[Federal Register Volume 71, Number 29 (Monday, February 13, 2006)]
[Proposed Rules]
[Pages 7477-7480]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-1976]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SATS No. NM-044]


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 statutes concerning 
administrative review of decisions and the award of attorney's fees and 
legal costs. New Mexico intends to revise its program to be consistent 
with the corresponding provisions of SMCRA and clarify the 
administrative and judicial review process.
    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 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.s.t. March 15, 2006. If requested, we will hold a public hearing on 
the amendment on March 10, 2006. We will accept requests to speak until 
4 p.m., m.s.t. on February 28, 2006.

ADDRESSES: You may submit comments, identified by ``SATS No. NM-044'', 
by any of the following methods:
     E-mail: [email protected]. Include ``SATS No. NM-044'' in 
the subject line of the message.
     Mail/Hand Delivery/Courier: Willis Gainer, Chief, 
Albuquerque Field Office, Office of Surface Mining Reclamation and 
Enforcement, 505 Marquette Avenue, NW., Suite 1200, Albuquerque, NM 
87102, Telephone: (505) 248-5096.
    E-mail address: [email protected].
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and SATS No. NM-044. For detailed instructions on submitting comments 
and additional information on the rulemaking process, see the ``Public 
Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION section 
of this document.
    Docket: Access to the docket, to 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, may be 
obtained 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 the Office of Surface Mining 
Reclamation and Enforcement's (OSM) Albuquerque Field Office. In 
addition, you may review a copy of the amendment during regular 
business hours at the following locations:
    Willis Gainer, Chief, Albuquerque Field Office Office of Surface 
Mining Reclamation and Enforcement, 505 Marquette Avenue NW., Suite 
1200, Albuquerque, NM 87102 Telephone: (505) 248-5096, E-mail 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. E-mail 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, 931.16, and 931.30.

II. Description of the Proposed Amendment

    By letter dated November 18, 2005, New Mexico sent us a proposed 
amendment to its program (administrative record No. 874) under SMCRA 
(30 U.S.C. 1201 et seq.). New Mexico sent the amendment in response to 
a condition of the New Mexico program approval at 30 CFR 931.11(e), 
concerning the award of attorney's fees and legal costs, and to include 
the changes made at its own initiative to clarify the administrative 
and judicial appeals process. The full text of the program amendment is 
available for you to read at the locations listed above under 
ADDRESSES.
    New Mexico proposes revisions, described below, of the New Mexico 
Surface Mining Act (NMSA) 1978 and New Mexico Annotated Code (NMAC). 
The proposed revisions of NMSA 1978 were adopted by the New Mexico 
legislature and became effective June 17, 2005. The proposed revisions 
of NMAC were adopted by the Coal Surface Mining Commission on November 
16, 2005, but will not become effective until they are published in the 
New Mexico Register.
    New Mexico proposes stylistic editorial revisions to update 
citations and grammar of NMSA 1978 at (1) Section 69-25A-18.A., B., C., 
D., and F., concerning the decisions of the director of the New Mexico 
program and

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appeals, and (2) Section 69-25A-29.A., B., C., D., E., and F., 
concerning the administrative review of a notice or order by the 
director of the New Mexico program.
    New Mexico proposes to revise NMSA 1978 at Section 69-25A-29.F, 
concerning administrative review and the assessment of costs and 
expenses, including attorney fees, for a person's participation in the 
administrative proceedings, including judicial review of agency 
actions, by deleting the provision stating that no such assessment 
shall be imposed upon the director of the New Mexico program.
    New Mexico proposes to revise NMSA 1978 at Section 69-25A-29, 
concerning administrative review, by deleting entirely 69-25A-29.G., 
which provided for an appeal to the commission for relief by any person 
aggrieved by a decision of the director of the New Mexico program.
    New Mexico proposes stylistic editorial revisions of NMSA 1978, at 
Section 69-25A-30A. and B., concerning judicial review, to update 
grammar and clarify that appeals to the district court may be made by a 
party who is aggrieved by a decision of the director of the New Mexico 
program.
    New Mexico proposes revision of NMSA 1978 at Section 69-25A-36, 
concerning termination of agency life, to extend the authority of the 
Coal Surface Mining Commission to operate according to the provisions 
of NMSA from July 1, 2005, until July 1, 2012.
    New Mexico proposes editorial revisions, stylistic in nature, to 
correct citations and/or clarify sentence or paragraph structure, of 
NMAC at the following sections:
    Section 19.8.11.1100.A.(3), D., and D.(2), concerning public 
notices of filing of permit applications;
    Section 19.8.11.1101.C., concerning opportunity for submission of 
written comments on permit applications;
    Section 19.8.11.1102.A and B.(2), concerning the right to file 
written objections;
    Section 19.8.11.1103.A.(3), B., B.(1), D., E.(1), and F., 
concerning hearings and conferences;
    Section 19.8.11.1104.B, concerning public availability of 
information in permit applications on file with the director;
    Section 19.8.11.1105.C.(2), D., E., and F., concerning review of 
permit applications;
    Section 19.8.11.1106.C., D.(3), F., G.(1) and (2), and N., 
concerning criteria for permit approval or denial;
    Section 19.8.11.1107.A., B., B.(1), B.(1)(b), B.(3), C., D., E., 
and F., concerning general procedures for improvidently issued permits;
    Section 19.8.11.1108.B, concerning existing structures and criteria 
for permit approval or denial;
    Section 19.8.11.1109.A.(4), B., B.(1) and (2), B.(2)(b), B.(3), and 
D., concerning permit approval or denial actions;
    Section 19.8.11.1110.A.(1), concerning the rescission process for 
improvidently issued permits;
    Section 19.8.11.1111.B., concerning permit terms;
    Section 19.8.11.1113.C.(2), concerning conditions of permit for 
environment, public health and safety;
    Section 19.8.11.1114., concerning conformance of permit;
    Section 19.8.11.1115.A., B., and C., concerning verification of 
ownership or control application information;
    Section 19.8.11.1116.B. and B.(2)(b), concerning review of 
ownership or control and violation information;
    Section 19.8.11.1117.A., A.(1), (2) and (3), B., C., D., D.(1) and 
(2), and D.(2)(a) and (b), concerning procedures for challenging 
ownership or control links shown in the applicant violator system; and
    Section 19.8.11.1118.B, B.(1), (2) and (3), B.(3)(1), C., C.(1)(a) 
through (c), and C.(2), concerning standards for challenging ownership 
or control links and the status of violations.
    New Mexico proposes to revise Section 10.8.12.1201 NMAC, concerning 
appeals for administrative review by the Coal Surface Mining Commission 
of decisions by the director of the New Mexico program, by deleting it 
entirely and reserving it.
    New Mexico proposes to revise Section 10.8.12.1202 NMAC, concerning 
judicial review, to state that (1) a party to a proceeding before the 
director who is aggrieved by a director's decision issued after a 
hearing may obtain a review of that decision pursuant to Section 39-3-
1.1 NMSA 1978; and (2) a person who is or may be aggrieved by a rule or 
an amendment or repel of a rule the commission adopts may appeal to the 
court of appeals for review pursuant to Subsection B of 69-25A-30 NMSA 
1978.
    New Mexico proposes editorial revisions of Section 19.8.12.1203.A 
through J. and L. NMAC, concerning formal review of notices of 
violation, cessation orders, and show cause orders by the director of 
the New Mexico program, that are stylistic in nature to clarify the 
grammar and sentence structure.
    New Mexico proposes revision of Section 19.8.12.1203.K NMAC, 
concerning formal review of notices of violation, cessation orders, and 
show cause orders issued by the director of the New Mexico program, to 
state that the district court may review the director's decisions 
pursuant to Subsection G of Section 69-25A-29 NMSA 1978 and 
19.8.12.1202. NMAC.
    New Mexico proposes to revise Part 19.8.12.1200 NMAC by adding 
Section 19.8.12.1204.A through G, concerning petitions for award of 
legal costs and expenses, to specify who may file, time and place for 
filing, contents of the petition, timeframe for response to the 
petition, who may receive an award, what the award may include, and 
where to appeal a decision concerning the award of such legal costs and 
expenses.

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 
written 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-044'' 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. In the final rulemaking, we will not consider or 
include in the administrative record any electronic comments received 
after the time indicated under DATES or at e-addresses other than the 
Albuquerque Field Office.

Availability of Comments

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not

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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 
February 28, 2006. 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) 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. 4321 et 
seq).

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. 
3501 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) of the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million.

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    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    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 14, 2005.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.
[FR Doc. E6-1976 Filed 2-10-06; 8:45 am]
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