[Federal Register Volume 60, Number 217 (Thursday, November 9, 1995)]
[Proposed Rules]
[Pages 56549-56551]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-27812]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 934

[ND-032-FOR; Amendment XXII]


North Dakota Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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[[Page 56550]]


SUMMARY: OSM is announcing receipt of additional proposed revisions and 
additional explanatory information pertaining to a previously proposed 
amendment to the North Dakota regulatory program (hereinafter, the 
``North Dakota program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The revisions and additional 
explanatory information for North Dakota's proposed rules and statutes 
pertain to the North Dakota program's Small Operator Assistance 
Program, and individual civil and criminal penalties. The amendment is 
intended to revise the North Dakota program to be consistent with the 
corresponding Federal regulations and SMCRA.

DATES: Written comments must be received by 4 p.m., m.s.t., November 
24, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to Guy 
Padgett at the address listed below.
    Copies of the North Dakota program, the proposed amendment, and all 
written comments received in response to this document will be 
available for public review at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays. Each 
requester may receive one free copy of the proposed amendment by 
contacting OSM's Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining 
Reclamation and Enforcement, 100 E. ``B'' Street, Room 2128, Casper, WV 
82601-1918, Telephone: (307) 261-5776
North Dakota Public Service Commission, Reclamation Division, Capitol 
Building, Bismarck, ND 58505-0165, Telephone: (701) 224-4092

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. General background information on 
the North Dakota program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval of the North 
Dakota program can be found in the December 15, 1980, Federal Register 
(45 FR 82214). Subsequent actions concerning the North Dakota program 
and program amendments can be found at 30 CFR 934.12, 934.13, 934.15, 
934.16, and 934.30.

II. Proposed Amendment

    By letter dated April 12, 1995, North Dakota submitted a proposed 
amendment to its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). 
(Amendment number XXII, Administrative Record No. ND-W-01). North 
Dakota submitted the proposed amendment in response to the required 
program amendment at 30 CFR 934.16(y) and in response to an 
inconsistency with SMCRA that was identified in a July 22, 1994, 
rulemaking action (59 FR 37426). The provisions of the North Dakota 
Century Code (NDCC) that North Dakota proposes to revise or add are: 
NDCC 38-14.1-37(4) [SOAP, reimbursement of costs], and NDCC 38-12.1-08 
[coal exploration, individual civil and criminal penalties].
    OSM announced receipt of the proposed amendment in the May 2, 1995, 
Federal Register (60 FR 21484), provided an opportunity for a public 
hearing or meeting on its substantive adequacy, and invited public 
comment on its adequacy (Administrative Record No. ND-W-04). Because no 
one requested a public hearing or meeting, none was held. The public 
comment period ended on June 1, 1995.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of NDCC 38-12.1-08, individual civil 
penalties. OSM notified North Dakota of the concerns by letter dated 
August 28, 1995 (Administrative Record No. ND-W-12). North Dakota 
responded in a letter dated October 19, 1995, by submitting additional 
proposed revisions and additional explanatory information 
(Administrative Record No. ND-W-14).
    North Dakota proposes revisions to North Dakota Administrative Code 
chapter 43-02-01 and additional explanatory information pertaining to 
NDCC 38-12.1-08, individual civil and criminal penalties.
    Specifically, North Dakota explains that North Dakota law does 
provide statutory authority subjecting officers, directors, and agents 
to individual civil and criminal penalties even though it is the 
corporation, not the individuals, that committed the violation. North 
Dakota cites statutory provisions not previously incorporated into the 
North Dakota program, specifically NDCC 12.1-03-03. This statute 
provides (1) that a person is legally accountable for any conduct he 
performs or causes to be performed in the name of an organization, and 
(2) that whenever duty or act is imposed upon an organization by a 
statute or regulation, any agent of the organization having primary 
responsibility for the subject matter of the duty is legally 
accountable for an omission to perform the required act.
    North Dakota further explains that the legislative hearings and the 
legislative history of NDCC 38-12.1-08 demonstrates a legislative 
intent (1) to subject directors, officers, and agents to civil and 
criminal penalties even though it is the corporation, not the 
individual, that committed the violation, and (2) to make NDCC 38-12.1-
08 no less stringent than SMCRA Section 518(f).
    North Dakota also notes that NDCC 38-12.1-04 gives the commission 
authority to enforce orders to effectuate NDCC chapter 38-12.1, and 
that NDCC 38-12.1-08 imposes civil and criminal penalties for any 
person who violates that chapter, which would include orders issued 
pursuant to NDCC 38-12.1-04. Further, North Dakota notes that, as a 
practical matter, there has been very limited coal exploration in the 
State for the last decade.
    Finally, North Dakota proposes to add new regulatory provisions at 
North Dakota Administrative Code (NDAC) 43-02-01 to implement the 
statutory provisions described above. The proposed rules include the 
following provisions: (1) when a corporate permittee violates permit 
conditions or any rule imposed under NDAC chapter 43-02-01 or NDCC 
chapter 38-12.1, or fails or refuses to comply with orders issued by 
the commission (with one exception), any director, officer, or agent 
who willfully and knowingly authorized or carried out the violation, 
failure, or refusal shall be held accountable, and the commission shall 
enforce the civil and criminal penalties provided against the 
corporation; (2) a civil penalty may be assessed only after opportunity 
for public hearing; and (3) any civil penalties assessed may be 
recovered by the commission in civil actions in the appropriate North 
Dakota district court.

III. Public Comment Procedures

    OSM is reopening the comment period on the proposed North Dakota 
program amendment to provide the public an opportunity to reconsider 
the adequacy of the proposed amendment in light of the additional 
materials submitted. In accordance with the provisions of 30 CFR 
732.17(h), OSM is seeking comments on whether the proposed amendment 
satisfies the applicable program approval criteria of 30 CFR 732.15. If 
the amendment is deemed adequate, it will become part of the North 
Dakota program.
    Written comments should be specific, pertain only to the issues 
proposed in 

[[Page 56551]]
this rulemaking, and include explanations in support of the commenter's 
recommendations. Comments received after the time indicated under DATES 
or at locations other than the Casper Field Office will not necessarily 
be considered in the final rulemaking or included in the administrative 
record.

IV. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) 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 section 503 and 505 of SMCRA (30 
U.S.C. 1253 and 1255) 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.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 31, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-27812 Filed 11-8-95; 8:45 am]
BILLING CODE 4310-55-M