[Federal Register Volume 65, Number 69 (Monday, April 10, 2000)]
[Rules and Regulations]
[Pages 18889-18894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8666]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[SPATS No. NM-037-FOR]
New Mexico Regulatory Program
AGENCY: Office of 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
revisions about cross sections, maps, and plans required in a permit
application; criteria for permit approval or denial; requirement to
release performance bonds; timing of backfilling and grading;
backfilling and grading requirements for the construction of small
depressions; and design requirements for road embankments. New Mexico
revised its program to be consistent with the corresponding Federal
regulations.
EFFECTIVE DATE: April 10, 2000.
FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505)
248-5096, Internet address: [email protected].
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 March 11, 1996, New Mexico sent to us an amendment
(SPATS No. NM-037-FOR, administrative record No. NM-773) to its program
pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the
proposed amendment to include changes made in response to the required
amendment at 30 CFR 931.16(t) and at its own initiative.
We announced receipt of the amendment in the March 26, 1996 Federal
Register (59 FR 13117), provided an opportunity for a public hearing or
meeting on its substantive adequacy, and invited public comment on its
adequacy (administrative record No. NM-802). Because no one requested a
public hearing or meeting, none was held. The public comment period
ended on April 25, 1996.
During our review of the amendment, we identified concerns and
notified New Mexico of the concerns by letter dated May 15, 1996
(administrative record no. NM-785). New Mexico responded in a letter
dated November 9, 1998, by submitting a revised amendment and
additional explanatory information (administrative record no. NM-803).
We announced receipt of the proposed amendments in the December 3,
1998 Federal Register (63 FR 66774). 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. NM-809). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on December 18, 1998.
During our review of the revised amendment, we identified concerns
and notified New Mexico of the concerns by letter dated December 21,
1998 (administrative record no. NM-814). New Mexico responded in a
letter dated December 1, 1999, by sending us a revised amendment
(administrative record no. NM-816).
Based upon New Mexico's revisions to its amendment, we reopened the
public comment period in the December 22, 1999 Federal Register (64 FR
71698); administrative record no. NM-818). The public comment period
ended on January 21, 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. Minor Revisions to New Mexico's Rules
New Mexico proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved rules.
19 NMAC 8.2 813.L [30 CFR 779.25(b)] recodification concerning the
requirement for maps, plans, and cross sections to be prepared by or
under the direction of and certified by a qualified registered
professional engineer;
19 NMAC 8.2 2054.A(2) [30 CFR 816.100] to refer to the term ``open pit
mining;'' and
19 NMAC 8.2 2054.A(3) [30 CFR 816.100] to refer to the term ``strip
mining.''
Because these changes are minor, we find that they will not make
New Mexico's rules less effective than the corresponding Federal
regulations.
2. Revisions to New Mexico's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
New Mexico proposed revisions to the following rules containing
language that is the same as or similar to the corresponding sections
of the Federal regulations.
19 NMAC 8.2 2055.C(1) [30 CFR 816.102(h)], concerning backfilling and
grading requirements for the construction of small depressions, and
[[Page 18890]]
19 NMAC 8.2 1106.C [30 CFR 773.15(c)(5)], concerning permit approval or
denial pertaining to the probable cumulative hydrological impacts.
Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations.
3. Revisions to New Mexico's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
A. 19 NMAC 8.2 2054.A(1), (2), (3), and (5), Timing of Backfilling and
Grading
New Mexico proposed to revise 19 NMAC 8.2. 2054A(1), (2), and (3),
concerning time requirements for backfilling and grading of contour
mining, open pit mining, and strip mining, to add the allowance for the
Director of the New Mexico program to approve additional distance, as
well as additional time, for rough backfilling and grading if the
permittee can demonstrate, on the basis of the materials submitted
under 19 NMAC 8.2 906.B(3), that additional distance is necessary.
New Mexico also proposed to add at 19 NMAC 8.2 2054.A(5) the
requirement that, at completion of mining, rough backfilling and
grading shall occur in accordance with a time schedule approved by the
Director of the New Mexico program based on materials submitted under
19 NMAC 8.2 906.B(3).
Existing 19 NMAC 8.2 906.B(3) requires that each permit application
contain a reclamation plan including a plan for backfilling, soil
stabilization, compacting, and grading, with contour maps or cross
sections that show the anticipated final surface configuration of the
proposed permit area.
On December 17, 1991, OSM promulgated new regulations, at 30 CFR
816.101, that provided national time and distance performance standards
for rough backfilling and grading for surface mining operations. Those
regulations were subsequently challenged in National Coal Association
and American Mining Congress v. U.S. Department of the Interior, et
al., Civ. No. 92-0408-CRR (1992). This case was dismissed without
prejudice by the U.S. District Court for the District of Columbia as
the result of a joint stipulation of the parties that included OSM's
agreement to suspend the regulation at 30 CFR 816.101.
The December 17, 1991, Federal regulations at 30 CFR 816.101
concerning time and distance performance standards for rough
backfilling and grading were suspended by OSM on July 31, 1992.
Therefore, in absence of a specific Federal regulation providing
specific time and distance performance standards for rough backfilling
and grading, the Federal standards against which State time and
distance performance standards for rough backfilling and grading must
be judged are section 515(b)(16) of SMCRA and 30 CFR 816.100.
Section 515(b)(16) of SMCRA requires that surface coal mining and
reclamation operations be conducted so as to insure that all
reclamation efforts proceed as contemporaneously as practicable with
the surface coal mining operations. The Federal regulation at 816.100
similarly provides that backfilling and grading shall occur as
contemporaneously as practicable with mining operations. In common
usage, the term ``practicable'' means ``possible to perform'' or
``feasible''. Therefore, New Mexico's proposal to allow time and
distance standards for backfilling and grading demonstrated as
necessary by an applicant's reclamation plan, whether during active
mining as proposed by New Mexico at 19 NMAC 8.2 2054.A (1), (2), and
(3), or at the completion of mining, as proposed by New Mexico at 19
NMAC 8.2 2054.A(5), is equivalent in meaning to and consistent with
section(b)(16) of SMCRA and the Federal regulation at 30 CFR 816.100.
Accordingly, New Mexico's proposed rules at 19 NMAC 8.2 2054.A (1),
(2), (3), and (5) are no less stringent than section 515(b)(16) of
SMCRA and no less effective than the Federal regulations at 30 CFR
816.100 with respect to standards for rough backfilling and grading.
The Director approves 19 NMAC 8.2 2054.A (1), (2), (3), and (5).
B. 19 NMAC 8.2 2076.B and 2077.A(5), Design of Primary Road Embankments
OSM required at 30 CFR 931.16(t) that New Mexico revise 19 NMAC 8.2
2076.B(9), concerning the requirement for all ancillary and primary
roads to have (at a minimum) a static safety factor of 1.3 for all
embankments, to reference 19 NMAC 8.2 2076.D instead of 19 NMAC 8.2
2076.C. (See finding No. 20(b), 58 FR 65907, 65923, December 17, 1993.)
New Mexico proposed to revise 19 NMAC 8.2 2076.B by deleting the
general requirement at 19 NMAC 8.2 2076.B(9) that all roads have, at a
minimum, a static factor of safety of 1.3 for all embankments, with the
exception that the Director of the New Mexico program could determine a
lesser static factor of safety on a site-specific basis with respect to
an ancillary road. New Mexico also proposed to revise 19 NMAC 8.2
2077.A by adding the requirement at 19 NMAC 8.2 2077.A(5) that all
primary roads have a static factor of safety of 1.3, at a minimum, for
all embankments.
The Federal regulations at 30 CFR 816.150 and 817.150, concerning
performance standards for all roads, do not specify a static safety
factor for road embankments and the Federal regulations at 30 CFR
816.151(b) and 817.151(b), concerning performance standards for primary
roads, require that each primary road embankment have a minimum static
factor of 1.3.
Because New Mexico's proposed revisions cause its rules to be the
same as the Federal regulations, the Director finds that New Mexico's
proposed deletion at 19 NMAC 8.2 2076.B(9) and addition at 19 NMAC 8.2
2077.A(5) have resolved the required amendment and are no less
effective than the Federal regulations at 30 CFR 816.150 and 151(b) and
817.150 and 151(b). The Director approves the proposed deletion of 19
NMAC 8.2 2076.B(9) and addition of 19 NMAC 8.2 2077.A(5) and is
removing the required amendment at 30 CFR 931.16(t).
4. Revisions to New Mexico's Rules With No Corresponding Federal
Regulations
A. 19 NMAC 8.2 813.K, Cross Sections, Maps, and Plans Required in a
Permit Application
New Mexico proposed to revise 19 NMAC 8.2 813.K(1) through (3),
concerning cross sections, maps, and plans required in a permit
application, by (1) deleting specific slope measurement requirements
paragraphs (1) through (3) so that proposed 19 NMAC 8.2 813.K requires
that a map show the existing land surface configuration of the proposed
permit area on contour maps of a maximum of 5 foot contour intervals.
The corresponding Federal regulation at 30 CFR 779.25(a) lists what
is required to be shown by cross sections, maps, and plans required in
a permit application. There is no counterpart to proposed 19 NMAC 8.2
813.K, pertaining to a map showing existing land surface configuration,
in the corresponding Federal regulations at 30 CFR 779.25(a). However,
the requirement at proposed 19 NMAC 8.2 813.K serves to aid the
regulatory authority in a determination at phase I bond release
concerning backfilling and grading to approximate original contours and
is not inconsistent with the requirements of the Federal regulations at
30 CFR 779.25(a).
[[Page 18891]]
Therefore, the Director finds that proposed 19 NMAC 8.2 813.K is no
less effective than the Federal regulations at 30 CFR 779.25(a). The
Director approves proposed 19 NMAC 8.2 813.K.
B. 19 NMAC 8.2 1412, Requirement to Release Performance Bonds
New Mexico proposed to revise 19 NMAC 8.2 1412 by adding new 19
NMAC 8.2 1412.A(2) (i) through (vii), concerning minimum requirements
for all bond release applications, and recodifying existing 19 NMAC
1412.A(2) as 19 NMAC 1412.A(3). New Mexico also proposed to revise 19
NMAC 1412.A(3) by deleting the requirement for bond release
applications that the applicant submit copies of letters which he has
sent to adjoining property owners, local governmental bodies, planning
agencies, sewage and water treatment authorities, and water companies
in the locality in which the surface coal mining and reclamation
operation took place, notifying them of the intention to seek release
from the bond. New Mexico deleted this requirement because it is
proposed under the minimum requirements for a bond release application
at 19 NMAC 1412.A(2)(v).
There are no specific counterparts setting forth minimum
requirements for a bond release application in the corresponding
Federal regulations at 30 CFR 800.40(a)(1). However, New Mexico's
proposed minimum requirements at proposed 19 NMAC 1412.A(2)(i) through
(vii) clarify what kinds of legal and technical information any bond
release application must contain and are consistent with the Federal
regulation at 30 CFR 800.40(a)(1). Recodified and revised 19 NMAC
1412.A(3), concerning the permittee's public notice of a bond release
application, along with the requirement now codified at 19 NMAC
1412.A(2)(v) for copies of letters notifying specified individuals and
governmental or private entities of the application for bond release,
are substantively identical to the Federal regulation at 30 CFR
800.40(a)(2).
Therefore, the Director finds that proposed 19 NMAC 8.2
1412.A(2)(i) through (vii) and 1412.A(3) are no less effective than the
Federal regulations at 30 CFR 800.40(a)(1) and (2). The Director
approves proposed 19 NMAC 8.2 1412.A(2)(i) through (vii) and 1412.A(3).
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (administrative
record Nos. 776, 806, and 817).
The National Mining Association requested, by letter dated December
8, 1998 (administrative record No. NM-810), that OSM send copies of (1)
the May 15, 1996, letter sent to New Mexico by OSM setting forth
concerns with the proposed amendment and (2) the supplemental
information OSM sent to New Mexico by letter dated February 26,1998.
OSM sent the requested information by letter dated December 22, 1998
(administrative record No. NM-813).
The Navajo Nation commented, by letter dated January 21, 2000
(administrative record No. 821), that it was unclear from the two
December 22, 1999, Federal Register notices (64 FR 71698 and 64 FR
71700), which published OSM's receipt of three New Mexico amendments
(including the amendment that is the subject of this document), that
there would be an opportunity for public comment prior to OSM's
decision on the amendments. The text of December 22, 1999, Federal
Register notices identified the changes proposed by New Mexico,
notified the public of its right to comment and/or request a public
hearing or meeting, and provided for a thirty day public comment period
on the proposed New Mexico amendments. The public comment period for
the New Mexico amendments closed on January 21, 2000. OSM explained to
the Navajo Nation, in a letter dated February 7, 2000 (administrative
record No. NM-823), the OSM's published Federal Register notices, as
well as OSM's distribution of the proposed amendment to interested
parties (which included the Navajo Nation) by letters dated April 1,
1996, November 23, 1998, and December 15, 1999, were the vehicles by
which OSM provided for a public comment period and solicited public
comments.
The Navajo Nation had two additional comments concerning New
Mexico's March 11, 1996, amendment that is the subject of this notice.
First, the Navajo Nation commented that the word ``demonstrate'' was
missing from the text of 19 NMAC 8.2 2054.A(3), concerning the timing
of backfilling and grading for strip mining. The amendment language at
this rule as submitted by New Mexico to OSM on December 1, 1999, did
not include the word demonstrate. However, this typographical error was
corrected when New Mexico promulgated this rule and the word
``demonstrate'' is included in the published text of New Mexico's
rules. Second, the Navajo Nation commented that New Mexico's proposed
addition of 19 NMAC 2045.A(5), concerning the timing of backfilling and
grading for the final pit at completion of mining, was less effective
than SMCRA and the Federal regulations because it lacked a time factor.
New Mexico's proposed rule at 19 NMAC 2045.A(5) requires that a
permittee complete backfilling and grading of a final pit at the
completion of mining in accordance with a time schedule approved by New
Mexico based on materials submitted by the permittee in accordance with
19 NMAC 906.B(3). Although New Mexico did not specify in the rule a
time factor such as 60 days, it does require that a specific time
schedule be approved by New Mexico when mining is complete. And, as
discussed in finding 3.A above, New Mexico's proposal to allow time
(and distance) standards for backfilling and grading demonstrated as
necessary by a permittee's reclamation plan, whether during active
mining as proposed by New Mexico at 19 NMAC 8.2 2054.A(1), (2), and
(3), or at the completion of mining, as proposed by New Mexico at 19
NMAC 8.2 2054.A(5), is equivalent in meaning to and consistent with
section 515(b)(16) of SMCRA and the Federal regulation at 30 CFR
816.100. The Director is taking no further action in response to these
comments in 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. 776,
806, and 817).
The U.S. Department of Agriculture, Natural Resources Conservation
Service (NRCS), submitted the following comments by letter dated April
12, 1996 (administrative record No. NM-781).
New Mexico's recodified rule at 19 NMAC 8.2 1412.A(2)(v) requires
that bond release application contain copies of letters which that have
been sent to adjoining property owners, local governmental bodies,
planning agencies, sewage and water treatment authorities, and water
companies in the locality in which the surface coal mining and
reclamation operation took place, notifying them of the intention to
seek release from the bond. As discussed in finding No. 4.B above, 19
NMAC 8.2 1412.A(2)(v) is identical to the Federal regulation at 30 CFR
800.40(a)(3). NRCS questioned whether these groups will
[[Page 18892]]
have sufficient opportunity to respond, whether they will have
information on where to send their response, and will the responses be
included as part of the bond release application. New Mexico's rules at
19 NMAC 8.2 1412.A(3) require that the applicant for bond release
advertise its intention to seek bond release and that the advertisement
include, among other things, the name and address of the Director of
the New Mexico to which written comments, objections, or requests for
public hearings and informal conferences may be submitted. New Mexico's
rules at 19 NMAC 8.2 1412.F provide for a person's right to file
written objections until 30 days after the last publication of the
advertisement required by 19 NMAC 8.2 1412.A(3). These rules are
identical to the counterpart Federal regulations. All comments
pertaining to a bond release application received by New Mexico will
become part of the public record.
NRCS commented that New Mexico's proposed rule at 19 NMAC 8.2 1510,
concerning minimum requirements for coal mine operations exclusively
under reclamation, should also contain information and analysis that
will define expected land use, capability, and productivity after
reclamation is complete. As announced by OSM in the December 3, 1998,
Federal Register notice (which reopened the comment period on New
Mexico's November 9, 1998, revisions proposed to its March 11, 1996,
amendment), New Mexico withdrew all proposed rules at 19 NMAC 8.2 Part
15 (administrative record No. NM-809). These rules had no counterpart
in the Federal program and were repealed by New Mexico so that they no
longer exist in its program.
NRCS commented that the timing of backfilling and grading, as
proposed by New Mexico at 19 NMAC 8.2 2054.A(1) and (3), should not
rely only on distance, but should include a time factor as well. New
Mexico subsequently revised its proposed rules at 19 NMAC 8.2 2054.A,
as discussed in finding 3.A above, to require that the timing of
backfilling and grading be determined by both time and distance
standards.
Based on the discussion above, the Director is taking no further
action in response to the NRCS comments.
The Bureau of Land Management (BLM) submitted the following
comments by letter dated April 17, 1996 (administrative record No. NM-
782).
BLM recommended that New Mexico revise 19 NMAC 8.2 813.K,
concerning a map showing the existing land surface configuration of the
proposed permit area on contour maps of a maximum of 5 foot contour
intervals, to require the map to show roads, rail lines, occupied
dwellings, pipelines, power lines, and planned exploratory and
development features on a scale of 1:24,000 or larger. As discussed at
finding No. 4.A above, proposed 19 NMAC 8.2 813.K is not inconsistent
with the requirements of the Federal regulations at 30 CFR 779.25(a).
New Mexico's existing rules at 19 NMAC 8.2 812.D and E require a map
showing the location of (1) all buildings on and within 1,000 feet of
the proposed permit area, with identification of the current use of the
buildings, and (2) surface and subsurface man-made features within,
passing through, or passing over the proposed permit area, including,
but not limited to major electric transmission lines, pipelines, and
agricultural drainage tile fields. The counterpart Federal regulations,
concerning map requirements at 30 CFR 779.24 and 779.25, do not
otherwise include requirements similar to the ones recommended by BLM.
OSM can only require that New Mexico's program contain rules that are
no less effective than the Federal regulations.
BLM recommended New Mexico revise proposed 19 NMAC 8.2 2054.A to
require that the permittee demonstrate that additional distance for
backfilling and grading is necessary or conducive to greater recovery
of coal. As discussed in finding No. 3.A above, New Mexico revised 19
NMAC 8.2 2054.A to provide for additional time and distance for the
timing of backfilling and grading based on information submitted in the
reclamation plan required at 19 NMAC 906.B(3). This information could
include justification for additional distance based on the need to
maximize coal recovery. OSM is approving proposed 19 NMAC 8.2 2054.A in
part because OSM recognized that there may exist unique conditions at
individual surface coal mining operations that require unique standards
for the timing of backfilling and grading (see finding No. 3A above).
However, the counterpart Federal regulations at 30 CFR 816.100 contain
no requirement to the one recommended by BLM. OSM can only require that
New Mexico's program contain rules that are no less effective than the
Federal regulations.
BLM recommended New Mexico revise 19 NMAC 8.2 2076.B, concerning
general road design requirements, to require that roads be maintained
and reclaimed so as to be in compliance with any and all safety
standards established or approved by the Director. As discussed at
finding 3.B above, New Mexico's proposed revision of 19 NMAC 8.2 2076
and 2077 to require a 3.1 safety factor for primary road embankments,
rather than for all road embankments, is identical to the requirements
in the Federal regulations. New Mexico's existing rule at 19 NMAC 8.2
2076.C requires that the design and construction or reconstruction of
roads shall incorporate appropriate limits for grade, width, surface
materials, surface drainage control, culvert placement, culvert size,
and any necessary design criteria established by the Director (emphasis
added).
The counterpart Federal regulations, concerning general road design
at 30 CFR 816.150, do not include a requirement similar to the one
recommended by BLM. OSM can only require that New Mexico's program
contain rules that are no less effective than the Federal regulations.
Based on the discussion above, the Director is taking no further
action in response to BLM's comments.
The U.S. Department of Interior, Fish and Wildlife Service (FWS),
submitted several comments, by letter dated April 30, 1996
(administrative record No. NM-784), pertaining to proposed 19 NMAC Part
15, concerning minimum requirements for coal mine operations
exclusively under reclamation. As announced by OSM in the December 3,
1998, Federal Register notice (which reopened the comment period on New
Mexico's November 9, 1998, revisions proposed to its March 11, 1996,
amendment), New Mexico withdrew all proposed rules at 19 NMAC 8.2 Part
15 (administrative record No. NM-809). These rules had no counterpart
in the Federal program and were repealed by New Mexico so that they no
longer exist in its program. For this reason, the Director is taking no
action in response to the FWS comments.
The U.S. Department of Agriculture, Forest Service, Southwestern
Region, commented, by letter dated December 9, 1998 (administrative
record No. NM-811), that it had no comments.
The U.S. Department of Army, Corps of Engineers, commented, by
dated December 28, 1999 (administrative record No. NM-820), that it
found the proposed changes to be satisfactory.
BLM also commented, by letter dated January 26, 2000
(administrative record No. NM-822) that New Mexico's proposed 19 NMAC
8.2 2054.A allows 60 days for rough backfilling and grading when
contour mining, yet 180 days for strip mining. BLM commented that this
difference indicates that 60 days is an insufficient time for such
remediation and recommended either the 180 day, 1500 linear feet limit
or limits determined by plans of operations. BLM further stated that it
preferred tying time frames to plans
[[Page 18893]]
because specific seams may lend themselves to different backfilling and
grading schedules.
As discussed in finding No. 3.A above, New Mexico proposed and OSM
is approving, revisions to 19 NMAC 8.2 2054.A(1), (2), and (3),
concerning time requirements for backfilling and grading of contour
mining, open pit mining, and strip mining. New Mexico proposed to add
the allowance for the Director of the New Mexico program to approve
additional distance, as well as additional time, for rough backfilling
and grading of contour mining, open pit mining, and strip mining, if
the permittee can demonstrate, on the basis of the materials submitted
that additional time or distance is necessary. Because New Mexico
proposed (and OSM is approving) what BLM recommended in it's comment
letter, the Director is taking no further action in response to this
comment.
Environmental 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
relate 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 records Nos. 776, 806, and 817). 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 from the
SHPO and ACHP (administrative record Nos. 776, 806, and 817); the ACHP
did not respond to our request.
By letter dated April 19, 1996, the SHPO commented that it was
unclear whether the protection from adverse effect of reclamation
operations proposed at 19 NMAC 8.2 1517 (protection of public parks and
historic places) included cultural resources identified at 19 NMAC 8.2
1510 (general environmental resources), and recommended that 19 NMAC
8.2 1517 be clarified to clearly include the cultural resources listed
at 19 NMAC 8.2 1510.
As announced by OSM in the December 3, 1998, Federal Register
notice (which reopened the comment period on New Mexico's November 9,
1998, revisions proposed to its March 11, 1996, amendment), New Mexico
withdrew all proposed rules at 19 NMAC 8.2 Part 15 (administrative
record No. NM-809). These rules concerned minimum requirements for coal
mine operations exclusively under reclamation and had no counterpart in
the Federal program; they were repealed by New Mexico and no longer
exist in its program. Therefore, the Director is taking no action in
response to this comment.
V. Director's Decision
Based on the above findings, we approved the March 11, 1996,
amendment sent to us by New Mexico, as revised on November 9, 1998, and
December 1, 1999.
We approved, as discussed in:
(1) Finding No. 1, 19 NMAC 8.2 813.L, 19 NMAC 8.2 2054.A(2), and 19
NMAC 8.2 2054.A(3), concerning minor wording, editorial, punctuation,
grammatical, and/or recodification changes to previously-approved New
Mexico rules;
(2) Finding No. 2, 19 NMAC 8.2 2055.C(1) and 19 NMAC 8.2 1106.C,
revisions to New Mexico's rules that contain language that is the same
as or similar to the corresponding sections of the Federal regulations
concerning, respectively, backfilling and grading requirements for the
construction of small depressions and permit approval or denial
pertaining to the probable cumulative hydrological impacts;
(3) Finding No. 3.A, 19 NMAC 8.2 2054.A(1), (2), and (3), and 19
NMAC 8.2 2054.A(5), concerning time requirements for backfilling and
grading of contour mining, open pit mining, and strip mining and the
schedule for backfilling and grading at completion of mining;
(4) Finding No. 3.B, 19 NMAC 8.2 2076.B and 19 NMAC 8.2 2077.A,
concerning the static factor of safety of 1.3 for road embankments;
(5) Finding No. 4.A, 19 NMAC 8.2 813.K(1) through (3), concerning
cross sections, maps, and plans required in a permit application; and
(6) Finding No. 4.B, 19 NMAC 8.2 1412.A(2) (i) through (vii),
concerning minimum requirements for all bond release applications.
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
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. Executive Order 12988
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 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.
3. 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(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
4. 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.).
5. 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
[[Page 18894]]
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.
6. 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: March 21, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
For the reasons set out in the preamble, 30 CFR part 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 Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * *
*
March 11, 1996..................... April 10, 2000.................... 19 NMAC 8.2 813.K (1) through (3);
813.L; 1106.C; 1412.A(2) (i) through
(vii); 2054.A (1), (2), (3), and (5);
2055.C(1); 2076.B; and 2077.A.
----------------------------------------------------------------------------------------------------------------
Sec. 931.16 [Amended]
3. Section 931.16 is amended by removing and reserving paragraph
(t).
[FR Doc. 00-8666 Filed 4-7-00; 8:45 am]
BILLING CODE 4310-05-M