Oklahoma Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 936

[SPATS No. OK-022-FOR]

Oklahoma Regulatory Program

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

Interior.

ACTION: Proposed Rule; reopening and extension of public comment period

on proposed amendment.

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

SUMMARY: OSM is announcing receipt of revisions and additional

explanatory information pertaining to a previously proposed amendment

to the Oklahoma regulatory program (hereinafter referred to as the

``Oklahoma program'') under the Surface Mining Control and Reclamation

Act of 1977 (SMCRA). The revisions and additional explanatory

information pertain to normal

[[Page 29175]]

husbandry practices and non-augmentative reclamation activities. The

amendment is intended to revise the Oklahoma program to improve

operational efficiency.

DATES: Written comments must be received by 4:00 p.m., c.d.t., June 12,

1998.

ADDRESSES: Written comments should be mailed or hand delivered to

Michael C. Wolfrom, Director, Tulsa Field Office at the address listed

below.

Copies of the Oklahoma program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Tulsa Field Office.

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 74135-6547, Telephone: (918) 581-6430.

Oklahoma Department of Mines, 4040 N. Lincoln Blvd., Suite 107,

Oklahoma City, Oklahoma 73105, Telephone: (405) 521-3859.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa

Field Office, Telephone: (918) 581-6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma Program

II. Discussion of the Proposed Amendment

III. Public Comment Procedures

IV. Procedural Determinations

I. Background on the Oklahoma Program

On January 19, 1981, the Secretary of the Interior conditionally

approved the Oklahoma program. Background information on the Oklahoma

program, including the Secretary's findings, the disposition of

comments, and the conditions of approval can be found in the January

19, 1981, Federal Register (46 FR 4902). Subsequent actions concerning

the Oklahoma program can be found at 30 CFR 936.15 and 936.16.

II. Discussion of the Proposed Amendment

By letter dated July 3, 1997 (Administrative Record No. OK-978),

Oklahoma submitted a proposed amendment to its program pursuant to

SMCRA. Oklahoma submitted the proposed amendment at its own initiative.

Oklahoma proposed to amend the Oklahoma Administrative Code (OAC) for

surface mining operations at OAC 460:20-43-46(c)(4) and underground

mining operations at OAC 460:20-45-46(c)(4) by adding criteria for

normal husbandry practices and non-augmentative reclamation activities

within the State.

OSM announced receipt of the proposed amendment in the August 8,

1997, Federal Register (62 FR 42715) and invited public comment on its

adequacy. The public comment period ended September 8, 1997.

During its review of the amendment, OSM identified concerns in OAC

460:20-43-46(c)(4) and 460:20-45-46(c)(4) relating to the requirement

that OSM approve normal husbandry practices used in the State; OAC

460:20-43-46(c)(4)(D) and 460:20-45-46(c)(4)(D) relating to a

discrepancy between the proposed language and Appendix R of Oklahoma's

Bond Release Guidelines on the repair of rills and gullies; and OAC

460:20-43-46(c)(4)(E) and 460:20-45-46(c)(4)(E) relating to the non-

augmentative reclamation activities proposed for temporary structures.

OSM notified Oklahoma of the concerns by letters dated November 19,

1997, and March 23, 1998, and via telephone conferences on February 10,

1998 and March 19, 1998 (Administrative Record Nos. OK-978.05, OK-

978.10, OK-978.06, and OK-978.09, respectively). Oklahoma responded in

letters dated March 4, 1998, April 22, 1998, April 30, 1998, and May

13, 1998 (Administrative Record Nos. OK-978.08, OK-978.13, OK-978.14,

and OK-978.11, respectively), by submitting a revised amendment and

additional explanatory information.

Oklahoma is proposing (1) normal husbandry practices for reseeding,

fertilizing, liming, weed and pest control, mulching, irrigation,

pruning, transplanting and replanting trees and shrubs, and repair of

rills and gullies and (2) non-augmentative reclamation activity

practices for removal and reclamation of temporary structures.

Summarized below by regulation numbers is a discussion of the revisions

and additional explanatory information submitted by Oklahoma.

1. Oklahoma revised the first sentence of OAC 460:20-43-46(c)(4)

and 460:20-45-46(c)(4) by adding the language ``and non-augmentative

reclamation activities.'' The revised sentence reads as follows:

The Department and the Office of Surface Mining have approved

selective husbandry practices and non-augmentative reclamation

activities that, when accomplished in accordance with (A) through

(G) below, do not extend the period of responsibility for

revegetation success and bond liability.

In its letter dated April 22, 1998, Oklahoma stated that it

understands that any normal husbandry practice(s) not included in its

March 4, 1998, revised amendment will be submitted to OSM for approval

in accordance with 30 CFR 732.17. In order to support its proposed

regulations at OAC 460:20-43-46(c)(4) and 460:20-45-46(c)(4), Oklahoma

submitted several guidelines published by the Oklahoma State University

and the Natural Resources Conservation Service on the types of

agricultural practices that will not be considered augmentative.

2. Oklahoma revised the third sentence of OAC 460:20-43-

46(c)(4)(A), pertaining to surface mining operations, by adding the

language ``identified at subsection 460:20-43-46(c)(4)(E).'' The

revised sentence reads as follows:

Removal and reclamation of temporary structures identified at

subsection 460:20-43-46(c)(4)(E) would not be considered

augmentation.

3. Oklahoma revised the third sentence of OAC 460:20-45-

46(c)(4)(A), pertaining to underground mining operations, by adding the

language ``identified at subsection 460:20-45-46(c)(4)(E).'' The

revised sentence reads as follows:

Removal and reclamation of temporary structures identified at

subsection 460:20-45-46(c)(4)(E) would not be considered

augmentation.

4. Oklahoma revised OAC 460:20-43-46(c)(4)(D) and 460:20-45-

46(c)(4)(D) by removing the language ``during the initial

establishment'' from the third and fifth sentence and replacing the

sixth and seventh sentence with the following language:

After initial vegetation establishment, ODOM defines the

treatment of rills and gullies requiring permanent reseeding of more

than 10 acres in a contiguous block or 10% of a permit area

initially seeded during a single year to be an augmentative practice

because of the potential for delayed seeding of large areas to

reduce the probability of revegetation success.

Oklahoma submitted copies of the Natural Resources Conservation

Service (NRCS) guidelines for repair of rills and gullies entitled

``State Standard and Specifications for Critical Area Treatment'' and

``Critical Area Planting'' to support its proposed regulations at OAC

460:20-43-46(c)(4)(D) and 460:20-45-46(c)(4)(D).

5. Oklahoma revised OAC 460:20-43-46(c)(4)(E) and 460:20-45-

46(c)(4)(E), by changing the word ``haulroads'' to ``roads'' and adding

the language ``remaining after a Phase I Bond Release approval'' to its

previously proposed

[[Page 29176]]

provision. The revised regulations read as follows:

Liming, fertilization, mulching, seeding or stocking following

the reclamation of any temporary roads remaining after a Phase I

Bond Release approval, temporary sediment or hydraulic control

structures, areas disturbed by the installation or removal of oil

and gas wells or utility lines, and areas where the vegetation was

disturbed by vehicular traffic not under the control of the

permittee will not be considered augmentation.

In its letter of April 22, 1998, Oklahoma clarified that its

proposed regulations at OAC 460:20-43-46(c)(4)(E) and 460:20-45-

46(c)(4)(E) do not approve the reclamation of temporary haul roads

after Phase I approval as a non-augmentative practice.

6. Oklahoma is proposing to delete Appendix R and to revise

Appendix A of its Bond Release Guidelines. Appendix R contains

Oklahoma's currently approved guidelines for the repair of rills and

gullies, and it is being replaced by Oklahoma's proposed regulations at

OAC 460:20-43-46(c)(4)(D) and 460:20-45-46(c)(4)(D). The definition for

``Augmentation'' in Appendix A is being revised by replacing the

reference to Appendix R with a reference to OAC 460:20-43-46(c)(4) and

460:20-45-46(c)(4). The definition of ``Initial Establishment of

Permanent Vegetative Cover'' is being deleted from Appendix A.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed Oklahoma

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the Oklahoma

program.

Written Comments

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Tulsa Field Office will not

necessarily be considered in the final rulemaking or included in the

Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This proposed rule is exempted from review by the Office of

Management and Budget (OMB) 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), decision 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.

National Environmental Policy Act

No environmental impact statement is required for this rule since

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)).

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

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. Accordingly, this rule will ensure that existing requirements

previously promulgated 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 counterpart Federal regulations.

Unfunded Mandates

OSM has determined and certifies pursuant to 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: May 20, 1998.

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-14055 Filed 5-27-98; 8:45 am]

BILLING CODE 4310-05-M