[Federal Register Volume 61, Number 183 (Thursday, September 19, 1996)]
[Rules and Regulations]
[Pages 49265-49269]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23910]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272

[FRL-5601-5]


Hazardous Waste Management Program: Incorporation by Reference of 
Approved State Hazardous Waste Program for New Mexico

AGENCY: Environmental Protection Agency.

ACTION: Immediate final rule.

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[[Page 49266]]

SUMMARY: Under the Resource Conservation and Recovery Act of 1976, as 
amended (RCRA), the United States Environmental Protection Agency (EPA) 
may grant Final Authorization to States to operate their hazardous 
waste management programs in lieu of the Federal program. The EPA uses 
part 272 of Title 40 Code of Federal Regulations (CFR) to provide 
notice of the authorization status of State programs, and to 
incorporate by reference those provisions of the State statutes and 
regulations that EPA will enforce under RCRA Sections 3008, 3013 and 
7003. Thus, EPA intends to codify the New Mexico authorized State 
program in 40 CFR Part 272. The purpose of this action is to 
incorporate by reference EPA's approval of recent revisions to New 
Mexico's program.

DATES: This document will be effective November 18, 1996 unless EPA 
publishes a prior Federal Register (FR) action withdrawing this 
immediate final rule. All comments on this action must be received by 
the close of business October 21, 1996. The incorporation by reference 
of certain New Mexico statutes and regulations was approved by the 
Director of the Federal Register as of November 18, 1996 in accordance 
with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Written comments should be sent to Alima Patterson, 
Authorization Coordinator for Region 6, Grants and Authorization 
Section (6PD-G), Multimedia Planning and Permitting Division, EPA 
Region 6, First Interstate Bank Tower at Fountain Place, 1445 Ross 
Avenue, Suite 1200, Dallas, TX 75202, Phone number: 214-665-8533.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Authorization 
Coordinator for Region 6, Grants and Authorization Section (6PD-G), 
Multimedia Planning and Permitting Division, EPA Region 6, First 
Interstate Bank Tower at Fountain Place, 1445 Ross Avenue, Suite 1200, 
Dallas, TX 75202, Phone number: 214-665-8533.

SUPPLEMENTARY INFORMATION:

Background

    Section 3006 of the Resource Conservation and Recovery Act of 1976, 
as amended (RCRA), 42 U.S.C. 6926 et seq., allows the Environmental 
Protection Agency (EPA) to authorize State hazardous waste programs to 
operate in the State in lieu of the Federal hazardous waste program. 
The purpose of today's Federal Register document is to incorporate by 
reference EPA's approval of recent revisions to New Mexico's program.
    Effective December 13, 1993 and August 21, 1995, Environmental 
Protection Agency incorporated by reference New Mexico's then 
authorized hazardous waste program (see 58 FR 52677 and 60 FR 32113). 
Effective July 10, 1995 and January 2, 1996 (see 60 FR 20238 and 60 FR 
53708, respectively), Environmental Protection Agency granted 
authorization to New Mexico for additional program revisions. In this 
document, EPA is incorporating the currently authorized State hazardous 
waste program in New Mexico.
    The Environmental Protection Agency provides both notice of its 
approval of State programs in 40 CFR part 272 and incorporates by 
reference therein the State statutes and regulations that EPA will 
enforce under sections 3008, 3013 and 7003 of RCRA. This effort will 
provide clearer notice to the public of the scope of the authorized 
program in New Mexico. Such notice is particularly important in light 
of the Hazardous and Solid Waste Act Amendments of 1984 (HSWA), Public 
Law 98-616. Revisions to State hazardous waste programs are necessary 
when Federal statutory or regulatory authority is modified. Because 
HSWA extensively amended RCRA, State programs must be modified to 
reflect those amendments. By incorporating by reference the authorized 
New Mexico program and by amending the Code of Federal Regulations 
whenever a new or different set of requirements is authorized in New 
Mexico, the status of Federally approved requirements of the New Mexico 
program will be readily discernible.
    The Agency will only enforce those provisions of the New Mexico 
hazardous waste management program for which authorization approval has 
been granted by EPA. This document incorporates by reference provisions 
of State hazardous waste statutes and regulations and clarifies which 
of these provisions are included in the authorized and Federally 
enforceable program. Concerning HSWA, some State requirements may be 
similar to HSWA requirements that are in effect under Federal statutory 
authority in that State. However, a State's HSWA-type requirements are 
not authorized and will not be codified into the CFR until the Regional 
Administrator publishes his final decision to authorize the State for 
specific HSWA requirements. Until such time, EPA will enforce the HSWA 
requirements and not the State analogues.

New Mexico Authorized Hazardous Waste Program

    The Environmental Protection Agency is incorporating by reference 
the New Mexico authorized hazardous waste program in subpart GG of 40 
CFR part 272. The State statutes and regulations are incorporated by 
reference at Sec. 272.1601(b)(1) and the Memorandum of Agreement, the 
Attorney General's Statement and the Program Description are referenced 
at Sec. 272.1601 (b)(5), (b)(6) and (b)(7), respectively.
    The Agency retains the authority under sections 3007, 3008, 3013 
and 7003 of RCRA to undertake enforcement actions in authorized States. 
With respect to such an enforcement action, the Agency will rely on 
Federal sanctions, Federal inspection authorities, and the Federal 
Administrative Procedure Act rather than the authorized State analogues 
to these requirements. Therefore, the Agency does not intend to 
incorporate by reference for purposes of enforcement such particular, 
authorized New Mexico enforcement authorities. Section 272.1601(b)(2) 
of 40 CFR lists those authorized New Mexico authorities that are part 
of the authorized program but are not incorporated by reference.
    The public also needs to be aware that some provisions of the 
State's hazardous waste management program are not part of the 
Federally authorized State program. These non-authorized provisions 
include:
    (1) Provisions that are not part of the RCRA Subtitle C program 
because they are ``broader in scope'' than RCRA Subtitle C (see 40 CFR 
271.1(i)); and
    (2) Federal rules for which New Mexico is not authorized, but which 
have been incorporated into the State regulations because of the way 
the State adopted Federal regulations by reference.
    State provisions which are ``broader in scope'' than the Federal 
program are not incorporated by reference for purposes of enforcement 
in 40 CFR part 272. Section 272.1601(b)(3) of 40 CFR lists, for 
reference and clarity the New Mexico provisions which are ``broader in 
scope'' than the Federal program and which are not, therefore, part of 
the authorized program being incorporated by reference. ``Broader in 
scope'' provisions will not be enforced by EPA; the State, however, 
will continue to enforce such provisions.
    New Mexico has adopted but is not authorized for the Federal rules 
published in the Federal Register from January 28, 1983 through March 
20, 1984 (48 FR 3977, 48 FR 39611, 48 FR 52718, 49 FR 5308, and 49 FR 
10490); amendments to the Toxicity Characteristic rule as published on 
October 5, 1990 (55 FR 40834), February 1, 1991 (56 FR 3978), February 
13, 1991 (56 FR 5910) and April 2, 1991 (56 FR

[[Page 49267]]

13406); amendments to the F037 and F038 listings as published on May 
13, 1991 (56 FR 21955) and amendments to 40 CFR Parts 260, 261, 264, 
265 and 266 relative to the Recycled Used Oil Management Standards, as 
published on September 10, 1992 (57 FR 41566) and May 3, 1993 (58 FR 
26420). Therefore, these Federal amendments included in New Mexico's 
adoption by reference of Federal code at Title 20, Chapter 4, Part 1, 
New Mexico Administrative Code (20 NMAC 4.1), Subparts I, II, III, V, 
VI, and IX are not Federally enforceable.
    Since EPA cannot enforce a State's requirements which have not been 
reviewed and approved according to the Agency's authorization 
standards, it is important that EPA clarify any limitations on the 
scope of a State's approved hazardous waste program. Thus, in those 
instances where a State's method of adopting Federal law by reference 
has the effect of including unauthorized requirements, EPA will provide 
this clarification by: (1) incorporating by reference the relevant 
State legal authorities according to the requirements of the Office of 
Federal Register; and (2) subsequently identifying in 272.1601(b)(4) 
any requirements which while adopted and incorporated by reference, are 
not authorized by EPA, and therefore are not Federally enforceable. 
Thus, notwithstanding the language in the New Mexico hazardous waste 
regulations incorporated by reference at 272.1601(b)(1), EPA would only 
enforce the State provisions that are actually authorized by EPA. With 
respect to HSWA requirements for which the State has not yet been 
authorized, EPA will continue to enforce the Federal HSWA standards 
until the State receives specific HSWA authorization from EPA.

HSWA Provisions

    As noted above, the Agency is not amending part 272 to include HSWA 
requirements and prohibitions that are immediately effective in New 
Mexico and other States. Section 3006(g) of RCRA provides that any 
requirement or prohibition of HSWA (including implementing regulations) 
takes effect in authorized States at the same time that it takes effect 
in nonauthorized States. Thus, Environmental Protection Agency has 
immediate authority to implement a HSWA requirement or prohibition once 
it is effective. A HSWA requirement or prohibition supersedes any less 
stringent or inconsistent State provision which may have been 
previously authorized by EPA (see 50 FR 28702, July 15, 1985).
    Because of the vast number of HSWA statutory and regulatory 
requirements taking effect over the next few years, the Environmental 
Protection Agency expects that many previously authorized and 
incorporated by reference State provisions will be affected. The States 
are required to revise their programs to adopt the HSWA requirements 
and prohibitions by the deadlines set forth in 40 CFR 271.21, and then 
to seek authorization for those revisions pursuant to part 271. The 
Environmental Protection Agency expects that the States will be 
modifying their programs substantially and repeatedly. Instead of 
amending the part 272 every time a new HSWA provision takes effect 
under the authority of RCRA 3006(g), Environmental Protection Agency 
will wait until the State receives authorization for its analog to the 
new HSWA provision before amending the State's part 272 incorporation 
by reference. In the interim, persons wanting to know whether a HSWA 
requirement or prohibition is in effect should refer to 40 CFR 
271.1(j), as amended, which lists each such provision.
    The incorporation by reference of State authorized programs in the 
CFR should substantially enhance the public's ability to discern the 
current status of the authorized State program and clarify the extent 
of Federal enforcement authority. This will be particularly true as 
more State program revisions to adopt HSWA provisions are authorized.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an Environmental Protection Agency rule 
for which a written statement is needed, section 205 of the UMRA 
generally requires EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-
effective, or least burdensome alternative that achieves the objectives 
of the rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows EPA to 
adopt an alternative other than the least costly, most cost-effective, 
or least burdensome alternative if the Administrator publishes with the 
final rule an explanation why that alternative was not adopted. Before 
the Environmental Protection Agency establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of Environmental Protection Agency regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements. The Environmental Protection Agency has 
determined that this rule does not contain a Federal mandate that may 
result in expenditures of $100 million or more for State, local, and 
tribal governments, in the aggregate, or the private sector in any one 
year. The EPA does not anticipate that the approval of New Mexico' 
hazardous waste program referenced in today's notice will result in 
annual costs of $100 million or more.
    Today's rule contains no Federal mandates for State, local or 
tribal governments or the private sector. The Act excludes from the 
definition of a ``Federal mandate'' duties that arise from 
participation in a voluntary Federal program, except in certain cases 
where a ``federal intergovernmental mandate'' affects an annual federal 
entitlement program of $500 million or more that are not applicable 
here. New Mexico's request for approval of a hazardous waste program is 
voluntary; if a state chooses not to seek authorization for 
administration of a hazardous waste program under RCRA Subtitle C, RCRA 
regulation is left to EPA.
    In any event, the Environmental Protection Agency has determined 
that this rule does not contain a Federal mandate that may result in 
expenditures $100 million or more for state, local, and tribal 
governments in the aggregate, or the private sector in any one year. 
The Environmental Protection Agency does not anticipate that the 
approval of New Mexico's hazardous waste program referenced in today's 
notice will result in annual costs of $100 million or more. The 
Environmental Protection Agency's approval of state programs generally 
may reduce, not increase, compliance costs for the private sector since 
the State, by virtue of the approval, may

[[Page 49268]]

now administer the program in lieu of Environmental Protection Agency 
and exercise primary enforcement. Hence, owners and operators of 
treatment, storage, or disposal facilities (TSDFs) generally no longer 
face dual federal and state compliance requirements, thereby reducing 
overall compliance costs. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    The Environmental Protection Agency has determined that this rule 
contains no regulatory requirements that might significantly or 
uniquely affect small governments. The Agency recognizes that small 
governments may own and/or operate TSDFs that will become subject to 
the requirements of an approved state hazardous waste program. However, 
such small governments which own and/or operate TSDFs are already 
subject to the requirements in 40 CFR parts 264, 265, and 270 and are 
not subject to any additional significant or unique requirements by 
virtue of this program approval. Once the Environmental Protection 
Agency authorizes a State to administer its own hazardous waste program 
and any revisions to that program, these same small governments will be 
able to own and operate their TSDFs under the approved state program, 
in lieu of the Federal program.

Certification Under the Regulatory Flexibility Act

    The Environmental Protection Agency has determined that this 
authorization will not have a significant economic impact on a 
substantial number of small entities. The Environmental Protection 
Agency recognizes that small entities may own and/or operate TSDFs that 
will become subject to the requirements of an approved state hazardous 
waste program. However, since such small entities which own and/or 
operate TSDFs are already subject to the requirements in 40 CFR Parts 
264, 265 and 270, this authorization does not impose any additional 
burdens on these small entities. This is because EPA's authorization 
would result in an administrative change (i.e., whether the 
Environmental Protection Agency or the state administers the RCRA 
Subtitle C program in that state), rather than result in a change in 
the substantive requirements imposed on small entities. Once EPA 
authorizes a state to administer its own hazardous waste program and 
any revisions to that program, these same small entities will be able 
to own and operate their TSDFs under the approved state program, in 
lieu of the federal program. Moreover, this authorization, in approving 
a state program to operate in lieu of the federal program, eliminates 
duplicative requirements for owners and operators of TSDFs in that 
particular state.
    Therefore, EPA provides the following certification under the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act. Pursuant to the provisions of 5 U.S.C. 
605(b), I hereby certify that this authorization will not have a 
significant economic impact on a substantial number of small entities. 
This authorization effectively suspends the applicability of certain 
Federal regulations in favor of New Mexico's program, thereby 
eliminating duplicative requirements for handlers of hazardous waste in 
the State. It does not impose any new burdens on small entities. This 
rule, therefore, does not require a regulatory flexibility analysis.

Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business 
Regulatory Enforcement Fairness Act of 1996, the Environmental 
Protection Agency submitted a report containing this rule and other 
required information to the U.S. Senate, the U. S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 6 of Executive Order 12866.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or a final rule. This rule will 
not impose any information requirements upon the regulated community.

List of Subjects In 40 CFR Part 272

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste transportation, 
Hazardous waste, Incorporation by reference, Indian lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

    Dated: August 19, 1996.
Allyn M. Davis,
Acting Regional Administrator.
    For the reasons set forth in the preamble, subpart GG of 40 CFR 
part 272 is amended as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

    1. The authority for part 272 continues to read as follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    2. 40 CFR part 272, subpart GG is amended by revising Sec. 272.1601 
to read as follows:


Sec. 272.1601  New Mexico State-Administered Program: Final 
Authorization.

    (a) Pursuant to Section 3006(b) of RCRA, 42 U.S.C. 6926(b), New 
Mexico has final authorization for the following elements as submitted 
to EPA in New Mexico's base program application for final authorization 
which was approved by EPA effective on January 25, 1985. Subsequent 
program revision applications were approved effective on April 10, 
1990, July 25, 1990, December 4, 1992, August 23, 1994, December 21, 
1994, July 10, 1995, and January 2, 1996.
    (b) State Statutes and Regulations.
    (1) The New Mexico statutes and regulations cited in this paragraph 
are incorporated by reference as part of the hazardous waste management 
program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (i) EPA Approved New Mexico Statutory Requirements Applicable to 
the Hazardous Waste Management Program, dated April, 1996.
    (ii) EPA Approved New Mexico Regulatory Requirements Applicable to 
the Hazardous Waste Management Program, dated April, 1996.
    (2) The following statutes and regulations concerning State 
enforcement, although not incorporated by reference, are part of the 
authorized State program:
    (i) New Mexico Statutes 1978 Annotated, Inspection of Public 
Records Act, Chapter 14, Article 2, (1994 Cumulative Supplement), 
Sections 14-2-1 et seq.
    (ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act, 
Chapter 74, Article 4, (1993 Replacement Pamphlet), Sections 74-4-4 
(except 74-4-4C), 74-4-4.1, 74-4-4.2C through 74-4-4.2F, 74-4-4.2G(1), 
74-4-4.2H, 74-4-4.2I, 74-4-4.3 (except

[[Page 49269]]

74-4-4.3A(2) and 74-4-4.3F), 74-4-4.7B, 74-4-4.7C, 74-4-5, 74-4-7, 74-
4-10, 74-4-10.1 (except 74-4-10.1C), 74-4-11 through 74-4-14.
    (iii) Title 20, Chapter 4, Part 1, New Mexico Administrative Code 
(20 NMAC 4.1), effective September, 23, 1994, Subpart IX, Section 902 
(except 902.B.1 through 902.B.6); and Subpart XI, Sections 1101, 1105, 
and 1106.
    (3)(i) The following statutory provisions are broader in scope than 
the Federal program, are not part of the authorized program, and are 
not incorporated by reference:
    (ii) New Mexico Statutes 1978 Annotated, Hazardous Waste Act, 
Chapter 74, Article 4, (1993 Replacement Pamphlet), Sections 74-4-3.3 
and 74-4-4.2J.
    (4) Unauthorized State Provisions: The State's adoption of the 
Federal rules listed below is not approved by EPA and are, therefore, 
not enforceable:

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                                       Federal Register      Publication
       Federal requirement                 reference             date   
------------------------------------------------------------------------
Biennial Report..................  48 FR 3977..............     01/28/83
Permit Rules; Settlement           48 FR 39611.............     09/01/83
 Agreement.                                                             
Interim Status Standards;          48 FR 52718.............     11/22/83
 Applicability.                                                         
Chlorinated Aliphatic Hydrocarbon  49 FR 5308..............     02/10/84
 Listing (F024).                                                        
National Uniform Manifest........  49 FR 10490.............     03/20/84
Recycled Used Oil................  57 FR 41566: Amendments      09/10/92
                                    to 40 CFR Parts 260,                
                                    261 and 266.                        
Management Standards.............  58 FR 26420: Amendments      05/03/93
                                    to 40 CFR Parts 261,                
                                    264 and 265.                        
------------------------------------------------------------------------

Additionally, New Mexico has adopted but is not authorized to implement 
the HSWA rules that are listed below in lieu of EPA. EPA will continue 
to enforce the Federal HSWA standards for which New Mexico is not 
authorized until the State receives specific authorization from EPA.

------------------------------------------------------------------------
                                       Federal Register      Publication
       Federal requirement                 reference             date   
------------------------------------------------------------------------
Toxicity Characteristic;.........  55 FR 40834.............     10/05/90
Hydrocarbon Recovery.............  56 FR 3978..............     02/01/91
Operations.......................  56 FR 13406.............     04/02/91
Toxicity Characteristic;           56 FR 5910..............     02/13/91
 Chlorofluorocarbon Refrigerants.                                       
Revisions to the Petroleum         56 FR 21955.............     05/13/91
 Refining Primary and Secondary                                         
 Oil/Water/Solids Separation                                            
 Sludge Listings (F037 and F038).                                       
------------------------------------------------------------------------

    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 6 and the State of New Mexico signed by the EPA Regional 
Administrator on December 18, 1995 is referenced as part of the 
authorized hazardous waste management program under Subtitle C of RCRA, 
42 U.S.C. 6921 et seq.
    (6) Statement of Legal Authority. ``Attorney General's Statement 
for Final Authorization'', signed by the Attorney General of New Mexico 
on January, 1985, and revisions, supplements and addenda to that 
Statement dated April 13, 1988, September 14, 1988, July 19, 1989, July 
23, 1992, February 14, 1994, July 18, 1994, July 20, 1994, August 11, 
1994, November 28, 1994, and August 24, 1995, are referenced as part of 
the authorized hazardous waste management program under Subtitle C of 
RCRA, 42 U.S.C. 6921 et seq.
    (7) Program Description. The Program Description and any other 
materials submitted as part of the original application or as 
supplements thereto are referenced as part of the authorized hazardous 
waste management program under Subtitle C of RCRA, 42 U.S.C. 6921 et 
seq.

Appendix A to Part 272--[Amended]

    3. Appendix A to part 272, State Requirements, is amended by 
revising the listing for ``New Mexico'' to read as follows:

New Mexico

    The statutory provisions include:
    New Mexico Statutes 1978 Annotated, Hazardous Waste Act, Chapter 
74, Article 4 (1993 Replacement Pamphlet), Sections 74-4-2, 74-4-3 
(except 74-4-3L, 74-4-3O and 74-4-3R), 74-4-3.1, 74-4-4.2A, 74-4-
4.2B, 74-4-4.2G introductory paragraph, 74-4-4.2G(2), 74-4-4.3F, 74-
4-4.7 (except 74-4-4.7B and 74-4-4.7C), 74-4-9 and 74-4-10.1C, as 
published by the Michie Company, Law Publishers, 1 Town Hall Square, 
Charlottesville, Virginia 22906-7587.
    The regulatory provisions include:
    Title 20, Chapter 4, Part 1, New Mexico Annotated Code (20 NMAC 
4.1), Subparts I through Subpart VIII; Subpart IX, Sections 901, 
902.B.1 through 902.B.6; and Subpart XI, Section 1103. Copies of the 
New Mexico regulations can be obtained from the New Mexico 
Commission of Public Records, State Records Center and Archives, 
State Rules Division, 404 Montezuma, Santa Fe, NM 87501.

[FR Doc. 96-23910 Filed 9-18-96; 8:45 am]
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