FEDERAL REGISTER: 53 FR 34635 (September 7, 1988)

DEPARTMENT OF THE INTERIOR

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

30 CFR Parts 816 and 817

Surface Coal Mining and Reclamation Operations; Permanent Regulatory Program; Revegetation

ACTION: Final rule. 

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSMRE) of the Department of the Interior 

(DOI) is adopting final rules amending its revegetation regulations for the replanting of trees, the time period for 

measuring revegetation success, and the approval of normal husbandry practices and minimum stocking and planting 

arrangements. This action is necessary because the previous rules were found in Federal district court to have been 

promulgated without sufficient supporting evidence in the record. These changes will allow surface mining regulatory 

authorities to obtain approval for normal husbandry practices that may occur without restarting the operator's period of 

responsibility and will require the approval of State forestry and wildlife agencies for minimum stocking and planting 

arrangements. This action will allow certain trees planted during the responsibility period to be counted in the 

measurement of revegetation success and will base the determination of whether revegetation has been achieved on any 

two years, except the first year, of the responsibility period where the postmining land use is grazing land, pasture land or 

cropland. 

EFFECTIVE DATE: October 7, 1988. 

FOR FURTHER INFORMATION CONTACT: Patrick W. Boyd, Branch of Federal and Indian Programs, OSMRE, 

1951 Constitution Avenue NW., Washington, DC 20240; Telephone (202) 343-1864 (FTS or commercial). 

SUPPLEMENTARY INFORMATION: 

I. Background. 

II. Discussion of rules adopted and responses to comments. 

III. Procedural matters. 

 

I. BACKGROUND 

 On July 27, 1987, OSMRE published a notice of proposed rulemaking to amend 30 CFR Parts 816 and 817 relating to 

the standards for success in establishing postmining vegetation (52 FR 28012). Public hearings were scheduled for 

September 28, 1987, in Washington, DC; October 5, 1987, in Denver, CO; and October 12, 1987, in Pittsburgh, PA. 

Since no one requested to testify at these hearings, none were held. The comment period closed on October 5, 1987. On 

October 6, 1987, the comment period was reopened and extended through October 21, 1987, to allow additional time for 

interested parties to submit comments. During these periods OSMRE received comments from 21 commenters 

representing Federal and State agencies, coal companies, trade associations and conservation groups. 

 The provisions of Title V of the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. 1201 et 

seq., that are relevant to this rulemaking are found in sections 501, 509, 515(b) (19) and (20), 516(a)-(d) and 519. These 

sections set forth the basis for criteria for establishment of postmining vegetation, as well as the period of operator 

responsibility. Specifically, the surface mining operator is required to assume responsibility for the success of 

revegetation for either five or ten full years after the last year of augmented seeding, fertilizing, irrigation or other work 

to assure a vegetative cover at least equal to the natural vegetation of the area. SMCRA has been construed to allow the 

Secretary to apply the extended periods of responsibility to operators of underground mines, as well as to operators of 

surface mines. The five-year period of responsibility applies to areas or regions receiving an annual average precipitation 

greater than 26 inches, and the ten-year period is applicable to areas or regions where the annual average precipitation is 

26 inches or less. 

 On March 13, 1979, OSMRE published regulations implementing the permanent regulatory program required by 

SMCRA (44 FR 14902). The regulations were challenged in lawsuits brought by representatives of two States, the coal 

industry and citizen and environmental groups. These lawsuits were consolidated and heard by the U.S. District Court for 
the District of Columbia. See In Re: Permanent Surface Mining Regulation Litigation, No. 79-1144 (D.D.C. 1980). The 

coal industry contended that the provision that delayed starting a coal operator's responsibility for successful revegetation 

until the planted vegetation reached 90 percent of the natural cover lacked support in SMCRA or the legislative history. 

The district court agreed in a decision issued on February 26, 1980, and remanded the rule. In response to the district 

court ruling, OSMRE suspended the regulations insofar as they extended the period of responsibility for revegetation 

from the point at which the operators meet the revegetation standards of section 515(b)(19) of SMCRA. This action 

allowed States to permit the period of liability to begin after the last year in which the operator had completed augmented 

seeding, fertilizing, and irrigation or other work. The suspension notice also specified that the period of liability shall 

begin again wherever augmented seeding, fertilization, irrigation or other work is required or conducted on the site prior 

to bond release (45 FR 51549, August 4, 1980). 

 OSMRE published new regulations at 30 CFR 816.116(c) and 817.116(c) (48 FR 40140) on September 2, 1983. 

These regulations provided for regulatory authority approval of "selective husbandry practices." These approved 

practices were allowed to occur during the liability period without restarting the five- or ten-year period of responsibility 

for successful revegetation provided the practice was a "normal conservation practice" and was not augmented seeding, 

fertilizing, irrigation, or other work. The preamble to these regulations stated that under certain conditions the repair of 

rills and gullies, including reseeding or transplanting necessitated by such repair, can occur without extending the 

minimum period of responsibility for revegetation success. The preamble to those regulations should be consulted for 

additional background information. 

 A related provision at Section 816.116(b)(3)(ii) set minimum conditions that allowed selective planting/replanting of 

trees and shrubs during the minimum responsibility period. This planting or replanting could occur without restarting the 

responsibility period when the planting or replanting was approved as a normal husbandry practice under Section

816.116(c)(4). Furthermore, OSMRE's regulations at Section 816.116(c)(2) provided that for areas that receive more 

than 26 inches annual average precipitation, proof of revegetation success could be based on the results achieved during 

the growing season of the last year of the responsibility period. 

 Citizen and environmental groups, as well as State and industry representatives, again challenged parts of these new 

regulations in In Re: Permanent Surface Mining Regulation Litigation (II), No. 79-1144 (D.D.C. 1984) (hereafter In Re: 

Permanent (II)). The plaintiff citizen and environmental groups contended that certain provisions ran counter to the 

requirements of sections 515(b) (19) and (20) of SMCRA. The challengers argued that the repair of rills and gullies is not 

a normal conservation practice; that the rules do not sufficiently assure that the planting of trees during the period of 

responsibility is a normal husbandry practice rather than an augmentative practice prohibited by SMCRA; and that it is 

impossible to determine whether self-generation and plant succession have been achieved if success levels are met only 

for the last year of the responsibility period. On July 15, 1985, the court remanded the challenged provisions of the 

regulations because the lack of supporting evidence in the record precluded a determination that the regulations support 

the goals set forth in SMCRA. 

 Pursuant to the July 15, 1985, decision, OSMRE published on November 20, 1986, a suspension notice for those 

portions of the revegetation regulations remanded by the court (51 FR 41952). OSMRE suspended the rules concerning 

the repair of rills and gullies insofar as they allow the repair of rills and gullies to occur without restarting the period of 

responsibility for the areas of repair. OSMRE suspended the rules concerning the replanting of trees to the extent that 

they authorize the inclusion of trees and shrubs which have been in place less than the full period of responsibility in 

determining the success of stocking. Thus, OSMRE would not approve the determination of reclamation success or

authorize bond release on the basis of trees or shrubs in place less than the applicable period of liability. OSMRE 

suspended the rules concerning the period for measuring revegetation success to the extent that they allow the 

determination of revegetation success to be measured over less than the growing seasons of the last two years of the 

responsibility period in areas with an average of 26 inches or more of precipitation per year. 

 The rule changes adopted today address success standards for areas disturbed by surface mining activities, Section

816.116, and areas disturbed by underground mining activities, Section 817.116. The final revegetation rules are identical 

for surface and underground mining activities. Accordingly, in this preamble Section 816.116 will be discussed with the 

understanding that the discussion also applies to Section817.116. The rule changes respond to the court's order in In Re: 

Permanent (II) relating to the repair of rills and gullies (Section 816.116(c)(4)), the replanting of trees (Section

816.116(b)(3)(ii)) as normal husbandry practices during the operator's period of responsibility, and the period of time 

required for measuring revegetation success for areas receiving more than 26 inches annual average precipitation 
(Section 816.116(c)(2)). In addition to the amendments to the revegetation regulations remanded by the court, OSMRE 

is adopting an amendment to Section 816.116(b)(3)(i) that was considered by the citizen plaintiffs in In Re: Permanent 

(II) to be essential to assure that tree planting during the period of responsibility is not an augmentative practice. 

 In preparing the final rules and the responses to commenters, OSMRE has relied upon SMCRA, the legislative history 

of SMCRA, judicial rulings, technical literature and regulatory operating experience. 

 

II. DISCUSSION OF RULES ADOPTED AND RESPONSES TO COMMENTS 

 

SECTIONS 816.116(b)(3)(i) and 817.116(b)(3)(i) - APPROVAL OF SUCCESS STANDARDS 

 For areas where the postmining land use will be fish and wildlife habitat, recreation, shelterbelts or forest products, the 

proposed Section 816.116(b)(3)(i) required minimum stocking and planting arrangements to be specified by the 

regulatory authority on the basis of local and regional conditions and after consultation with, and approval by, the State 

agencies responsible for the administration of forestry and wildlife programs. The final rule is unchanged from the 

proposal except for one clarifying modification discussed below. 

 Several commenters supported retention of the consultation requirement only, as opposed to both consultation and 

approval. They contended that the approval requirement would dilute the program responsibility of the State regulatory 

authority, would create overlapping jurisdiction over the regulatory program and would amount to a delegation that 

would eliminate the regulatory authority's responsibility for final decisions on program-related matters. 

 OSMRE disagrees that requiring State regulatory authorities to obtain the approval of State forestry and wildlife 

agencies for minimum stocking and planting arrangements will undermine the authority or diminish the responsibility of 

the regulatory authority. The approval requirement recognizes that these State agencies are authoritative sources of 

forestry and wildlife management information that should be relied upon by State regulatory authorities. The requirement 

for obtaining State forestry and wildlife agency approval of the success standards for land uses that necessitate tree and 

shrub plantings should assure that only the husbandry practices normally undertaken in the region for the postmining land 

use occur without restarting the period of liability. The rule provides the regulatory authorities with the flexibility to set 

specific allowable practices. This is in keeping with the Act, wherein program responsibility rests with the regulatory 

authorities. 

 Another commenter suggested that OSMRE specify that the approval should be obtained on a program wide basis to 

avoid the delays and increased workload that would be associated with having to obtain approval on a permit-by-permit 

basis. OSMRE acknowledges that the proposal was not clear on this point and agrees that the rule should authorize the 

approval of State forestry and wildlife agencies for minimum stocking and planting arrangements be obtained either on a 

program wide or a permit-specific basis. It is not required that the resource agencies approve the proposed stocking and 

planting arrangements contained in each permit application as long as the permit requirements for stocking and planting 

meet the minimum program wide requirements. The final rule language has been modified to state that program wide 

approval is allowed. 

 One commenter urged that the final rule specifically mention the role of Federal land-managing agencies in approving 

minimum stocking and planting arrangements on Federal land. The commenter suggested that such specific mention 

would help to avoid conflict between Federal agencies and State regulatory authorities. OSMRE did not accept this 

comment. The current Federal lands regulations (30 CFR 740.13(c)(5)) require the regulatory authority to consult with 

the Federal land management agency and include any comments in the record of the permit decision. This requirement in 

the Federal lands rules is believed to be adequate to allow Federal land management agencies a voice in determining 

stocking levels and planting arrangements on Federal lands. 

SECTIONS 816.116(b)(3)(ii) and 817.116(b)(3)(ii) - REPLANTING OF TREES 

 The proposed rule reinstated the remanded requirement that trees and shrubs used in determining the success of 

stocking and the adequacy of the planting arrangements be healthy, have utility for the approved postmining land use and 

be in place for at least two growing seasons. The proposal also specified that at least 80 percent of the trees and shrubs 

used to determine success shall have been in place for 60 percent of the applicable period of responsibility (the 80/60 

rule). The final rule adopted today does not differ from the proposal. 
 One commenter suggested that the word "healthy" be dropped since there is no definition provided in the rules. The 

commenter suggested that there could be difficulty in establishing what is a healthy tree. OSMRE did not accept the 

suggested deletion since to do so could give the impression that unhealthy, sickly or badly damaged trees could be 

counted in measuring revegetation success. Obviously, trees that are not healthy, i.e., characterized to a significant 

degree by dieback of growing tips, abnormal leaf or needle drop, necrosis, severe mechanical damage to stems or 

branches, abnormal yellowing or other discoloration of green parts, presence of disease organisms, stunted growth, etc., 

should not be counted. However, OSMRE recognizes that there are varying degrees of health and notes that State 

regulatory authorities, in consultation with State forestry agencies, may find it appropriate to establish guidelines for 

distinguishing healthy trees and shrubs from unhealthy ones. Such guidelines must be based on local and regional 

conditions. OSMRE does not believe that a definition of the term "healthy" in this context is necessary in the Federal 

rules. 

 One commenter suggested that the criterion that trees and shrubs must have been in place at least two growing 

seasons to be counted seems irrelevant in light of the 80/60 rule. The commenter apparently assumed that the proposed 

rule would have prohibited an operator from counting a tree or shrub if it had been in place less than 60 percent of the 

responsibility period. Another commenter opposed the minimum-of-two-years-in-place standard on the basis of research 

that the commenter believed suggest a two-year establishment period is inadequate. This commenter recommended that 

the final rule require trees or shrubs to have been in place for three or more years to be counted, particularly in Western 

States. OSMRE did not accept these comments. The two-year requirement will be applicable at most to only 20 percent 

of the trees used to determine the success of stocking. The 80/60 rule requires a minimum of 80 percent to be in place for 

a longer time, either three or six years depending on annual average precipitation. OSMRE disagrees that the 

two-years-in-place criterion is irrelevant or inadequate. Allowing an operator to include in the number of trees used to 

determine success some trees (up to 20 percent of the success standard) in place less than 60 percent of the responsibility 

period, but more than two years, encourages selective replanting of trees to ensure full stocking without significantly 

weakening the basic requirement that reforestation success be based on the survival of the majority of the trees in the 

initial planting. 

 One commenter questioned why the preamble to the proposed rule contained the statement, "Under this proposed 

rule, the initial planting must occur prior to the start of the responsibility period" (52 FR 28015). In the opinion of the 

commenter, the statement may be counterproductive to reclamation by precluding an operator from establishing a ground 

cover to stabilize the site and then re-entering to plant trees within the period of responsibility. The commenter also 

indicated that, "As long as viable trees and/or shrubs are in place prior to the start of the 60 percent period, timing for 

their establishment should not penalize an operator or be a factor in determining success." Another commenter 

recommended that the regulation, not just the preamble, should state that the initial planting of trees or shrubs must occur 

prior to the start of the liability period. OSMRE did not accept either of these two comments. First, section 515(b)(20) of 

SMCRA requires the operator to assume responsibility for successful revegetation for five (or ten in drier areas) years 

after the last year of augmented seeding, fertilization, irrigation or other work necessary to establish the vegetative cover. 

OSMRE considers the initial planting of trees and shrubs, as well as planting that is in addition to normal husbandry 

practices, to be augmentative work. Thus, the period of responsibility must start after the initial tree or shrub planting, 

even if the operator plants a stabilizing ground cover prior to re-entering the site to plant trees. Second, Section

816.116(c)(1) of the permanent program rules contains the requirement that the period of responsibility shall begin after 

the last year in which augmentative work was performed. Thus, it is not necessary to repeat the requirement. 

 Two commenters suggested that the difficulty in accurately determining how long a woody plant has been in place on 

reclaimed land renders the 80/60 rule impractical to implement. OSMRE disagrees because the age of plantations or 

naturally regenerated stands can be established through photographic documentation, by tagging or marking with paint, 

by inspection reports, by preservation of sales receipts from nurseries and by other means. State regulatory authorities 

have the flexibility under the final rule to establish guidelines and procedures governing age determinations and necessary 

documentation that are appropriate to regional and local conditions. 

 One commenter opposed the change in the time-in-place standard from eight to six years for areas where the minimum 

responsibility period is ten years based on climatic conditions in his State. Based on the literature cited in the preamble to 

the proposed rule, OSMRE believes that six years generally provides an adequate period of time to establish trees on a 

site in areas where the annual average precipitation is less than 26 inches. As stated in the proposed rule preamble, the 
re-asserted here, States are free to impose more stringent requirements if appropriate based on local conditions. 

Therefore, OSMRE did not change the proposal in response to this comment. 

 One commenter urged re-evaluation of the 80/60 rule because of a belief that the rule requires even-aged stands on 

reclaimed areas, which the commenter believed "discourages natural succession processes and leads to increased 

potential for catastrophic community failure in the event of disease, infestation, fire or other event." OSMRE did not 

accept the commenter's suggestion because the issue is addressed in other portions of the revegetation rules. For 

example, the requirement in Section 816.116(b)(3)(i) that minimum stocking and planting arrangements shall be specified 

on the basis of local and regional conditions will take into account factors such as species diversity and disease control. 

Section 816.111 requires an evaluation by the regulatory authority of species diversity, regenerative capacity and 

seasonal characteristics of growth. Finally, Section 816.116(c)(4) allows disease, pest and vermin control measures 

without restarting the operator's period of responsibility. 

 Concerning the 80/60 rule, one commenter asserted that neither consideration of 80 percent of trees as sufficient to 

demonstrate revegetation success nor the deviation from the 90 percent standard of Section 816.116(a)(2) were 

supported by the cited literature. Based on the literature used to develop the rules, OSMRE believes that reforestation 

normally requires a continuing effort beyond the initial planting. Seven of the commenters specifically stated that they 

shared this belief based on their experience with reforestation and/or their familiarity with the literature. The final rule 

represents a reasonable compromise that will allow some replanting if approved as a normal husbandry practice under 

Section 816.116(c)(4). Eighty percent of the stock used in determining success is required to be in place for 60 percent 

of the responsibility period (three or six years depending on average annual precipitation). The remaining stock used in 

determining success is required to be in place for at least the last two years. Thus, the rule will, in effect, limit replanting 

to a maximum of 20 percent of the required stocking before restarting the responsibility period. 

 Section 816.116(a)(2) provides that ground cover, production or stocking shall be considered equal to the approved 

success standard when they are not less than 90 percent of the success standard. As a point of clarification, OSMRE 

intends that the 90 percent standard of Section 816.116(a)(2) be applied separately to the group of trees or shrubs that 

meet the 80 percent criteria and the group meeting the 20 percent criteria. An example should help to illustrate how the 

80/60 rule will be applied and how it will interact with the 90 percent standard. If the bond release stocking standard is 

1000 trees per acre, under Section 816.116(a)(2) the operator could meet the standard with as few as 900 trees. 

However, the minimum required 900 trees must be comprised of no fewer than 80 percent (or 720 trees) that have been 

in place for 60 percent of the responsibility period and no more than 20 percent (or 180 trees) that only meet the 

two-years-in-place standard. Trees meeting only the two-years-in-place standard cannot be substituted for those meeting 

the 60-percent-of-the-responsibility-period standard. 

 The commenter also felt that OSMRE offered no support for either the 60 percent figure or the reduction from eight 

to six years in the amount of time 80 percent of the trees or shrubs must have been in place in areas of less than 26 inches 

annual average precipitation. As explained in the preamble to the proposed rule, the 60 percent figure is used with both 

the five- and ten-year minimum responsibility periods primarily for the sake of simplicity and consistency. Additionally, 

based on the literature cited, three and six years are adequate to establish stands of trees or shrubs, either planted or 

naturally regenerated. States are free to impose more stringent requirements, if they choose, based on regional or local 

conditions. 

 The commenter suggested that OSMRE could develop a national standard for allowance of minimal replanting during 

the responsibility period and argued that a ten percent replanting effort during the liability period would allow for 

reasonable efforts to promote successful revegetation. OSMRE believes that the commenter is in basic agreement that 

some level of replanting should be allowed under the rules without restarting the responsibility period. Again, OSMRE 

takes the position that final Section 816.116(b)(3)(ii) allows sufficient replanting to encourage normal husbandry 

practices without allowing a level of replanting that would clearly be a prohibited augmentative practice. 

 The commenter further argued that OSMRE provided no justification in the proposed rule for failing to distinguish 

between commercial and noncommercial forestry and failed to provide minimum standards for determining success on 

commercial forest land. In 1983, OSMRE deleted from the revegetation rules the specific revegetation success standards 

for forestry postmining land uses. At that time, OSMRE stated that a minimum stocking level is not necessary to be 

established in the Federal rules, but that States may find it appropriate to set minimum stocking levels in their programs, 

provided the minimum stocking levels set by the States are determined on the basis of regional or local conditions and are 
no lower than would be expected or is commonly found on similar unmined lands in the area. OSMRE further stated that 

it is not necessary to make a distinction in the Federal rules between commercial and noncommercial forest land, but that 

the States may find such a distinction advantageous when setting stocking standards (48 FR 40153). Since that time, 

OSMRE has found that the States have indeed established their own stocking standards based on local conditions and 

practices. In some cases, such as in West Virginia and Kentucky, the State has simply retained the commercial forestry 

stocking standards formerly contained in the Federal rules and developed additional standards for wildlife and recreation 

postmining land uses. This support OSMRE's position that the States are both capable and willing to establish specific 

revegetation success standards for postmining and land uses involving trees and shrubs. 

 

SECTIONS 816.116(c)(2) and 817.116(c)(2) - PERIOD FOR MEASURING REVEGETATION SUCCESS 

 Proposed Section 816.116(c)(2) required the period of responsibility to continue for a minimum of five years where 

the annual average precipitation is more than 26 inches. Vegetative parameters identified in current Section 816.116(b) 

for grazing land, pasture land and cropland would, under the proposal, have to equal or exceed the approved success 

standard during the growing seasons of the last two years of the responsibility period. Revegetation rates on areas 

approved for the other uses identified in Section 816.116(b) would be required to equal or exceed the success standard 

during the growing season of the last year of the responsibility period. 

 The final rule differs from the proposal in that the final rule requires the vegetative parameters for grazing land, 

pasture land and cropland to equal or exceed the approved success standard during the growing seasons of any two years 

of the responsibility period, except the first year, while the proposal would have required successful productivity in the 

last two years of the responsibility period. 

 Five commenters urged that the final rule require that the applicable success standards for grazing land, pasture land 

and cropland be met only in the last year of the responsibility period, or last two years if required by the regulatory 

authority, which would be a reinstatement of the remanded rule. They argued that there is adequate justification for a 

one-year measurement period and that the previous rule was remanded for lack of support in the record, not because it 

was inconsistent with SMCRA or incapable of being justified. One commenter suggested that the current farm program 

rules for determining acreage yield could be used as model for measuring revegetation success. According to the 

commenter, these rules use an average of several, not necessarily consecutive, years, often including the latest year, to 

determine crop yield without penalizing the farmer for poor growing seasons. Three commenters advocated use of the 

results of a minimum of two growing seasons to determine revegetation success. One commenter felt that the final rule 

should specify minimum levels of revegetation that may be strengthened when necessary to address special situations. 

 OSMRE is retaining the requirement that revegetation success for postmining land uses involving grazing land, 

pasture land and cropland be measured over at least two growing seasons. The two-year measurement period increases 

the reliability of the overall measurement by decreasing the likelihood that success will be based on the results of an 

atypical growing season (for cropland). OSMRE did not accept the comment that the method for determining the 

average yield of various crops on a countywide basis is a good model for the method for determining revegetation 

success. The county average yields are typically based on the results of as many as ten growing seasons. Obviously in 

situations where revegetation success is measured twice in a four-year period, the same methodology cannot be 

employed. Further, since county yield averages are not calculated for all crops in all regions, there are no existing models 

on which to base methods for determining revegetation success for some crops. Further, the benefit that the commenter 

anticipates would accrue through the use of the county average yield method, i.e., accuracy without penalizing the 

grower for bad weather, is the same benefit that will result from the regulatory scheme adopted today. Concerning the 

comment that OSMRE's rules should establish minimum standards that may be strengthened when needed, the final rule 

is intended to provide just such a minimum standard: Any two years, except the first year, of the responsibility period. 

The final rule provides State regulatory authorities with the flexibility to impose a more stringent standard when 

appropriate to local or regional conditions. 

 Five commenters supported two nonconsecutive crop years for the two-year period for demonstrating soil 

productivity. One State regulatory authority was concerned that its recently approved regulatory provision allowing 

measurement of success in two nonconsecutive years would be jeopardized by the proposal to require measurement over 

the last two years of the responsibility period. 
 Under final Section 816.116(c)(2), the two growing seasons need not be consecutive. They could be two crop years in 

a particular crop-rotation sequence. Measurement in nonconsecutive years avoids unduly penalizing the operator for the 

negative effects of climatic variability. This provision is consistent with the more stringent prime farmland regulations at 

30 CFR 823.15(b)(3). In the preamble to the 1983 rule, OSMRE stated that ample justification exists for requiring two 

consecutive years of proof of revegetation success (48 FR 40156, September 2, 1983). OSMRE continues to believe 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. Under a system requiring measurement of 

revegetation success in two consecutive years, an operator would be unnecessarily penalized if bad weather in the second 

year of the measurement period caused failure to meet the revegetation success standard after it had been achieved in the 

first year. The operator has the option under the regulations adopted today to select the years in which measurement of 

revegetation success will occur in order to produce an outcome that is representative of the reclaimed area's true 

productivity. 

 As stated above, several commenters supported measuring revegetation success over any two years during the 

responsibility period. The final rule provides that productivity be determined on the basis of any two years of the 

responsibility period, except the first year. The results obtained in the first year of the responsibility period are apt to 

reflect a carryover effect from practices used initially to establish the vegetative cover. Since any carryover effect from 

fertilization and other practices used prior to the start of the responsibility period is minimal after the first year of the

responsibility period, more accurate results will be obtained by measuring revegetation success in any two of the years 

following the first year of the responsibility period. 

 In reference to the carryover effect, OSMRE stated in the preamble to the 1983 revegetation rules that data for proof 

of reclamation success from the fourth year is more apt to reflect a carryover effect from fertilization and other practices 

used to initially establish the vegetative cover (48 FR 40156, September 2, 1983). This statement was made in the 

context of supporting the requirement for measurement of revegetation success in the last year of the responsibility 

period. This statement failed to take into account the fact that annual fertilization of cropland is a normal husbandry 

practice throughout the entire country. OSMRE recognized this situation in the preamble to the 1979 revegetation 

regulations which explained that fertilization, seeding and irrigation in accordance with local agricultural practices on 

cropland or pasture land is not considered a prohibited augmentative practice (44 FR 15238, March 13, 1979). Any 

carryover effect from the initial fertilization would be insignificant compared to the effects of normal annual fertilization. 

 Five commenters opposed requiring the last year of the responsibility period to be included in measurement of 

productivity. Some felt that the requirement would put operators at the mercy of the vagaries of the weather. Others felt 

the proposal was too restrictive. Some questioned why the proposal tied together two separate concepts, the 

responsibility period and the period for measuring revegetation success. Some favored the consistency with the prime 

farmland regulations. Four commenters supported requiring that the last year of the responsibility period be included in 

the measurement of productivity. One commenter felt that bad weather in the last year of the responsibility period could 

adversely affect the vegetation rendering it less than permanent and sustainable at bond release. One commenter indicated 

that while two years "may be acceptable in some ecological situations, in acid producing areas the potential for vegetative 

failure may not manifest itself until several years after mining activities have ceased." 

 The final rule does not require inclusion of the last year of the responsibility period in the period for measuring 

revegetation success. Given the influence of weather variability on crop production, a factor long recognized by those 

involved in agriculture and agricultural studies, it is unreasonable always to require measurement of productivity in the 

last year of the responsibility period. This provision is consistent with the regulations governing reclamation of prime 

farmland at 30 CFR 823.15 and avoids penalizing the operator for the negative effects on productivity of adverse weather 

conditions. 

 The preamble to the 1983 rule stated that acceptance of data for proof of reclamation success solely from the fourth 

year would in effect shorten the responsibility period and be inconsistent with SMCRA (48 FR 40156, September 2, 

1983). The preamble also stated that in all instances the last year of responsibility should be part of the one- or two-year 

test period (ibid.). To require measurement in the last year of the responsibility period is an unnecessarily rigid standard 

given the variability of weather conditions. The important thing is that revegetation be achieved in two years out of the 

last four years of the responsibility period, not that it be achieved in any particular year, such as year four or year five.

The length of the responsibility period, established by SMCRA, is not abridged by this rule. Further, OSMRE believes 

that SMCRA makes a distinction between the responsibility period and the period for measuring revegetation success. 
While SMCRA specifies the period of the operator's responsibility, it does not specify when, within that period, success is 

to be measured. In situations where revegetation is demonstrated prior to the last year of the responsibility period, the 

final bond release inspection would still have to determine that reclamation has been achieved. 

 Concerning the comment that the last year of the responsibility period should always be measured in order to take into 

account the effects of any latent acid or toxic subsoil constituents, the commenter may be confusing the requirement to 

demonstrate revegetation success through measurement of productivity with the general revegetation requirements. 

Although the rule allows measurement of productivity prior to the end of the responsibility period, it does not state, and 

is not intended to imply, that bond will be released on an area where reclamation has not been fully achieved. As provided 

in 30 CFR 800.40(c)(3), "no bond shall be fully released * * * until the reclamation requirements of [SMCRA] and the 

permit are fully met." The final bond release inspection will evaluate achievement of the general revegetation 

requirements of 30 CFR 816.111 in addition to the success standards of Section 816.116. 

 The measurement of productivity for cropland is accomplished using data provided by the permittee. When the 

productivity of cropland has been measured earlier and success standards were met, the regulatory authority is not 

required to measure crop production during the final bond release inspection. Rather, such an inspection is a check to see 

whether the past demonstration of productivity success appears to be continuing. 

 Seven commenters supported the proposal that revegetation success for postmining land uses other than grazing land, 

pasture land and cropland be measured during the last year of the operator's responsibility period. One commenter 

suggested that revegetation success be measured in any one of the last two years of the responsibility period, and one 

commenter suggested measurement over both of the last two years. One commenter challenged the literature cited in the 

preamble to the proposal as supporting the one-year period for measuring revegetation success and pointed out that the 

Washington State forestry practices rules, concerned with replanting trees in clear-cut areas, may have little applicability 

to reforestation of severely disturbed mined areas. In addition, the commenter asserted that acceptable practices in the 

moist, fertile ecosystems of the Pacific Northwest may not be appropriate for application to the coal regions of the 

eastern United States. 

 The final rule retains the requirement that vegetative success be measured during the last year of the responsibility 

period for the postmining land uses other than grazing land, pasture land and cropland. In areas of annual average 

precipitation exceeding 26 inches, the forest ecosystem, once disturbed, reinitiates the process of vegetative succession. 

The first few years of the emergent successional pattern are prolific with respect to species density and diversity. 

Vegetative diversity and density increase with time during the five-year responsibility period. Indigenous species invade 

and become established. Therefore, given the positive relationship between time and vegetative cover, OSMRE believes 

that the last year of the responsibility period will provide an accurate measurement of revegetation success. It should be 

noted in response to the comment suggesting significant climatic differences between Washington State and the coal 

regions of the Eastern United States that the coal-producing regions of Washington State receive annual average 

precipitation that ranges from 20 to more than 60 inches, a range that coincides with the annual average precipitation in 

the coal-producing regions of the East. 

SECTIONS 816.116(c)(4) and 817.116(c)(4) - NORMAL HUSBANDRY PRACTICES 

 Proposed Section 816.116(c)(4) allowed certain husbandry practices during the responsibility period if approved by 

the regulatory authority and if the husbandry practice can be expected to continue as part of the postmining land use or if 

discontinuance of the husbandry practice after the release of permittee responsibility will not reduce the probability of 

continued revegetative success. The approved practices cannot include augmented seeding, fertilization, or irrigation 

without extending the period of responsibility. However, seeding, fertilization, or irrigation performed at levels that do 

not exceed those normally applied in maintaining comparable unmined land in the surrounding area would not be 

considered prohibited augmentative activities. The proposed minor change from the existing rule was to substitute the 

phrase "normal husbandry practices" for the phrase "normal conservation practices." This change was intended to avoid 

restricting approvable practices to manipulation of the soil alone. 

 In the preamble to the proposal, OSMRE stated, "Rather than proposing a national rule which would universally allow 

repair and reseeding of rills and gullies to be considered a normal husbandry practice, OSMRE will evaluate such 

practices if submitted by a State as a program amendment. Therefore, under the provisions of 30 CFR 732.17 governing 

State program amendments, OSMRE would consider, on a practice-by-practice basis, the administrative record 
supporting each practice proposed by a regulatory authority as normal husbandry practice. The regulatory authority 

would be expected to demonstrate (1) that the practice is the usual or expected state, form, amount or degree of 

management performed habitually or customarily to prevent exploitation, destruction or neglect of the resource and 

maintain a prescribed level of use or productivity of similar unmined lands and (2) that the proposed practice is not an 

augmentative practice prohibited by section 515(b)(20) of [SMCRA]" (52 FR 28016). 

 Final Section 816.116(c)(4) is the same as the proposed rule with the exception of the addition of the requirement for 

approval by OSMRE of proposed husbandry practices according to the State program amendment process. Two 

commenters suggested that this addition would clarify the rule by making explicit the requirement for prior approval by 

OSMRE of practices proposed by the State regulatory authority as normal husbandry practices. 

 One State regulatory authority was concerned that it would have to rejustify husbandry practices, such as the repair of 

rills and gullies, that already a part of the approved State regulatory program. If OSMRE has given specific approval to a 

State regulatory program provision that allows a particular practice to occur without restarting the operator's 

responsibility period, then there would be no need for resubmission of the record supporting that practice to OSMRE for 

approval. However, to the extent that OSMRE's approval of a State regulatory program does not address normal 

husbandry practices, the State would have to obtain OSMRE's approval under Section 816.116(c)(4) to allow specific 

normal husbandry practices to occur without restarting the responsibility period. 

 One commenter suggested that normal husbandry practices be approved at the State regulatory authority level, 

without having to seek OSMRE's approval, through the issuance of State policy guidance or the approval of individual 

reclamation plans. This would be tantamount to a reinstatement of the 1983 rule. As stated in the proposed rule 

preamble, OSMRE has reconsidered the 1983 rule and concluded it granted flexibility that is inappropriate in a national 

performance standard. Therefore, the final rule establishes the requirement that OSMRE approval must be obtained 

before husbandry practice can be allowed to occur under a State regulatory program without restating the responsibility 

period. 

 Six commenters supported allowing the repair of rills and gullies as a normal husbandry practice, and one commenter 

urged that the phrase "repair of rills and gullies" be added to the list of approved practices found in the last sentence of 

proposed Section 816.116(c)(4). Because OSMRE is convinced that the cited literature supports the repair of rills and 

gullies in some situations, the final rule establishes a framework within which a State regulatory authority may 

demonstrate that such repair is a normal husbandry practice. However, since it is also true that repair of rills and gullies is 

not always simply good husbandry, the final rule does not include the suggested addition to the list of approved practices. 

 One commenter suggested that the proposed rule did not mention the role of Federal land-managing agencies in 

approving normal husbandry practices on Federal lands. OSMRE believes that the Federal lands regulations, particularly 

30 CFR 740.11(d), which allows Federal land-managing agencies "to include in any lease, license, permit, contract, or 

other instrument such conditions as may be appropriate to regulate [mining]," adequately recognize the authority of 

Federal land-managing agencies to regulate surface coal mining and reclamation operations under provisions of law other 

than OSMRE on lands under their jurisdiction. 

 One commenter recommended that the final rule provide minimum standards for the State regulatory authorities to 

use when determining when tree planting, repair of rills and gullies, and other practices are to be considered augmentative 

versus normal husbandry. The commenter was concerned that the lack of such minimum standards would allow "major 

gully repair or replanting a large percentage of the trees or shrubs" within the responsibility period under the guise of 

normal husbandry. The commenter suggested that an example of a minimum standard would be to establish a ceiling, 

such as five percent of the permit area, that would be subject to a normal husbandry practice without restarting the 

operator's period of responsibility. 

 OSMRE's position is that the primary responsibility for regulating surface coal mining and reclamation operations 

should rest with the States. Federal rules must be capable of nationwide application. The absence of minimum standards 

in portions of the Federal rules is not a weakening of revegetation requirements but reflects that the rules are designed to 

account for regional diversity in terrain, climate, soils and other conditions under which mining occurs. The requirements 

for OSMRE approval of normal husbandry practices proposed by State regulatory authorities based upon State-specific 

documentation of local husbandry practices will ensure that augmentative practices are not allowed to occur without 

restarting the operator's period of responsibility. 
 

EFFECT IN FEDERAL PROGRAM STATES AND ON INDIAN LANDS 

 This rule applies through cross-referencing in those States with Federal programs. They are Georgia, Idaho, 

Massachusetts, Michigan, North Carolina, Oregon, Rhode Island, South Dakota, Tennessee, and Washington. The 

Federal programs for these States appear at 30 CFR Parts 910, 912, 921, 922, 933, 937, 939, 941, 942, and 947 

respectively. The rules will apply in California if the Federal program for that State, which was proposed on October 22, 

1987 (52 FR 39594), is adopted. The rules also apply through cross-referencing to Indian lands under Federal programs 

for Indian lands as provided in 30 CFR Part 750. No comments were received concerning unique conditions that exist in 

any of these States or on Indian lands that would have required changes to the national rule. 

 

III. PROCEDURAL MATTERS 

 

Federal Paperwork Reduction Act 

 The revegetation rules affected by the changes approved today, Sections 816.116 and 817.116, do not contain new 

information collection requirements requiring approval from the Office of Management and Budget under 44 U.S.C. 

3507. 

 

Executive Order 12291 and Regulatory Flexibility Act 

 The DOI has determined that this rule is not a major rule requiring a regulatory impact analysis under Executive Order 

12291 (February 17, 1981). Also, DOI certifies that this rule will not have a significant economic effect on a substantial 

number of small entities and, therefore, does not require a regulatory flexibility analysis under the Regulatory Flexibility 

Act, 5 U.S.C. 601 et seq. 

 

National Environmental Policy Act 

 OSMRE has prepared an environmental assessment and has made a finding that the final rules will not significantly 

affect the quality of the human environment under section 102(2)(C) of the National Environmental Policy Act of 1969, 

42 U.S.C. 4332(2)(C). The environmental assessment is on file in the OSMRE Administrative Record, Room 5315, 1100 

L Street NW., Washington, DC. 

 

Agency Approval 

 Section 516(a) of SMCRA requires that, with regard to rules directed to the surface effects of underground mining, 

OSMRE must obtain the written concurrence from the head of the department which administers the Federal Mine Safety 

and Health Act of 1977, the successor to the Federal Coal Mine Health and Safety Act of 1969. OSMRE has obtained 

the written concurrence of the Assistant Secretary for Mine Safety and Health, U.S. Department of Labor. 

 

Author 

 The principal author of this rule is Patrick W. Boyd, OSMRE, 1951 Constitution Avenue NW., Washington, DC 

20240; Telephone: (202) 343-1864. 

 

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. 

 Accordingly, 30 CFR Parts 816 and 817 are amended as set forth herein. 

Dated: July 20, 1988. 

James E. Cason, Acting Assistant Secretary -- Land and Minerals Management. 
PART 816 -- PERMANENT PROGRAM PERFORMANCE STANDARDS -- SURFACE MINING 

ACTIVITIES 

 1. The authority citation for Part 816 is revised to read as follows and the authority citations following the sections in 

Part 816 are removed: 

 Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 100-34. 

 2. Section 816.116 is amended by revising paragraphs (b)(3)(i), (b)(3)(ii), (c)(2), and (c)(4) to read as follows and the 

suspension for those paragraphs, as noted in the editorial note immediately following the section in the Code of Federal 

Regulations, is lifted: 

SECTION 816.116 - REVEGETATION: STANDARDS FOR SUCCESS. 

 

* * * * * 

(b) * * * 

(3) * * * 

(i) Minimum stocking and planting arrangements shall be specified by the regulatory authority on the 

basis of local and regional conditions and after consultation with and approval by the State agencies responsible for the 

administration of forestry and wildlife programs. Consultation and approval may occur on either a program wide or a 

permit-specific basis. 

(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 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. 

 

* * * * * 

(c) * * * 

(2) In areas of more than 26.0 inches of annual average precipitation, the period of responsibility shall continue 

for a period of not less than five full years. Vegetation parameters identified in paragraph (b) of this section for grazing 

land or pasture land and cropland shall equal or exceed the approved success standard during the growing seasons of any 

two years of the responsibility period, except the first year. 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. 

 

* * * * * 

(4) The regulatory authority may approve selective husbandry practices, excluding augmented seeding, 

fertilization, or irrigation, provided it obtains prior approval from the Director in accordance with Section 732.17 of this 

chapter that the practices are normal husbandry practices, without extending the period of responsibility for revegetation 

success and bond liability, if such practices can be expected to continue as part of the postmining land use or if 

discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation 

success. Approved practices shall be normal husbandry practices within the region for unmined lands having land uses 

similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin 

control; and any pruning, reseeding, and transplanting specifically necessitated by such actions. 

 

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

ACTIVITIES 

 3. The authority citation for Part 817 is revised to read as follows and the authority citations following the sections in 

Part 817 are removed: 

 Authority: Pub. L. 95-87, 30 U.S.C. 1201 et seq., and Pub. L. 100-34. 

 4. Section 817.116 is amended by revising paragraphs (b)(3)(i), (b)(3)(ii), (c)(2), and (c)(4) to read as follows and the 

suspension for those paragraphs, as noted in the editorial note immediately following the section in the Code of Federal 

Regulations, is lifted: 

SECTION 817.116 - REVEGETATION: STANDARDS FOR SUCCESS. 

 

* * * * * 

(b) * * * 

(3) * * * 

(i) Minimum stocking and planting arrangements shall be specified by the regulatory authority on the 

basis of local and regional conditions and after consultation with and approval by the State agencies responsible for the 

administration of forestry and wildlife programs. Consultation and approval may occur on either a program wide or a 

permit-specific basis. 

(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 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. 

 

* * * * * 

(c) * * * 

(2) In areas of more than 26.0 inches of annual average precipitation, the period of responsibility shall continue 

for a period of not less than five full years. Vegetation parameters identified in paragraph (b) of this section for grazing 

land or pasture land and cropland shall equal or exceed the approved success standard during the growing seasons of any 

two years of the responsibility period, except the first year. 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. 

 

* * * * * 

(4) The regulatory authority may approve selective husbandry practices, excluding augmented seeding, 

fertilization, or irrigation, provided it obtains prior approval from the Director in accordance with Section 732.17 of this 

chapter that the practices are normal husbandry practices, without extending the period of responsibility for revegetation 

success and bond liability, if such practices can be expected to continue as part of the postmining land use or if 

discontinuance of the practices after the liability period expires will not reduce the probability of permanent revegetation 

success. Approved practices shall be normal husbandry practices within the region for unmined lands having land uses 

similar to the approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin 

control; and any pruning, reseeding, and transplanting specifically necessitated by such actions. 

 

* * * * * 

[FR Doc. 88-20105 Filed 9-6-88; 8:45 am] 

BILLING CODE 4310-05-M