[Federal Register Volume 66, Number 241 (Friday, December 14, 2001)]
[Rules and Regulations]
[Pages 64746-64750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30895]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

[SPATS No. LA-020-FOR]


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

EFFECTIVE DATE: December 14, 2001.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet: 
[email protected].

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

I. Background on the Louisiana Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ''* * * a State law 
which provides for the regulation of surface coal mining and 
reclamation operations in accordance with the requirements of this Act 
* * *; and rules and regulations consistent with regulations issued by 
the Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). 
On the basis of these criteria, the Secretary of the Interior 
conditionally approved the Louisiana program on October 10, 1980. You 
can find background information on the Louisiana program, including the 
Secretary's findings and the disposition of comments in the October 10, 
1980, Federal Register (45 FR 67340). You can find later actions 
concerning the Louisiana program at 30 CFR 918.15 and 918.16.

II. Submission of the Amendment

    By letter dated June 1, 2001 (Administrative Record No. LA-365.04), 
Louisiana sent us an amendment to its program under SMCRA and the 
Federal regulations at 30 CFR 732.17(b). Louisiana sent the amendment 
in response to our letters dated March 24, 1999, and August 16, 2000, 
that we sent to Louisiana under 30 CFR 732.17 (Administrative Record 
Nos. LA-365 and LA-365.01, respectively).
    We announced receipt of the amendment in the June 27, 2001, Federal 
Register (66 FR 34137). In the same document, we opened the public 
comment period and provided an opportunity for a public hearing or 
meeting on the adequacy of the amendment. The public comment period 
closed on July 27, 2001. Because no one requested a public hearing or 
meeting, we did not hold one.
    During our review of the amendment, we identified concerns relating 
to sampling procedures; data submission and analysis; data forms for 
ground cover and whole release area harvesting; example uses of sample 
adequacy formulas for ground cover and hay production measurements; 
statistical analysis on whole release area harvesting; and acceptable 
plant species for permanent ground cover. We notified Louisiana of 
these concerns by letter dated August 20, 2001 (Administrative Record 
No. LA-365.10).
    By letter dated October 10, 2001 (Administrative Record No. LA-
365.11), Louisiana sent revisions to its program amendment. Because the 
revisions merely clarified certain provisions of Louisiana's amendment, 
we did not reopen the public comment period.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are the Director's findings concerning the amendment to the 
Louisiana program.
    Louisiana submitted revegetation success guidelines that describe 
the standards and procedures for determining revegetation success on 
pastureland. The Federal regulations at 30 CFR 816.116(a)(1) require 
that each regulatory authority select revegetation success standards 
and statistically valid sampling techniques for measuring revegetation 
success and include them in its approved regulatory program. Louisiana 
developed its revegetation success guidelines for pastureland to 
satisfy this requirement. The guidelines for pastureland include 
revegetation success standards and statistically valid sampling 
techniques for measuring revegetation success of reclaimed pastureland 
in accordance with Louisiana's counterpart to 30 CFR 816.116. 
Louisiana's standards, criteria, and parameters for revegetation 
success on pastureland reflect the extent of cover, species 
composition, and soil stabilization required in the Federal regulations 
at 30 CFR 816.111. As required by the Federal regulations at 30 CFR 
816.116(a)(2) and (b), Louisiana's revegetation success standards 
include criteria representative of unmined lands in the area being 
reclaimed to evaluate the appropriate vegetation parameters of ground 
cover and production suitable to the approved postmining land use of 
pastureland. Louisiana's guidelines specify the procedures and 
techniques to be used for sampling, measuring, and analyzing vegetation 
parameters. Ground cover and production suitable to the approved 
postmining land use of pastureland is considered equal to the approved 
success standard when they are not less than 90 percent of the success 
standard. Sampling techniques for measuring success use a 90-percent 
statistical confidence interval. We find

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that use of these procedures and techniques will ensure consistent, 
objective collection of vegetation data.
    For the above reasons, we find that the revegetation success 
standards and statistically valid sampling techniques for measuring 
revegetation success contained in Louisiana's revegetation success 
guidelines for pastureland satisfy the requirements of 30 CFR 
816.116(a)(1).

IV. Summary and Disposition of Comments

Federal Agency Comments

    On June 12, 2001, under section 503(b) of SMCRA and 30 CFR 
732.17(h)(11)(i) of the Federal regulations, we requested comments on 
the amendment from various Federal agencies with an actual or potential 
interest in the Louisiana program (Administrative Record No. LA-
365.05). The Natural Resources Conservation Service (NRCS) responded on 
July 10, 2001 (Administrative Record No. LA-365.08) with extensive 
comments on the technical adequacy of the amendment. These comments are 
discussed below.
    A. The NRCS recommends that Louisiana delete the word ``density'' 
from its introductory language at A.2. concerning ``ground cover'' 
because Louisiana does not use the term ``ground cover density'' in the 
remainder of its revegetation guidelines for pastureland.
    We disagree with the NRCS's comment. The Federal regulation at 30 
CFR 701.5 defines ground cover as ``the area of ground covered by the 
combined aerial parts of the vegetation and the litter that is produced 
naturally onsite, expressed as a percentage of the total area of 
measurement.'' Louisiana definition of ground cover at Sec. 105 is 
substantively identical to the Federal definition. The addition of the 
word ``density'' to the phrase ``ground cover'' does not in any way 
change the regulatory definition of ground cover. Furthermore, because 
this is an introductory paragraph rather than a detailed requirement 
for revegetation standards and methods, we believe the use of the word 
``density'' is of no consequence.
    B. The NRCS states that Louisiana should change the scientific name 
for Kudzu found at B.2.f. As proposed, Louisiana uses the name Pueraria 
lobata. The NRCS recommends that Louisiana change it to Pueraria 
montana var. lobata.
    We recognize that the NRCS promotes the use of the scientific name 
of the species of plants listed in the NRCS plants database. However, 
Pueraria lobata is the accepted scientific name for Kudzu listed in 
``Common Weeds of the United States'' by the USDA in 1971, and in the 
current 1995 volume of the Southern Weed Science Society. Furthermore, 
Louisiana gives both the scientific and common names. Thus, we find 
Louisiana's use of the scientific name Pueraria lobata acceptable.
    C. The NRCS states that, at C.1.c. concerning success standards and 
measurement frequency, it is unclear whether adequate sample size still 
needs to be documented when the initial mean is greater than or equal 
to the standard. The NRCS maintains that even though initial sampling 
results in a mean that is greater than the standard, documentation that 
the mean is from an adequate sample should still be required.
    Section D.3.a. of Louisiana's guidelines gives the detailed 
requirements for determining sample adequacy for ground cover data. 
Specifically, it requires a minimum number of samples in a multi-stage 
sampling procedure where sample adequacy is calculated after the 
minimum samples are collected. This requirement is further clarified in 
Appendix F: Example Use of Sample Adequacy Formula for Ground Cover 
Measurements, where it is clearly stated that the sample adequacy 
requirements must be fulfilled before a comparison to the standard can 
be made. Thus, we find that Louisiana's guidelines are clear that an 
adequate sample size needs to be documented prior to comparing the 
sample mean with the standard.
    D. The NRCS expressed concern about the provision at C.2.a., which 
provides that the success standard for production of hay on pastureland 
shall be 90 percent of an approved reference area if a reference area 
is established, or 90 percent of the estimated yield found in the NRCS 
parish soil survey at Appendix K. The NRCS states that most of the 
species listed in Appendix L, which contains a list of acceptable plant 
species for ground cover, do not have production estimates in the soil 
survey found in Appendix K, and existing reference areas that have 
these species are rare. The NRCS also states that species such as 
buffalograss and the gama grasses listed do not have the production 
potential of a bermudagrass stand under a high level of management.
    Louisiana's guidelines specify that forage production will use the 
standards of yields found in the NRCS parish soil survey in Appendix K. 
Because the only species listed in the survey are common bermudagrass, 
improved bermudagrass, bahiagrass, coastal bermudagrass, pensacola 
bahiagrass, and tall fescue, the reclaimed pasture will need to be 
seeded to one of these species in order to have a valid comparison to 
the standard. Once the production standard is selected, the presence of 
other planted or volunteer species in the pasture will in no way change 
the production standard for comparison. If it is determined that the 
operator could not meet the production standard due to an overabundance 
of acceptable volunteer species that were not as productive as the 
approved seed mix, then the operator would have to manage the stand to 
increase the cover of the approved species and decrease the cover of 
the acceptable species until the standard could be met.
    Louisiana allows in its determination of ground cover that up to 15 
percent of that cover can be volunteer species that are acceptable 
based on the list provided in Appendix L. Because this list is for the 
purposes of ground cover, no production rates for the species listed 
are required.
    E. The NRCS expressed concern that the phrase, ``similar plant 
species and diversity,'' found at C.3.a.i. is too vague. The NRCS asks 
how the terms ``similar'' and ``diversity'' will be determined, and 
points out that there are several different methods to define these 
terms.
    We disagree with this comment. The word ``similar'' is a commonly 
used term, and we do not believe further definition is required. 
Furthermore, Louisiana must use the entire list of factors at C.3.a. 
when determining the similarity of the reference area to the reclaimed 
area. This is a qualitative assessment based on the expertise and 
judgement of the Louisiana program consistent with factors cited in the 
scientific literature for the establishment of reference areas for this 
purpose.
    The word ``diversity'' is defined at C.1.b. Louisiana's guidelines 
provide that ground cover must consist of the species mixture approved 
in the original permit or an approved acceptable species mixture as 
recommended by the NRCS for use in that area. Furthermore, no more than 
15% of the stand can be approved species not listed in the permit. The 
Federal regulations at 30 CFR 816.111 require vegetative diversity as a 
performance standard for plant establishment. Louisiana has established 
a qualitative standard for diversity. This is consistent with the 
Federal regulations, which allows a qualitative standard for diversity.
    F. The NRCS states that the use of the phrases, ``proposed mined 
release area,'' ``mined test area,'' ``reclaimed area,'' and 
``pastureland area'' at C.3.a.ii., iv., v., and ix. is confusing. The 
NRCS suggests that if all these terms are meant

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to denote pastureland in the reclaimed area, Louisiana should use the 
same term. If they are not meant to mean the same thing, the NRCS 
states that Louisiana should more clearly define them.
    Louisiana proposes nine factors to be evaluated in order to 
determine if an unmined reference area is representative of a reclaimed 
area. Based on a simple reading of the terms in the context presented, 
it is clear that all the above phrases refer to the reclaimed area. We 
do not believe additional clarification is necessary.
    G. The NRCS points out that D.2.a. describes three sampling methods 
in which a sample is defined as a single point, a single point frame, 
or a transect. Further, the provision at D.4.a. requires a minimum of 
100 samples be taken. The NRCS expressed concern that the level of 
effort required for each of the methods is very different, and asks if 
this is what Louisiana intended. If not, the NRCS recommends that 
Louisiana clarify the provision at D.4.a.
    We agree with this comment. In a letter dated August 20, 2001 
(Administrative Record No. LA-365.10), we informed Louisiana that, 
while a minimum sample size of 100 may be appropriate for the pin 
sampling technique, a sample size of 100 seems excessive for the point 
frame and line intercept sampling techniques.
    On October 10, 2001 (Administrative Record No. LA-365.11), 
Louisiana revised section D. by removing D.3. concerning representative 
test plots, redesignating D.4. as D.3., and revising the provision at 
redesignated D.3. to specify that the minimum sample size depends upon 
the results of the first stage of a multi-staged sampling procedure. We 
find that the revisions to section D. are appropriate, and resolve the 
NRCS's concerns.
    H. The NRCS states that, at section D.4. concerning sample 
adequacy, it is unclear if sample adequacy will be determined for the 
reference area when using a reference area for comparison to the 
reclaimed site. The NRCS also states that the sample adequacy equations 
in this section do not account for Beta error.
    Section C.3.a. concerning reference area requirements states that 
either statistically adequate subsampling or whole plot harvesting may 
be used to determine yields. Thus, sample adequacy must be determined 
for reference areas. Furthermore, the Federal regulations at 30 CFR 
816.116(a)(2) require that the sampling techniques for measuring 
success will use a 90% statistical confidence interval (i.e. one-sided 
test with a 0.10 alpha error). Neither SMCRA not the Federal 
regulations require consideration of Beta error.
    I. The NRCS recommends that, in Appendix A: Selection of Random 
Sampling Sites, Louisiana revise the last sentence of the second 
paragraph by replacing the word, ``axes'' with the phrase, ``grid 
intervals.''
    We find that Louisiana's use of the term ``axes'' as a reference 
line to a coordinate system is acceptable.
    J. The NRCS points out that the example found in Appendix F: 
Example Use of Sample Adequacy Formula for Ground Cover Measurements 
shows only ten transects sampled, when the minimum required by D.4.a. 
is 100. The NRCS states Louisiana should consider reducing the number 
of minimum samples for transects to between 15 and 30. The NRCS also 
expressed concern that the calculations shown in the example are 
incorrect.
    We agree with this comment. As stated above in the response to 
comment G., we informed Louisiana in our August 20, 2001, letter, that 
the example calculations for determining sample adequacy for ground 
cover in the appendices need to reflect the appropriate required 
minimum sample size. We further informed Louisiana that in Appendix F, 
the mean value in the last calculation of sample adequacy needs to be 
changed from 72.48 to 74.8.
    In its October 10, 2001, letter, Louisiana revised the provision at 
redesignated D.3. to specify that the minimum sample size depends upon 
the results of the first stage of a multi-staged sampling procedure. 
Louisiana further revised the mean value in the last calculation of 
sample adequacy. We find that the revisions to section D.3. and 
Appendix F are appropriate, and resolve the NRCS's concerns.
    K. Finally, the NRCS recommends that Louisiana change the names of 
several species found in Appendix L.
    We agree with this comment. In our August 20, 2001, letter, we 
recommended that Louisiana correct several of the scientific and common 
names found in Appendix L. In its October 10, 2001, letter, Louisiana 
made the revisions we recommended. We find that the revisions Louisiana 
made are appropriate, and resolve the NRCS's concerns.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to obtain the 
written concurrence of the EPA for those provisions of the program 
amendment that relate to air or water quality standards issued under 
the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the 
Clean Air Act (42 U.S.C. 7401 et seq.). However, none of the revisions 
that Louisiana proposed to make in this amendment pertain to air or 
water quality standards. Therefore, we did not ask the EPA for its 
concurrence.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. LA-365.05). The EPA 
did not respond to our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On June 12, 2001, we requested comments on Louisiana's 
amendment (Administrative Record No. LA-365.05), but neither responded 
to our request.

Public Comments

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

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Louisiana on June 1, 2001, and as revised on October 10, 2001.
    We approve the revegetation success standards for pastureland that 
Louisiana proposed with the provision that they be published in 
identical form to the revegetation success standards for pastureland 
sent to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 918, which codify decisions concerning the Louisiana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process.

VI. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

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Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary under SMCRA.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments because each program is drafted and promulgated by a 
specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 
U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866, and because it is not expected to have a 
significant adverse effect on the supply, distribution, or use of 
energy, a Statement of Energy Effects is not required.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, federal, state, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S. based enterprises to compete with foreign-based enterprises.
    This determination is based upon the fact that the State submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 918

    Intergovernmental relations, Surface mining, Underground mining.

    November 14, 2001.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR Part 918 is amended 
as set forth below:

PART 918--LOUISIANA

    1. The authority citation for Part 918 continues to read as 
follows:

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

    2. Section 918.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 918.15  Approval of Louisiana regulatory program amendments.

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   Original amendment  submission date     Date of final  publication             Citation/description
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*                  *                  *                  *                  *                  *
                                                        *
June 1, 2001............................  12/14/01...................  Revegetation Success Standards for
                                                                        Pastureland
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[FR Doc. 01-30895 Filed 12-13-01; 8:45 am]
BILLING CODE 4310-05-P