[Federal Register Volume 65, Number 69 (Monday, April 10, 2000)]
[Rules and Regulations]
[Pages 18889-18894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-8666]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS No. NM-037-FOR]


New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving a proposed amendment to the New Mexico regulatory program 
(hereinafter, the ``New Mexico program'') under the Surface Mining 
Control and Reclamation Act of 1977 (SMCRA). New Mexico proposed 
revisions about cross sections, maps, and plans required in a permit 
application; criteria for permit approval or denial; requirement to 
release performance bonds; timing of backfilling and grading; 
backfilling and grading requirements for the construction of small 
depressions; and design requirements for road embankments. New Mexico 
revised its program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: April 10, 2000.

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505) 
248-5096, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Director's Findings
IV. Summary and Disposition of Comments
V. Director's Decision
VI. Procedural Determinations

I. Background on the New Mexico Program

    On December 31, 1980, the Secretary of the Interior conditionally 
approved the New Mexico program. You can find background information on 
the New Mexico program, including the Secretary's findings, the 
disposition of comments, and conditions of approval in the December 31, 
1980, Federal Register (45 FR 86459). You can also find later actions 
concerning New Mexico's program and program amendments at 30 CFR 
931.11, 931.15, 931.16, and 931.30.

II. Submission of the Proposed Amendment

    By letter dated March 11, 1996, New Mexico sent to us an amendment 
(SPATS No. NM-037-FOR, administrative record No. NM-773) to its program 
pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the 
proposed amendment to include changes made in response to the required 
amendment at 30 CFR 931.16(t) and at its own initiative.
    We announced receipt of the amendment in the March 26, 1996 Federal 
Register (59 FR 13117), provided an opportunity for a public hearing or 
meeting on its substantive adequacy, and invited public comment on its 
adequacy (administrative record No. NM-802). Because no one requested a 
public hearing or meeting, none was held. The public comment period 
ended on April 25, 1996.
    During our review of the amendment, we identified concerns and 
notified New Mexico of the concerns by letter dated May 15, 1996 
(administrative record no. NM-785). New Mexico responded in a letter 
dated November 9, 1998, by submitting a revised amendment and 
additional explanatory information (administrative record no. NM-803).
    We announced receipt of the proposed amendments in the December 3, 
1998 Federal Register (63 FR 66774). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (administrative record 
No. NM-809). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on December 18, 1998.
    During our review of the revised amendment, we identified concerns 
and notified New Mexico of the concerns by letter dated December 21, 
1998 (administrative record no. NM-814). New Mexico responded in a 
letter dated December 1, 1999, by sending us a revised amendment 
(administrative record no. NM-816).
    Based upon New Mexico's revisions to its amendment, we reopened the 
public comment period in the December 22, 1999 Federal Register (64 FR 
71698); administrative record no. NM-818). The public comment period 
ended on January 21, 2000.

III. Director's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

1. Minor Revisions to New Mexico's Rules

    New Mexico proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to the following previously-
approved rules.

19 NMAC 8.2 813.L [30 CFR 779.25(b)] recodification concerning the 
requirement for maps, plans, and cross sections to be prepared by or 
under the direction of and certified by a qualified registered 
professional engineer;
19 NMAC 8.2 2054.A(2) [30 CFR 816.100] to refer to the term ``open pit 
mining;'' and
19 NMAC 8.2 2054.A(3) [30 CFR 816.100] to refer to the term ``strip 
mining.''

    Because these changes are minor, we find that they will not make 
New Mexico's rules less effective than the corresponding Federal 
regulations.

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

    New Mexico proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations.

19 NMAC 8.2 2055.C(1) [30 CFR 816.102(h)], concerning backfilling and 
grading requirements for the construction of small depressions, and

[[Page 18890]]

19 NMAC 8.2 1106.C [30 CFR 773.15(c)(5)], concerning permit approval or 
denial pertaining to the probable cumulative hydrological impacts.

    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

3. Revisions to New Mexico's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

A. 19 NMAC 8.2 2054.A(1), (2), (3), and (5), Timing of Backfilling and 
Grading
    New Mexico proposed to revise 19 NMAC 8.2. 2054A(1), (2), and (3), 
concerning time requirements for backfilling and grading of contour 
mining, open pit mining, and strip mining, to add the allowance for the 
Director of the New Mexico program to approve additional distance, as 
well as additional time, for rough backfilling and grading if the 
permittee can demonstrate, on the basis of the materials submitted 
under 19 NMAC 8.2 906.B(3), that additional distance is necessary.
    New Mexico also proposed to add at 19 NMAC 8.2 2054.A(5) the 
requirement that, at completion of mining, rough backfilling and 
grading shall occur in accordance with a time schedule approved by the 
Director of the New Mexico program based on materials submitted under 
19 NMAC 8.2 906.B(3).
    Existing 19 NMAC 8.2 906.B(3) requires that each permit application 
contain a reclamation plan including a plan for backfilling, soil 
stabilization, compacting, and grading, with contour maps or cross 
sections that show the anticipated final surface configuration of the 
proposed permit area.
    On December 17, 1991, OSM promulgated new regulations, at 30 CFR 
816.101, that provided national time and distance performance standards 
for rough backfilling and grading for surface mining operations. Those 
regulations were subsequently challenged in National Coal Association 
and American Mining Congress v. U.S. Department of the Interior, et 
al., Civ. No. 92-0408-CRR (1992). This case was dismissed without 
prejudice by the U.S. District Court for the District of Columbia as 
the result of a joint stipulation of the parties that included OSM's 
agreement to suspend the regulation at 30 CFR 816.101.
    The December 17, 1991, Federal regulations at 30 CFR 816.101 
concerning time and distance performance standards for rough 
backfilling and grading were suspended by OSM on July 31, 1992. 
Therefore, in absence of a specific Federal regulation providing 
specific time and distance performance standards for rough backfilling 
and grading, the Federal standards against which State time and 
distance performance standards for rough backfilling and grading must 
be judged are section 515(b)(16) of SMCRA and 30 CFR 816.100.
    Section 515(b)(16) of SMCRA requires that surface coal mining and 
reclamation operations be conducted so as to insure that all 
reclamation efforts proceed as contemporaneously as practicable with 
the surface coal mining operations. The Federal regulation at 816.100 
similarly provides that backfilling and grading shall occur as 
contemporaneously as practicable with mining operations. In common 
usage, the term ``practicable'' means ``possible to perform'' or 
``feasible''. Therefore, New Mexico's proposal to allow time and 
distance standards for backfilling and grading demonstrated as 
necessary by an applicant's reclamation plan, whether during active 
mining as proposed by New Mexico at 19 NMAC 8.2 2054.A (1), (2), and 
(3), or at the completion of mining, as proposed by New Mexico at 19 
NMAC 8.2 2054.A(5), is equivalent in meaning to and consistent with 
section(b)(16) of SMCRA and the Federal regulation at 30 CFR 816.100. 
Accordingly, New Mexico's proposed rules at 19 NMAC 8.2 2054.A (1), 
(2), (3), and (5) are no less stringent than section 515(b)(16) of 
SMCRA and no less effective than the Federal regulations at 30 CFR 
816.100 with respect to standards for rough backfilling and grading. 
The Director approves 19 NMAC 8.2 2054.A (1), (2), (3), and (5).
B. 19 NMAC 8.2 2076.B and 2077.A(5), Design of Primary Road Embankments
    OSM required at 30 CFR 931.16(t) that New Mexico revise 19 NMAC 8.2 
2076.B(9), concerning the requirement for all ancillary and primary 
roads to have (at a minimum) a static safety factor of 1.3 for all 
embankments, to reference 19 NMAC 8.2 2076.D instead of 19 NMAC 8.2 
2076.C. (See finding No. 20(b), 58 FR 65907, 65923, December 17, 1993.)
    New Mexico proposed to revise 19 NMAC 8.2 2076.B by deleting the 
general requirement at 19 NMAC 8.2 2076.B(9) that all roads have, at a 
minimum, a static factor of safety of 1.3 for all embankments, with the 
exception that the Director of the New Mexico program could determine a 
lesser static factor of safety on a site-specific basis with respect to 
an ancillary road. New Mexico also proposed to revise 19 NMAC 8.2 
2077.A by adding the requirement at 19 NMAC 8.2 2077.A(5) that all 
primary roads have a static factor of safety of 1.3, at a minimum, for 
all embankments.
    The Federal regulations at 30 CFR 816.150 and 817.150, concerning 
performance standards for all roads, do not specify a static safety 
factor for road embankments and the Federal regulations at 30 CFR 
816.151(b) and 817.151(b), concerning performance standards for primary 
roads, require that each primary road embankment have a minimum static 
factor of 1.3.
    Because New Mexico's proposed revisions cause its rules to be the 
same as the Federal regulations, the Director finds that New Mexico's 
proposed deletion at 19 NMAC 8.2 2076.B(9) and addition at 19 NMAC 8.2 
2077.A(5) have resolved the required amendment and are no less 
effective than the Federal regulations at 30 CFR 816.150 and 151(b) and 
817.150 and 151(b). The Director approves the proposed deletion of 19 
NMAC 8.2 2076.B(9) and addition of 19 NMAC 8.2 2077.A(5) and is 
removing the required amendment at 30 CFR 931.16(t).

4. Revisions to New Mexico's Rules With No Corresponding Federal 
Regulations

A. 19 NMAC 8.2 813.K, Cross Sections, Maps, and Plans Required in a 
Permit Application
    New Mexico proposed to revise 19 NMAC 8.2 813.K(1) through (3), 
concerning cross sections, maps, and plans required in a permit 
application, by (1) deleting specific slope measurement requirements 
paragraphs (1) through (3) so that proposed 19 NMAC 8.2 813.K requires 
that a map show the existing land surface configuration of the proposed 
permit area on contour maps of a maximum of 5 foot contour intervals.
    The corresponding Federal regulation at 30 CFR 779.25(a) lists what 
is required to be shown by cross sections, maps, and plans required in 
a permit application. There is no counterpart to proposed 19 NMAC 8.2 
813.K, pertaining to a map showing existing land surface configuration, 
in the corresponding Federal regulations at 30 CFR 779.25(a). However, 
the requirement at proposed 19 NMAC 8.2 813.K serves to aid the 
regulatory authority in a determination at phase I bond release 
concerning backfilling and grading to approximate original contours and 
is not inconsistent with the requirements of the Federal regulations at 
30 CFR 779.25(a).

[[Page 18891]]

    Therefore, the Director finds that proposed 19 NMAC 8.2 813.K is no 
less effective than the Federal regulations at 30 CFR 779.25(a). The 
Director approves proposed 19 NMAC 8.2 813.K.
B. 19 NMAC 8.2 1412, Requirement to Release Performance Bonds
    New Mexico proposed to revise 19 NMAC 8.2 1412 by adding new 19 
NMAC 8.2 1412.A(2) (i) through (vii), concerning minimum requirements 
for all bond release applications, and recodifying existing 19 NMAC 
1412.A(2) as 19 NMAC 1412.A(3). New Mexico also proposed to revise 19 
NMAC 1412.A(3) by deleting the requirement for bond release 
applications that the applicant submit copies of letters which he has 
sent to adjoining property owners, local governmental bodies, planning 
agencies, sewage and water treatment authorities, and water companies 
in the locality in which the surface coal mining and reclamation 
operation took place, notifying them of the intention to seek release 
from the bond. New Mexico deleted this requirement because it is 
proposed under the minimum requirements for a bond release application 
at 19 NMAC 1412.A(2)(v).
    There are no specific counterparts setting forth minimum 
requirements for a bond release application in the corresponding 
Federal regulations at 30 CFR 800.40(a)(1). However, New Mexico's 
proposed minimum requirements at proposed 19 NMAC 1412.A(2)(i) through 
(vii) clarify what kinds of legal and technical information any bond 
release application must contain and are consistent with the Federal 
regulation at 30 CFR 800.40(a)(1). Recodified and revised 19 NMAC 
1412.A(3), concerning the permittee's public notice of a bond release 
application, along with the requirement now codified at 19 NMAC 
1412.A(2)(v) for copies of letters notifying specified individuals and 
governmental or private entities of the application for bond release, 
are substantively identical to the Federal regulation at 30 CFR 
800.40(a)(2).
    Therefore, the Director finds that proposed 19 NMAC 8.2 
1412.A(2)(i) through (vii) and 1412.A(3) are no less effective than the 
Federal regulations at 30 CFR 800.40(a)(1) and (2). The Director 
approves proposed 19 NMAC 8.2 1412.A(2)(i) through (vii) and 1412.A(3).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record Nos. 776, 806, and 817).
    The National Mining Association requested, by letter dated December 
8, 1998 (administrative record No. NM-810), that OSM send copies of (1) 
the May 15, 1996, letter sent to New Mexico by OSM setting forth 
concerns with the proposed amendment and (2) the supplemental 
information OSM sent to New Mexico by letter dated February 26,1998. 
OSM sent the requested information by letter dated December 22, 1998 
(administrative record No. NM-813).
    The Navajo Nation commented, by letter dated January 21, 2000 
(administrative record No. 821), that it was unclear from the two 
December 22, 1999, Federal Register notices (64 FR 71698 and 64 FR 
71700), which published OSM's receipt of three New Mexico amendments 
(including the amendment that is the subject of this document), that 
there would be an opportunity for public comment prior to OSM's 
decision on the amendments. The text of December 22, 1999, Federal 
Register notices identified the changes proposed by New Mexico, 
notified the public of its right to comment and/or request a public 
hearing or meeting, and provided for a thirty day public comment period 
on the proposed New Mexico amendments. The public comment period for 
the New Mexico amendments closed on January 21, 2000. OSM explained to 
the Navajo Nation, in a letter dated February 7, 2000 (administrative 
record No. NM-823), the OSM's published Federal Register notices, as 
well as OSM's distribution of the proposed amendment to interested 
parties (which included the Navajo Nation) by letters dated April 1, 
1996, November 23, 1998, and December 15, 1999, were the vehicles by 
which OSM provided for a public comment period and solicited public 
comments.
    The Navajo Nation had two additional comments concerning New 
Mexico's March 11, 1996, amendment that is the subject of this notice. 
First, the Navajo Nation commented that the word ``demonstrate'' was 
missing from the text of 19 NMAC 8.2 2054.A(3), concerning the timing 
of backfilling and grading for strip mining. The amendment language at 
this rule as submitted by New Mexico to OSM on December 1, 1999, did 
not include the word demonstrate. However, this typographical error was 
corrected when New Mexico promulgated this rule and the word 
``demonstrate'' is included in the published text of New Mexico's 
rules. Second, the Navajo Nation commented that New Mexico's proposed 
addition of 19 NMAC 2045.A(5), concerning the timing of backfilling and 
grading for the final pit at completion of mining, was less effective 
than SMCRA and the Federal regulations because it lacked a time factor. 
New Mexico's proposed rule at 19 NMAC 2045.A(5) requires that a 
permittee complete backfilling and grading of a final pit at the 
completion of mining in accordance with a time schedule approved by New 
Mexico based on materials submitted by the permittee in accordance with 
19 NMAC 906.B(3). Although New Mexico did not specify in the rule a 
time factor such as 60 days, it does require that a specific time 
schedule be approved by New Mexico when mining is complete. And, as 
discussed in finding 3.A above, New Mexico's proposal to allow time 
(and distance) standards for backfilling and grading demonstrated as 
necessary by a permittee's reclamation plan, whether during active 
mining as proposed by New Mexico at 19 NMAC 8.2 2054.A(1), (2), and 
(3), or at the completion of mining, as proposed by New Mexico at 19 
NMAC 8.2 2054.A(5), is equivalent in meaning to and consistent with 
section 515(b)(16) of SMCRA and the Federal regulation at 30 CFR 
816.100. The Director is taking no further action in response to these 
comments in the Navajo Nation's January 21, 2000, letter.

Federal Agency Comments

    Under 30 CFR 732.17(H)(11)(i), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the New Mexico program (administrative record nos. 776, 
806, and 817).
    The U.S. Department of Agriculture, Natural Resources Conservation 
Service (NRCS), submitted the following comments by letter dated April 
12, 1996 (administrative record No. NM-781).
    New Mexico's recodified rule at 19 NMAC 8.2 1412.A(2)(v) requires 
that bond release application contain copies of letters which that have 
been sent to adjoining property owners, local governmental bodies, 
planning agencies, sewage and water treatment authorities, and water 
companies in the locality in which the surface coal mining and 
reclamation operation took place, notifying them of the intention to 
seek release from the bond. As discussed in finding No. 4.B above, 19 
NMAC 8.2 1412.A(2)(v) is identical to the Federal regulation at 30 CFR 
800.40(a)(3). NRCS questioned whether these groups will

[[Page 18892]]

have sufficient opportunity to respond, whether they will have 
information on where to send their response, and will the responses be 
included as part of the bond release application. New Mexico's rules at 
19 NMAC 8.2 1412.A(3) require that the applicant for bond release 
advertise its intention to seek bond release and that the advertisement 
include, among other things, the name and address of the Director of 
the New Mexico to which written comments, objections, or requests for 
public hearings and informal conferences may be submitted. New Mexico's 
rules at 19 NMAC 8.2 1412.F provide for a person's right to file 
written objections until 30 days after the last publication of the 
advertisement required by 19 NMAC 8.2 1412.A(3). These rules are 
identical to the counterpart Federal regulations. All comments 
pertaining to a bond release application received by New Mexico will 
become part of the public record.
    NRCS commented that New Mexico's proposed rule at 19 NMAC 8.2 1510, 
concerning minimum requirements for coal mine operations exclusively 
under reclamation, should also contain information and analysis that 
will define expected land use, capability, and productivity after 
reclamation is complete. As announced by OSM in the December 3, 1998, 
Federal Register notice (which reopened the comment period on New 
Mexico's November 9, 1998, revisions proposed to its March 11, 1996, 
amendment), New Mexico withdrew all proposed rules at 19 NMAC 8.2 Part 
15 (administrative record No. NM-809). These rules had no counterpart 
in the Federal program and were repealed by New Mexico so that they no 
longer exist in its program.
    NRCS commented that the timing of backfilling and grading, as 
proposed by New Mexico at 19 NMAC 8.2 2054.A(1) and (3), should not 
rely only on distance, but should include a time factor as well. New 
Mexico subsequently revised its proposed rules at 19 NMAC 8.2 2054.A, 
as discussed in finding 3.A above, to require that the timing of 
backfilling and grading be determined by both time and distance 
standards.
    Based on the discussion above, the Director is taking no further 
action in response to the NRCS comments.
    The Bureau of Land Management (BLM) submitted the following 
comments by letter dated April 17, 1996 (administrative record No. NM-
782).
    BLM recommended that New Mexico revise 19 NMAC 8.2 813.K, 
concerning a map showing the existing land surface configuration of the 
proposed permit area on contour maps of a maximum of 5 foot contour 
intervals, to require the map to show roads, rail lines, occupied 
dwellings, pipelines, power lines, and planned exploratory and 
development features on a scale of 1:24,000 or larger. As discussed at 
finding No. 4.A above, proposed 19 NMAC 8.2 813.K is not inconsistent 
with the requirements of the Federal regulations at 30 CFR 779.25(a). 
New Mexico's existing rules at 19 NMAC 8.2 812.D and E require a map 
showing the location of (1) all buildings on and within 1,000 feet of 
the proposed permit area, with identification of the current use of the 
buildings, and (2) surface and subsurface man-made features within, 
passing through, or passing over the proposed permit area, including, 
but not limited to major electric transmission lines, pipelines, and 
agricultural drainage tile fields. The counterpart Federal regulations, 
concerning map requirements at 30 CFR 779.24 and 779.25, do not 
otherwise include requirements similar to the ones recommended by BLM. 
OSM can only require that New Mexico's program contain rules that are 
no less effective than the Federal regulations.
    BLM recommended New Mexico revise proposed 19 NMAC 8.2 2054.A to 
require that the permittee demonstrate that additional distance for 
backfilling and grading is necessary or conducive to greater recovery 
of coal. As discussed in finding No. 3.A above, New Mexico revised 19 
NMAC 8.2 2054.A to provide for additional time and distance for the 
timing of backfilling and grading based on information submitted in the 
reclamation plan required at 19 NMAC 906.B(3). This information could 
include justification for additional distance based on the need to 
maximize coal recovery. OSM is approving proposed 19 NMAC 8.2 2054.A in 
part because OSM recognized that there may exist unique conditions at 
individual surface coal mining operations that require unique standards 
for the timing of backfilling and grading (see finding No. 3A above). 
However, the counterpart Federal regulations at 30 CFR 816.100 contain 
no requirement to the one recommended by BLM. OSM can only require that 
New Mexico's program contain rules that are no less effective than the 
Federal regulations.
    BLM recommended New Mexico revise 19 NMAC 8.2 2076.B, concerning 
general road design requirements, to require that roads be maintained 
and reclaimed so as to be in compliance with any and all safety 
standards established or approved by the Director. As discussed at 
finding 3.B above, New Mexico's proposed revision of 19 NMAC 8.2 2076 
and 2077 to require a 3.1 safety factor for primary road embankments, 
rather than for all road embankments, is identical to the requirements 
in the Federal regulations. New Mexico's existing rule at 19 NMAC 8.2 
2076.C requires that the design and construction or reconstruction of 
roads shall incorporate appropriate limits for grade, width, surface 
materials, surface drainage control, culvert placement, culvert size, 
and any necessary design criteria established by the Director (emphasis 
added).
    The counterpart Federal regulations, concerning general road design 
at 30 CFR 816.150, do not include a requirement similar to the one 
recommended by BLM. OSM can only require that New Mexico's program 
contain rules that are no less effective than the Federal regulations.
    Based on the discussion above, the Director is taking no further 
action in response to BLM's comments.
    The U.S. Department of Interior, Fish and Wildlife Service (FWS), 
submitted several comments, by letter dated April 30, 1996 
(administrative record No. NM-784), pertaining to proposed 19 NMAC Part 
15, concerning minimum requirements for coal mine operations 
exclusively under reclamation. As announced by OSM in the December 3, 
1998, Federal Register notice (which reopened the comment period on New 
Mexico's November 9, 1998, revisions proposed to its March 11, 1996, 
amendment), New Mexico withdrew all proposed rules at 19 NMAC 8.2 Part 
15 (administrative record No. NM-809). These rules had no counterpart 
in the Federal program and were repealed by New Mexico so that they no 
longer exist in its program. For this reason, the Director is taking no 
action in response to the FWS comments.
    The U.S. Department of Agriculture, Forest Service, Southwestern 
Region, commented, by letter dated December 9, 1998 (administrative 
record No. NM-811), that it had no comments.
    The U.S. Department of Army, Corps of Engineers, commented, by 
dated December 28, 1999 (administrative record No. NM-820), that it 
found the proposed changes to be satisfactory.
    BLM also commented, by letter dated January 26, 2000 
(administrative record No. NM-822) that New Mexico's proposed 19 NMAC 
8.2 2054.A allows 60 days for rough backfilling and grading when 
contour mining, yet 180 days for strip mining. BLM commented that this 
difference indicates that 60 days is an insufficient time for such 
remediation and recommended either the 180 day, 1500 linear feet limit 
or limits determined by plans of operations. BLM further stated that it 
preferred tying time frames to plans

[[Page 18893]]

because specific seams may lend themselves to different backfilling and 
grading schedules.
    As discussed in finding No. 3.A above, New Mexico proposed and OSM 
is approving, revisions to 19 NMAC 8.2 2054.A(1), (2), and (3), 
concerning time requirements for backfilling and grading of contour 
mining, open pit mining, and strip mining. New Mexico proposed to add 
the allowance for the Director of the New Mexico program to approve 
additional distance, as well as additional time, for rough backfilling 
and grading of contour mining, open pit mining, and strip mining, if 
the permittee can demonstrate, on the basis of the materials submitted 
that additional time or distance is necessary. Because New Mexico 
proposed (and OSM is approving) what BLM recommended in it's comment 
letter, the Director is taking no further action in response to this 
comment.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
agreement from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that New Mexico proposed to make in this 
amendment pertain to air or water quality standards. Under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(administrative records Nos. 776, 806, and 817). EPA did not respond to 
our request.

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. We requested comments on New Mexico's amendment from the 
SHPO and ACHP (administrative record Nos. 776, 806, and 817); the ACHP 
did not respond to our request.
    By letter dated April 19, 1996, the SHPO commented that it was 
unclear whether the protection from adverse effect of reclamation 
operations proposed at 19 NMAC 8.2 1517 (protection of public parks and 
historic places) included cultural resources identified at 19 NMAC 8.2 
1510 (general environmental resources), and recommended that 19 NMAC 
8.2 1517 be clarified to clearly include the cultural resources listed 
at 19 NMAC 8.2 1510.
    As announced by OSM in the December 3, 1998, Federal Register 
notice (which reopened the comment period on New Mexico's November 9, 
1998, revisions proposed to its March 11, 1996, amendment), New Mexico 
withdrew all proposed rules at 19 NMAC 8.2 Part 15 (administrative 
record No. NM-809). These rules concerned minimum requirements for coal 
mine operations exclusively under reclamation and had no counterpart in 
the Federal program; they were repealed by New Mexico and no longer 
exist in its program. Therefore, the Director is taking no action in 
response to this comment.

V. Director's Decision

    Based on the above findings, we approved the March 11, 1996, 
amendment sent to us by New Mexico, as revised on November 9, 1998, and 
December 1, 1999.
    We approved, as discussed in:
    (1) Finding No. 1, 19 NMAC 8.2 813.L, 19 NMAC 8.2 2054.A(2), and 19 
NMAC 8.2 2054.A(3), concerning minor wording, editorial, punctuation, 
grammatical, and/or recodification changes to previously-approved New 
Mexico rules;
    (2) Finding No. 2, 19 NMAC 8.2 2055.C(1) and 19 NMAC 8.2 1106.C, 
revisions to New Mexico's rules that contain language that is the same 
as or similar to the corresponding sections of the Federal regulations 
concerning, respectively, backfilling and grading requirements for the 
construction of small depressions and permit approval or denial 
pertaining to the probable cumulative hydrological impacts;
    (3) Finding No. 3.A, 19 NMAC 8.2 2054.A(1), (2), and (3), and 19 
NMAC 8.2 2054.A(5), concerning time requirements for backfilling and 
grading of contour mining, open pit mining, and strip mining and the 
schedule for backfilling and grading at completion of mining;
    (4) Finding No. 3.B, 19 NMAC 8.2 2076.B and 19 NMAC 8.2 2077.A, 
concerning the static factor of safety of 1.3 for road embankments;
    (5) Finding No. 4.A, 19 NMAC 8.2 813.K(1) through (3), concerning 
cross sections, maps, and plans required in a permit application; and
    (6) Finding No. 4.B, 19 NMAC 8.2 1412.A(2) (i) through (vii), 
concerning minimum requirements for all bond release applications.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 931, which codify decisions concerning the New Mexico 
program. We are making this final rule effective immediately to 
expedite the State program amendment process and to encourage States to 
make their programs conform with the Federal standards. SMCRA requires 
consistency of State and Federal standards.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based

[[Page 18894]]

upon counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

6. Unfunded Mandates

    OSM has determined and certifies under the Unfunded Mandates Reform 
Act (2 U.S.C. 1502 et seq.) that this rule will not impose a cost of 
$100 million or more in any given year on any local, State, or Tribal 
governments or private entities.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: March 21, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.

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

PART 931--NEW MEXICO

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

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


    2. Section 931.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec. 931.15  Approval of New mexico regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
 Original amendment submission date       Date of final publication                Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
March 11, 1996.....................  April 10, 2000....................  19 NMAC 8.2 813.K (1) through (3);
                                                                          813.L; 1106.C; 1412.A(2) (i) through
                                                                          (vii); 2054.A (1), (2), (3), and (5);
                                                                          2055.C(1); 2076.B; and 2077.A.
----------------------------------------------------------------------------------------------------------------

Sec.   931.16 [Amended]

    3. Section 931.16 is amended by removing and reserving paragraph 
(t).
[FR Doc. 00-8666 Filed 4-7-00; 8:45 am]
BILLING CODE 4310-05-M