North Dakota Regulatory Program, 20264-20270 [2019-09559]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 84, Number 90 (Thursday, May 9, 2019)]
[Rules and Regulations]
[Pages 20264-20270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-09559]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SATS No. ND-054-FOR; Docket ID: OSM-2016-0009; S1D1S SS08011000 
SX064A000 178S180110; S2D2S SS08011000 SX064A000 17XS501520]


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, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving an amendment to the North Dakota regulatory 
program (North Dakota program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). This amendment, proposed by 
North Dakota, makes numerous rule changes to the North Dakota 
Administrative Code for surface coal mining and reclamation operations 
based on statutory changes that were made during North Dakota's 2015 
Legislative Session. The statutory changes added a definition of 
``commercial leonardite'' (oxidized lignite) and excluded commercial 
leonardite from the statutory definition of ``coal.'' The statutory 
changes also added the phrase ``and commercial leonardite'' and ``or 
commercial leonardite'' to many other sections of North Dakota's 
reclamation statute. The statutory changes necessitated a number of 
similarly related changes to North Dakota's administrative rules. 
Finally, some of North Dakota's proposed rule revisions include minor 
non-substantive grammatical, codification, and statutory citation 
cross-reference changes. North Dakota's revisions are intended to 
improve operational efficiency. OSMRE does not have any corresponding 
statutes or regulations about leonardite, and the changes are 
consistent with OSMRE policy about leonardite. As such, North Dakota's 
proposed statutory and regulatory changes add specificity about the 
regulation of leonardite beyond that contained in SMCRA and the Federal 
regulations, and we are approving them. OSMRE's approval of North 
Dakota's proposed statutory and regulatory changes are solely for 
purposes of complying with SMCRA and may not be viewed as waiving any 
property interests that the United States may have in leonardite 
deposits that are part of the federal coal estate in certain lands in 
North Dakota.

DATES: The effective date is June 10, 2019.

FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver 
Field Division, Telephone: 307-261-6550, Email address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Program
II. Submission of the Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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, State laws and 
regulations that govern surface coal mining and reclamation operations 
in accordance with the Act and consistent with the Federal regulations. 
On the basis of these criteria, the Secretary of

[[Page 20265]]

the Interior conditionally approved the North Dakota program effective 
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 of the North Dakota program 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 934.12, 934.13, 934.15, 943.16, and 934.30.

II. Submission of the Amendment

    By letter dated May 19, 2016 (Administrative Record No. ND-PP-01), 
North Dakota sent OSMRE an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). North Dakota sent the amendment at its own 
initiative to include numerous rule changes to North Dakota 
Administrative Code (NDAC) Title 69 Article 5.2 related to Surface Coal 
Mining And Reclamation Operations based on statutory changes to the 
North Dakota Century Code (NDCC) Chapters 38-12.1 (Exploration Data), 
and 38-14.1 (Surface Mining and Reclamation Operations), and 38-18 
(Surface Owners Protection Act) that were made by Senate Bill No. 2377 
(SB 2377) during North Dakota's 2015 Legislation Session. The statutory 
changes added a definition of ``commercial leonardite'' (oxidized 
lignite) and excluded commercial leonardite from the statutory 
definitions of ``coal'' in NDCC sections 38-12.1 and 38-14.1, while 
ensuring the mining of leonardite remains subject to the same 
permitting and reclamation requirements as coal. The statutory changes 
also added the phrases ``and commercial leonardite'' and ``or 
commercial leonardite'' to many other sections of the reclamation 
statute as appropriate. Similarly, the proposed administrative rule 
changes primarily consist of adding the phrases ``and commercial 
leonardite'' and ``or commercial leonardite'' immediately after the 
word ``coal'' when it is not part of a definition or other phrase that 
does not otherwise include ``commercial leonardite.''
    We announced receipt of the proposed amendment in the March 31, 
2017, Federal Register (82 FR 16009). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment (Administrative 
Record Document ID No. OSM-2016-0009-0001). We did not hold a public 
hearing or meeting, as neither were requested. The public comment 
period ended on May 1, 2017. OSMRE did not receive any comments.

III. OSMRE's Findings

    The 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 under SMCRA as described below.

A. History and Purpose of North Dakota's Amendment

    ``Leonardite is a coal-like substance, similar in structure and 
composition to lignitic coal and believed to be derived from lignitic 
coal by the process of natural oxidation. The higher oxygen content and 
less compact structure of leonardite, compared with lignite, make it 
undesirable as a fuel but indicate that it has potential as a source 
for chemicals and for other nonfuel uses'' (Fowkes, W.W., Frost, C.M., 
``Leonardite: A Lignite Byproduct.'' Bureau of Mines, Report of 
Investigations, 5611, 1960, p. 2). It is also characterized as an 
oxidized lignite, a slack lignite or lignite waste. The value of 
leonardite is its content of greater than 8 humic acid. It is used in 
agriculture as a soil amendment and fertilizer, in the filtration of 
organics and metals from waste water, in the oil drilling industry as a 
thinner or buffer for drilling mud, and as a green sands additive for 
foundry casing.
    In 1982, OSMRE issued a decision that leonardite is not ``coal'' 
under SMCRA, as defined in 30 CFR 700.5, and thus would not be subject 
to regulation or oversight under SMCRA when mined as a separate and 
distinct mineral deposit. OSMRE also explained that leonardite would 
not be regulated under SMCRA if the extraction of lignite is incidental 
to the extraction of leonardite or other minerals and the lignite 
extracted does not exceed 16\2/3\ per centum of the minerals removed 
for purposes of commercial use or sale, under the provisions of section 
701(28)(A) of SMCRA (30 U.S.C. 1291). See December 14, 1982, letter 
from OSMRE to the North Dakota Public Service Commission 
(Administrative Record No. ND-Q-17). OSMRE took the position that, for 
SMCRA purposes, leonardite is considered to be an industrial mineral 
occurring in or near lignite deposits. As long as leonardite is not 
produced in conjunction with a lignite mining operation and therefore 
mined as a separate and distinct mineral deposit, it will not be within 
the purview of SMCRA. OSMRE's position was based upon a technical 
determination that the material in question, although related to 
lignite, does not meet the definition of coal, and is similar to the 
production of montan wax associated with lignite in California. 
Moreover, 30 CFR part 702 provides an exemption for coal extraction 
incidental to the extraction of other minerals. The definition of 
``other minerals'' in 30 CFR 702.5(e) expressly provides that the term 
``means any commercially valuable substance mined for its mineral 
value, excluding coal, topsoil, waste and fill material.'' The 
legislative history of the incidental extraction exemption in section 
701(28)(A) of SMCRA (30 U.S.C. 1291) indicates that Congress intended 
for the exemption ``to exclude operations, such as limestone quarries, 
where coal is found but is not the mineral being sought.'' SEN. REPT. 
NO. 28, 94th Cong., 1st Sess. 98 (1975). OSMRE reaffirmed its position 
that leonardite is not coal, for purposes of SMCRA, in a July 22, 1994, 
Federal Register document (59 FR 37423, 37426).
    North Dakota considers leonardite to be an industrial mineral or 
non-coal resource; however, in its discretion, North Dakota has been 
permitting and regulating leonardite in much the same way as 
combustible coal is permitted and regulated. North Dakota has 
historically regulated leonardite mining in a lawful and 
environmentally responsible manner without a requirement under SMCRA, 
but in a manner similar to the way it would be regulated under SMCRA if 
it were not exempt as a separate and distinct mineral deposit.
    While OSMRE does not regulate the mining of leonardite when it 
occurs as a separate and distinct mineral deposit, North Dakota's 
statutory definition of ``coal'' was originally written in a manner to 
specifically include it in all instances. However, due to a recent 
issue with the mining and leasing of leonardite as a separate and 
distinct deposit, North Dakota's Legislature approved statutory changes 
to exclude commercial leonardite from its definitions of ``coal'' in 
NDCC sections 38-12.1 and 38-14.1, while ensuring that the mining of 
leonardite remains subject to the same permitting and reclamation 
requirements as coal. In addition, the North Dakota legislature also 
developed a new definition of ``commercial leonardite.'' The statutory 
and regulatory changes were made to ensure that none of the 
requirements in North Dakota's approved coal regulatory program are 
otherwise changed. It is also important to note that the narrative 
accompanying North Dakota's proposed amendment states that SB 2377 
includes similar changes to other sections of NDCC that are not part of 
the State coal regulatory program. North Dakota

[[Page 20266]]

subsequently clarified that the proposed changes in Chapters 38.11.2 
(Subsurface Exploration Damages), 38-15 (Resolution of Conflicts in 
Subsurface Mineral Production), and 57-61 (Coal Severance Tax) of the 
NDCC did not require OSMRE approval.

B. Minor Revisions to North Dakota's Rules and Statutes

    North Dakota proposed minor grammatical, codification, and 
statutory citation cross-reference changes to the following previously 
approved rules and statutes due to renumbering. No substantive changes 
to the text of these regulations were proposed. Because the proposed 
revisions to these previously approved rules are minor in nature and do 
not change any fundamental requirements or weaken North Dakota's 
authority to enforce them, we are approving the changes and find that 
they are no less effective than the Federal regulations at Title 30 
(Mineral Resources), Chapter VII (Office of Surface Mining Reclamation 
and Enforcement, Department of the Interior), Parts 700 through 887. 
The following specific, minor revisions were made: (1) NDAC 69-05.2-01-
02. Definitions. Paragraph 120. ``Valid Existing Rights'' c. Roads; 
statutory citation cross-reference change due to renumbering in the 
NDCC; (2) NDAC 69-05.2-08-10. Permit Applications--Permit area--Soil 
resources information; statutory citation cross-reference change due to 
renumbering in the NDCC; (3) NDCC Section 38-14.1-24. Environmental 
Protection Performance Standards; Subsection 5; deletion of statutory 
citation cross-reference change due to renumbering; and (4) NDCC 38-
14.1-25. Prohibited Mining Practices; Subsections 2. and 3; minor 
grammatical changes.

C. Revisions to North Dakota's Rules and Statutes That Have No 
Corresponding Provisions to the Federal Regulations and/or SMCRA

    North Dakota proposed numerous revisions to its statutes and 
regulations for which there are no Federal counterpart provisions. The 
proposed changes resulted from the approval of SB 2377 during North 
Dakota's 2015 Legislative Session that revised the definition of 
``coal'' in the NDCC and added a new definition of ``commercial 
leonardite.'' As previously discussed in this final rule, leonardite is 
an oxidized form of lignite that is non-combustible, and it is not 
regulated under SMCRA as ``coal'' by OSMRE, as long as it is not 
produced as part of a lignite mining operation--it must be mined as a 
separate and distinct mineral deposit. North Dakota indicated in an 
email correspondence accompanying the amendment's informal submission 
that while it has not considered leonardite to be coal, it has 
traditionally regulated leonardite mining in much the same manner as 
surface coal mining and will continue, at its discretion, to do so 
based on the changes made by SB 2377. The statutory revisions also 
resulted in a number of related changes to North Dakota's rules in the 
NDAC, and primarily consist of adding the phrases ``and commercial 
leonardite'' and ``or commercial leonardite'' after the word ``coal.''
1. NDCC Sections 38-12.1-03.1 (Exploration Data); and 38-14.1-02.3 
(Surface Mining and Reclamation Operations); Revised Definitions of the 
Term ``Coal''
    As a result of SB 2377, North Dakota proposes to exclude 
``commercial leonardite'' from the statutory definition of ``coal'' in 
Section 38-12.1-03.1 of the NDCC as it pertains to Exploration Data. 
The revised definition reads as follows: `` `[c]oal' means a dark-
colored, compact, and earthy organic rock with less than forty percent 
inorganic components, based on dry material, formed by the accumulation 
and decomposition of plant material. The term includes consolidated 
lignitic coal in both oxidized and nonoxidized forms, whether or not 
the material is enriched in radioactive materials. The term does not 
include commercial leonardite.''
    Similarly, North Dakota proposes to exclude ``commercial 
leonardite'' from the statutory definition of ``coal'' in section 38-
14.1-02.3 of the NDCC about Surface Mining and Reclamation Operations. 
The revised definition reads as follows: `` `[c]oal' means a dark-
colored, compact, and earthy organic rock with less than forty percent 
inorganic components, based on dry material, formed by the accumulation 
and decomposition of plant material. The term includes consolidated 
lignitic coal in both oxidized and nonoxidized forms, having less than 
eight thousand three hundred British thermal units per pound [453.59 
grams], moist and mineral matter free, whether or not the material is 
enriched in radioactive materials. The term does not include commercial 
leonardite.''
    The narrative accompanying North Dakota's proposed amendment 
explained that while OSMRE does not regulate the mining of leonardite 
when it occurs as a separate and distinct mineral deposit, the North 
Dakota statutory definition of ``coal'' was originally written in a 
manner to specifically include leonardite in all instances. However, 
due to a recent issue with the mining and leasing of leonardite as a 
separate and distinct deposit, the North Dakota Legislature approved 
statutory changes to exclude commercial leonardite from the definition 
of coal in the NDCC, while ensuring that the mining of leonardite 
remains subject to the same, but unique, set of permitting and 
reclamation requirements as coal.
    North Dakota's revised definitions provide a distinction between 
the terms and explicitly clarifies that ``coal'' does not include 
``commercial leonardite.'' OSMRE does not have any corresponding 
provisions specifically about ``commercial leonardite.'' North Dakota's 
revised definitions of ``coal'' in its reclamation statute is, 
therefore, more specific than, but consistent with the definitions of 
``lignite coal'' at section 701(30) of SMCRA, and ``coal'' at 30 CFR 
700.5 of the Federal regulations. The lack of a Federal counterpart 
does not render North Dakota's proposed amendments less stringent than 
SMCRA or less effective than OSMRE's regulations. In addition, we also 
find that the underlying rationale North Dakota provided for justifying 
a modification of North Dakota's definitions is reasonable for purposes 
of SMCRA and is consistent with OSMRE's policy about leonardite (see 
section III.A. above). Accordingly, we are approving the amended 
definitions. We nevertheless note that OSMRE's approval of North 
Dakota's amendments for purposes of SMCRA may not be viewed as waiving 
any property interest the United States may have in leonardite deposits 
that may be part of the federal coal estate in North Dakota.
2. NDCC Sections 38-12.1-03.3 (Exploration Data) and 38-14.1-02.4 
(Surface Mining and Reclamation Operations); Newly-Proposed Definition 
of ``Commercial Leonardite''
    As a result of SB 2377, North Dakota proposes a new definition of 
``commercial leonardite'' in both Sections 38-12.1-03.3 and 38-14.1-
02.4 of the NDCC. Each definition reads as follows:

    ``Commercial leonardite'' means a dark-colored, soft, earthy 
rock formed from the oxidation of lignite coal, and is produced from 
a mine that has as its only function for supply for purposes other 
than gasification or combustion to generate electricity.

    The narrative accompanying North Dakota's proposed amendment 
explained that while OSMRE does not regulate the mining of leonardite 
when it occurs as a separate and distinct mineral deposit, the North 
Dakota

[[Page 20267]]

statutory definition of ``coal'' was originally written in a manner to 
specifically include leonardite in all instances. However, due to a 
recent issue with the mining and leasing of leonardite as a separate 
and distinct deposit, the North Dakota Legislature approved statutory 
changes to exclude commercial leonardite from the definition of coal in 
the NDCC, while ensuring that the mining of leonardite remains subject 
to the same permitting and reclamation requirements as coal. Moreover, 
the proposed definition clarifies that ``commercial leonardite'' will 
be mined and used solely for purposes other than gasification or 
combustion to generate electricity.
    North Dakota's newly proposed definitions of ``commercial 
leonardite'' are reasonable for purposes of SMCRA and are consistent 
with OSMRE's 1982 determination that leonardite does not comport with 
the definition of coal under SMCRA and fall within the parameters of 
section 701(28)(A) of SMCRA and 30 CFR part 702. See Section III.A. 
above. OSMRE does not have any corresponding provisions about 
``commercial leonardite,'' and the lack of a Federal counterpart 
definition does not render North Dakota's amended program any less 
stringent than SMCRA or less effective than OSMRE's regulations. 
Instead, North Dakota's definition merely provides specificity beyond 
that contained in SMCRA and the Federal regulations. Moreover, North 
Dakota's explanation justifying the addition of a ``commercial 
leonardite'' definition is reasonable for purposes of SMCRA, and we 
approve the amended definition. We nevertheless note that OSMRE's 
approval of North Dakota's amendments for purposes of SMCRA may not be 
viewed as waiving any property interest the United States may have in 
leonardite deposits that may be part of the federal coal estate in 
North Dakota.
3. North Dakota's Proposed Inclusion of the Phrases ``and Commercial 
Leonardite'' and ``or Commercial Leonardite'' Throughout Its 
Reclamation Law and Rules
    Related to its newly proposed definition of ``commercial 
leonardite'' in SB 2377, North Dakota also proposes to add the phrases 
``and commercial leonardite'' and ``or commercial leonardite'' to many 
provisions of the reclamation statute and immediately after the word 
``coal'' in the rules when it is not part of a definition or other 
phrase that does not otherwise include ``commercial leonardite.''
    The narrative accompanying North Dakota's proposed amendment 
explained that while OSMRE does not regulate the mining of leonardite 
when it occurs as a separate and distinct mineral deposit, the North 
Dakota statutory definition of ``coal'' was originally written in a 
manner to specifically include leonardite in all instances. However, 
due to a recent issue with the mining and leasing of leonardite as a 
separate and distinct deposit, the North Dakota Legislature approved 
statutory changes to exclude commercial leonardite from the definition 
of coal in the NDCC, while ensuring that the mining of leonardite 
remains subject to the same permitting and reclamation requirements as 
coal.
    North Dakota's desire to differentiate between the terms ``coal'' 
and ``commercial leonardite'' in its reclamation law and related rules 
is reasonable for purposes of SMCRA and is consistent with OSMRE's 1994 
determination that leonardite is not ``coal'' as defined in 30 CFR 
700.5, as enumerated in 59 FR 37423 (July 22, 1994), the policy 
Memorandum of November 3, 1982, and OSMRE correspondence on December 
14, 1982. See Section III.A. above. As such, commercial leonardite 
would not be subject to regulation or oversight under SMCRA when mined 
as a separate and distinct mineral deposit. Thus, North Dakota's 
proposed addition of the phrases ``and commercial leonardite'' and ``or 
commercial leonardite'' to its previously approved statutory provisions 
and regulations identifies a necessary distinction of the terms and 
provides specificity beyond that contained in SMCRA and the Federal 
regulations. OSMRE also finds that the underlying rationale North 
Dakota provided for justifying the addition of these phrases is 
reasonable for purposes of SMCRA and the lack of Federal counterpart 
phrases does not render the amendments less stringent than SMCRA or 
less effective than the Federal regulations. Accordingly, for purposes 
of SMCRA, we are approving North Dakota's proposed statute and rule 
changes that add the phrases ``and commercial leonardite'' and ``or 
commercial leonardite'' to several provisions of the reclamation law 
and immediately after the word ``coal'' in the statute and regulations 
when it is not part of a definition or other phrase that doesn't 
otherwise include ``commercial leonardite.''
4. NDCC Section 38-14.1-02.23; Revised Definition of ``Pit''
    As a result of SB 2377, North Dakota proposes to revise its 
existing definition of ``Pit'' in section 38-14.1-02.23 of the NDCC to 
read as follows: ``Pit'' means a tract of land, from which overburden, 
coal, or commercial leonardite, or any combination of overburden, coal, 
or commercial leonardite has been or is being removed for the purpose 
of surface coal mining operations.
    North Dakota indicated in an email correspondence accompanying the 
amendment's informal submission that it has always regulated leonardite 
mining in the same way as combustible coal, albeit pursuant to a 
distinct set of statutes and regulations, and will continue to do so 
based on the changes made by SB 2377. To that end, North Dakota's 
revised definition of ``Pit'' adds commercial leonardite to the types 
of material that can be removed for the purposes of surface coal mining 
operations.
    OSMRE does not have any corresponding provisions defining ``pit.'' 
As such, we find that North Dakota's proposed revisions to its 
definition of ``pit'' are reasonable for purposes of SMCRA and provide 
specificity beyond that contained in SMCRA and the Federal regulations, 
and the lack of a Federal counterpart definition does not render it 
less stringent than SMCRA nor less effective than OSMRE's implementing 
regulations. Furthermore, the amendment to the North Dakota programs 
comports with OSMRE policy on leonardite as enumerated in 59 FR 37423 
(July 22, 1994) and the policy Memorandum of November 3, 1982, and 
OSMRE correspondence on December 14, 1982. See Section III.A. above. 
Accordingly, we are approving North Dakota's revised definition of 
``pit'' with the understanding that any coal that is removed in 
combination with leonardite will be incidental to the extraction of 
leonardite, and not exceed 16 \2/3\ per centum of the minerals removed 
for purposes of commercial use or sale under the provisions of Section 
701(28)(A) of SMCRA.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, (Administrative 
Record Document ID No. OSM-2016-0009-0001), but did not receive any.

Federal Agency Comments

    On May 26, 2016, under 30 CFR 732.17(h)(11)(i) and section 503(b) 
of SMCRA (30 U.S.C. 1253), we requested comments on the amendment from 
various Federal agencies with an actual or potential interest in the 
North Dakota Program (Administrative Record No.

[[Page 20268]]

ND-PP-04). We received comments from three Federal Agencies.
    The United States Forest Service (USFS) commented in a June 8, 
2016, email response (Administrative Record No. ND-PP-06); the Mine 
Safety and Health Administration (MSHA) commented in a July 15, 2016, 
Letter (Administrative Record Document ID No. OSM-2016-0009-0004); and 
the Bureau of Land Management (BLM) commented in a letter dated July 
22, 2016 (Administrative Record No. ND-PP-08).
    The USFS responded that it did not have any comments on the 
proposed amendment about commercial leonardite.
    MSHA also stated that it had reviewed the proposed changes in the 
amendment and had no comments.
    The BLM responded that it reviewed the proposed changes to N.D. 
Admin. Code 69-05.2 and commented that the recent State law change does 
not affect the Federal reserved coal estate in North Dakota. The BLM 
further stated that North Dakota's reclassification of leonardite does 
not affect the terms of a Federal coal lease; a valid and binding 
contract between the United States and the lessee. OSMRE acknowledges 
these comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), OSMRE is required to get a 
written concurrence from EPA for those provisions of the program 
amendment that relate to air or water quality standards issued 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 this amendment pertain to air or water 
quality standards. Therefore, we did not ask EPA to concur on the 
amendment. However, on May 26, 2016, pursuant to 30 CFR 
732.17(h)(11)(i), we requested comments from the EPA on the amendment 
(Administrative Record No. ND-PP-04). The EPA did not respond to our 
request.

State Historical 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 26, 2016, we requested comments on North Dakota's 
amendment (Administrative Record No. ND-PP-04). We did not receive 
comments from the SHPO or ACHP.

V. OSMRE's Decision

    Based on the above findings, we are approving North Dakota's 
amendment that was submitted on May 19, 2016 (Administrative Record No. 
ND-PP-01).
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 934, that codify decisions concerning the 
North Dakota program. In accordance with the Administrative Procedure 
Act, this rule will take effect 30 days after the date of publication. 
Section 503(a) of SMCRA (30 U.S.C. 1253) requires that the State's 
program demonstrate that the State has the capability of carrying out 
the provisions of the Act and meeting its purposes. 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. 
Other changes implemented through this final rule are administrative in 
nature and have no takings implications.

Executive Order 12866--Regulatory Planning and Review

    Pursuant to Office of Management and Budget (OMB) guidance dated 
October 12, 1993, the approval of State program amendments are exempted 
from OMB review under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by Section 3(a) of Executive Order 12988. The Department determined 
that this Federal Register document meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; that the agency's legislation and 
regulations provide a clear legal standard for affected conduct rather 
than a general standard; and promote simplification and burden 
reduction. Because Section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register document 
and to changes to the Federal regulations, if applicable. The review 
under this Executive Order did not extend to the language of the State 
regulatory program or to the program amendment that the State of North 
Dakota drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the North Dakota regulatory 
program submitted and drafted by that State. OSMRE reviewed the 
submission with fundamental federalism principles in mind as set forth 
in Sections 2 and 3 of the Executive Order and with the principles of 
cooperative federalism set forth in SMCRA. See, e.g., 30 U.S.C 1201(f). 
As such, pursuant to Section 503(a)(1) and (7)(30 U.S.C. 1253(a)(1) and 
(7)), OSMRE reviewed the program amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and ``consistent with'' the 
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 Tribes and have 
determined that the rule does not have substantial direct effects on 
one or more Tribes, on the relationship between the Federal Government 
and Tribes, or on the distribution of power and responsibilities 
between the Federal Government and Tribes. The basis for this 
determination is that our decision pertains to the North Dakota 
regulatory program and does not involve Federal regulations involving 
Tribes or Tribal lands in any way.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    Executive Order 13211 of May 18, 2001, 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 20269]]

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) 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: April 4, 2019.
David A. Berry,
Regional Director, Western Region.

    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         Date of final
    submission date            publication         Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 19, 2016...........  May 9, 2019............  NDAC regulation
                                                   changes to define
                                                   commercial leonardite
                                                   (oxidized lignite)
                                                   and exclusion of
                                                   commercial leonardite
                                                   from the statutory
                                                   definition of coal.
                                                  NDAC 69-05.2-01-01.1a-
                                                   d; NDAC 69-05.2-01-
                                                   02.9-12, 32, 64b(6),
                                                   88, 93, 104, 108,
                                                   120b(2)(a) and c;
                                                   NDAC 69-05.2-02-06.1;
                                                   NDAC 69-05.2-03-01;
                                                   NDAC 69-05.2-03-02;
                                                   NDAC 69-05.2-04-
                                                   01.5.2a(8); NDAC 69-
                                                   05.2-04-04.2; NDAC 69-
                                                   05.2-04-07.3a; NDAC
                                                   69-05.2-04-09.3; NDAC
                                                   69-05.2-05-08.1; NDAC
                                                   69-05.2-06-01.1a;
                                                   NDAC 69-05.2-06-
                                                   03.2b; NDAC 69-05.2-
                                                   08-01.2; NDAC 69-05.2-
                                                   08-02.1l; NDAC 69-
                                                   05.2-08-04.3b; NDAC
                                                   69-05.2-08-05.1 and
                                                   2b,c,d,e and g; NDAC
                                                   69-05.2-08-06.1d;
                                                   NDAC 69-05.2-08-10;
                                                   NDAC 69-05.2-09-01.1,
                                                   3, and 5; NDAC 69-
                                                   05.2-09-02.3, 6, 8,
                                                   12, and 14a; NDAC 69-
                                                   05.2-09-09.1f and g;
                                                   NDAC 69-05.2-09-
                                                   18.3b; NDAC 69-05.2-
                                                   09-19.1; NDAC 69-05.2-
                                                   10-01.1b4 and 6a;
                                                   NDAC 69-05.2-11-
                                                   02.1c; NDAC 69-05.2-
                                                   13-05; NDAC 69-05.2-
                                                   13-08.6h; NDAC 69-
                                                   05.2-13-12.1; NDAC 69-
                                                   05.2-13-13; NDAC 69-
                                                   05.2-18-01.13; NDAC
                                                   69-05.2-19-02.1; NDAC
                                                   69-05.2-19-04.4; NDAC
                                                   69-05.2-21-01.2; NDAC
                                                   69-05.2-21-03; NDAC
                                                   69-05.2-21-04; NDAC
                                                   69-05.2-22-07.4i;
                                                   NDAC 69-05.2-24-
                                                   01.1a(1); NDAC 69-
                                                   05.2-24-09.1; NDAC 69-
                                                   05.2-25-04.2.a; NDAC
                                                   69-05.2-26-06.3.c;
                                                   NDAC 69-05.2-31-01.3;
                                                   NDCC Sec. 38-12.1-01,
                                                   Subsections 1-3; NDCC
                                                   Sec. 38-12.1-02; NDCC
                                                   Sec. 38-12.1-03,
                                                   Subsections 1-3, and
                                                   7; NDCC Sec. 38-12.1-
                                                   04, Subsections 1a,
                                                   2, and 5; NDCC Sec.
                                                   38-12.1-05,
                                                   Subsections 1 and 3;
                                                   NDCC Sec. 38-14.1-02,
                                                   Subsections 3, 4, 10,
                                                   11, 13, 23, 28, and
                                                   35; NDCC Sec. 38-14.1-
                                                   05, Subsection 3;
                                                   NDCC Sec. 38-14.1-13,
                                                   Subsection 3; NDCC
                                                   Sec. 38-14.1-14,
                                                   Subsection 1r(3)-(5),
                                                   and s; NDCC Sec. 38-
                                                   14.1-14, Subsection
                                                   2c; NDCC Sec. 38-14.1-
                                                   21, Subsection 3e(2);
                                                   NDCC Sec. 38-14.1-21,
                                                   Subsection 4b; NDCC
                                                   Sec. 38-14.1-24,
                                                   Subsections 1 and
                                                   1.1; NDCC Sec. 38-
                                                   14.1-24, Subsection
                                                   3b(2); NDCC Sec. 38-
                                                   14.1-24, Subsections
                                                   5, 10, and 18; NDCC
                                                   Sec. 38-14.1-25,
                                                   Subsections 1-3; NDCC
                                                   Sec. 38-14.1-27,
                                                   Subsection 1b(2);
                                                   NDCC Sec. 38-14.1-37,
                                                   Subsections 1 a and
                                                   b, 3, and 4; NDCC
                                                   Sec. 38-18-05.
                                                   Subsections 2 and 7;
                                                   NDCC Sec. 38-18-07,
                                                   Subsection 2; also
                                                   all minor grammatical
                                                   and codification
                                                   changes.
------------------------------------------------------------------------


[[Page 20270]]

[FR Doc. 2019-09559 Filed 5-8-19; 8:45 am]
 BILLING CODE 4310-05-P