Texas Regulatory Program

[Federal Register Volume 64, Number 155 (Thursday, August 12, 1999)]
[Rules and Regulations]
[Pages 43913-43924]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20840]


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

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 943

[SPATS No. TX-041-FOR]


Texas Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of amendment.

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

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving an amendment to the Texas regulatory program (Texas 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA). The amendment concerns revegetation success and normal 
husbandry practice guidelines. Texas is adding these guidelines to 
ensure consistency with the corresponding Federal regulations; to 
ensure that adequate data collection methods are used for determining 
revegetation success for purposes of releasing reclamation performance 
bonds; and to ensure that the husbandry practices used by the permittee 
during the period of responsibility for revegetation success and bond 
liability are normal husbandry practices within the region for unmined 
lands.

EFFECTIVE DATE: August 12, 1999.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 
470, Tulsa, Oklahoma 74135-6548. Telephone: (918) 581-6430. Internet: 
mwolfrom@tokgw.osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Texas 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 Texas Program

    On February 16, 1980, the Secretary of the Interior conditionally 
approved the Texas program. You can find background information on the 
Texas program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval in the February 27, 1980, 
Federal Register (45

[[Page 43914]]

FR 12998). You can find later actions concerning the Texas program at 
30 CFR 943.10, 943.15, and 943.16.

II. Submission of the Proposed Amendment

    By letter dated May 13, 1999 (Administrative Record No. TX-649), 
Texas sent us an amendment to its program under SMCRA. Texas sent the 
amendment in response to our letters dated May 20, 1985, and February 
21, 1990 (Administrative Record Nos. TX-358 and TX-476), that we sent 
to Texas under 30 CFR 732.17(c). The amendment includes a guideline 
document entitled ``Procedures and Standards for Determining 
Revegetation Success on Surface-Mined Land in Texas'' that permittees 
are to use for sampling and analysis of vegetation data. It also 
includes a guideline document entitled ``Normal Husbandry Practices for 
Surface-Mined Lands in Texas'' that permittees are to use for 
identifying agricultural and management practices that will not extend 
the period of responsibility for revegetation success and bond 
liability (extended responsibility period).
    We announced receipt of the amendment in the June 1, 1999, Federal 
Register (64 FR 29249). In the same document, we opened the public 
comment period and provided an opportunity for a public hearing or 
meeting on the adequacy of the amendment. The public comment period 
closed on July 1, 1999. Because no one requested a public hearing or 
meeting, we did not hold one.
    During our review of the amendment, we identified a concern with 
Texas' revegetation success guideline document relating to productivity 
of non-prime farmland soils. We were concerned that Texas' guidelines 
at Section V.B.2 were not clear on the requirement that in areas 
receiving 26 inches or less of precipitation, the production standards 
for cropland must be met in at least the last 2 consecutive years of 
the responsibility period. We notified Texas of this concern by telefax 
dated June 24, 1999 (Administrative Record No. TX-649.07). By letter 
dated June 30, 1999 (Administrative Record No. TX-649.09), Texas sent 
us revisions to Section V.B.2 and Appendix B that clarify its 
requirements for non-prime farmland cropland receiving 26 inches or 
less of precipitation.
    Because the revisions merely clarified certain provisions of Texas' 
amendment, we did not reopen the public comment period.

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. Procedures and Standards for Determining Revegetation Success on 
Surface-Mined Lands in Texas

    Texas submitted a guideline document that describes the procedures 
and standards for determining revegetation success on reclaimed surface 
mined lands in Texas. The Texas Coal Mining Regulations at 16 Texas 
Administrative Code (TAC) 12.395(a)(1) requires the Railroad Commission 
of Texas (Commission) to select standards for success and statistically 
valid sampling techniques for measuring success. The Federal 
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) require that each 
regulatory authority select revegetation success standards and 
statistically valid sampling techniques for measuring success and 
include them in its approved regulatory program. The Federal 
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) require that 
standards for success include criteria representative of unmined lands 
in the area being reclaimed to evaluate the appropriate vegetation 
parameters of ground cover, production, or stocking. Ground cover, 
production, or stocking must be considered equal to the approved 
success standard when they are not less than 90 percent of the success 
standard. The sampling techniques for measuring success shall use a 90-
percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error). The Federal regulations at 30 CFR 816.116(b) and 
817.116(b) require that standards for success be applied in accordance 
with the approved postmining land use and specified minimum conditions 
for each type of land use. Texas developed its revegetation success 
guideline document to satisfy these requirements.
    In some cases, the guidelines reference the performance standards 
for revegetation success contained in the Texas program at 16 TAC 
12.390 through 12.395; but they do not replace or change any existing 
State regulations. As discussed in the findings below, we find that the 
revegetation success standards and statistically valid sampling 
techniques contained in Texas' revegetation success guideline document 
meet the requirements of 30 CFR 816.116(a)(1) and 817.116(a)(1) and are 
no less effective than the Federal requirements for revegetation 
success at 30 CFR 816.116 and 817.116.
    1. Section I. Introduction. The introductory section provides the 
scope, purpose, and applicability of the revegetation success guideline 
document. Permittees must demonstrate revegetation success using the 
revegetation standards and statistically valid sampling techniques for 
measuring success contained in the guidance document. Use of the 
methods contained in this document will provide assurance that adequate 
data collection methods have been used for determining revegetation 
success for purposes of releasing reclamation performance bond funds. 
Permittees may propose alternative procedures for sampling and analysis 
of vegetation data. However, the Commission must approve the use of 
alternative methods, and the alternative methods must be included in 
the approved regulatory program.
    We find that Section I is not inconsistent with the requirements of 
the Federal regulations at 30 CFR 816.116 and 817.116, and we are 
approving it.
    2. Section II. Regulatory Requirements. This section references the 
regulatory requirements for meeting revegetation success under the 
Texas Surface Coal Mining and Reclamation Act at sections 134.041, 
.092(a)(19) and (20), and .104. It also references the implementing 
performance standards for revegetation success in the Texas Coal Mining 
Regulations at 16 TAC 12.390 through 12.395 and 12.399. Texas discusses 
the applicable sections of 16 TAC 12.390 and 12.395 that define the 
standards by which revegetation success will be measured; the general 
requirements that must be met for the vegetative cover; the 
requirements for the methodologies used for evaluating when the 
standards have been met; and the minimum standards for each postmining 
land use. Texas also discusses the definitions at 16 TAC 12.3 that are 
applicable to the guidance document, including ``disturbed area''; 
``land use''; ``cropland''; ``pastureland''; ``grazingland''; 
``forestry''; ``residential''; ``industrial/commercial''; 
``recreation''; ``fish and wildlife habitat''; ``undeveloped land''; 
and ``reference area.''
    We previously approved the regulations referenced and described in 
Section II, and we agree that they are applicable to the proposed 
revegetation success guideline document. Therefore, we find that 
including these regulations in this section of the document is not 
inconsistent with the Federal regulation requirements at 30 CFR 
816.116(a)(1) and 817.116(a)(1).

[[Page 43915]]

    3. Section III. Vegetation Evaluation Procedures. This section 
identifies specific concepts and requirements to be followed in 
developing revegetation evaluation plans.
    Section III.A includes the general requirements for vegetation 
evaluation. Ground cover and productivity for herbaceous biomass 
measurements must be obtained during the growing season of the primary 
vegetation species comprising the land use. Herbaceous productivity is 
estimated from only the current season's growth. Woody-plant stocking 
can be measured at any time. Ground cover corresponds to the area of 
ground covered by the combined areal parts of standing permit-approved 
vegetation (dead or alive) and the litter that is produced naturally on 
site. The litter component cannot exceed 15 percent of the total ground 
cover. The species must be on either the planting list that contains 
approved species which support the land use or the list of approved 
desirable invader species. Both lists must be included in the approved 
permit. Rock fragments are considered ground surface cover during soil 
surveys, but only the vegetal component can be considered in ground 
cover measurements. Texas includes an example of hypothetical data from 
a vegetation survey and the resulting calculations from 100 observation 
points.
    Section III.B covers the data collection characteristics of 
vegetation evaluation. The methods used for doing vegetation surveys 
must comply with statistical conventions. All methods used to assess 
revegetation success must contain the following criteria: (1) all 
sample points must be chosen independently and have an equal chance of 
being chosen; (2) the number of sample points should be independent of 
the size of the areas to be evaluated; and (3) sample units should 
include the same land use, similar vegetation growth forms, comparable 
management, and similar chemical and physical soil characteristics. The 
number of observation points needed to produce statistically-acceptable 
results depends on the vegetation parameter that is measured.
    Section III.C identifies the requirements for reporting vegetation 
survey data. When submitting revegetation data, permittees are to 
include a map or aerial photograph that identifies the location of the 
vegetation survey transects. This subsection specifies what information 
must be reported for measurements of ground cover; productivity 
measurements for forages obtained from plot harvesting; productivity 
measurements for forages obtained by weighing a portion of the bales 
harvested; productivity measurements for cropland that involve plot 
harvesting; productivity measurements involving whole-field harvest; 
and stem count measurements for woody-plants. All measurements, except 
productivity measurements for cropland plot harvesting and whole-field 
harvest, must include a one-sided 90 percent confidence interval (with 
a 0.10 alpha error) if the cover, biomass, yield, or stem estimates are 
below the lowest acceptable value (90% of the technical standard) or 
where the reclaimed area is compared to a reference area. Productivity 
measurements for cropland that involve plot harvesting must include a 
one-sided 90 percent confidence interval (with a 0.10 alpha error) for 
the standardized crop yield. All productivity measurements must include 
documentation from a calibrated scale. The permittee must document the 
scale manufacturer, model number, calibration date, date and time of 
productivity data collections, and individual performing the weighing.
    We find that Section III meets the requirements of the Federal 
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) that 
statistically valid sampling techniques for measuring success be 
selected by the regulatory authority and included in an approved 
regulatory program. We also find that this section is no less effective 
than the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
that require sampling techniques for measuring success to use a 90-
percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error).
    4. Section IV. Revegetation Success Evaluation and Measurement 
Methods. This section provides the approved methods for implementing 
the various evaluation methods for ground cover, productivity, and 
woody-plant stocking, including the proper selection of observation 
points. Measurement methods are presented for all vegetation 
parameters. Measurement results must be compared to either approved 
reference areas or technical success standards.
    Section IV.A provides information and examples for two methods of 
selecting observation points for collecting vegetation data. The first 
method, random point sampling, involves the selection of random points 
within the area to be evaluated and plotting the points on a map or 
aerial photograph. The second method, baseline sampling with multiple 
random starts, involves the random placement of a baseline within the 
target evaluation area, along with five randomly-placed transverse 
transects along the baseline. Either observation location method is 
appropriate for all revegetation performance parameters. Ground cover 
measurements should ideally involve 100 observation points, with a 
minimum of 75 points. Herbaceous productivity and wood plant stocking 
estimates require at least 15 measurements. The maximum sample number 
for ground cover and productivity/stem count distributions is 150 and 
30, respectively. Permittees must use the statistical equations for 
binomially-distributed revegetation data in Appendix A to estimate a 
statistical adequate sample size for ground cover. They must use the 
statistical equations for normally-distributed revegetation data in 
Appendix A to estimate a statistically adequate sample size for 
productivity and woody-plant stocking.
    Section IV.B provides guidance on adjusting for field conditions 
when conducting vegetation surveys. Non-vegetated structures such as 
permanent roads and ponds, riprap areas, and rock and brush piles 
created for wildlife are not to be included as part of the revegetation 
analyses. Habitat features in grazingland and pastureland must be 
included in ground cover and productivity measurements. Slopes under 25 
percent should not influence on-the-ground measurement intervals. 
Individual areas to be surveyed must be under the same land use and 
management and must contain the same vegetation type.
    Section IV.C provides guidelines for ground cover measurements. 
Ground cover measurements are required for all land uses, except for 
cropland after row crops have been planted. The point intercept method 
is the recommended method for determining ground cover. This section 
discusses the use of the point intercept method with a crosswire 
sighting device.
    Section IV.D contains guidance for measurement of productivity. The 
method of measurement of productivity is dependent on the land use and 
the established vegetation. Productivity can be evaluated by hand-
harvesting or with mechanized agricultural implements. Productivity 
measurements must be obtained during the growing season of the primary 
vegetation species. Either plot harvesting or whole-field harvesting 
are to be used for evaluation of herbaceous species and food or fiber 
crops. Herbaceous species should be harvested at the times appropriate 
to the plant species. Sampling should be timed to coincide with seed 
ripeness or the mature stage of the target vegetative

[[Page 43916]]

species. The moisture content of harvested herbaceous biomass and other 
vegetative/grain components must be standardized to eliminate weight 
variations due to moisture content. Moisture content must be determined 
using a properly calibrated, standard agricultural grain moisture 
tester. A determination that a statistically adequate sample size was 
obtained is performed on standardized or corrected dry weights. This 
section contains the formula for correcting the measured grain/bean 
weights to appropriate moisture contents. For whole-field harvesting, 
the total production from a hayed or harvested area is obtained by 
weighing the entire yields of the agricultural commodity. The permittee 
must notify the Commission 15 to 30 days before the harvest. The 
Commission may require that an inspector be on site during the harvest 
activity. Forage crops must be harvested following sound agronomic 
practices, including field-drying cut forage and not bailing until the 
forage moisture content is 25 percent or less. Moisture content for 
grains/beans must be adjusted to the accepted values for each 
agricultural commodity. The foreign material content of the grain/beans 
must be determined by a licensed grain dealer and the weight shrunk to 
marketable condition weight with a foreign material allowance of one 
percent. There is no allowances for harvest and handling losses. The 
harvesting of plots instead of the whole area is an acceptable 
alternative, as long as the yields of the plots are representative of 
the overall production. Appropriate sampling procedures for plots are 
included in this section. Sampling procedures include information to 
collect; plot size; harvest procedures; sample number; determination of 
moisture content; and a double-sampling method. This section also 
describes the grazing method to estimate productivity. The conversion 
of animal units (AU) to a weight of vegetation biomass for a given area 
can be used to estimate productivity in grazingland and pasture land 
uses instead of whole-field or plot harvesting. The animal numbers must 
be maintained in a manner that allows grazing of the current year's 
forage production without damaging future forage growth and quality. 
Included in this section is a table showing the minimum plant residue 
levels and stubble heights to sustain production and a table that 
contains a guide to animal-unit equivalents. Stocking rates must be 
verified by a signed affidavit from the party managing the grazing of a 
given area and must identify the time period covered and the class of 
livestock involved.
    Section IV.E provides guidelines for woody plant stocking. 
Randomly-selected measurement locations are required for conducting 
woody plant stocking evaluations. Observation points should not be 
located within 20 feet of the edge of the stocked area. Observation 
points for woody plant counts can also be used for measuring ground 
cover. Woody plants counted for success determination must be alive and 
healthy and in place for two growing seasons. Miniplots, usually 
circular in shape, are used to determine stocking rates. The number of 
plots needed to characterize the evaluation area will depend on the 
variability of the vegetation. Approximately 30 plots should be 
randomly-placed, regardless of the size of the area to be evaluated. 
The number of samples required is calculated following procedures 
listed in Appendix A. The permittee must continue the sampling 
procedure until the actual number of measurements produces a 
statistically adequate sample size.
    Section IV.F contains guidance on selecting and management of 
reference areas. The permittee must work closely with the Commission 
staff to select and develop a suitable reference area. Reference areas 
are unmined land units that are maintained under appropriate management 
for the purpose of measuring vegetation ground cover, productivity, and 
plant species diversity that are produced naturally or by agricultural 
production methods approved by the Commission. Reference areas must be 
representative of geology, soil, slope, and vegetation in the permit 
area. This section contains criteria for comparing revegetated mined 
areas and reference areas. Although it is not essential that the 
reference area be immediately adjacent to the mined, revegetated area, 
the two areas should be close enough to each other to prevent 
differences in rainfall distribution patterns.
    We find that the requirements of Section IV meet the requirements 
of the Federal regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) 
that statistically valid sampling techniques for measuring success be 
selected by the regulatory authority and included in an approved 
regulatory program. We also find that this section is no less effective 
than the Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
that require sampling techniques for measuring success to use a 90-
percent statistical confidence interval (i.e., one-sided test with a 
0.10 alpha error).
    5. Section V. Revegetation Success Standards. This section lists 
the revegetation success standards for each land use type and provides 
information on determining productivity of the reclaimed areas. Nine 
general types of land use are included: grazingland; pastureland; 
cropland; forestry; fish and wildlife habitat; undeveloped land; 
industrial/commercial; residential; and recreation. We find that Texas' 
revegetation success guidelines for each land use type in combination 
with its previously approved regulations at 16 TAC 12.395 meet the 
Federal requirements at 30 CFR 816.116(a)(1) and 817.116(a)(1) that 
success standards be selected by the regulatory authority and included 
in its approved regulatory program. We also find that Texas' success 
standards for each land use type are no less effective than the Federal 
regulations at 30 CFR 816.116(b) and 817.116(b) that require standards 
for success be applied in accordance with the approved postmining land 
use.
    a. Section V.A provides guidelines relating to ground cover and 
productivity standards for grazingland and pastureland. The ground 
cover values and productivity of mined, revegetated areas are compared 
either to the ground cover or productivity of an approved reference 
area or to approved technical standards. The revegetation success 
standard when reference areas are used is that the ground cover and the 
productivity of the revegetated grazingland or pastureland must be 90 
percent of the reference area with a 90 percent statistical confidence.
    The approved technical standards for ground cover on grazingland 
and pastureland are dependent upon the moisture regime (5- or 10-year 
extended responsibility period area) and the dominant plant species. 
For areas with an average annual precipitation greater than 26 inches, 
the ground cover standard is 95 percent for sod-forming grasses and 90 
percent for bunch grass mixtures. For areas with an average annual 
precipitation less than or equal to 26 inches, the ground cover 
standard is 90 percent for sod-forming grasses and 80 percent for bunch 
grass mixtures. Seventy-five percent of the ground cover must be 
permit-approved species which support the land use. The remaining 25 
percent can be permit-approved, desirable invader species.
    Whole-field harvesting is appropriate for grazingland or 
pastureland harvested for hay. The harvest of plots is appropriate for 
all grazingland and pastureland. When reference areas are used, the 
permittee must compare the productivity of the reference area to the 
reclamation area. The lowest acceptable

[[Page 43917]]

value for the productivity of the reference area is 90 percent of the 
reference area productivity value. The actual yield for the reclaimed 
area must be used when comparing the data. Site-specific technical 
standards for grazingland and pastureland production are currently 
developed by the USDA-NRCS and are included in the permit application 
for each mine. These standards are site-specific with respect to 
rainfall, species/cultivar produced, soil mapping unit, and 
fertilization. The permittee must compare the productivity of the 
reclaimed area, with a 90 percent confidence interval, to the 
appropriate technical standard.
    The Federal regulations at 30 CFR 816.116(b)(1) and 817.116(b)(1) 
require that ground cover and production of living plants on the 
revegetated grazingland or pastureland areas be at least equal to that 
of a reference area or such other success standards approved by the 
regulatory authority. We find that Texas' success standards for 
grazingland and pastureland are no less effective than these Federal 
requirements.
    b. Section V.B contains guidance on the ground cover and 
productivity standards for cropland with non-prime farmland soils and 
cropland with prime farmland soils. Adequate ground cover to control 
erosion is required until crop production begins for both soil types.
    (1) The productivity of mined, revegetated areas where non-prime 
farmland soils were involved is compared either to the productivity of 
an approved reference area or to approved technical standards. For non-
prime farmland soils, the permittee must determine the lowest 
acceptable value for the productivity of the reference area by 
calculating 90 percent of the yield obtained form the reference area. 
The permittee must then compare the actual yield for the reclaimed area 
productivity to the lowest acceptable value for the reference area. For 
non-prime farmland soils, technical success standards must be 
determined by the USDA-NRCS at the request of the mine operator or 
landowner. The technical standards will be permit-specific and will be 
developed by using data on the expected individual crop productivity 
for the particular county and soil mapping unit, as published in the 
USDA-NRCS Field Office Technical Guides. For bond release in areas 
receiving more than 26 inches of precipitation (5-year responsibility 
period), the total field harvest of the crop for any two years, except 
the first year, will be compared to the approved productivity standard 
specifically developed for the particular crop and a particular growing 
season. In areas receiving 26 inches of precipitation or less (10-year 
responsibility period), the production standards must be met in at 
least the last 2 consecutive years of the responsibility period. The 
permittee must compare the productivity of the reclaimed area to 90 
percent of the appropriate technical standards.
    We find that Texas' success standards for non-prime farmland 
cropland are no less effective than the Federal regulations at 30 CFR 
816.116(b)(2) and 817.116(b)(2) that require crop production on the 
revegetated area to be at least equal to that of a reference area or 
such other success standards approved by the regulatory authority. We 
also find that Texas' success standards for non-prime farmland cropland 
for areas of more than 26 inches of annual average precipitation are no 
less effective than the Federal regulations at 30 CFR 816.116(c)(2)(i) 
and 817.116(c)(2)(i) that require cropland to equal or exceed the 
approved success standard during the growing season of any two years of 
the responsibility period, except the first year. Lastly, we find that 
Texas' success standards for non-prime farmland cropland in areas 
receiving 26 inches of precipitation or less are no less effective than 
the Federal regulations at 30 CFR 816.116(c)(3)(i) and 817.116(c)(3)(i) 
that require cropland to equal or exceed the approved success standard 
for at least the last two consecutive years of the responsibility 
period.
    (2) Prime farmland productivity will be restored in accordance with 
provisions specified in 16 TAC 12.625 (Prime Farmland: Revegetation and 
Restoration of Soil Productivity). Productivity of restored prime 
farmlands will be returned to equivalent levels of crop yields as non-
mined land of the same soil type in the surrounding area under 
equivalent levels of crop yields as non-mined land of the same soil 
type in the surrounding area under equivalent management practices. 
Measurement of crop productivity will be initiated within 10 years 
after completion of soil replacement. The measurement period for 
determining average annual crop production shall be a minimum of three 
crop years prior to bond release. For areas receiving more than 26 
inches of precipitation, crop production may be measured in any of the 
extended responsibility period years except the first. For areas 
receiving 26 inches of precipitation or less, the crop production 
standards must be met in at least the last two consecutive years of the 
extended responsibility period. The reference crops on which 
restoration of soil productivity is proven shall be selected from the 
crops most commonly produced on the surrounding prime farmland. Only 
two of the three required crop years may involve forage crops. Where 
row crops are the dominant crop grown on prime farmland in the area, 
the row crop requiring the greatest rooting depth must be chosen as one 
of the reference crops. Permittees must select reference crops through 
consultation with the USDA-NRCS. Reference areas are not applicable 
where restored prime farmland soils are involved. Productivity of crops 
grown on reclaimed prime farmland soils will be measured by using the 
crop yield of a reference crop produced on all or a portion of the 
reclaimed area. Crop yields will be determined through whole-field or 
plot harvesting. The reference crop yields for a given crop season will 
be compared to average yields for specific prime farmland soil series. 
These average yields are obtained from the USDA-NRCS National Soil 
Information System database, which contains information linking soil 
series and slope phase, land capability, and crop yields. Restoration 
of soil productivity will be considered achieved when the average yield 
during the measurement period equals or exceeds the average yield of 
the reference crop established for the same period for non-mined soils 
of the same or similar texture or slope phase of the soil series in the 
surrounding area under equivalent management practices.
    By letter dated April 13, 1999, the USDA-NRCS State Conservationist 
in Texas concurred with the guidelines contained in Section V.B.4 
concerning evaluation of productivity for restored prime farmland soils 
(Administrative Record No. TX-649).
    Based on the USDA-NRCS concurrence and our own technical 
evaluation, we find the Texas' guidelines for restoration of prime 
farmland cropland are consistent with and no less effective than the 
Federal regulation requirements at 30 CFR 823.15 pertaining to 
revegetation and restoration of prime farmland soil productivity. We 
also find that Texas' success standards for prime farmland cropland for 
areas of more than 26 inches of annual average precipitation are no 
less effective than the Federal requirements at 30 CFR 816.116(c)(2)(i) 
and 817.116(c)(2)(i) that require cropland to equal or exceed the 
approved success standard during the growing season of any of the years 
of the responsibility period, except the first year. We find further 
that Texas' success standards for prime farmland cropland for areas of 
26 inches or less of annual average precipitation are consistent with 
the Federal regulations at 30 CFR

[[Page 43918]]

816.116(c)(3)(i) and 817.116(c)(3)(i) that require cropland to equal or 
exceed the approved success standard during the growing seam of at 
least the last two consecutive years of the responsibility period.
    c. Section V.C provides guidelines on the ground cover standards 
and woody-plant stocking rates for the forestry land use category. The 
forestry land use category is land used or managed for the long-term 
production of wood, wood fiber, or wood-derived products. Ground cover 
of mined, revegetated forestry areas are compared either to the ground 
cover of an approved reference area or to approved technical standards.
    The ground cover of the reclaimed forest must be within 90 percent 
of the ground cover of the reference area, with a 90 percent 
statistical confidence. Only permit-approved permanent species and 
additional species found in the reference area will count toward the 
ground cover. The permittee must measure and record the ground cover 
value for the reference area and the reclaimed area. The permittee must 
then compare the reclaimed area ground cover estimate to 90 percent of 
the reference area cover value. If technical standards are used, they 
must be equal to or greater than 78 percent ground cover. The permittee 
must compare the reclaimed area ground cover estimate to 90 percent of 
the ground cover standard. Ground cover measurements must be evaluated 
in conjunction with information on the species composition. Seventy-
five percent of the ground cover must be comprised of permit-approved 
species which support the land use and the remaining 25 percent can be 
comprised of desirable invader species. Lists of both types of species 
must be included in the approved reclamation plan.
    The success of woody-plant stocking is determined by comparing the 
reclaimed forest area to a technical standard. The stocking rate 
success standards for woody plant species will be permit-specific and 
site-specific. Success standards for stocking rates will be developed 
by the applicant through consultation with the Texas Forest Service in 
accordance with guidelines included in attachment 3 of Texas' 
revegetation success guideline document. Success standards will be 
subject to review and comment during the permit review and will be 
approved by the Texas Forest Service. The permittee must compare the 
mean stem count of the reclaimed area to 90 percent of the appropriate 
stem count standard. Woody-plant stocking measurements must be 
evaluated in conjunction with information on the species composition of 
the stands.
    We find that Texas' guidelines for forestry are consistent with and 
no less effective than the Federal regulation requirements at 30 CFR 
816.116(b)(3) and 817.116(b)(3). The Federal regulations require that 
minimum stocking and planting arrangements be specified by the 
regulatory authority on the basis of local and regional conditions and 
after consultation with and approval by the State agency responsible 
for the administration of forestry. Consultation and approval may occur 
on either a programwide or a permit-specific basis. As noted above, 
Texas is requiring consultation and approval on a permit-specific 
basis.
    d. Section V.D contains guidance on ground cover standards and 
woody-plant rates for fish and wildlife habitat. Fish and wildlife 
habitat is land that is dedicated wholly or partially to the 
production, protection, or management of species of fish or wildlife.
    The ground cover values of mined, revegetated areas are compared to 
an approved technical standard. The ground cover of the reclaimed fish 
and wildlife habitat must be within 90 percent of a 78 percent ground 
cover success standard with a 90 percent statistical confidence. Ground 
cover measurements must be evaluated in conjunction with information on 
the species composition of the stands. Seventy-five percent of the 
ground cover must include permit-approved species which support the 
land use. Twenty-five percent can be comprised of desirable invader 
species as established and approved in the permit.
    The success of woody-plant stocking is measured by comparing the 
reclaimed habitat to a technical standard. The stocking rates for woody 
plant species will be permit-specific and site-specific. Stocking rates 
must be developed by the applicant through consultation with the Texas 
Parks and Wildlife Department in accordance with guidelines included in 
attachment 2 of Texas' revegetation success guideline document. Success 
standards will be subject to review and comment during the permit 
review and will be approved by the Texas Parks and Wildlife Department. 
Permittees must compare the mean stem count of the reclaimed area to 90 
percent of the appropriate stem count standard. Woody-plant stocking 
measurements must be evaluated in conjunction with information on the 
species composition of the stands.
    We find that Texas' guidelines for fish and wildlife habitat are 
consistent with and no less effective than the Federal regulation 
requirements at 30 CFR 816.116(b)(3) and 817.116(b)(3). The Federal 
regulations require that minimum stocking and planting arrangements be 
specified by the regulatory authority on the basis of local and 
regional conditions and after consultation with and approval by the 
State agency responsible for the administration of wildlife programs. 
Consultation and approval may occur on either a programwide or a 
permit-specific basis. As noted above, Texas is requiring consultation 
and approval on a permit-specific basis.
    e. Section V.E provides guidelines on ground cover standards and 
woody-plant stocking rates for undeveloped land. Undeveloped land (no 
current use or land management) is land that is undeveloped or, if 
previously developed, land that has been allowed to return naturally to 
an undeveloped state or has been allowed to return to forest through 
natural succession.
    The ground cover values of mined, revegetated areas are compared to 
approved technical standards. The choice of technical standards to 
employ depends on the dominant vegetation growth form found in the 
undeveloped land: grasses or woody species. If grasses are predominant 
and the areas have an average annual precipitation greater than 26 
inches, the ground cover standard is 95 percent for sod-forming grasses 
and 90 percent for bunch grass mixtures. If grasses are predominant and 
the areas have an average annual precipitation less than or equal to 26 
inches, the ground cover standard is 90 percent for sod-forming grasses 
and 80 percent for bunch grass mixtures. If woody species are 
predominant, the technical standard for ground cover is 78 percent. The 
permittee must compare the ground cover estimate to 90 percent of the 
appropriate ground cover standard. Ground cover measurements must be 
evaluated in conjunction with information on the species composition of 
the stands.
    Woody-plant stocking is measured by comparing the reclaimed area to 
a technical standard. The stocking rates for woody plant species are 
permit-specific and site-specific. The permittee must develop stocking 
rates through consultation with the Texas Parks and Wildlife Department 
in accordance with guidelines included in attachment 2 of Texas' 
guideline document. Success standards will be subject to review and 
comment during the permit review and will be approved by the Texas 
Parks and Wildlife Department. The permittee must compare the mean stem 
count of the reclaimed area to 90 percent of the appropriate stem count 
standard. Woody-plant stem count measurements

[[Page 43919]]

must be evaluated in conjunction with information on the species 
composition of the stands.
    The Federal regulations at 30 CFR 816.116(b) and 817.116(b) do not 
contain specific reclamation success standards for undeveloped land. 
However, we find that Texas' guidelines for undeveloped land are not 
inconsistent with the requirements of the Federal regulations at 30 CFR 
816.116(b)(3) and 817.116(b)(3) for areas to be developed for fish and 
wildlife habitat, recreation, shelter belts, or forest products.
    f. Section V.F contains guidelines relating to ground cover 
standards and woody-plant stocking rates for industrial/commercial land 
uses. These land uses involve either (1) extraction or transformation 
of materials for fabrication of products, wholesaling of products, or 
for long-term storage of products or (2) retail or trade of goods or 
services.
    Ground cover must be adequate to control erosion. Woody-plant 
stocking, if it is implemented, is measured by comparing the reclaimed 
area to a technical standard. The stocking rates for woody plant 
species will be permit-specific and site-specific. Stocking rates must 
be developed by the applicant through consultation with the Texas Parks 
and Wildlife Department in accordance with guidelines included in 
attachment 2 of Texas' revegetation success guidelines. Woody-Plant 
stocking success standards will be subject to review and comment during 
the permit review and will be approved by the Texas Parks and Wildlife 
Department. Permittees must compare the mean stem count of the 
reclaimed area to 90 percent of the appropriate stem count standard. 
Woody-plant stem count measurements must be evaluated in conjunction 
with information on the species composition of the stands.
    We find that Texas' ground cover guidelines are no less effective 
than the Federal regulation requirements at 30 CFR 816.116(b)(4) and 
817.116(b)(4) for areas to be developed for industrial, commercial, or 
residential use. The Federal regulations do not contain a woody-plant 
stocking standard for these land uses. However, we find that Texas' 
woody-plant stocking guidelines are consistent with the minimum 
stocking and planting arrangement requirements of the Federal 
regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) for areas 
to be developed for fish and wildlife habitat, recreation, shelter 
belts, or forest products.
    g. Section V.G provides guidance on ground cover standards and 
woody-plant stocking rates for a residential land use. This land use 
includes single- and multiple-family housing, mobile home parks, and 
other residential lodgings. Ground cover must be adequate to control 
erosion. Woody-plant stocking, if used, is measured by comparing the 
reclaimed area to a technical standard. The stocking rates for woody 
plant species will be permit-specific and site-specific. Stocking rates 
will be developed by the applicant through consultation with the Texas 
Parks and Wildlife Department, in accordance with guidelines included 
in attachment 2 of Texas' revegetation success guideline document. 
Success standards will be subject to review and comment during the 
permit review and will be approved by the Texas Parks and Wildlife 
Department. The permittee must compare the mean stem count of the 
reclaimed area to 90 percent of the appropriate stem count standard. 
Woody-plant stem count measurements must be evaluated in conjunction 
with information on the species composition of the stands.
    We find that Texas' ground cover guidelines for residential land 
use are no less effective than the Federal regulation requirements at 
30 CFR 816.116(b)(4) and 817.116(b)(4) for areas to be developed for 
industrial, commercial, or residential use. The Federal regulations do 
not contain a woody-plant stocking standard for this land use. However, 
we find that Texas' woody-plant stocking guidelines are consistent with 
the minimum stocking and planting arrangement requirements of the 
Federal regulations at 30 CFR 816.116(b)(3)(i) and 817.116(b)(3)(i) for 
areas to be developed for fish and wildlife habitat, recreation, 
shelter belts, or forest products.
    h. Section V.H contains guidelines on ground cover standards and 
woody-plant stocking rates for recreation land uses. This land use 
involves public or private leisure-time use, including developed 
recreation facilities such as parks, camps, and amusement areas. It may 
also include less intensive uses such as hiking, canoeing, and other 
undeveloped recreational uses. Ground cover must be sufficient to 
control erosion. Woody-plant stocking is measured by comparing the 
reclaimed area to a technical standard. The stocking rates for woody 
plant species will be permit-specific and site-specific. Stocking rates 
will be developed by the applicant through consultation with the Texas 
Parks and Wildlife Department in accordance with guidelines included in 
attachment 2 of Texas' revegetation success guideline document. Success 
standards will be subject to review and comment during the permit 
review and will be approved by the Texas Parks and Wildlife Department. 
The permittee must compare the mean stem count of the reclaimed area to 
90 percent of the appropriate stem count standard. The permittee must 
evaluate woody-plant stem count measurements in conjunction with 
information on the species composition of the stands.
    We find that Texas' guidelines for recreation land use are 
consistent with and no less effective than the Federal regulation 
requirements at 30 CFR 816.116(b)(3) and 817.116(b)(3). The Federal 
regulations require that minimum stocking and planting arrangements be 
specified by the regulatory authority on the basis of local and 
regional conditions and after consultation with and approval by the 
State agency responsible for the administration of wildlife programs. 
Consultation and approval may occur on either a programwide or a 
permit-specific basis. As noted above, Texas is requiring consultation 
and approval on a permit-specific basis.
    6. Section VI. Literature Cited. This section provides a listing of 
the literature used in developing the guideline document. We find that 
this section is not inconsistent with the Federal regulations at 30 CFR 
816.116(a)(1) and 817.116(a)(1).
    7. Appendices and Attachments. Texas included the following 
appendices and attachments in its revegetation success guideline 
document.
    a. Appendix A contains the statistical information, including 
equations and tables, to be used in the determination of revegetation 
success for ground cover, productivity, and woody-plant stocking. We 
conducted a technical review of the statistical operations contained in 
appendix A, and we found that they meet the requirements of the Federal 
regulations at 30 CFR 816.116(a)(1) and 817.116(a)(1) that 
statistically valid sampling techniques for measuring success be 
selected by the regulatory authority and included in an approved 
regulatory program.
    b. Appendix B provides a table summarizing the revegetation success 
standards for all land uses. The table in Appendix B includes the 
revegetation parameters, performance standards, and conditions for bond 
release relating to each land use. We find that the addition of this 
summary is not inconsistent with the Federal regulations at 30 CFR 
816.116(a)(1) and 817.116(a)(1).
    c. Appendix C contains examples of revegetation success 
determinations for ground cover and productivity involving herbaceous 
biomass and woody plant stem counts. The addition

[[Page 43920]]

of examples will aid the permittees in making revegetation success 
determinations when using the statistical sampling techniques in Texas' 
revegetation success guideline document. Therefore, we find that 
appendix C is not inconsistent with the Federal regulation requirements 
at 30 CFR 816.116(a)(1) and 817.116(a)(1).
    d. Attachment 1 is a document entitled ``The Development of the 
Forage Production Standards for Post Mine Soils'' by the United States 
Department of Agriculture--Natural Resources Conservation Service. It 
contains an example of the methodology used by the USDA-NRCS to develop 
site-specific productivity standards for mining companies in Texas to 
use in demonstrating grazingland and pastureland productivity success 
on reclaimed areas. We find that the addition of attachment 1 is not 
inconsistent with the Federal regulation requirements at 30 CFR 
816.116(a)(1) and 30 CFR 817.116(a)(1).
    e. Attachment 2 is a document entitled ``Texas Parks and Wildlife 
Department Recommendations for the Development of Success Standards for 
Woody-Plant Stocking Rates.'' Permit applicants must develop woody-
plant stocking rates for various land uses through consultation with 
the Texas Parks and Wildlife Department in accordance with the 
guidelines included in this attachment. We find that the addition of 
attachment 2 is not inconsistent with the Federal regulation 
requirements at 30 CFR 816.116(a)(1) and 30 CFR 817.116(a)(1).
    f. Attachment 3 is a document entitled ``Texas Forest Service 
Recommendations for Reforestation of Pine and Hardwoods in Texas.'' 
Permit applicants must develop woody-plant stocking rates for forestry 
land uses through consultation with the Texas Forest Service in 
accordance with the guidelines included in this attachment. We find 
that the addition of attachment 3 is not inconsistent with the Federal 
regulation requirements at 30 CFR 816.116(a)(1) and 30 CFR 
817.116(a)(1).

B. Normal Husbandry Practices for Surface-Mined Lands in Texas

    Texas submitted a guideline document that describes the husbandry 
practices that may be used by the permittee during the period of 
responsibility for revegetation success and bond liability without 
restarting the extended responsibility period. The Texas Coal Mining 
Regulations at 16 TAC 12.395(c)(4) allow the Commission to approve 
selective husbandry practices provided it obtains prior approval from 
OSM that the practices are normal husbandry practices. The Federal 
regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4) allow each 
regulatory authority to approve selective husbandry practices as normal 
husbandry practices, excluding augmented seeding, fertilization, or 
irrigation, provided it obtains prior approval for the practices from 
OSM in accordance with 30 CFR 732.17. These normal husbandry practices 
may be implemented 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 
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, including such practices as disease, pest, 
and vermin control. It also includes any pruning, reseeding, and 
transplanting needed because of these practices. Texas developed a 
normal husbandry practices guideline document to implement these 
requirements.
    As discussed in the findings below, we find that the normal 
husbandry practices contained in the guideline document satisfy the 
requirements of 30 CFR 816.116(c)(4) and 817.116(c)(4).
    1. Section I. Introduction. The introductory section provides the 
scope, purpose, and applicability of the normal husbandry practices 
guideline document. The guideline document includes the normal 
husbandry practices that permittees must use for disease and pest 
control, application of fertilizers, application and incorporation of 
other soil amendments, and any other necessary soil vegetation 
management activities on surface-mined lands in Texas during the 
extended responsibility period. Husbandry practices not included in 
this document may be considered augmentative in nature and, if 
performed on land that is currently in the extended responsibility 
period, may restart that period. The decision whether a particular 
activity can be classified as a normal husbandry practice will depend 
both on the regulatory requirements of the Texas Coal Mining 
Regulations and the postmining land use.
    We find that this introductory section is not inconsistent with the 
Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c)(4), and we 
are approving it.
    2. Section II. Regulatory Requirements. 
    a. This section references the regulatory requirements for meeting 
revegetation success under the Texas Surface Coal Mining and 
Reclamation Act at sections 134.041, .092(a)(19) and (20), and .104. It 
also references the implementing performance standards for revegetation 
success in the Texas Coal Mining Regulations at 16 TAC 12.390 through 
12.395, and 12.399. Texas discusses the applicability of section of 16 
TAC 12.395(c)(4), which recognizes that the Commission may determine 
that certain management practices will not extend the responsibility 
period for revegetation success and bond liability.
    We previously approved the regulations referenced and described in 
this section, and we agree that they are applicable to the proposed 
normal husbandry practices guideline document. Therefore, we find that 
the reference to and discussion of these regulations in this section of 
the document is not inconsistent with the Federal regulation 
requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4).
    b. Texas noted that the Commission intends that the terms 
``husbandry'' and ``augment'' both have their ordinary meanings as 
follows:

    Husbandry--the control or judicious use of resources: 
conservation; the cultivation or production of plants and animals: 
agriculture; the scientific control and management of a branch of 
farming and especially of domestic animals.
    Augment--to make (something well or adequately developed) 
greater, more numerous, larger, or intense.

    We find that Texas' definitions for the terms ``husbandry'' and 
``augment'' are not inconsistent with the Federal regulation 
requirements at 30 CFR 816.116(c)(4) and 817.116(c)(4).
    3. Section III. Conventions for Normal Husbandry Practices. Texas 
lists the following three conventions regarding normal husbandry 
practices for surface-mined lands in Texas:

    (1.) Normal husbandry practices are region-specific and include 
activities performed by landowners managing lands not disturbed by 
mining activities. For example, limestone application and 
incorporation is not practiced anywhere in the South Texas Plains 
vegetational area; therefore, liming would not be a normal husbandry 
practice for mines situated in this region. Practices required to 
address problems that arise from mining-related activities are not 
considered normal husbandry practices.
    (2.) Normal husbandry practices are those activities that can 
expected to continue as part of the postmining land use.
    (3.) Discontinuance of the husbandry practices will not reduce 
the probability of revegetation success. For example, the 
discontinuance of maintenance fertilization

[[Page 43921]]

on grazingland would not result in loss of vegetative cover (it 
might lead to an alteration of the species composition, however).

    We find that Texas' conventions for normal husbandry practices at 
Section III are consistent with the requirements of the Federal 
regulations at 30 CFR 816.116(c)(4) and 817.117(c)(4).
    4. Section IV. Normal Husbandry Practices, as Influenced by Land 
Uses. In Section IV, Texas proposes normal husbandry practices for six 
vegetative community postmining land uses defined in the Texas program: 
grazingland; pastureland; cropland; forestry; fish and wildlife 
habitat; and undeveloped land. The normal husbandry practices listed 
for grazingland, pastureland, cropland, forestry, and fish and wildlife 
habitat are divided into three general categories: (1) general 
management of soil and vegetation; (2) addition of plant nutrients and 
other soil amendments; and (3) pest management. Documents defining the 
normal husbandry practices for each category are referenced. Texas 
submitted copies of these documents to support its proposed practices 
for disease and pest control; application of fertilizers; application 
and incorporation of other soil amendments; and other necessary soil 
vegetation management activities on surface-mined lands. Because the 
definition of undeveloped land excludes any type of management inputs 
during the extended responsibility period, Texas is only allowing 
limited erosion repair for this land use.
    We determined that the documents submitted by Texas and referenced 
in Section IV represent normal husbandry practices in Texas, and we 
find that Section IV is no less effective than the Federal regulations 
at 30 CFR 816.116(c)(4) and 817.116(c)(4).
    5. Section V. Repair of Damaged Reclaimed Areas and Removal of 
Structures. In Section V, Texas provides guidelines for erosion repair, 
other damage repair, reseeding areas, overseeding, and restocking of 
woody species. Texas also included a provision for regrading and 
revegetation of areas where temporary structures have been removed. By 
letter dated May 4, 1999, the USDA-NRCS State Conservationist in Texas 
concurred with Texas' proposed guidelines for repair of damaged areas 
and removal of structures in Section V.
    a. Because reclaimed sites may experience some type of damage to 
established vegetation at some point during the period of extended 
responsibility, Texas may consider repair of erosion or other types of 
damage as a normal husbandry practice, provided that the damage is not 
caused by a lack of planning, design, or implementation of the mining 
and reclamation plan. Examples of such damage includes small slips, 
channel erosion, and unauthorized access. The total acreage of repaired 
areas cannot exceed three contiguous acres or ten percent of the total 
land of the extended responsibility area. In cases of erosion, repairs 
may be considered nonaugmentative if rill and gully damage was caused 
by precipitation exceeding a 10-year/24-hour event or damage occurred 
before the first two years of a 5-year extended responsibility period 
or four years of a 10-year extended responsibility period. After the 
first two or four years, whichever is applicable, total acreage for 
erosion repair cannot exceed one contiguous acre or two percent of the 
total land of that extended responsibility area. Texas will require 
that areas undergoing damage repair be fully revegetated with 
permanent, permit-approved species for at least one year before final 
bond release and meet all vegetation cover and productivity success 
standards. Documents defining the normal husbandry practices relating 
to general management, addition of plant nutrients and other soil 
amendments, and pest management for erosion repair areas are referenced 
in this section. Texas submitted copies of these documents and the 
USDA-NRCS concurrence letter, discussed above, to support its proposed 
normal husbandry practice guidelines for repair of erosion or other 
types of damage.
    We determined that the documents submitted by Texas and referenced 
in Section V represent normal husbandry practices in Texas for repair 
of erosion or other types of damage. We believe that by limiting the 
size of areas that may be repaired without restarting the extended 
responsibility period and by demonstrating that such practices are 
supported as normal husbandry practices, Texas has ensured that the 
probability of revegetation success will not be reduced. Therefore, we 
find that Texas' proposed guidelines for repair of erosion or other 
types of damage are consistent with and no less effective than the 
Federal regulation requirements at 30 CFR 816.116(c)(4) and 
817.116(c)(4).
    b. Texas will determine whether or not regrading and revegetation 
of areas where temporary structures such as sediment ponds, roads, and 
small diversions have been removed are nonaugmentative on a case-by-
case basis. Areas that may pose significant potential for reclamation 
problems will require a separate extended responsibility period. Texas 
will require that areas undergoing removal of structures be fully 
revegetated with permanent, permit-approved species for at least one 
year before final bond release and meet all vegetation cover and 
productivity success standards.
    Texas' provision that areas will be fully revegetated for at least 
one year before final bond release and meet all vegetation cover and 
productivity success standards will ensure that the vegetation of these 
areas will be subject to Texas' counterparts to the Federal regulations 
at 30 CFR 816.116 and 817.116 relating to the attainment of 
revegetation success. It will also discourage the removal of ponds, 
roads, or diversions toward the end of the liability period for the 
surrounding area because these areas would not qualify for final bond 
release until vegetative cover is fully established and meets Texas' 
revegetation standards. Texas' reference to temporary roads in its 
policy is interpreted by OSM to mean those roads necessary for 
maintenance of sediment ponds, diversions, and reclamation areas. 
Ancillary roads used for maintenance do not include haul roads or other 
primary roads which should have been removed upon completion of mining. 
It is also noted that in its letter dated May 4, 1999, the USDA-NRCS 
State Conservationist concurred with Texas' guideline for removal of 
structures.
    Although Texas' guideline is primarily concerned with defining 
normal husbandry practices, the term ``nonaugmentative'' is used with 
reference to the removal and reclamation of structures used in support 
of reclamation. Texas specifically states in its guideline that the 
removal and reseeding of the structures is not a normal husbandry 
practice. We agree that reclamation of these areas, while being 
nonaugmentative, is not a normal husbandry practice.
    As outlined in the May 29, 1996, Federal Register (61 FR 26792), 
OSM has adopted the policy published for comment in the September 15, 
1993, Federal Register (58 FR 48333). Section 515(b)(20) of SMCRA 
provides that the revegetation responsibility period shall commence 
``after the last year of augmented seeding, fertilizing, irrigation, or 
other work'' needed to assure revegetation success. In the absence of 
any indication of Congressional intent in the legislative history, OSM 
interprets this requirement as applying to the increment or permit area 
as a whole, not individually to those lands within the

[[Page 43922]]

permit area upon which revegetation is delayed solely because of their 
use in support of the reclamation effort on the planted area. As 
implied in the preamble discussion of 30 CFR 816.46(b)(5), which 
prohibits the removal of ponds or other siltation structures until two 
years after the last augmented seeding, planting of the sites from 
which such structures are removed need not itself be considered an 
augmented seeding necessitating an extended or separate liability 
period (48 FR 44038-44039, September 26, 1983).
    The purpose of the revegetation responsibility period is to ensure 
that the mined area has been reclaimed to a condition capable of 
supporting the desired permanent vegetation. Achievement of this 
purpose will not be adversely affected by this interpretation of 
section 515(b)(20) of SMCRA because the lands involved are relatively 
small in size and either widely dispersed or narrowly linear in 
distribution and the delay in establishing revegetation on these sites 
is due not to reclamation deficiencies or the facilitation of mining, 
but rather to the regulatory requirement that ponds and diversions be 
retained and maintained to control runoff from the planted area until 
the revegetation is sufficiently established to render such structures 
unnecessary for the protection of water quality.
    In addition, the areas affected likely would be no larger than 
those which could be reseeded (without restarting the revegetation 
period) in the course of performing normal husbandry practices, as that 
term is defined in 30 CFR 816.116(c)(4) and explained in the preamble 
to that rule (53 FR 34636, 34641; September 7, 1988; 52 FR 28012, 
28016; July 27, 1987). Areas this small would have a negligible impact 
on any evaluation of the permit area as a whole. Most importantly, this 
interpretation is unlikely to adversely affect the regulatory 
authority's ability to make a statistically valid determination as to 
whether a diverse, effective permanent vegetative cover has been 
successfully established in accordance with the appropriate 
revegetation success standards. From a practical standpoint, it is 
usually difficult to identify precisely where such areas are located in 
the field once revegetation is established in accordance with the 
approved reclamation plan.
    Based on the above discussion, we find that Texas' guideline for 
regrading and revegetation of areas where temporary structures have 
been removed is consistent with and no less effective than the Federal 
regulations at 30 CFR 816.46(b)(5) and (6), 817.46(b)(5) and (6), 
816.150(f)(6), 817.150(f)(6), and sections 515(b)(19) and (20) of 
SMCRA, as clarified by OSM in the September 15, 1993, Federal Register 
(58 FR 48333).
    c. Overseeding of winter cover crops and/or summer annuals, into 
existing vegetation, is considered a normal husbandry practice. Texas 
will require reseeding activities to be included in the mining 
company's reclamation plan. Texas referenced documents defining the 
normal husbandry practices relating to general management, addition of 
plant nutrients and other soil amendments, and pest management for 
reseeded areas. Texas submitted copies of these documents to support 
reseeding areas. We determined that the documents submitted by Texas 
and referenced in Section V represent normal husbandry practices in 
Texas for overseeding of winter cover crops and/or summer annuals, into 
existing vegetation. Therefore, we find that Texas' proposed guidelines 
for overseeding are consistent with and no less effective than the 
Federal regulation requirements at 30 CFR 816.116(c)(4) and 
817.116(c)(4).
    d. Restocking of woody species is allowed, as long as the time and 
quantity of restocking is in compliance with Texas' regulations at 16 
TAC 12.395(b)(3)(B). These regulations require that trees and shrubs 
counted in determining the success of stocking be in place for not less 
than two growing seasons. At the time of bond release, at least 80 
percent of the trees and shrubs used to determine the success of 
stocking must have been in place for 60 percent of the applicable 
minimum period of responsibility. Texas' requirements for tree and 
shrub stocking are consistent with the Federal requirements at 30 CFR 
816.116(b)(3)(ii) and 817.116(b)(3)(ii). We agree that restocking of 
woody species is allowed under both the State and Federal regulations, 
as long as the time and quantity of restocking is in compliance with 
the regulations. Therefore we are approving this guideline.
    6. Section VI. Non-Normal and Unacceptable Husbandry Practices or 
Augmentation. In Section VI, Texas lists those activities that are 
considered unacceptable husbandry practices. The activities include: 
reseeding of areas devoid of vegetation due to acid mine soils; 
irrigation; supplemental watering of herbaceous vegetation and 
supplemental watering of large woody stock later than two years after 
planting; all application and incorporation of alkaline amendments, 
except for non-excessive application; and excessive application of 
plant nutrients. If any of the listed practices are performed, the 
extended responsibility period for the affected areas will restart. 
Texas does not consider practices required to address problems that 
arise from mining-related activities as normal husbandry practices. 
Texas will use information from field inspection reports and mine-soil 
chemical analysis data to evaluate unacceptable husbandry practices or 
augmentation. We agree that the activities listed in this section are 
not normal husbandry practices and that they should not be allowed 
without extending the period of responsibility for revegetation success 
and bond liability. Therefore, we find that Section VI is not 
inconsistent with the Federal regulations for normal husbandry 
practices at 30 CFR 816.116(c)(4) and 817.116(c)(4).
    7. Section VII. Literature Cited. This section provides a listing 
of the literature used in developing the guideline document. We find 
that this section is not inconsistent with the Federal regulations at 
30 CFR 816.116(c)(4) and 817.116(c)(r).

IV. Summary and Disposition of Comments

Public Comments

    On June 1, 1999, we asked for public comments on the amendment (64 
FR 19249). By letter dated June 9, 1999, the Texas Utilities Company 
System (TXU) Business Services provided comments on behalf of TXU 
Mining Company (TX-649.05). The TXU Business Services commented that 
TXU supports the proposed amendment, and the proposed procedures and 
standards provide adequate guidelines for determining revegetation 
success for the release of reclamation performance bonds. The TXU 
Business Services also stated that the amendment provides a clear 
description of the normal husbandry practices that may be used by 
permittees during the period of extended responsibility for 
revegetation success and bond liability. As shown in the findings 
above, we agree with the comments provided by the TXU Business 
Services.

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 Texas program (Administrative Record No. TX-649.03). By 
letter dated June 3, 1999 (Administrative Record No. TX-469.04), the 
USDA-NRCS State Conservationist in Temple, Texas, asked us to note that 
the amendment contained two letters from his office concurring on 
specific sections of the documents. He stated

[[Page 43923]]

that the USDA-NRCS was an active participant in the development of the 
documents, and he noted that the USDA-NRCS has worked with both the 
Texas Railroad Commission and individual mining companies in the State 
on reconstruction and reclamation of surface mined land. As indicated 
by the USDA-NRCS, the amendment contains letters dated April 13, 1999, 
and May 4, 1999, in which the USDA-NRCS concurs with Section V.B.4 of 
Texas' revegetation success guideline document and Section V of Texas' 
normal husbandry practices guideline document, respectively. As 
discussed in Finding A.5.b.(2), the USDA-NRCS concurred with Texas' 
guidelines for evaluation of productivity for restored prime farmland 
soils, and as discussed in Findings B.5. and B.5.b, the USDA-NRCS 
concurred with Texas' guidelines for repair of damaged reclaimed areas 
and removal of structures.
    By letter dated June 18, 1999, the U.S. Army Corps of Engineers 
(Corps) commented on Texas' amendment (Administrative Record No. TX-
649.08). The Corps recommended that the proposed amendment specify all 
measures in the International System of Units (SI), in lieu of the 
inch-pound (IP) system. The Federal regulations at 30 CFR 816.116 and 
817.116 do not require States to use the International System of Units 
in their guidelines for determining revegetation success or normal 
husbandry practices. Also, the standards and specifications for 
revegetation developed by the USDA-NRCS, the Texas Agricultural 
Extension Services, major universities, and other recognized sources 
use the inch-pound system. However, we will give a copy of the comments 
to Texas for its consideration when developing future amendments.

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 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 provisions 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. TX-649.01). The EPA 
did not respond to our request.

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 May 21, 1999, we requested comments on Texas' amendment 
(Administrative Record No. TX-649.02), but neither responded to our 
request.

V. Director's Decision

    Based on the above findings, we approve the amendment as sent to us 
by Texas on May 13, 1999, and as revised on June 30, 1999.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 943, which codify decisions concerning the Texas 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage Texas 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 943

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: July 28, 1999.

Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR Part 943 is amended 
as set forth below:

PART 943--TEXAS

    1. The authority citation for Part 943 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 943.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 943.15  Approval of Texas regulatory program amendments.

* * * * *

[[Page 43924]]



------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
May 13, 1999..................  August 12, 1999..  Procedures and
                                                    Standards for
                                                    Determining
                                                    Revegetation Success
                                                    on Surface-Mined
                                                    Lands in Texas;
                                                    Normal Husbandry
                                                    Practices for
                                                    Surface-Mined Lands
                                                    in Texas.
------------------------------------------------------------------------

[FR Doc. 99-20840 Filed 8-11-99; 8:45 am]
BILLING CODE 4310-05-P