[Federal Register Volume 64, Number 5 (Friday, January 8, 1999)]
[Rules and Regulations]
[Pages 1127-1130]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-383]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[ND-037-FOR, Amendment No. XXVI]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the North Dakota regulatory 
program (hereinafter, the ``North Dakota program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA). North Dakota 
proposed revisions of its revegetation document pertaining to prime 
farmland success standards, cover standards for woodlands, wetlands 
success standards, recreational land use success standards for tree and 
shrub stocking, and methods for sampling woodland cover. The amendment 
was intended to revise the North Dakota program to be consistent with 
the corresponding Federal regulations and improve operational 
efficiency.

EFFECTIVE DATE: January 8, 1999.

FOR FURTHER INFORMATION CONTACT: Field Office Director Guy Padgett, 
Telephone: 307/261-6550, Internet address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the North Dakota Program

    On December 15, 1980, the Secretary of the Interior conditionally 
approved the North Dakota program. General background information on 
the North Dakota program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval of the North 
Dakota program can be found in the December 15, 1980, Federal Register 
(45 FR 82214). Subsequent actions concerning 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 9, 1998, North Dakota submitted a proposed 
amendment to its program (Amendment Number XXVI), administrative record 
No. ND-AA-05) pursuant to SMCRA (30 U.S.C. 1201 et seq.). North Dakota 
submitted the proposed amendment in response to the required program 
amendments at 30 CFR 934.16(aa) and (bb), and at its own initiative. 
The provisions of its revegetation policy document that North Dakota 
proposed to revise were: (1) II-C-1, II-C-3, II-C-4, II-C-5, and II-C-6 
of the Cropland section to modify prime farmland provisions; (2) II-F-7 
of the Woodland section; (3) II-H-9 and II-H-12 of the Wetlands 
section; (4) II-I-1 and II-I-2 of the Other Land Uses section; and (5) 
III-D-6 of the Measurements section.
    OSM announced receipt of the proposed amendment in the May 8, 1998, 
Federal Register (63 FR 25428), provided an opportunity for a public 
hearing or meeting on its substantive adequacy, and invited public 
comment on its adequacy (administrative record No. ND-AA-07). Because 
no one requested a public hearing or meeting, none was held. The public 
comment period ended on June 8, 1998.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds that the proposed program amendment 
submitted by North Dakota on April 9, 1998, is no less effective than 
the corresponding Federal regulations. Accordingly, the Director 
approves the proposed amendment.

1. Section II-C, Standards for Evaluation of Revegetation Success 
(Prime Farmland Standards)

    North Dakota proposed to revise Section II-C of ``Standards for 
Evaluation of Revegetation Success and Recommended Procedures for Pre- 
and Postmining Vegetation Assessments'' (hereinafter the revegetation 
policy document) to be consistent with its rules at NDAC 69-06.2-22-07 
(3)(c) and (4)(d) and address a required program amendment at 30 CFR 
934.16(aa).
    North Dakota amended Section II-C to require that for third-stage 
bond release (equivalent to Phase II bond release under the Federal 
program) the prime farmland productivity standards must have been met 
for a minimum of three years. For at least two of the three years, 
spring wheat (the deepest rooting crop) must be used to demonstrate 
restoration of productivity. Barley or oats may be used for the other 
year. For fourth-stage bond release for prime farmlands (equivalent to 
phase III bond release under the Federal program), at least 10 years 
must have elapsed and the productivity standards for third-stage bond 
release must have been met.
    The Federal regulations at 30 CFR 800.40(c)(2) require, in part, 
that no part of the bond or deposit shall be released under this 
paragraph until soil productivity for prime farmlands has returned to 
equivalent levels of yield as nonmined land of the same soil type in 
the surrounding area under equivalent management practices as 
determined from the soil survey performed pursuant to section 
507(b)(16) of the Surface Mining and Reclamation Control Act and 30 CFR 
Part 823 of the Federal regulations. The Federal regulation at 30 CFR 
823.15(b)(3) requires that the measurement period for determining 
average annual crop production on prime farmlands shall be a minimum of 
3 crop years prior to release of the operator's performance bond.
    OSM required, at 30 CFR 934.16(aa) of the Federal regulations, that 
North Dakota revise Chapter II, Section C of its revegetation policy 
document and its rules at NDAC 69-05.2-22-07(3)(c) and 69-05.2-2-26-
05(3)(c) to require that, prior to third-stage bond release on land 
reclaimed for use as prime farmland, the permittee demonstrate 
restoration of productivity using 3 crop years (62 FR 22889, 22892; 
April 28, 1997). OSM approved North Dakota's revisions to its rules as 
required by 30 CFR 934.16(aa).
    The Director finds that proposed amendment to Section II-C of North 
Dakota's policy revegetation document parallels the approved revision 
to North Dakota's rules and is no less effective than the Federal 
regulations at 30 CFR 800.40(C)(2) and at 823.15(b)(3). The Director 
finds that North Dakota has, therefore, satisfied the required program 
amendment, approves the proposed revision, and removes the required 
amendment at 30 CFR 934.16(aa).

2. Section II-F, Standards for Evaluation of Revegetation Success 
(Cover Standards for Woodlands)

    Existing Section II-F of North Dakota's revegetation policy 
document allows the use of herbaceous cover for evaluating the ground 
cover of woodland areas, a type of fish and wildlife habitat, at 
fourth-stage bond release. Herbaceous cover must be either

[[Page 1128]]

66% total basal cover (90% of the 73% standard) or 75% first-hit cover 
(90% of the 83% standard). Herbaceous cover, together with canopy cover 
must provide adequate protection from erosion.
    North Dakota proposed to revise Section II-F to state that ground 
cover may be determined by sampling either total ground cover (a newly 
defined term), a combination of herbaceous and woody vegetation, or 
herbaceous understory only. Total ground cover (defined as live 
herbaceous cover, litter, and canopy from woody vegetation) must be at 
least 83%. North Dakota also revised the section to state that the 
herbaceous understory includes both herbaceous cover and litter. The 
revegetation policy document requires that total ground cover, 
including the canopy cover of woody vegetation, must provide adequate 
protection from erosion.
    The Federal regulations at 30 CFR 701.5 define ground cover as the 
area of ground covered by the combined aerial parts of vegetation and 
the litter that is produced naturally onsite, expressed as a percentage 
of the total area of measurement. The Federal regulations at 30 CFR 
816.116(b)(3)(iii) requires for fish and wildlife habitat, recreation, 
shelter belts, or forest products that vegetative ground cover shall 
not be less than that required to achieve the approved postmining land 
use.
    North Dakota's new definition of total ground cover is no less 
effective than the Federal definition of ground cover at 30 CFR 701.5. 
North Dakota's proposed addition of a total canopy standard of 83% is 
derived from the approved North Dakota cover standards in Section II-F 
of its guideline, which are 66% basal cover (90% of the 75% cover 
standard) or 75% first hit cover (90% of the 83% cover standard). In 
turn, these standards are based on research done in North Dakota to 
determine what level of cover is adequate to control erosion (study 
entitled, ``Pasture and Hayland; Measures of Reclamation Success;'' 
R.E. Ries and L. Hofmann, 1984). Because the standards were approved as 
sufficient to control erosion and meet the approved postmining land 
use, the proposed total cover standard of 83% will be adequate to 
control erosion and meet the postmining land use of woodlands, a type 
of fish and wildlife habitat. The Director finds that North Dakota's 
proposed revision to Section II-F of the revegetation policy document 
is no less effective than the Federal regulations at 30 CFR 
816.116(b)(3)(iii) and approves it.

3. Section II-H, Standards for Evaluation of Revegetation Success 
(Wetlands Success Standards)

    For premining assessments of Class III wetlands, North Dakota's 
revegetation policy document requires that where only a few wetlands 
are involved, all should be sampled. In cases where a large number 
occur, approximately thirty percent may be randomly selected and 
sampled; however, in all cases, sample numbers must be approved by the 
Commission based on total number of wetlands and variability. In 
addition, for wetland surface water quality for Class III-VI wetlands, 
the revegetation policy document currently requires that premining data 
be collected for no less than three years.
    For fourth-stage bond release of wetlands which are identified as 
fish and wildlife habitat, the revegetation policy document currently 
requires documentation that vegetation of the reclaimed wetland 
exhibits vegetation characteristics of the wetlands class for which it 
was designed. This documentation may be submitted annually to the 
Commission or at the time of bond release; however, it should be 
available to the Wetlands Advisory Committee on an annual basis if 
requested.
    North Dakota proposed to revise Section 2-H of the revegetation 
policy document (concerning the premining wetland assessment) to 
require for Class III wetlands that wetlands sampled must be based on 
the number present, distribution and variability. Sample numbers must 
be approved by the Commission. For surface water quality assessments on 
Class III-VI wetlands, North Dakota's proposed revision requires that 
the number of years that data is collected must be approved by the 
Commission based on distribution and variability of wetlands.
    For fourth-stage bond release of wetlands North Dakota also 
proposed to revise Section 2-H to require that data be collected the 
last three years of the liability period and submitted annually. Each 
year's data must include the same four parameters currently included in 
the policy document.
    The Federal regulations at 30 CFR 779.19(a) require that the permit 
application, if required by the regulatory authority, contain a map 
delineating existing vegetative types and a description of the plant 
communities within the proposed permit area and any proposed reference 
area. The description shall include information adequate to predict the 
potential for reestablishing vegetation. There is no Federal regulation 
establishing the number of years for premining surface water quality.
    The Federal regulations at 30 CFR 816.116(c)(3)(i) require that for 
fish and wildlife habitat, to achieve phase III bond release, the 
appropriate vegetation parameters shall equal or exceed the approved 
success standard for at least the last two consecutive years of the 
responsibility period.
    Because North Dakota's proposed revision at Section 2-H of its 
revegetation policy document requires delineation of premining wetlands 
vegetation, North Dakota's requirements for premining assessments of 
wetland areas are consistent with and no less effective than the 
Federal regulations at 30 CFR 779.19(a). Also, because North Dakota's 
proposed revision requires three years of vegetation data for fourth-
stage bond release (equivalent to phase III bond release under the 
Federal regulations) while the Federal regulation requires that 
vegetation parameters equal or exceed the success standard for the last 
two years, North Dakota's proposed revision is consistent with and no 
less effective than the Federal regulations at 30 CFR 816.116(c)(3)(i). 
Therefore the Director approves North Dakota's proposed revisions at 
Section 2-H of its revegetation policy document.

4. Section II-I, Standards for Evaluation of Revegetation Success 
(Recreational Land Use Standards for Tree and Shrub Stocking)

    In response to the required amendment at 30 CFR 934.16(bb), North 
Dakota proposed to revise the introduction to Section II-I of its 
revegetation policy document, adding language to require that if areas 
developed for recreation use include woodland plantings and/or 
shelterbelts, the woody plants must meet all applicable fourth-stage 
bond release standards described under sections II-F and II-G of that 
document. North Dakota proposed to revise its discussion of postmining 
assessment by adding language to require: (1) If a recreation area 
includes woodland plantings, a demonstration, with supporting data, 
must be included showing that the applicable standards described under 
section II-F are met, and (2) if a recreation area includes 
shelterbelts, a demonstration, with supporting data, must be included 
showing that the applicable standards described under section II-G are 
met. North Dakota also proposed to revise its discussion of 
revegetation success standards for third and fourth stage bond release 
by adding a statement that, for recreation areas that include woodland 
plantings and/or

[[Page 1129]]

shelterbelts, the woody plants must meet all applicable standards 
described in sections II-F and II-G for fourth-stage bond release.
    OSM required at 30 CFR 934.16(bb) that North Dakota amend its 
program to revise Section II-I of its revegetation policy document to 
require that, for areas with a postmining land use of recreation, tree 
and shrub stocking standards meet all the requirements of 30 CFR 
816.116(b)(3).
    The Federal regulations at 30 CFR 816.116(b)(3) require for areas 
to be developed for fish and wildlife habitat, recreation, shelter 
belts, or forest products, minimum stocking and planting arrangements 
shall be specified by the regulatory authority on the basis of local 
and regional conditions and after consultation with and approval by the 
State agencies responsible for the administration of forestry and 
wildlife programs. Consultation and approval may occur on either a 
program wide or a permit-specific basis. Trees and shrubs that will be 
used in determining the success of stocking and the adequacy of the 
plant arrangement shall have utility for the approved postmining land 
use. Trees and shrubs counted in determining such success shall be 
healthy and have been in place for not less than two growing seasons. 
At the time of bond release, at least 80 percent of the trees and 
shrubs used to determine such success shall have been in place for 60 
percent of the applicable minimum period of responsibility. Vegetative 
ground cover shall not be less than that required to achieve the 
approved postmining land use.
    As proposed by North Dakota, Section II-I incorporates by reference 
the requirements of Sections II-F, Woodland, and II-G, shelterbelts. 
These sections include requirements for consultation and approval of 
stocking and planting arrangements, time-in-place requirements, and 
ground cover standards. Both of these sections were approved by OSM as 
no less effective than the requirements of 30 CFR 816.116(b)(3) on July 
14, 1995 (60 FR 36213, 36215). The Director finds that, by 
incorporating references to Section II-F, Woodland, and II-G, 
Shelterbelts, Section II-I of North Dakota's revegetation policy 
document is no less effective than the Federal regulations and 
satisfies the required program amendment. The Director approves the 
proposed revisions at Section II-1 and removes the required amendment 
at 30 CFR 934.16(bb).

5. Section III-D, Standards for Evaluation of Revegetation Success 
(Methods for Sampling Woodland Cover)

    North Dakota proposed to revise Section III-D of its revegetation 
policy document to allow the use of a Daubenmire frame or line 
intercept methods for measuring total cover in woodlands. These methods 
may only be used where woody vegetation is present.
    The Federal regulations at 30 CFR 816.116(a)(1) require that the 
regulatory authority identify and include in their approved program 
statistically valid sampling techniques.
    The two cover sampling techniques proposed for inclusion in the 
North Dakota guidance document are well recognized and statistically 
valid methods for evaluating ground cover in plant communities. The 
Director finds that North Dakota's proposed revision of Section III-D 
in the revegetation policy document is therefore no less effective than 
the Federal regulations at 30 CFR 816.116(a)(1) and approves it.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment but none were 
received.

2. Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the North Dakota program. In response, Ronald E. 
Ries, Range Scientist with the U.S. Department of Agriculture's 
Agriculture Research Service responded on May 28, 1998, that the 
proposed changes are technically sound and make the use of the 
standards more workable based on field experience of operators and the 
ND Public Service Commission (administrative record No. ND-AA-09).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. ND-AA-07). EPA 
did not respond to OSM's request.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (administrative record No. 
ND-AA-07). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves North Dakota's 
proposed amendment as submitted on April 9, 1998. The Director 
approves, as discussed in: finding No. 1, Section II-C, concerning 
standards for evaluation of revegetation success; finding No. 2, 
Section II-F, concerning cover standards for woodlands; finding No. 3, 
Section II-H, concerning wetlands success standards; finding No. 4, 
Section II-I, concerning recreational land use success standards for 
tree and shrub stocking; and finding No. 5, Section III-D, concerning 
methods for sampling woodland cover. Also, as discussed in findings 
Nos. 1 and 4, the Director removes the required program amendments at 
30 CFR 934.16(aa) and (bb).
    The Federal regulations at 30 CFR Part 934, codifying decisions 
concerning the North Dakota program, are being amended to implement 
this decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of 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 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10),

[[Page 1130]]

decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
signficiant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

6. Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 21, 1998.
Richard J. Seibel,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 934--NORTH DAKOTA

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

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

    2. Section 934.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read a follows:


Sec. 934.15  Approval of North Dakota regulatory program amendments.

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                                            Date of final
  Original amendment submission date         publication                      Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
April 9, 1998........................  January 8, 1999........  Revegetation Success Policy Doc.
                                                                II-C, Prime Farmlands standards.
                                                                II-F, Woodlands cover standards.
                                                                II-H, Wetlands standards.
                                                                II-I, Recreational land use standards for tree
                                                                 and shrub stocking.
                                                                III-D, Methods for sampling woodland cover.
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Sec. 934.16  [Amended]

    3. Section 934.16 is amended by removing and reserving paragraphs 
(aa) and (bb).

[FR Doc. 99-383 Filed 1-7-99; 8:45 am]
BILLING CODE 4310-05-M