51684 Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

RIN 1029–AC02 

30 CFR Parts 816 and 817 

Topsoil Redistribution and 

Revegetation Success Standards 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are finalizing minor changes to 

our regulations to improve the quality 

and diversity of revegetation in the 

reclamation of coal mined lands. These 

revisions govern topsoil redistribution 

and revegetation success standards and 

will: Encourage species diversity on 

reclaimed lands by allowing 

replacement of soil in variable 

thicknesses; provide more flexibility to 

States in using new vegetative success 

standards and sampling techniques by 

removing the current requirement that 

such changes be included in the 

approved regulatory program; define 

success standards for lands with an 

undeveloped land postmining land use; 

remove shelter belts from the list of 

postmining land uses subject to success 

standards; provide more flexibility to 

operators when they demonstrate 

compliance with time-in-place 

requirements by allowing them to 

consider all trees and shrubs in place at 

bond release, including volunteer trees 

and shrubs, and not requiring them to 

verify the length of time that individual 

trees and shrubs have been in place— 

this change will remove a significant 

impediment to reforestation of mined 

lands; 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: Effective Date: September 29, 

2006. 

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: 

bpostle@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background Information on the 

Rulemaking 

II. Discussion of the Revisions and Our 

Response to the Comments Submitted 

III. Procedural Matters and Required 

Determinations for This Rule 

I. Background Information on the 

Rulemaking 

Why are we revising our regulations? 

On March 17, 2005, we published 

proposed revisions to our regulations 

that govern portions of the performance 

standards dealing with topsoil 

redistribution and evaluation of 

revegetation success. 70 FR 13076. The 

revisions contained in this final rule are 

the product of several outreach efforts 

by OSM to review and assess its 

revegetation regulations at §§ 816.111 

through .116 and §§ 817.111 through 

.116. The first outreach effort occurred 

in 1999. As part of this revegetation 

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. We held ten public meetings 

around the country between May 27 and 

August 25, 1999. In the spring of 2003, 

as a follow-up to the 1999 revegetation 

initiative, we conducted a survey of 

State regulatory authorities. This survey 

explored whether the statistical and/or 

production requirements of the current 

revegetation regulations at § 816.116 

and § 817.116 adversely affect the 

establishment of a diverse plant 

community; whether there is a 

continuing need for inclusion of success 

standards and sampling techniques in a 

State’s approved program; and whether 

there is a need for success standards for 

undeveloped postmining land. 

In addition to the revegetation 

initiative and survey, we also 

established a reforestation outreach 

initiative that began with three 

workshops held between January 1999 

and May 2002 involving Federal and 

State regulatory personnel, industry 

representatives, and landowners. 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 the survey, we identified five minor 

revisions that we needed to make to the 

existing regulations. This rule revises 

the Federal regulations governing the 

topsoil redistribution standards at 

§ 816.22(d)(1) and § 817.22(d)(1); the 

success standards and sampling 

techniques requirements at 

§ 816.116(a)(1) and § 816.117(a)(1); the 

land use categories subject to the 

success standards at § 816.116(b)(3) and 

§ 817.116(b)(3); the revegetation success 

standards for trees and shrubs at 

§ 816.116(b)(3)(ii) and 

§ 817.116(b)(3)(ii); and the timing of 

revegetation success measurements at 

§ 816.116(c)(3)(i) and (ii) and 

§ 817.116(c)(3)(i) and (ii). 

These revisions will, respectively, 

encourage species diversity on 

reclaimed lands by allowing 

replacement of soil in variable 

thicknesses; provide more flexibility to 

States in using new vegetative success 

standards and sampling techniques by 

removing the current requirement that 

such changes be included in the 

approved regulatory program; define 

success standards for lands with an 

undeveloped land postmining land use; 

remove shelter belts from the list of 

postmining land uses subject to success 

standards; provide more flexibility to 

operators when they demonstrate 

compliance with time-in-place 

requirements by allowing them to 

consider all trees and shrubs in place at 

bond release, including volunteer trees 

and shrubs, and not requiring them to 

verify the length of time that individual 

trees and shrubs have been in place— 

this change will remove a significant 

impediment to reforestation of mined 

lands; 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. Since the 

soil redistribution and revegetation 

success standards are identical for 

surface and underground mining 

activities, this preamble will discuss our 

revisions to part 816 with the 

understanding that the discussion also 

applies to our revisions to part 817. 

In response to the Federal Register 

notice of our 2005 proposed rule, we 

received a total of 34 comments. We 

discuss the comments and our 

responses to those comments below. No 

one requested a public hearing. 

II. Discussion of the Revisions and Our 

Response to the Comments Submitted 

1. Section 816.22(d)(1)(i): Topsoil 

Redistribution 

What are the revisions to 

§ 816.22(d)(1)(i)? 

In order to improve the potential for 

establishing diverse plant communities 

consistent with the specific revegetation 

goals for an approved postmining land 

use, we are adopting, as generally 

proposed and further revised in 

response to comments received, topsoil 

redistribution provisions at 

§ 816.22(d)(1)(i) that specify the manner 


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Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 51685 

in which topsoil material removed 

under § 816.22(a) or (b) must be 

redistributed. Final § 816.22(d)(1)(i) will 

read as follows, with new language in 

italics: 

(d) Redistribution. (1) Topsoil materials 

and topsoil substitutes and supplements 

removed under paragraphs (a) and (b) of this 

section shall be redistributed in a manner 

that—

(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; 

Under the prior topsoil redistribution 

regulations at § 816.22(d)(1)(i), topsoil 

must be redistributed in a manner that 

‘‘achieves an approximately uniform, 

stable thickness consistent with the 

approved postmining land use * * *.’’

This requirement that topsoil be 

redistributed (or ‘‘replaced’’) to an 

approximately uniform thickness has 

proven to be particularly appropriate 

when the approved postmining land 

uses are, for example, commercial 

forestry or cropland, both of which may 

involve a single species of vegetative 

cover in a managed agricultural 

environment. However, when the 

approved postmining land uses are 

wildlife habitat or grazing land that 

require satisfaction of specified 

vegetative diversity standards for bond 

release, the requirement in 

§ 816.22(d)(1)(i) that topsoil be replaced 

to an approximately 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, variable 

topsoil depth is one of the several 

physical characteristics that operators 

can use to encourage the desired species 

diversity. 

As discussed in the preamble to the 

proposed rule, 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. 

More recently, in response to our 

1999 revegetation outreach effort, 

commenters again questioned the 

appropriateness of the § 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. As 

proposed, we have revised our 

regulations at § 816.22(d)(1)(i) by adding 

a sentence that expressly allows soil 

thickness to be varied to the extent such 

variations help to meet the specific 

revegetation goals identified in the 

permit. Also as proposed, we have 

inserted the word ‘‘when’’ between the 

words ‘‘thickness’’ and ‘‘consistent’’ in 

the existing language of § 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. 

While the prior uniform topsoil 

redistribution standard of 

§ 816.22(d)(1)(i) has generally worked 

quite well, the new 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 is fish and wildlife habitat, and 

the desired plant communities are a 

mixture of grasslands with interspersed 

shrub and tree 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 revised rule will 

not affect existing topsoil salvage 

requirements. 

In response to comments, we have 

further revised § 816.22(d)(1) to provide 

that topsoil materials and topsoil 

substitutes and supplements removed 

under paragraphs (a) and (b) must be 

redistributed in a manner that meets the 

requirements of subparagraphs (i)-(iii). 

(Emphasis added). This last revision 

should make clear that, under 

appropriate circumstances, the variable 

thickness revision of § 816.116(d)(1)(i) 

applies to topsoil supplements and 

substitutes already allowed under 

§ 816.22(a) and (b). 

What were the comments submitted on 

our proposed revisions to 

§ 816.22(d)(1)(i)? 

Seventeen commenters supported our 

proposed revision to the topsoil 

redistribution requirements of 

§ 816.22(d)(1)(i). Their comments 

focused on the potential to be gained 

from varying topsoil thickness in 

establishing diverse plant communities. 

The commenters noted that research 

supports our contention that topsoil 

thickness affects the types, number, and 

densities of plants established in a 

particular area. These commenters also 

generally supported our position that 

the use of variable topsoil thickness to 

meet specific revegetation goals 

identified in the permit will assist 

operators in establishing more diverse 

plant communities on areas where such 

diversity is appropriate to meet the 

postmining land use. 

Four commenters proposed an 

additional revision to § 816.22(d)(1). 

They suggested that we further amend 

§ 816.22(d)(1) to apply to topsoil and 

topsoil supplements and substitutes 

removed under paragraphs § 816.22 (a) 

and (b) of this section. The commenters 

indicated that the revision that we 

proposed inappropriately applies only 

to topsoil materials as defined at 

§ 701.5, which states that ‘‘[t]opsoil 

means the A and E soil horizon layers 

of the four master soil horizons.’’ The 

commenters saw this as a problem 

because western coal mines are often 

located in areas where the native soils 

are poorly developed. At many of these 

mines, the A and E horizons are absent 

or insufficient in thickness to provide 

sufficient material for reclamation. 

Consequently, to meet their reclamation 

goals, operators must rely on the use of 

suitable unconsolidated materials 

immediately below the topsoil and on 

the use of selected overburden as topsoil 

supplements and/or substitutes. The 

commenters further noted that in other 

situations operators use very specific 

topsoil substitutes to establish specific 

or unique plant communities. For 

example, ongoing revegetation efforts 

have shown that substitute materials 

with high rock fragment content are best 

for reestablishing woody species in 

parts of the West. Accordingly, the 

commenters argued that we needed to 

broaden our proposed revision to 

§ 816.22(d)(1) to expressly allow for 

removed material, be it topsoil, topsoil 

supplements, or topsoil substitutes, to 


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51686 Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 

be replaced in variable thicknesses to 

meet specific revegetation goals. 

According to commenters this change 

would allow western surface coal mine 

operators to share in the benefits that 

our proposed rule was intended to 

achieve. 

We believe that these commenters 

have raised a valid concern about the 

applicability of § 816.22(d)(1) to the 

replacement of topsoil supplements or 

to substitutes currently allowed under 

§ 816.22(b). Many approved reclamation 

plans throughout the country already 

allow the use of topsoil supplements or 

substitutes. Regulatory authorities often 

permit use of such supplements or 

substitutes where there is insufficient 

topsoil, defined as A and E horizon 

material, to ensure the prescribed 

revegetation success. In other cases, 

they have approved topsoil substitutes 

when applicants have demonstrated that 

the existing topsoil is less suitable as 

plant growth material for the desired 

plant community than available subsoil 

or spoil material. For many years we 

have interpreted § 816.22(d)(1) as 

applying to both topsoil material 

removed under § 816.22(a) and to 

topsoil supplements or substitutes 

removed under § 816.22(b). Pursuant to 

this interpretation, once operators 

identify and remove approved topsoil 

supplements or substitutes, they may 

treat this material as topsoil material for 

the purposes of storage and 

redistribution. However, to eliminate 

any potential confusion as to whether, 

under appropriate circumstances, the 

variable thickness revision of 

§ 816.22(d)(1)(i) applies to topsoil 

supplements and substitutes already 

allowed under § 816.22(a) and (b), we 

are accepting the comment and revising 

§ 816.22(d)(1) as the commenters 

suggested. Accordingly, as set forth 

above, final § 816.22(d)(1) will provide 

that ‘‘(1) Topsoil materials and topsoil 

substitutes and supplements removed 

under paragraphs (a) and (b) of this 

section shall be redistributed in a 

manner that—’’ (Emphasis added). 

Hereafter, references to variable topsoil 

replacement also includes variable 

replacement of topsoil substitutes and 

supplements. 

Two commenters suggested 

eliminating from § 816.22 (a) the 

requirement to remove, i.e., salvage all 

topsoil. These commenters contend that, 

based on our proposal to allow 

replacement of topsoil at variable 

depths, we should be flexible and, at 

least in certain circumstances, also 

allow operators not to remove and 

replace all ‘‘available’’ topsoil. They 

argued that to require removal of all 

available topsoil would potentially 

defeat the purpose in the proposed rule 

of allowing shallower topsoil depths. In 

addition, the commenters pointed out 

that, according to mine reclamation 

professionals, shallower topsoil depths 

increase plant community diversity and 

woody stem density, while deeper than 

average topsoil depths (that would 

compensate for the areas where topsoil 

is applied more shallowly than the 

uniform average) only encourage 

aggressive grass and forb species at the 

expense of diversity and woody stem 

density. 

While the commenters are correct that 

shallower soils can increase plant 

diversity and woody stem density, we 

are not revising the regulations as they 

proposed. The existing regulations at 

§ 816.22(a) will continue to require the 

removal of all topsoil, defined 

elsewhere as A and E horizon material. 

For several reasons we do not believe 

that these regulations pose the problem 

suggested by the commenters. Most 

importantly, section 515(b)(5) of the 

Surface Mining Control and 

Reclamation Act of 1977 (SMCRA or the 

Act), clearly requires the removal and 

replacement of all suitable topsoil. 

Furthermore, natural landscapes usually 

include areas with deep soils as well as 

shallower soils. This in turn results in 

multiple distinct plant communities 

across the landscape. When we require 

uniform soil thickness for reclamation, 

the result may be a single plant 

community but little plant community 

variability across the landscape. 

Conversely, when we require 

reclamation that includes areas with 

deep soils as well as shallower soils, the 

result is more likely the establishment 

of multiple diverse plant communities, 

including those that prefer deeper soils 

as well as those that prefer shallower 

soils. The purpose of the rule is not, as 

commenters characterize, to allow for 

shallower topsoil depths throughout the 

reclamation area. Instead, the rule 

requires removal of all topsoil to allow 

development of reclamation and 

revegetation plans that can maximize 

the use of that topsoil through the 

placement of variable topsoil depths 

and the reconstruction of a much more 

diverse landscape similar to that which 

may have existed prior to mining. 

One commenter indicated that, if we 

allow variation in soil thickness 

(specifically reductions in soil 

thickness), we must also require the 

operator to demonstrate that an equal or 

greater chance for sustaining vegetation 

success will result. In addition, the 

commenter stated that the operator 

should have to demonstrate that the 

reconstructed soil has a root zone of 

sufficient depth to support the approved 

postmining land use. 

We generally agree with this comment 

but do not believe that any change in 

the revised regulation is necessary to 

ensure the desired variation of soil 

thickness. The revised language of 

§ 816.22(d)(1)(i) allows operators to vary 

soil thickness to the extent necessary to 

meet the specific revegetation goals 

identified in the permit. In turn, these 

revegetation goals should support the 

approved postmining land use. The 

State and the public will have the 

opportunity to review the permit prior 

to approval and determine whether the 

permittee has justified the need for 

variable topsoil thicknesses in order to 

achieve the identified revegetation 

goals. If the permittee has failed to do 

so, the State can disapprove the use of 

variable topsoil thicknesses or require 

additional information to justify 

departure from the normal practice. On 

this basis, we do not believe that the 

demonstration proposed by the 

commenter is necessary. 

One commenter opposed our 

proposed revision to the topsoil 

redistribution requirements of 

§ 816.22(d)(1)(i). Instead of replacing all 

the soil that was lost to strip-mining, the 

commenter alleged that, under revised 

§ 816.116(d)(1)(i), coal companies could 

replace only some of the removed soil. 

The commenter opposed the change to 

§ 816.22(d)(1)(i) because, according to 

him, it could ‘‘let coal companies do 

even less to bring the land they’ve 

mined back to its original condition.’’

This commenter seems to have 

misunderstood our proposal. It does not 

scrap the current standard. As before, 

the revised regulation will require 

operators to remove all topsoil from 

areas that are to be disturbed by mining. 

After mining, they must redistribute all 

removed topsoil on areas disturbed by 

mining. The proposed and final rules 

merely allow operators whose 

reclamation plan and postmining land 

use require the establishment of diverse 

plant communities as part of specific 

revegetation goals identified in the 

permit to redistribute topsoil at variable 

thicknesses rather than at approximate 

uniform thickness. For the reasons 

stated above, we believe that the 

revision to § 816.22(d)(1)(i) will result in 

improved and more diverse reclamation. 

Another commenter observed that the 

proposed revision to § 816.22(d)(1)(i) 

will require better planning on the part 

of companies at the permitting stage, 

and that they must complete all 

vegetation planning prior to completion 

of rough grading and prior to topsoil 

replacement. The commenter, however, 

expressed concern that those who 


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Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 51687 

thought that the proposal would make 

reforestation more successful may be 

disappointed. 

We strongly agree that allowing 

variable topsoil thickness under the new 

provisions of § 816.22(d)(1)(i) will 

require appropriate planning by 

operators. As expressly stated in final 

§ 816.22(d)(1)(i), operators can vary soil 

thickness only if they justify this 

variation based on specific revegetation 

goals identified in the permit. The 

permit would necessarily have to 

include a discussion of plans for 

variable topsoil thickness. Furthermore, 

an approved permit would have to be in 

place prior to implementation of any 

plan for regrading, topsoil 

redistribution, or revegetation. While 

there can be no guarantee as to how 

much the revision to § 816.22(d)(1)(i) 

will actually increase reforestation of 

reclaimed areas, we reasonably believe 

that the revision should encourage 

reforestation and species diversity. 

Another commenter suggested that we 

should broaden the proposed revision to 

§ 816.22(d)(1)(i) to allow variable 

replacement thicknesses for (1) suitable 

unconsolidated materials located 

immediately below the topsoil, and (2) 

selected overburden used as topsoil 

supplements and/or substitutes when 

the use of such materials would help to 

meet the reclamation goals identified in 

the permit. In the course of its own 

reclamation activities this commenter 

had found that selected overburden 

materials, including scoria of suitable 

fragment size range, are vitally 

important to creating diverse vegetation 

types such as open scrub, and highly 

conducive to establishing several shrub 

species in the genus Artemisia. 

With regard to the commenter’s first 

suggestion, we note that § 816.102(f) 

already addresses the thickness of the 

suitable unconsolidated material that is 

replaced below the topsoil. The 

regulation expressly requires that 

exposed coal seams, acid- and toxicforming materials, and combustible 

materials exposed, used, or produced 

during mining must either be 

adequately covered with nontoxic and 

noncombustible material, or treated, to 

control the impact of the materials on 

surface and ground water in accordance 

with § 816.41, to prevent sustained 

combustion, and to minimize adverse 

effects on plant growth and the 

approved postmining land use. Section 

816.102(f) does not specify the thickness 

of the layer of nontoxic material that 

must cover acid- and toxic-forming 

materials. The regulation thus permits 

variable redistribution thicknesses of 

suitable unconsolidated material that is 

found below the topsoil. As to the 

commenter’s second proposal, we have 

already stated that § 816.22(d)(1)(i) 

properly applies to topsoil supplements 

and substitutes and have revised the 

regulation to clarify this point. 

Accordingly, final § 816.22(d)(1) will 

apply to both topsoil removed under 

§ 816.22(a) and topsoil supplements and 

substitutes used in accordance with 

§ 816.22(b). 

Another commenter indicated that the 

proposed revision to § 816.22(d)(1)(i) 

allowing for variable soil thickness was 

unnecessary for achievement of our 

stated purpose of encouraging greater 

plant diversity. This commenter 

asserted that the existing rules afford 

operators the flexibility to vary soil 

thicknesses in appropriate cases. The 

commenter stated that reclamation 

plans within a single permit area can be, 

and have been designed to 

accommodate the needs of croplands, 

grasslands, and woodland plants by 

varying soil thicknesses in the areas 

where each vegetation type will be 

planted. According to the commenter, 

several other factors have far more 

influence upon the diversity of the postmining vegetative communities than do 

variable soil thicknesses. These factors 

include the particular vegetation that is 

to be planted after mining, the quality 

of the soil replaced, and the degree to 

which soil compaction is prevented. 

The commenter continued that the 

current regulation at § 816.22(d)(1)(i) 

requiring the replacement of an 

approximately uniform thickness of 

topsoil provides for the protection, use, 

and productivity of soil resources in a 

way that should restore the capability of 

the land to support a wide variety of 

vegetation types and land uses. In 

support of our retaining the 

longstanding provisions of 

§ 816.22(d)(1), the commenter 

emphasized that the segregation and 

replacement of topsoil over entire 

reclaimed areas has been successful 

over the fifty-seven years of regulating 

the restoration of mined lands. This 

commenter further noted that the 

proposed revision to § 816.22(d)(1)(i) 

would not provide minimum thickness 

requirements for topsoil redistribution. 

The commenter cautioned that, while 

variable topsoil thickness may improve 

attainment of certain land use types, too 

thin a layer of topsoil could prove 

counterproductive to the attainment of 

ground cover, erosion protection, water 

quality protection, and restoration of 

productive capability of the land. The 

commenter concluded, therefore, that 

any provision allowing replacement of 

variable topsoil or topsoil-substitute 

thicknesses should also provide for a 

minimum topsoil or soil-substitute 

thickness. This commenter also 

indicated that his experience is not 

consistent with the statement in our 

preamble that ‘‘[t]he fact that a permit 

applicant must clearly set forth the 

justification for any non-uniform 

redistribution of topsoil should largely 

protect against potential abuse.’’

According to the commenter, it would 

be easier for a regulatory authority to 

sustain challenges to a finding of noncompliance with a specific performance 

standard, e.g., that operators must 

redistribute topsoil in an uniform 

thickness, than to sustain challenges to 

a finding that the operator has not 

adequately set forth the justification for 

non-uniform thicknesses. 

We disagree with these comments and 

concerns. Most importantly, we do not 

consider that the revision to 

§ 816.116(d)(1)(i) represents a reduction 

of the regulatory standards. As 

discussed in the preamble to our 

proposed rule and as reflected in the 

express language of that rule, we intend 

to allow variable topsoil thicknesses 

when necessary to further the specific 

revegetation goals identified in the 

permit. The fact that the permit 

application must clearly set forth the 

justification for variable topsoil 

thicknesses reasonably protects against 

potential abuse. If the regulatory 

authority finds that redistribution of 

topsoil in variable thicknesses is not 

necessary to meet the specific 

revegetation goals identified in the 

permit application, then the authority 

need not approve that aspect of the 

application. If, however, the regulatory 

authority finds that variable topsoil 

thicknesses is desirable, the permit 

application should specify the amount 

of variability allowable and the 

minimum acceptable topsoil thickness. 

Contrary to the commenter’s experience, 

research in the West on the impact of 

topsoil depth on plant diversity has 

shown that plant diversity can be 

improved with redistribution of variable 

topsoil thicknesses. Long-Term Plant 

Community Development In Response 

to Topsoil Replacement Depth On 

Mined Land In Wyoming, C.K. Bowen, 

G. Schuman, and R.A. Olson, American 

Society of Mining and Reclamation, 

2005. Long-Term Effects of Cover Soil 

Depth On Plant Community 

Development for Reclaimed Mined 

Lands in New Mexico, B. Buchanan, M. 

Owens, J. Mexal, T. Ramsey, and B. 

Musslewhite, American Society of 

Mining and Reclamation, 2005. 

The same commenter also expressed 

concern both about the effect that 

proposed § 816.22(d)(1)(i) would have 

on the restoration of premine land 


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capability and the negative effect that 

the revised regulation would have on 

one of the basic missions of SMCRAassuring that required reclamation 

accounts for the capability of the land 

prior to any mining to support a variety 

of uses. Simply stated, the commenter 

urged us not to stress vegetation 

diversity at the expense of the 

underlying land capabilities. The 

commenter also indicated that, in those 

areas of the country where valuable 

topsoil resources exist, regulatory 

authorities must take into account soil 

rooting zone reconstruction for the 

proper utilization of those soil 

resources. This reconstruction should be 

done in a way that would provide not 

only for tree productivity but also for 

use of the soil resources in a manner 

that would maximize the post-mining 

capability of the land. Furthermore, the 

commenter stated that it is not 

necessary to relocate, modify 

distribution, or eliminate topsoil 

resources in order to ‘‘encourage’’

reforestation as a postmining land use. 

The commenter concluded by 

characterizing our stated basis for 

revising § 816.22(d)(1)(i) as ignoring 

‘‘the essential nature and role of topsoil 

resources in land use capability and 

suitability to support a variety of uses.’’

We agree with the commenter that 

topsoil resources must be protected. The 

regulations at § 816.22(a) and (d) 

continue to require that all topsoil must 

be removed and that all removed topsoil 

must be redistributed. The revised 

regulation at § 816.22(d)(1)(i) simply 

provides the opportunity to allow 

redistribution of topsoil at variable 

thickness when such redistribution is 

appropriate to meet the revegetation 

goals identified in the permit’s 

approved postmining land use plan. 

Under the existing regulations in 

§ 816.22(e), a regulatory authority can 

also require removal and redistribution 

of subsoil, if necessary, to comply with 

the revegetation requirement of the 

regulations. The proposed and final 

rules do not, therefore, ignore or negate 

the existing land use provisions of 

§ 816.133(a), which require that all 

disturbed areas be restored in a timely 

manner to conditions that are capable of 

supporting the uses they were capable 

of supporting before mining, or higher 

or better uses. Under these rules, if the 

regulatory authority determines that the 

proposed redistribution of topsoil in 

varying thicknesses would adversely 

affect the restoration of the land use 

capability of an area, then the regulatory 

authority need not sanction such 

redistribution. 

Another commenter noted that the 

revised regulation, which allows soil 

thickness to be varied to the extent that 

such variation encourages the specific 

revegetation goals identified in the 

permit, needs to include a modification 

and verification provision that would 

assure that variation is not a post hoc 

effort by the operator to avoid proper 

redistribution of topsoil. The 

commenter also stated that the rule 

must clarify that operators may not vary 

topsoil and subsoil redistribution in 

those instances where removal and 

reconstruction of soils is necessary to 

restore mined farmland. The commenter 

next argued that the rule’s standard for 

justifying variation in topsoil 

replacement thickness should be more 

precise and measurable than merely 

providing that the variation ‘‘help meet’’

the specific revegetation goals identified 

in the permit. In this regard, the 

commenter stated that the permit 

should define the amount of variability 

in topsoil thickness and the chemical 

quality of the topsoil necessary to meet 

identified revegetation goals. Where 

uniform thickness is not to be the 

standard, the topsoil and subsoil 

redistribution plan should also provide 

appropriate literature citations 

supporting the proposition that the 

variation of soil thicknesses is 

consistent with, and necessary for, the 

success of particular species. Finally, 

this commenter asserted that, regardless 

of whether the soil thickness is intended 

to be relatively uniform or varied to 

support a particular species or mixture 

of vegetative cover on the reclaimed 

land, the State regulatory authority or 

OSM, acting under a Federal Program, 

should require the operator to 

demonstrate compliance with the soil 

redistribution requirements of 

§ 816.22(d)(1)(i). Furthermore, the State 

regulatory authority or OSM should take 

sufficient soil thickness measurements 

to support a finding of compliance. 

We believe that the current and 

revised regulations at § 816.22(d)(1)(i) 

adequately address the concerns 

underlying these comments. The new 

provisions of § 816.22(d)(1)(i) that soil 

thickness may be varied to the extent 

that such variations help meet the 

specific revegetation goals identified in 

the permit clearly implies the need for 

the operator to document how topsoil 

will be redistributed prior to such 

redistribution. This necessary 

documentation should ensure that the 

redistribution of topsoil at varied 

thicknesses is not a post hoc effort to 

avoid proper redistribution. For 

example, if the approved postmining 

land use is cropland, then redistribution 

of topsoil at varied thicknesses would 

not be appropriate and operators should 

redistribute the topsoil in an 

approximately uniform thickness as is 

presently required. However, if the 

approved revegetation goals would best 

be met by varying topsoil thicknesses, 

then the operator must propose and the 

regulatory authority must approve these 

variations. While we believe that 

authoritative literature and/or test plots 

are appropriate sources of information 

for setting sideboards on the variation in 

topsoil thickness, we leave to the 

discretion of the regulatory authority 

whether to require inclusion of such 

literature or test plot data in the permit. 

Evaluation of the thickness of 

redistributed topsoil based on permit 

specifications can be done either as part 

of the ongoing inspection process or 

based on data submitted by the operator. 

In this regard, we anticipate that the 

regulatory authority will evaluate the 

redistribution of topsoil in varying 

thickness in the same manner that it 

currently evaluates the redistribution of 

topsoil in an approximately uniform 

thickness under prior § 816.22(d)(1)(i). 

2. Section 816.116(a)(1): Federal 

Approval of Revegetation Success 

Standards 

What are the revisions to 

§ 816.116(a)(1)? 

We have revised § 816.116(a)(1) to 

eliminate the requirement that 

revegetation success standards and 

statistically valid sampling techniques 

be included in the approved regulatory 

program (hereinafter ‘‘the approved 

program requirement’’). The revised 

regulation continues to require that 

standards for success and sampling 

techniques for measuring success must 

be selected by the regulatory authority. 

Our proposed elimination of the 

approved program requirement was 

described in our 2005 Federal Register 

notice. As a result of comments received 

and discussed below, we are also adding 

a provision to § 816.116(a)(1) to clarify 

that the standards and techniques 

selected by the regulatory authority 

shall be described in writing and made 

available to the public. Later in this 

document we describe several 

acceptable means for making the 

standards and techniques available to 

the public. Final § 816.116(a)(1) will 

read as follows, with new language in 

italics: 

(1) Standards for success and statistically 

valid sampling techniques for measuring 

success shall be selected by the regulatory 

authority, described in writing, and made 

available to the public. 


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Why are we changing our policy 

regarding review of State Program 

changes in success standards and 

sampling techniques? 

As explained in more detail below, 

the requirement that State regulatory 

authorities include the initial or 

amended success standards and 

sampling techniques for revegetation as 

part of their approved program imposes 

a significant and unnecessary burden 

both on State regulatory authorities and 

OSM. Our regulations at § 816.116(a)(2) 

and (b), which will remain in effect, 

already specify minimum criteria for 

success standards and sampling 

techniques, and those criteria will 

ensure the achievement of SMCRA’s 

goal of establishing a diverse, 

permanent, and effective vegetative 

cover. Section 816.116(a)(2) provides 

that the sampling techniques must use 

a 90-percent confidence interval (also 

known as a one-sided test with a 0.10 

alpha error), which was discussed in the 

preamble to the proposed rule, and that 

the ground cover, production, or 

stocking must meet 90-percent of the 

success standard. Section 816.116(b) 

provides additional guidelines for 

particular types of ecosystems and postmining land uses. These key nationwide 

minimum protections will remain in the 

regulations as amended, and all 

approved State programs must maintain 

counterparts to them. 

In our judgment, it is not a good use 

of State and Federal resources to 

continue requiring State and OSM 

revegetation experts to spend valuable 

time on preparing or assessing new 

State program amendment proposals 

every time it is necessary to revise or 

improve revegetation success standards. 

A number of considerations support this 

conclusion. First, the amount of time 

and resources required to go through the 

State program amendment process is 

significant and we think discourages 

updating the success standards and 

sampling techniques. Our processing of 

program amendments takes an average 

of about four and a half months, ranging 

from two and a half to seven months, 

but one recent amendment took twenty 

months from proposal to final approval. 

The time and resources spent on the 

program amendment process, moreover, 

are in addition to those the States must 

devote to preparing proposed program 

amendments and to responding to any 

of our inquiries. Although we lack 

complete data on how great a burden 

this regulatory requirement imposes on 

the States, the example of North Dakota, 

which follows, shows that the 

cumulative costs in time and talent can 

be quite large. The present component 

of the North Dakota State program for 

revegetation success standards and 

sampling techniques is now more than 

100 pages long. North Dakota has 

repeatedly had to submit proposed 

amendments for our approval not only 

for substantive changes in standards but 

even for minor wording changes, such 

as the change in the name of a U.S. 

Department of Agriculture bureau from 

the ‘‘Soil Conservation Service’’ to the 

‘‘Natural Resources Conservation 

Service.’’ On this basis alone, we think 

that the current requirement may well 

be discouraging State regulatory 

authorities from developing or 

implementing the latest, most 

appropriate science and technologies. 

70 FR 13076, March 17, 2005. This 

apparent obstacle to the timely 

development of new science and 

technologies also runs counter to one of 

the main concerns behind our 1983 

rulemaking: That the States needed 

significant flexibility to tailor standards 

and sampling techniques to local 

conditions. See 47 FR 40140, September 

2. We continue to want to encourage 

responsible innovation in this area. As 

we mentioned in the preamble to our 

2005 proposed rule, we have been 

working with western States to develop 

new success standard resources, 

innovative statistical tools, and 

techniques using computers and 

satellite-based remote sensing 

technologies to better evaluate 

conditions of vegetative diversity and 

cover than is possible using traditional 

sampling methods, particularly in 

locations with naturally sparse 

vegetation. In the Appalachian Region, 

our agency is working with scholars and 

the State of West Virginia on the use of 

the plate method for evaluating 

herbaceous productivity on reclaimed 

lands. We believe that removal of the 

requirement in § 816.116(a)(1) for 

including these standards and 

techniques in the approved program 

will eliminate an unnecessary obstacle 

to appropriate and timely technological 

innovation. 

Second, we recognize that, since the 

basic framework of the existing rule was 

first promulgated in 1983, the vast 

majority of State regulatory programs 

have matured. Our experience with the 

State regulatory authorities over the 

years has shown that they now have 

sufficient expertise to devise or modify 

their success standards and sampling 

techniques to incorporate new 

scientific, technological, or other 

information in a manner that assures 

proper revegetation of disturbed areas. 

In most instances, we have not had to 

engage in substantial re-writing of 

changes to State revegetation success 

standards or sampling techniques 

during the Federal approval process. 

However, even though we will no longer 

be approving State program 

amendments on those issues, our 

revegetation experts will remain 

available to consult with the State 

regulatory authorities on issues 

including success standards and 

sampling techniques. Thus, our agency 

is not withdrawing resources that have 

been beneficial to the States as they 

pursue SMCRA’s goal of successful 

revegetation. 

Third, and perhaps most importantly, 

the removal of the approved program 

requirement from § 816.116(a)(1) leaves 

no regulatory void. As previously noted, 

the nationwide minimum requirements 

for revegetation success and sampling 

techniques will continue to apply to the 

State regulatory authorities and 

indirectly to the permits that those 

regulatory authorities issue. Thus, the 

revision to § 816.116(a)(1) will not cause 

greater divergence among the States that 

are already required to meet the 

minimum nationwide requirements of 

§ 816.116(a)(2) and (b). Even in those 

States that by State law are not allowed 

to be more stringent than OSM’s 

regulations, the minimum nationwide 

requirements of § 816.116(a)(2) and (b) 

continue to apply. While complying 

with those nationwide requirements, the 

State regulatory authorities will, under 

revised § 816.116(a)(1), also be able to 

respond to new or localized scientific, 

technical, and land use information in 

a timelier manner, without awaiting the 

formal process of OSM approval. 

Furthermore, there are avenues besides 

our approval of success standards and 

sampling techniques by which the 

public and we may assure compliance 

by the State regulatory authorities with 

nationwide revegetation requirements. 

The success standards and sampling 

techniques will have to be included in 

each permit issued by the State 

regulatory authorities. Thus, contrary to 

the assertions of one commenter, the 

removal of this requirement will not 

lead to compromises in the effective 

implementation of SMCRA’s goal of 

proper revegetation. In addition, ‘‘any 

person with an interest which is or may 

be adversely affected may request a 

hearing’’ on any permit issued by a State 

regulatory authority. § 775.11(a). When 

a permittee applies for final bond 

release, the surface owner must be 

notified and given an opportunity to 

participate in the bond-release 

inspection. § 800.40(b)(1). Before final 

bond release, any person with a valid 

legal interest may file objections and 


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request a public hearing. § 800.40(f). 

The State’s regulatory program must 

also provide for administrative hearings 

and judicial review. §§ 775.12(b) and 

775.13(b). In addition, if, in conducting 

an oversight inspection, we were to find 

a surface coal mining operation in 

violation of the nationwide minimum 

requirements, we would take 

appropriate action. See § 842.11(a)(1), 

(b)(1)(iii)(A). If the State appears to be 

including success standards and 

sampling techniques in its permits that 

are not in compliance with the 

nationwide minimum requirements of 

§ 816.116(a)(2) and (b), we can initiate 

proceedings that could ultimately lead 

to substitution of direct Federal 

enforcement of the revegetation 

requirements, or withdrawal of the 

Secretary’s approval of the State 

program in whole or in part. § 733.12(a), 

(g). Thus, the public’s interest in proper 

revegetation remains protected, and the 

State regulatory authorities have 

incentive to keep their success 

standards and sampling techniques in 

compliance with the nationwide 

minimum requirements that have 

applied since 1983. 

A final reason for removing the 

requirement that revegetation success 

standards and sampling techniques be 

included in the approved program is 

that this requirement is inconsistent 

with the approach we have taken in 

other areas. States do not have to 

include in their approved programs all 

of the specific techniques and standards 

they use to assess whether other 

SMCRA requirements have been met. 

See § 780.22 (requiring submission of 

the geologic data and overburden 

characteristics), § 780.21(d) (requiring 

assessment of the probable hydrologic 

consequences of mining), and 

§ 780.21(g) (requiring a cumulative 

hydrologic impact assessment showing, 

inter alia, that the operation has been 

designed to prevent material damage to 

the hydrologic balance outside the 

permit area but not defining the term 

‘‘material damage’’). Instead, the 

regulatory authorities, both States and 

OSM, have effectively addressed the 

standards to be used in these 

determinations or submissions by 

developing guidance documents that are 

not required to be in the approved 

regulatory programs. Moreover, we do 

not impose the requirement to 

promulgate success standards and 

sampling techniques upon ourselves 

when we act as a regulatory authority. 

None of the three Federal programs with 

active mining include specific 

vegetation sampling techniques. The 

Federal program for the State of 

Washington and the Federal program for 

Indian lands do not include specific 

revegetation success standards; the only 

Federal program with active mining that 

includes such requirements is the 

regulatory program for Tennessee. 

§§ 942.816(f) and 942.817(e). We have 

no compelling justification for 

continuing such an inconsistent 

approach, particularly since there is no 

reason to believe that the different 

requirements of State and Federal 

programs have resulted in significant 

divergence of the actual success 

standards or sampling techniques in 

use, or in the actual success of 

revegetation on mined sites. There is 

thus no principled reason to believe that 

the States cannot effectively implement 

revegetation success standards and 

sampling techniques without having to 

go through the formal promulgation 

process imposed by the prior approved 

program requirement of § 816.116(a)(1). 

What were the comments submitted on 

our proposed revisions to 

§ 816.116(a)(1)? 

In response to our proposed rule, we 

received comments from 16 commenters 

supporting removal of the approved 

program requirement from 

§ 816.116(a)(1). Of the 16 commenters, 

five were State regulatory authorities, 

one was a State coal association, six 

were coal companies, and four were 

industry associations. In general, these 

commenters based their support on the 

reduced regulatory burden they affirmed 

would result from eliminating the (a)(1) 

requirement. They also stated that the 

proposal would result in increased 

flexibility and improve their ability to 

make use of potential new technologies 

that may become available. Specific 

comments stated that the current 

process provides little incentive to 

continue or expand research into new 

and innovative methods, often results in 

unnecessary delays in State 

implementation of changes to these 

policies that are based on a State’s 

professional judgment, and flies in the 

face of State primacy. These 

commenters stated that the revised 

regulation will better enable States to 

stay abreast of technological advances 

and to tailor success standards to local 

conditions, will allow use of alternative 

parameters for revegetation success, 

such as measurement of a site index, 

without submitting program 

amendments. Furthermore, the revised 

regulations will still support strict 

revegetation standards while allowing 

States to respond to improvements in 

sampling methodologies and 

technological advances. 

We agree with these commenters and 

are proceeding with the rulemaking as 

proposed. The revised regulation will 

give the States the flexibility they need 

to implement new technologies without 

having to go through the Federal 

rulemaking process of amending their 

approved programs. As discussed above, 

we are also adding a provision to 

§ 816.116(a)(1) to clarify that the 

standards and techniques selected by 

the regulatory authority must be 

described in writing and made available 

to the public. This last provision will 

ensure that all interested parties can 

readily find out all the options available 

in their jurisdiction for evaluating 

revegetation success. 

Four of the commenters that 

supported the proposed revision to 

§ 816.116(a)(1) noted that the revision, 

and the regulation as a whole, does not 

reflect that standards of success and 

statistically valid sampling techniques 

for measuring success are actually 

developed jointly by the permit 

applicant and regulatory authority and 

incorporated as part of the reclamation 

plan approved as part of the permit. 

These commenters indicated that 

normally the operator proposes such 

standards and sampling techniques 

prior to conducting baseline vegetation 

studies. The commenters agreed that 

this is appropriate, as the operator is 

most familiar both with the plant 

communities that will be affected by the 

operation and with the sampling 

methods needed to accurately describe 

and measure these plant communities. 

The commenters indicated that the 

standards and sampling techniques will 

become subject to evaluation in the 

permitting process and will be 

ultimately codified in the permit or 

letters of concurrence from regulatory 

authorities. The commenters further 

noted that through this process 

sampling methods and success 

standards are not ‘‘selected’’ unilaterally 

by the regulatory authority. 

Accordingly, the commenters suggested 

that preamble language of the 

§ 816.116(a)(1) revision be improved by 

emphasizing the current process by 

which a number of the State regulatory 

authorities and their permittees jointly 

develop success standards and sampling 

techniques. 

We are retaining the current 

requirement of § 816.116(a)(1) that the 

regulatory authority select revegetation 

success standards and statistically valid 

sampling techniques. The selected 

success standards and sampling 

techniques will be put in writing and be 

available to the public and, as before, 

will be used by operators in developing 

their permit applications. The manner 


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in which a regulatory authority goes 

about selecting the success standards 

and statistically valid sampling 

techniques that it will allow operators to 

use in evaluating revegetation success is 

up to the regulatory authority. That 

authority can, as suggested by the 

commenters, select the success 

standards and sampling techniques in 

consultation with operators and/or with 

assistance from academia. However, 

selected success standards and sampling 

techniques must meet the requirements 

of § 816.116(a)(2) and (b) and they must 

be put in writing and made available to 

the public. It is from these identified 

success standards and sampling 

techniques that the operators must 

choose the specific standards and 

techniques included in their individual 

permit applications. This procedure will 

ensure no less consistent revegetation 

success evaluations than that afforded 

under the prior rule. 

We received comments from five 

commenters opposed to the proposed 

revision deleting the approved program 

requirement from § 816.116(a)(1). A 

large percentage of these comments 

focused on the absence of any provision 

in the proposed rule that would provide 

for public review of the success 

standards and sampling techniques 

selected by the regulatory authority. 

More specifically, these comments 

raised concerns about loss of public 

review; lack of enforceable success 

standards; inability of the public to 

review permits if the success standards 

and sampling techniques are not part of 

the approved program; and potential 

conflict among States, operators, and 

landowners over acceptable standards 

and sampling techniques. Other 

commenter concerns focused on the 

lack of support for changing a regulation 

that had been in place since 1983 and 

the inability of Federal oversight to 

prevent problems. These commenters 

also stated that the burden of OSM’s 

lengthy timeframes for processing State 

amendments is self-imposed, that 

flexibility already exists within the 

Federal regulations for States to develop 

success standards and sampling 

techniques to fit local conditions, that 

inconsistent application of success 

standards and sampling techniques will 

occur, and that the current process does 

not stifle evaluation or utilization of 

new technologies. The specific 

comments received and our responses 

are discussed below. 

All five of the commenters opposing 

removal of the approved program 

requirement from § 816.116(a)(1) 

expressed concern with the loss of 

public review of selected success 

standards and statistically valid 

sampling techniques if the standards 

and techniques were no longer included 

in the State approved program. These 

commenters declared that the removal 

of success standards and sampling 

techniques from the State approved 

programs would result in information 

not being available to the public. One of 

the commenters asserted that OSM, by 

adopting this change, was taking the 

attitude that the only parties at interest 

in these matters were the companies 

and the States. This commenter claimed 

that success standards for reclamation 

are an extremely important source of 

public information and that, under the 

proposed rule, it would be more 

difficult for the public to find the 

success standards approved for a given 

permit. The commenter indicated that 

the inclusion of important matters in 

‘‘internal guidance documents’’ and 

‘‘technical standards’’ alone is not 

satisfactory. The commenter further 

questioned how, under the proposed 

rule, the public would know if there 

was any internal consistency within and 

between States as to selected success 

standards or sampling techniques. 

Finally, the commenter asserted that 

under the proposed rule, as under the 

provisions for public review during 

permitting at § 773.6(a) and (b)(2), and 

as under the provisions for public 

involvement in bond release at 

§ 800.40(b)(1) and (f), OSM and the 

States seemingly want the public to find 

the problems that OSM and the States 

have missed. The commenter concluded 

that it would be hard for the public to 

find these problems if the success 

standards and sampling techniques are 

not in the State regulations. 

Two of these commenters further 

noted that removal of the approved 

program requirement from 

§ 816.116(a)(1) eliminates the ability of 

the public to comment on the success 

standards and sampling techniques 

proposed by the States for inclusion in 

their approved programs. 

In partial response to these 

commenters’ concerns, we are adding 

the express requirement in final 

§ 816.116(a)(1) that the standards and 

techniques selected by the States be in 

writing and made available to the 

public. We did not include this 

requirement in the 2005 proposed rule. 

Under the prior version of 

§ 816.116(a)(1), States were required to 

include selected standards and 

techniques in their approved programs 

but were not required to include them 

in the rules of their approved programs. 

Rather, States had the option of 

including them in any element of their 

approved programs including 

guidelines, technical procedures, policy 

materials, etc. States will continue to 

have the option of including selected 

success standards and sampling 

techniques in the same range of formats, 

but must ensure their public 

availability. For example, States could 

make this information available to the 

public at places where other documents 

such as permit applications are also 

made available for public review. Or the 

States could further make it available to 

all interested parties either by mail or 

through the agency’s web site. As 

before, States will continue to have the 

option of including selected standards 

and techniques in their approved 

program regulations. Whatever the 

formats chosen by the States, final 

§ 816.116(a)(1) ensures the public access 

to and, therefore, the ability to review 

the selected standards and techniques. 

Furthermore, there will continue to be 

ample opportunity on a permit-specific 

basis for public review of the proposed 

use of selected standards and sampling 

techniques both during the permitting 

process as well as at bond release. 

Because § 780.18(b)(5) requires each 

permit application to identify its 

proposed success standards and 

sampling techniques, this information is 

also available for public review. Parties 

who have an interest that may be 

adversely affected by a decision on the 

application may further comment on 

these standards and sampling 

techniques under § 773.6(a) and (b)(2). 

These provisions ensure that the public 

will continue to have the ability to 

review the success standards and 

sampling techniques for every mine 

before operations begin. In addition, any 

persons with valid legal interests can 

also object to bond release under 

§ 800.40(f) should they believe the 

operator has not used the approved 

success standard or not followed the 

approved sampling techniques. 

Three of the five commenters 

opposing removal of the approved 

program requirement from 

§ 816.116(a)(1) warned against the 

disputes that they asserted would 

inevitably arise between States and 

permit applicants/operators and 

between operators and landowners over 

what constitutes appropriate success 

standards and/or sampling techniques. 

The first of these three commenters 

admitted that the proposed revision 

would provide flexibility to State 

programs and would allow both States 

and operators to take advantage of new 

technology, sample methods, and 

statistics. This commenter also 

conceded that the approved program 

requirement of § 816.116(a)(1) was 

unnecessarily burdensome in terms of 


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the time and resources required by the 

State program amendment process and 

that this burden discourages updating 

revegetation standards. Nonetheless, 

this commenter asserted that any 

flexibility gained by the proposed 

revision to 816.116(a)(1) would not 

offset the endless disputes that would 

inevitably arise between States and 

permit applicants over what constitute 

acceptable methods and statistics. 

While we believe that this commenter 

overstates the potential for disputes 

between States and permit applicants 

under proposed § 816.116(a)(1), final 

§ 816.116(a)(1) expressly requires that 

all State-selected standards and 

techniques be in writing and made 

available to the public. This new 

provision should minimize disputes 

between a State and applicants over the 

range of success standards and sampling 

techniques available within that State. 

As under the prior rule, the permit 

applicant will be able to choose only 

from among available success standards 

and sampling techniques previously 

selected by the State. As under the prior 

rule, moreover, an applicant’s proposed 

use of a selected standard or technique 

will be subject to State approval. 

Importantly, the potential for disputes 

between the regulatory authority and 

permit applicant should not be any 

greater than under the prior rule. 

Two of the five commenters expressed 

additional concerns over the potential 

conflict that might arise between 

landowners and operators as a result of 

the proposed revision to § 816.116(a)(1). 

One of these two commenters also 

declared that the deletion of the 

approved program requirement would 

potentially place the landowner and 

operator in conflict at the time of bond 

release due to the use of measurement 

standards that lack a robust scientific 

basis. 

We do not believe that the deletion of 

the approved program requirement from 

§ 816.116(a)(1) will materially raise the 

potential for conflict between the 

landowner and operator at the time of 

bond release. As stated earlier, the 

provisions of § 816.116(a)(2) and (b) will 

continue to establish clear criteria and 

requirements for the success standards 

and sampling techniques that may be 

selected by the States under 

§ 816.116(a)(1). All approved programs 

have counterparts to § 816.116(a)(2) and 

(b). Accordingly, the success standards 

and statistically valid sampling 

techniques selected by a State under 

final § 816.116(a)(1) will, for the 

purposes of establishing revegetation 

success at bond release, have the same 

robust scientific basis as the standards 

and techniques selected by the State 

under the prior rule. 

One of the commenters opposing 

removal of the approved program 

requirement from § 816.116(a)(1) 

suggested that, without including 

success standards and measuring 

techniques in the approved State 

program, operators may simply choose 

not to comply with selected standards 

and techniques. 

With regard to this concern, we note 

that all State approved programs have 

counterparts to § 780.18(b)(5) requiring 

that applications for a permit contain a 

plan for revegetation, including 

measures to determine the success of 

revegetation. Once approved by the 

regulatory authority, these and all other 

permit terms are binding and 

enforceable. 

Still another commenter asserted that 

the reasons given by us for this removal 

do not support abrupt departure from 

more than two decades of regulatory 

policy. 

We disagree. The reasons provided in 

both this and the proposed rulemaking 

more than adequately support the 

revision. It is our agency’s continuing 

policy to examine existing regulations 

and to make changes that reduce the 

burden on State regulatory authorities, 

OSM, the industry, or the public while 

assuring the achievement of SMCRA’s 

purposes and requirements. The current 

regulatory change is intended to reduce 

the burden on regulatory authorities and 

OSM without hindering the 

achievement of the SMCRA requirement 

that coal mining and reclamation 

operations establish a diverse, 

permanent, and effective vegetative 

cover on all affected lands. 30 U.S.C. 

1265(b)(19) and 1266(b)(6). This 

provision says nothing about success 

standards, sampling techniques, or 

whether those details must be in a State 

program. 

In our 1983 rulemaking we allowed 

use of only those revegetation success 

standards and measurement techniques 

that have been incorporated into the 

approved program. See 48 FR 40160, 

September 2. An agency’s rules once 

adopted are, however, not frozen in 

place. An agency may alter its rules in 

light of its accumulated experience in 

administering them when it determines 

that a different approach would better 

implement the statutory scheme. As 

discussed above, our experience over 

the last twenty years indicates that the 

approved program requirement poses an 

unnecessary obstacle to technological 

innovation and adoption of new 

standards and sampling techniques. 

State programs have matured and can be 

relied upon to meet the requirements of 

SMCRA in light of the nationwide 

minimum requirements at 

§ 816.116(a)(2) and (b) that will remain 

in place and will serve as a regulatory 

floor. Moreover, the Fourth Circuit has 

admonished us that, ‘‘in contrast to 

other ‘cooperative federalism’ statutes, 

SMCRA exhibits extraordinary 

deference to the States.’’ See Bragg v. 

West Va. Coal Ass’n, 248 F.3d 275, 293 

(4th Cir. 2001). Thus, even if it might be 

permissible for us to continue to require 

that revegetation success standards and 

sampling techniques be approved as 

part of the State regulatory program, it 

is nonetheless reasonable and 

appropriate for us to allow the States to 

make changes to those details without 

our involvement, as long as each State 

meets and implements the minimum 

nationwide standards. 

Three of the five commenters 

opposing the proposed rule took issue 

with the statement in our 2005 preamble 

that the ‘‘relatively cumbersome’’ nature 

of the State program amendment 

process may discourage States from 

utilizing ongoing research findings and 

technological advances to adopt new 

and improved success standards and 

sampling techniques. The first of these 

commenters admitted that its own 

regulatory review process is 

cumbersome, but stated that that is 

because, in many cases, OSM is trying 

to ‘‘dodge a political bullet,’’ rather than 

working in a more expeditious manner. 

The second commenter indicated that 

the fact that the State program 

amendment process is cumbersome is 

the result of OSM’s decision not to more 

timely process State program changes. 

The same commenter noted that there is 

nothing inherently cumbersome or slow 

about the State program amendment 

process. The commenter also stated that 

OSM should be able to timely review 

and approve a properly documented 

State program amendment without 

hampering State innovation. In closing, 

this commenter asserted that the 

‘‘cumbersome’’ nature of the current 

State program amendment process is a 

result of Federal agency practice, since 

the commenter saw nothing inherent in 

that process that requires the sort of 

delay that has attended OSM’s review of 

program amendments. The third 

commenter stated that maintaining the 

current State program provisions would 

not stifle evaluation or utilization of 

new techniques. This commenter 

suggested that, as an alternative to 

eliminating the requirement that success 

standards and sampling techniques be 

included in the approved program, OSM 

should rather streamline its own 

program amendment review process so 


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as to assure that when proposed 

program amendments are supported by 

technological advances, they are 

processed and approved in an expedited 

fashion. 

We strongly disagree with the general 

conclusion of these comments that any 

delay in the State program amendment 

process is attributable to our failure to 

timely process State program 

amendments. We recognize that we can 

make incremental improvements to 

speed the processing of State program 

amendments at the Federal level. 

However, the requirement that we 

approve amendments to these programs 

requires steps that are inherently time 

consuming. Also, a State may be 

required to go through its own 

rulemaking process before proposing 

amendments to its approved program 

under § 732.17. This State rulemaking 

process can also be very time 

consuming and is a practice over which 

we have no control. Accordingly, the 

deletion of the approved program 

requirement from § 816.116(a)(1) should 

enable States to more quickly adopt 

improved success standards and 

sampling techniques. 

Three of the five commenters 

opposing the proposed rule asserted that 

the proposed deletion of the approved 

program requirement from 

§ 816.116(a)(1) would undermine the 

core requirement in the Act that the 

Secretary establish a comprehensive set 

of minimum Federal standards for 

approved programs. Commenters also 

alleged that continued OSM prior 

review and approval of selected 

standards and sampling techniques was 

needed to assure a level playing field 

among States. 

We do not believe these concerns are 

well-founded. The change to final 

§ 816.116(a)(1) does not delete any 

statutorily-prescribed minimum 

standards. Section 101(f) of SMCRA 

provides that ‘‘because of the diversity 

in terrain, climate, biologic, chemical, 

and other physical conditions in areas 

subject to mining operations, the 

primary governmental responsibility for 

developing, authorizing, issuing, and 

enforcing regulations for surface mining 

and reclamation operations subject to 

this Act should rest with the States.’’ 30 

U.S.C. 1201(f). In turn, section 

515(b)(19) of SMCRA expressly provides 

that a State’s performance standards 

shall require surface coal mining and 

reclamation operations as a minimum to 

‘‘establish on the reg[ra]ded areas, and 

all other lands affected, a diverse, 

effective, and permanent vegetative 

cover of the same seasonal variety 

native to the area of land to be affected 

and 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). 

In implementing these two statutory 

provisions, both our prior rule as well 

as our proposed and final rules at 

§ 816.116(a)(1) require States to select 

revegetation success standards and 

sampling techniques subject to the 

general conditions of § 816.116(a)(2) and 

(b). In turn, § 816.116(a)(2) specifically 

requires that State-selected sampling 

techniques for measuring success use a 

90-percent statistical confidence 

interval and § 816.116(a)(2) and (b) 

require that State-selected success 

standards accord with the vegetative 

cover or crop production of appropriate 

reference areas. 

We see nothing in these statutory and 

regulatory authorities to support 

commenters’ assertion that OSM’s prior 

review of selected standards and 

techniques was needed to assure a level 

playing field among States. State 

compliance with the criteria of 

§ 816.116(a)(2) and (b) will, however, 

continue to ensure that a relatively level 

playing field exists among States. None 

of the revisions in final § 816.116(a)(1) 

will jeopardize State compliance with 

the criteria of § 816.116(a)(2) and (b). 

Two commenters expressed concern 

about the negative effect that the 

proposed rule would have on the 

adequacy of reclamation required for 

bond release. The first of these 

commenters warned that, if States are 

no longer obligated to identify and 

defend their choice of objective 

standards for determining revegetation 

success, those States might adopt 

standards that are not based on good 

science in order to facilitate bond 

release. The second of these 

commenters declared that the proposed 

rule would allow operators to apply 

whatever standards they desired and 

that lands that did not meet the 

longstanding reclamation requirements 

of the Act would be released from their 

reclamation bond. 

In partial response to these concerns, 

the final rule requires that success 

standards and sampling techniques 

selected by the States be in writing and 

made available to the public. As 

previously noted, this requirement 

should substantially relieve 

commenters’ concerns that operators 

could apply whatever standard they 

desire and should also allay much of 

commenters’ fears as to inconsistent 

standards among individual States. As 

set forth in our 2005 proposed rule (70 

FR 13076, 13081), we continue to 

believe that the criteria enunciated in 

§ 816.116(a)(2) and (b) will preclude 

States from selecting inadequate success 

standards or sampling techniques for 

which there is no sound scientific basis. 

For the same reasons, we continue to 

believe that appropriate reclamation 

will, as before, be required for bond 

release. The bond release and oversight 

protection provided at §§ 800.40(b)(1) 

and 733.12(a)(1) should also, as under 

the prior rule, further guard against 

faulty bond release. With the same 

general protections in place as before, 

final § 816.116(a)(1) will merely allow a 

State program to employ the latest and 

most appropriate standards and 

sampling techniques without first 

having to go through the timeconsuming process of adding them to its 

approved regulatory program. 

One commenter also asserted that, if 

every permit had its own revegetation 

standards and measurement techniques, 

it would be extremely difficult for even 

the most dedicated State regulator to 

keep track of the approved success 

standards and sampling techniques and 

to use them for evaluating revegetation 

success. 

The new requirement of final 

§ 816.116(a)(1) that the success 

standards and sampling techniques 

selected by the regulatory authority be 

in writing and be made available to the 

public should ensure that the number of 

new standards and sampling techniques 

that the State regulator must keep track 

of and use remain at a reasonably 

manageable number. 

Two commenters alleged that our 

oversight of State programs would not 

be adequate to catch problems with 

success standards and sampling 

techniques. The first of these 

commenters challenged our statement in 

the 2005 preamble that the oversight 

process would directly address any 

major deficiency identified in the 

revegetation success standards and/or 

sampling techniques used by a State. 

The second of these commenters 

questioned whether OSM would be 

familiar enough with all the differences 

between possible success standards and 

sampling techniques to be able to 

determine which one was deficient. 

We disagree with these concerns as to 

our oversight authority and capacity to 

identify and address major deficiencies 

in the success standards and/or 

sampling techniques selected by the 

States. The revision to final 

§ 816.116(a)(1) does not restrict or in 

any way impair our continuing 

authority under § 733.12(a)(1) to 

annually evaluate the administration of 

individual approved programs. These 

evaluations address programmatic 

problems and are conducted in 

accordance with longstanding agency 

policies that focus on the on-the-ground 


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results of reclamation and revegetation 

activities. From our past experience, we 

are confident that there are sufficient 

numbers of knowledgeable OSM 

personnel, including inspectors, 

committed to evaluating each State’s 

reclamation performance. If our field 

reviews identify problems with 

inappropriate State evaluations of 

revegetation success, we will then 

review the permits in question to 

determine whether the correct success 

standards and sampling techniques 

were used in those evaluations. This 

review could, if appropriate, also 

address whether the success standards 

and sampling techniques complied with 

the State counterparts to § 816.116(a)(2) 

and (b). If we find that they are not in 

compliance, then we will work with the 

State to correct deficiencies, ensuring 

that all success standards and sampling 

techniques comply with program 

requirements. 

Three of the five commenters 

opposing the proposed rule also 

disagreed with our assertion that the 

approved program requirement of 

§ 816.116(a)(1) in the previous 

regulation discourages the use of new 

technologies. One of these commenters 

stated that our call for use of the latest 

sampling techniques was inappropriate. 

This commenter indicated that we 

should instead seek the most accurate 

and reliable sampling techniques rather 

than the ‘‘latest thing’’ in new sampling 

techniques, which might not be the best 

for the particular circumstance. The 

commenter further indicated that we 

should provide a backstop against fads 

that can sweep a scientific community. 

The commenter questioned our agency’s 

concern to have the ‘‘latest thing’’ in 

sampling techniques available when we 

showed so little interest in the latest 

scientific ‘‘thing’’ in blasting. The 

commenter observed that, according to 

our explanation for eliminating the 

approved program requirement of 

paragraph (a)(1), OSM and some of the 

States were experimenting with new, 

potentially useful methods, but that it 

would take time to determine their 

reliability. The commenter warned that, 

until we made that determination, we 

should not dump proven practices in 

favor of the latest technology. 

We disagree with these concerns. The 

Federal regulations at § 816.116(a)(2) 

and their State counterparts clearly 

require that all statistically valid 

sampling techniques must use a 90- 

percent confidence interval. This 

requirement will ensure that, regardless 

of the individual technique selected by 

the regulatory authority, all selected 

techniques will require the same level of 

precision. Our experience has shown 

that State personnel have both the 

expertise and experience to determine 

the reliability of new sampling 

techniques. Eliminating the approved 

program requirement from 

§ 816.116(a)(1) will, therefore, enable 

regulatory authorities to more quickly 

adopt new and reliable techniques, but 

will not require States to make changes 

should they be satisfied with their 

existing techniques. 

Another of the commenters stated that 

OSM’s goal of allowing variance among 

legitimate methods of measuring 

revegetation success could still be met 

through the State program amendment 

process but cautioned that the standards 

for measuring success do not change so 

dramatically and rapidly as to 

necessitate ‘‘streamlining’’ State 

adoption of new measurement 

techniques by eliminating OSM and 

public review. 

As we stated previously, the time 

involved in the program amendment 

process is substantial and does not 

allow expedited implementation of new 

measurement technologies in approved 

State programs. We have also explained 

that the final rule will not eliminate 

public access to information about new 

measurement techniques selected by the 

States, nor will it impair our oversight 

of State evaluations of revegetation 

success. While public involvement in 

such changes will be different than 

under the prior rule, as will be our 

involvement, we believe the changes 

will fully, and more efficiently 

implement the requirements of SMCRA. 

After considering the benefits and costs 

of removing the approved program 

requirement from § 816.116(a)(1), we 

have concluded that both the 

environment and good science would be 

appropriately served by its removal. 

One commenter was concerned that, 

without the Federal requirement for 

including selected success standards 

and measuring techniques in States’

approved programs, States that have a 

‘‘no more stringent than’’ clause in their 

State law may feel constrained not to 

adopt such standards and techniques as 

a matter of State regulation. 

We disagree with the commenter’s 

concern that the existence of a ‘‘no more 

stringent than’’ clause in a State law 

will result in the State not adopting 

success standards and measuring 

techniques. Revised § 816.116(a)(1) does 

not change its requirement that a State 

must still select success standards and 

sampling techniques for use in its 

program. Furthermore, these selected 

standards and techniques must continue 

to be consistent with the Secretary’s 

regulations, particularly with the 

requirements of § 816.116(a)(2) and (b). 

A ‘‘no more stringent’’ clause in the 

State’s approved program would not 

negate any of these requirements. 

Two commenters stated that 

§ 816.116(a)(1) does not need to be 

changed in order for a State’s success 

standards to address the variability of 

environmental conditions found in that 

State. While we acknowledge the truth 

of this statement, the principal 

motivation for our changing 

§ 816.116(a)(1) continues to be reducing 

the time that may be required before a 

State program may adopt the latest, 

scientifically responsible standards for 

revegetation success. 

One commenter asserted that removal 

of the approved program requirement 

from § 816.116(a)(1) also removes the 

‘‘force of rule’’ from the sampling 

techniques selected by the regulatory 

authority. 

In response, we note that final 

§ 816.116(a)(1) does not change the 

requirement for States to select the 

standards for success and statistically 

valid sampling techniques. Under the 

prior rule, however, the standards and 

techniques selected by a State were 

required to be included in the approved 

program but were not required to be in 

rule form. As discussed above, these 

standards and techniques could also 

have been included in a guideline or 

other statement of technical procedures. 

Under final § 816.116(a)(1), States will 

still have those options; but selected 

standards and techniques will have to 

be made available to the public. 

Another commenter took issue with 

the statement in our 2005 proposed rule 

that the existing requirements of 

§ 816.116(a)(2) and (b) should ensure 

that selected success standards and 

sampling techniques used in the various 

States will provide similar degrees of 

proof that adequate reclamation has 

been achieved. The commenter 

disagreed with this assessment, 

indicating that, while standards for 

success are specified in these sections, 

the only specification regarding 

sampling methods is that parameters 

must be evaluated using sampling 

techniques with a 90-percent statistical 

confidence interval. The commenter 

added that the application of a 

statistical confidence limit is merely the 

final step in a long process, with no 

requirements being established in the 

rule for the intermediate steps in this 

process. While the commenter observed 

that there are many ways to obtain a 

data set for evaluation that meets the 

requirement for sampling using a 90- 

percent confidence interval, he noted 

that many of these ways do not, for 

various reasons, constitute a 

representative sample of the target 


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population. In addition, there are many 

different types of statistical tests that 

might be applied to determine 90- 

percent confidence. The commenter 

further stated that inappropriate 

application of statistical tests would 

result in incorrect conclusions regarding 

eligibility of lands for bond release. The 

use of sampling methods and statistical 

tests with no rules on approved 

methods would inevitably result in 

incorrect decisions regarding bond 

release and inconsistent application of 

rules and standards. In conclusion, this 

commenter declared that the premise 

that a regulatory authority will be able 

to ensure appropriate use of sampling 

methods and statistics without those 

requirements being included in the 

approved program is entirely 

unrealistic. 

The commenter is correct in its 

statement that there are many ways to 

obtain data satisfying the required 90- 

percent statistical confidence interval 

that may not constitute a representative 

sample of the target population. 

Similarly, there are many types of 

statistical tests that might be applied to 

determine the 90-percent statistical 

confidence interval. Inappropriate 

application of these statistical tests 

could, as the commenter suggested, 

result in incorrect conclusions regarding 

the eligibility of lands for bond release. 

The framing and the appropriate 

application of these sampling methods 

and statistical tests have always been 

two of the challenges facing the State 

regulatory authority under the prior 

rule. The same challenges will continue 

under the new rule. The only ‘‘rule,’’

i.e., regulatory prescription, that has 

ever governed the selection and 

application of sampling techniques and 

statistical tests is the 90-percent 

statistical confidence interval of 

§ 816.116(a)(2). This requirement will 

not be affected by the revision to 

§ 816.116(a)(1). Accordingly, we 

strongly question the commenter’s 

broad declaration that without ‘‘rules’’

on approved methods, incorrect 

decisions regarding bond release and 

inconsistent application of rules would 

‘‘inevitably result.’’ As stated above, it 

furthermore has been our experience 

that States have the necessary technical 

expertise both to select statistically 

valid sampling techniques and 

statistical tests that would result in a 

representative sample of the target 

population and to ensure that the 

statistical tests are applied correctly. As 

before, we will be available to provide 

technical assistance to the States in any 

further development and application of 

statistically valid sampling techniques 

and statistical tests. While not absolute 

guarantees in themselves, we reasonably 

believe that the current rules at 

§ 816.116(a)(2) and the current level of 

State expertise will continue to provide 

for appropriate development and use of 

sampling methods and statistics. 

Apparently in response to the 

statement in our 2005 preamble that our 

regulations allow technical standards to 

be included in technical guidance 

documents that are not part of the 

approved regulatory program, one 

commenter questioned whether any 

outside party had access to our 

‘‘records’’ as the regulatory authority in 

Tennessee, Washington, and for the 

Indian Lands Programs. All permitting 

actions and bond releases in Tennessee, 

Washington and on Indian Lands are, in 

fact, available for public review. All 

reclamation plans, including 

revegetation success standards and 

sampling techniques, for permits in 

Tennessee and Washington and on 

Indian Lands are also available for 

public review. Arrangements may be 

made to review those records by 

contacting the appropriate OSM office. 

3. Section 816.116(b)(3): Success 

Standards for Undeveloped Land 

What are the revisions to 

§ 816.116(b)(3)? 

We have revised § 816.116(b)(3) to 

add undeveloped land as one of the 

land uses subject to that section’s 

success standards. Revised 

§ 816.116(b)(3) will read as follows, 

with new language in italics: 

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 provision is identical to that 

proposed in our 2005 Federal Register 

notice. 

The basis for our revision to 

§ 816.116(b)(3) is set forth in detail in 

that notice. There we noted that several 

commenters responding to our 1999 

outreach had suggested that current 

§ 701.5 includes undeveloped land as a 

land use category 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.’’

Therefore, without any change to the 

current regulations, undeveloped land 

can be approved as a postmining land 

use under the postmining land use 

provisions of § 816.133. However, 

unlike all the other land use categories 

listed in § 701.5, undeveloped land does 

not have success standards specified in 

§ 816.116(b). Under this final rule, the 

inclusion of undeveloped land among 

the land uses subject to the revegetation 

success standards of § 816.116(b)(3) will 

mean that undeveloped land will be 

subject to cover and, if applicable, 

stocking requirements depending on the 

vegetation goals for each parcel of land. 

We consider the cover and stocking 

requirements of § 816.116(b)(3) to be 

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. 

What were the comments submitted on 

our proposed revision to 

§ 816.116(b)(3)? 

Eight commenters supported the 

proposed revision of § 816.116(b)(3) to 

add undeveloped land as one of the 

land uses subject to that section’s 

success standards. These commenters 

were in general agreement that having 

undeveloped land available as a 

postmining land use could allow 

reclamation of areas that potentially 

provide higher ecological benefits and 

diversity (and reforestation) than the 

other land uses previously identified in 

the regulations at § 816.116(b). 

One of these commenters asked 

whether the seral species on 

undeveloped land must be 

predominately native to the area or 

whether large swaths of introduced 

species, such as kudzu, could be 

acceptable in States such as Tennessee 

or Alabama. 

As previously noted, undeveloped 

land is defined 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.’’

Therefore, if an operator chooses 

undeveloped land as a postmining land 

use, we believe that the operator would 

have to reclaim the land with the 

revegetation goal of promoting natural 

succession. In this regard, the 

revegetation provisions of § 816.111 

require the use of species native to the 

area, or of introduced species where 

desirable and necessary to achieve the 

approved postmining land use. The use 

of those introduced species must also be 

approved by the regulatory authority, 

and under § 816.111 those species must 

be capable of plant succession. Species 

like kudzu that are considered noxious 

weeds could not be introduced because 

of the prohibitions of State and Federal 

laws and regulations governing noxious 


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plant and introduced species. It would 

not be feasible or appropriate for us to 

establish national standards for seral 

species because of the vast differences 

in plant communities throughout the 

country. Planting and seeding plans for 

development of seral plant communities 

is best done at the local level by 

professionals most familiar with the 

local environment. 

Another commenter noted that the 

Ohio approved program has established 

a postmining success standard for 

undeveloped lands. The intended 

purpose of that program regulation was 

to encourage the planting of trees and 

shrubs without the need to achieve an 

established standard for stems per acre, 

survival or plant productivity. The 

commenter observed that, in spite of 

this incentive, the Ohio regulation has 

not proven successful in encouraging 

additional tree and shrub plantings 

within mined areas. Based on this Ohio 

experience, the commenter stated that 

the proposed revision to include 

undeveloped land among the listed land 

uses of § 816.116(b)(3) is unnecessary as 

the inclusion is not likely to achieve its 

intended purpose of encouraging tree 

and shrub planting. Instead, the 

commenter recommended the 

establishment of a national standard 

requiring that a minimum of 80 percent 

of the acreage that is disturbed by 

mining and that supported a forest or 

shrub cover prior to mining must be 

reclaimed to forest and shrub cover 

following mining. The commenter based 

this recommendation on several States’

interpretation of their existing rules. 

The commenter further stated that this 

restoration requirement for forest and 

shrub lands would necessitate the 

development and utilization of 

techniques necessary to ensure 

successful restoration of premine land 

use capabilities, including those of 

forestry or fish and wildlife habitat. 

Such a national requirement would also 

establish a consistent playing field for 

operators across the country. 

We appreciate the commenter’s 

concern as to whether the Ohio rules 

have been successful in encouraging 

tree and shrub planting on undeveloped 

land. Nonetheless, because undeveloped 

land is already available as a postmining 

land use, we believe that it is necessary 

both to establish revegetation success 

parameters for this land use and to 

require that operators, to obtain bond 

release, then demonstrate compliance 

with those parameters. Revising 

§ 816.116(b)(3) to include undeveloped 

land among the numbered postmining 

land uses assures that all approved 

postmining land uses will have to meet 

prescribed revegetation success 

standards. The commenter’s proposal to 

require reclamation to premining cover 

type of 80 percent of the acreage that 

previously supported a forest or shrub 

cover goes beyond the requirements of 

SMCRA. Section 515(b)(2) of the Act 

addresses postmining land use and 

requires restoration of affected lands to 

a condition capable of supporting the 

uses which it was capable of supporting 

prior to any mining, or higher or better 

uses. The proposed establishment of 

national criteria requiring redistribution 

of a particular level of premine tree and 

shrub cover is therefore not authorized, 

because SMCRA allows landowners to 

choose higher or better postmining land 

uses. 

Two commenters contended that 

OSM should do more than simply 

adding undeveloped land to the list of 

land uses subject to the requirements of 

§ 816.116(b). They argued that, if OSM 

finalizes its proposal, the new rule 

would not foster one of our stated 

objectives which was to encourage 

reforestation. These commenters 

asserted that some permit applicants 

would choose not to select undeveloped 

land as their postmining land use and 

would propose not to plant trees if the 

revegetation standards for undeveloped 

land were unnecessarily burdensome. 

Moreover, these commenters noted that, 

in approving Ohio’s success standards 

for undeveloped land, we stated that 

‘‘undeveloped land is consistent with 

the Federal regulations which do not 

contain specific success standards for 

undeveloped land, and is in keeping 

with section 101(f) of SMCRA, which 

vests the States with the primary 

governmental responsibility for 

developing, authorizing, issuing, and 

enforcing regulations for surface coal 

mining and reclamations operations.’’

59 FR 22514, May 2, 1994. 

The same two commenters indicated 

that, instead of treating the undeveloped 

land category like the other land uses in 

§ 816.116(b)(3), OSM should recognize 

that the State regulatory authority may 

develop its own undeveloped land 

revegetation success standards on a 

program-wide or individual permit 

basis. Such State-specific revegetation 

success standards for undeveloped land 

would, of course, ensure that the land 

be allowed to return to its natural or 

undeveloped state, or to forest through 

natural succession. The commenters 

suggested using the Ohio approved 

program as a model for development of 

future Federal regulations. Under this 

approach, revegetation success for the 

undeveloped land use would be 

determined on the basis of ground cover 

and the proper planting of appropriate 

tree and shrub species specified in the 

permittee’s approved planting plan. In 

addition, these commenters suggested 

that revegetation on undeveloped land 

should be found successful for phase II 

bond release when the herbaceous 

ground cover species are established 

and provide sufficient ground cover to 

control erosion. For phase III, the bond 

should be released when the five-year 

period of responsibility has expired and 

acceptable species of trees and shrubs 

have been properly planted in 

accordance with the approved planting 

plan. The commenters indicated that 

survival of tree or shrub plantings 

should not be a requirement for phase 

III bond release, as long as the permittee 

demonstrates that the planting plan has 

been approved and followed and that 

trees and shrubs have been planted in 

approved numbers and locations. The 

commenters affirmed that this proposed 

regulatory approach to revegetation 

success for undeveloped land would 

encourage more reforestation than 

OSM’s proposal to include undeveloped 

land among the land uses subject to the 

revegetation success standards of 

§ 816.116(b)(3). 

We do not agree with any aspect of 

the commenters’ proposal. As noted in 

the preamble to the proposed rule, 

unlike all the other land use categories 

listed in § 701.5, undeveloped land does 

not have specified revegetation success 

standards in § 816.116(b). The inclusion 

of undeveloped land as one of the land 

uses subject to the success standards of 

§ 816.116(b)(3) means that undeveloped 

land will, like all the other listed land 

uses, have specific revegetation success 

standards. Therefore, any area with an 

approved undeveloped land use will be 

subject to the cover and, if applicable, 

stocking requirements of § 816.116(b)(3) 

depending on the particular vegetation 

goals set for that parcel of land. These 

cover and stocking requirements are 

particularly appropriate criteria for 

evaluating the revegetation success of an 

undeveloped land use area as these 

requirements should ensure the 

establishment of the seral species, i.e., a 

community of mixed grasses, forbs, 

shrubs and trees, necessary to facilitate 

natural plant succession. Upon 

promulgation of this final rule, if 

reforestation proves to be the desired 

goal of individual revegetation efforts, 

the approved land uses could be forest 

products (forestry), fish and wildlife 

habitat, or undeveloped land. For phase 

II bond release the operator must only 

demonstrate the establishment of the 

seeded or planted species. However, we 

maintain that in all cases, and for 

obvious reasons, the ultimate success of 

revegetation when it is evaluated at 


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phase III must be based on cover and the 

survival of the planted trees, not simply 

the planting of those trees. Under both 

the prior and final rule the specific 

success standards and criteria used to 

evaluate each of these land uses will be 

established by the regulatory authority. 

We note that, contrary to these latter 

commenters’ assertions about the 

efficacy of the Ohio model in 

encouraging reforestation, Ohio has 

indicated that its approved provisions 

for evaluating revegetation success for 

undeveloped land, which do not require 

evaluation of survival, have not been 

successful in encouraging tree and 

shrub planting. We do not believe that 

including survival requirements for 

trees in the success standards for 

undeveloped land will adversely affect 

reforestation efforts. In sum, we find no 

meaningful basis for exempting the 

undeveloped land use from the success 

requirements common to all other land 

uses listed in § 816.116(b). 

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

What are the revisions to 

§ 816.116(b)(3)? 

We are further revising the 

revegetation success provisions of 

§ 816.116(b)(3) to eliminate the 

reference to shelter belts from listed 

land uses. This revision is identical to 

that in the 2005 proposed rule. We will 

address the use of shelter belts under 

the revegetation success provisions of 

§ 816.116(c)(4), which governs normal 

husbandry practices. 

As discussed in the preamble to that 

proposed rule, we have removed shelter 

belts from the land uses listed in 

§ 816.116(b)(3) for three reasons: shelter 

belts have never been included among 

the land use categories listed in § 701.5; 

shelter belts are defined as conservation 

practices, not land uses, by the Natural 

Resources Conservation Service (NRCS); 

and the recognized purpose and ongoing 

maintenance requirements of shelter 

belts are consistent with the normal 

husbandry practices allowed by 

§ 816.116(c)(4). 

What were the comments submitted on 

our proposed revision to 

§ 816.116(b)(3)? 

Ten commenters supported removing 

shelter belts from the land uses listed in 

§ 816.116(b)(3). All these commenters 

agreed with our position that shelter 

belts are conservation practices and 

should, therefore, be addressed as 

normal husbandry practices. 

One commenter opposed the 

proposed revision, preferring that the 

reference to shelter belts be retained in 

our regulations at § 816.116(b)(3). This 

commenter stated that the underlying 

idea behind the (b)(3) regulation has 

been that shelter belts would provide 

cover for game traveling between 

different kinds of postmining land uses 

and would aid in controlling wind and 

water erosion. The commenter indicated 

that we should retain the idea of 

providing cover for game and 

controlling erosion with tree and shrub 

plantings, even within areas reclaimed 

for residential, commercial, or industrial 

postmining land uses. The commenter 

contended that, if the idea of providing 

cover for game and controlling erosion 

with tree and shrub plantings is lost by 

removing shelter belts from among the 

listed land uses of § 816.116(b)(3), we 

would be bowing to the ‘‘barrenness’’ of 

those uses. While the commenter agreed 

that the NRCS definition of shelter belt’’

may be a husbandry practice, he noted 

that the shelter belt concept, as 

currently used in our regulations, 

involves more than a mere husbandry 

practice and should be retained in 

§ 816.116(b)(3). 

We agree that, to provide habitat for 

various wildlife species as well as to 

control wind and water erosion, we 

should encourage the use of shelter 

belts. However, the inclusion of shelter 

belts among listed land uses in 

§ 816.116(b)(3) triggers a statistical 

evaluation of shelter belts under 

§ 816.116(a)(2) for determining 

revegetation success at bond release. We 

believe that requiring such a statistical 

evaluation actually discourages the use 

of shelter belts on reclaimed lands 

because of the time and money 

necessary for sampling and preparing a 

bond release application. Not 

surprisingly, the current use of shelter 

belts is very limited. Redesignation of 

shelter belts as a normal husbandry 

practice should reasonably encourage 

their future use and proper 

maintenance. 

In response to the commenter’s 

concern about the value of shelter belts 

as wildlife cover, we note that the 

Federal regulations at § 816.97(a) 

continue to require that the operator 

must, to the extent possible and using 

the best technology currently available, 

minimize disturbances and adverse 

impacts on fish, wildlife, and related 

environmental values and must enhance 

such resources where practicable. 

Furthermore, § 816.97(h) continues to 

require that, where cropland is to be the 

postmining land use and where it is 

appropriate for wildlife- and cropmanagement practices, the operator 

must intersperse fields with trees, 

hedges, or fence rows throughout the 

harvested area to break up large blocks 

of monoculture and to diversify habitat 

types for birds and other animals. 

Finally, § 816.97(i) requires that, where 

residential, public service, or industrial 

uses are to be the postmining land use, 

and, where it is consistent with the 

approved postmining land use, the 

operator shall intersperse reclaimed 

lands with greenbelts utilizing species 

of grass, shrubs, and trees useful as food 

and cover for wildlife. In answer to the 

commenter’s general concerns, these 

cited regulations clearly provide for the 

use of vegetated areas similar to shelter 

belts for enhancing wildlife habitat, 

even with residential or industrial 

postmining land uses. 

Another commenter supported the 

proposed changes, agreeing that shelter 

belts are not a land use but rather a 

conservation practice supporting 

approved land uses. Nonetheless, this 

commenter argued that any trees 

included in the shelter belt area should 

still be subject to the requirement at 

§ 816.116(b)(3)(ii) that, at the time of 

bond release, at least 80 percent of the 

trees and shrubs used to determine such 

success shall have been in place for 60 

percent of the applicable minimum 

period of responsibility and all shall 

have been in place for at least two years 

(the ‘‘80/60 rule’’). Accordingly, the 

commenter suggested that language be 

included in the regulations to clarify 

that shelter belts are subject to the 

success standard of § 816.116(b)(3)(ii). 

In response to this comment, we note 

that it would be logically inconsistent to 

treat shelter belts as normal husbandry 

practices, which allow for maintenance 

that could include dead tree or shrub 

replacement, irrigation, thinning, 

pruning, chemical application for 

disease and pests, protection from 

livestock and wildlife, and fertilization, 

but still require shelter belts to comply 

with the 80/60 rule, which places limits 

on tree and shrub replanting. 

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

Shrub Stocking Standards 

What are the revisions to 

§ 816.116(b)(3)(ii)? 

We have made three minor revisions 

to § 816.116(b)(3)(ii) to provide new 

ways in which operators may accurately 

satisfy the existing revegetation success 

standards of the 80/60 rule for areas 

developed for fish and wildlife habitat, 

recreation, undeveloped land, or forest 

product postmining land uses. Revised 

§ 816.116(b)(3)(ii) will read as follows, 

with new language in italics: 

(ii) Trees and shrubs that will be used in 

determining the success of stocking and the 

adequacy of the plant arrangement shall have 

utility for the approved postmining land use. 

Trees and shrubs counted in determining 


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51698 Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 

such success shall be healthy and have been 

in place for not less than two growing 

seasons. At the time of bond release, at least 

80 percent of the trees and shrubs used to 

determine such success shall have been in 

place for 60 percent of the applicable 

minimum period of responsibility. 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 

two 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 

percent of that period is less than 20 percent 

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 two 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. 

The revised language is identical to 

that included in our 2005 proposed rule. 

As discussed in the preamble to that 

rule, many mine operators over the 

years have 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. In response to these concerns, 

we have added five sentences to the end 

of the existing language of 

§ 816.116(b)(3)(ii) to implement three 

minor revisions in the way operators 

may satisfy the 80/60 success standards. 

The first revision to 

§ 816.116(b)(3)(ii), represented by the 

first two new sentences added to the 

end of existing rule language, effectively 

eliminates the current potential need 

under the 80/60 rule for field 

verification of the time in place of 

individual plants. Under the prior rule, 

especially in areas of greater than 26 

inches of average annual precipitation 

(‘‘humid areas’’) where mined land 

could reasonably be reforested, the need 

for determining the time in place of 

trees has proven to be a significant 

disincentive to reforestation. Instead, 

operators have tended to choose grazing 

land or pastureland, not forestry, in 

order to avoid application of the treecounting requirements of the 80/60 rule. 

With our first revision to 

§ 816.116(b)(3)(ii), operators can now 

document compliance with the 80/60 

rule time-in-place requirements for 

individual plants by comparing records 

of initial planting (or ‘‘stocking’’) and 

replanting of transplants to the final 

field count of plants at bond release. 

The second sentence specifically 

requires the use of transplants rather 

than seeding for any replanting. We 

have added this requirement because 

the use of transplants or plant seedlings 

allows us to quantify easily the amount 

of replanting that has occurred and 

thereby ensure compliance with the 80/ 

60 rule time-in-place requirements. By 

contrast, if an operator used seeding for 

replanting, because of the variability in 

seed germination it would be extremely 

difficult to quantify the number of trees 

and shrubs that would result from the 

supplemental seeding. This would make 

verification of compliance with the 80/ 

60 rule time-in-place requirements 

extremely difficult, if not impossible. 

The 80/60 rule time-in-place 

requirements can be met when the 

following easily documented facts are 

established: (1) The final field count of 

plants of approved species at bond 

release shows that the requisite number 

of plants are in place; (2) records show 

that no woody species have been 

planted in the last three years of a fiveyear responsibility period or six years of 

a ten-year responsibility period; (3) if 

replanting has occurred in the last 60 

percent of the responsibility period, 

planting records show that the number 

of plants replanted is below 20 percent 

of the final plant count; and (4) no 

woody species have been planted 

during the last two years of the 

responsibility period. By establishing 

these facts, it will now be possible for 

an operator 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 revision to 

§ 816.116(b)(3)(ii), represented by the 

third and fourth sentences added to the 

end of existing rule language, will 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. Operators and 

regulatory officials from both the humid 

and semi-arid precipitation areas have 

often 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. We believe 

the new provision permitting operators 

to count volunteer plants is consistent 

with section 515(b)(19) of the Act, 

which requires the operator to establish 

vegetation that is ‘‘capable of selfregeneration and plant succession at 

least equal in extent of cover to the 

natural vegetation of the area.’’ The 

volunteer plants allowed under this 

revision represent either regeneration of 

species already present on the reclaimed 

area or invasion of native species from 

adjacent undisturbed areas, which is 

itself a strong 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. 

The third revision to 

§ 816.116(b)(3)(ii), represented by the 

fifth sentence added at the end of 

existing rule language, will allow 

individual suckers from shrubs to be 

counted as volunteer plants under the 

80/60 rule when it is evident that the 

shrub community is vigorous and 

expanding. As discussed in our 

proposed rule, many of the planted or 

seeded shrub species in semi-arid areas 

undergo a continual process called 

‘‘suckering’’ by which multiple new 

aboveground stems are generated from 

the initial plant. It is not possible, 

however, to document the time in place 

of these new suckers. Therefore, even 

though the sucker plant community may 

be vigorous and expanding, the 

individual suckers could not be counted 

under the prior rule for purposes of 

meeting the 80/60 revegetation success 

count. As is the case with other 

volunteer plants, we believe that 

allowing for the counting of individual 

suckers within a vigorous and 

expanding shrub community is also a 

reasonable indicator of successful 

reclamation and an appropriate revision 

to the 80/60 rule. 

What were the comments submitted on 

proposed revisions to 

§ 816.116(b)(3)(ii)? 

Fourteen commenters supported the 

proposed revisions to § 816.116(b)(3)(ii) 

and the new ways operators may 

accurately establish compliance with 

the 80/60 revegetation requirements of 

that rule. These commenters echoed 

many of the same themes that we had 

set forth in our preamble to the 

proposed rule. The commenters 

affirmed that the new language added to 

§ 816.116(b)(3)(ii) would reduce some of 

the sampling problems and unnecessary 


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burdens associated with proving 

reclamation success on woodland land 

uses. They viewed the new ability to 

include volunteer trees and shrubs, 

including suckers, in success 

determinations as encouraging greater 

use of woody species and the 

reforestation of mined lands. Finally, 

because the regenerative capabilities of 

a planting can greatly increase its 

prospects for long term success, they 

confirmed that volunteer plants would 

be no less valuable for determining 

revegetation success than original 

plantings. 

One of the commenters supporting the 

proposed revisions provided much 

useful information for evaluating shrubs 

from different shrub populations and 

developing species-specific sampling 

techniques. We particularly appreciate 

this commenter’s insight into evaluating 

shrubs. The provided information may 

well prove useful in the future for 

developing sampling techniques based 

on the particular species of shrubs to be 

sampled. 

One commenter, however, objected to 

the revision of § 816.116(b)(3)(ii) on the 

grounds that it eliminated the 

continuing need under the 80/60 rule to 

make a plant count of trees and shrubs 

for establishing revegetation success. 

This commenter also expressed concern 

that one-year-old suckers in the West 

might be included in the final field 

count, even though such suckers are not 

viable. The commenter did not object to 

counting suckers if they are vigorous 

and expanding but observed that a 

competent horticulturist or agronomist 

familiar with an area should be able to 

determine if a sucker ‘‘is going into its 

second growing season.’’

We note that our revision of the 

methods by which trees and shrubs can 

be counted under the 80/60 rule does 

not change the requirement that, during 

the final year of the responsibility 

period, the operator must still 

demonstrate that the revegetation 

success standard has been achieved. 

This demonstration will require 

sampling, i.e., field counting, the 

individual trees and/or shrubs on the 

reclaimed area. The counting of oneyear-old suckers should not be a 

concern because, since they receive 

nourishment from both the parent plant 

and their own root system, their 

continued survival and expansion 

beyond year one should be reasonably 

ensured. Evaluation of tree and shrub 

density in the last year of the 

responsibility period should also ensure 

that the stands are well established. 

Accordingly no changes are necessary to 

address this commenter’s concern. 

Still another commenter opposed the 

proposed revisions to the 80/60 rule 

because it feared these revisions would 

weaken the regulatory authority’s ability 

to require success standards and 

sampling techniques that would ensure 

good and lasting reclamation. This 

commenter stated that under the 

proposed rule operators could 

essentially choose whatever sampling 

technique is least costly—whether the 

technique is valid or not—and apply 

reclamation performance standards as 

they see fit. The commenter further 

questioned how regulators and the 

public would be able to hold operators 

to a high and successful reclamation 

standard. The commenter suggested 

that, under the proposed rule, lands 

might be released from reclamation 

bonds even though they did not, in fact, 

‘‘meet long lasting reclamation 

requirements or the intent of the 

SMCRA.’’

Contrary to this commenter’s 

contention, our revisions to 

§ 816.116(b)(3)(ii) will not weaken or 

otherwise adversely affect the regulatory 

authority’s ability to require that, during 

the final year of the responsibility 

period, the operator must still 

demonstrate that the revegetation 

success standard has been achieved. As 

always, this demonstration under 

§ 816.116(b)(3) will require sampling, 

i.e., field counting, the tree and/or shrub 

density on the reclaimed area and 

comparing those counts to records of 

original planting and replanting to 

determine if revegetation is successful. 

Under § 816.116(a)(1), the regulatory 

authority will continue to select the 

success standards and statistically valid 

sampling techniques that operators must 

use to demonstrate revegetation success. 

Accordingly, the new methodologies 

allowed under revised § 816.116(b)(3)(ii) 

for establishing compliance with the 

revegetation requirements of the 80/60 

rule will not affect the quality of the 

reclamation required under the Act. 

These new methodologies will merely 

allow the operator to demonstrate 

achievement of the revegetation success 

standard without having to track the 

time in place of individual plants 

through the revegetation responsibility 

period. 

6. Section 816.116(c)(3)(i) and (ii): 

Sampling Timeframes for Areas With 

Less Than 26 Inches of Precipitation 

What are the revisions to 

§ 816.116(c)(3)(i) and (ii)? 

We have revised § 816.116(c)(3) to 

change the timeframes for sampling 

revegetated lands in areas receiving less 

than 26 inches of precipitation to 

determine if they meet the appropriate 

success standards. Revised 

§ 816.116(c)(3)(i) and (ii) will read as 

follows, with new language in italics: 

(i) Ten full years, except as provided in 

paragraph (c)(3)(ii) below. The vegetation 

parameters identified in paragraph (b) of this 

section for grazing land, pasture land, or 

cropland shall equal or exceed the approved 

success standard during the growing season 

of any two years after year six 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. 

This revised language is identical to 

that included in the 2005 proposed rule. 

We are changing our revegetation 

regulations at § 816.116(c)(3) 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’’) at § 816.116(c)(2). As discussed 

more fully in our 2005 proposed rule, 

our 1979 regulations provided for the 

timing of revegetation success 

measurements for semi-arid areas to be 

identical to that for humid areas. These 

regulations required that the 

revegetation success standards be 

equaled or exceeded for the last two 

consecutive years of the respective fiveand ten-year responsibility periods. In 

1983, we revised our humid area 

regulations, redesignated as 

§ 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 two 

consecutive years of responsibility 

period. We did not, however, change the 

semi-arid area regulation at 

§ 816.116(c)(3)(i), which continued to 

require that the revegetation success 

standard be equaled or exceeded for the 

last two consecutive years of the tenyear responsibility period. In 1985, the 

court remanded the 1983 revision to us 

because of the lack of supporting 

evidence. 

On September 7, 1988, we 

promulgated the current rules at 

§ 816.116(c)(2)(i) setting forth the 

periods for measuring revegetation 

success for humid areas with a five-year 


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51700 Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 

responsibility period. 53 FR 34643. The 

new regulations required that 

revegetation success standards for 

grazing land, pasture land, or cropland 

postmining land uses be equaled or 

exceeded during any two years of the 

responsibility period, except the first. 

Prior to the 1988 revision to 

§ 816.116(c)(2)(i), evaluation of 

revegetation success was required in the 

last two years of the responsibility 

period for these land uses, regardless of 

the precipitation regime. In support of 

this relaxation from the 1979 ‘‘last-twoconsecutive-years-of-the-responsibilityperiod’’ 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 40156, 

September 2. Notwithstanding, we 

reasoned that, relative to grazing land, 

pasture land, 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, ‘‘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 

unnecessarily rigid standard given the 

variability of weather conditions. 53 FR 

34640. 

The 1988 revision also provided that, 

for humid areas, the revegetation 

success standards for postmining land 

uses other than grazing land, pasture 

land, and cropland, e.g., forest products, 

fish and wildlife habitat, etc., must be 

equaled or exceeded during the growing 

season of the last year of the 

responsibility period. Supporting this 

relaxation of the 1979 ‘‘last-twoconsecutive-years-of-the-responsibilitystandard,’’ we reasoned that within a 

forest ecosystem there exists a positive 

relationship between time and 

vegetative cover. Therefore, we 

concluded that, for forest-type 

ecosystems, the last year of the 

responsibility period would provide an 

accurate measurement of revegetation 

success. 53 FR 34641. 

After reviewing the 1988 preamble 

rationale that supported relaxation of 

the last-two-consecutive-years 

requirement for humid areas with a fiveyear responsibility period, we have not 

found any persuasive reason why the 

same rationale would not equally apply 

to semi-arid areas with a ten-year 

responsibility period. For example, for 

areas with postmining land uses other 

than grazing land, pasture land, or 

cropland, determining vegetation 

success requires measurement of 

vegetative parameters that are not 

sensitive to short-term weather 

variations. With each of these other 

postmining 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. Trees counted in the last year of 

the responsibility period for a forestry 

postmining land use should reasonably 

be expected to survive as a permanent 

vegetative cover. This holds true 

whether the other postmining land uses 

are located in humid or semi-arid areas. 

For all postmining land uses, we believe 

that it is the nature 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 have revised our 

regulations for semi-arid areas at 

§ 816.116(c)(3)(i) to comport with our 

regulations for humid areas at 

§ 816.116(c)(2)(i). The revised rules for 

semi-arid areas provide that the 

vegetation parameters identified in 

§ 816.116(b) for grazing land, pasture 

land, or cropland must equal or exceed 

the approved success standard during 

the growing season of any two years 

after year six of the responsibility 

period. For semi-arid areas approved for 

the other land uses identified in 

paragraph (b) of that section, vegetation 

must 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 requirements of 

§ 816.116(c)(3)(i) for areas receiving 26 

inches or less of annual precipitation 

similar to those of § 816.116(c)(2)(i) for 

areas receiving more than 26 inches of 

annual precipitation. For the sake of 

further consistency, we are similarly 

revising the rules for lands in semi-arid 

areas at § 816.116(c)(3)(ii), which govern 

the timing of revegetation success 

measurement for lands eligible for 

remining, to comport with the rules for 

similar lands in humid areas at 

§ 816.116(c)(2)(ii). Both rules will then 

require that revegetation standards be 

met or exceeded during the growing 

season of the last year of responsibility 

period. 

What were the comments submitted on 

proposed revision to § 816.116(c)(3)? 

Nine commenters supported the 

proposed revision that would require 

revegetation success measurements for 

grazing land, pasture land, and cropland 

in semi-arid areas to equal or exceed the 

approved success standard during the 

growing season for any two years after 

year six of the ten-year responsibility 

period. Noting that our 1988 rulemaking 

had cited the climatic variability of 

humid areas as supporting the new anytwo-year measurement schedule for 

grazing lands, pasture lands, and 

croplands, commenters added that the 

climatic variability in the semi-arid 

areas of the West can also be very 

extreme, particularly with regard to 

periods of drought. Because vegetation 

parameters may equal or exceed success 

standards in the years both before and 

following a drought, commenters 

concluded that flexibility was needed to 

allow the second year of sampling to be 

collected in a non-consecutive year. 

Accordingly, with regard to grazing 

lands, pasture lands, and croplands in 

semi-arid areas, commenters supported 

the proposed rule as allowing needed 

flexibility in the timing of revegetation 

success measurements without 

compromising the standard for that 

success. 

We agree with this analysis. By 

allowing measurements for revegetation 

success in any two years after year six 

of the responsibility period, the new 

rule will provide semi-arid areas with 

the same flexibility for dealing with 

climatic variability presently afforded 

only in humid areas. At the same time 

both rules will ensure not only 

successful revegetation, but also timely 

bond release. 

One commenter noted that if an 

operator is using a reference area as the 

success standard against which 

revegetated areas will be compared, the 

climatic variability discussed in the 

preamble would not pose substantial 

problems during bond release 

demonstrations because the reference 

area would be subject to the same 

climatic variability as the revegetated 

area. 

We generally agree with this 

comment, noting that if reference areas 

are located in close proximity to 

revegetated areas, the amount of 

climatic variability between any two 

areas may not be substantial. However, 

as mines expand, the distances between 

long-established reference areas and 

newly reclaimed areas often increase. 

Given the localized nature of storms in 

the West, these increased distances can 

result in increased climatic variability 


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between the reference and revegetated 

areas. Therefore, we believe that it is 

particularly important to take into 

account the potential for climatic 

variability between reference and 

revegetated areas when the two are not 

in close proximity. 

Another commenter opposed revising 

the measurement time frames for 

grazing land, pasture land, and cropland 

in semi-arid areas to comport with those 

in humid areas. Because the climate of 

the area determines the specific plants 

used to achieve approved postmining 

land uses, this commenter declared that 

it is entirely possible to plant for a 

specified land use and then, due to 

changed climatic conditions, fail to 

meet the revegetation standards in any 

year of the ten-year responsibility 

period. For example the commenter 

indicated that in May 1996, she had 

planted a dry land hay field of grass and 

legume mix on undisturbed soils. In the 

nine subsequent years, she harvested 

only one crop and that crop was only 

half a crop. Because climate determined 

the production on that hay field, not her 

intention to use the land as a hay field, 

she did not think that picking any two 

years out of the last four years of the 

ten-year responsibility period is either a 

conservative or safe way to determine 

the ultimate survivability of semi-arid 

western vegetation. She reasoned that, if 

the vegetation meets the standards for 

the last two years, then there would be 

a better probability that the reclaimed 

area would be able to meet the intended 

postmining land use. In this context, the 

commenter also stated that drought and 

wet cycles in the West alternate on 

much longer time frames than those in 

the East. The commenter further 

suggested that OSM could extrapolate 

the duration of the past drought cycles 

from available information, noting that 

some of these drought cycles were 

reputed to have lasted for extended 

periods. On this basis, the commenter 

concluded that OSM should err on the 

side of caution and retain the current 

rule. 

We do not agree with many of the 

conclusions expressed by this 

commenter. Meeting the success 

standards for pasture land, grazing land 

or cropland in the last two years of the 

ten-year responsibility period is not 

necessarily a better indicator of 

revegetation success than meeting the 

same success standards in any two years 

after year six. For example, suppose an 

operator in a semi-arid area were to 

meet grassland production and cover 

success standards in year seven, but, 

because of drought, did not meet those 

same success standards in years eight 

and nine. Then, because precipitation 

returned to normal in year ten, the 

operator met the grassland production 

and cover success standards in that 

year, thus satisfying the new standard of 

any two years of the responsibility 

period after year six. We believe that 

this any-two-year approach clearly 

demonstrates the permanence, 

resilience and effectiveness of the 

reclaimed plant community following a 

period of drought. Such a clear 

demonstration of the resilience of the 

reclaimed plant community would not, 

however, satisfy the evaluation time 

frames of the prior rule when the data 

could only be collected in the last two 

consecutive years of the responsibility 

period. In the commenter’s personal 

example of the dry land hay field, the 

hay field would not have met either the 

prior standard supported by the 

commenter or the new standard 

finalized in this rulemaking. We note 

that, if there are concerns as to the 

adequacy of revegetation at the time of 

the bond release inspection, the 

regulatory authority should conduct 

additional vegetation investigations. 

Another commenter had two other 

concerns with our proposed revisions to 

the time frames for measuring 

revegetation success in semi-arid areas 

with grazing land, pasture land, or 

cropland postmining land uses. First, he 

asserted that the proposed language 

would allow the first year of 

measurement for grazing land, pasture 

land, and cropland to be conducted in 

the seventh year after the last 

augmented seeding. The commenter 

found this fact particularly troubling as, 

in the semi-arid areas of the West, the 

reclaimed vegetation community in year 

seven is still undergoing significant 

changes in composition, cover, and 

production. The commenter’s second 

concern was that the proposed rules 

would sometimes allow a demonstration 

of revegetation success many years 

before an operator requests formal bond 

release. More specifically, an operator 

could conceivably demonstrate that he 

had met revegetation success in years 

seven and eight but not apply for formal 

bond release until year twenty. 

Accordingly, the commenter suggested 

that we change the rules to require 

measurement of revegetation success in 

two out of the last three years of the 

responsibility period. The commenter 

viewed this suggested change as tying 

the demonstration of revegetation 

success to the formal bond release 

request while still allowing flexibility in 

addressing negative impacts to the 

reclamation caused by climatic 

variability. 

We agree that reclaimed plant 

communities are dynamic and change 

over time as the plants mature and 

composition responds to climatic 

variability and soil conditions. 

However, this change within plant 

communities will also continue long 

after the responsibility period is over. 

Therefore, OSM does not believe that 

the fact of continuing change within 

plant communities is sufficient reason 

to delay measurement of revegetation 

success on grazing land, until either the 

last two years of the responsibility 

period, as the rule formerly provided, or 

two out of the last three years of the 

responsibility period as this commenter 

suggested. Pasture land and cropland 

are not subject to significant change in 

composition, cover and/or production 

over time because of the nature of the 

plant species planted. Once established, 

cover and/or production on these land 

uses generally fluctuates only in 

response to climatic variability. For 

these reasons we revised the rule to 

allow measuring for revegetation 

success on grazing land, pasture land, 

and cropland in any two years after year 

six. We find it unlikely that an operator 

might measure revegetation success in 

years seven and eight but wait until year 

twenty to request bond release. Even so, 

§ 800.40(c)(3) clearly requires that the 

operator must fully meet the 

requirements of the Act and the permit 

(including revegetation success 

standards) for a phase III bond release. 

Therefore, if, the regulatory authority is 

concerned that vegetation does not meet 

the revegetation success standards 

during the final bond release inspection, 

the regulatory authority can and should 

require additional investigation to 

determine whether those standards have 

been met. The regulatory authority may 

also set limitations on acceptable 

timeframes for sampling vegetation 

prior to submission of a bond release 

application. Accordingly, no change in 

the regulation is necessary to address 

the commenter’s concern. 

While five commenters agreed with 

the proposed revision to 

§ 816.116(3)(c)(i) as it applied to pasture 

land, grazing land, and cropland in 

semi-arid areas, they did not agree with 

the revision as it applied to the semiarid areas approved for the ‘‘other uses’’

identified in § 816.116(b)(3), (4) and (5). 

Under the proposed revision, identified 

vegetative parameters in semi-arid areas 

would have to meet or exceed the 

applicable success standard during the 

growing season of the last year of the 

responsibility period. These 

commenters asserted that this particular 

revision would be overly burdensome to 

operators who, in some situations, 

would have to conduct a total of three 


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separate samplings of the vegetation in 

a large tract with mixed land uses to 

qualify for bond release. In contrast, 

commenters asserted that the prior rule 

would only require two samplings of 

vegetation in same large tract to qualify 

for bond release. The commenters 

characterized the additional sampling 

required under the proposed rule as an 

unnecessary expenditure of time and 

money. To alleviate this problem the 

commenters proposed to allow 

revegetation sampling for the other land 

uses of § 816.116(b) in any one year after 

year six of the responsibility period. 

This proposed change would, for large 

tracts with mixed land uses, allow 

operators to reduce their sampling 

efforts to two years by sampling for the 

other uses in the same year as they 

sample for grazing land, pasture land, or 

cropland. 

As a supporting example of the 

asserted sampling burden of our 

proposed rule, the commenters noted 

that many western surface coal mines 

reclaim mined lands to multiple land 

uses. Operators may reclaim large 

portions of a reclaimed area to a grazing 

land postmining land use dominated by 

forage plants, while other smaller 

portions of the same area may be 

reclaimed to a different postmining land 

use, such as fish and wildlife habitat 

dominated by woody plants. The 

resultant landscape would be a mosaic 

of grass-dominated plant communities, 

subject to the frequency of success 

determinations for grazing land, 

intermixed with shrub-dominated 

communities, and subject to the 

frequency of success determinations for 

fish and wildlife habitat. Commenters 

accurately noted that, to demonstrate 

revegetation success under the proposed 

rule, operators could choose to sample 

the grazing lands to demonstrate 

revegetation success in any two years of 

years seven, eight, nine, or ten of the 

responsibility period. However, 

operators would have to sample fish and 

wildlife habitat in year ten, the last year 

of the responsibility period. Thus, they 

concluded, sampling within the mosaic 

of a large reclaimed area would have to 

occur on three different occasions. 

In further support of their proposal to 

allow revegetation sampling in any year 

after year six of the responsibility 

period, these commenters also indicated 

that operators must sample woody plant 

density on an interim, ongoing basis to 

assure that augmented plantings are 

made in a timely fashion. Otherwise 

operators would risk the restarting of 

their liability period because they might 

have waited too long before determining 

that a stand of woody plants would not 

meet the density standard applicable to 

woody plants. While the commenters 

acknowledged that interim vegetation 

sampling could properly be used under 

their proposal to demonstrate 

achievement of the success standard 

without the need for augmented 

planting, the commenters stressed that 

operators would still have to resample 

the same stand in the last year of the 

responsibility period to demonstrate 

revegetation success under revised 

§ 816.116(c)(3). Commenters stated that, 

in their experience, if interim vegetation 

monitoring confirms the operator has 

established appropriate woody plant 

density and has met the revegetation 

success standard prior to year ten, the 

woody plant density will be the same or 

better in year ten. The regulatory 

authority could also confirm the 

required woody plant density at the 

mandatory qualitative final field 

inspection for bond release. 

Accordingly, the commenters proposed 

revising the language of 

§ 816.116(c)(3)(i) to allow operators to 

sample revegetation for areas approved 

for other uses identified in 

§ 816.116(b)(3), (4), and (5) in any one 

year after year six of the responsibility 

period. These commenters maintained 

that this suggested change would also 

encourage diversity of both species and 

land uses on reclaimed lands. 

Still another commenter concluded 

that there was no benefit to delaying 

measurement of revegetation success for 

the other land uses identified in 

§ 816.116(b)(3), (4) and (5) until the last 

year of the responsibility period. This 

commenter indicated that its conclusion 

was supported by the same rationale 

that OSM had used in its 2005 preamble 

to justify proposing reduction of the 

evaluation period for these other land 

uses from the last two years to the final 

year of the responsibility period. For 

example, the commenter reasoned that 

once woody plants are established, their 

density and cover is not highly variable 

from year to year as they are not 

sensitive to short-term weather 

variations. Forest-related ecosystems 

may therefore be expected to improve as 

they mature since a positive 

relationship exists between time and 

vegetative cover. Furthermore, whatever 

the year during which a land use 

involving woody plants meets its 

required success standards, the 

regulatory authority will have to inspect 

that land again at bond release to ensure 

that the land use is still functioning as 

intended. In addition to there being no 

perceived benefit to delaying the 

measurement of revegetation success 

required by § 816.116(c)(3) until the last 

year of the responsibility period, the 

commenter stated that the inconsistent 

timing requirements for measuring the 

revegetation success of both grazing 

land, pasture land, cropland and other 

land uses may further cause an added 

and unnecessary burden for measuring 

vegetation in large areas. The other land 

uses identified in § 816.116(b)(3), (4), 

and (5) often constitute only a small 

proportion of larger surrounding tracts 

devoted to grazing, pasture or cropland. 

For example, grazing tracts often 

include interior wetlands and 

woodlands. While these grazing tracts 

could have been measured in any two 

years after year six of the responsibility 

period under OSM’s proposed rule, 

wetlands and woodlands, as other land 

uses, could only be measured in the 

final year of the responsibility period. 

Therefore, to make the timing of success 

measurements consistent for all land 

uses, to reduce the burden of measuring 

in different years for several uses in the 

same inclusive bond release tract, and 

because of the lack of annual variability 

in woody plant cover, the commenter 

recommended that ‘‘the-growing-seasonof-the-last-year’’ provision be struck 

from the proposed regulation. By this 

proposal, we understand the commenter 

to be also proposing that OSM amend 

§ 816.116(c)(3)(i) to allow sampling of 

revegetation success on semi-arid areas 

with the other uses identified in 

§ 816.116(b)(3), (4), and (5) in any year 

after year six of the responsibility 

period. 

We do not accept these commenters’

proposal. As discussed in our 2005 

Federal Register notice, we proposed to 

amend § 816.116(c)(3)(i) to make the 

sampling timeframes for measurement 

of revegetation success in semi-arid 

areas consistent with the requirements 

of § 816.116(c)(2). Section 816.116(c)(2), 

governing humid areas, continues to 

require evaluation of revegetation 

success for land uses other than pasture 

land, grazing land or cropland in the 

last year of the responsibility period. 

The 1988 revision of § 816.116(c)(2) 

provided that, for humid areas, the 

revegetation success standards for 

postmining land uses other than grazing 

land, pasture land, and cropland be 

equaled or exceeded during the growing 

season of the last year of the 

responsibility period. Supporting this 

revision, which was a relaxation of the 

prior standard adopted in 1979 (‘‘last 

two consecutive years of the 

responsibility period’’), we reasoned 

that, in a forest ecosystem, a positive 

relationship exists between time and 

vegetative cover. Therefore, we 

concluded that, for forest ecosystems, 

the last year of the responsibility period 


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would provide an accurate 

measurement of revegetation success. 53 

FR 34641. While forest ecosystems may 

develop at slower rates in semi-arid 

areas, in both humid and semi-arid 

areas a positive relationship exists 

between time and vegetative cover. And 

while we did not specifically discuss 

the matter in the 1988 preamble, the 

same positive relationship between time 

and vegetative cover exists for shrub 

land ecosystems in both humid and 

semi-arid areas. Consequently, for both 

areas, the last year of the responsibility 

period would be the best time to 

accurately measure revegetation 

success. For the reasons discussed 

above, we believe that the most 

appropriate time to evaluate 

revegetation success for forest and shrub 

lands in semi-arid areas is during the 

last year of the responsibility period. We 

are retaining the proposed changes to 

§ 816.116(c)(3) in our final rule. 

We further believe that the 

commenters who gave the example 

involving the measurement of 

revegetation success for a large tract 

with mixed land uses miscalculated the 

number of sampling events required of 

each land use for bond release under 

our prior rule. While that rule would 

have required the sampling of 

vegetation in the same two years for a 

large tract with mixed land uses, the 

total number of required sampling 

events for those two years would be a 

minimum of four—two sampling events 

for grazing land, etc., and two for any 

of the other land uses of § 816.116(b). 

Commenters were correct that our 

proposed revision to § 816.116(c)(3)(i) 

might require a total of three years of 

sampling for a large tract with mixed 

land uses. The proposed revision 

would, however, for these other land 

uses reduce the number of years that 

operators must measure revegetation 

success from two to one years. This 

constitutes a 50 percent reduction in the 

operators’ sampling burden. This 

burden is not significant as is suggested 

by one comment stating that some 

operators voluntarily monitor woody 

plant stocking on an ongoing basis and 

do not consider the monitoring to be 

burdensome. And the commenters are 

incorrect in their suggestion that the 

only way they could limit their 

sampling effort to two years would be to 

sample in years nine and ten. Under the 

revised rule, an operator conducts the 

first sampling event in either years 

seven, eight, or nine for grazing land 

and then, in year ten, conducts the 

second sampling event for grazing land 

and the only sampling event for fish and 

wildlife habitat. Finally, commenters 

provided no information supporting 

their assertion that allowing 

measurement of revegetation success 

during any year after year six would 

encourage both land use and species 

diversity on reclaimed lands. Nor do we 

have any reason to believe that our 

revision to § 816.116(c)(3) will adversely 

affect land use or species diversity, as 

our prior regulation at § 816.116(c)(3) 

also required sampling during the last 

year of the responsibility period. 

In sum, we believe that the new 

requirement that operators must 

conduct evaluation of revegetation 

success for the other land uses 

identified in § 816.116(b) during the last 

year is not overly burdensome and will 

ensure national consistency in 

evaluating revegetation success for these 

other uses both in humid and semi-arid 

areas. 

Other Comments 

Although we did not propose any 

revisions to the timeframes of 

§ 816.116(c)(2) that govern the sampling 

for revegetation success in humid areas, 

ten commenters proposed eliminating 

the current provision of 

§ 816.116(c)(2)(i) that prohibits 

sampling in the first year of the 

responsibility period. These 

commenters based this proposal on their 

longstanding experience in evaluating 

revegetation efforts and their belief that 

such a change would allow operators in 

some States the opportunity to earlier 

achieve both phase II and phase III bond 

release. The commenters asserted that 

the past twenty years of SMCRA 

reclamation had resulted in a general 

consensus in the Midwest that the first 

year of reclamation is the most difficult 

in terms of successfully meeting 

required target yields. Citing their 

various discussions over the years with 

State and Federal regulatory personnel, 

academia, consultants and operators, 

the commenters knew no sound reason 

for not measuring revegetation success 

in the first year. These commenters did 

note that the preamble in the September 

7, 1988, Federal Register suggests that 

a beneficial fertilization carryover effect 

from initial seeding may produce 

inaccurate results in the first year. 

However, the same preamble discussion 

also concludes that any carry-over effect 

from the initial fertilization would be 

insignificant when compared to normal 

annual fertilization practices. 

Accordingly, the commenters concluded 

that the first-year exception is 

unnecessary. They asserted that 

allowing the first year to be used for 

proof of productivity for pasture land, 

grazing land, and cropland would allow 

operators the opportunity in some States 

to more quickly achieve both phase II 

and phase III bond release. In light of 

what they perceived as the current 

difficulty in obtaining surety bonds in 

the mining industry, the commenters 

suggested that earlier bond release 

would provide significant relief in 

obtaining surety bonds. Also, the 

commenters maintained that the 

opportunity for earlier proof of 

productivity and bond release would 

provide operators an incentive to 

improve their methods of handling 

soils. 

We appreciate the interest expressed 

by these commenters in proposing that 

we revise the provision in 

§ 816.116(c)(2)(i) that prohibits 

measuring vegetation in the first year of 

the responsibility period for humid 

areas. However, we did not consider 

this revision in our 2005 proposed rule, 

and it falls far beyond the scope of the 

current rulemaking. To include it in the 

current rulemaking would necessitate a 

reopening of the comment period on the 

proposed rule resulting in further delay 

in implementing its proposed changes. 

For this reason, we are not accepting the 

commenters’ proposal at this time. We 

will, however, take the proposal under 

advisement and may include it in a 

future rulemaking. 

Nonetheless, we would like to take 

this opportunity to address apparent 

confusion in some of the comments 

supporting this suggested change to 

§ 816.116(c)(2)(i). Several of these 

comments suggested that revising 

§ 816.116(c)(2)(i) to allow evaluation of 

revegetation success for pasture land, 

grazing land, and cropland in the first 

year would allow operators in some 

States to earlier achieve both phase II 

and Phase III bond release. In fact, 

allowing evaluation of revegetation 

success for pasture land, grazing land, 

and cropland in the first year would not 

affect when either phase II or III bond 

release could occur. The Federal 

regulations governing standards for 

success in § 816.116, including 

§ 816.116(c)(2)(i), do not apply to phase 

II bond release. For the land uses 

covered by § 816.116(c)(2)(i), 

§ 800.40(c)(2) allows phase II bond 

release to be granted when topsoil has 

been redistributed (if it is not included 

as part of a phase I bond release), and 

vegetation is established. There is no 

regulatory requirement to meet cover or 

production standards for a phase II bond 

release. Therefore, allowing 

measurement of cover and production 

in the first year has no effect on when 

a phase II bond release can occur. In 

turn, phase III bond release cannot be 

granted sooner than five years after the 

last augmented seeding or planting, 


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regardless of when measurement occurs. 

Under the current Federal regulations, 

the operator then has four years prior to 

the end of the five year responsibility 

period to conduct revegetation sampling 

and demonstrate revegetation success. 

Therefore, even if we did allow 

measurement of cover and production 

in the first year after the last augmented 

seeding as the commenters proposed, 

the period of responsibility for phase III 

bond release would still last five years 

from the last augmented seeding. 

Two commenters also suggested that 

we develop incentives to use the five 

forestry reclamation techniques 

recommended by the Appalachian 

Regional Reforestation Initiative (ARRI) 

in its recent reforestation brochure. 

These commenters warned that we need 

additional initiatives to encourage 

reforestation efforts, and indicated that 

there has been extensive research 

conducted on how to better reforest 

reclaimed mined land. Contrasting the 

leading role that ARRI has taken in 

promoting enhanced reforestation 

techniques that are based on this 

research, the commenters emphasized 

that regulatory requirements have too 

often acted as a disincentive for 

operators’ selecting forestry as a 

postmining land use. 

In response to this comment, we 

recognize that forest fragmentation and 

the reduction of biodiversity are valid 

concerns and have endeavored to 

address them in several ways. The 

current revisions to the regulations 

governing topsoil replacement and 

revegetation would, among other things, 

encourage species diversity and remove 

an impediment to the reforestation of 

reclaimed land. In addition, our agency 

took the lead in establishing the ARRI 

for the purpose of restoring forests on 

lands disturbed by coal mining 

operations in the eastern United States. 

ARRI is a coalition of diverse groups 

comprised of OSM and State 

government agencies that regulate coal 

mining in Kentucky, Maryland, Ohio, 

Pennsylvania, Tennessee, Virginia, and 

West Virginia. It advocates a specific 

forestry reclamation approach that, 

when implemented properly, can 

provide significant cost savings to mine 

operators while providing for greater 

survival and productivity of planted 

trees, enhancing natural succession, and 

reducing erosion, sedimentation, and 

downstream flooding. The industry, the 

environmental community, landowners, 

academics, and other governmental 

agencies have recognized these benefits. 

At the present time, however, it is 

unclear what additional incentives 

might be appropriate to promote the 

reforestation of mined lands. Interested 

parties can access information about 

ARRI on the Internet at http:// 

arri.osmre.gov/PDFs/ARRI.brochure.pdf. 

We received one final comment that 

questioned the appropriateness of using 

‘‘ground cover,’’ as defined in the 

Federal regulations at § 701.5, instead of 

using perennial vegetative cover for 

evaluating revegetation success under 

§ 816.116(a)(2). The commenter further 

opposed including annual species and 

litter (dead plant material) in 

evaluations of ground cover, as is 

allowed under the current Federal 

definition of ‘‘ground cover,’’ and 

contended that revegetation success 

evaluations should focus on the cover of 

perennial species. 

We had not proposed revising the 

definition of ‘‘ground cover’’ because 

that definition was not identified as an 

issue either during prior revegetation 

outreach efforts or consultations with 

regulatory authorities. However, should 

a regulatory authority propose revising 

its definition of ‘‘ground cover’’ to 

include only vegetative cover or 

perennial cover and demonstrate that 

the new definition is no less effective 

than the Federal definition in 

implementing the requirements of 

SMCRA, we would approve the use of 

such a definition. 

What effect will this rule have on 

approved State programs, on Federal 

programs, and on Indian lands? 

Following publication of the final 

rule, we will evaluate the State 

programs approved under section 503 of 

SMCRA and 30 CFR part 732 to 

determine if any changes in those 

programs are necessary to maintain 

consistency with Federal requirements. 

When we determine that a State 

program should be amended, we will 

notify the State in accordance with the 

provisions of § 732.17(d). 

We have made a preliminary 

determination to require that State 

programs with provisions authorizing 

undeveloped land as a postmining land 

use adopt success standards for 

undeveloped land as required by 

§§ 816.116(b)(3) and 817.116(b)(3). We 

have also made a preliminary 

determination that, with regard to the 

other provisions in the final rule, States 

may adopt similar provisions if they 

choose to, but will not be required to 

amend their programs. 

Through cross-referencing, this final 

rule applies to all lands in States with 

Federal regulatory programs. States with 

Federal regulatory programs include 

Arizona, California, Georgia, Idaho, 

Massachusetts, Michigan, North 

Carolina, Oregon, Rhode Island, South 

Dakota, Tennessee and Washington. 

Those programs are codified at 30 CFR 

parts 903, 905, 910, 912, 921, 922, 933, 

937, 939, 941, 942, and 947, 

respectively. 

The revisions to 30 CFR parts 816 and 

817 apply to Indian lands as a result of 

the cross-referencing in § 750.16. 

III. Procedural Matters and Required 

Determinations for This Rule 

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 redistribution 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 

the time needed to conduct revegetation 

evaluations and obtain bond release. 

The estimated reduction in costs is 

nonquantifiable. 

We estimate that approximately two 

State regulatory authorities will modify 

their standards for revegetation success 

during a year, requiring approximately 

100 hours to complete each 

modification. Under the rule, however, 

the estimated savings will be limited to 

the costs of submitting the proposed 

modification to OSM for approval as 

required by §§ 816.116(a)(1) and 

817.116(a)(1) prior to revision. Those 

costs usually include the expense 

involved in preparing a transmittal 

letter and the costs of transmission to 

OSM. 

The principal savings to the Federal 

government will result from the 

elimination of the need to draft, review, 

approve, and publish a proposed rule 

announcing receipt of, and seeking 

comment on the modification, and the 

need to draft, review, approve, and 

publish a final rule announcing OSM’s 

decision on the State submitted 

modification. We estimate total annual 

savings of approximately $10,000–

$12,000 per year. This estimate is based 

on the cost of drafting, reviewing, and 

approving two proposed and two final 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 51705 

rules and the publication cost of $465 

per page in the Federal Register. 

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 redistribution 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 redistribution 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.). As previously 

discussed, 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. 1531 et seq.) is not 

required. 

Executive Order 12630—Takings 

The revisions to the regulations 

governing topsoil redistribution 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 

redistribution and revegetation success 

standards will 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 an environmental 

assessment (EA) and has made a finding 

that this rule will 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). The EA 

and finding of no significant impact are 

on file in the OSM Administrative 

Room, room 101, 1951 Constitution 

Avenue, NW., Washington, DC 20240. 

List of Subjects 

30 CFR Part 816 

Environmental protection, Reporting 

and recordkeeping requirements, 

Surface mining. 

30 CFR Part 817 

Environmental protection, Reporting 

and recordkeeping requirements, 

Underground mining. 

Dated: July 12, 2006. 

R.M. ‘‘Johnnie’’ Burton, 

Director, Minerals Management Service, 

Exercising the delegated authority of the 

Assistant Secretary, Land and Minerals 

Management. 

■ Accordingly, we are amending 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 Public Law 98–146. 

■ 2. In § 816.22, revise paragraphs (d)(1) 

introductory text and (i) to read as 

follows: 

§ 816.22 Topsoil and subsoil. 

* * * * * 

(d) * * * 

(1) Topsoil materials and topsoil 

substitutes and supplements removed 

under paragraphs (a) and (b) of this 

section shall be redistributed in a 

manner that—

(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 § 816.116 as follows: 

■ A. Revise paragraph (a)(1); 

■ B. Revise the first sentence of 

paragraph (b)(3) introductory text; 

■ C. Add five sentences to the end of 

paragraph (b)(3)(ii); 

■ D. Revise paragraphs (c)(3)(i) and (ii). 

The revisions read as follows: 


jlentini on PROD1PC65 with RULES2
51706 Federal Register / Vol. 71, No. 168 / Wednesday, August 30, 2006 / Rules and Regulations 

§ 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, described in 

writing, and made available to the 

public. 

(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 two 

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 percent of 

that period is less than 20 percent 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 two 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) in this section. 

The vegetation parameters identified in 

paragraph (b) of this section for grazing 

land, pasture land, or cropland shall 

equal or exceed the approved success 

standard during the growing season of 

any two years after year six 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 § 817.22, revise paragraphs (d)(1) 

introductory text and (d)(1)(i) to read as 

follows: 

§ 817.22 Topsoil and subsoil. 

* * * * * 

(d) * * * 

(1) Topsoil materials and topsoil 

substitutes and supplements removed 

under paragraphs (a) and (b) of this 

section shall be redistributed in a 

manner that—

(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 § 817.116 as follows: 

■ A. Revise paragraph (a)(1); 

■ B. Revise the first sentence of 

paragraph (b)(3) introductory text; 

■ C. Add five sentences to the end of 

paragraph (b)(3)(ii); 

■ D. Revise paragraphs (c)(3)(i) and (ii). 

The revisions read as follows: 

§ 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, described in 

writing, and made available to the 

public. 

* * * * * 

(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 two 

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 percent of 

that period is less than 20 percent 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 two 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) in this section. 

The vegetation parameters identified in 

paragraph (b) of this section for grazing 

land, pasture land, or cropland shall 

equal or exceed the approved success 

standard during the growing season of 

any two years after year six 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. 06–7249 Filed 8–29–06; 8:45 am] 

BILLING CODE 4310–05–P 


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