[Federal Register Volume 67, Number 221 (Friday, November 15, 2002)]
[Rules and Regulations]
[Pages 69123-69129]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-28799]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 918
[LA-022-FOR]
Louisiana Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement
(OSM), are approving an amendment to the Louisiana regulatory program
(Louisiana program) under the Surface Mining Control and Reclamation
Act of 1977 (SMCRA or the Act). Louisiana proposed revisions to its
regulations concerning revegetation success standards for post-mining
land uses of pastureland and wildlife habitat. Louisiana also proposed
to add to its program a policy document that describes the criteria and
procedures for determining reclamation phase III ground cover and tree
and shrub stocking success for areas developed for wildlife habitat.
Louisiana revised its program to be consistent with the corresponding
Federal regulations.
EFFECTIVE DATE: November 15, 2002.
FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa
Field Office. Telephone: (918) 581-6430. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Louisiana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM'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, the disposition of comments, and the conditions
of approval in the October 10, 1980, Federal Register (45 FR 67340).
You can also find later actions concerning the Louisiana program and
program amendments at 30 CFR 918.15 and 918.16.
II. Submission of the Amendment
By letter dated October 2, 2001 (Administrative Record No. LA-367),
Louisiana sent us an amendment to its program under SMCRA (30 U.S.C.
1201 et seq.). Louisiana sent the amendment in response to our letters
dated March 24, 1999, and August 16, 2000 (Administrative Record Nos.
LA-365 and LA-365.01, respectively), that we sent to Louisiana in
accordance with 30 CFR 732.17(c). Louisiana proposed revisions to the
Louisiana Surface Mining Regulations found in the Louisiana
Administrative Code, Title 43, Part XV (LAC) concerning revegetation
success standards for post-mining land uses of pastureland and wildlife
habitat. Louisiana also proposed to add to its program a policy
document that describes the criteria and procedures for determining
reclamation phase III ground cover and tree and shrub stocking success
for areas developed for wildlife habitat.
We announced receipt of the proposed amendment in the November 2,
2001, Federal Register (66 FR 55609). In the same document, we opened
the public comment period and provided an opportunity for a public
hearing or meeting on the amendment's adequacy. We did not hold a
public hearing or meeting because no one requested one. The public
comment period ended on December 3, 2001. We received comments from two
Federal agencies. One of these agencies, the U. S. Fish and Wildlife
Service (FWS), offered several comments on the proposed amendment. We
forwarded these comments to Louisiana on January 25, 2002
(Administrative Record No. LA-367.06). By telephone, the State informed
us that it would have to study the comments before responding to them
(Administrative Record No. LA-367.08). We received Louisiana's response
to the FWS comments in a letter dated June 11, 2002 (Administrative
Record No. LA-367.05). Louisiana stated that it felt that its proposed
revegetation success standards are consistent with SMCRA and no less
effective than the Federal surface mining regulations. Therefore, we
are proceeding with the final rule Federal Register document.
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. We are
approving the amendment. Any revisions that we do not discuss below
concern nonsubstantive wording or editorial changes or revised cross-
references and paragraph notations to reflect organizational changes
resulting from this amendment.
A. Section 5423. Revegetation: Standards for Success
Louisiana added new paragraph B.1.e. stating that the criteria and
procedures for determining ground cover and production success for
pastureland are found at Section 5424. Louisiana also added new
paragraph B.8.a. stating that the criteria and procedures for
determining ground cover and stocking success for fish and wildlife
habitat are found at Section 5425. There are no Federal counterpart
regulations stating where to find in the regulations criteria and
procedures for determining ground cover and production success for
areas
[[Page 69124]]
developed for use as pastureland. Also, there are no Federal
counterpart regulations stating where to find in the regulations
criteria and procedures for determining ground cover and stocking
success for areas developed for fish and wildlife habitat. We are
approving the addition of these two new paragraphs because they merely
direct readers to where they can find specific criteria and procedures
for determining ground cover and production success for pastureland or
ground cover and stocking success for fish and wildlife habitat.
B. Section 5424. Revegetation: Standards for Success--Post-Mining Land
Use of Pastureland
1. Section 5424.A. Introduction
Louisiana proposed regulations that describe the criteria and
procedures for determining ground cover and production success for
areas being restored to pastureland. According to Section 5423, ground
cover and production success on pastureland determinations must be
based on the following criteria: (1) General revegetation requirements
of the approved permit, (2) ground cover density, and (3) production.
Also, the permittee is responsible for determining and measuring ground
cover and production and for submitting this data to the Commissioner
of Conservation (Commissioner) for evaluation.
The Federal regulation at 30 CFR 816.116(b) provides that the
standards for revegetation success must be applied in accordance with
the approved post-mining land use. It also provides that the ground
cover and vegetation production parameters must be measured and
compared to an appropriate revegetation standard in order to determine
if the post-mining land use area has been successfully revegetated. We
find that Louisiana's proposed regulation concerning the requirement to
measure post-mining vegetation cover and production for the land use of
pasture is no less effective than the Federal regulation at 30 CFR
816.116(b). Therefore, we are approving the proposed Louisiana
regulation.
2. Section 5424.B. Success Standards and Measurement Frequency
a. Ground Cover and Forage Production. In paragraphs B.1. and B.2.,
Louisiana proposed regulations for ground cover and forage production,
respectively. In paragraph B.1., Louisiana sets forth the criteria and
procedures for determining ground cover and production success on
pastureland. The criteria include an acceptable ground cover that is at
least 90 percent of the approved success standard at a 90-percent
confidence interval. The success standard is 90 percent. The criteria
also include how to measure the ground cover; what types of species
mixtures are required; sampling techniques for measuring success; when
and how often to sample; and the length of the responsibility period.
In paragraph B.2., Louisiana sets forth the criteria and procedures for
determining forage production success on pastureland. The criteria
include the success standard for hay production; when and how often to
sample; and the length of the responsibility period.
The Federal regulation at 30 CFR 816.116(a)(2) provides the
requirements for establishing revegetation success standards for ground
cover and forage production for pastureland and the sampling techniques
for measuring success. The Federal regulation at 30 CFR 816.116(c)(2)
provides the length of the responsibility period and the time frame for
sampling. We find that Louisiana's proposed regulations meet the
requirements of the Federal regulations at 30 CFR 816.116(a)(2) and
(c)(2) and are no less effective. Therefore, we are approving them.
b. Reference Area Requirements. In paragraphs B.3., Louisiana
proposed regulations for reference area requirements. Louisiana
proposed that reference areas must be representative of soils, slope,
aspect, and vegetation in the pre-mined permit area. However, in cases
where differences exist because of mixing of several soil series on the
reclaimed area or unavailability of a reference area, yields must be
adjusted. Reference area pastureland must also be under the same
management as pastureland in the reclaimed area and must consist of a
single plot (whole plot) at least four acres in size. Forage yields for
the reference plot must be at a level that is reasonably comparable to
the parish average for a given crop. Reference areas may be located on
undisturbed acreage within permitted areas. When release areas and
reference plots fall on different soil series, adjustments must be made
to compensate for the productivity difference.
The Federal regulation at 30 CFR 816.116(a)(2) requires 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. At 30 CFR 816.116(b), the
Federal regulation requires that standards for success must be applied
in accordance with the approved post-mining land use. Also, for areas
developed for use as pastureland, the ground cover and production of
living plants on the revegetated area must be at least equal to that of
a reference area or such other success standards approved by the
regulatory authority.
Louisiana proposed regulations that provided details for using
reference areas as a standard for comparison with areas reclaimed to
pastureland. The use of reference areas is consistent with standard
scientific studies that use reference areas for studying vegetation. We
find that Louisiana's proposed regulations concerning the use of these
reference areas are not inconsistent with and are no less effective
than the Federal regulations. Therefore, we are approving them.
3. Section 5424.C. Sampling Procedures
a. Random Sampling and Sampling Techniques for Ground Cover. In
paragraphs C.1. and C.2.a., Louisiana proposed regulations for random
sampling procedures and ground cover sampling techniques to assure that
the samples truly represent the vegetative characteristics of the whole
release or reference area. The regulations require permittees to use
methods that will provide the following: (1) A random selection of
sampling sites, (2) a sampling technique unaffected by the sampler's
preference, and (3) sufficient samples to represent the true mean of
the vegetation characteristics. The regulations instruct the permittees
on how to select sampling points. They also require permittees to
notify regulatory personnel ten days before conducting sampling or
other harvesting operations to allow them an opportunity to monitor the
sampling procedures. In addition, the regulations list the three
approved statistically valid sampling techniques for measuring ground
cover on pastureland and provide instructions for using them. The
approved sampling techniques are pin method, point frame method, and
line intercept method.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for vegetation success and statistically valid
sampling techniques for measuring vegetation success. Louisiana
proposed regulations requiring a random sampling technique to ensure
that sample selection used for measuring success is not biased and will
result in a statistically valid sample of adequate size. Also,
Louisiana proposed regulations that allow the use of three separate
statistically valid sampling methods that can be used to measure ground
cover on pastureland. The
[[Page 69125]]
proposed regulations are not inconsistent with and are no less
effective than the Federal regulations and we are approving them.
b. Sampling Techniques for Productivity. In paragraph C.2.b.,
Louisiana proposed regulations for measuring vegetation productivity on
pastureland. The proposed regulations set forth procedures for
controlling two components (time of harvest and moisture content) that
may potentially influence production yield. The proposed regulations
also set forth the following two statistically valid sampling methods
that can be used to evaluate production: (1) Sampling frames for
harvesting plots, or (2) whole field or whole area harvesting.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana proposed procedures for
controlling for two components that may influence vegetation production
and set forth two statistically valid sampling methods that can be used
to evaluate production. Therefore, we find that Louisiana's proposed
regulations are not inconsistent with and are no less effective than
the Federal regulations.
c. Sample Adequacy. In paragraph C.3., Louisiana proposed
regulations for sampling adequacy. The proposed regulations set forth
the procedure and formula to use for determining the actual number of
samples needed to measure ground cover and productivity. The regulation
requires the collection of data using a multi-staged sampling
procedure. The proposed formula is a standard scientific formula for
determining sample adequacy in order to ensure that vegetation sampling
is statistically valid.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana's proposed regulations
contain a procedure and a standard scientific formula to use for
determining sample adequacy and to ensure that vegetation sampling is
statistically valid. Therefore, we find that Louisiana's proposed
regulations are not inconsistent with and are no less effective than
the Federal regulations.
4. Section 5424.D. Data Submission and Analysis
Louisiana proposed the following regulations: (1) When to submit
data to the Commissioner for review, (2) what is successful vegetation
ground cover and production for the release area, (3) what to do when
data indicates that average ground cover and average forage production
for the release area is insufficient, and (4) making adjustments to
forage production yields to account for moisture content before making
statistical comparisons.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana is adopting requirements
for data submission and analysis in order to ensure that vegetation
sampling will be statistically valid. Therefore, we find that
Louisiana's proposed regulations are not inconsistent with and are no
less effective than the Federal regulations.
5. Section 5424.E. Maps
Louisiana proposed regulations requiring permittees to submit maps
with their requests for reclamation phase III bond release. The maps
must show the location of the proposed release area, the location of
the reference plots, and all permit boundaries. When permittees submit
data from a previously approved reclamation plan, maps must accompany
the data. The maps must show the location of reference plots and each
sampling point, the area covered by the sampling, and all permit
boundaries.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana is adopting requirements
for submission of maps as part of the bond release application in order
to ensure that vegetation sampling will be statistically valid.
Therefore, we find that Louisiana's proposed regulations are not
inconsistent with and are no less effective than the Federal
regulations.
6. Section 5424.F. Mitigation Plan
Louisiana proposed a set of criteria for developing a new phase III
release plan in the event that the operator cannot demonstrate
successful forage productivity and ground cover on the release area
after the full five years of the phase III responsibility period.
The Federal regulations at 30 CFR 816.116(c)(1) and (c)(2) require
that ``the period of extended responsibility for successful
revegetation shall begin after the last year of augmented seeding,
fertilizing, irrigation, or other work * * *.'' In areas where the
annual average precipitation is more than 26.0 inches, the period of
responsibility must continue at least five full years. Vegetative
ground cover and production for pasture land must also equal or exceed
the approved success standard during the growing season of any two
years of the responsibility period, except the first year. Louisiana is
adopting requirements for the development of a mitigation plan in the
event that the operator is not able to demonstrate revegetation success
during the phase III responsibility period. The proposed regulations
are not inconsistent with and are no less effective than the Federal
regulations. Therefore, we are approving them.
C. Section 5425. Revegetation: Standards for Success--Post-Mining Land
Use of Wildlife Habitat
1. Section 5425.A. Introduction
Louisiana proposed regulations that describe the criteria and
procedures for determining ground cover and stocking success for areas
being developed for wildlife habitat. According to Section 5423, ground
cover and stocking success on wildlife habitat determinations must be
based on the following criteria: (1) General revegetation requirements
of the approved permit, (2) ground cover density, and (3) tree or shrub
stocking and survival. Also, the permittee is responsible for
determining and measuring ground cover and production and for
submitting this data to the Commissioner for evaluation.
The Federal regulation at 30 CFR 816.116(b) provides that the
standards for revegetation success must be applied in accordance with
the approved post-mining land use. Also, for areas developed for
wildlife habitat, the success of vegetation must be determined on the
basis of tree and shrub stocking and vegetative ground cover. We find
that Louisiana's proposed regulation concerning the requirement to
measure post-mining vegetation cover and stocking for the land use of
wildlife habitat is no less effective than the Federal regulation at 30
CFR 816.116(b). Therefore, we are approving the proposed Louisiana
regulation.
2. Section 5425.B. Success Standards and Measurement Frequency
Ground Cover and Tree and Shrub Stocking Rate
In paragraphs B.1. and B.2., Louisiana proposed regulations for
ground cover and tree and shrub stocking rate, respectively. In
paragraph B.1.,
[[Page 69126]]
Louisiana sets forth the criteria and procedures for determining ground
cover on wildlife habitat. The criteria include a ground cover of at
least 70 percent density with a 90-percent statistical confidence
interval for the last year of the 5-year responsibility period. The
criteria also include how to measure the ground cover and what types of
species mixture are required.
In paragraph B.2., Louisiana sets forth the criteria and procedures
for determining tree and shrub stocking success on wildlife habitat.
The criteria require that the State consult with and receive approval
from the Louisiana Department of Wildlife and Fisheries, on a permit-
specific basis, when determining the stocking rate for trees and
shrubs. Also, the trees and shrubs that will be used in determining the
success of stocking and the adequacy of the plant arrangement must have
utility for the approved post-mining land use. When these two aspects
of the criteria are met and acceptable ground cover is achieved, the 5-
year responsibility period begins. The success standard for tree and
shrub stocking rate is equal to or greater than 90 percent of the
stocking rate approved in the permit at a 90-percent statistical
confidence interval. The criteria for the stocking rate also provides
the following: (1) When and how often to sample, (2) what physical
condition the trees and shrubs must be in to be counted, and (3) what
percent of the trees and shrubs used to determine success must be in
place and for how long.
The Federal regulation at 30 CFR 816.116(a)(2) provides that ground
cover and stocking is considered equal to the approved success standard
when they are not less than 90 percent of the success standard at a 90-
percent statistical confidence interval. The Federal regulation at 30
CFR 816.116(b) requires that standards for success must be applied in
accordance with the approved post-mining land use and, at a minimum,
the success of vegetation must be determined on the basis of tree and
shrub stocking and vegetative ground cover. The regulatory authority
must specify the minimum stocking and planting arrangements on the
basis of local and regional conditions. However, the regulatory
authority must first consult with and receive approval from the State
agencies responsible for the administration of forestry and wildlife
programs. Consultation and approval may occur on either a program-wide
or a permit-specific basis. Trees and shrubs to be used in determining
the success of stocking and the adequacy of the plant arrangement must
have utility for the approved post-mining land use. Trees and shrubs
counted in determining such success must be healthy and have been in
place for not less than 2 growing seasons. At the time of bond release,
at least 80 percent of the trees and shrubs used to determine such
success must have been in place for 60 percent of the applicable
minimum period of responsibility. The Federal regulation at 30 CFR
816.116(c)(2) requires the period of extended responsibility for
successful revegetation to begin after the last year of augmented
seeding, fertilizing, irrigation, or other work. In areas that receive
more than 26.0 inches of annual average precipitation, the period of
responsibility must continue for not less than 5 years. Areas approved
for wildlife habitat must equal or exceed the applicable success
standard during the growing season of the last year of the
responsibility period.
In its amendment, Louisiana proposed the requirement for
revegetation success standards, measurement techniques, local wildlife
agency consultation and approval, and liability period requirements for
wildlife habitat. We find that the State's proposed revisions are not
inconsistent with and are no less effective than the Federal
regulations. Therefore, we are approving them.
3. Section 5425.C. Sampling Procedures
a. Random Sampling and Sampling Technique for Ground Cover. In
paragraphs C.1. and C.2.a., Louisiana proposed regulations for random
sampling procedures and ground cover sampling techniques, respectively,
to assure that the samples truly represent the vegetative
characteristics of the whole release or reference area. The regulations
require permittees to use methods that will provide the following: (1)
A random selection of sampling sites, (2) a sampling technique
unaffected by the sampler's preference, and (3) sufficient samples to
represent the true mean of the vegetation characteristics. The
regulations instruct the permittees on how to select sampling points.
They also require permittees to notify regulatory personnel ten days
before conducting sampling or other harvesting operations to allow them
an opportunity to monitor the sampling procedures. In addition, the
regulations list the three approved statistically valid sampling
techniques for measuring ground cover on wildlife habitat and provide
instructions for using them. The approved sampling techniques are pin
method, point frame method, and line intercept method.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program, standards for vegetation success and statistically valid
sampling techniques for measuring vegetation success. Louisiana
proposed regulations requiring a random sampling technique to ensure
that sample selection used for measuring success is not biased and will
result in a statistically valid sample of adequate size. Also,
Louisiana proposed regulations that allow the use of three separate
statistically valid sampling methods that can be used to measure ground
cover on wildlife habitat. The proposed regulations are not
inconsistent with and are no less effective than the Federal
regulations and we are approving them.
b. Sampling Technique for Sampling Circles. In paragraph C.2.b.,
Louisiana proposed instructions on how to count trees and shrubs using
sampling circles. Louisiana also provided criteria on which trees and
shrubs to count. The tree or shrub to be counted must be healthy and
must have been in place for at least two years. At the time of
liability release, 80 percent of the trees and shrubs must have been in
place for three years.
The Federal regulation at 30 CFR 816.116(a)(1) requires the
regulatory authority to select the standards for success and the
statistically valid sampling techniques for measuring success. The
selected standards and sampling techniques must be included in the
regulatory authority's approved regulatory program. Louisiana proposed
the use of sampling circles as a statistically valid sampling method
for measuring tree or shrub stocking on the wildlife habitat. The
proposed regulation is not inconsistent with and is no less effective
than the Federal regulation, therefore, we are approving it.
c. Sample Adequacy. In paragraph C.3., Louisiana proposed
regulations for sampling adequacy. The proposed regulations set forth
the procedure and formula to use for determining the actual number of
samples needed to measure ground cover and productivity. The regulation
requires the collection of data using a multi-staged sampling
procedure. The proposed formula is a standard scientific formula for
determining sample adequacy in order to ensure that vegetation sampling
is statistically valid.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana's proposed regulations
contain a procedure and a standard scientific formula to use for
[[Page 69127]]
determining sample adequacy and to ensure that vegetation sampling is
statistically valid. Therefore, we find that Louisiana's proposed
regulations are not inconsistent with and are no less effective than
the Federal regulations.
4. Section 5425.D. Data Submission and Analysis
Louisiana proposed the following regulations: (1) When to submit
data to the Commissioner for review, (2) what is successful vegetation
ground cover and stocking for the release area, and (3) what to do when
data indicates that average ground cover and average tree and shrub
stocking density for the release area is insufficient.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana proposed to adopt
requirements for data submission and analysis in order to ensure that
vegetation sampling will be statistically valid. Therefore, we find
that Louisiana's proposed regulations are not inconsistent with and are
no less effective than the Federal regulations.
5. Section 5425.E. Maps
Louisiana proposed regulations requiring permittees to submit maps
with their requests for reclamation phase III bond release. The maps
must show the location of the proposed release area, the location of
the reference plots, and all permit boundaries. When permittees submit
data from a previously approved reclamation plan, maps must accompany
the data. The maps must show the location of each transect and sampling
circle location, the area covered by the sampling, and all permit
boundaries.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its approved regulatory
program standards for success and statistically valid sampling
techniques for measuring success. Louisiana is adopting requirements
for submission of maps as part of the bond release application in order
to ensure that vegetation sampling will be statistically valid.
Therefore, we find that Louisiana's proposed regulations are not
inconsistent with and are no less effective than the Federal
regulations.
6. Section 5425.F. Mitigation Plan
Louisiana proposed a set of criteria for developing a new phase III
release plan in the event that the operator cannot demonstrate
successful vegetation ground cover and tree and shrub stocking on the
release area after the full five years of the phase III responsibility
period.
The Federal regulations at 30 CFR 816.116(c)(1) and (c)(2) require
that ``the period of extended responsibility for successful
revegetation shall begin after the last year of augmented seeding,
fertilizing, irrigation, or other work * * *.'' In areas where the
annual average precipitation is more than 26.0 inches, the period of
responsibility must continue for at least five full years. Vegetative
ground cover for wildlife habitat must also equal or exceed the
approved success standard during the growing season of the last year of
the responsibility period. Louisiana is adopting requirements for the
development of a mitigation plan in the event that the operator is not
able to demonstrate revegetation success during the phase III
responsibility period. The proposed regulations are not inconsistent
with and are no less effective than the Federal regulations. Therefore,
we are approving them.
D. Reclamation Phase III Revegetation Success Standards for Post-Mining
Land Use of Wildlife Habitat (Policy Document)
Louisiana submitted revegetation success guidelines in a policy
document that describe the standards and procedures for determining
revegetation success on wildlife habitat. 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 wildlife habitat to satisfy this requirement.
The guidelines for wildlife habitat include revegetation success
standards and statistically valid sampling techniques for measuring
revegetation success of reclaimed wildlife habitat in accordance with
Louisiana's counterpart to 30 CFR 816.116. Louisiana's standards,
criteria, and parameters for revegetation success on wildlife habitat
reflect the extent of vegetative 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 trees and
shrubs stocking and production suitable to the approved postmining land
use of wildlife habitat. Louisiana's guidelines specify the procedures
and techniques to be used for sampling, measuring, and analyzing
vegetation parameters. Ground cover, production, and stocking suitable
to the approved postmining land use of wildlife habitat 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 that
use of these procedures and techniques will ensure consistent,
objective collection of vegetation data.
Appendices are included in the policy document. Appendix A--
Selection of Random Sampling Sites includes procedures for selecting
random sampling points, a set of random numbers, and an example of how
to perform a random sample locations grid overlay. Appendix B--Data
Form for Measuring Ground Cover Using a Pin Method and Appendix C--
Example Data Form for Sampling Circles are data forms used for
recording data and calculating the results from performing ground cover
measurements and tree and shrub stocking measurements, respectively.
Appendix D--T-Table, provides the t-values that are used for the sample
adequacy calculations. Appendix E--Example Use of Sample Adequacy
Formula for Ground Cover Measurements and Appendix F--Example Use of
Sample Adequacy Formula for Tree and Shrub Counts give examples of how
to determine sample adequacy for ground cover and tree and shrub
counts, respectively. Appendix G--Statistical Analysis on Ground Cover
Measurements and Appendix H--Statistical Analysis on Tree and Shrub
Stocking Measurements describe how to perform statistical analyses on
the ground cover and tree and shrub stocking data, respectively, to
determine if there is a statistically significant difference between
the data and the success standards if the data do not meet the success
standards. Appendix I--Acceptable Plant Species for Revegetation of
Wildlife Habitat Land Use lists plant species that are acceptable for
use on land reclaimed for wildlife habitat. Appendix J--References
provides a list of reference materials. Appendix K--Measuring Ground
Cover Using a Pin Method is the last appendix in the policy document.
This appendix describes how to perform ground cover measurements using
a metal pin or a cross-hair sighting device.
The Federal regulation at 30 CFR 816.116(a)(1) requires a
regulatory authority to select and include in its
[[Page 69128]]
approved regulatory program standards for success and statistically
valid sampling techniques for measuring success. Louisiana proposed to
adopt a detailed policy illustrating the methods permittees may use to
measure revegetation success for wildlife habitat. The policy document
is not inconsistent with and is no less effective than the Federal
regulations. Therefore, we are approving it.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment, but did not receive
any.
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 Louisiana program
(Administrative Record No. LA-367.04). We received comments from two
Federal agencies, the FWS and the U.S. Army Corps of Engineers
(Administrative Record Nos. LA-367.02 and LA-367.03, respectively).
All of the FWS comments pertained to wildlife habitat. The FWS
stated that it is pleased that Louisiana is developing post-mining
reclamation and revegetation success standards for wildlife habitat.
The agency also made several recommendations and suggestions concerning
the following topics: (1) Control of noxious plants on reclaimed sites,
(2) the time frame for when to begin stocking of trees and shrubs, (3)
unacceptable vegetation not approved in the permit, and (4) scientific
and commons names of acceptable plant species for revegetation of
wildlife habitat. In a specific comment regarding the time frame for
when to begin stocking of trees and shrubs, the FWS believed that
Louisiana's proposed regulations at Section 5425.B. implied that it
would take five years to determine acceptable ground cover and that
woody vegetation could not be planted until after this 5-year period.
The FWS's concern was that because it takes many years for tree species
to reach maturity it believed that an effort should be made to plant
woody vegetation as soon as possible. Louisiana's proposed regulations
at Section 5425.B. do not require delaying the planting of trees and
shrubs until after the determination of successful ground cover is
made. Therefore, woody vegetation can be planted before this
determination is made thereby resolving any concerns the FWS may have
regarding this matter. On January 25, 2002 (Administrative Record No.
LA-367.06), we forwarded the FWS's comments to Louisiana. By telephone,
the State informed us that it would have to study the comments before
responding to them (Administrative Record No. LA-367.08). In a letter
dated June 11, 2002 (Administrative Record No. LA-367.05), we received
Louisiana's response to the FWS comments. Louisiana stated that it felt
that its proposed revegetation success standards are consistent with
SMCRA and no less effective than the Federal surface mining
regulations. As stated in III. OSM's Findings, we find that Louisiana's
proposed amendment is no less effective than the Federal regulations.
Therefore, we are approving it.
The U.S. Army Corps of Engineers stated in a letter we received on
November 19, 2001, that it found Louisiana's proposed amendment
satisfactory (Administrative Record No. LA-367.03).
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(ii), we are required to get a written
concurrence 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 Louisiana
proposed to make in this amendment pertain to air or water quality
standards. Therefore, we did not ask the EPA to concur on the
amendment.
Under 30 CFR 732.17(h)(11)(i), we requested comments on the
amendment from the EPA (Administrative Record No. LA-367.04). 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 October 16, 2001, we requested comments on Louisiana's
amendment (Administrative Record No. LA-367.04), but neither responded
to our request.
V. OSM's Decision
Based on the above findings, we approve the amendment as submitted
by Louisiana on October 2, 2001, with the provision that they be fully
promulgated in identical form to the regulations submitted 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. 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
[[Page 69129]]
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 OMB 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 918
Intergovernmental relations, Surface mining, Underground mining.
Dated: October 10, 2002.
Charles E. Sandberg,
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.
* * * * *
------------------------------------------------------------------------
Original amendment submission Date of final
date publicationl Citation/description
------------------------------------------------------------------------
* * * * * * *
October 2, 2001............... November 15, 2002 LAC Sections
5423.B.1.e. and
8.a.; 5424; 5425;
and policy document
titled,
``Reclamation Phase
III Revegetation
Success Standards
for Post-Mining Land
Use of Wildlife
Habitat.
------------------------------------------------------------------------
[FR Doc. 02-28799 Filed 11-14-02; 8:45 am]
BILLING CODE 4310-05-P