[Federal Register Volume 69, Number 12 (Tuesday, January 20, 2004)]
[Rules and Regulations]
[Pages 2663-2666]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1064]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-047-FOR, Amendment No. XXXIV]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the North Dakota 
regulatory program (the ``North Dakota program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). North 
Dakota proposed revisions to rules that would allow the State to accept 
letters of credit as the monetary pledge for collateral bonds, would 
allow phased bonding over a bond area, would clarify provisions on 
blasting records kept by mining companies, and would standardize 
terminology in revegetation success standards for bond release. North 
Dakota intends to revise its program to provide additional safeguards, 
clarify ambiguities, and improve operational efficiency.

EFFECTIVE DATE: January 20, 2004.

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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. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the North Dakota Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the North Dakota program on December 15, 1980. 
You can find background information on the North Dakota program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval in the December 15, 1980, Federal Register (45 
FR 82214). You can also find later actions concerning North Dakota's 
program and program amendments at 30 CFR 934.15, 934.16, and 934.30.

II. Submission of the Proposed Amendment

    By letter dated April 23, 2003, North Dakota sent us an amendment 
to its program (Amendment number XXXIV, Administrative Record No. ND-
II-01) under SMCRA (30 U.S.C. 1201 et seq.). North Dakota sent the 
amendment to include changes made at its own initiative. The provisions 
of the North Dakota Administrative Code (NDAC) that North Dakota 
proposed to revise are: (1) NDAC 69-05.2-01-02 (Definitions) to add 
irrevocable letters of credit as one of the financial supports for a 
collateral bond; (2) NDAC 69-05.2-12-01 (Performance bond--General 
requirements) to allow the posting of more than one bond to guarantee 
specific phases of reclamation within the permit area; (3) NDAC 69-
05.2-12-04 (Performance bond--Collateral bond) to specify that: (a) The 
permittee obtain prior North Dakota Public Service (Commission) 
approval of the bank that will issue the letter of credit, (b) the term 
of the letter of credit must be at least one year, (c) the bank issuing 
the credit must give the Commission at least 90 days notice if it 
intends to terminate the letter of credit at the end of the current 
term, (d) the Commission will not accept letters of credit in excess of 
10 percent of the bank's total equity, and (e) the bank must provide 
the Commission with notice of any pending action that could result in 
suspension or revocation of the bank's charter or license to do 
business; (4) NDAC 69-05.2-17-07 to make a minor editorial change to 
clarify that other structures (as well as dwellings, schools, churches, 
and commercial and institutional buildings) may be protected from 
certain blasting operations; and (5) NDAC 69-05-22-07, minor editorial 
changes to North Dakota's revegetation success standards that clarify 
that the standards can be exceeded, as well as met, for demonstrating 
reclamation success.
    We announced receipt of the proposed amendment in the July 7, 2003, 
Federal Register (68 FR 40225). 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-
II-07).
    The public comment period ended on August 6, 2003. We received 
comments from one Federal agency, one university and one State society. 
No one requested a public meeting or hearing, therefore we did not 
conduct one.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Minor Revisions to North Dakota's Rules

    North Dakota proposed minor wording changes to the following 
previously-approved rules.

1. NDAC 69-05.2-17-07. Performance standards--Use of Explosives--
Records of blasting operations [30 CFR 816.68]
2. NDAC 69-05.2-22-07. Performance standards--Revegetation--Standards 
for success [30 CFR 816.116]

    Because the above changes are both minor, we find that they will 
not make North Dakota's rules less effective than the corresponding 
Federal regulations.

B. 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.

1. NDAC 69-05.2-01-02.13, Definitions (Collateral bond) [30 CFR 800.5]
2. NDAC 69-05.2-12-01.11, Performance Bond--General Requirements [30 
CFR 800.13(a)(2)]
3. NDAC 69-05.2-12-04.2, Performance bond--Collateral bond [30 CFR 
800.21(b) and 800.16.(e)]

    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. ND-II-03), and one university replied. Duane Hauck, 
Assistant Director of Agriculture and Natural Resources, wrote in his 
May 20, 2003, letter, that ``The NDSU Extension Service has no 
additional comments''' (Administrative Record No. ND-II-05)

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-II-03).
    Ray McKinney of the Mine Safety and Health Administration replied 
on June 9, 2003, that ``none of the changes have a direct impact upon 
employee or public health or safety and, consequently, MSHA has no 
comments or recommendations concerning the changes.'' (Administrative 
Record No. ND-II-06).

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-II-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

[[Page 2665]]

SHPO and ACHP on amendments that may have an effect on historic 
properties. On May 5, 2003, we requested comments on North Dakota's 
amendment (Administrative Record No. ND-II-03), but ACHP did not 
respond to our request. The SHPO responded on May 14, 2003, that ``We 
have no comments on the document.'' (Administrative Record No. ND-II-
04).

V. OSM's Decision

    We approve the rules as proposed by North Dakota with the provision 
that they be fully promulgated in identical form to the rules submitted 
to and reviewed by OSM and the public. We approve: (1) NDAC 69-05.2-01-
02.13, Definition of Collateral Bond; (2) NDAC 69-05.2-12-01.11, 
Performance Bond--General Requirements; (3) NDAC 69-05.2-12-04.2, 
Performance Bond--Collateral Bond; (4) NDAC 69-05.2-17-07, Performance 
standards--Use of Explosives--Records of Blasting Operations; and (5) 
NDAC 69-05.2-22-07, Performance standards--Revegetation--Standards for 
success.
    To implement the decision to approve the rules, we are amending the 
Federal regulations at 30 CFR Part 934, which codify decisions 
concerning the North Dakota program. We find that good cause exists 
under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. 
Section 503(a) of SMCRA requires that the State's program demonstrates 
that the State has the capability of carrying out the provisions of the 
Act and meeting its purposes. Making this regulation effective 
immediately will expedite that process. SMCRA requires consistency of 
State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

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

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

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 
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.

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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: December 12, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

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

PART 934--North Dakota

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

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


0
2. Section 934.15 is amended in the table by adding a new entry in 
chronological order by ``date of final publication'' to read as 
follows:


Sec.  934.15  Approval of North Dakota regulatory program amendments

* * * * *

------------------------------------------------------------------------
 Original
 amendment    Date of
submission     final                   Citation/description
   date     publication
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                                * * * * *
   4-23-03     1-20-04   NDAC 69-05.2-01-02.13, NDAC 69-05.2-12-01.11,
                          NDAC 69-05.2-12-04.2, NDAC 69-05.2-17-07, NDAC
                          69-05.2-22-07.
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[FR Doc. 04-1064 Filed 1-16-04; 8:45 am]
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