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. Statutory and Executive Order Reviews

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 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. See30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior 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 of the North Dakota program in the December 15, 1980, Federal Register (45 FR 82214). You can also find later actions concerning the North Dakota program and program amendments at 30 CFR 934.15 and 934.30.

II. Submission of the Amendment

By letter dated November 30, 2022 (Administrative Record No. ND-057-01), North Dakota sent us 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 changes made to both the North Dakota Century Code (NDCC) and the North Dakota Administrative Code (NDAC). House Bill No. 1061, from the 2021 Legislative Session, increased the time for scheduling an informal conference on a permit, significant permit revision, or permit renewal application from 30 days to 45 days. It also changed the time a mining company is required to apply for a permit renewal from 120 days to 180 days prior to permit expiration. Senate Bill No. 2327, from the 2017 Legislative Session, created the North Dakota Department of Environmental Quality and transferred duties from the North Dakota Department of Health related to environmental quality. House Bill No. 1353, from the 2021 Legislative Session, established the North Dakota Department of Water Resources and identified the powers and responsibilities of the agency and the state engineer. Modifications to North Dakota's approved coal regulatory program are made to North Dakota Century Code Chapter 38-14.1 and North Dakota Administrative Code Article 69-5.2 to conform to the realigned responsibilities.

We announced receipt of the proposed amendment in the May 19, 2023, Federal Register (88 FR 32163). 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. We did not hold a public hearing or meeting because none was requested. Two comments were received on the amendment. The public comment period ended on June 20, 2023.

III. OSMRE's Findings

We made the following findings 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.

1. North Dakota House Bill No. 1061

The following amendments to North Dakota Century Code 38-14.1 were enacted by House Bill No. 1061 as part of the Sixty-Seventh Legislative Assembly of North Dakota, in session January 5, 2021.

A. NDCC 38-14.1-19 (1)

This amendment changes the time allowed for the commission to schedule an informal conference from within thirty days of receipt of the request to within forty-five days of receipt of the request. Comparable Federal regulations are found at 30 CFR 773.6(c)(2), which state that the regulatory authority must hold an informal conference within a reasonable time following receipt of the request. This proposed change allows 15 additional days to prepare for informal conference procedures, which is a reasonable addition of time. Thus, North Dakota's proposed changes to NDCC 38-14.1-19 are consistent with and no less effective than the Federal regulations.

B. NDCC 38-14.1-22 (3)

This amendment changes the time allowed for an applicant to submit a permit renewal from at least one hundred twenty days before the expiration of the valid permit to at least one hundred eighty days before the expiration of the valid permit. Comparable Federal regulations are found at 30 CFR 774.15(a)(b)(1), which state that a permit renewal must be filed with the regulatory authority at least 120 days prior to expiration of the existing permit. By increasing this time to 180 days, this proposed change requires that applications for permit renewal be submitted earlier, giving more time for review and processing. This proposed change, thus updates State rules to make them more stringent ( printed page 51585) than their Federal counterpart. Thus, North Dakota's proposed changes to NDCC 38-14.1-22 are consistent with and no less effective than the Federal regulations.

2. North Dakota Senate Bill No. 2327

Senate Bill No. 2327 created the North Dakota Department of Environmental Quality and transferred the duties and responsibilities of the North Dakota Department of Health relating to environmental quality to the Department of Environmental Quality. The following amendments to North Dakota Century Code 38-14.1 and North Dakota Administrative Code 69-05.2 were enacted by Senate Bill No 2327 as part of the Sixty-Fifth Legislative Assembly of North Dakota, in session January 3, 2017.

A. NDCC 38-14.1-03(12)

This amendment removes the words “promulgate regulations” and replaces them with “adopt rules”. This amendment also removes the words “state department of health” and replaces them with “department of environmental quality”. These changes update grammar and address the transfer of duties and responsibilities to the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-03 are in accordance with SMCRA and consistent with the Federal regulations.

B. NDCC 38-14.1-21(2)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. This amendment also removes the word “state” when referencing the state soil conservation committee and the state game and fish department. These changes clarify titles and address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-21 are in accordance with SMCRA and consistent with the Federal regulations.

C. NDAC 69-05.2-09-02(8)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-09-02 are in accordance with SMCRA and consistent with the Federal regulations.

D. NDAC 69-05.2-09-05

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-09-05 are in accordance with SMCRA and consistent with the Federal regulations.

E. NDAC 69-05.2-13-07

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-13-07 are in accordance with SMCRA and consistent with the Federal regulations.

F. NDAC 69-05.2-16-02

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-16-02 are in accordance with SMCRA and consistent with the Federal regulations.

G. NDAC 69-05.2-16-04(1)(c) and (g)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. This occurs once in subsection (c) and again in subsection (g) of NDAC 69-05.2-16-04. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-16-04 are in accordance with SMCRA and consistent with the Federal regulations.

H. NDAC 69-05.2-16-05(1)(b)(1)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-16-05(1)(b)(1) are in accordance with SMCRA and consistent with the Federal regulations.

I. NDAC 69-05.2-16-20(1)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-16-20(1) are in accordance with SMCRA and consistent with the Federal regulations.

J. NDAC 69-05.2-19-02(1)

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. This occurs once in subsection (1), again in subsection (1)(a), and a third time is subsection (1)(b) of NDAC 69-05.2-19-02. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes ( printed page 51586) does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-19-02(1) are in accordance with SMCRA and no less effective than the Federal regulations.

K. NDAC 69-05.2-19-04

This amendment removes the words “state department of health” and replaces them with “department of environmental quality”. This occurs once in subsection (1) and occurs twice in subsection (2) of NDAC 69-05.2-19-04. These changes address the transfer of duties and responsibilities of the newly created North Dakota Department of Environmental Quality. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDAC 69-05.2-16-04 are in accordance with SMCRA and consistent with the Federal regulations.

3. North Dakota House Bill No. 1353

House Bill No. 1353 established the North Dakota Department of Water Resources, and the powers and duties of the Department of Water Resources and the state engineer. The following amendments to North Dakota Century Code 38-14.1 and North Dakota Administrative Code 69-05.2 were enacted by House Bill No. 1353 as part of the Sixty-Seventh Legislative Assembly of North Dakota, in session January 5, 2021.

A. NDCC 38-14.1-03(12)

This amendment removes the words “the state engineer” and replaces them with “department of water resources”. These changes address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-03 (12) are in accordance with SMCRA and consistent with the Federal regulations.

B. NDCC 38-14.1-14(1)(n)

This amendment removes the words “state engineer” and replaces them with “department of water resources”. This amendment also removes the words, “pursuant to other applicable state law”. These changes streamline grammar and address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-03 (12) are in accordance with SMCRA and consistent with the Federal regulations.

C. NDCC 38-14.1-21(2)

This amendment removes the words “state engineer” and replaces them with “department of water resources”. The word “also” is also removed. These changes streamline grammar and address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-03 (12) are in accordance with SMCRA and consistent with the Federal regulations.

D. NDCC 38-14.1-24(7)

This amendment removes the words “state engineer pursuant to other applicable state law” and replaces them with “department of water resources”. In subsection (f) this amendment also replaces the word “Such” with the word “The”. These changes streamline grammar and address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-24 (7) are in accordance with SMCRA and consistent with the Federal regulations.

E. NDCC 38-14.1-25(1)

This amendment removes the words “state engineer” and replaces them with “department of water resources”. These changes address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to NDCC 38-14.1-25 (1) are in accordance with SMCRA and consistent with the Federal regulations.

F. NDAC 69-05.2-05-06(1)(d)

This amendment removes the words “State engineer, state water commission” and replaces them with “Department of Water Resources”. These changes address the transfer of duties and responsibilities of the newly established North Dakota Department of Water Resources and the state engineer. The administrative nature of these changes does not affect their substance and, thus, are not inconsistent with the Federal regulations. Thus, North Dakota's proposed changes to 69-05.2-05-06 (1)(d) are in accordance with SMCRA and consistent with the Federal regulations.

G. Conclusion

We are approving North Dakota's proposed changes to its coal regulatory program. As discussed above, North Dakota's proposed changes resulting from House Bill No. 1061 are more stringent than their corresponding Federal regulations. The changes resulting from Senate Bill No. 2327 create the North Dakota Department of Environmental Quality and transfer the duties and responsibility of the North Dakota Department of Health relating to environmental quality. The changes resulting from House Bill 1353 establish the North Dakota Department of Water Resources, its powers and those of the state engineer. Resulting changes to North Dakota's Surface Mining and Reclamation laws and rules occur in North Dakota Century Code 38-14.1 and North Dakota Administrative Code 69-5.2. These changes are of an administrative nature. Thus, North Dakotas proposed changes to NDAC 69-05.2 and NDCC 38.14 are in accordance with SMCRA and consistent with the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

We asked for public comments on the amendment and received two anonymous comments that were not about the specifics of this proposal but were about the political climate and energy policy. These comments are outside the scope of this amendment, and we are not required to respond to them.

Federal Agency Comments

On December 12, 2022, 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-057-03, ( printed page 51587) and ND-057-04). We did not receive any comments from Federal agencies.

Environmental Protection Agency (EPA) Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we are 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 December 12, 2022, under 30 CFR 732.17(h)(11)(i), we requested comments from the EPA on the amendment (Administrative Record No. ND-057-03). 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 December 12, 2022, we requested comments on North Dakota amendment (Administrative Record No. ND-057-03). 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 proposed amendment ND-057-FOR sent to us on November 30, 2022 (Administrative Record No. ND-057-01).

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 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. Since OSM granted the North Dakota Program primacy on December 15, 1980, OSM has found the North Dakota Program to be in accordance with SMCRA and consistent with the Federal regulations. SMCRA requires consistency of State and Federal standards.

VI. Statutory and Executive Order Reviews

Executive Order 12630—Governmental Actions and Interference With Constitutionally Protected Property Rights

This rule would not result in a taking of private property or otherwise have taking implications that would result in public property being taken for government use without just compensation under the law. Therefore, a takings implication assessment is not required. This determination is based on an analysis of the corresponding Federal regulations.

Executive Orders 12866—Regulatory Planning and Review and 13563—Improving Regulation and Regulatory Review

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is 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 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; and 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. The review under this Executive Order did not extend to the language of the State regulatory program and/or plan to the program and/or amendment that North Dakota drafted.

Executive Order 13132—Federalism

This rule has potential Federalism implications as defined under Section 1(a) of Executive Order 13132. Executive Order 13132 directs agencies to “grant the States the maximum administrative discretion possible” with respect to Federal statutes and regulations administered by the States. North Dakota, through its approved regulatory program, implements and administers SMCRA and its implementing regulations at the state level. This rule approves an amendment to the North Dakota program submitted and drafted by the State and thus is consistent with the direction to provide maximum administrative discretion to States.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it has no substantial direct effects on Federally recognized Tribes or on the distribution of power and responsibilities between the Federal government and Tribes. Therefore, consultation under the Department's tribal consultation policy is not required. The basis for this determination is that our decision is on the North Dakota State program that does not include the regulation of Indian lands or regulation of activities on Indian lands as that term is defined in 30 U.S.C. 1291(9). Indian lands are regulated independently under the applicable, approved Federal Indian lands program. 512 Departmental Manual 4 (Department of the Interior Policy on Consultation with Indian Tribes) also acknowledges that our rules may have Tribal implications where the State proposing the amendment encompasses ancestral lands in areas with mineable coal. North Dakota's proposed changes to its program are administrative in nature and will not have Tribal implications under section 4.3B of 512 Departmental Manual 4.

Executive Order 13211—Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rulemaking 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 ( printed page 51588) significant energy action under the definition in Executive Order 13211, a Statement of Energy Effects is not required.

National Environmental Policy Act

Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 1251(a) and 1292(d), respectively) and the U.S. Department of the Interior Departmental Manual, part 516, section 13.5(A), State program amendments are not major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C).

Paperwork Reduction Act

This rule does not include requests and requirements of an individual, partnership, or corporation to obtain information and report it to a Federal agency. As this rule does not contain information collection requirements, a submission to the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) is not required.

Regulatory Flexibility Act

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 corresponding 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 corresponding Federal regulations.

Congressional Review Act

This rule is not a major rule under 5 U.S.C. 804(2), 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 on an analysis of the corresponding Federal regulations, which were determined not to constitute a major rule.

Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or Tribal governments, or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This determination is based on an analysis of the corresponding Federal regulations, which were determined not to impose an unfunded mandate. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

For the reasons set out in the preamble, 30 CFR part 934 is amended as set forth below:

91 FR 51584