[Federal Register Volume 66, Number 222 (Friday, November 16, 2001)]
[Rules and Regulations]
[Pages 57660-57662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-28759]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SPATS No. ND-042-FOR; Amendment No. XXXI]


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 a proposed amendment to the North Dakota regulatory 
program (hereinafter, the ``North Dakota program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). North 
Dakota proposed revisions to its statutes concerning references to the 
State Historical Society and the title of the persons who head that 
agency. North Dakota revised its program to clarify ambiguities.

EFFECTIVE DATE: November 16, 2001.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Casper Field Office 
Director, 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

    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 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 the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of this 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, and 934.30.

II. Submission of the Proposed Amendment

    By letter dated May 9, 2001, North Dakota sent us an amendment to 
its program (Amendment number XXXI), administrative record No. ND-FF-
01) under SMCRA (30 U.S.C. 1201 et seq.). North Dakota sent the 
amendment to make changes at its own initiative.
    We announced receipt of the proposed amendment in the June 6, 2001 
Federal Register (66 FR 30347). 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-
FF-04). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on July 5, 2001. We 
received one comment from the public and two comments from Federal 
agencies.

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.

Minor Revisions to North Dakota Statutes

    North Dakota proposed minor wording and editorial changes in its 
Senate Bill 2424 to the following previously-approved statute:

North Dakota Century Code Section 38-14.1, Surface Mining and 
Reclamation Operations

    Section 4. Amendment. NDCC 38-14.1-10. Necessity of Permit--
Exception.
    Changes the name of the State Historical Board to the State 
Historical Society and the name of the superintendent to the director. 
Changes two ``prior tos'' to ``before.'' Changes ``Any person or 
operator may engage in the inventorying and evaluation of cultural 
resources * * *.'' to ``A person or operator shall * * *.'' A few other 
minor changes were made.
    Section 5. Amendment. NDCC 38-14.1-14.u. Cultural resource 
information including all of the following:
    Changes in five places, ``superintendent'' to ``director.''
    Changes in one place, ``board'' to ``society.''
    Section 6. Amendment. NDCC 38-14.1-21.2. Approval or modification 
of the permit or permit revision application.
    Changes ``board'' to ``society.''
    Changes ``shall'' to ``must.''
    Section 7. Amendment. NDCC 38-14.1-30.1. Right to administrative 
review on rulings.
    Changes ``board'' to ``society.'' Changes ``superintendent'' to 
``director.'' Miscellaneous very minor editorial changes.
    Section 8. Amendment. NDCC 38-14.1-37.2.d. Collection of cultural 
resource information.
    Changes ``board'' to ``society'' and changes ``superintendent'' to 
``director.''
    Because all of the aforementioned changes are minor, we find that 
they

[[Page 57661]]

will not make North Dakota's statutes less stringent than SMCRA.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record No. ND-FF-03) and received one comment letter as a result: a 
June 15, 2001, letter from the North Dakota State University Extension 
Service stating that it is in agreement with the proposed amendment.

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-FF-03). Two comment letters from Federal 
agencies were received.
    On May 24, 2001, the Natural Resources Conservation Service sent us 
a letter (administrative record No. ND-FF-05) stating that it did not 
have any comments.
    On June 12, 2001, the U.S. Fish and Wildlife Service sent a letter 
(administrative record No. ND-FF-06) stating it does ``not anticipate 
any significant impacts to fish and wildlife resources as a result of 
the proposed amendment.''

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-FF-03). 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 May 18, 2001, we requested their comments on North 
Dakota's amendment (administrative record No. ND-FF-03), but neither 
responded to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment sent to us by 
North Dakota on May 9, 2001.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 934.15, 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 rule effective immediately will expedite that 
process.

VI. Procedural Determinations

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 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

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 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.

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. Since this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business

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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

    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: September 12, 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's regulatory program amendments.

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  Original amendment  submission date     Date of final  publication              Citation/description
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May 9, 2001...........................  November 16, 2001.............  NDCC 38-14.1
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[FR Doc. 01-28759 Filed 11-15-01; 8:45 am]
BILLING CODE 4310-05-P