Kansas Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[SPATS No. KS-016-FOR]

Kansas 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 Kansas regulatory

program (hereinafter referred to as the ``Kansas program'') under the

Surface Mining Control and Reclamation Act of 1977. Kansas proposed

revisions to its approved revegetation success guidelines pertaining to

an additional measurement technique that could be used to determine

woody stem density. The amendment is intended to improve operational

efficiency.

EFFECTIVE DATE: November 27, 1995.

FOR FURTHER INFORMATION CONTACT:

Brent Wahlquist, Regional Director, Mid-Continent Regional Coordinating

Center, Office of Surface Mining, Alton Federal Building, 501 Belle

Street, Alton, Illinois, 62002, Telephone: (618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Kansas Program

II. Submission of the Proposed Amendment

III. Director's Findings

IV. Summary and Disposition of Comments

V. Director's Decision

VI. Procedural Determinations

I. Background on the Kansas Program

On January 21, 1981, the Secretary of the Interior conditionally

approved the Kansas program. General background information on the

Kansas program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the January

21, 1981, Federal Register (46 FR 5892). Subsequent actions concerning

Kansas' program and program amendments can be found at 30 CFR 916.10,

916.12 and 916.15.

II. Submission of the Proposed Amendment

By letter dated August 9, 1995 (Administrative Record No. KS-600),

Kansas submitted a proposed amendment to its program pursuant to SMCRA.

Kansas submitted the proposed amendment at its own initiative to

improve its program efficiency. Kansas proposes to modify its

requirements for determining the productivity success of trees and

shrubs by amending its approved revegetation success guidelines

entitled ``Revegetation Standards for Success and Statistically Valid

Sampling Techniques for Measuring Revegetation Success'' to include an

alternative sampling method for determining woody stem density.

OSM announced receipt of the proposed amendment in the September

12, 1995, Federal Register (60 FR 47314), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (Administrative Record No. KS-603). The

public comment period ended on October 12, 1995.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

proposed amendment.

Woody Stem Density

Kansas proposes to amend its revegetation success guidelines by

adding an alternative method for measurement of woody stem density.

This would apply to any land use where trees or shrubs would be

required to be planted as part of the approved reclamation and

revegetation plan. The approved guidelines currently only allow for a

100 percent count of trees and shrubs in the proposed release area. The

proposed amendment would still require that 100 percent counts are

necessary when the reclamation plan calls for less than 300 stems per

acre and less than 10 acres. When the reclamation plan calls for more

than 300 stems per acre or the release area is larger than 10 acres,

the permittee has the option of either doing a 100 percent count or

collecting a statistically valid sample utilizing randomly selected \1/

50\th acre circular plots.

The Kansas program regulations concerning statistically valid

sampling methods for measuring revegetation success are found at Kansas

Administrative Regulation (KAR) 47-9-1(c)(42) and adopt by reference 30

CFR 816.116, as in effect on July 1, 1990.

[[Page 58235]]

These regulations are essentially identical to the counterpart Federal

regulations. Kansas is adding an alternative measurement technique for

the determination of woody stem density for any land use where the

approved reclamation plan would require the planting of trees or

shrubs. The method must meet the State and Federal requirement that

this measurement technique be a statistically valid sampling technique

as required at 30 CFR 816/817.116(a). The Director finds that by

requiring random sampling where sample adequacy is established and

utilizing a 90 percent statistical confidence interval (i.e., one-sided

test with a 0.10 alpha error), the proposed method is no less effective

than the Federal regulations at 30 CFR 816/817.116(a).

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments and provided an opportunity

for a public hearing on the proposed amendment. No public comments were

received and because no one requested an opportunity to speak at a

public hearing, no hearing was held.

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 Kansas program.

The U.S. Department of the Interior, Fish and Wildlife Service,

responded on September 12, 1995, and provided its concurrence that the

implementation of the proposed revision should adequately ensure

successful revegetation of reclaimed areas and had no objection to the

proposal (Administrative Record No. 602). The U.S. Department of

Agriculture, Natural Resources Conservation Service, responded on

September 25, 1995, but did not offer any substantive comments

(Administrative Record No. KS-604).

Environmental Protection Agency (EPA)

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 Kansas proposed to make in its amendment

pertain to air or water quality standards. Therefore, OSM did not

request EPA's concurrence.

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

proposed amendment from EPA (Administrative Record No. KS-605). EPA did

not respond to the request.

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

comments on proposed amendments which may have an effect on historic

properties from the SHPO and ACHP. Since the proposed amendment would

not have any effect on historic properties, OSM did not solicit comment

from the SHPO or ACHP.

V. Director's Decision

Based on the above finding, the Director approves Kansas' proposed

amendment as submitted on August 9, 1995, concerning the Kansas

alternative method for measurement of woody stem density.

The Director approves the revision as proposed by Kansas with the

provision that it is fully promulgated in identical form to the rules

submitted to and reviewed by OSM and the public.

The Federal regulations at 30 CFR part 916, codifying decisions

concerning the Kansas 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

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).

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, to the extent allowed by law, 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 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.

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)).

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 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.

VII. List of Subjects in 30 CFR 916

Intergovernmental relations, Surface mining, Underground mining.

Dated: November 13, 1995.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating 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:

[[Page 58236]]

PART 916--KANSAS

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

follows:

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

2. Section 916.15 is amended by adding paragraph (p) to read as

follows:

Sec. 916.15 Approval of regulatory program amendments.

* * * * *

(p) The revision to the Kansas Revegetation Standards for Success

and Statistically Valid Sampling Techniques for Measuring Revegetation

Success, concerning the alternative for measuring woody stem density as

submitted to OSM on August 9, 1995, is approved effective November 27,

1995.

[FR Doc. 95-28865 Filed 11-24-95; 8:45 am]

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