[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: X94-10722]


[[Page Unknown]]

[Federal Register: July 22, 1994]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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.

-----------------------------------------------------------------------

SUMMARY: OSM is approving, with certain exceptions and additional 
requirements, 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 primarily of changes to 
provisions of the North Dakota Century Code (NDCC) and the North Dakota 
Administrative Code (NDAC) concerning the Small Operator Assistance 
Program (SOAP), the definition of ``road'' as referenced in the coal 
exploration performance standards, and authorization for individual 
civil and criminal penalties under the coal exploration program. The 
amendment is intended to revise the North Dakota program to be 
consistent with SMCRA and the Federal regulations.

EFFECTIVE DATE: July 22, 1994.

FOR FURTHER INFORMATION CONTACT:Guy 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 Public Service 
Commission. General 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 can be found in the 
December 15, 1980, Federal Register (45 FR 82214). Subsequent actions 
concerning North Dakota's program and program amendments can be found 
at 30 CFR 934.15 and 934.16.

II. Proposed Amendment

    By letter dated April 21, 1993 (administrative record No. ND-Q-01), 
North Dakota submitted a proposed amendment (``Amendment XVIII'') to 
its permanent program pursuant to SMCRA. North Dakota proposed this 
amendment in response to required program amendments at 30 CFR part 
934.16 (l) and (y), published in the January 9, 1992, Federal Register 
(57 FR 827). In addition, North Dakota proposed State-initiated changes 
to the requirements for preblasting surveys and to NDCC chapter 38-14.1 
reflecting 1992 changes to the Small Operator Assistance Program by the 
Energy Policy Act of 1992 (Pub. L. 102-486) (Energy Policy Act) at 
sections 507 (c) and (h) of SMCRA. (For a document relating to the 
regulatory provisions 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.) The Director notes that Federal implementing regulations 
were published in a final rule Federal Register notice dated May 31, 
1994, addressing, in part, the changes to the Small Operator Assistance 
Program by the Energy Policy Act (59 FR 28136).
    OSM published a proposed rule in the May 19, 1993, Federla Register 
(58 FR 29155) announcing receipt of the amendment and inviting public 
comment on its adequacy (administrative record No. ND-Q-7). The public 
comment period ended June 18, 1993. The public hearing, scheduled for 
June 14, 1993, was not held because no one requested an opportunity to 
testify.
    During its review of the amendment, OSM identified concerns 
relating to: (1) The proposed provisions at NDCC 38-14.1-37(4), 
regarding SOAP requirements for reimbursement of training costs and 
NDCC 38-14.1-37(5), regarding the prohibition of SOAP assistance to 
operations not subject to payment of AML fees; (2) the requirement for 
North Dakota to revise its implementing rules at North Dakota 
Administrative Code (NDAC) 69-05.2-29 to be consistent with the 
proposed statutory revisions; and (3) the proposed revisions at NDCC 
38-12.1-03(6), regarding the definition of ``road'' and NDCC 38-12.1-
08, regarding the authorization for individual civil and criminal 
penalties under the coal exploration program. OSM notified North Dakota 
of these concerns by letter dated November 12, 1993 (administrative 
record No. ND-Q-14).
    By letter dated December 3, 1993, North Dakota responded by 
submitting additional explanatory information and a revised amendment 
(administrative record No. ND-Q-15). Specifically, North Dakota: (1) 
Stated, with respect to NDCC 38-14.1-37(4), SOAP requirements for 
reimbursement of training costs, that it will propose the necessary 
statutory change in the next legislative session; (2) provided a 
statement of clarification regarding North Dakota's intent with respect 
to its implementing rules for the revised SOAP statutory provisions; 
and (3) proposed to revise its rules at NDAC 43-02-01-20.3(c)(2), 
regarding the definition of ``road'' and NDAC 43-02-01-05, regarding 
the authorization for individual civil and criminal penalties under the 
coal exploration program.
    OSM announced receipt of the revised amendment in the December 28, 
1993, Federal Register (58 FR 68617, administrative record No. ND-Q-
16), and in the same notice, reopened and extended the public comment 
period on the adequacy of the amendment and the additional materials 
submitted. The comment period closed January 12, 1994.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed North Dakota program amendment as submitted on April 21, 1993, 
and revised on December 3, 1993.

1. NDCC 38-14.1-21(5), Permit Approval or Denial Standards

    NDCC 38-14.1-21(5) currently provides:

    Where information available to the commission indicates that any 
surface coal mining operation owned or controlled by the permit 
applicant is currently in violation of [NDCC Chapter 38-14.1], 
[SMCRA], or any law or rule of the United States or the state of 
North Dakota, or of any department or agency in the United States or 
the state of North Dakota pertaining to air or water environmental 
protection, incurred by the applicant in connection with any surface 
coal mining operation during the three-year period prior to the date 
of application the permit may not be issued until the permit 
applicant submits proof that such violation has been corrected or is 
in the process of being corrected to the satisfaction of the 
regulatory authority with jurisdiction over the violation.

    As noted by OSM in a final rule Federal Register notice dated 
January 9, 1992 (57 FR 807, 816-17), current NDCC 38-14.1-21(5) is 
similar to the Federal counterpart provision at section 510(c) of 
SMCRA, but the Federal provision, unlike the State counterpart, does 
not contain a temporal limitation upon the violations considered by the 
regulatory authority in making its decision to approve or deny a 
permit. The three-year temporal limitation in current NDCC 38-14.1-
21(5) renders North Dakota's statutory provision less stringent than 
section 510(c) of SMCRA.
    North Dakota has now proposed to delete the three-year temporal 
limitation from NDCC 38-14.1-21(5), thus rendering it no less stringent 
than section 510(c) of SMCRA. The Director notes that North Dakota's 
reference to SMCRA in revised NDCC 38-14.1-21(5) is interpreted to 
include SMCRA, its implementing rules, and all state and federal 
programs enacted pursuant to SMCRA. See e.g. 57 FR 807, 811-812, 816-
818 (January 9, 1992).
    The Director finds North Dakota's proposed statutory revision at 
NDCC 38-14.1-21(5) to be no less stringent than section 510(c) of SMCRA 
and is approving the proposed change.

2. NDCC 38-14.1-24(13)(e), Environmental Protection Performance 
Standards, Preblasting Survey Criteria.

    North Dakota proposed to revise NDCC 38-14.1-24(13)(e) by requiring 
that a preblasting survey be conducted by the permittee when requested 
by the resident or owner of a man-made dwelling or structure within one 
mile [1.61 kilometers] of any portion of the permitted area. Currently, 
the North Dakota statutory provision requires such a preblasting survey 
when requested by the resident or owner of a man-made dwelling or 
structure within one-half mile [804.67 meters] of any portion of the 
permitted area.
    Section 515(b)(15)(E) of SMCRA requires that a preblasting survey 
be conducted when requested by the resident or owner of a man-made 
dwelling or structure within one-half mile of any portion of the 
permitted area. North Dakota's proposed revision to NDCC 38-14.1-
24(13)(e) thus allows a potentially larger group of residents or owners 
within the vicinity of a mine to request a preblasting survey than is 
provided for by SMCRA. 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 hich 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 proposed 
statutory change at NDCC 38-14.1-24(13)(e).

3. NDCC 38-14.1-37, Small Operator Assistance Program (SOAP).

    North Dakota proposed numerous revisions to NDCC 38-14.1-37, 
regarding the North Dakota Small Operator Assistance Program (SOAP).
a. NDCC 38-14.1-37(2), Introductory Text
    In the introductory text of NDCC 38-14.1-37(2), North Dakota 
proposed to increase 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]. 
North Dakota also proposed, in the introductory text of NDCC 38-14.1-
37(2), that the costs of certain activities specified at NDCC 38-14.1-
37(2) (a) through (f) (discussed at findings 3 (b) through (g) below), 
which must be performed by a qualified public or private entity 
designated by the Commission, may be assumed by the Commission upon the 
written request of an operator in connection with a permit application.
    North Dakota's proposed revision to increase the amount of probable 
total annual production allowed for SOAP applicants from one hundred 
thousand tons to three hundred thousand tons is consistent with and no 
less stringent than section 507(c)(1) of SMCRA.
    North Dakota's proposal regarding the cost of certain activities 
that the Commission may assume upon written request of an operator in 
connection with a permit application would appear to grant discretion 
to the regulatory authority that is not granted in section 507(c)(1) of 
SMCRA. Section 507(c)(1) requires that the specified costs ``shall'' be 
assumed by the regulatory authority.
    This SMCRA provision is implemented in the Federal regulations at 
30 CFR 795.9(a), which require the payment of such costs for eligible 
applicants who request the assistance ``[t]o the extent possible with 
available funds.'' Similarly, North Dakota's rules at NDAC 69-05.2-29-
02 (introductory text) also require that the Commission pay costs for 
qualified applicants who request the assistance ``[t]o the extent 
possible with available funds.''
    Therefore, the Director finds North Dakota's proposed revisions to 
the introductory text of NDCC 38-14.1-37(2), when read in light of the 
regulatory limitations at NDAC 69-05.2-29-02, to be no less stringent 
than section 507(c)(1) of SMCRA and no less effective in meeting 
SMCRA's requirements as set forth in the Federal regulations at 30 CFR 
795.9(a).
    Based on the discussion above, the Director is approving the 
proposed changes to the introductory text of NDCC 38-14.1-37(2).
b. NDCC 38-14.1-37(2)(a), Probable Hydrologic Consequences
    North Dakota proposed to create new NDCC 38-14.1-37(2)(a) to 
incorporate a portion of original NDCC 38-14.1-37(2) allowing the 
commission's possible assumption, for qualified SOAP applicants, of the 
cost of the determination of probable hydrologic consequences (PHC 
determination) required by NDCC 38-14.1-14(1)(o) and to specify that 
such costs include the engineering analyses and designs necessary for 
the PHC determination.
    Proposed NDCC 38-14.1-37(2)(a) is substantively similar to and is 
no less stringent than section 507(c)(1)(A) of SMCRA. Accordingly, the 
Director is approving proposed NDCC 38-14.1-37(2)(a).
c. NDCC 38-14.1-37(2)(b), Development of Cross Sections, Maps and Plans
    North Dakota proposed to create new NDCC 38-14.1-37(2)(b) allowing 
the Commission's possible assumption, for qualified SOAP applicants, of 
the cost of the development of cross sections, maps, and plans required 
by NDCC 38-14.1-14(1)(r).
    Proposed NDCC 38-14.1-37(2)(b) is substantively similar to and is 
no less stringent than section 507(c)(1)(B) of SMCRA. Accordingly, the 
Director is approving proposed NDCC 38-14.1-37(2)(b).
d. NDCC 38-14.1-37(2)(c), Geologic Drilling
    North Dakota proposed to create new NDCC 38-14.1-37(2)(c) allowing 
the Commission's possible assumption, for qualified SOAP applicants, of 
the cost of the geologic drilling and the statement of the result of 
test borings and core samplings required by NDCC 38-14.1-14(1)(s).
    Proposed NDCC 38-14.1-37(2)(c) is substantively similar to and no 
less stringent than section 507(c)(1)(C) of SMCRA. Accordingly, the 
Director is approving proposed NDCC 38-14.1-37(2)(c).
e. NDCC 38-14.1-37(2)(d), Cultural Resource Information
    North Dakota proposed to create new NDCC 38-14.1-37(2)(d) allowing 
the Commission's possible assumption, for qualified SOAP applicants, of 
the cost of the collection of cultural resource information required by 
NDCC 38-14.1-14(1)(u), any other archaeological and historical 
information required by the superintendent of the state historical 
board, and the preparation of mitigation plans necessitated thereby.
    Proposed NDCC 38-14.1-37(2)(d) is substantively similar to and no 
less stringent than section 507(c)(1)(D) of SMCRA. Accordingly, the 
Director is approving proposed NDCC 38-14.1-37(2)(d).
f. NDCC 38-14.1-37(2)(e), Preblast Surveys
    North Dakota proposed to create new NDCC 38-14.1-37(2)(e) allowing 
the Commission's possible assumption, for qualified SOAP applicants, of 
the cost of preblast surveys required by NDCC 38-14.1-24(13)(e). In 
addition to this proposal, and as explained in the discussion in 
Finding No. 2 above, OSM is approving North Dakota's proposed revision 
to NDCC 38-14.1-24(13)(e), which requires a preblasting survey to be 
conducted by the permittee when requested by the resident or owner of a 
man-made dwelling or structure within one mile [1.61 kilometers] of any 
portion of the permitted area. Taken in conjunction with North Dakota's 
proposed revision to NDCC 38-14.1-24(13)(e), proposed NDCC 38-14.1-
37(2)(e) would allow North Dakota's SOAP program to pay for preblast 
surveys conducted within one mile from the permit boundary.
    Section 507(c)(1)(E) of SMCRA authorizes payment for preblast 
surveys only in accordance with section 515(b)(15)(E) of SMCRA. Section 
515(b)(15)(E), in turn, requires the applicant or permittee to conduct 
a preblasting survey upon request of a resident or owner of a man-made 
dwelling or structure within one-half mile of any portion of the 
permitted area.
    Thus, taken together, proposed NDCC 38-14.1-24(13)(e) and 38-14.1-
37(2)(e) effectively allow the Commission to use SOAP funds to cover 
potentially more costly preblast surveys than would be required under 
SMCRA. Since North Dakota has a preblast survey program requirement (1 
mile) that is more stringent than SMCRA's preblast survey program 
requirement (\1/2\ mile), small operators in North Dakota must meet the 
more stringent State standard. Accordingly, the additional costs 
associated with North Dakota's requirements regarding preblasting 
surveys may be paid for with SOAP funds. Finally, section 505(b) of 
SMCRA and 30 CFR 730.11(b) provide that any State law or regulation 
that provides for more stringent land use and environmental controls 
and regulations for surface coal mining and reclamation operations than 
do SMCRA or the Federal regulations shall not be construed to be 
inconsistent with SMCRA. Thus, based upon the discussion above, the 
Director finds that proposed NDCC 38-14.1-37(2)(d) is not inconsistent 
with section 507(c)(1)(E) of SMCRA and the Federal program and is 
approving it.
g. NDCC 38-14.1-37(2)(f), Fish and Wildlife Resource Information
    North Dakota proposed to create new NDCC 38-14.1-37(2)(f) allowing 
the Commission's possible assumption, for qualified SOAP applicants, of 
the cost of ``[t]he collection of site-specific resource information, 
and the development of protection and enhancement plans for fish and 
wildlife habitats and other environmental values required by the 
commission in accordance with this chapter.''
    Proposed NDCC 38-14.1-37(2)(f) is substantively similar to and no 
less stringent than section 507(c)(1)(F) of SMCRA. Accordingly, the 
Director is approving proposed NDCC 38-14.1-37(2)(f).
h. NDCC 38-14.1-37(3), Training of Small Operators
    North Dakota proposed to create new NDCC 38-14.1-37(3) to read as 
follows:

    The commission may provide or assume the cost of training coal 
operators who meet the qualifications in subsection 2 concerning the 
preparation of permit applications and compliance with the 
regulatory program.

    Section 507(c)(2) of SMCRA requires that the Secretary ``shall'' 
provide or assume the cost of training coal operators that meet the 
qualifications stated in section 507(c)(1) of SMCRA concerning the 
preparation of permit applications and compliance with the regulatory 
program. Moreover, section 507(c)(2) provides that the Secretary 
``shall'' ensure that qualified coal operators are aware of the 
assistance available under section 507(c) of SMCRA.
    Proposed NDCC 38-14.1-37(3) appears to grand discretion to the 
State regulatory authority regarding the provision of training 
assistance that is now allowed by section 507(c)(2) of SMCRA. However, 
section 507(c)(2) specifically references only ``the Secretary.'' OSM 
currently interprets ``the Secretary'' to mean the Secretary of the 
Interior, and not State regulatory authorities. Therefore, North 
Dakota's proposed statutory language at NDCC 38-14.1-37(3) is 
acceptable and it is unnecessary for North Dakota to revise proposed 
NDCC 38-14.1-37(3) to be substantively identical to section 507(c)(2) 
of SMCRA. However, if North Dakota ultimately decides to adopt the 
responsibility to provide or assume the training costs and inform 
qualified coal operators of the availability of assistance under SOAP, 
NDCC 38-14.1-37(3), because of its discretionary nature, will be less 
stringent than section 507(c)(2) of SMCRA. North Dakota will then be 
required to amend its program to mandate that the Commission ``shall'' 
provide or assume the costs of training and inform qualified coal 
operators of the availability of assistance under SOAP.
    Therefore, on the basis of the discussion above, proposed NDCC 38-
14.1-37(3) is no less stringent than section 507(c)(2) of SMCRA. For 
the reasons discussed above, the Director is approving proposed NDCC 
38-14.1-37(3).
i. NDCC 38-14.1-37(4), Reimbursement to the Commission of SOAP 
Assistance Funds
    North Dakota proposed to create new NDCC 38-14.1-37(4) to read as 
follows:

    An operator who has received assistance under [NDCC 38-14.1-
37(2)] shall reimburse the commission for the cost of the services 
rendered if the commission finds that the operator's actual and 
attributed annual production of coal for all locations exceeds three 
hundred thousand tons. * * * during the twelve months immediately 
following the date the operator is issued a surface coal mining and 
reclamation permit.

    This North Dakota proposal is similar to section 507(h) of SMCRA 
with one exception. Since the North Dakota proposal only refers to 
services provided under NDCC 38-14.1-37(2), it does not encompass any 
training assistance that may have been provided under NDCC 38-14.1-
37(3). By comparison, the Federal provision at section 507(h) of SMCRA 
requires operators, under such circumstances, to reimburse the 
regulatory authority for the cost of any training assistance provided 
by the regulatory authority, as well as for the cost of other services 
provided or funded by the regulatory authority under the SOAP program.
    North Dakota, in a letter dated December 3, 1993 (administrative 
record No. ND-Q-15), acknowledged that proposed NDCC 38-14.1-37(4) does 
not require the reimbursement of training costs in accordance with 
section 507(h) of SMCRA, and stated that it will propose the necessary 
statutory change in the next North Dakota legislative session. 
Moreover, North Dakota stated that if proposed NDCC 38-14.1-37(4) were 
approved, as submitted, the State would not provide or assume the cost 
of training any small operator until such time as the statutory 
revisions are made. As discussed in Finding No. 3(h) above, OSM 
currently interprets section 507(c)(2) of SMCRA to require that the 
Secretary of the Interior, and not the State regulatory authority, 
provide or assume the cost of training coal operators and, in 
accordance with that interpretation, North Dakota is not obligated to 
do so. However, should North Dakota decide to provide training as a 
result of revising proposed NDCC 38-14.1-37(3) discussed above, and use 
SOAP funds to do so in accordance with 30 CFR 795.5, the failure of 
proposed NDCC 38-14.1-37(34) to require the reimbursement of training 
costs to the Commission will be less stringent than the requirements of 
section 507(h) of SMCRA. Nevertheless, since North Dakota has stated 
that it will not provide or assume the cost of such training until full 
reimbursement of the cost of all SOAP assistance is statutorily 
required, the Director finds that NDCC 38-14.1-37(4), as proposed, is 
no less stringent than section 507(h) of SMCRA, and is approving it.
j. NDCC 38-14.1-37(5), Prohibition of SOAP Assistance to Operations Not 
Subject to Payment of Reclamation Fees
    North Dakota proposed to create new NDCC 38-14.1-37(5) to read as 
follows:

    Proposed surface coal mining operation that will not be subject 
to payment of reclamation fees required by [SMCRA] are not eligible 
for the assistance to small operators provided by [NDCC 38-14.1-37 
(2) and (3)].

    There are certain mining operations in the State of North Dakota 
that are considered coal mining operations under the State program and 
thus are regulated in the State pursuant to the North Dakota program, 
but which are not subject to the payment of reclamation fees pursuant 
to section 402 of SMCRA.
    For example, the North Dakota program encompasses operations 
extracting coal incidental to the extraction of other minerals where 
coal does not exceed 16\2/3\ percent of the tonnage of minerals removed 
for purposes of commercial use or sale (incidental coal mining 
operation). See 57 FR 37702, 37703-37704, (August 20, 1992). In 
contrast, the Federal definition of the term ``surface coal mining 
operations'' at 701(28)(A) of SMCRA and 30 CFR 700.5 specifically 
excludes incidental coal mining operations.
    Similarly, North Dakota regulates leonardite operations under its 
coal regulatory program. In contrast, OSM has taken the position that 
leonardite is not ``coal'' as defined in 30 CFR 700.5, and thus 
leonardite operations are not subject to regulation or oversight by OSM 
under SMCRA. See December 14, 1982, letter from OSM to the North Dakota 
Public Service Commission (administrative record No. ND-Q-17).
    Section 507(c)(1) of SMCRA provides for SOAP assistance to a 
qualified ``coal surface mining operator.'' Accordingly, since 
incidental coal and leonardite operations are not considered ``surface 
coal mining operations'' under the Federal program, such operations 
would not be regulated by OSM pursuant to SMCRA and thus would not 
qualify for SOAP assistance under SMCRA.
    The operators who will be deemed ineligible for SOAP assistance 
under the North Dakota proposal would not qualify for such assistance 
under the Federal program. Accordingly, the Director finds that North 
Dakota's proposed statute at NDCC 38-14.1-37(5) is not inconsistent 
with SMCRA and the Director is approving it.

4. Coal Exploration

    For purposes of clarification, the Director notes that in North 
Dakota, jurisdiction over surface coal mining and reclamation 
operations, including the Small Operator Assistance Program, is with 
the North Dakota Public Service Commission. However, jurisdiction over 
coal exploration, of which the following proposed revisions and 
findings pertain to, is with the North Dakota Industrial Commission, 
through the office of the Geological Survey. Thus, the surface coal 
mining and reclamation operation and coal exploration components of the 
North Dakota permanent program are administered by separate agencies.
a. NDCC 38-12.1-03(6) and NDAC 43-02-01-20.3(c)(2), Roads
    North Dakota proposed to create new NDCC 38-12.1-03(6), which 
defines the term ``road,'' as used in the coal exploration portions of 
the North Dakota program, to read as follows:

    ``Road'' means a surface or right of way for purposes of travel 
by land vehicles used in coal exploration. A road consists of the 
entire area of the right of way, including the roadbed, shoulders, 
parking and side areas, approaches, structure, ditches, and surface.

    The Federal regulations at 30 CFR 701.5 defines ``road,'' in part, 
as ``[a] surface right-of-way for purposes of travel by land vehicles 
used in surface coal mining and reclamation operations or coal 
exploration.'' In a letter dated November 12, 1993 (administrative 
record No. ND-Q-14), OSM identified two concerns with North Dakota's 
proposed definition.
    First, OSM stated that North Dakota's use of the word ``or'' in the 
first sentence of its proposed definition of ``road'' appeared to serve 
no useful purpose. Read literally, the proposed definition states that 
``[r]oad means a surface [for purposes of travel] * * * or a right-of-
way for purposes of travel * * *'' (emphasis added). OSM requested in 
its November 12, 1993, letter that North Dakota either: (1) Correct 
what appeared to be an editorial error in a subsequent rulemaking; or 
(2) clarify how the definition of ``road'' would be interpreted and 
applied.
    In a letter dated December 3, 1993, North Dakota responded that 
during the course of coal exploration, roads may be temporarily altered 
to leave established easements or rights-of-way and that the proposed 
definition of ``road'' at proposed NDCC 38-12.1-03(6) includes those 
roads. North Dakota further stated that the ``surface'' used for 
purposes of travel by land vehicles used in coal exploration are 
subject to regulation, whether those vehicles are traveling within 
established rights-of-way or outside of them. Based upon the State's 
explanation, the Director finds that North Dakota's use of the word 
``or'' in its proposed definition of ``road'' is not inconsistent with 
the Federal definition of ``road'' at 30 CFR 701.5.
    Second, OSM requested that North Dakota clarify its intent 
regarding the differences between the proposed definition of ``road'' 
in the coal exploration portions of the State program and the already-
approved definition of ``road'' in the surface coal mining and 
reclamation operations portions of the State program (NDAC 69-05.2-01-
02(92)). Specifically, the approved definition of ``road'' at NDAC 69-
05.2-01-02(92), like the Federal counterpart definition, explicitly 
includes access and haulroads constructed, reconstructed, improved, or 
maintained for use in operations, including use by coal hauling 
vehicles to and from transfer, processing, or storage areas. Proposed 
NDCC 38-12.1-03(6), however, does not contain a similar list of various 
types of roads encompassed by the definition.
    By letter dated December 3, 1993, North Dakota responded by 
acknowledging that the proposed definition of ``road'' at NDCC 38-12.1-
03(6) includes all rights-of-way used in coal exploration and was not 
intended to include exhaustive examples of all types of roads. North 
Dakota also submitted a proposed revision to its coal exploration 
regulations at NDAC 43-02-01-20.3(c)(2). The revised regulation would 
include a new clause clarifying that:

    A road is altered if it is constructed, reconstructed, improved, 
or maintained in any way that causes the changes described in this 
section.

    The Federal regulation defining ``road'' at 30 CFR 701.5 insofar as 
it concerns coal exploration, also includes ``[a]ccess and haul roads 
constructed, used, reconstructed, improved, or maintained for use in * 
* * coal exploration * * * .'' Thus, North Dakota's inclusion of the 
additional terms ``constructed, reconstructed, improved, and 
maintained'' into its coal exploration regulations at NDAC 43-02-01-
20.3(c)(2), when read in conjunction with the discussion above 
regarding the proposed statutory definition of ``road'' at NDCC 38-
12.1-03(6), effectively defines the term ``road'' to include all 
rights-of-way used in coal exploration as well as roads constructed, 
reconstructed, improved, or maintained in any way. The Director finds 
that North Dakota has clarified OSM's concerns with respect to North 
Dakota's interpretation of its proposed statutory definition of 
``road'' at NDCC 38-12.1-03(6) to ensure that it is consistent with the 
interpretation of the Federal definition of ``road'' at 30 CFR 701.5.
    For the reasons discussed above, the Director finds that proposed 
NDCC 38-12.1-03(6), defining the term ``road,'' and proposed NDAC 43-
02-01-20.3(c)(2), that includes the additional clarifying terms 
``constructed, reconstructed, improved, and maintained'' into its coal 
exploration regulations, are in accordance and consistent with the 
Federal definition of ``road'' at 30 CFR 701.5. Accordingly, the 
Director is approving the proposed changes and is removing the required 
program amendment codified at 30 CFR 934.16(l).
b. NDCC 38-12.1-04(1)(a), Jurisdiction of the Industrial Commission
    North Dakota proposed to revise NDCC 38-12.1-04(1)(a) to grant the 
Industrial Commission (Commission) the authority to require the 
furnishing of a reasonable bond amount sufficient to ensure the 
reclamation of roads used in coal exploration. Specifically, North 
Dakota proposed to revise NDCC 38-12.1-04(1)(a) to provide that the 
Commission, acting through the office of the state geologist, has the 
authority to require (italicized language to be added):

    The furnishing of a reasonable bond with good and sufficient 
surety, conditioned upon the full compliance with the provisions of 
this chapter, and the rules and regulations of the commission 
prescribed to govern the exploration for coal on state and private 
lands and roads used in coal exploration within the state of North 
Dakota.

    The Federal program does not require bonding for coal exploration. 
Thus, North Dakota's proposed revision specifically referencing roads 
used in coal exploration with respect to the furnishing of a reasonable 
bond for reclamation goes beyond the requirements of the Federal 
program.
    In accordance with section 505(b) of SMCRA and the Federal 
regulations at 30 CFR 739.11(b), the State regulatory authority has the 
discretion to impose land use and environmental controls and 
regulations on coal exploration 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 coal exploration operations 
for which no Federal counterpart exists. Section 505(b) of SMCRA and 30 
CFR 730.11(b) dictate that such provisions shall not be construed to be 
inconsistent with the Federal program. Accordingly, the Director is 
approving the proposed revision to NDCC 38-12.1-04(1)(a).
c. NDCC 38-12.1-08 and NDAC 43-02-01-05, Civil and Criminal Penalties
    North Dakota proposed to revise its statutory provision at NDCC 38-
12.1-08, regarding civil and criminal penalties in the coal exploration 
portions of the State program to read as follows (italicized language 
to be added):

    1. Any person, including a director, officer, or agent of a 
corporate permittee, who violates this chapter, or any permit 
condition or regulation implementing this chapter is subject to a 
civil penalty not to exceed five thousand dollars per day of such 
violation.
    Any person, including a director, officer, or agent of a 
corporate permittee, who knowingly violates this chapter, or any 
permit condition or regulation implementing this chapter or who 
knowingly reports information required by this chapter falsely is 
subject, upon conviction, to a criminal penalty of not more than ten 
thousand dollars or by imprisonment for not more than one year.

    In a letter dated November 12, 1993, OSM identified several 
concerns with North Dakota's proposed changes.

1. Statutory Authorization for Individual Penalties

    OSM notified North Dakota that although its proposed revisions to 
NDCC 38-12.1-08 purported to subject an individual director, officer, 
or agent of a corporate permittee to civil and criminal penalties when 
that individual committed a violation, the proposed revisions did not 
indicate under what circumstances an individual director, officer, or 
agent will be deemed to have committed a violation. In contrast, 
section 518(f) of SMCRA specifically addresses the circumstances under 
which a corporate director, officer, or agent may be individually 
subject to either civil or criminal penalties in connection with a 
violation committed by a corporate permittee. Section 518(f) of SMCRA 
provides, in part, that:

    Whenever a corporate permittee violates, a [law, rule, order, or 
permit condition] or fails or refuses to comply with an order issued 
under section 521 of this Act, or any order incorporated in a final 
decision issued by the Secretary under this Act * * * any director, 
officer, or agent of such corporation who willfully and knowingly 
authorized, ordered, or carried out such violation, failure, or 
refusal shall be subject to the same civil penalties, fines, and 
imprisonment that may be imposed upon a person under [sections 
518(a) and (e) of SMCRA].

    OSM stated that in order to be no less stringent than section 
518(f) of SMCRA, North Dakota must revise proposed NDCC 38-12.1-08 to 
clearly subject corporate directors, officers, or agents, to individual 
civil and criminal penalties in connection with violations committed by 
a corporate permittee, under the circumstances outlined in section 
518(f) of SMCRA.
    By letter dated December 3, 1993, North Dakota responded by 
submitting for OSM's approval the following proposed regulatory 
amendment to NDAC 43-02-01-05:

    Whenever a corporate permittee violates NDCC 38-12.1 [statutory 
requirements addressing coal exploration] or any permit condition or 
rule or other regulation implemented thereunder, a director, officer 
or agent of the corporate permittee who knowingly causes such 
violation is subject to the criminal penalties imposed under NDCC 
38-12.1-08(2). ``Knowingly'' is to be understood as defined by NDCC 
12.1-02-02. In addition, whenever a director, officer, or agent of a 
corporate permittee willfully or negligently violates NDCC 38-12.1 
or any permit condition or rule or regulation implemented 
thereunder, civil penalties may be imposed under NDCC 38-12.1-08(1). 
``Willfully'' and ``negligently'' are to be understood as defined by 
NDCC 12.1-02-02.

    North Dakota's proposed regulatory change addresses the 
circumstances under which a corporate director, officer or agent may be 
individually subject to criminal penalties in connection with a 
violation committed by a corporate permittee. However, the proposed 
regulatory change does not address the circumstances under which a 
corporate director, officer or agent may be individually subject to 
civil penalties in connection with a violation committed by a corporate 
permittee. Accordingly, the Director is approving proposed NDAC 43-02-
01-05 to the extent that it specifically addresses the circumstances 
under which a corporate director, officer or agent may be individually 
subject to criminal penalties in connection with a violation committed 
by a corporate permittee. However, the Director is requiring North 
Dakota to further amend NDAC 43-02-01-05 to specifically address the 
circumstances under which a corporate director, officer, or agent may 
be individually subject to civil penalties in connection with a 
violation committed by a corporate permittee.
    Moreover, because North Dakota's proposed statutory revisions do 
not address when a corporate director, officer or agent may be 
individually subject to either civil or criminal penalties in 
connection with a violation committed by a corporate permittee, 
proposed NDCC 38-12.1-08 remains deficient. Therefore, the Director is 
not approving NDCC 38-12.1-08 and is requiring North Dakota to amend 
NDCC 38-12.1-08 to specifically address the circumstances under which a 
corporate director, officer, or agent may be individually subject to 
either civil or criminal penalties in connection with a violation 
committed by a corporate permittee.

2. Nature of Violations That Subject Individuals to Penalties

    In the November 12, 1993, letter, OSM notified North Dakota that 
NDCC 38-12.1-08(1) would subject an individual to civil penalties for 
any violation and would subject individuals to criminal penalties for 
any violation committed ``knowingly.'' In contrast, section 518(f) of 
SMCRA subjects a corporate director, officer, or agent to penalties 
only when that individual ``willfully and knowingly authorized, 
ordered, or carried out'' the act or omission that constitutes the 
violation.
    Thus, OSM noted that because proposed NDCC 38-12.1-08 would subject 
individuals to civil and criminal penalties for a wider, more 
inclusive, range of actions or omissions than are covered by SMCRA 
518(f), it would be more stringent than SMCRA. However, OSM requested 
that North Dakota clarify its intent regarding these provisions and 
reaffirm that these provisions did not conflict with other State law 
requirements.
    As discussed in Finding No. 4(c)(1) above, by letter dated December 
3, 1993, North Dakota responded by submitting for OSM's approval 
proposed regulatory amendments to NDAC 43-02-01-05. Those proposed 
regulatory amendments provide for criminal penalties in connection with 
violations committed ``knowingly'' and civil penalties in connection 
with violations committed either ``willfully'' or ``negligently.''
    North Dakota also attached a copy of the cross-referenced 
definitions of the terms ``knowingly,'' ``willfully,'' and 
``negligently'' at section 12.1-02-02 of the North Dakota Criminal 
Code. In accordance with that provision, a person engages in conduct:

    a. ``Intentionally'' if, when he engages in the conduct, it is 
his purpose to do so.
    b. ``Knowingly'' if, when he engages in the conduct, he knows or 
has a firm belief, unaccompanied by substantial doubt, that he is 
doing so, whether or not it is his purpose to do so.
    c. ``Recklessly'' if he engages in the conduct in conscious and 
unjustifiable disregard of a substantial likelihood of the existence 
of the relevant facts or risks, such disregard involving a gross 
deviation from acceptable standards of conduct, except that, as 
provided in section 12.1-04-02, awareness of the risk is not 
required where its absence is due to self-induced intoxication.
    d. ``Negligently'' if he engages in the conduct in unreasonable 
disregard of a substantial likelihood of the existence of the 
relevant facts or risks, such disregard involving a gross deviation 
from acceptable standards of conduct.
    e. ``Willfully'' if he engages in the conduct intentionally, 
knowingly, or recklessly.

    North Dakota stated that the above-described standards are more 
stringent than the Federal standard. North Dakota also stated that it 
has been enforcing a similar standard in its environmental laws for a 
long time without any problems.
    The Director has reviewed the State definitions of the terms 
``knowingly,'' ``willfully,'' and ``negligently'' in connection with 
the review of proposed NDAC 43-02-01-05. The Director notes that the 
proposed State standards are substantively different from the Federal 
standards set forth at 30 CFR 846.5.
    First, the Federal standard is the same for both individual civil 
and criminal penalties, while the State proposes two separate standards 
for individual civil and criminal penalties. Under the Federal rules, a 
corporate director, officer, or agent may be individually subject to 
either civil or criminal penalties if that individual both 
``knowingly'' and ``willfully'' authorized, ordered, or carried out the 
act or omission that constitutes the violation. In contrast, the State 
has proposed two separate standards for individual civil and criminal 
penalties. Under the State proposal, a corporate director, officer, or 
agent may be individually subject to criminal penalties in connection 
with a violation committed by the corporate permittee if the individual 
knowingly caused the violation. In comparison, under the State 
proposal, a corporate director, officer, or agent is subject to 
individual civil penalties if that individual commits a violation 
``willfully'' or ``negligently.''
    Although North Dakota and OSM use some of the same terms in 
describing their standards for the imposition of individual civil and 
criminal penalties, the terms are not defined the same in the State 
program as they are in the Federal program. For example, the Federal 
definition of the term ``knowingly'' at 30 CFR 846.5 reads as follows:

    ``Knowingly'' means that an individual knew or had reason to 
know in authorizing, ordering or carrying out an act or omission on 
the part of a corporate permittee that such act or omission 
constituted a violation, failure or refusal.

    In addition, the Federal definition of the term ``willfully'' at 30 
CFR 846.5 reads as follows:

    ``Willfully'' means that an individual acted
    (1) Either intentionally, voluntarily or consciously, and
    (2) With intentional disregard or plain indifference to legal 
requirements in authorizing, ordering or carrying out a corporate 
permittee's action or omission that constituted a violation, failure 
or refusal.

    After conducting an independent review and analysis, the Director 
agrees with North Dakota that its proposed standards for the imposition 
of individual civil and criminal penalties appear to be more stringent 
than the Federal standards. Pursuant to section 505(b) of SMCRA and the 
Federal regulations at 30 CFR 730.11(b), the State regulatory authority 
has the discretion to impose land use and environmental controls and 
regulations on coal exploration 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 coal exploration operations 
for which no Federal counterpart exists. Section 505(b) of SMCRA and 30 
CFR 730.11(b) dictate that such provisions shall not be construed to be 
inconsistent with the Federal program. Accordingly, the Director is 
approving North Dakota's proposed definitions of the terms 
``knowingly,'' ``willfully,'' and ``negligently'' and that portion of 
North Dakota's Criminal Code at section 12.1-02-02 that contains those 
definitions, as incorporated at NDAC 43-02-01-05, as part of North 
Dakota's coal exploration program.

3. Listing of Actions, Failures, and Refusals That Subject Individuals 
to Penalties

    Finally, OSM, in the November 12, 1993, letter, notified North 
Dakota that, unlike section 518(f) of SMCRA, proposed NDCC 38-12.1-08 
does not explicitly include failure of refusal to comply with orders of 
the Commission as cause to subject individuals to penalties. In 
addition, OSM noted that the North Dakota coal exploration program does 
not explicitly address the issuance of orders by the Commission and 
that the program was approved by OSM on the basis of North Dakota's 
agreement to issue each coal exploration permit with a specific 
condition subjecting it to the requirements of 30 CFR 840, 842, 843, 
845, and 43 CFR part 4 (see 45 FR 82214, 82226; December 15, 1980) 
Section 518(f) of SMCRA subjects individuals to penalties when 
corporate permittees fail or refuse to comply with enforcement orders 
or any order (with minor exceptions) incorporated in a final decision 
of the regulatory authority.
    In the December 3, 1993, letter, North Dakota responded by 
acknowledging that its provisions at NDCC 38-12.1-08 regarding 
liability and penalties for failure to comply with orders of the 
Industrial Commission should be clearer, and expressed its willingness 
to approach the North Dakota Legislature in 1995 to request an 
amendment to NDCC 38-12.1-08 to include civil and criminal penalties 
for violations such orders.
    The Director agrees that North Dakota must amend NDCC 38-12.1-08. 
Therefore, the Director is not approving proposed NDCC 38-12.1-08 and 
is requiring North Dakota to amend its program to require that, in 
addition to violations, failure or refusal to comply with such orders, 
as listed in section 518(f) of SMCRA and issued by the North Dakota 
Industrial Commission, serves as an additional basis for imposing 
individual civil and criminal penalties upon corporate officers, 
directors, and agents. The required program amendment placed on North 
Dakota's program at 30 CFR 934.16(y), as a result of a January 9, 1992, 
rulemaking action (57 FR 807, 823-24) will be modified to reflect this 
decision.

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 a public hearing, no hearing was held.

2. Federal Agency Comments

    Pursuant to section 503(b) of SMCRA and the implementing 
regulations at 30 CFR 732.17(h)(11)(i), OSM solicited comments from the 
Administrator of the Environmental Protection Agency (EPA), the 
Secretary of Agriculture, and various other Federal agencies with an 
actual or potential interest in the North Dakota program.
    By letter dated May 19, 1993 (administrative record No. ND-Q-8), 
the Soil Conservation Service responded that it had no comment on the 
proposed amendment.
    By letter dated May 25, 1993 (administrative record No. ND-Q-9), 
the U.S. Bureau of Mines responded that it had no specific comments on 
the proposed amendment.
    By letter dated May 26, 1993 (administrative record No. ND-Q-10), 
the U.S. Fish and Wildlife Service responded that it had no substantive 
comments on the proposed amendment.
    By letter dated June 28, 1993 (administrative record No. ND-Q-12), 
the Mine Safety and Health Administration responded that it had no 
comments on the proposed amendment.

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the Administrator of EPA with respect to those 
aspects of a State 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.) and the Clean Air Act, as amended, (42 
U.S.C. 7401 et seq.). EPA gave its written concurrence with the 
proposed amendment by letter dated October 25, 1993 (administrative 
record No. ND-Q-13).

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

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments from the SHPO and ACHP for all amendments that may have an 
effect on historic properties. By letter dated May 7, 1993, OSM 
solicited comments from these offices (administrative record No. ND-Q-
6). Neither the SHPO nor the ACHP commented on the proposed amendment.

V. Director's Decision

    Based on the above findings, the Director approves, with three 
exceptions, North Dakota's proposed amendment as submitted on April 21, 
1993, and revised on December 3, 1993. As discussed in: Finding No. 1, 
North Dakota's proposed statutory revisions to NDCC 38-14.1-21(5) 
regarding permit approval or denial standards; Finding No. 2, the 
proposed statutory revisions to NDCC 38-14.1-24(13)(e) regarding 
preblasting survey criteria; Finding No. 3(a), the proposed statutory 
revisions to NDCC 38-14.1-37(2) regarding the probable total annual 
coal production and testing costs, as it applies to the North Dakota 
SOAP program; Finding No. 3(b), newly-created NDCC 38-14.1-37(2)(a) 
regarding probable hydrologic consequences and engineering designs, as 
they apply to the North Dakota SOAP program; Finding No. 3(c), newly-
created NDCC 38-14.1-37(2)(b) regarding the development of cross 
sections, maps, and plans, as it applies to the North Dakota SOAP 
program; Finding No. 3(d), newly-created NDCC 38-14.1-37(2)(c) 
regarding geologic drilling and a statement of the results of test 
borings and core samplings, as it applies to the North Dakota SOAP 
program; Finding No. 3(e), newly-created NDCC 38-14.1-37(2)(d) 
regarding cultural resource information, as it applies to the North 
Dakota SOAP program; Finding No. 3(f), newly-created NDCC 38-14.1-
37(2)(e) regarding the payment of costs for preblasting surveys, as it 
applies to the North Dakota SOAP program; Finding No. 3(g), newly-
created NDCC 38-14.1-37(2)(f) regarding fish and wildlife habitat 
enhancement plans, as it applies to the North Dakota SOAP program; 
Finding No. 3(h), newly-created NDCC 38-14.1-37(3) regarding North 
Dakota's discretionary authority to provide or assume training costs 
for small operators; Finding No. 3(i), newly-created NDCC 38-14.1-37(4) 
regarding the requirements for small operator reimbursement to North 
Dakota for the cost of permit application materials and training; 
Finding No. 3(j), newly-created NDCC 38-14.1-37(5) regarding the 
prohibition of assistance to small operations not subject to payment of 
AML fees; Finding No. 4(a), the proposed definition of ``road'' at 
newly-created NDCC 38-12.1-03(6), the clarifying terminology proposed 
at revised NDAC 43-02-01-20.3(c)(2), and removal of the required 
program amendment at 30 CFR 934.16(1); Finding No. 4(b), the proposed 
statutory revision to NDCC 38-12.1-04(1)(a) regarding the Commission's 
authority to require a reasonable bond amount sufficient to ensure the 
reclamation of roads used in coal exploration; Finding No. 4(c)(1), 
newly-proposed NDAC 43-02-01-05, to the extent that it specifically 
addresses the circumstances under which a corporate director, officer 
or agent may be individually subject to criminal penalties in 
connection with a violation committee by a corporate permittee; and 
finally, as discussed in Finding No. 4(c)(2), North Dakota's newly-
proposed standards for civil and criminal penalties, which use the 
proposed definitions of the terms ``knowingly,'' ``willfully,'' and 
``negligently,'' as set forth in North Dakota's Criminal Code at 12.1-
02-02 and incorporated at NDAC 43-02-01-05, as part of North Dakota's 
coal exploration program.
    However, as discussed in Finding Nos. 4 (c)(1) and (c)(3), the 
Director is not approving the proposed statutory revisions to NDCC 38-
12.1-08 and is requiring North Dakota to amend its program to (1) 
specifically address the circumstances under which a corporate 
director, officer, or agent may be individually subject to either civil 
or criminal penalties in connection with a violation committed by a 
corporate permittee; and (2) require that, in addition to violations, 
failure or refusal to comply with orders, as listed in section 518(f) 
of SMCRA and issued by the North Dakota Industrial Commission, serves 
as an additional basis for imposing individual civil and criminal 
penalties upon corporate officers, directors, and agents. The required 
program amendment placed on North Dakota's program at 30 CFR 934.16(y) 
will be modified to reflect this decision. In addition, as discussed in 
Finding No. 4(c)(1), the Director is requiring North Dakota to further 
amend NDAC 43-02-01-05 to specifically address the circumstances under 
which a corporate director, officer or agent may be individually 
subject to civil penalties in connection with a violation committed by 
a corporate permittee. Except as noted, the Director is approving these 
proposed rules with the provision that they be fully promulgated in 
identical form to the rules submitted to and reviewed by OSM and the 
public.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
934.16 that, within 60 days of the publishing of this notice, North 
Dakota would have to either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with North Dakota's established administrative or 
legislative procedures.
    The Federal regulations at 30 CFR part 934, which codify 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.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the North Dakota program, the Director will recognize only 
the statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by North Dakota of only 
such provisions.

VI. Procedural Determinations

1. Executive Order 12866

    This final rule is exempted from review by the Office of Management 
and Budget under Executive Order 12866 (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 of 1969 (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.

    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 (r) to read as 
follows:


Sec. 934.15  Approval of regulatory program amendments.

* * * * *
    (r) The following revisions to the North Dakota Century Code, as 
submitted to OSM on April 21, 1993, and as subsequently revised on 
December 3, 1993, are approved effective July 22, 1994.
    NDCC 38-14.1-21(5), concerning permit approval or denial standards; 
NDCC 38-14.1-24(13)(e), concerning preblasting survey criteria; NDCC 
38-14.1-37(2), concerning probable total annual coal production and 
testing costs as they apply to SOAP; NDCC 38-14.1-37(2)(a), concerning 
probable hydrologic consequences and engineering designs as they apply 
to SOAP; NDCC 38-14.1-37(2)(b), concerning the development of cross 
sections, maps and plans as they apply to SOAP; NDCC 38-14.1-37(2)(c), 
concerning geologic drilling and test results as they apply to SOAP; 
NDCC 38-14.1-37(2)(d), concerning cultural resource information as it 
applies to SOAP; NDCC 38-14.1-37(2)(e), concerning the payment of costs 
for preblast surveys as they apply to SOAP; NDCC 38-14.1-37(2)(f), 
concerning fish and wildlife habitat enhancement plans as they apply to 
SOAP; NDCC 38-14.1-37(3), concerning the discretionary authority to 
provide or assume training costs for small operators; NDCC 38-14.1-
37(4), concerning the requirements for small operator reimbursement; 
NDCC 38-14.1-37(5), concerning the prohibition of small operator 
assistance to operations not subject to payment of AML fees; NDCC 38-
12.1-03(6), concerning the definition of ``Road'' and the clarifying 
terminology proposed at NDAC 43-02-01-20.3(c)(2); NDCC 38-12.1-04(1)(a) 
regarding the Commission's authority to require a reasonable bond 
amount sufficient to ensure the reclamation of roads used in coal 
exploration; NDAC 43-02-01-05, to the extent that it specifically 
addresses the circumstances under which a corporate director, officer 
or agent may be held individually liable for criminal penalties in 
connection with a violation committed by a corporate permittee; and 
North Dakota's newly-proposed standards for civil and criminal 
penalties, which use the proposed definitions of the terms 
``knowingly,'' ``willfully,'' and ``negligently,'' as set forth in 
North Dakota's Criminal Code at 12.1-02-02 and incorporated at NDAC 43-
02-01-05, as part of North Dakota's coal exploration program.
    3. Section 934.16 is amended by adding an introductory paragraph, 
removing and reserving paragraph (l), revising paragraph (y), and 
adding paragraph (z) to read as follows:


Sec. 934.16  Required regulatory program amendments.

    Pursuant to 30 CFR 732.17(f)(1), North Dakota is required to submit 
to OSM by the specified date the following written, proposed program 
amendments, or a description of the amendments to be proposed that meet 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with North Dakota's established 
administrative and legislative procedures.
* * * * *
    (y) By September 20, 1994. North Dakota shall submit proposed 
revisions to NDCC 38-12.1-08 to (1) specifically address the 
circumstances under which a corporate director, officer, or agent may 
be individually subject to either civil or criminal penalties in 
connection with a violation committed by a corporate permittee; and (2) 
require that, in addition to violations, failure or refusal to comply 
with orders, as listed in section 518(f) of SMCRA and issued by the 
North Dakota Industrial Commission, serves as an additional basis for 
imposing individual civil and criminal penalties upon corporate 
officers, directors, and agents.
    (z) By September 20, 1994. North Dakota shall submit proposed 
revisions to NDAC 43-02-01-05 to specifically address the circumstances 
under which a corporate director, officer or agent may be individually 
subject to civil penalties in connection with a violation committed by 
a corporate permittee.

[FR Doc. 17882 Filed 7-21-94; 8:45 am]
BILLING CODE 4310-05-M