[Federal Register Volume 67, Number 38 (Tuesday, February 26, 2002)]
[Rules and Regulations]
[Pages 8711-8717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4515]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[KS-022-FOR]


Kansas Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Kansas regulatory program 
(Kansas program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The Kansas Department of Health and 
Environment, Surface Mining Section (Kansas) proposed to consolidate 
and revise its approved revegetation guidance document. The amendment 
is intended to revise the Kansas program to be consistent with the 
corresponding Federal regulations and to improve operational 
efficiency.

EFFECTIVE DATE: February 26, 2002.

FOR FURTHER INFORMATION CONTACT: John W. Coleman, Mid-Continent 
Regional Coordinating Center. Telephone: (618) 463-6460. Internet 
address: [email protected].

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

I. Background on the Kansas 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 the Act * 
* *; and rules and regulations consistent with regulations issued by 
the Secretary pursuant to the 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 Kansas program on January 21, 1981. You can 
find background information on the Kansas program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the January 21, 1981, Federal Register (46 FR 5892). You 
can also find later actions concerning Kansas' program and program 
amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

II. Submission of the Proposed Amendment

    By letter dated October 9, 2001 (Administrative Record No. KS-622), 
Kansas sent us an amendment to its program under SMCRA (30 U.S.C. 1201 
et seq.). Kansas sent the amendment in response to deficiencies that we 
identified in Kansas' revegetation guidance document in a previous 
final rule on August 19, 1992 (57 FR 37430). The amendment also 
included changes made at Kansas' own initiative. Kansas amended the 
Kansas revegetation guidance document entitled ``Revegetation Standards 
for Success and Statistically Valid Sampling Techniques for Measuring 
Revegetation Success.''
    We announced receipt of the amendment in the November 30, 2001, 
Federal Register (66 FR 59751). 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. We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on December 31, 2001. We received comments from one 
industry group and one Federal agency.
    During our review of the amendment, we identified concerns at Part 
I, Section I.6.b, about other plant species (species not approved in 
the permit) that are allowed for determining the acceptable percentage 
of ground cover for various postmine land uses. The other plant species 
are listed in Appendix A of Kansas' revegetation success guidelines. We 
notified Kansas of this concern in a telephone conference on November 
6, 2001 (Administrative Record No. KS-622.1A).
    By letter dated November 29, 2001 (Administrative Record No. KS-
622.2), Kansas sent us a letter from the Natural Resources Conservation 
Service that stated it concurred with the use of the plant specifies 
listed in Appendix A for determining ground cover success. Appendix A 
lists the acceptable plant species by land use (including legume, 
grass, tree, shrub, and vine) that permittees may use to meet Kansas' 
productivity and ground cover success standards when reclaiming mined 
land.
    Kansas also submitted revisions to its revegetation guidance 
document on January 8, 2002 (Administrative Record No. 622.7), in 
response to comments received from Triad Environmental Services and the 
Natural Resources Conservation Service. These revisions are discussed 
in section IV, ``Summary and Disposition of Comments.''
    Because the additional information and revisions merely clarified 
certain provisions of Kansas' amendment, we did not reopen the public 
comment period.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that each regulatory authority select revegetation success 
standards and statistically valid techniques for determining 
revegetation success and include them in its approved regulatory 
program. Kansas sent us its revised revegetation guidance document to 
satisfy this requirement. As required by the Federal regulations at 30 
CFR 816.116(a)(2), 817.117(a)(2), and 823.15(b), Kansas prescribed 
success standards in its guidance document that include criteria 
representative of unmined lands in the area being reclaimed, using 
parameters of ground cover, production, or stocking relevant to the 
approved postmining land use. The standards, criteria, and parameters 
reflect the extent of cover, species composition, and soil 
stabilization requirements of the Federal regulations at 30 CFR 816.111 
and 817.111. The

[[Page 8712]]

revised guidance document also specifies the procedures to be used for 
sampling, measuring, and analyzing vegetation parameters. Use of these 
procedures will ensure consistent, objective collection of vegetation 
data. Therefore, we are approving the revisions to Kansas' revegetation 
guidance document as described below.

A. Preface

    The preface to Kansas' guidance document discusses the purpose of 
the document, the geographic region the document concentrates on, and 
the State regulations covered by the document. Kansas removed language 
from the preface that we did not approve in the August 19, 1992, final 
rule decision. This language appeared to exempt specific permits from 
certain requirements of Kansas' guidance document.
    We find that with the removal of the disapproved language, the 
preface to Kansas' guidance document meets the requirements of the 
Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1).

B. Definitions

    Kansas defined the following terms that are specific to the Kansas 
revegetation guidance document: Animal Unit Month (A.U.M.); Cropland; 
Desirable; Diverse; Effective; Forage; Global Positioning System (GPS); 
Historically Cropped; Kansas Department of Wildlife and Parks (KDWP); 
Kansas State University (KSU); Natural Resources Conservation Service 
(NRCS); Permanent; Previously Mined; Prime Farmland; Surface Mining 
Section (SMS); and Total Cover.
    The Federal regulations do not contain all of the definitions 
proposed by Kansas. However, we find that Kansas' definitions for 
cropland, historically cropped, previously mined, and prime farmland 
are substantively the same as the counterpart Federal definitions at 30 
CFR 701.5. We further find that the other definitions are not 
inconsistent with other Federal definitions or the requirements for 
revegetation success at 30 CFR 816.116(a)(2), 817.116(a)(2), 816.111, 
or 817.111.

C. Tables

    Kansas added three new tables that contain a summary of the 
vegetation requirements that are detailed in the guidance document. 
Table 1 contains a summary of the productivity and ground cover 
vegetation requirements for Phase II and Phase III bond release of 
pasture land and grazing land; wildlife habitat, recreation, shelter 
belts, and forest products; and industrial, commercial, or residential 
land uses. Table 2 lists a summary of the productivity and ground cover 
vegetation requirements for Phase II and Phase III bond release of 
prime farmland. Table 3 contains a summary of the productivity and 
ground cover vegetation requirements for Phase II and Phase III bond 
release of cropland.
    We find that these summary tables meet the requirements of the 
Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1).

D. Part I. Ground Cover Success

    Kansas consolidated the substantive provisions of its approved 
ground cover success standards for all land uses in Part I. Section A 
provides the standard for ground cover on prime farmland, cropland, and 
pasture/grazing land. Section B discusses the standard for ground cover 
on previously mined areas. Section C provides the standard for ground 
cover on wildlife habitat, recreation, shelter belt, and forest product 
land use areas that have topsoil. Section D contains standards for 
ground cover on industrial, commercial, or residential land use areas 
that have topsoil. Sections E and F provide general information on pre-
mining ground cover sampling criteria and techniques. Section G 
contains specific pre-mining ground cover sampling techniques. Section 
H provides specific post-mining ground cover sampling criteria. 
Finally, Section I covers specific post-mining ground cover sampling 
techniques.
    The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 
817.116(a)(1) require that standards for success and statistically 
valid sampling techniques for measuring success must be selected by the 
regulatory authority and included in an approved program. The Federal 
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that 
standards for success must include criteria representative of unmined 
lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of ground cover. Ground cover will 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 must use a 90 percent statistical confidence interval (i.e., 
one-sided test with a 0.10 alpha error). The Federal regulations at 30 
CFR 816.116(b) and 817.116(b) contain the minimum success standards for 
ground cover for each land use. The Federal regulations at 30 CFR 
816.116(c) and 817.116(c) contain the minimum period of extended 
responsibility for successful revegetation. We conducted a technical 
review of Part I and found that Kansas' guidelines for ground cover are 
no less effective than the requirements of these Federal regulations.

E. Part II. Forage Production Success Standard

    Kansas revised and consolidated the substantive provisions of its 
approved forage production success standards for prime farmland, 
cropland, pasture land, and grazing land in Part II. Section A 
discusses the use of the United States Department of Agriculture, 
Natural Resources Conservation Service (USDA-NRCS) soil survey database 
for determining productivity of cool season grass seed mixtures. This 
database lists crop yields by the soil mapping units contained in the 
published county soil surveys for Kansas. Section A also discusses the 
USDA-NRCS database in Technical Guide Notice KS-145. This database is 
used for determining productivity of native grass seed mixtures. 
Section B contains information on methods of calculation using the 
Animal Unit Month (A.U.M.) values listed in the USDA-NRCS soil surveys 
for Kansas. Kansas reevaluated the A.U.M. value used in its previous 
guidance document for forage production. The A.U.M. value is the 
monthly average pounds of forage needed to support each 1,000 pounds of 
cattle. Kansas changed this value from 900 pounds to 760 pounds of dry 
forage based upon a recommendation by the Natural Resources 
Conservation Service (Administrative Record No. KS-622.8). Section C 
provides productivity standards for prime farmland forage crops. 
Section D covers the productivity standards for cropland forage crops. 
Section E covers the productivity standard for previously mined lands 
reconstructed to pasture and grazing land. Section F contains 
information on the productivity standards for pasture and grazing land. 
Section G discusses the methods of data collection, including use of 
representative areas with test plots or whole field harvesting. Kansas 
added whole field harvesting to the methods of data collection for 
forage. Section H contains specific forage crop production sampling 
criteria. Finally, Section I covers specific forage crop production 
sampling techniques.
    The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 
817.116(a)(1) require that standards for success and statistically 
valid sampling techniques for measuring success must be selected by the 
regulatory authority and included in an approved program. The Federal 
regulations at 30 CFR 816.116(a)(2),

[[Page 8713]]

817.116(a)(2), and 823.15(b) require that standards for success must 
include criteria representative of unmined lands in the area being 
reclaimed to evaluate the appropriate vegetation parameters of 
production. Production for prime farmland must meet 100 percent of the 
success standard.
    Production for cropland, pasture land, and grazing land will be 
considered equal to the approved success standard when it is not less 
than 90 percent of the success standard. The sampling techniques for 
measuring success must use a 90 percent statistical confidence interval 
(i.e., one-sided test with a 0.10 alpha error). The Federal regulations 
at 30 CFR 816.116(b) and 817.116(b) contain the minimum success 
standards for cropland, pasture land, and grazing land and 30 CFR 
823.15(b) contains the success standards for prime farmland. The 
Federal regulations at 30 CFR 816.116(c) and 817.116(c) contain the 
minimum period of extended responsibility for successful revegetation. 
We conducted a technical review of Part II and found that Kansas' 
guidelines for forage production are no less effective than the 
requirements of these Federal regulations.

F. Part III. Productivity Standards for Row Crops

    Kansas revised and consolidated the substantive provisions of its 
approved row crop production success standards for prime farmland and 
cropland in Part III. Kansas also added corn as an acceptable row crop 
under specified conditions. Section A discusses the acceptable row 
crops for revegetation productivity. Section B contains information on 
the method of row crop production success standard calculations. 
Section C provides row crop sampling criteria. Section D contains the 
following sampling methods for data collection involving representative 
areas: test plots, whole field sampling, and whole field harvesting. 
Section E provides productivity sampling criteria for prime farmland 
row crops. Section F discusses productivity sampling criteria for 
cropland row crops. Finally, Section G contains row crop sampling 
techniques involving test plots and whole field sampling for grain 
sorghum (milo), wheat, soybeans, and corn.
    In response to deficiencies that we identified in the August 19, 
1992, final decision on Kansas' current revegetation success 
guidelines, Kansas revised its row crop sampling techniques for grain 
sorghum and wheat. To address the deficiencies, Kansas added provisions 
that require operators to make determinations of statistical sample 
adequacy based on sample weights corrected to a standard moisture 
content.
    The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 
817.116(a)(1) require that standards for success and statistically 
valid sampling techniques for measuring success must be selected by the 
regulatory authority and included in an approved program. The Federal 
regulations at 30 CFR 816.116(a)(2), 817.116(a)(2), and 823.15(b) 
require that standards for success must include criteria representative 
of unmined lands in the area being reclaimed to evaluate the 
appropriate vegetation parameters of production. Production for prime 
farmland must meet 100 percent of the success standard. Production for 
cropland will be considered equal to the approved success standard when 
it is not less than 90 percent of the success standard. The sampling 
techniques for measuring success must use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). The 
Federal regulations at 30 CFR 816.116(b) and 817.116(b) contain the 
minimum success standards for cropland and 30 CFR 823.15(b) contains 
the success standards for prime farmland. The Federal regulations at 30 
CFR 816.116(c) and 817.116(c) contain the minimum period of extended 
responsibility for successful revegetation. We conducted a technical 
review of Part III and found that Kansas' guidelines for row crop 
production are no less effective than the requirements of these Federal 
regulations.

G. Part IV. Productivity Success Standards for Trees and Shrubs

    Kansas consolidated its productivity success standards for trees 
and shrubs in Part IV. Section A discusses the general success 
standards for fish and wildlife habitat, recreation areas, forest 
products, and shelter belts. Section B contains the Phase II and Phase 
III productivity success standards for these land uses. Section C 
provides information on productivity sampling criteria. Section D 
contains stem density sampling techniques. Finally, Section E discusses 
previously mined areas that are reclaimed to fish and wildlife habitat, 
recreation, forest products, and shelter belts.
    The counterpart Federal regulations at 30 CFR 816.116(a)(1) and 
817.116(a)(1) require that standards for success and statistically 
valid sampling techniques for measuring success must be selected by the 
regulatory authority and included in an approved program. The Federal 
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that 
standards for success must include criteria representative of unmined 
lands in the area being reclaimed to evaluate the appropriate 
vegetation parameters of stocking. Tree and shrub stocking will be 
considered equal to the approved success standard when it is not less 
than 90 percent of the success standard. The sampling techniques for 
measuring success must use a 90 percent statistical confidence interval 
(i.e., one-sided test with a 0.10 alpha error). The Federal regulations 
at 30 CFR 816.116(b)(3) and 817.116(b)(3) contain the minimum success 
standards for tree and shrub stocking for areas to be developed for 
fish and wildlife habitat, recreation, forest products, and shelter 
belts. The Federal regulations at 30 CFR 816.116(c) and 817.116(c) 
contain the minimum period of extended responsibility for successful 
revegetation. We conducted a technical review of Part IV and found that 
Kansas' guidelines for tree and shrub stocking are no less effective 
than the requirements of these Federal regulations.

H. Appendices

    Kansas' revised revegetation guidance document contains seven 
appendices that support the provisions in Parts I through IV.

1. Appendix A, Plant Species List

    Kansas revised its previously approved list of plant species. 
Appendix A lists the plant species that are unacceptable for all 
land uses with specified exceptions. It lists the acceptable tree 
species for fish and wildlife habitat, recreation areas, forest 
products, and shelter belts. It also lists the acceptable shrub and 
vine species for fish and wildlife habitat, recreation areas, and 
shelter belts. In addition, it lists the acceptable legume species 
based on land use for revegetation productivity and ground cover. 
Finally, it lists the acceptable grass species based on land use for 
revegetation productivity and ground cover. By letter dated November 
29, 2001 (Administrative Record No. KS-622.2), Kansas sent us a 
letter from the Natural Resources Conservation Service that stated 
it concurred with the use of the plant species listed in Appendix A 
for determining revegetation productivity and ground cover success 
for the State of Kansas.
    Based on our technical review and the concurrence letter from 
the Natural Resources Conservation Service, we are approving the 
revisions to Appendix A.

2. Appendix B, Animal Unit Month-Methods of Production Success Standard 
Calculations

    As discussed in finding E, Kansas revised its A.U.M. value for 
use in calculating forage production. Kansas defines the A.U.M. as 
the monthly average pounds of forage needed to support each 1,000 
pounds of cattle. Kansas submitted calculations and documentation in 
Appendix B that support an A.U.M. equal to 760 pounds of forage. 
Appendix B contains tables showing two methods of calculating the 
success standard for grain sorghum,

[[Page 8714]]

wheat, and corn by soil type. The documentation also includes two 
methods of calculating forage production based on A.U.M. per soil 
type for cool season grass seed mixtures and warm season grass seed 
mixtures. In a letter dated May 11, 1993, the Natural Resources 
Conservation Service recommended that Kansas use an average of 25 
pounds of forage per day for a 1000 pound cow in calculating 
production requirements for forage. Kansas provided calculations to 
show that the monthly A.U.M. value would equal 760 pounds of forage.
    The Federal regulations at 30 CFR 816.116(a)(2) and 
817.116(a)(2) require that standards for success must 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 will 
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 must use a 90 percent statistical 
confidence interval (i.e., one-sided test with a 0.10 alpha error). 
Based on our technical review and the recommendation from the 
Natural Resources Conservation Service, we find that Appendix B in 
combination with Part II, Section B, meets the requirements of 30 
CFR 816.116(a)(2) and 817.116(a)(2).

3. Appendix C (Production Data), Appendix D (Planting Reports), 
Appendix E (Reference Area Criteria), and Appendix G (Measuring Grain 
Moisture)

    Kansas either proposed no revisions or nonsubstantive revisions 
to the previously approved information contained in Appendices C, D, 
E, and G. Therefore, we find that the information in these 
appendices continue to meet the requirements of 30 CFR 816.116(a)(1) 
and 817.116(a)(1).

4. Appendix F, Representative Sample Field Area Definition and Test 
Plot Criteria

    Kansas allows permittees to use representative areas with test 
plots to assess row crop productivity. Kansas consolidated its 
criteria for representative sample field areas for cropland and 
prime farmland into Appendix F. Appendix F discusses the use of data 
from representative sample field areas to prove row crop production 
success. This data is obtained from individual row crop test plots. 
Kansas removed the requirement to describe the bulk density of each 
soil probe location. Kansas also removed the requirement for a 
secondary grouping of the field data.
    We find that the removal of these requirements will not make 
Kansas' requirements for representative areas with test plots less 
effective than the Federal regulations at 30 CFR 816.116(a) and 
817.116(a).

IV. Summary and Disposition of Comments

Public Comments

    By letter dated December 31, 2001 (Administrative Record No. KS-
622.6), Triad Environmental Services (Triad) commented on several 
provisions in the amendment.
    (1) Triad questioned why the minimum of 70 percent cover discussed 
in Part I, Section B, doesn't show up in Table 1 for ``No Topsoil'' 
areas.
    Table 1 is just a summary of the vegetation requirements that are 
detailed in the guidance document. In the category of ``No Topsoil'' 
for each land use, Kansas summarizes the cover requirements as one year 
ground cover at 90 percent of the pre-mine cover and adequate to 
control erosion. Later in the document, Kansas provides the specific 
detailed guidance for measuring revegetation success by land use. In 
the detailed guidance Kansas specifies that a 70 percent ground cover 
is adequate to control erosion. There is no need to repeat all of the 
details provided in the land use specific guidance in the summary 
table.
    (2) Triad commented that footnote (a) in Table 2 and footnote (b) 
in Table 3 should reference grain sorghum.
    In response to Triad's comment, Kansas revised its terminology in 
Tables 2 and 3 to consistently refer to the row crop of grain sorghum.
    (3) Triad questioned the meaning of the second paragraph in Part I 
that states ``a subjective analysis of the ground cover will be 
required and must consider the premined quality of each land use.'' 
Triad also stated that the proposed revegetation guidelines should be 
for postmine revegetation success determinations.
    In response to the first comment, Kansas revised the language in 
the second paragraph of Part I to read, ``A detailed analysis of the 
premine ground cover will be required and must consider the premine 
quality of each land use.''
    Triad is incorrect in its assertion that the revegetation 
guidelines should be restricted to postmining revegetation. Measurement 
of postmining revegetation success is dependent upon a comparison to 
the premining vegetation as required at 30 CFR 816.116(a).
    (4) Triad questioned why the premine ground cover was used in the 
second paragraph of Part I, Section A.
    Kansas has chosen to use the premine reference area as one way of 
developing a standard of vegetative cover for comparison to the 
postmine cover. This is consistent with the Federal regulation 
requirements at 30 CFR 816.116(a)(2).
    (5) Triad commented that Kansas should add the language ``and shall 
be adequate to control erosion'' in Part I, Section B.
    In response to this comment, Kansas revised the second sentence in 
Part I, Section B, to read, ``The ground cover success standards for 
previously mined areas will be the same as that of the premine ground 
cover, or at a minimum 70%, and shall be adequate to control erosion.''
    (6) Triad questioned whether in Part I, Section C, the word ``and'' 
should be replaced by the word ``or'' in the phrase, ``will be the 
greater of the premine ground cover value and the ground cover value 
needed to meet the approved postmining land use.'' Triad also 
questioned whether the values in the Table 1 summary should be included 
in this section, i.e., ``90% or greater of the 100% standard.''
    In response to Triad's first comment, Kansas added the word 
``either'' after the words ``greater of'' and replaced the word ``and'' 
with the word ``or.'' The revised sentence reads, ``The ground cover 
success standards for fish and wildlife habitat, recreation, shelter 
belts and forest products land uses will be the greater of either the 
premine ground cover or the ground cover value need to meet the 
approved postmining land use.''
    In response to Triad's second comment, we do not believe that the 
exact language in Table 1 needs to be included in Section C. Table 1 is 
just a summary of the general vegetation requirements that are detailed 
in the guidance document. However, Kansas does state the same standard 
in the first sentence of Section C in the phrase, ``all areas must meet 
90% of the success standard.'' Unless otherwise stated, the success 
standard is always a ``100% standard.''
    (7) Triad commented that the requirements in Part I, Section E, 
Premine Ground Cover Sampling Criteria Techniques, should be 
``clarified to state that if a lower technical standard is proposed 
then this procedure will be used. There is no requirement under 816.116 
or 779.19 to collect premine vegetation at a 90 percent statistical 
confidence interval.''
    We disagree with the commenter. First, the Kansas regulations at 
K.A.R. 47-9-1(c) incorporate by reference 30 CFR Part 816. At 30 CFR 
816.116(a)(1), all revegetation standards whether technical or 
reference area are required to be selected by the regulatory authority 
and included in an approved regulatory program. Any other standards

[[Page 8715]]

not included in the approved guidelines would have to be approved 
through the same regulatory selection and approval process as the 
existing approved guidelines. As such, the language suggested by the 
commenter would not meet the requirements of 30 CFR 816.116(a)(1). 
Second, 30 CFR 816.116(a)(2) does require the use of a 90 percent 
statistical confidence interval when the undisturbed premine ground 
cover data is used as a standard for comparison with postmining 
revegetation success data.
    (8) Triad commented that in Part I, Section F.7, ``the premine 
sample dates should agree with the postmine sample dates (i.e. December 
1).''
    In response to Triad's comment, Kansas revised both the premine and 
postmine sample dates to read ``April 1 to November 1.''
    (9) Triad questioned why the species list for fish and wildlife 
habitat, recreation, shelter belts, and forest products, including 
pasture or grazing land used as wildlife habitat enhancement at Part I, 
Section I.9(a)(1), is different than the other land uses.
    For these particular land uses, Kansas requires that a minimum of 
certain plant species be included in the ground cover on a land use 
specific basis. Kansas requires different species for different land 
uses because different land uses require the plant species that are 
compatible with that use.
    (10) Triad commented that at Part II, Section F, Kansas needed to 
clarify the requirements for Phase II revegetation bond release.
    In response to this comment, Kansas clarified the requirements for 
successful revegetation establishment at Phase II bond release by 
revising the first paragraph. Kansas added the language, ``At Phase 
II'' to the beginning of the last sentence of the paragraph as shown 
below:

    At Phase II, successful revegetation establishment is attained 
when the revegetation success standards are achieved for one growing 
season in accordance with the requirements in K.A.R. 47-9-1(c), 
adopting by reference 30 CFR 816.111(a) and (b), and 816.116(b) and 
(c); and K.A.R. 47-9-1(e), adopting by reference 30 CFR 817.111(a) 
and (b), and 817.116(b) and (c).

    (11) Triad questioned whether the stratification plan for forage 
crop production referred to in Part II, Section H, requires approval 
prior to initiation of sampling.
    Kansas requires the operator to submit the plan for stratification 
before the initiation of sampling. However, Kansas does not require 
that the plan be approved before sampling. In the January 8, 2002, 
cover letter for its revised guidance document, Kansas clarified that 
approval of the plan does not take place until after initial sampling 
(Administrative Record No. KS-622.7).
    (12) Triad commented that Kansas should include the language, 
``meet or exceed the optional reference area'' in Part III, Section E.
    In response to Triad's comment, Kansas added the suggested language 
to the last sentence of the first paragraph of Section E. The revised 
sentence reads as follows:

    This required year of row crops must meet the calculated row 
crop success standard, or meet or exceed a reference area, to obtain 
a phase II bond release as per K.A.R. 47-8-9(a)(13), adopting by 
reference 30 CFR 800.40(c)(2).

    (13) Triad commented that Bermuda grass should be added to Appendix 
A as an acceptable species for pasture land use. Triad also submitted a 
December 18, 2001, letter from Mr. Gary Kilgore, Area Crops Specialist 
for Kansas State University Extension Service, who recommended that 
Bermuda grass be allowed.
    In response to this comment, Kansas revised Appendix A to include 
Bermuda grass on the list of approved species for pasture land use.
    (14) Finally, Triad commented, ``TRIBE 13--ANDROPOGONEAE--Little 
Bluestem, Big Bluestem, and Indian Grass should be allowed for pasture 
land use.''
    In response to this comment, Kansas revised Appendix A to include 
these species on the list of approved species for pasture land use.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Kansas program (Administrative 
Record No. KS-622.1). The Natural Resources Conservation Service (NRCS) 
responded on December 10, 2001 (Administrative Record No. (KS-622.5), 
with two comments.
    (1) The NRCS commented that in Part I, Section I.9, ``the statement 
is made that a visual scan of each area will be made to determine 
compliance with diversity (number of species present). Instead of using 
a visual scan to determine species numbers, why not use the data 
developed from ground cover measurements to determine species numbers. 
This would provide more accurate information as well as reduce sampling 
time.''
    In response to this comment, Kansas revised the text of Part I, 
Section I.9, to require that data developed from ground cover 
measurements in addition to a visual scan during the optimal growing 
season will be used to determine if each stratified sample area meets 
the criteria specified for the intended land use.
    (2) The NRCS provided the following comments concerning Part II, 
Section B:

    The statement is made that Animal Unit Month (A.U.M.) Values 
listed in the USDA NRCS soil surveys are converted to lbs./acre of 
dry forage per growing season and that the guideline used is 760 
lbs. of dry matter per A.U.M. A point of clarification is needed on 
this statement. The A.U.M. factors listed in soil surveys and 
technical notices are determined from the following procedure. The 
amount of total above ground forage production is multiplied by the 
harvest efficiency expected for that particular land use. This 
provides the amount of forage production allocated for animal 
consumption. This amount is then divided by the amount of forage 
allocated to an animal unit month (in this case, 760 lbs.). If the 
intent of the procedure covered under Section B is to arrive at a 
potential total production figure for the reclaimed land by 
multiplying the number of A.U.M.'s by 760, without taking into 
consideration the harvest efficiency factor, the potential 
productivity will be significantly underestimated.

    Kansas did not make any changes in response to this comment. Kansas 
investigated the current USDA-NRCS soil surveys and discovered that the 
crop production values included compensation for loss due to livestock 
trampling, insect damage, and herbivore consumption (harvest efficiency 
factors).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from 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 Kansas proposed to 
make in this amendment pertain to air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, 
under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment 
from EPA (Administrative Record No. KS-622.1). EPA did not respond to 
our request.

State Historic 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 November 15, 2001, we

[[Page 8716]]

requested comments on Kansas' amendment (Administrative Record No. KS-
622.1), but neither responded to our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Kansas sent 
us on October 9, 2001, and as revised on January 8, 2002.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 916, which codify decisions concerning the Kansas 
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 final rule effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

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 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 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 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

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 pursuant to SMCRA.

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 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

    This rule does not require an environmental impact statement 
because 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 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 certifies 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. 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; and (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 an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 916

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 1, 2002.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 916 is amended as 
set forth below:

PART 916--KANSAS

    1. The authority citation for part 916 continues to read as 
follows:

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


    2. Section 916.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:

[[Page 8717]]

Sec. 916.15  Approval of Kansas regulatory program amendments.

* * * * *

 
----------------------------------------------------------------------------------------------------------------
   Original amendment submission date           Date of final publication              Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
October 9, 2001.........................  February 26, 2002....................  Revegetation Standards for
                                                                                  Success and Statistically
                                                                                  Valid Sampling Techniques for
                                                                                  Measuring Revegetation Success
                                                                                  dated January 2002.
----------------------------------------------------------------------------------------------------------------

[FR Doc. 02-4515 Filed 2-25-02; 8:45 am]
BILLING CODE 4310-05-P