[Federal Register Volume 70, Number 227 (Monday, November 28, 2005)]
[Rules and Regulations]
[Pages 71240-71242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23324]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[ND-048-FOR, Amendment No. XXXV]
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 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 its statute which reduce notice
requirements associated with bond release applications. North Dakota
intends to revise its program to improve operational efficiency.
EFFECTIVE DATE: November 28, 2005.
FOR FURTHER INFORMATION CONTACT: Acting Field Office Director Frank
Atencio, 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 934.15, 934.16, and 934.30.
II. Submission of the Proposed Amendment
By letter dated April 20, 2005, North Dakota sent us an amendment
to its program (amendment number XXXV, Administrative Record No. ND-JJ-
01) under SMCRA (30 U.S.C. 1201 et seq.). The amendment includes
changes made at the State's initiative. The provisions of its North
Dakota Century Code (NDCC) that North Dakota proposed to revise are
NDCC 38-14.1-17.1.a and b, Release of performance bond `` Schedule--
Notification--Public hearing.
We announced receipt of the proposed amendment in the July 5, 2005,
Federal Register (70 FR 38639), Administrative Record No. ND-JJ-07. 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 August 4, 2005. We
received one comment from the North Dakota State University.
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 Statute
North Dakota proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved statute: NDCC 38-14.1-17.1.a and b.
Because these changes are minor, we find that they will not make
North Dakota's statute less stringent than SMCRA.
B. Revisions to North Dakota's Statute That Have the Same Meaning as
the Corresponding Provisions of SMCRA
The following revisions to the NDCC proposed by North Dakota
contain language that is the same as or similar to the corresponding
sections of SMCRA.
NDCC 38-14.1-17.1.a and b (SMCRA 519(a)), [Release of performance
bond-Schedule-Notification-Public hearing]
The first change deletes the requirement that the permittee publish
newspaper notices in daily newspapers of general circulation in the
mine's locality. However, the permittee is still required to publish
bond release
[[Page 71241]]
notices, once a week for four consecutive weeks, in the official county
newspaper where the bond release tract is located. SMCRA requires that
the bond release notice be published in a newspaper of general
circulation in the locality of the mine. The publication of the notice
in the official county newspaper where the bond release is located is
consistent with that provision.
The second change in this amendment deletes the language that
requires the permittee to send bond release notices to subsurface
owners of tracts proposed for bond release. Mining companies will still
be required to send bond release notices to surface owners of the bond
release tract and the adjoining property owners. This is consistent
with the Federal counterpart in SMCRA that requires applicants to
submit as part of any bond release application copies of letters which
the applicant has sent to adjoining landowners and others in the
locality in which the mining took place notifying such entities of the
applicant's intention to seek bond release.
Because this North Dakota statute change contains language that is
the same as or similar to SMCRA, we find that it is no less stringent
than SMCRA.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. ND-JJ-03). North Dakota State University replied on May 18,
2005, that it agreed with the amendment (Amendment Record No. ND-JJ-
04).
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-JJ-03). Two Federal agencies (U.S.
Natural Resources Conservation Service and U.S. Geological Survey) sent
us letters (May 23, 2005 and June 7, 2005, respectively) stating that
they had no comments.
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 (33 U.S.C. 1251 et seq.) or the
Clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that North Dakota proposed to make in this
amendment pertains to air or water quality standards. Therefore, we did
not ask EPA to concur on the amendment.
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 April 25, 2005, we requested comments on North Dakota's
amendment (Administrative Record No. ND-JJ-03), but neither SHPO or
ACHP responded to our request.
V. OSM's Decision
Based on the above findings, we approve North Dakota's April 20,
2005, 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.
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.
[[Page 71242]]
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; 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.
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: September 29, 2005.
Allen D. Klein,
Regional Director, Western Regional.
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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
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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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Original amendment Date of final
submission date publication Citation/description
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* * * * * * *
April 20, 2005.............. November 28, 2005... NDCC 38-14.1-17.1.a
and 2005b.
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[FR Doc. 05-23324 Filed 11-25-05; 8:45 am]
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