FEDERAL REGISTER: 48 FR 40140 (September 2, 1983)

DEPARTMENT OF THE INTERIOR
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM)

30 CFR Parts 701, 816, and 817
Surface Coal Mining and Reclamation Operations, Permanent Regulatory Program; Revegetation

ACTION: Final rule.  

SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) is adopting final rules for the
revegetation of regraded areas and all other lands disturbed by surface coal mining operations. These final rules are
needed to clarify existing rules, minimize duplication, and provide internal consistency. The rules revise
requirements for reestablished plant species, planting times, mulching, and revegetation success standards. These
changes will facilitate the successful revegetation of mined lands.  

EFFECTIVE DATE: October 3, 1983.  

FOR FURTHER INFORMATION CONTACT: Arlo Dalrymple, Biological Scientist, Division of Engineering
Analysis, Office of Surface Mining, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Washington,
D.C. 20240; 202-343-3198.  

SUPPLEMENTARY INFORMATION:  
I.   Background.     
II.  Discussion of rules adopted and responses to comments.     
III.      Procedural matters.  
   
I. BACKGROUND  

   On March 23, 1982 (47 FR 12596), OSM published a notice of proposed rulemaking to amend 30 CFR Parts 816
and 817 relating to revegetation of surface coal mining and reclamation operations. Public hearings were scheduled
for April 16, 1982, in Washington, D.C.; Pittsburgh, Pa.; and Denver, Colo. The Pittsburgh public hearing date was
changed to April 20, 1982 (47 FR 13535). No one requested to testify at these hearings. The comment period closed
on April 22, 1982. On May 13, 1982, the comment period was reopened for an indefinite period (47 FR 20631), and
was closed on August 25, 1982 (47 FR 30266). The comment  period was again reopened, on September 7, 1982,
and extended through September 10, 1982 (47 FR 30266). During these periods, OSM received written comments
from more than 45 commenters representing Federal and State agencies, coal companies, trade associations,
environmental groups, and interested citizens.  

   The provisions of the Surface Mining Control and Reclamation Act of 1977 (the Act), 30 U.S.C. 1201 et seq.,
which are especially relevant to the rules adopted in this rulemaking are found in Sections 515(b)(2), 515(b)(19),
515(b)(20), and 516(b)(6). Section 515(b)(2) requires the operator, as a minimum, to restore the land affected to a
condition capable of supporting the uses which it was capable of supporting prior to any mining, or higher or better
uses of which there is a reasonable likelihood.  

   Section 515(b)(19) of the Act requires the operator to establish, on all affected lands, 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." Section
516(b)(6) imposes a similar requirement for the surface effects of underground mining. Section 515(b)(19) also
permits the use of introduced species where desirable and necessary to achieve the approved postmining land use.
Section 515(b)(20) of the Act requires the operator to assume responsibility for successful revegetation for either 5
or 10 full years after the last year of augmented seeding, fertilizing, irrigation, or other work to assure compliance
with Section 515(b)(19). The 5-year period of responsibility is applicable to areas or regions receiving an annual
average precipitation greater than 26 inches, and the 10-year period is applicable to areas or regions where the
annual average precipitation is 26 inches or less. An additional pertinent provision, in Section 515(b)(4), requires
mine operators to "stabilize and protect all surface areas including spoil piles affected by the surface coal mining and
reclamation to effectively control erosion and attendent air and water pollution."  

   The rules adopted today govern revegetation to reclaim areas disturbed by surface mining activities, Secs. 816.111-
816.116, and to reclaim areas disturbed by underground mining activities, Secs. 817.111-817.116. The final
revegetation rules are identical for surface and underground mining activities. Accordingly, in this preamble Part 816
will be discussed with the understanding that the discussion also applies to Part 817. Specific comments on Part 817
will be addressed separately from those of Part 816. In preparing the final rules and the responses to commenters,
OSM has relied upon the Act, the legislative history of the Act, judicial rulings, technical literature, and regulatory
operating experience gained under the initial regulatory program.  
   
II. DISCUSSION OF RULES ADOPTED AND RESPONSES TO COMMENTS  
   
A. GENERAL COMMENTS  

   The comments received on the proposed rules represented a diversity of viewpoints and experiences. Many
commenters supported the Department of the Interior's effort to remove what were perceived to be burdensome and
redundant rules. These commenters generally thought that the proposed amendments would provide the flexibility
necessary to allow result-oriented, cost-effective  revegetation, and they supported proposed rules emphasizing
performance rather than design criteria. In this regard, a State believed that there are circumstances under which
specific design criteria developed at the State level may be beneficial for operators and regulators.  

   Other commenters expressed concern that the proposed rule changes were a substantial weakening of the previous
rules and would undermine the revegetation requirements of the Act and increase the likelihood of revegetation
failures. Some of these commenters stated that the proposed rules would leave individual States without guidance
when determining minimum acceptable standards for revegetation success.  

   A commenter said the problems with the proposed rules fell into two categories -- a weakening of rules that ensure
revegetation success and a weakening of rules that require operator responsibility for success. The commenter added
that the environmental risks of the proposed rules far exceeded any minor cost benefits that might result from the
proposed changes. Another commenter thought it a mistake to relax the standards for revegetation prior to any long -
- term demonstration of whether the previous performance standards are adequate. OSM was urged to withdraw the
proposed rule.  

   This rulemaking reaffirms OSM's position that the primary responsibility for regulating surface mining and
reclamation operations should rest with the States. Federal rules must be capable of nationwide application. The
absence of detail in the Federal rules is not a weakening of revegetation requirements but reflects that the rules are
dessigned to account for regional diversity in terrain, climate, soils, and other conditions under which mining occurs.
Additional response to these general comments is found in the discussion of the specific comments which follow.
Further discussion of the general approach to making the rules more flexible and of replacing design criteria with
performance standards is contained in OSM's "Final Environmental Impact Statement OSM EIS-1: Supplement,"
(FEIS) Volume I, Chapters II and IV.  
   
B. SPECIFIC COMMENTS  
   
SECTION 816.111 REVEGETATION: GENERAL REQUIREMENTS  

   The general requirements for revegetation and the use of introduced species were set forth in previous Secs.
816.111 and 816.112. OSM is amending these sections by combining the requirements under Sec. 816.111 and
deleting Sec. 816.112. The purpose of this restructuring is to emphasize the statutory criteria contained in Section
515(b)(19) of the Act and to clarify rules that were perceived to be awkward and confusing.  

   Proposed Sec. 816.111 established general requirements for vegetative cover and the use of plant species in mined-
land reclamation. It also granted exceptions to these general requirements where the species were necessary to
achieve quick-growing, temporary, stabilizing cover, and where cropland was an approved postmining land use. The
proposed rule differed from previous Secs. 816.111 and 816.112 in that it did not explicitly require the use of field
trials to demonstrate that introduced species are desirable and necessary to achieve the approved postmining land
use. It also did not explicitly require the  vegetative cover to be capable of stabilizing the soil surface from erosion.
The reasons for these proposed changes and other changes of lesser significance were given in the preamble to the
proposed rules (47 FR 12596, March 23, 1982).  

   Final Sec. 816.111 is essentially the same as proposed Sec. 816.111, with the exception that provisions relating to
surface soil erosion and poisonous or noxious species have been added. An explanation of these changes and a
section-by-section discussion of all the comments received follows.  
   
SECTION 816.111(a)  

   Proposed Sec. 816.111(a) required the operator to establish on all affected land, in accordance with the approved
permit and reclamation plan, a vegetative cover that is diverse, effective, permanent, and comprised of species native
to the area, or of introduced species where approved by the regulatory authority. The proposed rule also required that
reestablished vegetation must be at least equal in extent of cover to the natural vegetation of the area and capable of
achieving a productivity level compatible with the approved postmining land use.  

   One commenter contended that it is inappropriate to mix the procedural aspects of approval of a reclamation plan
and the basic performance standards of the Act in one rule. This commenter recommended that the phrase "in
accordance with the approved permit and reclamation plan" be deleted from Sec. 816.111(a) and that new language
be added to the rule which would require all revegetation to be in compliance with the approved reclamation plan
and the revegetation performance standards. The new language was believed to be needed to make it clear that if the
regulatory authority approves a reclamation plan that violates the Act or rules, the operator is not absolved of the
responsibility for complying with the revegetation performance standards.  

   The intent of the phrase in question is to require the operator to follow the revegetation procedures in the permit
and reclamation plan that has been previously approved by the State regulatory authority. Generally, an operator's
compliance with the permit and reclamation plan would indicate compliance with the Act and the regulatory
program. However, if the regulatory authority errs and approves a permit and reclamation plan that violates the Act
or rules, the operator is still legally required to comply with the Act and rules. Since Sec. 816.111(a) is consistent
with the result that the commenter seeks, no change has been made in the final rule.  

   A second commenter asserted that the proposed term "affected land" was not appropriate because it could be
concluded that operators would be required to seed temporary topsoil stockpiles, road embankments, and other
similarly affected lands. The commenter suggested that the revegetation rules should apply only to the revegetation
of areas that have been prepared for permanent revegetation pursuant to previous Secs. 816.24 and 816.25 requiring
the redistribution of topsoil.  

   OSM agrees and has substituted the phrase "on regraded areas and on all other disturbed areas" for the phrase "all
affected land," to more closely parallel Section 515(b)(19) of the Act, which requires the establishment of vegetation
"on the regraded areas, and all other lands affected * * *." However, OSM has adopted the term "disturbed areas" in
the final rule, rather than "lands  affected." The term "disturbed area" is defined in 30 CFR 701.5 as an area from
which vegetation, topsoil or overburden is removed or upon which topsoil, spoil, or waste of various types is placed
and is consistent with the term "lands affected" in Section 515(b)(19) of the Act. This new language and that in Sec.
816.113, which requires planting of disturbed areas after replacement of the plant-growth medium, should be
sufficient indication that a permanent vegetative cover need not be established until a disturbed area has been graded
and topsoil or topsoil substitutes redistributed under final Sec. 816.22.  

   However, operators will often find it necessary to establish a temporary cover of annual and perennial species
when there is an extended period between the initial soil-surface disturbance and final grading and replacement of
the plant-growth medium. For example, sedimentation ponds and roads may be constructed and used for several
years before removal and final reclamation. During this period, sedimentation pond outslopes and road embankments
must be protected and stabilized to control erosion effectively as required in Sec. 816.95(a). The establishment of a
temporary vegetative cover is one means of achieving the necessary stabilization of the soil surface.  

   One commenter stated that the proposed rules were appropriately based upon the Act, which calls for "diverse,
effective, and permanent vegetative cover." He added that the explanation of the term "diversity" in the premable
should be expanded to explain that "diversity" does not necessarily mean that every species and variety of premining
grass, shrub, or tree be reestablished or that they be reestablished in identical numbers and ratios after mining.  

   OSM agrees with the commenter's statement, which is consistent with the definition and explanation of "diversity"
contained in the preamble to the proposed rules (47 FR 12597, March 23, 1982).  

   Furthermore, opportunities may exist for improving plant communities by changing the species composition as, for
example, establishment of species that change a range site from fair to good condition or that change a
noncommercial forest to one that has market potential. In both examples, the new plant community may not contain
all the species represented in the original plant community. However, the new plant community is expected to
contain species not found, or not found in identical numbers, on the site prior to mining. This interpretation of
diversity is consistent with the statutory objective of restoring affected lands to higher and better postmining land
uses.  

   Proposed Sec. 816.111(a)(2) required the established vegetative cover to be comprised of species native to the area
or of introduced species where approved by the regulatory authority. One commenter contended that it was
unnecessary to require approval by the regulatory authority since this was implied by the need to establish vegetative
cover in accordance with the approved permit and reclamation plan as required by Sec. 816.111(a) and in
compliance with the species provisions in Sec. 816.111(b).  

   The use of introduced species in surface mine reclamation presents special problems and risks. The requirement for
regulatory authority approval may overlap the provisions identified by the commenter; however, it is retained in the
final rules to emphasize the critical evaluation which regulatory authorities will need to make before approving an
introduced species that has not been previously field tested for use in mined-land reclamation. A phrase  has been
added to Sec. 816.111(a)(2) to make it clear that the regulatory authority may approve the use of the introduced
species only where it is desirable and necessary to achieve the postmining land use. This is consistent with Section
515(b)(19) of the Act.  

   A second commenter believed that Stae regulatory authorities should be required to consult with wildlife agencies
when approving the use of introduced species, to ensure that the species are compatible with resident wildlife
populations. The commenter suggested adding language to proposed Sec. 816.111(a)(2) that would require field-trial
demonstrations to document suitability for the porposed postmining land use where there was not sufficient past
experience with the species under similar growing conditions.  

   It is not necessary to require State regulatory authorities to consult with wildlife agencies when approving the use
of introduced species. State regulatory authorities may find such consultation beneficial, but it should be left to the
discretion of the regulatory authority to determine whether consultation is actually needed. The need for field trials
should also be determined by the regulatory authority rather than be required under a Federal rule. Further discussion
of introduced species and the use of field trials is found under Sec. 816.111(b).  

   Final Sec. 816.111(a)(3) requires a vegetative cover at least equal in extent to the natural vegetation of the area. A
commenter was concerned that the proposed rules were not responsive to situations where forestry is the postmining
land use because cover requirements in proposed Sec. 816.11(a)(3) could be deleterious to maximizing forest
growth. The commenter added that if Sec. 816.111(a)(3) were interpreted in the context of proposed Sec.
816.111(a)(4), which would have required the achievement of productivity levels compatible with the postmining
land use, his concerns would be adequately addressed.  

   OSM recognizes that extensive ground cover may be incompatible with maximum tree survival and growth since
trees and herbaceous plants compete for moisture, nutrients, and light. In situations where the long-term vegtative
cover is forest, a light herbaceous cover would be acceptable if it was adequate to protect the soil surface from
erosion.  

   PRODUCTIVITY:  Proposed Sec. 816.111(a)(4) would have required that the reestablished vegetative cover be
capable of achieving productivity levels compatible with the approved postmining land use. Two commenters
asserted that this provision should be deleted because they could not find any statutory requirement or other
justification for the rule. Two state regulatory authorities also commented on proposed Sec. 816.111(a)(4). Both
desired the retention of a productivity provision, but they felt that the phrase "capable of achieving productivity
levels" resulted in an ambiguous, imprecise, and poorly demarcated goal which is difficult to measure in the field.
One of these commenters maintained that in order for OSM to fully implement the intent of Section 515 (b)(2) and
(b)(19) of the Act, the final rules must focus on premining productivity levels (measured in the field by some actual
means) as a primary reclamation standard.  

   Support for including a productivity requirement in the rules is found in the use of the word "effective" in Section
515(b)(19) of the Act. As Congress stated, effective means "both the productivity of the planted species  concerning
its utility to the intended postmining land use (e.g., nutritional value for livestock) as well as its capability of
stabilizing the soil surface with respect to reducing siltation to normal premining background levels." (H. Rept. No.
95-218, 95th Cong., 1st Sess., p. 106, (1977).)  

   However, OSM agrees with the commenters in their conclusion that proposed Sec. 816.111(a)(4) was ambiguous
and provided an uncertain standard that may be misleading or redundant of other requirements. For this reason,
proposed Sec. 816.111(a)(4), which was a standard for success, has not been included in the final rule. Final Sec.
816.116 requires the success of revegetation to be judged on the effectiveness of the vegetation for the approved
postmining land use. Whether productivity is included as a measure to ensure that the requirements of Secs. 816.116
and 816.111(a)(1) are met depends upon the postmining land use and particular success standard established.  

   OSM rejects the suggestion that the rule focus on premining productivity levels. OSM agrees that Congress
intended that mined land be reclaimed to an equal or better condition than existed prior to mining. In establishing the
standards for success of that reclamation, the Act specifically focuses on the extent of the cover of the natural
vegetation in the general area and not on premining productivity levels of the specific mined areas. It is anticipated,
however, that if the general standards for revegetation are met, the land affected will be returned to a form and
productivity at least equal to that of its premining condition.  

   EROSION CONTROL:  Proposed Sec. 816.111 would have deleted the provision of previous Sec. 816.111(b)(2),
which required the vegetative cover to be capable of stabilizing the soil surface from erosion. OSM proposed this
deletion because Section 515(b) (19) and (20) of the Act did not explicitly address erosion. Furthermore, rules
governing redistribution of topsoil and erosion control appeared to satisfy Section 515(b)(4) of the Act, which
requires operators to "stabilize and protect all surface areas including spoil piles affected by the surface coal mining
and reclamation operation to effectively control erosion." OSM also pointed out that proposed Sec. 816.111(a)(3)
would require the operator to achieve a ground cover that is equal to or greater than the ground cover that existed
prior to mining and that this requirement would in effect provide the reclaimed soils with protection from erosion
equal to the protection provided prior to disturbance of the site.  

   Deletion of the erosion-control requirement was supported by one commenter who said that erosion control was
adequately addressed in other sections of the rules, such as previous Sec. 816.24(b)(3), regarding topsoil
redistribution, and previous Sec. 816.23(b), regarding topsoil storage. Other commenters disagreed and provided
comments seeking to retain erosion control provisions in the revegetation rules.  

   A commenter argued that, in the Southwest, ground-cover standards could be achieved by the estabishment of
coarse grasses or other plants which do not have erosion-control characteristics equal to the original ground cover.
This difference was said to be crucial because most rainfall occurs in violent summer thunderstorms. A commenter
noted that there are situations in arid and semiarid areas where the approved postmining land use has slopes steeper
than the original slopes and that the restoration of the original extent of plant cover may result in a landscape that is
more susceptible to erosion. A third  commenter disagreed with OSM's contention that Section 515 (b)(19) and
(b)(20) of the Act did not specifically reference erosion control. The commenter noted that these sections require a
"diverse, effective, and permanent vegetative cover" and that the word "effective" is defined in House Report 95-218
(95th Cong., 1st Sess., p. 106 (1977)) to mean "both the productivity of the planted species * * * as well as its
capability of stabilizing the soil surface with respect to reducing siltation to normal background levels." In the
commenter's opinion, this appeared to be a clear directive from Congress that revegetation should at least control
erosion to the extent that siltation of surface-water supplies is minimized.  

   A commenter disagreed with OSM's rationale for deletion of Sec. 816.111(b)(2) as presented in the preamble to
the proposed rules (47 FR 12597). No reason for disagreement was provided. The commenter recommended that
OSM adopt a new subsection ( Sec. 816.111(b)(5)) that would require vegetative cover capable of significantly
minimizing erosion from the soil surface.  

   The arguments presented by the commenters who sought to retain a provision requiring the vegetative cover to be
capable of controlling erosion have merit. OSM acknowledges that an important function of vegetative cover is
erosion control and that Section 515(b)(4) of the Act requires operators to stabilize the surface of the soil so as to
effectively control erosion. In response to the comments, OSM has adopted a provision in Sec. 816.111(a)(4) which
will require the establishment of a vegetative cover that is capable of stabilizing the soil surface from erosion.
Furthermore, a related provision in Sec. 816.95 (Stabilization of Surface Areas) has also been adopted to address
rills and gullies and air and water pollution attendant to erosion (48 FR 1163, January 10, 1983). These rules
adequately provide the environmental protection from erosion called for by the Act.  
   
SECTION 816.111(b)  

   Proposed Sec. 816.111(b) would have required operators to use introduced or native plant species that are
desirable and necessary to achieve the approved postmining land use, have the same seasonal characteristics of
growth as the original vegetation, and are capable of self-regeneration and plant succession. Also, the reestablished
plant species had to be compatible with the plant and animal species of the area and meet applicable State and
Federal statutes regulating seed and introduced species. The final rule is essentially the same as proposed, except for
the additional requirement that reestablished species must meet statutes regulating noxious and poisonous plants, and
that the plant species must be compatible with the approved postmining land use rather than being desirable and
necessary to achieve the postmining land use, since some land uses may not depend upon the revegetative cover.  

   USE OF INTRODUCED SPECIES:  Final Sec. 816.111(b) contains the essential criteria for regulatory authorities
to determine whether a species of plant is suitable for surface mine reclamation. These criteria are applicable to both
native and introduced species. Regulatory authorities should decide when field trials or other types of documentation
are needed to determine if a species meets the requirements of Sec. 816.111(b). Under this reorganization of the rule,
previous Sec. 816.112 (Revegetation: Use of introduced species) is no longer necessary and has been deleted.  

   Previous Sec. 816.112 provided for regulatory authority approval of introduced species when field trials
demonstrated that they were desirable and necessary to achieve the postmining land use or that they were needed to
achieve a quick-growing, temporary, stabilizing cover and measures to establish permanent vegetation were in an
approved reclamation plan. It required that introduced species be compatible with animal and plant species of the
area and meet the requirements of applicable State and Federal seed laws and not be poisonous or noxious.  

   Several commenters were against the adoption of proposed Sec. 816.111(b) and the related deletion of previous
Sec. 816.112. One commenter believed the restructuring of the wording to give introduced species the same
emphasis as species native to the area may result in less effective regeneration. The commenter further explained that
the proposed rule change would result in less cover diversity than under the previous rule and a significant shift from
forest to open-land uses. He surmised that there would probably be more grasses sown and fewer trees and shrubs
planted. This, the commenter argued, would result in less effective reclamation because a combination of woody
plants and ground cover was thought necessary to assure long-term erosion control and the stability of steep slopes
common to Appalachia. The commenter also believed that herbaceous cover by itself would deteriorate without
supplemental fertilization and reseeding.  

   OSM appreciates the commenter's concerns. However, the commenter has erred in assuming that regulatory
authorities will approve the use of introduced species in a manner that would lead to the conditions which he
described. Section 816.111(a)(1) requires the establishment of a diverse and permanent cover. Diversity could be
achieved by planting a mixture of grasses and legumes. Under final Sec. 816.111(a)(2), introduced species may be
approved only where desirable and necessary to achieve the approved postmining land use. The species comprising
the vegetative cover, whether native or introduced, will have to be capable of self-regeneration and plant succession.
Thus, if the performance standards are met, the objective of Section 515(b)(19) of the Act will be achieved.  

   Another commenter felt that it was a serious mistake to mix revegetation standards for native species with those for
introduced species and recommended retaining Sec. 816.112 in its entirety. The commenter reasoned that the use of
introduced species requires more intensive long-term management than native species and as a consequence special
care must be used in determining whether to allow the use of introduced species in mined-land reclamation. OSM
agrees with the commenter that introduced species must be carefully evaluated before being used in reclamation.
Section 816.111(a)(2) specifically requires approval by the regulatory authority of all introduced species that are
used in reclamation. Such usage must be consistent with the attainment of the requirements in Secs. 816.111(b)-
816.111(d).  

   One commenter said that the proposed rules, while maintaining restrictions on the use of introduced species as
required by the Act, eliminated the native-species preference implied by the Act by placing both native and
introduced species on the same footing. The commenter added that introduced species were selected in the past for
use in reclamation if they were desirable in achieving the postmining land use, and that necessity, though often
considered, was not a prerequisite for native species. The revised rules retain the "implied preference" for native
species by requiring specific regulatory  authority approval of introduced species in Sec. 816.111(a)(2) to be based
upon such species being desirable and necessary to achieve the approved postmining land use.  

   A commenter contended that deletion of previous Sec. 816.112 in its entirety could substantially alter the results
which reclamation achieves for wildlife. It was argued that, through evolutionary processes, assurance is provided
that native plant species are compatible with resident wildlife populations. The compatibility of introduced species
was thought to be impossible to document. This commenter strongly recommended retention of Sec. 816.112 (b), (c),
and (d) of the previous rules which set conditions under which State regulatory authorities could approve the use of
introduced species.  

   Regulatory authorities should be aware of the plant species that have been documented as being suitable for
wildlife habitat and will have access to technical groups capable of supplying such information. The regulatory
authority may, if necessary, consult State and Federal fish and wildlife services, State universities, and the U.S.
Department of Agriculture, Soil Conservation Service Plant Materials Centers to determine whether a species is
compatible with resident wildlife. Furthermore, the basic requirements of previous Sec. 816.112 (b), (c), and (d) are
found in Sec. 816.111 (b)(4) and (b)(5) and (c).  

   Another commenter felt that the elimination of previous Sec. 816.112 could lead to the planting of nuisance exotics
which tend to squeeze out native species. Multiflora rose was cited as an example of an introduced species that is
detrimental. As noted earlier Sec. 816.111(a)(2) specifically requires regulatory approval of the use of all introduced
species included in a mining and reclamation plan. Additionally, Sec. 816.111 (b)(4) and (b)(5) require that the
reestablished plant species be compatible with the plant and animal species of the area and that State and Federal
statutes governing the use of poisonous and noxious plants be met. These requirements provide an adequate
safeguard against the planting of nuisance exotics.  

   In a similar vein, several commenters opposed deletion of the field-trial requirements of previous Sec. 816.112(a).
Without giving any justification, one commenter said States should have no discretion to dispense with the
requirement of field tests for introduced species. Another commenter contended that the deletion of previous Sec.
816.112(a) subverts the intent of Section 515(b)(19) of the Act and that the proposed rule was an open invitation for
abuse of native-species requirements by coal operators and State regulatory authorities. The commenter stated that
actual field trials over a long period of time are necessary before introduced species can be adopted for general use
in establishing permanent cover. The commenter asserted that introduced species have several drawbacks: A
generally low level of plant diversity in areas where they are planted, potential for early stand stagnation, and
possible poor long-term adaptation to fluctuations in climate, such as sustained periods of drought.  

   Conversely, other commenters argued that State regulatory authorities are certainly able to approve the use of
introduced species without field trials when revegetation success has already been successfully demonstrated and the
species are desirable and necessary to achieve the postmining land use. One commenter noted that unnecessary
compliance burdens would be avoided under the new language.  

   A commenter pointed out that many introduced species have become naturalized and that regulatory authorities are
in a position to approve the use of desirable and proven species without the necessity of field trials, but thought that
field trials should still be required on unproven species. Another commenter recommended that introduced species
be field tested under the experimental practice provisions in 30 CFR 785.13.  

   Field trails are generally appropriate before unproven species can be used for surface mine reclamation. Other
species that have been previously demonstrated, under similar biotic conditions, to be successful in achieving the
specified postmining use generally do not require additional tests. Publications by Vogel (1981) and Thornburg
(1982) are examples of documents that can be used by regulatory authorities to identify native and introduced
species that have been successfully used to revegetate mined lands. In addition, unproven species could be tested for
suitability under the experimental practice rules if the requirements of Sec. 785.13 are satisfied.  

   A commenter suggested deletion of the reference to native species in proposed Sec. 816.111(b). The commenter
believed OSM was trying to impose the same restrictions on native and introduced plant species and that it was not
necessary to justify the use of native species.  

   As previously stated, paragraph (b) is equally applicable to native and introduced species. Some native species, as
well as introduced species, may be unsuitable for reclamation because they take excessively long periods of time to
establish and are not compatible with certain postmining land uses. In final Sec. 816.111(b), the proposed phrase
"whether introduced or native" has not been adopted since the provision applies to all reestablished plant species
unless specifically limited.  

   WATER AREAS AND ROAD SURFACES:  The proposed rules did not include an exemption of revegetation
requirements for water areas and road surfaces approved as part of the postmining land use. This exemption was
found in previous Sec. 816.111(b)(1) and has been retained in the final rule as part of the introductory language in
revised Sec. 816.111(a).  

   One commenter said that the proposal to delete the water area and road-surface exemption indicated OSM's
appreciation of unneeded and overly restrictive requirements. Another commenter opposed the deletion because he
believed that compacted dirt and gravel haul roads would not be adequately reclaimed and the areas affected would
become permanently useless for any productive purpose.  

   The commenter may have misunderstood the exemption and its proposed deletion. The exemption applies only to
water areas and road surfaces that are approved as part of the postmining land use. Temporary roads and water areas
that are reclaimed must be regraded, covered with topsoil or topsoil substitutes, and planted to an approved
vegetative cover which meets the requirements of Secs. 816.111-816.116. As the preamble to the proposed rules
pointed out, this change would merely have deleted language perceived to be unnecessary (47 FR 12597). In light of
the commenters' confusion concerning the proposed deletion, OSM has decided to retain the specific language to
clarify that the exemption continues. The final rule language will not change operator responsibility with respect to
areas covered by water and road surfaces.  

   DESIRABLE AND NECESSARY:  Proposed Sec. 816.111(b)(1) required the reestablished plant species to be
desirable and necessary to achieve the approved postmining land use. Final Sec. 816.111(b)(1) requires that all
species used to reestablish vegetation be compatible with the postmining land use.  

   One commenter suggested changing the wording of the proposed requirement to "desirable or necessary" instead of
"desirable and necessary." The commenter explained that there is a strong possibility introduced species may be
highly desirable but not absolutely necessary for the approved postmining land use.  

   Section 515(b)(19) of the Act requires introduced species to be both desirable and  necessary to achieve the
approved postmining land use plan. OSM has retained this statutory language. Proposed Sec. 816.111(b)(1) would
have extended application of the "desirable and necessary" standard to native species. The requirement that all
species used be desirable and necessary for the postmining land use has not been adopted, since some land uses may
not depend upon the vegetative cover. The requirement that introduced species be "desirable and necessary" for the
approved postmining land use has been retained and included in final Sec. 816.0111(a)(2). OSM interprets
"desirable and necessary" in this context to mean that revegetation is a necessary component of the postmining land
use and that the use of the proposed introduced species is desirable and necessary in achieving that end use. The
introduced species need not, however, be the only species capable of achieving the postmining land use.  

   SEASONAL CHARACTERISTICS OF GROWTH:  Proposed Sec. 816.111(b)(2) required the reestablished plant
species to have the same seasonal characteristics of growth as the original vegetation. One commenter said that the
proposed rule conflicted with proposed Sec. 816.111(b)(1), which required the reestablished plant species to be
desirable and necessary to achieve the approved postmining land use. It was argued that when the postmining land
use is cropland or forage, the species chosen to achieve those uses should not be limited to those with the same
characteristics as the original vegetation, which could have been, for instance, sagebrush and blue grama grass. The
commenter recommended that the term "seasonal utility" be substituted for "seasonal characteristics of growth."  

   Final Sec. 816.111(d) provides the desired exception sought by the commenter when the postmining land use is
cropland. Where range and grazing land are the postmining land use, situations will exist where the range condition
can be improved by changing the proportion of cool- and warm-season grasses as well as the proportion of forbs and
shrubs. Thus, seasonal characteristics overall could be essentially the same as those in the premining plant
community, but the proportion of total cover represented by each species may change. For these reasons, OSM has
adopted the rule as it was proposed.  

   One commenter contended that previous Sec. 816.111 (b)(3) and (b)(4) should be retained. Previous Sec.
816.111(b)(3) defined seasonal variety and previous Sec. 816.111(b)(4) exempted cropland from the requirement to
establish a permanent cover when operators planted crops normally grown. Previous Sec. 816.111(b)(4) was thought
to be needed to prove productivity and a return to premining capability.  

   Seasonal characteristics of growth are more appropriate to describe species requirements than seasonal variety, for
the reasons given in the preamble to the proposed rules (47 FR 12597). Furthermore, final Sec. 816.111(d) exempts
cropland from permanent-cover requirements, and final Sec. 816.111 (a)(1) and (b)(1)  require an effective cover
that is compatible with the approved postmining land use. These rules result in essentially the same outcome as the
previous rules which the commenter sought to retain. As for the need to return to premining capability, the success
standard for cropland is treated under Sec. 816.116(b).  

   SELF-REGENERATION AND PLANT SUCCESSION:  Final Sec. 816.111(b)(3) requires reestablished plant
species to be capable of self-regeneration and plant succession. One commenter contended that under intensive forest
management the "self-regeneration" requirement of proposed Sec. 816.111(b)(3) becomes a moot issue when select
varieties of proven plant species are reestablished with each regeneration sequence.  

   OSM recognizes that in commercial forestry the clear-cutting and planting method of stand regeneration is a
common silvicultural practice. Such land use becomes similar to cropland with the exception that the production
cycle is much longer. The determination of the extent to which self-regeneration must be considered will rest upon
such factors as whether there is a forest-management plan for the permit area that provides for replanting, and the
surface owner's commitment to long-term wood fiber production.  

   Another commenter felt the reference to self-regeneration and plant succession was a good addition to the rules,
but not entirely applicable to introduced species because many such species are not capable of self-regeneration and
must be cultivated to maintain their productivity. This commenter advised retaining previous Sec. 816.111(b) and
adding a requirement that the reestablished species be capable of self-regeneration and plant succession.  

   The legislative history of the Act supports OSM's conclusion that both species native to the area and introduced
species used in revegetation should be capable of self-regeneration. (H. Rept. No. 95-218, 95th Cong., 1st Sess.,
1977.) Hence, OSM has retained the requirement that the reestablished vegetation must be capable of self-
regeneration and plant succession. This can be accomplished through the use of perennials capable of self-
regeneration from roots, crowns, or seeds.  

   COMPATIBILITY: Final Sec. 816.111(b)(4) requires the reestablished plant species to be compatible with the
plant and animal species of the area. One commenter suggested deletion of proposed Sec. 816.111(b)(4) in its
entirety because it was believed to be in conflict with Sec. 816.111(a)(2), which permits the use of introduced
species upon approval of the regulatory authority.  

   Any species approved for use in reclamation must be compatible with the plant and animal species of the area.
Hence, Sec. 816.111(b)(4) is one of the criteria that the regulatory authority will use in determining whether to
approve or disapprove any plant species proposed for planting in disturbed areas.  

   POISONOUS AND NOXIOUS PLANTS: Proposed Sec. 816.111(b)(5) required reestablished plant species to
meet applicable State and Federal statutes regulating seed and introduced species. The proposed rule was essentially
the same as previous Sec. 816.112(d); however, the phrase "and are not poisonous or noxious" was proposed to be
deleted. OSM asserted that compliance with applicable State and Federal statutes and the provision in Sec.
816.111(b)(1) which required all species to be "desirable and necessary" would effectively prohibit the use of
species that were poisonous and noxious.  

   Several commenters opposed the proposed deletion. One commenter said that there is a substantial difference
between an absolute prohibition as required by previous Sec. 816.112(d) and a "limitation of the use" as implied in
the March 23, 1982, preamble (47 FR 12598). The commenter added that the political realities are such that
discretion afforded to State regulatory authorities to allow operators to use noxious weeds would result in their use
more often than is desirable. Another commenter asked what purpose is served by the deletions and whether it was
really counterproductive, burdensome, and duplicative to prohibit poisonous and noxious plants from use in
reclamation. Without explanation, other commenters also opposed the change.  

   As indicated by the comments, there was much confusion resulting from the proposed deletion. In order to clarify
the intent of the rule, OSM has added language that will require reestablished plant species to meet the requirements
of State and Federal statutes regulating poisonous and noxious plants. The final rule deviates from the previous rule
in that the prohibited plant species must be restricted by State or Federal laws or regulations. Many species, such as
oak, hemlock, chokecherry, and millet, can be poisonous to livestock and humans under certain conditions. Normally
these species are not a problem, and they possess traits that are desirable for achieving specific land uses. Therefore,
OSM has limited the restriction on the use of poisonous and noxious plants to those plants that have been identified
as poisonous or noxious under State or Federal laws or regulations.  

   One commenter maintained that the permittee should not be responsible for the natural invasion of undesirable,
nonnoxious plant species on mined areas. A change in the language of Sec. 816.111(b) was proposed to limit
operator liability.  

   The permittee is responsible for the establishment of vegetation that supports the postmining land use. In the event
a "natural invasion" of undesirable plant species does occur, the operator is expected to use normal husbandry
practices to eliminate the undesirable species while retaining or reestablishing, when necessary, the species that will
achieve the approved postmining vegetative community.  
   
SECTION 816.111(c)  

   Proposed Sec. 816.111(c) provided an exception to Sec. 816.111 (b)(2) and (b)(3) when the species were
necessary to achieve a quick-growing, temporary, stabilizing cover, and measures to establish permanent vegetation
are included in the approved permit and reclamation plan. The final rule is adopted as proposed. One commenter
approved the proposed language because it would allow the use of temporary cover species. This was considered to
be both practical and beneficial to the environment since soil erosion would be prevented by the early stabilization of
disturbed areas.  
   
SECTION 816.111(d)  

   Proposed Sec. 816.111(d) provided an exemption to cover and species requirements found in Paragraphs (a)(1),
(a)(3), (b)(2), and (b)(3) of the general requirements where the postmining land use was cropland. It also identified
30 CFR Part 823 as applying to areas designated as prime farmlands. The rule is  adopted as proposed.  

   One commenter supported proposed Sec. 816.111(d) because it provided an exception to certain requirements that
would be inappropriate and impractical for cropland. Another commenter was in basic agreement with the rule, but
thought that a proviso should be added that would require a conservation plan for indicating how the operator
planned to limit erosion to tolerable limits.  

   Part of the information the commenter is seeking in the conservation plan would already be required as part of the
reclamation plan. Furthermore, operators will be required by Sec. 816.111(a)(4) to stabilize the soil surface from
erosion. Cropland is not exempt from erosion-control standards. Erosion on cropland should be held to levels that
would normally occur on similar unmined croplands.  

   One commenter suggested deleting the last sentence in the proposed rule which states that Part 823 applies to areas
designated as prime farmland. OSM has included this informational note in the final rule to avoid any possible
misunderstanding with respect to the requirements applicable to prime farmlands.  
   
SECTION 816.113 REVEGETATION: TIMING  

   Final Sec. 816.113 requires the planting of disturbed areas to be conducted during the first normal period for
favorable planting conditions after replacement of the plant-growth medium. The normal period for planting is
defined as the planting time generally accepted locally for the type of plant materials selected. This is similar to the
proposal.  

   Proposed Sec. 816.113 contained a provision that allowed the seeding and planting of temporary cover or the use
of other measures to control erosion until a permanent vegetative cover was adequately established. In the final rule,
the provision concerning the use of temporary cover has not been adopted because it is redundant of Sec. 816.111(c),
which allows the use of a quick-growing, temporary, stabilizing cover, and Sec. 816.114, which requires the use of
soil-stabilizing practices.  

   One commenter contended that the term "disturbed area" had too broad a meaning and its use in the rule could be
interpreted as requiring operators to establish permanent vegetation on areas that have not been prepared for
permanent vegetation. The words "subject to Sec. 816.24 and Sec. 816.25" were suggested as an addition to the rule
in order to prevent any misinterpretation. By requiring planting to occur after replacement of the plant-growth
medium, it is clear under the final rule that the operator is required to establish permanent vegetation only on
disturbed areas where topsoil or topsoil substitutes have been redistributed. Hence, no changes have been made as a
result of this comment.  

   A commenter stated that the proposed words "seeded and planted" were redundant. OSM agrees and has used only
the word "planted" in the final rule. Several commenters approved OSM's substitution of the proposed phrase "after
replacement of the plant growth medium" for the phrase "after final preparation" which was contained in the
previous rule. Other changes in the structure of the first sentence of the rule were adopted for clarity and will not
affect the  timing of revegetation.  

   A State regulatory authority argued that the last sentence of proposed Sec. 816.113, allowing temporary cover, was
permissive rather than mandatory and thus was of no value. The commenter believed that topsoil must be protected
from time of placement until permanent vegetation is established. Other rules, such as the proposed topsoil rules,
were thought to be inadequate in providing for the needed protection, New language was suggested that would make
the provision mandatory. This same commenter also recommended that the rule require temporary plant cover to be
seeded as contemporaneously as practical with backfilling and grading. Other commenters sought to have the word
"may" in the rule changed to "shall", thus making the planting of temporary cover mandatory.  

   Different opinions were expressed by two other commenters. One said that the control of erosion is adequately
provided for in previous Sec. 816.24(b)(3) and Sec. 816.23(b), which pertain to topsoil storage and redistribution.
The other felt the term "effectively control erosion" was too vague, ambiguous, and open to differing interpretations
which could result in an impossible burden for operators. New language was suggested which would retain the
permissive character of the rule but remove the reference to erosion control.  

   After considering these comments, OSM has decided not to adopt the last sentence of proposed Sec. 816.113,
which would have allowed for the use of temporary vegetative cover and other measures to control erosion until a
permanent cover was adequately established. This action is taken because the required protection is effectively
provided in the following rules. In addition to the relevant portions of Secs. 816.111 and 816.114, Sec.
816.22(d)(1)(iii) requires that topsoil and all other segregated materials be redistributed in a manner that protects the
material from wind and water erosion before and after it is seeded and planted; Sec. 816.95 requires stabilization of
surface areas; and final Sec. 816.100 requires that reclamation efforts, including revegetation, occur as
contemporaneously as practical with mining operations. Also, under Sec. 816.100, the regulatory authority may
establish schedules that define contemporaneous reclamation. These are broad, all-encompassing requirements that
should effectively achieve the purpose of the language in the proposed rule. OSM anticipates that most operators will
find that the planting of quick-growing annuals will be the easiest and most economical means for achieving
compliance.  
   
SECTION 816.114 REVEGETATION: MULCHING AND OTHER SOIL STABILIZING PRACTICES  

   Proposed Sec. 816.114 would have allowed the regulatory authority to require the application of suitable mulch or
use of other soil stabilizing practices where deemed necessary. In the previous rule, the use of mulch and other soil
stabilizing practices was mandatory on all regraded and topsoiled areas except where the permittee could
demonstrate that alternative reclamation procedures would achieve successful revegetation and not cause or
contribute to air or water pollution. Suspension of the requirement was possible only on a case-by-case basis.  

   The final rule, which is derived from previous Sec. 816.114(a), requires the use of suitable mulch and other soil
stabilizing practices on all areas that have been regraded and topsoiled or covered by topsoil substitutes. Compliance
may be achieved through the application of crop residues, hay, nontoxic industrial  wastes, processed wood fibers,
and chemical soil binders or through the planting of annual grains, grasses, or other covers which serve as living
mulches. The regulatory authority may waive this requirement when seasonal, soil, or slope factors result in a
condition where such practices, as determined by the regulatory authority, are not necessary to control erosion and to
promptly establish an effective vegetative cover.  

   In adopting this final rule, OSM intends to impose the requirement to use mulch and other soil stabilization
practices when and where they are needed. Congress recognized, when it passed the Act, that "the use of mulch,
fertilizer, and soil stabilizers will probably be common, if not universal, in revegetation activities." (H. Rept. No. 95-
218, 95th Cong., 1st Sess., 108 (1977)). In a similar fashion, the final rule also recognizes that mulching and other
soil stabilization practices should be a standard practice in surface mine reclamation. However, such practices may
not be needed during brief periods in the spring when seed germination and plant-growth conditions are optimum,
where regrading results in gradual slopes, and where soils, because of their physical properties, are not easily eroded.
In recognition of these and other situations where the use of mulch and soil stabilization practices may not be
necessary, OSM has provided an opportunity for regulatory authorities to waive the requirement for their use.  

   The previous rule allowed for a suspension of the requirement by the regulatory authority on a case-by-case basis
after the operator demonstrated that alternative procedures would achieve the requirements of Sec. 816.116 and
would not cause or contribute to air and water pollution. In the final rule, waiver of the requirement may be handled
on an individual basis or may be incorporated as part of the regulatory program and apply to all or parts of
operations that meet the conditions of the waiver. Any waiver must be based upon the regulatory authority's past
experience and any technical documentation that is available. In certain instances, a programmatic waiver could
provide the necessary environmental protection while relieving operators of burdens entailed in case-by-case
demonstrations.  

   Two States urged OSM to retain the previous rule. One contended that loss of topsoil by erosion was one of the
more serious long-term effects of surface mining. The previous rule was thought to result in more protection of this
valuable resource than the proposed rule. One of these States also argued that the burden of demonstrating that
mulch is not needed should be placed with the permittee rather than requiring the regulatory authority to determine
when mulch is necessary. This viewpoint was supported by similar comments from a third State and one additional
commenter. In contrast, another State supported the proposed rule as being especially reasonable and desirable.  

   One commenter suggested that Sections 515(b)(2), 515(b)(4), and 515(b)(16) were sufficient statutory justification
to retain the previous rule. This commenter felt that mulch, in one form or another, was almost always beneficial in
controlling erosion and promoting a rapid and effective vegetative cover even on level terrain, as evidenced by the
reclamation literature and field observations. A similar position was taken by another commenter who believed that
failure to use mulch in any region would significantly increase the likelihood of erosion before establishment of
vegetation and that such erosion would reduce the productive potential of the soil. The preamble to the previous rule
and literature in the administrative record were cited as ample reason  for a mulching requirement. A commenter who
supported the proposed rule noted that mulching played a different role in the Midwest than it did in Appalachia. A
soil conservation organization from the same State argued that the proposed rule would contribute to increased
erosion.  

   OSM finds that mulching is an accepted reclamation practice in most, but not all, cases. Two recent handbooks
summarize current thinking on the use of mulch in surface mine reclamation. In his guide for revegetation of coal
minesoils in the Eastern United States, Vogel (1981) states:  

   Mulches aid revegetation by reducing surface or sheet erosion, conserving soil moisture, and protecting seeds and
seedlings during the initial establishment of vegetative cover, and modify extremes in the soil's surface temperature.
Mulches aid vegetation establishment, especially under conditions of environmental stress and on minesoils that have
physical and chemical characteristics that hinder establishment and growth of plants.  

   Thornburg (1982) reports the following conclusion in his handbook on the use of plant materials on surface-mined
lands in arid and semiarid regions:  

   Mulches are often necessary and are generally beneficial in the arid and semiarid areas, especially on south and
west facing slopes or alkaline areas.  

   One commenter opposed the optional nature of the proposed rule because he believed the coal industry would
almost always be able to push a State into the least stringent regulatory posture. Minimal standards were believed
necessary to prevent this from happening. Similarly, another commenter felt that the proposed rule would probably
result in State regulatory programs that do not require mulching or soil stabilization in any form. It also was argued
that the proposed rule allowed too much discretion on the part of the regulatory authority and that the word "may" in
the proposed rule should be changed to "shall." Another commenter, who objected to the proposed rule, felt that it
was contradictory because the regulatory authority might not require mulch where deemed necessary. This
commenter believed that, if mulch was deemed necessary by the regulatory authority, then it should be required, not
optional. Sensitive environmental conditions were cited by still another commenter as reason for having mandatory
mulching requirements.  

   There was disagreement on the economic implications of the proposed rule. One commenter said that the
elimination of the mandatory mulching requirement would be of economic and practical benefit to operators in those
areas which would not require mulching for stabilization or growth enhancement, while another commenter argued
that the adverse impacts of not using mulch could far outweigh any cost savings.  

   The reasons OSM is adopting the final rule are described in the preceding paragraphs. OSM recognizes that in
these situations where the regulatory authority concludes that mulching is not necessary, operators may obtain an
accompanying economic benefit. However, any waiver of the requirements of Sec. 816.114 must be based on the
finding set forth in that section.  

   Finally two commenters suggested language changes in the proposed rule. One recommended adding the phrase
"for erosion control and plant establishment" to the end of the rule in order to identify the objectives of using mulch
and  soil stabilization practices. The other commenter noted that the provisions of the section applied to both mulch
and other soil stabilization practices and, to be consistent, that the title of the section should refer to both. OSM
agrees with the latter comment and has changed the section title in response to the commenter's suggestion.  
   
SECTION 816.115 REVEGETATION: GRAZING  

   Previous Sec. 816.115 required livestock grazing for the last two years of the responsibility period when the
approved postmining land use is range or pasture land. This requirement was intended to assure that the vegetation
would support about the same number of livestock that would be supported had the area not been mined. OSM
suspended previous Sec. 816.115 on August 4, 1980 (45 FR 51549), in response to a U.S. District Court ruling that
section 515(b)(19) of the Act does not require lands with a postmining use of pasture or grazing to be actually
subjected to grazing activities. In re: Permanent Surface Mining Regulation Litigation,  No. 79-1144 (D.D.C.,
February 26, 1980.) The final rule, which removes the special success standard of previous Sec. 816.115, does not
require or restrict livestock grazing on mined lands. The success standard for grazing lands in these revised rules is
contained in final Sec. 816.116(b)(1).  

   Five commenters discussed the proposed removal of Sec. 816.115. One commenter believed the proposed action
by OSM was reasonable and desirable, while the other four sought to retain the grazing requirements of the previous
rule.  

   One commenter alleged that OSM had side-stepped the issue of requiring grazing of reclaimed land, and that Judge
Flannery had erred in his conclusion that restoration of premining productivity could be determined by making a soil
survey. The commenter felt that Sec. 816.115 should be reinstated because new technical support for the grazing
requirement, which was not available to the court, had been developed. The commenter cited a National Academy of
Science report (National Research Council, 1981) as evidence that a soil survey is not adequate to measure the
productive potential of reclaimed soils and that productivity on lands reclaimed for grazing must be based on the
results of actual grazing.  

   OSM recognizes that the National Academy of Science study did conclude that a soil survey alone is insufficient to
measure the productive potential of reclaimed soils and that grazing is one means of showing that productivity had
been restored. However, in light of the court's decision, there is still an insufficient basis for OSM to promulgate a
rule requiring grazing on all reclaimed pasture and grazing lands. Use of a reference area or other appropriate
standard is also possible. OSM's adoption of this position is not meant to preclude States from either allowing or
requiring grazing of reclaimed pasture and range land.  

   Other commenters also thought that the grazing requirements of previous Sec. 816.115 should be retained,
especially for determining the success of revegetation on western range lands. One organization asserted that the
only way to determine whether or not the carrying capacity of reclaimed mine soil was equal to that which existed
prior to mining would be to graze livestock on it using the same management techniques that were used prior to
mining.  

   The determination of range land productivity should consider the pounds of beef (or equivalent) that may be
produced per unit of area. This is dependent upon the quality as well as the quantity of forage available. Hence,
equal quantities of forage are not always a true reflection of range or grazing land productivity, and measures of
revegetation success should take into account the nutritional value of the forage when determining whether
productivity has been restored. However, OSM is not requiring that actual grazing must occur in each instance.  
   
SECTION 816.116 REVEGETATION: STANDARDS OF SUCCESS  

   Final Sec. 816.116 is divided into three paragraphs. Paragraph (a) describes, in a general manner, how the success
of revegetation shall be determined; Paragraph (b) identifies minimum conditions that must be satisfied for specific
land uses; and Paragraph (c) sets provisions relating to the period of operator responsibility for revegetation success.  

   The final rules differ in several important respects from those which were proposed. Language has been added in
Sec. 816.116(a)(2) to set a benchmark which all revegetation success standards used by regulatory authorities must
equal or exceed. This should not encumber a regulatory authority's ability to develop standards that reflect the
capability of local soils and climatic conditions. Furthermore, the 90 percent equivalency provision contained in the
previous rule, but not included in the proposal, has been retained. Also, the use of cultural practices during the period
of responsibility is more restricted than was proposed. The following portion of the preamble discusses these and
other changes and the comments that were received.  

   A few commenters offered remarks about their general impression of the proposed rule changes for Sec. 816.116.
One said that the overall effect of the proposed rule changes was a weakening of the previous rules that would result
in a failure to restore the land affected to a condition capable of supporting the uses which it was capable of
supporting prior to any mining. Another commenter believed that, under the proposed rules, regulatory authorities
could arbitrarily set success standards which might be less stringent than those required by the Act and recommended
that more specific guidelines be established by OSM.  

   OSM has, in selected sections, added more specific requirements. However, specific and detailed rules or criteria
would remove flexibility that is needed by the regulatory authorities to develop rules which reflect differences in
climate, soil, topography, and other conditions. This effort by OSM to provide greater flexibility in achieving
revegetation success standards should not be construed as a weakening of those standards or a lesser commitment to
the environmental protection provisions of the Act. OSM's rules provide a framework for individual regulatory
programs. These standards are expected to be supplemented, where necessary, by regulatory authorities.  
   
SECTION 816.116(a)  

   Proposed Sec. 816.116(a) identified general criteria on which the success of revegetation should be judged. These
included the effectiveness of the  vegetation for the approved postmining land use, the extent of cover compared to
the cover occurring in natural vegetation of the area, and the general requirements of Sec. 816.111. The final rule is
the same as the proposed rule, with some minor changes in wording for clarity.  

   One commenter recommended that in addition to extent of cover, species diversity should be specified as one of
the general criteria for judging the success of revegetation. The commenter said that this was needed to minimize the
potential for the establishment of monocultures or "species-poor" habitats detrimental to the premining natural
diversity of wildlife populations. Another commenter asked the significance of the language "and other general
requirements of Sec. 816.111" and whether it meant that a diversity success standard would be applied.  

   The purpose of Sec. 816.116(a) is to set a general basis for determining revegetation success. This statement
includes the effectiveness of the vegetation for the approved postmining land use, extent of cover, and other
requirements of Sec. 816.111. Diversity of vegetative cover is therefore a success standard since it is required by
Sec. 816.111(a)(1).  

   One commenter thought that productivity and diversity should be given equal weight to cover as a parameter for
determining the success of revegetation. This was believed to be necessary in order to fully implement Section
515(b)(19) of the Act. OSM disagrees that a general premise can be established assigning weights to the factors to be
considered in judging vegetation success. Section 515(b)(19) prescribes ground cover as a parameter for determining
success of revegetation. The vegetative cover must be diverse, effective and permanent. As previously indicated,
productivity may be included as a measure of the effectiveness  of the permanent cover.  

   Another commenter noted that the word "judged" had been substituted in the proposed rule for the word
"measured" in previous Sec. 816.116(a). The commenter thought that this substitution implied that OSM would use
qualitative rather than quantitative analysis for determining successful revegetation. The commenter added that
techniques and standards for quantitative measurement should be maintained.  

   OSM has retained the proposed wording because the proposed rule and the previous rule used these words in a
different context. Final Sec. 816.116(a) describes the substantive areas that will be ued to evaluate success; final Sec.
816.116(a)(1) discusses measurement. Previous Sec. 816.116(a) was concerned with techniques for measuring
success. Also, some requirements such as same seasonal characteristics of growth and capability of self-revegetation
may not require a numerical evaluation.  

   One commenter suggested deleting the phrase "the extent of cover compared to the cover occurring in natural
vegetation" from proposed Sec. 816.116(a) in order to clarify and improve the rule. As justification for the deletion,
the commenter explained that this concept was repeated in proposed Sec. 816.116(b) and that its presence in Sec.
816.116(a) might limit regulatory authorities to using only reference areas for determining revegetation success.  

   The commenter may have confused the general requirement of achieving cover equal to the cover of the natural
vegetation of the area in proposed Sec.  816.116(a) with approaches or methods of demonstrating that cover
requirements have been satisfied. Reference areas are one of several possible means of demonstrating that an
operator is in compliance with Sec. 816.116(a). Retention of the question wording does not limit the regulatory
authority to using reference areas.  
   
SECTION 816.116(a)(1)  

   Proposed Sec. 816.116(a)(1) would have required success standards and sampling techniques for measuring
success to be selected by the regulatory authority after consultation with appropriate State and Federal agencies.
These standards were to be specified in an approved regulatory program. The final rule adopts the proposal with one
change. It does not require consultation with other agencies.  

   Two commenters recommended deleting proposed Sec. 816.116 (a)(1) and (a)(2) and substituting new language
for Sec. 816.116(a). The new language suggested by the commenters would require success to be measured by
techniques approved by the regulatory authority utilizing recognized and practical evaluation techniques appropriate
for the various subregions of the United States and accepted by recognized scientific and professional groups. As
justification for the recommended changes, the commenters argued that there is no statutory language which supports
reference areas or technical guidance procedures as the only methods to compare premining and postmining
vegetation. OSM was said to have failed to demonstrate and substantiate the statistical validity of the reference area
method that it required for testing revegetation success. Furthermore, the commenters argued that proposed Sec.
816.116 (a)(1) and (a)(2) should be deleted because they were not applicable throughout the country.  

   OSM has not adopted the suggested changes. Neither the Act nor the proposed rules mandate the use of reference
areas for evaluating revegetation success in every situation. However, reference areas may be required when deemed
appropriate by the regulatory authority. The rules also allow other standards for success, such as fixed standards
(number of trees and shrubs per acre) and variable standards (average county yield by soil type), to be developed and
applied by regulatory authorities when these standards are appropriate and approved as part of the regulatory
program.  

   The final rules allowing the use of reference areas have ample technical support. The National Academy of
Sciences (National Research Council, 1981) suggests two basic approaches that may be used for measuring
revegetation success. The first is to specify levels of biomass production -- amount of ground cover and kind of plant
species to be established -- based on the capacity of soils to support vegetation or to grow crops. The second
approach to evaluating reclaimed land is to set aside an undisturbed reference area near the reclaimed site, with a
pattern of soils similar to that of the premining soils. The productivity, cover, diversity, or other applicable
measurement of the reclaimed area can be compared with the reference area when determining the success of
revegetation.  

   One commenter asked three questions concerning the provisions of proposed Sec. 816.116(a)(1).  

     1. What is meant by the term "standards for success"?  

     2. Will sampling techniques acceptable to the regulatory authority be spelled out in regulations, rather than
guideline form?  

     3. Are current approved regulatory programs to be revised accordingly?  

   Standards for success are approved models or measures by which the properties of vegetation on reclaimed areas
are compared for the purpose of determining the degree of success. The applicable properties to be tested will
depend upon the postmining land use and the method of evaluation. Inherent in this concept is a statement of the
minimum level or value that is acceptable for ending the period of operator responsibility and release of performance
bonds.  

   Sampling techniques acceptable to the regulatory authority must be included in all regulatory programs. They may
appear as a rule or may be in a guideline form that is incorporated into the regulatory program. These sampling
techniques are subject to review and public comment. The literature cited in this preamble may be used by States as
technical references on vegetation sampling. Previously approved regulatory programs need not be revised if they
include success standards or sampling techniques for measuring success which are consistent with these final rules.  

   One commenter suggested that the statistical expertise require to enforce the proposed rules will be greater than
that of the typical inspector and many regulatory authority staffs. OSM does not agree. State regulatory authorities
usually have a group of experienced inspectors to perform bond release inspections. Many of these States had
elaborate sampling and statistical testing requirements prior to the Act. Other have increased their staff capabilities
with the development of permanent regulatory programs for their States. Statistical expertise required under these
final rules is not that different from that required under the previous rules. In any case, guidelines developed to
supplement the requirements of the rules could simplify inspector responsibilities and minimize the burden on the
regulatory staff.  

   One commenter sought to substitute the words "ecologically sound" or "scientifically acceptable" for the words
"statistically valid" which describe the techniques for measuring revegetation success in final Sec. 816.116(a)(1).
The commenter expressed concern that unless the language was changed it would be difficult to obtain statistically
valid sampling in some sparsely vegetated communites on Western lands.  

   A second commenter also concerned with the application of statistics contended that sampling methods generally
used to obtain vegetative cover data do not seem to have adequate repeatability to support their use. The commenter
recommended that OSM reconsider the proposed rule in light of what is statistically achievable and the burden such
rules place upon operators.  

   OSM has reviewed the requirements of the proposed rule and decided to retain them in the final rule. Under this
rule, the method of sampling vegetation could vary depending upon the precise standard for success included in the
State program. In this manner, both an "ecologically sound" and "scientifically acceptable" technique for measuring
the success of revegetation can be developed. On sparsely vegetated lands, sampling may be limited to gathering 
data for estimates of total vegetative ground cover. There also may be circumstances where, with the approval of the
regulatory authority, historical data collected for the same cover type within the region can be used, rather than
reference-area data. In the East, 100 randomly located point-frequency observations will usually provide an
acceptable sample size for the estimation of vegetative ground cover. Small sample sizes are associated with large
statistical error which can make a test for revegetation success meaningless. OSM has not stated a level of sampling
precision in the final rules but will instead evaluate on a case-by-case basis the adequacy of predetermined sample
sizes or methods of sample size selection proposed for use in State programs.  

   Four commenters suggested changes to the proposed language which would have required the regulatory authority
to consult with appropriate State and Federal agencies when selecting standards for success and sampling techniques
for measuring success. Two commenters wanted language that would require consultation with Federal agencies only
when Federal land is involved. A third commenter suggested substituting the words "organizations and individuals"
for "State and Federal agencies" because the Act does not specifically require coordination with government
agencies. Another commenter wanted to modify the proposed language by stating that Federal agencies include the
U.S. Department of Agriculture (USDA). The USDA was cited as having recognized expertise in revegetation.  

   OSM has reviewed these comments and decided to delete the consultation requirement. State regulatory authorities
are capable of determining which organization or individuals can provide them with the best technical assistance in
developing success standards or whether such assistance is needed. This deletion will not preclude OSM from using
the expertise of other agencies when evaluating success standards proposed by the States.  

   In support of proposed Sec. 816.116(a)(1), one commenter wrote that the setting of standards for measuring
success is properly left up to the State regulatory authorities because of the diverse environmental conditions
throughout the U.S. The commenter added that States should not have to refer to technical guidance procedures
published by the USDA or U.S. Department of the Interior (USDI) as was required by the previous rule.  

   OSM agrees and has adopted this aspect of the proposed rule because the Act does not limit success standards to
those published by USDA or USDI. Also, universities, professional societies, State agencies, and conservation
organizations often have the necessary expertise to develop valid standards, and OSM does not want to limit or
exclude the use of such outside assistance.  
   
SECTION 816.116(a)(2)  

   Proposed Sec. 816.116(a)(2) required standards for success to include criteria to evaluate ground cover,
production, or stocking. These parameters were considered to be equal to the approved success standard when they
were "equivalent" with 90-percent statistical confidence. Instead of an absolute equivalence, the final rule contains
the provision found in previous Sec. 816.116(b)(3), which allows 90 percent of a standard to be considered equal to
the standard for the purpose of determining revegetation success.  

   Sample estimates are subject to variation. How much they vary depends primarily on the inherent variability of the
population and on the size of the sample and population. The statistical way of indicating reliability of a true
population parameter is to establish a confidence interval. A confidence interval can be defined as the range within
which a sample estimate can vary and not be significantly different than the population parameter at a given level of
statistical confidence. The final rule clarifies that the proposed phrase "90-percent statistical confidence" was
intended to require a 90-percent statistical confidence interval to be used when measuring revegetation success. The
desired level of statistical confidence associated with an interval is usually referred to as the "alpha" error. A 90-
percent confidence interval has a 0.10 alpha error.  

   Two commenters proposed changing the 90-percent statistical confidence interval that was specified in the
proposed rules. One suggested using a 95-percent confidence interval because that level of confidence is comparable
to that used in most agricultural experiments. Another commenter desired to retain the 80-percent statistical
confidence interval for shrublands which was specified in previous Sec. 816.116(b)(3). As justification, the
commenter stated that unless confidence intervals are tailored to different community types, it may discourage
operators from establishing diverse plant communities since diversity increases the statistical variability of the
measured parameters.  

   OSM has retained the 90-percent statistical confidence interval in the final rule. Adoption of a 95-percent
confidence interval as suggested by the commenter would increase the probability of a "Type II" error. An error of
this nature occurs when the permit area lacks sufficient vegetative growth to meet the designated standard but would
be declared to have been successfully revegetated on the basis of evidence derived from sample data. The Wider 95-
percent confidence interval would allow a greater acceptance of samples from the lower end of the predicted range of
revegetation sample values than would the 90-percent confidence interval. In light of the environmental
consequences of arriving at an incorrect conclusion (i.e., release of a performance bond when revegetation is
inadequate), a 90-percent confidence interval is more appropriate for regulatory purposes than a 95-percent
confidence interval.  

   An 80-percent confidence interval for shrublands would be a more stringent test of revegetation success than would
be used for other vegetative cover types. This is because an 80-percent confidence interval (i.e.,  the range of
acceptable sample values) is narrower than a 90-percent confidence interval. Thus, it would be statistically more
difficult to establish revegetation success on shrublands because there is a smaller range of acceptable values. The
90-percent confidence interval is adequate to assume that operators who establish shrubland plant communities will
attain revegetation success.  

   Four commenter noted that the proposed rule omitted the equivalency provision found in the previous rule. This
provision stated that ground cover, productivity, and stocking will be considered equal to the success standard when
they are equal to 90 percent of the standard. Two commenters said that the omission would "tighten" the rule.
Another commenter argued that the provision should be retained for the reason given in the preamble to the previous
rule (44 FR 15237, March 13, 1979). In that preamble, OSM stated that the use of 90 percent was justified to allow
for climatic variations that may affect productivity during the two consecutive growing seasons that production is 
measured to determine revegetation success.  

   The same preamble also stated (44 FR 15238) that "the 90-percent requirement for ground cover and production is
an equivalent measure of success since there has to be a basic assumption that productivity will continue to improve
with time when the land has been restored to the original productive capacity." The last commenter also advocated
keeping the 90-percent equivalency provision and explained that the extreme annual and spatial variablility of
vegetation cover and production, particularly in the western United States, justified its retention. OSM agrees with
the commenters' reasoning and has included the 90-percent equivalency provision in the final rule.  

   A commenter believed that proposed Sec. 816.116(a)(2) did not comply with the statutory requirements of Section
102 of the Act. The commenter stated that the proposed language contained no clear threshold below which a
standard could be considered unacceptable by OSM. The following language was suggested: "In no event shall the
chosen standard be lower than ground cover, productivity, or tree stocking standards that would be normal for the
premine soils in the area being reclaimed. Where available, the standards should be based on the county average
yield, per soil type in the areas being reclaimed under equivalent levels of management." The commenter added that
the proposed language should prevent disparity from developing between the use of revegetation standards and
reference areas and should provide a necessary minimum criterion by which acceptability of a proposed standard can
be judged.  

   OSM agrees that there should be a certain degree of uniformity among the vegetation success standards developed
by the States. Such a standard is provided generally in Secs. 816.111(a) and 816.116(a). These requirements are in
accord with Section 515(b)(19) of the Act. As previously indicated, Paragraphs (a)(1) and (a)(2) provide standards
for the measure of success and do not include a success threshold. However, in response to the comment, final Sec.
816.116(a)(2) clarifies that the criteria selected for the success standard must be representative of unmined lands in
the area being reclaimed. This should prevent potential disparity between the use of reference areas and the use of
other standards as the measure of success. The commenter's suggestion requiring use of county average yield as the
standard when available is rejected because it would unnecessarily have limited the type of success standards that
could be used by regulatory authorities.  

   One commenter believed that OSM had misread Section 515(b)(19) of the Act when drafting proposed Sec.
816.116 (a)(2) and (b). It was pointed out that this section requires that vegetative cover be "capable of self-
regeneration and plant succession at least equal in cover to the natural vegetation of the area -- not that the former
level of cover actually be present."  

   OSM disagrees. The use of the term "capable" in Section 515(b)(19) establishes the requirements for "self-
regeneration" and "plant succession," not the requirement pertaining to ground cover. Thus, the extent of postmining
cover must equal the cover of the natural vegetation of the area and not merely be capable of doing so. As stated
earlier, under final Sec. 816.116(a)(2), "equal" means 90 percent of the premining cover with 90-percent statistical
confidence.  

   One commenter suggested changing the language of proposed Sec. 816.116(a)(2) by including both shrubs and
trees to describe the type of stocking to be  evaluated. OSM has not adopted the proposed word "tree" in the final
rule to avoid the implication that stocking applies only to trees.  

   One commenter suggested specifying "species diversity" as one of the vegetation parameters in Sec. 816.116(a)(2).
This was proposed to minimize the potential for the establishment of monocultures or species-poor habitats
detrimental to wildlife. OSM has not accepted the commenter's suggestion because Sec. 816.116(a)(2) applies to
only those parameters that will require testing. The evaluation of species diversity, regenerative capacity, and
seasonal characteristics of growth required under Sec. 816.116(a) by the reference to Sec. 816.111 may not involve
sampling and statistical testing. The regulatory authority will select appropriate methods to evaluate these
parameters.  

   One commenter suggested changing the second sentence in proposed Sec. 816.116(a)(2) to indicate that statistical
tests are to be used to demonstrate that reclaimed areas are in less than the desired condition. As justification, the
commenter noted that statistical tests are designed to prove that population parameters of data are unequal, never that
they are equal. OSM has adopted the suggested change in wording of the rule because it more accurately identifies
the manner in which statistical tests will be used. In statistical tests, the null hypothesis usually states that there is no
difference between the true value of the population parameter and that which is being hypothesized. The null
hypothesis is a proposition which is considered valid unless evidence throws doubt on it. This means it is assumed
that the mine operator has achieved the required degree of revegetation success unless evidence as provided by the
sample data indicates that the standard has not been attained.  

   One commenter suggested the following language as the first sentence in Sec. 816.116(a)(2): "Standards for
success of revegetation are to include criteria to evaluate those vegetation parameters appropriate for the approved
postmining land use." The commenter reasoned that, aside from the specific requirement for cover, the Act does not
require anything more than the achievement of the approved postmining use.  

   This commenter failed to recognize that Section 515(b)(19) of the Act requires that the reestablished vegetation be
diverse, self-regenerating, effective, and of the same seasonal variety.  
   
SECTION 816.116(b)  

   Final Sec. 816.116(b) provides for the application of success standards in accordance with the approved
postmining land use and sets minimum conditions for specific land uses. These conditions identify certain vegetation
parameters that must be evaluated when determining the success of revegetation for grazing land or pasture land,
cropland, fish and wildlife habitat, recreation areas, forest, industrial, commercial or residential land uses, and
previously mined areas. The final rule differs from the proposed rule in that it does not require concurrence from the
Federal land management agency on minimum stocking levels and planting arrangement when Federal lands are
involved, since the responsibilities of the Federal land management agency are covered by 30 CFR 740.4 in the
Federal lands program (48 FR 6936, February 16, 1983). Also, the provisions of previous Sec. 816.116(b)(3)(ii),
regarding land to be used for industrial, commercial, or residential use, has been retained; ground cover  for areas
previously disturbed by mining must be adequate to stabilize the soil surface from erosion as was specified in
previous Sec. 816.116(b)(3)(i), but there is no description of the soil to be used.  

   Commenters suggested deleting all of proposed Sec. 816.116(b). One reasoned that this section provided too much
of a "cookbook" approach. Another commenter said that the revegetation standards were general in nature and would
be difficult to address across all mining regions of the United States.  

   The provisions of Sec. 816.116(b) are general to allow regulatory authorities the flexibility to develop success
standards that are tailored to conditions that exist within their States. OSM does not consider this a "cookbook"
approach. The rule does set criteria that must be examined to determine success, but it is the States' obligation to
identify the particular procedures which will be followed.  

   One commenter suggested substituting the word "approved" for the word "selected" in Sec. 816.116 (b)(1) and
(b)(2). The commenter reasoned that the mine operator clearly has responsibility for selecting reference areas where
required and that success standards may be selected or required by State or other agencies to be consistent with local
conditions and rules. In these instances, the word "approved" more appropriately describes the regulatory authority
role.  

   OSM agrees and has changed "selected" to "approved" in the final rule. It is the responsibility of the mine operator
to select reference areas to be approved by the regulatory authority when this method of measuring success is
contained in the regulatory program as a means of determining the success of revegetation.  

   CROPLAND:  Final Sec. 816.116(b)(2) requires that for areas developed for use as cropland, crop production on
the mined land must be at least equal to that of a reference area or other success standard approved by the regulatory
authority.  

   One commenter wanted to require that all crops which are part of a normal production cycle be grown to
demonstrate success of revegetation on cropland. The commenter explained that each crop responds differently on
reclaimed land and cited as evidence soybean and corn yields on a demonstration mine in Iowa.  

   Although OSM agrees with the commenter's contention that each crop will respond differently to postmining soil
conditions, it is not necessary to require all crops in the rotation be grown to demonstrate revegetation success. The
proposed rule was written in a broad manner to allow States the flexibility to determine which crop or group of crops
needs to be grown to satisfy the productivity requirement. Furthermore, States should recognize that crops in a
rotation may respond differently on reclaimed sites and therefore should develop their standards to accommodate
such conditions.  

   FOREST, WILDLIFE HABITAT, AND RECREATION AREAS:  For areas to be developed for fish and wildlife
habitat, recreation, shelter belts, or forest products, final Sec. 816.116(b)(3) requires vegetation success to be
determined on the basis of tree and shrub stocking and vegetative ground cover. Final Sec. 816.116(b)(3)(i) requires
minimum stocking and planting arrangements to be specified by the regulatory authority on the basis of local and
regional conditions and after consultation with the State agencies responsible for the administration of forestry and
wildlife programs. Final Sec. 816.116(b)(3)(ii) requires that trees  and shrubs used in determining the success of
stocking and the adequacy of plant arrangement must have utility for the approved postmining land use. Such trees
and shrubs must be healthy at the time of bond release and must be in place for at least two growing seasons to be
counted in determining stocking adequacy. An additional requirement that 80 percent of the trees and shrubs used in
determining revegetation success must be in place for at least 3 or 8 growing seasons is described below.  

   One commenter objected to what was believed to be the lack of a minimum success standard for ground cover. The
commenter thought it to be foolhardy to relax the standards for revegetation prior to any long-term demonstration of
whether the previous performance standards were adequate.  

   Final Sec. 816.116(b)(3)(iii) requires the vegetative ground cover not to be less than required to achieve the
postmining land use. This, in effect, is a minimum standard for ground cover where the postmining land use is forest,
wildlife habitat, shelter belts, and recreation. The rule must be written in a general form because of the variation in
natural ground cover conditions throughout the States. Thus, a specific percentage of ground cover is not required.
Each State will find it necessary either to require the use of reference areas, to specify minimum levels of ground
cover as a percentage of surface area, or to adopt some other acceptable standard.  

   One commenter suggested adding herbaceous production as an additional parameter for determining revegetation
success for wildlife habitat, recreation, and shelter belts. No reason was given by the commenter for suggesting this
change.  

   Herbaceous production is not a primary measure of revegetation success where the postmining land use is
recreation or shelter belts. It is important where the postmining land use is wildlife habitat for grazing animals. In
such situations, the regulatory authority may find it desirable to use the productivity of herbaceous cover as a
determinant of revegetation success.  

   Two commenters sought to have OSM reinstate minimum tree and shrub stocking requirements. The first
commenter argued that a Federal standard was needed to avoid environmental "bargaining" and varying
interpretation that made the Act necessary. The second commenter proposed a new subparagraph (b)(3)(iv) that
required a minimum stocking of 450 trees or shrubs per acre with no less than 75 percent being of commercial value.
This proposal tracks the requirements of the previous rule. As justification for the proposal, the commenter cited the
preamble to the previous rule (44 FR 15241).  

   OSM disagrees with these commenters and believes that a minimum stocking level need not be established in the
Federal rules. However, States may find it appropriate to set minimum stocking levels in their programs. Such
minimum levels must be determined on the basis of local and regional conditions and in no event be lower than
would be expected or is commonly found on similar unmined lands in the area. Furthermore, it is not necessary to
make a distinction in the Federal rules between commercial and noncommercial forest land; however, some States
may find such a classification advantageous when setting tree stocking success standards.  

   One commenter advocated requiring regulatory authorities not only to consult with State forestry and wildlife
agencies but to receive the approval of these agencies when determining minimum stocking levels and planting
arrangements. The commenter explained that these agencies were most competent to judge the adequacy of standards
for shrub and tree stocking and planting arrangement.  

   Approval by such agencies is not needed. OSM acknowledges that these State agencies are authoritative sources of
forestry and wildlife management information and that State regulatory agencies should strongly consider their
recommendations when setting minimum tree and shrub stocking levels in State regulatory programs. However, the
responsibility under the Act rests with the regulatory authority.  

   Two commenters felt that the reference to Federal lands should be deleted from proposed Sec. 816.116(b)(3)(i),
which required State regulatory authorities to obtain concurrence from Federal land management agencies when
setting minimum stocking levels and planting arrangements for Federal lands. The commenter suggested that
references to Federal lands should be limited to the Federal lands program in 30 CFR Chapter VII, Subchapter D,
and to Federal-State cooperative agreements.  

   OSM agrees with the commenters and has not adopted the requirement in the final rule. Final 30 CFR 740.13(c)(5)
requires the regulatory authority to consult with the Federal land management agency and include any comments in
the record of the permit decision (48 FR 6937, February 16, 1983). This requirement in the Federal lands rules is
believed to be adequate to allow Federal land management agencies a voice in determining stocking levels and
planting arrangement on Federal lands.  

   One commenter wanted to know how the utility of trees and shrubs for the postmining land use would be
determined and who would do it. It was noted by the commenter that some species, such as European black alder and
autumn olive, are nitrogen-fixing and therefore contribute to the growth of the permanent timber stand but may not
have utility for the postmining land use.  

   The utility of trees and shrubs for the postmining land use will be determined by the regulatory authority. Section
816.116(b)(3)(ii) should be interpreted as a general requirement. For example, if the postmining land use is
commercial forestry, then an adequate number of the trees that are planted must be species with commercial value. If
the postmining land use is wildlife habitat, the species planted and counted for meeting the stocking requirement
should be recognized for their value in providing food, cover, or other needs of wildlife. Similarly, regulatory
authorities can develop standards that reflect more than one intended use, such as a combination of forestry and
wildlife habitat.  

   Commenters objected to the proposed provision that would allow trees and shrubs to count toward the success
standard if they had been in place a minimum of two growing seasons. One charged that the "two growing seasons"
standard may seriously compromise the general revegetation requirement of achieving a permanent vegetative cover
that is capable of self-regeneration. The commenter added that the planting of woody species as few as 2 years prior
to bond release exceeds the reasonable limits of non-augmentative practices that can be expected to continue as part
of the postmining land use. Also, the period of extended  responsibility for husbandry practices used on trees and
shrubs should be equivalent to, and be triggered by the same standards applied to herbaceous components of the
plant community.  

   Another commenter believed that the proposed rule could result in the failure to recognize the impact of deeper
rooting zones which, after 2 years of growth, may cause the trees to become stunted and die. Another commenter
proposed additional language to make allowance for selective replanting of trees to ensure full stocking, but retained
the basic requirement that reforestation success be based on survival of the majority of the trees in the initial
planting.  

   These arguments have merit and OSM has adopted new language similar to that suggested by the third commenter.
This new language calls for at least 80 percent of the trees and shrubs to have been in place three or more growing
seasons in areas where the period of responsibility is 5 years. In areas where the period of responsibility is 10 years,
at least 80 percent of the trees and shrubs must be in place eight or more growing seasons. Furthermore, no tree or
shrub shall be counted when determining success if it has not been in place for at least two growing seasons. This is
believed to be a reasonable compromise that will allow normal replanting if approved as a husbandry practice under
final Sec. 816.116(c)(4) (described below) and still demonstrate successful revegetation.  

   One commenter wanted to know if herbicides could be used to control herbaceous cover around tree seedlings and
whether such cover with spots or bands of dead grasses would be acceptable. The commenter also wanted to know
what value ground cover would have where the postmining land use is forest.  

   The use of herbicides to control herbaceous vegetation is an effective method for assisting in the establishment of
trees and shrubs. Either spot or band application is acceptable so long as the area affected is not larger than necessary
to allow the trees and shrubs to become established and the soil is protected from excessive erosion. Erosion control
is the main value of ground cover where the postmining land use is forest. The grasses and legumes stabilize the land
until tree-crown and root closure occurs.  

   INDUSTRIAL, COMMERCIAL, AND RESIDENTIAL USE:  Final Sec. 816.116(b)(4) sets minimum conditions
for the reclamation of areas to be developed for industrial, commercial, and residential use. The proposed rule
required sufficient ground cover to control erosion. Under the proposal, in the event the approved postmining land
use was not achieved within 5 years, the general success standards of Paragraph (a) of Sec. 816.116 would have
applied.  

   A commenter felt the proposed language was reasonable but could be improved by adding additional language that
would make it clear that the period of responsibility will begin anew when failure to achieve industrial, commercial,
and residential uses results in augmented seedings, fertilization, or other work to meet revegetation success
standards. Another commenter urged deletion of Sec. 816.116(b)(4). The commenter contended that the section
conflicted with previous 30 CFR 805.13(f), which stated that the permittee is obliged to complete the reclamation
plan in such a manner that the land will be capable of supporting the approved postmining land use. The commenter
also believed that the permittee cannot be held responsible for the action of third parties.  

   OSM has reconsidered the proposed rule in light of the second commenter's objections. Although OSM cannot
require third parties to develop the reclaimed land for an industrial, commercial, or residential use, the operator is
responsible for the success of reclamation, including the possible achievement of different revegetation standards
under a permit revision based on a postmining land use different from the one originally approved. For this reason,
OSM has decided not to adopt the proposed language and to retain the language of previous Sec. 816.116(b)(3)(ii).
Thus, in the final rule, OSM has retained the standard which provides that, for areas to be developed as industrial,
commercial, or residential use less than 2 years after regrading is completed, the vegetative ground cover shall not be
less than that required to control erosion.  

   REMINED AREAS:  Proposed Sec. 816.116(b)(5) required that remined areas not initially reclaimed to the
permanent program performance standards (816 or 817) must have, as a minimum, vegetative ground cover not less
than can be supported by the best available soil material in the redisturbed area and not less than the ground cover
that existed before redisturbance. The final rule contains the added requirement that the vegetative ground cover
must be sufficient to stabilize the soil surface from erosion but does not adopt the requirement that ground cover be
measured on the basis of what could be supported by the best available soil material.  

   One commenter felt that the changes that OSM had proposed in Sec. 816.116(b)(5) were minor changes which
were acceptable. Other commenters wanted to retain in the final rule a provision of previous Sec. 816.116(b)(3)(i),
which required the vegetative cover on remined areas to be adequate to control erosion. One State argued that the
vegetative ground cover existing prior to redisturbance is often very sparse and inadequate to control offsite
damages. The commenter felt the proposed rule would perpetuate this condition unless language were added that
would require the cover to be adequate to control erosion. A second commenter also urged the adoption of an
erosion control requirement by explaining that operators would not be able to meet effluent and water quality
standards required for bond release on the basis of physical manipulation alone. The establishment of a vegetative
cover that is adequate to control erosion was thought necessary to improve the operator's probability of meeting the
bond release requirements of Section 519(c) of the Act. Another commenter believed Section 515 (b)(2), (b)(4), and
(b)(16) of the Act clearly indicated statutory support for an erosion control requirment. A final commenter thought
an erosion control requirement was necessary but was unclear in his statement of the reason why.  

   OSM has reconsidered its proposal and agrees that the arguments presented by these commenters are valid. The
cover of some mined areas is sparse or even completely absent. These areas may continue to erode and cause offsite
damage. The proposed rule could have allowed such conditions to continue to occur after remining even though the
operator used the best soil materials available and reestablished the same degree of cover that existed on the
disturbed site. An extra step, such as the use of sewage sludge, paper mill sludge, fly ash, or other soil amendments,
may be necessary to establish sufficient vegetative cover to control erosion and effectively stabilize the site. The
final rule requires the vegetative ground cover to be adequate to control erosion.  

   One State regulatory authority contended that the provision in the proposed rule which required the ground cover
not to be less than the cover that can be supported by the best available topsoil or other suitable material in the
redisturbed area was not an objective, measurable standard that could be applied by a regulatory authority. The State
pointed out that it is difficult to determine the degree of ground cover that the best soil material can support. As an
alternative, the State suggested language that would require the ground cover to be adequate to prevent the formation
of rills and gullies caused by erosion.  

   OSM agrees that it would be difficult to actually apply such a provision without greenhouse tests or experimental
field plots, which would place an unnecessary burden on the operator and the regulatory authority. For this reason,
and the fact that the final rule contains other more easily enforceable cover requirements, OSM has not adopted that
portion of the provision. In any event, operators must salvage and redistribute the best available soil material for the
plant growth medium as required by Sec. 816.22. The suggested alternative, to require cover sufficient to prevent the
formation of rills and gullies, was not accepted because Sec. 816.95(b) adequately addresses the problem of rills and
gullies.  

   Another State supported the proposed rule by expressing its belief that, for remined areas not previously reclaimed
properly, the vegetative cover should be at least equal to that which existed before mining. It was also suggested that
reclamation plans should include measures by which the most desirable strata for use as a growth medium must be
recovered. The topsoil rules in Sec. 816.22 address operators' responsibilities concerning soil materials to be
redistributed after remining. The operator must submit as part of the general reclamation plan his or her plans to
remove, store, and redistribute topsoil, subsoil, and other material as required by Sec. 780.18(b)(4). The revegetation
rules need not repeat these requirements.  

   Another State contended that the proposed rule limited itself to only those areas that are remined and did not
adequately address redisturbances resulting from the construction of haul roads, sedimentation ponds, and other
miscellaneous uses associated with coal mining. This State felt that the remining rules should cover redisturbance of
any kind since there are no other revegetation performance standards that address these situations. Language was
suggested which would correct this perceived omission. OSM has adopted language to clarify that Sec.
816.116(b)(5) applies to a redisturbance of a previously mined area resulting from any surface coal mining
operation, including roads and other uses. This was intended by the proposal.  
   
SECTION 816.116(c)  

   Final Sec. 816.116(c) describes the period of extended responsibility for successful revegetation under Section
515(b)(20) of the Act to which performance bond release is tied under Section 519(c) of the Act and under 30 CFR
Part 800. This provision also implements the requirement imposed by the U.S. District Court in In re: Permanent
Surface Mining Regulatory Litigation, supra,  slip op., p. 61, which had been implemented in part by the suspension
of a portion of previous Sec. 816.116(b) on August 4, 1980 (45 FR 51549). A new Paragraph (c)(4) is added
describing the husbandry practices that may occur during the period of extended responsibility. The new paragrap is
derived from previous Sec.  805.13(b)(3).  
   
SECTION 816.116(c)(1)  

   Proposed Sec. 816.116(c)(1) would have required the period of responsibility for revegetation success to begin
after the last year of augmented seeding, fertilizing, irrigation, or other work, excluding tree and shrub planting,
maintenance work, and husbandry practices that could be expected to continue as part of the postmining land use.
The final rule is the same as the proposed rule with the exception that tree and shrub planting and maintenance work
are not generally permitted during the responsibility period without starting the period anew. As described below,
allowable husbandry practices are tied to a specific requirement that they can be expected to continue as part of the
postmining land use.  

   A commenter stated that excluding tree and shrub planting and maintenance work from augmentative practices and
allowing interseeding and supplemental fertilization during the first 5 years of the responsibility period in the West,
and supplemental irrigation during the first 2 years of the responsibility period, all have significant potential for
abuse and increase the likelihood that there will be vegetation failures after the bond is released. Similar concerns
were expressed by a second commenter who thought the proposed rules were inconsistent with Section 515 (b)(19)
and (b)(20) of the Act by effectively reducing the responsibility period for bonding by one-half for western mined
lands. Another commenter was concerned that the responsibility period was shortened for success of revegetation
and expressed the view that bond should not be released until a suitable time has elapsed to be sure the revegetation
will be successful.  

   Other commenters supported the proposed rules. One individual urged the adoption of proposed Sec. 816.116(c)
and was pleased that revegetation management and husbandry practices were finally recognized by OSM and would
not act as a penalty for operators who used them. A State regulatory authority was specifically pleased with proposed
Sec. 816.116(c)(1). Another commenter thought that the use of cultural practices, including irrigation, has merit,
especially since it would not involve a restarting of the responsibility period.  

   The final rules do not reduce the responsibility period. While the use of certain cultural practices, such as
interseeding and tree and shrub planting, could be beneficial in establishing diverse plant communities if allowed
during the period of responsibility, the Act is clear that any practice that constitutes augmented seeding, fertilizing,
or irrigation must be completed prior to the extended period of responsibility. The final rule has been modified
accordingly. These changes and a more complete discussion of the comments received are presented below.  

   START OF RESPONSIBILITY PERIOD:  A commenter supported the proposed changes in Sec. 816.116(c)
regarding the start of the responsibility period for reclaimed areas. In contrast, a second commenter felt that the
starting of the responsibility period for bond release after the last year of augmented seeding and fertilization rather
than at the time vegetation had met the standards for success was unacceptable, especially in the arid West.  

   In the February 26, 1980, district court decision, cited supra, it was noted that Congress stated that, for areas where
precipitation is less than 26 inches per year, "the length of time necessary to reestablish vegetation on mining spoil
varies considerably * * * [and] ranges from ten years upward. Thus, the ten year standard of the bill represents a
minimum time under the most favorable conditions." (H. Rept. No. 95-218, 95th Cong., 1st Sess. 109, 1977). In the
court's opinion, the Act focused not on attaching a 5- or 10-year liability period after successful revegetation occurs,
but directed a 5- or 10-year period to enable the coal operator to achieve successful revegetation. The court,
therefore, remanded these rules and suggested that the 5- or 10-year liability period begin "after the last year of
augmented seeding, fertilizing, [and] irrigation."  

   In response, OSM suspended the provisions of Secs. 816.116(b) and 817.116(b) that started the period of
responsibility at the point when the operator met the vegetation success standard (45 FR 51548, August 4, 1980).
States were advised that they could permit the period of liability to begin from the point at which the operator
completes seeding and fertilizing and that the period of liability would begin again whenever augmented seeding,
fertilizing, irrigation, or other work was required or conducted on the site prior to bond release. The final rule is in
agreement with the court's decision.  

   A commenter suggested adding language to proposed Sec. 816.116(c)(1) in order to clarify that the responsibility
period is not restarted by supplemental fertilization and interseeding in areas of less than 26.0 inches average annual
precipitation. Proposed Sec. 816.116(c)(3) would have allowed these practices during the first 5 years of the
responsibility period without starting the period anew. As stated elsewhere in this preamble, Section 515(b)(20) of
the Act limits OSM in this regard. Thus, the final rule does not allow such practices during the period of
responsibility.  

   THIRD PARTY RESPONSIBILITY:  A commenter suggested adding language to proposed Sec. 816.116(c)(1) to
allow responsibility during the 5- or 10-year responsibility period to be transferred to any party, such as the
landowner, so long as the bonding requirements of Subchapter J are met. This commenter reasoned that some
operator-landowner leases entered into before the enactment of the Act or establishment of OSM rules lack
provisions establishing a time frame when landowners are to take over their property following mining and
reclamation. In these cases, operators have no legal mechanism for preventing the landowner from reentering his or
her property for farming or grazing prior to achievement of the revegetation standards. OSM was urged to consider a
modification which would shift the burden of taking action against the landowner from the operator to the regulatory
authority in situations where the landowner may use the land in a manner that jeopardizes bond release.  

   The Act and rules include provisions for the transfer, sale, and assignment of responsibilities under a permit. These
provisions may be used to transfer responsibility if certain conditions are met and the transfer is approved by the
regulatory authority. Without such an approved transfer, the operator remains responsible for revegetation success
and other reclamation requirements.  
   
SECTION 816.116(c)(2)  

   Proposed Sec. 816.116(c)(2) required the period of responsibility to continue 5 full years where the average annual
precipitation is more than 26.0 inches. Vegetation parameters were to equal the approved success standard during the
growing season of the last year or, if required by the regulatory authority, during the growing seasons of the last 2
years of the responsibility period. The final rule is the same as the proposed rule except for some minor changes in
wording for clarity.  

   Two State regulatory authorities proposed that additional wording be included in Sec. 816.116 (c)(2) and (c)(3) to
indicate that the period of responsibility must be "not less than" the appropriate 5 or 10 years. One of these States
also recommended that the words "or exceed" be added to allow the permittee to be in compliance not only when the
success standard is equaled, but also when it is exceeded. OSM has adopted these suggestions in the final rules
because they appropriately convey the intent of the Act and remove possible differences in interpretation.  

   ONE- OR TWO-YEAR TEST OF SUCCESS:  A commenter felt that proposed Sec. 816.116(c)(2) should be
changed to allow the regulatory authority to accept yield and productivity documentation on either the fourth year or
the fifth year in areas of more than 26 inches average annual precipitation since adverse climatic conditions, such as
area-wide drought, may prevent the operators from meeting success standards during the fifth year.  

   Section 515(b)(20) of the Act requires operators to assume responsibility for successful revegetation for a period
of 5 years. Acceptance of data for proof of reclamation success solely from the fourth year would in effect shorten
the responsibility period and be inconsistent with the Act. Furthermore, data from the fourth year is more apt to
reflect a carryover effect from fertilization and other practices used to initially establish the vegetative cover. Hence,
the rule has been adopted as proposed.  

   A commenter argued that there is no statutory basis for allowing the regulatory authority the option of requiring
that vegetation equal or exceed the success standard for the last 2 years of the responsibility period. The commenter
alleged that the statutory obligation has been met if the operator meets the standard in the last year of the period.
Another commenter thought the proposal allowing 1 year, unless the regulatory authority requires 2 years, was more
practical and less burdensome than the previous rule both for regulators and operators. Two additional commenters
asserted that 2 years should always be required for proof of revegetation success. One of these commenters stated
that under normal circumstances there should not be any serious difficulty in attaining a vegetation standard by the
fourth year and maintaining it through the fifth. The other commenter asserted that 2 years is necessary, especially
where lime is used. Lime was believed to have a superficial neutralizing effect that could result in the recurrence of
acid soil.  

   Ample justification exists for requiring 2 consecutive years of proof of revegetation success in States with
pronounced year-to-year variability in climatic conditions and where success is based on crop yields or other
parameters that are highly sensitive to such conditions. The decision to require 1 or 2 year's proof of performance
should rest with the regulatory authorities in those States where the annual average precipitation exceeds 26 inches.
The 2-year provision may be applied selectively according to postmining land use  or particular area within a State.
In all instances, the last year of responsibility should be part of the 1- or 2-year test period.  

   A commenter was concerned that failure to meet the required standard during the last year of the responsibility
period would be reason to start the responsibility period anew or for forfeiture of bond. Regulatory authorities should
understand that the responsibility period continues on a year-to-year basis until the standards are satisfied. Additional
language in the rule is not needed to make this clear. However, it should be pointed out that in the event augmented
seeding, fertilizing, irrigation, or other work is required to obtain success, the responsibility period will start anew.  

   A State regulatory authority wanted additional language inserted in Sec. 816.116(c)(2) which would require the
operator to supply the regulatory authority with documentation of revegetation success. The State felt this addition
would relieve the regulatory authority from measuring every plot and allow the regulatory authority to concentrate on
verifying the techniques used by the operator and the operator's results. Regulatory authorities already have the
power to require operators to submit documentation of revegetation success in an application for bond release. There
is no need to repeat this in the Federal revegetation rules.  
   
SECTION 816.116(c)(3)  

   Proposed Sec. 816.116(c)(3) required the period of responsibility to continue for 10 full years where the average
annual precipitation is equal to or less than 26 inches. Interseeding and supplemental fertilizing would have been
allowed during the first 5 years of the responsibility period, and supplemental irrigation would have been allowed
during the first 2 years of the responsibility period when needed to establish a diverse, effective, and permanent
vegetative cover. Also, vegetation parameters had to equal the approved success standard for at least the last 2
consecutive years of the responsibility period.  

   A commenter alleged that the Act clearly states that any reseeding or refertilizing automatically restarts the liability
period. The commenter pointed out that the proposed rules could result in seeding and fertilization taking place
throughout the performance period, with subsequent failure of the vegetation after bond is released.  

   In proposing to allow tree and shrub planting during the initial portion of the responsibility period, OSM felt it
important to provide operators ample time to obtain and plant the desired species and to utilize the best technology
available without extending the responsibility period. However, OSM is constrained by Section 515(b)(20) of the
Act to require the responsibility period to restart if augmented planting occurs. Thus in the final rule, the use of
augmented seeding, fertilizing, or irrigation is not allowed during the responsibility period.  
   
SECTION 816.116(c)(4)  

   Rather than interspersing in Sec. 816.116 (c)(2) and (c)(3) activities that an operator may engage in during the
responsibility period, as was proposed, a new Sec. 816.116(c)(4) allows the use of certain husbandry practices
during the responsibility period if approved by the regulatory authority. The purpose of this provision is to help
assure revegetation success within the constraints prescribed by the Act. In essence, this is a retention of previous
Sec. 805.13(b)(3), with a few modifications. Previous Sec. 805.13(b)(3) required a demonstration that
discontinuance of the husbandry practices after the responsibility period expired would not reduce the probability of
permanent revegetation success. Under the final rule, husbandry practices may also be approved if such practices can
be expected to continue as part of the postmining land use. Such practices cannot include augmented seeding,
fertilization, or irrigation without extending the period of revegetation success and bond liability.  

   The approved measures must be normal conservation practices within the region for unmined lands having land
uses similar to the approved postmining land use of the disturbed area. This requirement is taken directly from
previous Sec. 805.13(b)(3). The final rule also enumerates examples of practices that may be approved. These
include disease, pest, and vermin control; and pruning, reseeding and/or transplanting specifically necessitated by
such actions. Disease control was not included in previous Sec. 805.13(b)(3), but is included in the final rule since
such actions are commonly associated with normal husbandry. The final rule deletes the reference to rills and gullies
from previous Sec. 805.13(b)(3) since this reference could be misleading. Revised Sec. 816.95 (48 FR 1160, January
10, 1983) provides that rills and gullies that would either: (1) Disrupt the approved postmining land use or
reestablishment of the vegetative cover, or (2) cause or contribute to a violation of water quality standards for
receiving streams, must be filled, regraded or otherwise stabilized; topsoil replaced; and the areas reseeded or
replanted. Such rills and gullies may be indicative of a failure in the revegetation, depending on local and site-
specific conditions; and may require augmented seeding to ensure revegetation success. For this reason, specific
reference to regrading of rills and gullies has been deleted as an example of normal conservation practices under
final Paragraph (c)(4). Under the final rule, the regulatory authority could allow repair of rills and gullies as a
husbandry practice without restarting the liability period only if the general standards of this section are met after
consideration of normal conservation practices within the region.  

   A number of comments were received on the related provisions in proposed Sec. 816.116(c) that would have
allowed particular activities during the responsibility period. These comments are discussed below.  

   TREE AND SHRUB PLANTING AND MAINTENANCE WORK:  Several commenters expressed the belief that
tree and shrub planting and maintenance work should be restricted to the beginning of the responsibility period or
identified as activities that would restart the period of responsibility. A State pointed out that the proposed rules
required trees and shrubs to be in place only two growing seasons at the time of bond release. This allowed 8 years to
complete the planting of trees and shrubs in arid areas and 3 years in areas of heavy rainfall. The commenter thought
such periods to be excessive and stated that 2 years was sufficient time to obtain planting stock and to plant it during
the proper season. Another commenter, who also felt the time period provided for tree and shrub planting was
excessive, argued that 2 years was inadequate to  determine the effect of unfavorable soil conditions which might be
present. Older trees with more extensive root systems might come in contact with toxic materials at lower depths and
become stunted or die after the release of operator responsibility. The commenter concluded that the Act clearly
requires the responsibility period to start over when additional trees are planted and that OSM's rules must not
conflict with the Act.  

   A State regulatory authority felt the replanting of trees and shrubs is not a normal practice where the postmining
land use is unmanaged forest, nor is filling and seeding of rills and gullies. It was contended that these practices are
augmentative and such work should cause the period of responsibility to begin anew. In contrast, another commenter
favored allowing normal husbandry practices for trees and shrubs on reclaimed sites. It was argued that normal
husbandry or management practices, including control of competing vegetation, are acceptable in unmined areas and
should be available to the reclamation specialist.  

   To the extent operators are provided the opportunity to do limited replanting without starting the responsibility
period anew under Sec. 816.116(c)(4), Sec. 816.116(b)(3)(ii) requires 80 percent of the planting stock to be in place
for 3 or 8 years depending on the average annual precipitation and the remaining stock used in determining success
to be in place for at least two growing seasons. Thus, this rule will, in effect, limit replanting to a maximum of 20
percent to the required stocking before restarting the responsibility period. Revegetation success will therefore be
based on trees and shrubs that are in place an adequate time.  

   OSM also received several comments concerning the allowance for maintenance work during the responsibility
period as provided for in the proposed rules. One commenter said that this had tremendous potential for abuse and
should be deleted from Sec. 816.116(c)(1) unless very strict limits were set on the area over which such work could
be done. As safeguards, the commenter suggested requiring operators to keep careful records of these practices and
limiting the cumulative area treated to 5 percent or less of the total permit area. Where the treated area exceed 5
percent, the responsibility period should start again for the whole area or the problem area should start again for the
whole area or the problem area should be separated from the rest of the permit area for bonding purposes. A State
suggested limiting the filling of rills and gullies and reseeding of small spots where vegetation has failed to the first 5
years of the 10-year period of responsibility. This would allow adequate time for the permittee to stabilize and
revegetate the area and leave 5 years for the vegetation to develop.  

   OSM agrees that allowing unlimited areas to be reseeded following the repair of rills and gullies without restarting
the period of responsibility could lead to abuse of the revegetation success standards because any failure of
revegetation could be accompanied by the creation of rills and gullies requiring repair. To limit the potential abuse,
under final Sec. 816.116(c)(4), the repair of rills and gullies including reseeding or transplanting, can occur without
extending the period of responsibility for revegetation success only if it is a normal conservation practice in the
region, and such actions can be expected to continue as part of the postmining land use or if discontinuance will not
reduce the probability of permanent revegetation success. OSM has not adopted the 5 percent standard since any
nationwide numerical standard would be unrelated to  the normal conservation practices in the different regions of
the country.  

   A commenter asserted that allowing maintenance work throughout the responsibility period defeats the intent of the
responsibility period. The provision allowing maintenance work contained in the proposed rule has not been
included in the final rule. The proposed term "maintenance work" was too broad in meaning and its use in the rules
could have resulted in conflicting interpretations, some of which could be prohibited by the Act. By allowing
husbandry practices that can be expected to continue as part of the postmining land use, operators will have
sufficient latitude to assure vegetation success.  

   A State regulatory authority suggested adding language to Sec. 816.116(c)(1) to allow the regulatory authority to
determine which husbandry practices are normally practiced in the region for the postmining land use. Under the
final rule, the regulatory authority must decide which husbandry practices are acceptable. The rule provides the basis
upon which such decision must be made. In the event the husbandry practice cannot be reasonably expected to
continue after bond release or if its discontinuance following bond release will reduce the probability of permanent
revegetation success, the regulatory authority must deny approval or restart the period of responsibility for the
operator.  

   A commenter said good husbandry practices would be acceptable if reseeding, refertilizing, and irrigation were
clearly excluded. The final rules exclude augmented refertilizing and irrigation, and reseeding is allowed only under
limited circumstances.  
   
PREVIOUS SECTION 816.116(c)  

   OSM has removed previous Sec. 816.116(c), which required operators to maintain necessary fences, use proper
management practices, and conduct periodic measurements of vegetation, soils, and water as prescribed or approved
by the regulatory authority for identifying conditions during the period of responsibility.  

   A commenter felt that the requirements of previous Sec. 816.116(c) should be maintained. Similarly, other
commenters contended that requiring the maintenance of fences and the use of proper management practices is
appropriate and necessary for ensuring the success of revegetation and that the requirement to monitor vegetation,
soils, and water is necessary to make sure that adequate progress is made toward meeting success standards.  

   Another commenter argued that fence maintenance and proper management practices are needed to ensure that
standards generated from reference areas are valid. This commenter viewed the monitoring provisions of previous
Sec. 816.116(c)(2) as absolutely essential. This commenter also contended that, since reclamation is more of an art
than a science, monitoring is usually the only means of verifying and refining the reclamation plan.  

   As previously stated in the preamble to the proposed rules (47 FR 12599), these provisions are not specifically
required by the Act and can be provided for by the regulatory authority, if appropriate, according to the local
conditions. Operators must take the actions necessary to achieve successful reclamation, including the possible
maintenance of fences and performance of  management practices. That is, if fencing is necessary to avoid
destructive grazing or indiscriminate use of recreation vehicles on the revegetated area, then the operator is expected
to construct and maintain a fence. If a regulatory authority approves the use of reference areas, then it should include
provisions in its rules that address fencing and the use of proper management practices necessary to assure that
reference-area data are valid and appropriate for determining the success of revegetation.  

   Similarly, regulatory authorities are not precluded from requiring the monitoring of revegetation efforts to assure
that the reclamation plan is being followed and that the revegetation effort is progressing in a satisfactory manner.
Likewise, operators may do so on their own.  
   
PREVIOUS SECTIONS 816.116(b)(2) and 816.116(d)  

   Previous Sec. 816.116(b)(2) listed data sources and specific procedures for determining average annual
precipitation. OSM proposed the removal of this section because it was primarily a listing of information sources and
not deemed necessary to understanding the regulatory requirement. No specific comments were received on this
proposed deletion. Therefore, OSM has omitted these provisions from the final rules.  

   Previous Sec. 816.116(d) provided an alternative fixed standard for determining the success of revegetation when
permit areas are 40 acres or less in size and in locations with an average annual precipitation of more than 26 inches.
OSM proposed deleting this section because it believed the flexibility generally provided to regulatory authorities by
proposed Sec. 816.116(a) obviated the need for a specific fixed standard for small permit areas. No comments were
received on the basic proposal for removing the section; however, one commenter noted the deletion would also
remove previous Sec. 816.116(d)(3), which contained the only definition in the rules for ground cover. Ground cover
was defined as the area of ground covered by the combined aerial parts of vegetation and litter that is produced
naturally onsite, expressed as a percentage of the total area of measurement. This definition is retained in the final
rules, but is moved to 30 CFR 701.5, Definitions.  
   
PREVIOUS SECTION 816.117 REVEGETATION: TREE AND SHRUB STOCKING FOR FOREST LAND  

   OSM proposed to remove Sec. 816.117, which established requirements for tree and shrub stocking on forest land.
OSM stated that a separate section with revegetation success standards for forest postmining land uses was
unnecessary and that the essential requirements of previous Sec. 816.117 could be incorporated into Sec. 816.116,
Revegetation: Standards of success. This was proposed in Sec. 816.116(b)(3). No comments were received that
either supported or opposed this reorganization of the rules. Therefore, the final rule removes Sec. 816.117 and
transfers the essential requirements for tree and shrub stocking to Sec. 816.116(b)(3). Comments received on the
proposed language were previously discussed under the heading "Forest, Wildlife Habitat, and Recreation areas."  
   
SECTIONS 817.111-817.116 REVEGETATION PERFORMANCE STANDARDS -- UNDERGROUND MINING  

   Proposed Secs. 817.111-817.116 establishing revegetation performance standards for underground mining
activities. With the exception of Sec. 817.111, these sections were identical to the corresponding sections proposed
in Part 816. Proposed Sec. 817.111 reflected differences in the statutory language of Section 515(b)(19) of the Act
for surface mining activities and Section 516(b)(6) is essentially the same as Section 515(b)(19). However, Section
516(b)(6) does not use the term "effective" in describing the vegetative cover requirements. Also, there is no
statutory language restricting the use of introduced species and requiring vegetation of the same seasonal variety.  

   A State regulatory authority pointed out that proposed Sec. 817.111(a)(1) did not contain the term "effective" and
said the word should not be eliminated from the performance standards for underground mining activities. This
proposed deletion was also noted by a second commenter who appeared to seek its inclusion in the final rule.
Specific reasons were not given for the position taken by the commenters.  

   A State regulatory authority also noted that the proposed changes to Secs. 817.111 (a) and (b) would eliminate the
emphasis given in previous Sec. 817.111(b)(1) to native plants of the same seasonal variety. The commenter
contended that the use of native, locally adapted plant species was vital to successful revegetation, particularly under
arid and semiarid conditions. Accordingly, the commenter believed that this requirement should not be eliminated
from the rules.  

   In considering these comments, OSM has reviewed the Act and its legislative history to determine if the differences
in Sections 515(b)(19) and 516(b)(6) were intended to reflect actual or perceived differences in surface and
underground mining activities. OSM has not identified any differences that support adopting revegetation rules for
surface mining activities that differ from rules adopted for underground mining activities. Therefore, in the final rules
the revegetation performance standards in Part 816 and Part 817 are identical.  
   
C. REFERENCES  

   Technical literature used to develop these final rules was cited in the March 23, 1982, issue of the Federal Register
(47 FR 12601). The following technical literature, not previously cited, was also used in the preparation of these
final rules. All of the reports are on file in OSM's Administrative Record.  

   Bonham, C. D., Larson, L. L., and Morrison, A., 1980, A survey of techniques for measurement of herbaceous and
shrub production, cover, and diversity in the West: Unpublished, report prepared for the Office of Surface Mining,
79 pp.  

   Farmer, R. E., Jr., Rennie, J. C., Scanlon, D. H., III, and Zarger, T. G., 1981, Technical guides on use of reference
areas and technical standards for evaluating surface mine vegetation in OSM Regions I and II. Prepared by the
Tennessee Valley Authority for the Office of Surface Mining. Contract J5701442, 82 pp.  

   Gilley, J. E., Gee, G. W., Bauer, A., Willis, W. O., and Young, R. A., 1977, Runoff and erosion characteristics of
surface mined sites in western North  Dakota: Trans., ASAE 20(4): 697-700, 704.  

   Larson, L. L., 1980, A statistical evaluation of revegetation success on coal lands in the West: Unpublished, report
prepared for the Office of Surface Mining, 19 pp.  

   National Research Council, 1981, Surface mining: Soil, coal, and society: National Academy Press, Washington,
D.C.  

   Oleson, A. L., 1981, Methods for measuring percent ground cover: U.S. Department of Agriculture, Soil
Conservation Service, Northeast Technical Service Center, Technical Note, Agronomy No. 17, 4 pp.  

   Raelson, J. V., and McKee, G. W., 1982, Measurement of plant cover to evaluate revegetation success: The
Pennsylvania State University, Dept. of Agronomy, Agronomy Series 67, 45 pp.  

   Slick, B. M., N. D., (in press), A guide for the use of organic materials as mulches in reclamation of coal minesoils
in the Eastern United States: U.S. Department of Agriculture, Forest Service, General Technical Report, 351 pp.  

   Thornburg, A. A., 1982, Plant materials for use on surface mined lands in arid and semiarid regions: U.S.
Department of Agriculture, Soil Conservation Service, SCS-TP-157.  

   U.S. Department of Agriculture, 1963, Sixteen plants poisonous to livestock in the Western States: Farmers'
Bulletin 2106.  

   U.S. Department of Agriculture, 1959, Techniques and methods of measuring understory vegetation: Proceedings
of a symposium at Tifton, Georgia, October 1958, 174 pp.  

   U.S. Forest Service, 1937, Range plant handbook: U.S. Department of Agriculture.  

   Vogel, W. G., 1981, A guide for revegetating coal minesoils in the Eastern United States. U.S. Department of
Agriculture, Forest Service, General Technical Report NE-68.  
   
III. PROCEDURAL MATTERS  
   
Executive Order 12291 and the Regulatory Flexibility Act  
   The Department of the Interior (DOI) has determined that this rule is not a major rule requiring a regulatory impact
analysis under Executive Order 12291. Also, DOI certifies that this rule will not have a significant economic effect
on a substantial number of small entities and, therefore, does not require a regulatory flexibility analysis under Pub.
L. 95-354. These rules, by emphasizing performance standards instead of design criteria, will allow small coal
operators increased flexibility and should especially ease the regulatory burden on small coal operators in
Appalachia.  
   
Paperwork Reduction Act  
   OSM has received approval from the Office of Management and Budget under 44 U.S.C. 3507 for the information
collection requirements in Parts, 816 and 817 and have been assigned clearances Nos. 1029-0047 and 1029-0048.
These approvals have been codified under Secs. 816.10 and 817.10. However, there are no information collection
requirements in the revegetation rules, Secs. 816.111-816.116 and 817.111-817.116.  
   
National Environmental Policy Act  
   OSM has analyzed the impacts of these final rules in its "Final Environmental Impact Statement OSM-EIS-1:
Supplement" (FEIS) according to Section 102(2)(c) of the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4332(2)(C)). The FEIS is available in OSM's Administrative Record, Room 5315, 1100 L Street, NW.,
Washington, D.C., or by mail request to Mark Boster, Chief, Branch of Environmental Analysis, Office of Surface
Mining, Department of the Interior, Room 134, Interior South Building, U.S., 1951 Constitution Ave., NW.,
Washington, D.C. 20240. This preamble serves as the record of decision under NEPA. The final rules are different
from those contained in Volume III of the FEIS in the following respects:  

   1. Final Secs. 816.111(a) and 817.111(a) apply to "disturbed areas" rather than "affected lands." For the reasons
described earlier in this preample, this change does not affect the FEIS analysis.  

   2. Final Secs. 816.116(c) and 817.117(c) do not allow tree and shrub planting during the first 2 years of the period
of responsibility in areas of more than 26 inches average annual precipitation and do not allow interseeding, tree and
shrub planting, fertilizing, or irrigation during the first 2 years of the period of responsibility in areas of 26 inches or
less average annual precipitation. In this respect, the final rules are consistent with the no action/minimum action
Alternative B in the FEIS.  

   3. The final rules add a provision allowing regulatory approval of certain husbandry practices. These would have
been allowed under draft final Sec. 816.116(c)(1) and thus are considered within the FEIS analysis.  
   
Agency Approval  
   Section 516(a) of the Act requires that, with regard to rules directed toward the surface effects of underground
mining, OSM must obtain written concurrence from the head of the department which administers the Federal Mine
Safety and Health Act of 1977, the successor to the Federal Coal Mine Health and Safety Act of 1969. OSM has
obtained the written concurrence of the Assistant Secretary for Mine Safety and Health, U.S. Department of Labor.  
   
LIST OF SUBJECTS  
   
30 CFR Part 701  
   Coal mining, Law enforcement, Surface mining, Underground mining.  
   
30 CFR Part 816  
   Coal mining, Environmental protection, Reporting and recordkeeping requirements, Surface mining.  
   
30 CFR Part 817  
   Coal mining, Environmental protection, Reporting and recordkeeping requirements, Underground mining.  

   Accordingly, 30 CFR Parts 701, 816, and 817 are amended as set forth herein .  

Dated: August 29, 1983.     
William P. Pendley,  Deputy Assistant Secretary, Energy and Minerals.  

PART 701 -- PERMANENT REGULATORY PROGRAM  

   1. Section 701.5 is amended by adding a definition of "ground cover" in alphabetical order to read as follows:  

SEC. 701.5 DEFINITIONS.  
   
* * * * *  

GROUND COVER means the area of ground covered by the combined aerial parts of vegetation and the litter that is
produced naturally onsite, expressed as a percentage of the total area of measurement.  
   
* * * * *  

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

   2. Section 816.111 is revised to read as follows:  

SEC. 816.111 REVEGETATION: GENERAL REQUIREMENTS.  

(a) The permittee shall establish on regraded areas and on all other disturbed areas except water areas and surface
areas of roads that are approved as part of the postmining land use, a vegetative cover that is in accordance with the
approved permit and reclamation plan and that is --  
     (1) Diverse, effective, and permanent;  
     (2) Comprised of species native to the area, or of introduced species where desirable and necessary to
achieve the approved postmining land use and approved by the regulatory authority;  
     (3) At least equal in extent of cover to the natural vegetation of the area; and  
     (4) Capable of stabilizing the soil surface from erosion.  

(b) The reestablished plant species shall --  
     (1) Be compatible with the approved postmining land use;  
     (2) Have the same seasonal characteristics of growth as the original vegetation;  
     (3) Be capable of self-regeneration and plant succession;  
     (4) Be compatible with the plant and animal species of the area; and  
     (5) Meet the requirements of applicable State and Federal seed, poisonous and noxious plant, and
introduced species laws or regulations.  

(c) The regulatory authority may grant exception to the requirements of Paragraphs (b)(2) and (b)(3) of this section
when the species are necessary to achieve a quick-growing, temporary, stabilizing cover, and measures to establish
permanent vegetation are included in the approved permit and reclamation plan.  

(d) When the regulatory authority approves a cropland postmining land use, the regulatory authority may grant
exception to the requirements of Paragraphs (a)(1), (a)(3), (b)(2), and (b)(3) of this section. The requirements of Part
823 of this chapter apply to areas identified as prime farmland.  

SEC. 816.112 [Removed]  

   3. Section 816.112 is removed.  

   4. Section 816.113 is revised to read as follows:  

SEC. 816.113 REVEGETATION: TIMING  

   Disturbed areas shall be planted during the first normal period for favorable planting conditions after replacement
of the plant-growth medium. The normal period for favorable planting is that planting time generally accepted
locally for the type of plant materials selected.  

   5. Section 816.114 is revised to read as follows:  

SEC. 816.114 REVEGETATION: MULCHING AND OTHER SOIL STABILIZING PRACTICES.  

   Suitable mulch and other soil stabilizing practices shall be used on all areas that have been regraded and covered
by topsoil or topsoil substitutes.  The regulatory authority may waive this requirement if seasonal, soil, or slope
factors result in a condition where mulch and other soil stabilizing practices are not necessary to control erosion and
to promptly establish an effective vegetative cover.  

SEC. 816.115 [Removed]  

   6. Section 816.115 is removed.  

   7. Section 816.116 is revised to read as follows:  

SEC. 816.116 REVEGETATION: STANDARDS FOR SUCCESS.  

(a) Success of revegetation shall be judged on the effectiveness of the vegetation for the approved postmining land
use, the exent of cover compared to the cover occurring in natural vegetation of the area, and the general
requirements of Sec. 816.111.  
     (1) Standards for success and statistically valid sampling techniques for measuring success shall be selected
by the regulatory authority and included in an approved regulatory program.  
     (2) Standards for success shall include criteria representative of unmined lands in the area being reclaimed
to evaluate the appropriate vegetation parameters or ground cover, production, or stocking. Ground cover,
production, or stocking shall be considered equal to the approved success standard when they are not less than 90
percent of the success standard. The sampling techniques for measuring success shall use a 90-percent statistical
confidence interval (i.e., one-sided test with a 0.10 alpha error).  


(b) Standards for success shall be applied in accordance with the approved postmining land use and, at a minimum,
the following conditions:  
     (1) For areas developed for use as grazing land or pasture land, the ground cover and production of living
plants on the revegetated area shall be least equal to that of a reference area or such other success standards approved
by the regulatory authority.  
     (2) For areas developed for use as cropland, crop production on the revegetated area shall be at least equal
to that of a reference area or such other success standards approved by the regulatory authority.  
     (3) For areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products,
success of vegetation shall be determined on the basis of tree and shrub stocking and vegetative ground cover. Such
parameters are described as follows:  
          (i) Minimum stocking and planting arrangements shall be specified by the regulatory authority on
the basis of local and regional conditions and after consultation with the State agencies responsible for the
administration of forestry and wildlife programs.  
          (ii) Trees and shrubs that will be used in determining the success of stocking and the adequacy of
plant arrangement shall have utility for the  approved postmining land use. At the time of bond release, such trees
and shrubs shall be healthy, and at leat 80 percent shall have been in place for a least three growing seasons in areas
with a 5-year period of responsibility and at least eight growing seasons in areas with a 10-year period of
responsibility. No trees and shrubs in place for less than two growing seasons shall be counted in determining
stocking adequacy.  
          (iii) Vegetative ground cover shall not be less than that required to achieve the approved
postmining land use.  
     (4) For areas to be developed for industrial, commercial, or residential use less than 2 years after regrading
is completed, the vegetative ground cover shall not be less than that required to control erosion.  
     (5) For areas previously disturbed by mining that were not reclaimed to the requirements of this subchapter
and that are remined or otherwise redisturbed by surface coal mining operations, as a minimum, the vegetative
ground cover shall be not less than the ground cover existing before redisturbance and shall be adequate to control
erosion.  

(c)(1) The period of extended responsibility for successful revegetation shall begin after the last year of augmented
seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the regulatory
authority in accordance with paragraph (c)(4) of this section.  
     (2) In areas of more than 26.0 inches average annual precipitation, the period of responsibility shall
continue for a period of not less than 5 full years. Vegetation parameters identified in paragraph (b) of this section
shall equal or exceed the approved success standard during the growing season of the last year of the responsibility
period or, if required by the regulatory authority, during the growing seasons of the last 2 years of the responsibility
period.  
     (3) In areas of 26.0 inches or less average annual precipitation, the period of responsibility shall continue
for a period of not less than 10 full years. Vegetation parameters identified in paragraph (b) of this section shall
equal or exceed the approved success standard for at least the last 2 consecutive years of the responsibility period.  
     (4) The regulatory authority may approve selective husbandry practices, excluding augmented seeding,
fertilization, or irrigation, without extending the period of responsibility for revegetation success and bond liability,
if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices
after the liability period expires will not reduce the probability of permanent revegetation success. Approved
practices shall be normal conservation practices within the region for unmined lands having land uses similar to the
approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control;
and any pruning, reseeding and/or transplanting specifically necessitated by such actions.  

SEC. 816.117 [Removed]  

   8. Section 816.117 is removed.  

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

   9. Section 817.111 is revised to read as follows:  

SEC. 817.111 REVEGETATION: GENERAL REQUIREMENTS.  

(a) The permittee shall establish on regraded areas and on all other disturbed areas except water areas and surface
areas of roads that are approved as part of the postmining land use, as vegetative cover that is in accordance with the
approved permit and reclamation plan and that is --  
     (1) Diverse, effective, and permanent;  
     (2) Comprised of species native to the area, or of introduced species where desirable and necessary to
achieve the approved postmining land use and approved by the regulatory authority;  
     (3) At least equal in extent of cover to the natural vegetation of the area; and  
     (4) Capable of stabilizing the soil surface from erosion.  

(b) The reestablished plant species shall --  
     (1) Be compatible with the approved postmining land use;  
     (2) Have the same seasonal characteristics of growth as the original vegetation;  
     (3) Be capable of self-regeneration and plant succession;  
     (4) Be compatible with the plant and animal species of the area; and  
     (5) Meet the requirements of applicable State and Federal seed, poisonous and noxious plant, and
introduced species laws or regulations.  

(c) The regulatory authority may grant exception to the requirements of paragraphs (b)(2) and (b)(3) of this section
when the species are necessary to achieve a quick-growing, temporary, stabilizing cover, and measures to establish
permanent vegetation are included in the approved permit and reclamation plan.  

(d) When the regulatory authority approves a cropland postmining land use, the regulatory authority may grant
exceptions to the requirements of paragraphs (a)(1), (a)(3), (b)(2), and (b)(3) of this section. The requirements of
Part 823 of this chapter apply to areas identified as prime farmland.  

SEC. 817.112 [Removed]  

   10. Section 817.112 is removed.  

   11. Section 817.113 is revised to read as follows:  

SEC. 817.113 REVEGETATION: TIMING.  

   Disturbed areas shall be planted during the first normal period for favorable planting conditions after replacement
of the plant-growth medium The normal period for favorable planting is that planting time generally accepted locally
for the type of plant materials selected.  

   12. Section 817.114 is revised to read as follows:  

SEC. 817.114 REVEGETATION: MULCHING AND OTHER SOIL STABILIZING PRACTICES.  

   Suitable mulch and other soil stabilizing practices shall be used on all areas that have been regraded and covered
by topsoil or topsoil substitutes. The regulatory authority may waive this requirement if seasonal, soil, or slope
factors result in a condition where mulch and other soil stabilizing practices are not necessary to control erosion and
to promptly establish an effective vegetative cover.  

SEC. 817.115 [Removed]  

   13. Section 817.115 is removed.  

   14. Section 817.116 is revised to read as follows:  

SEC. 817.116 REVEGETATION: STANDARDS FOR SUCCESS.  

(a) Success of revegetation shall be judged on the effectiveness of the vegetation for the approved postmining land
use, the extent of cover compared to the cover occurring in natural vegetation of the area, and the general
requirements of Sec. 817.111.  
     (1) Standards for success and statistically valid sampling techniques for measuring success shall be selected
by the regulatory authority and included in an approved regulatory program.  
     (2) Standards for success shall include criteria representative of unmined lands in the area being reclaimed
to evaluate the appropriate vegetation parameters of ground cover, production, or stocking. Ground cover,
production, or stocking shall be considered equal to the approved success standard when they are not less than 90
percent of the success standard. The sampling techniques for measuring success shall use a 90-percent statistical
confidence interval (i.e., a one-sided test with a 0.10 alpha error).  

(b) Standards for success shall be applied in accordance with the approved postmining land use and, at a minimum,
the following conditions:  
     (1) For areas developed for use as grazing land or pasture land, the ground cover and production of living
plants on the revegetated area shall be at least equal to that of a reference area or such other success standards
approved by the regulatory authority.  
     (2) For areas developed for use as cropland, crop production on the revegetated area shall be at least equal
to that of a reference areas or such other success standards approved by the regulatory authority.  
(3) For areas to be developed for fish and wildlife habitat, recreation, shelter belts, or forest products, success of
vegetation, shall be determined on the basis of tree and shrub stocking and vegetative ground cover. Such parameters
are described as follows:  
          (i) Minimum stocking and planting arrangements shall be specified by the regulatory authority on
the basis of local and regional conditions and after consultation with the State agencies responsible for the
administration of forestry and wildlife programs.  
          (ii) Trees and shrubs that will be used in determining the success of stocking and the adequacy of
plant arrangement shall have utility for the approved postmining land use. At the time of bond release, such trees and
shrubs shall be healthy, and at least 80 percent shall have been in place for at least three growing seasons in areas
with a 5-year period of responsibility and at least eight growing seasons in areas with a 10-year period of
responsibility. No trees and shrubs in place for less than two growing seasons shall be counted in determining
stocking adequacy.  
          (iii) Vegetative ground cover shall not be less than that required to achieve the approved
postmining land use.  
     (4) For areas to be developed for industrial, commercial, or residential use less than 2 years after regrading
is completed, the vegetative ground cover shall not be less than that required to control erosion.  
     (5) For areas previously disturbed by mining that were not reclaimed to the requirements of this subchapter
and that are remined or otherwise redisturbed by surface coal mining operations, as a minimum, the vegetative
ground cover shall be not less than the ground cover existing before redisturbance and shall be adequate to control
erosion.  

(c)(1) The period of extended responsibility for successful revegetation shall begin after the last year of augmented
seeding, fertilizing, irrigation, or other work, excluding husbandry practices that are approved by the regulatory
authority in accordance with paragraph (c)(4) of this section.  
     (2) In areas of more than 26.0 inches average annual precipitation, the period of responsibility shall
continue for a period of not less than 5 full years. Vegetation parameters identified in paragraph (b) of this section
shall equal or exceed the approved success standard during the growing season of the last year of the responsibility
period or, if required by the regulatory authority, during the growing seasons of the last 2 years of the responsibility
period.  
     (3) In areas of 26.0 inches or less average annual precipitation, the period of responsibility shall continue
for a period of not less than 10 full years. Vegetation parameters identified in paragraph (b) of this section shall
equal or exceed the approved success standard for at least the last 2 consecutive years of the responsibility period.  
     (4) The regulatory authority may approve selective husbandry practices, excluding augmented seeding,
fertilization, or irrigation, without extending the period of responsibility for revegetation success and bond liability,
if such practices can be expected to continue as part of the postmining land use or if discontinuance of the practices
after the liability period expires will not reduce the probability of permanent revegetation success. Approved
practices shall be normal conservation practices within the region for unmined lands having land uses similar to the
approved postmining land use of the disturbed area, including such practices as disease, pest, and vermin control;
and any pruning, reseeding and/or transplanting specifically necessitated by such actions.  

SEC. 817.117 [Removed]  

   15. Section 817.117 is removed.  
   
(Pub. L. 95-87, 30 U.S.C. 1201 et seq. ) 

[FR Doc. 83-24079 Filed 9-1-83; 8:45 am]  
BILLING CODE 4310-05-M