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14986 Federal Register / Vol. 70, No.

56 / Thursday, March 24, 2005 / Rules and Regulations

§ 660.52 [Amended] Rockville Pike, suite 200N, Rockville, rules concerning prime farmland,
■ 74. Section 660.52 is amended by MD 20852–1448; or for devices revegetation, hydrology, enforcement,
removing the words ‘‘(HFB–221), Food regulated by the Center for Drug topsoil, historic properties, bond release
and Drug Administration, 8800 Evaluation and Research, be addressed and permit requirements. The State
Rockville Pike, Bethesda, MD 20892’’ to the Central Document Room, Center intends to revise its program to be
and adding in their place ‘‘(HFM–407) for Drug Evaluation and Research, Food consistent with the corresponding
(see mailing addresses in § 600.2 of this and Drug Administration, 5901–B Federal regulations, provide additional
chapter)’’. Ammendale Rd., Beltsville, MD 20705– safeguards, clarify ambiguities, and
1266. * * * improve operational efficiency.
§ 660.53 [Amended] * * * * * EFFECTIVE DATE: March 24, 2005.
■ 75. Section 660.53 is amended by FOR FURTHER INFORMATION CONTACT:
removing the words ‘‘(HFB–1), Food and PART 822—POSTMARKET James F. Fulton, Telephone: (303) 844–
Drug Administration, 8800 Rockville SURVEILLANCE 1400, extension 1424; Internet address:
Pike, Bethesda, MD 20892’’. JFulton@osmre.gov.
■ 82. The authority citation for 21 CFR
SUPPLEMENTARY INFORMATION:
§ 660.54 [Amended] part 822 continues to read as follows:
I. Background on the Colorado Program
■ 76. Section 660.54 is amended in the Authority: 21 U.S.C. 331, 352, 360i, 360l, II. Submission of the Amendment
introductory paragraph by removing the 371, 374. III. Office of Surface Mining Reclamation and
words ‘‘(HFB–1), Food and Drug ■ 83. Section 822.8 is amended by Enforcement’s (OSM) Findings
Administration, 8800 Rockville Pike, revising the second and third sentences IV. Summary and Disposition of Comments
Bethesda, MD 20892’’. to read as follows: V. OSM’s Decision
VI. Procedural Determinations
§ 660.55 [Amended] § 822.8 When, where, and how must I
submit my postmarket surveillance plan? I. Background on the Colorado Program
■ 77. Section 660.55 is amended in the
* * * For devices regulated by the Section 503(a) of the Act permits a
first sentence of paragraph (a)(3) by
Center for Biologics Evaluation and State to assume primacy for the
removing the mail code ‘‘(HFB–1)’’.
Research, send three copies of your regulation of surface coal mining and
PART 680—ADDITIONAL STANDARDS submission to the Document Control reclamation operations on non-Federal
FOR MISCELLANEOUS PRODUCTS Center (HFM–99), Center for Biologics and non-Indian lands within its borders
Evaluation and Research, Food and by demonstrating that its State program
■ 78. The authority citation for 21 CFR Drug Administration, 1401 Rockville includes, among other things, ‘‘a State
part 680 continues to read as follows: Pike, suite 200N, Rockville, MD 20852– law which provides for the regulation of
1448. For devices regulated by the surface coal mining and reclamation
Authority: 21 U.S.C. 321, 351, 352, 353,
355, 360, 371; 42 U.S.C. 216, 262, 263, 263a, Center for Drug Evaluation and operations in accordance with the
264. Research, send three copies of your requirements of this Act * * *; and
submission to the Central Document rules and regulations consistent with
§ 680.1 [Amended]
Room, Center for Drug Evaluation and regulations issued by the Secretary
■ 79. Section 680.1 is amended in the Research, Food and Drug pursuant to this Act.’’ See 30 U.S.C.
last sentence of paragraph (b)(2)(iii), in Administration, 5901–B Ammendale 1253(a)(1) and (7). On the basis of these
paragraph (b)(3)(iv), and in the first Rd., Beltsville, MD 20705–1266. * * * criteria, the Secretary of the Interior
sentence of paragraph (c) by removing conditionally approved the Colorado
Dated: March 15, 2005. program on December 15, 1980. You can
the mail code ‘‘(HFB–1)’’ and adding in
Jeffrey Shuren, find background information on the
its place ‘‘(see mailing addresses in
§ 600.2)’’, and in paragraph (d)(1) by Assistant Commissioner for Policy. Colorado program, including the
removing the mail code ‘‘(HFB–1)’’. [FR Doc. 05–5780 Filed 3–23–05; 8:45 am] Secretary’s findings, the disposition of
BILLING CODE 4160–01–S comments, and conditions of approval
PART 807—ESTABLISHMENT in the December 15, 1980, Federal
REGISTRATION AND DEVICE LISTING Register (45 FR 82173). You can also
FOR MANUFACTURERS AND INITIAL DEPARTMENT OF THE INTERIOR find later actions concerning Colorado’s
IMPORTERS OF DEVICES program and program amendments at 30
Office of Surface Mining Reclamation CFR 906.10, 906.15, 906.16, and 906.30.
■ 80. The authority citation for 21 CFR and Enforcement
part 807 continues to read as follows: II. Submission of the Amendment
Authority: 21 U.S.C. 321, 331, 351, 352, 30 CFR Part 906 By letter dated March 27, 2003,
360, 360c, 360e, 360i, 360j, 371, 374, 381, Colorado sent us an amendment to its
[CO–033–FOR] program (Administrative Record No.
393; 42 U.S.C. 264, 271.
■ 81. Section 807.90 is amended by CO–696–1) under SMCRA (30 U.S.C.
Colorado Regulatory Program
revising the first sentence of paragraph 1201 et seq.). Colorado sent the
(a)(2) to read as follows: AGENCY: Office of Surface Mining amendment in response to May 7, 1986,
Reclamation and Enforcement, Interior. June 9, 1987, and March 22, 1990,
§ 807.90 Format of a premarket notification ACTION: Final rule; approval of letters that we sent to it in accordance
submission. amendment. with 30 CFR 732.17(c), as well as to
(a)* * * include changes made at its own
(2) For devices regulated by the SUMMARY: We are approving an initiative. On April 4, 2003, Colorado
Center for Biologics Evaluation and amendment to the Colorado regulatory sent us an addition to its March 27,
Research, be addressed to the Document program (the ‘‘Colorado program’’) 2003, amendment. Finally, Colorado
Control Center (HFM–99), Center for under the Surface Mining Control and submitted to us further revisions to its
Biologics Evaluation and Research, Reclamation Act of 1977 (SMCRA or the March 27, 2003, amendment on July 23,
Food and Drug Administration, 1401 Act). Colorado proposed revisions to its 2003.

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Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations 14987

We announced receipt of the B. Revisions to Colorado’s Rules That 2. Rule 4.15.7(1), Determining
proposed amendment in the June 3, Have the Same Meaning as the Revegetation Success
2003, Federal Register (68 FR 33032). In Corresponding Provisions of the Federal The Federal regulations at 30 CFR
the same document, we opened the Regulations 816/817.116(a)(1) require that standards
public comment period and provided an Colorado proposed revisions to the for success and statistically valid
opportunity for a public hearing or following rules containing language that sampling techniques for measuring
meeting on the amendment’s adequacy is the same as or similar to the success shall be selected by the
(Administrative Record No. CO–696–6). corresponding sections of the Federal regulatory authority and included in an
We did not hold a public hearing or regulations. approved regulatory program. The
meeting because no one requested one. 1. Rule 2.06.6(2)(a) and (g), [30 CFR proposed revision simply adds a
The public comment period ended on 785.17(c)((1)], Prime farmland soil reference to ‘‘the techniques identified
July 3, 2003. We did not receive any survey; in these rules.’’
comments. 2. Rule 3.03.2(1)(e), [30 CFR By revising 4.15.7(1) as proposed,
In the November 20, 2003, Federal 800.40(a)(3)], Release of performance along with the other changes proposed
Register (68 FR 65422), we reopened the bonds; in this amendment, Colorado is
public comment period to allow for 3. Rule 4.05.2(2), [30 CFR 816/ including standards for success and
comments on Colorado’s July 23, 2003, 817.46(b)(5), Sedimentation pond statistically valid sampling techniques
additional submittal which is as removal; for measuring success in its approved
follows: Colorado recently amended its 4. Rule 4.15.7(2), [30 CFR regulatory program. This is consistent
Noxious Weed Act which necessitated a 780.18(b)(5)(vi),780.13(b)(5)(vi)], with and no less effective than the
revision to proposed rules 4.15.1(5), Revegetation monitoring plan; Federal regulations. Specific standards
Rule 1.04(78), and also amended for 5. Rule 4.15.8(3)(a), [30 CFR 816/ and techniques are addressed in other
consistency the earlier version of the 817.116(a)(2)], Ground cover standard; Findings in this document.
draft rules. In addition, the earlier 6. Rule 4.15.8(4), [30 CFR 816/
proposed revision to Rule 4.15.4 adding 817.116(a)(2)], Production standard; 3. Rule 4.15.7(3)(b), Use of Reference
(5) was withdrawn. We did not receive 7. Rule 4.15.8(8), [30 CFR 816/ Areas
any comments on the additional 817.116(b)(3)], Forestry success The Federal regulations at 30 CFR
submittal. standards; and 816/817.116(a)(1) require that standards
Then in the October 1, 2004, Federal 8. Rule 4.25.2(4), [30 CFR for success and statistically valid
Register (69 FR 58873), we reopened the 785.17(e)(5)], Prime Farmland issuance sampling techniques for measuring
public comment period again to allow of permit. success shall be selected by the
comments on Colorado’s July 23, 2003, Because these proposed rules contain regulatory authority and included in an
additional submittal. We received language that is the same as or similar approved regulatory program.
comments from the Rocky Mountain to the corresponding Federal The Federal regulations at 30 CFR
Director of ‘‘Public Employees for regulations, we find that they are no less 816/817.116(a)(2) require that standards
Environmental Responsibility’’ (PEER). effective than the corresponding Federal for success shall include criteria
The amendment concerns regulations. representative of unmined lands in the
revegetation, prime farmland, C. Revisions of Colorado’s Rules That area being reclaimed to evaluate the
hydrology, enforcement, topsoil, Are Not the Same as the Corresponding appropriate vegetation parameters of
historic properties, and bond release Provisions of the Federal Regulations ground cover, production, or stocking.
requirements. The Federal regulations at 30 CFR
1. Rule 4.15.1(5), Revegetation—Weed 816/817.116(b) require, in part, that (1)
III. OSM’s Findings Control and 1.04(78), Noxious Weeds for areas developed for use as grazing
Following are the findings we made The Federal regulations at 30 CFR land or pasture land, the ground cover
concerning the amendment under 816/817.111(b)(5) require that the and production of living plants on the
SMCRA and the Federal regulations at reestablished plant species shall meet revegetated area shall be at least equal
30 CFR 732.15 and 732.17. the requirements of applicable State and to that of a reference area or such other
Federal seed, poisonous and noxious success standards approved by the
A. Minor Revisions to Colorado’s Rules regulatory authority; and (2) for areas
plant, and introduced species laws or
Colorado proposed minor editorial regulations. developed for use as cropland, crop
changes to the following previously- The Federal definition of noxious production on the revegetated area shall
approved rules. plants at 30 CFR 701.5 means species be at least equal to that of a reference
1. 2.06.8(4)(a)(i) and (5)(b)(i), Alluvial that have been included on official State area or such other success standards
Valley Floors; lists of noxious plants for the State in approved by the regulatory authority.
2. 2.06.8(5)(b)(i), Permit approval or which the surface coal mining and In support of its proposal, Colorado
denial; reclamation operation occurs. proposes to reorganize and amend Rule
Colorado is adding a new rule 4.15.7(3)(b) to specify exceptions to the
3. 2.07.6(1)(a)(ii), Permit review;
requiring a weed management plan. The requirement that reference areas be
4. 2.07.6(2)(n), Criteria for permit plan is designed to deal with noxious demonstrated to be statistically
approval or denial; weeds and other weed species that comparable to equivalent pre-mine
5. 2.08.4(6)(c)(iii), Minor revision; could threaten development of the vegetation types in terms of vegetation
6. 3.03.2(5)(a), Decision by the desired vegetation. cover and herbaceous production.
Division; and While there is no direct Federal Rule 4.15.7(3)(b)(i) is proposed to be
7. 4.03.1(4)(e), Culverts and bridges. counterpart to the proposed rule, it recodified to identify cropland post-
Because these changes are minor, we implements the Federal requirement at mine land use as one exception to this
find that they will not make Colorado’s 30 CFR 816/817.111(b)(5) and, as requirement. The content of the existing
rules less effective than the proposed, is no less effective than the rule is not changed by the
corresponding Federal regulations. Federal regulation. recodification.

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14988 Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations

Rule 4.15.7(3)(b)(ii) is proposed to be 4. Rule 4.15.7(3)(f), Reference Area reference area comparison approaches
added to identify situations in which Management applicable to each of the reference area
the post-mining land use will be There is no Federal counterpart to this types identified in proposed rule
different than pre-mining land use as a requirement. 4.15.7(3).
second exception to the pre-mine The inclusion of approaches for using
The proposed change to this rule
equivalency requirement. This established reference areas helps further
would require equivalent management
amendment is in recognition of the fact define acceptable success standards for
of the reclaimed and reference areas in
that when there is a change in land use, evaluating revegetation success. As
any year vegetation sampling will be
proposed, the approaches represent
such as from forestry or wildlife habitat conducted. In discussing this proposed
valid methods for using reference areas.
to pasture land or cropland, change, Colorado indicated that rule
There is no direct Federal counterpart to
assumptions upon which the traditional 4.15.7(3)(f) was amended to be
the proposed rule. As proposed, the
reference area concepts are based may consistent with the proposed State rule is consistent with and no less
no longer be valid or applicable. amendment to rule 4.15.7(5), which will effective than the Federal regulations.
Selection of a reference area that reflects allow vegetation sampling in two out of Therefore, we approve it.
the alternative post-mining land use and any four consecutive years beginning in
planned vegetation community year nine of the liability period. 6. Rule 4.15.7(5), Timeframes for
structure may be a more practical This change is appropriate because it Demonstration of Revegetation
approach in such cases, when suitable assures that similar management will be Success—Sections of the State
applied to both the reference and Regulation Proposed for Amendment:
areas occur in the vicinity of the mine.
reclaimed areas during any year bond 4.15.7(5) and 4.15.9 [30 CFR 816/
Rule 4.15.7(3)(b)(iii) is added to release evaluation of vegetation occurs. 817.116(c)(3)]
identify situations in which the planned Moreover, the change maintains the Colorado proposes in Rule 4.15.7(5)
post-mining vegetative community statistical validity of any direct that revegetation success criteria shall
structure will differ significantly from comparison. The proposed change is be met for at least two of the last four
the pre-mining vegetative community consistent with the intent of SMCRA years of the liability period and that
structure as a third exception to the pre- and no less effective than the Federal sampling for final revegetation success
mining equivalency requirement. In regulations. shall not be initiated prior to year nine
such cases, Colorado does not require of the liability period. The
5. Rule 4.15.7(4), Use of Reference Areas
selection of separate reference areas responsibility period for Colorado is a
representative of each plant community The Federal regulations at 30 CFR minimum of ten years, the proposed
present within the area to be disturbed. 816/817.116(a)(1) require that standards rule thus allows for measurements to
In these situations, selection of a for success and statistically valid occur in any four year period beginning
reference area that reflects the planned sampling techniques for measuring in year nine.
vegetation community structure may be success shall be selected by the The Federal regulations at 30 CFR
more appropriate and practical than the regulatory authority and included in an 816.116(c)(3), which are applicable for
traditional reference area approach approved regulatory program. areas with less than 26 inches of annual
The Federal regulations at 30 CFR precipitation, including Colorado,
when suitable areas are identified in the
816/817.116(a)(2) require that standards require that revegetation success
vicinity of the mine.
for success shall include criteria standards be met during the last two
We concur with Colorado’s proposal. representative of unmined lands in the consecutive years of the revegetation
The use of reference areas representative area being reclaimed to evaluate the responsibility period. The major
of unmined lands in the area as success appropriate vegetation parameters of difference between the Federal
standards is in compliance with the ground cover, production, or stocking. regulations and Colorado’s proposal is
Federal regulations. The selection of The Federal regulations at 30 CFR that Colorado’s proposal would allow
reference areas that allow direct 816/817.116(b) require, in part, that (1) measurement in nonconsecutive years.
comparisons between communities with for areas developed for use as grazing Originally the Federal regulations
the same postmining land uses or land or pasture land, the ground cover applicable for areas with greater than 26
similar plant community structures, and production of living plants on the inches of annual precipitation at 30 CFR
rather than dissimilar communities, is revegetated area shall be at least equal 816.116(c)(2) required success standards
appropriate and biologically and to that of a reference area or such other to be met for the last two consecutive
statistically valid. The use of multiple success standards approved by the years of the responsibility period. These
reference areas for developing weighted regulatory authority; and (2) for areas regulations were amended (53 FR
success standards based on relative developed for use as cropland, crop 34636, September 7, 1988) to allow the
premine ecological site acreages ensures production on the revegetated area shall standard to be met during any two years
restoration of premine capability. The be at least equal to that of a reference of the five year responsibility period
area or such other success standards excluding the first year. The change
provision requiring the permittee to
approved by the regulatory authority. eliminated the requirement to measure
demonstrate that management of the
Essentially, the revisions to the rule revegetation success during the last two
reference area will be under its control simply address how reference areas may (consecutive) years of the responsibility
and will remain under its control be used to determine revegetation period. The basis for the change was
throughout the period of extended success. that measurements in nonconsecutive
liability, regardless of location, ensures In other words, the proposed years avoid unduly penalizing the
the long-term protection of the reference revisions to rule 4.15.7(4) provide permittee for negative effects of climatic
areas. We have reviewed the proposed additional guidance in the use of variability.
rule change and have determined it is reference areas for the evaluation of We previously approved New Mexico
consistent with and no less effective revegetation success. In discussing the regulations stating ground cover and
than the Federal regulations at 30 CFR proposed revisions, Colorado stated that productivity shall equal the approved
816/817.116(a)(2) and (b)(1) and (2). rule 4.15.7(4) is amended to address standard for at least two of the last four

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Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations 14989

years, starting no sooner than year eight permittees in New Mexico for the variable precipitation ranges as shown
of the responsibility period. New negative effects of climatic variability on the table below. The data in the
Mexico, like Colorado, experiences less (the same reasoning used for areas following table is from the monthly
than 26 inches of annual precipitation. receiving greater than 26 inches of climate data, Colorado Climate Center at
We based our approval on the fact that precipitation). See New Mexico’s Colorado State University (http://
the climatic variability of New Mexico approval at 65 FR 65770, November 2, ccc.atmos.colostate.edu), the Trapper
was greater than that in areas with 2000. Mine Annual Reclamation Report and
greater than 26 inches of precipitation. Similar to New Mexico, Colorado the Federal Register: November 2, 2000
We stated that we believe it is submitted climatic data. The Colorado (Volume 65, Number 213), pages 65776–
appropriate to avoid penalizing mines are located in areas that represent 65777.

HISTORICAL PRECIPITATION
Precipitation
Years of Standard Coefficient of
Geographical area range Mean
record deviation variation
(inches)

Trapper Mine ........................................................................ 1980–2000 ........................ 16.56 3.54 0.21


Craig ..................................................................................... 1937–1974 7.42–20.83 13.29 3.26 0.25
Hayden ................................................................................. 1932–1999 10.89–26.40 16.38 3.39 0.21
Trinidad ................................................................................ 1938–1999 5.42–22.24 13.42 3.36 0.25
Grand Junction ..................................................................... 1963–1999 5.69–15.02 8.89 3.39 0.29
Henderson, KY ..................................................................... 1978–1998 30.94–63.27 45.64 8.89 0.19

As seen in the table above, the precipitation. Further, Colorado has revegetation requirements of sections
coefficient of variation (a measure of the asserted that if revegetation success 515(b)(19) and (b)(20) of SMCRA.
variability of the data) for the Colorado were not demonstrated the second year
7. Rule 4.15.7(5)(a)–(f), Normal
locations is greater than the Henderson, of sampling, the operator would be
Husbandry Practices [30 CFR 816/
Kentucky location, which is required to take the necessary actions to 817.116(c)(4)]
representative of conditions in the east. achieve revegetation success. The
Given the variability in precipitation, a liability period would then be The Federal regulations at 30 CFR
dry year may present an obstacle to the reinitiated. The proposed rules do not 816.116(c)(1) require that the period of
second year of revegetation success affect the length of the extended period extended responsibility for successful
sampling. Flexibility in sampling is of responsibility, which is 10 years in revegetation shall begin after the last
needed to skip the drought year(s), and Colorado. It should also be pointed out year of augmented seeding, fertilizing,
allow the operator to sample in one of that because the proposed rules clearly irrigation, or other work, excluding
the two following non-consecutive state that the demonstration of success husbandry practices that are approved
years. A demonstration of successful must be done for at least two of the last by the regulatory authority in
revegetation following a drought would four years, the proposed rules provides accordance with 30 CFR 816.116(c)(4).
clearly indicate the revegetation could the opportunity for requiring additional The Federal regulations at 30 CFR
withstand drought and the variable demonstrations as needed. 816.116(c)(4) require that a State may
climatic conditions. Revegetation that is approve selective husbandry practices,
The current regulation at 30 CFR
capable of meeting the performance excluding augmented seeding,
816.116(c)(3)(i) pertaining to areas of 26 fertilization, or irrigation, provided it
standards both before and after a period inches or less average precipitation does
of drought or pestilence would provide obtains prior approval from us that the
provide that success equal or exceed the practices are normal husbandry
a better demonstration of resilience, approved success standard during the practices. In addition, a State may also
effectiveness, and permanence than last two consecutive years of the approve selective husbandry practices,
revegetation that could meet the responsibility period. However, the without extending the period of
standards during two consecutive (and preamble to that rule published in the responsibility for revegetation success
fortuitous) years of more or less normal Federal Register on March 23, 1982, (47 and bond liability, if such practices can
precipitation and damage. The FR 12600) does not provide rationale for be expected to continue as part of the
likelihood of drought in Colorado needs measurement of revegetation success in post-mining land use or if
to be recognized. The proposed rule consecutive years. OSM does state that discontinuance of the practices after the
changes ensure that performance for areas of less than 26 inches average liability period expires will not reduce
standards will be met without undue annual precipitation, because of the the probability of permanent vegetation
costs or extensions of the ten-year greater variability in climatic conditions success. Approved practices shall be
liability period. in these Western States, especially normal husbandry practices within the
Colorado’s proposed rules prohibit precipitation, it is difficult to base region for unmined land having land
the inclusion of measurements taken success on a single year’s data. Thus, uses similar to the approved postmining
during the first eight years of the there is support for considering climatic land use of the disturbed area, including
responsibility period. This ensures that variability in measuring revegetation such practices as disease, pest, and
the plants will have the opportunity to success and for requiring two years of vermin control, and any pruning,
become well established prior to any success, but not necessarily for reseeding, and transplanting specifically
evaluation of the vegetation. This also consecutive years. necessitated by such actions.
provides the same level of flexibility in Colorado’s proposed rules at 4.15.7(5) Colorado proposed to add rules
evaluating revegetation success and 4.15.9 are as effective as the identifying normal husbandry practices
provided by the Federal regulations for corresponding Federal regulations at 30 that will not be considered augmented
States receiving more than 26 inches of CFR 816.116(c)(3) in achieving the practices and will not result in

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14990 Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations

restarting the responsibility period. In establishment efforts such as wildlife 8. Rule 4.15.7(5)(g), Normal Husbandry
support of the proposed normal plantings, windbreaks, etc. The U.S. Practices—Interseeding [30 CFR 816/
husbandry practices, Colorado indicated Department of Agriculture’s Natural 817.116(c)(4)]
that several management practices are Resources Conservation Service (NRCS) Proposed rule 4.15.7(5) requires, in
also addressed in this proposed rule. In (formerly known as the Soil part, that the liability period shall re-
rule 4.15.7(5)(a), repair of minor erosion Conservation Service), the Colorado Soil initiate whenever augmented seeding,
(including revegetation) is allowed Conservation Board, and the Colorado planting, fertilization, irrigation, or
under certain conditions, to reflect the Division of Wildlife (DOW) submitted other augmentive work is required or
fact that minor erosion affecting limited comments supporting this approach conducted. Colorado proposes that
areas is common during the early stages (Exhibit F to Colorado’s March 27, 2003, management activities that are not
of reclamation, even when appropriate State Program Amendment submission). augmentive, are approved as normal
reclamation and stabilization measures We consider, on a practice-by-practice husbandry practices, and may be
are applied. The provision specifies that basis, the administrative record conducted without re-initiating the
the operator’s liability period for a supporting each normal husbandry liability period.
reclaimed parcel subject to erosion practice proposed by a regulatory At rule 4.15.7(5)(a), Colorado
repair extend for a minimum of five authority (53 FR 34641, September 7, proposed that interseeding is considered
years after completion of such repair. 1988). We have also provided specific a normal husbandry practice to enhance
This will allow the Colorado Division of guidance concerning the repair of rills species or life form diversity on
Minerals and Geology (hereinafter DMG and gullies by stating that a regulatory rangeland or wildlife habitat.
or Division) to determine that the repair authority could allow the repair of rills Interseeding is not an allowable
has been successful in stabilizing the and gullies as a husbandry practice that substitute for complete reseeding when
area prior to final bond release. would not restart the liability period if a stand is dominated by species that do
Documentation of the repair work in the the general standards of 30 CFR not support the approved post mine
annual reclamation report will ensure 816.116(c)(4) are met, and after land use, or when vegetation cover is
accurate tracking for bond release consideration of the normal deficient and excessive erosion has
purposes. conservation practices within the region
In Colorado’s proposed rule at resulted. Interseeding shall be permitted
(48 FR 40157, September 2, 1983). within the first four years of any ten-
4.15.7(5)(b), weed control measures are In support of the proposed rule at
considered normal husbandry practices year liability period, upon approval by
4.15.7(5)(a), allowing for the repair of the Division. The nature, location and
provided they are conducted in rills and gullies, Colorado has provided
compliance with the Colorado Weed extent of the interseeding must be fully
a copy of a letter from the State described in the annual reclamation
Management Act and the Division’s
Resource Conservationist with the report.
Guidelines for Management of Noxious
NRCS. The letter clearly supports the Colorado defines interseeding as a
Weeds. A copy of the ‘‘Colorado
repair of rills and gullies as a normal tool to enhance the diversity of
Noxious Weed Act’’ [§ 5–5.5–115, C.R.S.
husbandry practice. established vegetation. Forb, shrub, and
(1996 Supp.)] and rules established
We reviewed the proposed normal grass species native to the area are
pursuant thereto, and a copy of DMG’s
‘‘Guideline for the Management of husbandry practices and supporting considered acceptable. The exact
Noxious Weeds on Coal Mine Permit documentation contained in Exhibit G species to be used depends upon the
Areas’’ were included in the March 27, of Colorado’s March 27, 2003, post mining land use. Interseeding only
2003, submission by Colorado (see submission for weed control, crop applies to lands where vegetation is
Exhibits A and D). management and tree and shrub established and no other management
Rules 4.15.7(5)(c), (d), and (e) identify replanting. Exhibit G includes tools are necessary. In contrast,
specific practices recognized as normal correspondence regarding normal augmented seeding is reseeding with
husbandry practices for annual crop husbandry practices and comments fertilizer or irrigation, or is in response
production, perennial cropland, and received from resource agencies. to an unsuccessful germination and
pasture land forage production, Based on our review, we have establishment. If a reclaimed parcel is
respectively. These land uses are determined that Colorado has provided deficient in vegetative cover due to
characterized by more intensive sufficient supporting documentation to insufficient moisture, poor germination
management than is typical of rangeland demonstrate that the normal husbandry or improper planting methodologies,
or wildlife habitat. The Federal practices described under rules augmented seeding would be necessary
regulations require that all normal 4.15.7(5)(a), (b), (c), (d), (e) and (f) are and the ten-year liability period would
husbandry practices be identified in the acceptable for unmined lands having be re-initiated.
approved State program. land uses similar to the approved The Federal regulations at 30 CFR
Rule 4.15.7(5)(f) limits transplanting postmining land use of the disturbed 816.116(c)(1) require that the period of
to a period within the first four years of area. In addition, in (a) and (b), extended responsibility for successful
the ten year liability period. The Colorado limits the real extent of revegetation shall begin after the last
limitation on the number of trees or affordable repair of rills and gullies and year of augmented seeding, fertilizing,
shrubs transplanted is 20 percent of the weed control measures to no more than irrigation, or other work, excluding
approved standard. These limitations five percent of the acreage revegetated husbandry practices that are approved
will insure that transplanting to replace in any one year. If these limits are by the regulatory authority in
initial mortality loss during the liability exceeded, the permittee would be accordance with 30 CFR 816.116(c)(4).
period is of a limited nature and that required to restart the liability period. The Federal regulations at 30 CFR
artificially seeded or transplanted We have determined that the 816.116(c)(4) require that a State may
woody plants will have been in place proposed normal husbandry practices approve selective husbandry practices,
for a minimum of six years prior to final meet the criteria to be approved under excluding augmented seeding,
bond release. Such limited transplanting 30 CFR 816/817.116(c)(4) and are no fertilization, or irrigation, provided it
is a normal husbandry practice less effective than the Federal obtains prior approval from OSM that
associated with intensive woody plant regulations. the practices are normal husbandry

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practices without extending the period Creek Soil Conservation District, the interseeding and supplemental
of responsibility for revegetation success White River Soil Conservation District, fertilization during the first 5 years of
and bond liability, if such practices can the DOW, and the NRCS. the 10-year responsibility period. While
be expected to continue as part of the Through funding made available by allowing replanting of trees and shrubs
post-mining land use or if the DOW, an interseeding drill was ‘‘to utilize the best technology
discontinuance of the practices after the purchased. The drill is available to available’’ without extending the
liability period expires will not reduce landowners based on the priority list responsibility period, we determined
the probability of permanent vegetation found in the Habitat Partnership that augmented seeding, fertilizing or
success. Approved practices shall be Program Proposal. Of highest priority irrigation are not allowed during the
normal husbandry practices within the are wildlife forage improvement projects responsibility period. (See 48 FR 40156,
region for unmined land having land to improve wildlife habitat. The DMG September 2, 1983.)
uses similar to the approved postmining believes that the use of interseeding on However, in 1988 (53 FR 34641,
land use of the disturbed area, including reclaimed lands can enhance the September 7, 1988) we stated, in the
such practices as disease, pest, and established vegetation similar to CRP context of the Federal regulation at 30
vermin control, and any pruning, lands and native rangelands to improve CFR 816.116(c)(4), that seeding,
reseeding, and transplanting specifically wildlife habitat. fertilization, or irrigation performed at
necessitated by such actions. Additional applicable references levels that do not exceed those normally
In support of the proposed normal include Yoakum et. al. (1980), Monsen applied in maintaining comparable
husbandry practice, Colorado states that and Shaw (1983), Frischknecht (1983), unmined land in the surrounding area
interseeding on rangelands and wildlife and Soil Conservation Service (now would not be considered prohibited
habitat is a normal husbandry practice known as NRCS) ‘‘Range Seeding augmentative activities.
recommended by biologists and land Standards and Specifications for Further, in the response to comments
managers to enhance established Colorado’’ (1987). In this latter received concerning an Ohio program
vegetation. In Rule 4.15.7(5)(g), the reference, NRCS limits the practice to amendment, OSM stated that ‘‘[t]he
Division is proposing the use of the eastern plains. Two coal mines on legislative history of the Act [SMCRA]
interseeding. A. Perry Plummer, in the eastern plains have successfully reveals no specific Congressional intent
‘‘Restoring Big Game Range in Utah’’ applied this practice to increase the in the use of the term augmented
(1968) states that ‘‘interseeding (seeding warm season grass cover. Specifically, at seeding.’’ Accordingly, our
directly into established vegetation the Bacon Mine and at the CCMC mine, interpretation of augmented seeding is
usually with only partial reduction in warm season grasses were interseeded given deference so long as it has a
competition) is a widely successful after it became apparent that the rational basis (see 63 FR 51832,
means of improving vegetative cover for presence of those grasses was not as September 29, 1998).
game and livestock.’’ He indicates that high as desired. Interseeding was a very Included in the proposal to allow
interseeding can be an effective means effective technique for increasing the interseeding as a normal husbandry
to establish shrubs and forbs in warm season grass component in the practice are proposed definitions for
perennial grass stands and notes that the reclaimed community. Both of these ‘‘augmented seeding’’ and
approach is especially useful on steep mines have successfully achieved Phase ‘‘interseeding’’ to distinguish the
slopes where it is desirable to establish III bond release criteria. differences between them. Interseeding
shrubs in predominantly herbaceous In rule 4.15.7(5)(g), Colorado defines is clearly aimed at establishing species
cover. interseeding as a tool used to enhance that require special conditions for
Many of the Conservation Reserve the diversity of established vegetation. germination and the establishment or
Program (CRP) lands in northwestern Forb, shrub, and grass species native to altering of species composition.
Colorado lack spatial, structural and the area will be considered acceptable. Colorado’s discussion of interseeding as
vegetative diversity. To improve the The exact species to be used will a normal husbandry practice in the
diversity of some grass-dominated CRP depend upon the post mining land use. ‘‘Coal Mine Reclamation Program
lands for sharp-tailed grouse habitat, the Interseeding will only apply to lands Vegetation Standards’’ guidance
DOW recommended, ‘‘adding legumes where vegetation is established and no document further clarifies that
and bunchgrasses and reducing sod- other management tools are necessary. interseeding is done to enhance
forming grasses within these fields to In contrast, augmented seeding is revegetation, rather than to augment
enhance the suitability for sharp-tailed reseeding with fertilizer or irrigation, or revegetation. Colorado reiterates that
grouse.’’ Some reclaimed lands resemble in response to an unsuccessful interseeding is defined as a secondary
CRP fields and interseeding is one of the reclaimed parcel. If a reclaimed parcel seeding into established revegetation in
tools DOW recommends to improve is deficient in vegetative cover due to order to improve diversity. In contrast,
habitat diversity as documented in the insufficient moisture, poor germination augmented seeding is reseeding with
DOW letter in Exhibit H of Colorado’s or improper planting methodologies, fertilization or irrigation, or in response
March 27, 2003, State Program augmented seeding would be necessary. to unsuccessful revegetation in terms of
Amendment submission. To further Based on these references and adequate germination or establishment
implement this recommendation, the practices, it is clear that in certain cases or permanence. Thus, Colorado’s goal
DOW assisted with the formation of the interseeding is desirable to increase the for interseeding is not only to ensure
Habitat Partnership Program. structural and vegetative diversity of the that the reclaimed area will meet the
The Habitat Partnership Program is reclaimed lands for wildlife habitat and success standards, but to go beyond the
designed to protect and enhance the for rangeland improvement. minimum standards of the regulations
condition of public and private We consider, on a practice-by-practice and improve the overall diversity of the
rangeland through the use of basis, the administrative record reclaimed area.
interseeding technology to modify supporting each normal husbandry Colorado also proposes to limit
species composition. Working practice proposed by a regulatory interseeding as a normal husbandry
cooperatively together in this program authority (53 FR 34641, September 7, practice to the first four years of any ten
are representatives of the Rio Blanco 1988). In 1983, we considered and year liability period. Such interseeding
Cooperative Extension Service, Douglas rejected the idea of allowing may consist of only native species and

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approved introduced species contained for successes shall include criteria ‘‘opponent’’ of bond release. The current
in the original seed mix. representative of unmined lands in the rule does not specify the use of the
To support interseeding as a normal area being reclaimed to evaluate the mean or median, but traditionally the
husbandry practice, Colorado submitted appropriate vegetation parameters of population mean as estimated by the
the documents identified above. ground cover, production, or stocking. sample mean with associated
Colorado also proposed interseeding as Ground cover, production, or stocking confidence interval has been applied.
a method to improve wildlife habitat shall be considered equal to the Colorado states that the amended rule
and grazing values. Further, all approved success standard when they allows for the traditional approach of
referenced publications support the use are not less than 90 percent of the the current rule, but would also allow
of interseeding as a normal husbandry success standard. The sampling for an alternative median-based reverse
practice. techniques for measuring success shall null approach for a woody plant density
We previously approved Indiana’s use a 90-percent statistical confidence success demonstration (as specified in
definition of ‘‘augmented seeding, interval (i.e., one-sided test with a 0.10 proposed rule 4.15.11(3)(a)). The reverse
fertilization, or irrigation’’ as seeding, alpha error). null approach is inherently more
fertilizing, or irrigation in excess of Colorado indicates that existing rule stringent than the traditional null
normal agronomic practices within the 4.15.8(7) is reorganized to correspond to formulation because the assumption is
region. Our approval was based on the proposed rule 4.15.11. Reference to a that reclamation has been unsuccessful
concept that the proposed definition specific confidence level is deleted, and for the parameter in question. The
made a distinction between normal detailed statistical requirements assumption of failure must be upheld
conservation practices that were not including confidence levels are unless demonstrated to be false with
augmented seeding, fertilizing, addressed in rule 4.15.11. Reference to statistical certainty. In this formulation,
irrigation or other work, and augmented a demonstration that ‘‘woody plant the ‘‘burden of proof’’ falls on the
husbandry practices (60 FR 53512, density exceeds 90 percent * * *’’ is ‘‘proponent’’ of bond release to
October 16, 1995). added to allow for use of the ‘‘reverse demonstrate with statistical certainty
We also previously approved the use null’’ approach to a success that the reclaimed area parameter
of interseeding as a normal husbandry demonstration, an option further exceeds the specified success threshold.
practice in New Mexico (65 FR 65770, detailed in rule 4.15.11. The amended The median has certain advantages
November 2, 2000). The Colorado rules at 4.15.11(1)(b) require DOW compared to the mean as a measure of
proposal is based on language in the consultation and approval for shrub central tendency, as the median is more
approved New Mexico program. plantings, address statistical approaches stable or robust than the mean and it is
Based on Colorado’s proposed appropriate to woody plant density impacted less by extreme data values.
restrictions on ‘‘interseeding,’’ and the evaluation, and address the ‘‘80/60’’ As a result, it is generally possible to
differentiation between ‘‘interseeding’’ requirement of 30 CFR 816/ estimate the population median with
and ‘‘augmented seeding’’ and the 817.116(b)(3)(ii). relatively high precision based on a
guidance provided for using Colorado states that rule 4.15.8(7) also relatively small sample size. However,
interseeding as a normal husbandry allows for a reverse null success as demonstrated by data included in
practice, and other documentation and demonstration based on the median for Exhibit I, the median is a more stringent
publications supporting interseeding as woody plant density, with a success standard of success than the mean for
a normal husbandry practice in threshold of ‘‘70% of the approved woody plant density due to the typically
Colorado, we find that Colorado has technical standard.’’ These changes skewed data distributions associated
demonstrated that the proposed use of correspond to the provisions of rule with woody plant samples on reclaimed
interseeding is not augmented seeding. 4.15.11, and a detailed justification for lands. Because of the influence of a
Because the use of interseeding use of the median-based reverse null relatively small percentage of extremely
proposed by Colorado clearly supports a approach, supported by data and high data values, the woody plant
key goal of SMCRA, which is the analyses included in Exhibit I (found in density mean almost always exceeds the
establishment of a permanent, diverse, the March 27, 2003, State Program woody plant density median by a
and effective vegetative cover without Amendment submission), is presented substantial margin.
compromising compliance of the State within the statement of basis and For woody plant density, the reverse
program with the Act, we also find that purpose sections corresponding to null approach, combined with use of the
Colorado’s proposed use of interseeding pertinent provisions of rule 4.15.11. The median as a specified measure of central
in rule 4.15.7(5)(g) is consistent with current rule states that the tendency, is more stringent than the
and no less effective than the Federal ‘‘establishment of woody plants shall be Federal requirements at 30 CFR 816/
regulations at 30 CFR 816.116(c)(1) and considered acceptable if the density is 817.116(a)(2), which allow for the
(4). not less than 90% of the approved traditional null formulation using the
reference area or standard with 90% mean as the specified measure of central
9. Rules 4.15.11 and 4.15.8(7), statistical confidence.’’ This language is tendency. The increased stringency is
Revegetation Sampling Methods and essentially identical to the Federal due to the effects of both the reverse
Statistical Demonstrations for requirement at 30 CFR 816/ null formulation and use of the median.
Revegetation Success [30 CFR 816/ 817.116(a)(2). The ‘‘not less than’’ In order to offset this excess stringency,
817.116(a)(1)]. language implies use of the standard, or proposed rule 4.15.8(7) (in combination
The Federal regulations at 30 CFR the traditional formulation of the null with proposed 4.15.11(3)(a)) allows for
816/817.116(a)(1) require that standards hypothesis, in which the inherent a success demonstration to be based on
for success and statistically valid assumption is that reclamation has been a threshold of 70% of a technical
sampling techniques for measuring successful for the parameter in question standard rather than 90% of the
success shall be selected by the and the assumption of success must be standard. Documentation in Exhibit I
regulatory authority and included in an upheld unless demonstrated to be false supports the reduction of the success
approved regulatory program. with statistical certainty. In this threshold when the median is the
The Federal regulations at 30 CFR formulation, the ‘‘burden of proof’’ specified parameter of comparison. The
816/817.116(a)(2) require that standards could be thought of as falling on the reduced stress threshold is further

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justified by the requirement to employ Colorado states that proposed rule negotiation among DOW and DMG staff,
the more stringent reverse null 4.15.11(2)(a) incorporates into its operators and consultants. It is not an
formulation to demonstrate success. regulations the standard statistical exact science and necessary or optimum
Colorado states that rule 4.15.11 is sample adequacy formula and direct levels of woody plant density to meet
being added to be no less effective than success comparison approach applicable habitat requirements are not
30 CFR 816/817.116(a)(1) and to specify previously specified in DMG guidelines. precisely defined. Colorado believes
the statistically valid sampling methods A notable modification is that the rule that the application of such a high
and testing techniques that operators allows for use of a precision level of degree of precision to a standard that is
must use in demonstrations of 0.15, rather than 0.10, in the standard based on professional recommendations
revegetation success. Acceptable sample adequacy formula for woody and negotiation is unwarranted.
sampling methods and approaches for plant density estimation. Larson (1980) Our review affirms that rule 4.15.11(2)
estimates of vegetation cover, used a precision level of 0.10 in identifies the statistical analysis and
herbaceous production, and woody example data sets, and that level of sample adequacy procedures to be used
plant density are addressed in proposed precision has subsequently been widely in evaluating vegetative cover,
rule 4.15.11(1). specified in State regulations and herbaceous production and woody plant
We have reviewed rule 4.15.11(1). As guidelines. However, no specific level of density. Rule 4.15.11(2)(a) gives the
proposed, this identifies the sampling standard sample adequacy formula for
statistical precision is required by the
methods that can be used to evaluate use in direct comparisons when the
Federal regulations in 30 CFR 816/
vegetation cover, herbaceous production value for the reclaimed area is greater
817.116. In Colorado, we have found the
and woody plant density. For vegetation than the standard, or when the
0.10 precision level to be appropriate
cover, point intercept, line intercept or reclaimed value is less than the
and practicable in the majority of cases
quadrat sampling are listed. For standard but not significantly different.
herbaceous production, quadrat for statistical evaluation of cover and
It sets sampling precision at 0.10 for
sampling or total harvest are the production success. However, due to the
vegetative cover and herbaceous
identified methods. For woody plant high variability and skewed
production and 0.15 for woody plant
density, identified methods include belt distributions typical of reclaimed area
density. In discussing the setting of
transects and circular or rectangular woody plant density data, extremely
precision levels, OSM indicates that it
quadrats. Sampling can be either large sample sizes are typically
has not stated a level of sampling
random or systematic. We have necessary to demonstrate sample precision in the final rules but will
determined that these are all standard adequacy for woody plant density at the instead evaluate on a case-by-case basis
sampling techniques used throughout 0.10 level of statistical precision. The the adequacy of predetermined sample
the country and have been previously time and expense associated with sizes or methods of sample size
approved in multiple State programs. obtaining estimates of woody plant selection proposed for use in State
Thus, subsection 4.15.11(1) is consistent density that are precise to within 10% programs (48 FR 40150, September 2,
with and no less effective than the of the true mean are not justified for 1983). Colorado’s proposal to set
requirements of 30 CFR 816.116(a) and coal reclamation lands in Colorado. precision levels at 0.10 for vegetative
therefore should be approved. Colorado enclosed, as Exhibit I, a cover and herbaceous production is
The State indicates that statistical package containing woody plant density consistent with previously approved
testing and sample adequacy data from representative mine precision levels used in States in the
approaches acceptable for vegetation reclamation areas in the Yampa Basin West. Colorado has also demonstrated
cover, herbaceous production, and and North Park, Colorado. The package that the proposal to use a precision level
woody plant density are addressed in includes detailed analyses of the data, of 0.15 for woody plant density is
proposed rule 4.15.11(2). The amended and presents justification for use of a appropriate given the high variability in
rule ensures that tests for success will precision level of 0.15 in the standard shrub density across a reclaimed area.
employ a 90 percent confidence level sample adequacy formula for woody The proposed rule is consistent with
(alpha error probability = .10) for plant density estimation. Colorado and no less effective than the Federal
‘‘standard null hypothesis-based’’ asserts that use of the 0.15 precision requirements of 30 CFR 816.116(a) and
demonstrations of success, and that tests level rather than 0.10 will significantly should be approved.
will employ an 80 percent confidence reduce required sample sizes for We note that rule 4.15.11(2)(b)
level (alpha error probability = .20) for reclaimed area woody plant density includes the standard method for
‘‘reverse null hypothesis-based’’ estimates. In Colorado’s judgment, the comparing vegetative parameters from
demonstrations of success. Data and increased precision associated with use the reclaimed area to 90% of the success
analyses in Exhibit I of the program of 0.10 for woody plant density standard. This approach makes use of
amendment demonstrate that reverse estimation is not critical, and the the classic null hypothesis, which is
null tests at the 80% level of confidence relatively small increase in precision that the vegetation on the reclaimed
are no less effective (and in fact are comes at too high a price in terms of the land is equal to or greater than that of
more stringent) than standard null tests time and effort associated with the the success standard. Under this
at the 90% level of confidence. Selected additional data collection. Colorado also approach, the vegetation on the
revegetation success standards are asserts that the use of a 0.15 precision reclaimed area may be less than the
addressed in rules 4.15.7(2)(d), level rather than 0.10 for demonstrating success standard; but statistically, it is
4.15.7(3), 4.15.7(4), 4.15.8, 4.15.9, and woody plant density success will not significantly different and the null
4.15.10. Justification for the 70% negligibly affect the extent to which hypothesis is not rejected. The
success threshold of proposed rule reclaimed shrublands provide desired minimum sample size is 15 and all
4.15.11(3)(a) for woody plant density is wildlife cover and forage on reclaimed sampling must meet sample adequacy
provided in the discussion under Rule landscapes. In Colorado, woody plant using the formula in Subsection
4.15.8(7) above, and pursuant to density standards are set based on 4.15.11(2)(a). This is the standard
associated amendments to Rule consultation with DOW personnel and approach used by State Regulatory
4.15.8(7). Additional justification is reflect the consideration of a wide range Authorities throughout the United
included in Exhibit I. of variables typically involving States and is the approach discussed in

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the 1983 preamble (48 FR 40152, that have frequently been necessary in lower confidence interval on the sample
September 2, 1983). As proposed, this order for operators to demonstrate median would have to exceed the
subsection is consistent with and no success for this parameter using success threshold.
less effective than the Federal traditional statistical methods. Based on Based on a review of the data
regulations and should be approved. the discussion below, the approaches submitted by the State, OSM has
As discussed in the State’s supporting specified in rules 4.15.11(3)(a), (b), and determined that proposed rules
justification, subsection 4.15.11(2)(c) (c) are no less effective than the 4.15.8(7) and 4.15.11(3)(a) are consistent
proposes to allow the use of the ‘‘reverse applicable Federal requirements of 30 with the intent of SMCRA and no less
null’’ hypothesis when the vegetation CFR 816.116(a)(1) and (a)(2). However, effective than 30 CFR 816.116(a)(2) in
parameter from the reclaimed area is depending on characteristics of the data, establishing success standards and
greater than the success standard, but the range of options may allow for ensuring that statistically valid
the number of samples taken is not operators to select a success comparisons are made during the
sufficient to meet sample adequacy. The demonstration approach that requires a evaluation of revegetation success.
reverse null hypothesis states that less intensive sampling effort than Accordingly, the rule should be
vegetation on the reclaimed area is less would be required if limited to only one approved.
than 90% of the success standard. OSM or two approaches. In discussing rule 4.15.11(3)(b)(i) in
has previously approved use of the Colorado included, in Exhibit I, data Exhibit I, Colorado indicates that an
reverse null hypothesis in the New and arguments in support of these approach that may in certain situations
Mexico program. Under the Colorado approaches. allow for a smaller sample size than
proposal, the confidence interval is set Rules 4.15.8(7) and 4.15.11(3)(a) indicated by the standard sample
at 80% (alpha = 0.20) and a minimum propose using the reverse null adequacy formula, without a
of 30 samples is required. The proposed hypothesis and nonparametric rank-sum corresponding reduction in stringency,
alpha (error probability) of 0.20 is test to demonstrate that the median is a non-statistical predetermined (or
greater than the 0.10 in the Federal value for the reclaimed area is greater maximum) sample size.
regulations. However, in order to than 70% of the success standard using Rule 4.15.11(3)(b)(i) allows for an
demonstrate that the revegetation meets an 80% confidence interval. In empirically derived, predetermined
the success standard under the reverse discussing this proposal in Exhibit I, the sample size of 75 that operators could
null hypothesis, the operator must show State indicates that, based on the use for a success demonstration in cases
that the vegetative parameter of concern literature and its observations, woody where sample adequacy has not been
is significantly greater than 90% of the plant density data from reclaimed lands demonstrated by approved statistical
success standard. That is, the mean are seldom normally distributed and formulas. In this approach, the woody
value for a given parameter must be well typically exhibit lognormal or similar plant density sample mean obtained
above the success standard because to distributions with a strong skewness to from a sample of at least 75 100-square-
be significantly greater than the success the right. Parametric statistics based on meter quadrats is compared directly
standard, the lower tail of the 80% means and standard deviations include against the approved success threshold
confidence interval must also be greater the assumption that the data come from (90% of the approved standard) with no
than 90% of the success standard. a normal distribution. This limits the consideration of statistical error or
Therefore, even though the error use of normal statistics in these type of confidence level). The specified quadrat
probability is slightly larger under the populations. The median is a relatively size restriction is necessary because a
State’s proposal, the requirement to ‘‘robust’’ or ‘‘resistant’’ measure of high percentage of the data that
exceed the success standard ensures central tendency. It is not influenced by comprise the basis for the proposed
consistency with the Federal a few extreme values and so it does not sample size of 75 were obtained using
regulations. To support this approach, get pulled toward the right tail. As a a 2-meter by 50-meter quadrat.
data in Exhibit I shows that a result, in a right-skewed distribution, Again, the State has included in
comparison of (1) statistical testing the median is always lower than the Exhibit I a review of several data sets to
using the standard null hypothesis and mean. Because reclaimed parcel woody demonstrate that a sample size of 75 is
a 90% confidence interval and (2) the plant density data sets typically exhibit generally adequate to ensure that the
reverse null hypothesis using an 80% right-skewed distributions, the sample mean would be within the 90%
confidence interval either gave the same requirement to demonstrate woody confidence interval of a statistically
results or the reverse null was more plant density success based on a adequate sample. The 75 sample size
stringent. For this reason, the use of an comparison of the median to a technical was no less effective than using the
80% percent confidence interval with standard is more stringent than a sample adequacy formula to determine
an alpha of 0.20 is consistent with and demonstration based on a comparison of sample size more than 90% of the time.
no less effective than the Federal the mean to the same technical It should also be noted that in the
regulations and should be approved. standard. Review of the various data preamble to the Federal regulations at
In discussing rule 4.15.11(3), the State sets and summary statistics submitted 30 CFR 816.116(a)(1), OSM stated that
indicates that it allows for additional by Colorado in Exhibit I indicates that, we will evaluate on a case-by-case basis
optional approaches for demonstrations on average, the medians for data the adequacy of predetermined sample
of sample adequacy and revegetation averaged less than 75% of the mean for sizes (48 FR 40150, September 2, 1983).
success that are solely applicable to those same data sets. Based on this Based on the information submitted as
woody plant density. The approaches information, it is reasonable to use 70% part of this program amendment, we
include (1) a median based reverse null (e.g., 90% of 75%) of the success determined that the use of a maximum
confidence limit comparison, (2) a mean standard when making comparisons to of 75 samples to evaluate the success of
based pre-determined sample size direct the median value of the reclaimed area. woody plant density is consistent with
comparison, and (3) an approach based The fact that amended rule 4.15.11(3)(a) the intent of SMCRA and no less
on stabilization of the running sample also requires a reverse null confidence effective than the Federal regulations.
mean. The range of options presented limit comparison on the median adds an Rule 4.15.11(3)(b)(ii) will allow the
for woody plant density is warranted, additional layer of stringency. To be use of a sample adequacy calculation
due to the extremely large sample sizes judged successful, the one tailed 80% that is based on the variance of the

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running mean, a minimum sample size based on the classic null hypothesis is proposed land use definitions for
of 40 samples, a precision of 0.03, and also appropriate. We have determined commercial or industrial and recreation.
an alpha of 0.10. In Exhibit I of this that the inclusion of a sample adequacy The proposed change would have no
amendment, Colorado evaluated the calculation that is based on the variance effect on determining if a land use
variance of the running mean sample of the running mean, a minimum change is proposed. The proposed
adequacy approach based on a number sample size of 40 samples, a precision change would affect the revegetation
of the data sets. The running mean of 0.03, and an alpha of 0.10 for success standards that developed
approach results in drastically reduced establishing required sample sizes when commercial recreation, as defined by the
sample sizes compared to the standard sampling woody plants is consistent State, would be subject to. Because the
sample adequacy approach (as specified with and no less effective than the revised definition of developed
in 4.15.11(2)(a)), when the same level of Federal regulations. commercial recreation is included
precision is specified in the formulas. Finally, rule 4.15.11(3)(c) allows for under industrial or commercial,
This is due to the fact that successive the use of a t-test based on the classic revegetation would only be evaluated
running mean values are much less null hypothesis and alpha of 0.10 to based on the Federal requirements of 30
variable than successive sample demonstrate success of woody plant CFR 816/817.116(b)(4), vegetative
observations. As such, the variance of density. This is the classic approach for ground cover not less than that required
the sample mean is correspondingly demonstrating revegetation success and to control erosion. Currently, areas with
smaller than the sample variance. is consistent with and no less effective a land use of recreation are required to
As discussed in Exhibit I of the than the Federal regulations. comply with the Federal requirements
amendment, Colorado compared three of 30 CFR 816.116(b)(3), which include
10. Rule 1.04(71)(f) and (g), Land Use—
different levels of precision, 0.10, 0.05, criteria for woody plant stocking and a
‘‘Industrial or Commercial’’ and
and 0.03, to determine the effect on ground cover not less than that required
‘‘Recreation’’ [30 CFR 701.5]
sample size and estimates of the mean to achieve the postmining land use.
and to ensure that reduced sample size Colorado proposes to revise its land
Under this rule, minimum stocking and
will not weaken the ability of use definitions to create two categories
planting arrangements are specified by
hypothesis testing to detect a true of recreation land use. The existing
the regulatory authority on the basis of
difference between the reclaimed area definition of a ‘‘recreation’’ land use
local and regional conditions and after
mean and the approved standard would be revised to limit it to non-
consultation with and approval by the
(success threshold). The two lower intensive uses such as hiking, canoeing,
State agencies responsible for the
levels of precision (i.e., 0.10 or 0.05) do and other undeveloped recreational
administration of forestry and wildlife
not appear to result in reliable estimates uses. The State then proposes to add a
programs.
of the mean when applied to the developed commercial recreation
category to its ‘‘industrial or OSM has evaluated the effect of
Colorado data, even when a minimum
commercial’’ land use. Developed Colorado’s proposed revision to the
sample size of 40 is imposed. At the .03
commercial recreation would be definitions of ‘‘industrial or
level of statistical precision, and with a
designated as including facilities such commercial’’ and ‘‘recreation’’ and
minimum sample size of 40, the
as amusement parks, athletic or determined there would be none.
modified sample adequacy formula
recreational sports facilities, and other Developed commercial recreation would
provides for a modest reduction in
intensive use recreational facilities. This not be subject to stocking and planting
average sample size compared to
average sample size resulting from designation applies only to lands that requirements of the State agencies
application of the standard sample are physically developed for intensive responsible for the administration of
adequacy formula with a 0.15 precision recreational use, and does not include forestry or fish and wildlife programs
level. Further, success demonstration adjacent lands that are not physically because of the intensive development of
stringency is comparable when the affected. these areas and the lack of authority
modified standard deviation term is In support of this proposal, Colorado over such commercial enterprises. And
substituted in the t-test formula. states that developed commercial because developed commercial
We have reviewed the proposed recreation facilities are more similar in recreation is limited to lands that are
alternative sample adequacy formula, nature to commercial service facilities physically developed for intensive
which can be used either in a direct than to undeveloped recreational uses recreational use, OSM believes that
comparison (i.e., the mean from the such as hiking, canoeing, and other ground cover adequate to control
reclaimed area is greater than 90% of leisure activities that do not depend on erosion would achieve the postmining
the success standard) or using a t-test specialized man-made structures and land use. The areas that would continue
with the classic null hypothesis and an facilities. to fall under the recreation land use
alpha of 0.10. Based on review of the The Federal definition for a recreation would continue to be evaluated in the
data analysis used to support Colorado’s land use is land used for public or same manner as is currently approved
proposal, OSM agrees with the State’s private leisure-time activities, including in the Colorado program.
conclusion that the modified sample developed recreation facilities such as Based on this OSM has determined
adequacy approach based on the parks, camps, and amusement areas, as that the proposed revisions to the land
variance of the running mean, with a well as areas for less intensive uses such use definitions are no less effective than
precision level of 0.03 and a minimum as hiking, canoeing, and other the Federal regulations and should be
sample size of 40, is no less stringent undeveloped recreational uses. The land approved.
than the standard sample adequacy use categories, as defined in the
11. 4.06.1(2), Topsoil Storage [30 CFR
approach with a precision level of 0.15. regulations, are used to determine if the
816/817.22(c)]
As discussed above in relation to postmining land use is different than
Colorado’s rule 4.15.11(2)(a) we have the premining land use, thereby Colorado proposes to amend rule
approved a precision level 0.15. There necessitating a land use change. They 4.06.1(2) to require that after removal,
is no level of statistical precision are also used to determine what the topsoil shall be immediately
required by Federal regulations. Its use applicable revegetation success criteria redistributed in accordance with rule
with either direct comparisons or a t-test would be. OSM has reviewed Colorado’s 4.06.4, or stockpiled pending

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14996 Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations

redistribution in accordance with rule Mountain Director of Public Employees contained the corrected version of
4.06.3. for Environmental Responsibility proposed rule 4.15.9. The corrected
Federal regulations at 30 CFR 816/ (PEER) (Administrative Record No. CO– version of proposed rule 4.15.9 was
817.22(c)(1) require that materials 696–11). On its Web page, PEER states quoted in the Federal Register notice
removed under section 816/817.22(a) that it is a national non-profit alliance establishing the instant comment
shall be segregated and stockpiled when of local, State and Federal scientists, period. The corrected version contains
it is impractical to redistribute such law enforcement officers, land managers no reference to measurement starting
materials promptly on regraded areas. and other professionals dedicated to earlier than year nine. Nor is there any
In discussing the proposed revision, upholding environmental laws and allowance for changing the applicable
Colorado indicated that rule 4.06.1(2) values. period of responsibility based on
was amended to be no less effective PEER comments address Colorado’s irrigation.
than 30 CFR 816/817.22(c). Alternative proposed rules at 4.15.7(5), 4.15.7(5)(g), In its comments, PEER cites Federal
topsoil storage practices were deleted and 4.15.9. However only proposed regulations at 30 CFR 816.116(c)(3)(i)
from the rule. changes to rules 4.15.1(5), 4.15.9 and noting that for western States (meaning
Item S–4 from OSM’s May 7, 1986, 30 1.04(78) were the subject of the specifically in areas of 26.0 inches or
CFR part 732 letter required Colorado to comment period established by OSM’s less average precipitation) revegetation
provide that topsoil storage other than notice published in the Federal Register success is to be measured in the last two
stockpiling may be used only when (1) on October 1, 2004 (69 FR 58873). consecutive years of the responsibility
stockpiling would be detrimental to the More specifically, PEER commented period. PEER states that Colorado’s
quantity or quality of the stored on changes to rule 4.15.7(5) amending proposal could allow measurement in
materials, (2) all stored materials are general revegetation success year nine and again in year 11, and that
moved to an approved site within the requirements applicable to all this would not be consistent with the
permit area, (3) the alternative practice postmining land uses and on the Federal rules requiring measurement in
would not permanently diminish the addition of proposed rule 4.15.7(5)(g) the last two consecutive years of the
capability of the soil of the host site, and pertaining to interseeding versus responsibility period. PEER states that
(4) the alternative practice would augmented seeding. These proposed the change will result in bond release
maintain the stored materials in a changes were included in the package being allowed under the Colorado
condition more suitable for future submitted by Colorado on March 27, program in cases when it would not be
redistribution than would stockpiling. 2003, and subject to our comment allowed under OSM’s rules. On this
In response, Colorado has eliminated period announced in the June 3, 2003, basis, PEER states Colorado’s proposal is
the provision for allowing alternative Federal Register. That comment period less effective than OSM’s rules in
practices for topsoil storage. The State ended on July 3, 2003. Therefore, the achieving the requirements of SMCRA.
now only allows the use of topsoil changes proposed to rule 4.15.7(5) and As described below, the criteria for a
stockpiles. While the Federal 4.15.7(5)(g) are not subject to the instant State provision to be no less effective
regulations do allow the use of comment period, and will not be than the Federal regulations is not
alternative practices for topsoil storage, discussed further herein. dependent on comparing resulting
it is only under limited circumstances. In rule 4.15.9, Colorado proposes situations as described by PEER for year
The lack of a State counterpart to this changes for areas used as cropland. nine and 11 versus results for the last
provision does not adversely affect the Success of revegetation will be two consecutive years of the
protection of salvaged topsoil or reduce determined on the basis of crop responsibility period. The focus of
the effectiveness of the State’s program. production from the mined area as OSM’s analysis is a State’s capability to
Colorado’s proposal is consistent with compared to approved reference areas or achieve the result prescribed in SMCRA.
and no less effective than the Federal other approved standards. Crop SMCRA at 515(b)(19) and (20), as
regulations. Therefore, we are approving production from the mined area will not interpreted by the Federal regulations at
it. be less than that of the approved 30 CFR 816.116 (b)(2), require that for
reference area or standard for two of the areas developed for use as cropland,
D. Revisions to Colorado’s Rules With
last four years of the liability period crop production on the revegetated area
No Corresponding Federal Regulation
established in rule 3.02.3. Crop shall be at least equal to that of a
2.04.13(1)(e), Annual reclamation production will not be considered prior reference area or such other success
report. to year nine of the liability period. This standards approved by the regulatory
There is no Federal counterpart to this represents a change from Colorado’s authority. See preamble to 30 CFR
requirement in Colorado’s regulations current rule requiring crop production 816.116 (b)(2) (47 FR 40152) published
that call for an annual reclamation to be considered during the last two September 2, 1983.
report. Therefore, the requirement is years of the liability period. PEER based comments against the
more effective than the Federal PEER’s comments on proposed rule proposed changes on three additional
regulations and more stringent than 4.15.9 refer to an earlier version of the factors. The first factor is a legal
SMCRA. Therefore, we are approving it. rule mistakenly submitted by Colorado. argument. PEER states that Colorado in
IV. Summary and Disposition of PEER objects that the proposed rule its statement of basis and purpose notes
Comments could allow measurement of that OSM has approved a similar
revegetation success on cropland as proposal in New Mexico. PEER states
Public Comments early as year four after final augmented that approval in another State is not
We received comments in response to work if the crop is irrigated. In its grounds to approve a proposal from
our notice in the Federal Register submission dated July 23, 2003 (the Colorado that is less effective than
published October 1, 2004. We did not subject of the instant comment period), OSM’s rules. PEER also takes exception
receive comments in response to notices Colorado states that wording from a to the rationale OSM relied on to
published June 3, 2003, and November previous version of the draft rules was approve the New Mexico variation.
20, 2003. inadvertently left in the proposed rule OSM’s standard for review and
We received a letter via e-mail dated submitted to OSM on March 27, 2003. consideration of a State’s proposed rule
October 18, 2004, from the Rocky The submission made on July 23, 2003, in comparison to a counterpart Federal

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Federal Register / Vol. 70, No. 56 / Thursday, March 24, 2005 / Rules and Regulations 14997

regulation is at 30 CFR 730.5(b), inches or less is based on the concept Environmental Protection Agency (EPA)
whereby State laws and regulations that more time is necessary to establish Concurrence and Comments
must be no less effective than the vegetation under lower precipitation
Secretary’s regulations in meeting the regimes. None of the revisions that Colorado
requirements of the Act. PEER takes proposed to make in this amendment
The preamble to OSM’s current pertain to air or water quality standards.
exception to regulations proposed by Federal regulation at 30 CFR
Colorado that fall under the standard in Therefore we did not ask EPA to concur
816.116(c)(3)(i) pertaining to areas of on this amendment.
30 CFR 730.5(b). The preamble to 30 26.0 inches or less average precipitation
CFR 730.5(b) (see 46 FR 53376, 53377, State Historic Preservation Officer
published in the March 23, 1982,
October 28, 1981) makes it clear that (SHPO) and the Advisory Council on
Federal Register (47 FR 12600) states
States are not required to precisely Historic Preservation (ACHP)
that for areas of less than 26.0 inches
adopt the Secretary’s regulations; that
average annual precipitation, because of Under 30 CFR 732.17(h)(4), we are
within limits, they are free to develop
and adopt regulations that meet their the greater variability in climatic required to request comments from the
special needs. States are no longer conditions, especially precipitation, it is SHPO and ACHP on amendments that
required to demonstrate that each difficult to base success on a single may have an effect on historic
alternative is necessary because of local year’s data. Thus, there is support for properties. On May 2, 2003, we
requirements or local environmental or requiring two years of success, but not requested comments on Colorado’s
agricultural conditions. A State program necessarily for consecutive years. amendment (Administrative Record No.
will, however, have to be no less Additionally, SMCRA does not CO–696–3,4), but none were received.
effective than the Secretary’s regulations specify timeframes for actually
V. OSM’s Decision
in meeting the requirements of the Act evaluating revegetation success. OSM
in order to be approved. As discussed in also concurs with Colorado’s argument Based on the above findings, we
more detail above, OSM has determined that recovery from a drought is an approve Colorado’s March 27, 2003,
that Colorado’s proposal meets the important demonstration of the success amendment, its April 4, 2003, addition,
criteria of 30 CFR 730.5(b). of revegetation in demonstrating and its July 23, 2003, revisions.
The second factor is biological. PEER compliance with 515(b)(19). We approve the rules as proposed by
states that the amount of precipitation is
PEER’s third factor for objecting to Colorado with the provision that they be
far more important than the variability
Colorado’s proposed revision deals with fully promulgated in identical form to
of precipitation. PEER notes that
the relevance of weather variability. the rules submitted to and reviewed by
SMCRA holds the dry western States to
a more stringent standard than the PEER indicates that because Colorado OSM and the public.
eastern States precisely because of the generally uses reference areas rather To implement this decision, we are
relative lack of precipitation. More than technical standards (the use of amending the Federal regulations at 30
specifically, PEER states that SMCRA reference areas being less common in CFR part 906, which codify decisions
already holds operators in western the East), weather variability is already concerning the Colorado program. We
states to a 10-year responsibility period, taken into account. As noted above, find that good cause exists under 5
as opposed to only a five-year period in weather variability is a factor for U.S.C. 553(d)(3) to make this final rule
the east. PEER contends that any effort requiring two years of revegetation effective immediately. Section 503(a) of
to allow a western State to use the less success, but is not necessarily a factor SMCRA requires that the State’s
stringent eastern standard as ‘‘no less requiring two consecutive years of program demonstrate that the State has
effective’’ than the more stringent success. the capability of carrying out the
western standard is ridiculous on its PEER also contends that Colorado’s provisions of the Act and meeting its
face. PEER further contends that proposal should be made to OSM in a purposes. Making this regulation
revegetation is still difficult in the West petition for rulemaking. The procedure effective immediately will expedite that
because of the limited precipitation. for petitioning for rulemaking is process. SMCRA requires consistency of
PEER does not agree that Colorado’s provided at 30 CFR 700.12. However, State and Federal standards.
argument alleging that non-consecutive this does not preclude Colorado from VI. Procedural Determinations
years actually provides a better proposing alternatives to OSM’s rules
demonstration of revegetation success. under 30 CFR 730.5. Executive Order 12630—Takings
PEER states that measuring revegetation
For the above reasons, This rule does not have takings
during a drought year would more
notwithstanding PEER’s comments, we implications. For most of the State
clearly show its resilience and
are still approving Colorado’s proposed provisions addressed, this
permanence than measuring after the
changes to the rule at 4.15.9 pertaining determination is based on the analysis
drought has broken. It is also concerned
to revegetation success criteria for performed for the counterpart Federal
that the proposed rule would allow
cropland. A more detailed analysis of regulation. For the remaining State
operators to ‘‘cherry pick’’ the most
our reasoning is found under section provisions, this determination is based
successful years and submit only the
C.6. above. on the fact that the rule will not have
best revegetation data.
OSM notes that neither 515(b)(19) or Federal Agency Comments impact on the use or value of private
(20) of SMCRA specify when property and so does not result in
revegetation success must be evaluated; Under the Federal regulations at 30 significant costs to the government.
these sections only state the CFR 732.17(h)(11)(i) and section 503(b) Executive Order 12866—Regulatory
requirement to establish vegetation on of SMCRA, we requested comments on Planning and Review
regraded areas and affected lands, and the amendment from various Federal
establish the responsibility period for agencies with an actual or potential This rule is exempted from review by
successful revegetation. The longer interest in the Colorado program the Office of Management and Budget
responsibility period for areas where the (Administrative Record No. CO–696–5). (OMB) under Executive Order 12866
annual average precipitation is 26.0 No comments were received. (Regulatory Planning and Review).

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Executive Order 12988—Civil Justice Executive Order 13211—Regulations Small Business Regulatory Enforcement
Reform That Significantly Affect the Supply, Fairness Act
Distribution, or Use of Energy
The Department of the Interior has This rule is not a major rule under 5
conducted the reviews required by On May 18, 2001, the President issued U.S.C. 804(2), the Small Business
section 3 of Executive Order 12988 and Executive Order 13211 which requires Regulatory Enforcement Fairness Act.
agencies to prepare a Statement of For the reason stated above, this rule: a.
has determined that this rule meets the
Energy Effects for a rule that is (1) Does not have an annual effect on the
applicable standards of subsections (a)
considered significant under Executive economy of $100 million; b. will not
and (b) of that section. However, these
Order 12866, and (2) likely to have a cause a major increase in costs or prices
standards are not applicable to the significant adverse effect on the supply,
actual language of State regulatory for consumers, individual industries,
distribution, or use of energy. Because Federal, State, or local government
programs and program amendments this rule is exempt from review under
because each program is drafted and agencies, or geographic regions; and c.
Executive Order 12866 and is not does not have significant adverse effects
promulgated by a specific State, not by expected to have a significant adverse on competition, employment,
OSM. Under sections 503 and 505 of effect on the supply, distribution, or use investment, productivity, innovation, or
SMCRA (30 U.S.C. 1253 and 1255) and of energy, a Statement of Energy Effects the ability of U.S.-based enterprises to
the Federal regulations at 30 CFR is not required. compete with foreign-based enterprises.
730.11, 732.15, and 732.17(h)(10), This determination is based upon the
decisions on proposed State regulatory National Environmental Policy Act
fact that a portion of the State
programs and program amendments This rule does not require an provisions are based upon counterpart
submitted by the States must be based environmental impact statement Federal regulations for which an
solely on a determination of whether the because section 702(d) of SMCRA (30 analysis was prepared and a
submittal is consistent with SMCRA and U.S.C. 1292(d)) provides that agency determination made that the Federal
its implementing Federal regulations decisions on proposed State regulatory regulation was not considered a major
and whether the other requirements of program provisions do not constitute rule. For the portion of the State
30 CFR parts 730, 731, and 732 have major Federal actions within the provisions that is not based upon
been met. meaning of section 102(2)(C) of the counterpart Federal regulations, this
National Environmental Policy Act (42 determination is based upon the fact
Executive Order 13132—Federalism U.S.C. 4332(2)(C)). that the State provisions are
This rule does not have federalism Paperwork Reduction Act administrative and procedural in nature
implications. SMCRA delineates the and are not expected to have a
This rule does not contain substantive effect on the regulated
roles of the Federal and State information collection requirements that
governments with regard to the industry.
require approval by OMB under the
regulation of surface coal mining and Paperwork Reduction Act (44 U.S.C. Unfunded Mandates
reclamation operations. One of the 3507 et seq.).
purposes of SMCRA is to ‘‘establish a This rule will not impose an
nationwide program to protect society Regulatory Flexibility Act unfunded mandate on State, local, or
and the environment from the adverse The Department of the Interior tribal governments or the private sector
effects of surface coal mining certifies that this rule will not have a of $100 million or more in any given
operations.’’ Section 503(a)(1) of significant economic impact on a year. This determination is based upon
SMCRA requires that state laws substantial number of small entities the fact that the State submittal, which
regulating surface coal mining and under the Regulatory Flexibility Act (5 is the subject of this rule, is based upon
reclamation operations be ‘‘in U.S.C. 601 et seq.) because it is largely counterpart Federal regulations, for
accordance with’’ the requirements of based upon counterpart Federal which an analysis was prepared and a
SMCRA, and section 503(a)(7) requires regulations for which an economic determination made that the Federal
that state programs contain rules and analysis was prepared and certification regulations did not impose an unfunded
made that such regulations would not mandate. For the portion of the State
regulations ‘‘consistent with’’
have a significant economic effect upon provisions that is not based on
regulations issued by the Secretary
a substantial number of small entities. counterpart Federal regulations, this
pursuant to SMCRA.
In making the determination as to determination is based upon the fact
Executive Order 13175—Consultation whether this rule would have a that the State provisions are
and Coordination With Indian Tribal significant economic impact, the administrative and procedural in nature
Governments Department relied upon the data and and are not expected to have a
assumptions for the counterpart Federal substantive effect on the regulated
In accordance with Executive Order regulations. The Department also industry.
13175, we have evaluated the potential certifies that the provisions in this rule
effects of this rule on Federally List of Subjects in 30 CFR Part 906
that are not based upon counterpart
recognized Indian Tribes and have Federal regulations will not have a Intergovernmental relations, Surface
determined that the rule does not have significant economic impact on a mining, Underground mining.
substantial direct effects on one or more substantial number of small entities Dated: January 20, 2005.
Indian Tribes, on the relationship under the Regulatory Flexibility Act (5 Allen D. Klein,
between the Federal government and U.S.C. 601 et seq.). This determination
Indian Tribes, or on the distribution of Regional Director, Western Regional
is based upon the fact that the Coordinating Center.
power and responsibilities between the provisions are administrative and
Federal government and Indian Tribes. procedural in nature are not expected to ■ For the reasons set out in the preamble,
The rule does not involve or affect have a substantive effect on the the Federal regulations at 30 CFR part
Indian Tribes in any way. regulated industry. 906 are amended as set forth below:

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PART 906—COLORADO ■ 2. Federal regulations at 30 CFR 906.15 § 906.15 Approval of Colorado regulatory
are amended in the table by adding a new program amendments
■ 1. The authority citation for part 906
entry in chronological order by ‘‘Date of * * * * *
continues to read as follows:
Final Publication’’ to read as follows:
Authority: 30 U.S.C. 1201 et seq.

Original
amendment Date of final Citation/description
submission publication
date

* * * * * * *
3/27/03 ......... 3/24/05 ......... 1.04(71)(f)&(g), 2.04.13(1)(e), 2.06.6(2)(a),(g), 2.06.8(4)(a)(i), 2.06.8(5)(b)(i), 2.07.6(1)(a)(ii), 2.07.6(2)(n),
2.08.4(6)(c)(iii), 3.03.2(1)(e), 3.03.2(5)(a), 4.03.1(4)(e), 4.05.2, 4.06.1(2), 4.15.1(5), 4.15.4(5), 4.15.7(1),
4.15.7(2), 4.15.7(3)(b), 4.15.7(3)(f), 4.15.7(4), 4.15.7(5), 4.15.7(5)(a), 4.15.7(5)(b), 4.15.7(5)(c), 4.15.7(5)(d),
4.15.7(5)(e), 4.15.7(5)(f), 4.15.7(5)(g), 4.15.8(3)(a), 4.15.8(4), 4.15.8(7), 4.15.8(8), 4.15.9, 4.15.11,
4.15.11(1)(a), 4.15.11(1)(b), 4.15.11(1)(c), 4.15.11(2), 4.15.11(3), 4.25.2(4).

[FR Doc. 05–5807 Filed 3–23–05; 8:45 am] under FOR FURTHER INFORMATION Enhancement for Charter School
BILLING CODE 4310–05–P CONTACT. Facilities program and its predecessor,
SUPPLEMENTARY INFORMATION: the Charter School Facilities Financing
Demonstration Grant program. These
Background two programs are virtually identical,
DEPARTMENT OF EDUCATION
These final regulations apply to both and grants made under them will
34 CFR Part 225 (a) the Credit Enhancement for Charter operate for several years. Sections
School Facilities program, which is related to grantee selection apply only
RIN 1855–AA02 authorized under title V, part B, subpart to grant competitions conducted after
2 of the Elementary and Secondary fiscal year (FY) 2004.
Credit Enhancement for Charter Education Act of 1965 (the Act), as
School Facilities Program Discussion of Regulations
amended by the No Child Left Behind
Act of 2001 (Pub. L. 107–110, enacted The primary purpose of these
AGENCY: Office of Innovation and
January 8, 2002) and (b) its predecessor, regulations is to establish selection
Improvement, Department of Education.
the Charter School Facilities Financing criteria for this complex program’s
ACTION: Final regulations. discretionary grant competitions after
Demonstration Grant program, as
SUMMARY: The Secretary issues these authorized by title X, part C, subpart 2 FY 2004. Since we seek to award grants
final regulations to administer the of the Act through the Department of to high-quality applicants with high-
Credit Enhancement for Charter School Education Appropriations Act, 2001 as quality plans for use of their grant
Facilities program, and its predecessor, enacted by the Consolidated funds, these criteria essentially include
the Charter School Facilities Financing Appropriations Act, 2001. The purpose assessments on the quality of the
Demonstration Grant program. Under of this program is to assist charter applicant and the quality of the
this program, the Department provides schools in meeting their facilities needs. applicant’s plan. The criteria also assess
competitive grants to entities that are Under this program, funds are provided how applicants propose to leverage
non-profit or public or are consortia of on a competitive basis to public and private or public-sector funding and
these entities to demonstrate innovative nonprofit entities, and consortia of these increase the number and variety of
credit enhancement strategies to assist entities, to leverage other funds and charter schools assisted in meeting their
charter schools in acquiring, help charter schools acquire school facilities needs. The selection criteria
constructing, and renovating facilities facilities through such means as are similar to those we have used in the
through loans, bonds, other debt purchase, lease, and donation. Grantees two previous competitions for this
instruments, or leases. may also use grants to leverage other program. As noted in the Background
funds to help charter schools construct Section, this regulation also includes
DATES: These regulations are effective
and renovate school facilities. several provisions that govern the
April 25, 2005. To help leverage funds for charter ongoing management of the grants
FOR FURTHER INFORMATION CONTACT: Ann school facilities, grant recipients may, already awarded in preceding fiscal
Margaret Galiatsos or Jim Houser, U.S. among other things: Guarantee and years.
Department of Education, 400 Maryland insure debt, including bonds, to finance
Avenue, SW., room 4W245, FB–6, Analysis of Comments and Changes
charter school facilities; guarantee and
Washington, DC 20202–6140. insure leases for personal and real On October 22, 2004, the Secretary
Telephone: (202) 205–9765 or via property; facilitate a charter school’s published a notice of proposed
Internet, at: charter.facilities@ed.gov. facilities financing by identifying rulemaking (NPRM) for this program in
If you use a telecommunications potential lending sources, encouraging the Federal Register (69 FR 62008). In
device for the deaf (TDD), you may call private lending, and carrying out other, response to the Secretary’s invitation in
the Federal Relay Service (FRS) at 1– similar activities; and establish the NPRM, four parties submitted
800–877–8339. temporary charter school facilities that comments on the proposed regulations.
Individuals with disabilities may new charter schools may use until they An analysis of the comments and of the
obtain this document in an alternative can acquire a facility on their own. changes in the regulations since
format (e.g., Braille, large print, Sections in these regulations that publication of the NPRM follows. We
audiotape, or computer diskette) on govern the management of grants apply discuss substantive issues under the
request to the contact persons listed to grants under both the Credit subparts of the regulations to which

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