Arkansas Regulatory Program

comments on the proposed amendment, and the procedures

that will be followed regarding the public hearing, if one is

requested.

DATES: Written comments must be received by 4:00 p.m., c.s.t. on

February 9, 1998. If requested, a public hearing on the proposed

amendment will be held on February 3, 1998. Requests to speak at the

hearing must be received by 4:00 p.m., c.s.t. on January 26, 1998.

ADDRESSES: Written comments and requests to speak at the hearing should

be mailed or hand delivered to Michael C. Wolfrom, Director, Tulsa

Field Office, at the address listed below.

Copies of the Arkansas program, the proposed amendment, a listing

of any scheduled public hearings, 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.

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.

Arkansas Department of Pollution Control and Ecology, Surface

Mining and Reclamation Division, 8001 National Drive, Little Rock,

Arkansas 72219-8913. Telephone (501) 682-0744.

FOR FURTHER INFORMATION CONTACT:

Michael C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-

6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program

On November 21, 1980, the Secretary of the Interior conditionally

approved the Arkansas program. Background information on the Arkansas

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

comments, and the conditions of approval can be found in

l C. Wolfrom, Director, Tulsa Field Office, Telephone: (918) 581-

6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Arkansas Program

On November 21, 1980, the Secretary of the Interior conditionally

approved the Arkansas program. Background information on the Arkansas

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

comments, and the conditions of approval can be found in

the November 21, 1980, Federal Register (45 FR 77003). Arkansas amended

its program by submitting provisions that satisfied all of the

conditions of the Secretary's approval of November 21, 1980. Effective

January 22, 1982, OSM removed the conditions of the approval of the

Arkansas permanent regulatory program. Information on the removal of

the conditions can be found in January 22, 1982, Federal Register (47

FR 3108). Subsequent actions concerning the conditions of approval and

program amendments can be found at 30 CFR 904.12, 904.15, and 904.16.

II. Description of the Proposed Amendment

By letter dated November 24, 1997 (Administrative Record No. AR-

560), Arkansas submitted a proposed amendment to its program pursuant

to SMCRA. Arkansas submitted the proposed amendment at its own

initiative. Arkansas proposes to amend the Arkansas Surface Coal Mining

and Reclamation Code to include revegetation success standards at

section 816.116. Arkansas also submitted copies of the parts of the

United States Department of Agriculture, Natural Resources Conservation

Service (NCRS) Arkansas Field Office Technical Guide to which the

proposed amendment refers. The full text of the proposed program

amendment and the parts of the Technical Guide submitted by Arkansas

are available for public inspection at the locations listed above under

ADDRESSES. A brief discussion of the proposed amendment is presented

below.

1. ASCMRC Subsection 816.116(a) General Revegetation Success Standards

Field Office Technical Guide to which the

proposed amendment refers. The full text of the proposed program

amendment and the parts of the Technical Guide submitted by Arkansas

are available for public inspection at the locations listed above under

ADDRESSES. A brief discussion of the proposed amendment is presented

below.

1. ASCMRC Subsection 816.116(a) General Revegetation Success Standards

Arkansas proposes to delete existing paragraph (1) and redesignate

existing paragraph (2) as (1). Arkansas also proposes to revise the

second sentence of redesignated paragraph (1) to read, ``Ground cover,

production, or stocking shall be considered equal to the approved

success standard when they are not less than 90 percent of the success

standards in paragraphs (b)(1), and (2) of this section.''

2. ASCMRC Subsection 816.116(b)(1) Revegetation Success Standards for

Areas Developed for Use as Grazing and Pasture Land

Arkansas proposes to delete the existing language at subsection

816.116(b)(1) and replace it with the following language:

(1) Areas developed for use as a grazing land or pasture land

shall be maintained using proper management practice as set forth in

the United States Department of Agriculture, Natural Resources

Conservation Service (NRCS) Arkansas Field Office Technical Guide

Section IV, Codes 342, 510, and 512) and this subsection until the

end of the responsibility period. Production for proof of

productivity purposes shall be initiated within five years after

completion of backfilling and final grading; and (i) The ground

cover and production of living plants on the revegetated area shall

be at least equal to that of a reference area, except for erosion

control devices and other structure (i.e., levees, ditches,

waterways, impounding structures, etc.)

period. Production for proof of

productivity purposes shall be initiated within five years after

completion of backfilling and final grading; and (i) The ground

cover and production of living plants on the revegetated area shall

be at least equal to that of a reference area, except for erosion

control devices and other structure (i.e., levees, ditches,

waterways, impounding structures, etc.). The productivity and ground

cover figures shall have a 90-percent statistical confidence (i.e.,

one-sided test with a 0.10 alpha error) derived from any two years

of the five year responsibility period prior to release of the

performance bond, except for the first year; or (ii) When no

reference area is employed, productivity success [tons of grass,

animal unit months (A.U.M.), and/or legumes per acre, etc.], except

for erosion control devices and other structures (i.e., levees,

ditches, waterways, impounding structures, etc.), shall be

considered successful if it is 90 percent of the predicted yields

under improved management established by the NRCS's respective

county District Conservationist, County Soil Manual, and/or Soil

Survey Database for the vegetation type(s) planted on the soil

series present before the area was disturbed. Ground cover shall be

considered successful if it is 90 percent. The productivity and

ground cover figures shall have a 90-percent statistical confidence

(i.e., one-sided test with a 0.10 alpha error) derived from any two

years of the five responsibility period prior to release of the

performance bond, except for the first.

3. ASCMRC Subsection 816.116(b)(2) Proof of Productivity Standards for

Area Developed for Use as Cropland

Arkansas proposes to delete the existing language at subsection

816.116(b)(2) and replace it with the following language:

one-sided test with a 0.10 alpha error) derived from any two

years of the five responsibility period prior to release of the

performance bond, except for the first.

3. ASCMRC Subsection 816.116(b)(2) Proof of Productivity Standards for

Area Developed for Use as Cropland

Arkansas proposes to delete the existing language at subsection

816.116(b)(2) and replace it with the following language:

(2) For those areas developed for use as cropland, production

for proof of productivity purposes shall be initiated within ten

years after completion of backfilling and final grading, and (i)

Production on the revegetated areas shall be at least equal to that

of a reference area, except for erosion control devices and other

structures (i.e., levees, ditches, waterways, impounding structures,

etc.) With a 90-percent statistical confidence (i.e., one-sided test

with a 0.10 alpha error) for a minimum of any two crop years of ten

year responsibility period prior to release of the performance bond,

except the first year of the five year responsibility period; or

(ii) When no reference area is employed, 90 percent of that crop

production established in NRCS's respective county District

Conservationist, County Soil Survey Manual, and/or the Soil Survey

Database for the soil series present prior to disturbance with a 90-

percent statistical confidence (i.e., one-sided test with a 0.10

alpha error) for a minimum of any two crop years of a ten year

responsibility period prior to release of the performance bond,

except the first year of the five year responsibility period. (iii)

During the extended five year responsibility period, erosion from

cropland must be minimized using equivalent or better management

practices than surrounding unmined cropland. The five responsibility

period shall begin after the last year of augmented seeding,

fertilizing, or soil treatment and at the time of the planting of

the crop(s) to be grown for the productivity showing or crops grown

in rotation.

tended five year responsibility period, erosion from

cropland must be minimized using equivalent or better management

practices than surrounding unmined cropland. The five responsibility

period shall begin after the last year of augmented seeding,

fertilizing, or soil treatment and at the time of the planting of

the crop(s) to be grown for the productivity showing or crops grown

in rotation.

4. ASCMRC Subsection 816.116(b)(3) Revegetation Success Standards for

Areas to be Developed for Fish and Wildlife Habitat

At existing subsection 816.116(b)(3), Arkansas proposed to delete

the language, ``success of vegetation shall be determined on the basis

of tree and shrub stocking and vegetative ground cover. Such parameters

are described as follows:''

Arkansas proposes to redesignate existing paragraphs

816.116(b)(3)(i), (ii), and (iii), as 816.116(b)(3)(i)(A), (B), and

(C), respectively, and to add the following language at proposed new

paragraph 816.116(b)(3), ``Success of vegetation shall be determined on

the basis of tree and shrub stocking and vegetative ground cover using

proper management practices set forth in the NRCS's Arkansas Field

Office Technical Guide (Section IV, Codes 612, and 645) and such

parameters described as follows:''

5. ASCMRC Subsection 816.116(b)(4) Revegetation Success Standards for

Areas to be Developed for Industrial, Commercial, or Residential Use

Arkansas proposes to revise subsection 816.116(b)(4) by adding the

phase, ``and shall not be less than 70 percent.''

6. ASCMRC Subsection 816,116(b)(5) Revegetation Success for Areas

Previously Disturbed by Mining

Arkansas proposes to revise subsection 816.116(b)(5) to require

that vegetative ground cover shall not be less than the greater 70

percent or the percentage of the ground cover existing before

redisturbance, and shall be adequate to control erosion during the last

year of responsibility.

7. ASCMRC Subsection 816.116(b)(6) Revegetation Success for Non-

contiguous Areas

ly Disturbed by Mining

Arkansas proposes to revise subsection 816.116(b)(5) to require

that vegetative ground cover shall not be less than the greater 70

percent or the percentage of the ground cover existing before

redisturbance, and shall be adequate to control erosion during the last

year of responsibility.

7. ASCMRC Subsection 816.116(b)(6) Revegetation Success for Non-

contiguous Areas

Arkansas proposes to add a new subsection at 816.116(b)(6) as

follows:

Non-contiguous areas less than or equal to four acres which we

disturbed from activities such as, but no limited to, signs,

boreholes, power poles, stockpiles and substations shall

be considered successfully revegetated if the operator can

demonstrate the soil disturbance was minor, i.e., the majority of

the subsoil remains in place, the soil has been returned to its

original capability and the area is supporting its approved

postmining use at the end of the responsibility period.

8. ASCMRC Subsection 816.116(c) Vegetative Ground Cover Measurement

Technique

Arkansas proposes to redesignate existing (c) as (d), and replace

it with new subsection (c) as follows:

(c) Vegetative ground cover shall be measured by the following

technique: (1) Ten (10) random points shall be identified in the

area to be tested. (2) A twenty (20) foot engineer's tape shall be

extended directly south of each point. If the tape extends beyond

the boundary of the area to be tested or extends into an area where

herbaceous ground cover has been controlled with herbicides to

minimize competition with woody plants, the tape shall be rotated in

ninety (90) degree increments until the entire twenty (20) foot

length is within the boundary of the area to be tested or area not

treated with herbicides. (3) A measurement shall be taken at each

two: tenths (0.2) foot increment directly above or below the tape

herbaceous ground cover has been controlled with herbicides to

minimize competition with woody plants, the tape shall be rotated in

ninety (90) degree increments until the entire twenty (20) foot

length is within the boundary of the area to be tested or area not

treated with herbicides. (3) A measurement shall be taken at each

two: tenths (0.2) foot increment directly above or below the tape. A

Ground cover shall be determined to be present if any vegetation

identified in the NRCS's Arkansas Field Office Technical Guide

(Section IV, Codes 342, 510, and 512) and the approved reclamation

plan, including ten percent (10%) site-produced litter and/or other

desirable annual species described in (Section IV, Code 342, Table

2) is measured at the increment. (5) A percentage of ground cover

shall be established for the area tested by taking the total number

of measurements where ground cover was determined to be present.

9. ASCMRC Subsection 816.116(d) Period of Extended Responsibility for

Revegetation Success

Arkansas proposes to revise redesignated subsection 816.116(d) by

deleting (d)(3) and by making non-substantive language changes and

paragraph notation changes to reflect the revisions made by this

amendment.

10. ASCMRC Subsection 816.116(e) Selective Husbandry Practices

Arkansas proposes to add new subsection (e) as follows:

(e) Selective husbandry practices which will not extend the

period of responsibility for revegetative success and bond

liability, if such practices can be expected to continue as part of

the postmining land use or if discontinuance of the practices after

the liability period expires sill not reduce the probability of

permanent revegetative success, include: (1) Augmented seeding,

fertilization, liming, mulching, mowing, or irrigation; (2)

Temporary erosion control structures such as silt fencing, straw, or

hay bale dikes; (3) Practices such as disease, pest, and vermin

control; and any pruning, reseeding and/or transplanting

specifically necessitated by such

iod expires sill not reduce the probability of

permanent revegetative success, include: (1) Augmented seeding,

fertilization, liming, mulching, mowing, or irrigation; (2)

Temporary erosion control structures such as silt fencing, straw, or

hay bale dikes; (3) Practices such as disease, pest, and vermin

control; and any pruning, reseeding and/or transplanting

specifically necessitated by such action; (4) Land smoothing and

reseeding, provided the cumulative acreage is no greater than ten

percent (10%) of the disturbed area of the permit; (5) Rip-rap

repair and maintenance; (6) Terrace repair and maintenance; (7) Rill

and gully repair on noncropland-capable or cropland-capable

reclaimed land will be considered a husbandry practice if an

operator has an approved erosion control plan in place in the field,

and shortly after the first rainfall event after the repair, the

Department makes the following determination: (i) The area is a

minor erosional feature; (ii) The area is small; (iii) The erosion

is not expected to recur; and (iv) The area is stable. The

Department shall notify the permittee in writing whether on not a

repair is an augmentation. Such written notice shall be in the form

of an inspection report or other document issued by the Department.

III. Public Comment Procedures

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 Arkansas 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.

Public Hearing

mments

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.

Public Hearing

Persons wishing to speak at the public hearing should contact the

person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,

c.s.t. on January 26, 1998. The location and time of the hearing will

be arranged with those persons requesting the hearing. Any disabled

individual who has need for a special accommodation to attend a public

hearing should contact the individual listed under FOR FURTHER

INFORMATION CONTACT. If no one requests an opportunity to speak at the

public hearing, the hearing will not be held.

Filing of a written statement at the time of the hearing is

requested. Submission of written statements in advance of the hearing

will allow OSM officials to prepare adequate responses and appropriate

questions. The public hearing will continue on the specified date until

all persons scheduled to speak have been heard. Persons in the audience

who have not been scheduled to speak, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to speak and persons present in the

audience who wish to speak have been heard.

Public Meeting

. The public hearing will continue on the specified date until

all persons scheduled to speak have been heard. Persons in the audience

who have not been scheduled to speak, and who wish to do so, will be

heard following those who have been scheduled. The hearing will end

after all persons scheduled to speak and persons present in the

audience who wish to speak have been heard.

Public Meeting

If only one person requests an opportunity to speak at a hearing, a

public meeting, rather than a public hearing, may be held. Persons

wishing to meet with OSM representatives to discuss the proposed

amendment may request a meeting by contacting the person listed under

FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the

public and, if possible, notices of meetings will be posted at the

locations listed under ADDRESSES. A written summary of each meeting

will be made a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866

This 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

form) 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 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

e 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 904

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 31, 1997

Brent Wahlquist,

Regional Director, Mid-Continent Regional Coordinating Center.

[FR Doc. 98-530 Filed 1-8-98; 8:45 am]

BILLING CODE 4310-05-M