[Federal Register Volume 63, Number 179 (Wednesday, September 16, 1998)]
[Rules and Regulations]
[Pages 49430-49434]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24781]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[SPATS ND-032-FOR, Amendment No. XXII]
North Dakota 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
regulatory program (hereinafter referred to as the ``North Dakota
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). The revisions and information explaining those North Dakota's
proposed rules and statutes which comprise the amendment pertain to:
the North Dakota Small Operator Assistance Program, and individual
civil and criminal penalties within the coal exploration section of the
program. The amendment is intended to revise the North Dakota program
to be consistent with the corresponding Federal regulations and SMCRA.
EFFECTIVE DATE: September 16, 1998.
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
6550; Fax: (307) 261-6552; Internet: GPadgett@osm.gov.
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,
and 934.16.
II. Proposed Amendment
By letter dated April 12, 1995, North Dakota submitted a proposed
amendment (amendment number XXII, administrative record No. ND-W-01) to
its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota
submitted the proposed amendment in response to the required program
amendments at 30 CFR 934.16(y) and (z) (59 FR 37423, 37428-374296; July
22, 1994). The statutory provisions North Dakota proposed to revise
are: North Dakota Century Code (NDCC) 38-14.1-37(4) concerning SOAP,
reimbursement of costs, and NDCC 38-12.1-08, concerning coal
exploration, individual civil and criminal penalties.
OSM announced receipt of the proposed amendment in the May 2, 1995,
Federal Register (60 FR 21484; administrative record No. ND-W-04),
provided an opportunity for a public hearing or meeting on its
substantive adequacy, and invited public comment. Because no one
requested a public hearing or meeting, none was held. The public
comment period ended at 4 p.m. on June 1, 1995.
During its review of the amendment, OSM identified concerns with
the proposed revisions to NDCC 38-13.1-08, relating to individual civil
and criminal penalties within the coal exploration program. 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 (administrative record No. ND-W-14) by
submitting additional proposed revisions to its program at North Dakota
Administrative Code 43-02-01 and additional explanatory information
pertaining to North Dakota Century Code 38-12.1-08.
Based upon the revisions to and additional explanatory information
that was submitted with the proposed program amendment submitted by
North Dakota, OSM reopened the public comment period in the November 9,
1995, Federal Register (60 FR 56549; administrative record No. ND-W-
16). The public comment period ended 4 p.m. November 24, 1995.
The regulatory revisions that North Dakota proposed in its October
19, 1995 letter, while satisfying most of OSM's concerns, made North
Dakota's regulations at North Dakota Administrative Code (NDAC) 43-02-
01 inconsistent with its statute at NDCC 38-12.1-08, upon which those
regulations are based. However, when this was pointed out to North
Dakota in a July 30, 1997 telephone conversation (administrative record
No. ND-W-21), it submitted an August 1, 1997 letter (administrative
record No. ND-W-18) slightly revising its regulations at NDAC 43-02-01
to make them consistent with its statute. Based on the proposed
revision, OSM reopened the public comment period in the September 4,
1997, Federal Register (62 FR 46695; administrative record No. ND-W-
19). The public comment period ended 4 p.m. September 19, 1997.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 and 732.17, finds that the proposed program amendment
submitted by North Dakota on April 12, 1995, and as revised and
supplemented with additional explanatory information and program
revisions on October 19, 1995, and on August 1, 1997, with additional
requirements, is no less stringent than SMCRA and no less effective
than the Federal regulations. Accordingly, the Director approves the
proposed amendment.
1. NDCC 38-.1-37(4): Small Operators
North Dakota proposed a revision to NDCC 38-14.1-37(4), pursuant to
the Director's Findings at III.3.i that were contained in the July 22,
1994 Federal Register (Vol. 59, No. 140, p. 37426). This addition of
subsection 4 to NDCC 38-14.1-37 also affects subsections 2 and 3 in
accordance with the July 22, 1994, Federal Register noted above. The
Director's Findings at III.3.h. states that:
[I]f 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
[[Page 49431]]
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.
North Dakota has not yet decided whether to provide or assume the
training costs and inform qualified coal operators under SOAP (August
25, 1998 telephone conversation, administrative record No. ND-W-24). As
stated in the July 22, 1998 Federal Register, 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-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.
Based on the aforementioned, the Director finds that the proposed
addition to North Dakota's statute, NDCC 38-14.1-37(4), is no less
stringent than SMCRA.
2. NDCC 38-12.1-08 and 12.1-03-03: Coal Exploration, Statutory
Provisions Regarding Individual Civil and Criminal Penalties
In previous reviews of the North Dakota program, OSM found
deficiencies relating to the imposition of civil and/or criminal
penalties on individual officers, agents, and directors of a
corporation where the corporation committed a violation of the coal
exploration program. A required amendment was consequently codified at
30 CFR 934.16(y) (57 FR 807, 827; January 9, 1992), and was
subsequently modified (59 FR 37423, 37432; July 22, 1994). The modified
required amendment, codified at 30 CFR 934.16(y), required 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 civil or criminal penalties in connection with a violation
committed by a corporate permittee. North Dakota was also required to
submit proposed revisions in NDCC 38-12.1-08 to provide that (in
addition to violations) failure or refusal to comply with the orders
listed in section 518(f) of SMCRA and issued by the North Dakota
Industrial Commission serve as an additional basis for the imposition
of individual civil and criminal penalties upon corporate officers,
directors, and agents.
North Dakota proposed in this amendment to add a new provision at
NDCC 38-12.1-08(3) stating that:
Any corporation or any person who controls the activity of a
corporation who violates this chapter or any permit condition or
rule implementing this chapter [NDCC Chapter 38-12.1] is subject to
a civil penalty not to exceed five thousand dollars per day of such
violation.
In addition, North Dakota re-proposed the revisions to NDCC 38-
12.1-08(1) and (2) that were not approved in the July 22, 1994,
rulemaking. In its August 28, 1995, letter (administrative record No.
ND-W-12) identifying concerns to this amendment, OSM found that the
proposed new provision at NDCC 38-12.1-08(3) essentially repeated the
provision of NDCC 38-12.1-08(1) and did not clarify that individuals
(officers, directors, and agents of corporate permittees) may be
subject to penalties where the corporation, as opposed to the
individual, commits a violation. In its October 19, 1995, response
(administrative record No. ND-W-14), North Dakota argued that State law
a NDCC 12.1-03-03 (as well as NDCC 38-12.1-08(3), does subject
directors, officers, and agents to civil and criminal penalties even
though it is the corporation, not the individuals, that committed a
violation.
A. Criminal Penalties
With regard to the criminal penalties, North Dakota also referred
to the provisions of NDCC 12.1-03-03 in its October 19, 1995 letter.
NDCC 12.1-03-03 provides:
12.1-03-03 Individual accountability for conduct on behalf of
organizations
1. A person is legally accountable for any conduct he performs or
causes to be performed in the name of the organization or in its behalf
to the same extent as if the conduct were performed in his own name or
on his behalf.
2. Except as otherwise expressly provided, whenever a duty to act
is imposed upon an organization by a statute or regulation thereunder,
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 to the same extent as if the duty were imposed
directly upon himself.
The terms ``agent'' and ``organization,'' as used in NDCC 12.1-03-
03(2), are defined at NDCC 12.1-03-04(1) as follows:
In this chapter: (a) ``Agent'' means any partner, director,
officer, governor, manager, servant, employee, or other person
authorized to act in behalf of an organization. (b) ``Organization''
means any legal entity, whether or not organized as a corporation,
limited liability company, or unincorporated association, but does
not include an entity organized as or by a governmental agency for
the execution of a governmental program.
Since ``organization'' includes corporations, and ``agent''
includes officers and directors of corporations, NDCC 12.1-03-03(1)
would, when a corporation commits a violation, subject the officers,
directors, and agents of the corporation to the same criminal penalties
as the corporation, provided the individuals had ``performed'' or
``caused to be performed'' the conduct. OSM finds no substantive
differences between the NDCC 12.1-03-03(1) phrase ``performs or causes
to be performed'' and the SMCRA 518(f) phrase ``authorized, ordered, or
carried out'' identifying the applicable conduct.
NDCC 12.1-03-03(2) would subject the individuals to the same
criminal penalties as the corporation in the case of a failure or
refusal to act if the individual had ``primary responsibility'' for
that duty. North Dakota pointed out in its October 19, 1995, letter
that NDCC 38.12-1-04(3) authorizes the Industrial Commission of North
Dakota to promulgate and enforce orders, and that a failure or refusal
to comply with all types of such orders would also constitute a
violation of ``this chapter,'' as used in NDCC 38-12.1-08.
North Dakota's proposed addition of the phrase ``or willfully'' to
subsection (2) of NDCC 38-12.1-08 would extend individual criminal
penalties to cases where the individual's conduct is willful or
knowing, rather than simply ``knowingly,'' as the statute previously
read. For a discussion of North Dakota's definitions of ``knowing'' and
``willful,'' see 59 FR 37423, 37428-37429; July 22, 1994. North
Dakota's provision, as proposed, and as pointed out in its October 19,
1995, letter, would also subject individuals (whether or not corporate
officers acting for a corporation) to criminal penalties for knowingly
reporting false information.
North Dakota's existing provision at NDCC 38-12.1-08(2), and the
re-proposed revision to it, when read in conjunction with the newly
proposed provisions at NDCC Chapter 12.1-03, provide for individual
criminal penalties against corporate officers in all of the situation
in which individual criminal penalties are authorized under SMCRA
Section 518(f). Since failure or refusal to comply with any order of
the Commission would be included as a violation, without the few
exceptions granted in SMCRA Section 518(e) and (f), individuals might
be subject to penalties for still more actions or omission than
required by SMCRA
[[Page 49432]]
Section 518, and therefore North Dakota's statute is no less stringent
than SMCRA. In addition, individuals would be subject to criminal
penalties for knowingly reporting false information in all of the
situations in which individuals are subjected to such criminal
penalties under SMCRA Section 518(g).
B. Civil Penalties
North Dakota's proposed new paragraph at NDCC 38-12.1-08(3), while
similar to the first paragraph, NDCC 38-12.1-08(1), goes beyond it in
that it applies to ``Any corporation or any person who controls the
activity of a corporation who violates this chapter.'' The corporation
or person's conduct need not be willful or knowing. The term, ``any
person,'' refers to a ``director, officer, or agent or a corporate
permittee'' and is intended by the State to be broader in its coverage
than simply attempting to list the position of everyone to whom the
paragraph might apply (7/8, 9/98 telephone conversations,
administrative record No. ND-W-22).
To make North Dakota regulations consistent with the North Dakota
statute, in a August 1, 1997 revision, North Dakota changed ``willfully
and knowingly'' to ``willfully or knowingly'', thereby strengthening
the scienter requirement so that it could apply to more cases than
those in SMCRA or the Federal regulations.
Based on the above discussion, the Director finds that North
Dakota's proposed statutory revisions at NDCC 38-12.1-08 to be no less
stringent than SMCRA Section 518(f) and (g), and is approving the
proposed revisions and additions. The Director also finds that the
approval of this amendment satisfies both parts of the required
amendment at 30 CFR 934.16(y). Therefore, he is removing that required
amendment.
3. NDAC 43-02-01: Coal Exploration, Individual Civil Penalties,
Regulatory Provisions (SMCRA 518(f))
In a previous review of the North Dakota coal exploration program
and proposed amendments to that program, OSM found that the program
lacked regulations imposing civil and/or criminal penalties on
individual officers of a corporation when the corporation commits a
violation of the coal exploration program (59 FR 37423, 37428-37429;
July 22, 1994). A requirement for North Dakota to amend the program was
codified at 30 CFR 934.16(z) (59 FR 37423, 37432; July 22, 1994), which
required revision of NDAC 43-02-01-05 to specifically address the
circumstances under which a corporate director, officer, or agent maybe
individually subject to civil or criminal penalties in connection with
a violation committed by a corporation. In response to this amendment
requirement, North Dakota in its October 19, 1995 letter, and as
modified in its August 1, 1997 letter, proposed the following addition
to its regulations at NDAC 43-02-01:
(1) Whenever a corporate permittee violates a condition of a
permit, or any other rule or regulation imposed under this chapter
and NDCC 38-12.1, or fails or refuses to comply with an order issued
by the commission pursuant to NDCC 38-12.1-04(3), or any order
incorporated in a final decision issued by the commission, except an
order incorporated in a decision requiring the payment of a penalty,
any director, officer, or agent of such corporation who willfully or
knowingly authorized or carried out such violation, failure, or
refusal shall be held accountable, and the commission shall enforce
the civil and criminal penalties provided against the corporation
and the corporate directors, officers, and agents when the
corporation commits such violation, failure, or refusal, as provided
by law.
(2) A civil penalty may be assessed by the commission as
authorized by NDCC 38-12.1-08 only after the person or persons have
been given an opportunity for public hearing pursuant to the
procedures specified in NDCC Ch. 28-32.
(3) Any civil penalties assessed may be recovered by the
commission in a civil action in the North Dakota district court for
the county in which the violation occurred or in which the party
assessed has his or her residence or principal office in the state.
Proposed paragraph (1) of NDAC 43-02-01 tracks the language of
SMCRA 518(f). The proposal would specify that all violations of the
coal exploration program are (in the defined circumstances) subject to
individual penalties; in SMCRA 518(f), it states that ``Whenever a
corporate permittee violates a condition of a permit * * *.'' In
addition, the proposed North Dakota regulation states that the
corporate officers ``shall be held accountable,'' and therefore
individually liable for criminal and civil penalties. Moreover, the
proposed regulatory language further states that the Commission shall
enforce the program's civil and criminal penalties against both the
corporation and the corporate officers.
Regarding failures or refusals to comply, the proposed language
specifies that all corporate officers who willfully or knowingly
authorized or carried out the failure or refusal shall be held
accountable, not only those corporate officer(s) with ``primary
responsibility'' for that aspect of the operation; this language
extends the reach to corporate officers subject to individual penalties
for failure or refusal to comply to the same degree provided under
SMCRA Sections 518(e) and (f). The proposed regulatory language also
exempts from individual penalties failure or refusal to comply with
orders incorporated in decisions requiring the payment of a penalty, as
do SMCRA 518(e) and (f). The proposed North Dakota regulatory language
also specifically addresses the circumstances under which a corporate
director, officer, or agent may be individually subject to civil or
criminal penalties in connection with a violation, failure, or refusal
committed by a corporation.
Proposed paragraph (2) of NDAC 43-02-01 is substantively the same
as the first sentence of SMCRA 518(b), and thus provides for the same
due process appeals for individual civil penalties as does SMCRA 518(f)
(by referencing 518(b)).
Proposed paragraph (3) of NDAC 43-02-01 provides for the recovery
of individual civil penalties through civil actions, to the same extent
as SMCRA 518(d).
Based on the above discussion, the Director finds the proposed
rules at NDAC 43-02-01 (1) through (3) to be no less stringent than
SMCRA Sections 518(b), (d), (e), and (f) regarding authorization for
and procedures for individual civil and criminal penalties. The
approval of this proposal would also satisfy the required program
amendment codified at 30 CFR 934.16(z) (59 FR 37423, 37432; July 22,
1994). The Director is therefore removing this required program
amendment.
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
OSM invited public comments on the proposed amendment in the May 2,
1995 Federal Register (60 FR 21484; administrative record No. ND W-04),
the November 9, 1995 Federal Register (69 FR 56549; administrative
record No. ND-W-16), and the September 4, 1997, Federal Register (62 FR
46695; administrative record No. ND-W-19), but no comments were
received.
2. Federal Agency Comments
Pursuant to 732.17(h)(11)(i), OSM solicited comments from various
Federal agencies with an actual or potential interest in the North
Dakota program and in the proposed amendment in an April 20, 1995,
letter (administrative record No. ND-W-03), a
[[Page 49433]]
November 9, 1995 Federal Register notice (60 FR 56549; administrative
record No. ND-W-16), and a September 4, 1997 Federal Register notice
(62 FR 46695; administrative record No. ND-WS-19).
The Agricultural Research Service of the U.S. Department of
Agriculture responded on May 5, 1995 that it had no comment or
additions to the amendment (administrative record No. ND-W-05).
The U.S. Army Corps of Engineers responded on May 9, 1995 that it
``found the changes to be satisfactory to our agency'' (administrative
record No. ND-W-07).
The Bureau of Indian Affairs responded on May 12, 1995 that ``[w]e
have no objections to the amendment because it does not affect Indian
Lands'' (administrative record No. ND-W-08).
Rural Economic and Community Development of the U.S. Department of
Agriculture responded on May 23, 1995 that it had no comment
(administrative record No. ND-W-09).
The Mine Safety and Health Administration (MSHA) of the U.S.
Department of Labor responded on June 2, 1995 that the amendment
``appears not to conflict with any MSHA regulations'' (administrative
record No. ND-W-11)).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM 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
amendment pertain to air or water quality standards. However, OSM
requested EPA's comments on April 20, 1995 (administrative record No.
NDW-03 with the proposed amendment (administrative record No. ND W-01).
EPA did not respond to OSM's request.
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and ACHP (administrative record No. ND
W-03). Neither the SHPO nor the ACHP responded to OSM's request.
V. Director's Decision
Based on the aforementioned findings, the Director approves the
proposed amendment as submitted on April 12, 1995, and as supplemented
with additional explanatory information and regulations on October 19,
1995, and August 1, 1997, as discussed in:
Finding No. 1, NDCC 38-14.1-37(4), the statute that specifies that
under certain circumstances a coal mine operator who received
assistance for permitting or training reimburse the State of North
Dakota for the costs of that assistance;
Finding No. 2, NDCC 38-12.1-08, the statute in which is added the
term, ``or willfully'' to its existing language, ``who knowingly
violates this chapter, or any permit condition or regulation
implementing this chapter,'' and references NDCC 12.1-03-03, which
makes a person legally accountable for any conduct he performs or
causes to be performed in the name of an organization or in its behalf
to the same extent as if the conduct were performed in his own name or
his behalf;'' and
Finding No. 3, NDAC 43-02-01, the regulation imposing individual
civil and criminal penalties on individual officers of a corporation
when the corporation commits a violation of the coal exploration
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 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 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
An environmental impact statement is not 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.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: September 1, 1998.
Richard J. Seibel,
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:
[[Page 49434]]
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, as depicted in the table below, 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.
* * * * *
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Original amendment submission date Date of final publication Citation/description
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* * * * * *
*
April 12, 1995..................... September 16, 1998......... Statute: NDCC 38-14.1-37(4); NDCC 38-12.1-08;
Rule: NDAC 43-02-01.
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3. Section 934.16 is amended by removing and reserving paragraphs
(y) and (z).
[FR Doc. 98-24781 Filed 9-15-98; 8:45 am]
BILLING CODE 4310-05-M
