Louisiana Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

Louisiana Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving, with additional requirements, a proposed

amendment to the Louisiana regulatory program (hereinafter referred to

as the ``Louisiana program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). Louisiana proposed revisions to the

Louisiana Surface Mining Regulations (LSMR) pertaining to revegetation

success standards for tree and shrub stocking on lands with a

postmining land use of forestry. The amendment specifies revegetation

success standards for final bond release on reclaimed lands developed

for forestry.

EFFECTIVE DATE: September 20, 1994.

FOR FURTHER INFORMATION CONTACT:

James H. Moncrief Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana Program

On October 10, 1980, the Secretary of the Interior conditionally

approved the Louisiana program. General background information on the

Louisiana program, including the Secretary's findings, the disposition

of comments, and the conditions of approval of the Louisiana program

can be found in the October 10, 1980, Federal Register (45 FR 67340).

Subsequent actions concerning Louisiana's program and program

amendments can be found at 30 CFR 918.15 and 918.16.

II. Proposed Amendment

By letter dated May 3, 1994, Louisiana submitted a proposed

amendment to its program pursuant to SMCRA (administrative record No.

LA-348). Louisiana submitted the proposed amendment at its own

initiative. The provision of its regulatory program that Louisiana

proposed to revise was LSMR 53123.B.4.a, standards for success of

revegetation at final bond release on reclaimed lands developed for

forestry.

In the May 26, 1994, Federal Register (59 FR 27252), OSM announced

receipt of the proposed amendment, provided an opportunity for a public

hearing or meeting on its substantive adequacy, and invited public

comment on its adequacy (administrative record No. 348.02). Because no

one requested a public hearing or meeting, none was held. The public

comment period ended on June 27, 1994.

During its review of the amendment, OSM identified concerns

relating to the provisions of LSMR 53123.B.4.a, revegetation success

standards for tree and shrub stocking on lands with a postmining land

use of forestry. OSM notified Louisiana of the concerns by letter dated

July 11, 1994 (administrative record No. LA-348.10).

In a letter dated August 16, 1994, Louisiana responded that (1) it

would not, at this time, submit revisions in response to OSM's July 11,

1994, issue letter, and (2) OSM should proceed with the publishing of

the final rule Federal Register notice (administrative record No. LA-

348.11).

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with additional requirements, that the

proposed program amendment submitted by Louisiana on May 3, 1994, is no

less effective than the requirements of the corresponding Federal

regulations. Accordingly, the Director approves the proposed amendment.

1. LSMR 53123.B.4.a, Standards for Success of Revegetation at Final

Bond Release on Reclaimed Lands Developed for Forestry.

a. Revegetation success standards for tree stocking and ground

cover. Louisiana proposed to revise LSMR 53123.B.4.a to require that

prior to final bond release there shall be 450 well-distributed free-

to-grow live pine trees per acre of the same age or 250 well-

distributed live hardwood trees per acre of the same age, and that

countable stems shall be a minimum of 3 years old. At proposed LSMR

53123.B.4.a, Louisiana defined ``well-distributed'' to mean uniform

stockings levels over an entire planting site, and ``free-to-grow'' to

mean pine seedlings or saplings without significant hardwood

competition, competing vegetation shades the pine's crown on less than

30 percent of the crown's circumference, and the pines are judged to

have better than a 90 percent chance of capturing a place in the crown

canopy.

LSMR 53123.B.4.a, which OSM previously approved (October 28, 1992;

57 FR 48726; administrative record No. LA-350), requires that

vegetative ground cover shall not be less than 70 percent

(administrative record Nos. LA-321 and LA-350). Louisiana's existing

LSMR 53117.A.4, applicable to revegetation on land reclaimed for any

land use, requires that a vegetative cover be established that is

capable of stabilizing the soil surface from erosion. Therefore, the

requirement for 70 percent ground cover on land developed for forestry

is a minimum standard that must be increased if it is insufficient to

control erosion.

Louisiana stated at proposed LSMR 53123.B.4.a that the tree

stocking and ground cover standards were developed after consultation

with and approval by the Louisiana Department of Agriculture and

Forestry. Louisiana submitted to OSM a letter, dated December 27, 1993,

from the Louisiana Office of Forestry, Department of Agriculture and

Forestry (administrative record No. LA-348.01). In it, the Office of

Forestry concurred with the technical success standards for areas

developed for forestry proposed at LSMR 53123.B.4.a.

The Federal regulations at 30 CFR 816.116(b)(3)(i) and

817.116(b)(3)(i) require that minimum stocking and planting

arrangements shall be specified by the regulatory authority on the

basis of local and regional conditions and after consultation with and

approval by the State agencies responsible for the administration of

forestry and wildlife programs. Consultation and approval may occur on

either a programwide or a permit-specific basis.

Because Louisiana proposed, at LSMR 53123.B.4.a, to specify the

minimum stocking and planting arrangements, and submitted approval by

the State agency responsible for the administration of forestry,

Louisiana has proposed programwide standards for all reclaimed land

with a designated postmining land use of forestry.

The Director finds that proposed LSMR 53123.B.4.a is no less

effective than the requirements of the Federal regulations at 30 CFR

816.116(b)(3)(i) and 817.116(b)(3)(i), and approves it.

b. Utility of trees for the approved postmining land use and tree

health. Louisiana proposed at LSMR 53123.B.4.a to delete the

requirements that the trees that will be used in determining the

success of stocking and the adequacy of the plant arrangement shall (1)

have utility for the approved postmining land use and (2) be healthy.

The Federal regulations at 30 CFR 816.116(b)(3)(ii) and

817.116(b)(3)(ii) require (in part) that trees and shrubs that will be

used in determining the success of stocking and the adequacy of the

plant arrangement shall (1) have utility for the approved postmining

land use and (2) be healthy.

Because Louisiana has deleted the State counterparts to the Federal

requirements, the Director finds that proposed LSMR 53123.B.4.a is less

effective than the requirements of the Federal regulations at 30 CFR

816.116(b)(3)(ii) and 817.116(b)(3)(ii). The Director requires that

Louisiana revise LSMR 53123.B.4.a to include these requirements.

c. Length of time trees have been established. Louisiana proposed

at LSMR 53123.B.4.a to delete the requirement that, at the time of

final bond release, at least 80 percent of the trees and shrubs shall

have been in place for 60 percent of the 5-year responsibility period.

Louisiana proposed to require that (1) there shall be 450 well-

distributed free-to-grow live pine trees per acre of the same age or

250 well-distributed live hardwood trees per acre of the same age and

(2) countable stems shall be a minimum of 3 years old.

The Federal regulations at 30 CFR 816.116(b0(3)(ii) and

817.116(b)(3)(ii) require in part that, at the time of bond release, at

least 80 percent of the trees and shrubs used to determine such success

shall have been in place for 60 percent of the applicable minimum

period of responsibility (``80/60 requirement'').

OSM interprets proposed LSMR 53123.B.4.a to require that 100

percent (i.e., all countable stems) of the trees must be in place for a

minimum of 60 percent of the responsibility period (i.e., 3 of the 5-

year minimum period of responsibility). Under this interpretation,

proposed LSMR 53123.B.4.a is no less effective than the ``80/60

requirement'' in the Federal regulations at 30 CFR 816.116(b)(3)(ii)

and 817.116(b)(3)(ii). However, before OSM can make this determination,

Louisiana must clarify that this is its intent. Therefore, the Director

requires that Louisiana either (1) clarify, by policy statement, that

proposed LSMR 53123.B.4.a requires that 100 percent (i.e., all

countable stems) of the trees must be in place for a minimum of 60

percent of the responsibility period (i.e., 3 of the 5-year minimum

period of responsibility), or (2) revise proposed LSMR 53123.B.4.a to

add the requirement that at least 80 percent of the trees and shrubs

used to determine success of revegetation shall have been in place for

60 percent of the applicable minimum period of responsibility.

IV. Summary and Disposition of Comments

Following are summaries of all substantive oral and written

comments on the proposed amendment that were received by OSM, and OSM's

responses to them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Louisiana program (administrative record No.

LA-348.03).

The U.S. Army Corps of Engineers responded on June 10, 1994, that

the proposed revisions were satisfactory (administrative record No. La-

348.04).

The U.S. Bureau of Mines responded on June 14, 1994, that it had no

comments (administrative record No. LA-348.05).

The U.S. Forest Service responded on June 15, 1994, that, after

consulting the forest administrators in Louisiana, it had no comments

(administrative record No. LA-348.06).

The U.S. Soil Conservation Service (SCS) responded on June 20,

1994, that (1) it concurred with the number of trees required for

successful revegetation of mined forest land, (2) it recommended a

ground cover of at least 75 percent to prevent unacceptable levels of

soil erosion, and (3) all gullies should be repaired and revegetated

prior to final bond release (administrative record No. 348.08).

With respect to the SCS comment concurring with the number of trees

required to demonstrate revegetation success, as discussed in finding

No. 1.a, the Director is approving the standard for the tree stocking

rate proposed by Louisiana at LSMR 53123.B.4.a.

With respect to the SCS comment concerning a recommended ground

cover of 75 percent, as discussed in finding No. 1.a, Louisiana's

requirement at LSMR 53123.B.4.a for 70 percent ground cover was

previously approved by OSM and is a minimum standard. The Federal

regulations of 30 CFR 816.116(b)(3)(iii) and 817.116(b)(3)(iii)

require, for areas to be developed for forestry, that vegetative ground

cover shall not be less than that required to achieve the approved

postmining land use. Louisiana, at LSMR 531117.A.4 (which is applicable

to revegetation on land reclaimed for any land use), requires that a

vegetative cover be established that is capable for stabilizing the

soil surface from erosion.

LSMR 53117.A.4 is substantively identical to the requirements of

the Federal regulations at 30 CFR 816.111(a)(4) and 817.111(a)(4). In

addition, Louisiana requires at LSMR 53121.A that suitable mulch and

other soil stabilizing practices shall be used on all regraded and

topsoiled areas to control erosion, promote germination of seeds, or

increase the moisture content of the soil. LSMR 53121.A is no less

effective than the requirements of the Federal regulations at 30 CFR

816.114 and 817.114. Louisiana's standard for ground cover at LSMR

53123.B.4.a, in conjunction with the requirements at LSMR 53117.A.4 and

53121.A, is consistent with and no less effective in meeting SMCRA's

requirements than the Federal regulations at 30 CFR 816.116(b)(3)(iii)

and 817.116(b)(3)(iii). Therefore, the Director is not requiring that

Louisiana revise the standard for ground cover on areas to be developed

for forestry at LSMR 53123.B.4.a in response to this comment.

With respect to the SCS comment that gullies should be repaired and

revegetated prior to final bond release, Louisiana's program at LSMR

53115 requires that (1) when rills and gullies deeper than 9 inches

form in areas that have been regarded and topsoiled, the rills and

gullies shall be filled, graded, or otherwise stabilized and the area

reseeded or replanted according to the requirements of LSMR 53117

through 53123, and (2) rills or gullies of lesser size be stabilized

and the area reseeded or replanted if the rills or gullies are

disruptive to the approved postmining land use or may result in

additional erosion and sedimentation. Therefore, because Louisiana's

approved program addresses the repair and revegetation of gullies, the

Director is not requiring that Louisiana revise LSMR 53123.B.4.a in

response to this comment.

The U.S. Fish and Wildlife Service responded on June 21, 1994, that

it had no objection to the proposed amendment (administrative record

No. 348.07).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. LA-348.03). It

responded on July 8, 1994, that it had no comments (administrative

record No. LA-348.09).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM is required to solicit the

written comments of SHPO and ACHP with respect to those provisions of

the proposed program amendment that relate to historic properties.

None of the revisions that Louisiana proposed to make in its

amendment pertain to historic properties. Therefore, OSM did not

request SHPO and ACHP comments.

V. Director's Decision

Based on the above findings, the Director approves with additional

requirements Louisiana's proposed amendment as submitted on May 3,

1994.

With the requirement that Louisiana further revise its rules, the

Director approves, as discussed in finding Nos. 1.a through 1.c, LSMR

53123.B.4.a, concerning standards of success for revegetation on lands

developed for forestry.

In accordance with 30 CFR 732.17(f)(1), the Director is also taking

this opportunity to clarify in the required amendment section at 30 CFR

918.16 that, within 60 days of the publication of this final rule,

Louisiana must either submit a proposed written amendment, or a

description of an amendment to be proposed that meets the requirements

of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is

consistent with Louisiana's established administrative or legislative

procedures.

The Federal regulations at 30 CFR Part 918, codifying decisions

concerning the Louisiana program, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such 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 12550) 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.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

4. 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.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 918

Intergovernmental relations, Surface mining, Underground mining.

Dated: September 14, 1994.

Russell F. Price,

Acting Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations 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 by revising the section heading and

adding paragraph (d) to read as follows:

Sec. 918.15 Approval of amendments to the Louisiana regulatory

program.

* * * * *

(d) Revisions to LSMR 53123.B.4.a, revegetation success standards

for forestry, as submitted to OSM on May 3, 1994, are approved

effective September 20, 1994.

3. Section 918.16 is revised to read as follows:

Sec. 918.16 Required program amendments.

Pursuant to 30 CFR 732.17(f)(1), Louisiana is required to submit to

OSM by the specified date the following written, proposed program

amendment, or a description of an amendment to be proposed that meets

the requirements of SMCRA and 30 CFR Chapter VII and a timetable for

enactment that is consistent with Louisiana's established

administrative or legislative procedures.

(a) By November 21, 1994, Louisiana shall revise LSMR 53123.B.4.a

or otherwise modify its program, to require that trees and shrubs that

will be used in determining the success of stocking and the adequacy of

the plant arrangement shall (1) have utility for the approved

postmining land use and (2) be healthy.

(b) By November 21, 1994, Louisiana shall revise LSMR 53123.B.4.a

or otherwise modify its program, to either (1) clarify, by policy

statement, that proposed LSMR 53123.B.4.a requires that 100 percent

(i.e., all countable stems) of the trees must be in place for a minimum

of 60 percent of the responsibility period, or (2) add the requirement

that at least 80 percent of the trees and shrubs used to determine

success of revegetation shall have been in place for 60 percent of the

applicable minimum period of responsibility.

[FR Doc. 94-23247 Filed 9-19-94; 8:45 am]

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