North Dakota Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-033-FOR]

North Dakota Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is

approving a proposed amendment to the North Dakota abandoned mine land

reclamation (AMLR) plan (hereinafter, the ``North Dakota plan'') under

the Surface Mining Control and Reclamation Act of 1977 (SMCRA). North

Dakota proposed revisions to and the addition of provisions pertaining

to contractor eligibility, procurement procedures, contract procedures,

contract and procurement policies, and the State agency structural

organization. The amendment was intended to revise the North Dakota

plan to meet the requirements of the corresponding Federal regulations

and be consistent with SMCRA, and to improve operational efficiency.

EFFECTIVE DATE: October 8, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (307)

261-6550, Internet address:

[email protected]

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Plan

On December 23, 1981, the Secretary of the Interior approved the

North Dakota plan. General background information on the North Dakota

plan, including the Secretary's findings and the disposition of

comments, can be found in the December 23, 1981, Federal Register (46

FR 62253). Subsequent actions concerning North Dakota's plan and plan

amendments can be found at 934.25.

II. Proposed Amendment

By letter dated September 20, 1995, North Dakota submitted a

proposed amendment to its plan (administrative record No. ND-X-02)

pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota submitted the

proposed amendment in response to a September 26, 1994, letter

(administrative record No. ND-X-01) that OSM sent to North Dakota in

accordance with 30 CFR 884.15(b), and at its own initiative. The

provisions of the North Dakota plan that North Dakota proposed to

revise or add were: North Dakota Century Code (NDCC) 38-14.2-03(14),

bidder eligibility for abandoned mine land (AML) contracts; procurement

procedures; contract procedures; contract and procurement policies 2-

02-81(5) and 2-01-81(5); and the North Dakota Public Service Commission

(PSC) organizational chart.

OSM announced receipt of the proposed amendment in the October 16,

1995, Federal Register (60 FR 53564), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. ND-X-05).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on November 15, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions at NDCC 38-14.2-03(14), bidder eligibility,

and section IV.C.5 of the North Dakota PSC procurement procedures, non-

competitive negotiation. OSM notified North Dakota of the concerns by

letter dated December 7, 1995 (administrative record No. ND-X-04).

North Dakota responded in a letter dated April 30, 1996, by submitting

additional explanatory information (administrative record No. ND-X-09).

North Dakota proposed additional explanatory information for NDCC 38-

14.2-03(14), contractor responsibility, and procurement procedure

section IV.C.5., sole-source procurement.

Based upon the additional explanatory information for the proposed

plan amendment submitted by North Dakota, OSM reopened the public

comment period in the May 21, 1996, Federal Register (61 FR 25425,

administrative record No. ND-X-18). Because no one requested a public

hearing or meeting, none was held. The public comment period closed on

June 20, 1996.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 884.14 and 884.15, finds that the proposed plan amendment submitted

by North Dakota on September 20, 1995, and as supplemented with

additional explanatory information on April 30, 1996, meets the

requirements of the corresponding Federal regulations and is consistent

with SMCRA. Thus, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to North Dakota's Plan Provisions

North Dakota proposed revisions to the following previously-

approved plan provisions that are nonsubstantive in nature and consist

of minor editorial and recodification changes (corresponding Federal

regulation provisions are listed in parentheses):

North Dakota PSC Procurement Procedures (30 CFR 884.13(d)(3)), title

and table of contents, and

North Dakota PSC Contract Procedures (30 CFR 884.13(d)(3)), title and

table of contents.

Because the proposed revisions to these previously-approved plan

provisions are nonsubstantive in nature, the Director finds that they

meet the requirements of the Federal regulations. The Director approves

the proposed revisions to these plan provisions.

2. NDCC 38-14.2-03(14), Bidder Eligibility for Abandoned Mine Land

Contracts

North Dakota proposed to add NDCC 38-14.2-03(14) to require that:

Every successful bidder for an AML contract must be eligible

based on available information concerning Federal and State failure-

to-abate cessation orders, unabated Federal and State imminent harm

cessation

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orders, delinquent civil penalties issued pursuant to Section 518 of

the Surface Mining Control and Reclamation Act of 1977, bond

forfeitures where violations upon which the forfeitures were based

have not been corrected, delinquent abandoned mine reclamation fees,

and unabated violations of Federal an State laws, rules, and

regulations pertaining to air or water environmental protection

incurred in connection with any surface coal mining operation.

The Federal regulations at 30 CFR 874.16 for coal and 875.20 for

noncoal provide that to receive AML funds, every successful bidder for

an AMI contract must be eligible under 30 CFR 773.15(b)(1) at the time

of contract award to receive a permit or conditional permit to conduct

surface coal mining operations and that bidder eligibility must be

confirmed by OSM's automated Applicant/Violator System for each

contract to be awarded.

At NDCC 38-14.2-03(14), North Dakota proposed clearance criteria

that must be met before an AML contract may awarded to a successful

bidder for a contract; however, North Dakota's proposed statute lacks

the specific criteria of the Federal regulations concerning

eligibility.

North Dakota proposed that ``[e]very successful bidder for an AML

contract must be eligible based on available information * * *.'' North

Dakota's use of the phrase ``must be eligible'' does not indicate what

the successful bidder must be eligible for. The Federal regulations at

30 CFR 874.16 and 875.20 require that every successful bidder for an

AML contract must be eligible under 30 CFR 773.15(b)(1) at the time of

contract award to receive a permit or conditional permit to conduct

surface coal mining operations.

Secondly, North Dakota proposed that ``the successful bidder for an

AML contract must be eligible based on available information concerning

Federal and State failure-to-abate cessation orders, unabated Federal

and State imminent harm cessation orders, delinquent civil penalties

issued pursuant to Section 518 of the Surface Mining Control and

Reclamation Act of 1977, bond forfeitures where violations upon which

the forfeitures were based have not been corrected, delinquent

abandoned mine reclamation fees, and unabated violations of Federal and

State laws, rules, and regulations pertaining to air or water

environmental protection incurred in connection with any surface coal

mining operation.''

This list of eligibility criteria does not include all of the

criteria of the corresponding Federal regulation at 30 CFR 773.15(b)(1)

(as published October 28, 1994, 59 FR 54306), which is referenced in 30

CFR 874.16 and 875.20. The Federal regulation at 30 CFR 773.15(b)(1)

includes, in addition to the criteria included in North Dakota's

proposed statute, violations ``of the Act [(SMCRA)], any Federal rule

or regulation promulgated pursuant thereto, [and of] a State program.''

Although North Dakota includes cessation orders in its list, it does

not include Federal and State notices of violations and any other

``written notification from a governmental entity, whether by letter,

memorandum, judicial or administrative pleading, or other written

communication, of a violation of the Act; any Federal rule or

regulation promulgated pursuant thereto; [or a] State program,'' which

are included in the definition of ``violation notice'' at 30 CFR 773.5.

North Dakota's statute does not include the ownership and control

provisions of the Federal regulations. 30 CFR 874.16 and 875.20,

through their referencing of 30 CFR 773.15(b)(1), require that a

contract may not be awarded to a successful bidder until the regulatory

authority determines that any surface coal mining and reclamation

operation owned by the bidder or by any person who owns or controls the

bidder is not in violation of the laws, rules, and regulations

addressed in the preceding paragraph.

Finally, North Dakota indicated at proposed NDCC 38-14.2-03(14)

that ``[e]very successful bidder for an AML contract must be eligible

based on `available information','' but the proposed statute does not

indicate where it will obtain this ``available information.'' The

Federal regulations at 30 CFR 874.16 and 875.20 require that ``[b]idder

eligibility must be confirmed by OSM's automated Applicant/Violator

System for each contract to be awarded.''

In one other respect, proposed NDCC 38-14.2-03(14) differs from the

requirements of 30 CFR 874.16 and 875.20. In the proposed statute,

North Dakota did not include counterpart provisions to the Federal

requirements regarding presumption of abatement of notices of

violation. 30 CFR 874.16 and 875.20, through their referencing of 30

CFR 773.15(b)(1), set forth the circumstances under which the

regulatory authority may presume that a notice of violation is being

abated. If these circumstances exist, the regulatory authority would

not withhold the awarding of the contract until the violation was

actually abated. The language proposed at NDCC 38-14.2-03(14) does not

make it inconsistent with 30 CFR 874.16 and 875.20, but it does make it

more stringent than these Federal regulations.

In response to OSM's December 7, 1995, issue letter (administrative

record No. ND-X-04) concerning these identified deficiencies, North

Dakota proposed additional explanatory information for NDCC 38-14.2-

03(14) in the form of a policy document dated April 30, 1996, that

provides guidelines to govern the selection of successful bidders for

AMLR contracts. Specifically, the North Dakota PSC proposed to add a

policy statement that requires a background search of successful

bidders for AMLR contracts, provides the criteria to be used in

determining the eligibility of the successful bidder under 30 CFR

773.15(b)(1) at the time of contract award, limits the award of the

AMLR contract to a successful bidder who meets the criteria used to

determine eligibility, and provides that the eligibility determination

will be made through OSM's Applicant/Violator System for each AMLR

contract to be awarded. This policy document requires that the

successful bidder for an AML contract meet all the requirements of the

Federal regulations at 30 CFR 874.16 and 875.20. In addition, the

policy document provides that in the event that circumstances exist

whereby the regulatory authority presumes that a notice of violation is

being abated, the regulatory authority will not withhold award of the

contract until the violation is actually abated. This is consistent

with the presumption of abatement provisions of the Federal

regulations.

Therefore, based upon the April 30, 1996, policy document submitted

by North Dakota, which requires that the successful bidder for AML

contracts must meet the eligibility criteria as provided by the Federal

regulations at 30 CFR 874.16 and 875.20, the Director finds that NDCC

38-14.2-03(14), when used in conjunction with this policy document, is

in compliance with 30 CFR 874.16 and 875.20. The Director approves the

addition of the statute and supporting policy document to the North

Dakota plan.

3. North Dakota PSC Procurement Procedures and Contract Procedures

North Dakota proposed revisions to various parts of the North

Dakota PSC Procurement Procedures, including (1) section II,

definitions and miscellaneous policy provisions, at subsection E,

contract execution; subsection H, contractor selection; subsection I,

final report; subsection K, preference; and subsection M, procurement

officer; (2) section III, Public Service Commission and public

contractor code of conduct,

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at subsection B, gifts; and (3) section IV, procurement procedural

requirements, at subsection B, procurement procedure; subsection C,

method of procurement; and subsection D, unsolicited proposal. North

Dakota also proposed to add appendices to this document at: A,

evaluation criteria for request for proposals/competitive negotiations;

B, sample scoring system for competitive negotiation type contracts; C,

procedures for competitive contract negotiations; D, procedures for

sole source procurement; and E, checklist for work statement (specific

provisions) contracts and requests for proposals.

In addition, North Dakota proposed revisions in various parts of

the North Dakota PSC Contract Procedures, including (1) section II,

checklist for negotiating contracts, and (2) section III, standard

contract provisions, at subsection B, construction contracts. North

Dakota also proposed to add appendices to this document at: A, sample

close-out letter to contractor; B, sample contract transmittal letter;

C, sample detailed budget sheet for cost reimbursable contracts; D,

checklist for negotiating contracts; E, Public Service Commission

contract numbering system; F, conflict of interest disclaimer; G,

checklist for work statement (specific provisions) contracts and

request for proposals; and H, certification of payment to employees,

suppliers, and subcontractors.

The Federal regulations at 30 CFR 884.14(a)(3) require, for State

reclamation plan approval, that the State must have the policies

necessary to carry out the State's AML plan. 30 CFR 884.13(d)(3)

requires that the State reclamation plan must contain a description of

the purchasing and procurement systems used by the designated State

agency and that such systems must meet the requirements of the Office

of Management and Budget Circular A-102, Attachment O (commonly

referred to as the ``Grants Common Rule''). This circular is

implemented in accordance with the Federal regulations at 43 CFR Part

12. 43 CFR 12.76(a), which pertains to States, provides that a State

will, when procuring property and services under a grant, follow the

same policies and procedures it uses for procurements from its non-

Federal funds and that the State will ensure that every purchase order

or other contract includes any clauses required by Federal statutes and

executive orders and their implementing regulations.

The proposed revisions to the North Dakota procurement procedures

and contract procedures are consistent with the Federal regulations at

30 CFR 884.13 (d)(3) and 43 CFR 12.76(a). Therefore, the Director finds

that North Dakota's proposed revisions to the North Dakota PSC

Procurement Procedures and Contract Procedures are in compliance with

the requirements of the Federal regulations. The Director approves the

proposed revisions.

4. North Dakota PSC Contract Policy 2-02-81(5) and Procurement Policy

2-01-81(5)

The North Dakota plan contains a document titled ``North Dakota

Public Service Commission Contract and Procurement Policy,'' which

consists of two instruments, both dated January 12, 1981: Procurement

Policy 2-01-81(5), which was adopted on January 12, 1981, and revised

on September 6, 1995; and Contract Policy 2-02-81(5), which was adopted

on January 12, 1981, and revised on September 6, 1995. However, North

Dakota neither showed nor described the changes it made to either

existing policy.

The Federal regulation at 30 CFR 884.15(a) requires the Director to

follow the procedures set out in 30 CFR 884.14 in approving or

disapproving an amendment or revision of a State reclamation plan. 30

CFR 884.14(a)(3) requires that the State must have the policies

necessary to carry out the State's AML plan. The contract and

procurement policy included by North Dakota in this amendment is

consistent with the requirement of the Federal regulations that the

State reclamation plan include the policies necessary to carry out the

plan. Therefore, the Director finds that the document titled ``North

Dakota Public Service Commission Contract and Procurement Policy'' is

in compliance with the Federal regulations at 30 CFR 884.14(a)(3). The

Director approves this document.

5. Agency Organization

North Dakota submitted a revised organizational chart for the

State's Public Service Commission. The chart indicates that 5.3

employees are devoted to Abandoned Mine Lands Division. OSM has

confirmed that North Dakota intended to indicate that the staffing

level is 5.8 employees. OSM has approved grants for a 5.8 employee

staffing level.

The Federal regulation at 30 CFR 884.15(a) requires the Director to

follow the procedures set out in 30 CFR 884.14 in approving or

disapproving an amendment or revision of a State reclamation plan. 30

CFR 884.14(d) and (d)(1) require that the State reclamation plan must

include a description of the administrative and management structure

necessary to carry out the proposed plan, including the organization of

the designated State agency authorized by the Governor of the State to

administer this program and its relationship to other State

organizations or officials that will participate in or augment the

agency's reclamation capacity. Inherent within the ``administrative

structure'' is the staffing level to carry out the plan.

The Director finds that 5.8 employees is an appropriate staffing

level for carrying out the North Dakota plan and approves this level of

staffing within the North Dakota PSC for administering the North Dakota

plan.

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, but none

were received.

2. Federal Agency Comments

Pursuant to 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the North Dakota plan

(administrative record Nos. ND-X-07 and ND-X-13).

U.S. Department of Agriculture Natural Resources Conservation

Service (NRCS).--NRCS responded on April 30 and May 30, 1996, that it

had no comments on the proposed program amendment (administrative

record Nos. ND-X-08 and ND-X-16).

U.S. Department of Interior Fish and Wildlife Service (FWS).--FWS

responded on May 3 and June 4, 1996, that it did not anticipate any

significant impacts to fish and wildlife resources as a result of the

proposed amendment and that it had no additional comments

(administrative record Nos. ND-X-11 and ND-X-15).

U.S. Environmental Protection Agency (EPA).--EPA responded on May 6

and 31, 1996, that it had no comments on the amendment and that it

concurred with the proposed revisions (administrative record Nos. ND-X-

10 and ND-X-14).

U.S. Army Corps of Engineers.--The Army Corps of Engineers

responded on May 9, 1996, that it found the changes proposed in the

North Dakota plan to be satisfactory (administrative record No. ND-X-

12). The Corps commented that it had noted a minor numbering error in

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section IV of part I.C., North Dakota Public Service Commission

Procurement Procedures, where a new paragraph (C.4.b.3) had been added

and the subsequent paragraphs were not renumbered. OSM has passed the

Army Corps of Engineer's comment on to the North Dakota Public Service

Commission. It is left to the State to determine whether it will make

this editorial change.

The Army Corps of Engineers also responded on June 7, 1996, that it

found North Dakota's April 30, 1996, response to OSM's issue letter to

be satisfactory (administrative record No. ND-X-17).

V. Director's Decision

Based on the above findings, the Director approves North Dakota's

proposed plan amendment as submitted on September 20, 1995, and as

supplemented with additional explanatory information on April 30, 1996.

The Director approves, as discussed in: finding No. 1 North Dakota

Public Service Commission Procurement Procedures and Contract

Procedures, concerning the title and table of contents; finding No. 2,

NDCC 38-14.2-03(14), concerning bidder eligibility for abandoned mine

land contracts; finding No. 3, North Dakota Public Service Commission

Procurement Procedures and Contract Procedures, concerning the

purchasing and procurement systems used by the North Dakota Public

Service Commission in administering the State reclamation program;

finding No. 4, North Dakota Public Service Commission Contract and

Procurement Policy, concerning Contract Policy 2-02-81(5) and

Procurement Policy 2-01-81(5), which are necessary to carry out the

State reclamation plan; and finding No. 5, North Dakota Public Service

Commission Organizational Chart dated September 1, 1995, which shows

the number of employees needed to administer the State reclamation

plan.

The Director approves the statute and plan provisions as proposed

by North Dakota with the provision that they be fully promulgated in

identical form to the statute and plan provisions submitted to and

reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 934, codifying decisions

concerning the North Dakota plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State plan amendment process and to encourage States to

bring their plans into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards 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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of Tribe or State AMLR plans and

revisions thereof since each such plan is drafted and promulgated by a

specific Tribe or State, not by OSM. Decisions on proposed Tribe or

State AMLR plans and revisions thereof submitted by a Tribe or State

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the

applicable Federal regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed Tribe or State AMLR plans and revisions

thereof are categorically excluded from compliance with the National

Environmental Policy Act (42 U.S.C. 4332) by the Manual of the

Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 Tribe or State submittal which is the subject of this rule is based

upon 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

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe or State. In making the determination as to

whether this rule would have a significant economic impact, the

Department relied upon the data and assumptions in the analyses for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or private sector.

List of Subjects in 30 CFR Part 934

Abandoned mine reclamation programs, Intergovernmental relations,

Surface mining, Underground mining.

Dated: September 10, 1996.

Peter A. Rutledge,

Acting Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 934--NORTH DAKOTA

1. The authority citation for part 934 continues to read as

follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 934.25 is amended by adding paragraph (e) to read as

follows:

Sec. 934.25 Approval of abandoned mine land reclamation plan

amendments.

* * * * *

(e) The revisions to and the addition of the following statute and

plan provisions, as submitted to OSM on September 20, 1995, and as

supplemented with explanatory information on April 30, 1996, are

approved effective October 8, 1996: North Dakota Century Code (NDCC)

39-14.2-03(14), bidder eligibility for abandoned mine land contracts;

North Dakota Public Service Commission (PSC) Procurement Procedures and

Contract Procedures, both revised August 1995; North Dakota PSC

Contract Policy 2-02-81(5) and Procurement Policy 2-01-81(5), both

revised on September 6, 1995; and North Dakota PSC organizational chart

dated September 1, 1995.

[FR Doc. 96-25722 Filed 10-7-96; 8:45 am]

BILLING CODE 4310-05-M