[Federal Register Volume 71, Number 244 (Wednesday, December 20, 2006)]
[Rules and Regulations]
[Pages 76145-76148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-21716]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[SATS No. ND-049-FOR, Amendment No. XXXVI]
North Dakota Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
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).
DATES: Effective Date: December 20, 2006.
FOR FURTHER INFORMATION CONTACT: Jeff Fleischman, 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 934.10, 934.12, 934.13, 934.15
and 934.30.
II. Submission of the Proposed Amendment
By letter dated May 24, 2006, North Dakota sent us an amendment to
its program (Amendment number XXXVI, Administrative Record No. ND-KK-
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: Rules about data requirements for proving
reclamation success, and adding new language to revegetation success
standards on the counting of volunteer trees and shrubs. Other changes
are minor, including provisions that relate to lease documents in
mining permits; newspaper notices for permit applications; copies of
advertisements and other information needed for bond release
applications; clarifying inspection requirements for sedimentation
ponds and other impoundments; and correcting a cross reference error in
a rule on roads. With these minor changes, North Dakota proposes to
revise its program to improve operational efficiency. Specifically,
North Dakota proposes to:
Add language to NDAC 69-05.2-06-03 (right-of-entry requirements) to
allow a permittee to delete coal leases from the permit when mining on
a tract covered by a lease is completed and the lease is no longer
needed to show a right-of-entry. However, if the coal lease no longer
provides the surface right of entry, other documents granting the
permittee the right of entry must be added to the permit.
Delete language to NDAC 69-05.2-10-01 that required the newspaper
notice for permit applications include a reference to the U.S.
Geological Survey map that contains the area; and add language that
limits the listing of coal owners in the notice to those that will be
affected by the mining activities.
Revise the bond release application requirements in North Dakota's
coal rules at NDAC 69-05.2-12-12 to require the filing of a copy of the
newspaper advertisement instead of requiring the submittal of
affidavits of publication.
[[Page 76146]]
Revise sedimentation pond inspection requirements in North Dakota's
coal rules at NDAC 69-05.2-16-09 to make a better distinction between
inspections that must be conducted while a pond is being constructed
versus annual inspection reports that must be prepared by a registered
professional engineer.
Revise revegetation success standards at NDAC 69-05.2-22-07 to
allow data collected from native grassland, tame pastureland and
cropland in any two years after year six of the ten-year revegetation
liability period to be used for final bond release purposes. In
addition, only one year of vegetation data would be needed to prove
reclamation success on reclaimed woodlands, shelterbelts, and fish and
wildlife habitat. New language was also proposed for woodland and
shelterbelt standards that addresses the replanting of trees and shrubs
during the liability period and to allow certain volunteer trees and
shrubs to count towards meeting the revegetation standards. Finally,
the North Dakota alternative to meeting the revegetation success
standards for the last two consecutive growing seasons of the
responsibility period was abolished.
Revise the coal rules to correct a reference to the road
performance standards at NDAC 69-05.2-24-01.
We announced receipt of the proposed amendment in the July 31,
2006, Federal Register (71 FR 43085). 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-KK-04).
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 August 30, 2006.
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. Minor Revisions to North Dakota's Rules
North Dakota proposed minor changes to the following previously-
approved rules:
NDAC 69-05.2-24-01, Performance Standards--Roads--General
requirements.
NDAC 69-05.2-10-01(3) and (4), Permit applications--public notices
of filing.
Because these changes are minor, we find that they will not make
North Dakota's coal rules less effective than the corresponding Federal
regulations.
B. Revisions to North Dakota's Rules Containing Language That Is the
Same as or Similar to Corresponding Provisions of the Federal
Regulations
North Dakota proposed revisions to the following rule containing
language that is the same as or similar to the corresponding sections
of the Federal regulations.
NDAC 69-05.2-22-07 (30 CFR 817.116), Revegetation--Standards for
Success.
Because this proposed rule contains language that is the same as or
similar to the corresponding Federal regulations, we find it is no less
effective than the corresponding Federal regulations.
C. Revisions to North Dakota's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. NDAC 69-05.2-16-09.(19). Performance Standards--Hydrologic Balance--
Sedimentation Ponds--Inspections
The proposed changes to North Dakota's rules on impoundment
inspections are being made to clarify the inspection requirements that
apply when ponds are being constructed, the requirements for
certification by a registered professional engineer following
construction, and the requirements for inspections by a registered
professional engineer.
Because North Dakota's proposed rule is nearly identical and
substantively similar to the corresponding Federal regulations at 30
CFR 816.49(a)(11)(ii) we find that it is no less effective than the
corresponding Federal regulation.
2. NDAC 69-05.2-12-12. Release of Performance Bond--Bond Release
Application
North Dakota proposed two changes to this rule involving bond
release. The first involves the requirement to submit ``proof of
publication'' of the announcement of the application for bond release.
Instead, North Dakota proposes that permittees will be required to
submit a ``copy of the newspaper advertisement that was published.''
This change is no less effective than the Federal rule at 30 CFR
800.40(a)(2) which requires submission of a copy of the newspaper
advertisement within 30 days after an application for bond release has
been filed with the regulatory authority.
The second change to this rule is a simple cross-reference to
another North Dakota provision that enumerates the additional
information that permittees must include in their application when a
premine water delivery system will not be replaced. This provision is
not found in the Federal rules but is consistent with them.
D. Revisions to North Dakota's Rules With No Corresponding Federal
Regulations
NDAC 69-05.2-06-03. Permit Applications--Right of Entry and Operation
Information
This addition to North Dakota's rules does not have a Federal
counterpart. It simply requires the permit applicant to submit
certified copies of documents showing the right-to-mine or to otherwise
disturb the surface of lands within the proposed permit area. It is
more stringent than the Federal rules since the Federal rules have no
such requirement.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record No. ND-KK-03), 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 No. ND-KK-03). We did not receive any.
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 (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)(i), OSM
requested comments on the amendment from EPA (Administrative Record No.
ND-KK-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 SHPO and ACHP on amendments that
[[Page 76147]]
may have an effect on historic properties. On June 1, 2006, we
requested comments on North Dakota's amendment (Administrative Record
No. ND-KK-03), but neither responded to our request.
V. OSM's Decision
Based on the above findings we approve North Dakota's May 24, 2006,
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 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.
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
[[Page 76148]]
regulation did not impose an unfunded mandate.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 22, 2006.
Allen D. Klein,
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.
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 submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
May 24, 2006.......................... December 20, 2006............. NDAC 69-05.2-06-03
NDAC 69-05.2-10-01
NDAC 69-05.2-12-12
NDAC 69-05.2-16-09
NDAC 69-05.2-22-07
NDAC 69-05.2-24-01
----------------------------------------------------------------------------------------------------------------
[FR Doc. E6-21716 Filed 12-19-06; 8:45 am]
BILLING CODE 4310-05-P