FEDERAL REGISTER: 48 FR 41387 (September 15, 1983)

DEPARTMENT OF THE INTERIOR

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

30 CFR Part 934

Surface Coal Mining and Reclamation Operations on Federal Lands Under the Permanent Program; State-Federal 

Cooperative Agreements; North Dakota

ACTION: Final rule.

SUMMARY: This final rule completes the administrative process for the adoption of a cooperative agreement between 

the Department of the Interior and the State of North Dakota for the regulation of surface coal mining and reclamation 

operations on Federal lands in North Dakota under the permanent regulatory program. Such a cooperative agreement is 

provided for by section 523(c) of the Surface Mining Control and Reclamation Act of 1977.

EFFECTIVE DATE: September 15, 1983.

ADDRESSES: Copies of the request by the State of North Dakota for the permanent program cooperative agreement, 

related information required under 30 CFR Part 745, and the complete administrative record of this rulemaking are 

available for public inspection Monday through Friday, 8:30 a.m. to 5:00 p.m., excluding holidays, at the following 

address: Administrative Record R&I-07, Office of Surface Mining, Room 5315, 1100 L Street, NW., Washington, D.C. 

20005.

FOR FURTHER INFORMATION CONTACT: Len Richeson, Office of Surface Mining, South Interior Building, 1951 

Constitution Avenue, NW., Washington, D.C. 20240, Phone (202) 343-5866.

SUPPLEMENTARY INFORMATION: 

 This preamble is divided into five parts in order to assist understanding of the process by which the Secretary decided 

to enter into a permanent program cooperative agreement with the Governor of the State of North Dakota. The notice is 

divided as follows:

I. Background

II. Director's Findings

III. Approval of the Cooperative Agreement

IV. Summary of the Cooperative Agreement and Disposition of Comments

V. Procedural Matters

I. BACKGROUND

A. The State of North Dakota's Request. The purpose of this final rulemaking is to adopt a permanent program 

cooperative agreement between the Department of the Interior and the State of North Dakota which will give North 

Dakota primacy in the administration of its approved permanent regulatory program on Federal Lands in North Dakota. 

The State of North Dakota requested the cooperative agreement on November 14, 1980. Section 523(c) of the Surface 

Mining Control and Reclamation Act of 1977 (SMCRA or the Act), 30 U.S.C. 1201 et seq., allows for the State and 

the Secretary to enter into a permanent program cooperative agreement if the State has, as North Dakota does, an 

approved State Program for the regulation of surface coal mining and reclamation operations on non-Federal and 

non-Indian lands. See 30 CFR 934.10.

Permanent program cooperative agreements are authorized by the first sentence of section 523(c) which provides 

that "[a]ny State with an approved State program may elect to enter into a cooperative agreement with the Secretary to 

provide for State regulation of surface coal mining and reclamation operations on Federal lands within the State, 

provided the Secretary determines in writing that such State has the necessary personnel and funding to fully implement 

such a cooperative agreement in accordance with the provisions of this Act." 30 U.S.C. 1273(c) (emphasis added). The 

procedures for States to elect to enter into permanent program cooperative agreements are found in 30 CFR 745.
The Secretary's regulations at 30 CFR 745.11(b)(1) through (3) require that certain information be submitted with a 

request for a permanent program cooperative agreement, if the information has not previously been submitted in the 

State Program. The State of North Dakota submitted a proposed permanent program cooperative agreement and the 

supporting information required by 30 CFR 745.11(b) on November 14, 1980. Most of the information relating to the 

budget, staffing, organization and duties of the State regulatory authority, the North Dakota Public Service Commission 

(Commission), was described as appearing in volume 1 of North Dakota's Proposed Permanent Coal Program Text. See 

30 CFR 745.11(b)(1). In addition, a written certification from the chief legal officer of the Commission concluded that no 

State statutory, regulatory or other legal constraint exists which would limit the capability of the Commission to fully 

comply with section 523(c) of the Act, as implemented by 30 CFR Part 745. See 30 CFR 745.11(b)(3).

B. Federal Rulemaking. On June 21, 1982, the Office of Surface Mining (OSM) published a notice of proposed 

rulemaking and public hearing (47 FR 26769) on the proposed cooperative agreement. A public hearing was held on 

August 10, 1982, in Bismarck, North Dakota. Final revisions of the text based on comments received at the public 

hearing and on written comments received during the public comment period are discussed in Part IV, Summary of the 

Cooperative Agreement and Disposition of Comments.

II. DIRECTOR'S FINDINGS

Under 30 CFR 745.11(f), the Director, OSM, must make the following three findings before recommending to the 

Secretary that the Department of the Interior enter into a cooperative agreement with a State.

Finding No. 1: The Director finds that the State of North Dakota has an approved State Program which was 

conditionally approved by the Assistant Secretary on December 9, 1980. It became effective upon publication in the 

Federal Register on December 15, 1980, 45 FR 82214.

Finding No. 2: The Director finds that the State regulatory authority has sufficient budget, equipment and personnel 

to enforce fully the State's statutes and regulations for the regulation of surface coal mining and reclamation operations 

on Federal lands in North Dakota. The Director makes this finding based on information obtained in the processing of 

grants to the State of North Dakota.

Finding No. 3: The Director finds that the State of North Dakota has the legal authority to administer the 

cooperative agreement. This finding is made based on written certification of the chief legal officer of the Commission 

and conditional approval of the State's permanent regulatory program.

These findings were reported to the Secretary in a decision memorandum dated July 15, 1983, in which the Director, 

Office of Surface Mining (Director) recommended approval of the cooperative agreement.

III. APPROVAL OF THE COOPERATIVE AGREEMENT

Based upon the conditional approval of the North Dakota State Program, the administrative record of this 

rulemaking, including written and oral comments and the public hearing, and the findings and recommendations of the 

Director, the Secretary decided to approve a permanent program cooperative agreement for the State of North Dakota. 

The cooperative agreement was signed on August 11, 1983, by the Secretary of the Interior and on August 30, 1983, by 

the Governor of the State of North Dakota and the members of the Commission. By its terms, the agreement becomes 

effective upon publication as final rulemaking in the Federal Register.

IV. SUMMARY OF THE COOPERATIVE AGREEMENT AND DISPOSITION OF COMMENTS

Each Article of the agreement is summarized below, along with the Department's disposition of any comments 

received. Unless indicated otherwise, the text is the same as that in the proposed rule except for minor editorial changes.

Article I: Introduction and Purpose 

This Article sets forth the legal authority for the cooperative agreement which is contained in section 523(c) of the 

Act. The purposes of the cooperative agreement are also listed.

One comment was received concerning the provision in Article I.B. which states that the purpose of the cooperative 

agreement is to ". . . (3) provide uniform and effective application of the State and Federal Lands Programs on all 

non-Indian lands in North Dakota." The commenter stated that the provisions of section 523(c) of the Act simply allow a 
State having an approved State Program to enter into a cooperative agreement with the Secretary to provide for State 

regulation of surface coal mining and reclamation operations on Federal lands within the State. The commenter said that 

section 523(c) does not require a State to implement both the State Program and a Federal Lands Program on State land 

upon entering into a cooperative agreement, and that such a requirement would be counter-productive to the intent and 

purpose of section 523(c).

OSM agrees with the comment and has modified the final rule by deleting the phrase "and Federal Lands." The 

phrase now reads ". . . (3) provide uniform and effective application of the State Program on all non-Indian lands in 

North Dakota." It should be understood, however, that there are other requirements which apply to Federal lands in 

addition to the requirements contained in the State Program. These additional requirements, discussed further on, are not 

eliminated or superseded by application of the State Program to Federal lands.

Article II: Effective Date 

This Article provides that the cooperative agreement is effective following signing by the Secretary, the Governor, 

and the Commission, and upon publication as a final rule in the Federal Register. It will remain in effect until terminated 

as provided in Article X.

On the effective date of the cooperative agreement, authority passes to the State, including authority to process 

permit applications filed prior to the effective date of the cooperative agreement. OSM will continue to assist in the 

processing of permit applications pending on the effective date of this cooperative agreement in order to assure an 

orderly transition. The level of assistance necessary will be determined by the State and OSM. Existing Federally issued 

permits transfer "as is" to being State permits; the State can process revisions as needed to meet State Program 

requirements.

One commenter requested that the cooperative agreement not be promulgated until after the promulgation of the 

Federal lands regulations, 30 CFR 740-746, proposed on June 9, 1982 (47 FR 25092). The commenter stated that the 

provisions in the cooperative agreement are so inextricably related to the language used in the proposed Federal lands 

regulations that it would be an ineffective use of resources to finalize the cooperative agreement before promulgating the 

Federal lands regulations.

In response to the commenter, the Federal lands regulations were published in the Federal Register on February 16, 

1983 (48 FR 6912) and became effective on March 18, 1983.

Article III: Scope 

Article III provides that, in accordance with the Federal lands program in 30 CFR Part 740, the laws, rules, terms 

and conditions of North Dakota's State Program are applicable to Federal lands in North Dakota except as otherwise 

stated in the cooperative agreement, the Act, 30 CFR 745.13, or other applicable laws or regulations. This provision is 

consistent with the Federal lands program (30 CFR 740.11(a)) in adopting the North Dakota State Program as 

substantive Federal law enforceable by the State and the United States on Federal lands in North Dakota. This provision 

would also specifically implement section 523(a) of the Act, which provides that "(w)here Federal lands in a State with 

an approved State Program are involved, the Federal lands program shall, at a minimum, include the requirements of the 

approved State program." 30 U.S.C. 1273(a). Excluded from the scope of the Agreement are the authorities and 

responsibilities reserved for the Secretary pursuant to the Act and 30 CFR 745.13.

Language has been added to Article III which allows the State, when acting as the regulatory authority, to have its 

appealable decisions and orders reviewed by the State reviewing authority, which is the Commission. Decisions and 

orders issued by non-secretarial officials of the Department are still appealable to the Department's Office of Hearings 

and Appeals.

Comments were received on the provision in Article III which states that "(t)his Agreement makes the laws, rules, 

terms, and conditions of North Dakota's Permanent State Program applicable to Federal lands. . . ." The commenter 

stated that the cooperative agreement should not be finalized without specifically mentioning that the State Program was 

conditionally approved and that there are minor deficiencies in the State Program which must be corrected.

OSM has not accepted this comment. OSM believes that the reference in Article III to the conditions of the State 

Program is sufficient acknowledgement that the approval of the State Program was conditioned upon the State correcting 
certain deficiencies in its program which were identified when the program was conditionally approved. See 45 FR 

82245, December 15, 1980, and 30 CFR 934.11.

The same commenter suggested that Article III should clearly state that the thirteen deficiencies in North Dakota's 

program shall not apply to the cooperative agreement; rather, the recommended remedies to these deficiencies, as 

delineated in the conditional approval should apply. In the absence of this clarification, the commenter recommended that 

the cooperative agreement not be finalized until North Dakota satisfied the conditions.

OSM declines to adopt the comment. Conditional approval of a state program is provided for by 30 CFR 732.13(i). 

The Secretary may conditionally approve a State Program where the program is found to have minor deficiencies, 

provided:

(1) The deficiencies are of such a size and nature so as to render no part of a proposed State Program incomplete;

(2) The State has initiated and is actively proceeding with steps to correct the deficiencies;

(3) The State agrees in writing to correct such deficiencies within a time established and stated in the conditional 

approval; and

(4) The conditionally approved State Program shall terminate if the deficiencies have not been corrected by the date 

set forth in the Secretary's decision under paragraph (i)(3) of 30 CFR 732.13.

Prior to conditionally approving the North Dakota State Program, OSM determined that the deficiencies were of 

such a size and nature as to render no part of the North Dakota Program incomplete and that they would not directly 

affect environmental performance at coal mines. Further, the State agreed to remedy the deficiencies and is actively doing 

so. Given the above, and the fact that OSM has retained the right to conduct inspections on Federal lands without prior 

notice to the State, OSM is confident that there are adequate safeguards and, therefore, that there is no need to modify 

the State Program as it applies to Federal lands.

Article IV: Requirements for Cooperative Agreement 

This Article mutually binds the Commission and the Secretary to the provisions of the cooperative agreement and the 

conditions and requirements contained in Article IV. The responsible agency in the State of North Dakota for purposes 

of administering this cooperative agreement is the Commission, which has and must continue to have authority under 

State law to carry out the cooperative agreement.

Article IV also provides that the State may be reimbursed pursuant to section 705(c) of the Act if the cooperative 

agreement has been implemented and if necessary funds have been appropriated to OSM by Congress. Section 705(c) of 

the Act provides that a State with a cooperative agreement may receive an increase in its annual grant for the 

development, administration and enforcement of a State Program on Federal lands by an amount which the Secretary 

determines is approximately equal to the amount the Federal government would have expanded to regulate surface coal 

mining and reclamation operations on the Federal lands within the State. See 30 U.S.C. 1295(c). The reference in section 

705(c) to section 523(d) is obviously a typographical error. The correct reference is section 523(c). The regulations 

implementing section 705(c) appear at 30 CFR 735.16 through 735.26. If adequate funds have not been appropriated, 

OSM and the Commission will meet to decide on appropriate measures to insure that mining operations are regulated in 

accordance with the State Program.

The Article also deals with reports and records, personnel, the use of equipment and laboratories and permit 

application fees.

Paragraph D of Article IV requires the State to make annual reports to OSM with respect to compliance with this 

agreement. Paragraph D also provides for a general exchange of information developed under the agreement, unless such 

an exchange is prohibited by Federal law.

Paragraph E of Article IV requires the Commission to maintain the necessary personnel to fully implement this 

agreement.

Paragraph F of Article IV requires the Commission to ensure itself of access to the necessary equipment, 

laboratories, and other facilities to perform inspections and other analyses required to carry out the requirements of the 

agreement.
Paragraph G of Article V provides that the amount of fees charged to permit applicants be determined in accordance 

with North Dakota's approved State program. These fees and civil penalties collected will be retained by the State and 

used in accordance with Federal requirements for the disposal of program income received from Federal grant recipients. 

Federal guidelines for the disposal of program income are found in OMB Circular No. A-102 (Uniform Requirements for 

Assistance to State and Local Governments), Attachment E (Program Income).

One comment was received concerning the provisions in Article IV.C. pertaining to funding and personnel. The 

commenter suggested that the cooperative agreement was in violation of section 523(c) of the Act. Section 523(c) 

provides that the Secretary may approve a cooperative agreement with the State" * * * provided the Secretary 

determines in writing that such State has the necessary personnel and funding to fully implement such a cooperative 

agreement * * *. " The commenter suggested that the Secretary must make this finding before he enters into the 

cooperative agreement.

OSM disagrees. Section 705(c) of the Act allows the Secretary to increase the grant to the State by an amount 

which he determines is approximately equal to the amount the Federal government would have expanded to do the work 

which the State will perform under the cooperative agreement. OSM believes that by signing the cooperative agreement, 

the Secretary is agreeing to fund the State for the work that is contemplated by the cooperative agreement. This 

constitutes knowledge by the Secretary of sufficient funding and personnel as required by section 523(c). If, as the 

commenter suggested, the State were required to have the funds appropriated by its legislature and personnel hired by the 

State before the Secretary, Governor, and the Commission sign the cooperative agreement, this would result in the State 

having to appropriate funds and hire staff for the mere possibility of a cooperative agreement. This would be an 

unreasonable interpretation of the Act.

The same commenter also suggested that the public must be allowed to comment on the adequacy of funds given to 

the State for the implementation of the cooperative agreement.

OSM declines to adopt the suggestion. OSM does not believe that every decision it makes in connection with a 

cooperative agreement must be made in a public forum simply because a cooperative agreement is promulgated as a rule. 

At all times, the requirements of the Act and the cooperative agreement will be complied with. This, however, does not 

mean that the agency's deliberative process must be open to public participation prior to decision. In addition, as noted 

above, OSM has agreed in Article IV to increase the State's grant by an amount equal to that which OSM would have 

spent in regulating surface coal mining on Federal lands in North Dakota. This should constitute adequate funding.

Article V: Policies and Procedures for Review of a Permit Application Package or an Application for a Permit 

Renewal or Revision 

Under this Article, an operator on Federal lands will be required by the Commission and the Secretary to submit a 

permit application package or an application for a permit renewal or revision in an appropriate number of copies to the 

Commission and OSM. The term "permit application package," used throughout the cooperative agreement beginning in 

this Article, is defined at 30 CFR 740.5. It includes the requirements of the Mineral Leasing Act of 1920, implemented by 

the 30 CFR Part 211 regulations, and the requirements of the Act for a surface coal mining permit, implemented by 30 

CFR Part 740. The permit application package is to be in the form required by the Commission and to contain any 

supplemental information, such as data pertaining to the life of the mine, which may be required by the Department of the 

Interior. At a minimum, the permit application package must include the necessary information for the Commission and 

the Department, acting within their statutory authority, to make a determination of compliance with the State Program, 

applicable terms and conditions of the Federal coal lease, and applicable requirements of other Federal laws and 

regulations.

Paragraphs 1 through 6 of Article V.B. describe the procedures for the cooperative review and analysis of permit 

application packages on Federal lands in North Dakota. The Cooperative agreement identifies the Commission as 

primarily responsible for the analysis, review, and approval of the permit application. In assuming primary responsibility, 

the Commission will prepare a technical-environmental analysis of the permit application which will form the basis for the 

Commission's decision on whether to approve or disapprove the permit application. OSM will assist in the preparation of 

this analysis as requested. The Commission will also be the primary point of contact for operators on behalf of both the 

State and the Department. All joint State-Federal or Federal determinations except those concerned exclusively with the 

30 CFR Part 211 regulations will be channeled to the operator through the Commission. This, however, will not preclude 

the Secretary from contacting the operator independently of the State to carry out his statutory responsibilities.
OSM, at the request of the Commission, will assist as possible in the review of the permit application and provide 

technical assistance to the Commission. Copies of any correspondence with the applicant, as well as any information 

OSM receives from the applicant will be provided to the Commission. OSM will coordinate with all appropriate Federal 

agencies to ensure timely funneling of analyses and conclusions to the Commission. OSM will also prepare the decision 

document on the mining plan for the Secretary's consideration. This decision document will include: a 

technical-environmental analysis of the proposed mining operation, prepared by the State; all other written findings 

required by the approved State Program; a NEPA compliance document, prepared by OSM based on the 

technical-environmental analysis prepared by the State; and concurrences from appropriate Federal agencies.

The Secretary is required to review and approve the elements of the permit application package relating to the 

Mineral Leasing Act and other elements such as cultural resources, post-mining use of Federal land, and Federal 

compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321, et seq., which are required 

by Federal law and cannot be delegated to the Commission. Even though the permit is issued by the Commission, mining 

may not commence until the Secretary approves the mining plan and these other elements of the permit application 

package. If a permit is issued prior to Secretarial approval, the Commission reserves the right to modify or rescind the 

permit to conform with the Secretary's decision.

OSM has modified Article V.B., paragraph 6 to indicate that OSM will prepare the decision document for the 

Secretary. As originally proposed, the Commission was to have prepared a draft decision document, transmit it to OSM 

for comment, and then prepare the final decision document after reviewing OSM's comments The revised procedure is in 

accord with the system for decision document preparation used in other States with cooperative agreements. OSM 

preparation of the decision document will essentially consist of incorporating the NEPA compliance document with 

documents prepared by other Federal agencies and by the Commission. Paragraph 6 has also been modified to clarify that 

the Commission will issue the permit required by section 506 of the Federal Act in accordance with its approved State 

Program.

Paragraph 7 of this Article is included in the cooperative agreement pursuant to North Dakota Administrative Code 

69-05.2-10-06, which deals with the issuance of permits, permit renewals, and permit revisions for surface disturbances 

associated with surface coal mining and reclamation operations on lands where the surface state is non-Federal and 

non-Indian and the mineral estate is Federal and unleased. The Secretary's conditional approval of the State Program on 

December 15, 1980 (45 FR 82214), stated that this provision of the State Act was not included in the conditional 

approval but would be considered later in the promulgation of a State-Federal cooperative agreement.

Paragraph 7 provides that the Commission may approve and issue permits, permit renewals, and permit revisions for 

surface disturbances associated with surface coal mining and reclamation operations, and disturbance of the surface may 

commence without need for an approved mining plan on lands where: (a) The surface estate is non-Federal and 

non-Indian; (b) the mineral estate is Federal and any Federal coal is unleased; (c) the Commission consults with the 

Bureau of Land Management through OSM in order to insure that actions are not taken which would substantially and 

adversely affect the Federal mineral estate; and (d) the proposed surface disturbances are planned to support surface coal 

mining and reclamation operations on adjacent non-Federal lands and this is specified in the permit, permit renewal, or 

permit revision.

Paragraphs 8 and 9 of this Article deal with the issuance of permit renewals and revisions. The paragraphs specify 

that the Commission will issue all permit renewals or revisions in consultation with OSM, where necessary. This includes 

authority to issue permit renewals or revisions for permits issued when the Department was the regulatory authority. 

Permit revisions or renewals found to be an alteration to the existing mining plan will have to be reviewed according to 

the procedures specified in this Article for permit application packages.

Paragraph 10 deals with the resolution of differences which may develop during the review of permit application 

packages. The paragraph specifies that when agreement cannot be reached on the final actions to be taken by the 

Commission and the Department, the matter will be referred to the Governor and the Secretary for resolution.

Several comments were received concerning this Article. One commenter objected to the permit application package 

concept and stated that the cooperative agreement should not combine the requirements of OSM's regulations with those 

in 30 CFR Part 211. The commenter suggested that the cooperative agreement deal exclusively with the requirements of 

the Federal Act.

OSM declines to adopt this suggestion because it is necessary to define for a potential operator the entire package of 

materials that he or she must submit. The permit application package concept will not result in confusion of either the 

components of the permit application package or the distinct review and concurrent approval responsibilities of, among 
others, the State, the Bureau of Land Management, OSM and the Secretary. It merely defines what a potential operator 

must submit. The two key components of a permit application package for proposed mining of leased Federal coal -- the 

permit application and the resource recovery and protection plan -- will be processed by the regulatory authority and the 

Bureau of Land Management, respectively.

One commenter questioned the authority for allowing the Commission to be the primary authority for the analysis, 

review and approval of permits, permit revisions or permit renewals. The commenter pointed out that 30 CFR Part 741 

specifies that both the Commission and OSM have concurrent responsibility for approval of permits, permit revisions, 

and permit renewals, and suggested that this requirement be followed in the cooperative agreement. The commenter 

stated that if the Commission were allowed to approve permits, appeals would then have to be filed with the State and 

not with the Department's Office of Hearings and Appeals.

OSM has declined to adopt the suggestion and has retained the concept of having the Commission approve the 

permit. Since the proposed cooperative agreement was published in the Federal Register on June 21, 1982, the Federal 

lands regulations have been revised. See 48 FR 6912, February 16, 1983. Unlike the previous Federal lands regulations 

in 30 CFR Part 741 which required approval of permits by OSM and the State, the revised regulations allow States with 

cooperative agreements to process SMCRA permits and approve or disapprove permits for surface coal mining and 

reclamation operations on Federal lands. The cooperative agreement is consistent with the revised Federal lands 

regulations.

One commenter wanted assurance that the Commission, when approving permits, would require the operator to 

control wastes that could degrade water quality in National Park areas and control emissions so that air quality is not 

deteriorated.

The Secretary believes that the air and water protection requirements of North Dakota's approved State Program are 

fully adequate to protect both the water and air quality, in accordance with the requirements of the Federal Act.

One commenter suggested that Article V be restructured to more clearly delineate the respective responsibilities of 

the Commission, OSM, and the Bureau of Land Management and to clarify the permit-mining plan approval process.

OSM has reviewed the language in Article V, and believes that it delineates the responsibilities as clearly as is 

possible given the complex interrelationship between the permit and the mining plan. As was explained above, under the 

cooperative agreement the Commission will issue the permit while the Secretary will approve the mining plan. The permit 

and the mining plan are distinct documents although they are based on some common elements. The approval of the 

permit by the Commission is based on the Commission's review of those elements of the permit application package 

required by the approved State Program. The approval of the mining plan is based on the decision document prepared by 

OSM. The decision document will include: a technical-environmental analysis of the proposed mining operation prepared 

by the State; all other written findings required by the approved State Program; a NEPA compliance document, prepared 

by OSM based on the technical-environmental analysis prepared by the State; and concurrences from appropriate Federal 

agencies. Under the cooperative agreement, the Secretary need not review or concur with the Commission's decision to 

approve the permit since authority for permit approval has been delegated to the State. The Secretary intends to rely on 

the State's implementation of the requirements and standards of the approved State Program. The Secretary will review 

those elements of the decision document for which responsibility has not been delegated to the State to the degree 

needed to insure that his decision for approval or disapproval of the mining plan is based on accurate and complete 

information.

The same commenter believed that the cooperative agreement required the permit to be issued before the mining 

plan is approved by the Secretary and suggested that they be issued as contemporaneously as possible.

OSM disagrees with the commenter's interpretation of the cooperative agreement but agrees that the permit and the 

mining plan should be approved as contemporaneously as possible. It is the intent of the cooperative agreement that the 

permit and mining plan be approved by the Commission and the Secretary respectively, as contemporaneously as 

possible. However, because of the time required to prepare a NEPA compliance document, it is possible for the permit to 

be issued by the Commission before the mining plan is approved by the Secretary.

The same commenter stated that the exact information required to be submitted in order to have a complete permit 

application package and to comply with the laws, Executive Orders, and regulations listed in Appendix A is unclear. The 

commenter requested more specificity. The commenter suggested that the informational requirements of the State 

Program comprise an exhaustive listing of all information needed to be met by the operator for a permit and if there are 
additional informational requirements under other Federal laws they should be incorporated into State law and 

regulations rather than appearing independently in the cooperative agreement.

OSM does not agree. More specific data as to the informational requirements can be obtained by referring to the 

Federal lands regulations. See 30 CFR 740.13(b). Since there are requirements for mining on Federal lands in addition 

to the requirements in the State Program, it is necessary to specify these in the cooperative agreement. Such requirements 

cannot be incorporated into the State Program because they are based on Federal responsibilities which the State would 

have no authority to enforce.

One comment was received concerning the requirement that the permit application package contain sufficient 

information for the Commission and the Secretary to make a determination of compliance with the laws and regulations 

listed in Article V.A. The commenter questioned the Commission's statutory authority to make a determination of 

compliance with either the 30 CFR Part 211 regulations or the requirements listed in Appendix A.

OSM agrees that the Commission's authority is limited to approval of the permit under its State Program and notes 

that the Secretary's approval authority is also limited in that he can take no action under North Dakota's laws and 

regulations. To clarify this, the phrase "acting within their statutory" authority has been added to the last sentence of the

section. Under the cooperative agreement, the Commission is not responsible for determining compliance with the 30 

CFR Part 211 regulations, the terms of the Federal coal lease, or the laws listed in Appendix A. That is the responsibility 

of the Department, and the cooperative agreement does not intend or purport to change that.

One commenter requested clarification concerning the statement in the preamble to the proposed rule that 

responsibility for post-mining land use remains with the Department.

Departmental responsibility for post-mining land use is limited to those situations where the surface of the mining 

operation is Federally owned. The Department is not responsible for post-mining land use when the surface is privately 

owned.

As originally proposed, paragraph 7(c) stated that the Commission would "consult with OSM." This has been 

changed to "consults with the Bureau of Land Management through OSM" to insure that the proper consultation 

requirements with the Bureau of Land Management are carried out.

One commenter approved of the provisions of paragraph 7, but requested clarification concerning the word 

"adjacent" in paragraph 7(d), which refers to "proposed surface disturbances which are planned to support surface coal 

mining and reclamation operations on adjacent non-Federal lands." The commenter stated that the word "adjacent" can 

mean either "near or close" or "adjoining." The commenter suggested that the word should be interpreted as having the 

former meaning because of the nature of operations in the State resulting from the land ownership patterns.

OSM agrees with the comment and intends the word "adjacent" to mean "near or close to" when the mining 

operation should logically be considered as an integrated whole.

One commenter questioned the authority for the provision in Article V.B.7. allowing the State to issue permits 

without the need for an approved mining plan.

An approved mining plan is required by the Mineral Leasing Act of 1920 if the coal to be mined is leased Federal 

coal. Because the coal to be mined in paragraph 7 is not Federally-owned, there is no need for a mining plan.

As originally proposed, paragraph 9 specified that only permit revisions which were "a significant alteration or 

addition to the approved mining plan" need be reviewed according to the procedures for review of permit application 

packages" specified in Article V. Insignificant alterations to the existing mining plan were to be reviewed and approved 

or disapproved by the Commission. The final rule has been changed to be consistent with the revised Federal lands 

regulations in 30 CFR Part 740. The final rule provides that the Commission will inform OSM or the Federal land 

management agency of each permit revision request for surface coal mining and reclamation operations on Federal lands.

With respect to permit revision requests for surface coal mining and reclamation operations on Federal lands 

containing leased Federal coal, the Commission will approve such requests. However, before any operations pursuant to 

any request can commence, the Secretary must: (1) Determine whether the revision request constitutes a mining plan 

modification, and (2) approve the mining plan modification where necessary. Permit revision requests on Federal lands 

not containing leased Federal coal can be approved by the Commission in consultation with the Federal land management 

agency. Thus, the final rule insures that the Secretary's responsibilities for the approval of mining plan modifications are 

preserved on Federal lands containing leased Federal coal, and that proper coordination with the Federal land 

management agency occurs on other Federal lands.
One comment was received concerning the language in paragraphs 8 and 9 wherein it is stated that the Commission 

may issue permit renewals and revisions for permits approved by the Secretary "prior to the effective date of this 

Agreement." The commenter suggested that the phrase "prior to the effective date of this Agreement" be deleted.

OSM has adopted the comment. Paragraphs 8 and 9 have been modified by deleting the phrase "prior to the effective 

date of this Agreement." The language was deleted in order to eliminate any doubt that the Commission has the authority 

to issue permit revisions and permit renewals for permits issued by the Department including those issued after the 

effective date of the cooperative agreement should the occasion arise.

One comment was received concerning paragraph 10 which deals with the resolution of differences. The paragraph 

specifies that when the Commission and OSM cannot resolve differences that develop during permit application package 

review or cannot agree on the final actions to be taken by the Commission and the Department, the matter will be 

referred to the Governor and the Secretary. The commenter suggested that the paragraph be changed to require that 

decision-making by the Secretary and the Governor be concurrent, particularly in disputes arising during the permit 

approval process.

OSM assumes that the intent of the comment is to require concurrent approval of permits. As was previously stated, 

the Commission can approve permits without the concurrence of the Department. This is the procedure the Department 

believes was intended by the Act when it granted the Secretary authority to enter into cooperative agreements. 

Consequently the Department declines to adopt the suggestion.

Article VI: Inspections 

This Article specifies that the Commission must conduct inspections on Federal lands and prepare and file inspection 

reports in accordance with its approved Program.

Administrative provisions of this Article include designation of the Commission as the primary point of contact with 

the operator, and a provision for notice to the State prior to a Federal inspection following a citizen complaint, if 

circumstances and time permit. This Article preserves the right of the Department to conduct inspections of surface coal 

mining and reclamation operations on Federal lands without prior notice to the Commission, to evaluate the manner in 

which the cooperative agreement is being carried out and to insure that performance and reclamation standards are being 

met.

The right of Federal and State agencies to conduct inspections for purposes outside the scope of this cooperative 

agreement is not affected. In particular, this Article preserves the Department's obligation and authority to conduct 

inspections pursuant to 30 CFR Part 842 and 30 CFR 740.17 as 30 CFR 740.17 relates to obligations under laws other 

than the Federal Act.

This Article also provides that personnel of the State and the Department will be mutually available to serve as 

witnesses in enforcement actions taken by either party.

One commenter stated that this Article should be rewritten because it designates the Commission as the primary 

inspection authority but gives OSM substantial authority to conduct inspections. The commenter stated that this 

perpetuates the duality of administration which the cooperative agreement is intended to eliminate and, further, that it 

dilutes the authority being transferred to the State. The commenter suggested that the Article be rewritten so that the 

inspection role of OSM would be limited to that of an evaluator or auditor.

After reviewing the language in the Article, OSM declines to adopt the suggestion although OSM generally agrees 

with the commenter's view of the role of OSM in inspections. If the language were modified as suggested to limit OSM's 

role to that of an evaluator or auditor, the language would be far too restrictive. As now written, the language clearly 

indicates that the Commission will be the lead inspection authority. OSM's principal role is that of an evaluator. For 

oversight and emergency situations, however, OSM must have immediate and unrestricted access to mining operations. 

This access is insured by the more flexible language.

Article VII: Enforcement 

Article VII sets forth the enforcement obligations and authorities of OSM and the Commission. The Commission has 

primary enforcement authority on Federal lands, in accordance with the requirements of the cooperative agreement and 

the approved State Program. The Article also specifies that the parties will consult prior to revoking or suspending a 
permit. The Secretary's obligation to enforce violations of Federal law other than the Act is preserved, as is OSM's 

authority to take enforcement action to comply with 30 CFR Parts 843 and 845. In taking such action, OSM will apply 

the performance standards contained in the approved State Program, but will use the Federal procedures and penalty 

system.

One commenter stated that this Article should be rewritten because it designates the Commission as the primary 

enforcement authority but reserves substantial authority for OSM. The commenter stated that this perpetuates the duality 

of administration which the cooperative agreement is intended to eliminate and, further, that it dilutes the authority being 

transferred to the State. The commenter suggested that the Article be rewritten so that the role of OSM would be limited 

to that of an evaluator or auditor.

OSM disagrees. The intent of the Article is to make the Commission the primary enforcement authority, with OSM's 

principal role being that of an evaluator or auditor. The language in the final rule was purposely left flexible in order to 

insure that OSM may take enforcement action if the necessity arises.

Article VIII: Bonds 

Under this Article, the Commission will require each operator to submit a single performance bond, payable to the 

State and the United States, to meet both Federal and State requirements. The Commission must obtain the consent of 

the Department prior to releasing or forfeiting an operator's performance bond for surface coal mining and reclamation 

operations on Federal lands containing leased Federal coal. For surface coal mining and reclamation operations on other 

Federal lands, the cooperative agreement provides for the Federal land management agency to concur in the bond release.

In addition to a performance bond, an operator is required to furnish a lease bond and a lessee protection bond. 

Bonding requirements of the Mineral Leasing Act and other Federal laws appear at 30 CFR 740.15 and 43 CFR Subpart 

3474.

The final rule has been modified to specify that if the cooperative agreement is terminated, the bond will continue in 

effect, and to the extent that Federal lands are involved, will be payable to the United States. In the situation of a mine on 

intermingled Federal and non-Federal lands, this approach will allow both the State and the Federal Government to 

collect under the bond without requiring the consent of the other party. The proposed rule was silent on this point.

No comments were received on this Article.

Article IX: Designation of Lands as Unsuitable 

This Article describes the roles of the Commission and OSM in the review and processing of petitions to designate 

lands as unsuitable for surface coal mining operations on adjacent Federal and non-Federal lands. The authority to 

designate Federal lands as unsuitable is reserved to the Secretary or his designated representative. See 30 CFR 745.13. 

Petitions for designation on Federal lands must be filed in accordance with 30 CFR Part 769.

One commenter was concerned with the possibility of mining within units of the National Park System in North 

Dakota and stated that this Article should specify that units of the National Park System in North Dakota are closed to 

mining, and, further, that they should be designated as unsuitable for mining.

OSM believes it is unnecessary to modify the Article in view of section 522(e) of the Act, the requirements of 30 

CFR 761.11, and the approved State program. The Act, OSM regulations, and the State program contain requirements 

that ensure the protection of Federal lands within units of the National Park System in North Dakota.

Article X: Termination of Cooperative Agreement 

Proposed Article X specified three ways in which the cooperative agreement could be terminated: (1) By the 

Commission upon written notice to the Secretary; (2) by the Secretary after public notice, public hearing, and 

opportunity for the State to take remedial action; and (3) by operation of law (when the cooperative agreement is no 

longer authorized by Federal or State law or upon withdrawal of the Secretary's approval of the State Program pursuant 

to 30 CFR Part 733). The final rule includes a fourth way in which the cooperative agreement can terminate. The 

agreement can terminate at any time upon mutual agreement by the Secretary and the Commission.

No comments were received on this Article.
Article XI: Reinstatement of Cooperative Agreement 

Article XI provides for reinstatement of the cooperative agreement upon application by the Commission and the 

submission of evidence to the Secretary that the Commission can and will comply with all of the provisions of the 

agreement.

No comments were received concerning this Article.

Article XII: Amendment of Cooperative Agreement 

Article XII provides that the cooperative agreement may be amended by mutual agreement of the Governor and 

Secretary in accordance with 30 CFR 745.11.

No comments were received concerning this Article.

Article XIII: Change in State or Federal Standards 

This Article recognizes that the Secretary or the State may, from time to time, promulgate new or revised 

performance or reclamation requirements, or enforcement and administration procedures. Such changes are to be made in 

accordance with 30 CFR Part 732 for changes to the State Program and section 501 of the Act for changes to the 

Federal lands program. The Article also provides that "OSM and the Commission shall immediately inform each other of 

any final changes to their respective laws or regulations, as provided in 30 CFR 732."

One commenter suggested that the word "final" be changed to "proposed," and that the Article be reworded to 

require the public notice and opportunity for comment be afforded before any revisions are implemented.

OSM believes such a change is unnecessary and has declined to adopt the comment. Any amendments to the 

cooperative agreement will be made through rulemaking which must include public notice and the opportunity for public 

comment. See 30 CFR 745.14. The same is true for amendments to the State Program. See 30 CFR 732.17. The 

provisions in article XIII requiring notice to either party of any "final" change is designed to insure that each party is kept 

informed of current developments in the substantive rules governing surface coal mining. It does not alter the 

requirements for public notice and an opportunity to comment during rulemaking.

Article XIV: Changes in Personnel and Organization 

As required by 30 CFR 745.12, this Article provides that the State and the Department must advise each other of 

changes in the organization, structure, functions, duties and funds of the offices, departments, divisions, and persons 

within their organizations which could affect administration or enforcement of the cooperative agreement.

No comments were received concerning this Article.

Article XV: Reservation of Rights 

Article XV recognizes that the Act, 30 CFR 745.13, and other authorities prohibit the Secretary from delegating 

certain authorities to the State. Article XV states that the cooperative agreement shall not be construed as waiving or 

preventing the assertion of any rights not expressly addressed in the cooperative agreement or available to the parties 

under the authorities cited in Appendix A.

Pursuant to the terms of this Article, the Secretary reserves authority and responsibility for several Mineral Leasing 

Act functions, including the release of Federal lease bonds and the approval of mining plans on Federal lands. The 

Secretary also retains authority for the designation of Federal lands as unsuitable for surface coal mining operations and 

the termination of such designations. Other specific reservations are listed in 30 CFR 745.13.

The Department of the Interior also reserves the authority and responsibility for several specific functions which are 

an integral part of the permit application review procedures discussed earlier. These items include, but are not limited to, 

compliance with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321 et seq.; compliance with the 

consultation requirements of the Endangered Species Act of 1973, as amended, 16 U.S.C. 1531 et seq.; compliance 

with section 106 of the National Historic Preservation Act of 1966, 16 U.S.C. 470f; and compliance with Executive 

Order 11988, Floodplain Management (May 24, 1977) and Executive Order 11990, Protection of Wetlands (May 24, 

1977).
Compliance with NEPA 

The Department and its member offices and bureaus must comply with NEPA, its implementing regulations, and the 

Department's own NEPA guidelines. See 40 CFR 1500 et seq. (regulations of the Council on Environmental Quality) 

and 45 FR 27541 (April 23, 1980) (Department of the Interior Notice of Final Revised Procedures). See also 45 FR 

10043 (February 14, 1980) (Notice of Proposed Revised Instructions for the Office of Surface Mining). These authorities 

require the Department, prior to a decision on a mining plan on Federal lands, to prepare an environmental assessment or 

environmental impact statement. The current regulations at 30 CFR 745.13(b) do not allow the Secretary to delegate his 

NEPA duties to the States. However, the Secretary believes that this regulation does allow States to assist in preparation 

of NEPA documents (see 40 CFR 1506.2), with final action reserved to the Secretary, so long as the Department is 

sufficiently involved in the preparation of the NEPA document to form an independent judgment of the environmental 

impacts of the proposed action.

One commenter stated that the approval by the Secretary of the mining plan does not authorize any disturbance of 

the land and, therefore, there is no Federal action affecting the environment. Consequently NEPA compliance is not 

required.

OSM disagrees. The Secretary's action on a mining plan is a Federal action within the meaning of NEPA. Since 

mining may not commence until after mining plan approval, NEPA compliance is required.

The Endangered Species Act (16 U.S.C. 1536) 

This Federal law requires that the Department take such steps as are necessary to insure that actions authorized, 

funded, or carried out by Federal departments and agencies do not jeopardize the continued existence of an endangered 

species, or result in the destruction or modification of a species' critical habitat. 16 U.S.C. 1536. See 50 CFR 402 

(regulations on inter-agency cooperation under the Endangered Species Act). OSM's regulations at 30 CFR 745.13(m) 

provide that the Secretary's obligation to consult under section 7(a) of the Endangered Species Act regarding actions on 

Federal lands may not be delegated to a State.

The National Historic Preservation Act (16 U.S.C. 470f) 

Compliance with section 106 of the National Historic Preservation Act and its implementing regulations (36 CFR 

800) is mandatory where the approval of mining on Federal lands may adversely affect sites, buildings, objects or districts 

which are listed on, or eligible for listing on, the National Register of Historic Places. Compliance is achieved through 

early consultation with and involvement of State Historic Preservation Officers and, in some cases, consultation with the 

Advisory Council on Historic Preservation (Council).

OSM and the Department must also comply with Executive Order 11593, "Protection and Enhancement of the 

Cultural Environment" (May 13, 1971). Executive Order 11593 contains two principal requirements. First, with respect 

to properties not owned by the Federal government, agencies and departments must establish procedures for consultation 

with the Council on Federal plans and programs affecting such properties.

Second, the Order requires all Federal agencies and departments to inventory and nominate historic sites, buildings, 

districts and objects that are on Federal property and that may be eligible for inclusion on the National Register of 

Historic Places.

Federal agencies must take measures to insure that, in conjunction with proposed undertakings, they fulfill their 

responsibilities under section 106 of the National Historic Preservation Act of 1974, and that the Council is given an 

appropriate opportunity to comment on proposed plans.

These responsibilities are reserved to the Secretary under the cooperative agreement since they are not "expressly 

addressed" (Article XV).

Floodplain Management and Wetland Protection 

The Office of Surface Mining has published a general statement of policy which describes the existing procedural 

mechanisms for compliance with Executive Order 11988, Floodplain Management (May 24, 1977) and Executive Order 

11990, Protection of Wetlands (May 24, 1977). See 45 FR 49872 (July 25, 1980). Secretarial approval of surface coal 
mining operations on Federal lands is discussed in that Federal Register notice at 45 FR 49872-73. As noted therein, the 

method and responsibility for compliance with these two Orders is to be a subject of the permanent program cooperative 

agreements under 30 CFR Part 745.

Since the cooperative agreement with North Dakota does not directly discuss compliance with these Orders, the 

obligation for compliance with them remains with the Secretary and is not delegated to North Dakota.

Article XVI: Definitions 

This Article specifies that the terms and phrases used in the cooperative agreement, which are defined in 30 CFR 

Parts 700, 701, and 740, are to be given the meaning set forth in said definitions. It should be noted that the term 

"Federal lands" does not include "Indian lands."

No comments were received concerning this Article.

V. PROCEDURAL MATTERS REQUIRED FOR PROMULGATION OF THIS RULE.

1. Executive Order 12291 and Regulatory Flexibility Act 

The Department has determined that this document is not a major rule and does not require a regulatory impact 

analysis under Executive Order 12291 because promulgation of a State-Federal cooperative agreement between the 

Department of the Interior and the State of North Dakota will not result in a major increase in costs or prices for 

consumers; individual industries; Federal, State, or local government agencies, or geographic regions. The cooperative 

agreement should result in cost savings to the mining industry and lessen the burden of regulatory compliance. Further, 

the cooperative agreement will not result in significant adverse effects on competition, employment, investment, 

productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in 

domestic or export markets. The Department certifies that this document will not have a significant economic effect on a 

substantial number of small entities and therefore does not require a regulatory flexibility analysis under the Regulatory 

Flexibility Act, 5 U.S.C. 605(b). This certification was made based on an assessment of the probable impact of the 

cooperative agreement on small entities within the State. It was concluded that the effect of the cooperative agreement 

would be to reduce the cost and burden of complying with the Federal lands program found in 30 CFR Chapter VII, 

Subchapter D. The above findings were made by the Director, OSM and approved by the Assistant Secretary for Energy 

and Minerals. A copy is on file in the OSM Administrative Record Room, Room 5315, 1100 L Street, Washington, D.C. 

20005.

2. Recordkeeping and Reporting Requirements 

There are recordkeeping and reporting requirements in the proposed rules which are the same as and required by 

OSM's permanent program regulations. Those regulations required clearance from the Office of Management and Budget 

under 44 U.S.C. 3507 and were assigned the following clearance numbers:

Location of requirement OMB

clearance

No.

Article IV.G (Required by 30 CFR Part 735) 1029-0013

Article V.A (Required by 30 CFR Part 740) 1029-0026

Article V.B (Required by 30 CFR Part 740) 1029-0026

Article VI.A (Required by 30 CFR Part 745) 1029-0028

Article VIII.A (Required by 30 CFR Part 740) 1029-0026

3. National Environmental Policy Act 

Proceedings relating to adoption of a permanent program cooperative agreement are part of the Secretary's 

implementation of the Federal lands program pursuant to section 523 of the Act. Such proceedings are, therefore, exempt 
under section 702(d) of the Act from the requirements to prepare a detailed statement pursuant to section 102(2)(C) of 

the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)).

4. Justification for Immediate Effective Date 

The Department of the Interior finds, in accordance with section 553(d)(3) of the Administrative Procedure Act (5 

U.S.C. 551 et seq.), that good cause exists to make this final rule effective upon publication. Immediate implementation 

will result in the immediate elimination of dual administration of surface coal mining in North Dakota and thus result in 

efficiency and economy both to the State and the Federal Government as well as to operators. Article II of the proposed 

cooperative agreement with North Dakota stated that the cooperative agreement would become effective upon 

publication in the Federal Register as a final rule. No comments were received on this provision and it has been adopted 

as proposed.

LIST OF SUBJECTS IN 30 CFR PART 934

Coal mining, Intergovernmental relations, Surface mining, Underground mining.

Accordingly, Part 934 of Chapter VII, Title 30 is amended as set forth herein.

Dated: September 1, 1983.

William P. Pendley,

Deputy Assistant Secretary for Energy and Minerals.

PART 934 -- [AMENDED]

1. Section 934.30 is added to read as follows:

SECTION 934.30 - STATE-FEDERAL COOPERATIVE AGREEMENT.

COOPERATIVE AGREEMENT

This is a Cooperative Agreement (Agreement) between North Dakota (State) acting by and through the North 

Dakota Public Service Commission (Commission) and the Governor, and the United States Department of the Interior 

(Interior), acting by and through the Secretary of the Interior (Secretary) and the Office of Surface Mining (OSM).

ARTICLE I: INTRODUCTION AND PURPOSE 

A. Authority: This Agreement is authorized by section 523(c) of the Surface Mining Control and Reclamation Act 

(Federal Act), Pub. L. 95-87, 30 U.S.C. 1273(c), which allows a State with a permanent regulatory program approved 

under 30 U.S.C. 1253 to elect to enter into an Agreement for the regulation and control of surface coal mining on 

Federal lands, and by Chapter 38-14.1 of the North Dakota Century Code, Reclamation of Surface Mined Lands (State 

Act). This Agreement provides for State regulation of surface coal mining and reclamation operations on Federal lands 

within North Dakota consistent with the State and Federal Acts and the Federal lands program (section 523(a) of the 

Federal Act and 30 CFR Chapter VII, Subchapter D).

B. Purpose: The purpose of the Agreement is to: (1) Foster State-Federal cooperation in the regulation of surface 

coal mining and reclamation operations; (2) eliminate unnecessary intergovernmental overlap and duplication; and (3) 

provide uniform and effective application of the State Program on all non-Indian lands in North Dakota.

ARTICLE II: EFFECTIVE DATE 

Following signing by the Secretary, the Governor, and the Commission, the Agreement shall take effect upon 

publication in the Federal Register as a final rule. This Agreement shall remain in effect until terminated as provided in 

Article X.
ARTICLE III: SCOPE 

In accordance with the Federal lands program in 30 CFR Parts 740-746, the laws, rules, terms, and conditions of 

North Dakota's Permanent State Program (Program) (conditionally approved effective December 15, 1980, 30 CFR 

934.11 or as hereinafter amended in accordance with 30 CFR 732.17) are applicable to Federal lands within North 

Dakota except as otherwise stated in this Agreement, the Federal Act, 30 CFR 745.13, or other applicable laws or rules 

and regulations. Orders and decisions issued by the Commission in accordance with the State Program that are 

reviewable shall be reviewed pursuant to section 38-14.1-30 of the North Dakota Century Code. Orders and decisions 

issued by the Department that are appealable shall be appealed to the Department of the Interior's Office of Hearings and 

Appeals.

ARTICLE IV: REQUIREMENTS FOR COOPERATIVE AGREEMENT 

The Commission and the Secretary affirm that they will comply with all of the provisions of this Agreement and will 

continue to meet all the conditions and requirements specified in this Article.

A. Responsible Administrative Agency: The Commission is, and shall continue to be, the sole agency responsible 

for administering this Agreement on behalf of North Dakota on Federal lands throughout the State. OSM shall administer 

this Agreement on behalf of the Secretary, in accordance with the regulations in 30 CFR Chapter VII.

B. Authority of State Agency: The Commission has and shall continue to have authority under State law to carry 

out this Agreement.

C. Funds: The State will devote adequate funds to the administration and enforcement on Federal lands in North 

Dakota of the requirements contained in the Program. If the State complies with the terms of this Agreement, and if 

necessary funds have been appropriated, OSM shall reimburse the State as provided in section 705(c) of the Federal Act 

and 30 CFR 735.16, for costs associated with carrying out responsibilities under this Agreement. The grants procedures 

established in 30 CFR Part 735 are applicable to funding under this Agreement. Reimbursement shall be in the form of 

annual grants, and applications for grants shall be processed and grants awarded in a prompt manner.

If sufficient funds have not been appropriated, OSM and the Commission shall promptly meet to decide on 

appropriate measures that will insure that surface coal mining and reclamation operations are regulated in accordance 

with the Program.

D. Reports and Records: The Commission shall make annual reports to OSM pursuant to 30 CFR 745.12(d), 

containing information respecting its implementation and administration of the terms of this Agreement. The Commission 

and OSM shall exchange, upon request, information developed under this Agreement except where prohibited by Federal 

law. OSM shall provide the Commission with a copy of any final evaluation report concerning State administration and 

enforcement of this Agreement.

E. Personnel: The Commission shall provide the necessary personnel to fully implement this Agreement in 

accordance with the provisions of the Federal and State Acts and the State Program.

F. Equipment and Laboratories: The Commission shall assure itself access to equipment, laboratories, and facilities 

with which all inspections, investigations, studies, tests, and analyses can be performed and which are necessary to carry 

out the requirements of this Agreement.

G. Permit Application Fees and Civil Penalty Assessments: The amount of the fee accompanying an application 

for a permit shall be determined in accordance with section 38-14.1-13 of the State Act. All permit fees and civil penalty 

assessments collected by the State from operators on Federal lands shall be retained by the State and deposited with the 

State Treasurer. These funds shall be disposed of in accordance with Federal requirements in OMB Circular No. A-102, 

Attachment E. The financial status report submitted pursuant to 30 CFR 735.26 shall include a report of the amount of 

permit application fees collected and attributable to Federal lands during the prior Federal fiscal year.

ARTICLE V: POLICIES AND PROCEDURES: REVIEW OF A PERMIT APPLICATION PACKAGE OR AN 

APPLICATION FOR A PERMIT RENEWAL OR REVISION 

A. Contents of Permit Application Package: The Commission and the Secretary will require that an operator 

proposing to mine on Federal land shall submit an identical permit application package in an appropriate number of 
copies to the Commission and OSM. Any documentation or information submitted by the operator for the sole purpose 

of complying with the 3-year requirement of section 7(c) of the Mineral Leasing Act (30 U.S.C. 181 et seq. ) will be 

submitted directly to the Bureau of Land Management, Department of the Interior. The permit application package shall 

be in the form required by the Commission and include any supplemental information required by the Secretary. The 

permit application package shall satisfy the requirements of 30 CFR Chapter VII, Subchapter D and shall include the 

information required by, or necessary for, the Commission and the Secretary, acting within their statutory authority, to 

make a determination of compliance with:

(1) Chapter 38-14.1 and Chapter 38-18 of the North Dakota Century Code;

(2) Article 69-05.2 of the North Dakota Administrative Code (NDAC);

(3) Applicable terms and conditions of the Federal coal lease;

(4) Applicable requirements of the Bureau of Land Management's 30 CFR Part 211 regulations pertaining to the 

Mineral Leasing Act; and

(5) Applicable requirements of other Federal laws and the Program, including but not limited to those in Appendix A 

of this Agreement.

B. Review Procedures: 1. The Commission shall assume primary responsibility for the analysis, review, and 

approval of permit applications required by 30 CFR Chapter VII, Subchapter D for surface coal mining on Federal lands 

in North Dakota. OSM shall, as requested, assist the Commission in this analysis and review.

2. The Commission shall be the primary point of contact for operators regarding the approval of the permit 

application package, except on matters concerned exclusively with the 30 CFR Part 211 regulations administered by the 

Bureau of Land Management. The Commission will be responsible for informing the applicant of all joint State-Federal 

or Federal determinations, except matters concerned exclusively with the 30 CFR Part 211 regulations. The Commission 

shall send to the Bureau of Land Management all correspondence with the applicant which may have a bearing on 

decisions regarding Mineral Leasing Act requirements. Except in exigent circumstances, OSM shall generally not 

independently initiate contacts with applicants regarding completeness or deficiencies of permit application packages with 

respect to matters which are properly within the jurisdiction of the Commission. The Commission may arrange for an 

operator to send written communications and documents regarding a permit application package directly to OSM. The 

Secretary reserves the right to act independently of the Commission to carry out his responsibilities under laws other than 

the Federal Act. A copy of any independent correspondence with the applicant required to carry out these responsibilities 

which may have a bearing on decisions regarding the permit application package shall be sent to the State.

3. OSM is responsible for ensuring that any information OSM receives from an applicant regarding the permit 

application package is sent to the Commission and the Commission will send any information received from the applicant 

to OSM. OSM shall have access to Commission files for mines on Federal lands. OSM and the Commission shall 

regularly coordinate with each other during the permit application package review process.

4. OSM shall be responsible for obtaining, in a timely manner, the views of all Federal agencies with jurisdiction or 

responsibility over a permit application package on Federal lands in North Dakota and for making these views known to 

the Commission within 90 days of the receipt of the application by OSM. The Commission shall keep OSM informed of 

findings during the review which bear on the responsibilities of other Federal agencies. OSM shall take appropriate steps 

to facilitate discussions between the Commission and the concerned agencies wherever desirable to resolve issues or 

problems identified in the review.

5. Upon receipt of a permit application package, both OSM and the Commission shall each designate its application 

manager. The application managers shall serve as the primary point of contact between OSM and the Commission 

throughout the review process and shall be responsible for identifying areas of avoidable duplication of review and 

analysis, which shall be eliminated where possible. Not later than 15 days after an application has been received, OSM 

and the Commission shall discuss the application and agree upon a work plan and schedule for the review of the 

application. OSM shall thereafter inform the Commission of any specific or general areas of concern, including the scope 

of required environmental analyses under the National Environmental Policy Act, which require special handling or 

analysis. The Commission shall likewise inform OSM where OSM assistance will be needed to perform any specific or 

general analysis or prepare any studies or similar work.

6. The Commission shall prepare a technical-environmental analysis on the permit application package. Copies of 

drafts of this document shall be sent to OSM for review and comment. OSM shall independently evaluate the documents 
and inform the Commission within 30 days of any changes that should be made. The Commission shall consider the 

comments of OSM and send a final technical-environmental analysis to OSM which will form the basis for and be 

included in the decision document which OSM will prepare for the Secretary's consideration. The Commission shall 

approve or disapprove the permit application by written decision in accordance with the Program. The Secretary's 

decision on the mining plan and those other Federal responsibilities which cannot be delegated (including but not limited 

to those listed in Appendix A) shall be made concurrently with or as soon as possible after the final decision of the 

Commission on the permit. The permit issued by the Commission shall condition the initiation of surface coal mining 

operations on Federal lands within the permit area on obtaining mining plan approval from the Secretary. The 

Commission shall, in the approved permit, reserve the right to amend or rescind its action to conform with action taken, 

or with terms or conditions imposed, by the Secretary when approving the mining plan. After the Commission makes its 

decision on the permit, it shall send a notice to the applicant and OSM with a statement of findings and conclusions in 

support of the action.

7. The Commission may approve and issue permits, permit renewals, and permit revisions for surface disturbances 

associated with surface coal mining and reclamation operations, and disturbance of the surface may commence without 

need for an approved mining plan on lands where:

(a) The surface estate is non-Federal and non-Indian;

(b) The mineral estate is Federal and is unleased;

(c) The Commission consults with the Bureau of Land Management through OSM in order to insure that actions are 

not taken which would substantially and adversely affect the Federal mineral estate; and

(d) The proposed surface disturbances are planned to support surface coal mining and reclamation operations on 

adjacent non-Federal lands and this is specified in the permit, permit renewal, or permit revision.

8. Any permit renewal requested pursuant to applicable State laws and rules for a surface coal mining and 

reclamation operation on Federal lands, and for which a mining plan has been approved by the Secretary, shall be 

reviewed and approved or disapproved by the Commission in consultation with OSM for Federal responsibility under 

other laws. The Commission shall inform OSM and BLM of the approval or disapproval of the renewal and provide 

OSM and BLM with copies of the application documents.

9. The Commission shall inform OSM of each permit revision request with respect to surface coal mining and 

reclamation operations on Federal lands containing leased Federal coal. For other Federal lands, the Commission shall 

inform the Federal land management agency of each permit revision request. Surface coal mining and reclamation 

operations shall not occur pursuant to the revision unless the permit revision request has been approved by the 

Commission and:

(a) With respect to Federal lands containing leased Federal coal --

(i) The Secretary has determined that the permit revision does not constitute a mining plan modification, or

(ii) If the revision does constitute a mining plan modification, the modification has been approved by the Secretary.

(b) With respect to other Federal lands, the Commission has consulted with the Federal land management agency to 

ensure that the permit revision is consistent with Federal laws and regulations other than the Act.

10. When the Commission and OSM cannot resolve differences that develop during permit application package 

review or cannot agree on the final actions to be taken by the Commission and the Department, the matter shall be 

referred to the Governor and the Secretary for resolution.

ARTICLE VI: INSPECTIONS 

The Commission shall conduct inspections on Federal lands and prepare and file inspection reports in accordance 

with the approved Program.

A. Inspection Reports: The Commission shall, within 15 days of conducting any inspection on Federal lands, file 

with OSM an inspection report describing (1) the general conditions of the lands under the permit; (2) whether the 

operator is complying with applicable performance and reclamation requirements; and (3) the manner in which specific 

operations are being conducted.

B. Commission Authority: The Commission shall be the point of contact and primary inspection authority in dealing 
with the operator concerning operations and compliance with the requirements covered by this Agreement, except as 

described in this Agreement and the Secretary's regulations. Nothing in this Agreement shall prevent inspections by 

authorized Federal or State agencies for purposes other than those covered by this Agreement.

C. OSM Authority: For the purpose of evaluating the manner in which this Agreement is being carried out and to 

insure that performance and reclamation standards are being met, OSM may conduct inspections of surface coal mining 

and reclamation operations on Federal lands without prior notice to the Commission. In order to facilitate a joint 

Federal-State inspection, when OSM is responding to a citizen complaint of an imminent danger to the health or safety of 

the public or of a significant, imminent environmental harm pursuant to 30 CFR 842.11(b)(1)(i), it will contact the 

Commission if circumstances and time permit, prior to the Federal inspection. The Department may conduct any 

inspections necessary to comply with 30 CFR Part 842 and 30 CFR 740.17 (as 30 CFR 740.17 relates to obligations 

under laws other than the Federal Act). If an inspection is made without Commission inspectors, OSM shall provide the 

Commission with a copy of the inspection report within 15 days after the inspections.

D. Witness Availability: Personnel of the State and the Department shall be mutually available to serve as witnesses 

in enforcement actions taken by either party.

ARTICLE VII: ENFORCEMENT 

A. Commission Enforcement: The Commission shall have primary enforcement authority on Federal lands in 

accordance with the Program and this Agreement. During any joint inspection by OSM and the Commission, the 

Commission shall take appropriate enforcement action, including issuance of orders of cessation and notices of violation. 

OSM and the Commission shall consult prior to issuance of any decision to suspend or revoke a permit.

B. Notification: The Commission and OSM shall promptly notify each other of all violations of applicable laws, 

regulations, orders, approved mining and reclamation plans and permits subject to this Agreement and of all actions taken 

with respect to such violations.

C. Secretary's Authority: (1) This Agreement does not affect or limit the Secretary's authority to enforce violations 

of laws other than the Federal Act. (2) During any inspection made solely by OSM or any joint inspection where the 

Commission and OSM fail to agree regarding the propriety of any particular enforcement action, OSM may take any 

enforcement action necessary to comply with 30 CFR Parts 843 and 845. Such enforcement action shall be based on the 

substantive standards included in the approved Program and shall be taken using the procedures and penalty system 

contained in 30 CFR Parts 843 and 845.

ARTICLE VIII: BONDS 

A. Bond Coverage and Terms: The Commission and OSM shall require all operators on Federal lands to submit a 

single performance bond to cover the operator's responsibilities under the Federal Act and the Program, payable to both 

the United States and North Dakota. The performance bond shall be of sufficient amount to comply with the 

requirements of both State and Federal law and release of the performance bond shall be conditioned upon compliance 

with all applicable requirements. If this Agreement is terminated, the bond will continue in effect and to the extent that 

Federal lands are involved will be payable to the United States.

Submission of a performance bond does not satisfy the requirements for a Federal lease bond required by 43 CFR 

Subpart 3474 or a lessee protection bond required in addition to a performance bond, in certain circumstances, by section 

715 of the Federal Act.

B. Bond Release: The Commission shall obtain OSM's concurrence prior to releasing the operator from any 

performance bonding obligation required under the Program for any Federal lands containing leased Federal coal. For 

surface coal mining and reclamation operations on other Federal lands, the Commission shall obtain the concurrence of 

the Federal land management agency prior to releasing the performance bond. The Commission shall advise OSM of any 

release of and adjustments made to the performance bond.

C. Forfeiture: The operator's performance bond shall be subject to forfeiture with the consent of OSM, in 

accordance with the procedures and requirements of the Program.
ARTICLE IX: DESIGNATION OF LANDS AS UNSUITABLE 

The Commission and OSM shall cooperate in the review and processing of petitions to designate lands as unsuitable 

for surface coal mining operations. When either agency receives a petition which could have an impact on lands the 

designation of which as unsuitable for mining would be the responsibility of the other agency, the agency shall: (1) Notify 

the other of its receipt of the petition and of the anticipated schedule for reaching a decision; and (2) request and fully 

consider data, information and views of the other. The authority to designate Federal lands as unsuitable for mining is 

reserved to the Secretary or his designated representative.

ARTICLE X: TERMINATION OF COOPERATIVE AGREEMENT 

This Agreement may be terminated as follows:

A. Termination by the State: The Agreement may be terminated by the Commission upon written notice to the 

Secretary, specifying the date upon which the Agreement shall be terminated. The date of termination shall not be less 

than 90 days from the date of the notice.

B. Termination by the Secretary: This Agreement may be terminated by the Secretary according to the following 

procedures:

1. A written notice from the Secretary to the Commission shall specify the grounds upon which he proposes to 

terminate the Agreement. In addition, a written notice containing the grounds for termination shall be published in the 

Federal Register affording the Commission and the public a minimum of 30 days for comment.

2. A written notice in the Federal Register and a local newspaper of general circulation shall also specify the date and 

place within the State of North Dakota where the Commission and the public shall be afforded the opportunity for a 

hearing. The date of such hearing shall not be less than 30 days from the date of publication in the Federal Register. Prior 

to the time fixed for public hearing, representatives of the Commission may be permitted to appear and confer in person 

with representatives of the Secretary and present oral or written statements, and any other documents relative to the 

proposed termination.

3. The proposed termination hearing shall be conducted by OSM and a record shall be made of the hearing. The 

Commission shall be entitled to have legal, and technical and other representatives present at the hearing, and may 

present, either orally or in writing, evidence, information, testimony, documents, records or materials as may be relevant 

to the issues involved.

4. The Secretary's decision shall be made after the hearing and close of the comment period.

5. A decision to terminate the Agreement may be made if the Secretary finds in writing that:

(a) The Commission has substantially failed to comply with the requirements of the Federal Act, 30 CFR Parts 

740-746, the Program, or provisions of this Agreement; or

(b) The Commission has failed to comply with any undertaking by the Commission in this Agreement upon which the 

approval of the Program, this Agreement, or grants by OSM for administration or enforcement of the Program or this 

Agreement were based.

6. The Secretary shall send written notice of the decision and findings to the Commission and publish notice of it in 

the Federal Register.

7. This Agreement shall terminate not less than 60 days after publication of the notice of the decision to terminate in 

the Federal Register. The Commission may remedy any failure during the 60-day period. If the Secretary determines that 

the State has taken effective remedial action, the Agreement will not terminate.

C. Termination by Operation of Law: This Agreement shall terminate by operation of law under either of the 

following circumstances:

1. When no longer authorized by Federal law or North Dakota laws and regulations; or

2. Upon termination or withdrawal of the Secretary's approval of the Program pursuant to 30 CFR Part 733.

D. Mutual Termination: This Agreement may be terminated at any time upon mutual agreement by the Secretary 

and the Commission.
ARTICLE XI: REINSTATEMENT OF COOPERATIVE AGREEMENT 

If this Agreement has been terminated as provided in Article X, it may be reinstated upon application by the 

Commission and upon its giving evidence satisfactory to the Secretary that the Commission can and will comply with all 

the provisions of the Agreement and that the Commission has remedied all defects in administration for which this 

Agreement was terminated.

ARTICLE XII: AMENDMENTS TO COOPERATIVE AGREEMENT 

This Agreement may be amended by mutual agreement of the Commission and the Secretary. An amendment 

proposed by one party shall be submitted to the other with a statement of the reasons for such proposed amendment. The 

amendment shall be adopted or rejected in accordance with the requirements of 30 CFR 745.11. The party to whom the 

proposed amendment is submitted shall signify its acceptance or rejection of the proposed amendment and if rejected 

shall state the reason for rejection.

ARTICLE XIII: CHANGES IN STATE OR FEDERAL STANDARDS 

A. Time for Change: The Secretary or the State may from time to time promulgate new Federal or State 

regulations, including new or revised performance or reclamation requirements or enforcement or administration 

procedures. OSM and the Commission shall immediately inform each other of any final changes in their respective laws 

or regulations as provided in 30 CFR Part 732. Each party shall, if it is determined to be necessary to keep this 

Agreement in force, change or revise its regulations and request necessary legislative action. Such changes shall be made 

under the procedures of 30 CFR Part 732 for changes to the Program and section 501 of the Federal Act for changes to 

the Federal lands program.

B. Copies of Changes: The State and OSM shall provide each other with copies of any changes to their respective 

laws, rules, regulations, and standards pertaining to the enforcement and administration of this Agreement.

ARTICLE XIV: CHANGES IN PERSONNEL AND ORGANIZATION 

The Commission and the Secretary shall, consistent with 30 CFR Part 745, advise each other of changes in the 

organization, structure, functions, duties, and funds of the offices, departments, divisions, and persons within their 

organizations which could affect administration and enforcement of this Agreement. Each shall promptly advise the other 

in writing of changes in key personnel, including the head of a department or division, or changes in the functions or 

duties of persons occupying the principal offices within the structure of the program. The Commission and OSM shall 

advise each other in writing of changes in the location of offices, addresses, telephone numbers, and changes in the 

names, location and telephone numbers of their respective mine inspectors and the area within the State for which such 

inspectors are responsible.

ARTICLE XV: RESERVATION OF RIGHTS 

In accordance with 30 CFR 745.13, this Agreement shall not be construed as waiving or preventing the assertion of 

any rights that have not been expressly addressed in this Agreement that the State or the Secretary may have under other 

laws or regulations, including but not limited to those listed in Appendix A.

ARTICLE XVI: DEFINITIONS 

Terms and phrases used in this Agreement which are defined in 30 CFR Part 700, 701 and 740 shall be given the 

meanings set forth in those definitions.

Approved:

James G. Watt,

Secretary of the Interior.

Dated: August 11, 1983.

Allen I. Olson,
Governor of North Dakota.

Dated: August 30, 1983.

Bruce Hagen,

President, North Dakota Public Service Commission.

Dated: August 30, 1983.

Leo M. Reinbold,

Commissioner, North Dakota Public Service Commission.

Dated: August 30, 1983.

Dale Sandstrom,

Commissioner, North Dakota Public Service Commission.

Dated: August 30, 1983.

APPENDIX A

1. The Federal Land Policy and Management Act, 43 U.S.C. 1701, et seq ., and implementing regulations.

2. The Mineral Leasing Act of 1920, 30 U.S.C. 181, et seq ., and implementing regulations including 30 CFR Part 211 et 

seq. 

3. The National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq ., and implementing regulations including 40 

CFR 1500 et seq. 

4. The Endangered Species Act, 16 U.S.C. 1531 et seq ., and implementing regulations including 50 CFR Part 402.

5. The National Historic Preservation Act of 1966, 16 U.S.C. 470, et seq ., and implementing regulations, including 36 

CFR Part 800.

6. The Clean Air Act, 42 U.S.C. 7401, et seq ., and implementing regulations.

7. The Federal Water Pollution Control Act, 33 U.S.C. 1251, et seq ., and implementing regulations.

8. The Resource Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq ., and implementing regulations.

9. The Reservoir Salvage Act of 1960, amended by the Preservation of Historical and Archaeological Data Act of 1974, 

16 U.S.C. 469, et seq. 

10. Executive Order 11593, Cultural Resource Inventories on Federal Lands.

11. Executive Order 11988 (May 24, 1977), for flood plain protection. Executive Order 11990 (May 24, 1977), for 

wetlands protections.

12. The Mineral Leasing Act for Acquired Lands, 30 U.S.C 351, et seq ., and implementing regulations.

13. The Stock Raising Homestead Act of 1916, 43 U.S.C. 291, et seq. 

14. The Constitution of the United States.

15. The Constitution of the State of North Dakota, State law, and rules.

(Pub. L. 95-87, 30 U.S.C. 1201 et seq.) 

[FR Doc. 83-25052 Filed 9-14-83; 8:45 am]

BILLING CODE 4310-05-M