North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SPATS No. ND-039-FOR, Amendment No. XXVIII]

North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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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). North Dakota

proposed revising its statute prescribing who may preside over formal

hearings and informal conferences.

The amendment is intended to revise a North Dakota State statute to

be consistent with its counterpart State regulation.

DATES: Effective date: July 20, 1999.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: 207/261-6550,

Internet address: [email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the North Dakota program. General background information on

the North Dakota program, including the Secretary's findings, the

disposition of comments, and the conditions of approval of the North

Dakota program can be found in the December 15, 1980, Federal Register

(45 FR 82214). Subsequent actions concerning North Dakota's program and

program amendments can be found at 30 CFR 934.15 and 934.16.

II. Proposed Amendment

By letter dated March 31, 1999, North Dakota submitted a proposed

amendment to its program (Amendment number XXVIII, administrative

record No. ND-CC-01) pursuant to SMCRA (30 U.S.C. 1201 et seq.). North

Dakota submitted the proposed amendment at its own initiative. The

provision of the North Dakota Century Code (NDCC) that North Dakota

proposes to revise is: NDCC 38-14.1-30.3.f, concerning formal hearings

on surface coal mining and reclamation permit applications.

We announced receipt of the proposed amendment in the April 15,

1999, Federal Register (64 FR 18586), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. ND-CC-08).

Because no one requested a public hearing or meeting, none was held.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by North Dakota on March 31, 1999, is no less stringent than

SMCRA. Accordingly, the Director approves the proposed amendment.

Substantive Revisions to North Dakota's Statute That Are Substantively

Identical to the Corresponding Provisions of SMCRA

North Dakota proposes revisions to the following statute that are

substantive in nature and contain language that is substantively

identical to the requirements of the corresponding Federal provisions

in SMCRA (listed in parentheses).

NDCC 38-14.1-30.3.f (SMCRA 514(c)), formal hearings on surface

coal mining and reclamation permit applications.

Because this proposed North Dakota statute is substantively

identical to the corresponding pertinent provisions of Subsection

514(c) of SMCRA which deals with who may preside at administrative

hearings or appeals thereof, the Director finds that it is no less

stringent than SMCRA and therefore she approves it.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that we received, and our responses to them.

1. Public Comments

We invited public comments on the proposed amendment, but none was

received.

2. Federal Agency Comments

Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the North Dakota program (administrative record

No. ND-CC-03).

The Natural Resources Conservation Service of the U.S. Department

of Agriculture responded on April 15,

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1999, that it concurred with the changes (administrative record No. ND-

CC-04).

The Bureau of Indian Affairs of the U.S. Department of the Interior

responded on April 24, 1999 that it did not have any objections or

comments that would adversely affect the final review and approval

(administrative record No. ND-CC-05).

The Bureau of Reclamation of the U.S. Department of the Interior

responded on April 28, 1999, that it had no comments on the proposed

amendment (administrative record No. ND-CC-06).

The U.S. Army Corps of Engineers responded on April 29, 1999, that

its review of the proposed project found it to be satisfactory

(administrative record No. ND-CC-07).

The U.S. Fish and Wildlife Service responded on May 11, 1999, that

it did not anticipate any significant impacts to fish and wildlife

resources. . . . (administrative record No. ND-CC-09).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed amendment that relate to air or water quality standards

promulgated 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.)

None of the revisions that North Dakota proposed to make in its

amendment pertain to air or water quality standards. Nevertheless, OSM

requested EPA's concurrence with the proposed amendment on April 9,

1999 (administrative record No. ND-CC-03). EPA did not respond to OSM's

request.

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

ND-CC-03). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above finding, we approve North Dakota's proposed

amendment as submitted on March 31, 1999.

The Federal regulations at 30 CFR Part 934, codifying decisions

concerning the North Dakota program, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12988

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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

4. 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.).

5. 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.

6. Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: July 6, 1999.

Brent Wahlquist,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 934--NORTH DAKOTA

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

follows:

Authority: 30 U.S.C. 1201 et seq.

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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* * * *

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March 31, 1999.............. July 20, 1999....... NDCC 38-14.1-30.3.f.

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[FR Doc. 99-18439 Filed 7-19-99; 8:45 am]

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