Oklahoma Regulatory Program

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

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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

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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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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