[Federal Register Volume 67, Number 6 (Wednesday, January 9, 2002)]
[Proposed Rules]
[Pages 1173-1177]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-481]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[NM-042-FOR]


New Mexico Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of 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 or the Act). 
New Mexico proposes revisions to and additions of rules about 
definitions, general environmental resource information, operations 
that may have an adverse impact on publicly owned parks or places 
listed on the National Register of Historic Places, bond release 
applications, termination of jurisdiction, prime farmland reclamation, 
inspection frequency of abandoned sites, hearings for charges of 
violation, the qualifying criteria for assistance under the small 
operator's program, areas where mining is prohibited or limited, 
criteria for designating areas unsuitable for surface coal mining, 
applications for and approval of coal exploration operations of more 
than 250 tons, criteria for permit approval or denial, application and 
approval criteria for demonstrating valid existing rights, the one 
square mile criterion in the definition of intermittent streams, and 
miscellaneous non-substantive editorial revisions. New Mexico intends 
to revise its program to be consistent with the corresponding Federal 
regulations and SMCRA and improve operational efficiency.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.s.t., February 8, 2002. If requested, we will hold a public hearing 
on the amendment on February 4, 2002. We will accept requests to speak 
until 4 p.m., m.s.t., on January 24, 2002.

ADDRESSES: You should mail or hand-deliver written comments and 
requests to speak at the hearing to Willis L. Gainer at the address 
listed below.
    You may review copies of the New Mexico program, this 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.

Director, Albuquerque Field Office, Office of Surface Mining 
Reclamation and Enforcement, 505 Marquette Avenue NW, Suite 1200, 
Albuquerque, New Mexico 87102, Telephone: 505-248-5096.
Director, Mining and Minerals Division, Energy, Minerals and Natural 
Resources Department, 1120 South St.

[[Page 1174]]

Francis Drive, Santa Fe, New Mexico 87505, Telephone: 505-476-3400.

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: 505-248-
5096.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the New Mexico Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of the Act; and rules 
and regulations consistent with regulations issued by the Secretary 
pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On the basis 
of these criteria, the Secretary of the Interior conditionally approved 
the New Mexico program on December 31, 1980. You can find 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 in the December 31, 1980, Federal Register 
(45 FR 86459). You can also find later 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. Description of the Proposed Amendment

    By letter dated November 28, 2001, New Mexico sent us a proposed 
amendment (administrative record No. NM-853) to its program under SMCRA 
(30 U.S.C. 1201 et seq.). New Mexico sent the amendment in response to 
the June 19, 1997, and April 2, 2001, letters (administrative record 
Nos. NM-796 and NM-851) that we sent to New Mexico in accordance with 
30 CFR 732.17(c); in response to the required program amendments at 30 
CFR 931.16(e), (u) and (v); and to include changes made at its own 
initiative. The full text of the program amendment is available for you 
to read at the locations listed above under ADDRESSES.
    Specifically, New Mexico proposes, in response to the June 19, 
1997, 30 CFR part 732 letter, to:
    1. Revise 19.8.1.7.O(5) NMAC, the definition of ``other treatment 
facilities,'' to include chemical treatments or mechanical structures 
that have a point-source discharge and are utilized to comply with all 
applicable State and Federal water-quality laws and regulations;
    2. Revise 19.8.1.7.P(12) NMAC, the definition of ``previously mined 
areas,'' to mean land affected by surface coal mining operations prior 
to August 3, 1977, that has not been reclaimed to the requirements of 
SMCRA, the Act, and the New Mexico regulatory standards;
    3. Revise 19.8.1.7.Q(1) NMAC, the definition of ``qualified 
laboratory,'' to specify, in addition to the listed services, those 
services allowed under the small operator assistance program (SOAP) at 
19.8.32.3203 NMAC;
    4. Revise 19.8.8.801.B, concerning general environmental resources 
information in a permit application, to require (1) at paragraph B(1), 
a description (based on all available information, including, but not 
limited to, data of State and local archeological, historical, and 
cultural preservation agencies) of the nature of cultural and historic 
resources listed or eligible for listing on the National Register of 
Historic Places and known archeological features within the proposed 
permit and adjacent areas, and (2) at paragraph B(2), further 
evaluation of important historic and archeological resources that may 
be eligible for listing on the National Register of Historic Places, 
through collection of additional information, field investigations, or 
other appropriate analyses;
    5. Revise 19.8.9.912 NMAC, concerning proposed operations that may 
have an adverse effect on any publicly owned parks or any places listed 
on the National Register of Historic Places, to (1) require a plan to 
either (a) describe the measures to be used to prevent adverse impacts, 
or (b) minimize adverse impacts when valid existing rights exist or 
joint agency approval must be obtained, and (2) require the applicant 
to prevent or minimize impacts to any historic or archeological 
properties listed on or eligible for listing on the National Register 
of Historic Places through appropriate mitigation and treatment 
measures, which may be required to be taken after permit issuance 
provided that the required measures are completed before the properties 
are affected by any mining operation.
    6. Revise 19.8.14.1412 NMAC, concerning general requirements for 
bonding, by adding paragraph (2)(h) that requires an operator to 
include in an application for bond release a notarized statement which 
certifies that all applicable reclamation activities have been 
accomplished in accordance with the requirements of SMCRA, the Act, the 
regulatory program, and the approved reclamation plan;
    7. Add 19.8.14.1415.A and B NMAC, concerning termination of 
jurisdiction, stating that the Director (1) may terminate regulatory 
jurisdiction over a reclaimed surface coal mining and reclamation 
operation upon a written finding that all reclamation requirements have 
been successfully completed or the performance bond has been released 
and (2) must reassert jurisdiction over a site if it is demonstrated 
that either the written finding to release a performance bond or 
regulatory jurisdiction was based upon fraud, collusion, or 
misrepresentation of a material fact;
    8. Revise 19.8.20.2057.A NMAC, the definition of ``thin 
overburden,'' to allow a variation from backfilling to the approximate 
original contour when the overburden thickness times the swell factor, 
plus the thickness of other available waste materials, is less than the 
combined thickness of the overburden and the coal bed prior to removing 
the coal;
    9. Revise 19.8.20.2058.A NMAC, the definition of ``thick 
overburden,'' to allow a variation from backfilling to the approximate 
original contour when the overburden thickness times the swell factor 
exceeds the combined thickness of the overburden and the coal bed prior 
to removing the coal;
    10. Revise 19.8.24.2400 NMAC, concerning performance standards for 
operations on prime farmlands, by adding paragraph C requiring that the 
aggregate total prime farmland acreage shall not be decreased from that 
which existed prior to mining; water bodies, if any, to be constructed 
during mining and reclamation operations must be located within the 
post-reclamation non-prime farmland portions of the permit area; and 
the creation of any such water bodies must be approved by the 
regulatory authority with the consent of all affected property owners 
within the permit area;
    11. Add 19.8.29.2900.G and H NMAC that define ``abandoned site'' to 
mean a surface coal mining and reclamation operation for which the 
Director has made specified written findings and allow for a reduced 
inspection frequency determined by specified conditions at the site, 
but no less frequently than one complete inspection per quarter;
    12. Revise 19.8.31.3107.A NMAC, concerning a request for a hearing 
by a person charged with a violation, to allow 30 rather than 15 days 
from the date of service of the conference officer's action for the 
person to contest

[[Page 1175]]

the proposed penalty or alleged violation;
    13. Revise 19.8.32.3200.B NMAC by allowing an applicant to be 
eligible for assistance under SOAP if he establishes that his probable 
total actual and attributed production from all locations during any 
consecutive 12-month period either during the permit term or during the 
first 5 years after issuance of his permit, whichever period is 
shorter, will not exceed 300,000 rather than 100,000 tons;
    14. Revise 19.8.32.3203.A and B NMAC, concerning the small 
operators assistance program, to allow funding for additional services 
performed by a qualified laboratory including engineering analyses and 
designs necessary for the determination of probable hydrologic 
consequences, drilling, development of cross-section maps and plans, 
collection of archaeological and historic information and related 
plans, pre-blast surveys, and collection of site specific resources 
information and production of protection and enhancement plans for fish 
and wildlife habitats; and
    15. Revise 19.8.32.3206.A and A(2) and (3) NMAC to clarify that the 
SOAP applicant shall reimburse the Director for the costs of the 
services rendered if either the applicant's actual and attributed 
annual production of coal for all locations exceeds 300,000 tons 
(rather than 100,000 tons) or the permit is sold, transferred or 
assigned to another person and the transferee's total actual attributed 
annual production of coal for all locations exceeds 300,000 tons 
(rather than 100,000 tons) during any consecutive 12-month period 
either during the permit term or during the first 5 years after 
issuance of his permit.
    In response to the April 2, 2001, 30 CFR part 732 letter, New 
Mexico proposes revisions and additions of rules concerning valid 
existing rights (VER). Specifically, New Mexico proposes to:
    1. Revise 19.8.2.201.C NMAC, concerning areas where mining is 
prohibited or limited, to prohibit mining within 300 feet of any 
occupied dwelling unless, among other things, an access or haul road 
connects with an existing public road on the side of the public road 
opposite the dwelling;
    2. Revise 19.8.2.201.E NMAC, concerning areas where mining is 
prohibited or limited, to prohibit mining within 100 feet of a 
cemetery, unless the cemetery is relocated in accordance with all 
applicable laws and regulations;
    3. Add 19.8.2.201.F.(5) NMAC, concerning areas where mining is 
prohibited or limited, to prohibit mining on federal lands within a 
national forest, unless the U.S. Secretary of the Department of the 
Interior finds that there are no significant recreational, timber, 
economic, or other values that may be incompatible with surface coal 
mining operations and any surface operations or surface impacts will be 
incidental to an underground coal mine, or, with respect to lands that 
do not have significant forest cover within national forests west of 
the 100th meridian, the U.S. Secretary of Agriculture has determined 
that the surface mining operation is in compliance with several Federal 
acts;
    4. Revise 19.8.2.202 NMAC, concerning areas designated unsuitable 
for mining, to incorporate new procedures for determining whether an 
applicant proposes surface coal mining operations on lands protected 
under 19.8.2.201 NMAC and, if proposed, whether the applicant has valid 
existing rights to disturb protected lands;
    5. Add 19.8.2.203 NMAC, concerning criteria for designating areas 
unsuitable for mining, to identify when the prohibitions and 
limitations of 19.8.2.201 NMAC do not apply;
    6. Revise 19.8.3.300.C, concerning criteria for designating lands 
unsuitable for mining, to add a statement that all lands protected 
under 19.8.2 NMAC, concerning areas designated unsuitable for surface 
coal mining, are subject to designation as unsuitable for all or 
certain types of surface coal mining operations pursuant to the 
appropriate petitions;
    7. Revise 19.8.6.602.A(9), concerning an application for coal 
exploration of more than 250 tons and lands designated as unsuitable 
for mining, to add the requirements that an applicant (1) demonstrate 
that the proposed exploration will minimize interference with values 
for which the land was designated unsuitable and (2) include 
documentation of consultation with the owner of the feature causing the 
land to be protected and, when applicable, the agency with the primary 
jurisdiction over the feature;
    8. Add 19.8.6.603.B(4) NMAC, concerning approval of coal 
exploration for more than 250 tons, to require that the Director of the 
New Mexico program approve an application only if he finds that the 
activities on any lands protected under 19.8.2.201 NMAC will minimize 
interference with the values for which the lands were designated as 
unsuitable for mining. Prior to making this finding, the Director must 
provide reasonable opportunity to the owner of the features and, when 
applicable, to the agency with primary jurisdiction over the features, 
to comment on whether the finding is appropriate;
    9. Revise 19.8.7.704.C, concerning application requirements for 
identification of areas with a proposed permit that are within areas 
designated unsuitable for mining, to require that when an applicant 
proposes to conduct surface coal mining operations within 100 feet of a 
public road, an applicant must meet the requirements concerning the 
necessary approvals and public notice and hearing provided for at 
19.8.2.202.D;
    10. Revise 19.8.11.1106.D(3), concerning the criteria for permit 
approval or denial, to require that the Director find that the proposed 
permit area is not within an area designated as unsuitable for surface 
coal mining operations under 19.8 NMAC Parts 3 and 4, or within an area 
subject to the prohibitions of 19.8.2.201 NMAC; and
    11. Add a new part at 19.8.35.1 NMAC through 19.8.35.14 NMAC, 
concerning the definition of ``valid existing rights'' (VER), the 
requirement for an applicant to demonstrate compliance with the ``good 
faith/all permits standard'' or the ``need for and adjacent standard'' 
with respect to areas with VER, roads and VER, the submission and 
processing of requests for VER determinations, the requirements for a 
VER property rights demonstration, the initial review of a VER request, 
the public notice and comment requirements and procedures for 
processing a VER request, how decisions on a VER request will be made, 
opportunities for administrative and judicial review of VER 
determinations, and the availability of records for VER requests and 
determinations.
    In response to required program amendments at 30 CFR 931.16(e), (u) 
and (v), concerning the inclusion of a one square mile criterion in the 
definition of intermittent streams, New Mexico proposed an explanation 
of how the existing New Mexico rules governing ephemeral streams 
provide environmental protection for drainages of one square mile that 
is as effective as the Federal regulations. New Mexico's justification 
is based on unique regional characteristics of low rainfall in an arid 
environment and implementation of performance standards for diversions 
of ephemeral streams requiring use of site-specific designs that take 
into account the local watershed and rainfall conditions, use of the 
best technology currently available; protection against material damage 
both on and off-site; and, minimization of impacts to the hydrologic 
balance.
    In addition, at its own initiative, New Mexico proposes to revise 
the following rules:

[[Page 1176]]

    1. 19.8.1.7.(2) NMAC, concerning the definition of ``fixed 
assets,'' to clarify the meaning by adding ``facilities and equipment 
not used for the production, transportation or processing of coal;''
    2. 19.8.1.7.(5) NMAC, concerning the definition of ``fixed 
assets,'' to clarify that fixed assets and land or coal in place shall 
not be considered assets for the purposes of calculating net worth;
    3. 19.8.8.802.A(1) NMAC, concerning application requirements for 
hydrology and geology, to replace the word ``by'' with ``to;''
    4. 19.8.13.1307.A.(1)(d) NMAC, concerning transfer, assignment or 
sale of permit rights, to delete an inappropriate rule reference;
    5. 19.8.19.1900.A and B NMAC, concerning coal exploration, to 
correct a referenced rule citation;
    6. 19.8.19.1902.C.(2) NMAC, concerning coal exploration, to correct 
reference rule citations; and
    7. 19.8.20.2009.E and E(5) NMAC, concerning protection of the 
hydrologic balance, to correct referenced rule citations.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking your 
comments on whether the amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the New Mexico program.

Written Comments

    Send your written or electronic comments to OSM at the address 
given above. Your comments should be specific, pertain only to the 
issues proposed in this rulemaking, and include explanations in support 
of your recommendations. We will not consider or respond to your 
comments when developing the final rule if they are received after the 
close of the comment period (see Dates). We will make every attempt to 
log all comments into the administrative record, but comments delivered 
to an address other than the Albuquerque Field Office may not be logged 
in.

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.

Public Hearing

    If you wish to speak at the public hearing, contact the person 
listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., m.s.t., on 
January 24, 2002. If you are disabled and need special accommodations 
to attend a public hearing, contact the person listed under FOR FURTHER 
INFORMATION CONTACT. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak, we will not hold the hearing.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her comments. The public 
hearing will continue on the specified date until everyone scheduled to 
speak has been given an opportunity to be heard. If you are in the 
audience and have not been scheduled to speak and wish to do so, you 
will be allowed to speak after those who have been scheduled. We will 
end the hearing after everyone scheduled to speak and others present in 
the audience who wish to speak, have been heard.

Public Meeting

    If only one person requests an opportunity to speak, we may hold a 
public meeting rather than a public hearing. If you wish to meet with 
us to discuss the amendment, please request a meeting by contacting the 
person listed under FOR FURTHER INFORMATION CONTACT. All such meetings 
are open to the public and, if possible, we will post notices of 
meetings at the locations listed under ADDRESSES. We will make a 
written summary of each meeting a part of the administrative record.

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 regulation.

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 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 because 
each 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.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

[[Page 1177]]

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)).

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.).

Regulatory Flexibility Act

    The Department of the Interior certifies 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, which 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. 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, Federal, State, or local government agencies, or geographic 
regions; 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 an unfunded mandate on state, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. 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 did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 5, 2001.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 02-481 Filed 1-8-02; 8:45 am]
BILLING CODE 4310-05-P