Louisiana Regulatory Program

[[Page 4542]]

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 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 its rules and provided a

clarifying policy statement, both of which pertain to revegetation

success standards on reclaimed land developed for use as forestry. The

amendment is intended to revise the Louisiana program to be consistent

with the corresponding Federal regulations.

EFFECTIVE DATE: January 24, 1995.

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 November 2, 1994, Louisiana submitted a proposed

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

LA-351). Louisiana submitted the proposed amendment in response to the

required program amendments at 30 CFR 918.16 (a) and (b). The provision

of the Louisiana Surface Mining Regulations (LSMR) that Louisiana

proposed to revise was LSMR 5423.B.4.a, concerning standards for

success of revegetation at final bond release on reclaimed lands

developed for forestry. Louisiana also proposed an associated Policy

Statement No. PS-5, Revegetation Success Standards for Tree and Shrub

Stocking on Lands With a Postmining Land Use of Forestry. In addition,

Louisiana proposed to recodify LSMR 53101 through 53139 as LSMR 5401

through 5439, and LSMR 67101 through 67139 as LSMR 6801 through 6839.

OSM announced receipt of the proposed amendment in the November 23,

1994, Federal Register (59 FR 60342), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. LA-351.02).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on December 23, 1994.

III. Director's Findings

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

CFR 732.15 and 732.17, finds that the proposed program amendment

submitted by Louisiana on November 2, 1994, is no less effective than

the corresponding Federal regulations. Accordingly, the Director

approves the proposed amendment.

1. Nonsubstantive Revisions to Louisiana's Rules

Louisiana proposed revisions to the following previously-approved

rules that are nonsubstantive in nature.

a. Recodification of Louisiana's rules. In order to be consistent

with the Louisiana State Code, Louisiana proposed recodification of

segments of its rules. In Chapter 53, permanent program performance

standards for surface mining activities, LSMR 53101 through 53139 were

recodified as LSMR 5401 through 5439. In Chapter 67, special rules

applicable to surface coal mining review hearings and appeals, LSMR

67101 through 67139 were recodified as LSMR 6801 through 6839. No

revisions of the text of these rules, with the exception of those

discussed in finding No. 2 below, were proposed by Louisiana.

Because the proposed recodification is nonsubstantive in nature,

the Director finds that the recodification does not cause Louisiana's

rules at LSMR 5401 through 5439 and LSMR 6801 through 6839 to be less

effective than the counterpart Federal regulations at 30 CFR Part 816

and the Federal administrative procedures at 43 CFR Part 4. The

Director approves the recodification.

b. LSMR 5423.B.4. At LSMR 5423.B.4, Louisiana proposed to delete

the phrase ``technical documents.'' LSMR 5423.B.4.a (discussed below)

specifies technical success standards for areas developed for forestry.

At LSMR 5423.B.1 through 3, for land uses other than commercial

forestry, an applicant is given the option of developing revegetation

success standards from reference areas, historic records, or technical

documents. Because Louisiana, at LSMR 5423.B.4, does not allow for the

development of success standards based on technical documents, the

proposed deletion of the phrase ``technical documents'' is an editorial

revision that eliminates confusion.

Because this proposed revision is nonsubstantive in nature, the

Director finds that this proposed rule is no less effective than the

counterpart Federal regulations at 30 CFR 816.116(b)(3). The Director

approves this rule.

2. LSMR 5423.B.4.a and Policy Statement PS-5, Standards for Success of

Revegetation at Final Bond Release on Reclaimed Lands Developed for Use

as Forestry

At 30 CFR 918.16(a), OSM required that Louisiana revised LSMR

5423.B.4.a (previously codified as 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. At 30 CFR 918.16(b), OSM required that Louisiana

revise LSMR 5423.B.4.a, or otherwise modify its program, to either (1)

clarify, by policy statement, that proposed LSMR 5423.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 (finding

Nos. 1.b and 1.c, 59 FR 48171, September 20, 1994). Louisiana's

proposed revisions in response to these required amendments are

discussed below.

a. LSMR 5423.B.4.a. Louisiana proposed to revise LSMR 5423.B.4.a by

adding 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) include the

requirements that the trees and shrubs 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.

[[Page 4543]]

The Director finds that Louisiana's proposed revision of LSMR

5423.B.4.a is substantively identical to and no less effective than the

Federal regulations at 30 CFR 816.116(b)(3)(ii) in meeting SMCRA's

requirements. Therefore, the Director approves the proposed revisions

and removes the required amendment at 30 CFR 918.16(a).

b. Policy Statement PS-5. Louisiana's existing LSMR 5423.B.4.a

requires that the technical success standards for revegetation success

on lands reclaimed for use as forestry 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 the

countable stems shall be a minimum of 3 years old.

Louisiana proposed Policy Statement, PS-5, Revegetation Success

Standards for Tree and Shrub Stocking on Lands with a Postmining Land

Use of Forestry, to clarify that the requirements in LSMR 5423.B.4.a

mean that 100 percent (i.e., all countable stems) 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).

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

requirement 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.

The Director finds that Louisiana's proposed LSMR 5423.B.4.a, as

clarified by its Policy Statement PS-5, is no less effective than the

Federal Regulations at 30 CFR 816.116(b)(3)(ii) in meeting SMCRA's

requirements. Therefore, the Director approves the proposed Policy

Statement PS-5 and removes the required amendment at 30 CFR 918.16(b).

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's response to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Purusant 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-351.01).

The U.S. Bureau of Mines responded on November 30, 1994, that it

had no comments (administrative record No. LA-351.03).

The U.S. Army Corps of Engineers responded on December 1, 1994,

that the proposed amendment was satisfactory (administrative record no.

LA-351.04).

The U.S. Fish and Wildlife Service responded on December 2, 1994,

that it had no objection to implementation of the proposed amendment

(administrative record No. LA-351.05).

The U.S. Natural Resources Conservation Service (NRCS) responded on

December 9, 1994, that Louisiana's requirement for 70 percent ground

cover is 5 percent below the NRCS standard for ground cover of 75

percent (administrative record No. LA-351.08). Louisiana's requirement

at LSMR 5423.B.4.a, that vegetative ground cover shall not be less than

70 percent, was previously approved by OSM (57 FR 48726, October 28,

1992). Louisiana's existing LSMR 5417.A.4, applicable to revegetation

on land reclaimed for any 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. In addition, Louisiana requires

at LSMR 5421.A that suitable mulch and other soil stabilizing practices

shall be used on all regarded and topsoiled areas to control erosion,

promote germination of seeds, or increase the moisture content of soil.

LSMR 5417.A.4 and LSMR 5421.A are no less effective than the

requirements of the counterpart Federal regulations at, respectively,

30 CFR 816.111(a)(4) and 816.114. The Federal regulations at 30 CFR

816.116(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's standard for

ground cover at LSMR 5423.B.4.a, in conjunction with the requirements

at LSMR 5417.A.4 and LSMR 5421.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). Therefore, the Director is not, in

response to this comment, requiring that Louisiana revise the standard

at LSMR 5423.B.4.a for ground cover on areas to be developed for

forestry.

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-351.01). EPA

responded on December 8, 1994, that it had no objections to OSM's

approval of the proposed amendment (administrative record No. LA-

351.07).

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

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

LA-351.01). ACHP did not respond to OSM's request. The SHPO responded

on December 8, 1994, that it had no comments (administrative record No.

LA-351.06).

V. Director's Decision

Based on the above findings, the Director approves Louisiana's

proposed amendment as submitted on November 2, 1994.

The Director approves, as discussed in: finding No. 1.a,

recodification of a segment of Louisiana's rules; finding No. 1.b, a

nonsubstantive editorial revision at LSMR 5423.B.4; finding No. 2.a,

LSMR 5423.B.4.a, concerning trees that will be used in determining the

success of stocking and the adequacy of the plant arrangement on

reclaimed lands developed for use as forestry; and finding No. 2.b,

Policy Statement PS-5, concerning clarification of the revegetation

success standards in LSMR 5423.B.4.a.

The Director approves the rules as proposed by Louisiana with the

provision that they be fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

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. [[Page 4544]] 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 of 1969 (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: January 13, 1995.

Charles E. Sandberg,

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 adding paragraph (e) to read as

follows:

Sec. 918.15 Approval of amendments to the Louisiana regulatory

program.

* * * * *

(e) Revisions to the following rules, as submitted to OSM on

November 2, 1994, are approved effective January 24, 1995:

LSMR 5423.B.4.a, revegetation success standards on reclaimed land

developed for use as forestry, and

Policy Statement PS-5, Revegetation Success Standards for Tree and

Shrub Stocking on Lands with a Postmining Land Use of Forestry.

3. Section 918.16 is amended by revising the introductory

paragraph, removing and reserving paragraph (a), and removing paragraph

(b) 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) [Reserved].

[FR Doc. 95-1707 Filed 1-23-95; 8:45 am]

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