[Federal Register Volume 71, Number 66 (Thursday, April 6, 2006)]
[Proposed Rules]
[Pages 17682-17689]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3260]



[[Page 17681]]

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Part III





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement



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30 CFR Part 942



Tennessee Federal Program; Proposed Rule

  Federal Register / Vol. 71, No. 66 / Thursday, April 6, 2006 / 
Proposed Rules  

[[Page 17682]]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 942

RIN 1029-AC50


Tennessee Federal Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on revisions to the Tennessee Federal program.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM or Office), are proposing three revisions to the Tennessee Federal 
program. The revisions would: (1) Provide regulations establishing 
trust funds or annuities to fund the treatment of long-term postmining 
pollutional discharges; (2) delete the minimum requirements of eighty 
percent (80%) ground cover for certain postmining land uses and provide 
that herbaceous ground cover be limited to that necessary to control 
erosion and support the postmining land use; and (3) exempt areas 
developed for wildlife habitat, undeveloped land, recreation, or 
forestry from the requirements that bare areas shall not exceed one-
sixteenth (1/16) acre in size and total not more than ten percent (10%) 
of the area seeded.

DATES: Comments on the proposed rule must be received on or before 4 
p.m., eastern time on May 8, 2006, to ensure our consideration. If 
requested, we will hold a public hearing on the amendment on May 1, 
2006. We will accept requests to speak at a hearing until 4 p.m., 
eastern time on April 21, 2006.

ADDRESSES: You may submit comments identified by RIN 1029-AC50, by any 
of the following methods:
     E-Mail: [email protected]. Include docket number 1029-
AC50 in the subject line of the message.
     Mail/Hand-Delivery/Courier: Knoxville Field Office, Office 
of Surface Mining Reclamation and Enforcement, 710 Locust Street, 2nd 
Floor, Knoxville, Tennessee 37902.
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    For detailed instructions on submitting comments and additional 
information on the rulemaking process, see ``III. Public Comment 
Procedures'' in the SUPPLEMENTARY INFORMATION section of this document.
    You may submit requests for public hearings, review copies of the 
Tennessee program, view a listing of any scheduled public hearings, and 
all written comments received in response to this document at the 
address listed below during normal business hours, Monday through 
Friday, excluding holidays at the Knoxville Field Office, Office of 
Surface Mining Reclamation and Enforcement, 710 Locust Street, 2nd 
Floor, Knoxville, Tennessee 37902.

FOR FURTHER INFORMATION CONTACT: Tim Dieringer, Field Office Director, 
Telephone: 865-545-4103; E-mail: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Tennessee Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Tennessee Program

    Section 503(a) of the Surface Mining Control and Reclamation Act of 
1977 (SMCRA or the Act) permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders under certain 
conditions. The Secretary of the Interior conditionally approved the 
Tennessee program on August 10, 1982, at 30 CFR part 942. However, 
because of actions taken by OSM pursuant to 30 CFR part 733, on May 16, 
1984, the State repealed most of the Tennessee Coal Surface Mining Law 
of 1980, Tennessee Code Annotated 59-8-301-- 59-8-339 and its 
implementing regulations, effective October 1, 1984. As a result, on 
October 1, 1984, we withdrew approval of the Tennessee permanent 
regulatory program and promulgated a Federal program for Tennessee 
under authority of section 504(a) of the Act. The Federal program in 
Tennessee was promulgated at 30 CFR part 942, where it replaced the 
State program. On that date, OSM became the regulatory authority under 
SMCRA in Tennessee. You can find background information on the 
Tennessee Federal program, including findings, and the disposition of 
comments in the October 1, 1984, Federal Register (49 FR 38874). The 
regulations proposed today would amend the Federal program applicable 
to mining in Tennessee.

II. Description of the Proposed Actions

A. Revision to 30 CFR 942.800(b)

    We are proposing to amend the regulations that govern the Federal 
program in Tennessee by providing express authority to accept trust 
funds or annuities as assurance for the long-term treatment of 
pollutional discharges.
    SMCRA, its implementing regulations and OSM policy have provided 
guidance on bonding for treatment of postmining pollutional discharges. 
Section 509(a) of the Act requires that each permittee post a 
performance bond conditioned upon faithful performance of all the 
requirements of the Act and the permit. That section of the Act 
specifies that ``[t]he amount of the bond shall be sufficient to assure 
the completion of the reclamation plan if the work had to be performed 
by the regulatory authority in the event of forfeiture.''
    Our regulations implementing the requirements of section 509 of the 
Act can be found in the Code of Federal Regulations at 30 CFR part 800. 
These regulations, first promulgated in 1979, have evolved over the 
years to make it clear that performance bonds must be adjusted when the 
cost of reclamation increases. Unanticipated events such as postmining 
pollutional discharges which increase the cost of reclamation are among 
the events that would require a regulatory authority to adjust bonds to 
reflect the increased reclamation (treatment) costs that such 
discharges would present.
    In our discussion of determining bond amounts in the March 13, 
1979, Federal Register (44 FR at 15111), we noted:

    The Office recognizes that the regulatory authority cannot 
reasonably establish the initial bond amount based upon speculative 
events such as the need to abate ground water pollution, since the 
operation must be designed initially to prevent such consequences in 
order to qualify for a permit. However, such unplanned consequences 
occasionally occur due to improper mining or reclamation, or because 
an important variable was not evaluated properly. When such 
consequences are identified prior to the release of all liability 
and termination of the permit in accordance with part 807, the 
permittee's legal obligation to abate them necessarily adds to the 
cost of reclamation.
    Under such circumstances, the regulatory authority would be 
authorized to impose additional bond liability under that permit, or 
to retain a larger portion of the total liability than otherwise 
required in response to an application for release of bond, in order 
to ensure adequate funding to complete the abatement work required 
(Sections 805.14(a) and 807.12(d)).

    While this discussion notes that State regulatory authorities had 
discretionary authority to increase bonds to reflect the increased 
costs of reclamation from unanticipated events such as postmining 
pollutional discharges, in 1983 OSM specifically indicated that such 
increases were required. In the July 19, 1983, Federal Register, we 
noted:


[[Page 17683]]


    Each regulatory authority should be able to estimate the cost of 
all potential reclamation with reasonable accuracy. If at any time 
the cost of future reclamation under the bond changes, the 
regulatory authority is required to adjust the bond accordingly 
(Sec.800.15(a)). Thus, the amount of the bond for any increment must 
at all times be sufficient to assure the completion of the 
reclamation plan if the work had to be performed by the regulatory 
authority. (48 FR 32937)

    On September 26, 1983 (48 FR 43956), OSM's revised hydrology 
regulations included the concept of a hydrology reclamation plan, which 
includes any required water treatment. Thus, completion of the 
reclamation plan includes any required water treatment.
    OSM further affirmed its position on financial guarantees for 
postmining pollutional discharges in its March 31, 1997, document 
titled, ``Policy Goals and Objectives on Correcting, Preventing and 
Controlling Acid/Toxic Mine Drainage.'' Objective 2 of the policy 
requires that financial responsibility associated with acid mine 
drainage (AMD) be fully addressed. Strategies discussed within the 
policy to achieve this objective include: requiring operators to adjust 
financial assurance if, subsequent to permit issuance, monitoring 
identifies acid- or toxic-forming conditions; and where inspections 
conducted in response to bond release requests identify surface or 
subsurface water pollution, holding bond in an amount adequate to abate 
the pollution as long as water treatment is required, unless a 
financial guarantee or some other enforceable contract or mechanism to 
ensure continued treatment exists.
    When responding to commenters who objected to the requirement that 
permittees post financial guarantees for treatment of pollutional 
discharges during and after land reclamation, OSM noted:

    [T]here is no doubt that, under SMCRA, the permittee must 
provide a financial guarantee to cover treatment of postmining 
discharges when such discharges develop and require treatment.

    On May 30, 2000, OSM's Knoxville, Tennessee Field Office (KFO) 
issued Field Office Policy Memorandum No. 37 titled ``Policy for 
Requiring Bond Adjustments on Permitted Sites Requiring Long-Term 
Treatment of Pollutional Discharges.'' This policy described the 
general procedure that KFO would utilize to require adjustments to 
performance bonds on sites in Tennessee where unanticipated pollutional 
discharges are occurring and long-term treatment is required. 
Subsequently, KFO notified some permittees in Tennessee to submit 
revisions for approval of long-term treatment systems and provided the 
permittees the opportunity to submit annual operating and maintenance 
costs as well as capital costs for replacement of the system during the 
75-year treatment period.
    The permittees required to adjust their performance bonds for long-
term treatment sought administrative review of KFO's decisions. In a 
related matter, the National Mining Association (NMA) filed suit, on 
October 2, 2000, in the United States District Court for the Eastern 
District of Tennessee seeking relief from OSM for acting in violation 
of the Administrative Procedure Act and SMCRA relative to 
implementation of the policy. Administrative review of individual 
actions has been placed in abeyance pending resolution of that 
litigation which is still pending.
    The bonding regulations for the Tennessee Federal program are 
located in 30 CFR 942.800. Those regulations incorporate the Federal 
rules in part 800 by reference. They also add a few Tennessee-specific 
clarifications. The Tennessee Federal program relies upon a 
conventional bonding system in which site-specific performance bonds 
are required to be filed with OSM. The amount of the performance bond 
is based on the approved reclamation plan and is adjusted periodically 
when the cost of future reclamation changes. The bond must be 
sufficient to assure completion of the plan if OSM has to perform the 
work in the event of bond forfeiture.
    Our experience has shown that bonding systems which do not provide 
an income stream are not well-suited to ensuring the treatment of long-
term pollutional discharges, such as AMD. Surety bonds, the most common 
form of conventional bond, are especially ill-suited for this purpose 
because no surety will underwrite a bond where there is no expectation 
of release of liability. Further, mandating that the permittee 
immediately post other forms of conventional bonds, such as cash or 
negotiable bonds, may force insolvency on a permittee that is currently 
treating pollutional discharges. Bankruptcy will lead to bond 
forfeiture and forfeited amounts are not likely to be sufficient to 
ensure perpetual treatment of discharges. Comments received from an OSM 
advance notice of proposed rulemaking (ANPRM) of May 17, 2002 (67 FR 
35070), titled, ``Bonding and Other Financial Assurance Mechanisms for 
Treatment of Long-Term Pollutional Discharges and Acid/Toxic Mine 
Drainage (AMD) Related Issues,'' confirms our experience regarding the 
unsuitability of bonds that do not generate income for water treatment. 
In that ANPRM, we sought comment on, among other things, the form and 
amount of financial assurance that should be required to guarantee 
treatment of postmining pollutional discharges. Commenters on the ANPRM 
disagreed as to whether financial assurance should be required, but 
they largely agreed that, if it was, surety bonds are not the best 
means--or even an appropriate means--of accomplishing that purpose. The 
Surety Association of America stated that surface coal mining 
operations ``would not be prudently bondable if the scope of the 
obligation included perpetual treatment of discharge[s].'' According to 
the Association, ``the problem of acid mine drainage requires a funding 
vehicle, and a surety bond is not a funding vehicle.''
    We believe that the best approach to providing financial assurances 
for long-term treatment of pollutional discharges is to require that 
the permittee establish dedicated income-producing accounts such as 
trust funds or annuities that are held by a third party as trustee for 
the regulatory authority. However, the Tennessee Federal program 
currently lacks express authority to accept such accounts as bond. If 
adopted, this proposed amendment would allow Tennessee to accept trust 
funds or annuities to fund treatment of postmining pollutional 
discharges. It also would establish the parameters under which those 
trust funds or annuities must operate.
    In this proposal, we are building on the experience of 
Pennsylvania, which has successfully implemented similar provisions. 
The provisions included in our proposed rule are based upon the 
Pennsylvania provisions and its experience with those provisions.
    Pennsylvania amended its Surface Mining Conservation and 
Reclamation Act and implementing regulations in 1998 to include trust 
funds to fund treatment of postmining discharges. As of today, 
Pennsylvania has executed eight trust fund account agreements involving 
thirty-five treatment facilities. The first two agreements were 
executed in March, 1999; followed by one each in October 2001; November 
2002; June 2003; September 2003; June 2004; and November 2004. Six of 
the trust fund accounts are fully funded and two are partially funded. 
There are 45 agreements in various stages of processing that remain to 
be completed for a total of 53 trust fund agreements.
    Pennsylvania's law and regulations allow the complete release of 
any conventional bonds remaining after land

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reclamation has been fully completed and the revegetation 
responsibility period has expired for a site with a pollutional 
discharge if provisions have been made for sound future treatment of 
that discharge. The provisions for sound future treatment must be 
another approved financial instrument, such as a trust fund, that will 
fully secure the long-term treatment obligation and is applicable to 
the area associated with that treatment.
    When Pennsylvania submitted the amendment to its program 
authorizing the use of trust funds and annuities, it characterized 
those financial instruments as collateral bonds and we approved them as 
such (70 FR 25472). However, the Federal regulations under 30 CFR 
800.11(e) provide another option for approving trust funds and 
annuities. Trust funds and annuities held by a third party would fit 
under the alternative bonding system (ABS) criteria of 30 CFR 
800.11(e), which implement the provision in section 509(c) of SMCRA 
authorizing OSM and the States to establish an ABS if they ``will 
achieve the objectives and purposes of the bonding program.'' The 
regulations require that such systems (1) ensure that the regulatory 
authority have available sufficient funds to complete the reclamation 
plan for any areas that may be in default at any time and (2) provide a 
substantial economic incentive for the permittee to comply with all 
reclamation provisions. Establishment of a trust fund would satisfy the 
first criterion, while the permittee's provision of the monies needed 
to establish a trust fund would satisfy the second criterion. Approval 
of trust funds and annuities as an ABS as proposed here will allow a 
reasonable time to fully fund such accounts. This is preferable to the 
lump sum deposit required for collateral bonds, particularly in those 
cases where treatment of the discharge will involve a large capital 
expense. As part of this proposed rulemaking, we are seeking comments 
on approving trust funds and annuities as an ABS under 30 CFR 800.11(e) 
as opposed to approval of those instruments as a collateral bond under 
30 CFR 800.21.
    Postmining pollutional discharges exist in Tennessee and treatment 
of the discharges is a necessity. We are committed to establishing a 
workable means in Tennessee to secure the necessary funds to ensure 
that treatment can continue. We believe that properly managed trust 
funds will provide the necessary funds and will result in treatment of 
the discharges to the standards in the Tennessee program. We are 
issuing this proposed rulemaking to seek comments on providing the 
Tennessee Federal program with the authority to establish trust funds 
or annuities as an ABS to fund long-term treatment of postmining 
pollutional discharges in Tennessee by adding paragraph (4) to 30 CFR 
942.800(b) as noted below.
    Proposed 30 CFR 942.800(b)(4) would provide the authority for 
establishing trust funds and annuities. Establishing trust funds and 
annuities as an ABS will keep bonds in place on those areas where 
discharges are occurring as well as on the areas necessary for the 
construction of treatment facilities and areas in support of treatment 
facilities (i.e., access roads). Additionally, a trust fund or annuity 
will be available to fund treatment of discharges in the event of an 
operator's bankruptcy. The conditions for establishing trust funds are 
found in paragraphs (i) through (ix) and are discussed individually 
below.
    In paragraph (i), we are proposing that the amount of the trust 
fund or annuity be determined by OSM. We believe OSM is in the best 
position for evaluating the site conditions and impact of the 
discharges and, therefore, can most accurately evaluate the costs 
necessary for treatment, including both capital and operational 
expenses.
    In paragraph (ii), we are proposing that the trust fund or annuity 
be in a form specified by OSM and contain terms and conditions required 
by OSM. As we stated earlier, OSM is in the best position to establish 
the terms of the trust fund based on its knowledge of the site 
conditions. This provision will give OSM the flexibility to tailor 
individual trust agreements to best reflect treatment options.
    In paragraph (iii), we are proposing that at a minimum, a trust 
fund or annuity shall provide that OSM is irrevocably established as 
the beneficiary of the trust fund or of the proceeds from the annuity. 
This provision will ensure that all of the monies in the trust funds 
will be available for treatment regardless of an operator's financial 
circumstances.
    In paragraph (iv), we are proposing that the investment objectives 
of the trust fund or annuity be specified by OSM. This will ensure the 
stability of investments for the trust funds and allow OSM to focus on 
the goal of producing sufficient revenue for treatment of discharges.
    In paragraph (v), we are proposing that termination of the trust 
fund or annuity may occur only as specified by OSM upon a determination 
that treatment is no longer necessary, that reclamation has been 
completed, or that a replacement bond has been posted. This provision 
will allow OSM to keep the trust fund in place for as long as necessary 
to maintain treatment facilities and will ensure that the only reason 
for termination of the trust fund is that the treatment goals have been 
attained or that a replacement bond has been posted.
    In paragraph (vi), we are proposing that release of money to the 
permittee from the trust fund or annuity may be made only upon written 
authorization of OSM. This provision is designed to ensure that only 
funds necessary for treatment of discharges are released to an operator 
and that OSM is made aware of all expenditures from the funds.
    In paragraph (vii), we provide the requirements for institutions 
who serve as trustees or issue annuities. We are proposing to allow 
only the following types of financial institutions to serve as a 
trustee or issue an annuity for the purposes of this rule:
     A bank or trust company chartered by the Tennessee 
Department of Financial Institutions.
     A national bank chartered by the Office of the Comptroller 
of the Currency.
     An operating subsidiary of a national bank chartered by 
the Office of the Comptroller of the Currency.
     Any other financial institution with trust powers and with 
offices located in Tennessee, provided that institution's or company's 
activities are examined or regulated by a State or Federal agency.
    We are further proposing to require that an insurance company 
issuing an annuity be licensed or authorized to do business in 
Tennessee by the Tennessee Department of Commerce and Insurance or be 
designated by the Commissioner of that Department as an eligible 
surplus lines insurer. We are proposing these requirements to ensure 
that only qualified business institutions are administering the trust 
funds. This will ensure that the trust funds are administered in a way 
that meets the treatment goals of OSM and will provide the security 
this program requires to ensure the funds are available for treatment. 
In paragraph (viii), we are proposing that trust funds and annuities, 
as described in this paragraph, are established to guarantee that 
moneys are available to pay for treatment of postmining pollutional 
discharges or reclamation of the mine site or both. This provision is 
necessary to codify the intent of the program. Reclamation of the mine 
site will be an objective of the program if such reclamation reduces or 
eliminates the discharge.

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    Finally, in paragraph (ix), we are proposing to allow the release 
of conventional bonds if, apart from the pollutional discharge, the 
permittee has met all applicable reclamation requirements and has made 
provisions, as noted in this section, for treatment of pollutional 
discharges. The establishment of trust funds or annuities for treatment 
of long-term pollutional discharges will constitute a replacement of 
bonds as authorized in 30 CFR 800.30; there is no need to retain bonds 
for other areas for which all reclamation requirements have been met 
and the revegetation responsibility period has expired.

B. Revisions to 30 CFR 942.816(f)(3) and 30 CFR 942.817(e)(3)

    The Federal requirements for revegetation success are discussed in 
both SMCRA and the Federal regulations. Section 515(b)(19) of SMCRA 
requires establishment of a diverse, effective, and permanent 
vegetative cover, at least equal to the premining cover, that is 
capable of self generation and plant succession. The Federal 
regulations at 30 CFR 816.116 (for surface mining activities) and 30 
CFR 817.117 (for underground mining activities) provide national 
standards for revegetation success. At 30 CFR 816.116(b)(3)) and 30 CFR 
817.116(b)(3), the Federal regulations discuss revegetation success 
standards for areas to be developed for postmining land uses of fish 
and wildlife habitat, recreation, shelter belts, or forest products. 
These regulations, last revised on September 7, 1988, provide that 
success of vegetation shall be determined on the basis of tree and 
shrub stocking and vegetative ground cover. The regulations further 
provide that minimum stocking and planting arrangements for these 
postmining land uses shall be specified by the regulatory authority on 
the basis of local and regional conditions.
    In promulgating a Federal program for Tennessee, we noted that 30 
CFR 816.116(a)(1) requires the regulatory authority to select the 
standards for revegetation success and include them in the regulatory 
program. Therefore, we included specific standards at 30 CFR 
942.816(f)(3) and 30 CFR 942.817(e)(3) that provide revegetation 
success standards for areas developed for wildlife habitat, 
recreational or forest products. These regulations require a minimum 
eighty percent (80%) ground cover for those postmining land uses. In 
the preamble discussion of those rules, we noted that we believed that 
a minimum level of 80% vegetative coverage was necessary to control 
erosion on the steep terrain that is common to eastern Tennessee coal 
fields. The regulations also stated that stocking requirements for 
woody plants for areas developed for wildlife habitat, recreational or 
forest products would be determined on a case-by-case basis and 
specified in the approved mining and reclamation plan. We noted in our 
preamble discussion that we believed that such case-by-case approvals 
would allow the flexibility necessary to accommodate the specialized 
requirements of various wildlife and forest management plans (49 FR 
38888). The corresponding Federal standards at 30 CFR 816.116(b)(3) for 
stocking of woody plants have since been revised and are not as 
stringent as those currently contained at 30 CFR 942.816(f)(3), which 
have not been changed since October 1, 1984.
    Finally, we promulgated 30 CFR 942.816(f)(4), which prohibits bare 
areas larger than one-sixteenth of an acre in size and that total more 
than 10% of the area seeded. We promulgated this provision because we 
believed that it was necessary to avoid releasing bond on lands that 
meet the overall cover requirements of 80% or 90% ground cover, but 
still have localized areas that are not yet stabilized with respect to 
soil erosion (49 FR 38888).
    Since these requirements were promulgated in 1984, a great deal has 
been learned about reestablishing vegetation on mined land, 
particularly trees. It has also become apparent that permittees 
generally prefer pasture or grazing land as postmining land uses 
because they do not require the extra work and expense of planting 
trees and ensuring successful tree establishment. Thus, the reclamation 
of minesites has typically resulted in dense grasslands, with few 
trees. Many trees that were planted had low survival rates and required 
replanting, and those that survived did not reach their optimal growth 
potential, which further discouraged operators from considering a land 
use that required planting trees.
    Virtually all of the land being mined in Tennessee was woodland or 
forest at the time it was mined. We recognize the importance and 
benefits of promoting the reestablishment of forests on mined land, 
which involves encouraging postmining land uses that include trees, 
such as wildlife habitat, undeveloped land, recreation, or forestry. 
However, without healthy, vigorously growing trees, these postmining 
land uses cannot be successfully achieved. Therefore we need to 
reconsider our revegetation standards to assure that they do not unduly 
impair tree seedling survival and growth or discourage operators and 
landowners from considering land uses that involve planting trees.
    We have reviewed available literature and met with recognized 
experts to determine what site conditions resulted in tree mortality or 
stunted growth and we reviewed our regulations to identify any 
impediments to successful forest establishment. Our goal is to have 
regulations that promote planting trees and reclamation techniques that 
increase tree survival and growth rates, as well as ensure natural 
succession of native plants and trees on minesites. In short, our goal 
is to reestablish diverse and productive forest land.
    We found that to promote and enable diverse, vigorous forested 
lands on minesites, changes to our regulations are necessary. The 
conventional method of reclaiming minesites, developed with the passage 
of the Act, typically includes using bulldozers to grade and track-in 
spoil, creating smooth slopes. This method results in a compacted 
surface that not only inhibits root growth of seedlings, but restricts 
infiltration of precipitation and increases runoff. To prevent erosion 
from the runoff, operators seed the regraded areas with aggressive, 
quick growing ground covers. This method of reclamation is very 
effective in producing dense hayland and pastureland. However, it is 
very detrimental to establishing forested land on minesites for three 
reasons: The dense vegetative covers used to control erosion compete 
with trees for soil nutrients, water and sunlight, the compaction of 
the minesite inhibits root growth as well as water infiltration, and 
the dense ground cover provides habitat for animals that eat the tree 
seedlings.
    In summarizing the research into ground cover and its effects on 
trees in 2003, Jim King and Jeff Skousen of West Virginia University 
noted that:

    The negative effects of overly abundant and aggressive ground 
cover on the survival and growth of trees planted on reclaimed mine 
lands has long been known. Trees planted into introduced, aggressive 
forages [especially tall fescue and sericea lespedeza] often are 
overtopped by the grass or legume and are unable to break free 
(Burger and Torbert, 1992; Torbert et al., 1995). The seedlings are 
pinned to the ground and have little chance for survival. If it is 
known that trees are to be planted, a tree-compatible ground cover 
should be seeded that will be less competitive with trees. Tree 
compatible ground cover should be slow growing, sprawling or low 
growing, not allopathic, and non-competitive with trees (Burger and 
Torbert, 1992). Plass (1968) reported that after four growing 
seasons the height growth of sweetgum and sycamore planted into an 
established stand of tall fescue on spoil banks was significantly 
retarded. Andersen et al.

[[Page 17686]]

(1989) found that survival and height growth for red oak and black 
walnut was significantly greater on sites where ground cover was 
chemically controlled.\1\
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    \1\ Tree Survival on a Mountaintop Surface Mine in West 
Virginia, King, J., J. Skousen, West Virginia University Morgantown, 
American Society of Mining and Reclamation, 2003.

    The amount of ground cover for reclaiming minesites to be used as 
forestland was also discussed by researchers affiliated with the 
Virginia Polytechnic Institute and State University:
    The use of tree-compatible ground covers during reclamation can 
allow seedlings to survive at rates exceeding the 70% that is 
necessary to achieve regulatory compliance without the expense of 
follow-up herbicide treatment. Furthermore, our experience indicates 
that sowing tree-compatible groundcovers at reduced rates often 
allows invasion by woody vegetation from adjacent forests. The 
results of this study suggest that sowing ground cover at reduced 
rates achieving 50 to 70% cover, instead of 90% currently required 
by Virginia's regulations, would also greatly improve the likelihood 
of hardwood reforestation success.\2\
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    \2\ Herbaceous Ground Cover Effects on Native Hardwoods Planted 
on Mined Land, Burger, J.A., D.O. Mitchem, C.E. Zipper, R. Williams, 
Virginia Polytechnic Institute and State University, American 
Society of Mining and Reclamation, 2005.

    Researchers from the University of Maine have found that only a 
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small amount of ground cover can inhibit tree growth:

    Additional research has found that herbaceous vegetation 
(grasses and broadleaves) in small amounts (<20% cover) around 
seedlings immediately after planting will substantially reduce early 
stand growth.\3\
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    \3\ Top 10 Principles for Managing Competing Vegetation to 
Maximize Regeneration Success and Long-Term Yields, R.G. Wagner, 
University of Maine.

    The researchers are united in their findings that even ground cover 
significantly less dense than the 80% ground cover required in 
Tennessee's rules for sites to be developed for wildlife habitat, 
undeveloped land, recreation, or forestry would still be detrimental to 
tree survival and growth. We have also found that heavy ground cover 
impedes the natural succession of native forest plants, thereby 
frustrating SMCRA's goal of establishment of a diverse, effective, and 
permanent vegetative cover of the same seasonal variety native to the 
area and capable of self-regeneration and plant succession. As Burger 
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and Zipper noted:

    Another purpose of low ground cover seeding rates is to allow 
the invasion of native plant species such as yellow poplar, red 
maple, birches and other light-seeded trees. Dense ground covers 
prevent the natural seeding-in of native plants.\4\
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    \4\ How to Restore Forests on Surface-Mined Land, Burger, J.A., 
C.E. Zipper, Virginia Polytechnic Institute and State University, 
Powell River Project, Virginia Cooperative Extension Publication 
460-123, Revised 2002.

    While we have found that excessive vegetative cover is detrimental 
to tree growth and survival and natural succession, we are cognizant of 
the general expectation that vegetative cover is needed to control 
erosion on newly reclaimed minesites. However, the amount of ground 
cover necessary to control erosion on any particular site is a function 
of the site topography, composition of surface material, precipitation 
amounts, and the level of site compaction. Loose or uncompacted 
material, particularly if relatively flat, may have virtually no runoff 
or erosion and would require little or no vegetation to control 
erosion. Conversely, a highly compacted steep slope severely limits 
infiltration and increases runoff so that a dense vegetative cover is 
needed to control erosion. Forestry researchers agree that productive 
forest land can best be created on reclaimed mine land by using 
techniques that we will refer to as the Forestry Reclamation Approach. 
This approach requires loosely grading the final 4 to 6 feet of topsoil 
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or topsoil substitute to create a non-compacted growth medium.

    Non-compacted mine soils have higher infiltration rates and 
erode less than graded soils. When using the Forestland Reclamation 
Approach, less ground cover is needed to prevent erosion and protect 
water quality, and in the process, diverse mixes of trees are able 
to survive and grow at rates that will create an economically viable 
forest.\5\
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    \5\ Herbaceous Ground Cover Effects on Native Hardwoods Planted 
on Mined Land, Burger, J.A., D.O. Mitchem, C.E. Zipper, R. Williams, 
Virginia Polytechnic Institute and State University, American 
Society of Mining and Reclamation, 2005.

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    Also in support:

    Third-year results show that intensive grading did not result in 
better ground cover establishment or erosion control. In fact, 
erosion was highest on the intensively graded plots.\6\
---------------------------------------------------------------------------

    \6\ Influence on Grading Intensity on Ground Cover 
Establishment, Erosion, and Tree Establishment on Steep Slopes, 
Torbert, J.L., Burger, J.A., Virginia Polytechnic Institute and 
State University, International Land Reclamation and Mine Drainage 
Conference and the Third International Conference on the Abatement 
of Acidic Drainage, 1994.

    Reduced grading of minesites will result in less compacted growing 
media on the surface that will increase water infiltration and limit 
the amount of water running off a minesite. This in turn will limit 
erosion and sedimentation from that site as well as making more water 
available for tree growth. Limited compaction is also more favorable to 
tree root growth which will increase survivability and growth rates.
    In proposing these changes, we have also considered many additional 
studies conducted to determine the effects of vegetation and 
reclamation practices on the development of trees planted on reclaimed 
minesites.
    Our regulations are clear in providing that erosion from minesites 
must be controlled. At the same time, research has found that ground 
covers in excess of those required for controlling erosion could be 
detrimental to tree growth and natural succession which would impede 
establishing postmining land uses of wildlife habitat, undeveloped 
land, recreation, or forestry. We believe the best way to ensure 
creation of a planting plan that controls erosion and encourages tree 
survival, growth and natural succession, would be to eliminate the 
current arbitrary success standard of 80% ground cover, which applies 
to all sites regardless of local site conditions and proposed land 
uses. Conditions at each site are unique and methods to reclaim them 
will vary. Allowing OSM the latitude to determine the success standards 
on a site-by-site basis will ensure that localized conditions are taken 
into account, successful postmining land uses are achieved, and erosion 
is effectively controlled. As a result, we are proposing to revise 30 
CFR 942.816(f)(3) and 30 CFR 942.817(e)(3) as noted below by 
eliminating the 80% ground cover standard. Please note that paragraphs 
(i)-(iii) of those sections are not affected by this rulemaking.
    We are also proposing to expand the postmining land uses to which 
the regulations at 30 CFR 942.816(f)(3) and 30 CFR 942.817(e)(3) apply 
by including undeveloped land and by modifying the postmining land use 
of forest products to forestry. We are proposing these changes to 
accurately reflect the postmining land uses that involve the 
establishment of forested lands.

C. Revision to 30 CFR 942.816(f)(4) and 30 CFR 942.817(e)(4)

    We propose to exempt sites to be developed for wildlife habitat, 
undeveloped land, recreation, or forestry from the bare area provisions 
of 30 CFR 942.816(f)(4) and 942.817(e)(4). The Forestry Reclamation 
Approach calls for using herbaceous ground covers that are compatible 
with growing trees. Using less competitive ground covers at lower 
seeding rates, or in some cases no herbaceous groundcover at all, will 
result in areas that may be essentially bare except for tree seedlings 
and volunteer herbaceous vegetation. As we noted earlier in this 
preamble, reduced levels of herbaceous ground cover are necessary for 
natural succession of

[[Page 17687]]

native forest plants and to reduce competition between grasses and tree 
seedlings for water, nutrients and sunlight. While striving to achieve 
this goal, some areas will be void of herbaceous ground cover. This is 
desirable because many native woody plants and forbs require bare soil 
conditions in order to seed-in naturally. Also, most traditionally 
planted herbaceous ground cover species are not expected to be part of 
the mature forest plant community.
    We noted in the October 1, 1984, Federal Register our reason for 
requiring the bare area standard was to avoid releasing bond on 
localized areas on reclaimed minesites that are not yet stabilized from 
soil erosion. The Forestry Reclamation Approach calls for loosely 
graded growth media, which will increase water infiltration and reduce 
runoff thereby decreasing or eliminating erosion. In any event, 30 CFR 
816.45 and 817.45 require the construction and maintenance of 
appropriate sediment control measures to minimize erosion and runoff 
outside the permit area. As a result, we believe that exempting sites 
to be developed for wildlife habitat, undeveloped land, recreation, or 
forestry from the bare area standard of 30 CFR 942.816(f)(4) and 
942.817(e)(4), coupled with the revegetation success standards in the 
approved mining and reclamation plan as specified in the proposed 
revision of 30 CFR 942.816(f)(3) and 942.817(e)(3), will supply 
sufficient standards to both prevent erosion and to provide a proper 
environment for tree growth and natural succession.

III. Public Comment Procedures

    Under the provisions of 30 CFR 736.12, we are seeking your comments 
on the proposed revisions to the regulations. Because the proposed 
revisions are limited to the Tennessee Federal Program, our regulations 
at 30 CFR 736.12(a)(2) allow for a 30 day comment period. Comments and 
requests for a public hearing may be submitted as noted below.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your written comments should be specific, pertain only to 
the issues proposed in this rulemaking, and include explanations in 
support of your recommendations. We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Knoxville Field Office may not be logged in, and 
comments received after the close of the comment period may not be 
considered.

Electronic Comments

    Please submit Internet comments as an ASCII or Word file avoiding 
the use of special characters and any form of encryption. Please also 
include ``Attn: RIN 1029-AC50'' and your name and return address in 
your Internet message. If you do not receive a confirmation that we 
have received your Internet message, contact the Knoxville Field Office 
at 865-545-4103.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments and submit 
their comments by regular mail, not electronic 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 review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., eastern time on 
April 21, 2006. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold a hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at the public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be 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 everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This document is not a significant rule and is not subject to 
review by the Office of Management and Budget under Executive Order 
12866.
    a. This rule will not have an effect of $100 million or more on the 
economy. The revisions to the bonding requirements and revegetation 
standards will not adversely affect in a material way the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or Tribal governments or communities.
    As discussed in the preamble to the proposed rule, the bonding 
provisions should benefit coal operators who experience unanticipated 
pollutional discharges by providing them with an alternative financial 
mechanism for the treatment of AMD. The proposed bonding revisions will 
not add to the operator's cost of doing business since the existing 
regulations in 30 CFR 942.800 and 30 CFR part 800 already require that 
a bond amount be adequate for the cost of reclamation and, when 
necessary, be adjusted to insure that adequate funds are available. The 
trust funds or annuities will allow continued treatment of postmining 
pollutional discharges by the operator and will assist in preventing 
bankruptcies and potential bond forfeitures since sureties will not 
likely fund treatment. There are approximately 52 mining operations in 
Tennessee with AMD problems that may avail themselves of the new 
bonding provisions.
    Our estimates have found that approximately 10 companies will take 
advantage of the rule that eliminates the arbitrary ground cover 
requirements on minesites to be reclaimed for wildlife habitat, 
undeveloped land, recreation, or forestry. Approximately 1000-1500 
acres are eligible for Phase III bond release annually in Tennessee. 
The changes to the rules proposed will encourage reforestation of this 
acreage and provide the basis for healthy,

[[Page 17688]]

vigorous tree growth. While economic benefits of reforestation to mine 
operators are limited, the benefits to the environment are numerous and 
include: creating diverse, productive forests that provide watershed 
protection, wildlife habitat, recreational opportunities, and remove 
carbon dioxide from the air. Additionally, there are economic benefits 
of reforested sites because forests can offer substantial revenue for 
landowners who own the trees and job opportunities for local residents 
who harvest the trees and use the lumber.
    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. This rule does not raise novel legal or policy issues.

Regulatory Flexibility Act

    The Department of the Interior certifies that this proposed 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.). As previously stated, the revisions to the existing provisions 
may benefit the regulated industry by allowing an alternative source of 
bonding. 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

    For the reasons previously stated, this rule is not a major rule 
under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement 
Fairness Act. This proposed 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

    This proposed rule does not impose an unfunded mandate on State, 
local, or Tribal 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. 1501 et seq.) is not required.

Executive Order 12630--Takings

    In accordance with Executive Order 12630, the proposed rule does 
not have significant takings implications. The revisions to the bonding 
and revegetation regulations do not affect the use or value of private 
property.

Executive Order 12988--Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this proposed 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 13132--Federalism

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

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

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this proposed rule on Federally-recognized Indian 
tribes and have determined that the proposed revisions 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.

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

    This proposed rule is not considered a significant energy action 
under Executive Order 13211. The proposed revisions would not have a 
significant effect on the supply, distribution, or use of energy.

Paperwork Reduction Act

    This proposed rule does not contain collections of information 
which require approval by the Office of Management and Budget under 44 
U.S.C. 3501 et seq.

National Environmental Policy Act

    This proposed rule does not require an environmental impact 
statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides 
that promulgation of Federal programs 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)).

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.  942.800). 
(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 of 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].

List of Subjects in 30 CFR Part 942

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 21, 2006.
R.M. ``Johnnie'' Burton,
Acting Assistant Secretary, Land and Minerals Management.

    For the reasons given in the preamble, we are proposing to amend 30 
CFR part 942 as set forth below:

PART 942--TENNESSEE

    1. The authority citation for part 942 continues to read as 
follows:

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

    2. Amend Sec.  942.800 by adding new paragraph (b)(4) to read as 
follows:


Sec.  942.800  Bond and insurance requirements for surface coal mining 
and reclamation operations.

* * * * *
    (b) * * *
    (4) Special consideration for sites with long-term postmining 
pollutional

[[Page 17689]]

discharges. With the approval of the Office, the permittee may 
establish a trust fund or annuity to guarantee treatment of long-term 
postmining pollutional discharges. The trust fund or annuity will be 
subject to the following conditions:
    (i) The Office will determine the amount of the trust fund or 
annuity, which must be adequate to meet all anticipated treatment 
needs, including both capital and operational expenses;
    (ii) The trust fund or annuity must be in a form approved by the 
Office and contain all terms and conditions required by the Office;
    (iii) The trust fund or annuity must provide that the Office is 
irrevocably established as the beneficiary of the trust fund or of the 
proceeds from the annuity;
    (iv) The Office will specify the investment objectives of the trust 
fund or annuity;
    (v) Termination of the trust fund or annuity may occur only as 
specified by the Office upon a determination that no further treatment 
or other reclamation measures are necessary or that a replacement bond 
or other financial instrument has been posted;
    (vi) Release of money to the permittee from the trust fund or 
annuity may be made only upon written authorization of the Office;
    (vii) A financial institution serving as a trustee or issuing an 
annuity must be one of the following: a bank or trust company chartered 
by the Tennessee Department of Financial Institutions; a national bank 
chartered by the Office of the Comptroller of the Currency; an 
operating subsidiary of a national bank chartered by the Office of the 
Comptroller of the Currency; any other financial institution with trust 
powers and with offices located in Tennessee, provided that 
institution's or company's activities are examined or regulated by a 
State or Federal agency;
    (viii) Trust funds and annuities, as described in this paragraph, 
must be established to guarantee that moneys are available for the 
Office to pay for treatment of postmining pollutional discharges or 
reclamation of the mine site or both; and
    (ix) When a trust fund or annuity is fully in place, the Office may 
approve final bond release under Sec.  800.40(c)(3) for conventional 
bonds posted for a permit or permit increment, provided that, apart 
from the pollutional discharge, the area fully meets all applicable 
reclamation requirements and the trust fund is sufficient for treatment 
of pollutional discharges and reclamation of all areas involved in such 
treatment.
    3. In Sec.  942.816, revise paragraph (f)(3) introductory text and 
paragraph (f)(4) as follows:


Sec.  942.816  Performance standards--Surface mining activities.

* * * * *
    (f) * * *
    (3) For areas developed for wildlife habitat, undeveloped land, 
recreation, or forestry the stocking of woody plants shall be at least 
equal to the rates specified in the approved mining and reclamation 
plan. In order to minimize competition with woody plants, herbaceous 
ground cover should be limited to that necessary to control erosion and 
support the postmining land use. Seed mixes and seeding rates will be 
specified in the permit.
* * * * *
    (4) Bare areas shall not exceed one-sixteenth (1/16) acre in size 
and total not more than ten percent (10%) of the area seeded, except 
for areas developed for wildlife habitat, undeveloped land, recreation, 
or forestry.
* * * * *
    4. In Sec.  942.817, revise paragraph (e)(3) introductory text and 
paragraph (e)(4) as follows:


Sec.  942.817  Performance standards--Underground mining activities.

* * * * *
    (e) * * *
    (3) For areas developed for wildlife habitat, undeveloped land, 
recreation, or forestry, the stocking of woody plants shall be at least 
equal to the rates specified in the approved mining and reclamation 
plan. In order to minimize competition with woody plants, herbaceous 
ground cover should be limited to that necessary to control erosion and 
support the postmining land use. Seed mixes and rates shall be 
specified in the permit.
* * * * *
    (4) Bare areas shall not exceed one-sixteenth (1/16) acre in size 
and total not more than ten percent (10%) of the area seeded, except 
for areas developed for wildlife habitat, undeveloped land, recreation, 
or forestry.
* * * * *
[FR Doc. 06-3260 Filed 4-5-06; 8:45 am]
BILLING CODE 4310-05-P