[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]
[[Page 51683]]
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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
[[Page 51684]]
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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: [email protected].
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
[[Page 51685]]
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
[[Page 51687]]
thought that the proposal would make reforestation more successful may
be disappointed.
We strongly agree that allowing variable topsoil thickness under
the new provisions of 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