[Federal Register Volume 61, Number 104 (Wednesday, May 29, 1996)]
[Rules and Regulations]
[Pages 26825-26836]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-13265]



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DEPARTMENT OF THE INTERIOR
30 CFR Part 931

[SPATS No. NM-036-FOR]


New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment with one exception and 
additional requirements.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
approving, with one exception and additional requirements, 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 (SMCRA). New Mexico proposed revisions to and/
or additions of rules pertaining to definitions; procedures for 
designating lands unsuitable for coal mining; permit application 
requirements concerning compliance information, the reclamation plan, 
and the subsidence information and control plan; procedures concerning 
permit application review; criteria for permit approval or denial; 
procedures concerning improvidently issued permits; permit conditions; 
requirements concerning ownership and control information; and 
performance standards for coal exploration, hydrologic balance, 
permanent and temporary impoundments, coal processing waste, disposal 
of noncoal waste, protection of fish, wildlife, and related 
environmental values, revegetation success, subsidence control, and 
roads. The amendment was intended to revise the New Mexico program to 
be consistent with the corresponding Federal regulations, incorporate 
the additional flexibility afforded by the revised Federal regulations, 
and improve operational efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:
Guy Padgett, Telephone: (505) 248-5070.
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 January 22, 1996, New Mexico submitted a proposed 
amendment to its program (administrative record No. NM-766) pursuant to 
SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed 
amendment at its own initiative and in response to the required program 
amendments at 30 CFR 931.16 (a), (c), (d), (f) through (p), and (n)(2) 
through (s) (55 FR 48841, November 23, 1990; 56 FR 67520, December 31, 
1991; and 58 FR 65907, December 17, 1993).
    OSM announced receipt of the proposed amendment in the February 1, 
1996, Federal Register (61 FR 3625), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. NM-767). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on March 4, 1996.
    During its review of the amendment, OSM identified concerns 
relating to the certain provisions of the proposed amendment. OSM 
notified New Mexico of the concerns on March 13, 1996 (administrative 
record No. NM-774).
    New Mexico responded on March 13, 1996, that it would not submit 
revisions to the amendment and that OSM should proceed with the 
publishing of this final rule Federal Register notice (administrative 
record No. NM-774).

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with certain exceptions and additional 
requirements, that the proposed program amendment submitted by New 
Mexico on January 22, 1996, is no less effective than the corresponding 
Federal regulations. Accordingly, the Director approves, with one 
exception, the proposed amendment and adds additional requirements.

1. Nonsubstantive Revisions to New Mexico's Rules

    New Mexico proposed revisions to the following previously-approved 
rules that are nonsubstantive in nature and consist of minor editorial 
changes or recodification (corresponding Federal regulation provisions 
are listed in parentheses):


    Coal Surface Mining Commission (CSMC) Rule 80-1-11-20(d) (30 CFR 
773.20(c)), concerning remedial measures for improvidently issued 
permits, to recodify existing CSMC Rule 80-1-11-20(c) as CSMC Rule 
80-1-11-20(d);
    CSMC Rule 80-1-20-41(e)(3)(i) (30 CFR 816.41 (c)(3) and (e)(3) 
and 817.41 (c)(3) and (e)(3)), concerning general performance 
standard requirements for protection of the hydrologic balance, to 
correctly reference CSMC 80-1-20-41(e)(2)(i); and
    CSMC Rule 80-1-20-82(a)(4) (30 CFR 816.71(h) and 817.71(h)), 
concerning inspections of coal processing waste banks, to correctly 
reference ``Part 9'' of New Mexico's rules.
    CSMC Rule 80-1-20-89(d)(2) (30 CFR 816.89(b)), concerning 
disposal of noncoal

[[Page 26826]]

wastes, to correctly reference ``Section 3-109D'' of the New Mexico 
Water Quality Control Commission regulations.


    Because the proposed revisions to these previously-approved rules 
are nonsubstantive in nature, the Director finds that these proposed 
New Mexico rules are no less effective than the Federal regulations. 
The Director approves these proposed rules.

2. Substantive Revisions to New Mexico's Rules That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

    New Mexico proposed revisions to or additions 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 80-1-1-5 (30 CFR 773.5), concerning the definitions of 
``Applicant/violator system or AVS,'' ``Federal violation notice,'' 
``Ownership or control link,'' ``State violation notice,'' and 
Violation notice;''
    CSMC Rule 80-1-1-5 (30 CFR 700.5), concerning the definition of 
``OSM;''
    CSMC Rules 80-1-1-5 (30 CFR 701.5), concerning the definition of 
``Road;''
    CSMC Rules 80-1-11-20(c) (1) and (2) and (e) (30 CFR 
773.20(b)(2) (i) and (ii) and (c)(2)), concerning general procedures 
for improvidently issued permits;
    CSMC 80-1-11-24(a) and [deletion of] (c) (30 CFR 773.21(a)), 
concerning rescission procedures for improvidently issued permits;
    CSMC Rule 80-1-11-31 (a) through (d) (30 CFR 773.22 (a) through 
(d)), concerning verification of ownership or control application 
information;
    CSMC Rule 80-1-11-32 (a) through (c) (30 CFR 773.23 (a) through 
(c)), concerning review of ownership or control and violation 
information;
    CSMC Rule 80-1-11-33 (a) through (d) (30 CFR 773.24 (a) through 
(d)), concerning procedures for challenging ownership or control 
links shown in AVS; and
    CSMC Rule 80-1-11-34 (a) through (d) (30 CFR 773.25 (a) through 
(d)), concerning standards for challenging ownership or control 
links and the status of violations.


    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.

3. CSMC Rule 80-1-1-5, Definition of ``Qualified Laboratory''

    At its own initiative, New Mexico proposed a definition of 
``Qualified laboratory'' at CSMC Rule 80-1-1-5 that is, with one 
exception, substantively identical to the Federal definition of 
``qualified laboratory'' at 30 CFR 795.3. The exception is that New 
Mexico's definitions only provides for laboratory services related to 
the determination of probable hydrolic consequences or statement of 
results of test borings or core samplings under the new Mexico small 
operator assistance program (SOAP), where as the Federal definition 
provides for these and other services specified at 30 CFR 795.9.
    New Mexico's CSMC Rule 80-1-32-9, which corresponds to 30 CFR 795.9 
in the Federal regulations, has not been revised to include the 
additional services which can be funded under the Federal SOAP program 
(59 FR 28168, May 31, 1994). However, a State's implementation of SOAP 
is not mandated by SMCRA nor the Federal regulations and the provisions 
for SOAP funding may, to the extent provided for in the Federal 
program, be elected by the State.
    Therefore, the Director finds that New Mexico's definition of 
``Qualified laboratory'' at CSMC Rule 80-1-1-5 is no less effective 
than the Federal definition of ``qualified laboratory'' at 30 CFR 795.3 
and approves the proposed definition of ``Qualified laboratories'' at 
CSMC 80-1-1-5.

4. CSMC Rules 80-1-1-5 and 80-1-7-14(c) (1) through (5), Ownership and 
Control Information Required in Permit Applications Concerning 
Violations

    OSM required at 30 CFR 931.16(d) that New Mexico revise CSMC Rule 
80-1-7-14(c) to add the requirement that a permit application include 
information on violations received pursuant to SMCRA, its implementing 
regulations, and to any State or Federal law, rule or regulation 
enacted or promulgated pursuant to SMCRA (finding No. 4, 58 FR 65907, 
65909, December 17, 1993).
    New Mexico proposed to revise CSMC Rules 80-1-7-14(c) (1) through 
(5), concerning compliance information required in permit applications, 
to include requirements that are, with one exception, substantively 
identical to the Federal regulations at 30 CFR 778.14(c) (1) through 
(5).
    The exception is that New Mexico requires information concerning 
violations received pursuant to SMCRA. New Mexico proposed, at CSMC 
Rule 80-1-1-5, to add a definition of ``SMCRA'' which means, in 
addition to the Federal act, its implementing regulations at 30 CFR 
Chapter VII, and any State or Federal law, rule, regulation, or program 
enacted or promulgated pursuant to the Federal act.
    The corresponding Federal regulations at 30 CFR 778.14(c) require 
information concerning violations received pursuant to SMCRA, its 
implementing regulations, and to any State or Federal law, rule or 
regulation enacted or promulgated pursuant to SMCRA. As defined by New 
Mexico, the use of the term ``SMCRA'' in proposed CSMC Rules 80-1-7-
14(c) is equivalent to the use, in the Federal regulations, of the 
phrase ``SMCRA, its implementing regulations, and any State or Federal 
law, rule or regulation enacted or promulgated pursuant to SMCRA.''
    Based upon the above discussion, the Director finds that proposed 
CSMC Rules 80-1-7-14(c) (1) through (5) and the term ``SMCRA,'' as 
proposed at CSMC Rule 80-1-1-5, (1) are consistent with and no less 
effective than the Federal regulations at 30 CFR Part 778.14(c) (1) 
through (5), concerning compliance information required in permit 
applications, and (2) satisfy the required amendment at 30 CFR 
931.16(d). The Director approves proposed CSMC Rules 80-1-7-14(c) (1) 
through (5) and the proposed definition of ``SMCRA'' at CSMC Rule 80-1-
1-5, and removes the required amendment at 30 CFR 931.16(d).

5. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or 
residential water supply,'' ``Material damage,'' ``Noncommercial 
building,'' ``Occupied residential dwelling and associated 
structures,'' and ``Replacement of water supply'' and CSMC Rules 80-1-
20-121, 124, 125, and 127, Performance Standards Concerning the 
Subsidence Information and Control Plan

    At 30 CFR 931.16(s), OSM required that New Mexico revise CSMC Rule 
80-1-20-124 to require that an operator (1) repair or compensate for 
subsidence-related material damage to structures and facilities, (2) 
correct, by restoring the land to the extent technologically and 
economically feasible, any material damage resulting from subsidence 
caused to surface lands, (3) require an operator to either repair or 
compensate the owner in full regardless of the extent of operator 
liability under State law for any subsidence-related damage occuring 
after October 24, 1992, to occupied residential dwellings, structures 
related thereto, and noncommercial buildings, and (4) remove the 
inconsistency with proposed CSMC Rule 80-1-9-39(c) with regard to 
limiting to the extent required under State law, an operator's 
obligation to remedy subsidence-related material damage to structures 
and facilities (finding No. 19, 58 FR 65907, 65922, December 17, 1993).
    In response to these required amendments, New Mexico proposed to 
delete its existing rules at CSMC Rule 80-1-20-121 and 124 and add 
rules that incorporate the definitions and

[[Page 26827]]

performance standards pertaining to the repair of subsidence-caused 
damages that were promulgated on March 31, 1995, in the Federal program 
at 30 CFR 701.5 and 817.121 (60 FR 16749).
    a. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or 
residential water supply,'' ``Material damage,'' ``Noncommercial 
building,'' ``Occupied residential dwelling and associated 
structures,'' and ``Replacement of water supply.'' New Mexico proposed 
to revise CSMC Rule 80-1-1-5 by adding definitions for ``Drinking, 
domestic, or residential water supply,'' ``Material damage,'' 
``Noncommercial building,'' ``Occupied residential dwelling and 
associated structures,'' and ``Replacement of water supply.'' These 
proposed definitions are substantively identical, with one exception, 
to the counterpart Federal definitions at 30 CFR 701.5.
    The exception concerns a reference to the performance standards 
pertaining to repair of subsidence-caused damages in the proposed 
definitions of ``Material damage'' and ``Occupied residential dwelling 
and structures related thereto.'' The Federal definitions of ``material 
damage'' and ``occupied residential dwelling and structures related 
thereto'' reference the Federal regulations at 30 CFR 780.20 and 
817.121. The New Mexico rules that correspond to the Federal 
regulations at 30 CFR 817.121 are proposed CSMC Rules 80-1-9-39 and 80-
1-20-121, 124, 125, and 127 (discussed below); however, New Mexico's 
proposed definitions of ``Material damage'' and ``Occupied residential 
dwelling and structures related thereto'' reference only New Mexico's 
CSMC Rules 80-1-9-39 and 80-1-20-124.
    The Director finds that, with the exception of the reference to the 
performance standards pertaining to repair or subsidence-caused damages 
at CSMC Rule 80-1-20-124 in the proposed definitions of ``Material 
damage'' and ``Occupied residential dwelling and structures related 
thereto,'' New Mexico's proposed definitions at CSMC 80-1-1-5 for 
``Drinking, domestic, or residential water supply,'' ``Material 
damage,'' ``Noncommercial building,'' ``Occupied residential dwelling 
and associated structures,'' and ``Replacement of water supply'' are no 
less effective than the corresponding Federal definitions at 30 CFR 
701.5. The Director approves these proposed definitions at CSMC 80-1-1-
5, but is adding a new requirement that New Mexico further revise the 
definitions of ``Material damage'' and ``Occupied residential dwelling 
and associated structures'' at CSMC 80-1-1-5 to include references to 
CSMC Rules 80-1-20-121, 125, and 127.
    b. CSMC Rules 80-1-20-121, 124, 125, and 127, Performance standards 
concerning the subsidence information and control plan. New Mexico 
proposed to add the following performance standards pertaining to 
subsidence that are, with one exception, substantively identical to the 
corresponding Federal regulations (in parentheses):

    CSMC Rules 80-1-20-121 (a) through (d) (30 CFR 817.121(a) (1)-
(3) and 817.121(b)), concerning general requirements for subsidence 
control;
    CSMC Rules 80-1-20-124 (a) through (d) (30 CFR 817.121(c)(1), 
817.41(j), and 817.121 (c)(2) and (c)(3)), concerning surface owner 
protection and restoration, replacement, repair, or compensation of 
subsidence-caused damages;
    CSMC Rules 80-1-20-125 (a) through (e) (30 CFR 817.121 (c)(4)(i) 
through (c)(4)(v)), concerning rebuttable presumption of causation 
by subsidence; and
    CSMC Rule 80-1-20-127 (30 CFR 817.121(c)(5)), concerning the 
requirement to adjust the bond amount for subsidence damage.

    The exception concerns New Mexico's proposed requirement at CSMC 
80-1-20-127 to adjust the bond amount when subsidence-related material 
damage occurs to land, structures or facilities protected under CSMC 
80-1-20-124(a) through (d). The Federal regulation at 30 CFR 
817.121(c)(5) requires adjustment of the bond amount when subsidence-
related material damage to land, structures or facilities, or when 
contamination, diminution, or interruption to a water supply occurs 
(emphasis added). Although New Mexico's proposed CSMC 80-1-20-127 
includes a reference to proposed CSMC 80-1-20-124(b) concerning 
replacement of water supplies, because the term ``material damage'' is 
not defined with respect to water supplies and it is not clear that the 
term ``facilities'' would include a water supply, New Mexico's proposed 
CSMC 80-1-20-127 does not clearly require adjustment of the bond amount 
when subsidence-related ``contamination, diminution, or interruption to 
a water supply'' occurs.
    Based on the above discussion, the Director finds that, with the 
exception of the lack of a clear requirement at proposed CSMC 80-1-20-
127 for adjustment of the bond amount when subsidence-related 
``contamination, diminution, or interruption to a water supply'' 
occurs, proposed CSMC Rules 80-1-20-121, 124, 125, and 127 are no less 
effective than the corresponding Federal regulations at 30 CFR 817.121 
(a) through (c) and satisfy the required amendment at 30 CFR 931.16(a). 
The Director approves proposed CSMC Rules 80-1-20-121, 124, 125, and 
127 and removes the required amendment at 30 CFR 931.16(s). However, 
the Director is adding a new requirement that New Mexico further revise 
proposed CSMC Rules 80-1-20-127 to clearly require adjustment of the 
bond amount when subsidence-related ``contamination, diminution, or 
interruption to a water supply'' occurs.

6. CSMC Rules 80-1-4-15(b)(1), Procedures for Initial Processing, 
Record-Keeping, and Notification Requirements Concerning Petitions to 
Designate Lands Unsuitable for Mining

    OSM required at 30 CFR 931.16(c) that New Mexico revise CSMC Rule 
80-1-4-15(b)(1) to require publication in the New Mexico State register 
of a public notice of receipt of a petition to designate lands 
unsuitable for mining (finding No. 4, 56 FR 67520, 67522, December 31, 
1991).
    New Mexico proposed to revise CSMC Rule 80-1-4-15(b)(1) by adding 
the requirement that the regulatory authority notify the general public 
of the receipt of such a petition in the New Mexico register of public 
notices. This proposed requirement is substantively identical to the 
requirement in the Federal regulation at 30 CFR 764.15(b)(1) and 
satisfies the requirement that New Mexico amend its program at 30 CFR 
931.16(c).
    Therefore, the Director finds that proposed CSMC Rule 80-1-4-
15(b)(1) is no less effective than the Federal regulation at 30 CFR 
764.15(b)(1), approves New Mexico's proposed CSMC Rule 80-1-4-15(b)(1), 
and removes the required amendment at 30 CFR 931.16(c).

7. CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11), 
Requirements for Ponds, Impoundments, and Banks, Dams, and Embankments 
that Meet or Exceed the Class B or C Criteria of Technical Release No. 
60 (210-VI-TR60, October 1985)

    At its own initiative, New Mexico proposed to revise its program to 
incorporate the requirements for permit applications and performance 
standards pertaining to design, construction, and inspection of ponds 
and impoundments, and banks, dams, and embankments that meet or exceed 
the Class B or C criteria of Technical Release No. 60 (210-VI-TR60, 
October 1985), i.e., the hazardous classification criteria published by 
the U.S. Department of Interior, National Resource Conservation Service 
(NRCS). These requirements were incorporated into the Federal program 
on October 20,

[[Page 26828]]

1994 (see 59 FR 53029). Because New Mexico intended to revise its 
program to be no less effective than the Federal program with respect 
to the hazardous classification criteria published by the NRCS, OSM has 
identified those existing provisions in the New Mexico program which 
were not proposed to be revised but which New Mexico must revise in 
order for the New Mexico program to be no less effective than the 
Federal program.
    a. CSMC Rule 80-1-9-25(a) (2) and (3), and 80-1-9-25(c), Contents 
of permit applications. New Mexico proposed to revise CSMC Rules 80-1-
9-25(a) (2) and (3) and 80-1-9-25(c), concerning the contents of permit 
applications, to incorporate requirements pertaining to ponds and 
impoundments, and banks, dams, and embankments that meet or exceed the 
Class B or C criteria of Technical Release No. 60 (210-VI-TR60, October 
1985). The proposed requirements are substantively identical to the 
requirements in the corresponding Federal regulations at 30 CFR 780.25 
(a)(2), (a)(3), and (c)(3). Therefore, the Director finds that New 
Mexico's program at CSMC Rule 80-1-9-25, with the exception of an 
existing rule that was not revised, is no less effective than the 
Federal program at 30 CFR 780.25 with respect to incorporation of the 
NRCS hazardous classification criteria.
    The exception concerns New Mexico's existing CSMC 80-1-9-25(e)(5), 
which New Mexico did not propose to revise to incorporate requirements 
pertaining to the NRCS hazardous classification criteria. The 
corresponding Federal regulation at 30 CFR 780.25(f) requires that, if 
the structure meets the Class B or C criteria for dams in TR-60 or 
meets the size or other criteria of 30 CFR 77.216(a), each plan 
required under 30 CFR 780.25(b), (c), and (e) must include a stability 
analysis of the structure and a description of each engineering design 
assumption and calculation with a discussion of each alternative 
considered in selecting the specific design parameters and construction 
methods.
    Therefore, the Director finds that existing CSMC 80-1-9-25(e)(5) is 
less effective than the revised Federal regulations at 30 CFR 780.25(f) 
with respect to requirements pertaining to those structures that meet 
the Class B or C criteria for dams in TR-60.
    Based on the discussion above, the Director approves proposed CSMC 
Rules 80-1-9-25(a) (2) and (3) and 80-1-9-25(c), but is adding a new 
requirement that New Mexico further revise existing CSMC 80-1-9-
25(e)(5) to incorporate the requirements pertaining to those structures 
that meet the Class B or C criteria for dams in TR-60.
    b. CSMC Rules 80-1-20-49(e) (1) through (11), Performance 
standards. New Mexico proposed to revise the introductory paragraph at 
CSMC Rule 80-1-20-49(e) to clarify that its requirements apply to all 
temporary or permanent impoundments at both surface and underground 
mining operations. In addition, New Mexico proposed to recodify CSMC 
Rules 80-1-20-49(e) (1) through (11) and to incorporate requirements 
concerning impoundments that meet or exceed the Class B or C criteria 
of Technical Release No. 60 (210-VI-TR60, October 1985).
    The requirements of New Mexico's CSMC Rule 80-1-20-49(e) (1) 
through (11), along with existing requirements at CSMC Rules 80-1-20-49 
(b), (c), (d), (f), and (g) are, with two exceptions discussed below, 
substantively identical to the requirements in the corresponding 
Federal regulations at 30 CFR 816.49(a) and 817.49(a).
    The first exception concerns New Mexico's existing CSMC Rules 80-1-
20-49(d), which pertains to construction certification, 80-1-20-
49(f)(2), which pertains to required design precipitation events, and 
80-1-20-49(g) (4) and (5), which pertain to inspection and construction 
certification. New Mexico did not propose to revise these rules to 
incorporate requirements pertaining to the NRCS hazardous 
classification criteria. The corresponding Federal regulations at 30 
CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv), and 816.49(12) and 
30 CFR 817.49(a)(9)(ii) (A) and (C), 817.49(a)(11)(iv), and 817.49(12) 
include requirements pertaining to structures that meet or exceed the 
Class B or C criteria for dams in TR-60.
    Therefore, the Director finds that proposed CSMC Rules 80-1-20-
49(e) (1) through (11) are no less effective than the Federal 
regulations at 30 CFR 816.49(a) and 817.49(a). However, the Director 
also finds that existing CSMC Rules 80-1-20-49(d), 80-1-20-49(f)(2), 
and 80-1-20-49(g) (4) and (5) are, with respect to requirements 
pertaining to those structures that meet or exceed the Class B or C 
criteria for dams in TR-60, less effective than the revised Federal 
regulations at 30 CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv), 
and 816.49(12) and 30 CFR 817.49(a)(9)(ii) (A) and (C), 
817.49(a)(11)(iv), and 817.49(12).
    The second exception in New Mexico's proposed CSMC 80-1-20-
49(e)(11) which requires barriers to control seepage. Proposed CSMC 80-
1-20-49(e)(11) has no Federal counterpart. However, this requirement is 
not inconsistent with the requirements of 30 CFR 816.49(a)(6), 
concerning foundation stability, and provides for additional 
protection.
    Based on the discussion above, the Director approves proposed CSMC 
Rules 80-1-20-49(e) (1) through (11), but is adding a new requirement 
that New Mexico further revise existing CSMS Rules 80-1-20-49(d), 80-1-
20-49(f)(2), and 80-1-20-(g) (4) and (5) to incorporate the 
requirements pertaining to those structures that meet or exceed and do 
not meet or exceed the Class B or C criteria for dams in TR-60.

8. CSMC Rule 80-1-9-39 (a), (b), and (c), Permit Application 
Requirements Concerning a Subsidence Information and Control Plan for 
Underground Mining Operations

    OSM required at 30 CFR 931.16 (f) and (g) that New Mexico revise, 
respectively, (1) its program to require that a permit application 
include a description of measures that an operator would use to 
mitigate or remedy subsidence-related material damage to the land and 
to occupied residential dwellings, structures related thereto, and 
noncommercial buildings where the damage resulted from underground 
mining operations conducted after October 23, 1992; and (2) CSMC Rule 
80-1-9-39(d) to remove from its program the exception allowed at 
paragraph (d)(2) from the requirements of CSMC Rule 80-1-9-39(d), 
concerning adoption of measures to prevent subsidence causing material 
damage to the extent technologically and economically feasible 
(findings Nos. 8. b and c, 58 FR 65907, 65912 and 65913, December 17, 
1993).
    New Mexico proposed to delete existing CSMC Rules 80-1-9-39(a) (1) 
through (5), (b) (1) through (3), and (c) (1) through (4), and add CSMC 
Rules 80-1-9-39 (a) (1) through (6), (b), and (c) (1) through (9), 
concerning permit application requirements for subsidence information 
and control plans.
    New Mexico's proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b), 
and (c) (1) through (9), are, with one exception, substantively 
identical to the corresponding Federal regulations at 30 CFR 780.24(a) 
(1) through (3) and (b) (1) through (9), and satisfy the required 
amendments at 30 CFR 931.16 (f) and (g). The exception concerns New 
Mexico's requirement at proposed CSMC Rule 80-1-9-39(a)(3), concerning 
the pre-subsidence survey, for a photo, prior to mining, of the 
exterior of each non-commercial building or occupied

[[Page 26829]]

residential dwelling and associated structures. The counterpart Federal 
regulation at 30 CFR 784.20(a)(3) does not require photographs as part 
of the survey. However, proposed CSMC Rule 80-1-9-39(a)(3) is not 
inconsistent with the Federal regulations and provides for additional 
documentation of the condition of existing structures that may be 
materially damaged or for which the reasonably foreseeable use maybe 
diminished by subsidence.
    Based on the above discussion, the Director finds that New Mexico's 
proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1) 
through (9), concerning permit application requirements for a 
subsidence information and control plan, are no less effective than the 
Federal regulations at 30 CFR 780.24(a) (1) through (3) and (b) (1) 
through (9). The Director approves proposed CSMC Rules 80-1-9-39(a) (1) 
through (6), (b), and (c) (1) through (9), and removes the required 
amendments at 30 CFR 931.16 (f) and (g).

9. CSMC Rule 80-1-11-17(c), Basis for Permit Denial

    OSM required at 30 CFR 931.16(h) that New Mexico revise CSMC Rule 
80-1-11-17(c) to require, as a basis of permit denial, that New Mexico 
(1) consider delinquent civil penalties issued pursuant to all the 
derivative State and Federal programs encompassed by the Federal phrase 
``section 518 of the Act,'' and (2) prohibit issuance of a permit if 
there exist uncorrected or unabated violations received by an applicant 
or other controlling entity pursuant to SMCRA, its implementing 
regulations, or any State or Federal law, rule or regulation enacted or 
promulgated pursuant to SMCRA (finding No. 9.b, 58 FR 65907, 65913, 
December 17, 1993).
    New Mexico proposed to revise CSMC Rule 80-1-11-17(c), concerning 
the basis for permit denial, to include requirements that are 
substantively identical to those in the Federal regulation at 30 CFR 
773.15(b)(1) and, in doing so, has satisfied the required amendment at 
30 CFR 931.16(h).
    Because New Mexico's proposed rule is substantively identical to 
the Federal regulation, the Director finds that proposed CSMC Rule 80-
1-11-17(c) is no less effective than the Federal regulation at 30 CFR 
773.15(b)(1). The Director approves proposed CSMC 80-1-11-17(c) and 
removes the required amendment at 30 CFR 931.16(h).

10. CSMC Rules 80-1-11-17(d) and 80-1-11-19(i), Review of Permit 
Applications and Criteria for Permit Approval or Denial

    OSM required at 30 CFR 931.16(i) that New Mexico revise CSMC Rules 
80-1-11-17(d) and 80-1-11-19(i) to require that the Director of the New 
Mexico program, when making a determination of whether a pattern of 
willful violations exists, consider violations received by an 
applicant, operator, or controlling entity pursuant to SMCRA, its 
implementing regulations, or any State or Federal law, rule or 
regulation enacted or promulgated pursuant to SMCRA (finding No. 9.c, 
58 FR 65907, 65914, December 7, 1993).
    New Mexico proposed to revise CSMC Rule 80-1-11-17(d) and 80-1-11-
19(i), concerning, respectively, New Mexico's (1) review of permit 
applications for a demonstrated pattern of willful violations, and (2) 
criteria for permit approval and denial pertaining to a demonstrated 
pattern of willful violations, to include the requirement that the 
Director of the New Mexico program consider violations received by an 
applicant, operator, or controlling entity pursuant to ``SMCRA.'' New 
Mexico proposed a definition of the term ``SMCRA'' at CSMC Rule 80-1-1-
5 to mean, in addition to the Federal act, its implementing regulations 
at 30 CFR Chapter VII, and any State or Federal law, rule, regulation, 
or program enacted or promulgated pursuant to it (see finding No. 4.c 
for a discussion of the Director's approval of the definition of 
``SMCRA'' proposed at CSMC Rule 80-1-1-5).
    New Mexico's use of the term ``SMCRA'' in proposed CSMC Rules 80-1-
11-17(d) and 80-1-11-19(i) is equivalent to the use, in the Federal 
regulations at 30 CFR 773.15(b)(3), of the phrase ``SMCRA, its 
implementing regulations, and any State or Federal law, rule or 
regulation enacted or promulgated pursuant to SMCRA'' and satisfies the 
required amendment at 30 CFR 931.16(i).
    Based upon the above discussion, the Director finds that proposed 
CSMC Rules 80-1-11-17(d) and 80-1-11-19(i) are consistent with and no 
less effective than the counterpart Federal regulations at 30 CFR 
773.15(b)(3), approves proposed CSMC Rules 80-1-11-17(d) and 80-1-11-
19(i), and removes the required amendment at 30 CFR 931.16(i).

11. CSMC Rules 80-1-11-20 (b)(1) and (b)(3), General Procedures 
Pertaining to Improvidently Issued Permits

    OSM required at 30 CFR 931.16(j) that New Mexico revise CSMC Rules 
80-1-11-20 (b)(1) and (b)(3) to reference CSMC Rule 80-1-11-
20(b)(1)(iii) instead of CSMC Rule 80-1-7-14 (finding No. 10.a, 58 FR 
65907, 65914, December 17, 1993).
    New Mexico proposed to revise CSMC Rules 80-1-11-20 (b)(1), 
(b)(1)(ii), and (b)(3), concerning review criteria for improvidently 
issued permits, to include requirements that are, with one exception, 
substantively identical to the Federal regulations at 30 CFR 
773.20(b)(1) (i) and (iii). In doing so, New Mexico deleted the 
language that necessitated the reference to CSMC Rule 80-1-11-
20(b)(1)(iii) and, thereby, satisfied the required amendment at 30 CFR 
931.16(j).
    The exception is that New Mexico proposed to delete, from CSMC Rule 
80-1-11-20(b)(1)(ii), a reference to the applicable violations review 
criteria in the preamble of the Federal regulations published at 54 CFR 
18438, 18440-18441. This reference identifies the applicable review 
criteria the Director of the New Mexico program is to use when 
determining what specific unabated violations, delinquent penalties and 
fees, and ownership and control relationship apply under this rule.
    The Federal regulations at 30 CFR 773.20(b)(1)(i) require that a 
regulatory authority shall find that a surface coal mining and 
reclamation permit was improvidently issued if, under the violations 
review criteria of the regulatory program at the time the permit was 
issued, the regulatory authority should not have issued the permit 
because of an unabated violation or a delinquent penalty or fee; or the 
permit was issued on the presumption that a notice of violation was in 
the process of being corrected to the satisfaction of the agency with 
jurisdiction over the violation, but a cessation order subsequently was 
issued.
    Because New Mexico proposed to delete from CSMC Rule 80-1-11-
20(b)(1)(ii) the reference to the applicable violations review 
criteria, New Mexico's program no longer identifies the review criteria 
that the Director of the New Mexico program would use to determine what 
specific unabated violations, delinquent penalties and fees, and 
ownership and control relationship applied at the time a permit was 
issued. To be no less effective than the Federal regulations at 30 CFR 
773.20(b)(1)(i), New Mexico

[[Page 26830]]

must review CSMC Rule 80-1-11-20(b)(1) to identify the applicable 
violations review criteria.
    Based on the above discussion, the Director finds that (1) New 
Mexico has satisfied the required amendment at 30 CFR 931.16(j), and 
(2) New Mexico's proposed CSMC Rules 80-1-11-20(b)(1), (b)(1)(ii), and 
(b)(3), with the exception of the proposed deletion the applicable 
violations review criteria at CSMC Rule 80-1-11-20(b)(1)(ii), are no 
less effective than the Federal regulations at 30 CFR 773.20(b)(1) (i) 
and (iii). The Director approves proposed CSMC Rules 80-1-11-20 (b)(1), 
(b)(1)(ii), and (b)(3) and removes the required amendment at 30 CFR 
931.16(j). However, the Director is adding a new requirement that New 
Mexico further revise CSMC Rule 80-1-11-20(b)(1) to identify the 
applicable violations review criteria that the Director of the New 
Mexico program would use to determine what specific unabated 
violations, delinquent penalties and fees, and ownership and control 
relationship applied at the time a permit was issued.

12. CSMC Rule 80-1-11-29(d) Conditions of Permits

    OSM required at 30 CFR 931.16(k) that New Mexico revise CSMC Rule 
80-1-11-29(d) to require the permittee to update the ownership and 
control information when a Federal cessation order has been issued in 
accordance with 30 CFR 843.11, or, if there has been no change in the 
required information, to so notify the Director (finding No. 11, 58 FR 
65907, 65915, December 17, 1993).
    New Mexico proposed to revise CSMC Rule 80-1-11-29(d) to require 
that a permittee submit information concerning, among other things, ``a 
Federal cessation order issued in accordance with 30 CFR 843.11.'' 
Existing CSMC Rule 80-1-11-29(d)(3) requires that the permittee notify 
New Mexico in writing if there has been no change in previously 
submitted information.
    Therefore, the Director finds that proposed CSMC Rule 80-1-11-29(d) 
is no less effective than the Federal regulation at 30 CFR 773.17(i) 
and satisfies the required amendment at 30 CFR 931.16(k). The Director 
approves CSMC Rule 80-1-11-29(d) and removes the required amendment at 
30 CFR 931.16(k).

13. CSMC Rule 80-1-19-15(c) Performance Standards for Coal Exploration

    OSM required at 30 CFR 931.16(l) that New Mexico revise CSMC Rule 
80-1-19-15(c) to require that ``other transportation facilities'' used 
for coal exploration activities meet the requirements of CSMC Rules 80-
1-20-150 (b) through (g) and 80-1-20-181 (a) and (b) (finding No. 12, 
58 FR 65907, 65916, December 17, 1993).
    New Mexico proposed to revise CSMC Rules 80-1-19-15 (c)(2), (c)(3), 
and (c)(3)(iii), concerning performance standards applicable to coal 
exploration, to apply these rules to other transportation facilities as 
well as to new and existing roads and to require that new and 
significantly altered existing roads or other transportation facilities 
comply with the provisions of CSMC Rules 80-1-20-150 (b) through (f) 
and 80-1-20-180 and 181. In addition, New Mexico proposed to further 
revise CSMC Rule 80-1-19-15(c)(4) to clarify that (1) any road or 
facility that will be retained permanently must comply with the 
applicable provisions of CSMC Rules 80-1-20-150, 151, 20-180, and 20-
182 and (2) if a road or facility will not be retained it must be 
immediately reclaimed.
    The Federal regulations at 30 CFR 815.15(b) require that all roads 
or other transportation facilities used for coal exploration shall 
comply with the applicable provisions of 30 CFR 816.150 (b) through 
(f), 816.180, and 816.181.
    The Director finds that proposed CSMC Rules 80-1-19-15 (c)(2), 
(c)(3), (c)(iii), and (c)(4) are no less effective than the Federal 
regulations at 30 CFR 815.15(b) and satisfy the required amendment at 
30 CFR 931.16(l). The Director approves proposed CSMC Rules 80-1-19-15 
(c)(2), (c)(3), (c)(iii), and (c)(4) and removes the required amendment 
at 30 CFR 931.16(1).

14. CSMC Rule 80-1-20-93(a)(1)  Performance Standard Pertaining to the 
Design and Construction of Dams and Embankments Constructed of or 
Intended to Impound Coal Processing Waste

    At its own initiative, New Mexico proposed to revise CSMC 80-1-20-
93(a)(1) to delete the requirement that the design freeboard must be at 
least 3 feet and to require, for the design of each dam and embankment 
constructed of or intended to impound coal processing waste, that the 
maximum water elevation shall be that determined by the freeboard 
hydrograph criteria contained in the NRCS hazardous classification 
criteria referenced in CSMC Rule 80-1-20-49.
    The corresponding Federal regulations concerning the design of each 
dam and embankment constructed of coal processing waste or intended to 
impound such waste are at 30 CFR 816.84(b)(1) and 817.64(b)(1). These 
Federal regulations reference the requirements at 30 CFR 816.49(a) and 
817.49(a) for determination of the maximum water elevation. As 
discussed in finding No. 7 above, OSM revised the Federal program at 30 
CFR 816.49(a) and 817.49(a) to include new requirements for 
impoundments that meet or exceed the NRCS hazardous classification 
criteria. Specifically, the Federal regulations at 30 CFR 816.49(a)(5) 
and 817.49(a)(5) include the requirement that freeboard design for 
impoundments that meet the Class B or C criteria for dams in NRCS 
Technical Release No. 60 (TR-60; 210-VI-TR60, Oct. 1985), shall comply 
with the freeboard hydrograph criteria in the ``Minimum Emergency 
Spillway Hydrologic Criteria'' table in TR-60. In this amendment, also 
discussed in finding No. 7.b above, New Mexico proposed to revise CSMC 
Rule 80-1-20-49(e) to include NRCS hazardous classification criteria 
that are no less effective than those in the Federal regulations. 
Specifically, New Mexico proposed to revise CSMC Rules 80-1-20-49(e)(4) 
to incorporated requirements concerning freeboard design for 
impoundments meeting the NRCS hazardous classification criteria.
    Because proposed CSMC 80-1-20-93(a)(1) requires, by reference to 
CSMC 80-1-20-49, that the maximum water elevation be that determined by 
the freeboard hydrograph criteria in the ``Minimum Emergency Spillway 
Hydrologic Criteria'' table, proposed CSMC 80-1-20-93(a)(1) is no less 
effective than the Federal regulations at 30 CFR 816.84(b)(1) and 
817.64(b)(1). The Director approves proposed CSMC 80-1-20-93(a)(1); 
however, OSM recommends, for clarity, the New Mexico further revise 
proposed CSMC 80-1-20-93(a)(1) to reference the requirements at CSMC 
80-1-20-49(e)(4) rather than CSMC 80-1-20-49.

15. CSMC Rules 80-1-20-97 (b) and (c), Protection of Fish, Wildlife, 
and Related Environmental Values

    OSM required at 30 CFR 931.16(a) that New Mexico revise its program 
to require protection of threatened and endangered species from 
underground mining activities (finding No. 4, 55 FR 48837, 48839, 
November 23, 1990).
    New Mexico proposed to revise CSMC Rules 80-1-20-97 (b) and (c) to 
prohibit operators from conducting ``surface coal mining operations or 
reclamation'' that are likely to jeopardize the continued existence of 
endangered or threatened species and their habitats, including bald and 
golden eagles, their nests and

[[Page 26831]]

eggs. New Mexico also proposed to extend the prohibition to threatened 
and endangered species listed by the ``New Mexico Energy, Minerals and 
Natural Resources and Game and Fish Department'' in addition to those 
listed by the Secretary of the U.S. Department of the Interior.
    The corresponding Federal regulations at 30 CFR 816.97 (b) and (c) 
and 817.97 (b) and (c) prohibit operators from conducting, 
respectively, ``surface mining activities'' or ``underground mining 
activities'' that are likely to jeopardize the continued existence of 
endangered or threatened species listed by the Secretary of the 
Interior and their habitats, including bald and golden eagles, their 
nests and eggs.
    At existing CSMC Rule 80-1-1-5, New Mexico defines (1) 
``Reclamation'' to mean

those actions taken to restore mined land as required by the Act and 
these rules and regulations to a postmining land use approved by the 
Director

and (2) ``Surface coal mining operations'' to mean

(a) activities conducted on the surface lands in connection with a 
surface coal mine or, subject to the requirements of Section 69-25A-
20 NMSA 1978 of the Act, surface operations and surface impacts 
incident to an underground coal mine, the products of which enter 
commerce or the operations of which directly or indirectly affect 
interstate commerce.

    Therefore, New Mexico's use, at proposed CSMC Rules 80-1-20-97 (b) 
and (c), of the phrase ``surface coal mining operations or 
reclamation'' includes ``surface operations and surface impacts 
incident to an underground coal mine'' and satisfies the required 
amendment at 30 CFR 931.16(a).
    The corresponding Federal regulations at 30 CFR 816.97(b) and 
817.97(b) also require protection of species listed by the Secretary, 
but do not prohibit the protection of other species. Therefore, New 
Mexico's proposed inclusion of additional species at CSMC Rules 80-1-
20-97 (b) and (c), while not required, is not inconsistent with the 
Federal requirements.
    Based on the above discussion, the Director finds that proposed 
CSMC Rules 80-1-20-97 (b) and (c) are consistent with and no less 
effective than the Federal regulations at 30 CFR 816.97 (b) and (c) and 
817.97 (b) and (c), approves proposed CSMC Rules 80-1-20-97 (b) and 
(c), and removes the required amendment at 30 CFR 931.16(a).

16. CSMC Rule 80-1-20-116(b)(1), Period of Extended Responsibility

    OSM required at 30 CFR 931.16(n)(2) that New Mexico revise CSMC 
Rule 80-1-20-116(b)(1) to require that the period of extended 
responsibility begin after the last year of augmented seeding, 
fertilizing, irrigation, or other work (finding No. 16.b, 58 FR 65907, 
65919, December 17, 1993).
    New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (1) to (1) 
delete the allowance for supplemental fertilization and interseeding in 
order to establish species diversity to occur without disrupting the 
liability period and (2) require that the extended liability period 
begin after the last year of augmented seeding, fertilizing, 
irrigation, or other work, excluding husbandry practices that are 
approved by the Director in accordance with CSMC Rule 80-1-20-
116(b)(6).
    The Federal regulations at 30 CFR 816.116(c)(1) provide that the 
period of extended responsibility for successful revegetation shall 
begin after the last year of augmented seeding, fertilizing, 
irrigation, or other work, excluding husbandry practices that are 
approved by the regulatory authority in accordance with 30 CFR with 30 
CFR 816.116(c)(4).
    The Director finds that the proposed revisions at CSMC Rule 80-1-
20-116(b)(1), concerning the beginning of the bond liability period, 
(1) are substantively identical to and, therefore, no less effective 
than the Federal regulations at 30 CFR 816.116(c) (1), and (2) satisfy 
the required amendment at 30 CFR 931.16(n)(2). (Please note that the 
existing provision at CSMC Rule 80-1-20-116(b)(1), concerning 
revegetation success standards for ground cover and productivity, which 
allows for standards other than those developed by use of a reference 
area to be approved by the Director of the New Mexico program, is 
subject to an outstanding required amendment at 30 CFR 931.16(n)(1).)
    Based on the above discussion, the Director approves the proposed 
revisions at CSMC Rule 80-1-20-116(b)(1), concerning the beginning of 
the bond liability period, and removes the required amendment at 30 CFR 
931.16(n)(2).

17. CSMC 80-1-20-116(b) (1) Through (5), Revegetation Success Standards

    At its own initiative, New Mexico proposed to revise CSMC 80-1-20-
116(b)(1) (i) and (ii), (b)(2), and (b)(3) by recodifying these rules 
as CSMC 80-1-20-116 (b)(2) through (b)(5) and proposing nonsubstantive 
editorial revisions at CSMC 80-1-20-116(b) (2) and (3). In addition, 
New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (5) to (1) 
delete the allowance for 80 percent statistical confidence to 
demonstrate success of shrubland when compared to reference areas, and 
(2) allow shrubland stocking, in addition to ground cover and 
production, to be considered successful when they are at least 90 
percent of the standards developed for historical records under CSMC 
Rule 8-1-20-116(a).
    The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
require, among other things, that ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard and that the 
sampling techniques for measuring success shall use a 90-percent 
statistical confidence interval (i.e., one-sided test with a 0.10 alpha 
error).
    Therefore, the Director finds that, because New Mexico's proposed 
CSMC Rule 80-1-20-116(b)(5) now requires success of ground cover and 
productivity of all revegetation to be measured with 90 percent 
statistical confidence in order to be considered successful, proposed 
CSMC Rule 80-1-20-116(b)(5) is no less effective than the Federal 
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The Director 
approves the (1) recodification and nonsubstantive editorial revisions 
at CSMC 80-1-20-116 (b)(2) through (b)(4), and (2) proposed revisions 
at CSMC Rule 80-1-20-116(b)(5).

18. CSMC 80-1-20-116(b)(6), Normal Husbandry Practices

    At its own initiative, New Mexico proposed a new CSMC Rule 80-1-20-
116(b)(6) that allows the Director of the New Mexico program to approve 
selective husbandry practices without extending the period of 
responsibility for revegetation success or bond liability, and 
identifies husbandry practices as those activities that can be expected 
to continue as part of the post mining land use, and are employed 
within the region for unmined lands having land uses similar to the 
approved postmining land use of the disturbed area, to control disease, 
pest and vermin and appropriate pruning, reseeding, and transplanting 
activities. Proposed CSMC Rule 80-1-20-116(b)(6) also provides that 
husbandry practices may be allowed if they will not reduce the 
probability of permanent revegetative success if they are discontinued 
after the liability period expires and states that any practice the 
Director determines to be augmented

[[Page 26832]]

seeding, fertilization or irrigation shall not be considered a 
husbandry practice.
    The Federal regulations at 30 CFR 816.116(c)(4) provide that the 
regulatory authority may approve selective husbandry practices, 
excluding augmented seeding, fertilization, or irrigation, provided it 
obtains prior approval from the Director of OSM, in accordance with 30 
CFR 732.17, that the practices are normal husbandry practices, without 
extending the period of responsibility for revegetation success and 
bond liability, if such practices can be expected to continue as part 
of the postmining land use or if discontinuance of the practices after 
the liability period expires will not reduce the probability of 
permanent revegetation success. Approved practices shall be normal 
husbandry practices within the region for unmined lands having land 
uses similar to the approved postmining land use of the disturbed area, 
including such practices as disease, pest, and vermin control; and any 
pruning, reseeding, and transplanting specifically necessitated by such 
actions.
    New Mexico's proposed CSMC Rule 80-1-20-116(b)(6) mimics the 
language in the Federal regulations, but does not actually identify 
husbandry practices. It only states that the Director of the New Mexico 
program may approve selective husbandry practices that would not extend 
the period of responsibility for revegetation success or bond liability 
and describes the nature of husbandry practices. The Federal 
regulations at 30 CFR 816.116(c)(4) require that the regulatory 
authority obtain prior approval, that the selected practices are normal 
husbandry practices, from OSM in accordance with 30 CFR 732.17 (i.e., 
the state program approval process).
    Based on the above discussion, the Director finds that proposed 
CSMC Rule 80-1-20-116(b)(6) is less effective than the Federal 
regulations at 30 CFR 816.116(c)(4). With the exception of the 
allowance for the Director of the New Mexico program to approve 
husbandry practices that have not received approval from OSM in 
accordance with 30 CFR 732.17, the Director approves proposed CSMC Rule 
80-1-20-116(b)(6).
    However, the Director is also adding a new requirement that New 
Mexico revise CSMC Rule 80-1-20-116(b)(6) to either (1) identify 
selected husbandry practices and submit them with documentation 
verifying that the proposed practices would be considered normal in the 
areas being mined or (2) state that selected husbandry practices 
approved by the Director may not be implemented prior to approval from 
OSM in accordance with the State program amendment process at 30 CFR 
772.17.

19. CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2), 
and 117(d)(3)(i), Performance Standards for the Revegetation of Trees 
and Shrubs

    In response to required program amendments at 30 CFR 931.16 (p), 
(q), and (4), New Mexico proposed revisions at CSMC Rules 80-1-20-117, 
117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i), 
concerning performance standards for the revegetation of trees and 
shrubs. At its own initiative, New Mexico also proposed revisions at 
CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical sampling 
techniques (finding Nos. 17.a, 17.c.i, and 17.c.ii, 58 FR 65907, 65920, 
and 65921, December 17, 1993).
    Based on the discussion in paragraphs 19.a through 19.d below, the 
Director approves proposed CSMC Rules 80-1-20-117, 117(c)(1), 
117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i), and removes the 
required amendment at 30 CFR 931.16 (p), (q), and (r).
    a. CSMC Rule 80-1-20-117, Performance standards for tree and shrub 
stocking and utility of the trees and shrubs for the approved 
postmining land use. OSM required at 30 CFR 931.16(p) that New Mexico 
revise CSMC Rule 80-1-20-117(a) and (b) to (1) provide revegetation 
success standards for lands developed as fish or wildlife habitat, 
recreation areas, or shelterbelts, and (2) require that the trees and 
shrubs used in determining stocking success and adequacy of plant 
arrangement shall have utility for the approved postmining land use.
    In response to the required amendment at 30 CFR 931.16(p), New 
Mexico proposed to revise CSMC Rule 80-1-20-117 to (1) apply its tree 
and shrub stocking requirements to reclaimed land developed for use as 
fish and wildlife habitat, recreation, shelterbelts, or forestry and 
(2) require that trees and shrubs used in determining the success of 
stocking and the adequacy of plant arrangement shall have utility for 
the approved postmining land use.
    The Director finds that proposed CSMC Rule 80-1-20-117 satisfies 
the required amendment at 30 CFR 931.16(p) and is no less effective 
than the Federal regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).
    b. CMSC 80-1-20-117(c)(1), (3), and (4), Performance standards for 
stocking of trees and shrubs where commercial forest land is the 
approved postmining land use. OSM required at 30 CFR 931.16(q) that New 
Mexico revise CSMC Rule 80-1-20-117(c) to (1) clarify whether the 
stocking rate for commercial forest land will be determined by the 
State Forester on a permit-specific or program-wide basis, (2) 
reference the correct rules for determining the number of trees, 
shrubs, and ground-cover plants on commercial forest land, and (3) 
reference CSMC Rule 80-1-20-117(d)(2) for the appropriate bond release 
success standards for stocking and ground cover.
    In response to the required amendment at 30 CFR 931.16(q)(1), New 
Mexico proposed to revise CSMC 80-1-20-117(c)(1) to require that the 
minimum stocking of trees or shrubs will be determined by the State 
Forester on a permit-specific basis (emphasis added). In response to 
the required amendment at 30 CFR 931.16(q)(2), New Mexico proposed to 
revise CSMC Rule 80-1-20-117(c)(3), concerning success standards for 
areas where commercial forest land is the approved postmining land use, 
to (1) reference CSMC Rules 80-1-20-116(b)(5)(iv) and 20-117(b) for the 
approved sampling methods, and (2) delete a provision specific to tree 
and shrub stocking for the beginning of the extended liability period. 
In response to the required amendment at 30 CFR 931.16(q)(3), New 
Mexico proposed to revise CSMC 80-1-20-117(c)(4) to reference CSMC 
Rules 80-1-20-116 and 80-1-20-117 for the requirements pertaining to 
the demonstration required, upon request for final bond release, to 
show success of tree and shrub stocking and ground cover.
    The Director finds that New Mexico's proposed CSMC Rules 80-1-20-
117(c) (1), (3), and (4) satisfy the requirements of 30 CFR 931.16(q) 
(1), (2), and (3), and are no less effective than the Federal 
regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).
    c. CSMC Rules 80-1-20-117(d)(2) and (d)(3)(i), Performance 
standards for tree and shrub stocking concerning sampling techniques, 
revegetation success standards, and the extended period of 
responsibility for revegetation success. OSM required at 30 CFR 
931.16(r) that New Mexico revise CSMC Rule 80-1-20-117 (d) to (1) 
provide at CSMC Rule 80-1-20-117 (d)(2) and (d)(3)(i) the correct 
references to rules pertaining to revegetation success standards and 
the extended period of responsibility for revegetation success, and (2) 
require at CSMC Rule 80-1-20-117(d)(3)(i) that the sampling techniques 
for measuring revegegation success shall use a 90-percent statistical 
confidence interval.
    In response to the required amendment at 30 CFR 931.16(r)(1), New 
Mexico proposed to revise CSMC Rules

[[Page 26833]]

80-1-20-117(d)(2), concerning success standards for areas where woody 
plants are used for wildlife management, recreation, shelter belts, or 
forest uses other than commercial forest land, to (1) reference CSMC 
Rules 80-1-20-116(b)(5)(iv) and 80-1-20-117(d)(1) for the revegetation 
success standards for stocking of trees, half-shrubs, shrubs, and 
ground cover, and (2) delete a provision specific to tree and shrub 
stocking for the beginning of the extended liability period.
    In response to the required amendments at 30 CFR 931.16(r) (1) and 
(2), New Mexico proposed to revise CSMC Rule 80-1-20-117(d)(3)(i) to 
require that, upon expiration of the 5 or 10 year responsibility period 
and at the time of request for bond release, vegetated woody plants 
must be equal to or greater than 90 percent of the stocking of live 
woody plants of the same life form ascertained pursuant to CSMC Rule 
80-1-20-117(b) with 90 percent statistical confidence.
    The Director finds that New Mexico's proposed revisions of (1) CSMC 
Rules 80-1-20-117 (d)(2) and (d)(3)(i), concerning referenced rules for 
revegetation success standards, and (2) CSMC Rule 80-1-20-117(d)(3)(i), 
concerning the requirement that the sampling techniques for measuring 
revegetation success shall use a 90-percent statistical confidence 
interval, satisfy the required amendments at 30 CFR 931.16(r) (1) and 
(2) and are no less effective than the Federal regulations at 30 CFR 
816.116 (a)(2) and (b)(3) and 817.116 (a)(2) and (b)(3).
    d. CSMC Rule 80-1-20-117(d)(3)(i), Performance standards concerning 
the statistical techniques for measuring success of tree and shrub 
stocking. At its own initiative, New Mexico proposed a revision at CSMC 
80-1-20-117(d)(3)(i) to require that statistical techniques for 
measuring success use appropriate parametric or nonparametric one-tail 
test with a 90-percent confidence interval and a 10-percent alpha 
error.
    The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2) 
require, among other things, that ground cover, production, or stocking 
shall be considered equal to the approved success standard when they 
are not less than 90 percent of the success standard and that the 
sampling techniques for measuring success shall use a 90-percent 
statistical confidence interval (i.e., one-sided test with a 0.10 alpha 
error).
    With one exception, New Mexico's proposed CSMC Rule 80-1-20-
117(d)(3)(i), concerning statistical sampling techniques, is 
substantively identical to these requirements in the Federal 
regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The exception is 
that New Mexico cites as appropriate statistical tests either 
parametric or nonparametric tests and indicates that both would be 
tests that are one-tailed with a 90-percent confidence interval and a 
10-percent alpha error. Nonparametrically distributed populations exist 
when the parameters being measured are not normally distributed 
throughout the area being sampled, e.g., in the arid west when the 
vegetation cover approaches zero and where shrubs are planted and occur 
with irregularity throughout the reclaimed area. A test for a 
nonparametrically distributed population can be found to be 90% 
confident with a one-tailed test with a .1% alpha error, just as can a 
test for parametrically distributed populations.
    Therefore, based on the above discussion, the Director finds that 
proposed CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical 
sampling techniques, is no less effective than the Federal regulations 
at 30 CFR 816.116(a)(2) and 817.116(a)(2).

20. CSMC Rule 80-1-20-150(c), Prohibition of Vehicular Fords or Low 
Water Crossings by Ancillary Roads

    At its own initiative, New Mexico proposed to delete CSMC Rule 80-
1-20-150(c) which prohibits vehicular use of fords or low water 
crossings by ancillary roads at any time there is a visible surface 
flow.
    The Federal regulations at 30 CFR 816.151(c)(2) and 817.151(c)(2) 
prohibit fords of perennial and intermittent streams by primary roads. 
However, there is no similar prohibition in the general requirements 
for all roads in the Federal regulations at 30 CFR 816.150(b) (2) and 
(3) and 817.150(b) (2) and (3), which correspond to New Mexico's CSMC 
Rule 80-1-20-150.
    Therefore, the Director finds that New Mexico's proposed deletion 
of CSMC Rule 80-1-20-150(c), concerning the prohibition pertaining to 
fords by ancillary roads, does not cause CSMC Rule 80-1-20-150 to be 
inconsistent with nor less effective than the general requirements for 
all roads in the Federal regulations at 30 CFR 816.150(b) (2) and (3) 
and 817.150(b) s(2) and (3). The Director approves the proposed 
deletion of CSMC Rule 80-1-20-150(c).

IV. Summary and Disposition of Comments

    Following are summaries of all substantive 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 U.S. Army Corps of Engineers responded on February 27, 1996, 
that the proposed revisions were satisfactory (administrative record 
No. NM-769).
    The U.S. Bureau of Land Management (BLM) responded on March 4, 
1996, with the following comments (administrative record No. NM-771).
    BLM questioned the appropriateness of New Mexico's proposed 
definitions at CSMC 80-1-1-5 for (1) ``Occupied residential dwelling 
and associated structures,''commenting that by providing for fenced in 
areas to count as part of a dwelling, it would allow large tracts to be 
excluded from mining consideration, (2) ``Ownership or control link,'' 
commenting that, by using the phrase ``owns and controls,'' the 
reasoning if circular, and (3) ``Replacement of water supply,'' 
commenting that it is not a pure definition because procedure and 
definition are mixed together. Because, as discussed in finding Nos. 2 
and 5.a, these definitions proposed by New Mexico are, with one 
exception concerning a reference to other New Mexico rules in 
``Occupied residential dwelling and associated structures,'' 
substantively identical to the same Federal definitions at 30 CFR 701.5 
and 773.5, the Director is not requiring that New Mexico further revise 
its rules in response to these comments. However, nothing in New 
Mexico's proposed definition of ``Occupied residential dwelling and 
associated structures,'' nor in the same Federal definition, excludes 
areas from mining. The term is defined in order that compensation may 
be provided if damage to such a structure occurs after October 24, 
1992, that is, under certain conditions, a result of subsidence due to 
underground mining operations.
    BLM commented that proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3), 
concerning permit application requirements for ponds and impoundments, 
are incomplete statements. New Mexico's proposed amendment contained 
only the language that was proposed for revision and did not include 
language in the approved New Mexico program that was not being revised. 
Therefore, the commenter did

[[Page 26834]]

not see the subparagraphs that exist in New Mexico which complete the 
statements at proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3). Because 
complete statements exist in the New Mexico program, the Director is 
not requiring that New Mexico further revise its rules in response to 
this comment.
    BLM commented that proposed CSMC Rule 80-1-9-25(c)(3), concerning 
permit application requirements for subsidence information and control 
plans, should require that photos be taken of all sides of occupied 
building, and buildings of considerable value, and that a foundation 
inspection should be done on such buildings as part of the survey of 
conditions. Proposed CSMC Rule 80-1-9-39(c)(3) does require a photo, 
taken prior to mining, of the exterior of all non-commercial buildings 
or occupied residential dwellings and associated structures that are 
within the area encompassed by the applicable angle of draw. Proposed 
CSMC Rule 80-1-9-39(c)(3) is substantially identical to the counterpart 
Federal regulation at 30 CFR 784.20(a)(3), with the exception that it 
requires a photo of the buildings prior to mining as part of a 
presubsidence survey. Therefore, because New Mexico's proposed 
requirement for a photo already provides for additional information not 
specified in the Federal program, the Director is not requiring that 
New Mexico further revise proposed CSMC Rule 80-1-9-39(c)(3) in 
response to this comment. However, nothing in the proposed rule would 
prevent the applicant from documenting the condition of the buildings 
to the extent recommended by the commenter.
    BLM commented that proposed CSMC Rules 80-1-11-33 and 34, 
concerning procedures and standards for challenging ownership and 
control links, are detailed procedures and standards and should be 
covered in an internal document. As discussed in finding No. 2, these 
proposed rules are substantively identical to the requirements in the 
Federal regulations at 30 CFR 773.24 (a) through (d) and 773.25 (a) 
through (d). With these proposed rules, New Mexico's approved program 
is no less effective than the Federal program. Therefore, the Director 
is not requiring that New Mexico further revise its program in response 
to this comment.
    BLM commented that at (proposed performance standards for ponds and 
impoundments) (1) CSMC Rule 80-1-20-49(e)(4), the size of the storm 
event that the impoundment is expected to weather without overtopping 
should be specified, (2) CSMC Rule 80-1-20-49(e)(8), protection against 
sudden drawdown does not make sense because sudden drawdown is a 
subsurface phenomenon which would not occur as a result of sheet 
erosion, and (3) CSMC Rule 80-1-20-49(e)(10), it is unclear whether the 
rule referred to submerged highwalls in a pit left flooded after 
reclamation.
    These New Mexico proposed rules are substantively identical to the 
respective counterpart Federal regulations at 30 CFR 816.19(a)(5) and 
817.49(a)(5), 816.49(a)(7) and 817.49(a)(7), and 816.49(a)(10) and 
817.49(a)(10). In response to the comment concerning proposed CSMC Rule 
80-1-20-49(e)(4), the Director notes that the design storm event is 
specified within the referenced ``Minimum Emergency Spillway Hydrologic 
Criteria'' table in TR-60. In response to the comment concerning 
proposed CSMC Rule 80-1-20-49(e)(8), the rule requires protection 
(e.g., by rip rap, fabric, or vegetation) of the pond or impoundment 
inslope against sudden drawdown, which could occur as a result of 
pumping or other rapid release of water. In addition, the rule requires 
outslope protection that could occur as a result of surface sheet 
erosion. In response to the comment concerning proposed CSMC Rule 80-1-
20-49(e)(10), the Director notes that the rule does refer to a 
permanent impoundment which is created by a portion of a pit approved 
to be left in the reclaimed environment in support of the approved 
postmining land use. Because New Mexico's proposed rules are 
substantively identical to the counterpart Federal regulations, the 
Director is not requiring that New Mexico further revise its rules in 
response to these comments.

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 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-768. It 
responded on February 27, 1996, that it had no comments (administrative 
record No. NM-770).

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 ACHP (administrative record No. 
NM-768). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with one 
exception and certain additional requirements, New Mexico's proposed 
amendment as submitted on January 22, 1996.
    The Director approves, as discussed in finding No. 1, 
nonsubstantive editorial revisions at: CSMC Rule 80-1-11-22(d), 
concerning remedial measures for improvidently issued permits; CSMC 
Rule 80-1-20-41(e)(3)(i), concerning general performance standard 
requirements for protection of the hydrologic balance; CSMC Rule 80-1-
20-82(a)(4), concerning inspections of coal processing waste banks; and 
CSMC Rule 80-1-20-89(d)(2), concerning disposal of noncoal wastes.
    The Director approves, as discussed in finding No. 2, concerning 
rules that are substantively identical to the corresponding Federal 
regulations at: CSMC Rule 80-1-1-5, the definitions of ``Applicant/
violator system or AVS,'' ``Federal violation notice,'' ``Ownership or 
control link,'' ``State violation notice,'' ``Violation notice,'' 
``OSM,'' and ``Road;'' CSMC Rules 80-1-11-20(c) (1) and (2) and (e), 
concerning general procedures for improvidently issued permits; CSMC 
80-1-11-24(a) and [deletion of] (c), concerning rescission procedures 
for improvidently issued permits; CSMC Rule 80-1-11-31 (a) through (d), 
concerning verification of ownership or control application 
information; CSMC Rule 80-1-11-32 (a) through (c), concerning review of 
ownership or control and violation information; CSMC Rule 80-1-11-33 
(a) through (d), concerning procedures for challenging ownership or 
control links shown in AVS; and CSMC Rule 80-1-11-34 (a) through (d), 
concerning standards for challenging ownership or control links and the 
status of violations;
    The Director approves, as discussed in: finding No. 3, CSMC Rule 
80-1-1-5, concerning the definition of ``Qualified laboratory;'' 
finding No. 5.a, CSMC Rule 80-1-1-5, concerning definitions for 
``Drinking, domestic, or residential water supply,'' ``Noncommercial 
building,'' and ``Replacement of water supply;'' finding No. 14, CSMC 
Rule 80-1-20-93(a)(1),

[[Page 26835]]

concerning performance standard pertaining to the design and 
construction of dams and embankments constructed of or intended to 
impound coal processing waste; and finding No. 20, deletion of CSMC 
Rule 80-1-20-150(c), concerning the prohibition pertaining to vehicular 
use of fords or low water crossings by ancillary roads at any time 
there is a visible surface flow.
    The Director removes existing required amendments and approves, as 
discussed in: finding No. 4, CSMC Rule 80-1-1-5, concerning the 
definition of ``SMCRA'' and CSMC Rules 80-1-7-14(c) (1) through (5), 
concerning compliance information required in permit applications; 
finding No. 6, CSMC Rule 80-1-4-15(b)(1), concerning procedures for 
initial processing, record-keeping, and notification requirements 
concerning petitions to designate lands unsuitable for mining; finding 
No. 8, CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1) 
through (9), concerning permit application requirements for subsidence 
information and control plans; finding No. 9, CSMC Rule 80-1-11-17(c), 
concerning the basis for permit denial; finding No. 10, CSMC Rules 80-
1-11-17(d) and 80-1-11-19(i), concerning, respectively, review of 
permit applications for a demonstrated pattern of willful violations, 
and criteria for permit approval and denial pertaining to a 
demonstrated pattern of willful violations; finding No. 12, CSMC Rule 
80-1-29(d), concerning conditions of permits; finding No. 13, CSMC 
Rules 80-1-19-15 (c)(2), (c)(3), (c)(3)(iii), and (c)(4), concerning 
performance standards applicable to coal exploration; finding No. 15, 
CSMC Rules 80-1-20-97 (b) and (c), concerning protection of fish, 
wildlife, and related environmental values; finding No. 16, CSMC Rule 
80-1-20-116(b)(1), concerning the period of extended liability for 
demonstration of revegetation success; finding No. 17, CSMC Rule 80-1-
20-116(b)(1) through (b)(5), concerning revegetation success standards; 
and finding No. 19, CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3), 
117(c)(4), 117(d)(2), and 117(d)(3)(i), concerning performance 
standards for revegetation success pertaining to trees and shrubs.
    With the requirement that New Mexico further revise its rules, the 
Director approves, as discussed in: finding No. 5.a, CSMC Rule 80-1-1-
5, concerning definitions for ``Material damage'' and ``Occupied 
residential dwelling and structures related thereto;'' and finding No. 
7, CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11), 
concerning requirements for ponds, impoundments, and banks, dams, and 
embankments that meet or exceed the Class B or C criteria of Technical 
Release No. 60 (210-VI-TR60, October 1985).
    With the requirement that New Mexico further revise its rules, the 
Director removes existing required amendments and approves, as 
discussed in: finding No. 5.b, CSMC Rules 80-1-20-121 (a) through (d), 
concerning general requirements for subsidence control, CSMC Rules 80-
1-20-124 (a) through (d), concerning surface owner protection and 
restoration, replacement, repair, or compensation of subsidence-caused 
damages, CSMC Rules 80-1-20-125 (a) through (e), concerning rebuttable 
presumption of causation by subsidence, and CSMC Rules 80-1-20-127, 
concerning the requirement to adjust the bond amount for subsidence 
damage; finding No. 11, CSMC Rules 80-1-11-20 (b)(1), (b)(1)(ii), and 
(b)(3), concerning review criteria for improvidently issued permits; 
and finding No. 18, CSMC Rule 80-1-20-116(b)(6), concerning normal 
husbandry practices that may be used during the extending liability 
period for demonstrating revegetation success, with the exception of 
the allowance for the Director of the New Mexico program to approve 
husbandry practices that have not received approval from OSM.
    The Federal regulations at 30 CFR Part 931, codifying decisions 
concerning the New Mexico's 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.

Effect of Director's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the New Mexico program, the Director will recognize only 
the statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by New Mexico of only such 
provisions.

IV. 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 Tribe or State AMLR plans and 
revisions thereof since each such plan is drafted and promulgated by a 
specific Tribe or State, not by OSM. Decisions on proposed Tribe or 
State AMLR plans and revisions thereof submitted by a Tribe or State 
are based on a determination of whether the submittal meets the 
requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the 
applicable Federal regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
agency decisions on proposed Tribe or State AMLR plans and revisions 
thereof are categorically excluded from compliance with the National 
Environmental Policy Act (42 U.S.C. 4332) by the Manual of the 
Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

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 Tribe or State submittal which is the subject of this rule is based 
upon 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 
established by SMCRA or previously promulgated by OSM will be 
implemented by the Tribe or State. In making the determination as to 
whether this rule would have a significant economic impact, the

[[Page 26836]]

Department relied upon the data and assumptions in the analysis for the 
corresponding Federal regulations.

6. Unfunded Mandates Reform Act

    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 7, 1996.
Richard J. Seibel,
Regional Director, Western Regional Coordinating 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 (t) to read as 
follows:


Sec. 931.15  Approval of amendments to State regulatory program.

* * * * *
    (t) The director approves, with one exception at CSMC 80-1-20-
116(b)(6) concerning the authorization for the Director of the New 
Mexico program to approve normal husbandry practices that have not been 
approved by OSM, the proposed revisions submitted by New Mexico on 
January 22, 1996.
    3. Section 931.16 is amended by removing and reserving paragraphs 
(a), (c), (d), (f), (g), (h), (i), (j), (k), (l), (p), (q), (r), and 
(s); revising (n); and adding paragraphs (w),(x),(y), (z), and (aa) to 
read as follows:


Sec. 931.16  Required program amendments.

* * * * *
    (n) By February 15, 1994, New Mexico shall submit to OSM proposed 
revisions to CSMC Rule 80-1-20-116(b)(1), or otherwise amend its 
program, to require that all revegetation success standards and 
measuring techniques be approved by the Director of OSM as well as the 
Director of MMD.
* * * * *
    (w) By November 25, 1996, New Mexico shall submit revisions at CSMC 
Rule 80-1-1-5, for the definitions of ``Material damage'' and 
``Occupied residential dwelling and associated structures'' to include 
references in these definitions to CSMC Rules 80-1-20-121, 125, and 
127.
    (x) By November 25, 1996, New Mexico shall submit revisions at CSMC 
Rule 80-1-9-29(e)(5) and CSMC Rules 80-1-20-49(d), (f)(2), and (g)(4) 
and (5), to incorporate the requirements pertaining to those structures 
that meet or exceed the Class B or C criteria for dams in TR-60.
    (y) By November 25, 1996, New Mexico shall submit revisions at CSMC 
Rule 80-1-11-20(b)(1) to violations review criteria that the Director 
of the New Mexico program would use to determine what specific unabated 
violations, delinquent penalties and fees, and ownership and control 
relationship applied at the time a permit was issued.
    (z) By November 25, 1996, New Mexico shall submit revisions at CSMC 
Rule 80-1-20-116(b)(6) to either
    (1) Identify selected husbandry practices and submit them with 
documentation verifying that the proposed practices would be considered 
normal in the areas being mined or
    (2) State that selected husbandry practices approved by the 
Director may not be implemented prior to approval from OSM in 
accordance with the State program amendment process at 30 CFR 772.17.
    (aa) By November 25, 1996, New Mexico shall submit revisions at 
CSMC Rule 80-1-20-127 to clearly require adjustment of the bond amount 
when subsidence-related contamination, diminution, or interruption to a 
water supply occurs.

[FR Doc. 96-13265 Filed 5-28-96; 8:45 am]
BILLING CODE 4310-05-M