North Dakota Permanent Regulatory Program

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