[Federal Register Volume 59, Number 83 (Monday, May 2, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-10237]


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[Federal Register: May 2, 1994]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 935

 

Ohio Regulatory Program Amendment

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

ACTION: Final rule; approval of amendment..

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SUMMARY: OSM is announcing the approval, with exceptions, of a proposed 
amendment to the Ohio regulatory program (hereinafter referred to as 
the Ohio program) under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The proposed amendment revises parts of the Ohio 
Administrative Code (OAC) pertaining to land use and revegetation 
success. It establishes revegetation success standards where the 
postmining land use is undeveloped land and sampling procedures for 
measuring vegetative ground cover, forage yield and tree and shrub 
stocking.
    The amendment is intended to revise the Ohio program to be 
consistent with the corresponding Federal regulations, clarify 
ambiguities, and encourage tree planting.

EFFECTIVE DATE: May 2, 1994.

FOR FURTHER INFORMATION CONTACT:
Mr. Richard J. Seibel, Director, Columbus Field Office, Office of 
Surface Mining Reclamation and Enforcement, Eastland Professional 
Plaza, 4480 Refugee Road, Suite 201, Columbus, Ohio 43232; Telephone: 
(614) 866-0578.

SUPPLEMENTARY INFORMATION: 

I. Background on the Ohio Program.
II. Discussion 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 Ohio Program

    On August 16, 1982, the Secretary of the Interior conditionally 
approved the Ohio program. Information on the general background of the 
Ohio program, including the Secretary's findings, the disposition of 
comments, and a detailed explanation of the conditions of approval of 
the Ohio program, can be found in the August 10, 1982, Federal Register 
(47 FR 34688). Subsequent actions concerning the conditions of approval 
and program amendments are identified at 30 CFR 935.11, 935.15, and 
935.16.

II. Discussion of the Proposed Amendment

    The subject of this final rule is a combination and resubmission of 
two prior Ohio amendments, PA 25R and PA 56R (Administrative Record No. 
OH-1944). This combined resubmission was submitted to OSM by Ohio on 
October 21, 1993. OSM announced receipt of the proposed amendment in 
the November 4, 1993, Federal Register (58 FR 58824) and in the same 
notice opened the public comment period and provided opportunity for a 
public hearing on the adequacy of the amendment. The public comment 
period ended on December 6, 1993. The public hearing scheduled for 
November 29, 1993, was not held because no one requested an opportunity 
to testify.
    The Ohio legislature through the Joint Committee on Agency Rule 
Review approved the proposed amendment on November 27, 1993. The Ohio 
Department of Natural Resources, Division of Reclamation (Ohio), has 
delayed implementation of the rule until the Director of OSM makes his 
decision on the proposed amendment. Set forth below is the history of 
PA 25R and PA 56R.

Revised Program Amendment Number 25 (PA 25R)

    On January 14, 1993 (58 FR 4330), the Director of OSM announced his 
decision on a June 22, 1992, submission of PA 25R (Administrative 
Record No. OH-1725). In that decision, the Director approved Ohio's 
proposed revision to OAC 1501:13-9-15 (J)(1) adopting the requirement 
that success of revegetation shall be measured using a statistically 
valid sampling technique with a 90-percent statistical confidence 
interval. However, the Director did not approve Ohio's visual (ocular) 
method of evaluating ground cover as a statistically valid means of 
performing that sampling. Therefore, the Director continued the 
requirement at 30 CFR 935.16(f) that Ohio amend its program to include 
a statistically valid sampling technique for evaluating ground cover in 
order to be no less effective than the corresponding Federal 
regulations at 30 CFR 816.116(a).
    By letter dated June 11, 1994 (Administrative Record No. OH-1889), 
Ohio resubmitted PA 25R. In that resubmission, Ohio proposed to delete 
the recently approved requirements for statistical sampling of 
revegetation and to substitute a mixed use of ocular evaluation and 
statistical sampling under new paragraphs (G)(3)(b) (ii) and (iii) and 
revised paragraph (K)(1) of OAC 1501:13-9-15.
    OSM announced receipt of new PA 25R in the July 6, 1994, Federal 
Register (58 FR 36178), and, in the same document, opened the public 
comment period and provided opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period ended on 
August 5, 1993. The public hearing scheduled for August 2, 1993, was 
not held because no one requested an opportunity to testify.
    By letter dated September 13, 1993 (Administrative Record No. OH-
1917), OSM provided its questions and comments to Ohio on the June 11, 
1993, resubmission of PA 25R. On October 12, 1993, Ohio requested and 
received a one-week extension to the due date for its response to OSM's 
September 13, 1993, letter (Administrative Record Nos. OH-1936 and 
1937).
    Ohio's October 21, 1993, amendment submission, which is the subject 
of this final rule, was submitted in part to address OSM's September 
13, 1993, questions and comments on PA 25R. Also, as part of the 
October 21, 1993, submission, Ohio formally withdrew its earlier June 
22, 1992, submission of PA 25R, which was partially approved by the 
Director of OSM on January 14, 1993. On January 14, 1994, OSM sent Ohio 
a final issue letter which the State responded to on February 23, 1994 
(Administrative Record Nos. OH-1976 and OH-1989).

Revised Program Amendment Number 56 (PA 56R)

    By letter dated May 1, 1992 (Administrative Record No. OH-1690), 
Ohio submitted proposed PA 56. This amendment proposed changes to two 
Ohio rules concerning measurement of revegetation success on pasture or 
grazing land, undeveloped land, recreational areas, and previously 
disturbed areas.
    As part of and in support of PA 56, Ohio also submitted four draft 
Policy/Procedure Directives entitled ``Measurement of productivity on 
pasture and grazing land,'' ``Identification of areas for which the 
premining land use is undeveloped land,'' ``Planting plans for areas 
for which the approved postmining land use is undeveloped land,'' and 
``Verification of proper planting of tree seedlings.'' These proposed 
policy statements elaborated on and established criteria for the new 
requirements in the two revised Ohio rules.
    OSM announced receipt of PA 56 in the June 2, 1992, Federal 
Register (57 FR 23178) and, in the same document, opened the public 
comment period and provided opportunity for a public hearing on the 
adequacy of the proposed amendment. The public comment period ended on 
July 2, 1992. The public hearing scheduled for June 29, 1992, was not 
held because no one requested an opportunity to testify.
    By letter dated January 12, 1993 (Administrative Record No. OH-
1803), Ohio resubmitted PA 56R in response to OSM's questions and 
concerns. This revised amendment proposed additional modifications to 
the rule at OAC 1501:13-9-15. OSM announced receipt of new PA 56R in 
the March 22, 1993, Federal Register (58 FR 15315) and, in the same 
document, opened the public comment period and provided opportunity for 
a public hearing on the adequacy of the proposed amendment. The public 
comment period ended on April 21, 1993. The public hearing scheduled 
for April 16, 1993, was not held because no one requested an 
opportunity to testify.
    By letter dated October 14, 1993 (Administrative Record No. OH-
1939), OSM provided questions and comments to Ohio on the January 12, 
1993, resubmission of PA 56R. Ohio's October 21, 1993, amendment 
submission, which is the subject of this final rule, was submitted in 
part to address OSM's October 14, 1993, questions and comments. On 
January 14, 1994, OSM sent Ohio a final issue letter which the State 
responded to on February 23, 1994 (Administrative Record Nos. OH-1976 
and OH-1989).

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 concerning the 
proposed amendment to the Ohio program. Only substantive changes will 
be discussed in detail. Revisions which are not discussed below concern 
nonsubstantive wording changes or revised cross-references and 
paragraph notations that reflect organizational changes resulting from 
this amendment.
    The proposed amendment governs both surface mining activities and 
underground mining activities. The Federal counterparts are 30 CFR part 
816 for surface mining activities and 30 CFR part 817 for underground 
mining activities. With a few exceptions, part 816 and part 817 are 
substantively identical. OSM will discuss the proposed changes to 
Ohio's rules in relation to the Federal rules governing surface mining 
activities at 30 CFR part 816 with the understanding that such 
discussion also applies to the Federal rules governing underground 
mining activities at 30 CFR part 817. Any exceptions will be discussed 
separately.

1. OAC 1501:13-4-06(E)(2)(g), Land Use Changes

    Ohio is revising OAC 1501:13-4-06(E)(2)(g) to provide that a change 
in the postmining land use pursuant to Ohio's postmining land rules at 
OAC 1501:13-9-17 shall be considered a significant alteration of the 
mining and reclamation plan in the original permit and shall be subject 
to notice and hearing requirements. The Federal rules at 30 CFR 701.5 
define land uses which are to be used by permit applicants to 
characterize premining and postmining land uses. This Federal rule 
further specifies that changes of land use from one category to another 
shall be considered as a change to an alternative land use which is 
subject to approval by the regulatory authority. 30 CFR 774.13(b)(2) 
provides for the regulatory authority to establish guidelines 
concerning the scale or extent of permit revisions for which all the 
permit application information requirements and procedures including 
notice, public participation, and notice of decision requirements shall 
apply. Such requirements and procedures are to apply, at a minimum, to 
all significant permit revisions. Furthermore, in the October 1, 1980, 
Federal Register (45 FR 64908), OSM published an interpretive rule, 30 
CFR 784.200, pertaining to the approval of alternative postmining land 
uses through the permit revision procedures of 30 CFR 774.13. In this 
interpretive rule, OSM stated that it considered an application for a 
permit revision to adopt an alternative postmining land use to 
constitute a significant alteration from the mining operations 
contemplated by the original permit, and to be subject to the public 
notice and hearing requirements, as well as other provisions, of 30 CFR 
parts 773 and 775. The Director, therefore, finds that the proposed 
revisions to OAC 1501:13-4-06(E)(2)(g) bring this rule into conformity 
with the Federal interpretive rule, and are no less effective than 30 
CFR 701.5 and 774.13(b)(2).

2. OAC 1501:13-9-15 (F), (G), (H), Removed and Redesignated

    Ohio is proposing to remove paragraphs (F), (G), and (H) and 
redesignate the requirements found therein as proposed paragraphs (K), 
(L) and (N). The Director finds that the proposed deletions are 
duplicative of requirements found elsewhere in the Ohio program and do 
not render the program less effective than the Federal rules.

3. OAC 1501:13-9-15(F)(1), Measurement of Revegetation Success

A. General Revegetation Requirements
    Ohio is proposing to require as part of OAC 1501:13-9-15(F)(1) that 
the general revegetation requirements found in paragraphs (B) and (C) 
be met in all revegetation efforts. Paragraph (B) of OAC 1501:13-9-15 
requires the vegetative cover of the reclaimed area to be diverse, 
effective, and permanent; comprised of native species to the area; at 
least equal in extent of cover to the natural vegetation; and capable 
of stabilizing the soil surface from erosion. Paragraph (C) of OAC 
1501:13-9-15 requires the reestablished plant species to be compatible 
with the approved postmining use; have the same seasonal 
characteristics of growth as the original vegetation; be capable of 
self-regeneration and plant succession; be compatible with the plant 
and animal species of the area; and meet the requirements of applicable 
State and Federal seed, poisonous noxious plant, and introduced species 
laws or regulations. The Federal rules at 30 CFR 816.116(a) contain a 
similar provision which requires the success of revegetation to be 
judged, in part, upon the satisfaction of the general standards for 
revegetation at 30 CFR 816.111. Therefore, the Director finds that the 
revised State rule is no less effective than its Federal counterpart in 
this respect.
    Part A of Ohio's ``Guidelines for Evaluating Revegetation Success'' 
which were also submitted as part of this amendment provide that:

    At the time ground cover is evaluated to determine whether 
plants are established and controlling erosion, the inspector shall 
also evaluate species composition and diversity. This evaluation is 
based primarily on visual observation in the field, although 
receipts or tags from seed packages are also reviewed.

    This language indicates that species composition and diversity will 
be evaluated only at the time of phase II bond release (see OAC 
1501:13-9-15 (G)(2) and (M)(2) which contain similar language). 
However, the preamble to the Federal revegetation rules at 30 CFR 
816.116 states that these parameters must be evaluated at the time of 
final bond release. ``The final bond release inspection will evaluate 
achievement of the general requirements of 30 CFR 816.111 in addition 
to the success standards of 30 CFR 816.116 (53 FR 34641, September 7, 
1988).'' Therefore, the Director finds that this provision of the 
guidelines is less effective than the Federal rules and he is requiring 
that Ohio amend its program to require evaluation of the applicable 
parameters set forth in OAC 1501:13-9-15 (B) and (C), the State 
counterparts to 30 CFR 816.111, at the time of final bond release. The 
methodology to be used in evaluation must be clearly identified.
B. Evaluating of Specific Revegetation Success Standards
    Ohio also proposes to add language to OAC 1501:13-9-15(F)(1) to 
require that the Chief of the Ohio Department of Natural Resources, 
Division of Reclamation (the Chief) compile guidelines specifying 
statistically valid sampling techniques for measuring success of ground 
cover, production, or stocking at the time of final bond release. The 
statistical sampling techniques shall use a 90 percent confidence 
interval (i.e., a one-sided test with a 0.10 alpha error).
    The Federal rules at 30 CFR 816.116(a)(1) state that standards of 
success and statistically valid sampling techniques for measuring 
success shall be selected by the regulatory authority and included in 
an approved regulatory program. In the preamble to this rule, OSM 
indicated that this could be accomplished through either rules or by 
guidelines which are incorporated into the State program by reference 
(48 FR 40150, September 2, 1983). Ohio has submitted to OSM a separate 
document titled ``Guidelines for Evaluating Revegetation Success'' 
which is proposed for incorporation into the State program to satisfy 
OAC 1501:13-9-15(F)(1). This document, which covers data collection, 
recording, and analysis, has three parts:
    Part A. Ground Cover: This part outlines Ohio's adaptation of the 
point-intercept ``stick'' method developed by John C. Rennie and Robert 
E. Farmer et al; which Ohio will use to evaluate herbaceous ground 
cover and to evaluate tree and shrub survival concurrently with 
herbaceous ground cover.
    Part B. Stocking of Trees and Shrubs: This part outlines Ohio's 
adaptation of the Rennie-Farmer method to evaluate tree and shrub 
survival independent of ground cover using circular plots and tree and 
shrub counts within those plots. It also specifies handling and 
planting techniques for trees and shrubs.
    Part C. Productivity: This part outlines Ohio's methods for 
measuring hay production on pasture, grazing land, and cropland and for 
measuring production on cropland planted with corn, oats, and wheat.
    In his January 14, 1994, issue letter to Ohio, the Director noted 
two errors in the proposed formula to determine sample size found on 
page 13 of the ``Guidelines for Evaluating Revegetation Success.'' 
These errors involved the appropriate ``t'' value and the expression of 
acceptable error which appears in the denominator of the formula 
(Administrative Record No. OH-1976). Without correction, the formula 
will result in an inappropriate sample size. Ohio has agreed to make 
the necessary revisions but has not yet done so. The Director finds 
that, with this exception, Ohio's proposed procedures to estimate mean 
ground cover, stocking and yield are based upon and consistent with 
statistical sampling theory, and that this aspect of the requirements 
of 30 CFR 816.116(a)(1) have been satisfied. The Director notes that 
only the sampling techniques set forth in these guidelines may be used 
to evaluate revegetation success under the Ohio program.
    The State has also proposed at OAC 1501:13-9-15 paragraphs (G) 
through (N) success standards for ground cover, production and 
stocking, where appropriate, for various postmining land uses and has 
adopted the requirement in 30 CFR 816.116(a)(2) that a 90 percent 
statistical confidence interval be used when testing whether the sample 
mean is equal to or greater than the approved success standard. The 
Director finds that, with the exceptions noted above, proposed OAC 
1501:13-9-15(F)(1) and the document ``Guidelines for Evaluating 
Revegetation Success'' satisfy the requirements of and are no less 
effective than 30 CFR 816.116(a) (1) and (2). Accordingly, he is 
removing the existing requirement at 30 CFR 935.16(f) to include in the 
Ohio program statistically valid techniques for evaluating revegetation 
success and adding a new requirement that the document ``Guidelines for 
Evaluating Revegetation Success'' be revised to include the correct 
formula for determining sample size.

4. OAC 1501:13-9-15(F)(2)(b)(ii), Timing for Row Crops

    For areas to be used for agricultural cropland, including prime 
farmland, Ohio proposes to require the five-year period of extended 
responsibility to commence on the date on which the initial planting of 
row crops has been completed. The initial planting will be subject to 
verification by the Chief. This proposed rule repeats the requirements 
of existing rules OAC 1501:13-9-15(I) (4)(a) and (5)(e), which were 
previously approved by the Director. The Director finds that the 
removal of OAC 1501:13-9-15(I) (4)(a) and (5)(e) and the reinstatement 
of the requirements therein as proposed OAC 1501:13-9-15(F)(2)(b)(ii) 
does not render the Ohio program less effective than 30 CFR 816.116(c).

5. OAC 1501:13-9-15(F)(2)(c)(ii), Rill and Gully Repair

    Ohio is revising OAC 1501:13-9-15(F)(2)(c)(ii) to clarify that the 
Chief will classify instances of rill and gully erosion repair as 
either limited or extensive based on the extent of repairs needed and 
the cause of the erosion. The Chief will consider extensive repairs to 
be an augmentative practice that will restart the extended period of 
responsibility. Limited repair of rills and gullies will not be 
considered augmentative. The Director finds that this clarification is 
no less effective than 30 CFR 816.116(c)(4) and is consistent with the 
preamble which states that the ``repair of rills and gullies is not 
always simply good husbandry'' (53 FR 34642, September 7, 1988).

6. OAC 1501:13-9-15(I)(3), Removed and Redesignated

    Ohio proposes to remove OAC 1501:13-9-15(I)(3), which is an 
introductory statement for rules governing pasture or grazing land, and 
redesignate and reword the contents thereof as proposed OAC 1501:13-9-
15(G)--Revegetation Success Standards for Pasture or Grazing Land. The 
Director finds that this simplification of regulatory language and 
structure does not change the meaning of the provision in question and 
that it, therefore, can be approved.

7. OAC 1501:13-9-15(G)(3), Success Standards for Pasture or Grazing 
Lands

    Ohio is revising OAC 1501:13-9-15 (G)(3) (a) and (b) to provide 
that revegetation shall be determined to be successful for phase III 
bond release on pasture or grazing land when the following criteria are 
met: (1) the production of planted and non-noxious volunteer species 
equal or exceed the county average yield for hay for any two years of 
the period of extended responsibility, except the first year, (2) the 
ground cover equals or exceeds 90 percent for the last year of the 
period of extended responsibility and one additional year, except the 
first year, and (3) no single area with less than 30 percent cover 
exceeds the lesser of 3,000 square feet or 0.3 percent of the land 
affected.
    The success standards for areas developed for use as pasture or 
grazing land at 30 CFR 816.116(b)(1) require the ground cover and 
production of living plants on the revegetated area to equal or exceed 
that of a reference area or other success standards approved by the 
regulatory authority. Ohio has proposed to use the average yield from 
all hayland in the county where the mine is located as the standard for 
phase III bond release. Average county yields for hay are published 
annually by the Ohio Department of Agriculture without classification 
as to soil type, management intensity, or past mining history. The 
Federal rules at 30 CFR 816.116(a)(2) require standards for success to 
include criteria representative of unmined lands in the area being 
reclaimed. The potential problem of including mined land in the 
calculation of average county yields has been evaluated by the Ohio 
Agricultural Statistics Service (Administrative Record No. OH-1195). It 
was found that there are no statistically significant differences 
between county means developed with and without reclaimed land. The 
Director, therefore, finds that the average county yield for hayland in 
Ohio is representative of yield on unmined land in the State and that 
in this respect the proposed rule at OAC 1501:13-9-15(G)(3)(a) is no 
less effective than 30 CFR 816.116(a)(2). Furthermore, the approval of 
average county yields in Ohio is consistent with the Director's 
decision to approve average county yield in the Tennessee Federal 
Program (30 CFR 942.816(f)(1)).
    The Federal rules at 30 CFR 816.116(b)(1) require that success for 
pasture and grazing land be based not only upon production but also 
ground cover. Ohio has proposed a ground cover standard of 90 percent 
cover combined with the existing requirement that no single area with 
less than 30 percent cover exceeds the lesser of 3,000 square feet or 
0.3 percent of the land affected. A 90 percent ground cover and the 
associated sparse area standard are consistent with a postmining land 
use of pasture or grazing land where the objective is forage production 
and the decision by the Director to require a similar standard under 
the Tennessee Federal Program (30 CFR 942.816(f)(1)). The Director, 
therefore, finds that the ground cover requirements proposed by Ohio 
for pasture and grazing land at OAC 1501:13-9-15(G)(3)(b) are no less 
effective than 30 CFR 816.116(b)(1).
    Ohio is proposing to require for phase III bond release that the 
production standard be met for any two years of the period of extended 
responsibility except the first year and that the ground cover standard 
be met for the last year of the period of responsibility and one 
additional year, except the first year. OSM's rules at 30 CFR 
816.116(c)(2) require mine operators in areas of more than 26.0 inches 
of annual average precipitation, who select a postmining land use of 
pasture or grazing land, to equal or exceed the approved success 
standard during the growing seasons of any two years of the 
responsibility period, except the first year. The Ohio rule has an 
equivalent requirement. For this reason, the Director finds that Ohio's 
proposed pasture or grazing land standards at OAC 1501:13-9-15(G)(3) 
are no less effective than 30 CFR 816.116 (b) and (c).

8. OAC 1501:13-9-15(I)(3)(C) (a), (b), (c), Removed

    Ohio proposes to remove ground cover requirements in paragraphs 
(I)(3)(C) (a), (b), and (c) for pasture and grazing land and replace 
them with the proposed standards at OAC 1501:13-9-15(G)(3). The 
Director finds that this removal does not render Ohio's rules less 
effective than the Federal rules because, as discussed in finding 7 
above, the standards established in OAC 1501:13-9-15(G)(3) are 
consistent with Federal requirements.

9. OAC 1501:13-9-15(J)(1)(b) and (J)(2), Success Standards for 
Industrial, Residential, or Commercial Areas

    Ohio proposes to revise OAC 1501:13-9-15(J)(1)(b) to provide that, 
for areas to be developed within two years after regarding is 
completed, revegetation success for phase III bond release shall be 
evaluated in the last year of the period of extended responsibility. 
The Federal counterpart at 30 CFR 816.116(c)(2) likewise requires that 
revegetation on such areas equal or exceed the applicable success 
standard during the growing season of the last year of the 
responsibility period. Accordingly, the Director finds that OAC 
1501:13-9-15(J)(1)(b) is no less effective than 30 CFR 816.116(c)(2).
    Ohio proposes to revise its ground cover standards for phase II and 
phase III bond release for areas for which an approved industrial, 
residential, or commercial postmining land use will not be achieved 
until two or more years after regrading is completed. The proposed rule 
at OAC 1501:13-9-15(J)(2) requires the ground cover success standards 
at OAC 1501:13-9-15(G)(2) to be met for phase II bond release. 
Paragraph (G)(2) provides that revegetation shall be determined to be 
successful when the species planted, in accordance with the approved 
reclamation plan, are established and the area has sufficient ground 
cover to control erosion. The Director finds that this requirement is 
consistent with 30 CFR 800.40(c)(2), which specifies that phase II bond 
release may occur when, among other things, revegetation is established 
in accordance with the reclamation plan.
    For phase III bond release, the proposed rule provides that ground 
cover in the last year of the period of extended responsibility must 
equal or exceed 90 percent. In addition, no single area with less than 
30 percent cover may exceed the lesser of 3,000 square feet or 0.3 
percent of the land affected. The Federal rules do not contain specific 
revegetation success standards for areas to be developed for 
industrial, commercial, or residential use two or more years after 
regrading is completed. Although OSM proposed standards on March 23, 
1982 (47 FR 12596), they were never adopted. The preamble to the final 
rule promulgated on September 2, 1983 (48 FR 40154) provides no 
guidance as to what standards apply to such lands. In the absence of 
specific Federal standards or guidance, the only applicable portion of 
30 CFR 816.116(b) is the requirement that standards for success ``be 
applied in accordance with the approved postmining land use.'' For 
areas to be developed for industrial, commercial, or residential use, 
ground cover is the most appropriate parameter since erosion control 
and stability are an integral part of the postmining land use, while 
woody plants (stocking) and vegetative productivity are not. Because 
the ground cover standard proposed by Ohio is equal to that required 
for pasture land, it should be sufficient to control erosion. Under OAC 
1501:13-9-15(F), such areas would also have to comply with OAC 1501:13-
9-15 (B) and (C), the State counterparts to the general revegetation 
requirements of 30 CFR 816.111, as required by 30 CFR 816.116(a). 
Therefore, the Director finds that Ohio's proposed phase III bond 
release standards for areas to be developed for industrial, commercial, 
or residential use two or more years after regrading is completed are 
consistent with the applicable provisions of 30 CFR 816.116 an no less 
stringent than sections 515(b) (19) and (20) of SMCRA.

10. OAC 1501:13-9-15(K)(3), General Requirements for Woody Vegetation

    Where the approved postmining land use is commercial forest, 
noncommercial forest, or shelterbelts, Ohio proposes that the Chief 
shall determine the appropriate species, stocking and planting 
arrangements for both woody and herbaceous plants after consultation 
with and approval by the Ohio Division of Forestry. These same 
revegetation considerations will also be determined by the Chief after 
consultation with the approval by the Ohio Division of Wildlife (DOW) 
for areas where the approved postmining land use is fish and wildlife 
habitat or undeveloped land. The State's proposed rule includes 
provisions formerly found at OAC 1501:13-9-15 (F), (G), and (H), which 
were previously approved as no less effective than 30 CFR 
816.116(b)(3)(i), which requires that minimum stocking and planting 
arrangements for woody plants be specified by the regulatory authority 
after consultation with and approval by the State agencies responsible 
for the administration of forestry and wildlife programs. The Director, 
therefore, finds that proposed OAC 1501:13-9-15(K)(3) remains no less 
effective than 30 CFR 816.116(b)(3)(i).

11. OAC 1501:13-9-15(I)(8) (b), (c), (d), Removal in Part

    Ohio proposes to remove paragraphs (I)(8) (b) and (c), which 
require tree and shrub species to be compatible with the postmining 
land use and herbaceous cover species to be compatible with the growth 
of acceptable trees and shrubs. Since the requirement for tree and 
shrub species to be compatible with the postmining land use duplicates 
OAC 1501:13-9-15(C)(1)(a), its removal will not render the Ohio program 
less effective than the Federal rules at 30 CFR 816.111(b)(1), which 
contain a similar requirement. Likewise, because there is no Federal 
rule which specifically requires that herbaceous species be compatible 
with trees and shrubs, the removal of this State rule will not render 
the Ohio program less effective than the Federal rules. Ohio has 
retained this requirement in proposed OAC 1501:13-9-15(M)(1), which 
applies to areas with a postmining land use of undeveloped land. In 
addition, both of the deleted provisions are implied requirements of 
OAC 1501:13-9-15(K)(3), which addresses appropriate species of trees 
and shrubs and appropriate mixtures of herbaceous species.
    Also proposed for removal is paragraph (I)(8)(d), which provides 
that the five-year period of extended responsibility will begin on the 
date of the planting of the approved woody plant species or the last 
augmented seeding of the herbaceous species, whichever occurs later. 
This requirement is duplicative of the general requirements for 
measuring revegetation success at OAC 1501:13-9-15(F)(2)(b)(i), which 
states that the five-year period of extended responsibility shall begin 
on the date of the last augmented seeding, fertilizing, planting, or 
other work necessary to ensure successful revegetation. The Director, 
therefore, finds that the removal of OAC 1501:13-9-15(I)(8) (b), (c), 
and (d) will not render the Ohio program less effective than the 
Federal rules at 30 CFR 816.111 and 816.116.

12. OAC 1501:13-9-15(L)(2), Ground Cover Success Standards for 
Postmining Land Uses Involving Woody Vegetation

    Ohio is proposing to revise OAC 1501:13-9-15(L)(2) to provide that, 
with respect to ground cover, revegetation shall be determined to be 
successful for a phase III bond release if the five-year period of 
extended responsibility has expired and the herbaceous ground cover in 
the last year is at least 70 percent. This provision applies to areas 
where the approved postmining land use is commercial forest, 
noncommercial forest, shelterbelts, or fish and wildlife habitat. The 
Federal rules at 30 CFR 816.116(c)(2) require areas with these approved 
postmining land uses to meet the applicable success standard during the 
growing season of the last year of the responsibility period. 30 CFR 
816.116(b)(3)(iii) requires the vegetative ground cover at the time of 
phase III bond release to be not less than that required to achieve the 
approved postmining land use. In recognition of the difficulty of 
establishing trees and shrubs in dense herbaceous cover, OSM has 
previously accepted a minimum vegetative ground cover of 70 percent for 
postmining land uses involving woody plants in States with more than 
26.0 inches of annual average precipitation (44 FR 15237, 15239-40, 
March 13, 1979). The Director, therefore, finds that OAC 1501:13-9-
15(L)(2) is no less effective than 30 CFR 816.116(b)(3) and (c)(2).

13. OAC 1501:13-9-15(L)(2)(a), Commercial Forest

    Ohio is proposing to revise OAC 1501:13-9-15(L)(2)(a) by adding the 
requirement that a minimum of 75 percent of the required trees per acre 
needed for phase III bond release where the postmining land use is 
commercial forest land shall be commercial tree species. OSM removed an 
identical provision from the Federal rules on September 2, 1983 (48 FR 
40153), in order to provide States the flexibility to establish 
standards based on local and regional conditions. Under 30 CFR 
816.116(b)(3)(i), such standards must be developed in consultation with 
and have the approval of the Ohio Division of Forestry. The Director 
finds that OAC 1501:13-9-15(L)(2)(a) is no less effective than 30 CFR 
816.116(b)(3)(i), provided Ohio submits documentation to OSM indicating 
that approval from the Division of Forestry has been obtained. Until 
such time, Division of Forestry approval must be obtained on a permit-
specific basis in accordance with OAC 1501:13-9-15(K)(3).

14. OAC 1501:13-9-15(L)(2)(c), Noncommercial Forest or Shelterbelts

    The phrase ``on each acre on which trees and shrubs are to be 
planted'' has been added to paragraphs (L)(1)(a), (L)(2)(a), (L)(2)(b), 
and (L)(2)(c) to clarify that stocking rates for trees and shrubs only 
apply to those areas where trees and shrubs are to be planted as 
indicated in the approved reclamation plan. The Director finds that 
this clarification does not render the State's rules less effective 
than their Federal counterparts which also apply only to areas upon 
which woody plants are to be planted.
    Ohio is proposing to add paragraph (L)(2)(c), which requires for 
phase III bond release, where the postmining land use is noncommercial 
forest or shelterbelts, a minimum of 450 countable trees per acre, of 
which 80 percent must have been in place for at least three years. The 
Federal rules at 30 CFR 816.116(b)(3)(i) provide that minimum stocking 
and planting arrangement shall be determined by the regulatory 
authority and that at the time of bond release, at least 80 percent of 
the trees and shrubs used to determine such success shall have been in 
place for 60 percent of the applicable minimum period of 
responsibility. In Ohio's case, 60 percent of the five-year 
responsibility period is three years. The Director, therefore, finds 
that OAC 1501:13-9-15 paragraph (L)(2)(c) is no less effective than 30 
CFR 816.116(b)(3).

15. OAC 1501:13-9-15(I)(8)(f)(ii), Removed

    Ohio is proposing to remove paragraph (I)(8)(f)(ii), which requires 
for phase III bond release where the postmining land use is commercial 
forest, noncommercial forest, shelterbelts, or fish and wildlife 
habitat that the herbaceous ground cover be the greater of 30 percent 
or sufficient to control erosion. This provision has been replaced by 
proposed OAC 1501:13-9-15(L)(2) which sets a new minimum ground cover 
standard of 70 percent for phase III bond release. Because the new 
standard is potentially more protective of the environment, the 
Director finds that the removal of OAC 1501:13-9-15(I)(8)(f)(ii) can be 
approved. However, the Director notes that this standard cannot 
supersede the general requirement of OAC 1501:13-9-15(B)(4), which 
provides that revegetation must be capable of stabilizing the soil 
surface from erosion. Therefore, if 70 percent cover is inadequate to 
control erosion, a greater degree of cover must be established before 
final bond release can be approved.

16. OAC 1501:13-9-15(M), Success Standards for Undeveloped Land

A. Background and Description of Proposed Amendment
    Undeveloped land is defined by Ohio at OAC 1501:13-9-17(C)(10) as 
``land that is not currently being used or managed or, if previously 
used or managed, is land that has been allowed to return naturally to 
an undeveloped state or has been allowed to return to forest through 
natural succession.'' This is identical to the Federal definition of 
``undeveloped land or land with no current use or management'' at 30 
CFR 701.5.
    Under OAC 1501:13-9-17, undeveloped land can be approved as a 
postmining land use; however, the proposed success standards for 
undeveloped land will apply only in those situations where the 
premining land use is undeveloped land. Where both the premining and 
postmining land use is undeveloped land, the permittee will be required 
to reclaim the disturbed area to the undeveloped land use success 
standards in OAC 1501:13-9-15(M). Where the postmining land use is 
undeveloped land, but the premining land use is not, the permittee is 
required to obtain approval for a land use change and to reclaim the 
disturbed area to the forestland/fish and wildlife habitat revegetation 
standards found at OAC 1501:13-9-15(L).
    Ohio's proposed success standards for undeveloped land at OAC 
1501:13-9-15(M) will require the success of revegetation to be 
determined on the basis of ground cover and the proper planting of 
appropriate tree and shrub species specified in the permittee's 
approved planting plan. To be acceptable, a planting plan must include 
tree or shrub planting on 10 to 50 percent of the revegetated area. 
Planting locations must include slopes steeper than 20 degrees and the 
area along drainways and permanent sources of water.
    The requirements of OAC 1501:13-9-15(M) are supplemented by Policy/
Procedure Directive, Regulatory 94-2, ``Planting plans for areas for 
which the approved postmining land use is undeveloped land'' which 
became effective on March 15, 1994. The purpose of this Policy/
Procedure Directive is to provide standard criteria for use by the 
Division of Reclamation's (DOR) Permitting Section to review the 
planting plans for areas where the approved postmining land use is 
undeveloped land. Under the directive, permittees will be required to 
plant a minimum of 600 seedlings per acre on the portion of the permit 
area where planting of trees or shrubs is to be required. Ten to 30 
percent of the permit area must be planted to trees and shrubs where 
herbaceous cover has been planted and the permittee has obtained an 
approved postmining land use change from pastureland to undeveloped 
land. Thirty to 50 percent of the permit area must be planted to trees 
and shrubs where a permittee has obtained a postmining land use change 
to undeveloped land prior to the planting of herbaceous cover or where 
undeveloped land is the approved postmining land use at the time of 
permit application approval. An acceptable planting plan must include 
at least four hardwood tree species or shrub species selected from the 
State's approved list and at least one coniferous tree species selected 
from the State's approved list. The approved species list to part of 
the directive.
    The Directive also specifies acceptable seed mixes of herbaceous 
species. These seed mixes are designed to enhance wildlife habitat and 
to be compatible with tree planting efforts as required under OAC 
1501:13-9-15(M)(1). Kentucky 31 Fescue (Festuca arundinacea) and 
Sericea Lespedeza (Lespedeza cunerta) are prohibited from all plantings 
on undeveloped land because neither species benefits wildlife and 
neither is compatible with tree planting efforts. This language in the 
Directive supplements the requirement of proposed OAC 1501:13-9-
15(M)(1) that selected tree and shrub species and herbaceous ground 
cover species have value as wildlife habitat and that the herbaceous 
ground cover species be compatible with the growth of trees and shrubs.
    Under OAC 1501:13-9-15(K)(2), which is incorporated by reference in 
OAC 1501:13-9-15(M)(1), quality planting stock and proven field 
techniques in the science of woody revegetation must be employed on all 
areas where the postmining land use is undeveloped land. This 
requirement is reinforced and elaborated upon in the document 
``Guidelines for Evaluating Revegetation Success,'' which has been 
incorporated into the State's regulatory program. Section B.2 of the 
document describes in detail the handling and planting practices for 
seedlings that permittees are expected to follow. Each permittee must 
submit to DOR, within one week of the completion of planting, a form on 
which to verify the planting of tree and shrub seedlings. Upon receipt 
of the planting verification form, the DOR shall, within one week, 
inspect the area that has been planted to determine whether sufficient 
numbers of the appropriate species have been planted in the 
configuration shown in the approved planting plan. If the planting is 
approved, the verification form is signed by the inspector and returned 
to the permittee for submittal with the permittee's request for phase 
III bond release.
    In OAC 1501:13-9-15(M)(2), revegetation on undeveloped land will be 
found successful for phase II bond release when the herbaceous ground 
cover species are established and provide sufficient ground cover to 
control erosion. The adequacy of ground cover to control erosion will 
be determined by DOR's reclamation inspectors based on an ocular 
inspection of the disturbed area.
    Under OAC 1501:13-9-15(M)(3), revegetation on undeveloped land will 
be found successful for a phase III bond release when the five-year 
period of extended responsibility has expired and acceptable species of 
trees and shrubs have been properly planted in accordance with the 
approved planting plan at a rate of 600 trees or shrubs per acre on 
each acre on which trees or shrubs are to be planted. In addition, the 
herbaceous ground cover must at least equal 70 percent on areas where 
trees and shrubs have been planted and at least equal 90 percent or 
more on areas where no trees and shrubs have been planted. Ground cover 
will be measured using a point-intercept, systematic sampling 
procedure. These standards are to be applied to the last year of the 
period of extended responsibility for revegetation success. Survival of 
tree or shrub plantings is not a requirement for phase III bond 
release. The permittee must show by submitting a planting verification 
form signed by a DOR reclamation inspector that proper planting 
techniques have bean used and that the trees and shrubs have been 
planted in approved numbers and locations.
    In acting on Ohio's proposed amendment at OAC 1501:13-9-15(M), OSM 
is proposing to clarify agency policy concerning the appropriateness of 
undeveloped land as a postmining land use and the applicable 
revegetation performance standards.
B. Undeveloped Land as a Postmining Land Use
    In the past, OSM policy concerning undeveloped land as a postmining 
land use has not been clearly defined. The Federal definition of ``land 
use'' at 30 CFR 701.5 has always recognized ``undeveloped land or no 
current use or land management'' as a distinct land use category. 
However, the Federal regulations at 30 CFR 816.116(b) do not establish 
specific revegetation success standards for undeveloped land whereas 
such standards exist for other defined land use categories. OSM has 
sometimes interpreted this omission to mean that undeveloped land is 
not an acceptable postmining land use. At other times, OSM has treated 
this omission as a regulatory void that States are permitted to fill, 
in keeping with the concept of State primacy for the regulation of 
surface coal mining and reclamation operations, as established in 
section 101(f) of SMCRA.
    On May 8, 1991 (56 FR 21270), OSM declined to approve a proposed 
State program amendment submitted by Louisiana that would have 
established undeveloped land as a separate and distinct postmining land 
use category. In explaining this decision, OSM stated that the agency 
``does not recognize undeveloped land as a postmining land use because 
the intention of the reclamation is to return mined land to a managed 
land use. Undeveloped land is not managed.'' Finding 10(h), 56 FR 
21276. However, in finding 1(g) (57 FR 48726, 48728, October 28, 1992) 
of a final rule document announcing a decision on a subsequent 
Louisiana program amendment, OSM modified this position to recognize 
undeveloped land as a legitimate postmining land use under certain 
circumstances:

    ``[U]ndeveloped land'' can only be designated as a postmining 
land use where it was the premining land use and under no 
circumstances could undeveloped land be proposed as an alternative 
postmining land use because it does not represent a higher or better 
use as required at 30 CFR 816.133(a).

    During the same timeframe, OSM also took several actions that did 
not adhere to the principles enunciated in the Louisiana program 
amendment decisions. On February 5, 1991 (finding 66, 56 FR 4542, 
4554), OSM unconditionally approved without explanation or discussion 
an Alabama program amendment that contained separate and distinct 
revegetation success standards for lands with a postmining land use of 
undeveloped land. This approved of Alabama's amendment was followed by 
a February 28, 1992, letter from the Deputy Director of OSM, to the 
Director of the Surface Mining and Reclamation Division of the Texas 
Railroad Commission. In this letter, OSM found that the Texas 
regulatory authority had not abused its discretion by approving 
undeveloped land as a higher and better alternative postmining land use 
for a site with a premining land use of pastureland.
    Upon careful review of the Act, its implementing regulations and 
their preambles, OSM has determined that the policy established in the 
Alabama and Texas decisions is more appropriate and better supported 
then the principles advanced in the Louisiana decisions. There is no 
language in the revegetation regulations at 30 CFR 816.116, the land 
use regulations at 30 CFR 816.133, the definitions of ``land use'' and 
``higher or better uses'' in 30 CFR 701.5, or their preambles that 
would either prohibit undeveloped land as a postmining land use or 
restrict such designations to situations in which the premining use was 
undeveloped land. Consistency with SMCRA is not an issue since the Act 
does not identify acceptable postmining land use categories or define 
higher or better uses.
    Furthermore, the Louisiana program amendment findings seem to be 
inconsistent with the preamble to the definition of ``land use'' in 30 
CFR 701.5, as revised on September 1, 1983 (48 FR 39892, 39893), which 
affirms the statement in the preamble to the corresponding proposed 
rule that the definition's land use categories are not hierarchical for 
purposes of determining higher or better postmining land uses. 
Specifically, the preamble to the proposed rule provides that:

    [T]he ten categories of land use in the existing definition of 
land use are not hierarchical. That is, one land use category is not 
automatically a higher or better use than another. In each 
situation, the regulatory authority has to compare the values and 
benefits of the postmining alternative land use to the values and 
benefits of the premining land uses.

47 FR 16152, 16155, April 14, 1982.

    Including undeveloped land, the definition contains only ten land 
use categories, none of which have undergone material change since 
1979. Therefore, it appears that the Secretary did not intend to 
exclude undeveloped land from consideration as either a postmining land 
use or a higher or better use.
    In addition, on September 1, 1983, OSM defined ``higher or better 
uses'' as land uses that have a higher economic value or nonmonetary 
benefit to either the landowner or the community than the premining 
land uses (48 FR 39892, 39903). Since undeveloped land can provide 
higher ecological benefits than such premining uses as cropland and 
pastureland, the exclusion of undeveloped land as an acceptable 
alternative postmining land use category would be inconsistent with the 
definition.
    The Director is interpreting the land use and revegetation 
provisions of SMCRA and the Federal regulations in a manner that will 
reverse the positions taken in the Louisiana program amendment 
decisions and will support the approval of the proposed Ohio program 
amendment. The Director finds that proposed OAC 1501:13-9-15(M), which 
establishes undeveloped land as a postmining land use, is consistent 
with SMCRA and does not render Ohio's rules less effective than 30 CFR 
701.5, 816.116 and 816.133.
C. Revegetation Success Standards for Undeveloped Land
    As noted above, the Federal regulations at 30 CFR 816.116(b) do not 
establish specific revegetation success standards for undeveloped land 
whereas such standards exist for other defined land use categories. In 
the case of the Louisiana program amendments discussed above, OSM 
interpreted this omission to mean that all mined lands, including areas 
with either a premining or designated postmining land use of 
undeveloped land, must be reclaimed to one of the land uses 
specifically addressed by the Federal regulations at 30 CFR 816.116(b). 
However, OSM did not apply this interpretation in the Alabama and Texas 
cases discussed above.
    The Louisiana decisions suggest that revegetation success standards 
for undeveloped land must be equivalent to those for one or more of the 
managed land uses that the site was capable of supporting prior to 
mining. The Federal rules do not compel such a conclusion. Although the 
preamble to 30 CFR 816.133(b) (44 FR 14902, 15243, March 13, 1979) 
indicates that Congress did not intend to allow mismanagement prior to 
mining to reduce the standards for reclamation success, a lack of 
management, which would likely characterize undeveloped land, does not 
equate to mismanagement.
    Section 515(b)(2) of SMCRA requires that land affected by surface 
coal mining operations be restored to a condition capable of supporting 
the uses which it was capable of supporting prior to any mining or to 
higher or better uses of which there is a reasonable likelihood. 
However, this capability demonstration is independent of the 
revegetation requirements of paragraphs (b)(19) and (b)(20) of section 
515 of SMCRA. There is no language that would compel the adoption of 
revegetation success standards based on the land's potential uses prior 
to mining rather than the approved postmining land use. Indeed, in the 
preamble to 30 CFR 816.133(a) as revised on September 1, 1983 (48 FR 
39892, 39897), the Secretary states that:

    [T]he final rule emphasizes the land's capability, both with 
regard to premining uses and higher or better uses, in this 
implementation of Section 515(b)(2) of the Act. This requirement is 
distinct from the revegetation or prime farmland rules, which under 
some circumstances may require actual production on the reclaimed 
land as a measure of successful reclamation.

    It is also impractical to interpret section 515(b)(2) of SMCRA and 
30 CFR 816.133 as requiring that revegetation success standards be 
adequate to demonstrate that the land has been restored to conditions 
that are capable of supporting the variety of uses that the land was 
capable of supporting prior to mining. Revegetation requirements for 
the various land uses that any individual site may be capable of 
supporting, such as forestry, pastureland and cropland, are frequently 
in conflict.
    Furthermore, section 508(a) of SMCRA and its legislative history 
(S. Rep. No. 128, 95th Cong., 1st Sess. 77 (1977)), provide that the 
demonstration that premining capability can and will be restored must 
be made as part of the reclamation plan submitted with the permit 
application. Thus, the land use restoration requirements of section 
515(b)(2) are addressed primarily through the permit application review 
process, and compliance is achieved by adherence to the reclamation 
plan and other performance standards such as those pertaining to toxic 
materials, topsoil, and backfilling and grading. No separate capability 
demonstration is necessary upon the completion of mining and 
reclamation.
    The Director will interpret the land use and revegetation 
provisions of SMCRA and the Federal regulations in a manner that will 
reverse the positions taken in the Louisiana program amendment 
decisions and will support approval of Ohio's proposed program 
amendment. The establishment by States of separate and distinct 
revegetation success standards for undeveloped land is consistent with 
the Federal regulations which do not contain specific success standards 
for undeveloped land, and is in keeping with section 101(f) of SMCRA, 
which vests the States with the primary governmental responsibility for 
developing, authorizing, issuing and enforcing regulations for surface 
coal mining and reclamation operations.
    To be approvable, all such standards must comply with 30 CFR 
816.116(a), i.e., they must be consistent with the requirements of 30 
CFR 816.111 and they must include a statistically valid evaluation of 
appropriate vegetation parameters, including ground cover, production 
or stocking. In addition, they must satisfy the permittee's obligation 
to enhance fish, wildlife, and related environmental values when 
practicable as required by section 515(b)(24) of SMCRA. Such 
enhancement will always be practicable on undeveloped land since there 
will be no conflict with the approved postmining land use. However, 
undeveloped land use standards need not meet any of the requirements of 
30 CFR 816.116(b) since this paragraph applies only to the postmining 
land uses identified therein, none of which is undeveloped land.
    In his review of proposed OAC 1501:13-9-15(M), the Director has 
applied the tests described above. Under the Ohio proposal, land 
reclaimed to an undeveloped postmining land use will be required to 
satisfy the general revegetation requirements found at OAC 1501:13-9-15 
(B) and (C). OAC 1501:13-9-15(B) requires the permittee to establish a 
vegetative cover that is: (1) Diverse, effective, and permanent; (2) 
comprised of species native to the area, or of introduced species where 
desirable and necessary to achieve the approved postmining land use; 
(3) at least equal in extent of cover to the natural vegetation of the 
area; (4) capable of stabilizing the soil surface from erosion. These 
general revegetation requirements correspond to the general 
revegetation requirements at 30 CFR 816.111. The Director finds that in 
this respect OAC 1501:13-9-15(M) is no less effective than the Federal 
rules at 30 CFR 816.116(a).
    Ohio's proposal meets the second criterion for approval by 
establishing standards for ground cover and by requiring that success 
in achieving these standards be accomplished using statistically valid 
sampling procedures. The State has proposed in OAC 1501:13-9-15(M) to 
require a ground cover at least equal to 70 percent where trees and 
shrubs have been planted and at least equal to 90 percent where no 
trees and shrubs have been planted. The evaluation of ground cover will 
be accomplished using an approved statistical sampling procedure in 
accordance with the ``Guidelines for Evaluating Revegetation Success.'' 
The Director finds that in this respect, OAC 1501:13-9-15(M) is no less 
effective than 30 CFR 816.116(a) (1) and (2).
    Furthermore, the Ohio program already includes rules which require 
the enhancement of fish, wildlife and related environmental values on 
undeveloped land as well as lands reclaimed to other postmining land 
uses. OAC 1501:13-4-05(P)(2) requires that each permit application 
include enhancement measures that will be used during reclamation and 
the postmining phase of operations to develop aquatic and terrestrial 
habitat. Permittees are required under OAC 1501:13-9-11(C)(5) to select 
plant species to be used on reclaimed areas based on their nutritional 
value for fish and wildlife, their use as cover for fish and wildlife 
and their ability to support and enhance fish and wildlife habitat 
after release of bonds. The distribution of plant groupings must 
maximize benefit to fish and wildlife. As required by proposed OAC 
1501:13-9-15(K)(3), DOR has consulted with and obtained approval from 
the DOW for Policy/Procedure Directive, Regulatory 94-2, Planting Plans 
for Undeveloped Land (Administrative Record Nos. OH-1989 and OH-2011). 
This further assures that wildlife enhancement will be accomplished 
where the postmining land use is undeveloped land. The Director finds 
that the wildlife enhancement requirements embodied in proposed OAC 
1501:13-9-15(M) and Policy/Procedure Directive 94-2 are consistent with 
section 515(b)(24) of SMCRA and no less effective than the Federal 
rules at 30 CFR 780.16 and 816.97.
    Under proposed OAC 1501:13-9-15(M), permittees need only show that 
they have planted the approved number and species of trees and shrubs 
using proper planting techniques in order to obtain release of 
performance bond. Survival of planted trees and shrubs is not required. 
This differs from other postmining land uses such as fish and wildlife 
habitat, commercial and noncommercial forest, and shelterbelts where 
survival of woody plants is a requirement in both State and Federal 
rules. There are no specific Federal revegetation standards under 30 
CFR 816.116 for land reclaimed to an undeveloped land use. Since, by 
definition, undeveloped land is ``land that has been allowed to return 
naturally to an undeveloped state or has been allowed to return to 
forest through natural succession,'' and the early stages of natural 
succession are dominated by herbaceous and semi-woody plants, survival 
of woody stock planted to artificially speed the successional process 
is not integral to a determination of whether the land is capable of 
achieving a normal vegetative climax through natural succession within 
a reasonable period of time. Therefore, even though Ohio is proposing 
to require planting of trees and shrubs on undeveloped land, OSM has 
determined that it is not necessary for Ohio to establish woody plant 
survival standards for undeveloped land. Rather, it is sufficient if 
the revegetation success standards meet the requirements of 30 CFR 
816.111 and 816.116(a) and if the species selected for revegetation 
will not impede the establishment of woody plants native to the area 
and characteristic of natural succession in that locality. As discussed 
in Finding 3.A., the Director is approving Ohio's proposal that the 
general revegetation requirements found in paragraphs (B) and (C) of 
OAC 1501:13-9-15, which correspond to the requirements found in 30 CFR 
816.111, be met in all revegetation efforts. Accordingly, the Director 
finds that the requirement found in OAC 1501:13-9-15(M) that the 
success of revegetation for phase III bond release be based, in part, 
on the proper planting of trees and shrubs, does not render the Ohio 
program to be less effective than 30 CFR 816.111 and 816.116(a). The 
Director notes that the absence of a specific survival standard for 
trees and shrubs does not relieve the State's responsibility to require 
the presence of trees where necessary to determine that a diverse 
vegetative cover be established on regraded areas and all other lands 
affected, as required in 30 CFR 816.111 and section 515(b)(19). The 
evaluation of diversity should consider species diversity or richness 
(number of species and their relative importance) and structural 
diversity (patchiness and vertical distribution of plants). 
Representation of the major life forms, e.g. trees, shrubs, grasses and 
forbs is an integral part of the evaluation of structural diversity 
(Administrative Record No. OH-2009). The Director has determined that 
where a major life form was present before mining, it must be 
represented in the postmining vegetation in order to satisfy the 
diversity requirement in SMCRA and the Federal rules. Specific survival 
standards for trees and shrubs need not be included in the Ohio rules; 
however, representative numbers of trees and shrubs must be present at 
the time of final bond release. This this end, the Director is 
requiring Ohio to submit documentation that it has consulted with and 
obtained the approval of the DOW or other responsible agency for 
methods to be used to evaluate diversity at the time of final bond 
release and that such methods be included in the document ``Guidelines 
for Evaluating Revegetation Success.''

17. OAC 1501:13-9-15(N), Success Standards for Recreation Areas

    Proposed OAC 1501:13-9-15(N) establishes separate revegetation 
success standards for areas with a postmining land use involving 
developed recreation facilities, such as portions of parks, camps and 
amusement areas where woody vegetation would be incompatible with the 
postmining land use, as opposed to areas with a postmining land use 
involving less intensive recreational activities, such as hiking or 
canoeing. Revegetation success standards for developed recreational 
facilities would be limited to ground cover, while standards for less 
intensive recreational uses would include both ground cover and woody 
plant stocking.
    The corresponding Federal regulations at 30 CFR 816.116(b)(3), 
which provide that revegetation success on lands with a recreational 
postmining land use shall be evaluated in terms of ground cover and 
woody plant stocking, do not distinguish between types of recreational 
uses. However, OSM does not believe that the Federal regulations 
require that trees and shrubs be planted on all portions of lands with 
recreational postmining land uses. Interpreting the rule in that 
fashion would be unduly restrictive and would conflict with achievement 
of the postmining land use to the extent that the approved land use 
involves athletic fields, golf courses, or other facilities 
incompatible with woody plants. For functional, aesthetic, and 
ecological reasons, it may also be desirable to exclude trees and 
shrubs from other portions of recreational areas. Therefore, the 
Director finds that the distinctions and separate revegetation success 
standards proposed by Ohio for recreational lands are not inconsistent 
with the Federal regulations at 30 CFR 816.116(b)(3), provided Ohio 
does not implement its rules in a manner that would subvert the intent 
of the Federal rules to require that recreational lands be planted with 
trees and shrubs wherever such plantings are not incompatible with the 
postmining land use.
    For areas where the approved postmining land use is developed 
recreation facilities, OAC 1501:13-9-15(N)(1) requires compliance with 
the ground cover standards specified in OAC 1501:13-9-15 (G)(2) and 
(G)(3)(b) for phase II and III bond release, respectfully, except that 
only one ground cover evaluation in the last year of the responsibility 
period is necessary for phase III bond release. For phase II bond 
release, paragraph (G)(2) requires that revegetation be established in 
accordance with the approved reclamation plan with sufficient ground 
cover to control erosion. The Director finds that this requirement is 
consistent with 30 CFR 800.40(c)(2), which authorizes phase II bond 
release when, among other things, revegetation has been established in 
accordance with the approved reclamation plan. For phase III bond 
release, paragraph (G)(3)(b) requires that ground cover equal or exceed 
90 percent. In addition, no single area with less than 30 percent cover 
may exceed the lesser of 3,000 square feet or 0.3 percent of the land 
affected. The Director finds that these standards are consistent with 
the Federal requirements for revegetation success standards at 30 CFR 
816.116(b)(3), which provide that ground cover on recreational areas 
may not be less than that required to control erosion and achieve the 
postmining land use.
    For those areas with less intensive recreational postmining land 
uses, OAC 1501:13-9-15(N)(2) requires compliance with the general 
requirements for woody vegetation in paragraph (K). In addition, for 
phase II bond release, the site must meet the revegetation success 
standards of paragraph (L)(1), which requires the planting of 600 trees 
or shrubs per acre on each acre on which trees and shrubs are to be 
planted and a herbaceous ground cover of at least 30 percent or such 
greater cover as is needed to control erosion. The Director finds that 
this requirement is consistent with 30 CFR 800.40(c)(2), which 
authorizes phase II bond release when, among other things, revegetation 
has been established in accordance with the approved reclamation plan. 
For phase III bond release, the site must meet the revegatation success 
standards of paragraph (L)(2) in the last year of the revegetation 
responsibility period. Under paragraph (L)(2), the herbaceous ground 
cover must equal at least 70 percent and there must be at least 250-450 
countable trees per acre which have met time-in-place requirements.
    The Federal rules at 30 CFR 816.116(b)(3) requires the success of 
vegetation for areas developed for recreation to be based on tree and 
shrub stocking and vegetative ground cover. The vegetative ground cover 
shall not be less than that required to achieve the postmining land 
use. The Director finds that the standards proposed by Ohio in 
paragraph (N)(2) meet these requirements. In the event 70 percent 
ground cover is inadequate to control erosion, OAC 1501:13-9-15(F)(1), 
by reference to OAC 1501:13-9-15 (B) and (C), requires a greater degree 
of cover (whatever is needed to control erosion). The Federal rule also 
requires that minimum stocking and planting arrangements for woody 
plants be specified by the regulatory authority after consultation with 
and approval by the State agencies responsible for the administration 
of forestry and wildlife programs. OAC 1501:13-9-15(K)(3), which is 
incorporated by reference into proposed paragraph (N)(2), contains an 
identical requirement, but the State did not submit proof of 
concurrence with the specific stocking standards in this rule. 
Therefore, the Director finds that, while proposed OAC 1501:13-9-
15(N)(2) can be approved, Ohio will need to obtain permit-specific 
approval of stocking standards for recreational land uses from the 
pertinent State agencies until such time as the State submits 
documentation that the appropriate State agencies have concurred with 
the programmatic standards in this rule.
    Finally, the Federal rules at 30 CFR 816.116(c)(2) provide for 
phase III bond release on areas with a recreational postmining land use 
if the applicable success standards are met or exceeded during the 
growing season of the last year of the revegetation responsibility 
period. As noted above, paragraphs (N) (1) and (2) of the State rules 
both contain this requirement. Therefore, the Director finds that they 
are no less effective than 30 CFR 816.116(c)(2).

18. OAC 1501:13-9-17(B)(2), Removed

    Ohio proposes to remove OAC 1501:13-9-17(B)(2), which provides that 
the postmining use for land that has not been previously mined and that 
had not been properly managed prior to mining shall be judged on the 
basis of surrounding lands which have received proper management. The 
State indicated in its May 1, 1992, letter to OSM that the provision 
has been interpreted as prohibiting the approval of undeveloped land as 
a designated postmining land use (Administrative Record No. OH-1690). 
Therefore, the State is proposing to remove the rule.
    Because an identically worded Federal counterpart to this rule 
(former 30 CFR 816.133(b)(2)) was removed without explanation on 
September 1, 1983 (48 FR 39904), the Director finds that the removal of 
OAC 1501:13-9-18(B)(2) does not render the Ohio program less effective 
than 30 CFR 816.133. However, the Director notes that, even with the 
removal of OAC 1501:13-9-17(B)(2), the remainder of paragraph (B) still 
requires consideration of whether the land has been properly managed, 
as does its Federal counterpart at 30 CFR 816.133(b). Therefore, the 
Director's approval of the proposed deletion shall not be construed as 
an endorsement of the establishment of artificially low restoration 
standards resulting from improper management during the period 
immediately preceding mining.

IV. Summary and Disposition of Comments

Public Comments

    The Director solicited public comments and provided an opportunity 
for a public hearing on the proposed amendment on several occasions. 
The National Coal Association (NCA), the Citizens Coal Council (CCC), 
and the Division of Wildlife, Ohio Department of Natural Resources 
(DOW) submitted substantive comments which are summarized and discussed 
below.
    The NCA supported Ohio's proposal to provide for undeveloped land 
as a postmining land use because it would promote the reclamation of 
mined lands to a mix of trees and herbaceous species with increased 
ecological diversity and accelerate natural succession (Administrative 
Record No. OH-1969). NCA further explained that undeveloped land as a 
postmining land use falls within the directive of section 515(b)(2) of 
SMCRA, which requires surface coal mine operators to ``* * * restore 
the land affected to a condition capable of supporting the uses that it 
was capable of supporting prior to any mining * * *,'' and that the 
Federal definition of ``land use'' at 30 CFR 701.5 recognizes 
``undeveloped land or no current use or land management'' as a 
legitimate land use category for land that is undeveloped or, if 
previously developed, land that has been allowed to return naturally to 
an undeveloped state. NCA concluded that the undeveloped postmining 
land use category in the amendment is consistent with and no less 
effective than SMCRA and the Federal rules. As discussed in Finding 16, 
the Director agrees with NCA's conclusion and is approving Ohio's 
proposed rule.
    NCA also commented that, in developing the proposed success 
standards for undeveloped land, Ohio recognizes that existing tree and 
shrub survival requirements, which require restarting the extended 
responsibility period if the survival standards are not met, have 
discouraged operators from planting trees or incorporating forestry as 
a postmining land use. In NCA's opinion, the Ohio amendment properly 
balances the need to address existing regulatory disincentives to tree 
planting with the most critical factor to assuring success of tree 
plantings--the selection and planting operation. In support of these 
comments, NCA submitted literature citing a decline in tree planting 
due to SMCRA's grading, compaction and ground cover requirements and 
emphasizing species selection, handling, and planting techniques as the 
most critical factors in tree survival. The Director acknowledges that 
the issues raised by the NCA may be relevant to the NCA's support of 
Ohio's proposed undeveloped land use revegetation requirements, but 
notes that the basis for approval of the amendment, as more fully 
discussed in Finding 16, is that it is no less effective than the 
Federal regulations at 30 CFR 816.111, 816.116 and 816.133.
    NCA specifically supported Ohio's lower standard for ground cover 
for those areas planted with trees and shrubs by noting that competing 
vegetation inhibits tree seedling survival, fosters an environment for 
rodent damage, and discourage the invasion of native plant species. The 
Director notes that Ohio has proposed a ground cover standard of 70 
percent where trees and shrubs are to be planted and a ground cover 
standard of 90 percent where no tree and shrub planting is planned. He 
agrees with the NCA that these standards should be adequate to 
stabilize the mined area and control erosion; however, as noted in 
finding 15, if 70 percent cover is insufficient to stabilize the mined 
area, a greater degree of cover must be established before bond can be 
fully released.
    The CCC commented that tree planting was a good idea and supported 
the concept of returning land to a state that closely resembles its 
premining use (Administrative Record No. OH-1895). The CCC also stated 
that past practices by State regulatory authorities and OSM in applying 
SMCRA have caused too many acres of forestland to be replaced with 
pastureland monocultures populated by introduced rather than native 
grass species. The CCC further expressed the belief that the current 
provisions of the Ohio program (OAC 1501:13-9-15(L), Success Standards 
for Wood Vegetation) allow the regulatory authority to require the 
planting of trees, shrubs and other desired species for any postmining 
land use and that the proposed rules on undeveloped land, without any 
productivity standards, are unnecessary. The CCC also stated that the 
real problem in Ohio was a ``culture'' of enforcement that fosters 
improper reclamation, not the regulations. The CCC argued that the 
approval of the proposed undeveloped land success standards in Ohio 
would further erode the enforcement provisions of SMCRA.
    The Director agrees that, in general, slowing the conversion of 
forestland to pastureland is a desirable goal. He believes that the 
approval of undeveloped land revegetation success standards will 
further attainment of this goal. The Director finds no evidence to 
support the CCC's charges that inadequate enforcement has fostered 
improper reclamation or that approval of the amendment will erode the 
enforcement provisions of SMCRA. The Director further finds that the 
question of whether the undeveloped land use category and success 
standards are necessary is irrelevant. Under 30 CFR 732.15 and 
732.17(h)(10), the standard for review and approval of State program 
amendments is consistency with SMCRA and the Federal rules, not whether 
the amendment is necessary.
    The DOW supported the proposed amendment because it will help solve 
a longstanding problem of lack of diversity on reclaimed lands 
(Administrative Record No. OH-1896). The DOW explained that vegetative 
diversity is a requirement for high quality wildlife habitat and that 
the availability of a postmining undeveloped land use category will 
significantly increase wildlife habitat development in an area of the 
State existing rich in such habitat. The DOW did not view the 
traditional practice in Ohio of establishing large tracts of grassland 
monocultures as a ``higher or better'' use of mined land. The Director 
agrees with the DOW that vegetative diversity is needed to achieve high 
quality wildlife habitat and that approval of the undeveloped 
postmining land use category and revegetation success standards should 
further this goal. Furthermore, he is requiring the DOR to consult with 
and obtain DOW's approval of the methods to be used to evaluate species 
and structural diversity at the time of final bond release (see 
findings 3A and 16).

Agency Comments

    Pursuant to 30 CFR 732.17(h)(11)(i), the Director solicited 
comments on the proposed amendment from the Regional Administrator of 
the U.S. Environmental Protection Agency (EPA); the U.S. Department of 
Agriculture, Soil Conservation Service (SCS); and the heads of other 
Federal agencies with an actual or potential interest in the Ohio 
program. Only the EPA and the SCS provided substantive comments.
    The EPA recommended that a surface soil and water survey be 
performed to ensure that the revegetation for the postmining land uses 
is successful. In response, the Director notes that OAC 1501:13-2-
10(K)(2) requires the operator to monitor flow and quality of surface 
runoff from the permit area prior to treatment. This data is used by 
the operator to demonstrate that the quality and quantity of runoff 
without treatment will minimize disturbance to the prevailing 
hydrologic balance, meet effluent standards, and attain the prevailing 
postmining land use. SMCRA and its implementing regulations do not 
require a surface soil survey as suggested by the EPA, and the Director 
does not have independent authority to require one.
    The EPA also commented that Ohio's proposed guidelines for the 
evaluation of revegetation success do not provide for adequate 
assessment of plant species diversity, plant community composition and 
stability, or percent survival of critical species required to 
establish desired plant communities (Administrative Record No. OH-
1973). The agency stated that this assessment should be required for 
undeveloped lands, especially in situations where the land use goal is 
to provide wildlife habitat. The EPA believed the Rennie-Farmer method, 
which Ohio proposes to use for assessing revegetation, is adequate for 
percent cover only. It suggests that the Rennie-Farmer method be 
modified to provide quantitative data on species diversity and plant 
community composition by incorporating assessment of plant species 
(number of plants per species and total species present) at each sample 
point along the transect. The EPA provided an example of how it 
believed the restored revegetation should be evaluated and monitored. 
In the example, monitoring reports would be required according to a 
schedule in the permit. These reports would identify the criteria for 
evaluation and the performance standards to be met. For each habitat 
type, they would include the success achieved for critical evaluation 
parameters, and plans for remedial measures if the standard is not 
being met. The EPA recommended that the reports, at a minimum, address 
critical species, undesirable species, percent cover, species richness, 
species quality, and planting success. The EPA described each of these 
parameters and suggested that evaluations be done at the end of three 
and five years after initial planting.
    The Director agrees that many of EPA's suggestions have technical 
merit. However, nothing in SMCRA or the Federal rules requires 
quantitative evaluation of species diversity. Therefore, the Director 
does not believe it would be appropriate to require Ohio to adopt a 
numerical standard for diversity. As previously stated in finding 16, 
he is requiring the DOR, in consultation with the DOW, to submit 
methods for evaluating diversity, which may or not include quantitative 
measures. Such an evaluation or diversity is expected to take into 
account species richness (number of species and their relative 
importance) and structural diversity (patchiness and vertical 
distribution of plants).
    The SCS suggested that traditional land use designations such as 
wildlife habitat or woodland are better than the proposed ``undeveloped 
land'' postmining land use (Administrative Record No. OH-1701). Upon 
further inquiry by OSM, it expressed the belief that it was advisable 
to assign a ``beneficial'' use to reclaimed areas rather than to 
establish idle land as a reclamation goal. In response, the Director 
notes that as indicated in finding 16, undeveloped land has ecological 
benefits. Nothing in SMCRA or the State or Federal regulations 
authorizes substandard reclamation of these sites. To the contrary, 
they must be reclaimed to conditions that are capable of supporting all 
the uses that they are capable of supporting prior to mining.
    SCS also commented on Policy/Procedure Directive, Regulatory 94-2 
(page 3). It believed that the recommended four to six pounds per acre 
seeding rate for Ladino Clover was extremely high and may result in too 
much competition with other species (Administrative Record No. OH-
1835). A rate of one-half to one pound per acre of Ladino Clover was 
suggested as more appropriate. OSM has reviewed the technical 
literature on this topic and found that most sources recommend a 
seeding rate of three pounds per acre when Ladino Clover is used for 
mined land reclamation. The four to six pounds proposed by Ohio has 
been approved by DOW and is within reasonable limits.
    The State Historic Preservation Officer (SHPO) commented that 
information obtained during archaeological/architectural/historical 
surveys of proposed permit areas may be useful in determining premining 
land use for undeveloped land (OAC 1501:13-9-17(B)) (Administrative 
Record No. OH-1713). The Director has forwarded this comment to the 
State for consideration, but he finds that it has no bearing on whether 
the amendment can or cannot be approved under 30 CFR 732.17.

V. Director's Decision

    Based on the above findings, the Director approves the proposed 
amendment as submitted by Ohio on May 1, 1992, and June 11, 1993, and 
revised on January 12, 1993, and October 21, 1993. As noted in findings 
3A, 13, 16, and 17, Ohio is required to revise its program to require 
the evaluation of diversity and other revegetation success standards 
during final bond release inspection and to provide documentation that 
it has obtained concurrence from the appropriate State agencies for the 
revegetation success standards which apply to areas with commercial 
forest and recreation as the proposed postmining land use. As noted in 
finding 3B, Ohio is required to revise its proposed formula for 
determining the size of sample needed to evaluate the revegetation 
success of trees and shrubs. The existing requirement to include in the 
Ohio program statistically valid sampling techniques for evaluating 
revegetation success is being removed because Ohio has fulfilled this 
requirement by including the document ``Guidelines for Evaluating 
Revegetation Success'' in the State program.
    The Federal regulations at 30 CFR Part 935 codifying decisions 
concerning the Ohio 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 
conform their programs with the Federal standards without undue delay. 
Consistency of State and Federal standards is required by SMCRA.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to a State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved programs. In the oversight 
of the Ohio program, the Director will recognize only the approved 
program, together with any consistent implementing policies, directives 
and other materials, and will require the enforcement by Ohio of such 
provisions.

VI. Procedural Determinations

Executive Order 12866

    This final rule is exempt from review by the Office of Management 
and Budget under Executive Order 12866.

Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 and has determined that, to the 
extent allowed by law, this rule meets the applicable standards of 
subsections (a) and (b) of that section. However, these standards are 
not applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and 30 CFR 730.11, 732.15 and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA [30 U.S.C. 1292(d)] provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act, 42 U.S.C. 
4332(2)(C).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act, 44 U.S.C. 3507 et seq.

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal which is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Hence, 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 935

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 21, 1994.
Alfred E. Whitehouse,
Acting Assistant Director, Eastern 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 935--OHIO

    1. The authority citation for part 935 continues to read as 
follows:

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

    2. Section 935.15 is amended by adding new paragraph (qqq) to read 
as follows:

Section 935.15  Approval of Regulatory Program Amendments

* * * * *
    (qqq) The following amendment (program amendment 25R and 56R) 
pertaining to the Ohio regulatory program, as submitted to OSM on May 
1, 1992, and June 11, 1993, and revised on January 12, 1993, and 
October 21, 1993, is approved, effective May 2, 1994.
    (1) Revisions to OAC 1501:13-4-06(E)(2)(g), Land Use Change; OAC 
1501:13-9-15, Revegetation; and OAC 1501:13-9-17(B), Postmining Use of 
Land;
    (2) Ohio Department of Natural Resources Guidelines for Evaluating 
Revegetation Success; and
    (3) Division of Reclamation Policy/Procedure Directive, Regulatory 
94-2, Planting Plans for Undeveloped Land.
    3. Section 935.16 is revised to read as follows:

Section 935.16  Required Regulatory Program Amendments

    (a) By July 1, 1994, Ohio shall submit either a proposed amendment 
or a description of an amendment to be proposed, together with a 
timetable for adoption, to revise the document ``Guidelines for 
Evaluating Revegetation Success'' to require that diversity, erosion 
control, and other applicable requirements of OAC 1501:13-9-15 (B) and 
(C) be evaluated based on identified methodologies at the time of final 
bond release and that the formula used to determine the size of sample 
needed to evaluate the success of tree and shrub plantings be revised 
in accordance with the Director's January 14, 1994, letter to Ohio. 
Consistent with OAC 1501:13-9-15(K)(3), Ohio also needs to submit 
documentation that it has consulted with and obtained the approval of 
the Ohio Division of Wildlife or other responsible agency for the 
methods to be used to evaluate diversity at the time of final bond 
release.
    (b) [Reserved]

[FR Doc. 94-10237 Filed 4-29-94; 8:45 am]
BILLING CODE 4310-05-M