[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Rules and Regulations]
[Pages 32645-32648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-13293]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[SATS No. ND-053-FOR; Docket ID No. OSM-2012-0006;
S1D1SSS08011000SX066A00067F144S180110;
S2D2SSS08011000SX066A00033F14XS501520]
North Dakota Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are issuing a final decision on 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''). Our decision approves the amendment. North Dakota proposed
changes to the North Dakota Administrative Code (NDAC) to address
letter of credit provisions in the collateral bond rules under Section
69-5.2-12-04. The changes involve financial information and various
notices that banks issuing a letter of credit must provide to the North
Dakota Public Service Commission (hereinafter, the ``Commission'').
DATES: Effective Date: June 6, 2014.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Denver Field
Division, Chief, Telephone: (307) 261-6550, Internet address:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's
(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, ``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 934.15, 934.16, and 934.30.
II. Submission of the Proposed Amendment
By letter dated February 2, 2012, North Dakota sent us an amendment
to its program (SATS number: ND-053-FOR, Administrative Record Document
ID. OSM-2012-0006-0002) under SMCRA (30 U.S.C. 1201 et seq.). North
Dakota submitted the amendment to include changes made at its own
initiative.
North Dakota proposed to change the letter of credit provisions in
its collateral bond rule at NDAC 69-5.2-12-04 which addresses the
financial information that banks issuing a letter of credit must
provide to the Commission. Specifically, North Dakota proposed to
revise its rules by adding an option that allows banks to provide a
certified copy of financial reports that are required by a Federal
banking agency rather than submit a balance sheet that is certified by
a certified public accountant (CPA). North Dakota also proposed a
change that affects the provision requiring banks to give the
Commission notice of actions alleging insolvency or bankruptcy. North
Dakota is proposing these changes both in order to avoid conflict with
Federal and State banking regulations and to assist banks that may have
difficulty submitting CPA certified balance sheets.
We announced receipt of the proposed amendment in the April 25,
2012, Federal Register (Vol. 77, No. 80 FR page number 24661). 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 Docket ID OSM-2012-0006).
We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on May 25, 2012. We did
not receive any comments.
III. OSMRE's Findings
30 CFR 732.17(h)(10) requires that State program amendments meet
the criteria for approval of State programs set forth in 30 CFR 732.15,
including that the State's laws and regulations are in accordance with
the provisions of the Act and consistent with the requirements of 30
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and
``in accordance with'' to mean (a) with regard to SMCRA, the State laws
and regulations are no less stringent than, meet the minimum
requirements of, and include all applicable provisions of the Act and
(b) with regard to the Federal regulations, the State laws and
regulations are no less effective than the Federal regulations in
meeting the requirements of SMCRA.
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. Revisions to North Dakota's Rules That Are the Same as or Similar to
the Corresponding Provisions of the Federal Regulations
North Dakota proposed changes to existing language in subsections
(d) and (f) of NDAC Section 69-05.2-12-04. The proposed changes include
additional conditions that banks must meet in
[[Page 32646]]
order for the Commission to approve a coal operator's collateral bond
pledging a letter of credit. The proposed rule changes are intended to
ensure that banks issuing letters of credit to the North Dakota Public
Service Commission (hereinafter, ``the Commission'') maintain a certain
degree of fiscal health and provide notice to the Commission and
permittee of insolvency, bankruptcy, or regulatory requirement
violations.
1. Performance Bond--Collateral Bond, at NDAC Sections 69-05.2-12-
04(2)(d) and (f)
North Dakota proposed to revise NDAC Section 69-05.2-12-04(2)(d),
which deals with notifications of the fiscal health of banks that issue
letters of credit to the Commission. As previously written, the rules
required that letters of credit submitted to the Commission be
accompanied by a balance sheet and that updated balance sheets must be
submitted regularly every year. North Dakota's proposed rule change
provides banks with an alternative to submit certified copies of
financial reports that are already required under Federal banking
regulations. The Federal regulations governing collateral bonds
pledging letters of credit are found at 30 CFR 800.21(b). The
currently-approved State rules provide specific conditions for letters
of credit that were found to be no less effective than Federal
regulations [69 FR 2663]. Similarly, the proposed revision to NDAC 69-
05.2-12-04(2)(d), although relaxing currently-approved State
requirements, adds specificity to Federal requirements. Therefore, we
find that the proposed change to NDAC 69-05.2-12-04(2)(d) is no less
effective than the Federal regulations. Accordingly, we approve it.
North Dakota also proposed to revise NDAC Section 69-05.2-12-
04(2)(f), which states that banks shall give prompt notice to the
permittee and the Commission of notices received or actions filed
alleging insolvency, bankruptcy, or banking regulatory requirement
violations that could result in suspension or revocation of the bank's
charter or license to do business. The proposed amendment contains
language that limits the amount of information provided in the notice
to what is permitted by State and Federal banking laws. North Dakota
proposed this rule change to avoid conflict with various Federal and
State banking regulations. The counterpart Federal regulations to
subsection (f) are found at 30 CFR 800.16(e). 30 CFR 800.16(e)(1)
requires that the bond shall ``provide a mechanism'' for a bank to
notify the regulatory authority, or in this case the Commission, of
actions filed alleging insolvency, bankruptcy, or banking regulatory
requirement violations that could result in suspension or revocation of
the bank's charter or license to do business. Furthermore, 30 CFR
800.16(e)(2) requires that the permitee shall promptly notify the
regulatory authority of the aforementioned actions. Since North
Dakota's proposed rule change does not weaken the requirement that a
``mechanism'' exists for banks to notify the Commission of alleged
insolvency, bankruptcy, or banking regulatory requirement violations,
we find that the proposed change to NDAC 69-05.2-12-04(2)(f) is no less
effective than the counterpart Federal regulations at 30 CFR 800.16(e)
and we approve it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2012-0006-0002), 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 State and Federal
agencies with an actual or potential interest in the North Dakota
program (Administrative Record Docket ID No. OSM-2012-0006).
We received responses from both the Bureau of Land Management (BLM)
and the Mine Safety and Health Administration (MSHA). BLM stated in a
letter dated February 17, 2012, that they had no comments on North
Dakota Amendment XXXIX (Administrative Record Document ID No. OSM-2012-
0006-0004). MSHA stated in a letter dated March 5, 2012, that they
concurred with the proposed revisions and had no further comment
(Administrative Record Document ID No. OSM-2012-0006-0006).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to obtain
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.) and 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. Although OSM did
not ask EPA to concur on the amendment, we did request EPA to comment
on the amendment (Administrative Record ID No. OSM-2012-0006-0005). EPA
did not respond to our request.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h)(4), we are required to request comments from
the SHPO and ACHP on amendments that may have an effect on historic
properties. On February 7, 2012, we requested comments on North
Dakota's amendment (Administrative Record Document ID No.OSM-2012-0006-
0005), but neither responded to our request.
V. OSMRE's Decision
Based on the above finding, we approve North Dakota's February 1,
2012 amendment.
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
[[Page 32647]]
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 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 regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: February 12, 2014.
Allen D. Klein,
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
------------------------------------------------------------------------
* * * * * * *
February 1, 2012 June 6, 2014 NDAC 69-5.2-12-04.
------------------------------------------------------------------------
[[Page 32648]]
[FR Doc. 2014-13293 Filed 6-5-14; 8:45 am]
BILLING CODE 4310-05-P