2512 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

Instructions

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Notice

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[FR Doc. 95–472 Filed 1–9–95; 8:45 am]

BILLING CODE 6732–01–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 936

Oklahoma Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule, approval of

amendment.

SUMMARY: OSM is approving, with

additional requirements, a 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).

Oklahoma proposed to amend its

program by revising its Bond Release

Guidelines that include revegetation

success standards and statistically valid

sampling techniques, and guidelines for

phase I, II, and III bond release.

Oklahoma proposed revisions

pertaining to ground cover;

requirements for permanent

impoundments, ponds, diversions, and

treatment facilities; calculations for a

technical success standard for

productivity; criteria regarding the

selection of test plots for demonstrating

success of productivity on prime

farmland cropland; the definition of

‘‘initial establishment of permanent

vegetative cover;’’ the repair of rills and

gullies as a normal husbandry practice;

a technical document reference; and the

correction of certain typographical

errors. The amendment is intended to

revise the Oklahoma program to be

consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: January 10, 1995.

FOR FURTHER INFORMATION CONTACT:

James H. Moncrief, Telephone: (918)

581–6430.

SUPPLEMENTARY INFORMATION:

I. Background on the Oklahoma

Program

On January 19, 1981, the Secretary of

the Interior conditionally approved the

Oklahoma program. General background

information on the Oklahoma program,

including the Secretary’s findings, the

disposition of comments, and the

conditions of approval of the Oklahoma

program can be found in the January 19,

1981, Federal Register (46 FR 4902).

Subsequent actions concerning

Oklahoma’s program and program

amendments can be found at 30 CFR

936.15, 936.16, and 936.30.

II. Submission of Amendment

On February 17, 1994, Oklahoma

submitted a proposed amendment to its

program pursuant to SMCRA

(administrative record No. OK–959.01).

Oklahoma submitted the proposed

amendment with the intent of revising

the State program to be consistent with

the corresponding Federal standards.

Oklahoma submitted the proposed

amendment, in part, in response to

required program amendments at 30

CFR 936.16 (a) through (i) and, in part,

at its own initiative.

Oklahoma proposed to amend the

Bond Release Guidelines that are

referenced in Oklahoma Administrative

Code (OAC) 460:20–43–46(a)(1) and

460:20–45–46(a)(1). Specifically,

Oklahoma proposed to revise the Bond

Release Guidelines at subsection I.E.3.b

to require ground cover sufficient to

control erosion for approved

commercial or industrial land uses;

subsection I.F.3.d to require, on areas

previously disturbed by mining, that

ground cover be at least 70 percent and

sufficient to control erosion; subsection

I.F.5.b to require that water discharged

from permanent impoundments, ponds,

diversions, and treatment facilities shall

meet water quality effluent limitations;

subsections II.B.2.d and III.B.2.d to

reference Appendix O for the method

for calculating a technical success

standard for productivity on,

respectively, pastureland and grazing

land; subsection V.B.2.c to reference

Appendix P for the method for

calculating a technical success standard

for productivity of row crops on prime

farmland cropland; subsection V.B.2.d

to add criteria regarding the selection of

test plots for demonstrating success of

productivity on prime farmland

cropland; subsection V.B.2.e to

reference Appendix O for the method

for calculating a technical success

standard for productivity of grain or hay

crops on prime farmland cropland;

subsection VI.B.2.e to reference

Appendices P and Q for the methods for

calculating technical success standards

for productivity of, respectively, row

crops and grain or hay crops on

nonprime farmland cropland; Appendix

A to add the definition of ‘‘initial

establishment of permanent vegetative

cover;’’ Appendices J and P to correct

typographical errors; and Appendix V,

to add a technical document reference.
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2513

In addition, Oklahoma submitted a

letter, dated February 1, 1994, from the

U.S. Soil Conservation Service (SCS)

that was intended to provide

concurrence with Appendix R

concerning the repair of rills and gullies

as a normal husbandry practice.

OSM published a notice in the March

8, 1994, Federal Register (59 FR 10770)

announcing receipt of the amendment

and inviting public comment on its

adequacy (administrative record No.

OK–959.06). The public hearing,

scheduled for April 4,1994, was not

held because no one requested an

opportunity to testify.

During its review of the amendment,

OSM identified concerns with

Oklahoma’s proposed revisions to the

Bond Release Guidelines. Specifically,

OSM identified concerns relating to (1)

sections I.E.3, I.F.3, II.A, and III.A, the

need to establish a method to determine

revegetation success standards for

diversity, seasonality, permanence, and

regeneration; (2) Appendix O, the

method for calculating a technical

productivity standard for success of

revegetation on soils reclaimed for use

as pastureland, grazingland, and grain

and hay cropland on both prime and

nonprime farmland; (3) subsection

V.B.2.d, phase II bond release

requirements for the use of test plots to

demonstrate productivity on reclaimed

prime farmland; and (4) Appendix R,

the repair of rills and gullies as a normal

husbandry practice. In addition, OSM

identified certain editorial concerns

relating to (1) subsection I.F.5.b, phase

III bond release requirements for

permanent drainage control facilities;

(2) subsection V.B.2.e, the reference to

Appendix O for the method to calculate

a technical productivity standard on

prime farmland for phase II bond

release; and (3) Appendix J, the example

calculation for a minimum adequate

sample size. OSM notified Oklahoma of

these concerns by letter dated May 20,

1994 (administrative record No. OK–

959.10).

Oklahoma responded in a letter dated

July 21, 1994, by submitting a revised

amendment and additional explanatory

information (administrative record No.

OK–959.11).

Based upon the revisions to and

additional explanatory information for

the proposed program amendment

submitted by Oklahoma, OSM reopened

the public comment period in the

August 9, 1994, Federal Register (59 FR

40505; administrative record No. OK–

959.16). The public comment period

closed on August 24, 1994.

By letter dated September 2, 1994

(administrative record No. OK–959.19),

Oklahoma, and in response to an August

29, 1994, comment letter from SCS

(administrative record No. OK–959.18),

submitted a revised amendment.

Oklahoma proposed revisions to the

Bond Release Guidelines in Appendices

A, F, and O, concerning, respectively,

the definition of ‘‘productivity,’’ the

method of sampling for production on

pastureland and grazingland, and the

methods for calculating a technical

standard for productivity on lands

reclaimed for use as pastureland and

grazingland.

Based upon these revisions to the

proposed amendment submitted by

Oklahoma, OSM reopened the public

comment period in the September 27,

1994, Federal Register (59 FR 49222;

administrative record No. OK–959.22).

The public comment period closed on

August 12, 1994.

III. Director’s Findings

Set forth below, pursuant to SMCRA

and the Federal regulations at 30 CFR

732.15 and 732.17, are the Director’s

findings for the proposed amendment

submitted by Oklahoma on February 17,

1994, as revised by it on July 21 and

September 2, 1994.

1. Nonsubstantive Revisions to the Bond

Release Guidelines

Oklahoma proposed, as State

initiatives, revisions to the following

previously-approved provisions of the

Bond Release Guidelines that are

nonsubstantive in nature and consist of

minor editorial changes (corresponding

Federal provisions are listed in

parentheses):

Appendix J, Calculation of Minimum

Adequate Sample Size (30 CFR 816.116(a)(2)

and 817.116(a)(2)), correction of

typographical errors in example calculations,

and

Appendix V, References Cited (30 CFR

816.116(a)(2) and 817.116(a)(2)), addition of

a reference to Vogel, Willis G., 1987, A

Manual for Training Reclamation Inspectors

in the Fundamentals of Soils and

Revegetation.

Because the proposed revisions to

these previously-approved provisions

are nonsubstantive in nature, the

Director finds that these proposed

revisions in Appendices J and V are no

less effective than the Federal

regulations. The Director approves these

proposed revisions.

2. Substantive Revisions to Oklahoma’s

Bond Release Guidelines

a. Subsection I.E.3.b, Phase II bond

release requirements for ground cover

on all land uses. At 30 CFR 936.16(a),

OSM required that Oklahoma revise

subsection I.E.3.b to clarify that, in cases

of approved commercial or industrial

land uses, ground cover must be

sufficient to control erosion (finding No.

2, 58 FR 64374, 64376, December 7,

1993).

Oklahoma proposed to revise

subsection I.E.3.b in the Bond Release

Guidelines to add the requirement that,

on areas with an approved industrial or

commercial postmining land use,

ground cover must be sufficient to

control erosion.

The Federal regulations at 30 CFR

816.116(b)(4) and 817.116(b)(4) require

that the vegetative ground cover shall

not be less than that required to control

erosion on areas to be developed for an

industrial, commercial, or residential

land use.

The Director finds that Oklahoma’s

revision of subsection I.E.3.b in the

Bond Release Guidelines is no less

effective than the Federal regulations at

30 CFR 816.116(b)(4) and 817.116(b)(4).

The Director approves the proposed

revision at subsection I.E.3.b and

removes the required amendment at 30

CFR 936.16(a).

b. Subsection I.F.3.d, Phase III bond

release requirements for ground cover

on areas previously disturbed by

mining, and sections VII.A and VII.B,

phase II and III bond release

requirements for ground cover on areas

developed for commercial, industrial, or

residential use. At 30 CFR 936.16(b),

OSM required that Oklahoma revise

subsection I.F.3.d to require, prior to

phase III bond release on previously

mined areas (areas that were not

reclaimed to the requirements of the

permanent regulatory program

regulations and that were remined or

otherwise disturbed by mining), that

vegetative ground cover shall not be less

than the ground cover existing before

redistrubance (finding No. 3, 58 FR

64374, 64377, December 7, 1993).

Oklahoma proposed to revise

subsection I.F.3.d. in the Bond Release

Guidelines to require that the ground

cover on reclaimed areas that had been

previously disturbed by mining cannot

be less than the ground cover existing

prior to redisturbance. Oklahoma also

proposed to revise subsection I.F.3.d. to

require that, if the ground cover prior to

redisturbance was less than 70 percent,

the ground cover on the reclaimed area

must be at least 70 percent vegetation

and must be sufficient to control

erosion. In effect, Oklahoma proposed

that the ground cover, on reclaimed

areas that had been previously disturbed

by mining, cannot be less than 70

percent, must be equal to or greater than

the pre-existing ground cover if it was

more than 70 percent, and must be

sufficient to control erosion.

The Federal regulations at 30 CFR

816.116(b)(5) and 817.116(b)(5) require
2514 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

on previously mined areas that the

reclaimed vegetative ground cover must

(1) not be less than the ground cover

existing before redisturbance and (2) be

adequate to control erosion.

With the exception of a minimum

requirement that ground cover must be

at least 70 percent, Oklahoma’s

proposed revisions are substantively

identical to the Federal regulations at 30

CFR 816.116(b)(5) and 817.116(b)(5).

Oklahoma’s proposed requirement that

the ground cover on the reclaimed area

must be at least 70 percent vegetation

has no counterpart in the Federal

regulations. However, this proposed

requirement is not inconsistent with the

Federal regulations and, in those cases

where the ground cover of the

previously disturbed area was less than

70 percent and was sufficient to control

erosion, provides for a greater degree of

revegetation of previously mined areas

than do the Federal regulations.

Therefore, the Director finds that

Oklahoma’s proposed revisions of

subsection I.F.3.d in the Bond Release

Guidelines are no less effective than the

Federal regulations at 30 CFR

816.116(b)(5) and 817.116(b)(5). The

Director approves the proposed

revisions and removes the required

amendment at 30 CFR 936.16(b).

Oklahoma also required at sections

VII.A and B, for phase II and III bond

release on areas developed for

commercial, industrial, or residential

land use, that the ground cover must be

sufficient to control erosion. Oklahoma

indicated parenthetically that the

ground cover standard would be 70

percent. Oklahoma, at OAC 460:20–43–

43(a)(4) and 460:20–45–43(a)(4), and

OAC 460:20–43–46(b)(5) and 460:20–

45–46(b)(5) require respectively that (1)

ground cover for all land uses be

capable of stabilizing the soil surface

from erosion and (2) ground cover be

not less than that required to control

erosion for areas with an approved

industrial, commercial, or residential

land use. Therefore, OSM interprets

Oklahoma’s parenthetical indication

that there must be 70 percent ground

cover on land developed for

commercial, industrial, or residential

use to be a minimum standard that must

be increased if it is insufficient to

control erosion.

c. Subsection I.F.5.b, Phase III bond

release requirements for permanent

drainage control facilities. At 30 CFR

936.16(d), OSM required that Oklahoma

revise subsection I.F.5.b to require that

water discharged from permanent

impoundments, ponds, diversions, and

treatment facilities meet applicable

water quality effluent limitations in

addition to not degrading the quality of

receiving water below applicable water

quality standards (finding No. 5, 58 FR

64374, 64378, December 7, 1993).

Oklahoma proposed to revise

subsection I.F.5.b in the Bond Release

Guidelines to require that water

discharged from permanent

impoundments, ponds, diversions, and

treatment facilities shall meet applicable

water quality effluent limitations and

not degrade the quality of receiving

waters to less than the water quality

standards pursuant to applicable State

and Federal laws.

The Federal regulations at 30 CFR

816.49(b)(2) and 817.49(b)(2) require for

permanent impoundments that the

quality of impounded water will meet

applicable State and Federal water

quality standards, and discharges will

meet applicable effluent limitations and

will not degrade the quality of receiving

water below applicable State and

Federal water quality standards.

The Director finds that Oklahoma’s

proposed revisions of subsection I.F.5.b

in the Bond Release Guidelines are

substantively identical to and no less

effective than the Federal regulations at

30 CFR 816.49(b)(2) and 817.49(b)(2).

Therefore, the Director approves the

proposed revisions and removes the

required amendment at 30 CFR

936.16(d).

d. Subsections II.B.2.d, III.B.2.d, and

V.B.2.c, Phase III bond release

requirements for productivity on

pastureland, phase III bond release

requirements for productivity on

grazingland, and phase II bond release

requirements for productivity on prime

farmland cropland. At 30 CFR 936.16(f),

OSM required that Oklahoma revise

subsections II.B.2.d, III.B.2.d, and

V.B.2.c to state that productivity

standards proposed by an applicant that

are not calculated using the method

described in Appendix O must be

approved by both Oklahoma and OSM

(finding No. 6.b, 58 FR 64374, 64378,

December 7, 1993).

Oklahoma proposed to revise

subsections II.B.2.d and III.B.2.d in the

Bond Release Guidelines to require that,

when a reference area is not used, a

technical success standard for

productivity on pastureland and

grazingland be calculated by using the

method described in Appendix O.

Oklahoma also proposed to revise

subsection V.B.2.c in the Bond Release

Guidelines to require that, when a

reference area is not used, a technical

success standard for productivity on

prime farmland cropland be calculated

by using the method described in

Appendix O.

The Federal regulations at 30 CFR

816.116(a)(1) and 817.116(a)(1) require

that standards for revegetation success

shall be selected by the regulatory

authority and included in an approved

regulatory program. OSM previously

approved the methods for calculating

technical success standards for

productivity in Appendix O in the Bond

Release Guidelines.

By referencing Appendix O in

subsections II.B.2.d, III.B.2.d, and

V.B.2.c, Oklahoma has, in effect, limited

technical success standards for

productivity on pastureland,

grazingland, and prime farmland

cropland to only those standards

calculated using the methods described

in Appendix O.

Because Oklahoma no longer allows

unspecified methods that OSM would

not have an opportunity to approve, and

because OSM previously approved

Appendix O, the Director finds that the

proposed revisions of subsections

II.B.2.d, III.B.2.d, and V.B.2.c in the

Bond Release Guidelines are no less

effective than the Federal regulations at

30 CFR 816.116(a)(1) and 817.116(a)(1).

The Director approves the proposed

revisions and removes the required

amendment at 30 CFR 936.36(f).

e. Subsections IV.A.1.a and b and

Sections VII.A and B, Phase III bond

release requirements for diversity,

seasonality, permanence, and

regeneration. At 30 CFR 936.16(c), OSM

required that Oklahoma revise the Bond

Release Guidelines to identify the

revegetation success standards and

sampling methods for diversity,

seasonality, permanence, and

regeneration that will be applied for all

land uses prior to phase III bond release

(finding No. 1.a, 58 FR 64374, 64375,

December 7, 1993).

Oklahoma proposed to revise

subsections IV.A.1.a and b, and sections

VII.A and B in the Bond Release

Guidelines, to require, prior to phase II

and III bond release on reclaimed areas

with a designated land use of forestry,

wildlife habitat, recreation, industrial,

commercial, or residential, that the

bond release areas must meet permitspecific standards for diversity,

seasonality, permanence, and

regeneration.

For phase II bond release on

pastureland and grazingland,

subsections II.A.1.g and III.A.1.g in the

Bond Release Guidelines require that

perennial species not listed in the

approved reclamation plan (but

approved by Oklahoma as desirable and

compatible with the postmining land

use) cannot exceed 20 percent of total

ground cover with no more than 5

percent ground cover by any one of

these species. Subsections II.A.1.f and

III.A.1.f in the Bond Release Guidelines
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2515

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 in the

Bond Release Guidelines refer the

reader to the phase II standards.

As discussed above, Oklahoma does

require, for phase II and III bond release

on pastureland and grazingland,

standards which reflect permanence,

seasonality, and regeneration on

pastureland and grazingland. However,

Oklahoma has not revised the Bond

Release Guidelines to address how it

would evaluate the reclaimed area for

diversity of permanent species prior to

phase III bond release on pastureland

and grazingland.

The Federal regulations at 30 CFR

816.116(a) and 817.116(a) require that

the success of revegetation shall be

judged on, among other things, the

requirements of 30 CFR 816.111 and

817.111. The Federal regulations at 30

CFR 816.116(a)(1) and 817.116(a)(1)

require that all success standards and

sampling techniques must be included

in an approved regulatory program.

Therefore, success standards and

sampling techniques must incorporate

the various requirements at 30 CFR

816.111 and 817.111 and be approved

by OSM. The Federal regulations at 30

CFR 816.111 and 817.111 require,

among other things, that a permittee

establish where appropriate a vegetative

cover that is diverse, effective, and

permanent (referred to as diversity and

permanence). The Federal regulations at

30 CFR 816.111 and 817.111 also

require a permittee to reestablish plant

species that have the same seasonal

characteristics of growth as the original

vegetation and are capable of selfregeneration and plan succession

(referred to as seasonality and

regeneration).

Standards reflecting diversity,

seasonality, permanence, and

regeneration on areas with designated

land uses of forestry, fish and wildlife

habitat, commercial, industrial, and

recreation are appropriately addressed

on a permit-specific basis, as proposed

by Oklahoma, because the standards

will vary with the actual needs specific

to the area being reclaimed. For

example, there may be no need for a

diversity standard for an area to

reclaimed to an industrial, commercial,

or residential land use where

reclamation will probably employ a

single-species ground cover established

for erosion control, but there may be a

need for a significant diversity/

seasonality standard for an area to be

reclaimed to as a wildlife habitat

targeted for specific wildlife species.

Therefore, with respect to areas

designated for use as forestry, wildlife

habitat, recreation, industrial,

commercial, or residential, the Director

finds that the proposed revisions at

subsections IV.A.1.a and b, and sections

VII.A and B in the Bond Release

Guidelines are no less effective than the

Federal regulations at 30 CFR

816.116(a), 817.116(a), 816.111, and

817.111, and approves them.

With respect to areas designated for

use as pastureland and grazingland, the

Director finds that the Bond Release

Guidelines are less effective than the

Federal regulations at 30 CFR

816.116(a), 817.116(a), 816.111, and

817.111 because Oklahoma has not

addressed how it will evaluate the

reclaimed area for diversity of

permanent species prior to phase III

bond release. Therefore, the Director is

revising the required amendment at 30

CFR 936.16(c) to require that Oklahoma

revise sections II.B and III.B in the Bond

Release Guidelines to address how it

will evaluate diversity prior to phase III

bond release on areas designated for use

as pastureland and grazingland.

f. Subsections V.B.2.d and V.B.2.e,

Phase II bond release requirements for

the use of test plots to demonstrate

productivity on reclaimed prime

farmland cropland. At 30 CFR

936.16(g), OSM required that Oklahoma

revise subsection V.B.2.d to either

remove the allowance for the use of test

plots as a means of demonstrating

productivity success on prime

farmlands, or submit a method for

demonstrating that the test plots would

be representative at a 90-percent

statistical confidence level of the total

reclaimed prime farmland bond release

area. OSM also required Oklahoma to

consult with SCS for the proposed

method and to document this

consultation (finding No. 6.c, 58 FR

64374, 64379, December 7, 1993).

Oklahoma, at OAC 460:20–43–46(c)(2)

and 460:20–45–46(c)(2), requires that

the measurement period for determining

revegetation success of cropland exceed

the approved standards any 2 years of

the responsibility period, except the

first year. Oklahoma’s Bond Release

Guidelines at subsection V.B.2.a and

OAC 460:20–49–8(b)(3) require, for

phase II bond release on reclaimed

prime farmland, that the measurement

period for determining the average

annual crop production be a minimum

of 3 crop years. OSM interprets

Oklahoma’s rules and Bond Release

Guidelines to require, for phase II bond

release on reclaimed prime farmland,

that a permittee demonstrate success of

productivity with 3 years of crop

production during the responsibility

period, except the first year.

Subsection V.B.2.d provides for the

use of test plots, as an alternative to use

of the total reclaimed area, for

measuring the success of productivity

on prime farmlands. Oklahoma

proposed to revise subsection V.B.2.d to

require that selected test plots must be

representative of geology, soil, and slope

of the reclaimed prime farmland area,

and, if the test plots are not properly

managed during the liability period,

they will lose eligibility as a comparison

method.

Oklahoma also proposed to revise

section V.B.2 by adding a new

subsection V.B.2.e that sets forth criteria

that must be used to establish test plots

in the reclaimed bond release area. At

subsections V.B.2.e (1) through (4),

Oklahoma proposed to require the

following criteria:

(1) A contiguous prime farmland or

cropland area represents a single population,

test plots are selected at random throughout

the contiguous reclaimed area. Appendix C

[Methods of Randomized Selection of

Sampling Locations] provides methods of

selecting randomized sampling locations.

(2) Each test plot represents one sample.

Appendix Q [Minimum Sample Size for Row

Crops in Prime Farmland (or Nonprime

Farmland) Production Determination]

provides the minimum sample size formulas

for measuring row crops for production

standards on prime farmland.

(3) The size of the test plot should be based

on the sampling technique (i.e., hand

sampling, machine harvest, etc.) that will be

used to evaluate crop production. In

addition, the plots should be large enough so

that impact of any edge effect would be

avoided.

(4) The methods for measuring row crop

production on prime farmlands is shown in

Appendix P [Methods for Measuring Row

Crops in Prime Farmland (and Nonprime

Farmland) Production].

Oklahoma did not submit evidence of

consultation with SCS regarding the use

of test plots for measuring productivity

on prime farmland.

The Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) require

that reclaimed areas be managed in the

same manner as unmined lands with the

same land use in the region of the

reclaimed area. The Federal regulations

at 30 CFR 823.15(b)(2) require that soil

productivity shall be measured on a

representative sample or on all of the

mined and reclaimed prime farmland

area using the reference crop

determined under 30 CFR 823.15(b)(6),

and also require that a statistically valid

sampling technique at a 90-percent or
2516 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

greater statistical confidence level shall

be used as approved by the regulatory

authority in consultation with SCS.

The Director finds that Oklahoma’s

proposed requirements for the

management of test plots at subsection

V.B.2.d are substantively identical to

and no less effective than the

requirements of 30 CFR 816.116(a)(2)

and 817.116(a)(2). Because Oklahoma

proposed criteria for establishment of

test plots within the reclaimed area that

should ensure that the test plots will be

representative at a 90-percent statistical

confidence level of the total reclaimed

prime farmland bond release area, the

Director finds that subsections V.B.2.e

(1) through (4) are no less effective than

the requirements of 30 CFR 823.15(b)(2).

The Director approves the proposed

revisions at subsections V.B.2.d and

V.B.2.e (1) through (4).

However, because Oklahoma did not

submit evidence of consultation with

SCS as required by the Federal

regulations at 30 CFR 823.15(b)(2) for

development of statistically valid

sampling techniques used on reclaimed

prime farmlands, the Director is revising

the required amendment at 30 CFR

936.16(g) to require that 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 SCS regarding the use of test plots

as a statistically valid sampling

technique for demonstrating success of

productivity on prime farmlands.

g. Subsections V.B.2.f and VI.B.2.e,

Phase II bond release requirements for

productivity on prime farmland

cropland. At 30 CFR 936.16(e), OSM

required that Oklahoma revise

subsections V.B.2.e and VI.B.2.e to

reference Appendix O for the methods

to calculate the technical productivity

standards for hay crops on prime and

nonprime farmland cropland, and to

cite the reference for the methods for

calculating technical productivity

standards that are in Appendix O

(finding No. 6.a, 58 FR 64374, 64378,

December 7, 1993).

Oklahoma proposed to revise section

V.B.2 by adding a new paragraph (e) and

redesignating existing paragraph (e) as

(f) (see finding No. 2.f for a discussion

of new subsection V.B.2.e). Oklahoma

proposed to revise subsection V.B.2.f,

requirements for phase II bond release

on prime farmland cropland, by stating

that the method to calculate the

technical productivity standard for grain

or hay crops on prime farmland

cropland is in Appendix O. Oklahoma

proposed to revise subsection VI.B.2.e,

requirements for phase III bond release

on nonprime farmland cropland, by

stating that the method to calculate the

technical productivity standard for grain

or hay crops on nonprime farmland

cropland is in Appendix O (see finding

No. 2.h for discussion of an additional

proposed revision at subsection

VI.B.2.e). In addition, Oklahoma stated

in its transmittal letter for the proposed

amendment that the reference for the

methods for calculating technical

productivity standards in Appendix O is

the ‘‘Technical Guides on Use of

Reference Areas and Technical

Standards for Evaluating Surface Mine

Vegetation in OSM Regions I and II,’’

which is listed in the Bond Release

Guidelines in Appendix V.

The Federal regulations at 30 CFR

816.116(a)(1) and 817.116(a)(1) require

that standards for success and

statistically valid sampling techniques

for measuring success shall be selected

by the regulatory authority and included

in an approved regulatory program.

By clearly referencing Appendix O,

Oklahoma requires that a calculated

technical productivity standard be

calculated by the methods described in

Appendix O, and has therefore

proposed, in its regulatory program, an

alternative standard (to the standard

determined by a reference area) for

measuring success of revegetation on

prime and nonprime farmlands.

The Director finds that subsections

V.B.2.f and VI.B.2.e in the Bond Release

Guidelines are no less effective than the

Federal regulations at 30 CFR

816.116(a)(1) and 817.116(a)(1). The

Director approves the proposed

revisions of subsections V.B.2.f and

VI.B.2.e and removes the required

amendment at 30 CFR 936.16(e).

h. Subsection VI.B.2.e, Phase II bond

release requirements for productivity on

nonprime farmland cropland. Because

subsection VI.B.2.e pertains to

productivity on nonprime farmland

cropland, OSM required, at 30 CFR

936.16(h), that Oklahoma revise

subsection VI.B.2.e to change ‘‘prime

farmland cropland’’ to ‘‘nonprime

farmland cropland’’ when referencing

Appendix P for the methods to measure

row crop production (finding No. 6.d,

58 FR 64374, 64379, December 7, 1993).

Oklahoma proposed to revise

subsection VI.B.2.e in the Bond Release

Guidelines to state that the methods for

measuring row crop production on

nonprime farmland cropland are

described in Appendix P.

The Federal regulations at 30 CFR

816.116(a)(1) and 817.116(a)(1) require

that standards for success and

statistically valid sampling techniques

for measuring success shall be selected

by the regulatory authority and included

in an approved regulatory program.

By clarifying that the sampling

methods for measuring row crop

production on nonprime farmland

cropland are in Appendix P, Oklahoma

has proposed, in its regulatory program,

sampling methods for measuring

success of revegetation for nonprime

farmland cropland.

The Director finds that subsection

VI.B.2.e in the Bond Release Guidelines

is no less effective than the Federal

regulations at 30 CFR 816.116(a)(1) and

817.116(a)(1). The Director approves the

revision of subsection VI.B.2.e and

removes the required amendment at 30

CFR 936.16(h).

i. Appendix A, Definition of

‘‘productivity’’. Oklahoma previously

defined, in Appendix A, the term

‘‘productivity’’ to mean

[T]he amount of harvestable standing

biomass of desirable species. Standing

biomass is the aboveground living portion

and the attached litter portion of plants

produced within a given growing season.

Horizontal runners of stoloniferous plants are

also included.

(Emphasis added). Oklahoma proposed,

at its own initiative and in response to

an SCS comment, a revised definition of

‘‘productivity’’ to refer to ‘‘[t]he amount

of total standing biomass of desirable

species’’ (emphasis added).

There is no counterpart definition for

‘‘productivity’’ in the Federal

regulations; however, the Federal

regulations at 30 CFR 816.116(a)(2) and

817.116(a)(2) require that standards for

success shall include criteria

representative of unmined lands in the

area being reclaimed to evaluate the

appropriate vegetation parameters of

ground cover, production, or stocking.

Although not explicitly stated, the

production parameter must be

representative of the total productivity

the reclaimed soils were capable of

before mining. Oklahoma, by

substituting ‘‘total standing biomass’’ for

‘‘harvestable standing biomass,’’ has

proposed that the term ‘‘productivity’’

refers to the total productivity the

reclaimed soils were capable of before

mining.

The Director finds that Oklahoma’s

proposed definition of ‘‘productivity’’ in

Appendix A in the Bond Release

Guidelines is no less effective than the

Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) and

approves it.

j. Appendices A and R, Definition of

‘‘initial establishment of permanent

vegetative cover’’ and the ‘‘repair of rills

and gullies’’ as a normal husbandry

practice. At 30 CFR 936.16(i), OSM

required that Oklahoma revise

Appendix R to either remove any

reference to the proposed treatment of
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2517

rills and gullies as a normal husbandry

practice, or specify what constitutes

‘‘initial vegetation establishment’’ and

submit either the actual SCS guideline

described in Appendix R or a letter from

SCS to Oklahoma stating that the

practices described in Appendix R are

considered normal husbandry practices

for the repair of rills and gullies in the

State of Oklahoma (finding No. 7, 58 FR

64374, 64379, December 7, 1993).

Appendix R in Oklahoma’s Bond

Release Guidelines includes the

‘‘Guidelines for the Repair of Rills and

Gullies.’’ These guidelines require that

the repair of rills and gullies restart the

revegetation liability period unless the

occurrences and treatment of such rills

and gullies constitute a normal

conservation practice in the region.

Oklahoma sets forth in Appendix R

these normal conservation practices,

which are the treatment practices that

are considered the degree of

management customarily performed to

prevent exploitation, destruction, or

neglect of the soil resource and maintain

the productivity of the land use. In

Appendix R, Oklahoma requires that the

treatment of rills and gullies requiring

permanent reseeding of more than 10

acres in a contiguous block or 10

percent of a permit area initially seeded

during a single year shall be considered

an augmentative practice.

Oklahoma proposed to revise

Appendix R to require that any

treatment of rills and gullies after

‘‘initial establishment of permanent

vegetative cover’’ shall also be

considered an augmentative practice

that would restart the liability period. In

addition, Oklahoma proposed to revise

Appendix A in the Bond Release

Guidelines to define ‘‘initial

establishment of permanent vegetative

cover’’ to mean

[T]he time period between the bond

liability start date and final approval of the

Phase II bond release on the permit or

increment of the permit.

At section I.A.1 in the Bond Release

Guidelines, Oklahoma requires that the

liability period for revegetation success

on reclaimed lands begins with the

successful completion of initial planting

of all required permanent vegetation

species on a site. Therefore, Oklahoma

proposed to allow the repair of rills and

gullies without restarting the liability

period during the time period between

successful completion of initial planting

and initial establishment of permanent

vegetative cover. After phase II bond

release, any repair of rills and gullies in

the bond release area would be

considered an augmentative practice

that would restart the liability period.

The Federal regulations at 30 CFR

816.116(c)(4) and 817.116(c)(4) provide

that the regulatory authority may

approve selective husbandry practices

as normal husbandry practices

(excluding augmented seeding,

fertilization, or irrigation), provided it

obtains prior approval of these practices

from the Director of OSM in accordance

with 30 CFR 732.17. These practices can

be implemented as normal husbandry

practices without extending the period

of responsibility for revegetation 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 will not reduce

the probability of permanent

revegetation success. Approved

husbandry practices must be normal

husbandry practices within the region

for unmined lands having land uses

similar to the approved postmining land

use of the disturbed area, and include

such practices as disease, pest, and

vermin control, and any pruning,

reseeding, and transplanting specifically

necessitated by such actions.

Because Oklahoma has defined the

term ‘‘initial establishment of

permanent vegetative cover,’’ it is

possible to determine when an operator

must consider the repair of rills and

gullies an augmentative practice that

would restart the liability period.

Oklahoma also submitted, as part of

the Bond Release Guidelines a letter,

dated February 1, 1994, from the

Oklahoma State Office of SCS. In this

letter, SCS stated that

[W]e have reviewed the Oklahoma

Department of Mines proposed guidelines for

the repair of rills and gullies on reclaimed

mine land in Oklahoma. We believe these

guidelines are complete and adequate for

reclamation if they are followed by the

operator.

In addition, in a March 14, 1994,

letter to OSM (administrative record No.

OK–959–.07), SCS commented that

Appendix R represents normal practices

that would be used for gully control in the

State of Oklahoma.

Therefore, because Oklahoma has

adequately demonstrated that the

practices for the repair of rills and

gullies in Appendix R are supported by

SCS as an acceptable land management

technique for similar situations in the

State of Oklahoma, the Director finds

that Oklahoma’s proposal in Appendix

R for the repair of rills and gullies as a

normal husbandry practice is no less

effective than the Federal regulations at

30 CFR 816.116(c)(4) and 817.116(c)(4).

The Director approves the proposed

definition of ‘‘initial establishment of

permanent vegetative cover’’ in

Appendix A and, as specified in

Appendix R, the repair of rills and

gullies as a normal husbandry practice,

and removes the required amendment at

30 CFR 936.16(i).

k. Appendices F and O, Methods of

production sampling and methods for

calculation of technical productivity

standards on pastureland and

grazingland. Oklahoma presented, in

Appendix O, an example of the method

for calculating a technical productivity

standard using soil yield figures

expressed in animal unit months

(AUM’s) that are published in SCS

county soil surveys. This example

calculation was applicable to lands

reclaimed for use as pastureland and

grazingland.

In response to OSM’s May 20, 1994,

issue letter, Oklahoma proposed to

revise Appendix O to require the use of

SCS county survey soil supplements, if

available, and if not available, to use

SCS county soil surveys; and to include

a separate example calculation for a

technical productivity standard on

grazingland based on a direct

comparison for total productivity with

SCS soil productivity figures expressed

in pounds per acre (rather than AUM’s).

In response to SCS comments,

Oklahoma, at its own initiative,

proposed to further revise the Bond

Release Guidelines. Oklahoma revised

Appendix F, concerning the method of

production sampling, to (1) recommend

that pastureland or grazingland with a

predominance of warm season species

be clipped during September or October

and pastureland or grazingland with a

predominance of cool species be

clipped during May or June, and (2)

requires that all production samples be

clipped to ground level. Oklahoma also

proposed to further revise Appendix O,

concerning the methods of calculating

technical productivity standards on

pastureland and grazingland, to (1)

require that the SCS soil productivity

figure expressed in AUM’s be

multiplied by 1560 in the calculation for

a technical productivity standard on

pastureland, and (2) clarify that clipping

is a direct comparison using the

calculation for a technical productivity

standard on grazingland based on soil

productivity figures expressed in

pounds per acre.

The Federal regulations at 30 CFR

816.116(a)(1) and 817.116(a)(1) require

that standards for success and

statistically valid sampling techniques

for measuring success shall be selected

by the regulatory authority and included

in an approved regulatory program. The

Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) also
2518 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

require that standards for success shall

include criteria representative of

unmined lands in the area being

reclaimed to evaluate the appropriate

vegetation parameters of ground cover,

production, or stocking.

Oklahoma’s proposed revisions of

Appendices F and O will ensure that, on

land reclaimed for use as pastureland or

grazingland, the demonstration of

success of restored productivity, based

on technical standards derived from

SCS soil surveys, accurately represents

the productive potential of similar soils

in the region.

The Director finds that Oklahoma’s

proposed revisions of Appendices F and

O are no less effective than the Federal

regulations at 30 CFR 817.116(a) (1) and

(2) and 817.116(a) (1) and (2). The

Director approves them.

IV. Summary and Disposition of

Comments

1. Public Comments

OSM invited public comments on the

proposed amendment, but none were

received.

2. Agency Comments

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from various Federal

agencies with an actual or potential

interest in the Oklahoma program

(administrative record No. OK–960).

a. SCS. On March 14, 1994, SCS

responded with the following comments

(administrative record No. OK–959.07).

SCS (1) recommended that Oklahoma

use the terms ‘‘native grazingland’’ and

‘‘introduced grazingland’’ in place of the

terms ‘‘grazingland’’ and ‘‘pastureland;’’

(2) recommended revision of the

method described in Appendix O to

calculate a technical standard, for total

production on grazingland and

pastureland; and (3) stated that the

methods described for treatment of rills

and gullies in Appendix R represent

normal practices used for gully control

in the State of Oklahoma.

With respect to the recommendation

that Oklahoma use the terms

‘‘introduced grazingland’’ and ‘‘native

grazingland’’ in place of the terms

‘‘pastureland’’ and ‘‘grazingland,’’ the

Federal regulations at 30 CFR define (1)

‘‘pastureland’’ to mean land used

primarily for the long-term production

of adapted, domesticated forage plants

to be grazed by livestock or occasionally

cut and cured for livestock feed, and (2)

‘‘grazingland’’ to mean land used for

grasslands and forest lands where the

indigenous vegetation is actively

managed for grazing, browsing, or

occasional hay production. In addition,

Oklahoma’s rules at section 701.5

include definitions of ‘‘pastureland’’

and ‘‘grazingland’’ that are identical to

the Federal regulations. Oklahoma, in

Appendix O of the Bond Release

Guidelines, refers to ‘‘pastureland’’ and

‘‘grazingland’’ as, respectively,

improved pasture grasses and native

range grasses. Therefore, because

Oklahoma’s use of the terms

‘‘pastureland’’ and ‘‘grazingland’’ in the

Bond Release Guidelines is consistent

with and no less effective than the use

of these terms in Oklahoma rules and

the Federal regulations, the Director is

not requiring that Oklahoma revise the

amendment in response to this

comment.

With respect to the recommendation

that Oklahoma revise the method

described in Appendix O to calculate a

technical standard for total production

on grazingland and pastureland, OSM

required in its May 20, 1994, issue letter

that Oklahoma revise the method

described in Appendix O to accurately

represent the total productive potential

of soils based on SCS soil county survey

productivity figures expressed in

AUM’s. Oklahoma responded in its July

21, 1994, revised amendment with

explanatory information and revisions

to Appendix O that addressed OSM’s

issue letter with respect to the

calculation of a technical standard for

total production on grazingland.

However, in response to additional

August 29, 1994, SCS comments

concerning the calculation of a technical

standard for total production on

pastureland, Oklahoma, at its own

initiative, proposed further revisions to

Appendix O in its September 2, 1994,

revised amendment (see finding No.

2.K).

With respect to the comment that the

methods described for treatment of rills

and gullies in Appendix R represent

normal practices used for gully control

in the State of Oklahoma, the Director,

as discussed in finding No. 2.f above, is

approving the guidelines for repair of

rill and gullies in Appendix R as a

normal husbandry practice.

SCS also responded on August 29,

1994, with the following comments

(administrative record No. OK–959.18).

SCS again recommended, that because

both the terms ‘‘pastureland’’ and

‘‘grazingland’’ as used by Oklahoma in

Appendix O can mean grazingland,

Oklahoma use either ‘‘native

grazingland’’ or ‘‘rangeland’’ in place of

the term ‘‘grazingland.’’ As discussed

above, in response to a similar comment

made by SCS in its March 14, 1994,

letter, OSM is not requiring that

Oklahoma revise the Bond Release

Guidelines in response to this comment.

SCS recommended another means of

revising the method for calculating a

technical productivity figure on

pastureland in Appendix O of

Oklahoma’s Bond Release Guidelines.

SCS recommended revising Appendix O

to instruct the permittee to convert the

SCS soil survey AUM productivity

figure to an air-dried pounds of

production per acre figure. The

conversion would take into

consideration the 50 percent utilization

rate that is inherent in the AUM figure

by doubling the pounds of vegetation

consumed by one animal (780 pounds

per acre). That is the SCS AUM

productivity figure must be multiplied

by 1560 to convert it to a production

figure in pounds per acre. This

converted figure would reflect the total

soil production potential.

In addition, SCS recommended that

Oklahoma revise Appendix F to require

that each sample be clipped to the

ground and that the area be sampled

once in the spring for cool season

grasses and once in the fall for warm

season grasses. SCS also commented

that the native grass figures listed in an

SCS soil survey are direct production

figures and therefore, clipping on

grazingland will be a direct comparison.

In response to these SCS comments,

Oklahoma, at its own initiative, in its

September 2, 1994, submittal, revised,

as recommended by the SCS, (1)

Appendix F, concerning the method of

production sampling, and (2) Appendix

O, concerning the methods of

calculating technical productivity

standards on pastureland and

grazingland. As discussed in finding No.

2.k above, the Director is approving

Oklahoma’s proposed revisions of

Appendices F and O.

SCS commented that because of

variability in weather and soil

conditions, and interpolation of data,

that the applicable productivity levels

should be set at 90 percent of the yield

goal. The Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) and

Oklahoma’s rules at OAC 460:20–45–

46(a)(2), require for success of

revegetation that the operator

demonstrate that it has achieved 90

percent of the success standard. In other

words, the operation must, in order to

demonstrate success of productivity,

meet only 90 percent of the technical

success standard that is calculated by

the methods described in Appendix O

of Oklahoma’s Bond Release Guidelines.

Therefore, because the Federal

regulations and State rules already

provide for the SCS recommendation,

OSM is not requiring that Oklahoma

further revise the Bond Release

Guidelines in response to this comment.
Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations 2519

SCS commented that Oklahoma

should revise the definition of

‘‘productivity’’ in Appendix A in the

Bond Release Guidelines to refer to the

‘‘amount of total standing biomass’’

rather than ‘‘harvestable standing

biomass.’’ In response to this SCS

comment, Oklahoma at its own

initiative in its September 2, 1994,

submittal, revised the definition of

‘‘productivity’’ as recommended by the

SCS. As discussed in finding No. 2.i

above, the Director is approving

Oklahoma’s proposed revision of the

definition of ‘‘productivity’’ in

Appendix A.

Finally, SCS responded on October

14, 1994, that because all revisions

previously discussed with the

Oklahoma State Office had been

included in Oklahoma’s September 2,

1994, revised amendment, it had no

further comments (administrative record

No. OK–959.25).

b. Other Federal agencies. The U.S.

Fish and Wildlife Service responded on

February 15 and August 3, 1994, that it

had no comments on the proposed

amendment (administrative record Nos.

OK–959.02 and OK–959.13).

The U.S. Bureau of Mines responded

on February 16 and September 25, 1994,

that it had no comments regarding the

proposed amendment (administrative

record Nos. OK–959.03 and OK–959.23).

The U.S. Army Corps of Engineers

responded on February 25, August 10,

and September 30, 1994, that the

proposed revisions were satisfactory

(administrative record Nos. OK–959.04,

OK–959.17, and OK–959.24).

The U.S. Bureau of Land Management

responded on October 12, 1994, that the

Bond Release Guidelines appeared to be

technically correct (administrative

record No. OK–959.26).

3. Environmental Protection Agency

(EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to solicit the written

concurrence of EPA with respect to

those provisions of the proposed

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 its amendment

pertain to air or water quality standards.

Therefore, OSM did not request EPA’s

concurrence.

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA (administrative

record No. OK–960). EPA responded on

August 24, 1994, that it had no

objections to approval of the proposed

revisions (administrative record No.

OK–962).

4. State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM

solicited comments on the proposed

amendment from the SHPO and ACHP

(administrative record No. OK–960).

Neither SHPO nor ACHP responded to

OSM’s request.

V. Director’s Decision

Based on the above findings, the

Director approves, with additional

requirements, Oklahoma’s proposed

amendment as submitted on February

17, 1994, and as revised and

supplemented with additional

explanatory information on July 21 and

September 2, 1994.

With the requirement that Oklahoma

further revise the Bond Release

Guidelines, the Director approves, as

discussed in: finding No. 2.e,

subsections IV.A.1.a and b, and sections

VII.A and B, concerning revegetation

success standards for diversity,

seasonality, permanence, and

regeneration; and finding No. 2.f,

subsections V.B.2.d and V.B.2.e,

concerning the use of test plots as a

statistically valid sampling technique

for demonstrating success of

productivity on prime farmlands.

The Director approves Oklahoma’s

revisions to the Bond Release

Guidelines, as discussed in: finding No.

1, Appendices J and V, concerning

nonsubstantive editorial revisions;

finding No. 2.a, subsection I.E.3.b,

concerning requirements for ground

cover on land reclaimed for commercial

or industrial use; finding No. 2.b,

subsection I.F.3.d, concerning

requirements for ground cover on

previously mined areas; finding No. 2.c,

subsection I.F.5.b, concerning the

requirements for water discharged from

permanent impoundments, ponds,

diversions, and treatment facilities;

finding No. 2.d, subsections II.B.2.d,

III.B.2.d, and V.B.2.c, concerning the

method for calculating a technical

productivity standard on pastureland,

grazingland, and prime farmland;

finding No. 2.g, subsections V.B.2.f and

VI.B.2.e, concerning the method for

calculating a technical productivity

standard for grain or hay crops on prime

and nonprime farmland; finding No.

2.h, subsection VI.B.2.e, concerning the

method for measuring row crop

production on nonprime farmland;

finding No. 2.i, Appendix A, concerning

the definition of ‘‘productivity;’’ finding

No. 2.j, Appendices A and R,

concerning the definition of ‘‘initial

establishment of permanent vegetative

cover’’ and the repair of rills and gullies

as a normal husbandry practice; and

finding No. 2.k, Appendix F, concerning

the method of production sampling, and

Appendix O, concerning the methods of

calculating technical productivity

standards on pastureland and

grazingland.

In accordance with 30 CFR

732.17(f)(1), the Director is also taking

this opportunity to clarify in the

required amendment section at 30 CFR

936.16 that, within 60 days of the

publication of this final rule, Oklahoma

must either submit a proposed written

amendment, or a description of an

amendment to be proposed that meets

the requirements of SMCRA and 30 CFR

Chapter VII and a timetable for

enactment that is consistent with

Oklahoma’s established administrative

or legislative procedures.

The Federal regulations at 30 CFR

Part 936, codifying decisions concerning

the Oklahoma program, are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12886

(Regulatory Planning and Review).

2. Executive Order 12778

The Department of the Interior has

conducted the reviews required by

section 2 of Executive Order 12778

(Civil Justice Reform) 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

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 12550) 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
2520 Federal Register / Vol. 60, No. 6 / Tuesday, January 10, 1995 / Rules and Regulations

30 CFR Part 730, 731, and 732 have

been met.

3. 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 of 1969 (42

U.S.C. 4332(c)(C)).

4. 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).

5. 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.

List of Subjects in 30 CFR Part 936

Intergovernmental relations, Surface

mining, Underground mining.

Dated: December 29, 1994.

Charles E. Sandberg,

Acting Assistant Director, Western Support

Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations 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 by

adding paragraph (n) to read as follows:

§ 936.15 Approval of regulatory program

amendments.

* * * * *

(n) Revisions to the following

provisions of the Bond Release

Guidelines, which include revegetation

success standards and statistically valid

sampling techniques, and guidelines for

phase I, II, and III bond release, as

submitted to OSM on February 17, 1994,

and as revised and supplemented with

explanatory information on July 21 and

September 2, 1994, are approved

effective January 10, 1995:

Subsection I.E.3.b, concerning

requirements for ground cover on land

reclaimed for commercial or industrial

use;

Subsection I.F.3.d, concerning

requirements for ground cover on

previously mined areas;

Subsection I.F.5.b, concerning the

requirements for water discharged from

permanent impoundments, ponds,

diversions, and treatment facilities;

Subsections II.B.2.d, III.B.2.d, and

V.B.2.c, concerning the method for

calculating a technical productivity

standard on pastureland, grazingland,

and prime farmland;

Subsections IV.A.1.a and b, and

sections VII.A and B, concerning

revegetation success standards for

diversity, seasonality, permanence, and

regeneration;

Subsections V.B.2.d and V.B.2.e,

concerning the use of test plots as a

statistically valid sampling technique

for demonstrating success of

productivity on prime farmlands;

Subsections V.B.2.f and VI.B.2.e,

concerning the method for calculating a

technical productivity standard for grain

or hay crops on prime and nonprime

farmland;

Subsection VI.B.2.e, concerning the

method for measuring row crop

production on nonprime farmland;

Appendix A, concerning the

definitions of ‘‘initial establishment of

permanent vegetative cover’’ and

‘‘productivity;’’

Appendix F, concerning the method

of sampling for productivity;

Appendices J and V, concerning

editorial revisions; and

Appendix R, concerning the repair of

rills and gullies as a normal husbandry

practice;

Appendix O, concerning the methods

for calculating technical productivity

standards on lands reclaimed for use as

pastureland and grazingland.

3. Section 936.16 is revised to read as

follows:

§ 936.16 Required regulatory program

amendments.

Pursuant to 30 CFR 732.17(f)(1),

Oklahoma is required to submit to OSM

by the specified date the following

written, proposed program amendment,

or a description of an amendment to be

proposed that meets the requirements of

SMCRA and 30 CFR Chapter VII and a

timetable for enactment that is

consistent with Oklahoma’s established

administrative or legislative procedures.

(a) Reserved.

(b) Reserved.

(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 pasturland and grazingland.

(d) Reserved.

(e) Reserved.

(f) Reserved.

(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.

[FR Doc. 95–568 Filed 1–9–95; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 944

Utah Regulatory Program

ACTION: Proposed rule; reopening and

extension of public comment period on

proposed amendment.

SUMMARY: OSM is announcing receipt of

additional explanatory information

pertaining to a previously proposed

amendment to the Utah regulatory

program (hereinafter, the ‘‘Utah

program’’) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). The additional explanatory

information for Utah’s proposed rule

pertains to liability self-insurance

requirements for coal mining

operations. The amendment is intended

to allow coal mining operators who

qualify as government entities under the

Utah Interlocal Cooperation Act and the

Utah Governmental Immunity Act to

provide a certain amount of their

liability insurance through selfinsurance.

DATES: Written comments must be

received by 4:00 p.m., m.s.t., January 25,

1995.

ADDRESSES: Written comments should

be mailed or hand delivered to Thomas

E. Ehmett at the address listed below.