[Federal Register Volume 68, Number 244 (Friday, December 19, 2003)]
[Proposed Rules]
[Pages 70749-70752]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31343]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SATS No. NM-043-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 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 of permit modification, permit revision, and temporary 
cessation of operations; permit fees; administrative review of 
decisions; review of permits; requirements for permit modifications; 
public hearings for permit modifications; and additional requirements 
for temporary cessation of operations. New Mexico intends to revise its 
program to clarify ambiguities, provide additional safeguards, and 
improve operational efficiency.
    This document gives the times and locations that the New Mexico 
program and proposed amendment to that program are available for your 
inspection, the comment period during

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which you may submit written comments on the amendment, and the 
procedures that we will follow for the public hearing, if one is 
requested.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.d.t. January 20, 2004. If requested, we will hold a public hearing on 
the amendment on January 13, 2004. We will accept requests to speak 
until 4 p.m., m.d.t. on January 5, 2004.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Willis Gainier 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 
Office of Surface Mining Reclamation and Enforcement (OSM's) 
Albuquerque Field Office.

Willis Gainer, Chief, Albuquerque Field Office, Office of Surface 
Mining Reclamation and Enforcement, 505 Marquette Ave., NW., Suite 
1200, Albuquerque, NM 87102, Telephone: (505) 248-5096, Internet 
address: [email protected].
Bill Brancard, Director, Mining and Minerals Division, Energy, Minerals 
and Natural Resources Department, 1220 South St. Francis Drive, Santa 
Fe, NM 87505, Telephone: (505) 476-3400.

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. 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 this Act . . .; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this 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 at 30 CFR 
931.11, 931.15 and 931.30.

II. Description of the Proposed Amendment

    By letter dated October 27, 2003, New Mexico sent us a proposed 
amendment to its program (administrative record No. 869) under SMCRA 
(30 U.S.C. 1201 et seq.). New Mexico sent the amendment to include the 
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.
    New Mexico proposes non-substantive editorial revisions at 
19.8.13.1301.A(4) and E(1) New Mexico Annotated Code (NMAC) concerning 
permit revisions and hearing and notice requirements. New Mexico also 
proposes the following substantive revisions at:
    19.8.1.7.P NMAC by adding definitions at, respectively, 
19.8.1.7.P(8) and (9) NMAC, of ``permit modification'' to mean an 
alteration of the terms or requirements of a permit, which alteration 
is not a permit revision, and ``permit revision'' to mean a significant 
alteration of the terms or requirements of a permit, as identified in 
19.8.13.1301.A NMAC;
    19.8.1.7.T NMAC by adding a definition of ``temporary cessation of 
operations'' at 19.8.1.7.T(2) NMAC to mean the cessation of mining or 
reclamation operations for more than thirty days and where a reasonable 
expectation of the continuation of mining can be demonstrated by the 
permittee;
    19.8.5.506.A, B, D, E, F, and G NMAC, concerning permit and 
exploration fees, to, respectively, (1) increase the original permit 
filing fee to $2,500 plus $25 per acre for estimated area to be 
disturbed during the first year of mining, (2) commencing the second 
year to increase the annual permit fee to $2,500 with an acreage fee of 
$25 per acre of disturbed permit area for which the bond has not been 
released, provided that $15,000 per year acreage fee is the maximum 
charge per year for all disturbance and cap the maximum annual fee at 
$17,500 and require that the annual fee be submitted with the annual 
report; (3) increase the fee for transferring a permit to $1000; (4) 
increase the fee for a revision that expands the size of the permit to 
$4000 plus $25 per acre for the estimated area to be disturbed during 
the first year of mining in the expansion area and to require a fee for 
all other permit revisions of $4000; (5) increase the fee for filing a 
notice of intention to explore to $100; and (6) increase the fee for 
filing an application for exploration of greater than 250 tons of coal;
    19.8.12.1200.A NMAC, concerning administrative review of permit and 
exploration decisions, to (1) provide the permittee or any person with 
an interest which is or may be adversely affected by the decision 
regarding a permit modification an opportunity to request a hearing on 
the reasons for the final decision and (2) require that any request for 
a hearing on any permit and exploration decision be made in writing and 
state with reasonable specificity the reasons for the request and 
objection to the decision;
    19.8.13.1300.B NMAC to clarify that, at any time, the Director of 
the New Mexico program may, by order, require reasonable revisions or 
modification of the approved permit;
    19.8.13.1301.B, C, and E(2) NMAC to (1) clarify that the existing 
language at 19.8.13.1301.A NMAC defines when a permit revision is 
required and to require that a permit modification be obtained for all 
other changes to a permit not classified as a permit revision; (2) to 
state that the operator may not implement any permit revision or permit 
modification before obtaining the Director's written approval; and (3) 
state that (a) within 10 days after the filing of a complete 
application for a permit modification, the Director shall issue a 
decision approving or denying the application in whole or in part and 
promptly provide a written copy of the decision to the permittee and 
other interested parties and (b) within 30 days after the decision 
notification, the permittee or any person may request a formal hearing 
in regard to the Director's decision, in accordance with 19.8.12.1200 
NMAC; and
    19.8.20.2073 NMAC, concerning temporary cessation of operations, by 
adding new C, D, E, and F, to state (1) at the Director's discretion, 
the permittee may be directed to take other reasonable actions 
consistent with 19.8 NMAC to ensure the protection of public safety and 
the environment while the operation is under temporary cessation; (2) 
that no temporary cessation of mining and reclamation operations shall 
extend beyond the current permit term, unless the Director approves an 
extension of the temporary cessation during the permit renewal

[[Page 70751]]

process conducted in accordance with 19.8.13 NMAC; (3) that to continue 
under a temporary cessation beyond an existing permit term, the 
permittee must demonstrate that the mining operation has a reasonable 
expectation of continuing operations; and (4) that a temporary 
cessation may not be used to justify a lengthy delay to final 
reclamation or to preserve facilities beyond what may be considered 
appropriate for their use in association with an existing permit.

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.

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: SATS No. NM-043-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) 248-5091.

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 5, 2004. 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 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

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)

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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.

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: November 21, 2003.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. 03-31343 Filed 12-18-03; 8:45 am]
BILLING CODE 4310-05-P