[Federal Register Volume 64, Number 242 (Friday, December 17, 1999)]
[Rules and Regulations]
[Pages 70584-70587]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-32737]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-026-FOR]


Oklahoma Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Oklahoma regulatory program (Oklahoma 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). Oklahoma submitted its bond release guidelines with a policy 
statement relating to revegetation success standards for diversity on 
lands reclaimed for use as pastureland and grazingland. Oklahoma also 
submitted evidence of consultation with the U.S. Soil Conservation 
Service (SCS) regarding the use of test plots as a statistically valid 
sampling technique for demonstrating success of productivity on prime 
farmland. Oklahoma intends to revise its program to be consistent with 
the corresponding Federal regulations.

EFFECTIVE DATE: December 17, 1999.

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

SUPPLEMENTARY INFORMATION:

    I. Background on the Oklahoma 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 Oklahoma Program

    On January 19, 1981, the Secretary of the Interior conditionally 
approved the Oklahoma program. You can find background information on 
the Oklahoma program, including the Secretary's findings, the 
disposition of comments, and the conditions of approval in the January 
19, 1981, Federal Register (46 FR 4902). You can find later actions 
concerning the Oklahoma program at 30 CFR 936.15 and 936.16.

II. Submission of the Proposed Amendment

    On February 17, 1994, Oklahoma proposed to amend its program by 
revising its bond release guidelines (Administrative Record No. OK-
959.01). On January 10, 1995 (60 FR 2512), we approved this amendment, 
with additional requirements codified at 30 CFR 936.16(c) and (g). By 
letter dated September 30, 1999, Oklahoma sent us additional 
information and documentation to support the provisions in its bond 
release guidelines that we had approved with additional requirements 
(Administrative Record No. OK-984). In response to 30 CFR 936.16(c), 
Oklahoma provided policy statements relating to its bond release 
guidelines for pastureland and grazingland. In response to 30 CFR 
936.16(g), Oklahoma submitted evidence of consultation with the SCS 
regarding the use of test plots as a statistically valid sampling 
technique for demonstrating success of productivity on prime farmland.
    We announced receipt of the additional information and 
documentation in the October 22, 1999, Federal Register (64 FR 56983). 
In the same document, we opened the public comment period and provided 
an opportunity for a public hearing or meeting on the adequacy of 
Oklahoma's additional information and supporting documentation for its 
bond release guidelines. The public comment period closed on November 
22, 1999. Because no one requested a public hearing or meeting, we did 
not hold one.

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.

A. Bond Release Guidelines: Section II. Pastureland and Section III. 
Grazingland; 30 CFR 936.16(c).

    In the January 10, 1995, Federal Register, we approved sections II 
and III of Oklahoma's bond release guidelines with the following 
required amendment codified at 30 CFR 936.16(c):

    (c) By March 13, 1995, Oklahoma shall revise sections II.B and 
III.B in the Bond Release Guidelines to identify the method it will 
use in developing a phase III revegetation success standard for 
diversity on lands reclaimed for use as pastureland and grazingland.

    In its letters dated May 21, 1996, and September 30, 1999 
(Administrative Record No. OK-960.04 and OK-984, respectively), 
Oklahoma included policy statements that identify the

[[Page 70585]]

methods it will use in developing a revegetation success standard for 
diversity on lands reclaimed for use as pastureland and grazingland. In 
its letter dated May 21, 1996, Oklahoma indicated that its diversity 
standards are based primarily on the seed mix and the comparison of 
this seed mix to the stand established after reclamation. In its letter 
dated September 30, 1999, Oklahoma stated that the currently approved 
provisions in its bond release guidelines contain the required 
diversity standards. Oklahoma's bond release guidelines for phase II at 
subsections II.A.1.g and III.A.1.g allow perennial species that are not 
listed in the approved reclamation plan, but which the Department 
approves as being desirable and compatible with the postmining land 
use, to make up 20 percent of the total ground cover. Any one of these 
species cannot exceed 5 percent of the ground cover. We also note that 
subsections II.A.1.f and III.A.1.f require, for phase II bond release 
on pastureland and grazingland, that no more than 10 percent litter and 
10 percent desirable annual or biennial forbs can be counted as 
acceptable ground cover in any single sampling unit. For phase III bond 
release on pastureland and grazingland, subsections II.B.1.a and 
III.B.1.a refer the reader to the phase II standards. Oklahoma's bond 
release guidelines for phase III at subsections II.B.2.a and III.B.2.a 
require the applicant to demonstrate that the reclaimed area has had 
acceptable production of desirable living plants for at least two years 
of the liability period, except the first year. Oklahoma defines 
``desirable plant species'' in Appendix A of its bond release 
guidelines to mean:

    Those permanent perennial species listed in the approved 
reclamation plan plus a limited percentage of approved annual 
species planted in conjunction with the permanent vegetation and 
invading species that are compatible with the approved postmining 
land use.

    Oklahoma stated that its provisions ensure that 80 percent of the 
ground cover is composed of the species listed in the approved 
reclamation plan and that it is comprised of vegetation that meets the 
requirement for seasonality, permanence, and regeneration on both 
pastureland and grazingland. We also note that Oklahoma's revegetation 
success provisions ensure that ground cover is made up of a variety of 
approved plant species.
    In the March 23, 1982, preamble of the proposed rule to modify the 
revegetation sections of the permanent regulatory program (47 FR 
12597), we defined and explained the term ``diversity'' as used in 
section 515(b)(1) of SMCRA and the Federal regulations at 30 CFR 
816.111(a)(1) and 817.111(a)(1).

    Diverse means sufficiently varied amounts and types of 
vegetation to achieve ground cover and support the postmining land 
uses. The precise numbers required to achieve this diversity should 
be determined by regional climatic and soil conditions. However, the 
ultimate test will be the sufficiency of the plant communities to 
assure survival of adequate number and varieties to achieve the 
postmining land use and the required extent of ground cover.

    In the September 2, 1983, preamble of the final rule for the 
Federal regulations at 30 CFR 816.111(a)(1) and 817.111(a)(1), we 
stated that diversity could be achieved by planting a mixture of 
grasses and legumes (48 FR 40143). Oklahoma's provisions at subsections 
II.A.1.g and III.A.1.g of its bond release guidelines, along with its 
definition of ``desirable plant species'' in Appendix A, ensure that a 
variety of approved plant species will be used to achieve ground cover 
that support the postmining land uses of pastureland and grazingland. 
Oklahoma's bond release guidelines at subsections II.B.2.a and 
III.B.2.a, along with its policy statements, ensure that the applicant 
must demonstrate species diversity on reclaimed pastureland and 
grazingland before release of phase III bond. Specifically, the 
approved species will be verified by revegetation data that is 
collected to prove productivity on pastureland and grazingland. We find 
that Oklahoma has identified the methods it will use in developing a 
phase III revegetation success standard for diversity on lands 
reclaimed for use as pastureland and grazingland. Therefore, we are 
removing the required amendment at 30 CFR 936.16(c).

B. Bond Release Guidelines: Section V. Prime Farmland Cropland; 30 CFR 
936.16(g).

    In the January 10, 1995, Federal Register, we approved subsections 
V.B.2.d and V.B.2.e of Oklahoma's bond release guidelines with the 
following required amendment codified at 30 CFR 936.16(g):

    (g) By March 13, 1995, Oklahoma must submit, before Oklahoma 
allows the use of test plots as proposed at subsections V.B.2.d and 
V.B.2.e in the Bond Release Guidelines, evidence of consultation 
with the U.S. Soil Conservation Service regarding the use of test 
plots as a statistically valid sampling technique for demonstrating 
success of productivity on prime farmlands.

    Oklahoma submitted a letter from the SCS dated March 2, 1993, as 
evidence of consultation with the SCS regarding the use of test plots 
as a statistically valid sampling technique for demonstrating success 
of productivity on prime farmland. In this letter, the SCS stated that 
it had reviewed Oklahoma's proposal on sampling techniques for row 
crops on prime farmland. The SCS referred Oklahoma to Dr. James 
Stiegler at the Oklahoma State University for technical evaluation of 
its statistical methods of sampling. In a letter dated March 15, 1996, 
Oklahoma asked Dr. Stiegler to review the section of its guidelines 
concerning the use of test plots on prime farmland cropland to prove 
the productivity of reclaimed soils. Oklahoma asked Dr. Stiegler to 
determine if Oklahoma's methods of selecting and sampling the test 
plots will result in valid results that will accurately demonstrate 
reclamation of prime farmland. Oklahoma submitted a letter from Dr. 
Stiegler dated April 24, 1996. In this letter, Dr. Stiegler stated:

    I have looked over the material that you have provided to me 
regarding the statistical adequacy of using test plots to prove the 
productivity of reclaimed soils. The method of selecting and 
sampling of the test plots as described will result in valid data to 
support soil productivity.

    The letter from the SCS provides adequate evidence that Oklahoma 
consulted with the SCS regarding the use of test plots for 
demonstrating success of productivity on prime farmland. The letter 
from Dr. James Stiegler provides adequate evidence that Oklahoma's 
guidelines at subsections V.B.2.d and V.B.2.e contain statistically 
valid sampling techniques for demonstrating success of productivity on 
prime farmlands. Therefore, we are removing 30 CFR 936.16(g). Oklahoma 
may allow the use of test plots, as proposed at subsections V.B.2.d and 
V.B.2.e, for demonstrating success of productivity on prime farmland 
cropland.

IV. Summary and Disposition of Comments

Public Comments

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

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Oklahoma program (Administrative Record No. OK-984.01). 
We did not receive any comments.

Environmental Protection Agency (EPA)

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from the EPA for those provisions of the

[[Page 70586]]

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 Oklahoma proposed to make in this amendment pertain to 
air or water quality standards. Therefore, we did not ask the EPA to 
agree on the amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record No. OK-984.01). The EPA 
responded on November 5, 1999, that it had no objection to the proposed 
amendments (Administrative Record No. OK-984.05).

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 October 15, 1999, we requested comments on Oklahoma's 
amendment (Administrative Record No. OK-984.01), but neither responded 
to our request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Oklahoma on September 30, 1999.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 936, which codify decisions concerning the Oklahoma 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Oklahoma 
to bring its program into conformity with the Federal standards. SMCRA 
requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12866

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

Executive Order 12988

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

National Environmental Policy Act

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

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
corresponding Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Therefore, this rule will ensure that existing requirements 
previously published by OSM will be implemented by the State. In making 
the determination as to whether this rule would have a significant 
economic impact, the Department relied upon the data and assumptions 
for the corresponding Federal regulations.

Unfunded Mandates

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

List of Subjects in 30 CFR Part 936

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 8, 1999.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
    For the reasons set out in the preamble, 30 CFR Part 936 is amended 
as set forth below:

PART 936--OKLAHOMA

    1. The authority citation for Part 936 continues to read as 
follows:

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

    2. Section 936.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 936.15  Approval of Oklahoma regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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*                *                  *                  *
                   *                  *                *
September 30, 1999............  December 17, 1999  Oklahoma Bond Release
                                                    Guidelines--Subsecti
                                                    ons II.A.1.f and g,
                                                    II.B.1.a, II.B.2.a;
                                                    III.A.1.f and g,
                                                    III.B.1.a,
                                                    III.B.2.a; V.B.2.d
                                                    and V.B.2.e;
                                                    Appendix A; Policy
                                                    Statements dated May
                                                    21, 1996, and
                                                    September 30, 1999.
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[[Page 70587]]

Sec. 936.16   [Amended]

    3. Section 936.16 is amended by removing and reserving paragraphs 
(c) and (g).
[FR Doc. 99-32737 Filed 12-16-99; 8:45 am]
BILLING CODE 4310-05-P