North Dakota Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 934

[ND-032-FOR; Amendment XXII]

North Dakota Regulatory Program

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

Interior.

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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SUMMARY: OSM is announcing receipt of additional proposed revisions and

additional explanatory information pertaining to a previously proposed

amendment to the North Dakota regulatory program (hereinafter, the

``North Dakota program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The revisions and additional

explanatory information for North Dakota's proposed rules and statutes

pertain to the North Dakota program's Small Operator Assistance

Program, and individual civil and criminal penalties. The amendment is

intended to revise the North Dakota program to be consistent with the

corresponding Federal regulations and SMCRA.

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

24, 1995.

ADDRESSES: Written comments should be mailed or hand delivered to Guy

Padgett at the address listed below.

Copies of the North Dakota program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Casper Field Office.

Guy Padgett, Director, Casper Field Office, Office of Surface Mining

Reclamation and Enforcement, 100 E. ``B'' Street, Room 2128, Casper, WV

82601-1918, Telephone: (307) 261-5776

North Dakota Public Service Commission, Reclamation Division, Capitol

Building, Bismarck, ND 58505-0165, Telephone: (701) 224-4092

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (307) 261-5776.

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program

On December 15, 1980, the Secretary of the Interior conditionally

approved the North Dakota program. General background information on

the North Dakota program, including the Secretary's findings, the

disposition of comments, and the conditions of approval of the North

Dakota program can be found in the December 15, 1980, Federal Register

(45 FR 82214). Subsequent actions concerning the North Dakota program

and program amendments can be found at 30 CFR 934.12, 934.13, 934.15,

934.16, and 934.30.

II. Proposed Amendment

By letter dated April 12, 1995, North Dakota submitted a proposed

amendment to its program pursuant to SMCRA (30 U.S.C. 1201 et seq.).

(Amendment number XXII, Administrative Record No. ND-W-01). North

Dakota submitted the proposed amendment in response to the required

program amendment at 30 CFR 934.16(y) and in response to an

inconsistency with SMCRA that was identified in a July 22, 1994,

rulemaking action (59 FR 37426). The provisions of the North Dakota

Century Code (NDCC) that North Dakota proposes to revise or add are:

NDCC 38-14.1-37(4) [SOAP, reimbursement of costs], and NDCC 38-12.1-08

[coal exploration, individual civil and criminal penalties].

OSM announced receipt of the proposed amendment in the May 2, 1995,

Federal Register (60 FR 21484), provided an opportunity for a public

hearing or meeting on its substantive adequacy, and invited public

comment on its adequacy (Administrative Record No. ND-W-04). Because no

one requested a public hearing or meeting, none was held. The public

comment period ended on June 1, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions of NDCC 38-12.1-08, individual civil

penalties. OSM notified North Dakota of the concerns by letter dated

August 28, 1995 (Administrative Record No. ND-W-12). North Dakota

responded in a letter dated October 19, 1995, by submitting additional

proposed revisions and additional explanatory information

(Administrative Record No. ND-W-14).

North Dakota proposes revisions to North Dakota Administrative Code

chapter 43-02-01 and additional explanatory information pertaining to

NDCC 38-12.1-08, individual civil and criminal penalties.

Specifically, North Dakota explains that North Dakota law does

provide statutory authority subjecting officers, directors, and agents

to individual civil and criminal penalties even though it is the

corporation, not the individuals, that committed the violation. North

Dakota cites statutory provisions not previously incorporated into the

North Dakota program, specifically NDCC 12.1-03-03. This statute

provides (1) that a person is legally accountable for any conduct he

performs or causes to be performed in the name of an organization, and

(2) that whenever duty or act is imposed upon an organization by a

statute or regulation, any agent of the organization having primary

responsibility for the subject matter of the duty is legally

accountable for an omission to perform the required act.

North Dakota further explains that the legislative hearings and the

legislative history of NDCC 38-12.1-08 demonstrates a legislative

intent (1) to subject directors, officers, and agents to civil and

criminal penalties even though it is the corporation, not the

individual, that committed the violation, and (2) to make NDCC 38-12.1-

08 no less stringent than SMCRA Section 518(f).

North Dakota also notes that NDCC 38-12.1-04 gives the commission

authority to enforce orders to effectuate NDCC chapter 38-12.1, and

that NDCC 38-12.1-08 imposes civil and criminal penalties for any

person who violates that chapter, which would include orders issued

pursuant to NDCC 38-12.1-04. Further, North Dakota notes that, as a

practical matter, there has been very limited coal exploration in the

State for the last decade.

Finally, North Dakota proposes to add new regulatory provisions at

North Dakota Administrative Code (NDAC) 43-02-01 to implement the

statutory provisions described above. The proposed rules include the

following provisions: (1) when a corporate permittee violates permit

conditions or any rule imposed under NDAC chapter 43-02-01 or NDCC

chapter 38-12.1, or fails or refuses to comply with orders issued by

the commission (with one exception), any director, officer, or agent

who willfully and knowingly authorized or carried out the violation,

failure, or refusal shall be held accountable, and the commission shall

enforce the civil and criminal penalties provided against the

corporation; (2) a civil penalty may be assessed only after opportunity

for public hearing; and (3) any civil penalties assessed may be

recovered by the commission in civil actions in the appropriate North

Dakota district court.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed North Dakota

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the North

Dakota program.

Written comments should be specific, pertain only to the issues

proposed in

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this rulemaking, and include explanations in support of the commenter's

recommendations. Comments received after the time indicated under DATES

or at locations other than the Casper Field Office will not necessarily

be considered in the final rulemaking or included in the administrative

record.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under section 503 and 505 of SMCRA (30

U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 934

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 31, 1995.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating Center.

[FR Doc. 95-27812 Filed 11-8-95; 8:45 am]

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