01-31683. Iowa Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

We, the Office of Surface Mining Reclamation and Enforcement (OSM), are approving an amendment to the Iowa regulatory program (Iowa program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The Iowa Department of Agriculture and Land Stewardship, Division of Soil Conservation, Mines and Minerals Bureau (Division or Iowa) proposed revisions to its April 1999 revegetation success guidelines concerning normal husbandry practices; minimum planting arrangements and tree and shrub stocking requirements for recreational, wildlife, and forested lands; and criteria for dry weight determinations for corn, soybean, oat, and wheat crops. Iowa intends to revise its program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE:

December 27, 2001.

FOR FURTHER INFORMATION CONTACT:

John W. Coleman, Office of Surface Mining, Mid-Continent Regional Coordinating Center, Alton Federal Building, 501 Belle Street, Alton, Illinois 62002. Telephone: [phone].

SUPPLEMENTARY INFORMATION:

I. Background on the Iowa Program

II. Submission of the Amendment

III. OSM's Findings

IV. Summary and Disposition of Comments

V. OSM's Decision

VI. Procedural Determinations

I. Background on the Iowa Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “ * * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Iowa program on January 21, 1981. You can find background information on the Iowa program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the January 21, 1981, Federal Register (46 FR 5885). You can find later actions on the Iowa program at 30 CFR 915.10, 915.15, and 915.16.

II. Submission of the Amendment

By letter dated August 17, 2001 (Administrative Record No. IA-446), Iowa sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Iowa sent the amendment in response to required program amendments at 30 CFR 915.16(b), (d), and (e). Iowa proposed changes to its April 1999 revegetation success guidelines entitled “Revegetation Success Standards and Statistically Valid Sampling Techniques.”

We announced receipt of the amendment in the September 24, 2001, Federal Register (66 FR 48841). 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 October 24, 2001. We did not receive any comments. Because no one requested a public hearing or meeting, we did not hold one.

During our review of the amendment, we identified concerns about a typographical error in a provision for interseeding at Section III.H.4.(c)(ii); the interpretation of the revegetation success standards for recreational, wildlife, and forested lands at Section IV.E; and the interpretation of the dry weight determination for grain samples at Section V.A.2(l). We notified Iowa of the error at Section III.H.4.(c)(ii) and explained our interpretation of its provisions at Sections IV.E and V.A.2(l) in a letter dated September 12, 2001 (Administrative Record No. IA-446.3A).

By letter dated September 28, 2001 (Administrative Record No. IA-446.5), Iowa agreed to correct the typographical error and concurred with our interpretation of its provisions at Sections IV.E and V.A.2(l).

III. OSM's Findings

This section contains our findings concerning the amendment to the Iowa program. We are making these findings in accordance with the criteria and procedural requirements of the Federal regulations at 30 CFR 732.15 and 732.17. Any revisions that we do not discuss below are minor wording changes or revised cross-references and paragraph notations to reflect organizational changes resulting from this amendment.

A. Normal Husbandry Practices

Section III, Part H of Iowa's April 1999 revegetation success guidelines describes normal husbandry practices that a permittee can use in the repair of rills and gullies without restarting the responsibility period for successful revegetation and bond liability. A permittee may address rill and gully erosion within the permit or partial permit area without restarting the responsibility period only if repairs are completed using the normal husbandry practice guidelines provided in this section. If the repair work requires augmented seeding, fertilization, or irrigation, the period of responsibility will restart. Normal husbandry practices do not include any temporary erosion control structures, such as silt fencing, straw, or hay bale dikes. This section includes requirements for terrace repair and maintenance; riprap repair and maintenance; land smoothing and reseeding; and liming, fertilizing, and interseeding.

The Federal regulations at 30 CFR 816.116(c)(4) for surface mining operations and 30 CFR 817.116(c)(4) for underground mining operations allow the regulatory authority, under specified conditions, to approve selective husbandry practices (excluding augmented seeding, fertilization, or irrigation) without extending the period of responsibility for revegetation success and bond liability. The regulatory authority must obtain prior approval from OSM in accordance with 30 CFR 732.17 that the practices are normal husbandry practices that can either be expected to continue as part of the postmining land use or will not reduce the probability of permanent revegetation success if the practices are discontinued after the responsibility period expires. Approved practices must be normal husbandry practices within the region for unmined lands having land uses similar to the approved postmining land use of the disturbed area. In the September 7, 1988, preamble for the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4), we discussed the type of documentation that the regulatory authority must submit to support its proposed normal husbandry practices (53 FR 34641). The regulatory authority must submit documentation that demonstrates that the practice is the usual or expected state, form, amount, or degree of management performed habitually or customarily to prevent exploitation, destruction, or neglect of the resource and to maintain a prescribed level of use or productivity on similar unmined lands. The documentation may include either conservation practice guidelines or agronomy guidelines and fact sheets for the management of unmined lands in the applicable State. The guidelines and fact sheets could be those distributed by the Natural Resources Conservation Service (NRCS) or other organizations with similar expertise in management of a State's natural resources, including agricultural lands.

In our final rule dated November 26, 1999, we did not approve Section III, Part H because Iowa did not submit documentation that demonstrated that the proposed normal husbandry practices were the usual or expected state, form, amount, or degree of management performed habitually or customarily to prevent exploitation, destruction, or neglect of the resources on similar unmined lands in the State (64 FR 66385). We required Iowa to either remove its guidelines for normal husbandry practices at Section III, Part H or submit documentation that supports the proposed normal husbandry practices. We codified this requirement at 30 CFR 915.16(b).

In response to the required program amendment at 30 CFR 915.16(b), Iowa made changes to Section III, Part H and submitted documentation for support of the proposed normal husbandry practices. The documentation included copies of five publications: (1) NRCS Conservation Practice Standard 600, Terrace; (2) NRCS Conservation Practice Standard 468, Lined Waterway or Outlet; (3) NRCS Conservation Practice Standard 466, Land Smoothing; (4) NRCS Conservation Practice Standard 590, Nutrient Management; and (5) Iowa State University Extension Service Publication Pm-1097, Interseeding and No-till Pasture Renovation. Based on the findings below, we are approving Iowa's normal husbandry practice guidelines at Section III, Part H and removing the required program amendment at 30 CFR 915.16(b).

1. Part H.1 provides that terrace repair and maintenance required because of specified occurrences will be considered normal husbandry practices and will not require restarting the responsibility period. First, the permittee may repair terraces damaged because of rainfall events that exceed their designed capacities. Second, the permittee may clean out and reestablish terrace flow lines during the first year or two after the initial terrace construction and seeding when sediment deposition into a terrace flow line exceeds the designed sediment storage capacity. Third, the permittee may clean out and reestablish terrace flow lines and repair or replace tile lines that have been plugged or crushed due to differential settling. Part H.1 includes a listing of the types of terrace repair and maintenance options that the State will consider as normal husbandry practices. Iowa submitted NRCS Conservation Practice Standard 600 (Terrace) to support these practices.

Based on the supporting documentation provided by Iowa, we find that the proposed guidelines for terrace repair and maintenance at Part H.1 meet the requirements of the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) for normal husbandry practices.

2. Part H.2 provides guidelines for riprap repair and maintenance on ditches and structures due to storm events that exceed the maximum design standard. Part H.2 includes a listing of the types of riprap repair and maintenance practices that Iowa will consider for normal husbandry practices. Iowa submitted NRCS Conservation Practice Standard 468 (Lined Waterway or Outlet) to support these practices.

Based on the supporting documentation provided by Iowa, we find that the proposed guidelines for riprap repair and maintenance on ditches and structures at Part H.2 meet the requirements of the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) for normal husbandry practices.

3. Part H.3 provides that normal husbandry practices can include limited land smoothing and reseeding as long as the individual areas are no larger than one acre in size and the cumulative acreage is no greater than 10 percent of the entire permit area. Iowa submitted NRCS Conservation Practice Standard 466 (Land Smoothing) to support these practices.

Based on the supporting documentation and the acreage limitations provided by Iowa, we find that Iowa's proposed guidelines for land smoothing and reseeding at Part H.3 meet the requirements of the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) for normal husbandry practices.

4. Part H.4 provides normal husbandry practices for applications of lime and fertilizer at paragraphs (a) and (b). It also provides normal husbandry practices for interseeding at paragraph (c).

Part H.4(a) and (b) provide, respectively, that lime and fertilizer applications may be made based on soil test recommendations for the appropriate crop or vegetation. Before any lime and fertilizer applications, the permittee must submit to the Division the original copies of the soil test recommendations and a map of the permit areas indicating where each soil sample was taken. Iowa requires the permittee to follow the lime and fertilizer maintenance application guidelines of NRCS Conservation Practice Standard 590 (Nutrient Management). For lime and fertilizer applications, the permittee must submit the original weight tickets for the applications to the Division at the times specified in section III, part B.3. If subsequent submittals of lime and fertilizer weight tickets prove that actual applications were in excess of the soil test recommendations, Iowa will restart the responsibility period. Iowa submitted NRCS Conservation Practice Standard 590 (Nutrient Management) to support its normal husbandry practice guidelines for liming and fertilizing.

Part H.4(c) requires the Division to approve any species to be interseeded before the seed is planted. The permittee must submit the original seed tickets to the Division at the times specified in Section III, Part B.3. Iowa will restart the responsibility period if any interseeding completed on the permit area fails to meet any of the criteria listed below.

(i) Interseeding of a legume on the third year of a grass/legume vegetative cover.

(ii) Interseeding of a single species in the permit approved seeding mixture, or interseeding of a replacement species, that has been approved by the Division, to improve the vegetative cover when unfavorable weather conditions adversely affect the germination success of the original revegetation effort.

(iii) Interseeding of a species due to excessive winter kill.

Iowa submitted Iowa State University Extension Service Publication Pm-1097 (Interseeding and No-till Pasture Renovation) to support its normal husbandry practice guidelines for interseeding.

Based on the documentation submitted by Iowa, we find that the proposed guidelines for liming, fertilizing, and interseeding at Part H.4 meet the requirements of the Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) for normal husbandry practices.

B. Recreational, Wildlife, and Forested Lands

Section IV, Part E of Iowa's April 1999 revegetation success guidelines contains the revegetation success standards for recreational areas, wildlife areas, and forested lands. In our final rule dated November 26, 1999, we approved section IV, part E with two exceptions (64 FR 66388). First, Iowa's guidelines did not contain any planting arrangement provisions for these land uses as required by 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i). Second, Iowa did not submit any documentation to prove that the State agencies responsible for the administration of forestry and wildlife programs approved its minimum stocking provisions as required by 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i). We required Iowa to either add planting arrangement provisions for recreational, wildlife, and forested land to its guidelines and obtain program-wide concurrence from the State agencies responsible for the administration of forestry and wildlife programs or add a provision to its guidelines that requires permit-specific concurrence for planting arrangements from the State agencies responsible for the administration of forestry and wildlife programs. We also required Iowa to either obtain program-wide concurrence for its minimum stocking provisions or add a provision to its guidelines that requires permit-specific concurrence for minimum stocking from the State agencies responsible for the administration of forestry and wildlife programs. We codified these requirements at 30 CFR 915.16(d)(1) and (2).

Iowa made the following changes to section IV, part E to address these requirements.

1. Iowa added the following new provision to the beginning of the second paragraph of section IV, part E:

The wildlife and recreational lands have site specific vegetation. Each permit with these types of post-mining land use have been approved by the Division in concurrence with the Iowa Department of Natural Resources.

We are interpreting the language of this provision to mean that Iowa requires permit specific concurrence from the Iowa Department of Natural Resources for both planting arrangements and stocking rates for recreational, wildlife, and forested land uses. In its letter dated September 28, 2001, Iowa agreed with our interpretation (Administrative Record No. IA-446.5). Based on this interpretation, we find that section IV, part E is no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i). We are also removing the required program amendments at 30 CFR 915.16(d)(1) and (2).

2. Iowa added the following new provision for tree and shrub stocking requirements at Section IV, Part E, Step 2:

The tree and shrub planting shall be spaced such that there are a minimum of five hundred (500) seedlings per acre. Acceptable tree and shrub spacing, which will meet or exceed the minimum number of seedlings per acre, are listed below. Narrower spacing is used for timber production. Wider spacing and planting in groups or clumps is used for wildlife and recreational tree and shrub plantings. These group or clump plantings should consist of a minimum of five (5) or more trees, and fifteen (15) or more shrubs per group.

Tree and Shrub Spacing for Planting

Spacing in feet	Number of seedlings per acre
5 x 5	1,742
5 x 10	871
6 x 6	1,210
6 x 10	726
7 x 7	889
7 x 10	622
8 x 8	681
8 × 10	545

We find that this provision provides additional guidance to permittees for addressing planting arrangements and stocking rates for recreational, wildlife, and forested land uses in their permits. As discussed above, Iowa requires permit specific concurrence from the Iowa Department of Natural Resources for both planting arrangements and stocking rates for these land uses. Therefore, we find that Section IV.E.2 is no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i).

C. Corn, Soybean, Oat, and Wheat Crops

Section V of Iowa's April 1999 revegetation success guidelines contains sampling procedures and techniques to determine productivity for corn, soybeans, oats, wheat, and forage crops; to determine ground cover percentage; and to determine if trees and shrubs meet minimum density standards. In our final rule dated November 26, 1999, we approved Section V of Iowa's April 1999 revegetation success guidelines with one exception (64 FR 66388). We did not fully approve Section V, Part A, Step 2, which contains the grain sampling techniques for test plot harvesting, because it did not specify how the permittee is to obtain the dry weight of the test plot grain samples. The dry weight is used in a calculation to determine the moisture percentage for each test plot sample. We required Iowa to revise its April 1999 revegetation success guidelines at Section V, Part A, Step 2 by adding a provision that specifies the standard method that permittees are to use for obtaining the dry weight of test plot grain samples. We codified this requirement at 30 CFR 915.16(e).

In response to the required amendment at 30 CFR 915.16(e), Iowa added the following new provision to the beginning of Step 2(l):

(l) The grain samples collected and labeled in Step 2.g. above must be oven dried until a constant dry weight is obtained. Weighing will be performed immediately after oven drying to avoid absorption of water from humid air. This dry weight will equal zero percent (0%) moisture. All samples will be adjusted to the appropriate percent moisture for that grain.

We interpret the first sentence of Iowa's new provision to mean that the permittees must use the standard air-oven method to obtain dry weights. The air-oven method is recognized by the United States Department of Agriculture as a means of determining the moisture content of grain. In its letter dated September 28, 2001, Iowa agreed with our interpretation (Administrative Record No. IA-446.5). Based on Iowa's concurrence with our interpretation, we are approving Section V, Part A, Step 2(l) and removing the required amendment at 30 CFR 915.16(e).

IV. Summary and Disposition of Comments

Federal Agency Comments

On August 30, 2001, under section 503(b) of SMCRA and 30 CFR 732.17(h)(11)(i) of the Federal regulations, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Iowa program (Administrative Record No. IA-446.1A). We did not receive any comments.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the written concurrence of 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 Iowa proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA for its concurrence.

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. IA-446.1A). 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 31, 2001, we requested comments on Iowa's amendment (Administrative Record No. IA-446.2A), but we received no response to our request.

Public Comments

We requested public comments on the proposed amendment, but we did not receive any.

V. OSM's Decision

Based on the above findings, we approve the amendment as sent to us by Iowa on August 17, 2001.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 915, which codify decisions concerning the Iowa program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process.

VI. Procedural Determinations

Executive Order 12866—Regulatory Planning and Review

This rule is exempt from review by the Office of Management and Budget under Executive Order 12866.

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulations.

Executive Order 13132—Federalism

This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary under SMCRA.

Executive Order 12988—Civil Justice Reform

The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 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 because 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 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.

Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy

On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is (1) considered significant under Executive Order 12866 and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a decision on a proposed State regulatory program provision does not constitute a major Federal action within the meaning of section 102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 4332(2)(C)). A determination has been made that such decisions are categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

This rule does not contain information collection requirements that require approval by the Office of Management and Budget 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 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.

Small Business Regulatory Enforcement Fairness Act

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

a. Does not have an annual effect on the economy of $100 million.

b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions.

c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule.

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 915

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: December 4, 2001.

Richard J. Seibel,

Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 915 is amended as set forth below:

PART 915—IOWA

1. The authority citation for Part 915 continues to read as follows:

Authority: 30 U.S.C. 1201 et seq.

2. Section 915.15 is amended in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 915.15

Approval of Iowa regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
August 17, 2001	December 27, 2001	Sections III.H, IV.E, and V.A.2(l) of Iowa's April 1999 Revegetation Success Standards and Statistically Valid Sampling Techniques.

3. Section 915.16 is amended by removing and reserving paragraphs (b), (d), and (e).