[Federal Register Volume 73, Number 178 (Friday, September 12, 2008)]
[Rules and Regulations]
[Pages 52921-52923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21295]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SATS No: ND-050-FOR; Docket ID No. OSM-2008-0004]


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''). North Dakota 
proposed minor revisions to its rules concerning self-bonding 
requirements, and updating terminology used for describing native 
grasslands, and correcting a cross reference error. North Dakota 
intended to revise its program to clarify ambiguities and improve 
operational efficiency.

DATES: Effective Date: September 12, 2008.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, 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. Office of Surface Mining Reclamation and Enforcement's (OSM) 
Findings
IV. Summary and Disposition of Comments
V. OSM 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, and 934.30.

II. Submission of the Proposed Amendment

    By letter dated March 12, 2008, North Dakota sent us an amendment 
to its program (North Dakota Amendment number XXXVII, SATS No. ND-050-
FOR, Administrative Record No. ND-LL-01) under SMCRA (30 U.S.C. 1201 et 
seq.). North Dakota sent the amendment to include changes made at its 
own initiative.
    We announced receipt of the proposed amendment in the April 18, 
2008, Federal Register (73 FR 21087). 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. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on May 5, 2008. We received a ``no inconsistency 
with this agency's regulations'' comment from the U.S. Department of 
Labor's Mine Safety and Health Administration (MSHA), ``no comments'' 
from the State Historical Society of North Dakota (SHPO), and a ``we 
agree'' comment from the North Dakota State University Extension 
Service (NDSU Extension Service).

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

    1. North Dakota proposed a cross-reference change under its 
previously approved permit approval criteria Rule NDAC 69-05.2-10-03. 
The cross-reference is being changed from Section 69-05.2-04-01 to 
Section 69-05.2-04-01.1 and is due to a Rule numbering revision that 
was made several years ago when some new rules were adopted by North 
Dakota.
    2. In NDAC 69-05.2-08-08, (pre-mine land use and vegetation data 
requirements), North Dakota proposed to update the terminology used to 
describe native grasslands to reflect the terminology now used by 
USDA's Natural Resource Conservation Service (NRCS).
    Because these changes are minor, we find that they will not make 
North

[[Page 52922]]

Dakota's rules less effective than the corresponding Federal 
regulations.

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

    Additional language is proposed to North Dakota's coal regulations 
at NDAC 69-05.2-12-05.1 to allow the North Dakota Public Service 
Commission to accept bond ratings from other nationally recognized 
organizations, in addition to Moody's Investors Service and Standard 
and Poor's Corporation, for companies that guarantee self-bonds. A 
mining company requested this change to include credit rating agencies 
that have been defined by the United States Securities and Exchange 
Commission (SEC) as a Nationally Recognized Statistical Rating 
Organization (NRSRO). Such a designation by the SEC is permitted for 
use for certain regulatory purposes. Currently there are several 
NRSROs, and the top three by market share are Moody's Investors 
Service, Standard and Poor's Corporation and Fitch Ratings. The 
proposed rule recognizes the fact that, since the self-bonding rules 
were originally enacted, various other (in addition to the 
aforementioned) rating organizations with strong credentials are now 
available and are being widely used by both business and government. 
The utilization of NRSROs provides for reliance upon SEC's expertise to 
ensure that any ratings agency is not only credible and reliable, but 
utilizes what has become a market-based standard for ratings 
organizations.
    The Federal self-bonding regulations at 30 CFR 800.23(b)(3)(i) 
require that an applicant for a self-bond have a ``current rating for 
its most recent bond issuance of `A' or higher as issued by either 
Moody's Investors Service or Standard and Poor's Corporation.''
    On September 29, 2006, the President signed the Credit Rating 
Agency Reform Act of 2006 into law (Pub. L. 109-291, 16 Stat. 1327). 
The new law authorized the SEC to implement registration, 
recordkeeping, financial reporting and oversight rules with respect to 
NRSROs. On May 23, 2007, the SEC adopted final regulations implementing 
the new law. Prior to adoption of the new rules, the SEC recognized 
seven (7) NRSROs: Moody's Investors Service; Standard and Poor's Rating 
Services; Fitch, Inc.; A.M. Best Co., Inc.; DBRS (Dominion Bond Rating 
Service Limited); Japan Credit Rating Agency, Ltd.; and Rating and 
Investment Information, Inc. On June 28, 2007, the SEC announced that 
those firms would continue to be recognized as NRSROs while the SEC 
processed their registration applications.
    One of the purposes of the Credit Agency Reform Act of 2006 was to 
open up the credit rating industry to competition. Therefore, the 
rationale behind OSM's 1983 rules requiring use of either Moody's or 
Standard and Poor's is no longer valid or appropriate. Accordingly, we 
find that North Dakota's proposed rule change is consistent with the 
Credit Rating Agency Reform Act of 2006 and its implementing 
regulations and that its adoption will not make North Dakota's rules 
less effective than the corresponding Federal regulations at 30 CFR 
800.23(b)(3)(i).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Document ID No. ND-LL-06), and on April 11, 2008 we received a 
comment from the North Dakota State University Extension Service that 
it ``is in full agreement with North Dakota State Program Amendment 
XXXVII from the North Dakota Public Service Commission'' 
(Administrative Record Document ID No. ND-LL-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 North Dakota's program 
(Administrative Record Document ID No. ND-LL-03).
    The Mine Safety and Health Administration (MSHA) of the U.S. 
Department of Labor responded on May 2, 2008, that ``none of the 
changes to the state regulations involve miners'/employees' health and 
safety issues'' and that ``MSHA review has determined that there is no 
inconsistency with this Agency's regulations'' (Administrative Record 
Document ID No. ND-LL-07).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the 
amendment from the EPA (Administrative Record Document ID No. ND-LL-
03). The 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 March 26, 2008, we requested comments on North Dakota's 
amendment (Administrative Record Document ID No. ND-LL-03). The SHPO 
responded on April 3, 2008, that ``we have no comments'' 
(Administrative Record Document ID No. ND-LL-04).

V. OSM's Decision

    Based on the above findings, we approve North Dakota's March 12, 
2008 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 demonstrate that the State has the 
capacity 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

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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 regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 20, 2008.
Allen D. Klein,
Regional 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.


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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 submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
March 12, 2008................  September 12,      NDAC 69-05.2-08-08;
                                 2008.              NDAC 69-05.2-10-03;
                                                    NDAC 69-05.2-12-
                                                    05.1.
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[FR Doc. E8-21295 Filed 9-11-08; 8:45 am]
BILLING CODE 4310-05-P