[Federal Register Volume 60, Number 15 (Tuesday, January 24, 1995)]
[Rules and Regulations]
[Pages 4541-4544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-1707]
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[[Page 4542]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 918
Louisiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Louisiana
regulatory program (hereinafter referred to as the ``Louisiana
program'') under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Louisiana proposed revisions to its rules and provided a
clarifying policy statement, both of which pertain to revegetation
success standards on reclaimed land developed for use as forestry. The
amendment is intended to revise the Louisiana program to be consistent
with the corresponding Federal regulations.
EFFECTIVE DATE: January 24, 1995.
FOR FURTHER INFORMATION CONTACT:
James H. Moncrief, telephone: (918) 581-6430.
SUPPLEMENTARY INFORMATION:
I. Background on the Louisiana Program
On October 10, 1980, the Secretary of the Interior conditionally
approved the Louisiana program. General background information on the
Louisiana program, including the Secretary's findings, the disposition
of comments, and the conditions of approval of the Louisiana program
can be found in the October 10, 1980, Federal Register (45 FR 67340).
Subsequent actions concerning Louisiana's program and program
amendments can be found at 30 CFR 918.15 and 918.16.
II. Proposed Amendment
By letter dated November 2, 1994, Louisiana submitted a proposed
amendment to its program pursuant to SMCRA (administrative record No.
LA-351). Louisiana submitted the proposed amendment in response to the
required program amendments at 30 CFR 918.16 (a) and (b). The provision
of the Louisiana Surface Mining Regulations (LSMR) that Louisiana
proposed to revise was LSMR 5423.B.4.a, concerning standards for
success of revegetation at final bond release on reclaimed lands
developed for forestry. Louisiana also proposed an associated Policy
Statement No. PS-5, Revegetation Success Standards for Tree and Shrub
Stocking on Lands With a Postmining Land Use of Forestry. In addition,
Louisiana proposed to recodify LSMR 53101 through 53139 as LSMR 5401
through 5439, and LSMR 67101 through 67139 as LSMR 6801 through 6839.
OSM announced receipt of the proposed amendment in the November 23,
1994, Federal Register (59 FR 60342), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. LA-351.02).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on December 23, 1994.
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 Louisiana on November 2, 1994, is no less effective than
the corresponding Federal regulations. Accordingly, the Director
approves the proposed amendment.
1. Nonsubstantive Revisions to Louisiana's Rules
Louisiana proposed revisions to the following previously-approved
rules that are nonsubstantive in nature.
a. Recodification of Louisiana's rules. In order to be consistent
with the Louisiana State Code, Louisiana proposed recodification of
segments of its rules. In Chapter 53, permanent program performance
standards for surface mining activities, LSMR 53101 through 53139 were
recodified as LSMR 5401 through 5439. In Chapter 67, special rules
applicable to surface coal mining review hearings and appeals, LSMR
67101 through 67139 were recodified as LSMR 6801 through 6839. No
revisions of the text of these rules, with the exception of those
discussed in finding No. 2 below, were proposed by Louisiana.
Because the proposed recodification is nonsubstantive in nature,
the Director finds that the recodification does not cause Louisiana's
rules at LSMR 5401 through 5439 and LSMR 6801 through 6839 to be less
effective than the counterpart Federal regulations at 30 CFR Part 816
and the Federal administrative procedures at 43 CFR Part 4. The
Director approves the recodification.
b. LSMR 5423.B.4. At LSMR 5423.B.4, Louisiana proposed to delete
the phrase ``technical documents.'' LSMR 5423.B.4.a (discussed below)
specifies technical success standards for areas developed for forestry.
At LSMR 5423.B.1 through 3, for land uses other than commercial
forestry, an applicant is given the option of developing revegetation
success standards from reference areas, historic records, or technical
documents. Because Louisiana, at LSMR 5423.B.4, does not allow for the
development of success standards based on technical documents, the
proposed deletion of the phrase ``technical documents'' is an editorial
revision that eliminates confusion.
Because this proposed revision is nonsubstantive in nature, the
Director finds that this proposed rule is no less effective than the
counterpart Federal regulations at 30 CFR 816.116(b)(3). The Director
approves this rule.
2. LSMR 5423.B.4.a and Policy Statement PS-5, Standards for Success of
Revegetation at Final Bond Release on Reclaimed Lands Developed for Use
as Forestry
At 30 CFR 918.16(a), OSM required that Louisiana revised LSMR
5423.B.4.a (previously codified as 53123.B.4.a), or otherwise modify
its program, to require that trees and shrubs that will be used in
determining the success of stocking and the adequacy of the plant
arrangement shall (1) have utility for the approved postmining land use
and (2) be healthy. At 30 CFR 918.16(b), OSM required that Louisiana
revise LSMR 5423.B.4.a, or otherwise modify its program, to either (1)
clarify, by policy statement, that proposed LSMR 5423.B.4.a requires
that 100 percent (i.e., all countable stems) of the trees must be in
place for a minimum of 60 percent of the responsibility period or (2)
add the requirement that at least 80 percent of the trees and shrubs
used to determine success of revegetation shall have been in place for
60 percent of the applicable minimum period of responsibility (finding
Nos. 1.b and 1.c, 59 FR 48171, September 20, 1994). Louisiana's
proposed revisions in response to these required amendments are
discussed below.
a. LSMR 5423.B.4.a. Louisiana proposed to revise LSMR 5423.B.4.a by
adding the requirements that the trees that will be used in determining
the success of stocking and the adequacy of the plant arrangement shall
(1) ``have utility for the approved postmining land use'' and (2) ``be
healthy.''
The Federal regulations at 30 CFR 816.116(b)(3)(ii) include the
requirements that the trees and shrubs used in determining the success
of stocking and the adequacy of the plant arrangement shall (1) have
utility for the approved postmining land use and (2) be healthy.
[[Page 4543]]
The Director finds that Louisiana's proposed revision of LSMR
5423.B.4.a is substantively identical to and no less effective than the
Federal regulations at 30 CFR 816.116(b)(3)(ii) in meeting SMCRA's
requirements. Therefore, the Director approves the proposed revisions
and removes the required amendment at 30 CFR 918.16(a).
b. Policy Statement PS-5. Louisiana's existing LSMR 5423.B.4.a
requires that the technical success standards for revegetation success
on lands reclaimed for use as forestry shall be 450 well-distributed
free to grow live pine trees per acre of the same age or 250 well-
distributed live hardwood trees per acre of the same age and the
countable stems shall be a minimum of 3 years old.
Louisiana proposed Policy Statement, PS-5, Revegetation Success
Standards for Tree and Shrub Stocking on Lands with a Postmining Land
Use of Forestry, to clarify that the requirements in LSMR 5423.B.4.a
mean that 100 percent (i.e., all countable stems) must be in place for
a minimum of 60 percent of the responsibility period (i.e., 3 of the 5
year minimum period of responsibility).
The Federal regulations at 30 CFR 816.116(b)(3)(ii) include the
requirement that, 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.
The Director finds that Louisiana's proposed LSMR 5423.B.4.a, as
clarified by its Policy Statement PS-5, is no less effective than the
Federal Regulations at 30 CFR 816.116(b)(3)(ii) in meeting SMCRA's
requirements. Therefore, the Director approves the proposed Policy
Statement PS-5 and removes the required amendment at 30 CFR 918.16(b).
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 response to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Purusant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Louisiana program (administrative record No.
LA-351.01).
The U.S. Bureau of Mines responded on November 30, 1994, that it
had no comments (administrative record No. LA-351.03).
The U.S. Army Corps of Engineers responded on December 1, 1994,
that the proposed amendment was satisfactory (administrative record no.
LA-351.04).
The U.S. Fish and Wildlife Service responded on December 2, 1994,
that it had no objection to implementation of the proposed amendment
(administrative record No. LA-351.05).
The U.S. Natural Resources Conservation Service (NRCS) responded on
December 9, 1994, that Louisiana's requirement for 70 percent ground
cover is 5 percent below the NRCS standard for ground cover of 75
percent (administrative record No. LA-351.08). Louisiana's requirement
at LSMR 5423.B.4.a, that vegetative ground cover shall not be less than
70 percent, was previously approved by OSM (57 FR 48726, October 28,
1992). Louisiana's existing LSMR 5417.A.4, applicable to revegetation
on land reclaimed for any use, requires that a vegetative cover be
established that is capable of stabilizing the soil surface from
erosion. Therefore, the requirement for 70 percent ground cover on land
developed for forestry is a minimum standard that must be increased if
it is insufficient to control erosion. In addition, Louisiana requires
at LSMR 5421.A that suitable mulch and other soil stabilizing practices
shall be used on all regarded and topsoiled areas to control erosion,
promote germination of seeds, or increase the moisture content of soil.
LSMR 5417.A.4 and LSMR 5421.A are no less effective than the
requirements of the counterpart Federal regulations at, respectively,
30 CFR 816.111(a)(4) and 816.114. The Federal regulations at 30 CFR
816.116(b)(3)(iii) require, for areas to be developed for forestry,
that vegetative ground cover shall not be less than that required to
achieve the approved postmining land use. Louisiana's standard for
ground cover at LSMR 5423.B.4.a, in conjunction with the requirements
at LSMR 5417.A.4 and LSMR 5421.A, is consistent with and no less
effective in meeting SMCRA's requirements than the Federal regulations
at 30 CFR 816.116(b)(3)(iii). Therefore, the Director is not, in
response to this comment, requiring that Louisiana revise the standard
at LSMR 5423.B.4.a for ground cover on areas to be developed for
forestry.
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that relate to air or water quality
standards promulgated 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 Louisiana proposed to make in its
amendment pertain to air or water quality standards. Therefore, OSM did
not request EPA's concurrence.
Pursuant to 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from EPA (administrative record No. LA-351.01). EPA
responded on December 8, 1994, that it had no objections to OSM's
approval of the proposed amendment (administrative record No. LA-
351.07).
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.
LA-351.01). ACHP did not respond to OSM's request. The SHPO responded
on December 8, 1994, that it had no comments (administrative record No.
LA-351.06).
V. Director's Decision
Based on the above findings, the Director approves Louisiana's
proposed amendment as submitted on November 2, 1994.
The Director approves, as discussed in: finding No. 1.a,
recodification of a segment of Louisiana's rules; finding No. 1.b, a
nonsubstantive editorial revision at LSMR 5423.B.4; finding No. 2.a,
LSMR 5423.B.4.a, concerning trees that will be used in determining the
success of stocking and the adequacy of the plant arrangement on
reclaimed lands developed for use as forestry; and finding No. 2.b,
Policy Statement PS-5, concerning clarification of the revegetation
success standards in LSMR 5423.B.4.a.
The Director approves the rules as proposed by Louisiana with the
provision that they be fully promulgated in identical form to the rules
submitted to and reviewed by OSM and the public.
The Federal regulations at 30 CFR part 918, codifying decisions
concerning the Louisiana 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. [[Page 4544]] 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 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (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 12550) 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
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 of 1969 (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
significant economic impact, the Department relied upon the data and
assumptions for the counterpart Federal regulations.
List of Subjects in 30 CFR Part 918
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 13, 1995.
Charles E. Sandberg,
Acting Assistant Director, Western Support 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 918--LOUISIANA
1. The authority citation for part 918 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 918.15 is amended by adding paragraph (e) to read as
follows:
Sec. 918.15 Approval of amendments to the Louisiana regulatory
program.
* * * * *
(e) Revisions to the following rules, as submitted to OSM on
November 2, 1994, are approved effective January 24, 1995:
LSMR 5423.B.4.a, revegetation success standards on reclaimed land
developed for use as forestry, and
Policy Statement PS-5, Revegetation Success Standards for Tree and
Shrub Stocking on Lands with a Postmining Land Use of Forestry.
3. Section 918.16 is amended by revising the introductory
paragraph, removing and reserving paragraph (a), and removing paragraph
(b) to read as follows:
Sec. 918.16 Required program amendments.
Pursuant to 30 CFR 732.17(f)(1), Louisiana is required to submit to
OSM by the specified date the following written, proposed program
amendment, or a description of an amendment to be proposed, that meets
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for
enactment that is consistent with Louisiana's established
administrative or legislative procedures.
(a) [Reserved].
[FR Doc. 95-1707 Filed 1-23-95; 8:45 am]
BILLING CODE 4310-05-M
