[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Rules and Regulations]
[Pages 81120-81122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32414]


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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 No. OSM-2009-0013]


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 
proposes revisions to rules and statutes that will 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.

DATES: Effective Date: December 27, 2010

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. 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 November 12, 2009, North Dakota sent us an 
amendment to its program (Amendment number XXXVIII, Administrative 
Record Docket ID: OSM-2009-0013) under SMCRA (30 U.S.C. 1201 et seq.). 
North Dakota submitted the amendment on its own accord. The amendment 
reduces the reclamation liability period on previously mined areas from 
ten full years to five full years. The Federal regulations at 30 CFR 
816.116 provide incentives for eligible remining operations including 
reduced revegetation responsibility periods (2 years in the East and 5 
years in the West).
    Specifically, North Dakota proposes revisions to the North Dakota 
Century Code at Chapter 38-14.1-24(18) (Environmental protection 
performance standards) 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 permit applications 
that include previously mined areas to include additional maps and 
information addressing potential environmental and safety problems that 
might occur at the mining site.
    We announced receipt of the proposed amendment in the February 9, 
2010, Federal Register (Vol. 75, No. 26, FR page number 6330). 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 Docket ID: OSM-2009-0013).
    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 March 11, 2010.

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. Revisions to North Dakota's Rules and Statutes That Have the Same 
Meaning as the Corresponding Provisions of the Federal Regulations and/
or SMCRA

    North Dakota proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding section of 
the Federal regulations. North Dakota Administrative Code (NDAC) 69-
05.2-22-07 (30 CFR 816.116), Performance standards--Revegetation--
Standards for success.
    North Dakota proposes for areas meeting the definition of 
previously mined area to require a five year liability period for 
revegetation success. All other areas in North Dakota have a ten year 
liability period. The Federal regulations at 30 CFR 818.116 allow the 
same five year period.
    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 and we 
approve it.

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

    North Dakota Century Code Chapter (NDCC) 38-14.1-24(18) (SMCRA 
Section 515(20)(B)), Environmental Protection Performance Standards.
    North Dakota proposes to add a definition for ``previously mined 
areas.'' The definition would adopt January 1, 1970, the effective date 
of North Dakota's first reclamation law, as the cut-off eligibility 
date for lands eligible for remining. Previously mined areas are those 
that were mined prior to January 1, 1970. The Federal definition of 
previously mined areas are those mined prior to August 3, 1977, and for 
which investigation reveals, are not reclaimed to the standards of 
SMCRA. Under North Dakota's proposed definition far fewer lands would 
be considered but

[[Page 81121]]

there is no determination as to their condition.
    This date is more restrictive than SMCRA as clarified by the State. 
North Dakota states, ``North Dakota's definition of lands eligible for 
remining will apply to fewer lands as compared to the SMCRA provisions. 
Since North Dakota's first reclamation law went into effect on January 
1, 1970, we will only apply the special performance standard (the 
reduced revegetation liability period) to lands that were mined prior 
to that date. Therefore, for the purposes of remining under the coal 
regulatory program, land must have been mined prior to January 1, 1970, 
and be left in an inadequate reclamation status. Any lands that were 
mined in North Dakota between January 1, 1970, and August 3, 1977, are 
subject to certain reclamation standards as required by the pre-SMCRA 
State reclamation laws and will not be eligible for the reduced 5-year 
revegetation liability period. However, under the SMCRA provisions, the 
special remining standards can be applied to lands that were mined 
prior to August 3, 1977. We consider North Dakota's remining provisions 
to be more stringent than SMCRA since fewer lands are eligible for the 
special performance standards. In North Dakota, lands mined between 
January 1, 1970, and August 3, 1977, that are proposed to be remined or 
re-disturbed will be subject to the 10-year revegetation liability 
period, whereas under SMCRA they could qualify for the 5-year liability 
period.''
    North Dakota's explanation that the special performance standard 
(the 5-year revegetation liability period) will only apply to lands 
that were mined prior to January 1, 1970, but not to those lands mined 
between January 1, 1970, and August 3, 1977, that are proposed to be 
remined or re-disturbed, clarifies which lands qualify for the shorter 
responsibility period under its revised statute at NDCC Chapter 38, 
Section 14.1-24, subsection 18. North Dakota's adoption of the January 
1, 1970, date rather than August 3, 1977, (the effective date of SMCRA) 
renders its definition no less stringent than the Act and we approve 
it.

C. Revisions to North Dakota's Rules With No Corresponding Federal 
Regulation

    NDAC 69-05.2-09-02, Permit applications--Operation plans--Maps and 
plans.
    This addition to North Dakota's rules does not have a Federal 
Counterpart. It requires the permit application under the remining 
provision to include potential environmental and safety hazards that 
could be reasonably anticipated to occur as well as include the 
mitigative measures that will be taken to ensure that the applicable 
reclamation requirements can be met. It is more stringent than the 
Federal rules since the Federal rules have no such requirement and we 
approve it.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Docket ID: OSM-2009-0013), 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 Docket ID: OSM-2009-0013).

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 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)(ii), OSM 
requested comments on the amendment from EPA (Administrative Record 
Docket ID: OSM-2009-0013). 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 November 25, 2009, we requested comments on North 
Dakota's amendment (Administrative Record Docket ID: OSM- 2009-0013), 
but neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve North Dakota's November 12, 
2009, amendment.
    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.

[[Page 81122]]

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) 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 12, 2010.
Allen D. Klein,
Regional Director, Western Region.

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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

* * * * *

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                                            Date of final
  Original amendment submission date         publication                      Citation/description
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                                                  * * * * * * *
November 12, 2009....................  December 27, 2010......  NDCC 38-14.1-24(18).
                                                                NDAC 69-05.2-09-2.
                                                                2NDAC 69-05.2-22-07.
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[FR Doc. 2010-32414 Filed 12-23-10; 8:45 am]
BILLING CODE 4310-05-P