[Federal Register Volume 73, Number 15 (Wednesday, January 23, 2008)]
[Proposed Rules]
[Pages 3894-3898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-1113]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 916

[Docket No. OSM-2008-0001; Sats No. KS-024-FOR]


Kansas Regulatory Program

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

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

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of a proposed amendment to the Kansas 
regulatory program (Kansas program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Kansas proposes 
revisions to its 2002 Kansas Revegetation Guidelines and its Normal 
Husbandry Practices. Kansas intends to update obsolete information used 
in determining the forage production success standard for warm season 
native grasses. Kansas also proposes to update their normal husbandry 
practices to increase clarity and to update references to other 
Agencies technical guidelines. These documents give the times and 
locations that the Kansas programs and proposed amendments to that 
program are available for your inspection, the comment period during 
which you may submit written comments on the amendments, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
c.d.t., February 22, 2008. If requested, we will hold a public hearing 
on the amendment on February 19, 2008. We will accept requests to speak 
at a hearing until 4 p.m., c.d.t. on February 7, 2008.

ADDRESSES: You may submit comments, identified by Docket No. OSM-2008-
0001, by any of the following methods:
     Mail/Hand Delivery: Alfred L. Clayborne, Director, Tulsa 
Field Office, Office of Surface Mining Reclamation and Enforcement, 
1645 South 101 St East Avenue, Tulsa, Oklahoma 74128.
     Federal eRulemaking Portal: http://www.regulations.gov. 
The proposed rule has been assigned Docket ID: OSM-2008-0001. If you 
would like to submit comments through the Federal eRulemaking Portal, 
go to www.regulations.gov and do the following. Click on the ``Advanced 
Docket Search'' button on the right side of the screen. Type in the 
Docket ID (OSM-2008-0001) and click the ``Submit'' button at the bottom 
of the page. The next screen will display the Docket Search Results for 
the rulemaking. If you click on OSM-2008-0001, you can view the 
proposed rule and submit a comment. You can also view supporting 
material and any comments submitted by others.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: In addition to obtaining copies of documents at 
www.regulations.gov, you may review copies of the Kansas program, this 
amendment, a listing of any scheduled public hearings, and all written 
comments received in response to this document, at the address 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. Alfred L. Clayborne, Director, Tulsa Field 
Office, Office of Surface Mining Reclamation and Enforcement, 1645 
South 101 St East Avenue, Tulsa, Oklahoma 74128-6547, Telephone: (918) 
581-6430, E-mail: [email protected].
    In addition, you may review a copy of the amendment during regular 
business

[[Page 3895]]

hours at the following location: Kansas Department of Health and 
Environment, Surface Mining Section, 4033 Parkview Drive, Frontenac, 
Kansas 66763, Telephone: (316) 231-8540.

FOR FURTHER INFORMATION CONTACT: Alfred L. Clayborne, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Kansas Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Kansas Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its program includes, among other things, ``* * * a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Kansas program on January 21, 1981. You can 
find background information on the Kansas program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval, in the January 21, 1981, Federal Register (46 FR 5892). 
You can also find later actions concerning the Kansas program and 
program amendments at 30 CFR 916.10, 916.12, 916.15, and 916.16.

II. Description of the Proposed Amendment

    By letter dated November 19, 2007 (Administrative Record No. 626 
and 627), Kansas sent us amendments to its program under SMCRA (30 
U.S.C. 1201, et seq.). Kansas sent the amendments in one package, 
identifying the Revegetation Success Guidelines as KS-024-FOR and the 
Normal Husbandry Practices as KS-025-FOR. We have combined these both 
under one docket number (KS-024-FOR). Kansas submitted these amendments 
at their own initiative. Below is a summary of the changes proposed by 
Kansas. The full text of the program amendments are available for you 
to read at the locations listed above under ADDRESSES.
    Kansas determined that a portion of its currently approved 2002 
Revegetation Guidelines contains information that needs to be updated. 
During a review of its revegetation guidelines, the State found that 
Appendix C, USDA-SCS Technical Guide Notice KS-145 (KS-415) lists an 
animal unit month (AUM) value that yields an extremely low production 
rate. The AUM value is used to calculate the forage production success 
standard for warm season native grasses. Upon discovering this, Kansas 
contacted the USDA Natural Resources Conservation Service (NRCS) who 
informed the State that KS-415 is now considered obsolete. Because of 
this, Kansas proposes to no longer allow Kansas coal operators to use 
KS-415 in determining the forage production success standard for warm 
season native grasses only. Kansas coal operators will continue to use 
KS-415 for determining forage production success standards for wheat, 
grain sorghum, and soybeans. In order to calculate the forage 
production success standard for any area seeded to warm season native 
grasses where the postmining land use requires both cover and 
production data, Kansas proposes to replace KS-415 with the NRCS's 
``Electronic Field Office Technical Guides'' for rangeland, grazed 
forestland, and native pastureland interpretations for Linn, Crawford, 
Cherokee, and Bourbon Counties. Kansas also proposes that the forage 
production success standard established in each permit be based on the 
total dry weight production listed for an average year.
    Kansas Department of Health and Environment (KDHE) proposes to 
update the approved selected husbandry practices which are considered 
to be normal in Kansas. Utilization of these practices will not result 
in the KDHE mandating an extension to the period of responsibility for 
revegetation success and bond liability. The probability of permanent 
revegetation failure will not be increased if the approved practices 
are discontinued after expiration of the liability period. Kansas 
suggests that the proposed practices are considered normal husbandry 
practices within the region for unmined lands having land uses similar 
to the approved postmining land use of the disturbed area. They include 
such practices as mowing, liming, fertilization, disease, pest and 
vermin control; and any pruning, reseeding, and transplanting 
specifically necessitated by such actions. Practices not approved, and 
which will result in an extension of the liability period, include any 
seeding, fertilization, or irrigation performed at levels which exceed 
those normally applied in maintaining comparable unmined land in the 
surrounding area.
    In determining what is an approved selective husbandry practice, 
evaluations shall include Surface Mining Section (SMS) Professional 
Judgments, the incorporation of guidelines provided by approved source 
documents, and information provided by Kansas State University (KSU) 
and the United States Department of Agriculture, Natural Resources 
Conservation Service (NRCS). Both NRCS and KSU have established and 
published many recommended fertility and management practices for row 
crops, hayland, and grazingland tailored for soil conditions, crop 
rotations, tillage and application practices.
    If this amendment is approved, the SMS will compare the proposed 
management practices on mined land with recommended practices provided 
by KSU and NRCS to determine if the mined land practices can be 
considered normal husbandry. Through the routine inspection process, 
the SMS will monitor liability start dates, liming and fertilization 
activities and evaluate and determine the success of the reclamation. 
If the SMS determines site specific management practices are outside 
the normal husbandry practices, a decision will be made whether or not 
the liability period must restart.
    On all lands with a postmining land use in perennial cover, the SMS 
shall consider limited reseeding and associated fertilization and 
liming as non-augmentative if the cumulative area is small. Reseeding 
of small areas without restarting the period of operation 
responsibility shall be left up to the judgment of the SMS in 
conjunction with the NRCS or KSU Extension Agriculture Service and in 
no case shall the cumulative areas reseeded be greater than 3 acres or 
10% of the permit area whichever is less. Exceptions to this maximum 
size may be made if the area is comprised of a waterway, terrace or 
other water control structures. In all cases, the reestablished 
vegetation shall be in place for a sufficient length of time to not 
adversely affect the SMS's ability to make a valid determination at the 
time of bond release as to whether the site has been properly 
reclaimed.
    Approved normal husbandry practices conducted in consultation with 
KSU or NRCS are not considered augmentation. Evidence of consultation 
may be required by the SMS. Practices listed in the following documents 
are approved:
Kansas State University Publications,
Established Native Grasses, October 1997

[[Page 3896]]

Native Hay Meadow Management, July 1992
Trees and Shrubs for Difficult Sites, February 2006
Fertilization Trees, May 2001
Chemical Weed Control in Tree Planning, March 2001
Weed Control Options in Tree Planting, February 2006
Tree Planting Guide, June 2004
Tall Planting Guide, June 2004
Tall Fescue Production and Utilization, April 1994
Maintaining Grass Waterways, April 2004
Rangeland Weed Management, December 1991

United States Department of Agriculture (USDA) Natural Resources 
Conservation Service (NRCS) Conservation Practice Standards
314 Brush Management
322 Channel Bank Vegetation
327 Conservative cover
656 Constructive Wetland
332 Contour Buffer Strips
340 Cover Crop
341 Critical Area Planting
362 Diversion
647 Early Successional Habitat Development/Management
386 Field Boarder
393 Filter Strip
511 Forage Harvest Management
666 Forest Stand Improvement
412 Grassed Waterway
484 Mulching
590 Nutrient Management
512 Pasture and Hay Planting
595 Pest Management
338 Prescribed Burning
528 Prescribed Grazing
550 Range Planting
329B Residue Management, Mulch Till
329A Residue Management, No Till/Strip Till
344 Residue Management, Seasonal
391 Riparian Forest Buffer
656 Shallow Water Management for Wildlife
580 Streambank and Shoreline protection
600 Terrace
612 Tree/Shrub Establishment
660 Tree/Shrub Pruning
645 Upland Wildlife Habitat Management
644 Wetland Wildlife Habitat Management
380 Windbreak/Shelterbelt Establishment
Kansas Forestry Technical Note KS-9 Tree/Shrub Establishment and 
Maintenance Guidelines
    The repair of rills and gullies will not be allowed in the State of 
Kansas without restarting the revegetation liability period, unless the 
occurrences and the treatment of such rills and gullies constitutes a 
normal conservation practice in the region as described below:
    In the coal mining region of Kansas, the normal range of 
precipitation during fall or spring seeding seasons may result in the 
formation of rills and gullies during the initial establishment of a 
permanent vegetation cover for any land use. The NRCS has prepared 
guidelines for the treatment of rills and gullies as part of their 
critical areas planting (CAP) process. The SMS has determined that the 
NRCS CAP for the treatment of rills and gullies in the coal mining 
regions of Kansas constitutes the treatment practice which is the usual 
degree of management customarily performed to prevent exploitation, 
destruction or neglect of the soil resources and maintain the 
productivity of the land uses. This treatment would not be considered 
an augmented practice because the NRCS guidance is the standard 
development for the normal treatment of rills and gullies that may 
develop during the initial establishment of a permanent cover of 
vegetation on unmined lands in Kansas. If the use of the NRCS 
guidelines to control rills and gullies under CAP does not stop 
erosion, any continued treatment of rills and gullies after the initial 
vegetative establishment would be considered an augmented practice that 
would restart the liability period. In addition, the KDHE SMS defines 
the treatment of rills and gullies requiring a permanent reseeding of 
more than 10 acres in a contiguous block, or 10 percent of the permit 
area initially seeded during a single year, to be an augmented practice 
because of the potential for delay of seeding large area to reduce the 
probability of revegetation success.
    CAP requires active furrows, rills, ditches, or gullies be filled 
to aid the conservation practices application. The rills and gullies 
should be filled with topsoil, if the eroding site is not large, or 
contoured and/or smoothed if the site is large. The area must be seeded 
during the appropriate seeding season with approved perennial species 
followed by an application of mulch. If permanent seeding of the area 
must be delayed due to weather condition, then appropriate temporary 
erosion control measures must be utilized. Mulch that is to be applied 
must be free of noxious weeds including Johnson grass and sericea 
lespedeza, anchored during or immediately after application, and be 
applied at the following rates:
    1. Native hay or straw: Apply at the rate of 2 tons/acre and crimp 
into the soil. Native hay mulch should be less than two (2) years old. 
Where appropriate based on surrounding vegetation, cool season (fescue) 
hay may be used. Apply at the rate of 2 tons/acre and crimp into the 
soil.
    2. Wood chips: Apply at the rate of 11-15 tons/acre.
    3. Strawy manure: Apply at the rate of 10 tons/acre. Strawy manure 
need not be anchored if it contains heavy solids.
    The use of fabric, hay bales, and/or designed rock riprap structure 
to fill or repair rills and gullies will be approved on a case-by-case 
basis. Monitoring of these areas will be required to assure that the 
treatment provides long-term erosion control, does not disrupt the post 
mining land use, and that the permanent vegetation becomes established. 
If this treatment is not effective, then filling of the rills and 
gullies with topsoil and revegetation will be required. Depending on 
site conditions, terracing, erosion control fabric, wattles, or other 
measures may be needed to control erosion until vegetation is 
established. If the drainage area is of a sufficient size to create 
continued problems with rills and gullies, the operator will install 
terraces to control the amount and/or velocity of water moving across 
the area. These terraces will be designed and constructed in accordance 
with K.A.R. 47-9-(c)(9).
    Liming, fertilization, mulching, seeding or stocking (stems) 
following the reclamation of any temporary roads, temporary sediment or 
hydraulic control structures, or areas where the vegetation was 
disturbed by vehicular traffic not under the control of the permittee 
shall not be considered augmentation.
    Reliming and/or refertilization of revegetated areas, reseeding 
cropland in annual crops; or renovating pastureland or cropland areas 
in perennial cover by over seeding with legumes after a phase II bond 
release shall be considered normal husbandry practices and shall not 
restart the liability period if the amount and frequency of these 
practices do not exceed normal husbandry practices used on unmined land 
within the region. Other normal husbandry practices that my be 
conducted on postmining land uses of fish and wildlife habitat, 
recreation, and forestry without restarting the liability period are 
disease, pest, and vermin control; and any pruning, reseeding, and 
transplanting specifically necessitated by such actions. Replanting 
more than 20% of the trees/shrubs needed to meet the established 
technical success will restart the 5-year liability time clock. Trees 
and shrubs counted in determining the success of stocking

[[Page 3897]]

shall be healthy and have been in place for not less than two growing 
seasons. At the time of bond release, at least 80% of the trees and 
shrubs used to determine such success shall have been in place for a 
minimum of three years.

III. Public Comment Procedures

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

Written Comments

    Send your written or electronic comments to OSM at one of the two 
addresses given above. Your written comments should be specific, 
pertain only to the issues proposed in this rulemaking, and include 
explanations in support of your recommendations. We cannot ensure that 
comments received after the close of the comment period (see DATES) or 
sent to an address other than the two listed above will be included in 
the docket for this rulemaking and considered.

Availability of Comments

    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

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 
February 7, 2008. If you are disabled and need reasonable 
accommodations to attend a public hearing, contact the person listed 
under FOR FURTHER INFORMATION CONTACT. We will arrange the location and 
time of the hearing with those persons requesting the hearing. If no 
one requests an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please 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 make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

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

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

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

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

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

National Environmental Policy Act

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

[[Page 3898]]

Paperwork Reduction Act

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

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

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

Unfunded Mandates

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

List of Subjects in 30 CFR Part 916

    Intergovernmental relations, Surface mining, Underground mining.

     Dated: December 26, 2007.
Len Meier,
Acting Regional Director, Mid-Continent Region.
 [FR Doc. E8-1113 Filed 1-22-08; 8:45 am]
BILLING CODE 4310-05-P