Permanent program and abandoned mine land reclamation plan submissions: North Dakota,

[Federal Register: January 20, 2004 (Volume 69, Number 12)]

[Rules and Regulations]

[Page 2663-2666]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr20ja04-7]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-047-FOR, Amendment No. XXXIV]

North Dakota Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

SUMMARY: We are approving a proposed 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 revisions to rules that would allow the State to accept letters of credit as the monetary pledge for collateral bonds, would allow phased bonding over a bond area, would clarify provisions on blasting records kept by mining companies, and would standardize terminology in revegetation success standards for bond release. North Dakota intends to revise its program to provide additional safeguards, clarify ambiguities, and improve operational efficiency.

EFFECTIVE DATE: January 20, 2004.

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FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 307/261-6550, Internet address: GPadgett@osmre.gov.

SUPPLEMENTARY INFORMATION:

1. 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

1. 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.

2. Submission of the Proposed Amendment

   By letter dated April 23, 2003, North Dakota sent us an amendment to its program (Amendment number XXXIV, Administrative Record No. ND- II-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: (1) NDAC 69-05.2-01-02 (Definitions) to add irrevocable letters of credit as one of the financial supports for a collateral bond; (2) NDAC 69-05.2-12-01 (Performance bond--General requirements) to allow the posting of more than one bond to guarantee specific phases of reclamation within the permit area; (3) NDAC 69- 05.2-12-04 (Performance bond--Collateral bond) to specify that: (a) The permittee obtain prior North Dakota Public Service (Commission) approval of the bank that will issue the letter of credit, (b) the term of the letter of credit must be at least one year, (c) the bank issuing the credit must give the Commission at least 90 days notice if it intends to terminate the letter of credit at the end of the current term, (d) the Commission will not accept letters of credit in excess of 10 percent of the bank's total equity, and (e) the bank must provide the Commission with notice of any pending action that could result in suspension or revocation of the bank's charter or license to do business; (4) NDAC 69-05.2-17-07 to make a minor editorial change to clarify that other structures (as well as dwellings, schools, churches, and commercial and institutional buildings) may be protected from certain blasting operations; and (5) NDAC 69-05-22-07, minor editorial changes to North Dakota's revegetation success standards that clarify that the standards can be exceeded, as well as met, for demonstrating reclamation success.

   We announced receipt of the proposed amendment in the July 7, 2003, Federal Register (68 FR 40225). 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- II-07).

   The public comment period ended on August 6, 2003. We received comments from one Federal agency, one university and one State society. No one requested a public meeting or hearing, therefore we did not conduct one.

3. 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.

   1. Minor Revisions to North Dakota's Rules

      North Dakota proposed minor wording changes to the following previously-approved rules.

      1. NDAC 69-05.2-17-07. Performance standards--Use of Explosives-- Records of blasting operations [30 CFR 816.68] 2. NDAC 69-05.2-22-07. Performance standards--Revegetation--Standards for success [30 CFR 816.116]

      Because the above changes are both minor, we find that they will not make North Dakota's rules less effective than the corresponding Federal regulations.

   2. Revisions to North Dakota's Rules That Have the Same Meaning as the Corresponding Provisions of the Federal Regulations

      North Dakota proposed revisions to the following rules containing language that is the same as or similar to the corresponding sections of the Federal regulations.

      1. NDAC 69-05.2-01-02.13, Definitions (Collateral bond) [30 CFR 800.5] 2. NDAC 69-05.2-12-01.11, Performance Bond--General Requirements [30 CFR 800.13(a)(2)] 3. NDAC 69-05.2-12-04.2, Performance bond--Collateral bond [30 CFR 800.21(b) and 800.16.(e)]

      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.

4. Summary and Disposition of Comments

   Public Comments

   We asked for public comments on the amendment (Administrative Record No. ND-II-03), and one university replied. Duane Hauck, Assistant Director of Agriculture and Natural Resources, wrote in his May 20, 2003, letter, that ``The NDSU Extension Service has no additional comments''' (Administrative Record No. ND-II-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 the North Dakota program (Administrative Record No. ND-II-03).

   Ray McKinney of the Mine Safety and Health Administration replied on June 9, 2003, that ``none of the changes have a direct impact upon employee or public health or safety and, consequently, MSHA has no comments or recommendations concerning the changes.'' (Administrative Record No. ND-II-06).

   Environmental Protection Agency (EPA) Concurrence and Comments

   Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. ND-II-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

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   SHPO and ACHP on amendments that may have an effect on historic properties. On May 5, 2003, we requested comments on North Dakota's amendment (Administrative Record No. ND-II-03), but ACHP did not respond to our request. The SHPO responded on May 14, 2003, that ``We have no comments on the document.'' (Administrative Record No. ND-II- 04).

5. OSM's Decision

   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. We approve: (1) NDAC 69-05.2-01- 02.13, Definition of Collateral Bond; (2) NDAC 69-05.2-12-01.11, Performance Bond--General Requirements; (3) NDAC 69-05.2-12-04.2, Performance Bond--Collateral Bond; (4) NDAC 69-05.2-17-07, Performance standards--Use of Explosives--Records of Blasting Operations; and (5) NDAC 69-05.2-22-07, Performance standards--Revegetation--Standards for success.

   To implement the decision to approve the rules, 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.

6. 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 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)).

   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. 3507 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), 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; and (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.

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   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 12, 2003. Allen D. Klein, Regional Director, Western Regional Coordinating Center.

   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

   * * * * *

   Original amendment Date of submission final

   Citation/description date publication

   * * * * * 4-23-03 1-20-04 NDAC 69-05.2-01-02.13, NDAC 69-05.2-12-01.11, NDAC 69-05.2-12-04.2, NDAC 69-05.2-17-07, NDAC 69-05.2-22-07.

   [FR Doc. 04-1064 Filed 1-16-04; 8:45 am]

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