[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
