North Dakota Regulatory Program

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

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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

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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),

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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