[Federal Register Volume 64, Number 104 (Tuesday, June 1, 1999)]
[Proposed Rules]
[Pages 29249-29252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-13809]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-041-FOR]


Texas Regulatory Program

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

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

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of an amendment to the Texas regulatory program 
(Texas program) under the Surface Mining Control and Reclamation Act of 
1977 (SMCRA). Texas proposes to add revegetation success and normal 
husbandry practice guidelines to its program. Texas intends to revise 
its program to ensure that adequate data collection methods are used 
for determining revegetation success for purposes of releasing 
reclamation performance bonds and to ensure that the husbandry 
practices used by the permittee during the period of responsibility for 
revegetation success and bond liability are normal husbandry practices 
within the region for unmined lands.
    This document gives the times and locations that the Texas program 
and the amendment to that program are available for your inspection, 
the comment period during which you may submit written comments on the 
amendment, and the procedures that we follow for the public hearing, if 
one is requested.

DATES: We will accept written comments until 4 p.m., c.d.t., July 1, 
1999. If requested, we will hold a public hearing on the amendment on 
June 28, 1999. We will accept requests to speak at the hearing until 
4:00 p.m., c.d.t. on July 16, 1999.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Texas program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.

Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, 
Telephone: (918) 581-6430.
Surface Mining and Reclamation Division, Railroad Commission of Texas, 
1701 North Congress Avenue, Capitol Station, P. O. Box 12967, Austin, 
Texas 78711-2967, Telephone: (512) 463-6900.

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

SUPPLEMENTARY INFORMATION:

I. Background on the Texas Program

    On February 16, 1980, the Secretary of the Interior conditionally 
approved the Texas program. You can find background information on the 
Texas program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval in the February 27, 1980, 
Federal Register (45 FR 12998). You can find later actions concerning 
the Texas program at 30 CFR 943.10, 943.15, and 943.16.

II. Description of the Proposed Amendment

    By letter dated May 13, 1999 (Administrative Record No. TX-649), 
Texas sent us an amendment to its program under SMCRA. Texas sent the 
amendment at its own initiative. The amendment includes a guidance 
document on the procedures and standards for determining revegetation 
success on surface-mined lands in Texas and a guidance document on the 
normal husbandry practices that permittees are to use during the period 
of responsibility for revegetation success and bond liability (extended 
responsibility period). Below is a summary of the two documents. The 
full text of the program amendment is available for your inspection at 
the locations listed above under ADDRESSES.

1. Revegetation Success Guidelines: Procedures and Standards for 
Determining Revegetation Success on Surface-Mined Lands in Texas

    Texas is proposing a guideline document that describes the 
procedures and standards for determining revegetation success on 
reclaimed surface mined lands in Texas.
    a. Section I contains introductory information. Revegetation 
success must be demonstrated by using the revegetation standards and 
statistically valid sampling techniques for measuring success contained 
in the proposed guideline document. The use of the methods contained in 
this guidance document by mining companies operating in Texas will 
provide assurance that adequate data collection methods have been used 
for determining revegetation success for purposes of releasing 
reclamation performance bond funds. Mining companies may propose 
alternative procedures for sampling and analysis of vegetation data. 
However, the use of alternative methods must be approved by Texas, and 
the alternative methods must be included in the approved regulatory 
program.
    b. Section II describes the regulatory requirements for meeting 
revegetation

[[Page 29250]]

success under the Texas Surface Coal Mining and Reclamation Act at 
sections 134.041, .092(a)(19) and (20), and .104 and the implementing 
performance standards for revegetation success in the Texas Coal Mining 
Regulations at Title 16, Texas Administrative Code (TAC) 12.390 through 
12.395, and 12.399.
    c. Section III identifies specific concepts and requirements to be 
followed in developing revegetation evaluation plans.
    d. Section IV provides the approved methods for implementing the 
various evaluation methods for ground cover, productivity, and woody-
plant stocking, including the proper selection of observation points. 
Measurement methods are presented for all vegetation parameters. 
Measurement results must be compared to either approved reference areas 
or technical success standards. Subsection A provides information on 
the selection of observation points for collecting vegetation data. 
Subsection B provides guidance on adjusting for field conditions when 
conducting vegetation surveys. Subsection C provides guidelines for 
ground cover measurements. Subsection D contains guidance for 
measurement of productivity. Subsection E provides guidelines for woody 
plant stocking. Subsection F contains guidance on selecting and 
management of reference areas.
    e. Section V lists the revegetation success standards for each land 
use type and provides information on determining productivity of the 
reclaimed areas. Nine general types of land use are included: 
grazingland, pastureland, cropland, forestry, fish and wildlife 
habitat, undeveloped land, industrial/commercial, residential, and 
recreation. Subsection A provides guidelines relating to ground cover 
and productivity standards for grazingland and pastureland. Subsection 
B contains guidance on the ground cover and productivity standards for 
cropland. Subsection C provides guidelines on the ground cover 
standards and woody-plant stocking rates for the forestry land use 
category. Subsection D contains guidance on ground cover standards and 
woody-plant rates for fish and wildlife habitat. Subsection E provides 
guidelines on ground cover standards and woody-plant stocking rates for 
undeveloped land. Subsection F includes guidelines relating to ground 
cover standards and woody-plant stocking rates for industrial/
commercial land uses. Subsection G provides guidance on ground cover 
standards and woody-plant stocking rates for residential land uses. 
Subsection H contains guidelines on ground cover standards and woody-
plant stocking rates for recreation land uses. Subsections A through H 
include the steps to be followed for measurement and statistical 
comparison when either reference areas or technical standards are used 
as a measure for revegetation success. These subsections also contain 
information on evaluating ground cover measurements in conjunction with 
the species composition, when applicable.
    f. Section VI provides a listing of the literature used in 
developing the proposed guideline document. Appendix A contains the 
statistical information, including equations and tables, to be used in 
the determination of revegetation success for ground cover, 
productivity, and woody-plant stocking. Appendix B provides a table 
summarizing the revegetation success standards for all land uses. The 
table in Appendix B includes the revegetation parameters, performance 
standards, and conditions for bond release relating to each land use. 
Appendix C contains examples of revegetation success determinations for 
ground cover, productivity involving herbaceous biomass, and woody 
plant stem counts. Attachment 1 is a document entitled ``The 
Development of the Forage Production Standards for Post Mine Soils'' by 
the United States Department of Agriculture--Natural Resources 
Conservation Service (USDA-NRCS). Attachment 2 is a document entitled 
``Texas Parks and Wildlife Department Recommendations for the 
Development of Success Standards for Woody-Plant Stocking Rates.'' 
Attachment 3 is a document entitled ``Texas Forest Service 
Recommendations for Reforestation of Pine and Hardwoods in Texas.''

2. Guidelines for Normal Husbandry Practices for Surface-Mined Lands in 
Texas

    Texas is proposing a guideline document that describes the 
husbandry practices to be used by the permittee during the period of 
responsibility for revegetation success and bond liability. These 
practices are normal husbandry practices within the region for unmined 
lands.
    a. Section I contains introductory information. The guideline 
document includes the normal husbandry practices that permittees must 
use for disease and pest control, application of fertilizers, 
application and incorporation of other soil amendments, and any other 
necessary soil vegetation management activities on surface-mined lands 
in Texas during the extended responsibility period. Husbandry practices 
not included in this document may be considered augmentative in nature 
and, if performed on land that is currently in the extended 
responsibility period, may restart that period. The decision whether a 
particular activity can be classified as a normal husbandry practice 
will depend both on the regulatory requirements of the Texas Coal 
Mining Regulations and the postmining land use. Texas discusses its 
regulatory requirements in section II of the document.
    b. Section III describes the conventions for normal husbandry 
practices. Texas lists the following three conventions regarding normal 
husbandry practices for surface-mined lands in Texas:

    1. Normal husbandry practices are region-specific and include 
activities performed by landowners managing lands not disturbed by 
mining activities.
    2. Normal husbandry practices are those activities that can 
expected to continue as part of the postmining land use.
    3. Discontinuance of the husbandry practices will not reduce the 
probability of revegetation success.

Texas also provides examples of the applicability of the conventions 
listed in items 1 and 3.
    c. In section IV, Texas proposes normal husbandry practices for six 
vegetative community postmining land uses defined in the Texas program: 
grazingland, pastureland; cropland; forestry; fish and wildlife 
habitat; and undeveloped land. The normal husbandry practices listed 
for grazingland, pastureland, cropland, forestry, and fish and wildlife 
habitat are divided into three general categories: general management 
of soil and vegetation; addition of plant nutrients and other soil 
amendments; and pest management. Reference documents defining the 
normal husbandry practices for each category are listed. Texas 
submitted copies of these reference documents to support its proposed 
practices for disease and pest control, application of fertilizers, 
application and incorporation of other soil amendments, and other 
necessary soil vegetation management activities on surface-mined lands. 
Because the definition of undeveloped land excludes any type of 
management inputs during the extended responsibility period, Texas is 
only allowing limited erosion repair for this land use.
    d. In section V, Texas provides guidelines for erosion repair, 
other damage repair, reseeding areas, overseeding, and restocking of 
woody species. Texas also included a provision for regrading and 
revegetation of areas

[[Page 29251]]

where temporary structures have been removed.
    Texas may consider repair of erosion or other types of damage as a 
normal husbandry practice, provided that the damage is not caused by a 
lack of planning, design, or implementation of the mining and 
reclamation plan. The total acreage of repaired areas cannot exceed 
three contiguous acres or ten percent of the total land of the extended 
responsibility area. In cases of erosion, repairs may be considered 
non-augmentative if rill and gully damage was caused by precipitation 
exceeding a 10-year/24-hour event or damage occurred before the first 
two years of a 5-year extended responsibility period (areas with annual 
precipitation >26 inches) or four years of a 10-year extended 
responsibility period (areas with annual precipitation 26 
inches). After the first two or four years, whichever is applicable, 
total acreage for erosion repair cannot exceed one contiguous acre or 
two percent of the total land of that extended responsibility area.
    Texas will determine whether or not regrading and revegetation of 
areas where temporary structures such as sediment ponds, roads, and 
small diversions have been removed are non-augmentative on a case-by-
case basis. Areas that may pose significant potential for reclamation 
problems will require a separate extended responsibility period.
    Overseeding of winter cover crops and/or summer annuals, into 
existing vegetation, is considered a normal husbandry practice. 
Restocking of woody species is allowed, as long as the time and 
quantity of restocking is in compliance with Texas' regulations at 16 
TAC 12.395(b)(3)(B).
    Reference documents defining the normal husbandry practices 
relating to general management, addition of plant nutrients and other 
soil amendments, and pest management for erosion repair and reseeded 
areas are listed in this section. Texas submitted copies of these 
reference documents to support these practices.
    e. In section VI, Texas lists those activities that are considered 
unacceptable husbandry practices. The activities include: reseeding of 
areas devoid of vegetation due to acid mine soils; irrigation; 
supplemental watering of herbaceous vegetation and supplemental 
watering of large woody stock later than two years after planting; all 
application and incorporation of alkaline amendments, except for non-
excessive application; and excessive application of plant nutrients.
    If any of the listed practices are performed, the extended 
responsibility period for the affected areas will restart. Texas does 
not consider practices required to address problems that arise from 
mining-related activities as normal husbandry practices. Texas will use 
information from field inspection reports and mine-soil chemical 
analysis data to evaluate unacceptable husbandry practices or 
augmentation.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are requesting 
comments on whether the proposed amendment satisfies the applicable 
program approval criteria of 30 CFR 732.15. If we approve the 
amendment, it will become part of the Texas program.

Written Comments

    Your written comments should be specific and pertain only to the 
issues proposed in this rulemaking. You should explain the reason for 
any recommended change. In the final rulemaking, we will not 
necessarily consider or include in the Administrative Record any 
comments received after the time indicated under DATES or at locations 
other than the Tulsa Field Office.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., c.d.t. on July 
16, 1999. We will arrange the location and time of the hearing with 
those persons requesting the hearing. If you are disabled and need 
special accommodations to attend a public hearing, contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. We will not 
hold the hearing if no one requests an opportunity to speak at the 
public hearing.
    You should file a written statement at the time you request the 
hearing. This will allow us 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. If 
you are in the audience and have not been scheduled to speak and wish 
to do so, you will be allowed to speak after those who have been 
scheduled. We will end the hearing 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, 
we may hold a public meeting, rather than a public hearing. If you wish 
to meet with us to discuss the amendment, request a meeting by 
contacting the person listed under FOR FURTHER INFORMATION CONTACT. All 
such meetings are open to the public and, if possible, we will post 
notices of meetings at the locations listed under ADDRESSES. We will 
also make a written summary of each meeting part of the Administrative 
Record.

IV. Procedural Determinations

Executive Order 12866

    The Office of Management and Budget (OMB) exempts this rule from 
review under Executive Order 12866 (Regulatory Planning and Review).

Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that, to the extent allowed by law, this rule meets the 
applicable standards of subsections (a) and (b) of that section. 
However, these standards are not applicable to the actual language of 
State regulatory programs and program amendments since each program is 
drafted and promulgated by a specific State, not by OSM. Under sections 
503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on State regulatory programs and 
program amendments must be based solely on a determination of whether 
the submittal is consistent with SMCRA and its implementing Federal 
regulations and whether the other requirements of 30 CFR Parts 730, 
731, and 732 have been met.

National Environmental Policy Act

    This rule does not require an environmental impact statement since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on State regulatory program provisions do not constitute 
major Federal actions within the meaning of section 102(2)(C) of the 
National Environmental Policy Act (42 U.S.C. 4332(2)(C)).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal

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

Unfunded Mandates

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

List of Subjects in 30 CFR Part 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 24, 1999.
Brent Wahlquist,
Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 99-13809 Filed 5-28-99; 8:45 am]
BILLING CODE 4310-05-P