North Dakota Regulatory Program, 76145-76148 [E6-21716]
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Rules and Regulations
(ii) Conclusion. The grant made on January
1, 2005, is treated as 100 shares until the
determination date in 2008. The grant made
on March 1, 2005, is not taken into account
until the 2006 determination date and its
present value on that date, along with the
then present value of the grant made on
December 31, 2005, is treated as a number of
shares that are based on the $8 per share
value on the 2006 determination date, with
the resulting number of shares continuing to
apply until the determination date in 2008.
On the January 1, 2008, determination date,
the grant made on the preceding day is taken
into account at its present value of $3,000 on
January 1, 2008 and the $15 per share value
on that date with the resulting number of
shares (200) continuing to apply until the
next determination date. In addition, on the
January 1, 2008, determination date, the
number of shares determined under other
grants made between January 1, 2005 and
December 31, 2007, must be revalued.
Accordingly, the aggregate value of all
nonqualified deferred compensation granted
during that period is determined to be $3750
on January 1, 2008, and the corresponding
number of shares of synthetic equity based
on the $15 per share value is determined to
be 250 shares on the 2008 determination
date, with the resulting aggregate number of
shares (450) continuing to apply until the
determination date in 2011. On the January
1, 2011, determination date, the aggregate
value of all nonqualified deferred
compensation is determined to be $7,600 and
the corresponding number of shares of
synthetic equity based on the $20 per share
value on the 2011 determination date is
determined to be 380 shares (with the
resulting number of shares continuing to
apply until the day before the determination
date in 2014, assuming no further grants are
made).
rwilkins on PROD1PC63 with RULES
(i) Effective dates—(1) Statutory
effective date. (i) Except as otherwise
provided in paragraph (i)(1)(ii) of this
section, section 409(p) applies for plan
years ending after March 14, 2001.
(ii) If an ESOP holding stock in an S
corporation was established on or before
March 14, 2001, and the election under
section 1362(a) with respect to that S
corporation was in effect on March 14,
2001, section 409(p) applies for plan
years beginning on or after January 1,
2005.
(2) Regulatory effective date. This
section applies for plan years beginning
on or after January 1, 2006. For plan
years beginning before January 1, 2006,
§ 1.409(p)–1T (as it appeared in the
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April 1, 2005, edition of 26 CFR part 1)
applies.
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
Approved: November 30, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury (Tax Policy).
[FR Doc. E6–21669 Filed 12–19–06; 8:45 am]
BILLING CODE 4830–01–P
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 934
[SATS No. ND–049–FOR, Amendment No.
XXXVI]
North Dakota Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
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: JFleischman@osmre.gov.
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
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Fmt 4700
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
DEPARTMENT OF THE INTERIOR
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Sfmt 4700
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.
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Rules and Regulations
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.
rwilkins on PROD1PC63 with RULES
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.
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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.
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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
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Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Rules and Regulations
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.
rwilkins on PROD1PC63 with RULES
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
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76147
and whether the other requirements of
30 CFR parts 730, 731, and 732 have
been met.
the meaning of section 102(2)(C) of the
National Environmental Policy Act (42
U.S.C. 4332(2)(C) et seq.).
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.
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.).
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
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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
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76148
Federal Register / Vol. 71, No. 244 / Wednesday, December 20, 2006 / Rules and Regulations
regulation did not impose an unfunded
mandate.
Dated: November 22, 2006.
Allen D. Klein,
Director, Western Region.
Authority: 30 U.S.C. 1201 et seq.
I
For the reasons set out in the
preamble, 30 CFR part 934 is amended
as set forth below:
§ 934.15 Approval of North Dakota
regulatory program amendments
1. The authority citation for part 934
continues to read as follows:
Intergovernmental relations, Surface
mining, Underground mining.
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:
PART 934—NORTH DAKOTA
List of Subjects in 30 CFR Part 934
*
I
I
*
*
*
Original amendment submission date
Date of final publication
*
*
*
May 24, 2006 ......................................................................
*
*
*
December 20, 2006 ...........................................................
[FR Doc. E6–21716 Filed 12–19–06; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF THE TREASURY
Monetary Offices
31 CFR Part 82
Prohibition on the Exportation,
Melting, or Treatment of 5-Cent and
One-Cent Coins
United States Mint, Treasury.
Interim rule with request for
comments.
AGENCY:
ACTION:
To protect the coinage of the
United States, this interim rule prohibits
the exportation, melting, and treatment
of 5-cent and one-cent coins. This
interim rule is issued pursuant to 31
U.S.C. 5111(d), which authorizes the
Secretary of the Treasury to prohibit or
limit the exportation, melting, or
treatment of United States coins when
the Secretary decides the prohibition or
limitation is necessary to protect the
coinage of the United States. This
interim rule is effective until April 14,
2007. The public is invited to comment
until January 14, 2007. Thereafter, but
prior to April 14, 2007, the Department
of the Treasury will reevaluate the need
for the rule in light of the public
comments, and other relevant factors.
Upon consideration of the public
comments and other relevant factors,
the Department of the Treasury may
issue a final rule extending or modifying
rwilkins on PROD1PC63 with RULES
SUMMARY:
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21:50 Dec 19, 2006
Jkt 211001
the provisions of this interim rule, or
may allow the interim rule to expire
without extension.
DATES: Effective Date: This interim rule
is effective December 20, 2006 through
April 14, 2007.
Expiration Date: Unless extended by a
further rulemaking document published
in the Federal Register, this interim rule
expires April 14, 2007.
Comment Due Date: January 19, 2007.
ADDRESSES: Send written comments to
Daniel P. Shaver, Chief Counsel, Office
of Chief Counsel, United States Mint,
801 9th Street, NW., Washington DC
20220.
FOR FURTHER INFORMATION CONTACT:
Kristie Bowers, Attorney-Advisor,
United States Mint at (202) 354–7631
(not a toll-free call).
SUPPLEMENTARY INFORMATION:
I. Background
Section 5111(d) of title 31, United
States Code, authorizes the Secretary of
the Treasury to prohibit or limit the
exportation, melting, or treatment of
United States coins when the Secretary
decides the prohibition or limitation is
necessary to protect the coinage of the
United States. In enacting 31 U.S.C.
5111(d), Congress has conferred upon
the Secretary of the Treasury broad
discretion to ensure that he can
effectively carry out his statutory duties
to protect the Nation’s coinage and to
ensure that sufficient quantities of coins
are in circulation to meet the needs of
the United States. Pursuant to this
authority, the Secretary of the Treasury
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*
Citation/description
NDAC
NDAC
NDAC
NDAC
NDAC
NDAC
*
69–05.2–06–03
69–05.2–10–01
69–05.2–12–12
69–05.2–16–09
69–05.2–22–07
69–05.2–24–01
has determined that, to protect the
coinage of the United States, it is
necessary to generally prohibit the
exportation, melting, or treatment of 5cent and one-cent coins minted and
issued by the United States. The
Secretary has made this determination
because the values of the metal contents
of 5-cent and one-cent coins are in
excess of their respective face values,
raising the likelihood that these coins
will be the subject of recycling and
speculation. In fact, the Department has
received anecdotal reports suggesting
that this activity may already be
occurring. The prohibitions contained
in this interim rule apply only to 5-cent
and one-cent coins.
The primary reason for limiting the
melting, exportation, and treatment of 5cent and one-cent coins is to avoid a
shortage of these coins in circulation.
Under 31 U.S.C. 5111(a)(1), the core
responsibility of the Secretary of the
Treasury with respect to the Nation’s
coinage is to ‘‘mint and issue coins
* * * in amounts the Secretary decides
are necessary to meet the needs of the
United States.’’ In meeting the needs for
low-value circulating coin
denominations, the United States Mint
estimates that it augments and
replenishes only about four percent of
the Nation’s 5-cent coin supply, and
only about eight percent of the one-cent
coin supply, each year. Accordingly, the
extraction of even relatively small
amounts of these coins from circulation
could have a significant impact on the
United States Mint’s ability to produce
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]]>Agencies
[Federal Register Volume 71, Number 244 (Wednesday, December 20, 2006)]
[Rules and Regulations]
[Pages 76145-76148]
From the Federal Register Online via the Government Printing 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: JFleischman@osmre.gov.
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
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[FR Doc. E6-21716 Filed 12-19-06; 8:45 am]
BILLING CODE 4310-05-P
