[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63681-63684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30358]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 914
[SPATS No. IN-143-FOR; State Program Amendment No. 98-5]
Indiana 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 an amendment to the Indiana regulatory program (Indiana
program) under the Surface Mining Control and Reclamation Act of 1977
(SMCRA). Indiana proposed revisions to rules
[[Page 63682]]
concerning revegetation standards for success for nonprime farmland for
surface and underground coal mining and reclamation operations under
Indiana Code (IC) 14-34. Indiana intends to revise its program to be
consistent with the corresponding Federal regulations.
EFFECTIVE DATE: November 22, 1999.
FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director,
Indianapolis Field Office, Office of Surface Mining, Minton-Capehart
Federal Building, 575 North Pennsylvania Street, Room 301,
Indianapolis, Indiana 46204-1521. Telephone (317) 226-6700. Internet:
[email protected]
SUPPLEMENTARY INFORMATION:
I. Background on the Indiana 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 on the Indiana Program
On July 29, 1982, the Secretary of the Interior conditionally
approved the Indiana program. You can find background information on
the Indiana program, including the Secretary's findings, the
disposition of comments, and the conditions of approval in the July 26,
1982, Federal Register (47 FR 32107). You can find later actions on the
Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.
II. Submission of the Proposed Amendment
By letter dated August 2, 1999 (Administrative Record No. IND-
1664), Indiana sent us an amendment to its program under SMCRA. This
amendment replaces State Program Amendment No. 95-2, which we approved
in the May 30, 1995, Federal Register (60 FR 28069). Indiana sent the
amendment, which amends the Indiana Administrative Code (IAC), at its
own initiative.
We announced receipt of the amendment in the August 16, 1999,
Federal Register (64 FR (44448)). In the same document, we opened the
public comment period and provided an opportunity for a public hearing
or meeting on the adequacy of the amendment. The public comment period
closed on September 25, 1999. Because no one requested a public hearing
or meeting, we did not hold one.
III. Director's Findings
Following, under SMCRA and the Federal regulations at 30 CFR 732.15
and 732.17, are our findings concerning the amendment.
A. Withdrawal of Previously Approved Amendment
Indiana notified us in its letter dated July 24, 1997
(Administrative Record No. IND-1670), that the statutory time frame for
approving State Program Amendment No. 95-2 had expired prior to final
approval. We approved this amendment, dated May 3, 1995 (Administrative
Record No. IND-1460), on September 14, 1995 (60 FR 47692). Since
Indiana did not adopt the amendment, we are removing our approval and
amending 30 CFR 914.15 to reflect this decision.
B. 310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground)
Revegetation Standards for Success for Nonprime Farmland
Since the revisions proposed for surface mining at Sec. 12-5-
64.1(c) are identical to those being proposed for underground mining at
Sec. 12-5-128.1(c), they will be combined for ease of discussion. These
subsections provide the standards for success which are to be applied
under the approved postmining land uses.
1. Organizational and Reference Changes
Indiana proposed paragraph notation changes to reflect the
organizational changes made throughout subsections (c). Additionally,
Indiana proposed revisions throughout subsections (c) to correct the
reference to the ``Soil Conservation Service'' to the ``Natural
Resources Conservation Service.''
We find that the organizational and reference changes do not render
the Indiana regulations at 310 IAC 12-5-64.1/128.1 less effective than
the Federal regulations at 30 CFR 816.116/817.116.
2. Redesignations
Indiana proposed to redesignate existing subsections (c)(5),
(c)(6), (c)(7), and (c)(8) as subsections (c)(4), (c)(5), (c)(6), and
(c)(7), respectively. We find that the proposed redesignations do not
render the Indiana regulations at 310 IAC 12-5-64.1/128.1 less
effective than the Federal regulations at 30 CFR 816.116/817.116.
3. Relocation of Existing Provisions
Indiana proposed to delete the provisions at existing subsections
(c)(4) and redesignated subsections (c)(6). These provisions require
that if current Natural Resources Conservation Service predicted yield
by soil map units are used to determine production of living plants,
then the standard for success shall be a weighted average of the
predicted yields for each unmined soil type which existed on the permit
areas at the time the permit was issued. Indiana proposed to relocate
these provisions to existing subsections (c)(3)(B) and redesignated
subsections (c)(5)(B).
Indiana also proposed to delete the provisions at redesignated
subsections (c)(6) which require that once the method for establishing
the standards has been selected, it may not be modified without the
approval of the director of IDNR. Indiana proposed to relocate these
provisions to redesignated subsections (c)(5)(E).
We find that Indiana's relocation of these provisions does not
render the Indiana regulations less effective than the Federal
regulations and are approving the modifications.
4. Subsections (c)(3)(C), Pastureland Production Success Standards
Methodology
Indiana proposed to delete the language in existing subsections
(c)(3)(C) for determining production of living plants on pastureland
and replace it with the following:
(C) A target yield determined by the following formula: Target
Yield = NRCS Target Yield x (CCA/10 Year CA) where: NRCS Target
Yield = the average yield per acre, as predicted by the Natural
Resources Conservation Service, for the crop and the soil map units
being evaluated. The most current yield information at the time of
permit issuance shall be used, and shall be contained in the
appropriate sections of the permit application. CCA = the county
average for the crop for the year being evaluated as reported by the
United States Department of Agriculture crop reporting service, the
Indiana Agricultural Statistics Service. 10 Year CA = the ten (10)
Year Indiana Agricultural Statistics Service county average,
consisting of the year being evaluated and the nine (9) preceding
years.
The Federal regulations at 30 CFR 816/817.116(a)(2) require
standards for success to include criteria representative of unmined
lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking. As
discussed in the May 29, 1992, Federal Register (57 FR 22655),
Indiana's average county yield data contains data of yields from
previously mined lands. In letters dated February 26, 1992
(Administrative Record No. IND-1036 and IND-1037), OSM asked Indiana to
clarify the use of this data. In letters dated March 20, 1992
(Administrative Record No. IND-1051 and IND-1052), Indiana stated that
the amount of previously mined acreage
[[Page 63683]]
being farmed is so limited that the inclusion of these yields
essentially has no impact upon the overall yields calculated for the
county average. Indiana also stated that it used the average county
yield data as a weather correction factor applied to predicted soil
mapping unit yields.
In the May 29, 1992, Federal Register (57 FR 22655, finding No.
1.c.), we found that the use of the Indiana average county yield data
as the sole standard for determining success of revegetation would be
less effective than the Federal regulations at 30 CFR 816/
817.116(a)(2). However, we found that the use of Indiana's average
county yield data as a correction factor would not be inconsistent with
the Federal regulations.
The currently proposed methodology is an acceptable way to
calculate production standards for non-prime farmland pastureland. This
method adjusts the weighted production standard based on soil type by
using a factor derived by the county average and an average of the
historical county average. The weighted production standard is already
approved in the Indiana program and the adjustment of this standard by
county average data is reasonable. Thus, we find that the proposed
method for calculating success standards on nonprime farmland pasture
at 310 IAC 12-5-64.1/128.1(c)(3)(C) is no less effective than the
Federal requirements for success standards at 30 CFR 816/817.116(a)(2).
5. Subsections (c)(3)(D) and (c)(5)(D), Other Success Standards
Indiana proposed to add subsections (c)(3)(D) and (c)(5)(D) to
allow other methods approved by the director of the Indiana Department
of Natural Resources (IDNR) to be used in determining success of
production of living plants on revegetated nonprime farmland pasture
land. This language has the same meaning as the language Indiana
deleted at subsections (c)(3)(C) and (c)(5)(C). We previously approved
the provisions at (c)(3)(C) and (c)(5)(C) on May 29, 1992 (57 FR
22655), with the understanding that Indiana will request our approval
of other methods before using them in the Indiana program. By letters
dated March 20, 1992 (Administrative Record No. IND-1051 and IND-1052),
Indiana stated the IDNR will request OSM's approval for other standards
prior to their use in the Indiana program if they vary significantly
from the approved standards. Because the addition of the provisions at
subsections (c)(3)(D) and (c)(5)(D) does not substantially change the
approved Indiana program, we are approving them.
6. Subsections (c)(5)(C), Cropland Production Success Standards
Methodology
At redesignated subsections (c)(5)(C), Indiana proposed to delete
the existing language for determining production of living plants on
cropland and replace it with the following:
(C) A target yield determined by the following formula: Target
Yield = CCA x (NRCSP/NRCSC) where: CCA = the county average for
the crop for the year being evaluated as reported by the United
States Department of Agriculture crop reporting service, the Indiana
Agricultural Statistics Service. NRCSP = the weighted average of the
current Natural Resources Conservation Service predicted yield for
each croppable, unmined soil which existed on the permit at the time
the permit was issued. NRCSC = the weighted average of the current
Natural Resources Conservation Service predicted yield for each
croppable, unmined soil which is shown to exist in the county on the
most current county soil survey. A croppable soil is any soil which
the Natural Resources Conservation Service has defined as being in
capability class I, II, III, or IV.
The Federal regulations at 30 CFR 816/817.116(a)(2) require that
standards for success shall include criteria representative of unmined
lands in the area being reclaimed to evaluate the appropriate
vegetation parameters of ground cover, production, or stocking. The
above discussion in finding No. B.4, pertaining to Indiana's average
county yield data containing data of yields from previously mined lands
is also relevant to this proposed revision. As discussed in finding No.
B.4, we had previously found that the use of Indiana's average county
yield data as a correction factor was not inconsistent with the Federal
regulations.
Indiana's currently proposed methodology would modify the county
average by a factor that uses the NRCS predicted standard for permitted
unmined soils and an NRCS predicted standard that excludes mined land.
Therefore, we are approving the provisions proposed at 310 IAC 12-5-
64.1/128.1(c)(5)(C).
IV. Summary and Disposition of Comments
Public Comments
OSM requested public comments on the proposed amendment, but did
not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from various Federal agencies with an actual or potential
interest in the Indiana program (Administrative Record No. IND-1665).
By letter dated September 20, 1999, the Mine Safety and Health
Administration (MSHA) responded to our request by stating that the
proposed amendment does not conflict with MSHA regulations or policies
(Administrative Record No. IND-1675).
Environmental Protection Agency (EPA)
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
agreement from the EPA for those provisions of the program amendment
that relate to air or water quality standards issued under the
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean
Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Indiana
proposed to make in this amendment pertain to air or water quality
standards. Therefore, we did not ask the EPA to agree on the amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. IND-1665). The EPA
did not respond to our request.
State Historical 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 August 9, 1999, we requested comments on Indiana's
amendment (Administrative Record No. IND-1665), but neither responded
to our request.
V. Director's Decision
Based on the above findings, we approve the amendment as sent to us
by Indiana on August 2, 1999. We approve the rules that Indiana
proposed with the provision that they be published in identical form to
the rules submitted to and reviewed by OSM and the public.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 914, which codify decisions concerning the Indiana
program. We are making this final rule effective immediately to
expedite the State program amendment process and to encourage Indiana
to bring its program into conformity with the Federal standards. SMCRA
requires consistency of State and Federal standards.
For reasons discussed in finding III.A., we are also amending 30
CFR Part 914 by removing the approval of an amendment that Indiana
submitted on May 3, 1995.
[[Page 63684]]
VI. Procedural Determinations
Executive Order 12866
The Office of Management and Budget (OMB) exempts this rule from
review under Executive Order 12866 (Regulatory Planning and Review).
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, to the extent allowed by law, 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 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 30 CFR 730.11,
732.15, and 732.17(h)(10), decisions on State regulatory programs and
program amendments 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.
National Environmental Policy Act
This rule does not require an environmental impact statement since
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency
decisions on State regulatory program provisions do not constitute
major Federal actions within the meaning of section 102(2)(C) of the
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior 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 which is the subject of this rule is based upon
corresponding 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. Therefore, this rule will ensure that existing requirements
previously published 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 corresponding Federal regulations.
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 local, state, or tribal
governments or private entities.
List of Subjects in 30 CFR Part 914
Intergovernmental relations, Surface mining, Underground mining.
Dated: November 4, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR Part 914 is amended
as set forth below:
PART 914--INDIANA
1. The authority citation for Part 914 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 914.15 is amended in the table by removing the entire
entry having the date ``May 3, 1995'' in the ``Original amendment
submission date'' column, and by adding a new entry in chronological
order by ``Date of final publication'' to read as follows:
Sec. 914.15 Approval of Indiana regulatory program amendments.
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Original amendment submission date Date of final publication Citation/description
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August 2, 1999.......................... November 22, 1999.................... 310 IAC 12-5-64.1(c) and
128.1(c).
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[FR Doc. 99-30358 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-05-P
