[Federal Register Volume 65, Number 110 (Wednesday, June 7, 2000)]
[Proposed Rules]
[Pages 36101-36103]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14357]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS NO NM-039-FOR]


New Mexico Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is 
announcing receipt of revisions pertaining to a previously proposed 
amendment to the New Mexico regulatory program (hereinafter, the ``New 
Mexico program'') under the Surface Mining Control and Reclamation Act 
of 1977 (SMCRA). The revisions to New Mexico's proposed rules pertain 
to the definitions of ``material damage'' and``occupied residential 
dwelling and associated structures'' and subsidence control during 
underground mining. The amendment is intended to revise the New Mexico 
program to be consistent with the corresponding Federal regulations.

DATES:  Written comments must be received by 4:00 p.m., m.d.t. June 22, 
2000.

[[Page 36102]]


ADDRESSES: You should mail or hand deliver written comments to Willis 
L. Gainer at the address listed below.
    You may review copies of the New Mexico program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Albuquerque Field Office.
    Willis L. Gainer, Director, Albuquerque Field Office, Office of 
Surface Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., 
Suite 1200, Albuquerque, New Mexico 87102.
    Mining and Minerals Division, New Mexico Energy & Minerals 
Department, 2040 South Pacheco Street, Santa Fe, New Mexico 87505, 
Telephone: (505) 827-5970.

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

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 November 13, 1998, New Mexico submitted a proposed 
amendment (administrative record No. NM-804) to its program pursuant to 
SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed 
amendment in response to the required program amendments at 30 CFR 
931.16(o), (w), (x), (y) and (aa), and at its own initiative.
    OSM announced receipt of the proposed amendment in the December 3, 
1998 Federal Register (63 FR 66772), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. NM-808). 
Because no one requested a public hearing or meeting, none were held. 
The public comment periods ended on January 4, 1999.
    During our review of the November 13, 1998 amendment, OSM 
identified concerns and notified New Mexico of the concerns by letter 
dated January 7, 1999 (administrative record No. NM-815). New Mexico 
responded in a letter dated December 1, 1999, by submitting a revised 
amendment (administrative record No. NM-816).
    We announced receipt of the proposed amendment in the December 22, 
1999, Federal Register (63 FR 71698), and invited public comment on its 
adequacy (administrative record No. NM-818). The public comment period 
ended on January 21, 2000.
    During our review of the December 1, 1999, revisions, OSM 
identified concerns and notified New Mexico of the concerns by letter 
dated March 28, 2000 (administrative record no. NM-827). New Mexico 
responded in a letter dated April 26, 2000, by submitting a revised 
amendment (administrative record No. NM-829).
    New Mexico proposes further revisions to 19 NMAC 8.2 107.M(1) and 
0(2), definitions of ``material damage'' and ``occupied residential 
dwelling and associated structures''; 19 NMAC 8.2 2071, subsidence 
control; and 19 NMAC 8.2 918.D, detailed plans of underground mine 
workings.
    Specifically, New Mexico prposes to revise;
    (1) The definitions of ``material damage'' and ``occupied 
residential dwelling and associated structures'' at 19 NMAC 8.2 
107.M(1) and O(2) to be applicable to the rules at 19 NMAC 8.2 2067;
    (2) Subsidence control at 19 NMAC 8.2 2071.A, by providing that the 
Director of the New Mexico program may (a) allow underground mining 
activities beneath or adjacent to beneath or adjacent to any perennial 
stream or impoundment having a storage volume of 20 acre-feet or more, 
if the Director, on the basis of detailed subsurface information, 
determines that subsidence will not cause material damage, or a 
reduction in a reasonably forseeable use, to streams, water bodies and 
associated structures, and (b) if material damage occurs, suspend 
underground mining until the subsidence control plan is modified to 
ensure prevention of further material damage to such features or 
facilities;
    (3) Subsidence control at 19 NMAC 8.2 2071.B, to (1) require that 
underground mining activities beneath any aquifer, perennial stream or 
water body that serves as a significant source of water supply to a 
public water system must be conducted so as to avoid disruption of the 
aquifer and consequent exchange of ground water between the aquifer and 
other strata, and (2) to provide that the Director of the New Mexico 
program will prohibit mining in the vicinity of the aquifer or may 
limit the percentage of coal extraction to protect the aquifer and 
other water supplies unless a finding can be made, base on detailed 
documentation, that subsidence will not cause material damage to, or 
reduce the reasonable foreseeable use of, these features;
    (4) Subsidence control at 19 NMAC 8.2 2071.C, to prohibit 
underground mining activities from being conducted beneath or in close 
proximity to any public buildings, including but not limited to 
churches, schools, hospitals, courthouses and government offices, 
unless the Director of the New Mexico program, on the basis of detailed 
subsurface information, determines that subsidence from those 
activities will not cause material damage, or reduce a reasonably 
foreseeable use, to these structures and specifically authorizes the 
mining activities;
    (5) Subsidence control at 19 NMAC 8.2 2071.D, to correct a 
typographical error by replacing the term ``permanent'' with 
``perennial''; and
    (6) Requirements for detailed plans of underground mine workings at 
19 NMAC 8.2 918.D, by adding a paragraph that (1) requires that an 
permittee shall submit, consistent with a schedule approved by the 
Director of the New Mexico program, a detailed plan of actual 
underground workings that includes maps and descriptions, as 
appropriate, of significant features of the underground mine, including 
the size, configuration, and approximate location of pillars and 
entries, extraction ratios, measures taken to prevent or minimize 
subsidence and related damage, areas of full extraction, and other 
information required by the regulatory authority, and (2) provides, 
upon request of the operator, that the information submitted with the 
detailed plan may be held as confidential, in accordance with the 
requirements of 19 NMAC 8.2 1104.
    In addition, New Mexico explained that the State contains few 
bodies of water 20-acre feet or more that are not man-made impoundments 
and that there are no naturally occurring bodies of water 20-acre feet 
or more in the coal fields in New Mexico. Therefore, New Mexico's 
proposed revisions at 19 NMAC 8.2 2071 refer to ``impoundments'' rather 
than ``naturally occurring bodies of water 20-acre feet or more.''

[[Page 36103]]

III. Public Comment Procedures

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. In the final rulemaking, we will not necessarily 
consider or include in the administrative record any comments received 
after the time indicated under DATES or at locations other than the 
Albuquerque Field Office.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SPATS No. NM-039-FOR'' and your name and return address in your 
Internet message. If you do not receive a confirmation that we have 
received your Internet message, contact the Albuquerque Field Office at 
(505) 248-5096.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that, to the 
extent allowable by law, 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.

Executive Order 13132--Federalism

    This rule does not have Federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

National Environmental Policy Act

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 102 
(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). 
A determination has been made that such decisions are categorically 
excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

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

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not 
have an annual effect on the economy of $100 million; (b) will not 
cause a major increase in costs or prices for consumers, individual 
industries, geographic regions, or Federal, State or local governmental 
agencies; and (c) does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises. This determination is based upon the fact that the State 
submittal which is the subject of this rule is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation was not considered a 
major rule.

Unfunded Mandates

    This rule will not impose 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 24, 2000.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 00-14357 Filed 6-6-00; 8:45 am]
BILLING CODE 4310-05-M