[Federal Register Volume 70, Number 228 (Tuesday, November 29, 2005)]
[Rules and Regulations]
[Pages 71394-71401]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23401]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 913

[Docket No. IL-103-FOR]


Illinois Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are approving an amendment to the Illinois regulatory program 
(Illinois program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA or the Act). The Illinois Department of Natural 
Resources, Office of Mines and Minerals (Department or Illinois) is 
revising its regulations regarding revegetation success standards, to 
update statutory citations, to correct regulatory citations, and to 
clarify language in various provisions. Illinois is revising its 
program to clarify ambiguities and to improve operational efficiency.

DATES: Effective November 29, 2005.

FOR FURTHER INFORMATION CONTACT: Andrew R. Gilmore, Chief, Alton Field 
Division--Indianapolis Area Office. Telephone: (317) 226-6700. E-mail: 
<a href="/cdn-cgi/l/email-protection#276e61686a666e6b6748544a554209404851"><span class="__cf_email__" data-cfemail="cf868980828e86838fa0bca2bdaae1a8a0b9">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
I. Background on the Illinois Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Illinois Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior (Secretary) 
conditionally approved the Illinois program on June 1, 1982. You can 
find background information on the Illinois program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval, in the June 1, 1982, Federal Register (47 FR 23858). You 
can also find later actions concerning the Illinois program and program 
amendments at 30 CFR 913.10, 913.15, 913.16, and 913.17.

II. Submission of the Amendment

    By letter dated February 1, 2005 (Administrative Record No. IL-
5088), Illinois sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Illinois sent the amendment at its own 
initiative. Illinois proposed to amend its regulations at 62 Illinois 
Administrative Code (IAC) parts 1816 (Surface Mining Operations), 1817 
(Underground Mining Operations), and 1823 (Prime Farmland).
    We announced receipt of the proposed amendment in the April 4, 
2005, Federal Register (70 FR 17014). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the adequacy of the amendment. We did not hold a 
public

[[Page 71395]]

hearing or meeting because no one requested one. The public comment 
period ended on May 4, 2005. We received comments from one Federal 
agency.
    During our review of the amendment, we identified concerns about 
some editorial-type errors. We notified Illinois of these concerns by 
letters dated March 3 and April 6, 2005 (Administrative Record Nos. IL-
5092 and IL-5095).
    By e-mail dated August 3, 2005 (Administrative Record No. IL-5099), 
Illinois sent us revisions to its proposed program amendment. Because 
the revisions merely corrected the editorial-type errors that we 
identified in Illinois' amendment, we did not reopen the public comment 
period.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment as described below.

A. Minor Revisions to Illinois' Regulations

    Illinois proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved regulations:
1. 62 IAC 1816.Appendix A, Agricultural Lands Productivity Formula 
(ALPF); 62 IAC 1817.42, Hydrologic Balance--Water Quality Standards and 
Effluent Limitations; 62 IAC 1817.43, Diversions; and 62 IAC 1817.116, 
Revegetation: Standards for Success
    Illinois proposed to correct citation references at 62 IAC 
1816.Appendix A, 1817.42, 1817.43, and 1817.116.
2. 62 IAC 1816.Appendix A
    Illinois proposed minor wording changes in the corn and soybean 
sampling technique sections.
3. 62 IAC 1816.Appendix A, 1817.43(b)(3) and (c)(3), and 1823.15(b)(3)
    At 62 IAC 1816.Appendix A, 1817.43(b)(3) and (c)(3), and 
1823.15(b)(3), Illinois proposed to simplify its use of numbers by 
eliminating numbers that are in words and retaining the numbers that 
are in figures. For example, Illinois changed a numerical reference 
from ``ten (10) year, six (6) hour'' to ``10 year, 6 hour.''
    Because these changes are minor, we find that they will not make 
Illinois' regulations less effective than the corresponding Federal 
regulations at 30 CFR 816.116, 817.42, 817.43, 817.116, and 823.15.

B. 62 IAC 1816.116 (Surface Mining) and 1817.116 (Underground Mining) 
Revegetation: Standards for Success

    Illinois proposed to amend its regulations at 62 IAC 1816.116 to 
(1) Incorporate at new subsection (a)(6), an alternative method for 
determining success of revegetation for cropland and pasture land and/
or hayland or grazing land; (2) update requirements pertaining to 
adjustment for abnormal, catastrophic, growing conditions when the ALPF 
or the new alternative method is used for determining success of 
revegetation; (3) remove references to oats as a crop that may be used 
to prove success of revegetation; (4) update information in the soil 
master file, county average yield file, the agricultural lands 
productivity formula sampling method, and Exhibit A in the ALPF; and 
(5) delete Tables A through F from the ALPF. Illinois proposed to amend 
its regulation at 62 IAC 1817.116 to reference the new alternative 
method for determining success of revegetation for cropland and pasture 
land and/or hayland or grazing land at 62 IAC 1816.116(a)(6). Illinois 
proposed to amend 62 IAC 1816.116 and 1817.116 to update references to 
and requirements in existing regulations concerning the new alternative 
method.
1. 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C)
    a. At 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), Illinois 
proposed to change its references from the ``Illinois Agronomy Handbook 
(1999-2000)'' to the ``Illinois Agronomy Handbook, 23rd Edition 
(University of Illinois at Champaign-Urbana, College of Agriculture, 
Consumer and Environmental Science, 1917 Wright St., Champaign, IL 
61820 (2001-2002; this incorporation includes no later amendment or 
editions)).''
    b. At 62 IAC 1816.116(a)(2)(C) and 1817.116(a)(2)(C), Illinois also 
proposed to change its references from the old Federal conservation 
plan act, ``Food, Agriculture, Conservation and Trade Act of 1990 (7 
U.S.C. 1421 et seq.),'' to the new Federal conservation plan act, 
``Farm Security and Rural Investment Act of 2002 (Pub. L. 107-171; 116 
Stat. 134).''
    c. Finally, at 62 IAC 1816.116(a)(2)(C), Illinois proposed to 
remove the following language:

    The Illinois Agronomy Handbook is published by the University of 
Illinois Cooperative Extension Service, Office of Agricultural 
Communications and Education, 69E Mumford Hall, 1301 West Gregory 
Drive, Urbana, Illinois 61801.

    The removed language was replaced by information in Illinois' new 
reference to the Illinois Agronomy Handbook.
    Illinois proposed these changes as a result of comments received 
from the Natural Resources Conservation Service (NRCS). Because these 
editorial and reference changes are minor, we find that they will not 
make Illinois' regulations less effective than the corresponding 
Federal regulations at 30 CFR 816.116 and 817.116.
2. 62 IAC 1816.116(a)(3)(C) and (E) and 1817.116(a)(3)(C) and (E)
    a. At subsection (a)(3)(C) and (E), Illinois proposed to add a 
reference to new 62 IAC 1816.116(a)(6). Subsection (a)(3)(C) concerns 
areas, in the approved reclamation plan, designated as cropland, except 
those prime farmland cropland areas subject to 62 IAC 1823.15. 
Subsection (a)(3)(E) concerns areas, in the approved reclamation plan, 
designated as pasture and/or hayland or grazing land, except for 
erosion control devices and other structures. As revised, subsection 
(a)(3)(C) requires that the determination of success of revegetation 
for cropland areas be made in accordance with 62 IAC 1816.116(a)(4) or 
(a)(6). Also, revegetation will be considered successful if it is 90 
percent of the crop production required in 62 IAC 1816.116(a)(4) or 
(a)(6) with 90 percent statistical confidence. As revised, subsection 
(a)(3)(E) requires that the determination of success of revegetation 
(tons of grasses and/or legumes per acre) for pasture and/or hayland or 
grazing land be made in accordance with 62 IAC 1816.116(a)(4) or 
(a)(6). Also, revegetation will be considered successful if it is 90 
percent of the crop production required in 62 IAC 1816.116(a)(4) or 
(a)(6) with 90 percent statistical confidence. Currently approved 62 
IAC 1816.116(a)(4) references the ALPF, which includes the standards 
and sampling techniques to be used to evaluate success of revegetation 
for cropland and pasture and/or hayland or grazing land. Proposed new 
62 IAC 1816.116(a)(6) is an alternative to using the ALPF and includes 
an optional method for determining the standard to be used to evaluate 
success of revegetation for cropland and pasture and/or hayland or 
grazing land. The currently approved method in the ALPF for calculating 
the standard for determining success of revegetation is based on the 
current level of yield for a soil type within the county. At proposed 
62 IAC 1816.116(a)(6), the alternative method for calculating the 
standard for

[[Page 71396]]

determining success of revegetation, is based on an average of the last 
five years of yield for a specific crop for a specific soil type in the 
county.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require that standards for success of revegetation and statistically 
valid sampling criteria for measuring success must be selected by the 
regulatory authority and included in an approved regulatory program. 
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
require that standards for success of revegetation must include 
criteria representative of unmined lands in the area being reclaimed to 
evaluate the appropriate vegetation parameters of ground cover, 
production, or stocking. We find that Illinois' proposed alternative 
method at 62 IAC 1816.116(a)(6) for calculating the standard for 
determining success of revegetation is no less effective than the 
requirements of the Federal regulations at 30 CFR 816.116(a) and 
817.116(a). Therefore, we are approving the addition of a reference to 
62 IAC 1816.116(a)(6) at 62 IAC 1816.116(a)(3)(C) and (E) and 
817.116(a)(3)(C) and (E).
    b. Illinois also proposed to add the following requirement at the 
end of subsections (a)(3)(C) and (a)(3)(E): ``Once chosen by the 
permittee, the productivity alternative in 62 IAC 1816.116(a)(6) may 
not be modified without approval from the Department.''
    In accordance with the Federal regulation at 30 CFR 774.13(c), no 
permit revision can be approved unless the application demonstrates and 
the regulatory authority finds that reclamation as required by the Act 
and regulatory program can be accomplished. Because, Illinois requires 
that the productivity alternative under 62 IAC 1816.116(a)(6), once 
chosen by the permittee, may not be modified without approval of the 
Department, we find that the proposed requirement is no less effective 
than the requirement of the Federal regulation at 30 CFR 774.13(c), and 
we are approving it.
3. 62 IAC 1816.116(a)(4) and 62 IAC 1817.116(a)(4)
    At 62 IAC 1816.116(a)(4) and 1817.116(a)(4), Illinois proposed to 
reference the new alternative method at 62 IAC 1816.116(a)(6) for 
determining success of revegetation. At 62 IAC 1816.116(a)(4), Illinois 
also proposed to update requirements pertaining to adjustment for 
abnormal, catastrophic, growing conditions when the ALPF or the new 
alternative method is used for determining success of revegetation and 
to remove a reference to oat crops from several provisions.
    a. At 62 IAC 1816.116(a)(4) and 1817.116(a)(4), Illinois proposed 
to reference the new alternative method at 62 IAC 1816.116(a)(6). As 
revised, subsections (a)(4) provide that in order to use the ALPF, 62 
IAC 1816.Appendix A, or the alternative method at 62 IAC 1816.116(a)(6) 
to determine success of revegetation, the requirements of 62 IAC 
1816.116(a)(4) apply.
    At 62 IAC 1816.116(a)(4)(A), the permittee is required to submit 
annually a scale drawing or aerial photograph delineating field 
boundaries, a field numbering scheme, the total acreage for each field, 
and the crop that will be grown on each field to demonstrate proof of 
productivity for the coming crop year. Once approved by the Department, 
the information required by 62 IAC 1816.116(a)(4)(A) cannot be changed 
without restarting the responsibility period, unless the submittal is 
amended in accordance with Illinois' permit revision regulation at 62 
IAC 1774.13(b)(2). Illinois' regulation at 62 IAC 1816.116(a)(4)(B) 
requires the permittee to use the sampling methods of the ALPF for 
measuring success of revegetation. At 62 IAC 1816.116(a)(4)(C), the 
permittee may make adjustments to crop yields due to abnormal growing 
conditions by meeting specified requirements. Illinois' regulation at 
62 IAC 1816.116(a)(4)(D) specifies the kind of crops that must be grown 
to determine success of revegetation.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a) 
require that standards for success of revegetation and statistically 
valid sampling criteria for measuring success must be selected by the 
regulatory authority and included in an approved regulatory program. 
The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
require that standards for success of revegetation must include 
criteria representative of unmined lands in the area being reclaimed to 
evaluate the appropriate vegetation parameters of ground cover, 
production, or stocking. We find that Illinois' proposed alternative 
method at 62 IAC 1816.116(a)(6) for calculating the standard for 
determining success of revegetation is no less effective than the 
requirements of the Federal regulations at 30 CFR 816.116(a) and 
817.116(a). Therefore, we are approving the addition of a reference to 
new 62 IAC 1816.116(a)(6) at 62 IAC 1816.116(a)(4) and 1817.116(a)(4). 
Also, the Federal regulations at 30 CFR 780.18(b)(5)(vi) and 
784.13(b)(5)(vi) require the reclamation plan to contain a plan for 
revegetation as required in 30 CFR 816.111 through 816.116 and 817.111 
through 817.116 including, but not limited to, measures proposed to be 
used to determine the success of revegetation as required by 30 CFR 
816.116 and 817.116. We find that Illinois' requirement that the 
permittee must meet the requirements of 62 IAC 1816.116(a)(4)(A) 
through (D) in order to use the ALPF or the alternative method in 62 
IAC 1816.116(a)(6) to determine success of revegetation, is no less 
effective than the requirements of 30 CFR 780.18(b)(5) and 
784.13(b)(5).
    b. Illinois proposed to revise the requirements of 62 IAC 
1816.116(a)(4)(C) concerning adjustments for abnormal growing 
conditions to read as follows: ``Adjustments for abnormal growing 
conditions shall be accepted by the Department if such adjustments are 
certified by a qualified professional (American Society of Agronomy 
certified) or National Association of State Departments of Agriculture 
crop enumerators used under this Section, whose ability to perform such 
adjustments has been previously approved by the Department.'' Currently 
approved 62 IAC 1816.116(a)(4)(C) requires adjustments for abnormal 
growing conditions to be certified by a crop adjuster certified to 
perform adjustments by the Federal Crop Insurance Corporation (FCIC). 
Because FCIC crop adjusters in Illinois are no longer available to 
certify adjustments for abnormal growing conditions, Illinois proposed 
to allow such adjustments to be certified by a qualified professional 
(American Society of Agronomy certified) or National Association of 
State Departments of Agriculture crop enumerators. Illinois provided a 
letter dated December 17, 2004, from the NRCS State Conservationist, 
which stated that the NRCS concurred with the proposed change 
(Administrative Record No. IL-5088).
    Based on the discussion above, we find that the proposed change to 
this previously approved provision will not alter our original approval 
of Illinois' regulation at 62 IAC 1816.116(a)(4)(C) to allow 
adjustments for abnormal growing conditions, and we are approving the 
change.
    c. Illinois proposed to make the following changes to 62 IAC 
1816.116(a)(4)(D):
    (1) Illinois proposed to remove a reference to ``oats'' as a type 
of crop commonly grown on surrounding unmined cropland and as a crop 
that may be used for one year to demonstrate productivity on prime 
farmland and

[[Page 71397]]

other cropland areas. Oats is being removed because it is not grown 
enough in Illinois to have agricultural statistics upon which to 
establish a standard of yield. With the removal of oats, the types of 
crops commonly grown on surrounding unmined cropland in Illinois 
include corn, soybeans, hay, sorghum, and wheat. The Federal regulation 
at 30 CFR 823.15(a)(6) requires that the reference crop on which 
restoration of soil productivity is proven shall be selected from the 
crops most commonly produced on the surrounding prime farmland. The 
Federal regulation at 30 CFR 816.116(a)(2) requires standards for 
success to include criteria representative of unmined lands in the area 
being reclaimed to evaluate the appropriate vegetation parameters of 
ground cover, production, or stocking. We find that the deletion of 
oats as a reference crop meets the requirements of 30 CFR 823.15(a)(6) 
and 816.116.(a)(2), and we are approving it.
    (2) Illinois proposed to add the following requirement concerning 
deep tillage of prime farmland and other cropland areas:

    If deep tillage has been completed to a minimum depth of 36 
inches prior to bond release, the applicant may use more than one 
successful year of hay or wheat as a crop to be used for the 
productivity demonstration. The requirement for one successful year 
of corn remains unchanged under this provision.

    Currently, if the Department approves a hay crop use, subsection 
(a)(4)(D) requires operators to grow a minimum of one successful year 
of corn and allows operators to grow one year of hay and one year of 
wheat to demonstrate revegetation success on prime farmland and other 
cropland areas. Illinois' proposed change would allow operators to grow 
two years of hay or two years of wheat if deep tillage has been 
completed to a minimum depth of 36 inches, while retaining the 
requirement for one successful year of corn. The Federal regulation at 
30 CFR 816.116(a)(1) requires that standards for success of 
revegetation and statistically valid sampling criteria for measuring 
success must be selected by the regulatory authority and included in an 
approved regulatory program. We find that Illinois' proposal is no less 
effective than the requirements of the Federal regulation at 30 CFR 
816.116(a)(1), and we are approving this change.
4. 62 IAC 1816.116(a)(6)
    Illinois proposed a new productivity alternative at new subsection 
(a)(6). It reads as follows:

    (6) In order to use the alternative to the Agricultural Lands 
Productivity Formula, Appendix A, to determine success of 
revegetation, the following shall apply: use of this alternative is 
contingent that the permittee can demonstrate for the entire field 
that the soil strength of the entire soil profile will average <= 
200 psi or has been deep tilled to a minimum depth of 36 inches 
prior to bond release, and soil fertility will average Optimum 
Management for pH, P and K values as defined under the current 
Illinois Agronomy Handbook, and intensive land leveling is 
implemented, as needed, for the entire field. Areas to be tested are 
allowed under the provisions of subsections (a)(3)(C) or (E ).
    (A) The following substitution of Column F--Appendix A--County 
Average Yield File shall read:
    Column F is a derived optimum management production (Figure) 
obtained by multiplying the figures in Column D times the figures in 
Column E. This production figure will normally exceed actual 
production because the optimum level management yield is used. The 
purpose of using the optimum management production is to derive a 
weighted average optimum management yield which is the total optimum 
management production (Column F) divided by the total grain acres in 
the county (Column D). The weighted optimum management yield figure 
will be used to derive a ``factor'' as described below:

Factor = Average of Official County Crop Yield for the Five Previous 
Years / Average of Weighted Optimum Management Yield for the Five 
Years

    (B) When the above ``factor'' and hand sampling is used, the 
harvest loss will be calculated by averaging the harvest loss of the 
five previous years for the crop being tested.

    The Federal regulation at 30 CFR 816.116(a)(1) requires that 
standards for success and statistically valid sampling criteria for 
measuring success be selected by the regulatory authority and included 
in an approved regulatory program. The Federal regulation at 30 CFR 
816.116(a)(2) requires that standards for success include criteria 
representative of unmined lands in the area being reclaimed to evaluate 
the appropriate vegetation parameters of ground cover, production, or 
stocking. The previously approved regulation at 62 IAC 1816.116(a)(4) 
that references the Agricultural Lands Productivity Formula at Appendix 
A includes both the standards and sampling techniques to be used to 
evaluate revegetation success for cropland. The proposed regulation to 
allow the use of 62 IAC 1816.116(a)(6) would allow the operator the 
option of an alternative method for determining the cropland standard 
when the field has been determined to have a maximum soil strength and 
a minimum fertility. The current approved program calculates the 
standard on the current level of yield for a soil type within the 
county. The alternative method would allow the use of a standard based 
on an average of the last five years of yield for a specific crop for a 
specific soil type in the county. We find that the optional method at 
62 IAC 1816.116(a)(6) reduces the annual variability of the 
productivity standard while maintaining the representative character of 
the standard. Therefore, the revised regulation is no less effective 
than the Federal regulation at 30 CFR 816.116(a), and we are approving 
it.
5. 62 IAC 1816.Appendix A--ALPF
    Illinois proposed to update information in the soil master file, 
county cropped acreage file, county average yield file, the 
agricultural lands productivity formula sampling method, and Exhibit A 
in the ALPF. Illinois also proposed to delete Tables A through F from 
the ALPF.
    a. Illinois proposed to remove its reference to ``oats'' as a grain 
crop used for evaluation of success of revegetation from the Soil 
Master File; the County Average Yield File; the Agricultural Lands 
Productivity Formula Sampling Method; and Exhibit A, County Crop Yields 
by Soil Mapping Unit. Illinois also proposed to remove the sections 
``Oats Sampling Technique (Rows >8'')'' and ``Oats Sampling Technique 
(Discernible Rows)'' from the Agricultural Lands Productivity Formula 
Sampling Method.
    For the reasons discussed in finding III.B.3.c.(1), we find that 
the proposed revisions to remove a reference to a grain crop that is no 
longer commonly grown in Illinois is no less effective than the Federal 
regulations at 30 CFR 823.15(a)(6) and 816.116(a)(2), and we are 
approving them. We also find that the proposed revision to remove the 
sampling techniques for a crop that is no longer commonly grown in 
Illinois is no less effective than the Federal regulations, and we are 
approving it.
    b. Soil Master File. Illinois proposed to revise the introductory 
paragraph by changing the word ``high'' to the word ``optimum'' in its 
reference to the ``high level of management yields'' and to add a 
reference to Bulletin 811, ``Optimum Crop Productivity Ratings for 
Illinois Soil,'' University of Illinois, College of Agricultural, 
Consumer and Environmental Sciences, Office of Research, August 2000. 
Bulletin 811 is the reference document for information contained in the 
soil master file. Illinois also proposed to remove the information 
regarding additional components of the soil master file.
    The level of management applied for the productivity standard needs 
to be

[[Page 71398]]

representative of the unmined lands in the area. Bulletin 811 applies a 
recognized standard of crop productivity as determined by the 
University of Illinois, College of Agriculture. Because of the change 
to new Bulletin 811, the deleted additional components of the soil 
master file are no longer necessary. The Federal regulation at 30 CFR 
816.116(a)(2) requires that the standards for success must include 
criteria representative of unmined lands in the area being reclaimed to 
evaluate the appropriate vegetation parameters of ground cover, 
production, or stocking. We find that Illinois' proposal to eliminate 
outdated information and to use a contemporary University agricultural 
publication to support its standard is consistent with the Federal 
regulation at 30 CFR 816.116(a)(2), and we are approving it.
    c. County Average Yield File. Illinois proposed to change the word 
``high'' to the word ``optimum'' in the phrase ``high management 
yield.'' Illinois also proposed to add the following new provision:

    If official county crop yields are unavailable for a specific 
crop in a given year, the Department, in consultation with the 
permittee, and with the concurrence of the Illinois Department of 
Agriculture, will substitute a county crop yield from an adjacent 
county with similar soils, if it can be determined that similar 
weather conditions occurred in that year.

    For the reasons discussed above in finding III.B.5.b, we find that 
Illinois' proposal to change the word ``high'' to ``optimum'' is 
consistent with the Federal regulations at 30 CFR 823.15(a)(6) and 
816.116(a)(2), and we are approving the word change. Illinois provided 
a letter dated December 17, 2004, from the NRCS State Conservationist 
that concurs with the new provision proposed by Illinois regarding the 
substitution of a county crop yield from an adjacent county if official 
county crop yields are unavailable for a specific crop in a given year 
under specified conditions (Administrative Record No. IL-5088). 
Illinois has determined that hay and wheat are grown so little in some 
counties that data from adjacent counties must be used as the standard.
    For prime farmland, the Federal regulation at 30 CFR 
823.15(b)(7)(i) requires that reference crop yields for a given crop 
season are to be determined from the current yield records of 
representative local farms in the surrounding area, with the 
concurrence by the NRCS. For other cropland, the Federal regulation at 
30 CFR 816.116(a)(2) requires that the 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. We find that Illinois has provided the 
necessary concurrence of the NRCS for prime farmland and the proposed 
revision is no less effective than the Federal regulation at 30 CFR 
823.15(b)(7)(i). We also find that because the soils and weather 
conditions must be similar in the adjacent county and the concurrence 
of the Illinois Department of Agriculture is required, the proposed 
revision for other cropland is no less effective than the Federal 
regulations at 30 CFR 816.116(a)(2). Therefore, we are approving the 
new provision.
    d. Agricultural Lands Productivity Formula Sampling Method.
    Corn Sampling Technique. Illinois proposed to delete the current 
row factor information under step 10 of its corn sampling technique and 
replace it with ``average row width in feet x 15 feet of row / 43560 
square feet/acre and .845 = the standard moisture content conversion 
factor of corn per bushel (1.0-(15.5%/100).'' The existing table 
provides a row factor for four row spacing widths of 30, 36, 38, and 40 
inches. The table is being replaced by a formula for calculating a row 
factor for any row width. The Federal regulation at 30 CFR 
816.116(a)(1) requires that standards for success and statistically 
valid sampling criteria for measuring success shall be selected by the 
regulatory authority and included in an approved regulatory program. We 
find that Illinois' revision meets the requirements of the Federal 
regulation, and we are approving it.
    e. Exhibit A County Crop Yields by Soil Mapping Unit. Illinois 
proposed to change the word ``high'' to the word ``optimum'' in columns 
E and F.
    The Federal regulation at 30 CFR 816.116(a)(2) requires that the 
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. The 
Illinois proposal is the result of replacing the obsolete soil master 
file with Bulletin 811 that references optimum rather than high levels 
of production for the State of Illinois. Bulletin 811 applies a 
recognized standard of crop productivity as determined by the 
University of Illinois, College of Agriculture and is consistent with 
the Federal regulations. We find that the proposal to eliminate 
outdated information and use a contemporary University agricultural 
publication to support its standard is consistent with the Federal 
regulations, and we are approving it.
    f. Illinois proposed to delete Tables A through F from the ALPF. 
The information in Tables A, B, and D is redundant of other information 
found in the ALPF and the information in Tables C, E, and F are no 
longer needed.
    The Federal regulation at 30 CFR 816.116(a)(1) requires that 
standards for success and statistically valid sampling criteria for 
measuring success shall be selected by the regulatory authority and 
included in an approved regulatory program. Because these tables are 
redundant or no longer needed, we find that the proposed deletions are 
not inconsistent with the Federal regulations.

C. 62 IAC 1817.121 Subsidence Control

    At subsection (c) entitled ``Repair of damage,'' Illinois proposed 
to remove the last sentence from paragraph (2) and to make it the new 
introductory paragraph to subsection (c). Illinois also proposed to add 
a new exception clause to the end of the relocated sentence. The new 
introductory paragraph reads as follows:

    The requirements of this subsection apply only to subsidence-
related damage caused by underground coal extraction conducted after 
February 1, 1983, except as noted in Section 1817.41(j).

    Illinois removed the last sentence from paragraph (2) and made it 
the introductory paragraph to subsection (c) in order to clarify that 
all parts of subsection (c) are subject to the February 1, 1983, date. 
Illinois added the exception clause because the replacement of water 
supplies was effective January 19, 1996, the date that 62 IAC 
1817.41(j) was promulgated, rather than the February 1, 1983, date. We 
find that Illinois' proposed revisions are appropriate and will not 
make the Illinois regulation at 62 IAC 1817.121(c) less effective than 
the counterpart Federal regulation at 30 CFR 817.121(c), and we are 
approving the revisions.

D. 62 IAC 1823.15 Prime Farmland: Revegetation

    1. At subsections (b)(2) and (b)(3), Illinois proposed to add a 
reference to new 62 IAC 1816.116(a)(6). As revised, subsection (b)(2) 
requires that success of revegetation be measured in accordance with 62 
IAC 1816.116(a)(4) or (a)(6). As revised, subsection (b)(3) now 
requires that revegetation be considered a success when crop production 
is equivalent to or exceeds the production standards of 62 IAC 
1816.116(a)(4) or (a)(6) with 90 percent statistical confidence. 
Currently approved 62 IAC

[[Page 71399]]

1816.116(a)(4) references the ALPF, which includes the yield standards 
and sampling techniques to be used to evaluate success of revegetation 
for cropland, including prime farmland, and pasture and/or hayland or 
grazing land. As revised, 62 IAC 1816.116(a)(4) will also reference the 
alternative method at 62 IAC 1816.116(a)(6). Proposed new 62 IAC 
1816.116(a)(6) is an alternative to using the ALPF and includes an 
optional method for determining the standard to be used to evaluate 
success of revegetation for cropland and pasture and/or hayland or 
grazing land. The currently approved method in the ALPF for calculating 
the standard for determining success of revegetation is based on the 
current level of yield for a soil type within the county. The 
alternative method at proposed 62 IAC 1816.116(a)(6) for calculating 
the standard for determining success of revegetation is based on an 
average of the last five years of yield for a specific crop for a 
specific soil type in the county.
    The Federal regulation at 30 CFR 823.15(b)(2) requires that soil 
productivity be measured on a representative sample or on all of the 
mined and reclaimed prime farmland area using the reference crop 
determined under 30 CFR 823.15(b)(6). A statistically valid sampling 
technique at a 90 percent or greater statistical confidence that has 
been approved by the regulatory authority in consultation with the NRCS 
must be used. The Federal regulation at 30 CFR 823.15(b)(6) requires 
that the reference crop that will be used to prove soil productivity 
must be selected from the crops most commonly produced on the 
surrounding prime farmland. Illinois provided documentation of the NRCS 
consultation process. In a letter dated December 17, 2004, the NRCS 
stated that it concurs with the proposed rule changes and the revised 
reference crop yield determinations and procedures will make for a 
better rule (Administrative Record No. IL-5088). Therefore, we find 
that Illinois' revised regulations at 62 IAC 1823.15(b)(2) and (b)(3) 
are no less effective than the Federal regulations at 30 CFR 
823.15(b)(2) and (b)(3), and we are approving them.
    2. Illinois also proposed to add the following requirement at the 
end of subsection (b)(3): ``Once chosen by the permittee, the 
productivity alternative in 62 IAC 1816.116(a)(6) may not be modified 
without approval from the Department.''
    In accordance with the Federal regulation at 30 CFR 774.13(c), no 
permit revision can be approved unless the application demonstrates and 
the regulatory authority finds that reclamation as required by the Act 
and regulatory program can be accomplished. Because, Illinois requires 
that the productivity alternative under 62 IAC 1816.116(a)(6), once 
chosen by the permittee, may not be modified without approval of the 
Department, we find that the proposed requirement is no less effective 
than the requirement of the Federal regulation at 30 CFR 774.13(c), and 
we are approving it.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    On February 8, 2005, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA, we requested comments on the amendment from various 
Federal agencies with an actual or potential interest in the Illinois 
program (Administrative Record No. IL-5090). We received comments from 
the NRCS. The NRCS responded on February 28, 2005 (Administrative 
Record No. IL-5091), that it recommended that Illinois' reference to 
the ``1999-2000 Illinois Agronomy Handbook'' be changed to ``current 
Illinois Agronomy Handbook'' and questioned whether the reference to 
``the Food, Agriculture, Conservation, and Trade Act of 1990'' needs to 
be updated to the ``Farm Security and Rural Investment Act of 2002.''
    These references that the NRCS wanted to change are found in 
Illinois' regulations at 62 IAC 1816.116(a)(2)(C) and 
1817.116(a)(2)(C). As discussed in findings III.B.1, Illinois revised 
these regulations in accordance with the NRCS comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for 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 Illinois proposed to 
make in this amendment pertain to those air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment.
    On February 8, 2005, under 30 CFR 732.17(h)(11)(i), we requested 
comments on the amendment from EPA (Administrative Record No. IL-5090). 
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 February 8, 2005, we requested comments on Illinois' 
amendment (Administrative Record No. IL-5090), but neither responded to 
our request.

V. OSM's Decision

    Based on the above findings, we approve the amendment Illinois sent 
us on February 1, 2005, and as revised on August 3, 2005.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 913, which codify decisions concerning the Illinois 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
each 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

[[Page 71400]]

and whether the other requirements of 30 CFR parts 730, 731, and 732 
have been met.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires that State programs contain rules and regulations ``consistent 
with'' regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
This determination is based on the fact that the Illinois program does 
not regulate coal exploration and surface coal mining and reclamation 
operations on Indian lands. Therefore, the Illinois program has no 
effect on Federally-recognized Indian tribes.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 certifies 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 
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. 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.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the State 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulations did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 913

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 21, 2005.
Charles E. Sandberg,
Regional Director, Mid-Continent Region.

0
For the reasons set out in the preamble, 30 CFR part 913 is amended as 
set forth below:

PART 913--ILLINOIS

0
1. The authority citation for part 913 continues to read as follows:

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


0
2. Section 913.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  913.15  Approval of Illinois regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
February 1, 2005..............  November 29, 2005  62 IAC
                                                    1816.116(a)(2)(C),
                                                    (a)(3)(C) and
                                                    (a)(3)(E), (a)(4),
                                                    (a)(4)(C) and (D),
                                                    (a)(6); 1816.
                                                    Appendix A; 1817.42;
                                                    1817.43(a)(2)(D),
                                                    (b)(3), (c)(3);
                                                    1817.116(a)(2)(C),
                                                    (a)(3)(C) and
                                                    (a)(3)(E), (a)(4),
                                                    (b)(2); 1817.121(c),
                                                    (c)(2);
                                                    1823.15(b)(2) and
                                                    (b)(3).
------------------------------------------------------------------------


[[Page 71401]]

[FR Doc. 05-23401 Filed 11-28-05; 8:45 am]
BILLING CODE 4310-05-P


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