[Federal Register Volume 68, Number 129 (Monday, July 7, 2003)]
[Rules and Regulations]
[Pages 40142-40147]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17079]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 934

[SATS ND-46-FOR, Amendment No. XXXII]


North Dakota Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the North Dakota 
regulatory program (the ``North Dakota program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). North 
Dakota proposed revisions to its revegetation policy document, 
``Standards for Evaluation of Revegetation Success and Recommended 
Procedures for Pre- and Postmining Vegetation Assessments.'' On its own 
initiative, it intended to revise its program to improve operational 
efficiency, clarify ambiguities, and revise its revegetation policy 
document to reflect the corresponding changes made to its rules, the 
North Dakota Administrative Code (NDAC).

EFFECTIVE DATE: July 7, 2003.

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

SUPPLEMENTARY INFORMATION:

I. Background on the North Dakota Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the North Dakota Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act***; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the North Dakota program on December 15, 1980. 
You can find background information on the North Dakota program, 
including the Secretary's findings, the disposition of comments, and 
conditions of approval in the December 15, 1980, Federal Register (45 
FR 82214). You can also find later actions concerning North Dakota's 
program and program amendments at 30 CFR 934.12, 934.13, 934.15, and 
934.30.

II. Submission of the Proposed Amendment

    By letter dated November 21, 2002, North Dakota sent us an 
amendment to its program (Amendment number XXXII, Administrative Record 
No. ND-GG-01) under SMCRA (30 U.S.C. 1201 et seq.). It sent the 
amendment on its own initiative. The amendment revises North Dakota's 
revegetation policy document. Many of the changes are made to 
incorporate rule changes that were approved by OSM and appeared in the 
March 2, 2001, Federal Register as part of State Program Amendment XXX 
(SPATS number ND-041-FOR) and other staff initiatives.
    We announced receipt of the proposed amendment in the February 11, 
2003, Federal Register (68 FR 6842). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
No. ND-GG-05). No one requested a public hearing or meeting so we did 
not conduct one. We did not receive any comments from the public.

OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.

A. Minor Revisions to North Dakota's Revegetation Document

    Throughout the revegetation success guidance document, North Dakota 
has made editorial and clarification changes. Examples of editorial 
changes include changing ``Soil Conservation Service or SCS'' to 
``Natural Resources Conservation Service or NRCS'', ``which'' to 
``that'', ``units'' to ``site'', ensuring noun verb agreement, updating 
references, standardizing abbreviations and mathematical symbols, and 
revising example calculations to reflect the latest information. The 
editorial changes are no less effective than the Federal regulations.
    Examples of changes made to clarify the existing document include 
adding text in: (1) Section II-B to identify using annual county yield 
reported by North Dakota Agricultural Statistic Service; (2) section 
II-C, to explain how to use the series modifiers in identifying 
appropriate productivity indices for each of the soil series listed in 
Table 1; and (3) section III-D to identify how to apply the various 
sampling methodologies for cover, production and density. None of these 
changes substantively revises the approved ``Standards for Evaluation 
of Revegetation Success And Recommended Procedures for Pre-And 
Postmining Vegetation Assessments''.
    Because these changes are minor, we find that they will not make 
North Dakota's revegetation policies less effective than the 
corresponding Federal regulations.

B. Revisions to North Dakota's Revegetation Policy Document for 
Consistency With the Previously-Approved North Dakota Regulatory 
Program

    North Dakota proposed revisions to its revegetation policy document 
to make it consistent with the previously-approved North Dakota 
regulatory program. Throughout the ``Standards For Evaluation Of 
Revegetation Success And Recommended Procedures For Pre- And Postmining 
Vegetation Assessments'', North Dakota has revised language to

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bring this document into compliance with regulatory language previously 
approved by OSM in the March 2, 2001, Federal Register (66 FR 13015). 
The section of the regulations that was approved, NDAC 69-05.2-22-
07(4)(l), deals with evaluating revegetation success on prime farmlands 
and timeframes for demonstrating revegetation success.
    Language throughout the document was, in general, revised to 
specify the last two ``consecutive'' growing seasons; to delete, ``in 
the case of non-prime farmlands;'' and ``out of five consecutive years; 
to change eighth year to sixth year; and add ``with one year being the 
last year'' to read as follows:

    in each of the last two consecutive growing seasons or any three 
years starting no sooner than the sixth year and with one year being 
the last year of the responsibility period.

This revision reflects the previously-approved change to NDAC 69-05.2-
22-07(4)(l) and is no less effective.
    In the cropland portion of the success standards document, language 
was added that specifies that a separate success standard must be 
calculated for prime farmland tracts unless a single yield standard has 
been approved as allowed by NDAC 69-05.2-22-07(4)(1), as follows:

    A separate success standard must be calculated for prime 
farmland tracts unless a single yield standard has been approved as 
allowed by NDAC 69-05.2-22-07(4)(l).'' and ``For reclaimed prime 
farmland, a separate yield standard must be calculated for that 
tract and three years (not necessarily consecutive) of data must be 
submitted that demonstrates that the productivity is equal to or 
greater than the approved standard with 90% statistical confidence. 
Alternatively, if a single standard has been approved and calculated 
for a reclaimed tract containing a mixture of prime and non-prime 
farmlands as allowed by NDAC 69-05.2-22-07(4)(l), data must be 
submitted which demonstrates that productivity is equal to or 
greater than the approved standard (with 90% statistical confidence) 
in any three years starting no sooner than the sixth year and with 
one year being the last year of the responsibility period.

This revision also reflects the approved change to NDAC 69-05.2-22-
07.4.1 and is no less effective.
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

C. Revisions to North Dakota's Revegetation Policy Document With No 
Corresponding Federal Regulations

1. Section II-C, Cropland
    North Dakota has made several changes to this section of its 
guidelines. These include (1) revising the equations to estimate summer 
fallow or continuous cropping yields to include equations for Durum 
wheat as well as spring wheat and to include equations for Adams County 
and delete Ward County; (2) inclusion of an exemption from the 
requirement that control areas be established two years prior to 
demonstrating revegetation success may be granted if documentation is 
submitted to the Reclamation Division that demonstrates that the 
management of the control area for the previous two years has been 
equivalent in effect to that of the reclaimed area; (3) adding a note 
that allows them to develop climatic correction factors when there is 
no yield data for a productivity index equal to 100 available for the 
crop being grown on both the reclaimed and control areas; and (4) 
revising Cropland Table 1, Spring wheat productivity indexes based on 
the NRCS' Soils Interpretive Guide published in January 2000.
    Because the changes to this section could affect prime farmland, 
the NRCS has reviewed this proposed revision, as well as all the 
proposed changes to this document, and determined that the proposed 
changes are acceptable. The NRCS develops the productivity indices used 
by the State and is the expert in this area. The NRCS has submitted a 
letter of concurrence with the proposed changes to this document. Based 
on this letter and review of the Federal regulations at 30 CFR 816.116 
and 823.15, we have determined that the proposed changes are consistent 
with and no less effective than the Federal regulations.
2. Section II-D, Native Grassland
    North Dakota proposes to revise the diversity and seasonality 
standards for native grasslands. In support of the proposed change, 
North Dakota states that the changes in the native grassland section 
simplify the diversity and seasonality standards. The revegetation 
document previously required that reclaimed native grassland have 
seasonality and diversity values meeting or exceeding standards derived 
from either range site reference areas or NRCS range site description 
data. The modified standards require that at least five native grass 
species be present on reclaimed native grasslands, but only four native 
grass species will have to be present in specified percentages. Of 
these four species, there must be at least two warm season species and 
one cool season species. The total relative composition of warm season 
species must be at least 15% and the native species must be at least 
65% of the total species composition. The primary reasons for the 
revisions to the diversity and seasonality standards are (1) it 
simplifies the previous methodology that was overly complicated and 
involved and (2) with the mixing of topsoil materials during the mining 
and reclamation process, the overwhelming majority of the reclaimed 
native grassland tracts will be most similar to the ``silty'' range 
site.
    The Federal regulations at 30 CFR 816.111(a)(1) require, in part, 
that the permittee shall establish on regraded areas and on all other 
disturbed areas except water areas and surface areas of roads that are 
approved as part of the postmining land use, a vegetative cover that is 
in accordance with the approved permit and reclamation plan and that is 
diverse. Further, 30 CFR 816.111(b)(2) requires that the reestablished 
plant species shall have the same seasonal characteristics of growth as 
the original vegetation. OSM has determined that the proposed diversity 
and seasonality standards comply with the intent of 30 CFR 816.111 and 
are no less effective than the Federal regulations.
3. Section II-E, Tame Pastureland
    North Dakota has revised its pastureland diversity standard to 
eliminate the numerical requirement. The revised standard focuses on 
the presence of the seeded pasture species and the appropriateness of 
any invading species. The Federal regulations at 30 CFR 816.111(a)(1) 
require, in part, that ``the permittee shall establish on regraded 
areas and on all other disturbed areas except water areas and surface 
areas of roads that are approved as part of the postmining land use, a 
vegetative cover that is in accordance with the approved permit and 
reclamation plan and that is diverse, effective, and permanent.'' No 
numerical standards are specified. OSM has determined that the revised 
diversity standard for pastureland meets the intent of the requirements 
of 30 CFR 816.111(a)(1) and is therefore no less effective.
4. Section II-F, Woodland Success Standards
    North Dakota proposes several revisions to this section. The 
majority of the changes to this section are editorial in nature and 
provide clarification without affecting the currently approved

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stocking standards. The only significant change is to the tree and 
shrub diversity and seasonal variety standards. North Dakota proposes 
to require that at least 60% of the planted tree species should be 
present at 50% of the initial planting rate and at least 60% of the 
shrub species should each comprise at least 10% of the density 
standard. This means an increase in the percentage of tree species that 
must be present by 10% and creates a minimum number of stems that must 
be present for each of these tree and shrub species. To support this 
change, North Dakota states that the standards for diversity and 
seasonal variety on reclaimed woodlands have been updated by revising 
the percentages of species that need to be present in certain 
quantities in order to meet the requirements for final bond release. 
The revised percentages were based on data from undisturbed and 
reclaimed woodlands at the Glenharold Mine. These changes are no less 
effective than the Federal regulations at 30 CFR 816.111(a)(1) 
concerning establishment of vegetation that is diverse, effective and 
permanent.
    North Dakota has also added a statement that tree and shrub stems 
occurring as a result of natural regeneration may be counted. This new 
statement is consistent with the State rules at NDAC 69-05.2-22-
07(4)(f) and provides additional clarification. The proposed change is 
also consistent with section 515(b)(19) of SMCRA, which requires the 
operator to establish on the regraded areas, and all other lands 
affected, a diverse, effective, and permanent vegetative cover of the 
same seasonal variety native to the area of land to be affected and 
capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area; except, that 
introduced species may be used in the revegetation process where 
desirable and necessary to achieve the approved postmining land use 
plan. SMCRA specifically refers to vegetative cover capable of self-
regeneration. North Dakota's allowance to include stems of trees and 
shrubs that are the result of regeneration in meeting vegetation 
success clearly complies with the intent of SMCRA and is no less 
effective than the Federal regulations.
5. Section II-G, Shelterbelts
    North Dakota proposes to add the following language to the section 
on Shelterbelts: ``The Commission will consider modifying the 
shelterbelt profile density standard if it is demonstrated that a 
natural disaster (e.g., disease epidemic, prolonged drought, etc.) has 
affected the planting. Any replanting due to a natural disaster will be 
considered a normal husbandry practice which will not restart the 
liability period.''
    The regulations at 30 CFR 816.116(a)(1) require that standards for 
success and statistically valid sampling techniques for measuring 
success shall be selected by the regulatory authority and be included 
in an approved regulatory program.
    In support of the proposed new language, North Dakota has stated 
that without knowing the exact nature of the natural disaster and the 
effect that it may have upon the profile density standard, it is 
impossible to develop modified success standards. For example, if a 
disease has eliminated a certain species, it may be possible to either 
replant a resistant variety of the same species or to require the 
replanting of an entirely new species. However, if only part of the 
planting is lost, then it must be determined for each case what effect 
has occurred and the possible remedies. It is not possible to spell out 
in detail all possible scenarios under which some sort of adjustment 
may be necessary. The State also added language stating that any 
replanting due to a natural disaster will be considered a normal 
husbandry practice that will not restart the revegetation liability 
period.
    As written, North Dakota's proposal would allow it to modify the 
shelterbelt success standards if a natural disaster has affected the 
planting. The Federal regulations require that success standards be 
included in the approved program. However, OSM concurs with North 
Dakota's assessment that it is not possible to anticipate all possible 
scenarios that could result in a change to the shelterbelt standard. 
Because of the limited acreage of shelterbelts and the goal of 
encouraging their establishment some flexibility is necessary. OSM also 
notes that North Dakota only proposes to allow a change in the profile 
density success standard, not the requirements for vigor, competition, 
erosion control, or species diversity, seasonal variety and 
regenerative capacity.
    North Dakota also proposes to allow the replanting within 
shelterbelts affected by natural disasters as a normal husbandry 
practice. Review of the NRCS Conservation Practice Standards for 
Windbreak/Shelterbelt Establishment (Code 380) and Windbreak/
Shelterbelt Renovation (Code 650) clearly indicates that replacement of 
dead trees and shrubs, regardless of how they died, should be continued 
until the barrier's function is restored. As such the State's proposal 
to allow replanting without restarting the liability period is clearly 
a normal husbandry practice under 30 CFR 816.116(c)(4).
    OSM has determined that the proposed language is consistent with 
and no less effective than the requirements of 30 CFR 816.116.
6. Section II-H, Fish and Wildlife Habitat
    North Dakota has revised this section to provide more flexibility 
in evaluating the effectiveness of the reestablished grassland for 
providing wildlife habitat. The actual cover standard is unaffected. 
The specific height requirement is eliminated in favor of a qualitative 
evaluation. This evaluation demonstrates compliance with the Federal 
requirement to establish an effective plant community.
    North Dakota has also revised the diversity standard for grasslands 
that are used for Fish and Wildlife habitat. The revised standard 
requires that at least 60% of the total species composition be 
comprised of the seeded species. This evaluation demonstrates 
compliance with and is consistent with the Federal requirement to 
establish a diverse plant community.
    Finally, North Dakota has revised its guidance on regenerative 
capacity to be a subjective evaluation rather than a quantitative 
evaluation. The Federal regulations require establishment of a plant 
community capable of self-regeneration. However, no quantitative 
evaluation is required. North Dakota's proposed changes are consistent 
with and no less effective than the Federal regulations requiring 
establishment of a plant community capable of regeneration.
    The proposed changes to this section are consistent with and no 
less effective than the Federal regulations at 30 CFR 816.111 and 
816.116(b)(3).
    North Dakota has revised a portion of the Annual Crops Fish and 
Wildlife Habitat section to provide some additional flexibility. The 
changes eliminate the requirement that the cover from annual crop be 
approximately 10 inches in height. North Dakota proposes instead to 
focus on the presence of an adequate food source and adequate cover for 
the postmining land use. This ensures that the vegetative ground cover 
is adequate to achieve the postmining land use. The rule continues to 
require that erosion be adequately controlled to prevent contribution 
of suspended solids to runoff. North Dakota's proposed changes are 
consistent with and no less effective than the requirements of 30 CFR 
816.111 and 816.116(b)(3)(iii), which require that vegetative ground 
cover shall not be less

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than that required to achieve the approved postmining land use.
7. Section III-C, Sampling Design
    North Dakota proposes revising the sampling design section. Several 
minor editorial changes have been made. However, the major revisions 
involve changes to the method for determining adequate sample sizes for 
two populations and the addition of a method for determining adequate 
sample sizes for stratified sampling. The change to the two-sample 
sample adequacy equation involves simplifying the calculation of the 
variance and mean used in the currently approved formula by simply 
using the data from the area, either reclaimed or reference, that has 
the highest variance and removing the complexity in allocating the 
number of samples required between the reclaimed area and the reference 
area.
    The State has also added a method for calculating sample adequacy 
for stratified sampling. The proposed formula allocates the minimum 
sample size for each stratum based on the total number of samples 
necessary to adequately sample the entire area, the area of each 
stratum, and the variance associated with the stratum.
    The regulations at 30 CFR 816.116(a)(2) require that standards for 
success shall include criteria representative of unmined lands in the 
area being reclaimed to evaluate the appropriate vegetation parameters 
of ground cover, production, or stocking. Ground cover, production, or 
stocking shall be considered equal to the approved success standard 
when they are not less than 90 percent of the success standard. The 
sampling techniques for measuring success shall use a 90-percent 
statistical confidence interval (i.e., one-sided test with a 0.10 alpha 
error).
    OSM has reviewed the proposed changes and additions and determined 
that these proposed methods are recognized approaches for determining 
adequate sample sizes. Use of either of these formulas, as appropriate, 
ensures that the sampling techniques for measuring revegetation success 
use a 90-percent statistical confidence interval. The proposed 
revisions are consistent with and no less effective than the Federal 
regulations.
8. Section III-D, Methods for Measuring Productivity, Cover, and 
Density
    North Dakota has made numerous revisions throughout this section. 
In general, many of these proposed revisions are for clarification and 
do not substantively revise this section. One significant change is 
that North Dakota proposes to allow the use of combines equipped with 
the global positioning system yield monitoring systems. The document 
provides specific guidance on how these systems can be used. This 
includes requiring calibration of the yield monitor and submission of 
that information along with test weight, moisture content, and dockage 
of the crop. If the yield monitor calibration does not correct yield 
values for test weight and moisture content, these corrections must 
also be made when reporting yield data used to show reclamation 
success. OSM has reviewed this proposed method and determined that it 
is a statistically valid sampling technique. The State has also 
established minimum sample sizes for evaluating hay production using 
both whole field and partial field harvest. This is consistent with the 
Federal regulations.
    OSM has determined that the proposed changes to the measurements 
section of the document are consistent with and no less effective than 
30 CFR 816.116(a)(1) and (2).
9. Section III-E, Statistical Analysis
    The ``Statistical Analyses'' section has been rewritten to 
standardize the symbols used in the equations. Also, examples have been 
added on how to use the equations. OSM has reviewed the proposed 
section, which also replaces existing Appendix C, Statistical Formulae 
and t Distribution, and determined that all the proposed statistical 
equations are widely used, correctly and appropriately.
    The regulations at 30 CFR 816.116(a)(1) require that standards for 
success and statistically valid sampling techniques for measuring 
success shall be selected by the regulatory authority and included in 
an approved regulatory program. The regulations at 30 CFR 816.116(a)(2) 
require that standards for success shall include criteria 
representative of unmined lands in the area being reclaimed to evaluate 
the appropriate vegetation parameters of ground cover, production, or 
stocking. Ground cover, production, or stocking shall be considered 
equal to the approved success standard when they are not less than 90 
percent of the success standard. The sampling techniques for measuring 
success shall use a 90-percent statistical confidence interval (i.e., 
one-sided test with a 0.10 alpha error). OSM has determined that the 
proposed changes to this section are consistent with and no less 
effective than the Federal regulations at 30 CFR 816.116(a)(1) and (2).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment in the February 11, 
2003, Federal Register (68, FR 6842* * *Administrative Record No. ND-
GG-05), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the North Dakota program 
(Administrative Record No. ND-GG-03). No comments were received.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that North Dakota proposed to make in this 
amendment pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On December 9, 2002, we requested comments on North 
Dakota's amendment (Administrative Record No. ND-GG-03). The SHPO 
responded on December 16, 2002, that he had no comments (Administrative 
Record No. ND-GG-04). The ACHP did not respond.

V. OSM's Decision

    Based on the above findings, we approve North Dakota's November 21, 
2002, amendment, as discussed in: finding A, Minor Revisions to North 
Dakota's Revegetation Document; finding B, Revisions to North Dakota's 
Policy Document for Consistency with the Previously-Approved North 
Dakota Regulatory Program; finding C.1, Section II-C concerning 
cropland; finding C.2, Section II-D, concerning native grassland; 
finding C.3, Section II-E concerning tame pastureland; finding C.4, 
Section II-F concerning woodland success standards; finding C.5, 
Section II-G concerning shelterbelts; finding

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C.6, Section II-H concerning fish and wildlife habitat; finding C.7, 
Section III-C concerning sampling design; finding C.8, Section III-D 
concerning methods for measuring productivity, cover, and density; and 
finding C.9, Section III-E concerning statistical analysis.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 934, which codify decisions concerning the North Dakota 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17 requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the North Dakota program, we will recognize only the 
statutes, regulations and other materials we have approved, together 
with any consistent implementing policies, directives and other 
materials. We will require North Dakota to enforce only approved 
provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
each 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), 
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.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 that 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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)).

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.).

Regulatory Flexibility Act

    The Department of the Interior certifies 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, which 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. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

[[Page 40147]]

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 934

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 27, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 934 is amended as 
set forth below:

PART 934--NORTH DAKOTA

0
1. The authority citation for part 934 continues to read as follows:

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


0
2. Section 934.15 is amended in the table by adding a new entry in 
chronological order by date of final publication to read as follows:


Sec.  934.15  Approval of North Dakota regulatory program amendments

* * * * *

----------------------------------------------------------------------------------------------------------------
   Original amendment  submission date     Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
November 21, 2002.......................  July 7, 2003...............  Standards for Evaluation of Revegetation
                                                                        Success and Recommended Procedures for
                                                                        Pre- and Postmining Vegetation
                                                                        Assessments:
                                                                       Section II-C, D, E, F, G, and H;
                                                                       Section III-C, D, and E
----------------------------------------------------------------------------------------------------------------


[FR Doc. 03-17079 Filed 7-3-03; 8:45 am]
BILLING CODE 4310-05-P