[Federal Register Volume 64, Number 215 (Monday, November 8, 1999)]
[Rules and Regulations]
[Pages 60654-60660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29152]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-038-FOR, Amendment No. XXVII]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the North Dakota regulatory program under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA).

[[Page 60655]]

North Dakota proposed revisions to rules for the definition of 
replacement of water supply, the issuance of rules, consolidation for 
multiple permit operations, the submission of an annual map to the 
Commission for all permit areas, and performance standards for the 
disposal of noncoal wastes. North Dakota intends to revise its program 
to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 8, 1999.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (307) 261-
6550, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the North Dakota program. You can find background information 
on the North Dakota program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the December 
15, 1980, Federal Register (45 FR 82214). You can find later actions on 
North Dakota's program and program amendments at 30 CFR 934.15 and 
934.16.

II. Proposed Amendment

    By letter dated September 2, 1998, (Administrative Record No. ND-
BB-01) North Dakota sent us an amendment to its program under SMCRA. 
North Dakota's amendment was in response to a July 17, 1997 letter 
(administrative record No. ND-BB-02) that we sent in accordance with 30 
CFR 732.17(c), and in response to the required program amendments at 30 
CFR 934.16(cc), and at its own initiative. The provisions of the North 
Dakota Administrative Code (NDAC) that North Dakota proposed to revise 
and add were: (1) NDAC 69-05.2-01-02.90, Replacement of water supply; 
(2) NDAC 69-05.2-01-03, publication of hearing notices; (3) NDAC 
69.05.2-05-09, Permit Applications--Consolidation for multiple permit 
operations; (4) NDAC 69-05.2-09-09, Permit applications--Operation 
plans--Surface water management--Ponds, impoundments, banks, dams, 
embankments, and diversions; (5) NDAC 69-05.2-13-02, Performance 
standards--General requirements--Annual map; (6) NDAC 69-05.2-13-08, 
Performance standards--General requirements Protection of fish, 
wildlife, and related environmental values; (7) NDAC 69-05.2-15-02, 
Performance standards--Suitable plant growth material--Removal; (8) 
NDAC 69-05.2-15-04, Performance standards--Suitable plant growth 
material--Redistribution; (9) NDAC 69-05.2-16-09, Performance 
standards--Hydrologic balance--Sedimentation ponds; and (10) NDAC 69-
05.2-19-04, Performance standards--Waste materials--Disposal of noncoal 
wastes.
    We announced receipt of the amendment in the September 21, 1998, 
Federal Register (63 FR 50177). In the same document we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. Because no one requested a 
public hearing or meeting, we did not hold one. The public comment 
period closed on October 21, 1998.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment. As discussed 
below, in accordance with SMCRA and 30 CFR 732.15 and 732.17, we find 
that the proposed program amendment submitted by North Dakota on 
September 2, 1998, is no less effective than the corresponding Federal 
regulations. Accordingly, we approve the proposed amendment.
    1. NDAC 69-05.2-01-02.90, Replacement of water supply. North Dakota 
submitted a definition of ``Replacement of Water Supply,'' in 
accordance with the Federal definition at 30 CFR 701.5 and pursuant to 
a June 5, 1996 letter from OSM (administrative record No. ND-BB-13).
    The proposed definition is very similar to the OSM definition 
except for the last part. Paragraph b(2) of the definition places 
additional requirements on a mining company when the water supply is 
not needed and the water supply owner waives the replacement of a 
premine water delivery system. The new language will require mining 
companies, when applying for final bond release, to provide public 
notice if the landowner waives the replacement of a premine water 
delivery system. The waiver would have to be clearly discussed in a 
newspaper advertisement and in letters that the mining company must 
provide as part of the bond release process. Based on comments received 
by the State on the final bond release application, the Commission will 
decide if a replacement water delivery system is needed to protect the 
public interest. If the Commission determines that a replacement water 
delivery system is needed, it would have to be installed by the mining 
company prior to the Commission granting final bond release. Providing 
the notice as part of the bond release process also gives interested 
persons the opportunity to request an informal conference on the bond 
release application and a formal hearing on the Commission's bond 
release decision. In accordance with Section 505(b) of SMCRA and the 
Federal regulations at 730.11(b), the State regulatory authority has 
the discretion to impose land use and environmental controls and 
regulations of surface coal mining and reclamation operations that are 
more stringent than those imposed under SMCR and the Federal 
regulations. Moreover, the State regulatory authority has the 
discretion to impose land use and environmental controls and 
regulations of 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 provisions shall not be construed to be 
inconsistent with the Federal program. Accordingly, the Director is 
approving the proposed revision to 69-05.2-01-02.90.
    2. NDAC 69-05.2-01-03, Publication of hearing notices. Current NDAC 
69-05.2-01-03(5) deals with public hearings required in connection with 
the proposal of the issuance, amendment, or repeal of a rule and 
provides as follows:

    The commission will publish notice of hearing twice in the 
official newspapers of each county in which surface coal mining 
operations occur and each daily newspaper of general circulation in 
the state. The commission will file the notice of hearing with the 
legislative council. The commission will cause the first publication 
and the filing with the legislative council to occur at least thirty 
days before the hearing.

The State proposed to change the provision to require that the 
commission will cause the last (rather than the first) publication, as 
well as the filing with the legislative council, to occur at least 
thirty days before the hearing. This change is being made to be 
consistent with legislative changes to North Dakota's Administrative 
Practices Act and will result in more advance notice of hearings. There 
is no Federal counterpart regulation. This proposed rule is not 
inconsistent with any provision of the Federal program; therefore, we 
approve it.
    3. NDAC 69.05.2-05-09, Permit Applications--Consolidation for 
multiple permit operations. There is no federal counterpart to this 
proposed rule. The current North Dakota rule allows permit monitoring 
plans to be consolidated into a single plan if a plan covers multiple 
permits. Most mines in North Dakota are incrementally permitted and 
therefore have multiple permits that apply to a given mine site.

[[Page 60656]]

Each of these permits contains nearly identical surface water, ground 
water, and wildlife monitoring plans. Any revision to the consolidated 
plan requires the filing of only one revision (to the most recently 
issued permit) rather than multiple revisions. We approved North 
Dakota's use of consolidated monitoring plans in the April 13, 1995 
Federal Register (60 FR 18744, administrative record No. ND-BB-16). 
North Dakota's proposed revision would give the North Dakota Public 
Service Commission discretion to allow other required permit 
information and plans to be consolidated into a single document that 
covers more than one permit. Some examples of other permit information 
that could be appropriately consolidated are ownership and control 
information, violation history, lease information, permit and license 
listings.
    North Dakota believes that consolidation is logical and appropriate 
where the same information applies to more than one permit. Thus 
consolidation would save time and effort for both the permittee and the 
State with no loss of information required by the approved State 
Program. The Commission would not allow the consolidation of site-
specific mining and reclamation plans that apply to only one permit and 
therefore would not be appropriate for consolidation.
    In a September 30, 1999 telephone conversation with Jim Deutsch, 
director of North Dakota Public Service Commission's Reclamation 
Division (administrative record No. ND-BB-17), Mr. Deutsch stated that 
the proposed rule has similar requirements and the same rationale that 
was submitted in writing to us with State Program Amendment ND-31-FOR 
(North Dakota amendment XXI) which OSM approved in the April 13, 1995 
Federal Register (60 FR 18744, administrative record No. ND-BB-16). As 
outlined in the April 13, 1995 Federal Register, each consolidated 
document would be subject to the following requirements:
    1. The consolidation of information and plans will be limited to 
sections of the permit application where the same information and plans 
cover more than one permit area. Each consolidated document will is 
subject to the approval procedures established for permit revisions.
    2. Each mining permit must be revised to describe the specific 
information and plans to be consolidated into a single document 
covering the entire surface coal mining and reclamation under permit.
    3. Each consolidated document is subject to review by the 
Commission at the time of the midterm review or renewal for each permit 
covered by the consolidated document in accordance with section 69-
05.2-11-01.
    4. A permittee may propose modifications to a consolidated document 
by filing a permit revision application to the most recently issued 
permit covered by the consolidated document.
    In addition, a separate consolidated plan would have to be 
developed for each category of plans (e.g., violation history, lease 
information, permit and license listings, ownership and control 
information). This would allow for easier review of the consolidated 
plans by both the regulatory authority and the public where one mine is 
covered by multiple permits.
    Also, individual permits would contain appropriate references to 
the various consolidated plans and the consolidated plans would be part 
of each permit. Since consolidated plans will be considered part of 
each mining permit they cover, failure to comply with the consolidated 
plans will subject the permittee to the same enforcement action as 
would the failure to comply with any other part of a mining permit. A 
single violation would be issued that lists all permits covered by the 
consolidated plan. North Dakota uses this same practice for violations 
of performance standards or requirements that are the same in more than 
one permit.
    Since consolidated plans may have to be revised, the reference in 
each permit must be to the most current consolidated plan. North Dakota 
will review each consolidated plan as part of its midterm and permit 
renewal reviews and will require any necessary revisions that result 
from these reviews. The North Dakota Public Service Commission is not 
precluded from reviewing permits an requiring permit revisions more 
frequently than at midterm or permit renewal (every five years). This 
applies to more frequent reviews of consolidated plans if necessary. 
The permittee may request revision of a consolidated plan by applying 
for a permit revision to the most recently issued permit covered by the 
consolidated plan. When new areas are added to a mining operation by 
application for new permits, the consolidated plan for the operation 
will have to be updated, and the updated consolidated plan will be 
subject to the approval procedures for permit applications. Following 
final bond release of any portion of the area covered by the 
consolidated plan, the permittee would have to continue monitoring that 
area (and/or continue complying with the applicable consolidated plan) 
until the consolidated plan was revised to delete the released area 
from the applicable plan(s).
    Based upon the above discussion, this proposed rule is not 
inconsistent with the Federal regulations; therefore, we approve it.
    4. NDAC 69-05.2-09-09, Permit application--Operation Plans--Surface 
Water Management--Ponds, impoundments, banks, dams, embankments, and 
diversions. North Dakota is proposing to have operators submit a 
general surface water management plan that identifies and describes 
each water management structure and provides preliminary technical 
information on the structures. North Dakota's rules do not use the 
term, ``siltation structure,'' which is used in the Federal 
regulations. Use of that term, however, is not mandatory. Both North 
Dakota's rules and the Federal rules, however, require the same thing: 
that drain-off water from disturbed areas pass through sedimentation 
ponds and meet effluent standards before it leaves the permit area. The 
State will require that detailed plans must be submitted and approved 
prior to the construction of a structure and that detailed plans must 
be included with the application for any structure to be built within 
the first year of the permit term. North Dakota will require the 
operator to submit with the general plan a schedule for construction of 
the structures.
    Federal regulations at 30 CFR 780.25(a) allow for a general plan to 
be submitted as long as no structures are built without prior approval 
and a timetable for construction of proposed structures is included 
with the submittal.
    Also included in the proposed rule change is the incorporation of 
new OSM provisions of ponds meeting certain Natural Resources 
Conservation Service (NRCS) criteria. In 1994 (59 FR 53028, Oct. 20, 
1994), OSM added additional information requirements for impoundments 
meeting Class B and C size criteria at 30 CFR 780.25(a). These changes 
were listed as a required program amendment in OSM's July 17, 1997 
letter to the Public Service Commission. The State is requiring 
operators to submit this additional information for Class B and C 
impoundments. Mining Safety and Health Administration (MSHA) standards 
require that plans be prepared and certified by a qualified registered 
professional engineer. North Dakota states in NDAC 69-05.2-09-16.1(h) 
that ``plans must be certified as meeting the

[[Page 60657]]

requirements of this article'' and ``this article'' refers to NDAC 69-
05.2 which includes a references to the MSHA provision on certification 
by a professional engineer at 30 CFR 77.216-2(17), as well as to a 
requirement (at 30 CFR 77.216(b)) that ``plans . . . be approved by the 
District Manager (of MSHA) prior to the beginning of any work 
associated with the construction of the impounding structure.''
    A new addition to North Dakota rule at NDAC 69-05.2-09-09.2(j) 
requires information on any direct connections of the impoundment basin 
to ground water flow in the area. This added provision has no Federal 
counterpart.
    30 CFR 780.25(a)(1)(v) requires that the general plan include a 
``certification statement which includes a schedule setting forth the 
dates that any detailed design plans for structures that are not 
submitted with the general plan will be submitted to the regulatory 
authority.'' The State's counterpart is NDAC 69-05.2-09-09 which 
states:

    d. Include a schedule of the approximate construction dates for 
each structure and, if appropriate, a timetable to remove each 
structure.

In addition, as stated above, the referenced 30 CFR 77.216(b) states 
that plans be approved by the District Manager (of MSHA) prior to the 
beginning of any work associated with the construction of the 
impounding structure.
    Based on the above discussion, the revised rule requires the 
submittal of all information that is required by the Federal 
regulations and is no less effective than the Federal regulations; 
therefore, we approve it.
    5. NDAC 69-05.2-13-02, Performance standards--General 
requirements--Annual map. There is no federal counterpart to this 
proposed rule. The required submission date for the annual map 
depicting permit areas and section lines is being moved back one month, 
from February to March. The reason is that coal operators in North 
Dakota have many other reports due near the beginning of the calendar 
year and need the additional month. In addition, the requirement for 
quarter lines is being eliminated because it is unnecessary and 
clutters the map. We find that this rule is not inconsistent with the 
Federal regulations and therefore approve it.
    6. NDAC 69-05.2-13-08, Performance standards--General 
requirements--Protection of fish, wildlife, and related environmental 
values. North Dakota's existing rules include a requirement for the 
applicant to report to the Public Service Commission by each February 
15 with the management plan results and data derived from the 
monitoring plan for the calendar year. The State has proposed to change 
the submittal of the monitoring reports to once every 2 years, in even 
numbered years. Yearly monitoring must still be carried out in 
accordance with approved monitoring plans.
    The Federal regulations for protection and enhancement plans (30 
CFR 780.16(b)) and performance standards (30 CFR 816.97) do not require 
a periodic report from the operator with management plan results and 
data derived from the monitoring plan for conducting fish and wildlife 
monitoring. Accordingly, we are approving the proposed revisions to 
NDAC 69-05.2-13-08.
    7. NDAC 69-05.2-15-02, Performance standards--Suitable plant growth 
material--Removal. Existing North Dakota rule NDAC 69-05.2-15-02(2)(a) 
requires that

(t)he suitable plant growth materials, commonly referred to as 
topsoil (first lift suitable plant growth material) and subsoil 
(second lift suitable plant growth material) as identified by the 
soil survey required by NDAC 69-05.2-08-10 must be removed and 
segregated in two separate operations, unless otherwise approved by 
the Commission. The topsoil removal operation for an area must be 
completed before subsoil removal begins or before any other 
disturbances occur in that area. If use of other suitable strata is 
approved as a supplement to suitable plant growth material, all such 
materials to be saved must be removed and segregated. Further 
disturbances which significantly alter an area must not begin until 
the subsoil or other suitable strata removal operations for that 
area have been completed and approved by the commission.

North Dakota proposes to add the following statement to the end of rule 
NDAC 69-05.2-15-02(2)(a),

(h)owever, the commission may waive the approval of subsoil removal 
operations if the operator demonstrates, in a detailed soil removal 
plan, surplus subsoil is available and that subsoil to be removed 
has good and relatively uniform characteristics. A request for such 
a waiver must be included as part of a detailed soil removal plan or 
permit revision application that contains the necessary information.

The Federal Regulations at 30 CFR 816.22(e) state that for subsoil 
segregation, ``[t]he regulatory authority may require that the B 
horizon, C horizon, or other underlying strata, or portions thereof, be 
removed and segregated, stockpiled, and redistributed as subsoil in 
accordance with the requirements of paragraphs (c) and (d) of this 
section if it finds that such subsoil layers are necessary to comply 
with the revegetation requirements of Secs. 816.111, 816.113, 816.114, 
and 816.116 of this Chapter.''
    North Dakota is proposing additional language to subsection 2 of 
NDAC 69-05.2-15-02 to allow the Commission to waive subsoil removal 
approvals when the operator demonstrates in a detailed soil removal 
plan that there is a surplus of stockpiled subsoil and the subsoil 
characteristics are good and relatively uniform. The Commission's rule 
has required operators to obtain approvals from the Reclamation 
Division once subsoil removal has been completed and before additional 
disturbance of the areas occur. The rule change will allow the 
Commission to waive such approvals in some instances. The waiving of 
this approval process will not reduce the amount of subsoil that must 
be removed and saved by the mine operator. A waiver request would be 
included as part of an annual soil removal plan or permit revision that 
provides the necessary information of soil inventories and a discussion 
of subsoil characteristics.
    The Federal regulations allow the regulatory authority to require 
subsoil segregation. There is no counterpart or discussion in the 
Federal regulations for the need for regulatory approval following 
completion of subsoil salvage operations and prior to initiation of 
additional disturbance. The North Dakota rules would continue to 
require subsoil salvage. The proposed amendment would only allow the 
State to waive the requirement that operators obtain approvals from the 
Reclamation Division once subsoil removal has been completed and before 
additional disturbance of the areas occur and only if the operator 
makes the required demonstration.
    Based on the above discussion, the proposed revisions to NDAC 69-
05.2-15-02(2)(a) are not inconsistent with the Federal regulations and 
therefore we approve them.
    8. NDAC 69-05.2-15-04, Performance standards--Suitable plant growth 
material--Redistribution. Under rule NDAC 69-05.2-15-04(4)(a)(2) North 
Dakota includes a tabled title ``Suitable Plant Growth Material 
Redistribution Thickness'' that identifies certain spoil properties 
(i.e., texture, sodium absorption ratio, and saturation percentage) and 
the total redistribution thickness of topsoil plus subsoil that must be 
used based on the given spoil properties.
    North Dakota rule NDAC 69-05.2-15-04(4)(c) states that this 
paragraph is effective only for those areas disturbed prior to the year 
1999.
    North Dakota proposes to eliminate saturation percentage as one of 
the spoil

[[Page 60658]]

properties that must be used to determine total topsoil plus subsoil 
redistribution thickness. North Dakota also proposed to delete NDAC 69-
05.2-15-04(4)(c).
    The Federal regulations at 30 CFR 816.102(f) require that exposed 
coal seams, acid- and toxic-forming materials, and combustible 
materials exposed, used, or produced during mining shall be adequately 
covered with nontoxic and noncombustible material, or treated, to 
control the impact on surface and ground water in accordance with 
Section 816.41, to prevent sustained combustion, and to minimize 
adverse effects on plant growth and the approved postmining land use.
    In the May 24, 1983 Federal Register promulgating the final rule in 
the Permanent Regulatory Program for backfilling and grading, two 
commenters were quoted as advocating retaining the 4-foot-cover 
requirement for acid- and toxic-forming material. We responded that:

    OSM is aware of the many potential problems that attend the 
proper disposal of toxic materials. However, a national standard for 
cover thickness is not the solution to these problems. Instead, the 
regulatory authority should set whatever standards, specific or 
otherwise, which provide the best solution within the state. The 
problems of interpretation will be avoided by allowing the state 
regulatory authorities to set and explain standards designed for 
local conditions. These standards must be based on the national 
performance standard requiring successful covering or treatment in 
accordance with the provisions of 30 CFR 816.102(f).

    The change proposes to eliminate saturation percentage as a 
parameter used for determining the total soil respread thickness when 
it is based on graded spoil characteristics. This change is supported 
by North Dakota State University technical report No. 8, (Relation of 
Saturation Percentage to Absorption Ratios in North Dakota Soils by 
Eugene C. Doll and F. Scott Carter, February 1991) recommended that the 
saturation percentage parameter be eliminated since it is of little 
practical value. The other change to this rule would eliminate the 
sunset clause for allowing total soil respread thicknesses to be based 
on regraded spoil characteristics. The North Dakota public Service 
Commission originally adopted provisions to base the total soil 
respread thickness on graded spoil properties as a result of 
reclamation research findings from studies conducted on mined lands in 
North Dakota in the late 1970's and early 1980's. The studies were 
primarily conducted on small plots and occurred over a relatively short 
period of time. Therefore, when the original provision was adopted, the 
Commission added a sunset clause (subdivision c of subsection 4) to 
require a future review to determine if the provision should be 
retained or deleted. While waiting for additional research findings, 
the Commission extended the sunset clause on two occasions.
    The sunset clause is now being eliminated since a 1997 research 
report by North Dakota State University (Reducing the Management 
Variable in Assessing Reclamation Success by Gary A. Albertson, 
February, 1997) found that yields on areas where the total soil 
respread thicknesses were based on the graded spoil properties were as 
good as reclaimed areas where all available topsoil and subsoil (up to 
60 inches) has been respread.
    While the Federal regulations require that exposed coal seams, 
acid- and toxic-forming materials, and combustible materials exposed, 
used, or produced during mining be adequately covered with nontoxic and 
noncombustible material, they do not include specific spoil properties 
requiring burial or the depth of burial required. North Dakota's 
proposed amendment to NDAC 69-05.2-15-04(4) (a)(2), does not reduce the 
effectiveness of the existing State rules, and the revised rule is not 
inconsistent with the Federal requirements at 30 CFR 816.102(f) and 
therefore we approve it.
    There is no federal counterpart to NDAC 69-05.2-15-04(4)(c). The 
deletion of this rule does not in any way render the State program less 
effective than the Federal regulations and therefore we approve it.
    9. NDAC 69-05.2-16-09, Performance standards--Hydrologic balance--
Sedimentation ponds. Revisions to this North Dakota rule are being made 
by the State to: (1) satisfy program amendment changes required in a 
July 17, 1997 letter from the U.S. Office of Surface Mining. 
(specifically, the reference to ponds meeting Mining Safety and Health 
Administration (MSHA) design criteria has been modified); and (2) to 
add performance standards for impoundments that meet the Class B or C 
criteria for dams in NRCS Technical Release No. 60 as required by the 
U.S. Office of Surface Mining in its July 17, 1997 letter).
    As proposed, North Dakota's rules at 69-05.2-16-09.17 and 69-05.2-
16-09.18 are no less effective than the corresponding Federal 
regulation at 30 CFR 816.49 dealing with stability, spillway, 
foundation investigations, and freeboard hydrograph. However, only NDAC 
69-05.2-16-09.18, which refers to impoundments meeting class B or C 
criteria for dams, specify foundation testing, not .17, which refers to 
the MSHA criteria at 30 CFR 77.216. NDAC 69-05.2-16-09.17.d, however, 
states that ``The criteria of the mine safety and health administration 
as published in 30 CFR 77.216 must be met.'' Mine Safety and Health 
Administration regulations at 30 CFR 77.216-2(a)(5) state that ``The 
plan * * * shall contain * * * the following information: A description 
of the physical engineering properties of the foundation materials on 
which the structure is or will be constructed'' (underlining added for 
emphasis). In order to make a description of the physical engineering 
properties of the foundation materials, foundation testing must be 
done. North Dakota's rule is therefore the equivalent of the Federal 
regulations and we approve it.
    10. NDAC 69-05.2-19-04, Performance standards--Waste materials--
Disposal of noncoal wastes. This revision is in response to Program 
Requirement 934.16(cc) which calls for ``placement and storage 
standards for all types of noncoal hazardous wastes.'' North Dakota 
proposed adding wording to its rule dealing with disposal of noncoal 
wastes generated as part of a mining operation to read as follows:
    Placement and storage of all types of noncoal wastes, including any 
hazardous materials, * * *
    The addition of the language makes the North Dakota rule no less 
effective than the Federal regulations at 30 CFR 816.89 and we approve 
the revision. We also are removing the required program amendment at 30 
CFR 934.16(cc).
    11. NDAC 69-05.2-08-15(3)(a). The required program amendment at 30 
CFR 934.16(n) requires revision to North Dakota rules for submission of 
site-specific fish and wildlife resource information when the permit or 
adjacent areas are likely to include species listed or proposed to be 
listed by North Dakota under State statutes similar to the Endangered 
Species Act.
    This required program amendment resulted through a misunderstanding 
of the State's statute at NDCC (North Dakota Century Code) 20.1-02-05, 
``Powers of the (Game and Fish Department) Director.'' It was 
interpreted in the January 9, 1992 Federal Register (57 FR 814) to mean 
that North Dakota had its own Endangered Species Act and if in fact it 
did, then it needed to refer to it, as the Federal regulations require 
at 30 CFR 780.16(a)(2).
    After an extensive review of both North Dakota's statute and its 
regulations, it is clear that the State statute is referring to the 
U.S. Endangered Species Act of 1973. In a

[[Page 60659]]

June 19, 1997 letter (administrative record No. ND-BB-12) to ND 
Reclamation Division Director, James R. Deutsch, Natural Resource 
Biologist, John Schumacher, who is with the ND Game and Fish 
Department, stated that ``North Dakota does not have legislation 
governing endangered species,'' and ``We instead defer to the Federal 
laws and regulations.'' Therefore the existing State regulations, NDAC 
(North Dakota Administrative Code) 69-05.2-08-15(3)(a) are no less 
effective than the Federal regulations at 30 CFR 780.16(a)(2)(i) and we 
are eliminating the required program amendment at 30 CFR 934.16(n).

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    No individual or State agency name responded to OSM's invitation 
for comments.

2. Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(I), we requested comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the North Dakota program.
    The Agricultural Research Service of the U.S. Department of 
Agriculture responded on October 5, 1998 that it saw no problems with 
the proposed changes (administrative record No. ND-BB-05).
    The U.S. Fish and Wildlife Service responded on October 9, 1998 
that the proposed changes are logical and reasonable and that it did 
not anticipate any significant impacts to fish and wildlife resources 
as a result of the proposed rules (administrative record No. ND-BB-07).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are to get a written agreement 
from the EPA for those provisions of the proposed amendment that relate 
to air or water quality standards issued under the authority of the 
Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    We requested EPA's written agreement with the proposed amendment 
(administrative record No. ND-BB-03). On October 8, 1998, EPA gave its 
written agreement (administrative record No. ND-BB-06).

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

    Under 30 CFR 732.17(h)(4), we asked for comments on the proposed 
amendment from the SHPO and ACHP (administrative record No. ND-BB-03). 
Neither SHPO nor ACHP responded to our request.

V. Director's Decision

    Based on the above findings, we approve the proposed amendment as 
submitted on September 2, 1998.
    To implement this decision we are amending the Federal regulations 
at 30 CFR Part 934, which codify decisions concerning the North Dakota 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage North 
Dakota to bring its programs into conformity with the Federal 
standards. SMCRA requires consistency of State and Federal standards.

VI. 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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (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 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(c)(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.

6. Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 13, 1999.
Brent Wahlquist,
Regional Director, Western Regional Coordinating 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 in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 934.15  Approval of North Dakota regulatory program amendments.

* * * * *

[[Page 60660]]



----------------------------------------------------------------------------------------------------------------
                                                 Date of final
      Original amendment submission date          publication                 Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
9/2/98........................................         11-8-99  NDAC 69-05.2.90
                                                                NDAC 69-05.2-01-03
                                                                NDAC 69-05.2-05-09
                                                                NDAC 69-05.2-09-09
                                                                NDAC 69-05.2-13-02
                                                                NDAC 69-05.2-13-08
                                                                NDAC 69-05.2-15-02
                                                                NDAC 69-05.2-15-04
                                                                NDAC 69-05.2-16-09
                                                                NDAC 69-05.2-19-04
----------------------------------------------------------------------------------------------------------------

Sec. 934.16  [Amended]

    3. Section 934.16 is amended by removing paragraphs (cc) and (n).

[FR Doc. 99-29152 Filed 11-5-99; 8:45 am]
BILLING CODE 4310-05-M