[Federal Register Volume 70, Number 51 (Thursday, March 17, 2005)]
[Proposed Rules]
[Pages 13076-13087]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-5023]



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Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Parts 816 and 817



Topsoil Replacement and Revegetation Success Standards; Proposed Rule

  Federal Register / Vol. 70, No. 51 / Thursday, March 17, 2005 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Parts 816 and 817

RIN 1029-AC02


Topsoil Replacement and Revegetation Success Standards

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

ACTION: Proposed rule.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are proposing minor changes to our regulations that govern 
topsoil replacement and revegetation success standards. These revisions 
would: Encourage species diversity on reclaimed lands; provide 
flexibility to States in using new vegetative success standards and 
sampling techniques; define success standards for undeveloped land; 
remove shelter belts from the list of postmining land uses subject to 
success standards; remove what we believe is an impediment to 
reforestation of mined lands and provide practical means of measuring 
woody shrubs commonly planted on arid lands in the West; and make the 
timing of revegetation success measurements in areas receiving 26 
inches of annual precipitation or less consistent with those in areas 
receiving more than 26 inches of annual precipitation.

DATES: Written comments: Comments on the proposed rule must be received 
on or before 4:30 p.m., eastern time, on May 16, 2005, to ensure our 
consideration.
    Public hearings: Upon request, we will hold a public hearing on the 
proposed rule at a date, time and location to be announced in the 
Federal Register before the hearing. We will accept requests for a 
public hearing until 5 p.m., eastern time, on April 7, 2005.

ADDRESSES: You may submit comments, identified by docket number 1029-
AC02, by any of the following methods:
     Department of the Interior's on-line commenting system: 
https://ocsconnect.mms.gov. Follow the instructions on the Web site for 
submitting comments.
     E-mail: [email protected]. Include docket number 
1029-AC02 in the subject line of the message. We encourage you to e-
mail your comments; however, our network may not accept comments from a 
yahoo.com or a hotmail.com address.
     Mail/Hand Delivery/Courier: Office of Surface Mining 
Reclamation and Enforcement, Administrative Record, Room 252, 1951 
Constitution Avenue, NW., Washington, DC 20240.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Docket: You may review the docket (administrative record) 
for this rulemaking including comments received in response to this 
proposed rule at the Office of Surface Mining Reclamation and 
Enforcement, Administrative Record, located in Room 101, 1951 
Constitution Avenue, NW., Washington, DC 20240. The Administrative 
Record office is opened Monday through Friday, excluding holidays from 
8 a.m. to 4 p.m. The telephone number is 202-208-2847.
    Instructions: All submissions received must include the agency name 
and docket number for this rulemaking. For detailed instructions on 
submitting comments and additional information on the rulemaking 
process, see ``III. How Do I Submit Comments On the Proposed Rule?'' in 
the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Robert Postle, Office of Surface 
Mining Reclamation and Enforcement, U.S. Department of the Interior, 
P.O. Box 46667, Denver, CO 80201; telephone: 303-844-1400, extension 
1469. E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background Information
II. What Are The Proposed Rule Changes?
III. How Do I Submit Comments On The Proposed Rule?
IV. Procedural Matters and Required Determinations

I. Background Information

    In response to several revegetation issues and questions that have 
been raised over the years both by the public and internally within 
OSM, we decided to conduct a public outreach initiative to review and 
assess our revegetation regulations at 30 CFR 816.111 through .116 and 
30 CFR 817.111 through .116. As part of this revegetation outreach 
initiative, we published a Federal Register notice on May 17, 1999 (64 
FR 26773), announcing public meetings and soliciting comments, 
concerns, and new ideas regarding the regulatory performance standards 
that determine revegetation success. In the notice, we also announced 
the availability of an OSM concept paper that reviewed various 
longstanding revegetation issues. The concept paper was made available 
to interested parties upon request, via FAX ON DEMAND, and on the 
Internet at http://www.osmre.gov. Ten public meetings were held around 
the country between May 27 and August 25, 1999. In the Spring of 2003, 
as a follow-up to this 1999 revegetation initiative, OSM conducted a 
survey of State regulatory authorities. The survey was designed to 
determine if the statistical and/or production requirements of the 
current revegetation regulations at Sec.  816.116 and Sec.  817.116 
adversely affect the establishment of a diverse plant community; if 
there is a continuing need for inclusion of success standards and 
sampling techniques in a State's approved program; and if there is a 
need for success standards for the undeveloped postmining land.
    In addition to the revegetation initiative and survey, we also 
established a reforestation outreach initiative that began with three 
workshops involving Federal and State regulatory personnel, industry 
representatives, and landowners. These workshops were held between 
January 1999 and May 2002. As part of this second initiative, we raised 
the question whether specific OSM regulations act as a disincentive to 
the choice of forestry as a postmining land use.
    Largely as a result of these revegetation and reforestation 
initiatives and survey, OSM identified five minor revisions that it 
felt needed to be made to the existing regulations. The proposed 
revisions would be to the topsoil replacement standards at Sec.  
816.22(d)(1)(i) and Sec.  817.22(d)(1)(i); the success standards and 
sampling techniques requirements at Sec.  816.116(a)(1) and Sec.  
816.117(a)(1); the land use categories subject to the success standards 
of Sec.  816.116(b)(3) and Sec.  817.116(b)(3); the revegetation 
success standards for trees and shrubs at Sec.  816.116(b)(3)(ii) and 
Sec.  817.116(b)(3)(ii); and timing of revegetation success 
measurements at Sec.  816.116(c)(3)(i) and (ii) and Sec.  
817.116(c)(3)(i) and (ii). These proposed revisions would, 
respectively, encourage species diversity on reclaimed land; provide 
States more flexibility in using additional success standards and 
sampling techniques; provide success standards for undeveloped land; 
remove shelter belts from the list of postmining land uses subject to 
success standards; remove what we believe to be an impediment to the 
reforestation of mined lands and provide a practical means of measuring 
woody shrubs commonly planted in the West (the tree and shrub stocking 
standards); and make the timing of revegetation success measurements in 
areas receiving 26 inches of annual

[[Page 13077]]

precipitation or less consistent with those in areas receiving more 
than 26 inches of annual precipitation. Since the soil replacement and 
revegetation success standards are identical for surface and 
underground mining activities, this preamble will discuss our proposed 
revisions to part 816 with the understanding that the discussion also 
applies to our proposed revisions to part 817.

II. What Are the Proposed Rule Changes?

    1. Section 816.22(d)(1)(i): Topsoil Redistribution
    We are proposing changes to our topsoil redistribution standard in 
Sec.  816.22(d)(1)(i) in an effort to encourage the growth of the 
diverse vegetative cover required by both section 515(b)(19) of the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) 
and its implementing regulations at Sec.  816.111(a)(1). Our current 
topsoil redistribution regulations at Sec.  816.22(d)(1)(i) require 
that topsoil be replaced in a manner that ``achieves an approximately 
uniform, stable thickness consistent with the approved postmining land 
use * * *.''
    The Sec.  816.22(d)(1)(i) requirement that topsoil be replaced to 
an approximate uniform thickness has proven to be particularly 
appropriate when the approved postmining land uses are, for example, 
commercial forestry or cropland, which involve a single species 
vegetative cover in a managed agricultural environment. However, when 
the approved postmining land uses are wildlife habitat or grazingland 
(rangeland) that require satisfaction of specified vegetative diversity 
standards for bond release, the Sec.  816.22(d)(1)(i) requirement that 
topsoil be replaced to an approximate, uniform thickness may often work 
against the achievement of those vegetative diversity standards. This 
is because a plant community that will sustain itself without constant 
management input is, to a considerable degree, a function of the 
physical and chemical characteristics of the soil upon which it is 
growing. In turn, topsoil depth is one of the several physical 
characteristics that can easily be varied to encourage the desired 
species diversity. Accordingly, we propose to revise our topsoil 
redistribution regulations at Sec.  816.22(d)(1)(i) to allow soil 
thickness to be varied to the extent that such variation encourages the 
specific revegetation goals identified in the permit. As explained in 
more detail at the end of this section, the proposed topsoil revision 
will allow topsoil to be distributed at variable thicknesses when such 
variations will encourage the development of the diverse plant 
community required for a specific postmining land use.
    When we first promulgated our topsoil regulations over 20 years 
ago, we noted that two commenters had objected to the proposed uniform 
thickness requirement as being a design standard, not a performance 
standard. 48 FR 22092 (May 16, 1983). These commenters warned that the 
rule's uniform soil thickness requirement could lead to a monoculture 
vegetative community rather than a diverse native species community. We 
did not accept this comment, responding that topsoil thickness is but 
one of several factors affecting plant growth and species 
diversification. We stressed, with words that suggested our awareness 
of the significant practical problems that could be posed by a variable 
thickness requirement, that soil horizons commonly develop in variable 
thicknesses and abrupt changes occur within short linear distances. In 
consideration of these facts, the 1983 rule required that soil be 
redistributed to an ``approximately uniform, stable thickness 
consistent with the approved postmining land uses * * *.'' We 
characterized this rule language as a ``common sense approach to 
provide a workable standard that would sufficiently protect the 
environment and achieve the goals of the Act.'' 48 FR 22097 (May 16, 
1983).
    More recently, in response to OSM's 1999 revegetation outreach 
effort, commenters again questioned the appropriateness of the Sec.  
816.22(d)(1)(i) provision, which they interpreted as requiring that 
topsoil always be redistributed to a uniform thickness. These 
commenters stated that uniform soil thickness tends to promote a 
limited number of species in the vegetative cover while variable soil 
thicknesses tend to promote a more diverse vegetative community. The 
truth of this proposition has been born out by the experience of OSM 
agronomists and is consistent with well-established principles of soil-
plant relationships. On this basis, we propose to revise our 
regulations at Sec.  816.22(d)(1)(i) by adding a sentence that would 
expressly allow soil thickness to be varied to the extent such 
variations help to meet the specific revegetation goals identified in 
the permit. We would also insert the word ``when'' between the words 
``thickness'' and ``consistent'' in the existing language of Sec.  
816.22(d)(1)(i). This insertion should make clear that the uniform soil 
thickness provision is a function of the approved postmining land use, 
contours, and surface water drainage systems, and is not, in itself, an 
inflexible requirement. Section 816.22(d)(1)(i), as revised, would read 
as follows: ``Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit.''
    In these proposed revisions to Sec.  816.22(d)(1)(i), which would 
allow but not require non-uniform redistribution of topsoil, we seek to 
avoid the very practical redistribution problems discussed in the 1983 
preamble. 48 FR 22097. While the uniform topsoil redistribution 
standard of that rule has generally worked quite well, the proposed 
revisions to that standard are intended to provide the operator with 
another tool for encouraging the development of the diverse plant 
communities required of specific postmining land uses. For example, if 
the designated postmining land use was fish and wildlife habitat, and 
the desired plant communities were a mixture of grasslands with 
interspersed shrub and trees areas for wildlife cover, then the permit 
could describe the use of variable topsoil thickness to ensure the 
establishment of grasses on thicker soils and trees and shrubs on 
thinner soils. The fact that the permit applicant must clearly set 
forth the justification for any non-uniform redistribution of topsoil 
should largely protect against potential abuse. This rule would not 
affect existing topsoil salvage requirements.

2. Section 816.116(a)(1)

    Removal of requirement that only revegetation success standards and 
measurement techniques that have been approved as part of regulatory 
programs through the Federal rulemaking process may be used to document 
whether revegetation has been successfully attained.
Introduction
    Our regulation at Sec.  816.116(a)(1), which we adopted on 
September 2, 1983 (48 FR 40160), requires regulatory authorities to 
select standards for determining revegetation success and statistically 
valid sampling techniques to demonstrate whether the selected standards 
have been achieved at reclaimed mine sites. It also requires that the 
standards and sampling techniques from which these selections are made 
be approved as part of State regulatory programs, which in essence 
requires compliance with the Federal

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rulemaking process that governs the review and approval of regulatory 
programs and program amendments.
    Revegetation success standards set out the type, nature, density, 
and distribution of plants that a permittee must reestablish on the 
disturbed areas of a minesite and the length of time that the plants 
must be in place before they may be counted for purposes of determining 
whether the standard has been met. Revegetation success standards 
include both qualitative and quantitative elements.
    Qualitative elements include most of the items listed in Sec.  
816.111, which focuses on the kind of plant species to be established 
(based on their suitability for the postmining land use and the other 
factors listed, such as permanence, diversity, and seasonality). In 
some cases, they also may include species diversity, the type and 
condition of plants that may be counted for purposes of evaluating 
revegetation success, the spatial distribution of various types of 
plants on the reclaimed area (when evaluating diversity), and a 
determination of whether vegetative ground cover is adequate to control 
erosion.
    For the purposes of this preamble, the quantitative elements of 
revegetation success standards consist of the three parameters listed 
in Sec.  816.116(a)(2): ground cover, production, and stocking. Ground 
cover is defined in Sec.  701.5 as the percentage of the land surface 
that is overlain by either aerial parts of plants (generally live 
leaves and stems) or naturally produced litter (dead leaves and stems). 
Production refers to the quantity of a particular part or parts of the 
plants grown on a site. The most common production standards are row 
crop yields (e.g., bushels of corn per acre) and the amount of hay or 
forage produced (e.g., tons of hay per acre, adjusted for moisture 
content, or the average weight of oven-dried clippings from sample 
plots). Stocking is a measure of the density of woody plants, generally 
the number of trees (and sometimes shrubs) per acre. Consistent with 
the precedent established in our 1979 rules (see 30 CFR 816.116(b)(3) 
[1979]), we interpret the requirement in Sec.  816.116(a)(1) and (2) 
that revegetation success be evaluated using statistically valid 
sampling techniques as applying only to the standards for the three 
parameters mentioned in paragraph (a)(2): ground cover, production, and 
stocking.
    Standards for success and statistically valid sampling techniques 
must comply with the requirements of Sec.  816.116(a)(2) and (b). As 
discussed in above, paragraph (a)(2) of those rules requires that 
revegetation success standards include the parameters of ground cover, 
production, and stocking to the extent that those parameters are 
appropriate for the type of vegetation associated with the postmining 
land use. It also requires that those parameters be evaluated using 
sampling techniques with a 90 percent statistical confidence interval. 
These sampling techniques are needed because, with the exception of 
whole-field harvest of hay and grains, it is rarely practical to count 
every qualifying plant or plant part on the minesite being evaluated. 
Use of appropriate statistical methods will ensure that the estimate 
(average of all sample plots measured) of the true value of the 
vegetation parameter being evaluated is correct a specified percentage 
of the time. For example, if the estimate of the site's ground cover, 
as determined by the average of ground cover measurements from 
individual plots within the site, is valid at the 90 percent confidence 
level, that estimate will represent the true value, or actual ground 
cover of the entire site, 9 out of 10 times.
    The numerical standards for the parameters mentioned in paragraph 
(a)(2) must be representative of the values for those parameters on 
unmined lands in the area. For example, crop yields from reclaimed 
lands must be equivalent to yields from similar unmined lands in the 
vicinity of the operation. Paragraph (b) of Sec.  816.116 specifies 
which of the three parameters must be included in revegetation success 
standards for various postmining land uses (cropland; pastureland; 
grazingland; fish and wildlife habitat; recreation, shelterbelts, or 
forestry; and areas to be developed for industrial, commercial, or 
residential use). It also establishes additional criteria that the 
revegetation success standards for the parameters associated with those 
land uses must meet. Finally, it provides that only the ground cover 
parameter will apply when an operation remines and reclaims previously 
mined areas that had not been reclaimed to permanent program standards.
    Examples of revegetation success standards established pursuant to 
this rule include a requirement that a minimum percentage of vegetative 
ground cover be established on the reclaimed area, a minimum stocking 
requirement for woody plants (a specified number of qualifying trees or 
shrubs per land unit), minimum crop yields per land unit, and minimum 
forage production per land unit. Success standards may be established 
in a variety of ways, including (1) on a program-wide basis, (2) 
through the use of technical guides such as average county crop yield 
statistics collected by the National Agricultural Statistics Service or 
other State or Federal agencies, or (3) the use of reference areas, in 
which measurements of pertinent vegetative parameters from the 
reclaimed area are compared with measurements from an undisturbed area 
with weather, soil, slope, aspect, and other characteristics similar to 
those of the reclaimed area before it was mined.
    Paragraph (a)(2) of Sec.  816.116 requires the use of objective, 
statistically valid sampling techniques to document whether 
revegetation success standards for the parameters of ground cover, 
production, and stocking have been achieved. This requirement does not 
apply to the other elements of the evaluation of revegetation success 
required by the introductory paragraph of Sec.  816.116(a), such as 
species composition and diversity. Specifically, all such techniques 
must use a 90 percent confidence interval; i.e., a one-sided test with 
a 0.10 alpha error. Examples of statistically valid sampling techniques 
include the point-intercept and line-intercept methods of measuring 
ground cover; harvest of sample plots to measure crop production; 
weighing oven-dried clippings from sample plots to determine forage 
production on pasture and grazingland; and belt transect and point-
centered quarter methods to measure stocking of woody plants.
    We remain satisfied with this approach to documenting the success 
of revegetation. However, the rule we adopted in 1983 allows use of 
only those revegetation success standards and measurement techniques 
that have been incorporated into the approved regulatory program. See, 
Sec.  816.116(a)(1). We propose to remove that requirement. The 
criteria in Sec.  816.116(a)(2) and (b) would continue to govern the 
selection of appropriate revegetation success standards and measurement 
techniques for ground cover, production, and stocking. Furthermore, as 
provided in Sec.  780.18(b)(5)(vi) and Sec.  784.13(b)(5)(vi), each 
permit application must specify the particular revegetation success 
standards and measurement techniques that will be used to document 
successful revegetation at that site.
    As explained in more detail below, there are a number of reasons 
why we no longer believe that revegetation success standards and 
measurement techniques need to be included in the approved regulatory 
program. First, ongoing research findings and technological advances 
sometimes provide a basis for refining success standards and modifying 
or improving

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sampling techniques. However, the relatively cumbersome State-program 
amendment process may discourage States from utilizing those research 
findings and technological advances to adopt new and improved sampling 
techniques and modified revegetation success standards. Second, from 
the beginning of the program, we have recognized that appropriate 
revegetation success standards may vary greatly, even within a State, 
depending upon the range of land uses, climates, soils, etc. that 
occur. Third, our regulations do not require that sampling techniques 
and technical standards used to meet other program requirements be 
incorporated into an approved regulatory program.
    Finally, of all the Federal regulatory programs, only the one for 
Tennessee (see 30 CFR 942.816(f) and 942.817(e)) includes specific 
revegetation success standards. None of the Federal regulatory programs 
includes specific measurement techniques for documenting revegetation 
success. Our experience in the three Federal programs that have 
jurisdiction over active mining operations (Tennessee, Washington, and 
the Indian lands program) indicates that the absence of specific 
standards and techniques in those programs has not resulted in 
inadequate revegetation of mined lands, in an inability to ensure 
documentation of attainment of revegetation success, or in 
determinations that are inconsistent with other determinations either 
within the State or program or with those in other States.
    We believe that allowing States to select revegetation success 
standards and sampling techniques without requiring prior approval of 
those standards and techniques through the program amendment process 
would better enable States and operators both to keep up with 
technological advances and to tailor success standards to local 
conditions. The existing requirement that those standards and 
techniques comply with the detailed criteria of Sec.  816.116(a)(2) and 
(b) should ensure that the success standards and sampling techniques 
used in the various States will provide similar degrees of proof that 
adequate reclamation has been achieved.
Statutory and Regulatory Background--the Revegetation Provisions of 
SMCRA
    Section 515(b)(19) of SMCRA mandates that surface coal mine 
operators ``establish on the regraded areas, and all other lands 
affected, a diverse, effective, and permanent vegetative cover * * * 
capable of self-regeneration and plant succession at least equal in 
extent of cover to the natural vegetation of the area * * * .'' 30 
U.S.C. 1265(b)(19).
    Section 515(b)(20) requires the surface mine operator to ``assume 
the responsibility for successful revegetation, as required by 
paragraph (19) above, for a period of five full years after the last 
year of augmented seeding, fertilizing, irrigation, or other work in 
order to assure compliance with paragraph (19) above, except in those 
areas or regions of the country where the annual average precipitation 
is twenty-six inches or less, then the operator's assumption of 
responsibility and liability will extend for a period of ten full years 
after the last year of augmented seeding, fertilizing, irrigation, or 
other work * * * .'' 30 U.S.C. 1265(b)(20).
    Section 516(b)(6) requires underground mining operators to 
``establish on regraded areas and all other lands affected, a diverse 
and permanent vegetative cover capable of self-regeneration and plant 
succession and at least equal in extent of cover to the natural 
vegetation of the area * * *.'' 30 U.S.C. 1266(b)(6).
The Revegetation Provisions of the Current Rule
    The Secretary has fleshed out these statutory performance standards 
for revegetation with detailed regulatory ones found at Sec. Sec.  
816.111 through 816.116. In doing so the Secretary concluded that there 
was no reason to establish differing standards for surface and 
underground mining. 48 FR 40140 (September 2, 1983). In particular, 
Sec.  816.116 sets out at some length the parameters to be used to 
document the success of revegetation and how those parameters are to be 
measured.
    Section 816.116(a)(1), which we propose to remove in part, requires 
that the regulatory authority select revegetation success standards and 
statistically valid sampling techniques and include those standards and 
techniques in the approved regulatory program: ``Standards for success 
and statistically valid sampling techniques for measuring success shall 
be selected by the regulatory authority and included in an approved 
regulatory program.''
    We propose to remove the phrase ``and included in an approved 
regulatory program'' and retain only the requirement that the 
regulatory authority select revegetation success standards and 
statistically valid sampling techniques. We anticipate that the States 
will continue to put the success standards and statistically valid 
sampling techniques in an internal guidance document for use by 
operators in developing permit applications.
    Sections 816.116(a)(2) establishes certain criteria for the 
revegetation success standards and sampling techniques: ``Standards for 
success shall include criteria representative of unmined lands in the 
area being reclaimed to evaluate the appropriate vegetation parameters 
of ground cover, production, or stocking. Ground cover, production, or 
stocking shall be considered equal to the approved success standard 
when they are not less than 90 percent of the success 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).''
    Section 816.116(b) sets out more specific criteria for revegetation 
success standards based on the land's previous mining history and the 
approved postmining land use.
The Reasons We Adopted Objective Measurements and Tests for Documenting 
the Success of Revegetation
    The existing regulation at Sec.  816.116(a)(1) requiring that the 
regulatory authority select standards for revegetation success and 
statistically valid sampling techniques and include those standards and 
techniques in the regulatory program was proposed March 23, 1982 (47 FR 
12596), and adopted September 2, 1983 (48 FR 40150). The rule was 
intended to address at least two potentially competing considerations 
when determining the success of revegetation: (1) The need to reflect 
local soils and climatic conditions and (2) the need for consistent 
determinations both between States and within a particular State--``The 
proposed regulations would require the regulatory authority to develop 
standards that reflect the capabilities of local soils and climatic 
conditions. Minimum standards and acceptable sampling techniques would 
become parts of State programs and would be subject to approval by OSM. 
OSM believes this arrangement will enable States to tailor success 
standards to local conditions and at the same time will assure that, 
regardless of State, all selected standards will provide similar 
degrees of proof that adequate reclamation has been achieved.'' 
Preamble to proposed rule. 47 FR 12596, 12599 (March 23, 1982).
    The 1979 rule required the use of either reference areas or 
technical standards published by the U.S. Department of Agriculture or 
the U.S. Department of the Interior to evaluate ground cover and 
productivity. See 30 CFR 816.116(a) and (b)(1) (1979). The 1983 rule 
allowed States to select

[[Page 13080]]

technical standards from any source or, if desirable, to develop new 
standards. In response to comments that the proposed rules would leave 
individual States without guidance when determining minimum acceptable 
standards for revegetation success, OSM stated in the preamble to the 
final rule that ``[t]his rulemaking reaffirms OSM's position that the 
primary responsibility for regulating surface mining and reclamation 
operations should rest with the States. Federal rules must be capable 
of nationwide application. The absence of detail in the Federal rules 
is not a weakening of revegetation requirements but reflects that the 
rules are designed to account for regional diversity in terrain, 
climate, soils, and other conditions under which mining occurs.'' 
Preamble to final rule. 47 FR 40140 (September 2, 1983).
    OSM believed that the flexibility provided by the new rule would 
not adversely impact the consistency and reliability of results: 
``Proposed Sec.  816.116(a)(1) would require the use of statistically 
valid sampling techniques for measuring success. Under the proposal, 
the sampling procedures would be chosen by the regulatory authority. 
OSM believes that the use of statistically valid sampling techniques 
would aid regulatory authorities in making consistent decisions 
regarding performance bond release and provide standardized inspection 
techniques sought by mine operators.'' Proposed rule. 47 FR 12596, 
12599 (March 23, 1982).
    In the preamble to the final rule, OSM described how these 
measurement techniques might work: ``Under this rule, the method of 
sampling vegetation could vary depending upon the precise standard for 
success included in the State program. In this manner, both an 
``ecologically sound'' and ``scientifically acceptable'' technique for 
measuring the success of revegetation can be developed. On sparsely 
vegetated lands, sampling may be limited to gathering data for 
estimates of total vegetative ground cover. There also may be 
circumstances where, with the approval of the regulatory authority, 
historical data collected for the same cover type within the region can 
be used, rather than reference-area data. In the East, 100 randomly 
located point-frequency observations will usually provide an acceptable 
sample size for the estimation of vegetative ground cover. Small sample 
sizes are associated with large statistical error which can make a test 
for revegetation success meaningless. OSM has not stated a level of 
sampling precision in the final rules but will instead evaluate on a 
case-by-case basis the adequacy of predetermined sample sizes or 
methods of sample size selection proposed for use in State programs.'' 
Preamble to final rule. 47 FR 40140, 40150 (September 2, 1983).
The Reasons for Removing the Requirement That Success Standards and 
Statistically Valid Sampling Techniques Be Approved as Part of the 
Regulatory Program
    a. The requirement to include success standards and sampling 
techniques for revegetation in approved regulatory programs is 
unnecessarily burdensome.
    In the years since adoption of the 1983 rule, as discussed below, 
we have found that the requirement that revegetation success standards 
and statistically valid sampling techniques, including modifications to 
those standards and techniques, be approved as part of the regulatory 
program imposes a significant and unnecessary burden on both OSM and 
the States.
    Further, this requirement may discourage the utilization of new and 
improved sampling methods based on new technologies or research by 
academia and government agencies. For example, in the West, the Western 
Region Coordinating Center has been working with representatives of 
State regulatory authorities in the region to develop resources such as 
success/failure charts and handbooks on successful practices. In the 
Western region, improvements in statistical tools, such as the 
application of nonparametric statistics and use of the ``reverse'' null 
hypothesis, as well as the commonly used classical null hypothesis and 
parametric statistics, have increasingly allowed revegetation 
specialists to more accurately evaluate and compare relatively sparse 
and irregularly distributed premining and postmining vegetation. 
Similarly, new techniques using computers and satellite-based remote 
sensing tools now can be used to more accurately evaluate vegetation 
characteristics of premining lands, and perhaps in the future, 
postmining lands. In the future, it may be possible to use these tools 
to document vegetation diversity that may not be apparent from random 
design sampling grids. More and more frequently, remote sensing tools 
are being used to evaluate premining vegetation mosaics. The Western 
Region Coordinating Center is encouraging States and operators to 
develop and experiment with new tools and techniques such as multi-
spectral remote sensing, to document plant diversity and more 
accurately reflect the composition of plant communities. In the 
Appalachian Region OSM is working with the State of West Virginia and 
academia to demonstrate the utility and suitability of the plate method 
for evaluating herbaceous productivity on reclaimed lands.
    The time and resources required by the State program amendment 
process, however, discourage updating approved standards and 
techniques. Because of the time and resources required by the program 
amendment process, States forfeit flexibility to make changes that may 
be more accurate measures of revegetation success. Review of OSM's 
program amendment records indicates that processing of revisions to 
approved success standards and sampling techniques takes an average of 
approximately 4.5 months and can range from 2.5 months to 7 months, not 
taking into account the time it takes States to prepare the program 
amendment submission. The amendment process, codified at Sec.  732.17, 
requires publication of a proposed rule in the Federal Register, a 
period for public comment, review of the standards and sampling 
techniques for consistency with the requirements in Sec.  816.116, 
identification of any deficiencies to the regulatory authority, 
response from the State, possible reopening of the comment period, 
development of a draft final rule, Solicitor review of that final rule, 
and publication of the final rule in the Federal Register as part of 
the approved State regulatory program. The concern that in 1983 led OSM 
to reject national standards and sampling techniques in favor of local 
standards and techniques supports the more flexible approach that we 
are proposing here. 47 FR 12599 (March 23, 1982).
    Moreover, our regulations do not require that sampling techniques 
used to meet other program requirements, such as the collection of 
geologic data and evaluation of overburden characteristics under Sec.  
780.22 or the models used to prepare the determination of the probable 
hydrologic consequences of mining under Sec.  780.21(d), be approved as 
part of the regulatory program. Nor do they require that other 
technical standards, such as the definition of material damage to the 
hydrologic balance needed to prepare the cumulative hydrologic impact 
assessment under Sec.  780.21(g), be approved as part of the regulatory 
program. Instead, regulatory authorities generally deal with these 
issues by preparing technical guidance documents. We have found this 
approach to be highly effective, both in States with approved State 
programs and in States where OSM is the

[[Page 13081]]

regulatory authority, such as Federal program States and on Indian 
lands.
    Finally, of all the Federal regulatory programs, only the one for 
Tennessee (see 30 CFR 942.816(f) and 942.817(e)) includes specific 
revegetation success standards. None of the three Federal programs that 
have active mining (Tennessee, Washington, and the Indian lands 
program) include specific vegetation sampling techniques. The Tennessee 
program at 30 CFR 942.816(f)(6) and 942.817(e)(6) expressly states that 
sampling techniques for measuring woody plant stocking and ground cover 
shall be in accordance with techniques approved by the Office. In 
addition, only the Tennessee program (at 30 CFR 942.816(f) and 
942.817(e)) includes revegetation success standards. In all other 
cases, the burden of going through a Federal rulemaking process to 
establish revegetation success standards and sampling techniques has 
effectively been imposed only upon States. The fact that we have not 
incorporated revegetation success standards and sampling techniques 
into most Federal programs has not created a significant divergence 
between Federal program States and other States with respect to 
standards and techniques for documenting successful reclamation.
    b. Adoption of this rule change will not lead to inconsistent 
performance standards and sampling techniques.
    For a number of reasons, we believe that allowing State regulatory 
authorities to select revegetation success standards and sampling 
techniques for documenting revegetation success without first 
incorporating those requirements into their approved programs will not 
adversely affect the quality of reclamation of mined lands or lead to 
significant inconsistencies among the States.
    First, the regulations at Sec.  816.116(a)(2) and (b), for which 
all State programs must have counterparts, establish detailed criteria 
and requirements for the standards and sampling techniques that States 
may utilize. These regulations should ensure that the revegetation 
success standards and sampling techniques that States employ for the 
parameters of ground cover, production, and stocking will be consistent 
with one another in terms of the quality of revegetation success 
required and the statistical validity of measurement techniques. Each 
State program must include provisions consistent with Sec.  
816.116(a)(2) and (b). The change that we are proposing would allow a 
State program to employ the latest analytical and sampling techniques 
without first having to seek Federal approval. The criteria enunciated 
in Sec.  816.116(a)(2) and (b), however, would prohibit States from 
establishing inadequate success standards or selecting sampling 
techniques for which there is no sound scientific basis. In short, the 
requirements of Sec.  816.116(a)(2) and (b) would adequately ensure 
that the revegetation success standards and sampling techniques 
selected by the various States would provide similar degrees of proof 
that adequate reclamation has been achieved.
    Second, under Sec.  773.6(a) and (b)(2), any person with an 
interest that might be adversely affected by a decision on a permit 
application has the opportunity to review and comment on the permit-
specific revegetation success standards and sampling techniques that 
each permit application must include pursuant to Sec.  780.18(b)(5)(vi) 
and Sec.  784.13(b)(5)(vi). Also, when a permittee applies for final 
bond release, the surface owner must be notified of the bond release 
inspection and given the opportunity to participate. See, Sec.  
800.40(b)(1). Before a bond is released, persons with a valid legal 
interest, including surface owners, have the right to file written 
objections to the bond release and to request a public hearing. See, 
Sec.  800.40(f).
    Finally, under Sec.  733.12(a)(1), we annually evaluate the 
administration of each State program. The inspections conducted as part 
of that oversight process should identify any major deficiencies with 
respect to a State's revegetation success standards and revegetation 
sampling techniques. If we discover that inappropriate or inadequate 
standards or sampling techniques have contributed to problems with 
reclamation adequacy, we will require that the State modify them. We 
will also continue to afford technical assistance to the States in 
selecting and using success standards and sampling techniques that meet 
the requirements and needs of the approved program.
    For the reasons stated above, OSM proposes to remove the 
requirement to include the standards for revegetation success and 
statistically valid sampling techniques in the approved program. 
However, States must still select the standards for success and 
statistically valid sampling techniques in accordance with the criteria 
in their State program counterparts to Sec.  816.116(a)(2) and (b). In 
addition, permit applicants still must propose standards and techniques 
from those selected by the State for use in the particular State and 
include them in their permit applications for regulatory authority 
review and approval. Vegetation sampling conducted for Phase III bond 
release must be in compliance with the standards for success and 
statistically valid sampling techniques selected by the State and 
included in the approved permit. These regulatory requirements and 
procedures should be adequate to ensure that the various State programs 
provide similar degrees of proof that adequate reclamation has been 
achieved.

3. Section 816.116(b)(3): Success Standards for Undeveloped Land

    OSM is proposing to revise Sec.  816.116(b)(3) to include 
undeveloped land among the list of approved post mining land use areas 
subject to the success standards of this section. This list currently 
includes fish and wildlife habitat, recreation and forest products 
(forestry). During OSM's 1999 revegetation outreach effort, several 
commenters suggested that undeveloped land should be available as an 
approved postmining land use. Current Sec.  701.5 includes undeveloped 
land among its listed land use categories, and defines it as 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. Without any change to the 
current regulations, undeveloped land can be approved as a postmining 
land use under the postmining land use provisions of Sec.  816.133. On 
this basis, OSM has already approved three State program amendments 
specifically recognizing undeveloped land as an approved postmining 
land use. See Ohio (59 FR 22507, 22513 (May 2, 1994)); also discussing 
Texas (1991) and Alabama (1992).
    The particular problem with undeveloped land, which this proposal 
seeks to address, is that, unlike all the other land use categories 
listed in Sec.  701.5, undeveloped land does not have specified success 
standards in Sec.  816.116(b). Accordingly, we are proposing to revise 
Sec.  816.116(b)(3) to add undeveloped land as one of the land uses 
subject to that section's success standards. Revised Sec.  
816.116(b)(3) would then read: ``For areas to be developed for fish and 
wildlife habitat, recreation, undeveloped land, or forest products, 
success of vegetation shall be determined on the basis of tree and 
shrub stocking and vegetative ground cover.'' This revision will mean 
that undeveloped land will be subject to cover and, if applicable, 
stocking requirements depending on the vegetation goals for that parcel 
of land.

[[Page 13082]]

The cover and stocking requirements of Sec.  816.116(b)(3) are 
particularly appropriate criteria for evaluating the revegetation 
success of an undeveloped land use area, as they can be used to ensure 
the establishment of the seral species, i.e., a community of mixed 
grasses, forbs, shrubs and trees, necessary to facilitate natural plant 
succession.

4. Section 816.116(b)(3): Shelter Belts

    OSM is proposing to further revise Sec.  816.116(b)(3) by removing 
shelter belts from among the list of postmining land uses subject to 
the success standards of that section. As noted above, Sec.  
816.116(b)(3) currently sets forth the success standard conditions for 
areas to be developed with an identified postmining land use of fish 
and wildlife habitat, recreation, forestry, and shelter belts. The 
longstanding problem of including shelter belts among the Sec.  
816.116(b)(3) postmining land use areas is that shelter belts are not a 
recognized land use, as defined at Sec.  701.5, but rather are 
conservation practices used in support of land uses. As such, shelter 
belts are better dealt with under our regulations at Sec.  
816.116(c)(4) governing the use of normal husbandry practices.
    Section 816.116(c)(4) expressly permits the regulatory authority to 
allow the use of selective husbandry practices, excluding augmented 
seeding, fertilization, or irrigation, provided the regulatory 
authority obtains prior approval from the Director that the practices 
are normal husbandry practices for the area. This approval would not 
extend the period of responsibility for revegetation success and bond 
liability if the practices could be expected to continue as part of the 
postmining land use, or if discontinuance of the practices after the 
liability period expires would not reduce the probability of permanent 
revegetation success. In the September 2, 1983, preamble discussion of 
Sec.  816.116(c)(4), OSM stated that the approved measures, e.g., 
normal husbandry practices, must be normal conservation practices 
within the region for unmined lands having uses similar to the approved 
postmining land use of the disturbed area. 48 FR 48140, 40157.
    The Natural Resources Conservation Service (NRCS) also considers 
shelter belts (also referred to as windbreaks) as conservation 
practices, not land uses, and defines them as linear plantings of 
single or multiple rows of trees or shrubs or sets of linear plants 
(NRCS Field Office Technical Guide (FOTG), Section IV, Conservation 
Practice Standard--Windbreak/Shelterbelt Establishment, 380). Some of 
the purposes of shelter belts cited by that document include reducing 
soil erosion and protecting plants from wind, altering the 
microenvironment for enhancing plant growth, managing snow deposition, 
providing shelter for structures, livestock, and recreational areas, 
and enhancing wildlife habitat by providing travel corridors. From 
these cited purposes, it is also clear that the NRCS treats shelter 
belts as normal husbandry practices used in support of other land uses 
such as cropland, pastureland or recreation; not as land uses 
themselves. Another factor supporting the conclusion that shelter belts 
are more akin to normal husbandry practices than land uses is that 
shelter belts, like normal husbandry practices, require ongoing 
maintenance to ensure their functionality, including replacement of 
dead trees and shrubs, application of water as needed, thinning and 
pruning and application of nutrients.
    Nonetheless, the 1979 and 1983 revegetation rules, without 
explanation, grouped shelter belts with wildlife, recreation, or forest 
uses other than commercial forest land uses in the Sec.  816.117(c) 
success standards (44 FR 15311, 15414), and later with fish and 
wildlife habitat, recreation and forestry land uses in the Sec.  
816.116(b)(3) success standards (48 FR 40152, 40160). Notwithstanding 
this inclusion, one theme that ran throughout both those preambles and 
final rules, and which supports our proposed deletion of shelter belts 
from the Sec.  816.116(b)(3) listed land uses, is that revegetation 
success was always to be judged on the effectiveness of the vegetation 
for the approved postmining land use. Because shelter belts have never 
been included among the land use categories listed in Sec.  701.5, 
because shelter belts are defined as conservation practices not land 
uses by the NRCS, and because the recognized purpose and ongoing 
maintenance requirements of shelter belts are consistent with normal 
husbandry practices, we are proposing to remove shelter belts from the 
land use areas listed in Sec.  816.116(b)(3). The use of shelter belts 
would instead be covered under the normal husbandry practice provision 
of Sec.  816.116(c)(4). If the use of shelter belts is necessary in a 
given area to achieve the postmining land use, then, in accordance with 
the requirements of Sec.  816.116(c)(4), the regulatory authority would 
need to identify shelter belts as a normal husbandry practice and 
include them in the approved regulatory program under Sec.  732.17.

5. Section 816.116(b)(3)(ii): Tree and Shrub Stocking Standards

    OSM is proposing three minor revisions to the way operators may 
satisfy existing revegetation success standards for areas developed for 
fish and wildlife habitat, recreation, or forest product postmining 
land uses. For these postmining land uses, existing Sec.  
816.116(b)(3)(ii), commonly referred to as the ``80/60 rule,'' requires 
that, at the time of bond release, at least 80 percent of the trees and 
shrubs used to determine revegetation success must have been in place 
for 60 percent of the applicable minimum period of responsibility. In 
addition, the rule requires that trees and shrubs used to determine 
revegetation success must have been in place for not less than two 
growing seasons.
    The response to OSM's 1999 revegetation and reforestation 
initiatives highlighted the fact that many mine operators perceived the 
80/60 rule as not only being complex and confusing but also subject to 
uncertain implementation by State regulatory authorities. Furthermore, 
operators often perceived as unnecessarily difficult, costly, and time-
consuming the need, under the 80/60 rule, for determining the length of 
time that individual trees and shrubs have been in place. As a result, 
in areas of greater than 26 inches of average annual precipitation 
(``humid areas'') where mined land could reasonably be reforested, the 
need for determining a tree's time in place has proven to be a 
significant disincentive for reforestation as operators have 
consistently avoided choosing the forestry postmining land use. 
Instead, operators tended to choose grazingland or pastureland, not 
forestry, in order to avoid application of the tree-counting 
requirements of the 80/60 rule.
    In areas of less than 26 inches or less of average annual 
precipitation (``semi-arid areas'') where the planting of woody shrubs 
is often required under the approved postmining land use, the time in 
place requirement of the 80/60 rule was seen as posing a somewhat 
different problem. In these semi-arid areas, many of the planted or 
seeded woody shrub species undergo a continual process called 
``suckering,'' by which multiple new aboveground stems are generated 
from the initial plant. However, it is not possible to document the 
time in place for these new suckers. Therefore, even though the sucker 
plant community may be vigorous and expanding, the individual suckers 
cannot be counted for purposes of meeting the 80/60 revegetation 
success count. Finally, in a related issue, both

[[Page 13083]]

operators and regulatory officials from both the humid and semi-arid 
precipitation areas questioned the wisdom of not being able to include 
volunteer plants of approved species in the 80/60 revegetation success 
count when it cannot be verified that the volunteer plants have been in 
place for not less than two growing seasons.
    In an effort to address these concerns regarding implementation of 
the 80/60 rule, OSM proposes to add four sentences to the end of the 
existing language of Sec.  816.116(b)(3)(ii). The first sentence would 
effectively eliminate the current potential need under the 80/60 rule 
for field verification of the time in place of individual plants. 
Instead, operators could document compliance with the 80/60 time-in-
place requirements by comparing records of initial planting and 
replanting to the final count of individual plants. More specifically, 
the 80/60 time in place requirements could be met when the following 
easily documented facts were established: (1) The final field count 
shows that the requisite number of plants of approved species are in 
place; (2) records show that no woody species has been planted in the 
last 3 years of a 5-year responsibility period or 6 years of a 10-year 
responsibility period; (3) if replanting has occurred in the last 60% 
of the responsibility period, that planting records show that the 
number of plants replanted is below 20% of the total acceptable plant 
count; and (4) no woody species were planted during the last two years 
of the responsibility period. By establishing these facts, we believe 
that it is possible to make a numerical assessment of compliance with 
the 80/60 rule that is at least as accurate as could be obtained under 
the current laborious practice of having to determine the length of 
time that individual plants have been in place.
    The second and third sentences that OSM is proposing to add to the 
existing rule language of Sec.  816.116(b)(3)(ii) would allow volunteer 
plants of approved species to be included in the 80/60 revegetation 
success count even when it cannot be verified that the volunteers are 
more than two years old. We believe this revision is consistent with 
section 515(b)(19) of the Act, which requires the operator to establish 
vegetation that is ``capable of self-regeneration and plant succession 
at least equal in extent of cover to the natural vegetation of the 
area.'' These volunteer plants represent either regeneration of species 
already present on the reclaimed area or invasion of native species 
from adjacent undisturbed areas, which is an indication of plant 
succession. Live volunteer plants are as likely to continue to grow and 
mature as transplants of the same species that may be little more than 
two years old. Therefore, counting the first products of plant 
regeneration or invasion is a clear and reasonable indicator of 
successful reclamation and an appropriate revision to the 80/60 rule. 
OSM hopes that this and the prior revision will work together to 
encourage the choice of forestry, rather than grazingland or 
pastureland, as a postmining land use.
    The fourth sentence that OSM is proposing to add to the existing 
rule language of Sec.  816.116(b)(3)(ii) would allow individual suckers 
from woody shrubs to be counted as volunteer plants when it is evident 
the shrub community is vigorous and expanding. As is the case with 
other volunteer plants, OSM believes that counting individual suckers 
within a vigorous and expanding shrub community is a reasonable 
indicator of successful reclamation and an appropriate revision to the 
80/60 rule.

6. Section 816.116(c)(3): Timing of Revegetation Success Measurements

    We are proposing a further change to our revegetation regulations 
to bring the timing of revegetation success measurements for areas of 
26 inches or less of average annual precipitation (``semi-arid areas'') 
into line with those for areas of greater than 26 inches of average 
annual precipitation (``humid areas''). In OSM's 1979 regulations, the 
timing of revegetation success measurements for arid areas at Sec.  
816.116(b)(1)(ii) was identical to that for humid areas at Sec.  
816.116(b)(1)(i). Both the humid and arid area regulations required 
that the revegetation success standards be equaled or exceeded for the 
last two consecutive years of the respective 5- and 10-year 
responsibility periods. 44 FR 15237, 15413 (March 13, 1979).
    Later, in 1983, OSM revised its humid area regulation, redesignated 
as Sec.  816.116(c)(2)(i), to require that revegetation success 
standards be equaled or exceeded during the growing season of the last 
year of the five-year responsibility period, or, if required by the 
regulatory authority, during the growing season of the last 2 
consecutive years of the responsibility period. We did not, however, 
change its arid area regulation at Sec.  816.116(c)(3)(i), which 
continued to require that the revegetation success standard be equaled 
or exceeded for the last 2 consecutive years of the 10-year 
responsibility period. 48 FR 40155, 40160 (September 2, 1983). The 1983 
revision requiring revegetation standards in humid areas to be equaled 
or exceeded during the growing season of the last year of the 
responsibility period was challenged by environmental and citizen 
groups. In 1985, the court remanded the challenged revision because the 
lack of supporting evidence in the record precluded a determination 
that the regulations supported the goals set forth in SMCRA. In Re: 
Permanent Surface Mining Regulation Litigation (II), 620 F. Supp. 1519, 
1564 (D.D.C. 1985).
    In response to that remand, OSM promulgated the current rules at 
Sec.  816.116(c)(2)(i) setting forth the periods for measuring 
revegetation success for humid areas. 53 FR 34636, 34643 (September 7, 
1988). The new regulations required that revegetation success standards 
for grazingland, pastureland, or cropland postmining land uses be 
equaled or exceeded during any two years of the last five years of the 
responsibility period, except the first. In support of this relaxation 
from the 1979 ``last 2 consecutive years of the responsibility period'' 
standard, the 1988 preamble noted that the earlier 1983 preamble had 
cited the effect of year-to-year [climatic] variability on crop yields 
or other parameters that are highly sensitive to such conditions as 
justifying the requirement of two consecutive years of revegetation 
success. 48 FR 40155, 40156 (September 2, 1983). Notwithstanding, OSM 
reasoned that, relative to grazingland, pastureland, and cropland 
postmining land uses in humid areas, ``[m]easurement in nonconsecutive 
years avoids unduly penalizing the operator for the negative effects of 
climatic variability.'' The 1988 preamble continued that ``OSM * * * 
believe[s] that measurement over two years is important to attenuate 
the influences of climatic variability, but now realizes that 
consecutiveness imposes an unnecessary degree of regulatory rigidity.'' 
Furthermore, we argued that to require measurement of crop or pasture 
yields in the last year of the responsibility period would be an 
unnecessary rigid standard given the variability of weather conditions. 
53 FR 34640 (September 7, 1988).
    The 1988 revision also provided that, for humid areas, the 
revegetation success standards for postmining land uses other than 
grazingland, pastureland, and cropland, e.g., forest products, fish and 
wildlife habitat, etc., be equaled or exceeded during the growing 
season of the last year of the responsibility period. Supporting this 
relaxation of the 1979 ``last two consecutive years of the 
responsibility standard,'' OSM reasoned that with a

[[Page 13084]]

forest ecosystem there exists a positive relationship between time and 
vegetative cover. Therefore, OSM concluded that, for forest-type eco-
systems, the last year of the responsibility period would provide an 
accurate measurement of revegetation success. 53 FR 34641 (September 7, 
1988). These revisions to the timing of revegetation success 
measurements for humid areas were not challenged.
    The 1988 rulemaking did not, however, address the timing 
requirements for arid areas. Accordingly, the regulations for arid 
areas continued, as they had since 1979, to require that the 
revegetation success standards for all postmining land uses be equaled 
or exceeded during at least the last two consecutive years of the 10-
year responsibility period.
    After reviewing the 1988 preamble rationale that supported 
relaxation of the last two consecutive years requirement for humid 
areas, we have not found any persuasive reason why the same rationale 
would not equally apply to semi-arid areas. For example, for areas with 
postmining land uses other than grazingland, cropland, or pastureland, 
e.g., forest products, fish and wildlife habitat, etc., determining 
vegetation success requires measurement of vegetative parameters that 
are not sensitive to short-term weather variations. With each of the 
``other'' land uses, the vegetative measurements done for the last year 
of the responsibility period can be reasonably expected to represent 
the baseline for vegetative success in future years. This holds true 
whether the postmining land uses are located in a humid or arid area. 
For all postmining land uses, we believe that it is the uniqueness of 
the individual postmining land use and not the relative moisture of the 
area in which the land use is located that appropriately determines the 
number and spacing of the years for which vegetation success must be 
measured.
    Accordingly, we are proposing to revise the agency's regulations 
for arid areas at Sec.  816.116(c)(3)(i) to comport with its 
regulations for humid areas at Sec.  816.116(c)(2)(i). The revised 
rules for arid areas would provide that the vegetation parameters 
identified in paragraph (b) of that section for grazingland, 
pastureland, or cropland shall equal or exceed the approved success 
standard during the growing season of any 2 years after year 6 of the 
responsibility period. Areas approved for other uses identified in 
paragraph (b) of that section would have to equal or exceed the 
applicable success standard during the growing season of the last year 
of the responsibility period.
    Revising the revegetation rules in this manner makes the rigor of 
Sec.  816.116(c)(3)(i) for areas receiving 26 inches or less of annual 
precipitation, similar to Sec.  816.116(c)(2)(i) for areas receiving 
more than 26 inches of annual precipitation. For the sake of further 
consistency, we are also proposing to revise our regulations governing 
the timing of revegetation success measurement for lands eligible for 
remining. Thus, the rules for lands in arid areas at Sec.  
816.116(c)(3)(ii) would be revised to comport with those for lands in 
humid areas at Sec.  816.116(c)(2)(ii). Both rules would then require 
that revegetation standards be met or exceeded during the growing 
season of the last year of responsibility period.

III. How Do I Submit Comments on the Proposed Rule?

    Electronic or Written Comments: If you submit written comments, 
they should be specific, confined to issues pertinent to the proposed 
rule, and explain the reason for any recommended change(s). We 
appreciate any and all comments, but those most useful and likely to 
influence decisions on a final rule will be those that either involve 
personal experience or include citations to and analyses of SMCRA, its 
legislative history, its implementing regulations, case law, other 
pertinent State or Federal laws or regulations, technical literature, 
or other relevant publications.
    Except for comments provided in an electronic format, you should 
submit three copies of your comments if possible. We will not consider 
anonymous comments. We cannot ensure that comments received after the 
close of the comment period (see DATES) or at locations other than 
those listed above (see ADDRESSES) will be considered or included in 
the Administrative Record.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at the OSM Administrative Record 
Room (see ADDRESSES). Individual respondents may request that we 
withhold their home address from the rulemaking record, which we will 
honor to the extent allowable by law. There also may be circumstances 
in which we would withhold from the rulemaking record a respondent's 
identity, to the extent allowed by law. If you wish us to withhold your 
name and/or address, you must state this prominently at the beginning 
of your comment. Individuals making such a request should submit their 
comments by regular mail and not by e-mail. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety.
    Public hearings: We will hold a public hearing on the proposed rule 
upon request only. The time, date, and address for any hearing will be 
announced in the Federal Register at least 7 days prior to the hearing.
    Any person interested in participating at a hearing should inform 
Mr. Robert Postle (see FOR FURTHER INFORMATION CONTACT), either orally 
or in writing by 5 p.m., eastern time, on April 7, 2005. If no one has 
contacted Mr. Postle to express an interest in participating in a 
hearing by that date, a hearing will not be held. If only one person 
expresses an interest, a public meeting rather than a hearing may be 
held, with the results included in the Administrative Record.
    The public hearing will continue on the specified date until all 
persons scheduled to speak have been heard. If you are in the audience 
and have not been scheduled to speak and wish to do so, you will be 
allowed to speak after those who have been scheduled. We will end the 
hearing after all persons scheduled to speak and persons present in the 
audience who wish to speak have been heard. To assist the transcriber 
and ensure an accurate record, we request, if possible, that each 
person who testifies at a public hearing provide us with a written copy 
of his or her testimony.

IV. Procedural Matters and Required Determinations

Executive Order 12866--Regulatory Planning and Review

    This document is considered a significant rule and is subject to 
review by the Office of Management and Budget (OMB) under Executive 
Order 12866.
    a. This rule will not have an effect of $100 million or more on the 
economy. It will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, Tribal, or local governments or communities. The 
revisions to the regulations governing topsoil replacement and 
revegetation success standards will not have an adverse economic impact 
on the coal industry or State regulatory authorities. During any given 
year, approximately 880 operators conduct vegetation sampling for bond 
release. The revisions may reduce operating expenses for coal operators 
by reducing

[[Page 13085]]

the time needed to conduct revegetation evaluations and expediting bond 
release. The estimated reduction in costs is unquantifiable. OSM 
estimates that approximately two State regulatory authorities will 
modify their standards for revegetation success during a year, 
requiring approximately 100 hours to complete each modification for 
submission to OSM. At an average wage rate of $30 per hour, the annual 
cost savings for each State regulatory authority would be $3,000 (100 
hours/report x $30), or $6,000 for all States.
    b. This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    c. This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients.
    d. The proposed revisions to our topsoil replacement and 
revegetation success standards may raise novel legal or policy issues, 
which is why the rule is considered significant by OMB under Executive 
Order 12866.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not considered a significant energy action under 
Executive Order 13211. The proposed revisions to our regulations that 
govern topsoil replacement and revegetation success standards notice 
will not have a significant affect on the supply, distribution, or use 
of energy.

Regulatory Flexibility Act

    The Department of the Interior certifies 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 proposed revisions are not expected to have an adverse economic 
impact. Some of the revisions may facilitate bond release resulting in 
a reduction in operating costs for coal operators. Further, the rule 
produces no adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States enterprises 
to compete with foreign-based enterprises in domestic or export 
markets.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. For the reasons 
previously stated, this rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises for 
the reasons stated above.

Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, Tribal, or 
local governments or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
Tribal, or local governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1534) is not required.

Executive Order 12630--Takings

    The revisions to the regulations governing topsoil replacement and 
revegetation success standards do not have any significant takings 
implications under Executive Order 12630. Therefore, a takings 
implication assessment is not required.

Executive Order 13132--Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant federalism implications to warrant the preparation of a 
federalism assessment for the reasons discussed above.

Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on federally recognized Indian Tribes 
and have determined that the proposed revisions to our regulations that 
govern topsoil replacement and revegetation success standards would not 
have substantial direct effects on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.

Paperwork Reduction Act

    We have determined that this rule does not substantially alter the 
currently approved collections of information authorized by the Office 
of Management and Budget under 44 U.S.C. 3501 et seq. OMB has 
previously approved the collection activities and assigned clearance 
number 1029-0047 for 30 CFR parts 816 and 817.

National Environmental Policy Act

    OSM has prepared a draft environmental assessment (EA) of this 
proposed rule and has made a tentative finding that it would not 
significantly affect the quality of the human environment under section 
102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 
U.S.C. 4332(2)(C). It is anticipated that a finding of no significant 
impact (FONSI) will be made for the final rule in accordance with OSM 
procedures under NEPA. The draft EA is on file in the OSM 
Administrative Record at the address specified previously (see 
ADDRESSES). The EA will be completed and a finding made on the 
significance of any resulting impacts before we publish the final rule.

Clarity of This Regulation

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the proposed rule 
clearly stated? (2) Does the proposed rule contain technical language 
or jargon that interferes with its clarity? (3) Does the format of the 
proposed rule (grouping and order of sections, use of headings, 
paragraphing, etc.) aid or reduce its clarity? (4) Would the rule be 
easier to understand if it were divided into more (but shorter) 
sections? (A ``section'' appears in bold type and is preceded by the 
symbol ``Sec.  '' and a numbered heading; for example, Sec.  816.116. 
(5) Is the description of the proposed rule in the SUPPLEMENTARY 
INFORMATION section of this preamble helpful in understanding the 
proposed rule? What else could we do to make the proposed rule easier 
to understand? Send a copy of any comments that concern how we could 
make this proposed rule easier to understand to: Office Regulatory 
Affairs, Department of the Interior, Room 7229, 1849 C Street, NW., 
Washington, DC 20240. You may also e-mail the comments to this address: 
[email protected].

[[Page 13086]]

List of Subjects

30 CFR 816

    Environmental protection, Reporting and recordkeeping requirements, 
Surface mining.

30 CFR Part 817

    Environmental protection, Reporting and recordkeeping requirements, 
Underground mining.

    Dated: January 24, 2005.
Rebecca W. Watson,
Assistant Secretary, Land and Minerals Management.

    For the reasons given in the preamble, we propose to amend 30 CFR 
parts 816 and 817 as set forth below.

PART 816--PERMANENT PROGRAM PERFORMANCE STANDARDS--SURFACE MINING 
ACTIVITIES

    1. The authority citation for part 816 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.; and sec. 115 of Pub. L. 98-
146.

    2. In Sec.  816.22, revise paragraph (d)(1)(i) to read as follows:


Sec.  816.22  Topsoil and subsoil.

* * * * *
    (d) * * *
    (1) * * *
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit.
* * * * *
    3. Amend Sec.  816.116 as follows:
    a. Revise paragraph (a)(1);
    b. Revise the first sentence of paragraph (b)(3) introductory text;
    c. Add four sentences to the end of paragraph (b)(3)(ii);
    d. Revise paragraphs (c)(3)(i) and (ii).


Sec.  816.116  Revegetation: Standards for success.

    (a) * * *
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority.
* * * * *
    (b) * * *
* * * * *
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. * * *
    (i) * * *
    (ii) * * * The requirements of this section apply to trees and 
shrubs that have been seeded or transplanted and can be met when 
records of woody vegetation planted show that no woody plants were 
planted during the last 2 growing seasons of the responsibility period 
and, if any replanting of woody plants took place during the 
responsibility period, the total number planted during the last 60% of 
that period is less than 20% of the total number of woody plants 
required. Any replanting must be by means of transplants to allow for 
adequate accounting of plant stocking. This final accounting may 
include volunteer trees and shrubs of approved species. Volunteer trees 
and shrubs of approved species shall be deemed equivalent to planted 
specimens 2 years of age or older and can be counted towards success. 
Suckers on shrubby vegetation can be counted as volunteer plants when 
it is evident the shrub community is vigorous and expanding.
* * * * *
    (c) * * *
    (3) * * *
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) of 
this section. The vegetation parameters identified in paragraph (b) of 
this section for grazingland, pastureland, or cropland shall equal or 
exceed the approved success standard during the growing season of any 2 
years after year 6 of the responsibility period. Areas approved for the 
other uses identified in paragraph (b) of this section shall equal or 
exceed the applicable success standard during the growing season of the 
last year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing season of the last year of the responsibility 
period.
* * * * *

PART 817--PERMANENT PROGRAM PERFORMANCE STANDARDS--UNDERGROUND 
MINING ACTIVITIES

    4. The authority citation for part 817 continues to read as 
follows:

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

    5. In Sec.  817.22, revise paragraph (d)(1)(i) to read as follows:


Sec.  817.22  Topsoil and subsoil.

* * * * *
    (d) * * *
    (1) * * *
    (i) Achieves an approximately uniform, stable thickness when 
consistent with the approved postmining land use, contours, and 
surface-water drainage systems. Soil thickness may also be varied to 
the extent such variations help meet the specific revegetation goals 
identified in the permit.
* * * * *
    6. Amend Sec.  817.116 as follows:
    a. Revise paragraph (a)(1);
    b. Revise the first sentence of paragraph (b)(3) introductory text;
    c. Add four sentences to the end of paragraph (b)(3)(ii);
    d. Revise paragraphs (c)(3)(i) and (ii).


Sec.  817.116  Revegetation: Standards for success.

    (a) * * *
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority.
* * * * *
    (b) * * *
* * * * *
    (3) For areas to be developed for fish and wildlife habitat, 
recreation, undeveloped land, or forest products, success of vegetation 
shall be determined on the basis of tree and shrub stocking and 
vegetative ground cover. * * *
    (i) * * *
    (ii) * * * The requirements of this section apply to trees and 
shrubs that have been seeded or transplanted and can be met when 
records of woody vegetation planted show that no woody plants were 
planted during the last 2 growing seasons of the responsibility period 
and, if any replanting of woody plants took place during the 
responsibility period, the total number planted during the last 60% of 
that period is less than 20% of the total number of woody plants 
required. Any replanting must be by means of transplants to allow for 
adequate accounting of plant stocking. This final accounting may 
include volunteer trees and shrubs of approved species. Volunteer trees 
and shrubs of approved species shall be deemed equivalent to planted 
specimens 2 years of age or older and can be counted towards success. 
Suckers on shrubby vegetation can be counted as volunteer plants when 
it is evident the shrub community is vigorous and expanding.
* * * * *
    (c) * * *
    (3) * * *
    (i) Ten full years, except as provided in paragraph (c)(3)(ii) of 
this section.

[[Page 13087]]

The vegetation parameters identified in paragraph (b) of this section 
for grazingland, pastureland, or cropland shall equal or exceed the 
approved success standard during the growing season of any 2 years 
after year 6 of the responsibility period. Areas approved for the other 
uses identified in paragraph (b) of this section shall equal or exceed 
the applicable success standard during the growing season of the last 
year of the responsibility period.
    (ii) Five full years for lands eligible for remining included in 
permits issued before September 30, 2004, or any renewals thereof. To 
the extent that the success standards are established by paragraph 
(b)(5) of this section, the lands shall equal or exceed the standards 
during the growing season of the last year of the responsibility 
period.
* * * * *

[FR Doc. 05-5023 Filed 3-16-05; 8:45 am]
BILLING CODE 4310-05-P