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North Dakota Regulatory Program

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Information about this document as published in the Federal Register.

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AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is approving 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 proposed revisions to its statutes concerning references to the State Historical Society and the title of the persons who head that agency. North Dakota revised its program to clarify ambiguities.

EFFECTIVE DATE:

November 16, 2001.

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FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Casper Field Office Director, Telephone: 307/261-6550; Internet address: Gpadgett@OSMRE.GOV

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SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director'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 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 the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of this 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, and 934.30.

II. Submission of the Proposed Amendment

By letter dated May 9, 2001, North Dakota sent us an amendment to its program (Amendment number XXXI), administrative record No. ND-FF-01) under SMCRA (30 U.S.C. 1201 et seq.). North Dakota sent the amendment to make changes at its own initiative.

We announced receipt of the proposed amendment in the June 6, 2001 Federal Register (66 FR 30347). 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-FF-04). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on July 5, 2001. We received one comment from the public and two comments from Federal agencies.

III. Director'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.

Minor Revisions to North Dakota Statutes

North Dakota proposed minor wording and editorial changes in its Senate Bill 2424 to the following previously-approved statute:

North Dakota Century Code Section 38-14.1, Surface Mining and Reclamation Operations

Section 4. Amendment. NDCC 38-14.1-10. Necessity of Permit—Exception.

Changes the name of the State Historical Board to the State Historical Society and the name of the superintendent to the director. Changes two “prior tos” to “before.” Changes “Any person or operator may engage in the inventorying and evaluation of cultural resources * * *.” to “A person or operator shall * * *.” A few other minor changes were made.

Section 5. Amendment. NDCC 38-14.1-14.u. Cultural resource information including all of the following:

Changes in five places, “superintendent” to “director.”

Changes in one place, “board” to “society.”

Section 6. Amendment. NDCC 38-14.1-21.2. Approval or modification of the permit or permit revision application.

Changes “board” to “society.”

Changes “shall” to “must.”

Section 7. Amendment. NDCC 38-14.1-30.1. Right to administrative review on rulings.

Changes “board” to “society.” Changes “superintendent” to “director.” Miscellaneous very minor editorial changes.

Section 8. Amendment. NDCC 38-14.1-37.2.d. Collection of cultural resource information.

Changes “board” to “society” and changes “superintendent” to “director.”

Because all of the aforementioned changes are minor, we find that they Start Printed Page 57661will not make North Dakota's statutes less stringent than SMCRA.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment (administrative record No. ND-FF-03) and received one comment letter as a result: a June 15, 2001, letter from the North Dakota State University Extension Service stating that it is in agreement with the proposed amendment.

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-FF-03). Two comment letters from Federal agencies were received.

On May 24, 2001, the Natural Resources Conservation Service sent us a letter (administrative record No. ND-FF-05) stating that it did not have any comments.

On June 12, 2001, the U.S. Fish and Wildlife Service sent a letter (administrative record No. ND-FF-06) stating it does “not anticipate any significant impacts to fish and wildlife resources as a result of the proposed amendment.”

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-FF-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 may have an effect on historic properties. On May 18, 2001, we requested their comments on North Dakota's amendment (administrative record No. ND-FF-03), but neither responded to our request.

V. Director's Decision

Based on the above findings, we approve the amendment sent to us by North Dakota on May 9, 2001.

To implement this decision, we are amending the Federal regulations at 30 CFR part 934.15, 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 rule effective immediately will expedite that process.

VI. Procedural Determinations

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 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart federal regulation.

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 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 (Civil Justice Reform) 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 since each such 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 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. Since 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 has determined 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 that 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. Accordingly, this rule will ensure that existing requirements previously promulgated by OSM will be implemented by the State. 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 Start Printed Page 57662Regulatory 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

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on any local, State, or Tribal governments or private entities.

Start List of Subjects

List of Subjects in 30 CFR Part 934

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Dated: September 12, 2001.

Brent Wahlquist,

Regional Director, Western Regional Coordinating Center.

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For the reasons set out in the preamble,

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PART 934—NORTH DAKOTA

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1. The authority citation for part 934 continues to read as follows:

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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:

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Approval of North Dakota's regulatory program amendments.
* * * * *
Original amendment submission dateDate of final publicationCitation/description
*         *         *         *         *         *         *
May 9, 2001November 16, 2001NDCC 38-14.1
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[FR Doc. 01-28759 Filed 11-15-01; 8:45 am]

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