[Federal Register Volume 63, Number 227 (Wednesday, November 25, 1998)]
[Rules and Regulations]
[Pages 65062-65068]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-31490]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 904

[SPATS No. AR-032-FOR]


Arkansas Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: OSM is approving an amendment to the Arkansas regulatory 
program (Arkansas program) under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA). Arkansas proposed to revise the 
Arkansas Surface Coal Mining and Reclamation Code (ASCMRC) concerning 
revegetation success standards. Arkansas also proposed to add policy 
guidelines for determining Phase III revegetation success for pasture 
and previously mined areas, cropland, forest products, recreation and 
wildlife habitat, and industrial/commercial and residential areas. 
Arkansas intends to revise its program to be consistent with the 
corresponding Federal regulations.

EFFECTIVE DATE: November 25, 1998.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6548. 
Telephone: (918) 581-6430. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas 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 Arkansas Program

    On November 21, 1980, the Secretary of the Interior conditionally 
approved the Arkansas program. You can find background information on 
the Arkansas program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the November 
21, 1980, Federal Register (45 FR 77003). You can find information on 
later actions concerning the Arkansas program at 30 CFR 904.12, 904.15, 
and 904.16.

[[Page 65063]]

II. Submission of the Proposed Amendment

    By letter dated August 27, 1998 (Administrative Record No. AR-562), 
Arkansas sent us an amendment to its program under SMCRA. Arkansas 
proposed to amend its program in response to the November 26, 1985, and 
October 14, 1997, letters (Administrative Record Nos. AR-332 and AR-
559.02, respectively) that we sent to Arkansas under 30 CFR 732.17(c).
    We announced receipt of the amendment in the September 11, 1998, 
Federal Register (63 FR 48661). 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. The public comment period 
closed on October 13, 1998. Because no one requested a public hearing 
or meeting, we did not hold one.
    During our review of the amendment, we identified concerns relating 
to Arkansas' proposal to remove the definition of ``grazingland'' and 
associated references from its regulations. We discussed our concerns 
with Arkansas during a telephone conversation on October 6, 1998 
(Administrative Record No. AR-562.06).
    By letter dated October 8, 1998 (Administrative Record No. AR-
562.05), Arkansas withdrew its proposal to remove the definition of 
``grazingland'' from its regulations at ASCMRC 701.5. Arkansas also 
withdrew its proposals to remove references to the land use category of 
``grazingland'' from the definition of ``renewal resource lands'' at 
ASCMRC 701.5 and ASCMRC 816.116(b)(1). We find that Arkansas' 
withdrawal of these proposed revisions is an adequate response to our 
concerns. Therefore, we are proceeding with this final rule Federal 
Register document.

III. Director's Findings

    Following, under SMCRA and the Federal regulations at 30 CFR 732.15 
and 732.17, are our findings concerning the amendment.
    Any revisions that we do not discuss below concern nonsubstantive 
wording changes, or revised cross-references and paragraph notations to 
reflect organizational changes resulting from this amendment.

1. ASCMRC 701.5  Definition of ``Renewable Resource Lands''

    Arkansas corrected a typographical error by changing the words 
``these charge'' to the words ``the recharge.'' With the correction of 
this error, Arkansas' definition is the same as the Federal definition 
of ``Renewal resource lands'' at 30 CFR 701.5.

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

    Arkansas amended ASCMRC 816.116(b)(1) by replacing the general 
phrase ``such other success standards approved by the Department'' with 
a reference to its revegetation guidelines. ASCMRC 816.116(b)(1) now 
requires ground cover and production of living plants on areas 
developed for use as grazing and pasture land to be at least equal to 
that of a reference area or to comply with the criteria contained in 
Arkansas' ``Phase III Revegetation Success Standards for Pasture and 
Previously Mined Areas.''
    The counterpart Federal regulations at 30 CFR 816.116(b)(1) and 
817.116(b)(1) require ground cover and production of living plants on 
revegetated grazing land and pasture land areas to be at least equal to 
that of a reference area or such other success standards approved by 
the regulatory authority. As discussed later in this document, 
Arkansas' revegetation success guidelines for pasture are consistent 
with the Federal regulations for revegetation of disturbed areas. 
Therefore, the revisions to ASCMRC 816.116(b)(1) are consistent with 
and no less effective than the counterpart Federal regulations at 30 
CFR 816.116(b)(1) and 817.116(b)(1).

3. ASCMRC 816.116(b)(2)  Revegetation Success Standards for Areas 
Developed for Use as Cropland

    Arkansas revised ASCMRC 816.116(b)(2) by replacing the reference to 
``such other success standards approved by the Department'' with a 
reference to its revegetation guidelines. ASCMRC 816.116(b)(2) now 
requires crop production on areas developed for use as cropland to be 
at least equal to that of a reference area or to comply with the 
criteria contained in Arkansas' ``Phase III Revegetation Success 
Standards for Cropland.''
    The Federal regulations at 30 CFR 816.116(b)(2) and 817.116(b)(2) 
require crop production on revegetated cropland areas to be at least 
equal to that of a reference area or such other success standards 
approved by the regulatory authority. As discussed later in this 
document, Arkansas' revegetation success guidelines for cropland are no 
less effective than the Federal regulations for revegetation of 
disturbed areas. Therefore, we find that the revisions to ASCMRC 
816.116(b)(2) are consistent with and no less effective than the 
counterpart Federal regulations at 30 CFR 816.116(b)(2) and 
817.116(b)(2).

4. ASCMRC 816.116(b)(3)(iv)  Revegetation Success Standards for Areas 
to be Developed for Fish and Wildlife Habitat, Recreation, Shelter 
Belts, or Forest Products

    Arkansas added a new paragraph (b)(3)(iv) that requires vegetation 
success for areas to be developed for fish and wildlife habitat, 
recreation, shelter belts, or forest products to comply with the 
criteria contained in its ``Phase III Revegetation Success Standards 
for Forest Products'' or its ``Phase III Revegetation Success Standards 
for Recreation and Wildlife Habitat.''
    There is no direct Federal counterpart to this provision at 30 CFR 
816.116(b)(3). However, the Federal regulations at 30 CFR 816.116(a)(1) 
and 817.116(a)(1) require a regulatory authority to include standards 
for success and statistically valid sampling techniques for measuring 
success in an approved program. As discussed later in this document, 
Arkansas' guidelines for revegetation success standards and sampling 
techniques for measuring success of forest products and of recreation 
and wildlife habitat are no less effective than the Federal regulations 
for revegetation of disturbed areas. Therefore, we are approving the 
addition of ASCMRC 816.116(b)(3)(iv), which references these 
guidelines.

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

    Arkansas revised ASCMRC 816.116(b)(4) by requiring that vegetative 
ground cover comply with the criteria contained in its revegetation 
guidelines. ASCMRC 816.116(b)(4) now requires vegetative ground cover 
for areas to be developed for industrial, commercial, or residential 
use less than two years after regrading is completed to not be less 
than that required to control erosion and to comply with the criteria 
contained in Arkansas' ``Phase III Revegetation Success Standards for 
Industrial, Commercial, and Residential Revegetation.''
    The counterpart Federal regulations at 30 CFR 816.116(b)(4) and 
817.116(b)(4) require vegetative ground cover for areas to be developed 
for industrial, commercial, or residential use less than two years 
after regrading is completed to not be less than that required to 
control erosion. As discussed later in this document, Arkansas' 
revegetation success guidelines for industrial, commercial, and 
residential areas are no

[[Page 65064]]

less effective than the Federal regulations for revegetation of 
disturbed areas. Therefore, we find that the revisions to ASCMRC 
816.116(b)(4) are no less effective than the Federal regulations at 30 
CFR 816.116(b)(4) and 817.116(b)(4).

6. ASCMRC 816.116(b)(5)  Revegetation Success for Areas Previously 
Disturbed by Mining

    Arkansas added a new provision at ASCMRC 816.116(b)(5) which 
requires vegetative ground cover for areas previously disturbed by 
mining that were not reclaimed to the requirements of Subchapter K and 
that are remined or otherwise redisturbed by surface coal mining 
operations to comply with the criteria contained in its Phase III 
Revegetation Success Standards for Pasture and Previously Mined Areas. 
This provision is in addition to the existing requirement that the 
vegetative ground cover must be no less than the ground cover existing 
before redisturbance and must be adequate to control erosion.
    There are no direct Federal counterparts to this additional 
provision at 30 CFR 816.116(b)(5) and 817.116(b)(5), which also concern 
areas previously disturbed by mining. However, the Federal regulations 
at 30 CFR 816.116(a)(1) and 817.116(a)(1) require a regulatory 
authority to include standards for success and statistically valid 
sampling techniques for measuring success in an approved program. As 
discussed later in this document, Arkansas' guidelines for revegetation 
success standards and sampling techniques for measuring success of 
previously mined areas are no less effective than the Federal 
regulations for revegetation of disturbed areas. Therefore, we are 
approving the addition of Arkansas' new provision at ASCMRC 
816.116(b)(5).

7. Phase III Revegetation Success Standards for Pasture and Previously 
Mined Areas

    Arkansas added policy guidelines in a guidance document entitled 
``Phase III Revegetation Success Standards for Pasture and Previously 
Mined Areas.'' This guidance document describes the criteria and 
procedures for determining Phase III ground cover and production 
success for areas being restored to pasture under ASCMRC 816.116(b)(1) 
and for areas that were previously mined under ASCMRC 816.116(b)(5). It 
provides general revegetation requirements and success standards and 
measurement frequency for ground cover and forage production. It also 
includes sampling procedures and techniques, data submission and 
analysis criteria, and mitigation plan requirements.
    Arkansas requires revegetation success on pasture and previously 
mined land to 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 Arkansas for analysis. Any previously mined land 
that was remined or redisturbed 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 ASCMRC 816.111(b)(4), the vegetative cover must not 
be less than the ground cover existing before redisturbance and must be 
adequate to control erosion. The permittee must determine the ground 
cover standard and incorporate it into the permit prior to disturbance. 
Arkansas must determine that the general requirements for revegetation 
success are satisfied as stated in ASCMRC 816.111. The permittee must 
measure the vegetation 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. The permittee must determine the 
forage production standard with a reference area or a current United 
States Department of Agriculture, Natural Resources Conservation 
Service (USDA/NRCS) high management target yield. The permittee must 
use statistically valid random sampling methods. 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 provides a method for establishing representative test 
plots. The permittee is to use a prescribed formula to determine sample 
adequacy. If the data indicate that the vegetation is close to but less 
than the standard, the permittee must submit the data to Arkansas for 
statistical analysis. Arkansas must determine if the differences are 
statistically significant within the limits allowed by regulation. The 
permittee must provide maps for each Phase III plan. The maps are to 
indicate 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 the last augmented seeding, the permittee must 
submit a mitigation plan to Arkansas. The mitigation plan must include 
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, the five year responsibility period will 
begin again. The appendices that are included with the guidance 
document illustrate the selection of random sampling sites; data forms 
for line point transects; summary data forms for sampling frames; a T-
table; data forms for forage crop production data harvested as baled 
hay; an 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; and grasses 
of acceptable plant species for permanent ground cover on agricultural 
areas.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require a regulatory authority to include standards for success and 
statistically valid sampling techniques for measuring success in its 
approved program. Arkansas accomplished 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 areas. 
We find that Arkansas' policy guidelines for pasture land use areas and 
previously mined areas are consistent with the requirements of 30 CFR 
816.116(a)(1) and 817.116(a)(1) and are no less effective than the 
Federal regulations for revegetation of disturbed areas.

8. Phase III Revegetation Success Standards for Cropland

    Arkansas added policy guidelines in a guidance document entitled 
``Phase III Revegetation Success Standards for Cropland.'' This 
guidance document describes the criteria and procedures for determining 
Phase III production success standards for areas being restored to 
cropland under ASCMRC 816.116 (b)(2). It provides success standards and 
measurement frequency for ground cover and crop production. It also 
includes sampling procedures and techniques, data submission and 
analysis criteria, and mitigation plan requirements.
    Arkansas requires 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 Arkansas for analysis. Measurements of the

[[Page 65065]]

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 ASCMRC 816.111. The 
permittee is to determine the crop production standard in accordance 
with a reference area or 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. The permittee is 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. Arkansas must approve any manual sampling of row 
crops. It is only allowed when weather or other factors prevent 
mechanical harvest. The guidance document also provides a method for 
establishing representative test plots for use with row crop 
production. The permittee is to use a prescribed formula to determine 
sample adequacy. If the data indicate that the vegetation is close to 
but less than the standard, the permittee must submit the data to 
Arkansas for statistical analysis. Arkansas must determine if the 
differences are statistically significant within the limits allowed by 
regulation. The permittee must provide maps for each Phase III plan. 
The maps must indicate 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, the permittee 
must submit a mitigation plan to Arkansas. The permittee must include 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, the five year responsibility period will 
begin again. The appendices that are included with the guidance 
document illustrate the selection of random sampling sites; summary 
data forms for sampling frames; data forms for crop production data; a 
T-table; an example of sample adequacy determination for hay production 
measurements; statistical analysis for sampling frame data; a 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 and for moisture; crop 
surveyor's affidavit of qualifications and crop production yields; 
grasses of acceptable plant species for permanent ground cover on 
agricultural areas; and procedures for manually sampling row crops.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require a regulatory authority to include standards for success and 
statistically valid sampling techniques for measuring success in its 
approved program. Arkansas accomplished this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for cropland. We find that Arkansas' 
policy guidelines for cropland are consistent with the requirements of 
30 CFR 816.116(a)(1) and 817.116(a)(1) and are no less effective than 
the Federal regulations for revegetation of disturbed areas.

9. Phase III Revegetation Success Standards for Forest Products

    Arkansas added policy guidelines in a guidance document entitled 
``Phase III Revegetation Success Standards for Forest Products.'' This 
guidance document describes the criteria and procedures for determining 
Phase III ground cover and tree and shrub stocking success for areas 
being restored to forest products under ASCMRC 816.116(b)(3). It 
provides general revegetation requirements and success standards and 
measurement frequency for ground cover and tree and shrub stocking 
rates. It also includes sampling procedures and techniques, data 
submission and analysis criteria, and mitigation plan requirements.
    Arkansas requires that revegetation success for forest products be 
determined on the basis of the general revegetation requirements of the 
approved permit, ground cover, and tree and shrub stocking and 
survival. The permittee is responsible for measuring the vegetation and 
for submitting the data to Arkansas for analysis. The permittee must 
measure the vegetation in accordance with the procedures outlined in 
the guidance document. Arkansas must determine that the general 
requirements for revegetation success are satisfied as stated in ASCMRC 
816.111. The guidance document sets out specific success standards and 
measurement frequencies for ground cover and tree and shrub stocking 
rates based on the regulatory requirements and consultation and 
approval of the Arkansas Forestry Commission on a permit specific 
basis. The permittee must use statistically valid random sampling 
methods. Ground cover is to be measured by the line-point transect 
method, and tree and shrub stocking is to be measured with sampling 
circles. The permittee must use a prescribed formula to determine 
sample adequacy. If the data indicate that the vegetation is close to 
but less than the standard, the permittee must submit the data to 
Arkansas for statistical analysis. Arkansas must determine if the 
differences are statistically significant within the limits allowed by 
regulation. The permittee must provide maps for each Phase III plan. 
The maps must indicate 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, the permittee 
must submit a mitigation plan to Arkansas. The permittee must include 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, the five year responsibility period will 
begin again. The appendices that are included with the guidance 
document illustrate the selection of random sampling sites; data forms 
for line-point transect; data forms for sample circles; a T-table; 
examples of sample adequacy determinations for ground cover and tree 
and shrub stocking; statistical analysis for ground cover and tree and 
shrub stocking; and accepted plant species.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require a regulatory authority to include standards for success and 
statistically valid sampling techniques for measuring success in its 
approved program. Arkansas accomplished this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for forest products. We find that 
Arkansas' policy guidelines for forest products are consistent with the 
requirements of 30 CFR 816.116(a)(1) and 817.116(a)(1) and are no less 
effective than the Federal regulations for revegetation of disturbed 
areas.

10. Phase III Revegetation Success Standards for Recreation and 
Wildlife Habitat

    Arkansas added policy guidelines in a guidance document entitled 
``Phase III Revegetation Success Standards for Recreation and Wildlife 
Habitat.'' This guidance document describes the criteria and procedures 
for determining

[[Page 65066]]

Phase III success for areas being restored to recreation and wildlife 
habitat under ASCMRC 816.116(b)(3). It provides success standards and 
measurement frequency for ground cover and tree and shrub stocking. It 
also includes sampling procedures and techniques, data analysis 
criteria, and mitigation plan requirements.
    Arkansas requires that revegetation success on recreation areas and 
wildlife habitat be determined on the basis of the general revegetation 
requirements of the approved permit, ground cover, and tree and shrub 
stocking and survival. The permittee is responsible for measuring the 
vegetation and for submitting the data to Arkansas for analysis. 
Measurements of the vegetation must be made in accordance with the 
procedures outlined in the guidance document. Arkansas must determine 
that the general requirements for revegetation success are satisfied as 
stated in ASCMRC 816.111. The guidance document sets out specific 
success standards and measurement frequencies for ground cover and tree 
and shrub stocking rates based on the regulatory requirements and 
consultation and approval of the Arkansas Game and Fish Commission on a 
permit specific basis. The permittee must use statistically valid 
random sampling methods. Ground cover is to be measured by the line-
point transect method, and tree and shrub stocking is to be measured 
with sampling circles. Sample adequacy is to be determined using a 
prescribed formula. If the data indicate that the vegetation is close 
to but less than the standard, the permittee must submit the data to 
Arkansas for statistical analysis. Arkansas must determine if the 
differences are statistically significant within the limits allowed by 
regulation. The permittee must provide maps for each Phase III plan. 
The maps must indicate 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, the permittee 
must submit a mitigation plan to Arkansas. The mitigation plan must 
include 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 five year responsibility period 
will begin again. The appendices that are included with the guidance 
document illustrate the selection of random sampling sites; data forms 
for line-point transects; data forms for sample circles; a T-table; 
examples of sample adequacy determinations for ground cover and for 
tree and shrub stocking; statistical analysis for ground cover and tree 
and shrub stocking; and accepted plant species.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require a regulatory authority to include standards for success and 
statistically valid sampling techniques for measuring success in its 
approved program. Arkansas accomplished this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for recreation areas and wildlife 
habitat. We find that Arkansas' policy guidelines for recreation areas 
and wildlife habitat are consistent with the requirements of 30 CFR 
816.116(a)(1) and 817.116(a)(1) and are no less effective than the 
Federal regulations for revegetation of disturbed areas.

11. Phase III Success Standards for Industrial/Commercial and 
Residential Revegetation

    Arkansas added policy guidelines in a guidance document entitled 
``Phase III Success Standards for Industrial/Commercial and Residential 
Revegetation.'' This guidance document describes the criteria and 
procedures for determining Phase III ground cover success for areas 
being restored to an industrial/commercial or residential land use 
under ASCMRC 816.116(b)(4). It provides general revegetation 
requirements and success standards and measurement frequency for ground 
cover. It also includes sampling procedures and techniques, data 
submission and analysis criteria, and mitigation plan requirements.
    Arkansas requires that revegetation success on industrial/
commercial and residential land use areas 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 Arkansas for analysis. The 
permittee must measure the vegetation in accordance with the procedures 
outlined in the guidance document. Arkansas must determine that the 
general requirements for revegetation success are satisfied as stated 
in ASCMRC 816.111. The guidance document sets out specific success 
standards and measurement frequencies for ground cover based on the 
regulatory requirements. The permittee must use statistically valid 
random sampling methods. 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 indicate that the vegetation is close 
to but less than the standard, the permittee must submit the data to 
Arkansas for statistical analysis. Arkansas must determine if the 
differences are statistically significant within the limits allowed by 
regulation. The permittee must provide maps for each Phase III plan. 
The maps must indicate 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, 
a mitigation plan must be submitted to Arkansas. The permittee must 
include 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, the five year responsibility period will 
begin again. The appendices that are included with the guidance 
document illustrate the selection of random sampling sites; data forms 
for line-point transects; a T-table; an example of sample adequacy 
determination for ground cover; statistical analysis for ground cover; 
and accepted plant species.
    The Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
require a regulatory authority to include standards for success and 
statistically valid sampling techniques for measuring success in its 
approved program. Arkansas accomplished this by adoption of a detailed 
guidance document illustrating the methods to be used by the permittee 
to measure revegetation success for industrial/commercial and 
residential land uses. We find that Arkansas' policy guidelines for 
industrial/commercial and residential land uses are consistent with the 
requirements of 30 CFR 816.116(a)(1) and 817.116(a)(1) and are no less 
effective than the Federal regulations for revegetation of disturbed 
areas.

12. Prime Farmland and Grazing Land Revegetation Success Guidelines

    Prime farmland and grazing land are also potential pre- and post-
mining land uses in the State. In its letters dated August 27, 1998, 
and October 8, 1998, Arkansas indicated that prime farmland and grazing 
land guidelines will be submitted at a later date.

IV. Summary and Disposition of Comments

Public Comments

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

[[Page 65067]]

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 Arkansas program (Administrative Record No AR-562.01).
    By letter dated September 28, 1998 (Administrative Record No. AR-
562.07), the U.S. Army Corps of Engineers responded that its review 
found the amendment satisfactory.

Environmental Protection Agency (EPA)

    The Federal regulation at 30 CFR 732.17(h)(11)(ii) requires us to 
get written consent from the EPA for those provisions of a 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 
Arkansas proposed to make in this amendment pertain to air or water 
quality standards. Therefore, we did not request the EPA's consent.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. AR-562.03). 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 proposed amendments which may have an effect on 
historic properties. We requested the SHPO and ACHP to comment on 
Arkansas' amendment (Administrative Record No. AR-562.02), but neither 
responded to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as submitted 
by Arkansas on August 27, 1998, and as revised on October 8, 1998.
    We approve the revegetation guidelines that Arkansas proposed with 
the provision that they be fully placed in force in identical form to 
the guidelines submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 904, which codifies decisions concerning the Arkansas 
program. This final rule is effective immediately to expedite the State 
program amendment process and to encourage Arkansas 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 conducted the reviews required by 
section 3 of Executive Order 12988 (Civil Justice Reform) and 
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 published 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 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

    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 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 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 904

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: November 6, 1998.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 904 is amended 
as set forth below:

PART 904--ARKANSAS

    1. The authority citation for Part 904 continues to read as 
follows:

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

    2. Section 904.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 904.15  Approval of Arkansas regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
  Original amendment submission date         publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
August 27, 1998......................  November 25, 1998......  ASCMRC 701.5; 816.116(b)(1), (2), (3)(iv), (4),
                                                                 (5); Policy Guidelines for Phase III
                                                                 Revegetation Success Standards for Pasture and
                                                                 Previously Mined Areas, Cropland, Forest
                                                                 Products, Recreation and Wildlife Habitat,
                                                                 Industrial/Commercial and Residential
                                                                 Revegetation.
----------------------------------------------------------------------------------------------------------------


[[Page 65068]]

[FR Doc. 98-31490 Filed 11-24-98; 8:45 am]
BILLING CODE 4310-05-P