[Federal Register Volume 71, Number 168 (Wednesday, August 30, 2006)]
[Rules and Regulations]
[Pages 51684-51706]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-7249]



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Part III





Department of the Interior





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Office of Surface Mining and Enforcement



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30 CFR Parts 816 and 817



Topsoil Redistribution and Revegetation Success Standards; Final Rule

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

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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.

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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: <a href="/cdn-cgi/l/email-protection#680a18071b1c040d28071b051a0d460f071e"><span class="__cf_email__" data-cfemail="6e0c1e011d1a020b2e011d031c0b40090118">[email protected]</span></a>.

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 Sec. Sec.  816.111 through .116 and Sec. Sec.  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 Sec.  816.116 and Sec.  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 
Sec.  816.22(d)(1) and Sec.  817.22(d)(1); the success standards and 
sampling techniques requirements at Sec.  816.116(a)(1) and Sec.  
816.117(a)(1); the land use categories subject to the success standards 
at Sec.  816.116(b)(3) and Sec.  817.116(b)(3); the revegetation 
success standards for trees and shrubs at Sec.  816.116(b)(3)(ii) and 
Sec.  817.116(b)(3)(ii); and the timing of revegetation success 
measurements at Sec.  816.116(c)(3)(i) and (ii) and Sec.  
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 Sec.  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 Sec.  816.22(d)(1)(i) that specify the 
manner

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in which topsoil material removed under Sec.  816.22(a) or (b) must be 
redistributed. Final Sec.  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 Sec.  
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 Sec.  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 Sec.  
816.22(d)(1)(i) provision, which they interpreted as requiring that 
topsoil always be redistributed to a uniform thickness. These 
commenters stated that uniform soil thickness tends to promote a 
limited number of species in the vegetative cover while variable soil 
thicknesses tend to promote a more diverse vegetative community. The 
truth of this proposition has been born out by the experience of OSM 
agronomists and is consistent with well-established principles of soil-
plant relationships. As proposed, we have revised our regulations at 
Sec.  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 Sec.  816.22(d)(1)(i). This 
insertion should make clear that the uniform soil thickness provision 
is a function of the approved postmining land use, contours, and 
surface water drainage systems, and is not, in itself, an inflexible 
requirement.
    While the prior uniform topsoil redistribution standard of Sec.  
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 Sec.  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 Sec.  
816.116(d)(1)(i) applies to topsoil supplements and substitutes already 
allowed under Sec.  816.22(a) and (b).
What were the comments submitted on our proposed revisions to Sec.  
816.22(d)(1)(i)?
    Seventeen commenters supported our proposed revision to the topsoil 
redistribution requirements of Sec.  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 Sec.  
816.22(d)(1). They suggested that we further amend Sec.  816.22(d)(1) 
to apply to topsoil and topsoil supplements and substitutes removed 
under paragraphs Sec.  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 Sec.  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 Sec.  816.22(d)(1) 
to expressly allow for removed material, be it topsoil, topsoil 
supplements, or topsoil substitutes, to

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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 Sec.  816.22(d)(1) to the replacement of topsoil 
supplements or to substitutes currently allowed under Sec.  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 Sec.  816.22(d)(1) as applying to both topsoil 
material removed under Sec.  816.22(a) and to topsoil supplements or 
substitutes removed under Sec.  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 Sec.  816.22(d)(1)(i) 
applies to topsoil supplements and substitutes already allowed under 
Sec.  816.22(a) and (b), we are accepting the comment and revising 
Sec.  816.22(d)(1) as the commenters suggested. Accordingly, as set 
forth above, final Sec.  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 Sec.  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 Sec.  
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 Sec.  
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 Sec.  816.22(d)(1)(i). Instead of 
replacing all the soil that was lost to strip-mining, the commenter 
alleged that, under revised Sec.  816.116(d)(1)(i), coal companies 
could replace only some of the removed soil. The commenter opposed the 
change to Sec.  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 Sec.  816.22(d)(1)(i) will result in improved and more diverse 
reclamation.
    Another commenter observed that the proposed revision to Sec.  
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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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 Sec.  816.22(d)(1)(i) will require appropriate 
planning by operators. As expressly stated in final Sec.  
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 Sec.  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 Sec.  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 Sec.  
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 toxic-
forming 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 Sec.  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 Sec.  816.22(d)(1)(i) properly 
applies to topsoil supplements and substitutes and have revised the 
regulation to clarify this point. Accordingly, final Sec.  816.22(d)(1) 
will apply to both topsoil removed under Sec.  816.22(a) and topsoil 
supplements and substitutes used in accordance with Sec.  816.22(b).
    Another commenter indicated that the proposed revision to Sec.  
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 post-mining 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 Sec.  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 Sec.  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 Sec.  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 non-compliance 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 Sec.  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 Sec.  816.22(d)(1)(i) would have on the restoration of 
premine land

[[Page 51688]]

capability and the negative effect that the revised regulation would 
have on one of the basic missions of SMCRA-assuring 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
816.22(d)(1)(i) adequately address the concerns underlying these 
comments. The new provisions of Sec.  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 Sec.  816.22(d)(1)(i).

2. Section 816.116(a)(1): Federal Approval of Revegetation Success 
Standards

What are the revisions to Sec.  816.116(a)(1)?
    We have revised Sec.  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 Sec.  
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 Sec.  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.


[[Page 51689]]


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 Sec.  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 post-mining 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 Sec.  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 Sec.  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 Sec.  
816.116(a)(1) will not cause greater divergence among the States that 
are already required to meet the minimum nationwide requirements of 
Sec.  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 Sec.  816.116(a)(2) and (b) continue to 
apply. While complying with those nationwide requirements, the State 
regulatory authorities will, under revised Sec.  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. Sec.  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. 
Sec.  800.40(b)(1). Before final bond release, any person with a valid 
legal interest may file objections and

[[Page 51690]]

request a public hearing. Sec.  800.40(f). The State's regulatory 
program must also provide for administrative hearings and judicial 
review. Sec. Sec.  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 Sec.  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 Sec.  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. Sec.  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 Sec.  
780.22 (requiring submission of the geologic data and overburden 
characteristics), Sec.  780.21(d) (requiring assessment of the probable 
hydrologic consequences of mining), and Sec.  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. Sec. Sec.  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 Sec.  816.116(a)(1).
What were the comments submitted on our proposed revisions to Sec.  
816.116(a)(1)?
    In response to our proposed rule, we received comments from 16 
commenters supporting removal of the approved program requirement from 
Sec.  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 Sec.  
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 
Sec.  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 Sec.  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 Sec.  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

[[Page 51691]]

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 Sec.  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 Sec.  
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 Sec.  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 Sec.  773.6(a) and (b)(2), and as under the 
provisions for public involvement in bond release at Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  816.116(a)(1) was unnecessarily 
burdensome in terms of

[[Page 51692]]

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 Sec.  
816.116(a)(1), final Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  816.116(a)(1). All approved 
programs have counterparts to Sec.  816.116(a)(2) and (b). Accordingly, 
the success standards and statistically valid sampling techniques 
selected by a State under final Sec.  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 Sec.  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 Sec.  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 Sec.  
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

[[Page 51693]]

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 Sec.  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 
Sec.  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 
Sec.  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 Sec.  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 Sec.  816.116(a)(1) require 
States to select revegetation success standards and sampling techniques 
subject to the general conditions of Sec.  816.116(a)(2) and (b). In 
turn, Sec.  816.116(a)(2) specifically requires that State-selected 
sampling techniques for measuring success use a 90-percent statistical 
confidence interval and Sec.  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 Sec.  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 Sec.  
816.116(a)(1) will jeopardize State compliance with the criteria of 
Sec.  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 Sec.  
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 Sec. Sec.  
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 Sec.  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 time-consuming 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 Sec.  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 Sec.  816.116(a)(1) does not restrict or in any way 
impair our continuing authority under Sec.  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

[[Page 51694]]

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 Sec.  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 
Sec.  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 Sec.  
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 Sec.  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 Sec.  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 
Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 51695]]

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 Sec.  816.116(a)(2). This requirement will not 
be affected by the revision to Sec.  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 Sec.  
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 Sec.  816.116(b)(3)?
    We have revised Sec.  816.116(b)(3) to add undeveloped land as one 
of the land uses subject to that section's success standards. Revised 
Sec.  816.116(b)(3) 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 Sec.  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 Sec.  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 Sec.  816.133. However, unlike all the other land use 
categories listed in Sec.  701.5, undeveloped land does not have 
success standards specified in Sec.  816.116(b). Under this final rule, 
the inclusion of undeveloped land among the land uses subject to the 
revegetation success standards of Sec.  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 Sec.  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 Sec.  
816.116(b)(3)?
    Eight commenters supported the proposed revision of Sec.  
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 Sec.  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 Sec.  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 Sec.  
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

[[Page 51696]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  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 Sec.  701.5, undeveloped land does not have 
specified revegetation success standards in Sec.  816.116(b). The 
inclusion of undeveloped land as one of the land uses subject to the 
success standards of Sec.  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 Sec.  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

[[Page 51697]]

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 Sec.  816.116(b).

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

What are the revisions to Sec.  816.116(b)(3)?
    We are further revising the revegetation success provisions of 
Sec.  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 Sec.  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 Sec.  816.116(b)(3) for 
three reasons: shelter belts have never been included among the land 
use categories listed in Sec.  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 Sec.  816.116(c)(4).
What were the comments submitted on our proposed revision to Sec.  
816.116(b)(3)?
    Ten commenters supported removing shelter belts from the land uses 
listed in Sec.  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 Sec.  
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 Sec.  
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 Sec.  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 Sec.  816.116(b)(3) triggers a statistical evaluation of 
shelter belts under Sec.  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 Sec.  
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, Sec.  816.97(h) continues to require that, where cropland 
is to be the postmining land use and where it is appropriate for 
wildlife- and crop-management 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, Sec.  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 Sec.  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 Sec.  
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 Sec.  816.116(b)(3)(ii)?
    We have made three minor revisions to Sec.  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 Sec.  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

[[Page 51698]]

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 Sec.  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 Sec.  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 tree-counting 
requirements of the 80/60 rule. With our first revision to Sec.  
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 five-year 
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 Sec.  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 self-regeneration 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 Sec.  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 Sec.  
816.116(b)(3)(ii)?
    Fourteen commenters supported the proposed revisions to Sec.  
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 Sec.  816.116(b)(3)(ii) would reduce some of the 
sampling problems and unnecessary

[[Page 51699]]

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 Sec.  
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 one-year-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 Sec.  
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 Sec.  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 Sec.  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 Sec.  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 Sec.  816.116(c)(3)(i) and (ii)?
    We have revised Sec.  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 Sec.  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 Sec.  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 Sec.  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 five- and ten-year 
responsibility periods. In 1983, we revised our humid area regulations, 
redesignated as Sec.  816.116(c)(2)(i), to require that revegetation 
success standards be equaled or exceeded during the growing season of 
the last year of the five-year responsibility period, or, if required 
by the regulatory authority, during the growing season of the last two 
consecutive years of responsibility period. We did not, however, change 
the semi-arid area regulation at Sec.  816.116(c)(3)(i), which 
continued to require that the revegetation success standard be equaled 
or exceeded for the last two consecutive years of the ten-year 
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 Sec.  
816.116(c)(2)(i) setting forth the periods for measuring revegetation 
success for humid areas with a five-year

[[Page 51700]]

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 Sec.  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-two-consecutive-years-of-the-
responsibility-period'' standard, the 1988 preamble noted that the 
earlier 1983 preamble had cited the effect of year-to-year [climatic] 
variability on crop yields or other parameters that are highly 
sensitive to such conditions as justifying the requirement of two 
consecutive years of revegetation success. 48 FR 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-two-consecutive-years-of-
the-responsibility-standard,'' 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 five-year 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 
Sec.  816.116(c)(3)(i) to comport with our regulations for humid areas 
at Sec.  816.116(c)(2)(i). The revised rules for semi-arid areas 
provide that the vegetation parameters identified in Sec.  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 Sec.  816.116(c)(3)(i) for areas receiving 26 inches or 
less of annual precipitation similar to those of Sec.  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 Sec.  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 
Sec.  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 Sec.  
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 
any-two-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

[[Page 51701]]

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, Sec.  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 Sec.  
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 semi-arid areas approved for the ``other uses'' 
identified in Sec.  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

[[Page 51702]]

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 Sec.  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 Sec.  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 Sec.  
816.116(c)(3)(i) to allow operators to sample revegetation for areas 
approved for other uses identified in Sec.  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 Sec.  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 Sec.  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 
Sec.  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-season-of-the-last-year'' provision be struck from 
the proposed regulation. By this proposal, we understand the commenter 
to be also proposing that OSM amend Sec.  816.116(c)(3)(i) to allow 
sampling of revegetation success on semi-arid areas with the other uses 
identified in Sec.  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 Sec.  
816.116(c)(3)(i) to make the sampling timeframes for measurement of 
revegetation success in semi-arid areas consistent with the 
requirements of Sec.  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 Sec.  
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

[[Page 51703]]

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 
Sec.  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 Sec.  816.116(b). Commenters were correct that 
our proposed revision to Sec.  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 Sec.  
816.116(c)(3) will adversely affect land use or species diversity, as 
our prior regulation at Sec.  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 Sec.  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 
Sec.  816.116(c)(2) that govern the sampling for revegetation success 
in humid areas, ten commenters proposed eliminating the current 
provision of Sec.  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 Sec.  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 Sec.  816.116(c)(2)(i). Several of these comments suggested 
that revising Sec.  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 Sec.  816.116, including Sec.  816.116(c)(2)(i), do not 
apply to phase II bond release. For the land uses covered by Sec.  
816.116(c)(2)(i), Sec.  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,

[[Page 51704]]

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 
Sec.  701.5, instead of using perennial vegetative cover for evaluating 
revegetation success under Sec.  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 Sec.  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 
Sec. Sec.  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 Sec.  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 Sec. Sec.  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

[[Page 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.

0
Accordingly, we are amending 30 CFR parts 816 and 817 as set forth 
below.

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

0
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.


0
2. In Sec.  816.22, revise paragraphs (d)(1) introductory text and (i) 
to read as follows:


Sec.  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;
* * * * *

0
3. Amend Sec.  816.116 as follows:
0
A. Revise paragraph (a)(1);
0
B. Revise the first sentence of paragraph (b)(3) introductory text;
0
C. Add five sentences to the end of paragraph (b)(3)(ii);
0
D. Revise paragraphs (c)(3)(i) and (ii).
    The revisions read as follows:

[[Page 51706]]

Sec.  816.116  Revegetation: Standards for success.

    (a) * * *
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, 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

0
4. The authority citation for part 817 continues to read as follows:

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


0
5. In Sec.  817.22, revise paragraphs (d)(1) introductory text and 
(d)(1)(i) to read as follows:


Sec.  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;
* * * * *

0
6. Amend Sec.  817.116 as follows:
0
 A. Revise paragraph (a)(1);
0
B. Revise the first sentence of paragraph (b)(3) introductory text;
0
C. Add five sentences to the end of paragraph (b)(3)(ii);
0
D. Revise paragraphs (c)(3)(i) and (ii).
    The revisions read as follows:


Sec.  817.116  Revegetation: Standards for success.

    (a) * * *
    (1) Standards for success and statistically valid sampling 
techniques for measuring success shall be selected by the regulatory 
authority, 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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