[Federal Register Volume 61, Number 103 (Tuesday, May 28, 1996)]
[Rules and Regulations]
[Pages 26454-26461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13263]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 925

[SPATS No. MO-025-FOR]


Missouri 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 certain exceptions, a proposed 
amendment to the Missouri regulatory program (hereinafter referred to 
as the ``Missouri program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). The proposed amendment consists of a 
proposed set of revegetation success guidelines and a rulemaking that 
eliminates the reference to an earlier set of guidelines that was never 
approved by OSM. The amendment is intended to revise the Missouri 
program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: May 28, 1996.

FOR FURTHER INFORMATION CONTACT:
Brent Wahlquist, Regional Director, Mid-Continent Regional Coordinating 
Center, Office of Surface Mining Reclamation and Enforcement, Alton 
Federal Building, 501 Belle Street, Alton, Illinois 62002, Telephone: 
(618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the Missouri Program

    On November 21, 1980, the Secretary of Interior conditionally 
approved the Missouri program. General background information on the 
Missouri program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the Missouri program can 
be found in the November 21, 1980, Federal Register (45 FR 77017). 
Subsequent actions concerning Missouri's program and program amendments 
can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Submission of the Proposed Amendment

    By letter dated December 14, 1995 (Administrative Record no. MO-
633), Missouri submitted a proposed amendment to its program pursuant 
to SMCRA. Missouri submitted the proposed amendment in response to the 
required program amendments at 30 CFR 925.16 (a) and (p)(6). The 
provisions of the Code of State Regulations (CSR) that Missouri 
proposes to amend are: 10 CSR 40-3.120/3.270(c)(B)2.A-H., Specific 
revegetation success standards for postmining land uses. Specifically, 
Missouri proposes revisions to its approved program for evaluating 
revegetation success. Missouri revised its regulations for the specific 
standards for each of its approved land uses to delete the reference to 
an earlier set of guidelines that had not been approved by OSM and 
reference the guidelines as currently proposed in this amendment. The 
proposed revegetation success guidelines consist of eight separate 
guidance documents that establish the revegetation success standards by 
land use. These documents are titled the: (1) Phase II and Phase III 
revegetation standards for prime farmland; (2) Phase III revegetation 
standards for cropland; (3) Phase III revegetation standards for 
pasture and previously mined areas; (4) Phase III revegetation 
standards for wildlife habitat; (5) Phase III revegetation standards 
for woodland; (6) Phase III revegetation standards for industrial/
commercial revegetation; (7) Phase III revegetation success standards 
for residential land use; and (8) Phase III revegetation success 
standards for recreation land use. Each set of guidelines elaborates by 
land use type the revegetation success standards, measurement 
frequency, sampling procedures, data submission and analysis, maps, and 
mitigation plan requirements. The guidance documents follow the 
approved Missouri program regulations at 10 CSR 40-3.120/3.270(6).
    OSM announced receipt of the proposed amendment in the January 26, 
1996, Federal Register (61 FR 2459), 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 February 26, 1996.

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.
    Revisions not specifically discussed below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

[[Page 26455]]

1. 10 CSR 40-3.120/3.270(6)(B)--Specific Standards for Postmining Land 
Uses

    The required amendment at 30 CFR 925.16(p)(6) requires Missouri to 
amend its program at 10 CSR 40-3.120/3.270(6)(B) 2.A through H to 
remove the reference to the Land Reclamation Commission's June 1990 
Phase III Liability Release Guidelines.
    Missouri proposes to revise each land use specific revegetation 
success guidance document which it incorporated by reference into its 
regulations. Measurement, for applicable land use specific levels of 
ground cover, production, or stocking shall be performed in accordance 
with the criteria contained in the current land use specific guidelines 
of the Land Reclamation Commission.
    Although there is not an exact counterpart Federal regulation 
concerning the incorporation by reference of revegetation success 
guidance documents, the Federal regulations at 30 CFR 816/817.116(a)(1) 
require a State to include its standards for success and statistically 
valid sampling techniques for measuring revegetation success in its 
approved regulatory program. Missouri is proposing to accomplish this 
by incorporating eight land use specific guidance documents by 
reference in its regulations at 10 CSR 40-3.120/3.270(6)(B). The 
Director finds that Missouri's proposal to include these documents by 
reference into its approved program is not inconsistent with the 
Federal regulation requirements. Accordingly, the Director is removing 
the required program amendment from the Missouri program as codified at 
30 CFR 925.16(p)(6).

2. Revegetation Success Guidelines

    The required amendment at 30 CFR 925.16(a) requires Missouri to 
amend its program to include those technical guidance procedures that 
the State considers acceptable for use in evaluating revegetation 
success.
a. Phase III  Revegetation Success Standards for Woodland
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for Woodland.'' This document describes 
the criteria and procedures for determining Phase III success standards 
for areas being restored as Woodland pursuant to 10 CSR 40-3.120/
3.270(6) and (7).
    Missouri proposes that revegetation success on woodland be 
determined on the basis of: the general revegetation requirements of 
the approved permit; ground cover; and tree/shrub stocking and 
survival. The permittee is responsible for measuring the vegetation and 
for submitting the data to the director of Missouri Land Reclamation 
Program (MLRP) for analysis. Measurements of the vegetation must be 
made in accordance with the procedures outlined in the guidance 
document. The director of MLRP must determine that the general 
requirements for revegetation success be satisfied as stated in 10 CSR 
40-3.120/3.270(1). The guidance document sets out specific success 
standards and measurement frequencies for ground cover and tree and 
shrub stocking rate based on the regulatory requirements of 10 CSR 40-
3.120/3.270. Sampling procedures are to use statistically valid random 
sampling methods using a 90 percent statistical confidence limit. 
Ground cover is to be measured by the line-point transect method and 
tree/shrub stocking is to be measured with sampling circles. Sample 
adequacy is to be determined using a prescribed formula. If the data 
indicates that the vegetation is close to the standard but less than 
the standard, the data is to be submitted to the director of MLRP for 
statistical analysis to determine if the differences are statistically 
significant within the limits allowed by regulation. Maps must be 
provided by the permittees for each Phase III plan indicating the 
location of each sampling transect and sample frame point, the area 
covered by the sampling and all permit boundaries. If the permittees 
can not demonstrate revegetation success in the fifth year after 
completion of initial seeding, a mitigation plan must be submitted to 
the director of MLRP including a statement of the problem, a discussion 
of methods to correct the problem, and a new phase III liability 
release plan. If the plan involves augmented activities then the 5 year 
responsibility period will begin again. Appendices are attached 
illustrating the selection of random sampling sites; data forms for 
line-point transect; data forms for sample circle; T-table; example of 
sample adequacy determination for ground cover; example of sample 
adequacy determination for tree/shrub stocking; statistical analysis 
for ground cover and tree/shrub stocking; accepted plant species; and 
references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for woodland. The Director finds that 
the guidance document is not inconsistent with and no less effective 
than the Federal regulations.
b. Phase III Success Standards for Industrial/Commercial Revegetation
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Success Standards for Industrial/Commercial Revegetation.'' This 
document describes the criteria and procedures for determining Phase 
III success standards for areas being restored as industrial/commercial 
pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
    Missouri proposes that revegetation success on industrial/
commercial be determined on the basis of: the general revegetation 
requirements of the approved permit; and ground cover density. The 
permittee is responsible for measuring the vegetation and for 
submitting the data to the director of MLRP for analysis. Measurements 
of the vegetation must be made in accordance with the procedures 
outlined in the guidance document. The director of MLRP must determine 
that the general requirements for revegetation success be satisfied as 
stated in 10 CSR 40-3.120/3.270(1). The guidance document sets out 
specific success standards and measurement frequencies for ground cover 
based on the regulatory requirements of 10 CSR 40-3.120/3.270. Sampling 
procedures are to use statistically valid random sampling methods using 
a 90 percent confidence interval. Ground cover is to be measured by the 
line-point transect method. Sample adequacy is to be determined using a 
prescribed formula. If the data indicates that the vegetation is close 
to the standard but less than the standard, the data is to be submitted 
to the director of MLRP for statistical analysis to determine if the 
differences are

[[Page 26456]]

statistically significant within the limits allowed by regulation. Maps 
must be provided by the permittee for each Phase III plan indicating 
the location of each sampling transect and sample frame point, the area 
covered by the sampling, and all permit boundaries. If the permittee 
can not demonstrate revegetation success in the fifth year after 
completion of initial seeding, a mitigation plan must be submitted to 
the director of MLRP including a statement of the problem, a discussion 
of methods to correct the problem, and a new phase III liability 
release plan. If the plan involves augmented activities then the 5 year 
responsibility period will begin again. Appendices are attached 
illustrating the selection of random sampling sites; data forms for 
line-point transect; data forms for sample circle; T-table; example of 
sample adequacy determination for ground cover; statistical analysis 
for ground cover; accepted plant species; and references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for industrial/commercial land uses. 
The Director finds that the guidance document is not inconsistent with 
and is no less effective than the Federal regulations.
c. Phase III Revegetation Success Standards for Cropland
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for Cropland.'' This document describes 
the criteria and procedures for determining Phase III success standards 
for areas being restored as cropland pursuant to 10 CSR 40-3.120/3.270 
(6) and (7).
    Missouri proposes that revegetation success on cropland be 
determined on the basis of ground cover and crop production. The 
permittee is responsible for measuring the vegetation and for 
submitting the data to the director of MLRP for analysis. Measurements 
of the vegetation must be made in accordance with the procedures 
outlined in the guidance document. The guidance document sets out 
specific success standards and measurement frequencies for ground cover 
and crop production based on the regulatory requirements of 10 CSR 40-
3.120/3.270. The crop production standard is to be determined with a 
reference area or the use of a technical standard. Approved technical 
standards include the county average or target yield established by the 
U.S. Department of Agriculture Natural Resources Conservation Service 
(USDA NRCS). Target yields must be adjusted annually and be 
representative of yields expected when using high management practices 
common to the area. Sampling procedures are to use statistically valid 
random sampling methods. Ground cover is to be measured by the line-
point transect method. Crop production is to be measured utilizing 
sampling frames for forage production or whole area harvest for forage 
or row crop production. Manual sampling of row crops is only allowed 
when weather or other factors prevent mechanical harvest and must have 
prior approval by the director of MLRP. The guidance document also 
establishes a method for establishing representative test plots for use 
with row crop production. Sample adequacy is to be determined using a 
prescribed formula. If the data indicates that the vegetation is close 
to the standard but less than the standard, the data is to be submitted 
to the director of MLRP for statistical analysis to determine if the 
differences are statistically significant within the limits allowed by 
regulation. Maps must be provided by the permittee for each Phase III 
plan indicating the location of each sampling transect and sample frame 
point, the area covered by the sampling, and all permit boundaries. If 
the permittee can not demonstrate revegetation success in the fifth 
year after completion of initial seeding, a mitigation plan must be 
submitted to the director of MLRP including a statement of the problem, 
a discussion of methods to correct the problem, and a new phase III 
liability release plan. If the plan involves augmented activities then 
the 5 year responsibility period will begin again. Appendices are 
attached illustrating the selection of random sampling sites; summary 
data forms for sampling frames; data forms for crop production data; T-
table; example of sample adequacy determination for hay production 
measurements; statistical analysis for sampling frame data; data form 
for forage crop production data harvested as baled hay; statistical 
analysis of whole release area harvesting; yield adjustments for 
release areas due to differing soil series; yield adjustments for 
moisture; crop surveyor's affidavit of qualifications and crop 
production yields; grasses of acceptable plant species for permanent 
ground cover on agricultural areas; procedure for manually sampling row 
crops; and references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for cropland. The Director finds that 
the guidance document is not inconsistent with and no less effective 
than the Federal regulations.
d. Phase III  Revegetation Success Standards for Wildlife Habitat
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for Wildlife Habitat.'' This document 
describes the criteria and procedures for determining Phase III success 
standards for areas being restored as wildlife habitat pursuant to 10 
CSR 40-3.120/3.270 (6) and (7).
    Missouri proposes that revegetation success on wildlife habitat be 
determined on the basis of: the general revegetation requirements of 
the approved permit; ground cover; and tree/shrub stocking and 
survival. The permittee is responsible for measuring the vegetation and 
for submitting the

[[Page 26457]]

data to the director of MLRP for analysis. Measurements of the 
vegetation must be made in accordance with the procedures outlined in 
the guidance document. The director of MLRP must determine that the 
general requirements for revegetation success be satisfied as stated in 
10 CSR 40-3.120/3.270(1). The guidance document sets out specific 
success standards and measurement frequencies for ground cover and tree 
and shrub stocking rate based on the regulatory requirements of 10 CSR 
40-3.120/3.270. Sampling procedures are to use statistically valid 
random sampling methods. Ground cover is to be measured by the line-
point transect method and tree/shrub stocking is to be measured with 
sampling circles. Sample adequacy is to be determined using a 
prescribed formula. If the data indicates that the vegetation is close 
to the standard but less than the standard, the data is to be submitted 
to the director of MLRP for statistical analysis to determine if the 
differences are statistically significant within the limits allowed by 
regulation. Maps must be provided by the permittee for each Phase III 
plan indicating the location of each sampling transect and sample frame 
point, the area covered by the sampling, and all permit boundaries. If 
the permittee can not demonstrate revegetation success in the fifth 
year after completion of initial seeding, a mitigation plan must be 
submitted to the director of MLRP including a statement of the problem, 
a discussion of methods to correct the problem, and a new phase III 
liability release plan. If the plan involves augmented activities then 
the 5 year responsibility period will begin again. Appendices are 
attached illustrating the selection of random sampling sites; data 
forms for line-point transect; data forms for sample circle; T--table; 
example of sample adequacy determination for ground cover; example of 
sample adequacy determination for tree/shrub stocking; statistical 
analysis for ground cover and tree/shrub stocking; accepted plant 
species; and references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for wildlife habitat. The Director 
finds that the guidance document is not inconsistent with and no less 
effective than the Federal regulations.
e. Phase III  Revegetation Success Standards for Pasture and Previously 
Mined areas
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for Pasture and Previously Mined 
Areas.'' This document describes the criteria and procedures for 
determining Phase III success standards for areas being restored as 
pasture and previously mined land pursuant to 10 CSR 40-3.120/3.270 (6) 
and (7).
    Missouri proposes that revegetation success on pasture and 
previously mined land be determined on the basis of: the general 
revegetation requirements of the approved permit; ground cover; and 
production. The permittee is responsible for measuring the vegetation 
and for submitting the data to the director of MLRP for analysis. Any 
previously mined land that was remined or redistributed and reclaimed 
to a land use of pasture, must achieve the same success standard for 
cover as land that was not previously disturbed by mining. However if 
the area is not reclaimed to the requirements of 10 CSR 40-3.120(6)(B), 
the vegetation cover shall not be less than the ground cover existing 
before redisturbance and shall be adequate to control erosion. This 
ground cover standard must have been determined and incorporated into 
the permit prior to disturbance. There is no productivity standard for 
previously mined land. The director of MLRP must determine that the 
general requirements for revegetation success be satisfied as stated in 
10 CSR 40-3.120/3.270(1). Measurements of the vegetation must be made 
in accordance with the procedures outlined in the guidance document. 
The guidance document sets out specific success standards and 
measurement frequencies for ground cover and production based on the 
regulatory requirements of 10 CSR 40-3.120/3.270. The forage production 
standard is to be determined with a reference area or a current USDA/
NRCS high management target yield. Sampling procedures are to use 
statistically valid random sampling methods at a 90 percent statistical 
confidence interval. Ground cover is to be measured by the line-point 
transect method. Forage production is to be measured utilizing sampling 
frames or whole area harvest. The guidance document also establishes a 
method for establishing representative test plots. Sample adequacy is 
to be determined using a prescribed formula. If the data indicates that 
the vegetation is close to the standard but less than the standard, the 
data is to be submitted to the director of MLRP for statistical 
analysis to determine if the differences are statistically significant 
within the limits allowed by regulation. Maps must be provided by the 
permittee for each Phase III plan indicating the location of each 
sampling transect and sample frame point, the area covered by the 
sampling and all permit boundaries. If the permittee can not 
demonstrate revegetation success in the fourth year after completion of 
last augmented seeding, a mitigation plan must be submitted to the 
director of MLRP including a statement of the problem, a discussion of 
methods to correct the problem, and a new phase III liability release 
plan. If the plan involves augmented activities then the 5 year 
responsibility period will begin again. Appendices are attached 
illustrating the selection of random sampling sites; data forms for 
line point transects; summary data forms for sampling frames; T-table; 
data form for forage crop production data harvested as baled hay; 
example use of sample adequacy formula for ground cover measurements 
and hay production measurements; statistical analysis on sampling frame 
data and whole release area harvesting; yield adjustments for release 
areas due to differing soil series; grasses of acceptable plant species 
for permanent ground cover on agricultural areas; and references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be

[[Page 26458]]

considered equal to the approved success standard then they are not 
less than 90 percent of the success standard. The sampling techniques 
for measuring success shall use a 90 percent statistical confidence 
interval (i.e., one-sided test with a 0.10 alpha error). Missouri is 
proposing to accomplish this by adoption of a detailed guidance 
document illustrating the methods to be used by the permittee to 
measure revegetation success for pasture and previously mined land. The 
Director finds that the guidance document is not inconsistent with and 
no less effective than the Federal regulations.
f. Phase II/III  Revegetation Success Standards for Prime Farmland
    Missouri proposes to adopt a guidance document entitled ``Phase II/
III Revegetation Success Standards for Prime Farmland.'' This document 
describes the criteria and procedures for determining Phase II and III 
success standards for areas being restored as prime farmland pursuant 
to 10 CSR 40-3.120/3.270 (6) and (7) and 10 CSR 40-4.030.
    Missouri proposes that revegetation success on prime farmland be 
determined on the basis of crop production. The permittee is 
responsible for measuring the vegetation and for submitting the data to 
the director of MLRP for analysis. Measurements of the vegetation must 
be made in accordance with the procedures outlined in the guidance 
document. Ground cover must be established following soil replacement 
with approved species to effectively control erosion. The guidance 
document sets out specific success standards and measurement 
frequencies for crop production based on the regulatory requirements of 
10 CSR 40-3.120/3.270 and 10 CSR 40-4.030. The crop production standard 
is to be determined with a reference area or the use of a technical 
standard. Approved technical standards include the county average or 
target yield established by the USDA NRCS. Target yields must be 
adjusted annually and be representative of yields expected when using 
high management practices common to the area.
    Sampling procedures are to use statistically valid random sampling 
methods. Crop production is to be measured utilizing sampling frames 
for forage production or whole area harvest for forage or row crop 
production. Manual sampling of row crops is only allowed when weather 
or other factors prevent mechanical harvest and must have prior 
approval by the director of MLRP. The guidance document also 
establishes a method for establishing representative test plots for use 
with row crop production. Sample adequacy is to be determined using a 
prescribed formula. If the data indicates that the vegetation is close 
to the standard but less than the standard, the data is to be submitted 
to the director of MLRP for statistical analysis to determine if the 
differences are statistically significant within the limits allowed by 
regulation. Maps must be provided by the permittee for each Phase III 
plan indicating the location of each sampling transect and sample frame 
point, the area covered by the sampling, and all permit boundaries. If 
the permittee cannot demonstrate revegetation success in the fifth year 
after completion of initial seeding, a mitigation plan must be 
submitted to the director of MLRP including a statement of the problem, 
a discussion of methods to correct the problem, and a new phase III 
liability release plan. If the plan involves augmented activities, then 
the 5-year responsibility period will begin again. Appendices are 
attached illustrating the selection of random sampling sites; summary 
data forms for sampling frames; data forms for crop production data; 
T--table; example of sample adequacy determination for hay production 
measurements; statistical analysis for sampling frame data; data form 
for forage crop production data harvested as baled hay; statistical 
analysis of whole release area harvesting; yield adjustments for 
release areas due to differing soil series; yield adjustments for 
moisture; crop surveyor's affidavit of qualifications and crop 
production yields; grasses of acceptable plant species for permanent 
ground cover on agricultural areas; procedure for manually sampling row 
crops; and references.
    The counterpart 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 program. The Federal regulation 
at 30 CFR 823.15 establishes the revegetation and restoration 
requirements for soil productivity on prime farmland.
    Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for prime farmland. The Director finds 
that portion of the prime farmland guidance document that establishes 
the revegetation standards and sampling techniques is not inconsistent 
with and no less effective than the Federal regulations and is 
approving it with the following exception.
    As previously discussed, Missouri proposes in its prime farmland 
guidance document one option for establishing a success standard by 
utilizing approved technical standards including the county average or 
target yield established by the USDA NRCS. Target yields must be 
adjusted annually and be representative of yields expected when using 
high management practices common to the area. The Federal regulation at 
30 CFR 823.15(b)(7) requires that reference crop yields for a given 
crop season are to be determined from * * * (ii) the average county 
yields recognized by the USDA, which have been adjusted by the U.S. 
Soil Conservation Service for local yield variation within the county 
that is associated with differences between nonmined prime farmland 
soil and all other soils that produce the reference crop. The Director 
finds that Missouri's proposal to utilize county averages of production 
is less effective than the Federal regulations because county averages 
would not have been adjusted by the U.S. Soil Conservation Service to 
remove the influence of other nonprime soils that produce the reference 
crop. The Director finds that portion of the prime farmland guidance 
document concerning Missouri's option for establishing a revegetation 
success standard for prime farmland soils with county averages that do 
not distinguish between nonprime and prime soil is less effective than 
the Federal regulations and is not approving its use.
g. Phase III  Revegetation Success Standards for a Recreation Land Use
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for a Recreation land use.'' This 
document describes the criteria and procedures for determining Phase 
III success standards for areas being restored for a recreation land 
use pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
    Missouri proposes that revegetation success for a recreation land 
use be determined on the basis of: the general revegetation 
requirements of the approved permit; ground cover; and tree/shrub 
stocking and survival. The permittee is responsible for measuring the 
vegetation and for submitting the data to the director of MLRP for 
analysis. Measurements of the vegetation must be made in accordance 
with the procedures outlined in the guidance document. The director of 
MLRP must determine that the general requirements for revegetation 
success be satisfied as stated in 10 CSR 40-3.120/

[[Page 26459]]

3.270(1). The guidance document sets out specific success standards and 
measurement frequencies for ground cover and tree and shrub stocking 
rate based on the regulatory requirements of 10 CSR 40-3.120/3.270. 
Sampling procedures are to use statistically valid random sampling 
methods. Ground cover is to be measured by the line-point transect 
method and tree/shrub stocking is to be measured with sampling circles. 
Sample adequacy is to be determined using a prescribed formula. If the 
data indicates that the vegetation is close to the standard but less 
than the standard, the data is to be submitted to the director of MLRP 
for statistical analysis to determine if the differences are 
statistically significant within the limits allowed by regulation. Maps 
must be provided by the permittee for each Phase III plan indicating 
the location of each sampling transect and sample frame point, the area 
covered by the sampling and all permit boundaries. If the permittee can 
not demonstrate revegetation success in the fifth year after completion 
of initial seeding, a mitigation plan must be submitted to the director 
of MLRP including a statement of the problem, a discussion of methods 
to correct the problem, and a new phase III liability release plan. If 
the plan involved augmented activities then the 5 year responsibility 
period will begin again. Appendices are attached illustrating the 
selection of random sampling sites; data forms for line-point transect; 
T--table; example of sample adequacy determination for ground cover; 
statistical analysis for ground cover; accepted plant species; and 
references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for a recreation land use. The Director 
finds that the guidance document is not inconsistent with and no less 
effective than the Federal regulations.
h. Phase III  Revegetation Success Standards for Residential Land Use
    Missouri proposes to adopt a guidance document entitled ``Phase III 
Revegetation Success Standards for Residential land use.'' This 
document describes the criteria and procedures for determining Phase 
III success standards for areas being restored as industrial/commercial 
pursuant to 10 CSR 40-3.120/3.270 (6) and (7).
    Missouri proposes that revegetation success for a residential land 
use be determined on the basis of: the general revegetation 
requirements of the approved permit; ground cover density; and if 
approved in the permit, tree and shrub stocking. The permittee is 
responsible for measuring the vegetation and for submitting the data to 
the director of MLRP for analysis. Measurements of the vegetation must 
be made in accordance with the procedures outlined in the guidance 
document. The director of MLRP must determine that the general 
requirements for revegetation success be satisfied as stated in 10 CSR 
40-3.120/3.270(1). The guidance document sets out specific success 
standards and measurement frequencies for ground cover based on the 
regulatory requirements of 10 CSR 40-3.120/3.270. Sampling procedures 
are to use statistically valid random sampling methods. Ground cover is 
to be measured by the line-point transect method and tree/shrub 
stocking is to be measured with sampling circles. Sample adequacy is to 
be determined using a prescribed formula. If the data indicates that 
the vegetation is close to the standard but less than the standard, the 
data is to be submitted to the director of MLRP for statistical 
analysis to determine if the differences are statistically significant 
within the limits allowed by regulation. Maps must be provided by the 
permittee for each Phase III plan indicating the location of each 
sampling transect and sample frame point, the area covered by the 
sampling and all permit boundaries. If the permittee can not 
demonstrate revegetation success in the fifth year after completion of 
initial seeding, a mitigation plan must be submitted to the director of 
MLRP including a statement of the problem, a discussion of methods to 
correct the problem, and a new phase III liability release plan. If the 
plan involves augmented activities then the 5 year responsibility 
period will begin again. Appendices are attached illustrating the 
selection of random sampling sites; data forms for line-point transect; 
data forms for sample circle; T-table; example of sample adequacy 
determination for ground cover measurements and tree/shrub counts; 
statistical analysis for ground cover and tree/shrub data; accepted 
plan species; and references.
    The counterpart 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 program. 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. Ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard. The sampling 
techniques for measuring success shall use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Missouri is proposing to accomplish this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for a residential land use. The 
Director finds that the guidance document is not inconsistent with and 
no less effective than the Federal regulations.
    Based on the above findings, the Director is removing the required 
program amendment from the Missouri program as codified at 30 CFR 
925.16(a).

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 Missouri program. No comments 
were received.

Environmental Protection Agency (EPA)

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to obtain the 
written

[[Page 26460]]

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.). None of the 
revisions that Missouri proposed to make in this 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. MO-634). EPA did 
not respond to OSM's request.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit 
comments on proposed amendments which may have an effect on historic 
properties from the SHPO and ACHP. Since the proposed amendment would 
not have any effect on historic properties, OSM did not solicit comment 
from the SHPO or ACHP.

V. Director's Decision

    Based on the above findings, the Director approves, with certain 
exceptions, the proposed amendment as submitted by Missouri on December 
14, 1995.
    The Director does not approve, as discussed in: finding No. 2.f, 
Phase II/III Revegetation Success Standards for Prime Farmland, 
Missouri's proposal to utilize county averages of production as one 
method of establishing a target yield for prime farmland. This is less 
effective than the Federal regulations at 30 CFR 823.15(b)(7) because 
the county averages would not have been adjusted by the U.S. Soil 
Conservation Service to remove the influence of other nonprime soils 
that produce the reference crop. Missouri must not use the option for 
utilizing a county average as a success standard for prime farmland 
soils unless and until it is revised consistent with the Federal 
regulations and approved by OSM.
    The Director approves, as discussed in: finding No. 1, 10 CSR 40-
3.120/3.270(6)(B) concerning Specific standards for postmining land 
uses; finding No. 2.a, concerning its Phase III Revegetation Success 
Standards for Woodland; finding No. 2.b, concerning its Phase III 
Success Standards for Industrial/Commercial Revegetation; finding No. 
2.c, concerning its Phase III Revegetation Success Standards for 
Cropland; finding No. 2.d, concerning its Phase III Revegetation 
Success Standards for Wildlife Habitat; finding No. 2.e, concerning its 
Phase III Revegetation Success Standards for Pasture and Previously 
Mined Areas; finding No. 2.f, concerning its Phase II/III Revegetation 
Success standards for Prime Farmland, with the exception noted above; 
finding No. 2.g, concerning its Phase III Revegetation Success 
Standards for a Recreation land use; finding No. 2.h, concerning its 
Phase III Revegetation Success Standards for Residential land use.
    The Director approves the rules and guidance documents as proposed 
by Missouri with the provision that they be fully promulgated in 
identical form to the rules submitted to and reviewed by OSM and the 
public.
    The Federal regulations at 30 CFR Part 925, codifying decisions 
concerning the Missouri 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 
Missouri 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 Missouri 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 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each 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 731.17(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.

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.

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.

[[Page 26461]]

List of Subjects in 30 CFR Part 925

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 8, 1996.
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 925--MISSOURI

    1. The authority citation for Part 925 continues to read as 
follows:

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

    2. Section 925.15 is amended by adding paragraph (u) to read as 
follows:


Sec. 925.15  Approval of regulatory program amendments.

* * * * *
    (u) With the exception of that portion of the Phase II/III 
Revegetation Success Standards for Prime Farmland, concerning the 
option to utilize county averages of production as one method of 
establishing a target yield for prime farmland, the addition of the 
following revegetation success guidelines: Phase III Revegetation 
Success Standards for Woodland; Phase III Success Standards for 
Industrial/Commercial Revegetation; Phase III Revegetation Success 
Standards for Cropland; Phase III Revegetation Success Standards for 
Wildlife Habitat; Phase III Revegetation Success Standards for Pasture 
and Previously Mined Areas; Phase II/III Revegetation Success Standards 
for Prime Farmland; Phase III Revegetation Success Standards for a 
Recreation land use; Phase III Revegetation Success Standards for 
Residential land use; and the revision of the rules at 10 CSR 40-3.120/
3.270(6)(B) concerning specific standards for postmining land uses, as 
submitted to OSM on December 14, 1995, are approved effective May 28, 
1996.


Sec. 925.16  [Amended]

    3. Section 925.16 is amended by removing and reserving paragraphs 
(a) and (p)(6).

[FR Doc. 96-13263 Filed 5-24-96; 8:45 am]
BILLING CODE 4310-05-M