[Federal Register Volume 59, Number 140 (Friday, July 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17883]


[[Page Unknown]]

[Federal Register: July 22, 1994]


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DEPARTMENT OF THE INTERIOR
30 CFR Part 934

 

North Dakota Permanent Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the North Dakota 
permanent regulatory program (hereinafter referred to as the ``North 
Dakota program'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The proposed amendment consists of revisions to North 
Dakota's rules in the North Dakota Administrative Code (NDAC) 
pertaining to preblasting survey requirements and the State's small 
operator assistance program. The amendment is intended to revise the 
North Dakota program to be consistent with and incorporate the 
additional flexibility afforded by SMCRA and the Federal regulations.

EFFECTIVE DATE: July 22, 1994.

FOR FURTHER INFORMATION CONTACT:
Guy D. Padgett, Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the North Dakota program as administered by the North Dakota 
Public Service Commission (Commission). General background information 
on the North Dakota program, including the Secretary's findings, the 
disposition of comments, and an explanation of the conditions of 
approval of the North Dakota program can be found in the December 15, 
1980, Federal Register (45 FR 82214). Actions taken subsequent to 
approval of the North Dakota program are codified at 30 CFR 934.15, 
934.16, and 934.30.

II. Proposed Amendment

    By letter dated October 22, 1993 (administrative record No. ND-T-
01), North Dakota submitted a proposed amendment to its program 
pursuant to SMCRA. North Dakota submitted the proposed amendment at its 
own initiative. North Dakota proposed revisions to its performance 
standards pertaining to the use of explosives and preblasting survey 
requirements at NADC 69-05.2-17.02 (1) and (2). North Dakota also 
proposed revisions to its Small Operator Assistance Program (SOAP) at 
NDAC 69-05.2-29-01, responsibilities of the Commission; NDAC 69-05.2-
29-02, program services; NDAC 69-05.2-29-03, eligibility for 
assistance; NDAC 69-05.2-29-04, filing for assistance; NDAC 69-05.2-29-
05, application approval and notice of denial; NDAC 69-05.2-29-06, data 
requirements; NDAC 69-05.2-29-07, assistance funding; and NDAC 69-05.2-
29-08, applicant liability.
    The proposed changes to North Dakota's pre-blast survey and SOAP 
rules are meant to implement statutory changes to the State's 
regulatory program pertaining to the use of explosives and SOAP that 
were enacted by the State legislature in 1993. (For a document relating 
to the statutory revisions proposed by North Dakota for preblasting 
surveys and small operator assistance, see an additional final rule 
Federal Register notice for the State of North Dakota published 
elsewhere in this issue.) North Dakota proposed the statutory and 
regulatory amendments to its SOAP program in order to implement the 
changes to the Federal SOAP program at sections 507 (c) and (h) of 
SMCRA made by the Energy Policy Act of 1992 (Pub. L. 102-486).
    OSM announced receipt of the proposed amendment in the November 23, 
1993, Federal Register (58 FR 61857), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. ND-T-08). The 
public comment period ended on December 23, 1993. Because no one 
requested a public hearing or meeting, none was held.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and the 
Federal regulations at 30 CFR 732.15 and 732.17, finds that the 
proposed North Dakota program amendment as submitted by North Dakota on 
October 22, 1993, is not inconsistent with and is no less stringent 
than SMCRA. Thus, the Director approves the proposed amendment.

1. NDAC 69-05.2-17-02, Performance Standards--Use of Explosives--
Preblasting Survey Requirements

    North Dakota proposed to revise its rules at NDAC 69-05.2-17-02 (1) 
and (2) so that the rules will provide as follows:

    1. Each operator shall notify in writing, at least thirty days 
before blasting, all residents and owners of manmade dwellings or 
structures located within one mile * * * of the permit area how to 
request a preblasting survey.
    2. On request to the commission by a resident or owner of a 
dwelling or structure located within one mile * * * of any part of 
the permit area, the operator shall promptly conduct a preblasting 
survey of the dwelling or structure and promptly submit a report of 
the survey to the commission and requestor. Any preblasting survey 
requested more than ten days before blasting must be completed 
before blasting is initiated. Additions or renovations to a surveyed 
structure must be surveyed upon request to the commission.

    In this amendment, North Dakota proposed to increase from one-half 
mile [0.85 kilometers] to one mile [1.61 kilometers], the distance from 
the permit area within which dwellings or structures must be situated 
before the owners or residents of such dwellings and structures are 
entitled to the notice specified at NDAC 69-05.2-17-02(1) and can 
require the operator to conduct a pre-blast survey in accordance with 
NDAC 69-05.2-17-02(2). North Dakota proposed these regulatory revisions 
in order to implement the statutory changes proposed by the State in 
``Amendment XVIII'' (administrative record No. ND-Q-1, April 21, 1993) 
pertaining to pre-blast surveys. (For a discussion of the proposed 
statutory provisions, see the additional final rule Federal Register 
notice for North Dakota published elsewhere in this issue.)
    The distance standard in the counterpart Federal regulations at 30 
CFR 816.62(a) and (b) regarding pre-blast surveys is one-half mile of 
the permit area. North Dakota's proposed revisions at NDAC 69-05.2-29-
02 (1) and (2) would thus allow a potentially larger group of residents 
or owners within the vicinity of the mine to require the operator to 
conduct a preblasting survey than is provided for by the Federal 
regulations at 30 CFR 816.62(a) and (b).
    In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), 
the State regulatory authority has the discretion to impose land use 
and environmental controls and regulations on surface coal mining and 
reclamation operations that are more stringent than those imposed under 
SMCRA and the Federal regulations. Moreover, the State regulatory 
authority has the discretion to impose land use and environmental 
controls and regulations on surface coal mining and reclamation 
operations for which no Federal counterpart exists. Section 505(b) of 
SMCRA and 30 CFR 730.11(b) dictate that such State provisions shall not 
be construed to be inconsistent with SMCRA or the Federal regulations. 
Therefore, the Director is approving the revisions proposed by North 
Dakota at NDAC 69-05.2-17-02 (1) and (2).

2. NDAC 69-05.2-29-01 Through 69-05.2-29-08, Small Operator Assistance 
Program

    In this amendment, North Dakota proposed several changes to its 
rules pertaining to its SOAP program in order to implement the 
statutory revisions the State proposed in a separate amendment. (For a 
discussion of the proposed statutory SOAP provisions, see the 
additional final rule notice for North Dakota published elsewhere in 
this issue.) North Dakota proposed these regulatory revisions in order 
to implement the statutory changes proposed by the State in ``Amendment 
XVIII'' (administrative record No. ND-Q-1, April 21, 1993).
a. NDAC 69-05.2-29-01(2), 69-05.2-29-02(1), 69-05.2-29-04(6)(b), 69-
05.2-29-05(1)(b), 69-05.2-29-06(2) and 06(4), and 69-05.2-29-08(1)(b), 
Small Operator Assistance--Responsibilities of the Commission--
Qualified Public and Private Entities
    North Dakota proposed to revise NDAC 69-05.2-29-01(2) to provide 
that the Commission will develop and maintain a list of ``qualified 
public or private entities'' as required by 30 CFR 795.10 and pay them 
for services rendered. In this amendment, North Dakota proposed to 
substitute the phrase ``qualified public or private entities'' for the 
previous reference to ``qualified laboratories.'' North Dakota also 
proposed to change the term ``laboratory'' (or ``laboratories'') to 
``public or private entity'' (or ``entities'') in its rules at NDAC 69-
05.2-29-02(1), 69-05.2-29-04(6)(b), 69-05.2-29-05(1)(b), 69-05.2-29-06 
(2) and (4), and 69-05.2-29-08(1)(b).
    North Dakota's proposed terminology change is not inconsistent with 
section 507(c)(1) of SMCRA which provides that the activities to be 
performed under SOAP shall be performed by a ``qualified pubic or 
private laboratory or such other public or private qualified entity 
designated by the regulatory authority.'' Therefore, the Director finds 
that the proposed terminology change at NDAC 69-05.2-29-01(2), 69-05.2-
29-02(1), 69-05.2-29-04(6)(b), 69-05.2-29-05(1)(b), 69-05.2-29-06 (2) 
and (4), and 69-05.2-29-08(1)(b) is not inconsistent with section 
507(c)(1) of SMCRA or the Federal regulations regarding SOAP at 30 CFR 
Part 795, as recently revised (59 FR 28136, May 31, 1994), and the 
Director is approving the proposed rules.
b. NDAC 69-05.2-29-02(1) (a) and (b), Small Operator Assistance--
Program Services
    North Dakota proposed to expand its regulatory provisions governing 
SOAP program services at NDAC 69-05.2-29-02(1) (a) and (b) in 
accordance with the statutory changes at North Dakota Century Code 
(NDCC) 38-14.1-37 (2) through (5) proposed by the State in ``Amendment 
XVIII'' (administrative record No. ND-Q-1, April 21, 1993). (For a 
discussion of the proposed statutory provisions, see the additional 
final rule for North Dakota published elsewhere in this issue.) 
Specifically, North Dakota proposed to revise NDAC 69-05.2-29-02(1) so 
that it will provide as follows:

    To the extent possible with available funds, the commission will 
for qualified small operators who request assistance:
    1. Select and pay a qualified public or private entity to 
perform the activities described under [NDCC 38-14.1-37(2)] 
including:
    a. A determination of the probable hydrologic consequences of 
the mining and reclamation operations both on and off the proposed 
permit area according to section 69-05.2-29-06.
    c. The preparation of a statement of the results of test borings 
or core samplings according to section 69-05.2-29-06.

    Thus, as amended, NDAC 69-05.2-29-02(1) (a) and (b) will provide 
coverage of all program services detailed in North Dakota's statute at 
NDCC 38-14.1-37(2).
    The State proposal is substantively similar to its Federal 
counterpart regulations at 30 CFR 795.9 (a), (b), (b)(1) and (b)(2), as 
revised on May 31, 1994 (59 FR 28136), with one exception. While the 
Federal regulations at 30 CFR 795.9 (b)(1) through (b)(6) specifically 
identify each activity that may be funded pursuant to SOAP, the State 
proposal specifically identifies only two activities that may be funded 
by SOAP. However, as noted above, the State proposal does encompass all 
activities described under proposed NDCC 38-14.1-37(2). The activities 
described under proposed NDCC 38-14.1-37(2), in turn, correspond to the 
activities described in the Federal program at sections 507 (c)(1)(A) 
through (c)(1)(F) of SMCRA and 30 CFR 795.9 (b)(1) through (b)(6). (For 
a discussion of the proposed statutory provision, see the additional 
final rule notice for North Dakota published elsewhere in this issue.)
    Therefore, the Director finds that proposed NDAC 69-05.2-29-02(1) 
(a) and (b) are no less stringent than SMCRA and no less effective in 
meeting SMCRA's requirements than the corresponding Federal 
regulations. Accordingly, the Director approves the proposed rules.
c. NDAC 69-05.2-29-03(2), Small Operator Assistance--Eligibility for 
Assistance (Introductory Text)
    North Dakota proposed to revise the introductory text of NDAC 69-
05.2-29-03(2) by increasing the amount of probable total annual 
production allowed for SOAP applicants from one hundred thousand tons 
[90,718.47 metric tons] to three hundred thousand tons [272,155.41 
metric tons]. The proposed change would make NDAC 69-05.2-29-03(2) 
consistent with proposed statutory changes to NDCC 38-14.1-37 (see 
``Amendment XVIII'' dated April 21, 1993, administrative record No. ND-
Q-1), as well as the requirements of SMCRA at section 507(c)(1) and the 
recently revised Federal counterpart regulation at 30 CFR 795.6(2). 
(For a discussion of the proposed statutory provision, see the 
additional final rule for North Dakota published elsewhere in this 
issue.) Therefore, the Director is approving proposed NDAC 69-05.2-29-
03(2) (introductory text).
d. NDAC 69-05.2-29-03(5), Small Operator Assistance--Eligibility for 
Assistance
    North Dakota proposed to create new NDAC 69-05.2-29-03(5) to 
provide that an applicant is eligible for SOAP assistance if, among 
other things:

    [The applicant] will be required to pay reclamation fees under 
the Surface Mining Control and Reclamation Act of 1977 (Pub. L. 95-
87; 91 Stat. 445; U.S.C. 1201 et seq).

    Proposed NDAC 69-05.2-29-03(5) is meant to implement the statutory 
provision of NDCC 38-14.1-37(5) (see ``Amendment XVIII'' dated April 
21, 1993, administrative record No. ND-Q-1). (For a discussion of the 
proposed statutory provision, see the additional final rule for North 
Dakota published elsewhere in this issue.)
    North Dakota's proposed limitation of SOAP assistance to operators 
required to pay reclamation fees under SMCRA does not render NDAC 69-
05.2-29-03(5) inconsistent with SMCRA because section 507(c)(1) of 
SMCRA only requires that SOAP assistance be made available to a 
qualified ``coal surface mining operator.'' As discussed in the 
additional final rule for North Dakota published elsewhere in this 
issue, the operators who will be deemed ineligible for SOAP assistance 
under the North Dakota proposal would not qualify for such assistance 
under SMCRA.
    The Director notes that there is a typographical error in the SMCRA 
citation given in proposed NDAC 69-05.2-29-03(5). That is, the 
reference to ``U.S.C. 1201 et seq.'' should be ``30 U.S.C. 1201 et 
seq.'' North Dakota's Attorney General, in a legal opinion dated 
October 1, 1993, and included with this proposed amendment, noted the 
typographical error, but stated that the reference to the United States 
Code at NDAC 69-05.2-29-03(5) should read ``30 U.S.C. 1202 et seq.'' 
OSM notes that the correct reference to SMCRA should be ``30 U.S.C. 
1201 et seq.''
    Accordingly, the Director finds North Dakota's proposed rule at 
NDAC 69-05.2-29-03(5) is not inconsistent with SMCRA and the Director 
is approving it with the understanding that North Dakota will revise 
the aforementioned typographical error so that the correct citation to 
SMCRA is referenced.
e. NDAC 69-05.2-29-06(1)(a), Small Operator Assistance--Data 
Requirements
    North Dakota proposed to revise NDAC 69-05.2-29-06(1)(a) so that it 
will provide as follows:

    The commission will determine the minimum data collection 
requirements for each applicant or group of applicants. Data 
collection and analysis may proceed concurrently with the 
development of mining and reclamation plans. The data requirements 
will be based on:
    a. The extent of currently available hydrologic, geologic, and 
other information described under [NDCC 38-14.1-37(2)].
    b. The data collection and analysis guidelines developed and 
provided by the commission.

    In this amendment, North Dakota proposed to expand the basis upon 
which the requirements will be based, as outlined at NDAC 69-05.2-29-
06(1)(a). Specifically, as proposed, NDAC 69-05.2-29-06(1)(a) will now 
require that the data requirements be based upon all information 
described at proposed NDCC 38-14.1-37(2). (For a discussion of the 
proposed statutory provision, see the additional final rule for North 
Dakota published elsewhere in this issue.)
    Proposed NDAC 69-05.2-29-06(1)(a) is consistent with the recently 
revised Federal regulation at 30 CFR 795.9(b), which lists the specific 
technical services authorized for the SOAP and provides, among other 
things, that ``[t]he program administrator shall determine the data 
needed for each applicant or group of applicants.''
    Accordingly, the Director finds that NDAC 69-05.2-29-06(1)(a) is 
consistent with and no less effective than the Federal regulations at 
30 CFR 795.9(b) and is approving the proposed rule.
f. NDAC 69-05.2-29-07(1), Small Operator Assistance--Assistance Funding
    North Dakota proposed to delete the portion of NDAC 69-05.2-29-
07(1) that prohibits the use of SOAP funds to cover the costs of test 
boring or core sampling. The proposed revision is consistent with 
section 507(c)(1)(C) of SMCRA and the recently revised Federal 
counterpart regulation at 30 CFR 795.9(b)(2), which allow the use of 
SOAP funds to cover the cost of geologic drilling and statement of 
results of test borings and core samplings required by section 
507(b)(15) of SMCRA. Accordingly, the Director is approving the 
proposed revision at NDAC 69-05.2-29-07(1).
g. NDAC 69-05.2-29-08(1)(a) Through (e), Small Operator Assistance--
Applicant Liability
    North Dakota proposed to revise NDAC 69-05.2-29-08(1)(a) through 
(e), the regulatory provisions that outline the circumstances under 
which an applicant must reimburse the commission for the cost of SOAP 
services.
1. NDAC 69-05.2-29-08, Introductory Text
    The introductory text at NDAC 69-05.2-29-08(1) provides:

    The applicant shall reimburse the commission for the cost of all 
services rendered under this chapter [i.e., NDAC 69-05.2-29] if * * 
*.

    Section 507(h) of SMCRA and 30 CFR 795.12(a) require, under 
specified circumstances, that a small operator reimburse the regulatory 
authority for the cost of all SOAP services, which, in accordance with 
section 507(c)(2) of SMCRA, includes the cost of training assistance.
    By comparison, North Dakota's proposed statutory change at NDCC 38-
14.1-37(4), proposed by the State in ``Amendment XVIII'' did not 
include training costs as an obligation for reimbursement by the 
operator. (For a discussion of the proposed statutory provision, see 
the additional final rule for North Dakota published elsewhere in this 
issue). Moreover, the proposed introductory text to NDAC 69-05.2-29-08 
only refers to ``services rendered under [NDAC 69-05.2-29]'' which do 
not include training assistance.
    However, as discussed in the additional final rule for North Dakota 
published elsewhere in this issue, section 507(c)(2) of SMCRA 
specifically references only ``the Secretary.'' OSM currently 
interprets ``the Secretary'' to mean the Secretary of the Interior, and 
not State regulatory authorities. Therefore, at the current time North 
Dakota is not obligated to provide training under SOAP. Accordingly, 
North Dakota's proposed introductory text at NDAC 69-05.2-29-08 is no 
less stringent than section 507(h) of SMCRA and no less effective than 
the recently revised Federal regulations at 30 CFR 795.12(a)(2).
2. NDAC 69-05.2-29-08(1)(a), (b), and (c)
    North Dakota proposed to revise NDAC 69-05.2-29-08(1)(a), (b), and 
(c) to require that the applicant shall reimburse the Commission for 
the cost of all SOAP services rendered under the NDAC 69-05.2-29 if the 
applicant submits false information, the applicant fails to submit a 
permit application within one year after receiving the approved report 
from the qualified public or private entity, or the applicant fails to 
mine after obtaining the permit. North Dakota's proposed revision of 
its rules at NDAC 69-05.2-29-08(1)(a), (b), and (c) are substantively 
similar to and no less effective in meeting SMCRA's requirements than 
the corresponding Federal provisions at 30 CFR 795.12(a)(1).
3. NDAC 69-05.2-29-08(1)(d)
    North Dakota also proposed to revise NDAC 69-05.2-29-08(1)(d) to 
provide that the applicant shall reimburse the Commission for the cost 
of all services provided under NDAC 69-05.2-29 if the Commission finds 
that the operator's actual and attributed annual coal production for 
all locations exceeds three hundred thousand tons during the 12 months 
immediately following the date the operator is issued a surface coal 
mining and reclamation permit. North Dakota proposed this revision of 
its rule in order to implement the proposed statutory provisions of 
NDCC 38-14.1-37(4) (see ``Amendment XVIII'' dated April 21, 1993, 
administrative record No. ND-Q-1). (For a discussion of the proposed 
statutory provision, see the additional final rule for North Dakota 
published elsewhere in this issue.)
    North Dakota's proposed revision of its rule at NDAC 69-05.2-29-
08(1)(d) is substantively similar to section 507(h) of SMCRA and the 
recently revised Federal counterpart regulation at 30 CFR 795.12(a)(2).
4. NDAC 69-05.2-29-08(1)(e)
    Finally, North Dakota proposed to revise NDAC 69-05.2-29-08(1)(e) 
to provide that the applicant shall reimburse the Commission for the 
cost of all services provided under NDAC 69-05.2-29 if the applicant 
sells, transfers, or assigns the permit to another person and the 
transferee's total actual and attributed production exceeds the three 
hundred thousand tons [272,155.41 metric tons] annual production limit 
during any consecutive twelve-month period of the remaining permit 
term, and that the applicant and successor are jointly and severally 
obligated to reimburse the Commission.
    Proposed NDAC 69-05.2-29-08(1)(e) is more stringent than the 
recently revised corresponding Federal regulation at 30 CFR 
795.12(a)(3). North Dakota's provision serves to impose reimbursement 
liability based upon the annual production rates for the entire term of 
the permit, whereas the Federal regulation only takes into account the 
production rate for the twelve months immediately following the date on 
which the permit was originally issued.
    Therefore, the Director finds that NDAC 69-05.2-29-08(1)(e) is more 
stringent than the Federal regulation at 30 CFR 795.12(a)(3). In 
accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State 
regulatory authority has the discretion to impose land use and 
environmental controls and regulations on surface coal mining and 
reclamation operations that are more stringent than those imposed under 
SMCRA and the Federal regulations. Section 505(b) of SMCRA and 30 CFR 
730.11(b) dictate that such State provisions shall not be construed to 
be inconsistent with SMCRA or the Federal regulations. Accordingly, the 
Director is approving proposed NDAC 69-05.2-29-08(1)(e).
5. Summary
    Based upon the above discussion, the Director finds that North 
Dakota's proposed revisions at NDAC 69-05.2-29-08(1) (a) through (e) 
are not inconsistent with section 507(h) or SMCRA and no less effective 
in meeting SMCRA's requirements than the Federal regulations at 30 CFR 
795.12(a) (1) through (3) and is approving the proposed rules.
h. NDAC 69-05.2-29-08(2), Small Operator Assistance--Applicant 
Liability--Good Faith Waiver of Liability for Reimbursement.
    North Dakota proposed to revise NDAC 69-05.2-29-08(2) to limit the 
circumstances under which the Commission can waive the reimbursement 
obligation of an operator who receives SOAP assistance. Prior to this 
amendment, NDAC 69-05.2-29-08(2) allowed the Commission to waive a SOAP 
applicant's obligation to reimburse the Commission for assistance 
whenever it found that the applicant at all times acted in good faith. 
North Dakota now proposes to limit the Commission's discretion by 
revising NDAC 69-05.2-29-08(2) so that it provides as follows:

    The commission may waive the reimbursement obligation under the 
conditions described in [NDAC 69-05.2-08(1) (b) and (c)] if it finds 
that the applicant at all times acted in good faith.

    The State regulations at NDAC 69-05.2-08(1) (b) and (c) describe 
the following two situations that can trigger an applicant's obligation 
for reimbursement of the cost of SOAP assistance:

    b. The applicant fails to submit a permit application within one 
year after receiving the approved report from the qualified public 
or private entity [performing SOAP services].
    c. The applicant fails to mine after obtaining a permit.

    Thus, under the State proposal, the commission may allow a ``good-
faith waiver'' of a SOAP applicant's reimbursement obligation only if 
the applicant's obligation was triggered by the situations described at 
NDAC 69-05.2-29-08(1) (b) or (c). No such good-faith waiver is allowed 
if the applicant's reimbursement obligation was triggered by something 
other than those specified situations.
    The Federal regulation at 30 CFR 795.12(b) allows the program 
administrator [regulatory authority] to waive the reimbursement 
obligation if he or she finds that the applicant at all times acted in 
good faith. Since waiver of the applicant's reimbursement obligation is 
a matter left within the discretion of the State regulatory authority 
under the current Federal regulations, North Dakota's proposed change 
at NDAC 69-05.2-29-08(2) is not inconsistent with the Federal 
regulation at 30 CFR 795.12(b). Therefore, the Director is approving 
the proposed rule.

IV. Summary and Disposition of Comments

1. Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received, and because no one requested an opportunity to testify at the 
public hearing, no hearing was held.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), the Director solicited comments on 
North Dakota's proposed amendment from the U.S. Environmental 
Protection Agency (EPA), the U.S. Department of Agriculture, and 
various other Federal agencies with an actual or potential interest in 
the North Dakota program.
    By letter dated November 10, 1993, the Bureau of Reclamation stated 
it had no comments on the proposed amendment (administrative record No. 
ND-T-04).
    By letter dated November 16, 1993, the Soil Conservation Service 
stated it had no specific comments pertaining to this amendment 
(administrative record No. ND-T-06).
    By letter dated November 19, 1993, the Mine Safety and Health 
Administration (MSHA) stated that the amendment did not conflict with 
any of MSHA's current regulations (30 CFR parts 0-199), and therefore, 
it had no comments concerning the proposed changes (administrative 
record No. ND-T-07).
    By undated letter received November 29, 1993, the Bureau of Indian 
Affairs stated it had no objections to the proposed amendment because 
it did not affect Indian lands (administrative record No. ND-T-09).
    By letter dated November 30, 1993, the Bureau of Mines stated it 
had no comments (administrative record No. ND-T-10).
    By letter dated December 1, 1993, the U.S. Fish and Wildlife 
Service stated it did not anticipate any significant impacts to fish 
and wildlife resources as a result of the proposed amendment and, 
therefore, did not have any substantive comments to offer 
(administrative record No. ND-T-11).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), the Director is required to 
solicit the written concurrence of EPA with respect to those provisions 
of the proposed program amendment that relate to air or water quality 
standards promulgated 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 its rules 
pertain to air or water quality standards. However, OSM still requested 
EPA's concurrence with the proposed amendment (administrative record 
No. ND-T-03).
    By letter dated November 10, 1993, EPA responded that it had no 
comments on the proposed amendment. EPA also stated it did not believe 
that there would be any impacts to water quality standards promulgated 
under the authority of the Clean Water Act (administrative record No. 
ND-T-05).

4. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), the Director provided the proposed 
amendment to the SHPO and ACHP for comment. Neither SHPO nor ACHP 
provided any comments to OSM.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by North Dakota on October 22, 1993. The 
Director approves the rules as proposed by North Dakota with the 
provision that they be promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public. Approval of these 
rules by the Director does not prevent OSM from requiring North Dakota 
to make additional revisions to its program pending the promulgation of 
final Federal regulations at 30 CFR Part 795 to implement the changes 
to SMCRA, as amended, regarding the SOAP program.
    The Federal regulations at 30 CFR part 934, codifying decisions 
concerning the North Dakota program, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12886 (Regulatory Planning and 
Review).

2. Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such 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 12550) and 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.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
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)).

4. 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. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined 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 that 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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.

VII. List of Subjects in 30 CFR 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 15, 1994.
Richard E. Dawes,
Acting Assistant Director, Western Support Center.

    For the reasons set out in the preamble, Title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 934--NORTH DAKOTA

    1. The authority citation for Part 934 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 934.15 is amended by adding paragraph (s) to read as 
follows:


Sec. 934.15  Approval of regulatory program amendments.

* * * * *
    (s) Revisions to the following provisions of the North Dakota 
Administrative Code, as submitted to OSM on October 22, 1993 [Amendment 
XIX], are approved effective July 22, 1994.
    NDAC 69-05.2-17-02, Performance standards-use of explosives-pre-
blasting survey requirements; NDAC 69-05.2-29-01(2), small operator 
assistance-responsibilities of the commission-qualified public and 
private entities; NDAC 69-05.2-29-02(1) (a) and (b), small operator 
assistance-program services; NDAC 69-05.2-29-03 (2) and (5), small 
operator assistance-eligibility for assistance; NDAC 69-05.2-29-04, 
small operator assistance-filing for assistance; NDAC 69-05.2-29-05, 
small operator assistance-application approval-notice of denial; NDAC 
69-05.2-29-06(1)(a), small operator assistance-data requirements; NDAC 
69-05.2-29-07(1), small operator assistance-assistance funding; NDAC 
69-05.2-29-08(1) (a) through (e), small operator assistance-applicant 
liability; and NDAC 69-05.2-29-08(2), small operator assistance-
applicant liability-good faith waiver of liability for reimbursement.

[FR Doc. 94-17883 Filed 7-21-94; 8:45 am]
BILLING CODE 4310-05-M