[Federal Register Volume 71, Number 146 (Monday, July 31, 2006)]
[Proposed Rules]
[Pages 43085-43087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-12203]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-049-FOR, Amendment No. XXXVI]


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 intends to revise its program to incorporate the 
additional flexibility afforded by the revised Federal regulations, 
clarify ambiguities, and improve operational efficiency.
    This document gives the times and locations that the North Dakota 
program and proposed amendment to that program are available for your 
inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.d.t. August 30, 2006. If requested, we will hold a public hearing on 
the amendment on August 25, 2006. We will accept requests to speak 
until 4 p.m., m.d.t. on August 15, 2006.

ADDRESSES: You may submit comments, identified by SATS No. ND-049-49, 
by any of the following methods:
     E-mail: [email protected]. Include ``ND-049-FOR'' in 
the subject line of the message.
     Mail/Hand Delivery/Courier: Jeffrey W. Fleischman, 
Director, Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, 150 East B Street, Rm 1018, Casper, Wyoming 82602, 307/
261-6550.
     Fax: 307/261-6552.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and ND-049-FOR. For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: Access to the docket, to 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, may be 
obtained 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's (OSM) Casper Field Office. In addition, 
you may review a copy of the amendment during regular business hours at 
the following locations:

Jeffrey W. Fleischman, Director, Casper Field Office, Office of Surface 
Mining Reclamation and Enforcement, 150 East B Street, Rm 1018, Casper, 
Wyoming 82602, 307/261-6550, E-mail: [email protected].
James R. Deutsch, Reclamation Division, Public Service Commission, 600 
E. Boulevard Ave. Dept. 408, Bismarck, North Dakota 58508-0480, 701/
328-2410, Internet: http://www.ndpsc.state.nd.us.

FOR FURTHER INFORMATION CONTACT: Jeffrey W. Fleischman, Telephone: 307/
261-6552. E-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. 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 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 
934.15 and 934.30.

[[Page 43086]]

II. Description of the Proposed Amendment

    By letter dated May 24, 2006, North Dakota sent us a proposed 
amendment to its program (Amendment number XXXVI, administrative record 
No. ND-KK-01) under SMCRA (30 U.S.C. 1201 et seq.). North Dakota sent 
the amendment to include changes made at its own initiative. The full 
text of the program is available for you to read at the locations 
listed above under ADDRESSES.
    Specifically, North Dakota proposes to:
    [cir] Add language to North Dakota's Coal Rules at North Dakota 
Administrative Code (NDAC) 69-05.2-06-03 (right-of-entry requirements) 
to allow a permittee to delete coal leases from the permit when mining 
on a tract covered by a lease that is no longer needed to show surface 
right of entry, or when a coal lease has otherwise been terminated 
(however, if the coal lease no longer provides the surface right of 
entry, other documents granting the permittee right of entry must be 
added to the permit).
    [cir] Delete language in North Dakota's Coal Rules at NDAC 69-05.2-
10-01 that requires the newspaper notice for permit applications 
include a reference to the U.S. Geological Survey map that contains the 
area, and limits the listing of coal owners in the notice to those that 
will be affected by the mining activities.
    [cir] Revise the bond release application requirements in North 
Dakota's Coal Rules at NDAC 69-05.2-12-12 to require the filing of a 
copy of the newspaper advertisement instead of requiring the submittal 
of affidavits of publication.
    [cir] Revise sedimentation pond inspection requirements at NDAC 69-
05.2-16-09 to make a better distinction between inspections that must 
be conducted while a pond is being constructed versus annual inspection 
reports that must be prepared by a registered professional engineer.
    [cir] Revise revegetation success standards at NDAC 69-05.2-22-07 
to allow data collected from native grassland, tame pastureland and 
cropland in any two years after year six of the ten-year revegetation 
liability period to be used for final bond release purposes.

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 
written 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-049-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/
261-6552. In the final rulemaking, we will not consider or include in 
the administrative record any electronic comments received after the 
time indicated under DATES or at e-addresses other than the Casper 
Field Office.

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.d.t. on 
August 15, 2006. 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

    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.

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

[[Page 43087]]

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. 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. 4321 et 
seq.).

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. 
3501 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), of 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.
    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: June 28, 2006.
Allen D. Klein,
Director, Western Region.
[FR Doc. E6-12203 Filed 7-28-06; 8:45 am]
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