[Federal Register Volume 63, Number 6 (Friday, January 9, 1998)]
[Proposed Rules]
[Pages 1396-1399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-530]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-031-FOR]


Arkansas Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Arkansas regulatory program (hereinafter the ``Arkansas program'') 
under the Surface Mining Control and Reclamation Act of 1977 (SMCRA). 
The proposed amendment consists of revisions to and additions of 
regulations pertaining to revegetation success standards and selective 
husbandry practices that would not extend the period of responsibility 
for revegetative success and bond liability. The amendment is intended 
to revise the Arkansas program to be consistent with the corresponding 
Federal regulations and improve operational efficiency.
    This document sets forth the times and locations that the Arkansas 
program and proposed amendment to that program are available for public 
inspection, the comment period during which interested persons may 
submit written comments on the proposed amendment, and the procedures 
that will be followed regarding the public hearing, if one is 
requested.

DATES: Written comments must be received by 4:00 p.m., c.s.t. on 
February 9, 1998. If requested, a public hearing on the proposed 
amendment will be held on February 3, 1998. Requests to speak at the 
hearing must be received by 4:00 p.m., c.s.t. on January 26, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should 
be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    Copies of the Arkansas program, the proposed amendment, a listing 
of any scheduled public hearings, and all written comments received in 
response to this document will be available for public review at the 
addresses listed below during normal business hours, Monday through 
Friday, excluding holidays. Each requester may receive one free copy of 
the proposed amendment by contacting OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining Reclamation and Enforcement, 5100 East Skelly Drive, Suite 470, 
Tulsa, Oklahoma 74135-6547, Telephone: (918) 581-6430.
    Arkansas Department of Pollution Control and Ecology, Surface 
Mining and Reclamation Division, 8001 National Drive, Little Rock, 
Arkansas 72219-8913. Telephone (501) 682-0744.

FOR FURTHER INFORMATION CONTACT:
Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-
6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program

    On November 21, 1980, the Secretary of the Interior conditionally 
approved the Arkansas program. Background information on the Arkansas 
program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval can be found in

[[Page 1397]]

the November 21, 1980, Federal Register (45 FR 77003). Arkansas amended 
its program by submitting provisions that satisfied all of the 
conditions of the Secretary's approval of November 21, 1980. Effective 
January 22, 1982, OSM removed the conditions of the approval of the 
Arkansas permanent regulatory program. Information on the removal of 
the conditions can be found in January 22, 1982, Federal Register (47 
FR 3108). Subsequent actions concerning the conditions of approval and 
program amendments can be found at 30 CFR 904.12, 904.15, and 904.16.

II. Description of the Proposed Amendment

    By letter dated November 24, 1997 (Administrative Record No. AR-
560), Arkansas submitted a proposed amendment to its program pursuant 
to SMCRA. Arkansas submitted the proposed amendment at its own 
initiative. Arkansas proposes to amend the Arkansas Surface Coal Mining 
and Reclamation Code to include revegetation success standards at 
section 816.116. Arkansas also submitted copies of the parts of the 
United States Department of Agriculture, Natural Resources Conservation 
Service (NCRS) Arkansas Field Office Technical Guide to which the 
proposed amendment refers. The full text of the proposed program 
amendment and the parts of the Technical Guide submitted by Arkansas 
are available for public inspection at the locations listed above under 
ADDRESSES. A brief discussion of the proposed amendment is presented 
below.

1. ASCMRC Subsection 816.116(a) General Revegetation Success Standards

    Arkansas proposes to delete existing paragraph (1) and redesignate 
existing paragraph (2) as (1). Arkansas also proposes to revise the 
second sentence of redesignated paragraph (1) to read, ``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 
standards in paragraphs (b)(1), and (2) of this section.''

2. ASCMRC Subsection 816.116(b)(1) Revegetation Success Standards for 
Areas Developed for Use as Grazing and Pasture Land

    Arkansas proposes to delete the existing language at subsection 
816.116(b)(1) and replace it with the following language:

    (1) Areas developed for use as a grazing land or pasture land 
shall be maintained using proper management practice as set forth in 
the United States Department of Agriculture, Natural Resources 
Conservation Service (NRCS) Arkansas Field Office Technical Guide 
Section IV, Codes 342, 510, and 512) and this subsection until the 
end of the responsibility period. Production for proof of 
productivity purposes shall be initiated within five years after 
completion of backfilling and final grading; and (i) The ground 
cover and production of living plants on the revegetated area shall 
be at least equal to that of a reference area, except for erosion 
control devices and other structure (i.e., levees, ditches, 
waterways, impounding structures, etc.). The productivity and ground 
cover figures shall have a 90-percent statistical confidence (i.e., 
one-sided test with a 0.10 alpha error) derived from any two years 
of the five year responsibility period prior to release of the 
performance bond, except for the first year; or (ii) When no 
reference area is employed, productivity success [tons of grass, 
animal unit months (A.U.M.), and/or legumes per acre, etc.], except 
for erosion control devices and other structures (i.e., levees, 
ditches, waterways, impounding structures, etc.), shall be 
considered successful if it is 90 percent of the predicted yields 
under improved management established by the NRCS's respective 
county District Conservationist, County Soil Manual, and/or Soil 
Survey Database for the vegetation type(s) planted on the soil 
series present before the area was disturbed. Ground cover shall be 
considered successful if it is 90 percent. The productivity and 
ground cover figures shall have a 90-percent statistical confidence 
(i.e., one-sided test with a 0.10 alpha error) derived from any two 
years of the five responsibility period prior to release of the 
performance bond, except for the first.

3. ASCMRC Subsection 816.116(b)(2) Proof of Productivity Standards for 
Area Developed for Use as Cropland

    Arkansas proposes to delete the existing language at subsection 
816.116(b)(2) and replace it with the following language:

    (2) For those areas developed for use as cropland, production 
for proof of productivity purposes shall be initiated within ten 
years after completion of backfilling and final grading, and (i) 
Production on the revegetated areas shall be at least equal to that 
of a reference area, except for erosion control devices and other 
structures (i.e., levees, ditches, waterways, impounding structures, 
etc.) With a 90-percent statistical confidence (i.e., one-sided test 
with a 0.10 alpha error) for a minimum of any two crop years of ten 
year responsibility period prior to release of the performance bond, 
except the first year of the five year responsibility period; or 
(ii) When no reference area is employed, 90 percent of that crop 
production established in NRCS's respective county District 
Conservationist, County Soil Survey Manual, and/or the Soil Survey 
Database for the soil series present prior to disturbance with a 90-
percent statistical confidence (i.e., one-sided test with a 0.10 
alpha error) for a minimum of any two crop years of a ten year 
responsibility period prior to release of the performance bond, 
except the first year of the five year responsibility period. (iii) 
During the extended five year responsibility period, erosion from 
cropland must be minimized using equivalent or better management 
practices than surrounding unmined cropland. The five responsibility 
period shall begin after the last year of augmented seeding, 
fertilizing, or soil treatment and at the time of the planting of 
the crop(s) to be grown for the productivity showing or crops grown 
in rotation.

4. ASCMRC Subsection 816.116(b)(3) Revegetation Success Standards for 
Areas to be Developed for Fish and Wildlife Habitat

    At existing subsection 816.116(b)(3), Arkansas proposed to delete 
the language, ``success of vegetation shall be determined on the basis 
of tree and shrub stocking and vegetative ground cover. Such parameters 
are described as follows:''
    Arkansas proposes to redesignate existing paragraphs 
816.116(b)(3)(i), (ii), and (iii), as 816.116(b)(3)(i)(A), (B), and 
(C), respectively, and to add the following language at proposed new 
paragraph 816.116(b)(3), ``Success of vegetation shall be determined on 
the basis of tree and shrub stocking and vegetative ground cover using 
proper management practices set forth in the NRCS's Arkansas Field 
Office Technical Guide (Section IV, Codes 612, and 645) and such 
parameters described as follows:''

5. ASCMRC Subsection 816.116(b)(4) Revegetation Success Standards for 
Areas to be Developed for Industrial, Commercial, or Residential Use

    Arkansas proposes to revise subsection 816.116(b)(4) by adding the 
phase, ``and shall not be less than 70 percent.''

6. ASCMRC Subsection 816,116(b)(5) Revegetation Success for Areas 
Previously Disturbed by Mining

    Arkansas proposes to revise subsection 816.116(b)(5) to require 
that vegetative ground cover shall not be less than the greater 70 
percent or the percentage of the ground cover existing before 
redisturbance, and shall be adequate to control erosion during the last 
year of responsibility.

7. ASCMRC Subsection 816.116(b)(6) Revegetation Success for Non-
contiguous Areas

    Arkansas proposes to add a new subsection at 816.116(b)(6) as 
follows:

    Non-contiguous areas less than or equal to four acres which we 
disturbed from activities such as, but no limited to, signs, 
boreholes, power poles, stockpiles and substations shall

[[Page 1398]]

be considered successfully revegetated if the operator can 
demonstrate the soil disturbance was minor, i.e., the majority of 
the subsoil remains in place, the soil has been returned to its 
original capability and the area is supporting its approved 
postmining use at the end of the responsibility period.

8. ASCMRC Subsection 816.116(c) Vegetative Ground Cover Measurement 
Technique

    Arkansas proposes to redesignate existing (c) as (d), and replace 
it with new subsection (c) as follows:

    (c) Vegetative ground cover shall be measured by the following 
technique: (1) Ten (10) random points shall be identified in the 
area to be tested. (2) A twenty (20) foot engineer's tape shall be 
extended directly south of each point. If the tape extends beyond 
the boundary of the area to be tested or extends into an area where 
herbaceous ground cover has been controlled with herbicides to 
minimize competition with woody plants, the tape shall be rotated in 
ninety (90) degree increments until the entire twenty (20) foot 
length is within the boundary of the area to be tested or area not 
treated with herbicides. (3) A measurement shall be taken at each 
two: tenths (0.2) foot increment directly above or below the tape. A 
Ground cover shall be determined to be present if any vegetation 
identified in the NRCS's Arkansas Field Office Technical Guide 
(Section IV, Codes 342, 510, and 512) and the approved reclamation 
plan, including ten percent (10%) site-produced litter and/or other 
desirable annual species described in (Section IV, Code 342, Table 
2) is measured at the increment. (5) A percentage of ground cover 
shall be established for the area tested by taking the total number 
of measurements where ground cover was determined to be present.

9. ASCMRC Subsection 816.116(d) Period of Extended Responsibility for 
Revegetation Success

    Arkansas proposes to revise redesignated subsection 816.116(d) by 
deleting (d)(3) and by making non-substantive language changes and 
paragraph notation changes to reflect the revisions made by this 
amendment.

10. ASCMRC Subsection 816.116(e) Selective Husbandry Practices

    Arkansas proposes to add new subsection (e) as follows:

    (e) Selective husbandry practices which will not extend the 
period of responsibility for revegetative success and bond 
liability, if such practices can be expected to continue as part of 
the postmining land use or if discontinuance of the practices after 
the liability period expires sill not reduce the probability of 
permanent revegetative success, include: (1) Augmented seeding, 
fertilization, liming, mulching, mowing, or irrigation; (2) 
Temporary erosion control structures such as silt fencing, straw, or 
hay bale dikes; (3) Practices such as disease, pest, and vermin 
control; and any pruning, reseeding and/or transplanting 
specifically necessitated by such action; (4) Land smoothing and 
reseeding, provided the cumulative acreage is no greater than ten 
percent (10%) of the disturbed area of the permit; (5) Rip-rap 
repair and maintenance; (6) Terrace repair and maintenance; (7) Rill 
and gully repair on noncropland-capable or cropland-capable 
reclaimed land will be considered a husbandry practice if an 
operator has an approved erosion control plan in place in the field, 
and shortly after the first rainfall event after the repair, the 
Department makes the following determination: (i) The area is a 
minor erosional feature; (ii) The area is small; (iii) The erosion 
is not expected to recur; and (iv) The area is stable. The 
Department shall notify the permittee in writing whether on not a 
repair is an augmentation. Such written notice shall be in the form 
of an inspection report or other document issued by the Department.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable program approval criteria of 30 CFR 732.15. If the amendment 
is deemed adequate, it will become part of the Arkansas program.

Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under DATES or at locations other than the Tulsa Field Office will not 
necessarily be considered in the final rulemaking or included in the 
Administrative Record.

Public Hearing

    Persons wishing to speak at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
c.s.t. on January 26, 1998. The location and time of the hearing will 
be arranged with those persons requesting the hearing. Any disabled 
individual who has need for a special accommodation to attend a public 
hearing should contact the individual listed under FOR FURTHER 
INFORMATION CONTACT. If no one requests an opportunity to speak at the 
public hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested. Submission of written statements in advance of the hearing 
will allow OSM officials to prepare adequate responses and appropriate 
questions. The public hearing will continue on the specified date until 
all persons scheduled to speak have been heard. Persons in the audience 
who have not been scheduled to speak, and who wish to do so, will be 
heard following those who have been scheduled. The hearing will end 
after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard.

Public Meeting

    If only one person requests an opportunity to speak at a hearing, a 
public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meetings will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the Administrative Record.

IV. 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 732.17(h)(10), decisions on proposed State 
regulatory programs and program amendments submitted by the States must 
be based solely on a determination of whether the submittal is 
consistent with SMCRA and its implementing Federal regulations and 
whether the other requirements of 30 CFR Parts 730, 731, and 732 have 
been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National

[[Page 1399]]

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 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Unfunded Mandates

    OSM has determined and certifies pursuant to 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 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 31, 1997
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 98-530 Filed 1-8-98; 8:45 am]
BILLING CODE 4310-05-M