[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:
mwolfrom@tokgw.osmre.gov.
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.
* * * * *
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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
