[Federal Register Volume 60, Number 178 (Thursday, September 14, 1995)]
[Rules and Regulations]
[Pages 47692-47695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22866]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-123-FOR; State Amendment No. 95-2]


Indiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Indiana permanent 
regulatory program (hereinafter referred to as the ``Indiana program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
Indiana proposes to revise revegetation standards for success for 
nonprime farmland for surface and underground coal mining and 
reclamation operations under Indiana Code (IC) 13-4.1. The amendment is 
intended to improve operational efficiency.

EFFECTIVE DATE: September 14, 1995.

FOR FURTHER INFORMATION CONTACT:
Mr. Roger W. Calhoun, Director, Indianapolis Field Office, Office of 
Surface Mining Reclamation and Enforcement, Minton-Capehart Federal 
Building, 575 North Pennsylvania Street, Room 301, Indianapolis, 
Indiana 46204, Telephone (317) 226-6166.

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana 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 Indiana Program

    On July 29, 1982, the Secretary of the Interior conditionally 
approved the Indiana program. Background information on the Indiana 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in the July 26, 
1982, Federal Register (47 FR 32107). Subsequent actions concerning the 
conditions of approval and program amendments can be found at 30 CFR 
914.10, 914.15, and 914.16.

II. Submission of the Amendment

    By letter dated May 3, 1995 (Administrative Record No. IND-1460), 
Indiana submitted a proposed amendment to its program pursuant to 
SMCRA. Indiana submitted the proposed amendment at its own initiative. 
This amendment revises 310 IAC 12-5-64.1 and 310 IAC 12-5-128.1 
pertaining to success standards for revegetation on nonprime farmland 
for surface and underground coal mining operations under IC 13-4.1.
    OSM announced receipt of the proposed amendment in the May 30, 
1995, Federal Register (60 FR 28069), and in the same document opened 
the public comment period and provided an opportunity for a public 
hearing on the adequacy of the proposed amendment. The public comment 
period closed on June 29, 1995.

III. Director's Findings

    Set forth below, pursuant to SMCRA and the Federal regulations at 
30 CFR 732.15 and 732.17, are the Director's findings concerning the 
proposed amendment.
310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground) Revegetation 
Standards for Success for Nonprime Farmland

    Since the revisions being proposed for surface mining at Sec. 12-5-
64.1(c) are 

[[Page 47693]]
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 proposes paragraph 
notation changes to reflect the organizational changes made throughout 
subsections (c). Additionally, Indiana proposes revisions throughout 
subsections (c) to correct the reference to the ``Soil Conservation 
Service'' to the ``Natural Resources Conservation Service.''
    The Director finds the organizational changes and the correction of 
the reference 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/
817.116.
    2. Subsections (c)(3)(B); Pastureland Production Success Standards. 
Subsection (c)(3)(B) concern the production success standards for 
revegetated pastureland areas. Indiana is proposing to relocate the 
provision in existing subsections (c)(4), which requires that if the 
current Natural Resources Conservation Service predicted yield by soil 
map units is 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, to subsections (c)(3)(B).
    The Director finds this organizational change does not render the 
Indiana regulations less effective than the Federal regulations and is 
approving this modification.
    3. Subsections (c)(3)(C); Pastureland Production Success Standards 
Methodology. Indiana is proposing to delete the existing provision in 
subsections (c)(3)(C) for determining production of living plants on 
pastureland and is proposing to add the following provision.

    (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 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. As 
discussed in the May 29, 1992, Federal Register (57 FR 22655), 
Indiana's average county yield data contains data of yields form 
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 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.), the Director 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, the Director 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 the Director finds 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).
    4. Subsection (c)(3)(D)/(c)(5)(D); Other Success Standards. Indiana 
is proposing to revise the language in the provisions moved from 
subsections (c)(3)(C) and (c)(5)(C) to new subsections (c)(3)(D) and 
(c)(5)(D), respectively. These provisions allow other success standards 
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 and cropland areas. The 
provisions in (c)(3)(C) and (c)(5)(C) were previously approved by OSM 
on May 29, 1992 (57 FR 22655). The proposals would change the words 
``Other success standards'' to ``Other methods.'' The ``methods'' 
referred to are methods to determine success standards. Therefore, the 
modifications to the relocated provisions at (c)(3)(D) and (c)(5)(D) 
are not substantial changes from what was previously approved at 
(c)(3)(C) and (c)(5)(C).
    The Federal regulations at 30 CFR 816/817.116(a)(1) require that 
standards for success and statistically valid sampling techniques for 
measuring success shall be selected by the regulatory authority and 
included in an approved regulatory program. In letters dated March 20, 
1992 (Administrative Record Nos. IND-1051 and IND-1052), Indiana stated 
that the IDNR will request approval by OSM for other standards prior to 
their use in the Indiana program if they vary significantly from the 
approved standards.
    Based on the above discussion, the Director is approving the 
provisions at 310 IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/
128.1(c)(5)(D).
    5. Redesignations. Existing subsections (c)(5) are redesignated 
subsections (c)(4) without any changes to the provisions. These 
subsections concern stocking levels and success standards for 
vegetation on areas to be developed as shelter belts or for fish and 
wildlife habitat, recreation or forestry land use.
    Existing subsections (c)(6) are redesignated subsections (c)(5) 
with changes. The changes to redesignated (c)(5) are discussed in 
finding No. 4 and finding No. 6. These subsections concern the success 
standards for production on revegetated cropland areas.
    Existing subsections (c)(7) are redesignated subsections (c)(6). 
Indiana is proposing to relocate the provision in existing subsections 
(c)(7), which requires that if the current Natural Resources 
Conservation Service predicted yield by soil map units is 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, to redesignated subsections (c)(5)(B). Indiana is also 
proposing to redesignate from existing subsections (c)(7) to 

[[Page 47694]]
subsections (c)(5)(E) the provision which requires that once the method 
for establishing the standards has been selected, it may not be 
modified without the approval of the director of IDNR.
    Existing subsections (c)(8) are redesignated subsections (c)(7) 
without change. These subsections concern revegetation success where 
barren areas exist within an area under evaluation.
    The Director finds the proposed redesignations do not render the 
Indiana regulations less effective than the Federal regulations.
    6. Subsections (c)(5); Cropland Production Success Standards 
Methodology. Indiana is proposing to delete the provision in existing 
subsections (c)(6)(C) for determining production of living plants on 
cropland and is proposing to add the following provision to 
redesignated subsections (c)(5)(C).

    (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. 3, 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. 
3, the Director 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 a NRCS predicted standard that excludes mined land. 
Therefore, the Director is approving the provisions proposed at 310 IAC 
12-5-64.1/128.1(c)(5)(C).

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment. No public comments were 
received, and because no one requested an opportunity to speak at a 
public hearing, no hearing was held.

Federal Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from various Federal agencies with 
an actual or potential interest in the Indiana program. No comments 
were received from these agencies.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written concurrence of the 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.). The 
Director has determined that this amendment contains no provisions in 
these categories and that EPA's concurrence is not required.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA. On June 15, 1995 (Administrative Record 
No. IND-1489), EPA responded that it concurred on the proposed 
amendment without comment.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP. No comments were received.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Indiana on May 3, 1995.
    The Director approves, as discussed in: finding No. 3, the 
provisions at 310 IAC 12-5-64.1/128.1(c)(3)(C), concerning a 
methodology for determining the success of production of living plants 
on nonprime pasture land areas; finding No. 4, the provisions at 310 
IAC 12-5-64.1/128.1(c)(3)(D) and 12-5-64.1/128.1(c)(5)(D), concerning 
the director of IDNR's approval of other success standards to be used 
in determining success of production of living plants on revegetated 
nonprime farmland pasture land and cropland areas; finding No. 6, 310 
IAC 12-5-64.1/128.1(c)(5)(C), concerning a methodology for determining 
the success of production of living plants on nonprime cropland areas.
    The Federal regulations at 30 CFR Part 914, codifying decisions 
concerning the Indiana 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.
Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
unilateral changes to approved State programs. In the oversight of the 
Indiana program, the Director will recognize only the statutes, 
regulations and other materials approved by OSM, together with any 
consistent implementing policies, directives and other materials, and 
will require the enforcement by Indiana of only such provisions.

VI. Procedural Determinations

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).

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, 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 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 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 

[[Page 47695]]
its implementing Federal regulations and whether the other requirements 
of 30 CFR Parts 730, 731, and 732 have been met.

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)).

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. 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 corresponding Federal regulations.
List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 7, 1995.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating 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 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 by adding paragraph (kkk) to read as 
follows:


Sec. 914.15  Approval of regulatory program amendments.

* * * * *
    (kkk) The following rules, as submitted to OSM on May 3, 1995, are 
approved effective September 14, 1995:
    310 IAC 12-5-64.1(c) and 310 IAC 12-5-128.1(c) concerning standards 
for success for nonprime farmland for surface and underground coal 
mining reclamation operations.

[FR Doc. 95-22866 Filed 9-13-95; 8:45 am]
BILLING CODE 4310-05-M