[Federal Register Volume 66, Number 42 (Friday, March 2, 2001)]
[Rules and Regulations]
[Pages 13015-13020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-4989]


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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.

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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: [email protected].

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.

[[Page 13016]]

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 non-mined 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 
post-reclamation 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.

[[Page 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 non-prime 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 
non-prime 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 non-prime 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 
non-

[[Page 13018]]

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 non-prime 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

[[Page 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,

[[Page 13020]]

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:


Sec. 934.15  Approval of North Dakota regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
 Original amendment submission       Date of final
             date                    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
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[FR Doc. 01-4989 Filed 3-01-01; 8:45 am]
BILLING CODE 4310-05-M