[Federal Register Volume 79, Number 109 (Friday, June 6, 2014)]
[Rules and Regulations]
[Pages 32645-32648]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-13293]


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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.

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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: 
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 
(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

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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

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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.

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   Original amendment         Date of final
    submission date            publication         Citation/description
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                              * * * * * * *
    February 1, 2012             June 6, 2014                     NDAC 69-5.2-12-04.
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[FR Doc. 2014-13293 Filed 6-5-14; 8:45 am]
BILLING CODE 4310-05-P