[Federal Register Volume 69, Number 71 (Tuesday, April 13, 2004)]
[Rules and Regulations]
[Pages 19321-19325]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-8381]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[NM-043-FOR]


New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment.

-----------------------------------------------------------------------

SUMMARY: We are approving a proposed amendment to the New Mexico 
regulatory program (the ``New Mexico program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New 
Mexico proposed revisions to rules about definitions of permit 
modification, permit revision, and temporary cessation of operations; 
permit fees; administrative review of decisions; review of permits; 
requirements for permit modifications; public hearings for permit 
modifications; and additional requirements for temporary cessation of 
operations. New Mexico revised its program to provide additional 
safeguards, clarify ambiguities and improve operational efficiency.

EFFECTIVE DATE: April 13, 2004.

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. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the New Mexico Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the New Mexico program on December 31, 1980. 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 931.10, 931.11, 931.13, 931.15, 931.16 and 
931.30.

II. Submission of the Proposed Amendment

    By letter dated October 27, 2003, New Mexico sent us an amendment 
to its program (Administrative Record No. NM-869) under SMCRA (30 
U.S.C. 1201 et seq.). New Mexico sent the amendment to include the 
changes made at its own initiative.
    We announced receipt of the proposed amendment in the December 19, 
2003, Federal Register (68 FR 70749). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's

[[Page 19322]]

adequacy (Administrative Record No. NM-871). We did not hold a public 
hearing or meeting because no one requested one. The public comment 
period ended on January 20, 2004. We received comments from one Federal 
agency.

III. OSM'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.

A. Minor Revisions to New Mexico's Rules

    New Mexico proposed minor editorial changes to the following 
previously-approved rules:
    19.8.13.1301.A(4) New Mexico Annotated Code (NMAC) (30 CFR 
774.13(b)(2)), concerning permit revisions, and
    19.8.13.1301.E(1) NMAC (30 CFR 774.13(b)(2)), concerning public 
hearing and notice requirements.
    Because these changes are minor, we find that they will not make 
New Mexico's rules less effective than the corresponding Federal 
regulations.

B. Revisions to New Mexico's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations or SMCRA

    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 or statute:
    19.8.12.1200.A NMAC (30 CFR 775.11(a)), concerning the permittee's 
or interested party's opportunity to request a hearing after the 
decision on a permit modification, and
    19.8.13.1300.B NMAC (30 CFR 774.10(a)), concerning the authority of 
the New Mexico Program Director to require revision or modification of 
an approved permit.
    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.

C. Revisions to New Mexico's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulation(s)

    1. Permit and Exploration Fees. New Mexico proposed to revise 
19.8.5.506.A, B, D, E, F, and G NMAC to raise the existing permit and 
exploration fees. New Mexico proposed to increase all fees collected 
from operators. New Mexico proposed to (1) increase the original permit 
filing fee to $2,500 plus $25 per acre for the estimated area to be 
disturbed during the first year of mining, (2) increase the maximum 
limit for an annual permit fee to $17,500 and include a formula for the 
annual fee based on a charge of $25 per disturbed acre, (3) increase 
the fee for a permit transfer to $1000, (4) increase the fee for a 
permit revision that adds disturbed acreage to $4,000 plus $25 per acre 
for the estimated area to be disturbed during the first year of mining 
in the expanded area, (5) add a flat fee of $4000 to cover revisions 
with limited or no surface disturbance (e.g., changing the method of 
mining from surface stripping to underground or highwall mining), and 
(6) increase the fees for filing a notice of intention to explore and 
an application for exploration of greater than 250 tons of coal to, 
respectively, $100 and $200.
    Section 507(a) of SMCRA states that each application for a surface 
coal mining and reclamation permit, pursuant to an approved State 
program or a Federal program, shall be accompanied by a fee as 
determined by the regulatory authority and that this fee may be less 
than but shall not exceed the actual or anticipated cost of reviewing, 
administering, and enforcing permits issued. This section also provides 
that the regulatory authority may develop procedures so as to enable 
the cost of the fee to be paid over the term of the permit. (The 
Federal regulation at 30 CFR 736.25 sets forth permitting fees for 
Federal programs implemented by OSM.)
    New Mexico has increased fees that were part of the approved New 
Mexico program. New Mexico explained that just over half of the cost of 
administering the New Mexico program is covered by collected fees 
(including the proposed fee increases); the remaining cost is covered 
by a Federal grant.
    The Director of OSM (Director) finds that New Mexico's proposed 
revisions to increase the fees collected for permitting exploration and 
surface coal mining and reclamation operations are in accordance with 
and no less stringent than Section 507(a) of SMCRA. Therefore, the 
Director approves New Mexico's proposed revisions at 19.8.5.506.A, B, 
D, E, F, and G NMAC.
    2. Permit Modifications and Revisions. New Mexico proposed to add 
definitions of ``permit modification'' and ``permit revision,'' at, 
respectively, 19.8.1.7.P(8) and (9) NMAC. New Mexico also proposed to 
revise 19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that 
19.8.13.1301.A NMAC defines when a permit revision is required and to 
require that a permit modification be obtained for all other changes to 
a permit not classified as a permit revision; (2) to state that the 
operator may not implement any permit revision or permit modification 
before obtaining the written approval of the New Mexico Program 
Director; and (3) state that (a) within 10 days after the filing of a 
complete application for a permit modification, the Director of the New 
Mexico Program shall issue a decision approving or denying the 
application in whole or in part and promptly provide a written copy of 
the decision to the permittee and other interested parties and (b) 
within 30 days after the decision notification concerning the permit 
modification, the permittee or any person may request a formal hearing 
in regard to the New Mexico Program Director's decision, in accordance 
with 19.8.12.1200 NMAC.
    The Federal regulations at 30 CFR 774.13(b)(2) require that the 
regulatory authority establish the scale or extent of revisions for 
which all permit application information requirements and procedures 
shall apply (including the public notice, public participation, and 
notice of decision requirements of 30 CFR 773.6, 773.19(b)(1) and (3) 
and 778.21). Such requirements and procedures shall apply at a minimum 
to all significant revisions.
    Although the Federal regulations do not contain a definition of 
``significant revisions'' or revisions that are not significant, New 
Mexico's program has been revised to clarify that ``permit revisions'' 
are the same as revisions that are termed ``significant'' in the 
Federal regulations. New Mexico's existing program contains all 
procedural requirements required by the Federal regulation at 30 CFR 
774.13(b)(2) for significant revisions. Therefore, New Mexico's 
proposed definitions of ``permit revision'' and ``permit modification'' 
at 19.8.1.7.P(8) and (9) NMAC and clarification of the procedures that 
apply to ``permit revisions'' are consistent with the Federal 
regulations at 30 CFR 774.13(b)(2).
    New Mexico added procedural requirements concerning permit 
modifications. The Federal regulation does not specify the procedures 
that apply to non-significant revisions, only that established 
procedures for revisions shall apply at a minimum to all significant 
revisions; this Federal regulation clearly allows the regulatory 
authority to establish procedures for non-significant revisions. 
Therefore, the Director finds that New Mexico's proposed procedures at 
19.8.13.1301.B, C, and E(2) NMAC for ``permit modifications'' are also 
consistent with

[[Page 19323]]

the Federal regulations at 30 CFR 774.13(b)(2).
    Based on the above discussion, the Director finds that the proposed 
New Mexico rules at 19.8.1.7.P(8) and (9) NMAC and 19.8.13.1301.B, C, 
and E(2) NMAC are no less effective than the Federal regulation at 30 
CFR 774.13(b)(2) and approves them.
    2. Temporary Cessation of Operations. New Mexico proposed to add a 
definition of ``temporary cessation of operations'' at 19.8.1.7.T(2) 
NMAC to mean the cessation of mining or reclamation operations for more 
than thirty days and where a reasonable expectation of the continuation 
of mining can be demonstrated by the permittee. New Mexico also 
proposed to revise 19.8.20.2073 NMAC, concerning temporary cessation of 
operations, by adding new C, D, E, and F, to state (1) at the New 
Mexico Program Director's discretion, the permittee may be directed to 
take other reasonable actions consistent with 19.8 NMAC to ensure the 
protection of public safety and the environment while the operation is 
under temporary cessation; (2) that no temporary cessation of mining 
and reclamation operations shall extend beyond the current permit term, 
unless the Director of the New Mexico Program approves an extension of 
the temporary cessation during the permit renewal process conducted in 
accordance with 19.8.13 NMAC; (3) that to continue under a temporary 
cessation beyond an existing permit term, the permittee must 
demonstrate that the mining operation has a reasonable expectation of 
continuing operations; and (4) that a temporary cessation may not be 
used to justify a lengthy delay to final reclamation or to preserve 
facilities beyond what may be considered appropriate for their use in 
association with an existing permit.
    There is no Federal definition of ``temporary cessation of 
operations.'' The Federal regulation at 30 CFR 816.131(a) requires that 
each person who conducts surface mining activities shall effectively 
secure surface facilities in areas in which there are no current 
operations but in which operations are to be resumed under an approved 
permit and states that temporary abandonment shall not relieve a person 
of their obligation to comply with any provisions of the approved 
permit. The Federal regulation at 30 CFR 816.131(b) states that before 
temporary cessation of mining and reclamation operations for a period 
of thirty days or more, or as soon as it is known that a temporary 
cessation will extend beyond 30 days, persons who conduct surface 
mining activities shall submit to the regulatory authority a notice of 
intention to cease or abandon mining and reclamation operations. This 
regulation specifies that the notice shall include a statement of the 
exact number of acres which will have been affected in the permit area, 
prior to such temporary cessation, the extent and kind of reclamation 
of those areas which will have been accomplished, and identification of 
the backfilling, regrading, revegetation, environmental monitoring, and 
water treatment activities that will continue during the temporary 
cessation.
    New Mexico's proposed definition of ``temporary cessation of 
operations'' includes the same 30 day period, beyond which an operator 
must declare a temporary cessation of operations, that is in the 
Federal regulation at 30 CFR 816.131(b). New Mexico's inclusion in its 
definition and/or in the performance standards of the requirements that 
the operator demonstrate ``a reasonable expectation for the 
continuation of mining following temporary cessation'' and not use 
temporary cessation as a means to ``justify a lengthy delay to final 
reclamation or to preserve facilities beyond what may be considered 
appropriate for their use'', is implicit though not stated in the 
Federal regulations; the Federal regulation at 30 CFR 816.131(a) 
describes temporary cessation, in part, as those situations ``in which 
operations are to be resumed under an approved permit''.
    Section 505(b) of SMCRA provides for provisions of State law or 
rules that provide for more stringent environmental controls and 
regulations of surface coal mining and reclamation operations than do 
the provisions of SMCRA or the Federal regulations.
    Therefore, New Mexico has the authority to adopt the proposed 
additional safeguards concerning the discretion of the Director of the 
New Mexico Program to require other reasonable actions to ensure the 
protection of public safety and the environment, and the relationship 
between temporary cessation and the permit term.
    Based on the discussion above, the Director finds that New Mexico's 
proposed rules concerning temporary cessation of operations at 
19.8.1.7.T(2) and 19.8.20.2073.C, D, E, and F are in accordance with 
Section 505(b) of SMCRA and no less effective than the Federal 
regulations at 30 CFR 816.131(a) and (b) and approves them.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. NM-870), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the New Mexico program 
(Administrative Record No. NM-870).
    The U.S. Fish and Wildlife Service (FWS), commented by letter dated 
December 29, 2003 (Administrative Record No. NM-872). FWS stated that 
it supported the changes to the New Mexico program and commended the 
New Mexico Mining Commission for taking proactive steps to revise its 
program and improve safeguards for the people and environment of New 
Mexico. FWS further commented, ``[w]hile we are not aware of any 
problems with birds becoming trapped and or killed by ponded waters at 
coal mines in New Mexico, this has been, and continues to be a 
significant problem for hard rock mining operations and oil and gas 
facilities. We encourage you and your staff to keep in mind the 
potential for bird (and other wildlife) entrapment and exposure to 
hazardous chemicals in open waters, and would appreciate your support 
in eliminating these hazards. The Service has experience in dealing 
with hazardous, ponded waters, and general potential sources of impacts 
to migratory birds (e.g., power poles, towers), and can provide you and 
your staff with approaches to protect migratory birds and other 
wildlife. We would rather prevent the loss of migratory birds before 
more formal legal actions are necessary under the Migratory Bird Treaty 
Act (MBTA), which prohibits the taking of migratory birds, nests, and 
eggs, except as permitted by the Service. If your staff becomes aware 
of an actual or potential hazard to birds or other wildlife, please 
contact us and we can work with you and/or the company to ameliorate 
these hazards.''
    New Mexico's existing rules at 19.8.809.A and B NMAC require that 
an application for a permit to mine coal include a study of fish and 
wildlife and their habitats within the proposed permit area and the 
portions of the adjacent areas where effects on such resources may 
reasonably be expected to occur, and, that the applicant must consult 
with the appropriate State and

[[Page 19324]]

Federal fish and wildlife management, conservation, or land management 
agencies having responsibilities for fish and wildlife or their 
habitats, to determine the level of detail and the areas for such 
studies. In addition, New Mexico's rules at 19.8.9.905.A and B NMAC 
require that each application contain a fish and wildlife plan 
demonstrating how the applicant will minimize disturbances and adverse 
impacts on fish and wildlife, and, that the applicant describe methods 
the applicant will utilize to protect or enhance threatened or 
endangered species of plants or animals and their critical habitats; 
species such as eagles, migratory birds or other animals protected by 
State or Federal Law and their habitats, or other species identified 
through the consultation process pursuant to 19.8.8.809 NMAC; or 
habitats of unusually high value for fish and wildlife.
    New Mexico did not propose revisions to these or other rules 
concerning fish and wildlife in this amendment. New Mexico's approved 
program provides, through the consultation and application requirements 
described above, the coordination requested in the FWS comment. The 
Director is not requiring New Mexico to further revise its program in 
response to these comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence 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 pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), 
OSM requested comments on the amendment from EPA (Administrative Record 
No. NM-870). 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. On December 2, 2003, we requested comments on New Mexico's 
amendment (Administrative Record No. NM-870), but neither responded to 
our request.

V. OSM's Decision

    Based on the above findings, we approve New Mexico's October 27, 
2003, amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 931, which codify decisions concerning the New Mexico 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. 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 regulation.

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 (Regulatory Planning and 
Review).

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 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 because 
each 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 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

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)).

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.).

[[Page 19325]]

Regulatory Flexibility Act

    The Department of the Interior certifies 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, which 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. 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

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 15, 2004.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 931 is amended as 
set forth below:

PART 931--NEW MEXICO

0
1. The authority citation for part 931 continues to read as follows:

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

0
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
------------------------------------------------------------------------
 
                              * * * * * * *
October 27, 2003..............  April 13, 2004...  19.8.1.7.P(8) and
                                                    (9); 19.8.1.7.T(2);
                                                    19.8.5.506.A, B, D,
                                                    E, F, and G;
                                                    19.8.12.1200.A;
                                                    19.8.13.1300.B;
                                                    19.8.13.1301.A(1),
                                                    B, C, and E(1) and
                                                    E(2); 19.8.20.2073
                                                    (C), (D), (E), and
                                                    (F) NMAC
------------------------------------------------------------------------

[FR Doc. 04-8381 Filed 4-12-04; 8:45 am]
BILLING CODE 4310-05-P