North Dakota Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

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, with certain exceptions and additional

requirements, 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 primarily of changes to

provisions of the North Dakota Century Code (NDCC) and the North Dakota

Administrative Code (NDAC) concerning the Small Operator Assistance

Program (SOAP), the definition of ``road'' as referenced in the coal

exploration performance standards, and authorization for individual

civil and criminal penalties under the coal exploration program. The

amendment is intended to revise the North Dakota program to be

consistent with SMCRA and the Federal regulations.

EFFECTIVE DATE: July 22, 1994.

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 as administered by the Public Service

Commission. General background information on the North Dakota program,

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

conditions of approval of the North Dakota program can be found in the

December 15, 1980, Federal Register (45 FR 82214). Subsequent actions

concerning North Dakota's program and program amendments can be found

at 30 CFR 934.15 and 934.16.

II. Proposed Amendment

By letter dated April 21, 1993 (administrative record No. ND-Q-01),

North Dakota submitted a proposed amendment (``Amendment XVIII'') to

its permanent program pursuant to SMCRA. North Dakota proposed this

amendment in response to required program amendments at 30 CFR part

934.16 (l) and (y), published in the January 9, 1992, Federal Register

(57 FR 827). In addition, North Dakota proposed State-initiated changes

to the requirements for preblasting surveys and to NDCC chapter 38-14.1

reflecting 1992 changes to the Small Operator Assistance Program by the

Energy Policy Act of 1992 (Pub. L. 102-486) (Energy Policy Act) at

sections 507 (c) and (h) of SMCRA. (For a document relating to the

regulatory provisions 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.) The Director notes that Federal implementing regulations

were published in a final rule Federal Register notice dated May 31,

1994, addressing, in part, the changes to the Small Operator Assistance

Program by the Energy Policy Act (59 FR 28136).

OSM published a proposed rule in the May 19, 1993, Federla Register

(58 FR 29155) announcing receipt of the amendment and inviting public

comment on its adequacy (administrative record No. ND-Q-7). The public

comment period ended June 18, 1993. The public hearing, scheduled for

June 14, 1993, was not held because no one requested an opportunity to

testify.

During its review of the amendment, OSM identified concerns

relating to: (1) The proposed provisions at NDCC 38-14.1-37(4),

regarding SOAP requirements for reimbursement of training costs and

NDCC 38-14.1-37(5), regarding the prohibition of SOAP assistance to

operations not subject to payment of AML fees; (2) the requirement for

North Dakota to revise its implementing rules at North Dakota

Administrative Code (NDAC) 69-05.2-29 to be consistent with the

proposed statutory revisions; and (3) the proposed revisions at NDCC

38-12.1-03(6), regarding the definition of ``road'' and NDCC 38-12.1-

08, regarding the authorization for individual civil and criminal

penalties under the coal exploration program. OSM notified North Dakota

of these concerns by letter dated November 12, 1993 (administrative

record No. ND-Q-14).

By letter dated December 3, 1993, North Dakota responded by

submitting additional explanatory information and a revised amendment

(administrative record No. ND-Q-15). Specifically, North Dakota: (1)

Stated, with respect to NDCC 38-14.1-37(4), SOAP requirements for

reimbursement of training costs, that it will propose the necessary

statutory change in the next legislative session; (2) provided a

statement of clarification regarding North Dakota's intent with respect

to its implementing rules for the revised SOAP statutory provisions;

and (3) proposed to revise its rules at NDAC 43-02-01-20.3(c)(2),

regarding the definition of ``road'' and NDAC 43-02-01-05, regarding

the authorization for individual civil and criminal penalties under the

coal exploration program.

OSM announced receipt of the revised amendment in the December 28,

1993, Federal Register (58 FR 68617, administrative record No. ND-Q-

16), and in the same notice, reopened and extended the public comment

period on the adequacy of the amendment and the additional materials

submitted. The comment period closed January 12, 1994.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed North Dakota program amendment as submitted on April 21, 1993,

and revised on December 3, 1993.

1. NDCC 38-14.1-21(5), Permit Approval or Denial Standards

NDCC 38-14.1-21(5) currently provides:

Where information available to the commission indicates that any

surface coal mining operation owned or controlled by the permit

applicant is currently in violation of [NDCC Chapter 38-14.1],

[SMCRA], or any law or rule of the United States or the state of

North Dakota, or of any department or agency in the United States or

the state of North Dakota pertaining to air or water environmental

protection, incurred by the applicant in connection with any surface

coal mining operation during the three-year period prior to the date

of application the permit may not be issued until the permit

applicant submits proof that such violation has been corrected or is

in the process of being corrected to the satisfaction of the

regulatory authority with jurisdiction over the violation.

As noted by OSM in a final rule Federal Register notice dated

January 9, 1992 (57 FR 807, 816-17), current NDCC 38-14.1-21(5) is

similar to the Federal counterpart provision at section 510(c) of

SMCRA, but the Federal provision, unlike the State counterpart, does

not contain a temporal limitation upon the violations considered by the

regulatory authority in making its decision to approve or deny a

permit. The three-year temporal limitation in current NDCC 38-14.1-

21(5) renders North Dakota's statutory provision less stringent than

section 510(c) of SMCRA.

North Dakota has now proposed to delete the three-year temporal

limitation from NDCC 38-14.1-21(5), thus rendering it no less stringent

than section 510(c) of SMCRA. The Director notes that North Dakota's

reference to SMCRA in revised NDCC 38-14.1-21(5) is interpreted to

include SMCRA, its implementing rules, and all state and federal

programs enacted pursuant to SMCRA. See e.g. 57 FR 807, 811-812, 816-

818 (January 9, 1992).

The Director finds North Dakota's proposed statutory revision at

NDCC 38-14.1-21(5) to be no less stringent than section 510(c) of SMCRA

and is approving the proposed change.

2. NDCC 38-14.1-24(13)(e), Environmental Protection Performance

Standards, Preblasting Survey Criteria.

North Dakota proposed to revise NDCC 38-14.1-24(13)(e) by requiring

that a preblasting survey be conducted by the permittee when requested

by the resident or owner of a man-made dwelling or structure within one

mile [1.61 kilometers] of any portion of the permitted area. Currently,

the North Dakota statutory provision requires such a preblasting survey

when requested by the resident or owner of a man-made dwelling or

structure within one-half mile [804.67 meters] of any portion of the

permitted area.

Section 515(b)(15)(E) of SMCRA requires that a preblasting survey

be conducted when requested by the resident or owner of a man-made

dwelling or structure within one-half mile of any portion of the

permitted area. North Dakota's proposed revision to NDCC 38-14.1-

24(13)(e) thus allows a potentially larger group of residents or owners

within the vicinity of a mine to request a preblasting survey than is

provided for by SMCRA. 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 hich 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 proposed

statutory change at NDCC 38-14.1-24(13)(e).

3. NDCC 38-14.1-37, Small Operator Assistance Program (SOAP).

North Dakota proposed numerous revisions to NDCC 38-14.1-37,

regarding the North Dakota Small Operator Assistance Program (SOAP).

a. NDCC 38-14.1-37(2), Introductory Text

In the introductory text of NDCC 38-14.1-37(2), North Dakota

proposed to increase 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].

North Dakota also proposed, in the introductory text of NDCC 38-14.1-

37(2), that the costs of certain activities specified at NDCC 38-14.1-

37(2) (a) through (f) (discussed at findings 3 (b) through (g) below),

which must be performed by a qualified public or private entity

designated by the Commission, may be assumed by the Commission upon the

written request of an operator in connection with a permit application.

North Dakota's proposed revision to increase the amount of probable

total annual production allowed for SOAP applicants from one hundred

thousand tons to three hundred thousand tons is consistent with and no

less stringent than section 507(c)(1) of SMCRA.

North Dakota's proposal regarding the cost of certain activities

that the Commission may assume upon written request of an operator in

connection with a permit application would appear to grant discretion

to the regulatory authority that is not granted in section 507(c)(1) of

SMCRA. Section 507(c)(1) requires that the specified costs ``shall'' be

assumed by the regulatory authority.

This SMCRA provision is implemented in the Federal regulations at

30 CFR 795.9(a), which require the payment of such costs for eligible

applicants who request the assistance ``[t]o the extent possible with

available funds.'' Similarly, North Dakota's rules at NDAC 69-05.2-29-

02 (introductory text) also require that the Commission pay costs for

qualified applicants who request the assistance ``[t]o the extent

possible with available funds.''

Therefore, the Director finds North Dakota's proposed revisions to

the introductory text of NDCC 38-14.1-37(2), when read in light of the

regulatory limitations at NDAC 69-05.2-29-02, to be no less stringent

than section 507(c)(1) of SMCRA and no less effective in meeting

SMCRA's requirements as set forth in the Federal regulations at 30 CFR

795.9(a).

Based on the discussion above, the Director is approving the

proposed changes to the introductory text of NDCC 38-14.1-37(2).

b. NDCC 38-14.1-37(2)(a), Probable Hydrologic Consequences

North Dakota proposed to create new NDCC 38-14.1-37(2)(a) to

incorporate a portion of original NDCC 38-14.1-37(2) allowing the

commission's possible assumption, for qualified SOAP applicants, of the

cost of the determination of probable hydrologic consequences (PHC

determination) required by NDCC 38-14.1-14(1)(o) and to specify that

such costs include the engineering analyses and designs necessary for

the PHC determination.

Proposed NDCC 38-14.1-37(2)(a) is substantively similar to and is

no less stringent than section 507(c)(1)(A) of SMCRA. Accordingly, the

Director is approving proposed NDCC 38-14.1-37(2)(a).

c. NDCC 38-14.1-37(2)(b), Development of Cross Sections, Maps and Plans

North Dakota proposed to create new NDCC 38-14.1-37(2)(b) allowing

the Commission's possible assumption, for qualified SOAP applicants, of

the cost of the development of cross sections, maps, and plans required

by NDCC 38-14.1-14(1)(r).

Proposed NDCC 38-14.1-37(2)(b) is substantively similar to and is

no less stringent than section 507(c)(1)(B) of SMCRA. Accordingly, the

Director is approving proposed NDCC 38-14.1-37(2)(b).

d. NDCC 38-14.1-37(2)(c), Geologic Drilling

North Dakota proposed to create new NDCC 38-14.1-37(2)(c) allowing

the Commission's possible assumption, for qualified SOAP applicants, of

the cost of the geologic drilling and the statement of the result of

test borings and core samplings required by NDCC 38-14.1-14(1)(s).

Proposed NDCC 38-14.1-37(2)(c) is substantively similar to and no

less stringent than section 507(c)(1)(C) of SMCRA. Accordingly, the

Director is approving proposed NDCC 38-14.1-37(2)(c).

e. NDCC 38-14.1-37(2)(d), Cultural Resource Information

North Dakota proposed to create new NDCC 38-14.1-37(2)(d) allowing

the Commission's possible assumption, for qualified SOAP applicants, of

the cost of the collection of cultural resource information required by

NDCC 38-14.1-14(1)(u), any other archaeological and historical

information required by the superintendent of the state historical

board, and the preparation of mitigation plans necessitated thereby.

Proposed NDCC 38-14.1-37(2)(d) is substantively similar to and no

less stringent than section 507(c)(1)(D) of SMCRA. Accordingly, the

Director is approving proposed NDCC 38-14.1-37(2)(d).

f. NDCC 38-14.1-37(2)(e), Preblast Surveys

North Dakota proposed to create new NDCC 38-14.1-37(2)(e) allowing

the Commission's possible assumption, for qualified SOAP applicants, of

the cost of preblast surveys required by NDCC 38-14.1-24(13)(e). In

addition to this proposal, and as explained in the discussion in

Finding No. 2 above, OSM is approving North Dakota's proposed revision

to NDCC 38-14.1-24(13)(e), which requires a preblasting survey to be

conducted by the permittee when requested by the resident or owner of a

man-made dwelling or structure within one mile [1.61 kilometers] of any

portion of the permitted area. Taken in conjunction with North Dakota's

proposed revision to NDCC 38-14.1-24(13)(e), proposed NDCC 38-14.1-

37(2)(e) would allow North Dakota's SOAP program to pay for preblast

surveys conducted within one mile from the permit boundary.

Section 507(c)(1)(E) of SMCRA authorizes payment for preblast

surveys only in accordance with section 515(b)(15)(E) of SMCRA. Section

515(b)(15)(E), in turn, requires the applicant or permittee to conduct

a preblasting survey upon request of a resident or owner of a man-made

dwelling or structure within one-half mile of any portion of the

permitted area.

Thus, taken together, proposed NDCC 38-14.1-24(13)(e) and 38-14.1-

37(2)(e) effectively allow the Commission to use SOAP funds to cover

potentially more costly preblast surveys than would be required under

SMCRA. Since North Dakota has a preblast survey program requirement (1

mile) that is more stringent than SMCRA's preblast survey program

requirement (\1/2\ mile), small operators in North Dakota must meet the

more stringent State standard. Accordingly, the additional costs

associated with North Dakota's requirements regarding preblasting

surveys may be paid for with SOAP funds. Finally, section 505(b) of

SMCRA and 30 CFR 730.11(b) provide that any State law or regulation

that provides for more stringent land use and environmental controls

and regulations for surface coal mining and reclamation operations than

do SMCRA or the Federal regulations shall not be construed to be

inconsistent with SMCRA. Thus, based upon the discussion above, the

Director finds that proposed NDCC 38-14.1-37(2)(d) is not inconsistent

with section 507(c)(1)(E) of SMCRA and the Federal program and is

approving it.

g. NDCC 38-14.1-37(2)(f), Fish and Wildlife Resource Information

North Dakota proposed to create new NDCC 38-14.1-37(2)(f) allowing

the Commission's possible assumption, for qualified SOAP applicants, of

the cost of ``[t]he collection of site-specific resource information,

and the development of protection and enhancement plans for fish and

wildlife habitats and other environmental values required by the

commission in accordance with this chapter.''

Proposed NDCC 38-14.1-37(2)(f) is substantively similar to and no

less stringent than section 507(c)(1)(F) of SMCRA. Accordingly, the

Director is approving proposed NDCC 38-14.1-37(2)(f).

h. NDCC 38-14.1-37(3), Training of Small Operators

North Dakota proposed to create new NDCC 38-14.1-37(3) to read as

follows:

The commission may provide or assume the cost of training coal

operators who meet the qualifications in subsection 2 concerning the

preparation of permit applications and compliance with the

regulatory program.

Section 507(c)(2) of SMCRA requires that the Secretary ``shall''

provide or assume the cost of training coal operators that meet the

qualifications stated in section 507(c)(1) of SMCRA concerning the

preparation of permit applications and compliance with the regulatory

program. Moreover, section 507(c)(2) provides that the Secretary

``shall'' ensure that qualified coal operators are aware of the

assistance available under section 507(c) of SMCRA.

Proposed NDCC 38-14.1-37(3) appears to grand discretion to the

State regulatory authority regarding the provision of training

assistance that is now allowed by section 507(c)(2) of SMCRA. However,

section 507(c)(2) specifically references only ``the Secretary.'' OSM

currently interprets ``the Secretary'' to mean the Secretary of the

Interior, and not State regulatory authorities. Therefore, North

Dakota's proposed statutory language at NDCC 38-14.1-37(3) is

acceptable and it is unnecessary for North Dakota to revise proposed

NDCC 38-14.1-37(3) to be substantively identical to section 507(c)(2)

of SMCRA. However, 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 38-14.1-37(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.

Therefore, on the basis of the discussion above, proposed NDCC 38-

14.1-37(3) is no less stringent than section 507(c)(2) of SMCRA. For

the reasons discussed above, the Director is approving proposed NDCC

38-14.1-37(3).

i. NDCC 38-14.1-37(4), Reimbursement to the Commission of SOAP

Assistance Funds

North Dakota proposed to create new NDCC 38-14.1-37(4) to read as

follows:

An operator who has received assistance under [NDCC 38-14.1-

37(2)] shall reimburse the commission for the cost of the services

rendered if the commission finds that the operator's actual and

attributed annual production of coal for all locations exceeds three

hundred thousand tons. * * * during the twelve months immediately

following the date the operator is issued a surface coal mining and

reclamation permit.

This North Dakota proposal is similar to section 507(h) of SMCRA

with one exception. Since the North Dakota proposal only refers to

services provided under NDCC 38-14.1-37(2), it does not encompass any

training assistance that may have been provided under NDCC 38-14.1-

37(3). By comparison, the Federal provision at section 507(h) of SMCRA

requires operators, under such circumstances, to reimburse the

regulatory authority for the cost of any training assistance provided

by the regulatory authority, as well as for the cost of other services

provided or funded by the regulatory authority under the SOAP program.

North Dakota, in a letter dated December 3, 1993 (administrative

record No. ND-Q-15), acknowledged that proposed NDCC 38-14.1-37(4) does

not require the reimbursement of training costs in accordance with

section 507(h) of SMCRA, and stated that it will propose the necessary

statutory change in the next North Dakota legislative session.

Moreover, North Dakota stated that if proposed NDCC 38-14.1-37(4) were

approved, as submitted, the State would not provide or assume the cost

of training any small operator until such time as the statutory

revisions are made. As discussed in Finding No. 3(h) above, OSM

currently interprets section 507(c)(2) of SMCRA to require that the

Secretary of the Interior, and not the State regulatory authority,

provide or assume the cost of training coal operators and, in

accordance with that interpretation, North Dakota is not obligated to

do so. However, should North Dakota decide to provide training as a

result of revising proposed NDCC 38-14.1-37(3) discussed above, and use

SOAP funds to do so in accordance with 30 CFR 795.5, the failure of

proposed NDCC 38-14.1-37(34) to require the reimbursement of training

costs to the Commission will be less stringent than the requirements of

section 507(h) of SMCRA. Nevertheless, since North Dakota has stated

that it will not provide or assume the cost of such training until full

reimbursement of the cost of all SOAP assistance is statutorily

required, the Director finds that NDCC 38-14.1-37(4), as proposed, is

no less stringent than section 507(h) of SMCRA, and is approving it.

j. NDCC 38-14.1-37(5), Prohibition of SOAP Assistance to Operations Not

Subject to Payment of Reclamation Fees

North Dakota proposed to create new NDCC 38-14.1-37(5) to read as

follows:

Proposed surface coal mining operation that will not be subject

to payment of reclamation fees required by [SMCRA] are not eligible

for the assistance to small operators provided by [NDCC 38-14.1-37

(2) and (3)].

There are certain mining operations in the State of North Dakota

that are considered coal mining operations under the State program and

thus are regulated in the State pursuant to the North Dakota program,

but which are not subject to the payment of reclamation fees pursuant

to section 402 of SMCRA.

For example, the North Dakota program encompasses operations

extracting coal incidental to the extraction of other minerals where

coal does not exceed 16\2/3\ percent of the tonnage of minerals removed

for purposes of commercial use or sale (incidental coal mining

operation). See 57 FR 37702, 37703-37704, (August 20, 1992). In

contrast, the Federal definition of the term ``surface coal mining

operations'' at 701(28)(A) of SMCRA and 30 CFR 700.5 specifically

excludes incidental coal mining operations.

Similarly, North Dakota regulates leonardite operations under its

coal regulatory program. In contrast, OSM has taken the position that

leonardite is not ``coal'' as defined in 30 CFR 700.5, and thus

leonardite operations are not subject to regulation or oversight by OSM

under SMCRA. See December 14, 1982, letter from OSM to the North Dakota

Public Service Commission (administrative record No. ND-Q-17).

Section 507(c)(1) of SMCRA provides for SOAP assistance to a

qualified ``coal surface mining operator.'' Accordingly, since

incidental coal and leonardite operations are not considered ``surface

coal mining operations'' under the Federal program, such operations

would not be regulated by OSM pursuant to SMCRA and thus would not

qualify for SOAP assistance under SMCRA.

The operators who will be deemed ineligible for SOAP assistance

under the North Dakota proposal would not qualify for such assistance

under the Federal program. Accordingly, the Director finds that North

Dakota's proposed statute at NDCC 38-14.1-37(5) is not inconsistent

with SMCRA and the Director is approving it.

4. Coal Exploration

For purposes of clarification, the Director notes that in North

Dakota, jurisdiction over surface coal mining and reclamation

operations, including the Small Operator Assistance Program, is with

the North Dakota Public Service Commission. However, jurisdiction over

coal exploration, of which the following proposed revisions and

findings pertain to, is with the North Dakota Industrial Commission,

through the office of the Geological Survey. Thus, the surface coal

mining and reclamation operation and coal exploration components of the

North Dakota permanent program are administered by separate agencies.

a. NDCC 38-12.1-03(6) and NDAC 43-02-01-20.3(c)(2), Roads

North Dakota proposed to create new NDCC 38-12.1-03(6), which

defines the term ``road,'' as used in the coal exploration portions of

the North Dakota program, to read as follows:

``Road'' means a surface or right of way for purposes of travel

by land vehicles used in coal exploration. A road consists of the

entire area of the right of way, including the roadbed, shoulders,

parking and side areas, approaches, structure, ditches, and surface.

The Federal regulations at 30 CFR 701.5 defines ``road,'' in part,

as ``[a] surface right-of-way for purposes of travel by land vehicles

used in surface coal mining and reclamation operations or coal

exploration.'' In a letter dated November 12, 1993 (administrative

record No. ND-Q-14), OSM identified two concerns with North Dakota's

proposed definition.

First, OSM stated that North Dakota's use of the word ``or'' in the

first sentence of its proposed definition of ``road'' appeared to serve

no useful purpose. Read literally, the proposed definition states that

``[r]oad means a surface [for purposes of travel] * * * or a right-of-

way for purposes of travel * * *'' (emphasis added). OSM requested in

its November 12, 1993, letter that North Dakota either: (1) Correct

what appeared to be an editorial error in a subsequent rulemaking; or

(2) clarify how the definition of ``road'' would be interpreted and

applied.

In a letter dated December 3, 1993, North Dakota responded that

during the course of coal exploration, roads may be temporarily altered

to leave established easements or rights-of-way and that the proposed

definition of ``road'' at proposed NDCC 38-12.1-03(6) includes those

roads. North Dakota further stated that the ``surface'' used for

purposes of travel by land vehicles used in coal exploration are

subject to regulation, whether those vehicles are traveling within

established rights-of-way or outside of them. Based upon the State's

explanation, the Director finds that North Dakota's use of the word

``or'' in its proposed definition of ``road'' is not inconsistent with

the Federal definition of ``road'' at 30 CFR 701.5.

Second, OSM requested that North Dakota clarify its intent

regarding the differences between the proposed definition of ``road''

in the coal exploration portions of the State program and the already-

approved definition of ``road'' in the surface coal mining and

reclamation operations portions of the State program (NDAC 69-05.2-01-

02(92)). Specifically, the approved definition of ``road'' at NDAC 69-

05.2-01-02(92), like the Federal counterpart definition, explicitly

includes access and haulroads constructed, reconstructed, improved, or

maintained for use in operations, including use by coal hauling

vehicles to and from transfer, processing, or storage areas. Proposed

NDCC 38-12.1-03(6), however, does not contain a similar list of various

types of roads encompassed by the definition.

By letter dated December 3, 1993, North Dakota responded by

acknowledging that the proposed definition of ``road'' at NDCC 38-12.1-

03(6) includes all rights-of-way used in coal exploration and was not

intended to include exhaustive examples of all types of roads. North

Dakota also submitted a proposed revision to its coal exploration

regulations at NDAC 43-02-01-20.3(c)(2). The revised regulation would

include a new clause clarifying that:

A road is altered if it is constructed, reconstructed, improved,

or maintained in any way that causes the changes described in this

section.

The Federal regulation defining ``road'' at 30 CFR 701.5 insofar as

it concerns coal exploration, also includes ``[a]ccess and haul roads

constructed, used, reconstructed, improved, or maintained for use in *

* * coal exploration * * * .'' Thus, North Dakota's inclusion of the

additional terms ``constructed, reconstructed, improved, and

maintained'' into its coal exploration regulations at NDAC 43-02-01-

20.3(c)(2), when read in conjunction with the discussion above

regarding the proposed statutory definition of ``road'' at NDCC 38-

12.1-03(6), effectively defines the term ``road'' to include all

rights-of-way used in coal exploration as well as roads constructed,

reconstructed, improved, or maintained in any way. The Director finds

that North Dakota has clarified OSM's concerns with respect to North

Dakota's interpretation of its proposed statutory definition of

``road'' at NDCC 38-12.1-03(6) to ensure that it is consistent with the

interpretation of the Federal definition of ``road'' at 30 CFR 701.5.

For the reasons discussed above, the Director finds that proposed

NDCC 38-12.1-03(6), defining the term ``road,'' and proposed NDAC 43-

02-01-20.3(c)(2), that includes the additional clarifying terms

``constructed, reconstructed, improved, and maintained'' into its coal

exploration regulations, are in accordance and consistent with the

Federal definition of ``road'' at 30 CFR 701.5. Accordingly, the

Director is approving the proposed changes and is removing the required

program amendment codified at 30 CFR 934.16(l).

b. NDCC 38-12.1-04(1)(a), Jurisdiction of the Industrial Commission

North Dakota proposed to revise NDCC 38-12.1-04(1)(a) to grant the

Industrial Commission (Commission) the authority to require the

furnishing of a reasonable bond amount sufficient to ensure the

reclamation of roads used in coal exploration. Specifically, North

Dakota proposed to revise NDCC 38-12.1-04(1)(a) to provide that the

Commission, acting through the office of the state geologist, has the

authority to require (italicized language to be added):

The furnishing of a reasonable bond with good and sufficient

surety, conditioned upon the full compliance with the provisions of

this chapter, and the rules and regulations of the commission

prescribed to govern the exploration for coal on state and private

lands and roads used in coal exploration within the state of North

Dakota.

The Federal program does not require bonding for coal exploration.

Thus, North Dakota's proposed revision specifically referencing roads

used in coal exploration with respect to the furnishing of a reasonable

bond for reclamation goes beyond the requirements of the Federal

program.

In accordance with section 505(b) of SMCRA and the Federal

regulations at 30 CFR 739.11(b), the State regulatory authority has the

discretion to impose land use and environmental controls and

regulations on coal exploration 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 coal exploration operations

for which no Federal counterpart exists. Section 505(b) of SMCRA and 30

CFR 730.11(b) dictate that such provisions shall not be construed to be

inconsistent with the Federal program. Accordingly, the Director is

approving the proposed revision to NDCC 38-12.1-04(1)(a).

c. NDCC 38-12.1-08 and NDAC 43-02-01-05, Civil and Criminal Penalties

North Dakota proposed to revise its statutory provision at NDCC 38-

12.1-08, regarding civil and criminal penalties in the coal exploration

portions of the State program to read as follows (italicized language

to be added):

1. Any person, including a director, officer, or agent of a

corporate permittee, who violates this chapter, or any permit

condition or regulation implementing this chapter is subject to a

civil penalty not to exceed five thousand dollars per day of such

violation.

Any person, including a director, officer, or agent of a

corporate permittee, who knowingly violates this chapter, or any

permit condition or regulation implementing this chapter or who

knowingly reports information required by this chapter falsely is

subject, upon conviction, to a criminal penalty of not more than ten

thousand dollars or by imprisonment for not more than one year.

In a letter dated November 12, 1993, OSM identified several

concerns with North Dakota's proposed changes.

1. Statutory Authorization for Individual Penalties

OSM notified North Dakota that although its proposed revisions to

NDCC 38-12.1-08 purported to subject an individual director, officer,

or agent of a corporate permittee to civil and criminal penalties when

that individual committed a violation, the proposed revisions did not

indicate under what circumstances an individual director, officer, or

agent will be deemed to have committed a violation. In contrast,

section 518(f) of SMCRA specifically addresses the circumstances under

which a corporate director, officer, or agent may be individually

subject to either civil or criminal penalties in connection with a

violation committed by a corporate permittee. Section 518(f) of SMCRA

provides, in part, that:

Whenever a corporate permittee violates, a [law, rule, order, or

permit condition] or fails or refuses to comply with an order issued

under section 521 of this Act, or any order incorporated in a final

decision issued by the Secretary under this Act * * * any director,

officer, or agent of such corporation who willfully and knowingly

authorized, ordered, or carried out such violation, failure, or

refusal shall be subject to the same civil penalties, fines, and

imprisonment that may be imposed upon a person under [sections

518(a) and (e) of SMCRA].

OSM stated that in order to be no less stringent than section

518(f) of SMCRA, North Dakota must revise proposed NDCC 38-12.1-08 to

clearly subject corporate directors, officers, or agents, to individual

civil and criminal penalties in connection with violations committed by

a corporate permittee, under the circumstances outlined in section

518(f) of SMCRA.

By letter dated December 3, 1993, North Dakota responded by

submitting for OSM's approval the following proposed regulatory

amendment to NDAC 43-02-01-05:

Whenever a corporate permittee violates NDCC 38-12.1 [statutory

requirements addressing coal exploration] or any permit condition or

rule or other regulation implemented thereunder, a director, officer

or agent of the corporate permittee who knowingly causes such

violation is subject to the criminal penalties imposed under NDCC

38-12.1-08(2). ``Knowingly'' is to be understood as defined by NDCC

12.1-02-02. In addition, whenever a director, officer, or agent of a

corporate permittee willfully or negligently violates NDCC 38-12.1

or any permit condition or rule or regulation implemented

thereunder, civil penalties may be imposed under NDCC 38-12.1-08(1).

``Willfully'' and ``negligently'' are to be understood as defined by

NDCC 12.1-02-02.

North Dakota's proposed regulatory change addresses the

circumstances under which a corporate director, officer or agent may be

individually subject to criminal penalties in connection with a

violation committed by a corporate permittee. However, the proposed

regulatory change does not address the circumstances under which a

corporate director, officer or agent may be individually subject to

civil penalties in connection with a violation committed by a corporate

permittee. Accordingly, the Director is approving proposed NDAC 43-02-

01-05 to the extent that it specifically addresses the circumstances

under which a corporate director, officer or agent may be individually

subject to criminal penalties in connection with a violation committed

by a corporate permittee. However, the Director is requiring North

Dakota to further amend NDAC 43-02-01-05 to specifically address the

circumstances under which a corporate director, officer, or agent may

be individually subject to civil penalties in connection with a

violation committed by a corporate permittee.

Moreover, because North Dakota's proposed statutory revisions do

not address when a corporate director, officer or agent may be

individually subject to either civil or criminal penalties in

connection with a violation committed by a corporate permittee,

proposed NDCC 38-12.1-08 remains deficient. Therefore, the Director is

not approving NDCC 38-12.1-08 and is requiring 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

either civil or criminal penalties in connection with a violation

committed by a corporate permittee.

2. Nature of Violations That Subject Individuals to Penalties

In the November 12, 1993, letter, OSM notified North Dakota that

NDCC 38-12.1-08(1) would subject an individual to civil penalties for

any violation and would subject individuals to criminal penalties for

any violation committed ``knowingly.'' In contrast, section 518(f) of

SMCRA subjects a corporate director, officer, or agent to penalties

only when that individual ``willfully and knowingly authorized,

ordered, or carried out'' the act or omission that constitutes the

violation.

Thus, OSM noted that because proposed NDCC 38-12.1-08 would subject

individuals to civil and criminal penalties for a wider, more

inclusive, range of actions or omissions than are covered by SMCRA

518(f), it would be more stringent than SMCRA. However, OSM requested

that North Dakota clarify its intent regarding these provisions and

reaffirm that these provisions did not conflict with other State law

requirements.

As discussed in Finding No. 4(c)(1) above, by letter dated December

3, 1993, North Dakota responded by submitting for OSM's approval

proposed regulatory amendments to NDAC 43-02-01-05. Those proposed

regulatory amendments provide for criminal penalties in connection with

violations committed ``knowingly'' and civil penalties in connection

with violations committed either ``willfully'' or ``negligently.''

North Dakota also attached a copy of the cross-referenced

definitions of the terms ``knowingly,'' ``willfully,'' and

``negligently'' at section 12.1-02-02 of the North Dakota Criminal

Code. In accordance with that provision, a person engages in conduct:

a. ``Intentionally'' if, when he engages in the conduct, it is

his purpose to do so.

b. ``Knowingly'' if, when he engages in the conduct, he knows or

has a firm belief, unaccompanied by substantial doubt, that he is

doing so, whether or not it is his purpose to do so.

c. ``Recklessly'' if he engages in the conduct in conscious and

unjustifiable disregard of a substantial likelihood of the existence

of the relevant facts or risks, such disregard involving a gross

deviation from acceptable standards of conduct, except that, as

provided in section 12.1-04-02, awareness of the risk is not

required where its absence is due to self-induced intoxication.

d. ``Negligently'' if he engages in the conduct in unreasonable

disregard of a substantial likelihood of the existence of the

relevant facts or risks, such disregard involving a gross deviation

from acceptable standards of conduct.

e. ``Willfully'' if he engages in the conduct intentionally,

knowingly, or recklessly.

North Dakota stated that the above-described standards are more

stringent than the Federal standard. North Dakota also stated that it

has been enforcing a similar standard in its environmental laws for a

long time without any problems.

The Director has reviewed the State definitions of the terms

``knowingly,'' ``willfully,'' and ``negligently'' in connection with

the review of proposed NDAC 43-02-01-05. The Director notes that the

proposed State standards are substantively different from the Federal

standards set forth at 30 CFR 846.5.

First, the Federal standard is the same for both individual civil

and criminal penalties, while the State proposes two separate standards

for individual civil and criminal penalties. Under the Federal rules, a

corporate director, officer, or agent may be individually subject to

either civil or criminal penalties if that individual both

``knowingly'' and ``willfully'' authorized, ordered, or carried out the

act or omission that constitutes the violation. In contrast, the State

has proposed two separate standards for individual civil and criminal

penalties. Under the State proposal, a corporate director, officer, or

agent may be individually subject to criminal penalties in connection

with a violation committed by the corporate permittee if the individual

knowingly caused the violation. In comparison, under the State

proposal, a corporate director, officer, or agent is subject to

individual civil penalties if that individual commits a violation

``willfully'' or ``negligently.''

Although North Dakota and OSM use some of the same terms in

describing their standards for the imposition of individual civil and

criminal penalties, the terms are not defined the same in the State

program as they are in the Federal program. For example, the Federal

definition of the term ``knowingly'' at 30 CFR 846.5 reads as follows:

``Knowingly'' means that an individual knew or had reason to

know in authorizing, ordering or carrying out an act or omission on

the part of a corporate permittee that such act or omission

constituted a violation, failure or refusal.

In addition, the Federal definition of the term ``willfully'' at 30

CFR 846.5 reads as follows:

``Willfully'' means that an individual acted

(1) Either intentionally, voluntarily or consciously, and

(2) With intentional disregard or plain indifference to legal

requirements in authorizing, ordering or carrying out a corporate

permittee's action or omission that constituted a violation, failure

or refusal.

After conducting an independent review and analysis, the Director

agrees with North Dakota that its proposed standards for the imposition

of individual civil and criminal penalties appear to be more stringent

than the Federal standards. Pursuant to section 505(b) of SMCRA and the

Federal regulations at 30 CFR 730.11(b), the State regulatory authority

has the discretion to impose land use and environmental controls and

regulations on coal exploration 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 coal exploration operations

for which no Federal counterpart exists. Section 505(b) of SMCRA and 30

CFR 730.11(b) dictate that such provisions shall not be construed to be

inconsistent with the Federal program. Accordingly, the Director is

approving North Dakota's proposed definitions of the terms

``knowingly,'' ``willfully,'' and ``negligently'' and that portion of

North Dakota's Criminal Code at section 12.1-02-02 that contains those

definitions, as incorporated at NDAC 43-02-01-05, as part of North

Dakota's coal exploration program.

3. Listing of Actions, Failures, and Refusals That Subject Individuals

to Penalties

Finally, OSM, in the November 12, 1993, letter, notified North

Dakota that, unlike section 518(f) of SMCRA, proposed NDCC 38-12.1-08

does not explicitly include failure of refusal to comply with orders of

the Commission as cause to subject individuals to penalties. In

addition, OSM noted that the North Dakota coal exploration program does

not explicitly address the issuance of orders by the Commission and

that the program was approved by OSM on the basis of North Dakota's

agreement to issue each coal exploration permit with a specific

condition subjecting it to the requirements of 30 CFR 840, 842, 843,

845, and 43 CFR part 4 (see 45 FR 82214, 82226; December 15, 1980)

Section 518(f) of SMCRA subjects individuals to penalties when

corporate permittees fail or refuse to comply with enforcement orders

or any order (with minor exceptions) incorporated in a final decision

of the regulatory authority.

In the December 3, 1993, letter, North Dakota responded by

acknowledging that its provisions at NDCC 38-12.1-08 regarding

liability and penalties for failure to comply with orders of the

Industrial Commission should be clearer, and expressed its willingness

to approach the North Dakota Legislature in 1995 to request an

amendment to NDCC 38-12.1-08 to include civil and criminal penalties

for violations such orders.

The Director agrees that North Dakota must amend NDCC 38-12.1-08.

Therefore, the Director is not approving proposed NDCC 38-12.1-08 and

is requiring North Dakota to amend its program to require that, in

addition to violations, failure or refusal to comply with such orders,

as listed in section 518(f) of SMCRA and issued by the North Dakota

Industrial Commission, serves as an additional basis for imposing

individual civil and criminal penalties upon corporate officers,

directors, and agents. The required program amendment placed on North

Dakota's program at 30 CFR 934.16(y), as a result of a January 9, 1992,

rulemaking action (57 FR 807, 823-24) will be modified to reflect this

decision.

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 a public hearing, no hearing was held.

2. Federal Agency Comments

Pursuant to section 503(b) of SMCRA and the implementing

regulations at 30 CFR 732.17(h)(11)(i), OSM solicited comments from the

Administrator of the Environmental Protection Agency (EPA), the

Secretary of Agriculture, and various other Federal agencies with an

actual or potential interest in the North Dakota program.

By letter dated May 19, 1993 (administrative record No. ND-Q-8),

the Soil Conservation Service responded that it had no comment on the

proposed amendment.

By letter dated May 25, 1993 (administrative record No. ND-Q-9),

the U.S. Bureau of Mines responded that it had no specific comments on

the proposed amendment.

By letter dated May 26, 1993 (administrative record No. ND-Q-10),

the U.S. Fish and Wildlife Service responded that it had no substantive

comments on the proposed amendment.

By letter dated June 28, 1993 (administrative record No. ND-Q-12),

the Mine Safety and Health Administration responded that it had no

comments on the proposed amendment.

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the

written concurrence of the Administrator of EPA with respect to those

aspects of a State 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.) and the Clean Air Act, as amended, (42

U.S.C. 7401 et seq.). EPA gave its written concurrence with the

proposed amendment by letter dated October 25, 1993 (administrative

record No. ND-Q-13).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit

comments from the SHPO and ACHP for all amendments that may have an

effect on historic properties. By letter dated May 7, 1993, OSM

solicited comments from these offices (administrative record No. ND-Q-

6). Neither the SHPO nor the ACHP commented on the proposed amendment.

V. Director's Decision

Based on the above findings, the Director approves, with three

exceptions, North Dakota's proposed amendment as submitted on April 21,

1993, and revised on December 3, 1993. As discussed in: Finding No. 1,

North Dakota's proposed statutory revisions to NDCC 38-14.1-21(5)

regarding permit approval or denial standards; Finding No. 2, the

proposed statutory revisions to NDCC 38-14.1-24(13)(e) regarding

preblasting survey criteria; Finding No. 3(a), the proposed statutory

revisions to NDCC 38-14.1-37(2) regarding the probable total annual

coal production and testing costs, as it applies to the North Dakota

SOAP program; Finding No. 3(b), newly-created NDCC 38-14.1-37(2)(a)

regarding probable hydrologic consequences and engineering designs, as

they apply to the North Dakota SOAP program; Finding No. 3(c), newly-

created NDCC 38-14.1-37(2)(b) regarding the development of cross

sections, maps, and plans, as it applies to the North Dakota SOAP

program; Finding No. 3(d), newly-created NDCC 38-14.1-37(2)(c)

regarding geologic drilling and a statement of the results of test

borings and core samplings, as it applies to the North Dakota SOAP

program; Finding No. 3(e), newly-created NDCC 38-14.1-37(2)(d)

regarding cultural resource information, as it applies to the North

Dakota SOAP program; Finding No. 3(f), newly-created NDCC 38-14.1-

37(2)(e) regarding the payment of costs for preblasting surveys, as it

applies to the North Dakota SOAP program; Finding No. 3(g), newly-

created NDCC 38-14.1-37(2)(f) regarding fish and wildlife habitat

enhancement plans, as it applies to the North Dakota SOAP program;

Finding No. 3(h), newly-created NDCC 38-14.1-37(3) regarding North

Dakota's discretionary authority to provide or assume training costs

for small operators; Finding No. 3(i), newly-created NDCC 38-14.1-37(4)

regarding the requirements for small operator reimbursement to North

Dakota for the cost of permit application materials and training;

Finding No. 3(j), newly-created NDCC 38-14.1-37(5) regarding the

prohibition of assistance to small operations not subject to payment of

AML fees; Finding No. 4(a), the proposed definition of ``road'' at

newly-created NDCC 38-12.1-03(6), the clarifying terminology proposed

at revised NDAC 43-02-01-20.3(c)(2), and removal of the required

program amendment at 30 CFR 934.16(1); Finding No. 4(b), the proposed

statutory revision to NDCC 38-12.1-04(1)(a) regarding the Commission's

authority to require a reasonable bond amount sufficient to ensure the

reclamation of roads used in coal exploration; Finding No. 4(c)(1),

newly-proposed NDAC 43-02-01-05, to the extent that it specifically

addresses the circumstances under which a corporate director, officer

or agent may be individually subject to criminal penalties in

connection with a violation committee by a corporate permittee; and

finally, as discussed in Finding No. 4(c)(2), North Dakota's newly-

proposed standards for civil and criminal penalties, which use the

proposed definitions of the terms ``knowingly,'' ``willfully,'' and

``negligently,'' as set forth in North Dakota's Criminal Code at 12.1-

02-02 and incorporated at NDAC 43-02-01-05, as part of North Dakota's

coal exploration program.

However, as discussed in Finding Nos. 4 (c)(1) and (c)(3), the

Director is not approving the proposed statutory revisions to NDCC 38-

12.1-08 and is requiring North Dakota to amend its program to (1)

specifically address the circumstances under which a corporate

director, officer, or agent may be individually subject to either civil

or criminal penalties in connection with a violation committed by a

corporate permittee; and (2) require that, in addition to violations,

failure or refusal to comply with orders, as listed in section 518(f)

of SMCRA and issued by the North Dakota Industrial Commission, serves

as an additional basis for imposing individual civil and criminal

penalties upon corporate officers, directors, and agents. The required

program amendment placed on North Dakota's program at 30 CFR 934.16(y)

will be modified to reflect this decision. In addition, as discussed in

Finding No. 4(c)(1), the Director is requiring North Dakota to further

amend NDAC 43-02-01-05 to specifically address the circumstances under

which a corporate director, officer or agent may be individually

subject to civil penalties in connection with a violation committed by

a corporate permittee. Except as noted, the Director is approving these

proposed rules with the provision that they be fully promulgated in

identical form to the rules submitted to and reviewed by OSM and the

public.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

934.16 that, within 60 days of the publishing of this notice, North

Dakota would have to either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with North Dakota's established administrative or

legislative procedures.

The Federal regulations at 30 CFR part 934, which codify 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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the North Dakota program, the Director will recognize only

the statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by North Dakota of only

such provisions.

VI. Procedural Determinations

1. Executive Order 12866

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

and Budget 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 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 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.

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.

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 (r) to read as

follows:

Sec. 934.15 Approval of regulatory program amendments.

* * * * *

(r) The following revisions to the North Dakota Century Code, as

submitted to OSM on April 21, 1993, and as subsequently revised on

December 3, 1993, are approved effective July 22, 1994.

NDCC 38-14.1-21(5), concerning permit approval or denial standards;

NDCC 38-14.1-24(13)(e), concerning preblasting survey criteria; NDCC

38-14.1-37(2), concerning probable total annual coal production and

testing costs as they apply to SOAP; NDCC 38-14.1-37(2)(a), concerning

probable hydrologic consequences and engineering designs as they apply

to SOAP; NDCC 38-14.1-37(2)(b), concerning the development of cross

sections, maps and plans as they apply to SOAP; NDCC 38-14.1-37(2)(c),

concerning geologic drilling and test results as they apply to SOAP;

NDCC 38-14.1-37(2)(d), concerning cultural resource information as it

applies to SOAP; NDCC 38-14.1-37(2)(e), concerning the payment of costs

for preblast surveys as they apply to SOAP; NDCC 38-14.1-37(2)(f),

concerning fish and wildlife habitat enhancement plans as they apply to

SOAP; NDCC 38-14.1-37(3), concerning the discretionary authority to

provide or assume training costs for small operators; NDCC 38-14.1-

37(4), concerning the requirements for small operator reimbursement;

NDCC 38-14.1-37(5), concerning the prohibition of small operator

assistance to operations not subject to payment of AML fees; NDCC 38-

12.1-03(6), concerning the definition of ``Road'' and the clarifying

terminology proposed at NDAC 43-02-01-20.3(c)(2); NDCC 38-12.1-04(1)(a)

regarding the Commission's authority to require a reasonable bond

amount sufficient to ensure the reclamation of roads used in coal

exploration; NDAC 43-02-01-05, to the extent that it specifically

addresses the circumstances under which a corporate director, officer

or agent may be held individually liable for criminal penalties in

connection with a violation committed by a corporate permittee; and

North Dakota's newly-proposed standards for civil and criminal

penalties, which use the proposed definitions of the terms

``knowingly,'' ``willfully,'' and ``negligently,'' as set forth in

North Dakota's Criminal Code at 12.1-02-02 and incorporated at NDAC 43-

02-01-05, as part of North Dakota's coal exploration program.

3. Section 934.16 is amended by adding an introductory paragraph,

removing and reserving paragraph (l), revising paragraph (y), and

adding paragraph (z) to read as follows:

Sec. 934.16 Required regulatory program amendments.

Pursuant to 30 CFR 732.17(f)(1), North Dakota is required to submit

to OSM by the specified date the following written, proposed program

amendments, or a description of the amendments to be proposed that meet

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with North Dakota's established

administrative and legislative procedures.

* * * * *

(y) By September 20, 1994. North Dakota shall submit proposed

revisions to NDCC 38-12.1-08 to (1) specifically address the

circumstances under which a corporate director, officer, or agent may

be individually subject to either civil or criminal penalties in

connection with a violation committed by a corporate permittee; and (2)

require that, in addition to violations, failure or refusal to comply

with orders, as listed in section 518(f) of SMCRA and issued by the

North Dakota Industrial Commission, serves as an additional basis for

imposing individual civil and criminal penalties upon corporate

officers, directors, and agents.

(z) By September 20, 1994. North Dakota shall submit proposed

revisions to NDAC 43-02-01-05 to specifically address the circumstances

under which a corporate director, officer or agent may be individually

subject to civil penalties in connection with a violation committed by

a corporate permittee.

[FR Doc. 17882 Filed 7-21-94; 8:45 am]

BILLING CODE 4310-05-M