[Federal Register Volume 64, Number 224 (Monday, November 22, 1999)]
[Rules and Regulations]
[Pages 63681-63684]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-30358]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 914

[SPATS No. IN-143-FOR; State Program Amendment No. 98-5]


Indiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Indiana regulatory program (Indiana 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Indiana proposed revisions to rules

[[Page 63682]]

concerning revegetation standards for success for nonprime farmland for 
surface and underground coal mining and reclamation operations under 
Indiana Code (IC) 14-34. Indiana intends to revise its program to be 
consistent with the corresponding Federal regulations.

EFFECTIVE DATE: November 22, 1999.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Director, 
Indianapolis Field Office, Office of Surface Mining, Minton-Capehart 
Federal Building, 575 North Pennsylvania Street, Room 301, 
Indianapolis, Indiana 46204-1521. Telephone (317) 226-6700. Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Indiana 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 Indiana Program

    On July 29, 1982, the Secretary of the Interior conditionally 
approved the Indiana program. You can find background information on 
the Indiana program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the July 26, 
1982, Federal Register (47 FR 32107). You can find later actions on the 
Indiana program at 30 CFR 914.10, 914.15, 914.16, and 914.17.

II. Submission of the Proposed Amendment

    By letter dated August 2, 1999 (Administrative Record No. IND-
1664), Indiana sent us an amendment to its program under SMCRA. This 
amendment replaces State Program Amendment No. 95-2, which we approved 
in the May 30, 1995, Federal Register (60 FR 28069). Indiana sent the 
amendment, which amends the Indiana Administrative Code (IAC), at its 
own initiative.
    We announced receipt of the amendment in the August 16, 1999, 
Federal Register (64 FR (44448)). In the same document, we opened the 
public comment period and provided an opportunity for a public hearing 
or meeting on the adequacy of the amendment. The public comment period 
closed on September 25, 1999. Because no one requested a public hearing 
or meeting, we did not hold one.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.

A. Withdrawal of Previously Approved Amendment

    Indiana notified us in its letter dated July 24, 1997 
(Administrative Record No. IND-1670), that the statutory time frame for 
approving State Program Amendment No. 95-2 had expired prior to final 
approval. We approved this amendment, dated May 3, 1995 (Administrative 
Record No. IND-1460), on September 14, 1995 (60 FR 47692). Since 
Indiana did not adopt the amendment, we are removing our approval and 
amending 30 CFR 914.15 to reflect this decision.

B. 310 IAC 12-5-64.1 (Surface) and 12-5-128.1 (Underground) 
Revegetation Standards for Success for Nonprime Farmland

    Since the revisions proposed for surface mining at Sec. 12-5-
64.1(c) are 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 proposed paragraph notation changes to reflect the 
organizational changes made throughout subsections (c). Additionally, 
Indiana proposed revisions throughout subsections (c) to correct the 
reference to the ``Soil Conservation Service'' to the ``Natural 
Resources Conservation Service.''
    We find that the organizational and reference changes do not render 
the Indiana regulations at 310 IAC 12-5-64.1/128.1 less effective than 
the Federal regulations at 30 CFR 816.116/817.116.
2. Redesignations
    Indiana proposed to redesignate existing subsections (c)(5), 
(c)(6), (c)(7), and (c)(8) as subsections (c)(4), (c)(5), (c)(6), and 
(c)(7), respectively. We find that the proposed redesignations do not 
render the Indiana regulations at 310 IAC 12-5-64.1/128.1 less 
effective than the Federal regulations at 30 CFR 816.116/817.116.
3. Relocation of Existing Provisions
    Indiana proposed to delete the provisions at existing subsections 
(c)(4) and redesignated subsections (c)(6). These provisions require 
that if current Natural Resources Conservation Service predicted yield 
by soil map units are 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. Indiana proposed to relocate 
these provisions to existing subsections (c)(3)(B) and redesignated 
subsections (c)(5)(B).
    Indiana also proposed to delete the provisions at redesignated 
subsections (c)(6) which require that once the method for establishing 
the standards has been selected, it may not be modified without the 
approval of the director of IDNR. Indiana proposed to relocate these 
provisions to redesignated subsections (c)(5)(E).
    We find that Indiana's relocation of these provisions does not 
render the Indiana regulations less effective than the Federal 
regulations and are approving the modifications.
4. Subsections (c)(3)(C), Pastureland Production Success Standards 
Methodology
    Indiana proposed to delete the language in existing subsections 
(c)(3)(C) for determining production of living plants on pastureland 
and replace it with the following:

    (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 
standards for success to 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 from 
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

[[Page 63683]]

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.), we 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, we 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, we find 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).
5. Subsections (c)(3)(D) and (c)(5)(D), Other Success Standards
    Indiana proposed to add subsections (c)(3)(D) and (c)(5)(D) to 
allow other methods 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. This language has the same meaning as the language Indiana 
deleted at subsections (c)(3)(C) and (c)(5)(C). We previously approved 
the provisions at (c)(3)(C) and (c)(5)(C) on May 29, 1992 (57 FR 
22655), with the understanding that Indiana will request our approval 
of other methods before using them in the Indiana program. By letters 
dated March 20, 1992 (Administrative Record No. IND-1051 and IND-1052), 
Indiana stated the IDNR will request OSM's approval for other standards 
prior to their use in the Indiana program if they vary significantly 
from the approved standards. Because the addition of the provisions at 
subsections (c)(3)(D) and (c)(5)(D) does not substantially change the 
approved Indiana program, we are approving them.
6. Subsections (c)(5)(C), Cropland Production Success Standards 
Methodology
    At redesignated subsections (c)(5)(C), Indiana proposed to delete 
the existing language for determining production of living plants on 
cropland and replace it with the following:

    (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. B.4, 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. 
B.4, we 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 an NRCS predicted standard that excludes mined land. 
Therefore, we are approving the provisions proposed at 310 IAC 12-5-
64.1/128.1(c)(5)(C).

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Indiana program (Administrative Record No. IND-1665). 
By letter dated September 20, 1999, the Mine Safety and Health 
Administration (MSHA) responded to our request by stating that the 
proposed amendment does not conflict with MSHA regulations or policies 
(Administrative Record No. IND-1675).

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from the EPA for those provisions of the program amendment 
that relate to air or water quality standards issued under the 
authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean 
Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Indiana 
proposed to make in this amendment pertain to air or water quality 
standards. Therefore, we did not ask the EPA to agree on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. IND-1665). The EPA 
did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On August 9, 1999, we requested comments on Indiana's 
amendment (Administrative Record No. IND-1665), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Indiana on August 2, 1999. We approve the rules that Indiana 
proposed with the provision that they be published in identical form to 
the rules submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 914, which codify decisions concerning the Indiana 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Indiana 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.
    For reasons discussed in finding III.A., we are also amending 30 
CFR Part 914 by removing the approval of an amendment that Indiana 
submitted on May 3, 1995.

[[Page 63684]]

VI. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review 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 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 State regulatory programs and 
program amendments 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

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on 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. Therefore, this rule will ensure that existing requirements 
previously published 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

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on local, state, or tribal 
governments or private entities.

List of Subjects in 30 CFR Part 914

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 4, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 914 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 in the table by removing the entire 
entry having the date ``May 3, 1995'' in the ``Original amendment 
submission date'' column, and by adding a new entry in chronological 
order by ``Date of final publication'' to read as follows:


Sec. 914.15  Approval of Indiana regulatory program amendments.

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   Original amendment submission date           Date of final  publication             Citation/description
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*                  *                  *                *                  *                  *
                                                        *
August 2, 1999..........................  November 22, 1999....................  310 IAC 12-5-64.1(c) and
                                                                                  128.1(c).
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[FR Doc. 99-30358 Filed 11-19-99; 8:45 am]
BILLING CODE 4310-05-P