[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]


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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.

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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