[Federal Register Volume 59, Number 181 (Tuesday, September 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-23247]


[[Page Unknown]]

[Federal Register: September 20, 1994]


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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, with additional requirements, 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 the 
Louisiana Surface Mining Regulations (LSMR) pertaining to revegetation 
success standards for tree and shrub stocking on lands with a 
postmining land use of forestry. The amendment specifies revegetation 
success standards for final bond release on reclaimed lands developed 
for forestry.

EFFECTIVE DATE: September 20, 1994.

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 May 3, 1994, Louisiana submitted a proposed 
amendment to its program pursuant to SMCRA (administrative record No. 
LA-348). Louisiana submitted the proposed amendment at its own 
initiative. The provision of its regulatory program that Louisiana 
proposed to revise was LSMR 53123.B.4.a, standards for success of 
revegetation at final bond release on reclaimed lands developed for 
forestry.
    In the May 26, 1994, Federal Register (59 FR 27252), OSM announced 
receipt of the proposed amendment, provided an opportunity for a public 
hearing or meeting on its substantive adequacy, and invited public 
comment on its adequacy (administrative record No. 348.02). Because no 
one requested a public hearing or meeting, none was held. The public 
comment period ended on June 27, 1994.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of LSMR 53123.B.4.a, revegetation success 
standards for tree and shrub stocking on lands with a postmining land 
use of forestry. OSM notified Louisiana of the concerns by letter dated 
July 11, 1994 (administrative record No. LA-348.10).
    In a letter dated August 16, 1994, Louisiana responded that (1) it 
would not, at this time, submit revisions in response to OSM's July 11, 
1994, issue letter, and (2) OSM should proceed with the publishing of 
the final rule Federal Register notice (administrative record No. LA-
348.11).

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with additional requirements, that the 
proposed program amendment submitted by Louisiana on May 3, 1994, is no 
less effective than the requirements of the corresponding Federal 
regulations. Accordingly, the Director approves the proposed amendment.
    1. LSMR 53123.B.4.a, Standards for Success of Revegetation at Final 
Bond Release on Reclaimed Lands Developed for Forestry.
    a. Revegetation success standards for tree stocking and ground 
cover. Louisiana proposed to revise LSMR 53123.B.4.a to require that 
prior to final bond release there 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 that 
countable stems shall be a minimum of 3 years old. At proposed LSMR 
53123.B.4.a, Louisiana defined ``well-distributed'' to mean uniform 
stockings levels over an entire planting site, and ``free-to-grow'' to 
mean pine seedlings or saplings without significant hardwood 
competition, competing vegetation shades the pine's crown on less than 
30 percent of the crown's circumference, and the pines are judged to 
have better than a 90 percent chance of capturing a place in the crown 
canopy.
    LSMR 53123.B.4.a, which OSM previously approved (October 28, 1992; 
57 FR 48726; administrative record No. LA-350), requires that 
vegetative ground cover shall not be less than 70 percent 
(administrative record Nos. LA-321 and LA-350). Louisiana's existing 
LSMR 53117.A.4, applicable to revegetation on land reclaimed for any 
land 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.
    Louisiana stated at proposed LSMR 53123.B.4.a that the tree 
stocking and ground cover standards were developed after consultation 
with and approval by the Louisiana Department of Agriculture and 
Forestry. Louisiana submitted to OSM a letter, dated December 27, 1993, 
from the Louisiana Office of Forestry, Department of Agriculture and 
Forestry (administrative record No. LA-348.01). In it, the Office of 
Forestry concurred with the technical success standards for areas 
developed for forestry proposed at LSMR 53123.B.4.a.
    The Federal regulations at 30 CFR 816.116(b)(3)(i) and 
817.116(b)(3)(i) require that minimum stocking and planting 
arrangements shall be specified by the regulatory authority on the 
basis of local and regional conditions and after consultation with and 
approval by the State agencies responsible for the administration of 
forestry and wildlife programs. Consultation and approval may occur on 
either a programwide or a permit-specific basis.
    Because Louisiana proposed, at LSMR 53123.B.4.a, to specify the 
minimum stocking and planting arrangements, and submitted approval by 
the State agency responsible for the administration of forestry, 
Louisiana has proposed programwide standards for all reclaimed land 
with a designated postmining land use of forestry.
    The Director finds that proposed LSMR 53123.B.4.a is no less 
effective than the requirements of the Federal regulations at 30 CFR 
816.116(b)(3)(i) and 817.116(b)(3)(i), and approves it.
    b. Utility of trees for the approved postmining land use and tree 
health. Louisiana proposed at LSMR 53123.B.4.a to delete 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) and 
817.116(b)(3)(ii) require (in part) 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.
    Because Louisiana has deleted the State counterparts to the Federal 
requirements, the Director finds that proposed LSMR 53123.B.4.a is less 
effective than the requirements of the Federal regulations at 30 CFR 
816.116(b)(3)(ii) and 817.116(b)(3)(ii). The Director requires that 
Louisiana revise LSMR 53123.B.4.a to include these requirements.
    c. Length of time trees have been established. Louisiana proposed 
at LSMR 53123.B.4.a to delete the requirement that, at the time of 
final bond release, at least 80 percent of the trees and shrubs shall 
have been in place for 60 percent of the 5-year responsibility period. 
Louisiana proposed to require that (1) there 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 
(2) countable stems shall be a minimum of 3 years old.
    The Federal regulations at 30 CFR 816.116(b0(3)(ii) and 
817.116(b)(3)(ii) require in part 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 (``80/60 requirement'').
    OSM interprets proposed LSMR 53123.B.4.a to require 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 (i.e., 3 of the 5-
year minimum period of responsibility). Under this interpretation, 
proposed LSMR 53123.B.4.a is no less effective than the ``80/60 
requirement'' in the Federal regulations at 30 CFR 816.116(b)(3)(ii) 
and 817.116(b)(3)(ii). However, before OSM can make this determination, 
Louisiana must clarify that this is its intent. Therefore, the Director 
requires that Louisiana either (1) clarify, by policy statement, that 
proposed LSMR 53123.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 (i.e., 3 of the 5-year minimum 
period of responsibility), or (2) revise proposed LSMR 53123.B.4.a to 
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.

IV. Summary and Disposition of Comments

    Following are summaries of all substantive oral and written 
comments on the proposed amendment that were received by OSM, and OSM's 
responses to them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant 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-348.03).
    The U.S. Army Corps of Engineers responded on June 10, 1994, that 
the proposed revisions were satisfactory (administrative record No. La-
348.04).
    The U.S. Bureau of Mines responded on June 14, 1994, that it had no 
comments (administrative record No. LA-348.05).
    The U.S. Forest Service responded on June 15, 1994, that, after 
consulting the forest administrators in Louisiana, it had no comments 
(administrative record No. LA-348.06).
    The U.S. Soil Conservation Service (SCS) responded on June 20, 
1994, that (1) it concurred with the number of trees required for 
successful revegetation of mined forest land, (2) it recommended a 
ground cover of at least 75 percent to prevent unacceptable levels of 
soil erosion, and (3) all gullies should be repaired and revegetated 
prior to final bond release (administrative record No. 348.08).
    With respect to the SCS comment concurring with the number of trees 
required to demonstrate revegetation success, as discussed in finding 
No. 1.a, the Director is approving the standard for the tree stocking 
rate proposed by Louisiana at LSMR 53123.B.4.a.
    With respect to the SCS comment concerning a recommended ground 
cover of 75 percent, as discussed in finding No. 1.a, Louisiana's 
requirement at LSMR 53123.B.4.a for 70 percent ground cover was 
previously approved by OSM and is a minimum standard. The Federal 
regulations of 30 CFR 816.116(b)(3)(iii) and 817.116(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, at LSMR 531117.A.4 (which is applicable 
to revegetation on land reclaimed for any land use), requires that a 
vegetative cover be established that is capable for stabilizing the 
soil surface from erosion.
    LSMR 53117.A.4 is substantively identical to the requirements of 
the Federal regulations at 30 CFR 816.111(a)(4) and 817.111(a)(4). In 
addition, Louisiana requires at LSMR 53121.A that suitable mulch and 
other soil stabilizing practices shall be used on all regraded and 
topsoiled areas to control erosion, promote germination of seeds, or 
increase the moisture content of the soil. LSMR 53121.A is no less 
effective than the requirements of the Federal regulations at 30 CFR 
816.114 and 817.114. Louisiana's standard for ground cover at LSMR 
53123.B.4.a, in conjunction with the requirements at LSMR 53117.A.4 and 
53121.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) 
and 817.116(b)(3)(iii). Therefore, the Director is not requiring that 
Louisiana revise the standard for ground cover on areas to be developed 
for forestry at LSMR 53123.B.4.a in response to this comment.
    With respect to the SCS comment that gullies should be repaired and 
revegetated prior to final bond release, Louisiana's program at LSMR 
53115 requires that (1) when rills and gullies deeper than 9 inches 
form in areas that have been regarded and topsoiled, the rills and 
gullies shall be filled, graded, or otherwise stabilized and the area 
reseeded or replanted according to the requirements of LSMR 53117 
through 53123, and (2) rills or gullies of lesser size be stabilized 
and the area reseeded or replanted if the rills or gullies are 
disruptive to the approved postmining land use or may result in 
additional erosion and sedimentation. Therefore, because Louisiana's 
approved program addresses the repair and revegetation of gullies, the 
Director is not requiring that Louisiana revise LSMR 53123.B.4.a in 
response to this comment.
    The U.S. Fish and Wildlife Service responded on June 21, 1994, that 
it had no objection to the proposed amendment (administrative record 
No. 348.07).

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-348.03). It 
responded on July 8, 1994, that it had no comments (administrative 
record No. LA-348.09).

4. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit the 
written comments of SHPO and ACHP with respect to those provisions of 
the proposed program amendment that relate to historic properties.
    None of the revisions that Louisiana proposed to make in its 
amendment pertain to historic properties. Therefore, OSM did not 
request SHPO and ACHP comments.

V. Director's Decision

    Based on the above findings, the Director approves with additional 
requirements Louisiana's proposed amendment as submitted on May 3, 
1994.
    With the requirement that Louisiana further revise its rules, the 
Director approves, as discussed in finding Nos. 1.a through 1.c, LSMR 
53123.B.4.a, concerning standards of success for revegetation on lands 
developed for forestry.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
918.16 that, within 60 days of the publication of this final rule, 
Louisiana must either submit a proposed written 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.
    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. 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 (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: September 14, 1994.
Russell F. Price,
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 revising the section heading and 
adding paragraph (d) to read as follows:


Sec. 918.15  Approval of amendments to the Louisiana regulatory 
program.

* * * * *
    (d) Revisions to LSMR 53123.B.4.a, revegetation success standards 
for forestry, as submitted to OSM on May 3, 1994, are approved 
effective September 20, 1994.
    3. Section 918.16 is revised 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) By November 21, 1994, Louisiana shall revise LSMR 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.
    (b) By November 21, 1994, Louisiana shall revise LSMR 53123.B.4.a 
or otherwise modify its program, to either (1) clarify, by policy 
statement, that proposed LSMR 53123.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.

[FR Doc. 94-23247 Filed 9-19-94; 8:45 am]
BILLING CODE 4310-05-M