65770 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

intended to be removed. Not removing

the section resulted in the next section

being redesignated incorrectly. Section

I.H. and the note following section I.H.

were intended to be removed, but were

not, and section I.H. was incorrectly

designated as section I.F. This

document corrects these errors by

removing section I.H. and the note

following section I.H., and redesignating

section I.I. as section I.F.

Correction of Publication

Accordingly, the publication on

September 5, 2000, of the final rule

(T.D. 00–57, 65 FR 53565) is corrected

as follows:

1. On page 53578, in the third

column, the fifth amending instruction

is revised to read as follows:

Appendix C to Part 171 [Amended]

5. Appendix C to Part 171 is amended

by removing the Note following section

I.D., removing section I.E., redesignating

section I.F. as section I.E., removing

sections I.G. and I.H. and the NOTE

following section I.H., and redesignating

section I.I. as section I.F.

Dated: October 30, 2000.

Stuart P. Seidel,

Assistant Commissioner, Office of

Regulations and Rulings.

[FR Doc. 00–28197 Filed 11–1–00; 8:45 am]

BILLING CODE 4820–02–P

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 931

[NM–040–FOR]

New Mexico Regulatory Program

AGENCY: Office of the Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: The Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving a proposed amendment to the

New Mexico regulatory program

(hereinafter, the ‘‘New Mexico

program’’) under the Surface Mining

Control and Reclamation Act of 1977

(SMCRA). New Mexico proposed new

rules and revisions to rules concerning

a guidance document, Coal Mine

Reclamation Program Vegetation

Standards (including success standards,

sampling techniques, and normal

husbandry practices); definitions; time

frames within the liability period for

demonstrating success of revegetation;

and annual report requirements. New

Mexico revised its program to be

consistent with the corresponding

Federal regulations and clarify

ambiguities.

EFFECTIVE DATE: November 2, 2000.

FOR FURTHER INFORMATION CONTACT:

Willis L. Gainer, Telephone: (505) 248–

5096, Internet address:

WGAINER@OSMRE.GOV.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

II. Submission of the Proposed Amendment

III. Director’s Findings

IV. Summary and Disposition of Comments

V. Director’s Decision

VI. Procedural Determinations

I. Background on the New Mexico

Program

On December 31, 1980, the Secretary

of the Interior conditionally approved

the New Mexico program. You can find

background information on the New

Mexico program, including the

Secretary’s findings, the disposition of

comments, and conditions of approval

in the December 31, 1980, Federal

Register (45 FR 86459). You can also

find later actions concerning New

Mexico’s program and program

amendments at 30 CFR 931.11, 931.15,

931.16, and 931.30.

II. Submission of the Proposed

Amendment

By letter dated December 1, 1999

(administrative record No. NM–816),

New Mexico sent to us an amendment

to its program under SMCRA (30 U.S.C.

1201 et seq.). New Mexico submitted the

proposed amendment at its own

initiative and in response to the

required program amendments at 30

CFR 931.16(m), (n), and (z).

We announced receipt of the

proposed amendment in the December

22, 1999 Federal Register (64 FR

71700). In the same document, we

opened the public comment period and

provided an opportunity for a public

hearing or meeting on the amendment’s

adequacy (administrative record No.

819). We did not hold a public hearing

or meeting because no one requested

one. The public comment period ended

on January 21, 2000.

During our review of the amendment,

we identified concerns and notified

New Mexico of the concerns by letter

dated February 17, 2000 (administrative

record no. NM–825). New Mexico

responded in two letters dated April 26,

2000, by submitting (1) rule revisions

never before submitted (administrative

record No. NM–828) and (2) additional

revisions to the December 1, 1999,

amendment (administrative record No.

NM–830).

Based upon New Mexico’s revisions

to and additional explanatory

information for its amendment, we

reopened the public comment period in

the June 7, 2000, Federal Register (65

FR 36104; administrative record No.

834) and provided an opportunity for a

public hearing or meeting on the

adequacy of the revised amendment. We

did not hold a public hearing or meeting

because no one requested one. The

public comment period ended on July 7,

2000.

III. Director’s Findings

Following are the findings we made

concerning the amendment under

SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17. We are

approving the amendment.

1. Revisions to New Mexico’s Rules That

Respond to Required Amendments

A. General Revegetation Requirements,

Required Amendment at 30 CFR

931.16(m)(1)

OSM required at 30 CFR 931.16(m)(1)

that New Mexico revise 19 NMAC 8.2

2065.A to require that revegetation

success be based on the general

revegetation requirements at 19 NMAC

8.2 2060 and 2061 (See finding No.

16(a), 58 FR 65907, 65918, December 17,

1993; administrative record no. NM–

706).

New Mexico (1) proposed to revise 19

NMAC 8.2 2065.A to require that

success of revegetation shall be

measured by techniques identified in

the Director’s Coal Mine Reclamation

Program Vegetation Standards, as

approved by the Directors of the New

Mexico Mining and Minerals Division

(MMD) and OSM after consultation with

appropriate State and Federal agencies,

and (2) submitted for OSM’s approval

the Coal Mine Reclamation Program

Vegetation Standards guidance

document.

The introductory sentence in section

I. D., Establishment and Monitoring of

Revegetation Success Standards, in the

Coal Mine Reclamation Program

Vegetation Standards guidance

document, requires that ‘‘[t]he success

of revegetation on reclaimed lands is

measured against either an unmined

reference area or technical (numeric)

standards, and the general revegetation

requirements of 19 NMAC 8.2, Subpart

2060.’’ Because proposed 19 NMAC 8.2

2065.A states that revegetation success

shall be measured in accordance with

the Coal Mine Reclamation Program

Vegetation Standards, the requirement

to determine success based in part on

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65771

the general revegetation requirements of

19 NMAC 8.2 2060 (concerning

establishment of a vegetative cover that

is diverse, effective, and permanent) is

incorporated by reference into 19

NMAC 8.2 2065.A. Therefore, the

Director finds that New Mexico’s

proposed rule at 19 NMAC 8.2 2065.A

has satisfied the requirement that the

success of reclamation be judged upon

New Mexico’s counterpart, 19 NMAC

8.2 2060, to the Federal regulation at 30

CFR 816.111(a)(1).

The Federal regulations at 30 CFR

816.111(a)(2) and New Mexico’s rules at

19 NMAC 8.2 2061 require that the

permittee establish a vegetative cover

that is comprised of native species or of

introduced species approved by the

regulatory authority. New Mexico’s

proposed Coal Mine Reclamation

Program Vegetation Standards guidance

document includes the list of

introduced species that may be

approved in a permit application

package. Therefore, the Director finds

that by revision of 19 NMAC 8.2 2065

to include the guidance document in its

approved program, New Mexico has

satisfied the requirement that the

success of reclamation be judged upon

New Mexico’s counterpart, 19 NMAC

8.2 2061, to the Federal regulation at 30

CFR 816.111(a)(2).

Please note that New Mexico’s

proposed 19 NMAC 8.2 2065.A requires

that the Directors of New Mexico MMD

and OSM consult with appropriate State

and Federal agencies prior to approval

of techniques for measuring success;

such a requirement for consultation has

no counterpart in the Federal program.

New Mexico’s requirement for

consultation with appropriate agencies

prior to approval of measuring

techniques is not inconsistent with the

Federal regulations; however, the

Director makes this finding with the

interpretation that the consultation

requirement applies only to New

Mexico and not to OSM.

Based on the discussion above, the

Director finds that New Mexico’s

proposed revision of 19 NMAC 8.2

2065.A and the Coal Mine Reclamation

Program Vegetation Standards guidance

document are no less effective than the

counterpart Federal regulations at 30

CFR 816.111 and satisfy the required

amendment at 30 CFR 931.16(m)(1).

Therefore, the Director removes the

required amendment at 30 CFR

931.16(m)(1).

B. Technical Guidance Procedure

Publications, Required Amendment at

30 CFR 931.16(m)(2)

OSM required at 30 CFR 931.16(m)(2)

that New Mexico revise 19 NMAC 8.2

2065.A to specifically identify the

technical guidance procedures

published by USDA that may be used as

the basis for technical success standards

demonstrating revegetation success (See

finding No. 16(a), 58 FR 65907, 65918,

December 17, 1993; administrative

record no. NM–706.

New Mexico proposed to revise 19

NMAC 8.2 2065.A to delete the

allowance for the use of technical

guidance procedures published by

USDA or other techniques approved by

MMD. With the deletion of unspecified

technical guidance procedures, New

Mexico has resolved the need for any

further action.

The Director finds that New Mexico’s

proposed revision of 19 NMAC 8.2

2065.A is no less effective than the

counterpart Federal regulations at 30

CFR 816.116(a)(1) and 817.116(a)(1) and

satisfies the required amendment at 30

CFR 931.16(m)(2). Therefore, the

Director removes the required

amendment at 30 CFR 931.16(m)(2).

C. Standards, Measuring Techniques,

and Statistical Analyses for

Demonstrating Revegetation Success,

Required Amendment at 30 CFR

931.16(m)(3) and (n)

OSM required at 30 CFR 931.16(m)(3)

that New Mexico propose revisions to

19 NMAC 8.2 2065.A to require that all

standards for success and measuring

techniques be approved by the Director

of OSM for inclusion in New Mexico’s

approved regulatory program (See

finding No. 16(a), 58 FR 65907, 65918,

December 17, 1993, administrative

record No. NM–706). OSM required at

30 CFR 931.16(n) that New Mexico

revise 19 NMAC 2065.B(1) to require

that all revegetation success standards

and measuring techniques be approved

by the Director of OSM as well as the

Director of MMD (See finding No. 16(b),

58 FR 65907, 65919, December 17, 1993;

administrative record No. NM–706).

New Mexico (1) proposed to revise (a)

19 NMAC 8.2 2065.A to require that the

measuring techniques identified in the

Coal Mine Reclamation Program

Vegetation Standards be approved by

Directors of both MMD and OSM, and

(b) 19 NMAC 8.2 2065.B(1) to require

approval of the Coal Mine Reclamation

Program Vegetation Standards by both

MMD and OSM, and (2) submitted for

OSM’s approval the Coal Mine

Reclamation Program Vegetation

Standards guidance document. In the

second paragraph of this document,

New Mexico states that ‘‘[t]he use of

procedures or practices that are not

included in these standards, however,

requires prior approval of the Directors

of both the MMD and OSM.’’

Based on the proposed revisions

described above and the discussion

below concerning revegetation success

standards and measuring techniques,

the Director finds that New Mexico’s

proposed revision of 19 NMAC 8.2

2065.A and 2065.B(1) and the Coal Mine

Reclamation Program Vegetation

Standards guidance document are no

less effective than the counterpart

Federal regulations at 30 CFR

816.116(a)(1) and (2) and 817.116(a)(1)

and (2) and satisfy the required

amendments at 30 CFR 931.16(m)(3)

and (n). Therefore, the Director removes

the required amendments at 30 CFR

931.16(m)(3) and (n).

i. Revegetation Success Standards.

Section I.D. (‘‘Establishing and

Monitoring Revegetation Success

Standards’’) in the New Mexico’s Coal

Mine Reclamation Program Vegetation

Standards guidance document sets forth

revegetation success standards on

reclaimed lands, which may be

measured against either an unmined

reference area or technical (numeric)

standards, and the general revegetation

requirements of 19 NMAC 8.2, Subpart

2060.

New Mexico encourages applicants to

develop and use technical standards

when suitable reference areas are not

available and baseline data or historical

records are incomplete. For the

development of technical standards,

New Mexico requires data collected

from undisturbed vegetation types

remaining on the mine or adjacent to the

mine area in combination with

additional documentation from data

collection from vegetation types similar

to those of premine or predisturbance

conditions (which should take the form

of peer-reviewed scientific, government,

or extension publications that describe

the condition, production, and potential

of natural vegetation communities

resembling premine vegetation).

New Mexico requires that reference

areas must include each native

vegetation type that comprises greater

than 15% of the undisturbed premine

area, and that reference areas or

technical standards for reclaimed

croplands and pasture lands must be

established regardless of size.

To provide a reasonable measure of

revegetation success, New Mexico

requires that reference areas must

include enough variation in slope, slope

position, aspect and edaphic conditions

to adequately represent the undisturbed

condition of the premine vegetation

types. New Mexico also encourages the

establishment of extended reference

areas whenever mining operations will

disturb more than one or two native

plant communities. An extended

65772 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

reference area must include each of the

major premine vegetation types, and

should constitute a logical grazing unit.

The Director finds that the

revegetation success standards set forth

in Section I.D. of New Mexico’s Coal

Mine reclamation Program Vegetation

Standards guidance document are

consistent with and no less effective and

the Federal regulations at 30 CFR

816.116(a)(1) and (2) and 817.116(a)(1)

and (2).

ii. Measuring Techniques for

Demonstrating Success of Revegetation.

Section II.B. (‘‘Measurement of Cover,

Production, Density and Diversity’’) in

New Mexico’s Coal Mine Reclamation

Program Vegetation Standards guidance

document sets forth methods and

procedures for measuring or sampling

vegetation on reclaimed land. New

Mexico provides for the use of (1) ocular

estimation techniques and intercept

techniques (e.g., line interception and

point interception) to measure cover; (2)

clipping of herbaceous production,

regression models that predict the

annual production of individual shrub

species, and enclosures to measure

productivity; (3) plotless and nearest

neighbor methods, quadrat and belt

transect methods, and exact counts to

measure tree and shrub density; and (4)

alpha (a) or species diversity, beta (b) or

inter-community diversity, and gamma

(g) or landscape diversity to measure

diversity.

With the exception of the use of

ocular estimation to measure cover, all

of New Mexico’s proposed measurement

procedures are typical methods used for

evaluating plant cover, production,

density and diversity and have been

previously approved by OSM in other

State programs.

OSM’s previously identified concerns

with use of the ocular technique are

repeatability and observer bias.

However, in Chapter 8, Measuring and

Monitoring Plant Populations (C.

Elzinga, D. Salzer and J. Willoughby,

BLM Technique Reference 1730–1,

1998), the authors note problems with

all cover estimation techniques. None is

problem or bias free. The BLM authors

also include a discussion comparing

ocular plot and point intercept (the most

commonly used cover estimating

technique) methods. The authors

indicate that Dethier et al. (1993)

created simulated plots containing a

known cover of 13 species and

compared cover measured by point

intercept to cover visually estimated to

the nearest percent in the plot. Cover

estimations done with the aid of

subdividing the 50x50 centimeter plots

into 4x5 centimeter rectangles were

close between observers, and closer to

the true value of cover than measured

points. In the field, point intercept

failed to detect 19% of the species that

were detected by cover estimation.

Differences between observers were less

for cover estimations than for point

measurements. This discussion

indicates that cover estimation using

ocular methods can be as reliable as

point intercept and is more likely to

detect a greater diversity of plant

species present on the reclaimed area.

New Mexico’s guidance document

also reflects the concerns with

repeatability and observer bias. New

Mexico indicates that variability may be

reduced by using smaller quadrats for

evenly dispersed vegetation

(rhizomatous grasses) and larger

quadrats for clumped vegetation such as

forbs, shrubs, and bunch grasses.

Further, New Mexico requires the use of

the following techniques to improve the

reliability of ocular estimates:

• Frames should be painted to

indicate various areal percentages or

marked with grids that delineate known

percentages.

• The number of observers should be

limited, and each observer should be

similarly trained (e.g., by making joint

estimates using cardboard shapes of

known cover values).

• Sampling error can be reduced by

ensuring that vertical projections of

ground covered by vegetation, litter or

rock contained or rooted within a

circular plot or quadrat are carefully

estimated and recorded to the nearest

percent.

• The use of cover classes as the sole

means of establishing or measuring a

cover standard will not be accepted.

Based on the above discussion, the

Director finds that the methods and

procedures for measuring or sampling

vegetation on reclaimed land set forth in

Section II of New Mexico’s Coal Mine

Reclamation Program Vegetation

Standards guidance document,

including the use of ocular estimation

for evaluating plant cover, are consistent

with and no less effective than the

Federal regulations at 30 CFR

816.116(a)(1) and (2) and 817.116(a)(1)

and (2).

iii. Statistical Analyses for

Demonstrating Revegetation Success

with 90 Percent Statistical Confidence.

Section III (‘‘Statistical Analyses of

Vegetation Data’’) and Appendix C

(‘‘Statistical Formulas, Examples and

Tables’’) in New Mexico’s Coal Mine

Reclamation Program Vegetation

Standards guidance document sets forth

the acceptable methods of statistical

analyses for demonstrating revegetation

success with 90 percent statistical

confidence. In addition to the

traditional approaches for statistically

demonstrating revegetation success

when evaluating cover, production or

stocking density, New Mexico proposes

to allow the use of the reverse null

hypothesis. For this text, New Mexico

has defined the null hypothesis to be

that the parameter mean of the

revegetated area is less than 90 percent

of the parameter mean of the reference

area (or technical standard). The

alternative hypothesis is that the

parameter mean of the revegetated area

is greater than or equal to 90 percent of

the parameter mean of the reference area

(or technical standard). In all cases, a 90

percent confidence interval and a onesided test with an alpha error of 0.1 is

used. The reverse null hypothesis

assumes that mining has affected the

land and it must be demonstrated that

the performance standards required by

the regulations have been achieved. In

support to its proposed reverse null

hypothesis, New Mexico references M.

Ames’ 1993 publication ‘‘Sequential

Sampling of Surface-mined Land to

Assess Reclamation,’’ in the Journal of

Range Management (46:498–500); W. P.

Erikson’s 1992 publication ‘‘Hypothesis

Testing Under the Assumption That a

Treatment Does Harm to the

Environment,’’ M.S. thesis, University

of Wyoming, and Erikson and

McDonald’s 1995 publication ‘‘Tests for

Bioequivalence of Control Media and

Test Media in Studies of Toxicity,’’ in

Environmental Toxicology and

Chemistry (14:1247–1256).

This reverse null hypothesis is the

opposite of the null hypothesis for the

Federal regulations. In the September 2,

1983 Federal Register (48 FR 40140,

40152), OSM states that the null

hypothesis usually states that there is no

difference between the true value of the

population parameter and that which is

hypothesized. The null hypothesis is a

proposition that is considered valid

unless evidence throws doubt on it. this

means that the mine operator has

achieved the required degree of

revegetation success unless evidence as

provided by the sample data indicates

that the standard has not been attained.

The use of the reverse null hypothesis

is a more stringent statistical standard to

meet than the classical null hypothesis.

A mine operator must, in effect,

demonstrate that the lower limit of the

90 percent confidence interval for the

reclaimed area parameter is greater than

(1) the upper limit of the 90 percent

confidence interval for 90 percent of the

reference area standard or (2) 90 percent

of the technical standard. Under the

classical null hypothesis an operator

must only demonstrate that either the

two confidence intervals for the

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65773

reclaimed parameter and the reference

area parameter overlap or the

confidence interval for the reclaimed

parameter and 90 percent of the

technical standard overlap.

An advantage in using the reverse

null hypothesis is that sample size is no

longer an issue. Small sample sizes are

usually associated with large variances

and, therefore, large confidence

intervals. With the reverse null

hypothesis the goal of sampling is to

reduce the variance and size of the

confidence interval around the sample

mean. It is to the operator’s benefit to

take a sample of sufficiently large size

to minimize variance, reduce the width

of the confidence interval and ensure

that the null hypothesis can be rejected.

For this reason, New Mexico does not

specify the use of a sample adequacy

formula for demonstrating revegetation

success. However, New Mexico does

recommend a minimum sample size of

30.

The Director finds that Sections III.A

and B (‘‘Statistical Analysis of

Vegetation Data’’) and Appendix C

(‘‘Statistical Formulas, Examples and

Tables’’) in New Mexico’s Coal Mine

Reclamation Program Vegetation

Standards guidance document are

consistent with and no less effective

than the Federal regulations at 30 CFR

816.116(a)(1) and (2) and 817.116(a)(1)

and (2).

D. Normal Husbandry Practices,

Required Amendment at 30 CFR

931.16(z)

OSM required at 30 CFR 931.16(z)

that New Mexico revise its rules to

either identify selected husbandry

practices and submit them with

documentation verifying that the

proposed practices would be considered

normal in the areas being mined, or

state that selected husbandry practices

approved by the Director may not be

implemented prior to approval by OSM

in accordance with the State program

amendment process at 30 CFR 772.17

(See finding No. 18, 61 FR 26825,

26831, May 29, 1996; administrative

record No. NM–786).

New Mexico proposed to revise 19

NMAC 8.2 2065.B(1) to require that the

period of extended responsibility under

the performance bond requirements of

Subparts 14 and 15 begins after the last

year of augmented seeding, fertilizing,

irrigation, or other work, excluding

husbandry practices that are approved

by the Director in accordance with

paragraph 2065.B(6), and submitted, for

OSM’s approval, the Coal Mine

Reclamation Program Vegetation

Standards guidance document.

New Mexico identified proposed

normal husbandry practices in Sections

IV.A and IV.B of the Coal Mine

Reclamation Program Vegetation

Standards guidance document and

provided the documentation showing

that the practices would be considered

normal in the areas being mined. In

addition, New Mexico requires that

applicants must ensure that the current

permit contains a management plan that

discusses the use of approved

husbandry practices before they are

implemented. The plan should describe

the purpose of the practices, the

methods to be used, and the schedule

for implementation. Upon approval of

the plan by New Mexico, the applicant

may implement the husbandry practice.

New Mexico’s Coal Mine Reclamation

Program Vegetation Standards guidance

document discuses the use of the

following normal husbandry practices

(see finding No. 2.A below for a

discussion of one additional normal

husbandry practice concerning

interseeding and planting of tree and

shrub seedlings):

(1) Additional mulching (applicable to the

grazing land, fish and wildlife habitat,

forestry, and recreation postmining land

uses, must be completed at least six (6) years

prior to Phase III bond release, no reclaimed

acreage limit applies);

(2) Use of fire or controlled burning

(applicable to all postmining land uses at any

time during the liability period, no reclaimed

acreage limit applies);

(3) Mechanical practices or selective

cutting, mowing and raking to control weeds,

to reduce standing dead vegetation or litter,

increase decomposition of organic matter,

and to stimulate vegetative regrowth

(applicable to all postmining land uses, at

any time during the liability period, no

reclaimed acreage limit applies);

(4) Pest control, including weeds,

vertebrate and invertebrate animals, fungi,

and diseases (applicable to all postmining

land uses and at any time during the liability

period, no reclaimed acreage limit applies);

(5) Grazing (applicable to the grazing land,

pasture land, fish and wildlife habitat,

cropland, and forestry postmining land uses.

Grazing may be conducted at any time during

the liability period after the revegetation has

become sufficiently established to withstand

grazing, as determined in consultation with

New Mexico, no reclaimed acreage limit

applies);

(6) Erosion and subsidence repair or hand

work with shovels and similar tools,

mechanical manipulation of small areas, the

installation of erosion-control matting, silt

fence, and hay or straw bales, and hand

seeding and raking (applicable to all

postmining land uses at any time during the

liability period, no more than 10 percent of

the reclaimed acreage may be repaired as a

normal husbandry practice, if erosion and

subsidence repairs are required on more than

10 percent of the reclaimed acreage, the

liability period will be reinitiated);

(7) Ancillary disturbance and reclamation

or installation, removal, and reclamation of

2-track access roads, firebreaks, fences,

pipelines, power lines, surface water and

groundwater monitoring sites, erosion and

subsidence monitoring sites, and small,

undesigned sediment control measures, such

as traps, riprap, rock or straw bale check

dams, and silt fences (applicable to all

postmining land uses at any time during the

liability period, ancillary disturbance and

reclamation of more than 10 percent of the

reclaimed acreage will reinitiate the liability

period);

(8) Developed water resources maintenance

or normal maintenance (cleaning, repair,

upgrading, stabilizing with rock, and

interseeding or replanting of vegetation) of

developed water resources and, if applicable,

their shorelines, and structures associated

with developed water sources (applicable

only to the developed water resources land

use; cleaning, repair, and upgrading may be

conducted at any time during the liability

period, with no reclaimed acreage limits;

stabilization, interseeding, and replanting

must be completed at least six years prior to

Phase III bond release, on no more than 10

percent of the reclaimed acreage); and

(9) Agricultural and landscaping activities

or annual or periodic seeding, fertilizing,

irrigating, or other normal agricultural or

landscaping activity (applicable to cropland

or in conjunction with special use pasture,

commercial forest land, residential,

industrial/commercial or recreation

postmining land uses at any time during the

liability period; not applicable to grazing

land or fish and wildlife habitat at any time

during the liability period; no reclaimed

acreage limits are applicable).

OSM considers, on a practice-bypractice basis, the administrative record

supporting each normal husbandry

practice proposed by a regulatory

authority (53 FR 34641, September 7,

1988). OSM also has provided specific

guidance concerning the repair of rills

and gullies by stating that a regulatory

authority could allow the repair of rills

and gullies as a husbandry practice that

would not restart the liability period if

the general standards of 30 CFR

816.116(c)(4) are met and after

consideration of the normal

conservation practices within the region

(48 FR 40157, September 2, 1983).

For each proposed normal husbandry

practice, New Mexico referenced in the

Coal Mine Reclamation Program

Vegetation Standards guidance

document the National Resources

Conservation Service’s (NRCS) Standard

Conservation Practices supplements

which support the use of these practices

as normal husbandry in the New Mexico

coal field regions. New Mexico thus has

demonstrated that the proposed normal

husbandry practices listed above are

normal husbandry practices within

there region for unmined lands having

land uses similar to the approved

65774 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

postmining land use of the disturbed

area. In addition, new Mexico set

appropriate limits on aerial extent and

time frames for implementation for each

proposed practice. If a permittee

exceeded these limits, the permittee

would have to extend the period of

liability for demonstrating success of

revegetation.

The Director finds that New Mexico’s

proposed normal husbandry practices

identified above, as discussed in the

Coal Mine Reclamation Program

Vegetation Standards guidance

document, are consistent with and no

less effective than the Federal

regulations at 30 CFR 816.116(c)(1) and

(4) in meeting the requirements of

SMCRA. The Director approves the

normal husbandry practices identified

above and removes the required

amendment at 30 CFR 931.16(z).

2. Revisions to New Mexico’s Rules That

Are Not the Same as the Corresponding

Provisions of the Federal Regulations

A. Definition of ‘‘Augmented Seeding

and ‘‘Interseeding’’ and Interseeding

and Transplanting of Trees and Shrubs

Allowed as a Normal Husbandry

Practice

New Mexico proposed to revise the

definition of ‘‘Augmented Seeding’’ at

19 NMAC 8.2 107.A(20) to mean

seeding in excess of the normal

husbandry practices approved in the

Coal Mine Reclamation Program

Vegetation Standards guidance

document, or reseeding with

fertilization or irrigation, or reseeding in

response to unsuccessful revegetation in

terms of adequate germination or

establishment or permanence.

New Mexico proposed a new

definition of ‘‘Interseeding’’ at 19

NMAC 8.2 107.I(8) to mean a secondary

seeding practice into established

vegetation cover in order to take

advantage of climatic conditions that

favor species requiring special

conditions for germination and

establishment, or to improve or alter the

composition between forage and shrubs,

or between warm and cool season

grasses.

New Mexico proposed in Section IV.B

of the Coal Mine Reclamation Program

Vegetation Standards guidance

document (1) interseeding and (2)

planting of tree and shrub seedlings as

normal husbandry practices applicable

to the postmining land uses of grazing

land, fish and wildlife habitat, forestry,

and recreation.

Specifically, New Mexico proposes to

allow as normal husbandry, practices:

(1) Interseeding of individual native

species and approved introduced species

contained in the original seed mix up to (that

is, before) the period six years prior to bond

release to be counted in determinations of

revegetation success and suitability for the

post-mining land use;

(2) Interseeding and planting of native

herbaceous, shrub, and tree species not

contained in the original seek mix to be

allowed any time prior to six (6) years before

bond release (Note: New Mexico will allow

all approved interseeding and planting to be

counted towards the revegetation success and

demonstration of suitability for the postmining land use; and New Mexico wll not

allow as a normal husbandry practice

interseeding of introduced and non-native

species other than those listed in a Appendix

B in the guidance document); and

(3) Transplanting of native tree and shrub

stock and the planting of containerized or

bare-root tree and shrub stock on reclamation

units (this will promote and enhance

establishment of wildlife habitats, increase

diversity, and improve age-class structure in

monotypic stands of trees or shrubs); if the

trees and shrubs are planted 6 years prior to

bond release they will be counted toward the

shrub density standard in accordance with 19

NMAC 8.2 2066.A (Note: New Mexico will

allow all transplants moved from pre-existing

native stands of trees and shrubs to be

applied at any time towards revegatation

success and demonstration of suitability for

the post-mining land use).

The Federal regulations at 30 CFR

816.116(c)(1) required that the period of

extended responsibility for successful

revegetation shall begin after the last

year of augmented seeding, fertilizing,

irrigation, or other work, excluding

husbandry practices that are approved

by the regulatory authority in

accordance with 30 CFR 816.116(c)(4).

The Federal regulations at 30 CFR

816.116(c)(4) require that a State may

approve selective husbandry practices,

excluding augmented seeding,

fertilization, or irrigation, provided it

obtains prior approval from OSM that

the practices are normal husbandry

practices without extending the period

of responsibility for revegetation success

and bond liability, if such practices can

be expected to continue as part of the

post-mining land use or if

discontinuance of the practices after the

liability period expires will not reduce

the probability of permanent vegetation

success. Approved practices shall be

normal husbandry practices with in the

region for unmined land having land

uses similar to the approved postmining

land use of the disturbed area, including

such practices as disease, pest, and

vermin control, and any pruning,

reseeding, and transplanting specifically

necessitated by such actions.

i. Definitions of ‘‘Augmented

Seeding’’ and ‘‘Interseeding’’ and use of

interseeding as a normal husbandry

practice. In 1983, OSM considered and

rejected the idea of allowning

interseeding and supplemental

fertilization during the first 5 years of

the 10 year responsibility period. While

allowing replanting of trees and shrubs

‘‘to utilize the best technology

available’’ without extending the

responsibility period, OSM determined

that augmented seeding, fertilizing or

irrigation is not allowed during the

responsibility period. (See 48 FR 40156,

September 2, 1983.)

However, in 1988, (53 FR 34641,

September 7, 1988) OSM stated, in the

context of the Federal regulation at 30

CFR 816.116(c)(4), that

seeding, fertilization, or irrigation performed

at levels that do not exceed those normally

applied in maintaining comparable unmined

land in the surrounding area would not be

considered prohibited augmentative

activities.

Further, in the response to comments

received concerning an Ohio program

amendment, OSM stated that

[t]he legislative history of the Act [SMCRA]

reveals no specific Congressional intent in

the use of the term augmented seeding.

Accordingly, OSM’s interpretation of

augmented seeding is given deference so long

as it has a rational basis (see 63 FR 51832,

September 29, 1998).

New Mexico’s proposed definitions

for ‘‘augmented seeding’’ and

‘‘interseeding’’ distinguish the

differences between them. Interseeding

is clearly aimed at establishing species

that require special conditions for

germination and the establishment or

altering of species composition. New

Mexico’s discussion of interseeding as a

normal husbandry practice in the Coal

Mine Reclamation Program Vegetation

Standards guidance document further

clarifies that interseeding is done to

enhance the revegetation, rather than to

augment the revegetation. New Mexico

reiterates that interseeding is defined as

a secondary seeding into established

revegetation in order to improve

composition, diversity or seasonality. In

contrast, augmented seeding is

reseeding with fertilization or irrigation,

or in response to unsuccessful

revegetation in terms of adequate

germination or establishment or

permanence. Thus, New Mexico’s goal

for interseeding is not to ensure that the

reclaimed area will meet the success

standards, but to go beyond the

minimum standards of the regulations

and improve the overall composition,

diversity or seasonality of the reclaimed

area.

New Mexico also proposes

appropriate time frames limiting the

application of interseeding as a normal

husbandry practice without restarting

the bond liability period and requires

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65775

the all interseeding consist of only

native species and approved introduced

species contained in the original seed

mix.

To support interseeding as a normal

husbandry practice, New Mexico

submitted New Mexico Rangeland

(Circular 525, Cooperative Extension

Service, New Mexico State University,

1988, as well as the NRCS’s Standard

Conservation Practices Code No. 550 for

New Mexico. The extension publication

indicates that the goals of rangeland

seeding, including interseeding, are

restoring production potential, changing

composition of the vegetation, achieving

a higher quality forage resource, getting

a better seasonal balance of forage

supply, and improving wildlife habitat.

Both referenced publications support

the use of interseeding as a normal

husbandry practice.

OSM previously approved Indiana’s

definition of ‘‘augmented seeding,

fertilization, or irrigation’’ as seeding,

fertilizing, or irrigation in excess of

normal agronomic practices within the

region. OSM’s approval was based on

the concept that the proposed definition

made a distinction between normal

conservation practices that were not

augmented seeding, fertilizing,

irrigation or other work, and augmented

husbandry practices (60 FR 53512,

October 16, 1995).

Based on New Mexico’s proposed

definitions of ‘‘augmented seeding’’ and

‘‘interseeding,’’ the guidance provided

for use of interseeding as a normal

husbandry practice in New Mexico’s

Coal Mine Reclamation Program

Vegetation Standards guidance

document, and documentation

supporting interseeding as a normal

husbandry practice in New Mexico, the

Director finds that New Mexico has

demonstrated that the proposed use of

interseeding is not an augmented

seeding. Because the use of interseeding

is not an augmented seeding. Because

the use of interseeding as proposed by

New Mexico clearly supports a key goal

of SMCRA, the establishment of a

permanent, a key goal of SMCRA, the

establishment of a permanent, diverse,

and effective vegetative cover without

compromising compliance of the State

program with the Act, the Director also

finds that New Mexico’s proposed

definitions of ‘‘augmented seeding’’ and

‘‘interseeding,’’ as proposed at 19

NMAC 8.2 107.A(20) and 107.I(8), and

use of interseeding, as described in the

Coal Mine Reclamation Program

Vegetation Standards guidance

document, are consistent with and no

less effective than the Federal

regulations at 30 CFR 816.116(c)(1) and

(4) in meeting the requirements of

SMCRA. The Director approves New

Mexico’s proposed definitions of

‘‘augmented seeding’’ and

‘‘interseeding,’’ proposed at 19 NMAC

8.2 107.A(20) and 107.I(8), and the use

of interseeding as a normal husbandry

practice, proposed in New Mexico’s

Coal Mine Reclamation Program

Vegetation Standards guidance

document.

ii. Transplanting of trees and shrubs

as a normal husbandry practice. The

Federal regulations at 30 CFR

816.116(b)(3)(ii) require that trees and

shrubs that will be used in determining

the success of stocking and the

adequacy of the plant arrangement shall

have utility for the approved postmining

land use. Trees and shrubs counted in

determining such success shall be

healthy and have been in place for not

less than two growing seasons. At the

time of bond release, at least 80 percent

of the trees and shrubs used to

determine such success shall have been

in place for 60 percent of the applicable

minimum period of responsibility. In

the preamble to this regulation, OSM

indicates that the rule represents a

reasonable compromise that allows

some replanting if approved as normal

husbandry practice (53 FR 34638,

September 7, 1988).

In support of its proposal to allow the

transplanting of trees and shrubs as a

normal husbandry practice, New

Mexico provided a copy of the NRCS’s

Standard Conservation Practice Code

No. 612, which discusses tree and shrub

establishment.

The NRCS publication clearly

specifies the need for replanting when

survival is inadequate. New Mexico

further restricts the transplanting of

trees and shrubs to six years prior to

bond release. This is equivalent to 60

percent of the applicable minimum

period of responsibility, which is 10

years in New Mexico. New Mexico has

demonstrated that the transplanting of

trees and shrubs is a normal husbandry

practice in New Mexico.

The Director finds that the proposed

transplanting of trees and shrubs as a

normal husbandry practice is consistent

with and no less effective than the

Federal regulations at 30 CFR

816.116(b)(3)(ii) and (c)(4) and approves

it.

B. Time-frames To Demonstrate Success

of Revegetation for Bond Release

New Mexico proposed to revise:

(1) 19 NMAC 8.2 2064, concerning

grazing, to require that when the

approved postmining land use is range

or pasture land, the operator shall

demonstrate to the Director, that the

reclaimed land has the capability of

supporting livestock grazing at rates

approximately equal to that for similar

non-mined lands for at least two of the

last four full years of liability required

under paragraph 2065.B of these

regulations;

(2) 19 NMAC 8.2 2065.B(2) to require

that in areas of more than 26.0 inches

average annual precipitation, the period

of liability under the performance bond

requirements of Subpart 14 shall

continue for not less than five full years.

Ground cover and productivity shall

equal or exceed the approved standard

for two of the last four years of the

responsibility period;

(3) 19 NMAC 8.2 2065.B(3) to require

that in areas of less than or equal to 26.0

inches average annual precipitation, the

period of liability under the

performance bond requirements of

Subpart 14 shall continue for not less

than 10 full years. Ground cover and

productivity shall equal the approved

standard for at least two of the last four

years, starting no sooner than year eight

of the responsibility period; and

(4) 19 NMAC 8.2 2065.B(5)(iii) to

require, ‘‘[f]or areas to be used for

cropland, success in revegetation of

cropland shall be determined on the

basis of crop production from the mined

area as compared to approved reference

areas or other technical guidance

procedures. Crop production from the

mined area shall be equal to or greater

than that of the approved standard for

two of the last four growing seasons of

the 5 or 10 year liability period

established in paragraph 2065.B(1), (2)

and (3), starting no sooner than year

eight of the 10 year period. The

applicable 5 or 10 year period of

responsibility for revegetation shall

commence at the date of initial planting

of the crop being grown.’’

The Federal regulations at 30 CFR

815.116(c)(2)(i) and (ii) require

in areas of more than 26.0 inches of annual

average precipitation, that the period of

responsibility shall continue for a period of

not less than: (i) Five full years, except as

provided in paragraph (c)(2)(ii). The

vegetation parameters identified in paragraph

(b) for grazing land, pasture land, or cropland

shall equal or exceed the approved success

standard during the growing season of any 2

years of the responsibility period, except the

first year. Areas approved for the other uses

identified in paragraph (b) shall equal or

exceed the applicable success standard

during the growing season of the last year of

the responsibility period. (ii) Two full years

for lands eligible for remining included in

permits issued before September 30, 2004, or

any renewals thereof. To the extent that the

success standards are established by

paragraph (b)(5), the lands shall equal or

exceed the standards during the growing

season of the last year of the responsibility

period.

65776 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

The Federal regulations at 30 CFR

816.116(c)(3) require

in areas of 26.0 inches or less average annual

precipitation, the period of responsibility

shall continue for a period of not less than:

(i) Ten full years, except as provided in

paragraph (c)(3)(ii). Vegetation parameters

identified in paragraph (b) shall equal or

exceed the approved success standard for at

least the last two consecutive years of the

responsibility period. (ii) Five full years for

lands eligible for remining included in

permits issued before September 30, 2004, or

any renewals thereof. To the extent that the

success standards are established by

paragraph (b)(5), the lands shall equal or

exceed the standards during the growing

seasons of the last two consecutive years of

the responsibility period.

In support of the time frames

proposed in 19 NMAC 8.2 2064,

2065.B(2) and (3), and 2065.B(5)(iii),

New Mexico stated in the April 26,

2000, cover letter submitting the

proposed rules:

Revegetation comparisons conducted

during two of the last four years of liability,

starting no sooner than year eight, would be

no less effective than the federal rules.

Revegetation success demonstrations during

any two of the last four years of the liability

period is currently the [F]ederal requirement

in areas averaging more than 26 inches of

annual precipitation. Thus, a precedent has

been set in areas that are less subject to

climatic variation than New Mexico.

Revegetation that is capable of meeting the

performance standards both before and after

a period of drought or pestilence would

provide a better demonstration of resilience,

effectiveness, and permanence than

revegetation that could meet the standards

during two consecutive (and fortuitous) years

of more or less normal precipitation and

damage. The likelihood of drought in New

Mexico needs to be recognized. The proposed

rule changes ensure that performance

standards will be met without undue costs or

extensions of the ten-year liability period.

New Mexico also provided an

analysis which compares the inherent

variability of precipitation in

Henderson, KY (an area with more than

26 inches of precipitation) to several

locations in the mining regions of New

Mexico (administrative record No. NM–

837). The analysis clearly shows that

precipitation is far more variable in New

Mexico (note: the coefficient of variation

represents a relative measure of the

variability of the data and is useful for

comparisons between locations):

Typical Midwest Station—Henderson,

KY Precipitation Record, 1978–

1998

Annual Precipitation Range: 30.94 to

63.27 inches

Mean: 45.64

Standard Deviation: 8.89

Coefficient of Variation: 0.19

(CV=standard deviation/mean)

New Mexico Stations, Proceeding from

Wettest to Driest Coal Mine Sites

Vermejo Park, NM Precipitation

Record, 1914–1981 (York Canyon

Complex)

Annual Precipitation Range: 10.40 to

23.16 inches

Means: 16.45

Standard Deviation: 3.53

Coefficient of Variation: 0.21

Fence Lake 1N, NM Precipitation

Record, 1961–1990 (Fence Lake

Mine)

Annual Precipitation Range: 7.75 to

19.99 inches

Mean: 14.41

Standard Deviation: 3.34

Coefficient of Variation: 0.23

Gallup 5E, NM Precipitation Record,

1918–1979 (McKinley and Carbon

Coal Mines)

Annual Precipitation Range: 4.94 to

14.29 inches

Mean: 9.47

Standard Deviation: 2.58

Coefficient of Variation: 0.27

San Mateo, NM Precipitation Record,

1918–1988 (Lee Ranch)

Annual Precipitation Range: 5.07 to

16.06 inches

Mean: 9.19

Standard Deviation: 2.89

Coefficient of Variation: 0.31

Fruitland 2E, NM Precipitation Record,

1914–1999 (San Juan and Yampa

Mines)

Annual Precipitation Range: 3.05 to

15.43 inches

Mean: 7.95

Standard Deviation: 2.52

Coefficient of Variation: 0.32

New Mexico also stated that if a twoyear demonstration of revegetation

success had been approved and there

appeared to be a problem with the

revegetation in the final year of liability,

New Mexico would require additional

information via a Director’s order. New

Mexico pointed out that because the

proposed rules clearly state that the

demonstration of success must be done

for at least two of the last four years, the

proposed rules provide for requiring

additional demonstrations as needed

(administrative record No. NM–837).

The Federal regulations at 30 CFR

816.116(c)(3) require that revegetation

success standards be met during the last

two consecutive years of the 10-year

revegetation responsibility period in

areas in which the average annual

precipitation is equal to or less than 26

inches. OSM revised the Federal

regulations at 30 CFR 816.116(c)(2) to

provide that in areas with more than 26

inches of average annual precipitation

the vegetation parameters identified in

30 CFR 816.116(b) for grazing land,

pasture land, or cropland must equal or

exceed the approved success standards

during the growing seasons of any two

years of the 5-year responsibility period,

excluding the first year (53 FR 34636,

September 7, 1988). This change

eliminated the requirement to measure

revegetation success during the last two

years of the responsibility period in

areas with more than 26 inches of

average annual precipitation.

The data provided by New Mexico

clearly demonstrates that the climatic

variability within New Mexico is at least

as great as that of the areas receiving

more than 26 inches of precipitation.

New Mexico’s proposal, which provides

that revegetation comparisons be

conducted during two of the last four

years of liability, starting no sooner than

year eight offers the same flexibility as

the Federal regulation at 30 CFR

816.116(c)(2) for areas that receive more

than 26 inches of precipitation. New

Mexico’s proposed rules prohibit the

inclusion of measurements taken during

the first seven years of the responsibility

period. This ensures that the plants will

have the opportunity to become well

established prior to any evaluation of

the vegetation. This also provides the

same level of flexibility in evaluating

revegetation success provided by the

Federal regulations for States receiving

more than 26 inches of precipitation.

Further, New Mexico has asserted that

they have the authority to require

additional data if problems are observed

following the evaluation of revegetation

success. The proposed rules do not

affect the length of the extended period

of responsibility, which is 10 years in

New Mexico.

Based on the above discussion, the

Director finds that New Mexico’s

proposed rules at 19 NMAC 8.2 2064,

2065.B(2) and (3), and 2065.B(5)(iii) are

as effective as the corresponding Federal

regulations at 30 CFR 816.116(c)(3) in

achieving the revegetation requirements

of sections 515(b)(19) and (b)(20) of

SMCRA. Therefore, the Director

approves New Mexico’s proposed rules

at 19 NMAC 8.2 2064, 2065.B(2) and (3),

and 2065.B(5)(iii).

3. Revisions to New Mexico’s Rules

With No Corresponding Federal

Regulations

New Mexico proposed to revise 19

NMAC 8.2 507.A(1), concerning annual

reports, to require ‘‘a map on a high

quality aerial photo base, although a

topographic base will be acceptable if it

is current and complete. The map shall

be the same scale as the mining and

reclamation sequence maps found in the

approved permit with 5′ contour

intervals. The map must be made on a

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65777

single sheet, or series of sheets, each

sheet of the map being no larger than 4′

× 4′. The scale and all lines and symbols

must be clearly described in the

legend.’’

The proposed revision requires, in the

annual reports that must be submitted to

New Mexico, maps to a scale that will

match information included in the

permits. New Mexico stated that it was

its intention to use the annual reporting

requirements as a way to initiate bond

release applications.

There are no counterpart Federal

regulations requiring an annual report.

New Mexico’s requirement for an

annual report and proposed revision of

19 NMAC 8.2 507.A(1) does not

adversely affect the implementation of

the New Mexico program. The Director

finds that the proposed revision of 19

NMAC 8.2 507.A(1) is not inconsistent

with the Federal regulations; therefore,

the Director approves proposed 19

NMAC 8.2 507.A(1).

IV. Summary and Disposition of

Comments

Public Comments

We asked for public comments on the

amendment (administrative record Nos.

NM–817 and NM–832).

The Navajo Nation commented, by

letter dated January 21, 2000

(administrative record No. 821), the

New Mexico’s proposed rule at 19

NMAC 8.2 2065.A would require OSM

to consult with appropriate State and

Federal agencies prior to approving New

Mexico’s proposed amendment which

also included the Coal Mine

Reclamation Program Vegetation

Standards guidance document. The

Navajo Nation said that it was unclear

what form this consultation would take,

i.e., whether there would be a public

notice and comment period.

OSM explained to the Navajo Nation,

in a letter dated February 7, 2000

(administrative record No. NM–823),

that OSM’s published Federal Register

notices, as well as OSM’s distribution of

the proposed amendment to interested

parties (which included the Navajo

Nation) were the vehicles by which

OSM provided for a public comment

period and solicited public comments.

We also (1) sent to the Navajo Nation,

by letter dated February 17, 2000

(administrative record No. NM–826), a

copy of the February 14, 2000, letter to

New Mexico identifying concerns that

New Mexico had to resolve prior to our

approval of the amendment and (2)

extended, until March 6, 2000, the

opportunity to comment and meet with

us. The Navajo Nation did not respond

to our letter.

As discussed in finding No. 1.A, the

Director is approving New Mexico’s

proposed 19 NMAC 8.2 2065.A which

requires consultation with appropriate

agencies prior to approval of measuring

techniques with the interpretation that

the consultation requirement applies

only to New Mexico and not to OSM.

The Director is taking no further

action in responses to the Navajo

Nation’s January 21, 2000, letter.

Federal Agency Comments

Under 30 CFR 732.17(h)(11)(i), we

requested comments on the amendment

from various Federal agencies with an

actual or potential interest in the New

Mexico program (administrative record

Nos. NM–817 and NM–832).

The U.S. Department of Army, Corps

of Engineers, commented, by letter

dated December 28, 1999

(administrative record No. NM–820),

that it found the proposed changes to be

satisfactory.

The Bureau of Land Management

responded, by letter dated January 26,

2000 (administrative record No. NM–

822), that it had no comments.

Environmantal Protection Agency (EPA)

Concurrence and Comments

Under 30 CFR 732.17(h)(11)(ii), we

are required to get a written agreement

from EPA for those provisions of the

program amendment that related to air

or water quality standards issued under

the authority of the Clean Water Act (33

U.S.C. 1251 et seq.) or the Clean Air Act

(42 U.S.C. 7401 et seq.).

None of the revisions that New

Mexico proposed to make in this

amendment pertain to air or water

quality standards. Under 30 CFR

732.17(h)(11)(i), OSM requested

comments on the amendment from EPA

(administrative record Nos. NM–817

and NM–832). EPA did not respond to

our request.

State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Under 30 CFR 732.17(h)(4), we are

required to request comments from the

SHPO and ACHP on amendments that

may have an effect on historic

properties. We requested comments on

New Mexico’s amendment

(administrative record Nos. NM–817

and 832), but neither responded to our

request.

V. Director’s Decision

Based on the above findings, we

approve the amendment sent to us by

New Mexico on December 1, 1999, as

revised on April 26, 2000.

We approve, as discussed in:

Finding No. 1.A., 19 NMAC 8.2

2065.A and the Coal Mine Reclamation

Program Vegetation Standards guidance

document, concerning the requirement

that revegetation success be based on

general revegetation requirements;

Finding No. 1.B., 19 NMAC 8.2

2065.A, concerning the deletion of the

allowance to use unspecified technical

guidance procedures published by

USDA as the basis for technical success

standards demonstrating revegetation

success;

Finding No. 1.C., 19 NMAC 8.2

2065.A and 2065.B(1) and the Coal Mine

reclamation Program Vegetation

Standards, concerning approval by the

Directors of both MMD and OSM of the

standards, measuring techniques, and

statistical analyses used to demonstrate

revegetation success;

Finding No. 1.D., 19 NMAC 8.2

2065.B(1) and the Coal Mine

Reclamation Program Vegetation

Standards guidance document,

concerning normal husbandry practices;

Finding No. 2.A., 19 NMAC 8.2

107.A(20), definition of ‘‘Augmented

Seeding,’’ 19 NMAC 8.2 107.I(8),

definition of ‘‘Interseeding,’’ and the use

of (1) interseeding and (2) planting of

tree and shrub seedlings as normal

husbandry practices applicable to the

postmining land uses of grazing land,

fish and wildlife habitat, forestry ,and

recreation, described in the Coal Mine

Reclamation Program Vegetation

Standards guidance document;

Finding No. 2.B., 19 NMAC 8.2 2064

and 2065.B(2), (3), and (5)(iii),

concerning the time-frames used to

demonstrate success of revegegation for

bond releases; and

Finding No. 3., 19 NMAC 8.2

507.A(1), concerning maps in the

annual report.

We approve the rules as proposed by

New Mexico with the provision that

they be fully promulgated in identical

form to the rules submitted to and

reviewed by OSM and the public.

To implement this decision, we are

amending the Federal regulations at 30

CFR Part 931, which codify decisions

concerning the New Mexico program.

We are making this final rule effective

immediately to expedite the State

program amendment process and to

encourage States to make their programs

conform with the Federal standards.

SMCRA requires consistency of State

and Federal standards.

VI. Procedural Determinations

Executive Order 12866—Regulatory

Planning and Review

This rule is exempted from review by

the Office of Management and Budget

65778 Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

Executive Order 12630—Takings

This rule does not have takings

implications. This determination is

based on the analysis performed for the

counterpart federal regulation.

Executive Order 13132—Federalism

This rule does not have federalism

implications. SMCRA delineates the

roles of the federal and state

governments with regard to the

regulation of surface coal mining and

reclamation operations. One of the

purposes of SMCRA is to ‘‘establish a

nationwide program to protect society

and the environment from the adverse

effects of surface coal mining

operations.’’ Section 503(a)(1) of

SMCRA requires that state laws

regulating surface coal mining and

reclamation operations be ‘‘in

accordance with’’ the requirements of

SMCRA, and section 503(a)(7) requires

that state programs contain rules and

regulations ‘‘consistent with’’

regulations issued by the Secretary

pursuant to SMCRA.

Executive Order 12988—Civil Justice

Reform

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of State regulatory

programs and program amendments

since each such program is drafted and

promulgated by a specific State, not by

OSM. Under sections 503 and 505 of

SMCRA (30 U.S.C. 1253 and 1255) and

the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10),

decisions on proposed State regulatory

programs and program amendments

submitted by the State must be based

solely on a determination of whether the

submittal is consistent with SMCRA and

its implementing Federal regulations

and whether the other requirements of

30 CFR Parts 730, 731, and 732 have

been met.

National Environmental Policy Act

This rule does not require an

environmental impact statement

because section 702(d) of SMCRA (30

U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory

program provisions do not constitute

major Federal actions within the

meaning of section 102(c)(C) of the

National Environmental Policy Act (42

U.S.C. 4332(2)(C)).

Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The State submittal

that is the subject of this rule is based

upon counterpart Federal regulations for

which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements previously

promulgated by OSM will be

implemented by the State. In making the

determination as to whether this rule

would have a significant economic

impact, the Department relied upon the

data and assumptions for the

counterpart Federal regulations.

Small Business Regulatory Enforcement

Fairness Act

This rule is not a major rule under 5

U.S.C. 804(2), the Small Business

Regulatory Enforcement Fairness Act.

This rule: a. does not have an annual

effect on the economy of $100 million;

b. will not cause a major increase in

costs or prices for consumers,

individual industries, federal, state, or

local government agencies, or

geographic regions; and c. does not have

significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S. based enterprises to compete

with foreign-based enterprises.

This determination is based upon the

fact that the state submittal which is the

subject of this rule is based upon

counterpart Federal regulations for

which an analysis was prepared and a

determination made that the Federal

regulation was not considered a major

rule.

Unfunded Mandates

OSM has determined and certifies

under the Unfunded Mandates Reform

act (2 U.S.C. 1502 et seq.) that this rule

will not impose a cost of $100 million

or more in any given year on any local,

State, or Tribal governments or private

entities.

List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface

mining, Underground mining.

Dated: October 13, 2000.

Brent T. Wahlquist,

Regional Director, Western Regional

Coordinating Center.

For the reasons set out in the

preamble, 30 CFR 931 is amended as set

forth below:

PART 931—NEW MEXICO

1. The authority citation for part 931

continues to read as follows:

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

2. Section 931.15 is amended in the

table by adding a new entry in

chronological order by ‘‘Date of Final

Publication’’ to read as follows:

§ 931.15 Approval of New Mexico

regulatory program amendments.

* * * * *

Original amendment submission

date Date of final publication Citation/description

*******

December 1, 1999 ......................... November 2, 2000 ......................... 19 NMAC 8.2 107.I(8); 107.A(20); 507.A(1); 2064; 2065.A; 2065.B(1),

(2), (3), and (5)(iii); and the Coal Mine Reclamation Program Vegetation Standards guidance document.

Federal Register / Vol. 65, No. 213 / Thursday, November 2, 2000 / Rules and Regulations 65779

§ 931.16 [Amended]

3. Section 931.16 is amended by

removing and reserving paragraphs m,

n, and z.

[FR Doc. 00–28195 Filed 11–1–00; 8:45 am]

BILLING CODE 4310–05–M

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation

and Enforcement

30 CFR Part 946

[VA–118–FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving an

amendment to the Virginia permanent

regulatory program (hereinafter referred

to as the Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of changes to the

Virginia Surface Mining Reclamation

Regulations concerning subsidence

control. The amendment is intended to

revise the Virginia program to be

consistent with the corresponding

Federal regulations.

EFFECTIVE DATE: November 2, 2000.

FOR FURTHER INFORMATION CONTACT: Mr.

Robert A. Penn, Director, Big Stone Gap

Field Office, Office of Surface Mining

Reclamation and Enforcement, 1941

Neeley Road, Suite 201, Compartment

116, Big Stone Gap, Virginia 24219,

Telephone: (540) 523–4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.

II. Submission of the Amendment.

III. Director’s Findings.

IV. Summary and Disposition of

Comments.

V. Director’s Decision.

VI. Procedural Determinations.

I. Background on the Virginia Program

On December 15, 1981, the Secretary

of the Interior conditionally approved

the Virginia program. You can find

background information on the Virginia

program, including the Secretary’s

findings, the disposition of comments,

and the conditions of approval in the

December 15, 1981, Federal Register (46

FR 61085–61115). You can find later

actions on conditions of approval and

program amendments at 30 CFR 946.11,

946.12, 946.13, 946.15, and 946.16.

II. Submission of the Amendment

By letter dated June 27, 2000

(Administrative Record Number VA–

999) the Virginia Department of Mines,

Minerals and Energy (DMME) submitted

an amendment to the Virginia program.

In its letter, the DMME stated that on

December 22, 1999, OSM suspended

and modified portions of 30 CFR 784.20

and 30 CFR 817.121 pursuant to an

order of the United States Appeals Court

for the District of Columbia. The DMME

further stated that the corresponding

sections of the Virginia Surface Mining

Reclamation Regulations also contain

the same language the court found

inappropriate and which OSM

consequently removed from the Federal

rules. The DMME stated that it proposes

to amend its rules to be consistent with

and in the same manner that OSM

modified the Federal regulations. We

announced receipt of the proposed

amendment in the July 14, 2000,

Federal Register (65 FR 43723), invited

public comment, and provided an

opportunity for a public hearing on the

adequacy of the proposed amendment.

The comment period closed on August

14, 2000. No one requested to speak at

a public hearing, so no hearing was

held.

Procedural History of Suspended

Federal Rules

The Energy Policy Act was enacted

October 24, 1992, Pub. L. 102–486, 106

Stat. 2776 (1992) (hereinafter, The

Energy Policy Act or EPAct). Section

2504 of that Act, 106 Stat. 2776, 3104,

amends SMCRA, 30 U.S.C. 1201 et seq.

Section 2504 of EPAct added a new

section 720 to SMCRA. Section 720(a)(1)

requires that all underground coal

mining operations conducted after

October 24, 1992, promptly repair or

compensate for material damage to noncommercial buildings and occupied

residential dwellings and related

structures as a result of subsidence due

to underground coal mining operations.

Repair of damage includes

rehabilitation, restoration, or

replacement of the structures identified

by section 720(a)(1), and compensation

must be provided to the owners in the

full amount of the diminution in value

resulting from the subsidence. Section

720(a)(2) requires prompt replacement

of certain identified water supplies

which have been adversely affected by

underground coal mining operations.

Under section 720(b), the Secretary of

the Interior was required to promulgate

final regulations to implement the

provisions of section 720(a).

On September 24, 1993 (58 FR 50174),

OSM published a proposed rule to

amend the regulations applicable to

underground coal mining and control of

subsidence-caused damage to lands and

structures through the adoption of a

number of permitting requirements and

performance standards. We adopted

final regulations on March 31, 1995 (60

FR 16722).

The rules were challenged by the

National Mining Association in the

District Court for the District of

Columbia and in the U.S. Court of

Appeals for the District of Columbia

Circuit. On April 27, 1999, the U.S.

Court of Appeals issued a decision

vacating certain portions of the

regulatory provisions of the subsidence

regulations. See National Mining

Association v. Babbitt, 173 F.3d 906

(1999). We suspended those regulatory

provisions that are inconsistent with the

rationale provided in the U.S. Court of

Appeals’ decision. The following

Federal provisions were suspended.

1. 30 CFR 817.121(c)(4)(i)–(iv)

This regulation provided that if

damage to any non-commercial building

or occupied residential dwelling or

structures related thereto occurred as a

result of earth movement within an area

determined by projecting a specific

angle of draw from the outer-most

boundary of any underground mine

workings to the surface of the land, a

rebuttable presumption would exist that

the permittee caused the damage. The

presumption typically would have

applied to a 30-degree angle of draw.

Once the presumption was triggered, the

burden of going forward shifted to the

mine operator to offer evidence that the

damage was attributable to another

cause. The purpose of this regulatory

provision was to set out a procedure

under which damage occurring within a

specific area would be subject to a

rebuttable presumption that subsidence

from underground mining was the cause

of any surface damage to noncommercial buildings or occupied

residential dwellings and related

structures.

The Court of Appeals vacated, in its

entirety, this rule that established an

angle of draw and that created a

rebuttable presumption that damage to

EPAct protected structures within an

area defined by an ‘‘angle of draw’’ was

in fact caused by the underground

mining operation. 173 F.3d at 913.

In reviewing the regulation, the Court

rejected the Secretary’s contention that

the angle of draw concept was

reasonably based on technical and

scientific assessments and that it

logically connected the surface area that

could be damaged from earth movement

to the underground mining operation.