Missouri Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 925

[SPATS No. MO-025-FOR]

Missouri 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 certain exceptions, a proposed

amendment to the Missouri regulatory program (hereinafter referred to

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

Reclamation Act of 1977 (SMCRA). The proposed amendment consists of a

proposed set of revegetation success guidelines and a rulemaking that

eliminates the reference to an earlier set of guidelines that was never

approved by OSM. The amendment is intended to revise the Missouri

program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: May 28, 1996.

FOR FURTHER INFORMATION CONTACT:

Brent Wahlquist, Regional Director, Mid-Continent Regional Coordinating

Center, Office of Surface Mining Reclamation and Enforcement, Alton

Federal Building, 501 Belle Street, Alton, Illinois 62002, Telephone:

(618) 463-6460.

SUPPLEMENTARY INFORMATION:

I. Background on the Missouri 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 Missouri Program

On November 21, 1980, the Secretary of Interior conditionally

approved the Missouri program. General background information on the

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

of comments, and the conditions of approval of the Missouri program can

be found in the November 21, 1980, Federal Register (45 FR 77017).

Subsequent actions concerning Missouri's program and program amendments

can be found at 30 CFR 925.12, 925.15, and 925.16.

II. Submission of the Proposed Amendment

By letter dated December 14, 1995 (Administrative Record no. MO-

633), Missouri submitted a proposed amendment to its program pursuant

to SMCRA. Missouri submitted the proposed amendment in response to the

required program amendments at 30 CFR 925.16 (a) and (p)(6). The

provisions of the Code of State Regulations (CSR) that Missouri

proposes to amend are: 10 CSR 40-3.120/3.270(c)(B)2.A-H., Specific

revegetation success standards for postmining land uses. Specifically,

Missouri proposes revisions to its approved program for evaluating

revegetation success. Missouri revised its regulations for the specific

standards for each of its approved land uses to delete the reference to

an earlier set of guidelines that had not been approved by OSM and

reference the guidelines as currently proposed in this amendment. The

proposed revegetation success guidelines consist of eight separate

guidance documents that establish the revegetation success standards by

land use. These documents are titled the: (1) Phase II and Phase III

revegetation standards for prime farmland; (2) Phase III revegetation

standards for cropland; (3) Phase III revegetation standards for

pasture and previously mined areas; (4) Phase III revegetation

standards for wildlife habitat; (5) Phase III revegetation standards

for woodland; (6) Phase III revegetation standards for industrial/

commercial revegetation; (7) Phase III revegetation success standards

for residential land use; and (8) Phase III revegetation success

standards for recreation land use. Each set of guidelines elaborates by

land use type the revegetation success standards, measurement

frequency, sampling procedures, data submission and analysis, maps, and

mitigation plan requirements. The guidance documents follow the

approved Missouri program regulations at 10 CSR 40-3.120/3.270(6).

OSM announced receipt of the proposed amendment in the January 26,

1996, Federal Register (61 FR 2459), and in the same document opened

the public comment period and provided an opportunity for a public

hearing on the adequacy of the proposed amendment. The public comment

period closed on February 26, 1996.

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.

Revisions not specifically discussed below concern nonsubstantive

wording changes, or revised cross-references and paragraph notations to

reflect organizational changes resulting from this amendment.

[[Page 26455]]

1. 10 CSR 40-3.120/3.270(6)(B)--Specific Standards for Postmining Land

Uses

The required amendment at 30 CFR 925.16(p)(6) requires Missouri to

amend its program at 10 CSR 40-3.120/3.270(6)(B) 2.A through H to

remove the reference to the Land Reclamation Commission's June 1990

Phase III Liability Release Guidelines.

Missouri proposes to revise each land use specific revegetation

success guidance document which it incorporated by reference into its

regulations. Measurement, for applicable land use specific levels of

ground cover, production, or stocking shall be performed in accordance

with the criteria contained in the current land use specific guidelines

of the Land Reclamation Commission.

Although there is not an exact counterpart Federal regulation

concerning the incorporation by reference of revegetation success

guidance documents, the Federal regulations at 30 CFR 816/817.116(a)(1)

require a State to include its standards for success and statistically

valid sampling techniques for measuring revegetation success in its

approved regulatory program. Missouri is proposing to accomplish this

by incorporating eight land use specific guidance documents by

reference in its regulations at 10 CSR 40-3.120/3.270(6)(B). The

Director finds that Missouri's proposal to include these documents by

reference into its approved program is not inconsistent with the

Federal regulation requirements. Accordingly, the Director is removing

the required program amendment from the Missouri program as codified at

30 CFR 925.16(p)(6).

2. Revegetation Success Guidelines

The required amendment at 30 CFR 925.16(a) requires Missouri to

amend its program to include those technical guidance procedures that

the State considers acceptable for use in evaluating revegetation

success.

a. Phase III Revegetation Success Standards for Woodland

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for Woodland.'' This document describes

the criteria and procedures for determining Phase III success standards

for areas being restored as Woodland pursuant to 10 CSR 40-3.120/

3.270(6) and (7).

Missouri proposes that revegetation success on woodland be

determined on the basis of: the general revegetation requirements of

the approved permit; ground cover; and tree/shrub stocking and

survival. The permittee is responsible for measuring the vegetation and

for submitting the data to the director of Missouri Land Reclamation

Program (MLRP) for analysis. Measurements of the vegetation must be

made in accordance with the procedures outlined in the guidance

document. The director of MLRP must determine that the general

requirements for revegetation success be satisfied as stated in 10 CSR

40-3.120/3.270(1). The guidance document sets out specific success

standards and measurement frequencies for ground cover and tree and

shrub stocking rate based on the regulatory requirements of 10 CSR 40-

3.120/3.270. Sampling procedures are to use statistically valid random

sampling methods using a 90 percent statistical confidence limit.

Ground cover is to be measured by the line-point transect method and

tree/shrub stocking is to be measured with sampling circles. Sample

adequacy is to be determined using a prescribed formula. If the data

indicates that the vegetation is close to the standard but less than

the standard, the data is to be submitted to the director of MLRP for

statistical analysis to determine if the differences are statistically

significant within the limits allowed by regulation. Maps must be

provided by the permittees for each Phase III plan indicating the

location of each sampling transect and sample frame point, the area

covered by the sampling and all permit boundaries. If the permittees

can not demonstrate revegetation success in the fifth year after

completion of initial seeding, a mitigation plan must be submitted to

the director of MLRP including a statement of the problem, a discussion

of methods to correct the problem, and a new phase III liability

release plan. If the plan involves augmented activities then the 5 year

responsibility period will begin again. Appendices are attached

illustrating the selection of random sampling sites; data forms for

line-point transect; data forms for sample circle; T-table; example of

sample adequacy determination for ground cover; example of sample

adequacy determination for tree/shrub stocking; statistical analysis

for ground cover and tree/shrub stocking; accepted plant species; and

references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for woodland. The Director finds that

the guidance document is not inconsistent with and no less effective

than the Federal regulations.

b. Phase III Success Standards for Industrial/Commercial Revegetation

Missouri proposes to adopt a guidance document entitled ``Phase III

Success Standards for Industrial/Commercial Revegetation.'' This

document describes the criteria and procedures for determining Phase

III success standards for areas being restored as industrial/commercial

pursuant to 10 CSR 40-3.120/3.270 (6) and (7).

Missouri proposes that revegetation success on industrial/

commercial be determined on the basis of: the general revegetation

requirements of the approved permit; and ground cover density. The

permittee is responsible for measuring the vegetation and for

submitting the data to the director of MLRP for analysis. Measurements

of the vegetation must be made in accordance with the procedures

outlined in the guidance document. The director of MLRP must determine

that the general requirements for revegetation success be satisfied as

stated in 10 CSR 40-3.120/3.270(1). The guidance document sets out

specific success standards and measurement frequencies for ground cover

based on the regulatory requirements of 10 CSR 40-3.120/3.270. Sampling

procedures are to use statistically valid random sampling methods using

a 90 percent confidence interval. Ground cover is to be measured by the

line-point transect method. Sample adequacy is to be determined using a

prescribed formula. If the data indicates that the vegetation is close

to the standard but less than the standard, the data is to be submitted

to the director of MLRP for statistical analysis to determine if the

differences are

[[Page 26456]]

statistically significant within the limits allowed by regulation. Maps

must be provided by the permittee for each Phase III plan indicating

the location of each sampling transect and sample frame point, the area

covered by the sampling, and all permit boundaries. If the permittee

can not demonstrate revegetation success in the fifth year after

completion of initial seeding, a mitigation plan must be submitted to

the director of MLRP including a statement of the problem, a discussion

of methods to correct the problem, and a new phase III liability

release plan. If the plan involves augmented activities then the 5 year

responsibility period will begin again. Appendices are attached

illustrating the selection of random sampling sites; data forms for

line-point transect; data forms for sample circle; T-table; example of

sample adequacy determination for ground cover; statistical analysis

for ground cover; accepted plant species; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for industrial/commercial land uses.

The Director finds that the guidance document is not inconsistent with

and is no less effective than the Federal regulations.

c. Phase III Revegetation Success Standards for Cropland

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for Cropland.'' This document describes

the criteria and procedures for determining Phase III success standards

for areas being restored as cropland pursuant to 10 CSR 40-3.120/3.270

(6) and (7).

Missouri proposes that revegetation success on cropland be

determined on the basis of ground cover and crop production. The

permittee is responsible for measuring the vegetation and for

submitting the data to the director of MLRP for analysis. Measurements

of the vegetation must be made in accordance with the procedures

outlined in the guidance document. The guidance document sets out

specific success standards and measurement frequencies for ground cover

and crop production based on the regulatory requirements of 10 CSR 40-

3.120/3.270. The crop production standard is to be determined with a

reference area or the use of a technical standard. Approved technical

standards include the county average or target yield established by the

U.S. Department of Agriculture Natural Resources Conservation Service

(USDA NRCS). Target yields must be adjusted annually and be

representative of yields expected when using high management practices

common to the area. Sampling procedures are to use statistically valid

random sampling methods. Ground cover is to be measured by the line-

point transect method. Crop production is to be measured utilizing

sampling frames for forage production or whole area harvest for forage

or row crop production. Manual sampling of row crops is only allowed

when weather or other factors prevent mechanical harvest and must have

prior approval by the director of MLRP. The guidance document also

establishes a method for establishing representative test plots for use

with row crop production. Sample adequacy is to be determined using a

prescribed formula. If the data indicates that the vegetation is close

to the standard but less than the standard, the data is to be submitted

to the director of MLRP for statistical analysis to determine if the

differences are statistically significant within the limits allowed by

regulation. Maps must be provided by the permittee for each Phase III

plan indicating the location of each sampling transect and sample frame

point, the area covered by the sampling, and all permit boundaries. If

the permittee can not demonstrate revegetation success in the fifth

year after completion of initial seeding, a mitigation plan must be

submitted to the director of MLRP including a statement of the problem,

a discussion of methods to correct the problem, and a new phase III

liability release plan. If the plan involves augmented activities then

the 5 year responsibility period will begin again. Appendices are

attached illustrating the selection of random sampling sites; summary

data forms for sampling frames; data forms for crop production data; T-

table; example of sample adequacy determination for hay production

measurements; statistical analysis for sampling frame data; data form

for forage crop production data harvested as baled hay; statistical

analysis of whole release area harvesting; yield adjustments for

release areas due to differing soil series; yield adjustments for

moisture; crop surveyor's affidavit of qualifications and crop

production yields; grasses of acceptable plant species for permanent

ground cover on agricultural areas; procedure for manually sampling row

crops; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for cropland. The Director finds that

the guidance document is not inconsistent with and no less effective

than the Federal regulations.

d. Phase III Revegetation Success Standards for Wildlife Habitat

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for Wildlife Habitat.'' This document

describes the criteria and procedures for determining Phase III success

standards for areas being restored as wildlife habitat pursuant to 10

CSR 40-3.120/3.270 (6) and (7).

Missouri proposes that revegetation success on wildlife habitat be

determined on the basis of: the general revegetation requirements of

the approved permit; ground cover; and tree/shrub stocking and

survival. The permittee is responsible for measuring the vegetation and

for submitting the

[[Page 26457]]

data to the director of MLRP for analysis. Measurements of the

vegetation must be made in accordance with the procedures outlined in

the guidance document. The director of MLRP must determine that the

general requirements for revegetation success be satisfied as stated in

10 CSR 40-3.120/3.270(1). The guidance document sets out specific

success standards and measurement frequencies for ground cover and tree

and shrub stocking rate based on the regulatory requirements of 10 CSR

40-3.120/3.270. Sampling procedures are to use statistically valid

random sampling methods. Ground cover is to be measured by the line-

point transect method and tree/shrub stocking is to be measured with

sampling circles. Sample adequacy is to be determined using a

prescribed formula. If the data indicates that the vegetation is close

to the standard but less than the standard, the data is to be submitted

to the director of MLRP for statistical analysis to determine if the

differences are statistically significant within the limits allowed by

regulation. Maps must be provided by the permittee for each Phase III

plan indicating the location of each sampling transect and sample frame

point, the area covered by the sampling, and all permit boundaries. If

the permittee can not demonstrate revegetation success in the fifth

year after completion of initial seeding, a mitigation plan must be

submitted to the director of MLRP including a statement of the problem,

a discussion of methods to correct the problem, and a new phase III

liability release plan. If the plan involves augmented activities then

the 5 year responsibility period will begin again. Appendices are

attached illustrating the selection of random sampling sites; data

forms for line-point transect; data forms for sample circle; T--table;

example of sample adequacy determination for ground cover; example of

sample adequacy determination for tree/shrub stocking; statistical

analysis for ground cover and tree/shrub stocking; accepted plant

species; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for wildlife habitat. The Director

finds that the guidance document is not inconsistent with and no less

effective than the Federal regulations.

e. Phase III Revegetation Success Standards for Pasture and Previously

Mined areas

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for Pasture and Previously Mined

Areas.'' This document describes the criteria and procedures for

determining Phase III success standards for areas being restored as

pasture and previously mined land pursuant to 10 CSR 40-3.120/3.270 (6)

and (7).

Missouri proposes that revegetation success on pasture and

previously mined land be determined on the basis of: the general

revegetation requirements of the approved permit; ground cover; and

production. The permittee is responsible for measuring the vegetation

and for submitting the data to the director of MLRP for analysis. Any

previously mined land that was remined or redistributed and reclaimed

to a land use of pasture, must achieve the same success standard for

cover as land that was not previously disturbed by mining. However if

the area is not reclaimed to the requirements of 10 CSR 40-3.120(6)(B),

the vegetation cover shall not be less than the ground cover existing

before redisturbance and shall be adequate to control erosion. This

ground cover standard must have been determined and incorporated into

the permit prior to disturbance. There is no productivity standard for

previously mined land. The director of MLRP must determine that the

general requirements for revegetation success be satisfied as stated in

10 CSR 40-3.120/3.270(1). Measurements of the vegetation must be made

in accordance with the procedures outlined in the guidance document.

The guidance document sets out specific success standards and

measurement frequencies for ground cover and production based on the

regulatory requirements of 10 CSR 40-3.120/3.270. The forage production

standard is to be determined with a reference area or a current USDA/

NRCS high management target yield. Sampling procedures are to use

statistically valid random sampling methods at a 90 percent statistical

confidence interval. Ground cover is to be measured by the line-point

transect method. Forage production is to be measured utilizing sampling

frames or whole area harvest. The guidance document also establishes a

method for establishing representative test plots. Sample adequacy is

to be determined using a prescribed formula. If the data indicates that

the vegetation is close to the standard but less than the standard, the

data is to be submitted to the director of MLRP for statistical

analysis to determine if the differences are statistically significant

within the limits allowed by regulation. Maps must be provided by the

permittee for each Phase III plan indicating the location of each

sampling transect and sample frame point, the area covered by the

sampling and all permit boundaries. If the permittee can not

demonstrate revegetation success in the fourth year after completion of

last augmented seeding, a mitigation plan must be submitted to the

director of MLRP including a statement of the problem, a discussion of

methods to correct the problem, and a new phase III liability release

plan. If the plan involves augmented activities then the 5 year

responsibility period will begin again. Appendices are attached

illustrating the selection of random sampling sites; data forms for

line point transects; summary data forms for sampling frames; T-table;

data form for forage crop production data harvested as baled hay;

example use of sample adequacy formula for ground cover measurements

and hay production measurements; statistical analysis on sampling frame

data and whole release area harvesting; yield adjustments for release

areas due to differing soil series; grasses of acceptable plant species

for permanent ground cover on agricultural areas; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be

[[Page 26458]]

considered equal to the approved success standard then they are not

less than 90 percent of the success standard. The sampling techniques

for measuring success shall use a 90 percent statistical confidence

interval (i.e., one-sided test with a 0.10 alpha error). Missouri is

proposing to accomplish this by adoption of a detailed guidance

document illustrating the methods to be used by the permittee to

measure revegetation success for pasture and previously mined land. The

Director finds that the guidance document is not inconsistent with and

no less effective than the Federal regulations.

f. Phase II/III Revegetation Success Standards for Prime Farmland

Missouri proposes to adopt a guidance document entitled ``Phase II/

III Revegetation Success Standards for Prime Farmland.'' This document

describes the criteria and procedures for determining Phase II and III

success standards for areas being restored as prime farmland pursuant

to 10 CSR 40-3.120/3.270 (6) and (7) and 10 CSR 40-4.030.

Missouri proposes that revegetation success on prime farmland be

determined on the basis of crop production. The permittee is

responsible for measuring the vegetation and for submitting the data to

the director of MLRP for analysis. Measurements of the vegetation must

be made in accordance with the procedures outlined in the guidance

document. Ground cover must be established following soil replacement

with approved species to effectively control erosion. The guidance

document sets out specific success standards and measurement

frequencies for crop production based on the regulatory requirements of

10 CSR 40-3.120/3.270 and 10 CSR 40-4.030. The crop production standard

is to be determined with a reference area or the use of a technical

standard. Approved technical standards include the county average or

target yield established by the USDA NRCS. Target yields must be

adjusted annually and be representative of yields expected when using

high management practices common to the area.

Sampling procedures are to use statistically valid random sampling

methods. Crop production is to be measured utilizing sampling frames

for forage production or whole area harvest for forage or row crop

production. Manual sampling of row crops is only allowed when weather

or other factors prevent mechanical harvest and must have prior

approval by the director of MLRP. The guidance document also

establishes a method for establishing representative test plots for use

with row crop production. Sample adequacy is to be determined using a

prescribed formula. If the data indicates that the vegetation is close

to the standard but less than the standard, the data is to be submitted

to the director of MLRP for statistical analysis to determine if the

differences are statistically significant within the limits allowed by

regulation. Maps must be provided by the permittee for each Phase III

plan indicating the location of each sampling transect and sample frame

point, the area covered by the sampling, and all permit boundaries. If

the permittee cannot demonstrate revegetation success in the fifth year

after completion of initial seeding, a mitigation plan must be

submitted to the director of MLRP including a statement of the problem,

a discussion of methods to correct the problem, and a new phase III

liability release plan. If the plan involves augmented activities, then

the 5-year responsibility period will begin again. Appendices are

attached illustrating the selection of random sampling sites; summary

data forms for sampling frames; data forms for crop production data;

T--table; example of sample adequacy determination for hay production

measurements; statistical analysis for sampling frame data; data form

for forage crop production data harvested as baled hay; statistical

analysis of whole release area harvesting; yield adjustments for

release areas due to differing soil series; yield adjustments for

moisture; crop surveyor's affidavit of qualifications and crop

production yields; grasses of acceptable plant species for permanent

ground cover on agricultural areas; procedure for manually sampling row

crops; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulation

at 30 CFR 823.15 establishes the revegetation and restoration

requirements for soil productivity on prime farmland.

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for prime farmland. The Director finds

that portion of the prime farmland guidance document that establishes

the revegetation standards and sampling techniques is not inconsistent

with and no less effective than the Federal regulations and is

approving it with the following exception.

As previously discussed, Missouri proposes in its prime farmland

guidance document one option for establishing a success standard by

utilizing approved technical standards including the county average or

target yield established by the USDA NRCS. Target yields must be

adjusted annually and be representative of yields expected when using

high management practices common to the area. The Federal regulation at

30 CFR 823.15(b)(7) requires that reference crop yields for a given

crop season are to be determined from * * * (ii) the average county

yields recognized by the USDA, which have been adjusted by the U.S.

Soil Conservation Service for local yield variation within the county

that is associated with differences between nonmined prime farmland

soil and all other soils that produce the reference crop. The Director

finds that Missouri's proposal to utilize county averages of production

is less effective than the Federal regulations because county averages

would not have been adjusted by the U.S. Soil Conservation Service to

remove the influence of other nonprime soils that produce the reference

crop. The Director finds that portion of the prime farmland guidance

document concerning Missouri's option for establishing a revegetation

success standard for prime farmland soils with county averages that do

not distinguish between nonprime and prime soil is less effective than

the Federal regulations and is not approving its use.

g. Phase III Revegetation Success Standards for a Recreation Land Use

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for a Recreation land use.'' This

document describes the criteria and procedures for determining Phase

III success standards for areas being restored for a recreation land

use pursuant to 10 CSR 40-3.120/3.270 (6) and (7).

Missouri proposes that revegetation success for a recreation land

use be determined on the basis of: the general revegetation

requirements of the approved permit; ground cover; and tree/shrub

stocking and survival. The permittee is responsible for measuring the

vegetation and for submitting the data to the director of MLRP for

analysis. Measurements of the vegetation must be made in accordance

with the procedures outlined in the guidance document. The director of

MLRP must determine that the general requirements for revegetation

success be satisfied as stated in 10 CSR 40-3.120/

[[Page 26459]]

3.270(1). The guidance document sets out specific success standards and

measurement frequencies for ground cover and tree and shrub stocking

rate based on the regulatory requirements of 10 CSR 40-3.120/3.270.

Sampling procedures are to use statistically valid random sampling

methods. Ground cover is to be measured by the line-point transect

method and tree/shrub stocking is to be measured with sampling circles.

Sample adequacy is to be determined using a prescribed formula. If the

data indicates that the vegetation is close to the standard but less

than the standard, the data is to be submitted to the director of MLRP

for statistical analysis to determine if the differences are

statistically significant within the limits allowed by regulation. Maps

must be provided by the permittee for each Phase III plan indicating

the location of each sampling transect and sample frame point, the area

covered by the sampling and all permit boundaries. If the permittee can

not demonstrate revegetation success in the fifth year after completion

of initial seeding, a mitigation plan must be submitted to the director

of MLRP including a statement of the problem, a discussion of methods

to correct the problem, and a new phase III liability release plan. If

the plan involved augmented activities then the 5 year responsibility

period will begin again. Appendices are attached illustrating the

selection of random sampling sites; data forms for line-point transect;

T--table; example of sample adequacy determination for ground cover;

statistical analysis for ground cover; accepted plant species; and

references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for a recreation land use. The Director

finds that the guidance document is not inconsistent with and no less

effective than the Federal regulations.

h. Phase III Revegetation Success Standards for Residential Land Use

Missouri proposes to adopt a guidance document entitled ``Phase III

Revegetation Success Standards for Residential land use.'' This

document describes the criteria and procedures for determining Phase

III success standards for areas being restored as industrial/commercial

pursuant to 10 CSR 40-3.120/3.270 (6) and (7).

Missouri proposes that revegetation success for a residential land

use be determined on the basis of: the general revegetation

requirements of the approved permit; ground cover density; and if

approved in the permit, tree and shrub stocking. The permittee is

responsible for measuring the vegetation and for submitting the data to

the director of MLRP for analysis. Measurements of the vegetation must

be made in accordance with the procedures outlined in the guidance

document. The director of MLRP must determine that the general

requirements for revegetation success be satisfied as stated in 10 CSR

40-3.120/3.270(1). The guidance document sets out specific success

standards and measurement frequencies for ground cover based on the

regulatory requirements of 10 CSR 40-3.120/3.270. Sampling procedures

are to use statistically valid random sampling methods. Ground cover is

to be measured by the line-point transect method and tree/shrub

stocking is to be measured with sampling circles. Sample adequacy is to

be determined using a prescribed formula. If the data indicates that

the vegetation is close to the standard but less than the standard, the

data is to be submitted to the director of MLRP for statistical

analysis to determine if the differences are statistically significant

within the limits allowed by regulation. Maps must be provided by the

permittee for each Phase III plan indicating the location of each

sampling transect and sample frame point, the area covered by the

sampling and all permit boundaries. If the permittee can not

demonstrate revegetation success in the fifth year after completion of

initial seeding, a mitigation plan must be submitted to the director of

MLRP including a statement of the problem, a discussion of methods to

correct the problem, and a new phase III liability release plan. If the

plan involves augmented activities then the 5 year responsibility

period will begin again. Appendices are attached illustrating the

selection of random sampling sites; data forms for line-point transect;

data forms for sample circle; T-table; example of sample adequacy

determination for ground cover measurements and tree/shrub counts;

statistical analysis for ground cover and tree/shrub data; accepted

plan species; and references.

The counterpart Federal regulations at 30 CFR 816/817.116(a)(1)

require that standards for success and statistically valid sampling

techniques for measuring success shall be selected by the regulatory

authority and included in an approved program. The Federal regulations

at 30 CFR 816/817.116(a)(2) require that standards for success shall

include criteria representative of unmined lands in the area being

reclaimed to evaluate the appropriate vegetation parameters of ground

cover, production, or stocking. Ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard. The sampling

techniques for measuring success shall use a 90 percent statistical

confidence interval (i.e., one-sided test with a 0.10 alpha error).

Missouri is proposing to accomplish this by adoption of a detailed

guidance document illustrating the methods to be used by the permittee

to measure revegetation success for a residential land use. The

Director finds that the guidance document is not inconsistent with and

no less effective than the Federal regulations.

Based on the above findings, the Director is removing the required

program amendment from the Missouri program as codified at 30 CFR

925.16(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 30 CFR 732.17(h)(11)(I), the Director solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the Missouri program. No comments

were received.

Environmental Protection Agency (EPA)

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

written

[[Page 26460]]

concurrence of the 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 Missouri proposed to make in this 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. MO-634). EPA did

not respond to OSM's request.

State Historical 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 findings, the Director approves, with certain

exceptions, the proposed amendment as submitted by Missouri on December

14, 1995.

The Director does not approve, as discussed in: finding No. 2.f,

Phase II/III Revegetation Success Standards for Prime Farmland,

Missouri's proposal to utilize county averages of production as one

method of establishing a target yield for prime farmland. This is less

effective than the Federal regulations at 30 CFR 823.15(b)(7) because

the county averages would not have been adjusted by the U.S. Soil

Conservation Service to remove the influence of other nonprime soils

that produce the reference crop. Missouri must not use the option for

utilizing a county average as a success standard for prime farmland

soils unless and until it is revised consistent with the Federal

regulations and approved by OSM.

The Director approves, as discussed in: finding No. 1, 10 CSR 40-

3.120/3.270(6)(B) concerning Specific standards for postmining land

uses; finding No. 2.a, concerning its Phase III Revegetation Success

Standards for Woodland; finding No. 2.b, concerning its Phase III

Success Standards for Industrial/Commercial Revegetation; finding No.

2.c, concerning its Phase III Revegetation Success Standards for

Cropland; finding No. 2.d, concerning its Phase III Revegetation

Success Standards for Wildlife Habitat; finding No. 2.e, concerning its

Phase III Revegetation Success Standards for Pasture and Previously

Mined Areas; finding No. 2.f, concerning its Phase II/III Revegetation

Success standards for Prime Farmland, with the exception noted above;

finding No. 2.g, concerning its Phase III Revegetation Success

Standards for a Recreation land use; finding No. 2.h, concerning its

Phase III Revegetation Success Standards for Residential land use.

The Director approves the rules and guidance documents as proposed

by Missouri 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 925, codifying decisions

concerning the Missouri 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.

Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of

an approved State program be submitted to OSM for review as a program

amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any

unilateral changes to approved State programs. In the oversight of the

Missouri program, the Director will recognize only the statutes,

regulations and other materials approved by OSM, together with any

consistent implementing policies, directives and other materials, and

will require the enforcement by Missouri of only such provisions.

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 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (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 30

CFR 730.11, 732.15, and 731.17(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 which is the subject of this rule is based upon

corresponding 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 corresponding Federal regulations.

Unfunded Mandates

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

[[Page 26461]]

List of Subjects in 30 CFR Part 925

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 8, 1996.

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:

PART 925--MISSOURI

1. The authority citation for Part 925 continues to read as

follows:

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

2. Section 925.15 is amended by adding paragraph (u) to read as

follows:

Sec. 925.15 Approval of regulatory program amendments.

* * * * *

(u) With the exception of that portion of the Phase II/III

Revegetation Success Standards for Prime Farmland, concerning the

option to utilize county averages of production as one method of

establishing a target yield for prime farmland, the addition of the

following revegetation success guidelines: Phase III Revegetation

Success Standards for Woodland; Phase III Success Standards for

Industrial/Commercial Revegetation; Phase III Revegetation Success

Standards for Cropland; Phase III Revegetation Success Standards for

Wildlife Habitat; Phase III Revegetation Success Standards for Pasture

and Previously Mined Areas; Phase II/III Revegetation Success Standards

for Prime Farmland; Phase III Revegetation Success Standards for a

Recreation land use; Phase III Revegetation Success Standards for

Residential land use; and the revision of the rules at 10 CSR 40-3.120/

3.270(6)(B) concerning specific standards for postmining land uses, as

submitted to OSM on December 14, 1995, are approved effective May 28,

1996.

Sec. 925.16 [Amended]

3. Section 925.16 is amended by removing and reserving paragraphs

(a) and (p)(6).

[FR Doc. 96-13263 Filed 5-24-96; 8:45 am]

BILLING CODE 4310-05-M