[Federal Register Volume 75, Number 26 (Tuesday, February 9, 2010)]
[Proposed Rules]
[Pages 6330-6332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2765]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SATS No. ND-051-FOR; Docket ID: OSM-2009-0013]


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 rules and statutes 
that would allow the revegetation responsibility period to be reduced 
from ten years to five years for lands eligible for remining. North 
Dakota intends to revise its program to be consistent with the 
corresponding Federal regulations and to 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.s.t. March 11, 2010. If requested, we will hold a public hearing on 
the amendment on March 8, 2010. We will accept requests to speak until 
4 p.m., m.s.t. on February 24, 2010.

ADDRESSES: You may submit comments by either of the following two 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
OSM is listed as Surface Mining Reclamation and Enforcement. Follow the 
instructions for submitting comments.
     Mail/Hand Delivery/Courier: Jim Fulton, Director, Denver 
Field Division, Office of Surface Mining Reclamation and Enforcement, 
1999 Broadway, Suite 3320, Denver, CO 80202.
    Instructions: All submissions received must include the agency name 
and ND-051-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: In addition to viewing the docket and obtaining copies of 
documents at http://

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www.regulations.gov, you may review copies of the North Dakota program, 
this amendment, a listing of any 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 also receive one free copy of the amendment by 
contacting OSM's Casper Field Office.

Jeffrey Fleischman, Field Office Director, Casper Field Office, Office 
of Surface Mining Reclamation and Enforcement, 150 East B Street, Room 
1018, Casper, Wyoming 82604-1018, 307-261-6552, [email protected].
James Deutsch, Director, Reclamation Division, Public Service 
Commission, 600 E. Boulevard Ave., Dept. 408, Bismarck, North Dakota 
58505-0480, 701-328-2400, 1-877-245-6685, [email protected], http://www.nd.gov/psc.

FOR FURTHER INFORMATION CONTACT: Jeffery Fleischman, Field Office 
Director, Casper Field Office, Office of Surface Mining Reclamation and 
Enforcement, 150 East B Street, Room 1018, Casper, Wyoming 82604-1018, 
307-261-6552, [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, 934.16, and 934.30.

II. Description of the Proposed Amendment

    By letter dated November 12, 2009, North Dakota sent us a proposed 
amendment to its regulatory program approved under SMCRA (30 U.S.C. 
1201 et seq.). The proposed amendment has been assigned Administrative 
Record Docket ID: OSM-2009-0013. North Dakota sent the amendment in as 
a result of amendments made to SMCRA in December 2006, and revisions 
made to OSM's regulations on November 14, 2008, at 73 FR 67576. The 
2006 amendments and the OSM regulatory revisions removed the expiration 
date for remining incentives initially authorized on October 24, 1992, 
and codified at sections 510(e) and 515(b)(20)(B) of SMCRA. Those 
sections provided incentives for eligible remining operations including 
a reduced revegetation responsibility periods (2 years in the East and 
5 years in the West). However, those remining incentives had a 
statutorily defined expiration date of September 30, 2004. See 30 
U.S.C. 1260(e) and 1265(b)(20)(B) (1993).
    Specifically, North Dakota proposes revisions to the North Dakota 
Century Code at Chapter 38-14.1-24(18) (Environmental protection 
performance standards); 38-14.2-14(2), and to the North Dakota 
Administrative Code at Article 69-05.2-09-02(14) (Permit applications--
operation plans--maps and plans) and Article 69-05.2-22-07(2) and 
(4)(i) (Performance standards--Revegetation--Standards for success).
    North Dakota proposes to reduce the reclamation liability period on 
previously mined areas from ten years to five years. This change will 
apply to the North Dakota Century Code as well as the North Dakota 
Administrative Code. North Dakota defines previously mined areas as 
``lands that were affected by coal mining activities prior to January 
1, 1970.'' North Dakota also proposes to require remining permits to 
include additional maps and information addressing potential 
environmental and safety problems related to prior mining activities 
that might be reasonably anticipated to occur at the mining site.

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.

Electronic or Written Comments

    If you submit written comments, they should be specific, confined 
to issues pertinent to the proposed regulations, and explain the reason 
for any recommended change(s). We appreciate any and all comments, but 
those most useful and likely to influence decisions on the final 
regulations will be those that either involve personal experience or 
include citations to and analyses of SMCRA, its legislative history, 
its implementing regulations, case law, other pertinent State or 
Federal laws or regulations, technical literature, or other relevant 
publications.
    We cannot ensure that comments received after the close of the 
comment period (see DATES) or sent to an address other than those 
listed (see ADDRESSES) will be included in the docket for this 
rulemaking and considered.

Public Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available in the electronic docket 
for this rulemaking at http://www.regulations.gov. While you can ask us 
in your comment to withhold your personal identifying information from 
public review, we cannot guarantee that we will be able to do so.

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 
February 24, 2010. If you are disabled and need reasonable 
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. If 
only one person expresses an interest, a public meeting rather than a 
hearing may be held, with the results included in the docket for this 
rulemaking.
    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

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scheduled. We will end the hearing after everyone scheduled to speak 
and others present in the audience who wish to speak, have been heard.

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 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: December 15, 2009.
Richard M. Holbrook,
Acting Director, Western Region.
[FR Doc. 2010-2765 Filed 2-8-10; 8:45 am]
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