[Federal Register Volume 65, Number 110 (Wednesday, June 7, 2000)]
[Proposed Rules]
[Pages 36104-36106]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14358]



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DEPARTMENT OF INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS NO NM-040-FOR]


New Mexico Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:  Proposed rule; reopening and extension of public comment 
period and opportunity for public hearing on proposed amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
announcing receipt of revisions pertaining to a previously proposed 
amendment to the New Mexico regulatory program (hereinafter, the ``New 
Mexico program'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The revisions to New Mexico's proposed rules pertain 
to the Coal Mine Reclamation Program Vegetation Standards (including 
success standards, sampling techniques, and normal husbandry 
practices), time frames within the liability period for demonstrating 
success of revegetation, and annual report requirements. The amendment 
is intended to revise the New Mexico program to be consistent with the 
corresponding Federal regulations.

DATE: Written comments must be received by 4:00 p.m., m.d.t., July 7, 
2000. If requested, we will hold a public hearing on the amendment on 
July 3, 2000. We will accept requests to speak until 4:00 p.m., m.d.t., 
on June 22, 2000.

ADDRESSES: You should mail or hand deliver written comments to Willis 
L. Gainer at the address listed below.
    You may review copies of the New Mexico program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Albuquerque Field Office.
    Willis L. Gainer, Director, Albuquerque Field Office, Office of 
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., 
Suite 1200, Albuquerque, New Mexico 87102.
    Mining and Minerals Division, New Mexico Energy & Minerals 
Department, 2040 South Pacheco Street, Santa Fe, New Mexico 87505, 
Telephone: (505) 827-5970.

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505) 
248-5096, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

    On December 31, 1980, the Secretary of the Interior conditionally 
approved the New Mexico program. General background information on the 
New Mexico program, including the Secretary's findings, the disposition 
of comments, and the conditions of approval of the New Mexico program 
can be found in the December 31, 1980, Federal Register (45 FR 86459). 
Subsequent actions concerning New Mexico's program and program 
amendments can be found at 30 CFR 931.11, 931.15, 931.16, and 931.30.

II. Proposed Amendment

    By letter dated December 1, 1999 (administrative record No. NM-
816), New Mexico submitted a proposed amendment to its program pursuant 
to SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed 
amendment in response to the required program amendments at 30 CFR 
931.16(o), (w), (x), (y) and (aa), and at its own initiative.
    OSM announced receipt of the proposed amendment in the December 22, 
1999 Federal Register (64 FR 71700), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. NM-819). 
Because no one requested a public hearing or meeting, none were held. 
The public comment periods ended on January 21, 2000.
    During our review of the December 1, 1999, amendment, OSM 
identified concerns and notified New Mexico of the concerns by letter 
dated February 17, 2000 (administration record no. NM-825). New Mexico 
responded in two letters dated April 26, 2000, by submitting (1) 
revisions to the December 1, 1999, amendment (administrative record No. 
NM-830) and (2) additional rule revisions never before submitted 
(administrative record No. NM-828).
    New Mexico proposes further revisions to (1) sections I.D., II.B.1, 
and IV of New Mexico's proposed Coal Mine Reclamation Program 
Vegetation Standards; (2) requirements for demonstrating success of 
ground cover and productivity of revegetation at 19 NMAC 8.2 2065.B(1); 
and (3) the definitions of ``augmented seeding'' and ``interseeding'' 
at 19 NMAC 8.2 107.A(20) and 107.I(8).
    New Mexico proposes new revisions to (1) the requirements for 
annual reports at 19 NMAC 8.2 507.A(1); and (2) the requirements for 
demonstrating (a) that the land has the capability of supporting 
livestock grazing at 19 NMAC 8.2 2064; (b) the success of ground cover 
and productivity at 19 NMAC 8.2 1065.B(2) and (3); and (c) the success 
of crop production at 19 NMAC 2065.B(5)(iii).
    Specifically, New Mexico proposes to revise:
    (1) Section I.D, Establishment and Monitoring of Revegetation 
Success Standards, of New Mexico's proposed Coal Mine Reclamation 
Program Vegetation Standards to clarify that the success of 
revegetation on reclaimed lands will be measured against the general 
revegetation requirements at 19 NMAC 8.2 2060 in addition to standards 
derived from an unmined reference area or technical standards;
    (2) Section II.B.1, Sampling Techniques, of New Mexico's proposed 
Coal Mine Reclamation Program Vegetation Standards to require an 
operator to implement techniques to improve the reliability of the 
ocular estimation method;
    (3) Section IV, Normal Husbandry Practices, of New Mexico's 
proposed Coal Mine Reclamation Program Vegetation Standards to (a) 
specify the land uses, time frames, and size limitations, if any, 
applicable to each approved normal husbandry practice, and (b) to 
clarify that in order for repair of erosional features to be considered 
a normal husbandry practice, the erosional features must be 
characteristic of unmined lands in the regions and the damage must not 
be caused by a lack of planning, design, or implementation of the 
mining and reclamation plan.
    (4) 19 NMAC 8.2 2065.B(1) to provide that ground cover and 
productivity may be equal to the technical standards developed in 
accordance with New Mexico's proposed Coal Mine Reclamation Program 
Vegetation Standards, as an alternative to an approved reference area;
    (5)(a) 19 NMAC 8.2 107.A(20), the definition of ``augmented 
seeding'' to mean ``seeding in excess of the normal husbandry practices 
approved in the Director's Coal Mine Reclamation Program Vegetation 
Standards, or reseeding with fertilization or irrigation, or reseeding 
in response to unsuccessful revegetation in terms of adequate 
germination or establishment or permanence,'' and (b) 107.I(8), by 
adding the definition ``interseeding'' to

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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 species and shrubs, or 
between warm and cool season grasses;''
    (6) 19 NMAC 8.2 507.A(1), to require in an annual report, a current 
topographic or orthophotographic map with five foot contour intervals 
of the same scale as the mining and reclamation sequence maps found in 
the approved permit with five foot contour intervals, on a single 
sheet, or series of sheets, each sheet of the map being no larger than 
four feet by four feet, with the scale and all lines and symbols 
clearly described in the legend;
    (7) 19 NMAC 8.2 2064 to require that an operator demonstrate, for 
at least two of the last four years rather than the last two years, 
that the reclaimed land has the capability of supporting livestock 
grazing at rates approximately equal to that for similar non-mined 
lands when the approved postmining land use is range or pasture land;
    (8) 19 NMAC 8.2 2065.B(2), concerning the liability period in areas 
of more than 26.0 inches average annual precipitation, to require that 
ground cover and productivity shall equal or exceed the approved 
standard for two of the last four years, rather than the last two 
years, of the responsibility period;
    (9) 19 NMAC 8.2 2065.B(3), concerning the liability periods in 
areas of less than or equal to 26.0 inches average annual 
precipitation, to require that ground cover and productivity shall 
equal the approved standard for at least two of the last four years, 
starting no sooner than year eight, rather than the last two years, of 
the responsibility period; and
    (10) 19 NMAC 8.2 2065.B(5)(iii), concerning the demonstration of 
success of areas to be used for cropland, to require that 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, 
rather than the last two consecutive growing seasons, of the five or 
ten year liability period, starting no sooner than year eight of the 
ten year liability period.

III. Public Comment Procedures

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. In the final rulemaking, we will not necessarily 
consider or include in the administrative record any comments received 
after the time indicated under DATES or at locations other than the 
Albuquerque Field Office.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. NM-040-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Albuquerque Field Office at 
(505) 248-5096.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law.
    Individual respondents who wish to withhold their name or address 
from public review, except for the city or town, must state this 
prominently at the beginning of their comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., m.d.t. on 
June 22, 2000. If you are disabled and need special accommodations to 
attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after 
everyone scheduled to speak and others present in the audience who wish 
to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, 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 States 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implication. 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

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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. Section 
503(a)(7) requires that State programs contain rules and regulations 
``consistent with'' regulations issued by the Secretary pursuant to 
SMCRA.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

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, geographic regions, or Federal, State or local governmental 
agencies; 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

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 24, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 00-14358 Filed 6-6-00; 8:45 am]
BILLING CODE 4310-05-M