[Federal Register Volume 68, Number 106 (Tuesday, June 3, 2003)]
[Proposed Rules]
[Pages 33035-33037]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-13852]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SATS ND-044-FOR, Amendment No. XXXIII]


North Dakota Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We are announcing receipt of 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 proposes revisions to and additions of rules 
pertaining to the definition of ``valid existing rights,'' the process 
for determining whether or not a mine operator has valid existing 
rights, lands prohibited from mining, changes in the format of permit 
applications, general requirements for mining plans, land descriptions 
for partial bond release requests, filing requirements for copies of 
reports required by the State Health Department, sediment control 
measures, and removal of sedimentation ponds.
    North Dakota intends to revise its program to be consistent with 
the corresponding Federal regulations and improve operational 
efficiency.

DATES: We will accept written comments on this amendment until 4 p.m., 
mountain standard time (m.s.t.) July 3, 2003. If requested, we will 
hold a public hearing on the amendment on June 30, 2003. We will accept 
requests to speak until 4 p.m., m.s.t. on June 18, 2003.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Guy Padgett at the address listed 
below.
    You may review copies of the North Dakota program, this amendment, 
a listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
the Office of Surface Mining Reclamation and Enforcement (OSM) Casper 
Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining 
Reclamation and Enforcement, 100 East ``B'' Street, Federal Building, 
Room 2128, Casper, Wyoming 82601-1918, 307/261-6550, 
[email protected].
James R. Deutsch, Director, Reclamation Division, Public Service 
Commission, State of North Dakota, 600 E. Boulevard Avenue, Dept. 408, 
Bismarck, North Dakota 58505-0480, [email protected].

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307/261-6550. 
Internet: [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background of the North Dakota Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background of 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 of the North Dakota program 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 
934.12, 934.13, 934.15, and 934.30.

II. Description of the Proposed Amendment

    By letter dated February 10, 2003, North Dakota sent us a proposed 
amendment to its program (Amendment number XXXIII, administrative 
record No. ND-HH-01 under SMCRA (30 U.S.C. 1201 et seq.)). North Dakota 
sent the amendment in response to an April 2, 2001, letter 
(administrative record No. ND-HH-02) that we sent to it in accordance 
with 30 CFR 732.17(c), and to include the changes made at its own 
initiative. The full text of the program amendment is available for you 
to read at the locations listed above under ADDRESSES.
    The provisions of the North Dakota Administrative Code (NDAC) that 
North Dakota proposes to revise are: (1) NDAC 69-05.2-01-02(120), 
Definition of Valid Existing Rights (VER); (2) NDAC 69-05.2-04-01, 
Processing Requests for Valid Existing Rights and Exceptions from Areas 
Prohibited from Mining; (3) NDAC 69-05.2-05-01, Copies and format of 
permit applications; (4) NDAC 69-05.2-09-01, General requirements for 
mining plans; (5) NDAC 69-05.2-12-12, Bond release requirements; (6) 
NDAC 69-05.2-16-04, Sediment Control Measures under the general water 
management requirements; (7) NDAC 69-05.2-16-05, Water discharge 
reports; and (8) NDAC 69-05.2-16-09, Removal of water management 
structures.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the North Dakota program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. We will not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see DATES). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Casper Field Office may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. ND-044-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Casper Field Office at 307/
261-6555.

[[Page 33036]]

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t. on June 
18, 2003. If you are disabled and need special accommodations to attend 
a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is proposing valid existing rights 
standards that are similar to the standards in the Federal definition 
at 30 CFR 761.5. Therefore, this rule has the same takings implications 
as the Federal valid existing rights rule. The takings implications 
assessment for the Federal valid existing rights rule appears in Part 
XXIX.E of the preamble to that rule. See 64 FR 70766, 70822-27, 
December 17, 1999. The provisions in the rule based on other 
counterpart Federal regulations do not have takings implications. This 
determination is based on the analysis performed for the counterpart 
Federal regulations.

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.

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 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.

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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

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

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 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

[[Page 33037]]

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), 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: March 21, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 03-13852 Filed 6-2-03; 8:45 am]
BILLING CODE 4310-05-P