[Federal Register Volume 65, Number 213 (Thursday, November 2, 2000)]
[Rules and Regulations]
[Pages 65770-65779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-28195]


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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.

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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: <a href="/cdn-cgi/l/email-protection#7f28383e36313a2d3f302c322d3a51383029"><span class="__cf_email__" data-cfemail="f3a4b4b2babdb6a1b3bca0bea1b6ddb4bca5">[email protected]</span></a>.

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

[[Page 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

[[Page 65772]]

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:
    <bullet> Frames should be painted to indicate various areal 
percentages or marked with grids that delineate known percentages.
    <bullet> 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).
    <bullet> 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.
    <bullet> 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 one-sided 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

[[Page 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-by-practice 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

[[Page 65774]]

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 post-mining 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

[[Page 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.


[[Page 65776]]


    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 two-year 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

[[Page 65777]]

single sheet, or series of sheets, each sheet of the map being no 
larger than 4'  x  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

[[Page 65778]]

(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:


Sec. 931.15  Approval of New Mexico regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  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.
------------------------------------------------------------------------


[[Page 65779]]

Sec. 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


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