording, editorial, punctuation,

grammatical, and recodification changes

to the following previously-approved

rules.

A. Rulemaking Notices, NDAC 69–05.2–

01–03; NDCC 28–32

There is no Federal counterpart to this

rule change. It is being made because a

recent legislative change in North

Dakota’s Administrative Procedures Act

requires that notices of all rulemaking

hearings be published in all official

county newspapers in the State as well

as filed with North Dakota’s Legislative

Council.

Because these changes are minor, we

find that they will not make North

Dakota’s rules less effective than the

corresponding Federal regulations.

B. NDAC 69–05.2–12–09; NDAC 69–

05.2–22–07.4.1: Period of Performance

Bond Liability

Due to an oversight, the cross

reference in NDAC Section 69–05.2–12–

09(2) was not updated in North Dakota

State Program Amendment XXIII as it

should have been. This change, which

adds reference to subsection k, corrects

that oversight. There is no Federal

counterpart.

C. NDAC 69–05.2–16–05, Performance

Standards—Hydrologic Balance—

Surface Water Monitoring

A cross reference is corrected to read

in ‘‘subparagraph 2 of this’’ subdivision

(instead of subparagraph c). The

revision only involves a change to a

cross reference.

2. Revisions to North Dakota’s Rules

That Have the Same Meaning as the

Corresponding Provisions of the Federal

Regulations

North Dakota proposed revisions to

the following rules containing language

that is the same as or similar to the

corresponding sections of the Federal

regulations.

A. NDAC 69–05.2–10–03.6.c, Permit

Applications—Criteria for Permit

Approval or Denial

The proposed revised State rule adds

two new paragraphs as requested by

OSM in a July 17, 1997, 30 CFR 732(d)

letter to North Dakota. As enumerated in

that letter (administrative record No.

ND–EE–02) the State needed to add

counterparts to the Federal regulations

at 30 CFR 785.17(e)(3) and (5).

Paragraph ‘‘(3)’’ addresses the

applicant’s technological capability to

restore prime farmland within a

reasonable amount of time, and

Paragraph ‘‘(5)’’ addresses total prime

farmland acreage as it relates to

postmining water bodies that are part of

the reclamation.

The State of North Dakota is adding

new language at 69–05.2–10–03.6.c,

Permit applications—Criteria for permit

approval or denial. It states that:

* * * * *

‘‘6. In addition to the requirements of

subsection 3 of North Dakota Century Code

section 38.14.1–21, no permit or significant

revision will be approved, unless the

application affirmatively demonstrates and

the commission finds, in writing, on the basis

of information in the application or

otherwise available, which is documented in

the approval and made available to the

applicant, that:

c. The applicant has, with respect to prime

farmland, obtained either a negative

determination or if the permit area contains

prime farmlands:

4. The permit demonstrates that the

applicant has the technological capability to

restore prime farmland, within a reasonable

time, to equivalent or higher yields as nonmined prime farmland in the surrounding

area under equivalent management practices.

5. The aggregate total prime farmland

acreage will not be decreased from that

which existed prior to mining based on the

cooperative soil survey. Any postmining

water bodies that are part of the reclamation

must be located within the non-prime

farmland portions of the permit area. If any

such water bodies reduce the amount of

prime farmland that a surface owner had

before mining, the affected surface owners

must consent to the creation of the water

bodies and the plans must be approved by

the commission.’’

Federal Regulations at 30 CFR

785.17(e), Issuance of permit, require

that ‘‘[a] permit for the mining and

reclamation of prime farmland may be

granted by the regulatory authority, if it

first finds, in writing, upon the basis of

a complete application, that—

* * * * *

(3) The applicant has the technological

capability to restore the prime farmland,

within a reasonable time, to equivalent or

higher levels of yield as nonmined prime

farmland in the surrounding area under

equivalent levels of management; and (5) The

aggregate total prime farmland acreage shall

not be decreased from that which existed

prior to mining. Water bodies, if any, to be

constructed during mining and reclamation

operations must be located within the postreclamation non-prime farmland portions of

the permit area. The creation of any such

water bodies must be approved by the

regulatory authority and the consent of all

affected property owners within the permit

area must be obtained.’’

* * * * *

The proposed language is almost

identical to the Federal language and is

therefore consistent with and no less

effective than the Federal regulations.

B. NDAC 69–05.2–12–12.2, 30 CFR

800.40(a)(3), Release of Performance

Bond—Bond Release Application

The existing State regulation at NDAC

69–05.2–12–09 does not require a

permittee to submit a notarized

statement certifying that the permittee

accomplished reclamation in

accordance with the North Dakota

statute, regulatory program, and the

approved reclamation plan.

The counterpart Federal regulation at

30 CFR 800.40(a)(3) requires the

permittee to include in its application

for bond release a notarized statement

which certifies that all applicable

reclamation activities have been

accomplished in accordance with the

Act, the regulatory program, and the

approved reclamation plan.

Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations 13017

To satisfy OSM’s requirement that

North Dakota’s regulatory program be

revised to be consistent with revised

Federal regulations at 30 CFR

800.40(a)(3), North Dakota is proposing

to revise its regulations to require that

each application for bond release

submitted by the permittee include, in

an application for any bond release, a

notarized statement which certifies that

the permittee has accomplished all

applicable reclamation activities in

accordance with NDAC 69–05.2, NDCC

38–14.1 and the approved reclamation

plan.

The proposed revision is consistent

with and no less effective than the

Federal regulations.

C. NDAC 69–05.2–29–03. Small

Operator Assistance—Eligibility for

Assistance

The existing State regulation at NDAC

69–05.2–29–03(2)(c) provides for a

minimum five percent ownership of the

coal by an applicant for Small Operator

Assistance. However, Federal

regulations at 30 CFR 795.6(a)(2)(i) and

(ii) require that an applicant own at

least ten percent of the coal in order to

qualify as an applicant.

Through this revision in its

regulations, North Dakota will now also

require a minimum ten percent

ownership in the coal before allowing

the use of subsidies from the Federal

government to conduct the studies

necessary in order to obtain a permit to

mine coal.

The proposed revision is consistent

with and no less effective than the

Federal regulations.

3. NDAC 69–05.2–09.15.8, 69–05.2–26–

05.3.h, 69–05.2–22–07.4.1; Prime

Farmland Reclamation Plans and

Revegetation Requirements

The State of North Dakota is adding

new language at 69–05.2–09–15, Permit

applications—Operation and

reclamation plans—Prime farmlands. It

states that ‘‘[i]f appropriate, the

applicant shall submit a mining and

restoration plan for prime farmland

containing:

* * * * *

8. If a reclaimed cropland tract will contain

a mixture of prime and non-prime farmlands

and Commission approval of a single yield

standard for the entire tract is requested as

allowed by subdivision 1 of subsection 4 of

section 69–05.2–22–07, a detailed

description and comparison of the soil

mapping units and acreages occurring in the

prime and non-prime parcels must be

provided.

North Dakota is also adding new

language at 69–05.2–26–05.3,

Performance standards—Prime

farmland—Revegetation and restoration

of productivity. It states that ‘‘[t]he

following revegetation requirements

must be met for areas being returned to

prime farmland after mining:

* * * * *

3. Prime farmland productivity must be

restored in accordance with the following:

h. If a reclaimed tract contains a mixture

of prime and non-prime farmlands, the

commission may approve a single yield

standard for the entire tract as allowed under

subdivision 1 of subsection 4 of section 69–

05.2–22–07.

Proposed North Dakota regulation at

NDAC 69–05.2–22–07.1 requires ‘‘[a]s

an alternative to meeting revegetation

success standards for the last two

consecutive growing seasons of the

responsibility period, an operator may

demonstrate that the applicable

standards have been achieved for any

three years starting no sooner than the

sixth year of the responsibility period

and with one year being the last year of

the responsibility period. This

alternative does not pertain to success

standards for prime farmlands unless a

reclaimed tract contains both prime and

non-prime farmlands. If a reclaimed

tract contains a mixture of prime and

non-prime farmlands, the commission

may approve a single yield standard for

the entire tract based on the soil types

that occurred on the prime and nonprime areas prior to mining. When a

single yield standard is approved, the

operator must demonstrate that the

standard has been achieved for any

three years starting no sooner than the

sixth year of the responsibility period

and with one year being the last year of

the responsibility period. If this option

is approved, the operator must also meet

the applicable requirements of section

69–05.2–26–05 for the entire tract.’’

Federal regulations at 30 CFR

823.15(b) require that prime farmland

soil productivity shall be restored in

accordance with the following

provisions:

* * * * *

(2) Soil productivity shall be measured on

a representative sample or on all of the

mined and reclaimed prime farmland area

using the reference crop determined under

Paragraph (b)(6) of this Section. A

statistically valid sampling technique at a 90-

percent or greater statistical confidence level

shall be used as approved by the regulatory

authority in consultation with the U.S. Soil

Conservation Service.

(3) The measurement period for

determining average annual crop production

(yield) shall be a minimum of 3 crop years

prior to release of the operator’s performance

bond.

(5) Restoration of soil productivity shall be

considered achieved when the average yield

during the measurement period equals or

exceeds the average yield of the reference

crop established for the same period for

nonmined soils of the same or similar texture

or slope phase of the soil series in the

surrounding area under equivalent

management practices.

In discussing the new language North

Dakota indicates that the rules being

proposed pertain to proving reclamation

success on reclaimed cropland tracts

that contain a mixture of prime and

non-prime farmland. The additional

language will allow the North Dakota

Public Service Commission to approve a

single yield standard for such tracts,

rather than applying separate yield

standards to the prime and non-prime

farmland parcels. In western North

Dakota, soils that are designated as

prime farmland by the Natural Resource

Conservation Service (NRCS) primarily

occur in swale or nearly level landscape

positions that receive runoff from

adjoining areas. During the reclamation

process the topsoil materials from the

prime farmland areas are replaced in

similar landscape positions and these

prime areas are usually intermingled

with non-prime areas. Although both

prime and non-prime cropland must be

restored to premine productivity levels,

a separate yield standard must be

developed for the reclaimed prime

farmlands under the current rules and

the prime areas must be harvested

separately from the non-prime areas.

The intermingling of the prime and nonprime areas throughout a larger field

makes separate harvesting difficult. It is

much easier to harvest the field as a

single unit. The proposal will allow the

Commission to approve a single yield

standard in these situations. Prior to

approval, a detailed comparison of the

premine soils occurring in the prime

and non-prime areas would have to be

included in the reclamation plan as

discussed in item 2 above. At least three

years of production data, starting no

sooner than the sixth year of the liability

period, would be required to

demonstrate reclamation success. Also,

one of those three years would have to

be the last year of the liability period.

OSM believes that the proposed use of

the single yield standard is appropriate

because it ensures that the productivity

of the reclaimed tract, based on both the

productivity of the prime and nonprime soils, is restored to premine

levels. This ensures that a tract is

returned to a land owner with the same

capability it had prior to mining.

As required under 30 CFR

823.15(b)(2) North Dakota has provided

documentation that it has consulted

with the NRCS on the use of a single

production standard based on the

weighted averages of prime and nonVerDate 11<MAY>2000 17:25 Mar 01, 2001 Jkt 194001 PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 E:\FR\FM\02MRR1.SGM pfrm10 PsN: 02MRR1
13018 Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations

prime soils within a given tract. In a

letter dated April 11, 2000 to the State

the NRCS concurred with North

Dakota’s proposal. OSM also concurs.

This satisfies the requirements of 30

CFR 823.15(b)(2).

The proposed amendment is

consistent with and no less effective

than the Federal regulations.

4. NDAC 69–05.22–07.4.1, Performance

Standards—Revegetation—Standards

for Success

Existing NDAC 69–05.2–22–07.4.1.

allows ‘‘[a]s an alternative to meeting

revegetation success standards for the

last two consecutive growing seasons of

the responsibility period, an operator

may demonstrate that the applicable

standards have been achieved for three

out of five consecutive years starting no

sooner than the eighth year of the

responsibility period. This alternative

does not pertain to success standards for

prime farmlands.’’

Proposed NDAC 69–05.2.–22–07.4.1.

provides ‘‘[a]s an alternative to meeting

revegetation success standards for the

last two consecutive growing seasons of

the responsibility period, an operator

may demonstrate that the applicable

standards have been achieved for any

three years starting no sooner than the

sixth year of the responsibility period

and with one year being the last year of

the responsibility period. This

alternative does not pertain to success

standards for prime farmlands unless a

reclaimed tract contains both prime and

non-prime farmlands. If a reclaimed

tract contains a mixture of prime and

non-prime farmlands, the commission

may approve a single yield standard for

the entire tract based on the soil types

that occurred on the prime and nonprime areas prior to mining. When a

single yield standard is approved, the

operator must demonstrate that the

standard has been achieved for any

three years starting no sooner than the

sixth year of the responsibility period. If

this option is approved, the operator

must also meet the applicable

requirements of section 69–5.2–26–05

for the entire tract.’’

The Federal regulations at 30 CFR

816.116(c)(3) require that in areas of

26.0 inches or less average annual

precipitation, the period of

responsibility shall continue for a

period of not less than: (i) Ten full

years, except as provided in paragraph

(c)(3)(ii). Vegetation parameters

identified in paragraph (b) of this

section shall equal or exceed the

approved success standard for at least

the last two consecutive years of the

responsibility period.

The new provision will allow mining

companies to use data from any three of

the last five years of the responsibility

period, starting in year six, to prove

reclamation success. However, one year

of these three years must be the last year

of the responsibility period. This

language will give the mining

companies more flexibility in using

vegetation data collected during a

number of years near the end of the

revegetation liability period without

extending the period of extended

responsibility beyond the 10 years

envisioned at Section 515(b)(20) of

SMCRA.

On September 7, 1988 OSM revised

30 CFR 816.116(c)(2) to require that in

areas with more than 26 inches of

average annual precipitation the

vegetation parameters identified in

paragraph (b) of this section for grazing

land, pasture land, or cropland shall

equal or exceed the approved success

standards for during the growing season

of any 2 years of the five year

responsibility period, except the first

year. This change eliminated the

requirement to measure revegetation

success during the last two years of the

responsibility period in areas with more

than 26 inches of average annual

precipitation. In the September 7, 1988,

preamble to this regulation change

OSM, in discussing the reasons for the

change, states that measurements in

nonconsecutive years avoids unduly

penalizing the operator for the negative

effects of climatic variability (53 FR

34636, 24640). OSM goes on to state that

it continues to believe that measurement

over two years is important to attenuate

the influences of climatic variability,

but now realizes that consecutiveness

imposes an unnecessary degree of

regulatory rigidity. Under a system

requiring measurement of revegetation

success in two consecutive years, an

operator would be unnecessarily

penalized if bad weather in the second

year of the measurement period caused

failure to meet the revegetation success

standard after it had been achieved in

the first year.

While no changes were made to 30

CFR 816.116(c)(3) at the time 30 CFR

816.116(c)(2) was changed OSM

believes that the same problems with

climatic variability discussed in the

above referenced preamble are

applicable to areas that receive 26

inches or less average annual

precipitation. As discussed in the

previous approval allowing the use of

data from any three of the last five years

of the responsibility period, starting in

year eight in North Dakota (64 FR

12896, 12898, March 16, 1999,

administrative record No. ND–Z–17),

climatic factors such as hail or drought

can reduce yields resulting in failure to

meet revegetation success standards in

consecutive years. Localized insect

infestations, such as grasshoppers or

cutworms, can have the same effect.

North Dakota’s proposal, which

provides the operators the option to

demonstrate revegetation success during

any three years beginning in year six,

gives operators the same level of

flexibility provided under 30 CFR

816.116(c)(2). However, it limits

evaluation of revegetation success to

starting no sooner than the sixth year of

the responsibility period. This ensures

that only well established plant

communities or croplands are evaluated

and only in the final years of the

responsibility period. The proposal

minimizes any potential impacts

augmentative practices, such as

fertilization or irrigation, might have on

the reestablished plant communities.

Finally, the proposed rule requires three

years of data to demonstrate

revegetation success, which is more

than required by the Federal

regulations. It also requires that one year

be the last year of the responsibility

period. This ensures that evaluation of

revegetation success can never be

completed before year 10 of the

responsibility period.

For the reasons cited above OSM has

determined that, for evaluating

revegetation success, data from any

three years starting no sooner than the

sixth year of the responsibility period

and with one year being the last year of

the responsibility period is no less

effective than the Federal regulations

and achieves the requirements of

sections 515(b)(19) and (b)(20) of

SMCRA.

IV. Summary and Disposition of

Comments

Public Comments

We asked for public comments on the

amendment (administrative record No.

ND–EE–04), but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), 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–EE–04).

On August 2, 2000, the U.S. Fish and

Wildlife Service commented

(administrative record No. ND–EE–06)

that ‘‘I do not anticipate any significant

impacts to fish and wildlife resources as

a result of the proposed amendment.’’

On August 4, 2000, the U.S. Natural

Resources Conservation Service

Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations 13019

commented (administrative record No.

ND–EE–07) that ‘‘we do not have any

further comments at this time.’’

Also on August 4, 2000, the

Agricultural Research Service

commented that ‘‘we see no problems

with the proposed changes.’’

On August 23, 2000, the U.S. Army

Corps of Engineers commented

(administrative record ND–EE–09) that

although it found the proposed

amendment ‘‘generally satisfactory

* * *, in order to avoid any inadvertent

implication that the requirements of

Section 404 of the Clean Water Act are

somehow superseded by this

amendment, we suggest the inclusion of

a statement indicating that separate

authorization from the U.S. Army Corps

of Engineers (COE) is required for all

work involving any discharge of

dredged or fill material into waters of

the United States.’’

We have considered this comment

and believe it unlikely that anyone

would think that the amendment would

supersede Section 404 of the Clean

Water Act and therefore decided not to

include the statement suggested by the

COE.

Environmental Protection Agency (EPA)

Concurrence and Comments

Under 30 CFR 732.17(h)(11)(i), OSM

requested comments on the amendment

from EPA (administrative record No.

ND–EE–04). EPA did not respond to our

request.

State Historic Preservation Office

(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 July 7, 2000, we

requested comments on North Dakota’s

amendment (administrative record No.

ND–EE–01), but neither responded to

our request.

V. Director’s Decision

We approve, as discussed in: Finding

No. 1.A NADAC 69–05.2–01–03, NDCC

28–32, concerning rulemaking notices;

finding No. 1B, NDAC 69–05.2–12–09

and NDAC 69–05.2–22–07.4.1,

concerning period of performance bond

liability; finding No. 1C, NDAC 69–

05.2–16–05, concerning hydrologic

balance performance standards for

surface water monitoring; finding No.

2A, NDAC 69–05.2–10–03.6.c

concerning criteria for approval or

denial in permit applications; finding

No. 2B, NDAC 69–05.2–12–12.2,

concerning the release of the

performance bond; finding No. 2C,

NDAC 69–05.2–29–03, concerning the

eligibility for assistance by small

operators; finding No. 3, NDAC 69–

05.2–09.15.8, NDAC 69–05.2–26–05.3.h,

and NDAC 69–05.2–22–07.4.1

concerning prime farmland reclamation

plans and revegetation requirements;

and finding No. 4, NDAC 69–05.2–22–

07.4.1, concerning revegetation success

standards.

To implement this decision, we are

amending the Federal regulations at 30

CFR part 934, which codify decisions

concerning the North Dakota program.

We are making this final rule effective

immediately to expedite the State

program amendment process and to

encourage States to make their programs

conform with the Federal standards.

SMCRA requires consistency of State

and Federal standards.

VI. Procedural Determinations

1. 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).

2. Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart Federal regulation.

3. 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.

4. Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) 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

since each such 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.

5. 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)).

6. 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.).

7. Regulatory Flexibility Act

The Department of the Interior has

determined 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

that 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.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. 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.

8. 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,

13020 Federal Register / Vol. 66, No. 42 / Friday, March 2, 2001 / Rules and Regulations

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.

9. Unfunded Mandates

OSM has determined and certifies

under the Unfunded Mandates Reform

Act (2 U.S.C. 1502 et seq.) that this rule

will not impose a cost of $100 million

or more in any given year on any local,

State, or Tribal governments or private

entities.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface

mining, Underground mining.

Dated: February 8, 2001.

Brent Wahlquist,

Regional Director, Western Regional

Coordinating Center.

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

*******

June 20, 2000 ................................................... March 2, 2001 ................................................... NDAC 69–05.2–01–03; NDCC 28–32

NDAC 69–05.2–09.15.8

NDAC 69–05.2–10–03.6.c

NDAC 69–05.2–12–09

NDAC 69–05.2–12–12.2

NDAC 69–05.2–16–05

NDAC 69–05.2–22–07.4.1

NDAC 69–05.2–26–05.3

NDAC 69–05.2–29–03

[FR Doc. 01–4989 Filed 3–01–01; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF HEALTH AND

HUMAN SERVICES

Health Care Financing Administration

42 CFR Parts 410, 412, 413, and 485

[HCFA–1118–CN2]

RIN 0938–AK09

Medicare Program; Changes to the

Hospital Inpatient Prospective

Payment Systems and Fiscal Year 2001

Rates; Midyear Corrections Effective

December 1, 2000.

AGENCY: Health Care Financing

Administration (HCFA), HHS.

ACTION: Final rule; correction notice.

SUMMARY: In the August 1, 2000 issue of

the Federal Register (65 FR 47054), we

published a final rule that revised the

Medicare hospital inpatient prospective

payment systems for operating costs and

capital-related costs to implement

necessary changes arising from our

continuing experience with the system.

This document corrects wage index and

related data errors identified after

October 1, 2000.

EFFECTIVE DATE: December 1, 2000.

FOR FURTHER INFORMATION CONTACT:

Anne Tayloe, (410) 786–4546.

SUPPLEMENTARY INFORMATION: This

document corrects a limited number of

errors in the August 1, 2000 final rule

(65 FR 47054) identified after October 1,

2000. We are making these changes in

accordance with 42 CFR 412.63(x)(2)(i),

which specifies that we may make

midyear corrections to the wage index

for an area only if a hospital can show

that—

• The intermediary or HCFA made an

error in tabulating the hospital’s data;

and

• The hospital could not have known

about the error or did not have the

opportunity to correct the error, before

the beginning of the Federal fiscal year

(in this case before the beginning of FY

2001). In addition, § 412.63(x)(2)(ii)

specifies that midyear corrections are

effective prospectively from the date

that the change is made to the wage

index. On December 1, 2000, we issued

a program memorandum entitled

‘‘Corrections to the Calculation of

Federal Fiscal Year (FY) 2001 Inpatient

Payment Amounts’’ that made midyear

corrections to the wage index (HCFA

Pub. 60 A). This program memorandum

included the midyear corrections

presented in this notice; therefore, the

effective date is the same as that of the

program memorandum (December 1,

2000). The midyear corrections are as

follows:

1. On page 47138, in Table 3C—

Hospital Case Mix Indexes for

Discharges Occurring in Federal Fiscal

Year 1999; Hospital Average Hourly

Wages for Federal Fiscal Year 2001

Wage Index, the average hourly wage for

the specified provider is corrected to

read as follows:

Provider Case mix

index

Average

hourly

wage

260027 ...................... 1.6845 21.30

2. On pages 47149 through 47156, in

Table 4A—Wage Index and Capital

Geographic Adjustment Factor (GAF) for

Urban Areas, the wage indexes and

GAFs for the specified urban areas are

corrected to read as follows:

Urban area

(constituent counties)

Wage

index GAF

0870 ..................... Benton Harbor, MI 2 .......................................................................................................................... 0.9003 0.9306

3080 ..................... Green Bay, WI .................................................................................................................................. 0.9339 0.9542

3640 ..................... Jersey City, NJ .................................................................................................................................. 1.1318 1.0885

3660 ..................... Johnson City-Kingsport-Bristol, TN–VA ............................................................................................ 0.8318 0.8815

3760 ..................... Kansas City, KS–MO1 ...................................................................................................................... 0.9527 0.9674

5640 ..................... Newark, NJ1 ...................................................................................................................................... 1.0890 1.0601