Missouri Regulatory Program

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. You can find general background information on the Missouri program, including the Secretary's findings, the disposition of comments, and the conditions of approval in the November 21, 1980, Federal Register (45 FR 77017). You can find later actions on the Missouri program at 30 CFR 925.12, 925.15, and 925.16.

II. Submission of the Proposed Amendment

By letter dated October 10, 1990, Missouri sent us an amendment to its program under SMCRA (Administrative Record No. MO-519). We announced receipt of the amendment in the November 1, 1990, Federal Register (55 FR 46076) and invited public comment on its adequacy. The public comment period closed December 3, 1990. In the September 29, 1992, Federal Register (57 FR 44660), we approved the amendment with exceptions. The exceptions included revisions to

Missouri's rule at 10 CSR 40-7.021(1)(B)2 concerning normal husbandry practices. We did not approve this rule because Missouri had not provided evidence to substantiate the use of each proposed practice as a normal husbandry practice. As codified at 30 CFR 925.16(p)(15), we required Missouri to provide such evidence for the administrative record or to delete the rule at 10 CSR 40-7.021(1)(B)2. By letter dated June 4, 1999, Missouri submitted agricultural publications and guidelines as supporting documentation for the normal husbandry practices proposed in its rule at 10 CSR 40-7.021(1)(B)2. We announced receipt of the supporting documentation for Missouri's proposed normal husbandry practices in the June 17, 1999, Federal Register (64 FR 32449). In the same document, we opened the public comment period. The public comment period closed on July 19, 1999. We are also taking this opportunity to remove the required amendments codified at 30 CFR 925.16(p)(7) and 925.16(p)(8). Missouri satisfied these required amendments in a previous submittal dated December 14, 1995 (Administrative Record No. MO-633).

III. Director's Findings

Following, under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17, are our findings concerning Missouri's amendment.

A. Required Amendment at 30 CFR 925.16(p)(15): 10 CSR 40-7.021(1)(B)2. Normal Husbandry Practices

1. Missouri's rule at 10 CSR 40-7.021(1)(B)2 would allow the permittee to use specified normal husbandry practices. Using these practices will not cause the Phase III liability period or the five- year responsibility period to be extended if the permittee can demonstrate that: (1) discontinuance of these measures after the liability period expires will not reduce the probability of permanent revegetation success; (2) the practices are normal husbandry practices within the region on unmined lands having land uses similar to the approved postmining land use of the areas; and (3) the practices are necessary to prevent exploitation, destruction or neglect of the resource and to maintain the prescribed level of use or productivity. The Federal regulations at 30 CFR 816.116(c)(4) for surface mining operations and 817.116(c)(4) for underground mining operations allow the regulatory authority to approve selective husbandry practices, excluding augmented seeding, fertilization, or irrigation, without extending the period of responsibility for revegetation success and bond liability, under specified conditions. The regulatory authority must obtain prior approval from OSM in accordance with 30 CFR 732.17 that the practices are normal husbandry practices that can be expected to continue as part of the postmining land use, or if discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation success. Approved practices must be normal husbandry practices within the region for unmined lands having land uses similar to the approved postmining land use of the disturbed area. We find that Missouri's requirements at 10 CSR 40- 7.021(1)(B)2. are no less effective than the requirements of the counterpart Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4). 2. Missouri specified mowing, applying pesticides, applying soil amendments, subsoiling, burning, overseeding, and planting and pruning trees as normal husbandry practices. The application of soil amendments must be equal to or less than that recommended by the high management yield goal of the NRCS. Subsoiling must not remove the revegetation from the surface and is limited to less than two feet below the surface. Overseeding must only be done to maintain the approved composition of the vegetation stand. Missouri submitted agricultural publications and guidelines developed by the University of Missouri-- Columbia Extension Division (UMC); other cooperative extension services in cooperation with the U.S. Department of Agriculture (DOA); the Missouri Department of Conservation (MDOC); and the U.S. Natural Resources Conservation Service (NRCS) as supporting documentation for these practices. We determined that the agricultural publications and guidelines provided by Missouri demonstrate that the listed practices are normal husbandry practices within the region for unmined lands. We find that Missouri's proposed normal husbandry practices in 10 CSR 40- 7.021(1)(B)2. meet the requirements of the counterpart Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4). 3. Missouri also proposed the repair of rills and gullies as a normal husbandry practice under specified conditions. Repairing rills and gullies will not cause the Phase III liability period to be extended when rills and gullies develop after the initiation of the Phase III liability period and when the repair is restricted to the filling, grading, and reseeding of the eroded portion of the area. Missouri submitted guidelines from the NRCS to support this practice. We determined that the documents submitted by Missouri for this provision represent normal husbandry practices in the State for repair of rills and gullies. We believe that by restricting the size of areas that may be repaired, requiring the eroded portion of the areas to be filled, and demonstrating that such practices are supported as normal husbandry practices, Missouri has ensured that the probability of revegetation success will not be reduced. Therefore, we find that Missouri's proposed guidelines for repair of rills and gullies are no less effective than the Federal regulation requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4).

B. Required Amendment at 30 CFR 925.16(p)(7): 10 CSR 40- 3.120(6)(B)2.A., D., and G. and 3.270(6)(B)2.A., D., and G. Revegetation Standards for Success for Woodland, Wildlife Habitat, and Recreational Postmining Land Uses

On October 10, 1990, Missouri proposed to amend its rules at 10 CSR 40-3.120(6)(B) 2.A., D., and G and 3.270(6)(B)2.A., D., and G. (Administrative Record No. MO-519). Missouri proposed a ground cover success standard of 70 percent for areas to be developed for woodland, wildlife habitat, and recreation land use. In the September 29, 1992, Federal Register (57 FR 44660), we did not approve the rule changes because Missouri did not demonstrate that a vegetative ground cover standard of 70 percent would achieve the approved post mining land use as required by the Federal regulations at 30 CFR 816.116(b)(3)(iii) and 817.116(b)(3)(iii). At 30 CFR 925.16(p)(7) we required Missouri to provide statistical proof that a vegetative ground cover of 70 percent will in all cases achieve the approved woodland, wildlife habitat, and recreational postmining land uses or otherwise amend its program to be no less effective than the Federal regulations at 30 CFR 816.116(b)(3)(iii) and 817.117(b)(3)(iii). By letter dated December 14, 1995 (Administrative Record No. MO- 633), Missouri submitted a proposed amendment that contained the statistical proof that we required. Based on this proof, we approved Missouri's rules at 10 CSR 40-3.120(6)(B)2.A., D., G. and 3.270(6)(B)2.A., D., and G. in the May 28, 1996, Federal Register (61 FR 26454). Therefore, we are removing the required amendment at 30 CFR 925.16(p)(7).

C. Required Amendment at 30 CFR 925.16(p)(8): 10 CSR 40-3.120(6)(B)2.E. and 3.270(6)(B)2.E. Revegetation Standards for Success for Pasture Land Use

On October 10, 1990, Missouri proposed to amend its rules at 10 CSR 40-3.120(6)(B) 2.E. and 3.270(6)(B)2.E. (Administrative Record No. MO- 519). Missouri proposed a ground cover success standard of 90 percent for areas to be developed for pasture land use. In the September 29, 1992, Federal Register (57 FR 44660), we did not approve this provision because Missouri did not demonstrate that a vegetative ground cover standard of 90 percent would achieve the approved post mining land use as required by the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). At 30 CFR 925.16(p)(8) we required Missouri to provide statistical proof that a vegetative ground cover of 90 percent will in all cases achieve the approved pasture postmining land use, or otherwise amend its program to be no less effective than the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). By letter dated December 14, 1995 (Administrative Record No. MO- 633), Missouri submitted a proposed amendment that contained the statistical proof that we required. Based on this proof, we approved Missouri's provisions at 10 CSR 40-3.120(6)(B)2.E. and 3.270(6)(B)2.E. in the May 28, 1996, Federal Register (61 FR 26454). Therefore, we are removing the required amendment at 30 CFR 925.16(p)(8).

IV. Summary and Disposition of Comments

Public Comments

We requested public comments on the amendment, but did not receive any.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Missouri program (Administrative Record No. MO-656.1). We did not receive any comments on the amendment.

Environmental Protection Agency (EPA)

Under 30 CFR 732.17(h)(11)(ii), we are required to get a written agreement from the EPA with respect to those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.). None of the revisions that Missouri proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask the EPA to agree on the amendment. Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from the EPA (Administrative Record No. 656.1). The EPA did not respond to our request.

State Historical Preservation Officer (SHPO) and the Advisory Council on Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On June 9, 1999, we requested comments on Missouri's amendment (Administrative Record No. MO-656.1), but neither responded to our request.

V. Director's Decision

Based on the above findings, we approve the amendment as sent to us by Missouri on June 4, 1999. To implement this decision, we are amending the Federal regulations at 30 CFR Part 925, which codify decisions concerning the Missouri program. We are making this final rule effective immediately to expedite the State program amendment process and to encourage Missouri to bring its program into conformity with the Federal standards. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

The Office of Management and Budget (OMB) exempts this rule from review 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 732.17(h)(10), decisions on State regulatory programs and program amendments 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

This rule does not require an environmental impact statement since section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on 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. Therefore, this rule will ensure that existing requirements previously published 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

OSM has determined and certifies under the Unfunded Mandates Reform Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of $100 million or more in any given year on local, state, or tribal governments or private entities.

List of Subjects in 30 CFR Part 925

Intergovernmental relations, Surface mining, Underground mining.

Dated: October 13, 1999. Richard J. Seibel, Acting Regional Director, Mid-Continent Regional Coordinating Center.

For the reasons set out in the preamble, 30 CFR Part 925 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 in the table by adding a new entry in chronological order by ``Date of final publication'' to read as follows:

Sec. 925.15 Approval of Missouri regulatory program amendments.

* * * * *

------------------------------------------------------------------------ Original amendment submission Date of final date publication Citation/description ------------------------------------------------------------------------ * * * * * * * June 4, 1999.................. 10-28-9 9. 10 CSR 40- 7.021(1)(B)2........ .................... ------------------------------------------------------------------------

Sec. 925.16 [Amended]

3. Section 925.16 is amended by removing and reserving paragraphs (p)(7), (p)(8), and (p)(15).

[FR Doc. 99-28230 Filed 10-27-99; 8:45 am] BILLING CODE 4310-05-P