[Federal Register Volume 60, Number 31 (Wednesday, February 15, 1995)]
[Rules and Regulations]
[Pages 8560-8562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-3744]



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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931


New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the New Mexico 
regulatory program (hereinafter referred to as the ``New Mexico 
program'') under the Surface Mining Control and Reclamation Act of 1977 
(30 U.S.C. 1201 et seq.) (SMCRA). New Mexico proposed the addition of 
rules pertaining to the exemption for extraction of coal incidental to 
the extraction of other minerals. The amendment revises the New Mexico 
program to be consistent with the corresponding Federal regulations.

EFFECTIVE DATE: February 15, 1995.

FOR FURTHER INFORMATION CONTACT:
Thomas E. Ehmett, Telephone: (505) 766-1486.

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, 931.13, 931.15, 931.16, and 
931.30.

II. Proposed Amendment

    By letter dated October 26, 1994, New Mexico submitted a proposed 
amendment to its program pursuant to SMCRA (administrative record No. 
NM- [[Page 8561]] 716). New Mexico submitted the proposed amendment in 
response to a February 7, 1990, letter (administrative record No. NM-
563) that OSM sent to New Mexico in accordance with 30 CFR 732.17(c). 
New Mexico submitted the amendment with the intent of making the New 
Mexico Coal Surface Mining Commission (CSMC) rules consistent with the 
corresponding Federal regulations. New Mexico proposed new rules to 
implement sections 69-25A-1 through 35 of the New Mexico Surface Coal 
Mining Act concerning the extraction of coal incidental to the 
extraction of other minerals where coal does not exceed 16\2/3\ percent 
of the total tonnage of coal and other minerals removed for purposes of 
commercial use or sale. The provisions of the New Mexico Coal Surface 
Mining Commission (CSMC) Rules 80-1 that New Mexico proposed to add are 
at new Chapter O, Exemption for Coal Extraction Incidental to the 
Extraction of Other Minerals, and include sections 34-1, scope; 34-2, 
definitions; 34-3, application requirements and procedures; 34-4, 
contents of application for exemption; 34-5, public availability of 
information; 34-6, requirements for exemption; 34-7, conditions of 
exemption and right of inspection and entry; 34-8, stockpiling of 
minerals; 34-9, revocation and enforcement; and 34-10, reporting 
requirements.
    OSM announced receipt of the proposed amendment in the November 15, 
1994, Federal Register (59 FR 58801), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. NM-718). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on December 15, 1994.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of CSMC Rules 80-1-34-2, definition of 
``cumulative measurement period,'' and 80-1-34-9, administrative review 
of revocation decisions. OSM notified New Mexico of the concerns by 
letter dated December 20, 1994 (administrative record No. NM-724). New 
Mexico responded in a letter dated December 20, 1994, by submitting 
revisions for the two rules (administrative record No. NM-723).
    Based upon the revisions to the proposed program amendment 
submitted by New Mexico, OSM reopened the public comment period in the 
December 28, 1994, Federal Register (59 FR 66837, administrative record 
No. NM-729). The public comment period ended on January 12, 1995.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds that the proposed program amendment 
submitted by New Mexico on October 26, 1994, and as revised by it on 
December 20, 1994, is no less effective than the corresponding Federal 
regulations. Accordingly, the Director approves the proposed amendment.

Addition of Substantive Rules That Are Substantively Identical to the 
Corresponding Provisions of the Federal Regulations

    New Mexico proposed the addition of the following rules that are 
substantive in nature and contain language that is substantively 
identical to the requirements of the corresponding Federal regulation 
provisions (listed in parentheses).

CSMC Rule 80-1-34-1 (30 CFR 702.1), scope,
CSMC Rule 80-1-34-2 (30 CFR 702.5), definitions,
CSMC Rule 80-1-34-3 (30 CFR 702.11), application requirements and 
procedures,
CSMC Rule 80-1-34-4 (30 CFR 702.12), contents of application for 
exemption,
CSMC Rule 80-1-34-5 (30 CFR 702.13), public availability of 
information,
CSMC Rule 80-1-34-6 (30 CFR 702.14), requirements for exemption,
CSMC Rule 80-1-34-7 (30 CFR 702.15), conditions of exemption and right 
of inspection and entry,
CSMC Rule 80-1-34-8 (30 CFR 702.16), stockpiling of minerals,
CSMC Rule 80-1-34-9 (30 CFR 702.17), revocation and enforcement, and
CSMC Rule 80-1-34-10 (30 CFR 702.18), reporting requirements.

    Because these proposed New Mexico rules are substantively identical 
to the corresponding provisions of the Federal regulations, the 
Director finds that they are no less effective than the Federal 
regulations. The Director approves these proposed rules.

IV. Summary and Disposition of Comments

    Following are summaries of all oral and written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the New Mexico program.
    The Bureau of Mines responded in a telephone conversation on 
November 15, 1994, that it had no comments on the proposed amendment 
(administrative record No. NM-719).
    The U.S. Army Corp of Engineers stated in letters dated November 
16, 1994, and January 6, 1995, that it found the changes to be 
satisfactory (administrative record Nos. NM-721 and NM-730).
    The U.S. Fish and Wildlife Service (the Service) provided comments 
in a letter dated December 1, 1994 (administrative record No. NM-722). 
Due to concerns of the Service about risks to fish and wildlife from 
selenium, mercury, and polycyclic aromatic hydrocarbons (PAH's) 
contamination, it recommended that the proposed amendment be revised to 
require permit conditions for testing and monitoring mercury, selenium, 
and PAH's for such mining operations that extract coal incidental to 
the extraction of other minerals.
    The Federal regulations at 30 CFR Part 702 exclude from SMCRA 
regulation those mining operations that extract coal incidental to the 
extraction of other minerals where coal does not exceed 16\2/3\ percent 
of the tonnage of minerals removed for purposes of commercial use or 
sale. Because New Mexico's proposed incidental coal extraction rules 
are substantively identical to these corresponding Federal regulations, 
New Mexico's coal mining rules also do not regulate such mining 
operations. To the extent that the Service's comments address the 
mitigation of impacts of selenium, mercury, and PAH's contamination of 
such mining operations, they are outside the scope of New Mexico's coal 
mining rules. Therefore, OSM is not requiring New Mexico to revise its 
coal mining rules in response to the comment.
    By letter dated January 25, 1995, the Mine Safety and Health 
Administration (MSHA) stated that the amendment had been reviewed and 
that it appeared there were no conflicts with the requirements of 30 
CFR (administrative record No. NM-731).

3. Environmental Protection Agency (EPA) Concurrence and Comments

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to [[Page 8562]] those 
provisions of the proposed program amendment that relate to air or 
water quality standards promulgated 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 its 
amendment pertain to air or water quality standards. Therefore, OSM did 
not request EPA's concurrence.
    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from EPA (administrative record No. NM-717). It 
responded on November 29, 1994, that it had no objections to OSM's 
approval of the proposed regulations (administrative record No. NM-
720).

4. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and the ACHP (administrative record 
No. NM-717). Neither the SHPO nor the ACHP responded to OSM's request.

V. Director's Decision

    Based on the above finding, the Director approves New Mexico's 
proposed amendment as submitted on October 26, 1994, and as revised on 
December 20, 1994.
    The Director approves, as discussed above, CSMC Rule 80-1-34-1, 
concerning scope; CSMC Rule 80-1-34-2, concerning definitions; CSMC 
Rule 80-1-34-3, concerning application requirements and procedures; 
CSMC Rule 80-1-34-4, concerning contents of application for exemption; 
CSMC Rule 80-1-34-5, concerning public availability of information; 
CSMC Rule 80-1-34-6, concerning requirements for exemption; CSMC Rule 
80-1-34-7, concerning conditions of exemption and right of inspection 
and entry; CSMC Rule 80-1-34-8, concerning stockpiling of minerals; 
CSMC Rule 80-1-34-9, concerning revocation and enforcement; and CSMC 
Rule 80-1-34-10, concerning reporting requirements.
    The Director approves 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.
    The Federal regulations at 30 CFR part 931, codifying decisions 
concerning the New Mexico program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

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 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (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

    No environmental impact statement is required for this rule since 
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 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.

List of Subjects in 30 CFR 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 7, 1995.
Russell F. Price,
Acting Assistant Director, Western Support Center.

    For the reasons set out in the preamble, Title 30, Chapter VII, 
Subchapter T of the Code of Federal Regulations 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 by adding paragraph(s) to read as 
follows:


Sec. 931.15  Approval of amendments to State regulatory program.

 * * * * *
    (s) The following New Mexico Coal Surface Mining Commission (CSMC) 
rules, as submitted to OSM on October 26, 1994, and as revised on 
December 20, 1994, are approved effective February 15, 1995.

CSMC Rule 80-1-34-1, scope.
CSMC Rule 80-1-34-2, definitions.
CSMC Rule 80-1-34-3, application requirements and procedures.
CSMC Rule 80-1-34-4, contents of application for exemption.
CSMC Rule 80-1-34-5, public availability of information.
CSMC Rule 80-1-34-6, requirements for exemption.
CSMC Rule 80-1-34-7, conditions of exemption and right of inspection 
and entry.
CSMC Rule 80-1-34-8, stockpiling of minerals.
CSMC Rule 80-1-34-9, revocation and enforcement.
CSMC Rule 80-1-34-10, reporting requirements.

[FR Doc. 95-3744 Filed 2-14-95; 8:45 am]
BILLING CODE 4310-05-M