[Federal Register Volume 66, Number 96 (Thursday, May 17, 2001)]
[Rules and Regulations]
[Pages 27455-27459]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12456]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 934
[ND-040-FOR; North Dakota State Program Amendment XXIX]
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). The amendment
consists of changes to North Dakota's revegetation policy document,
Standards for Evaluation of Revegetation Success and Recommended
Procedures for Pre- and Postmining Vegetation Assessments. Many of the
changes are the result of rule changes that were submitted as
amendments to the North Dakota regulatory program and approved by OSM
in the April 28, 1997, and March 16, 1999, Federal Registers (62 FR
22889, and 64 FR 12896), giving mining companies options for proving
reclamation success and revising requirements for tree and shrub
standards. The corresponding changes are now being incorporated into
the policy document. Other changes include clarifications, adjusting
crop yield data, adding factors for adjusting yield standards,
requiring plant species to be predominantly native, providing
consistency for diversity and seasonality, prescribing the number of
species for tame pastureland and clarifying sampling procedures. North
Dakota intended to revise its policy document to reflect changes to its
statute and regulations and make it consistent with corresponding
Federal regulations and SMCRA.
EFFECTIVE DATE: May 17, 2001.
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. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations
I. Background of the North Dakota Program
On December 15, 1980, the Secretary of the Interior conditionally
approved the North Dakota program. 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). North Dakota's ``Standards for
Evaluation of Revegetation Success and Recommended Procedures for Pre-
and Postmining Vegetation Assessments,'' hereafter referred to as the
``policy document'' was submitted to OSM on June 1, 1988. The policy
document was submitted to satisfy the requirements of 30 CFR
816.116(a)(1). The Federal regulations at 30 CFR 816.116(a)(1) require
that regulatory authorities select revegetation success standards and
statistically valid techniques for determining revegetation success and
include them in its approved regulatory program. The policy document
satisfies both these requirements. OSM's approval of the policy
document was published in the March 10, 1989, Federal Register (46 FR
10141). Subsequent revisions to the policy document were approved by
OSM on February 17, 1994, and January 8, 1999.
The North Dakota regulatory program contains specific rules
governing standards for success of various postmining land uses in NDAC
69-05.2-22-07. These rules have been approved by OSM as being
consistent with 30 CFR 816.111 and 816.116. North Dakota's policy
document must be consistent with these State requirements.
You can find other actions concerning North Dakota's program and
program amendments at 30 CFR 934.15 and 934.16.
II. Submission of the Proposed Amendment
By letter dated March 16, 2000, North Dakota sent us an amendment
to its program (North Dakota State Program Amendment XXIX),
administrative record No. ND-DD-01) under SMCRA (30 U.S.C. 1201 et
seq.). The amendment revises North Dakota's revegetation policy
document. Many of the changes are made to incorporate rule changes that
were approved by OSM on April 28, 1997, and March 16, 1999, pertaining
to the new option of proving reclamation success for three out of five
years, starting no sooner than the eighth year of the responsibility
period and revised reclamation success standards for woodlands and
shelter belts.
In addition to revisions that are made as a result of rule changes
previously approved by OSM, numerous other changes are also proposed.
These changes include (1) clarifying the objectives section, (2) adding
provisions to adjust North Dakota Agricultural Statistic Service crop
yield data to reflect certain management practices, (3) including other
factors, in addition to precipitation and temperature, in developing a
cropland and/or tame pastureland regression equation to climatically
adjust yield standards, (4) adding a statement to the native grassland
section that established plant species must be predominantly native,
(5) providing more consistency for species that must be present on tame
pastureland, and (7) clarifying sampling procedures regarding when
plant growth forms must be weighed separately. Some example
calculations were also revised to better reflect premine conditions
found at most of the mines. Editorial changes were made to correct
errors in statistical formulas and revisions were made to the
objectives section to clarify when certain requirements became
effective.
We announced receipt of the proposed amendment in the March 31,
2000, Federal Register (65 FR 17211). 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-DD-04). We did not hold a public hearing or meeting because no
one requested one. The public comment period ended at 4 pm m.d.t. May
1, 2000.
III. Director'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. We are
approving the amendment revising
[[Page 27456]]
North Dakota's Revegetation Policy Document (``Standards for Evaluation
of Revegetation Success and Recommended Procedures for Pre- and
Postmining Vegetation Assessments'') as described below.
1. Numerous Revisions To Reflect Changes to Rules Governing
Requirements for Tree and Shrub Standards and Options for Proving
Reclamation Success, Previously Approved by OSM as Amendments to the
North Dakota Regulatory Program
a. OSM approved amendments to the North Dakota regulatory program
in the April 28, 1997, Federal Register (62 FR 22889) revising NDAC 69-
05.2-22-07. Revegetation standards for reclaimed woodlands and
shelterbelts require that at least eighty percent of the trees, shrubs
and half-shrubs counted for meeting standards to be in place for at
least six years. New rule language states this standard will be deemed
satisfied if the mine operator demonstrates that no tree, shrub or
half-shrub replanting has occurred during the last six years of the
responsibility period. This new language allows mining companies to
count all shrubs on reclaimed lands that are established by natural
regeneration during the entire revegetation responsibility period. The
policy document is revised to reflect these approved changes.
b. OSM approved an amendment to the North Dakota regulatory program
in the March 16, 1999, Federal Register (64 FR 12896) revising NDAC 69-
05.2-22-07. This change gave mining companies the option of proving
reclamation success for three out of five consecutive years, starting
no sooner than the eighth year of the responsibility period. The
responsibility period runs for at least ten years from the date
reclaimed lands are seeded. Mining companies still have the option of
proving reclamation success by meeting standards for the last two
consecutive growing seasons of the responsibility period. The policy
document is revised to reflect this approved change.
2. Minor Editorial Revisions to the Policy Document
a. Changing Soil Conservation Service (SCS) to Natural Resources
Conservation Service (NRCS)
b. Citing both NRCS and SCS regarding consultation,
c. Updating the title of the NRCS National Range and Pasture
Handbook (1997),
d. Correcting rule citations,
e. Changing the document to reflect that three years required for
crop production on prime farmlands need not necessarily be consecutive
years.
These changes are minor and will not make North Dakota's
revegetation policy document less effective than the Federal provisions
contained in 30 CFR 816.111 and 816.116.
3. Adding Clarification or Improving Examples Given
a. Improving the examples provided, by reformatting and adding a
standard t-test formula for convenience,
b. Clarifying when to use North Dakota Agricultural Service annual
county yield data for alfalfa hay yield versus all other hay yield
information when evaluating hayland/tame pastureland vegetation
production,
c. Clarifying sampling of representative cropland strips, and
d. Clarifying that hand clipped production samples must be
separated by growth forms only when used for assessing seasonality.
These changes are mostly clarifications, added explanations, or
changes to improve existing examples. We find that they will not make
North Dakota's revegetation policy document less effective than the
Federal provisions contained in 30 CFR 816.116.
4. Approved Grazing on Native Grasslands
North Dakota proposed adding a statement to Section D. Native
Grasslands encouraging the use of approved grazing on native grasslands
during the responsibility period. However, initial grazing plans must
be approved by the State in accordance with NDAC 69-05.2-22-06. This
statement is consistent with State regulations.
5. Native Grasslands Must Be Predominantly Native Cool and Warm Season
Grasses
North Dakota proposed adding a statement that native grasslands
must be predominantly native cool and warm season grasses and other
appropriate plant species in the approved seed mixtures. This statement
is consistent with 30 CFR 816.111 which requires the use of species
native to the area, or of introduced species where desirable and
necessary to achieve the approved postmining land use.
6. Effective Date of Rules That Required Vegetation Measurements
In the Objectives section, North Dakota proposes clarifying the
applicability of the revegetation success standards and time frames for
evaluation to lands disturbed under the State program both prior to and
following the passage SMCRA. This includes language that August 1,
1980, was the effective date of rules that required vegetation
measurements to be taken in the last two growing seasons of the
revegetation responsibility period. The effective date of the option to
prove reclamation success for three out of five consecutive years
starting in the eighth year of the revegetation liability period was
also added. These dates are the effective dates contained in the
existing North Dakota regulations.
7. Vegetative Composition Requirements for Tame Pasturelands at Bond
Release
North Dakota proposes to revise Section II-E to establish
percentages for the vegetative composition requirements for tame
pasturelands at bond release, consistent with the fish and wildlife
habitat requirements, (previously there was no defined percentage for
individual species). This ensures that the seeded species are present
at the time of final bond release consistent with 30 CFR 816.111.
8. Predicting Estimated Summer Fallow or Continuous Cropping Yields
North Dakota proposes to revise the Cropland Section to include
county-specific regression/correlation equations to predict the
estimated summer fallow or continuous cropping yields based on annual
county yields. The regression/correlation equations are based on long
term county data. The equations were developed for the years of 1996
and later because the NDASS discontinued reporting individual yield
values for summer fallow or continuous cropping after 1995.
The existing Cropland Section of the policy document, which applies
to both prime farmland and non-prime farmland, allows the use of North
Dakota Agricultural Statistics Service (NDASS) county cropland yields.
This is consistent with 30 CFR 816.116(b)(2) which requires that for
areas developed for use as cropland, crop production on the revegetated
area shall be at least equal to that of a reference area or such other
success standards approved by the regulatory authority.
For prime farmland only, 30 CFR 823.15(b)(7) states that Reference
crop yields for a given crop season are to be determined from--(i) The
current yield records of representative local farms in the surrounding
area, with concurrence by the U.S. Soil Conservation Service (now the
Natural Resources Conservation Service (NRCS); or (ii) The average
county yields recognized by the U.S. Department of Agriculture, which
have been adjusted by the U.S. (NRCS) for local yield variation within
the
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county that is associated with differences between nonmined prime
farmland soil and all other soils that produce the reference crop.
The prime farmland regulations at 30 CFR 823.15(b)(8) state that
under either procedure in Paragraph (b)(7) of this Section, the average
reference crop yield may be adjusted, with the concurrence of the U.S.
Soil Conservation Service (NRCS), for--(i) Disease, pest, and weather-
induced seasonal variations; or (ii) Differences in specific management
practices where the overall management practices of the crops being
compared are equivalent.
North Dakota's proposed county-specific regression/correlation
equations to predict the estimated summer fallow or continuous cropping
yields based on annual county yields are appropriate for creating
technical standards. In accordance with 30 CFR 823.15(b)(8)(ii) for
prime farmland standards (which are included under this section of the
guidelines) the NRCS must concur with the proposed adjustment of
average reference crop yields for differences in specific management
practices where the overall management practices of the crops being
compared are equivalent. In response to this requirement North Dakota
provided a letter dated April 6, 2000, documenting the NRCS's
concurrence with the proposed method for adjusting county yield data
for summer fallow or continuous cropping.
9. Revise Correction Method 3 (Cropland) and 2 (Tame Pastureland)
North Dakota proposes to revise Correction Method 3 in Section II-
C, Cropland, and Correction Method 2 in Section II-E, Tame Pastureland,
to allow the use of other pertinent data, as well as precipitation and
temperature to calculate a correction factor. It also allows the use of
other formulas developed by the State besides regression equations.
30 CFR 816.116(b)(2) requires that for areas developed for use as
cropland, crop production on the revegetated area shall be at least
equal to that of a reference area or such other success standards
approved by the regulatory authority. The approved policy document,
sections II-C, Cropland, and II-E, Tame Pastureland, contain correction
methods that allow the use of NDASS data in conjunction with
precipitation and temperature data to calculate a correction factor.
The regression equations will be developed or updated by the State.
They would predict a deviation from the long term average NDASS yields
based on current precipitation and growing season temperature.
For prime farmlands, 30 CFR 823.15(b)(7) states that Reference Crop
yields for a given crop season are to be determined from--(i) The
current yield records of representative local farms in the surrounding
area, with concurrence by the U.S. Soil Conservation Service (NRCS); or
(ii) The average county yields recognized by the U.S. Department of
Agriculture, which have been adjusted by the U.S. Soil Conservation
Service (NRCS) for local yield variation within the county that is
associated with differences between nonmined prime farmland soil and
all other soils that produce the reference crop.
The prime farmland regulations at 30 CFR 823.15(b)(8) require that
under either procedure in Paragraph (b)(7) of this Section, the average
reference crop yield may be adjusted, with the concurrence of the U.S.
Soil Conservation Service (NRCS), for--(i) Disease, pest, and weather-
induced seasonal variations; or (ii) Differences in specific management
practices where the overall management practices of the crops being
compared are equivalent.
In support of the proposed language to allow the use of other
pertinent data in developing correction factors for any regression
equations that are developed, North Dakota has stated that pertinent
data includes other factors such as number of days during critical
parts of the growing season where the maximum temperature exceeds a
certain level, the incidence of widespread crop disease and/or insect
damage. Based on the information provided and the NRCS concurrence
discussed below the proposed revision of the two correction methods is
appropriate.
Pursuant to 30 CFR 823.15(b)(8) for prime farmland standards (which
are included under the Cropland section of the guidelines) North Dakota
has provided a letter dated April 6, 2000 (administrative record No.
ND-DD-05), documenting the NRCS's concurrence with the proposed changes
to the correction methods.
10. Diversity and Seasonality Standards for Native Grassland
North Dakota proposes to revise its diversity and seasonality
standards contained in Section II-D, for Native Grassland. As proposed
the State would add an introduction to the diversity standard that the
presence of adequate plant species diversity in the reclaimed native
grasslands is of much importance because it reflects environmental/
community stability and ensures some degree of sustainability under the
intended land use. Both cool and warm season grass species are
important and needed in native grasslands. Therefore, reclaimed native
grasslands must be established predominantly with both cool and warm
season native grass species and other appropriate plant species in the
approved seed mixtures. The diversity and seasonality standards that
follow require that either production or cover data be used to show
that the standards have been achieved.
The diversity and seasonality standards can be based on the range
sites that occurred in the premine native grassland tract or they can
be based on the range sites that are expected to develop on the
reclaimed tract. However, the same methodology must be used when
measuring both diversity and seasonality in each of the years these
measurements are taken on a given tract. That is if the diversity
standard is based on the premine range sites, the seasonality standard
must also be based on the premine range sites.
If the diversity and seasonality standards will be based on the
range sites that are expected to develop on the reclaimed tract, the
discussion of this method in the permit application must address the
projected native grassland topsoil and subsoil respread thicknesses and
the maximum postmining slopes, with a reference to the postmining area
slope map provided in another section of the permit. Soils of the
reclaimed tract may be characterized by evaluating the premine soil
survey data and the expected mixing that will occur. Following
revegetation, a field assessment will be needed to verify the site
types on the reclaimed native grassland.
In addition, all the examples for calculating diversity have been
revised to reflect the revised diversity standards.
The seasonality standard is also being revised. Seasonality will be
based on the percentage of warm season grasses because cool season
grasses are very competitive and generally dominate a seeded stand in
the Northern Great Plains. To evaluate seasonality of reclaimed native
grassland, one of two following standards may be used. Both standards
allow the use of either the pre-mine range sites or the range sites
that are expected to develop on the reclaimed tract. As previously
noted, the same methodology used to measure diversity must be used to
measure seasonality. Both standards are based on the percent
composition of warm season grasses relative to total species
composition. The example seasonality calculations have also been
revised to reflect the revised standard.
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The Federal regulations at 30 CFR 816.111(a)(1) require 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. 30 CFR 816.111(b)(2) requires that
the reestablished plant species shall have the same seasonal
characteristics of growth as the original vegetation. Beyond this
language no specific success standards are provided for diversity or
seasonality. This is left to the discretion of the regulatory
authority. North Dakota's proposed diversity and seasonality standards
are consistent with the Federal regulations and are no less effective.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (administrative
record No. ND-DD-03), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested on March 30, 2000,
comments on the amendment from various Federal agencies with an actual
or potential interest in the North Dakota program (administrative
record No. ND-DD-03).
Thomas E. Jewett, State Conservationist for the U.S. Department of
Agriculture's Natural Resources Conservation Service (NRCS), in
addition to stating in his April 6, 2000 letter to North Dakota
Reclamation Division Director James R. Deutsch, that ``We concur with
all proposed changes. * * *'' further commented on recent changes to
NRCS cropland productivity indexes that are used in North Dakota's
revegetation document. In an April 11, 2000 letter to OSM Casper Field
Office Director, Guy Padgett, North Dakota Reclamation Division
Director James R. Deutsch stated, ``Please be advised we plan to
incorporate the updated indexes into the document the next time some
changes are made.''
State Conservationist Thomas E. Jewett, further responded with a
May 2, 2000 letter (administrative record No. ND-DD-06) to OSM Casper
Field Office Director, Guy Padgett, thatNRCS is in the process of
developing Ecological Site Descriptions to replace Range Site
Descriptions. It also questioned what reference sites might be used if
soil chemistry or other critical soil parameters were sufficiently
altered on reclaimed areas.
NRCS also raised the possibility that a native grassland reference
area may be located on rangeland that is in poor condition. In
addition, that NRCS references should be made to specific parts of the
Field Office Technical Guide. Finally, that vegetation document text
references should be to the current name of the agency, the Natural
Resources Conservation Service, and not to its former name, the Soil
Conservation Service.
In his June 23, 2000 response (administrative record No. ND-DD-07)
to Mr. Jewett's May 2, 2000 letter, the director of the Reclamation
Division of the North Dakota Public Service Commission, James R.
Deutsch, stated that: (1) He was aware that Ecological Site
Descriptions will be replacing Range Site Descriptions but that it
would be several years at which time he would decide if it is necessary
to revise the revegetation document accordingly; (2) that a reference
area and a reclaimed tract must receive management that is equivalent
in effect during the revegetation responsibility period; and (3) that
North Dakota will review the bibliography and references for possible
changes with the next revision to the revegetation document.
OSM concurs with Mr. Deutsch's response to Mr. Jewett's concerns.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the
amendment from EPA (administrative record No. ND-DD-03). EPA did not
respond to our request.
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 March 30, 2000, we requested comments on North Dakota's
amendment (administrative record No. XXIX), but neither responded to
our request.
V. Director's Decision
Based on the above findings, we approve the amendment sent to us by
North Dakota, as revised on March 16, 2000.
We approve, as discussed in: finding No. 1, Minor Editorial
changes, finding No. 2, concerning II-C, Cropland; finding No. 3,
concerning II-C and II-E, Cropland and Tame Pastureland; and finding
No. 4, concerning Native Grassland.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 934, which codify decisions concerning the North Dakota
program. We are making his final rule effective immediately to expedite
the State program amendment process and to encourage States to make
their programs conform with the Federal standards. SMCRA requires
consistency of State and Federal standards.
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), 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
This rule doe 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)).
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
[[Page 27459]]
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 significant economic impact, the Department
relied upon the data and assumptions for the counterpart Federal
regulations.
6. Unfunded Mandates
OSM has determined and certifies under the Unfunded Mandates Reform
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of
$100 million or more in any given year on any local, State, or Tribal
governments or private entities.
List of Subjects in 30 CFR Part 934
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 3, 2001.
Brent Wahlquist,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 934 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 as
follows:
Sec. 934.15 Approval of North Dakota regulatory program amendments.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publication Citation/description
------------------------------------------------------------------------
* * * *
* * *
March 16, 2000................ May 17, 2001..... Standards for
Evaluation of
Revegetation Success
and Recommended
Procedures for Pre-
and Postmining
Vegetation
Assessments.
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[FR Doc. 01-12456 Filed 5-16-01; 8:45 am]
BILLING CODE 4310-05-P