01-30895. Louisiana Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Final rule; approval of amendment.

SUMMARY:

The Office of Surface Mining Reclamation and Enforcement (OSM) is approving an amendment to the Louisiana regulatory program (Louisiana program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). Louisiana proposed to add standards for measuring revegetation success on pastureland. Louisiana intends to revise the Louisiana program to be consistent with the corresponding Federal regulations and to improve operational efficiency.

EFFECTIVE DATE:

December 14, 2001.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6548. Telephone: [phone]. Internet: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana Program

II. Submission of the Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Louisiana 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 State 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 Louisiana program on October 10, 1980. You can find background information on the Louisiana program, including the Secretary's findings and the disposition of comments in the October 10, 1980, Federal Register (45 FR 67340). You can find later actions concerning the Louisiana program at 30 CFR 918.15 and 918.16.

II. Submission of the Amendment

By letter dated June 1, 2001 (Administrative Record No. LA-365.04), Louisiana sent us an amendment to its program under SMCRA and the Federal regulations at 30 CFR 732.17(b). Louisiana sent the amendment in response to our letters dated March 24, 1999, and August 16, 2000, that we sent to Louisiana under 30 CFR 732.17 (Administrative Record Nos. LA-365 and LA-365.01, respectively).

We announced receipt of the amendment in the June 27, 2001, Federal Register (66 FR 34137). 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 July 27, 2001. Because no one requested a public hearing or meeting, we did not hold one.

During our review of the amendment, we identified concerns relating to sampling procedures; data submission and analysis; data forms for ground cover and whole release area harvesting; example uses of sample adequacy formulas for ground cover and hay production measurements; statistical analysis on whole release area harvesting; and acceptable plant species for permanent ground cover. We notified Louisiana of these concerns by letter dated August 20, 2001 (Administrative Record No. LA-365.10).

By letter dated October 10, 2001 (Administrative Record No. LA-365.11), Louisiana sent revisions to its program amendment. Because the revisions merely clarified certain provisions of Louisiana's amendment, we did not reopen the public comment period.

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are the Director's findings concerning the amendment to the Louisiana program.

Louisiana submitted revegetation success guidelines that describe the standards and procedures for determining revegetation success on pastureland. The Federal regulations at 30 CFR 816.116(a)(1) require that each regulatory authority select revegetation success standards and statistically valid sampling techniques for measuring revegetation success and include them in its approved regulatory program. Louisiana developed its revegetation success guidelines for pastureland to satisfy this requirement. The guidelines for pastureland include revegetation success standards and statistically valid sampling techniques for measuring revegetation success of reclaimed pastureland in accordance with Louisiana's counterpart to 30 CFR 816.116. Louisiana's standards, criteria, and parameters for revegetation success on pastureland reflect the extent of cover, species composition, and soil stabilization required in the Federal regulations at 30 CFR 816.111. As required by the Federal regulations at 30 CFR 816.116(a)(2) and (b), Louisiana's revegetation success standards include criteria representative of unmined lands in the area being reclaimed to evaluate the appropriate vegetation parameters of ground cover and production suitable to the approved postmining land use of pastureland. Louisiana's guidelines specify the procedures and techniques to be used for sampling, measuring, and analyzing vegetation parameters. Ground cover and production suitable to the approved postmining land use of pastureland is considered equal to the approved success standard when they are not less than 90 percent of the success standard. Sampling techniques for measuring success use a 90-percent statistical confidence interval. We find that use of these procedures and techniques will ensure consistent, objective collection of vegetation data.

For the above reasons, we find that the revegetation success standards and statistically valid sampling techniques for measuring revegetation success contained in Louisiana's revegetation success guidelines for pastureland satisfy the requirements of 30 CFR 816.116(a)(1).

IV. Summary and Disposition of Comments

Federal Agency Comments

On June 12, 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 Louisiana program (Administrative Record No. LA-365.05). The Natural Resources Conservation Service (NRCS) responded on July 10, 2001 (Administrative Record No. LA-365.08) with extensive comments on the technical adequacy of the amendment. These comments are discussed below.

A. The NRCS recommends that Louisiana delete the word “density” from its introductory language at A.2. concerning “ground cover” because Louisiana does not use the term “ground cover density” in the remainder of its revegetation guidelines for pastureland.

We disagree with the NRCS's comment. The Federal regulation at 30 CFR 701.5 defines ground cover as “the area of ground covered by the combined aerial parts of the vegetation and the litter that is produced naturally onsite, expressed as a percentage of the total area of measurement.” Louisiana definition of ground cover at § 105 is substantively identical to the Federal definition. The addition of the word “density” to the phrase “ground cover” does not in any way change the regulatory definition of ground cover. Furthermore, because this is an introductory paragraph rather than a detailed requirement for revegetation standards and methods, we believe the use of the word “density” is of no consequence.

B. The NRCS states that Louisiana should change the scientific name for Kudzu found at B.2.f. As proposed, Louisiana uses the name Pueraria lobata. The NRCS recommends that Louisiana change it to Pueraria montana var. lobata.

We recognize that the NRCS promotes the use of the scientific name of the species of plants listed in the NRCS plants database. However, Pueraria lobata is the accepted scientific name for Kudzu listed in “Common Weeds of the United States” by the USDA in 1971, and in the current 1995 volume of the Southern Weed Science Society. Furthermore, Louisiana gives both the scientific and common names. Thus, we find Louisiana's use of the scientific name Pueraria lobata acceptable.

C. The NRCS states that, at C.1.c. concerning success standards and measurement frequency, it is unclear whether adequate sample size still needs to be documented when the initial mean is greater than or equal to the standard. The NRCS maintains that even though initial sampling results in a mean that is greater than the standard, documentation that the mean is from an adequate sample should still be required.

Section D.3.a. of Louisiana's guidelines gives the detailed requirements for determining sample adequacy for ground cover data. Specifically, it requires a minimum number of samples in a multi-stage sampling procedure where sample adequacy is calculated after the minimum samples are collected. This requirement is further clarified in Appendix F: Example Use of Sample Adequacy Formula for Ground Cover Measurements, where it is clearly stated that the sample adequacy requirements must be fulfilled before a comparison to the standard can be made. Thus, we find that Louisiana's guidelines are clear that an adequate sample size needs to be documented prior to comparing the sample mean with the standard.

D. The NRCS expressed concern about the provision at C.2.a., which provides that the success standard for production of hay on pastureland shall be 90 percent of an approved reference area if a reference area is established, or 90 percent of the estimated yield found in the NRCS parish soil survey at Appendix K. The NRCS states that most of the species listed in Appendix L, which contains a list of acceptable plant species for ground cover, do not have production estimates in the soil survey found in Appendix K, and existing reference areas that have these species are rare. The NRCS also states that species such as buffalograss and the gama grasses listed do not have the production potential of a bermudagrass stand under a high level of management.

Louisiana's guidelines specify that forage production will use the standards of yields found in the NRCS parish soil survey in Appendix K. Because the only species listed in the survey are common bermudagrass, improved bermudagrass, bahiagrass, coastal bermudagrass, pensacola bahiagrass, and tall fescue, the reclaimed pasture will need to be seeded to one of these species in order to have a valid comparison to the standard. Once the production standard is selected, the presence of other planted or volunteer species in the pasture will in no way change the production standard for comparison. If it is determined that the operator could not meet the production standard due to an overabundance of acceptable volunteer species that were not as productive as the approved seed mix, then the operator would have to manage the stand to increase the cover of the approved species and decrease the cover of the acceptable species until the standard could be met.

Louisiana allows in its determination of ground cover that up to 15 percent of that cover can be volunteer species that are acceptable based on the list provided in Appendix L. Because this list is for the purposes of ground cover, no production rates for the species listed are required.

E. The NRCS expressed concern that the phrase, “similar plant species and diversity,” found at C.3.a.i. is too vague. The NRCS asks how the terms “similar” and “diversity” will be determined, and points out that there are several different methods to define these terms.

We disagree with this comment. The word “similar” is a commonly used term, and we do not believe further definition is required. Furthermore, Louisiana must use the entire list of factors at C.3.a. when determining the similarity of the reference area to the reclaimed area. This is a qualitative assessment based on the expertise and judgement of the Louisiana program consistent with factors cited in the scientific literature for the establishment of reference areas for this purpose.

The word “diversity” is defined at C.1.b. Louisiana's guidelines provide that ground cover must consist of the species mixture approved in the original permit or an approved acceptable species mixture as recommended by the NRCS for use in that area. Furthermore, no more than 15% of the stand can be approved species not listed in the permit. The Federal regulations at 30 CFR 816.111 require vegetative diversity as a performance standard for plant establishment. Louisiana has established a qualitative standard for diversity. This is consistent with the Federal regulations, which allows a qualitative standard for diversity.

F. The NRCS states that the use of the phrases, “proposed mined release area,” “mined test area,” “reclaimed area,” and “pastureland area” at C.3.a.ii., iv., v., and ix. is confusing. The NRCS suggests that if all these terms are meant to denote pastureland in the reclaimed area, Louisiana should use the same term. If they are not meant to mean the same thing, the NRCS states that Louisiana should more clearly define them.

Louisiana proposes nine factors to be evaluated in order to determine if an unmined reference area is representative of a reclaimed area. Based on a simple reading of the terms in the context presented, it is clear that all the above phrases refer to the reclaimed area. We do not believe additional clarification is necessary.

G. The NRCS points out that D.2.a. describes three sampling methods in which a sample is defined as a single point, a single point frame, or a transect. Further, the provision at D.4.a. requires a minimum of 100 samples be taken. The NRCS expressed concern that the level of effort required for each of the methods is very different, and asks if this is what Louisiana intended. If not, the NRCS recommends that Louisiana clarify the provision at D.4.a.

We agree with this comment. In a letter dated August 20, 2001 (Administrative Record No. LA-365.10), we informed Louisiana that, while a minimum sample size of 100 may be appropriate for the pin sampling technique, a sample size of 100 seems excessive for the point frame and line intercept sampling techniques.

On October 10, 2001 (Administrative Record No. LA-365.11), Louisiana revised section D. by removing D.3. concerning representative test plots, redesignating D.4. as D.3., and revising the provision at redesignated D.3. to specify that the minimum sample size depends upon the results of the first stage of a multi-staged sampling procedure. We find that the revisions to section D. are appropriate, and resolve the NRCS's concerns.

H. The NRCS states that, at section D.4. concerning sample adequacy, it is unclear if sample adequacy will be determined for the reference area when using a reference area for comparison to the reclaimed site. The NRCS also states that the sample adequacy equations in this section do not account for Beta error.

Section C.3.a. concerning reference area requirements states that either statistically adequate subsampling or whole plot harvesting may be used to determine yields. Thus, sample adequacy must be determined for reference areas. Furthermore, the Federal regulations at 30 CFR 816.116(a)(2) require that the sampling techniques for measuring success will use a 90% statistical confidence interval (i.e. one-sided test with a 0.10 alpha error). Neither SMCRA not the Federal regulations require consideration of Beta error.

I. The NRCS recommends that, in Appendix A: Selection of Random Sampling Sites, Louisiana revise the last sentence of the second paragraph by replacing the word, “axes” with the phrase, “grid intervals.”

We find that Louisiana's use of the term “axes” as a reference line to a coordinate system is acceptable.

J. The NRCS points out that the example found in Appendix F: Example Use of Sample Adequacy Formula for Ground Cover Measurements shows only ten transects sampled, when the minimum required by D.4.a. is 100. The NRCS states Louisiana should consider reducing the number of minimum samples for transects to between 15 and 30. The NRCS also expressed concern that the calculations shown in the example are incorrect.

We agree with this comment. As stated above in the response to comment G., we informed Louisiana in our August 20, 2001, letter, that the example calculations for determining sample adequacy for ground cover in the appendices need to reflect the appropriate required minimum sample size. We further informed Louisiana that in Appendix F, the mean value in the last calculation of sample adequacy needs to be changed from 72.48 to 74.8.

In its October 10, 2001, letter, Louisiana revised the provision at redesignated D.3. to specify that the minimum sample size depends upon the results of the first stage of a multi-staged sampling procedure. Louisiana further revised the mean value in the last calculation of sample adequacy. We find that the revisions to section D.3. and Appendix F are appropriate, and resolve the NRCS's concerns.

K. Finally, the NRCS recommends that Louisiana change the names of several species found in Appendix L.

We agree with this comment. In our August 20, 2001, letter, we recommended that Louisiana correct several of the scientific and common names found in Appendix L. In its October 10, 2001, letter, Louisiana made the revisions we recommended. We find that the revisions Louisiana made are appropriate, and resolve the NRCS's concerns.

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.). However, none of the revisions that Louisiana 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. LA-365.05). 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 June 12, 2001, we requested comments on Louisiana's amendment (Administrative Record No. LA-365.05), but neither responded to our request.

Public Comments

We asked for public comments on the amendment, but did not receive any.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us by Louisiana on June 1, 2001, and as revised on October 10, 2001.

We approve the revegetation success standards for pastureland that Louisiana proposed with the provision that they be published in identical form to the revegetation success standards for pastureland sent to and reviewed by OSM and the public.

To implement this decision, we are amending the Federal regulations at 30 CFR Part 918, which codify decisions concerning the Louisiana 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 exempted 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 because it 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 918

• Intergovernmental relations
• Surface mining
• Underground mining

November 14, 2001.

Ervin J. Barchenger,

Acting Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 918 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 in the table by adding a new entry in chronological order by “Date of final publication” to read as follows:

§ 918.15

Approval of Louisiana regulatory program amendments.

* * * * *

Original amendment submission date	Date of final publication	Citation/description
*         *         *         *         *         *         *
June 1, 2001	12/14/01	Revegetation Success Standards for Pastureland