[Federal Register Volume 59, Number 140 (Friday, July 22, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17883]
[[Page Unknown]]
[Federal Register: July 22, 1994]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 934
North Dakota Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the North Dakota
permanent regulatory program (hereinafter referred to as the ``North
Dakota program'') under the Surface Mining Control and Reclamation Act
of 1977 (SMCRA). The proposed amendment consists of revisions to North
Dakota's rules in the North Dakota Administrative Code (NDAC)
pertaining to preblasting survey requirements and the State's small
operator assistance program. The amendment is intended to revise the
North Dakota program to be consistent with and incorporate the
additional flexibility afforded by SMCRA and the Federal regulations.
EFFECTIVE DATE: July 22, 1994.
FOR FURTHER INFORMATION CONTACT:
Guy D. Padgett, Telephone: (307) 261-5776.
SUPPLEMENTARY INFORMATION:
I. Background on the North Dakota Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the North Dakota program as administered by the North Dakota
Public Service Commission (Commission). General background information
on the North Dakota program, including the Secretary's findings, the
disposition of comments, and an explanation of the conditions of
approval of the North Dakota program can be found in the December 15,
1980, Federal Register (45 FR 82214). Actions taken subsequent to
approval of the North Dakota program are codified at 30 CFR 934.15,
934.16, and 934.30.
II. Proposed Amendment
By letter dated October 22, 1993 (administrative record No. ND-T-
01), North Dakota submitted a proposed amendment to its program
pursuant to SMCRA. North Dakota submitted the proposed amendment at its
own initiative. North Dakota proposed revisions to its performance
standards pertaining to the use of explosives and preblasting survey
requirements at NADC 69-05.2-17.02 (1) and (2). North Dakota also
proposed revisions to its Small Operator Assistance Program (SOAP) at
NDAC 69-05.2-29-01, responsibilities of the Commission; NDAC 69-05.2-
29-02, program services; NDAC 69-05.2-29-03, eligibility for
assistance; NDAC 69-05.2-29-04, filing for assistance; NDAC 69-05.2-29-
05, application approval and notice of denial; NDAC 69-05.2-29-06, data
requirements; NDAC 69-05.2-29-07, assistance funding; and NDAC 69-05.2-
29-08, applicant liability.
The proposed changes to North Dakota's pre-blast survey and SOAP
rules are meant to implement statutory changes to the State's
regulatory program pertaining to the use of explosives and SOAP that
were enacted by the State legislature in 1993. (For a document relating
to the statutory revisions proposed by North Dakota for preblasting
surveys and small operator assistance, see an additional final rule
Federal Register notice for the State of North Dakota published
elsewhere in this issue.) North Dakota proposed the statutory and
regulatory amendments to its SOAP program in order to implement the
changes to the Federal SOAP program at sections 507 (c) and (h) of
SMCRA made by the Energy Policy Act of 1992 (Pub. L. 102-486).
OSM announced receipt of the proposed amendment in the November 23,
1993, Federal Register (58 FR 61857), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. ND-T-08). The
public comment period ended on December 23, 1993. Because no one
requested a public hearing or meeting, none was held.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and the
Federal regulations at 30 CFR 732.15 and 732.17, finds that the
proposed North Dakota program amendment as submitted by North Dakota on
October 22, 1993, is not inconsistent with and is no less stringent
than SMCRA. Thus, the Director approves the proposed amendment.
1. NDAC 69-05.2-17-02, Performance Standards--Use of Explosives--
Preblasting Survey Requirements
North Dakota proposed to revise its rules at NDAC 69-05.2-17-02 (1)
and (2) so that the rules will provide as follows:
1. Each operator shall notify in writing, at least thirty days
before blasting, all residents and owners of manmade dwellings or
structures located within one mile * * * of the permit area how to
request a preblasting survey.
2. On request to the commission by a resident or owner of a
dwelling or structure located within one mile * * * of any part of
the permit area, the operator shall promptly conduct a preblasting
survey of the dwelling or structure and promptly submit a report of
the survey to the commission and requestor. Any preblasting survey
requested more than ten days before blasting must be completed
before blasting is initiated. Additions or renovations to a surveyed
structure must be surveyed upon request to the commission.
In this amendment, North Dakota proposed to increase from one-half
mile [0.85 kilometers] to one mile [1.61 kilometers], the distance from
the permit area within which dwellings or structures must be situated
before the owners or residents of such dwellings and structures are
entitled to the notice specified at NDAC 69-05.2-17-02(1) and can
require the operator to conduct a pre-blast survey in accordance with
NDAC 69-05.2-17-02(2). North Dakota proposed these regulatory revisions
in order to implement the statutory changes proposed by the State in
``Amendment XVIII'' (administrative record No. ND-Q-1, April 21, 1993)
pertaining to pre-blast surveys. (For a discussion of the proposed
statutory provisions, see the additional final rule Federal Register
notice for North Dakota published elsewhere in this issue.)
The distance standard in the counterpart Federal regulations at 30
CFR 816.62(a) and (b) regarding pre-blast surveys is one-half mile of
the permit area. North Dakota's proposed revisions at NDAC 69-05.2-29-
02 (1) and (2) would thus allow a potentially larger group of residents
or owners within the vicinity of the mine to require the operator to
conduct a preblasting survey than is provided for by the Federal
regulations at 30 CFR 816.62(a) and (b).
In accordance with section 505(b) of SMCRA and 30 CFR 730.11(b),
the State regulatory authority has the discretion to impose land use
and environmental controls and regulations on surface coal mining and
reclamation operations that are more stringent than those imposed under
SMCRA and the Federal regulations. Moreover, the State regulatory
authority has the discretion to impose land use and environmental
controls and regulations on surface coal mining and reclamation
operations for which no Federal counterpart exists. Section 505(b) of
SMCRA and 30 CFR 730.11(b) dictate that such State provisions shall not
be construed to be inconsistent with SMCRA or the Federal regulations.
Therefore, the Director is approving the revisions proposed by North
Dakota at NDAC 69-05.2-17-02 (1) and (2).
2. NDAC 69-05.2-29-01 Through 69-05.2-29-08, Small Operator Assistance
Program
In this amendment, North Dakota proposed several changes to its
rules pertaining to its SOAP program in order to implement the
statutory revisions the State proposed in a separate amendment. (For a
discussion of the proposed statutory SOAP provisions, see the
additional final rule notice for North Dakota published elsewhere in
this issue.) North Dakota proposed these regulatory revisions in order
to implement the statutory changes proposed by the State in ``Amendment
XVIII'' (administrative record No. ND-Q-1, April 21, 1993).
a. NDAC 69-05.2-29-01(2), 69-05.2-29-02(1), 69-05.2-29-04(6)(b), 69-
05.2-29-05(1)(b), 69-05.2-29-06(2) and 06(4), and 69-05.2-29-08(1)(b),
Small Operator Assistance--Responsibilities of the Commission--
Qualified Public and Private Entities
North Dakota proposed to revise NDAC 69-05.2-29-01(2) to provide
that the Commission will develop and maintain a list of ``qualified
public or private entities'' as required by 30 CFR 795.10 and pay them
for services rendered. In this amendment, North Dakota proposed to
substitute the phrase ``qualified public or private entities'' for the
previous reference to ``qualified laboratories.'' North Dakota also
proposed to change the term ``laboratory'' (or ``laboratories'') to
``public or private entity'' (or ``entities'') in its rules at NDAC 69-
05.2-29-02(1), 69-05.2-29-04(6)(b), 69-05.2-29-05(1)(b), 69-05.2-29-06
(2) and (4), and 69-05.2-29-08(1)(b).
North Dakota's proposed terminology change is not inconsistent with
section 507(c)(1) of SMCRA which provides that the activities to be
performed under SOAP shall be performed by a ``qualified pubic or
private laboratory or such other public or private qualified entity
designated by the regulatory authority.'' Therefore, the Director finds
that the proposed terminology change at NDAC 69-05.2-29-01(2), 69-05.2-
29-02(1), 69-05.2-29-04(6)(b), 69-05.2-29-05(1)(b), 69-05.2-29-06 (2)
and (4), and 69-05.2-29-08(1)(b) is not inconsistent with section
507(c)(1) of SMCRA or the Federal regulations regarding SOAP at 30 CFR
Part 795, as recently revised (59 FR 28136, May 31, 1994), and the
Director is approving the proposed rules.
b. NDAC 69-05.2-29-02(1) (a) and (b), Small Operator Assistance--
Program Services
North Dakota proposed to expand its regulatory provisions governing
SOAP program services at NDAC 69-05.2-29-02(1) (a) and (b) in
accordance with the statutory changes at North Dakota Century Code
(NDCC) 38-14.1-37 (2) through (5) proposed by the State in ``Amendment
XVIII'' (administrative record No. ND-Q-1, April 21, 1993). (For a
discussion of the proposed statutory provisions, see the additional
final rule for North Dakota published elsewhere in this issue.)
Specifically, North Dakota proposed to revise NDAC 69-05.2-29-02(1) so
that it will provide as follows:
To the extent possible with available funds, the commission will
for qualified small operators who request assistance:
1. Select and pay a qualified public or private entity to
perform the activities described under [NDCC 38-14.1-37(2)]
including:
a. A determination of the probable hydrologic consequences of
the mining and reclamation operations both on and off the proposed
permit area according to section 69-05.2-29-06.
c. The preparation of a statement of the results of test borings
or core samplings according to section 69-05.2-29-06.
Thus, as amended, NDAC 69-05.2-29-02(1) (a) and (b) will provide
coverage of all program services detailed in North Dakota's statute at
NDCC 38-14.1-37(2).
The State proposal is substantively similar to its Federal
counterpart regulations at 30 CFR 795.9 (a), (b), (b)(1) and (b)(2), as
revised on May 31, 1994 (59 FR 28136), with one exception. While the
Federal regulations at 30 CFR 795.9 (b)(1) through (b)(6) specifically
identify each activity that may be funded pursuant to SOAP, the State
proposal specifically identifies only two activities that may be funded
by SOAP. However, as noted above, the State proposal does encompass all
activities described under proposed NDCC 38-14.1-37(2). The activities
described under proposed NDCC 38-14.1-37(2), in turn, correspond to the
activities described in the Federal program at sections 507 (c)(1)(A)
through (c)(1)(F) of SMCRA and 30 CFR 795.9 (b)(1) through (b)(6). (For
a discussion of the proposed statutory provision, see the additional
final rule notice for North Dakota published elsewhere in this issue.)
Therefore, the Director finds that proposed NDAC 69-05.2-29-02(1)
(a) and (b) are no less stringent than SMCRA and no less effective in
meeting SMCRA's requirements than the corresponding Federal
regulations. Accordingly, the Director approves the proposed rules.
c. NDAC 69-05.2-29-03(2), Small Operator Assistance--Eligibility for
Assistance (Introductory Text)
North Dakota proposed to revise the introductory text of NDAC 69-
05.2-29-03(2) by increasing the amount of probable total annual
production allowed for SOAP applicants from one hundred thousand tons
[90,718.47 metric tons] to three hundred thousand tons [272,155.41
metric tons]. The proposed change would make NDAC 69-05.2-29-03(2)
consistent with proposed statutory changes to NDCC 38-14.1-37 (see
``Amendment XVIII'' dated April 21, 1993, administrative record No. ND-
Q-1), as well as the requirements of SMCRA at section 507(c)(1) and the
recently revised Federal counterpart regulation at 30 CFR 795.6(2).
(For a discussion of the proposed statutory provision, see the
additional final rule for North Dakota published elsewhere in this
issue.) Therefore, the Director is approving proposed NDAC 69-05.2-29-
03(2) (introductory text).
d. NDAC 69-05.2-29-03(5), Small Operator Assistance--Eligibility for
Assistance
North Dakota proposed to create new NDAC 69-05.2-29-03(5) to
provide that an applicant is eligible for SOAP assistance if, among
other things:
[The applicant] will be required to pay reclamation fees under
the Surface Mining Control and Reclamation Act of 1977 (Pub. L. 95-
87; 91 Stat. 445; U.S.C. 1201 et seq).
Proposed NDAC 69-05.2-29-03(5) is meant to implement the statutory
provision of NDCC 38-14.1-37(5) (see ``Amendment XVIII'' dated April
21, 1993, administrative record No. ND-Q-1). (For a discussion of the
proposed statutory provision, see the additional final rule for North
Dakota published elsewhere in this issue.)
North Dakota's proposed limitation of SOAP assistance to operators
required to pay reclamation fees under SMCRA does not render NDAC 69-
05.2-29-03(5) inconsistent with SMCRA because section 507(c)(1) of
SMCRA only requires that SOAP assistance be made available to a
qualified ``coal surface mining operator.'' As discussed in the
additional final rule for North Dakota published elsewhere in this
issue, the operators who will be deemed ineligible for SOAP assistance
under the North Dakota proposal would not qualify for such assistance
under SMCRA.
The Director notes that there is a typographical error in the SMCRA
citation given in proposed NDAC 69-05.2-29-03(5). That is, the
reference to ``U.S.C. 1201 et seq.'' should be ``30 U.S.C. 1201 et
seq.'' North Dakota's Attorney General, in a legal opinion dated
October 1, 1993, and included with this proposed amendment, noted the
typographical error, but stated that the reference to the United States
Code at NDAC 69-05.2-29-03(5) should read ``30 U.S.C. 1202 et seq.''
OSM notes that the correct reference to SMCRA should be ``30 U.S.C.
1201 et seq.''
Accordingly, the Director finds North Dakota's proposed rule at
NDAC 69-05.2-29-03(5) is not inconsistent with SMCRA and the Director
is approving it with the understanding that North Dakota will revise
the aforementioned typographical error so that the correct citation to
SMCRA is referenced.
e. NDAC 69-05.2-29-06(1)(a), Small Operator Assistance--Data
Requirements
North Dakota proposed to revise NDAC 69-05.2-29-06(1)(a) so that it
will provide as follows:
The commission will determine the minimum data collection
requirements for each applicant or group of applicants. Data
collection and analysis may proceed concurrently with the
development of mining and reclamation plans. The data requirements
will be based on:
a. The extent of currently available hydrologic, geologic, and
other information described under [NDCC 38-14.1-37(2)].
b. The data collection and analysis guidelines developed and
provided by the commission.
In this amendment, North Dakota proposed to expand the basis upon
which the requirements will be based, as outlined at NDAC 69-05.2-29-
06(1)(a). Specifically, as proposed, NDAC 69-05.2-29-06(1)(a) will now
require that the data requirements be based upon all information
described at proposed NDCC 38-14.1-37(2). (For a discussion of the
proposed statutory provision, see the additional final rule for North
Dakota published elsewhere in this issue.)
Proposed NDAC 69-05.2-29-06(1)(a) is consistent with the recently
revised Federal regulation at 30 CFR 795.9(b), which lists the specific
technical services authorized for the SOAP and provides, among other
things, that ``[t]he program administrator shall determine the data
needed for each applicant or group of applicants.''
Accordingly, the Director finds that NDAC 69-05.2-29-06(1)(a) is
consistent with and no less effective than the Federal regulations at
30 CFR 795.9(b) and is approving the proposed rule.
f. NDAC 69-05.2-29-07(1), Small Operator Assistance--Assistance Funding
North Dakota proposed to delete the portion of NDAC 69-05.2-29-
07(1) that prohibits the use of SOAP funds to cover the costs of test
boring or core sampling. The proposed revision is consistent with
section 507(c)(1)(C) of SMCRA and the recently revised Federal
counterpart regulation at 30 CFR 795.9(b)(2), which allow the use of
SOAP funds to cover the cost of geologic drilling and statement of
results of test borings and core samplings required by section
507(b)(15) of SMCRA. Accordingly, the Director is approving the
proposed revision at NDAC 69-05.2-29-07(1).
g. NDAC 69-05.2-29-08(1)(a) Through (e), Small Operator Assistance--
Applicant Liability
North Dakota proposed to revise NDAC 69-05.2-29-08(1)(a) through
(e), the regulatory provisions that outline the circumstances under
which an applicant must reimburse the commission for the cost of SOAP
services.
1. NDAC 69-05.2-29-08, Introductory Text
The introductory text at NDAC 69-05.2-29-08(1) provides:
The applicant shall reimburse the commission for the cost of all
services rendered under this chapter [i.e., NDAC 69-05.2-29] if * *
*.
Section 507(h) of SMCRA and 30 CFR 795.12(a) require, under
specified circumstances, that a small operator reimburse the regulatory
authority for the cost of all SOAP services, which, in accordance with
section 507(c)(2) of SMCRA, includes the cost of training assistance.
By comparison, North Dakota's proposed statutory change at NDCC 38-
14.1-37(4), proposed by the State in ``Amendment XVIII'' did not
include training costs as an obligation for reimbursement by the
operator. (For a discussion of the proposed statutory provision, see
the additional final rule for North Dakota published elsewhere in this
issue). Moreover, the proposed introductory text to NDAC 69-05.2-29-08
only refers to ``services rendered under [NDAC 69-05.2-29]'' which do
not include training assistance.
However, as discussed in the additional final rule for North Dakota
published elsewhere in this issue, section 507(c)(2) of SMCRA
specifically references only ``the Secretary.'' OSM currently
interprets ``the Secretary'' to mean the Secretary of the Interior, and
not State regulatory authorities. Therefore, at the current time North
Dakota is not obligated to provide training under SOAP. Accordingly,
North Dakota's proposed introductory text at NDAC 69-05.2-29-08 is no
less stringent than section 507(h) of SMCRA and no less effective than
the recently revised Federal regulations at 30 CFR 795.12(a)(2).
2. NDAC 69-05.2-29-08(1)(a), (b), and (c)
North Dakota proposed to revise NDAC 69-05.2-29-08(1)(a), (b), and
(c) to require that the applicant shall reimburse the Commission for
the cost of all SOAP services rendered under the NDAC 69-05.2-29 if the
applicant submits false information, the applicant fails to submit a
permit application within one year after receiving the approved report
from the qualified public or private entity, or the applicant fails to
mine after obtaining the permit. North Dakota's proposed revision of
its rules at NDAC 69-05.2-29-08(1)(a), (b), and (c) are substantively
similar to and no less effective in meeting SMCRA's requirements than
the corresponding Federal provisions at 30 CFR 795.12(a)(1).
3. NDAC 69-05.2-29-08(1)(d)
North Dakota also proposed to revise NDAC 69-05.2-29-08(1)(d) to
provide that the applicant shall reimburse the Commission for the cost
of all services provided under NDAC 69-05.2-29 if the Commission finds
that the operator's actual and attributed annual coal production for
all locations exceeds three hundred thousand tons during the 12 months
immediately following the date the operator is issued a surface coal
mining and reclamation permit. North Dakota proposed this revision of
its rule in order to implement the proposed statutory provisions of
NDCC 38-14.1-37(4) (see ``Amendment XVIII'' dated April 21, 1993,
administrative record No. ND-Q-1). (For a discussion of the proposed
statutory provision, see the additional final rule for North Dakota
published elsewhere in this issue.)
North Dakota's proposed revision of its rule at NDAC 69-05.2-29-
08(1)(d) is substantively similar to section 507(h) of SMCRA and the
recently revised Federal counterpart regulation at 30 CFR 795.12(a)(2).
4. NDAC 69-05.2-29-08(1)(e)
Finally, North Dakota proposed to revise NDAC 69-05.2-29-08(1)(e)
to provide that the applicant shall reimburse the Commission for the
cost of all services provided under NDAC 69-05.2-29 if the applicant
sells, transfers, or assigns the permit to another person and the
transferee's total actual and attributed production exceeds the three
hundred thousand tons [272,155.41 metric tons] annual production limit
during any consecutive twelve-month period of the remaining permit
term, and that the applicant and successor are jointly and severally
obligated to reimburse the Commission.
Proposed NDAC 69-05.2-29-08(1)(e) is more stringent than the
recently revised corresponding Federal regulation at 30 CFR
795.12(a)(3). North Dakota's provision serves to impose reimbursement
liability based upon the annual production rates for the entire term of
the permit, whereas the Federal regulation only takes into account the
production rate for the twelve months immediately following the date on
which the permit was originally issued.
Therefore, the Director finds that NDAC 69-05.2-29-08(1)(e) is more
stringent than the Federal regulation at 30 CFR 795.12(a)(3). In
accordance with section 505(b) of SMCRA and 30 CFR 730.11(b), the State
regulatory authority has the discretion to impose land use and
environmental controls and regulations on surface coal mining and
reclamation operations that are more stringent than those imposed under
SMCRA and the Federal regulations. Section 505(b) of SMCRA and 30 CFR
730.11(b) dictate that such State provisions shall not be construed to
be inconsistent with SMCRA or the Federal regulations. Accordingly, the
Director is approving proposed NDAC 69-05.2-29-08(1)(e).
5. Summary
Based upon the above discussion, the Director finds that North
Dakota's proposed revisions at NDAC 69-05.2-29-08(1) (a) through (e)
are not inconsistent with section 507(h) or SMCRA and no less effective
in meeting SMCRA's requirements than the Federal regulations at 30 CFR
795.12(a) (1) through (3) and is approving the proposed rules.
h. NDAC 69-05.2-29-08(2), Small Operator Assistance--Applicant
Liability--Good Faith Waiver of Liability for Reimbursement.
North Dakota proposed to revise NDAC 69-05.2-29-08(2) to limit the
circumstances under which the Commission can waive the reimbursement
obligation of an operator who receives SOAP assistance. Prior to this
amendment, NDAC 69-05.2-29-08(2) allowed the Commission to waive a SOAP
applicant's obligation to reimburse the Commission for assistance
whenever it found that the applicant at all times acted in good faith.
North Dakota now proposes to limit the Commission's discretion by
revising NDAC 69-05.2-29-08(2) so that it provides as follows:
The commission may waive the reimbursement obligation under the
conditions described in [NDAC 69-05.2-08(1) (b) and (c)] if it finds
that the applicant at all times acted in good faith.
The State regulations at NDAC 69-05.2-08(1) (b) and (c) describe
the following two situations that can trigger an applicant's obligation
for reimbursement of the cost of SOAP assistance:
b. The applicant fails to submit a permit application within one
year after receiving the approved report from the qualified public
or private entity [performing SOAP services].
c. The applicant fails to mine after obtaining a permit.
Thus, under the State proposal, the commission may allow a ``good-
faith waiver'' of a SOAP applicant's reimbursement obligation only if
the applicant's obligation was triggered by the situations described at
NDAC 69-05.2-29-08(1) (b) or (c). No such good-faith waiver is allowed
if the applicant's reimbursement obligation was triggered by something
other than those specified situations.
The Federal regulation at 30 CFR 795.12(b) allows the program
administrator [regulatory authority] to waive the reimbursement
obligation if he or she finds that the applicant at all times acted in
good faith. Since waiver of the applicant's reimbursement obligation is
a matter left within the discretion of the State regulatory authority
under the current Federal regulations, North Dakota's proposed change
at NDAC 69-05.2-29-08(2) is not inconsistent with the Federal
regulation at 30 CFR 795.12(b). Therefore, the Director is approving
the proposed rule.
IV. Summary and Disposition of Comments
1. Public Comments
The Director solicited public comments and provided an opportunity
for a public hearing on the proposed amendment. No public comments were
received, and because no one requested an opportunity to testify at the
public hearing, no hearing was held.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), the Director solicited comments on
North Dakota's proposed amendment from the U.S. Environmental
Protection Agency (EPA), the U.S. Department of Agriculture, and
various other Federal agencies with an actual or potential interest in
the North Dakota program.
By letter dated November 10, 1993, the Bureau of Reclamation stated
it had no comments on the proposed amendment (administrative record No.
ND-T-04).
By letter dated November 16, 1993, the Soil Conservation Service
stated it had no specific comments pertaining to this amendment
(administrative record No. ND-T-06).
By letter dated November 19, 1993, the Mine Safety and Health
Administration (MSHA) stated that the amendment did not conflict with
any of MSHA's current regulations (30 CFR parts 0-199), and therefore,
it had no comments concerning the proposed changes (administrative
record No. ND-T-07).
By undated letter received November 29, 1993, the Bureau of Indian
Affairs stated it had no objections to the proposed amendment because
it did not affect Indian lands (administrative record No. ND-T-09).
By letter dated November 30, 1993, the Bureau of Mines stated it
had no comments (administrative record No. ND-T-10).
By letter dated December 1, 1993, the U.S. Fish and Wildlife
Service stated it did not anticipate any significant impacts to fish
and wildlife resources as a result of the proposed amendment and,
therefore, did not have any substantive comments to offer
(administrative record No. ND-T-11).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), the Director is required to
solicit the written concurrence of EPA with respect to those provisions
of the proposed program amendment that relate to air or water quality
standards promulgated under the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the clean Air Act (42 U.S.C. 7401 et seq.).
None of the revisions that North Dakota proposed to make in its rules
pertain to air or water quality standards. However, OSM still requested
EPA's concurrence with the proposed amendment (administrative record
No. ND-T-03).
By letter dated November 10, 1993, EPA responded that it had no
comments on the proposed amendment. EPA also stated it did not believe
that there would be any impacts to water quality standards promulgated
under the authority of the Clean Water Act (administrative record No.
ND-T-05).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), the Director provided the proposed
amendment to the SHPO and ACHP for comment. Neither SHPO nor ACHP
provided any comments to OSM.
V. Director's Decision
Based on the above findings, the Director approves the proposed
amendment as submitted by North Dakota on October 22, 1993. The
Director approves the rules as proposed by North Dakota with the
provision that they be promulgated in identical form to the rules
submitted to and reviewed by OSM and the public. Approval of these
rules by the Director does not prevent OSM from requiring North Dakota
to make additional revisions to its program pending the promulgation of
final Federal regulations at 30 CFR Part 795 to implement the changes
to SMCRA, as amended, regarding the SOAP program.
The Federal regulations at 30 CFR part 934, codifying decisions
concerning the North Dakota program, are being amended to implement
this decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12886 (Regulatory Planning and
Review).
2. Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) and has
determined that this rule meets the applicable standards of subsections
(a) and (b) of that section. However, these standards are not
applicable to the actual language of State regulatory programs and
program amendments since each such program is drafted and promulgated
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA
(30 U.S.C. 1253 and 12550) and the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10), decisions on proposed State
regulatory programs and program amendments submitted by the States must
be based solely on a determination of whether the submittal is
consistent with SMCRA and its implementing Federal regulations and
whether the other requirements of 30 CFR Parts 730, 731, and 732 have
been met.
3. National Environmental Policy Act
No environmental impact statement is required for this rule since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
5. Regulatory Flexibility Act
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal that is the subject of this rule is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. Accordingly, this rule will ensure that existing requirements
previously promulgated by OSM will be implemented by the State. In
making the determination as to whether this rule would have a
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
VII. List of Subjects in 30 CFR 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: July 15, 1994.
Richard E. Dawes,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, chapter VII,
subchapter T of the Code of Federal Regulations is amended as set forth
below:
PART 934--NORTH DAKOTA
1. The authority citation for Part 934 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 934.15 is amended by adding paragraph (s) to read as
follows:
Sec. 934.15 Approval of regulatory program amendments.
* * * * *
(s) Revisions to the following provisions of the North Dakota
Administrative Code, as submitted to OSM on October 22, 1993 [Amendment
XIX], are approved effective July 22, 1994.
NDAC 69-05.2-17-02, Performance standards-use of explosives-pre-
blasting survey requirements; NDAC 69-05.2-29-01(2), small operator
assistance-responsibilities of the commission-qualified public and
private entities; NDAC 69-05.2-29-02(1) (a) and (b), small operator
assistance-program services; NDAC 69-05.2-29-03 (2) and (5), small
operator assistance-eligibility for assistance; NDAC 69-05.2-29-04,
small operator assistance-filing for assistance; NDAC 69-05.2-29-05,
small operator assistance-application approval-notice of denial; NDAC
69-05.2-29-06(1)(a), small operator assistance-data requirements; NDAC
69-05.2-29-07(1), small operator assistance-assistance funding; NDAC
69-05.2-29-08(1) (a) through (e), small operator assistance-applicant
liability; and NDAC 69-05.2-29-08(2), small operator assistance-
applicant liability-good faith waiver of liability for reimbursement.
[FR Doc. 94-17883 Filed 7-21-94; 8:45 am]
BILLING CODE 4310-05-M
