[Federal Register Volume 71, Number 244 (Wednesday, December 20, 2006)]
[Rules and Regulations]
[Pages 76145-76148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21716]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

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


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 an 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).

DATES: Effective Date: December 20, 2006.

FOR FURTHER INFORMATION CONTACT: Jeff Fleischman, Telephone: 307/261-
6550, E-mail 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) 
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 934.10, 934.12, 934.13, 934.15 
and 934.30.

II. Submission of the Proposed Amendment

    By letter dated May 24, 2006, North Dakota sent us an 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 provisions 
of the North Dakota Administrative Code (NDAC) that North Dakota 
proposed to revise are: Rules about data requirements for proving 
reclamation success, and adding new language to revegetation success 
standards on the counting of volunteer trees and shrubs. Other changes 
are minor, including provisions that relate to lease documents in 
mining permits; newspaper notices for permit applications; copies of 
advertisements and other information needed for bond release 
applications; clarifying inspection requirements for sedimentation 
ponds and other impoundments; and correcting a cross reference error in 
a rule on roads. With these minor changes, North Dakota proposes to 
revise its program to improve operational efficiency. Specifically, 
North Dakota proposes to:
    Add language to 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 is completed and the lease is no longer 
needed to show a right-of-entry. However, if the coal lease no longer 
provides the surface right of entry, other documents granting the 
permittee the right of entry must be added to the permit.
    Delete language to NDAC 69-05.2-10-01 that required the newspaper 
notice for permit applications include a reference to the U.S. 
Geological Survey map that contains the area; and add language that 
limits the listing of coal owners in the notice to those that will be 
affected by the mining activities.
    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.

[[Page 76146]]

    Revise sedimentation pond inspection requirements in North Dakota's 
coal rules 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.
    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. In 
addition, only one year of vegetation data would be needed to prove 
reclamation success on reclaimed woodlands, shelterbelts, and fish and 
wildlife habitat. New language was also proposed for woodland and 
shelterbelt standards that addresses the replanting of trees and shrubs 
during the liability period and to allow certain volunteer trees and 
shrubs to count towards meeting the revegetation standards. Finally, 
the North Dakota alternative to meeting the revegetation success 
standards for the last two consecutive growing seasons of the 
responsibility period was abolished.
    Revise the coal rules to correct a reference to the road 
performance standards at NDAC 69-05.2-24-01.
    We announced receipt of the proposed amendment in the July 31, 
2006, Federal Register (71 FR 43085). 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-KK-04).
    We did not receive any comments. We did not hold a public hearing 
or meeting because no one requested one. The public comment period 
ended on August 30, 2006.

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, as described below.

A. Minor Revisions to North Dakota's Rules

    North Dakota proposed minor changes to the following previously-
approved rules:
    NDAC 69-05.2-24-01, Performance Standards--Roads--General 
requirements.
    NDAC 69-05.2-10-01(3) and (4), Permit applications--public notices 
of filing.
    Because these changes are minor, we find that they will not make 
North Dakota's coal rules less effective than the corresponding Federal 
regulations.

B. Revisions to North Dakota's Rules Containing Language That Is the 
Same as or Similar to Corresponding Provisions of the Federal 
Regulations

    North Dakota proposed revisions to the following rule containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations.
    NDAC 69-05.2-22-07 (30 CFR 817.116), Revegetation--Standards for 
Success.
    Because this proposed rule contains language that is the same as or 
similar to the corresponding Federal regulations, we find it is no less 
effective than the corresponding Federal regulations.

C. Revisions to North Dakota's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. NDAC 69-05.2-16-09.(19). Performance Standards--Hydrologic Balance--
Sedimentation Ponds--Inspections
    The proposed changes to North Dakota's rules on impoundment 
inspections are being made to clarify the inspection requirements that 
apply when ponds are being constructed, the requirements for 
certification by a registered professional engineer following 
construction, and the requirements for inspections by a registered 
professional engineer.
    Because North Dakota's proposed rule is nearly identical and 
substantively similar to the corresponding Federal regulations at 30 
CFR 816.49(a)(11)(ii) we find that it is no less effective than the 
corresponding Federal regulation.
2. NDAC 69-05.2-12-12. Release of Performance Bond--Bond Release 
Application
    North Dakota proposed two changes to this rule involving bond 
release. The first involves the requirement to submit ``proof of 
publication'' of the announcement of the application for bond release.
    Instead, North Dakota proposes that permittees will be required to 
submit a ``copy of the newspaper advertisement that was published.'' 
This change is no less effective than the Federal rule at 30 CFR 
800.40(a)(2) which requires submission of a copy of the newspaper 
advertisement within 30 days after an application for bond release has 
been filed with the regulatory authority.
    The second change to this rule is a simple cross-reference to 
another North Dakota provision that enumerates the additional 
information that permittees must include in their application when a 
premine water delivery system will not be replaced. This provision is 
not found in the Federal rules but is consistent with them.

D. Revisions to North Dakota's Rules With No Corresponding Federal 
Regulations

NDAC 69-05.2-06-03. Permit Applications--Right of Entry and Operation 
Information
    This addition to North Dakota's rules does not have a Federal 
counterpart. It simply requires the permit applicant to submit 
certified copies of documents showing the right-to-mine or to otherwise 
disturb the surface of lands within the proposed permit area. It is 
more stringent than the Federal rules since the Federal rules have no 
such requirement.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. ND-KK-03), but did not receive any.

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-KK-03). We did not receive any.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Federal Water Pollution Control Act (Clean Water Act) (33 U.S.C. 
1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    We note that none of the proposed changes relate to air or water 
quality standards. Nevertheless, under 30 CFR 732.17(h)(11)(i), OSM 
requested comments on the amendment from EPA (Administrative Record No. 
ND-KK-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

[[Page 76147]]

may have an effect on historic properties. On June 1, 2006, we 
requested comments on North Dakota's amendment (Administrative Record 
No. ND-KK-03), but neither responded to our request.

V. OSM's Decision

    Based on the above findings we approve North Dakota's May 24, 2006, 
amendment.
    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.
    To implement this decision, 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 CFR 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) 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

[[Page 76148]]

regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 22, 2006.
Allen D. Klein,
Director, Western Region.

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

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  Original amendment submission date       Date of final publication              Citation/description
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                                                  * * * * * * *
May 24, 2006..........................  December 20, 2006.............  NDAC 69-05.2-06-03
                                                                        NDAC 69-05.2-10-01
                                                                        NDAC 69-05.2-12-12
                                                                        NDAC 69-05.2-16-09
                                                                        NDAC 69-05.2-22-07
                                                                        NDAC 69-05.2-24-01
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[FR Doc. E6-21716 Filed 12-19-06; 8:45 am]
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