Rule2026-02982
North Dakota Regulatory Program
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 13, 2026
Effective
March 16, 2026
Issuing agencies
Interior DepartmentSurface Mining Reclamation and Enforcement Office
Abstract
We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the North Dakota regulatory program under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). North Dakota proposed amendments to its program based on changes to the North Dakota Century Code made by the State legislature that resulted in changes to the North Dakota Administrative Code for surface coal mining and reclamation operations. The changes added a perfected lien or security interest in real property to the definition of collateral bond. The changes also added conditions that must be met for real property pledged as collateral bond.
Full Text
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<title>Federal Register, Volume 91 Issue 30 (Friday, February 13, 2026)</title>
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[Federal Register Volume 91, Number 30 (Friday, February 13, 2026)]
[Rules and Regulations]
[Pages 6770-6773]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02982]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[SATS No. ND-056-FOR; Docket No. OSM-2022-0010; S1D1S SS08011000
SX064A000 256S180110; S2D2S SS08011000 SX064A000 25XS501520]
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
(OSM), are approving an amendment to the North Dakota regulatory
program under the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the Act). North Dakota proposed amendments to its program
based on changes to the North Dakota Century Code made by the State
legislature that resulted in changes to the North Dakota Administrative
Code for surface coal mining and reclamation operations. The changes
added a perfected lien or security interest in real property to the
definition of collateral bond. The changes also added conditions that
must be met for real property pledged as collateral bond.
DATES: The effective date is March 16, 2026.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Denver Field
Division Chief, Office of Surface Mining Reclamation and Enforcement,
Casper Area Office, P.O. Box 11018, 100 East B Street, Casper, Wyoming
82601-1018. Telephone: (307) 240-4397. Email: <a href="/cdn-cgi/l/email-protection#a0cac6ccc5c9d3c3c8cdc1cee0cfd3cdd2c58ec7cfd6"><span class="__cf_email__" data-cfemail="9ff5f9f3faf6ecfcf7f2fef1dff0ecf2edfab1f8f0e9">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM'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 approved 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.
See 30 U.S.C. 1253(a)(1) and (7).
On the basis of these criteria, the Secretary of the Interior
(Secretary) 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 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.
[[Page 6771]]
II. Submission of the Amendment
By letter dated December 9, 2022 (Administrative Record No. ND-056-
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). Changes to
the NDCC were made by the 67th legislative assembly in response to
senate bill no. 2317, which was introduced by the Department of Trust
Lands. The new law created chapter 15-72 of the NDCC and established a
coal mine reclamation trust. The reclamation trust uses private assets
pledged as collateral to fulfill performance bond obligations. The
resulting rule changes to the NDAC added a perfected lien or security
interest in real property to the definition of collateral bond to NDAC
69-05.2-01-02. The changes also added conditions required for real
property to be pledged as collateral bond to NDAC 69-05.2-12-04.
We announced receipt of the proposed amendment in the May 19, 2023,
Federal Register (88 FR 32165). 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. One comment was received
on the amendment. The public comment period ended on June 19, 2023.
III. OSM'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 as described below.
This amendment adds a perfected lien or security interest in real
property to the definition of collateral bond in NDAC 60-05.2-01-02. It
also adds the conditions that must be met for real property pledged as
collateral bond to NDAC 69-05.2-12-04.
A. NDAC 60-05.2-01-02
``Collateral bond'' in NDAC 69-05.2-01-02(13) is defined as ``an
indemnity agreement in a sum certain payable to the state of North
Dakota executed by the permittee and which is supported by the deposit
with the commission of cash, negotiable bonds of the United States or
of North Dakota, or negotiable certificate of deposit of any bank
authorized to do business in North Dakota or an irrevocable standby
letter of credit issued by a federally insured or equivalently
protected bank authorized to do business in the United States, payable
only to the commission upon presentation, or perfected, first-lien
security interest in real property in favor of the commission.''
This amendment adds ``or perfected, first-lien security interest in
real property in favor of the commission'' to the definition of
collateral bond found in NDAC 69-05.2-01-02. The Federal regulations
include similar language under 30 CFR 800.5(b)(5), which permits a
perfected first-lien security interest in real property in favor of the
regulatory authority to be used as a supporting factor for an indemnity
agreement executed by the permittee as principal. This proposed change,
thus, updates State rules to better match its Federal counterpart.
Thus, North Dakota's proposed changes to NDAC 69-05.2-01-02 are
consistent with and no less effective than the Federal program.
B. NDAC 69-05.2-12-04(3)(a)-(c)
At NDAC 69-05.2-12-04(3)(a)-(c), North Dakota proposes to add three
conditions that must be met for real property to be pledged as
collateral bond. Those conditions include the following: the first
condition at NDAC 69-05.2-12-04(3)(a) provides that ``[t]he applicant
shall grant the commission first mortgage, first deed of trust or
perfected first-lien security interest in real property with the right
to sell or otherwise dispose of the property in the event of
foreclosure.'' The second condition states that ``the applicant shall
submit a schedule of the real property to be mortgaged or pledged to
secure the obligations under the indemnity agreement, with a list to
include: a description of the property, the fair market value of the
property, as determined by an independent appraisal conducted by a
certified appraiser, and proof of possession and title to the real
property.'' NDAC 69-05.2-12-04(3)(b). The third condition provides that
``[t]he real property to be pledged as collateral may include land with
is part of a permit area: however, land pledged as collateral for a
bond under this section may not be disturbed under any permit while the
land is serving as security under this section.'' NDAC 69-05.2-12-
04(3)(c).
The conditions added to NDAC 69-05.2-12-04(3)(a)(c) mirror the
conditions required for real property to be posted as collateral bond
described in Federal regulations at 30 CFR 800.21(c).
The changes proposed by this amendment update North Dakota's rules
to better match the Federal counterpart regulations. The proposed
changes are thus consistent with and no less effective than the Federal
regulations.
C. Conclusion
We are approving North Dakota's proposed changes to its coal
regulatory program. As discussed above, North Dakota's proposed changes
are nearly identical to the Federal regulations, and, in the case of
NDAC 69-05.2-12-04(3)(a)-(c), the changes make the North Dakota program
consistent with the Federal regulations. Thus, North Dakota's proposed
changes to NDAC 60-05.2-01 02 and 69-05.2-12-04(3)(a)-(c) are
consistent with SMCRA and no less effective than the Federal
regulations.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment and received a single
anonymous comment, suggesting taxpayer dollars should go towards only
reclamation work, and any fees collected from fossil fuel industry
should go towards environmental cleanup after natural disasters. This
comment is outside the scope of this amendment, and we will not respond
to it here. We appreciate the commenter's engagement with the
rulemaking process.
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-056-03, and ND-056-04). 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
[[Page 6772]]
No. ND-056-03). 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
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-056-03). We did not receive
comments from SHPO or ACHP.
V. OSM's Decision
Based on the above findings, we are approving North Dakota's
proposed amendment ND-056-FOR sent to us on December 9, 2022
(Administrative Record No. ND-056-01).
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 demonstrates
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. 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 private
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 (OMB Memo M-94-3), 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 (Department) 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. Section 3 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 or to the
program 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 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. We are
currently working to identify and engage appropriate Tribal
stakeholders to devise a constructive approach for consulting on these
amendments. Our approval of the amendment and revisions to the original
amendment is an action without 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
a 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 Department of the Interior's
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
[[Page 6773]]
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.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Marcelo Calle,
Acting Regional Director, Unified Interior Regions 5, 7-11.
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 amendment.
* * * * *
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Original amendment submission Date of final
date publication Citation/description
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* * * * * * *
December 9, 2022.............. 2/13/2026........ NDAC 60-05.2-01-02/
Updates the
definition of
collateral bond.
NDAC 60-05.2-01-04/
Adds the conditions
that must be met for
real property
pledged as
collateral bond.
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[FR Doc. 2026-02982 Filed 2-12-26; 8:45 am]
BILLING CODE 4310-05-P
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</html>Indexed from Federal Register on February 13, 2026.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.