[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Rules and Regulations]
[Pages 68339-68345]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-27360]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SATS Number NM-047-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: We are approving an amendment to the New Mexico regulatory 
program (the ``New Mexico program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). New Mexico is proposing 
additions to and revisions of the New Mexico Administrative Code (NMAC) 
to improve and clarify the public notification process during 
permitting actions, to correct outdated citations, and to comply with 
formatting requirements for New Mexico administrative law. The 
revisions also include non-substantive editorial changes. New Mexico 
revised its program to provide additional safeguards, clarify 
ambiguities, and achieve stylistic consistency.

DATES: Effective Date: November 18, 2008.

FOR FURTHER INFORMATION CONTACT: Bob Postle, Branch Chief, Field 
Operations, Program Support Division; Telephone: (505) 248-5070; 
Internet address: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 (a)(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 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 931.10, 931.11, 931.13, 931.15, 931.16, 
and 931.30.

II. Submission of the Proposed Amendment

    By letter dated November 28, 2007, New Mexico sent us an amendment 
to its program (SATS number NM-047-FOR; Administrative Record No. OSM-
2007-0021-0002) under SMCRA (30 U.S.C. 1201 et seq.). New Mexico sent 
the amendment to include changes made at its own initiative.
    We announced receipt of the proposed amendment in the January 11, 
2008, Federal Register (73 FR 1983). 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. OSM-2007-0021-0002). We did not hold a public hearing or meeting 
because no one requested one. The public comment period ended on 
February 11, 2008. We did not receive any comments.

III. OSM'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.

A. Minor Revisions to New Mexico's Rules

    New Mexico proposed minor wording, editorial, punctuation, 
grammatical, citation, stylistic, and recodification changes to the 
following previously approved rules at NMAC:

 19.8.1.7.B(1); G(1); N, and R(3)--Definitions
 19.8.2.201.B.(2)(a)--Areas Where Mining Is Prohibited or 
Limited
 19.8.2.202.F--Procedures/Review by Other Agencies
 19.8.4.401.A and B--Procedures: Initial.
    Processing, Record-Keeping, and Notification Requirements
 19.8.4.402.B--Procedures: Hearing Requirements
 19.8.5.504.B--Permit Application Filing Deadlines
 19.8.6.601.F--General Requirements: Exploration of Less Than 
250 Tons
 19.8.6.603.B(2)--Applications: Approval or Disapproval of 
Exploration of More Than 250 Tons
 19.8.6.606.B--Public Availability of Information
 19.8.7.705.A--Permit Term Information
 19.8.7.708--Identification of Location of Public Office for 
Filing of Application
 19.8.8.801.B--General Environmental Resources Information
 19.8.8.803.B--Geology Description
 19.8.8.814.A, B(5), D, and D(2)--Prime Farmland Investigation
 19.8.9.901.B(1) and B(3)--Operation Plan: Existing Structures
 19.8.9.903.B(3)--Operation Plan: Maps and Plans
 19.8.9.906.B(2)--Reclamation Plan: General Requirements
 19.8.9.907.B(1)--Reclamation Plan: Protection of Hydrologic 
Balance
 19.8.9.909.A(2)--Reclamation Plan: Ponds, Impoundments, Banks, 
Dams, and Embankments
 19.8.9.913--Relocation or Use of Public Roads
 19.8.9.916--Transportation Facilities

[[Page 68340]]

 19.8.9.917--Return of Coal Processing Waste to Abandoned 
Underground Workings
 19.8.10.1000.A(4)(a) and A(4)(b)--Experimental Practices in 
Mining
 19.8.10.1000.E--Experimental Practices in Mining
 19.8.10.1001.A, B(1)(b), and (C)--Mountaintop Removal Mining
 19.8.10.1002.B and C--Steep Slope Mining
 19.8.10.1003.A(3) and A(4)(c)--Permits Incorporating Variances 
From Approximate Original Contour Restoration Requirements for Steep 
Slope Mining
 19.8.10.1004.A(1), A(4), and B--Prime Farmlands
 19.8.10.1005.B(8)--Variances for Delay in Contemporaneous 
Reclamation Required in Combined Surface and Underground Mining 
Operations
 19.8.10.1006.C--Surface Coal Mining and Reclamation Operation 
on Areas or Adjacent to Areas Including Alluvial Valley Floors
 19.8.11.1100.A(3)--Public Notices of Filing of Permit 
Applications
 19.8.11.1101.A and C--Opportunity for Submission of Written 
Comments on Permit Applications
 19.8.11.1102.B(2)--Right to File Written Objections
 19.8.11.1103.B(4)--Hearings and Conferences
 19.8.11.1105.B--Review of Permit Applications
 19.8.11.1106.K--Criteria for Approval or Denial
 19.8.11.1108.C--Criteria for Permit Approval or Denial: 
Existing Structures
 19.8.11.1109.F--Permit Approval or Denial Actions
 19.8.11.1111.B(4)--Permit Terms
 19.8.11.1112.C--Conditions of Permits: General and Right of 
Entry
 19.8.13.1301.G--Permit Revisions
 19.8.13.1303.A(3) and B(2)--Permit Renewals: Complete 
Applications
 19.8.13.1305.A(4)--Permit Renewals: Approval or Denial
 19.8.13.1307.A(2)(d), B, and C(2)--Transfer, Assignment or 
Sale of Permit Rights: Obtaining Approval
 19.8.14.1401.B and D--Requirement to File a Bond
 19.8.14.1403.A, C, D, D(1), and D(2)--Period of Liability
 19.8.14.1406.C, D, E, and E(2)--General Terms and Conditions 
of Bond
 19.8.14.1407.A, B(1), and B(4)--Bond Requirements for 
Underground Coal Mines and Long-Term Coal-Related Surface Facilities 
and Structures
 19.8.14.1409.A(1), B(3), D(1), and E--Collateral Bonds
 19.8.14.1410.D(4)--Self-Bonding
 19.8.14.1411.B--Replacement of Bonds
 19.8.14.1412.A(3), B(2), C(2), and D--Requirement to Release 
Performance Bonds
 19.8.14.1413.A(2)(b), C, and D--Forfeiture Bonds
 19.8.14.1414.B and D--Terms and Conditions for Liability 
Insurance
 19.8.19.1902.C and C(3)(c)--Performance Standards for Coal 
Exploration
 19.8.20.2010.A--Hydrologic Balance: Water Quality Standards 
and Effluent Limitations
 19.8.20.2017.E(1), E(2), E(4), and E(6)--Hydrologic Balance: 
Permanent and Temporary Impoundments
 19.8.20.2019--Hydrologic Balance: Protection of Ground Water 
Recharge Capacity
 19.8.20.2026.B, B(1), and B(2)--Hydrologic Balance: 
Underground Mine Entry and Access Discharges
 19.8.20.2037.B--Disposal of Excess Spoil: Durable Rock Fills
 19.8.20.2047--Coal Processing Waste: Dams and Embankments: 
General Requirements
 19.8.20.2049.A(1)--Coal Processing Waste: Dams and 
Embankments: Design and Construction
 19.8.20.2050--Air Resources Protection
 19.8.20.2056--Backfilling and Grading: Covering Coal And Acid- 
and Toxic-forming Material
 19.8.20.2065 and 2065.B--Revegetation: Standards for Success
 19.8.20.2066--Revegetation: Tree and Shrub Stocking
 19.8.24.2404.C(4)(a) and (b), C(5), and C(6)--Prime Farmland: 
Revegetation
 19.8.26.2601.A, A(2), and D--Steep Slopes: Performance 
Standards
 19.8.27.2701.B--Coal Processing Plants: Performance Standards
 19.8.29.2900.B and H--Inspections
 19.8.30.3001.J--Notices of Violation
 19.8.30.3002.D--Permit Suspension or Revocation
 19.8.31.3105.B--Procedure for Civil Penalty Assessment
 19.8.31.3106.B and D--Procedure for Assessment Conference
 19.8.31.3110.A--Amount of Individual Civil Penalty
 19.8.34.3400--Scope
 19.8.34.3401--Definition
 19.8.34.3402 and 3402.A--Application Requirements and 
Procedures
 19.8.34.3403--Contents of Applications for Exemption
 19.8.34.3404--Public Availability of Information
 19.8.34.3405--Requirements for Exemptions
 19.8.34.3406--Conditions of Exemption and Right of Inspection 
and Entry
 19.8.34.3407--Stockpiling of Minerals
 19.8.34.3408 and 3408.C--Revocation and Enforcement
 19.8.34.3409, 3409.A and A(2)--Reporting Requirements
 19.8.35.12.C--How a Decision on a VER Request Will be Made
 19.8.35.14--Availability of Records for VER Requests and 
Determinations

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

B. 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 is similar to the corresponding 
sections of the Federal regulations (NMAC citation followed by Federal 
counterpart citation and NMAC section title):

 19.8.1.7.G(1), 30 CFR 707.5, Definitions
 19.8.13.1301.E(2)(b), 30 CFR 775.11(a), Permit Revisions
 19.8.20.2065.A, 30 CFR 817.116(a)(1), Revegetation: Standards 
for Success
 19.8.20.2065.B(1), 30 CFR 817.116(a)(2), Revegetation: 
Standards for Success
 19.8.20.2068, 30 CFR 817.122, Subsidence Control: Public 
Notice
 19.8.30.3000, 30 CFR 843.11(c), Cessation Orders
 19.8.31.3108.B, 30 CFR 845.20(b), Final Assessment and Payment 
of Penalty
 19.8.31.3110.B, 30 CFR 846.14(b), Amount of Individual Civil 
Penalty
    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.

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

1. NMAC 19.8.5.504.D, 30 CFR 773.6(c), Permit Application Filing 
Deadlines
    New Mexico proposed to eliminate NMAC 19.8.5.504.D concerning 
applications for a permit to conduct surface coal mining and 
reclamation operations that do not meet the requirements of NMAC 
19.8.5.501 and 19.8.5.502. NMAC 19.8.5.501 and 19.8.5.502 concern 
continuing interim

[[Page 68341]]

program permits and Federal permits, respectively. There are no longer 
any such interim or Federal permits that need to be continued in New 
Mexico, so citing them in this section is moot.
    New Mexico also omitted the last sentence of 19.8.5.504.D, which 
makes reference to the rules and regulations of NMAC 19.8.11.1103.E, 
since 1103.E is proposed to be deleted with this amendment package. We 
approve these changes to New Mexico Administrative Code.
2. NMAC 19.8.7.701.F, Identification of Interests
    New Mexico's existing rules require the applicant to submit the 
name and address of each owner of record of all property (surface and 
subsurface) contiguous to any part of the proposed permit area. New 
Mexico proposed to modify its existing rules by adding language that 
requires the permit application to also include ``the owner of record 
and residents of all dwellings and structures on and within one-half 
mile (2640 feet) of any part of the proposed permit area''. This 
provision adds specificity and is no less effective than the Federal 
counterpart at 30 CFR 778.13(b), which requires ``the name and address 
of each owner of record of all property (surface and subsurface) 
contiguous to any part of the proposed permit area''. Therefore, we 
find that NMAC 19.8.7.701.F is no less effective than 30 CFR 778.13(b) 
and approve it.
3. NMAC 19.8.8.812.D, Maps: General Requirements
    New Mexico proposed to modify its existing rules by adding language 
at NMAC 19.8.8.812.D, which coincides with the above listed proposed 
change to NMAC 19.8.7.701.F. The proposed revision to 812.D ensures 
that dwellings and structures, and names of present owners of record 
and residents of those dwellings and structures, on and within one-half 
mile (2640 feet) of the proposed permit area are included on the permit 
application maps. New Mexico's proposed rule includes a larger area and 
therefore protects more dwellings and structures than the Federal 
counterpart at 30 CFR 779.24(d) which requires that only the location 
of all buildings on and within 1000 feet of the proposed permit area 
are included on the permit application maps. For this reason, we find 
that NMAC 19.8.812.D is no less effective than 30 CFR 778.13(b) and 
approve this proposed change.
4. NMAC 19.8.11.1100.B(1) Through (4), Public Notices of Filing of 
Permit Applications
    New Mexico added language to NMAC 19.8.11.1100 which expands upon 
the Federal counterpart rules at 30 CFR 773.6(a) concerning public 
participation and public notification in the permitting processing. New 
Mexico proposed to modify its rules to expand the options for 
notification of permit applications. The added language requires the 
permit applicant to: ``* * * Submit, at the time of filing the 
application, a plan approved by the director [of the New Mexico 
program] to provide notice using at least three of the methods listed 
below. If the director determines that significant non-English speaking 
populations live within the general area of the proposed mine, the 
applicant shall include at least one method that seeks to reach these 
populations. The notice shall summarize the information listed in, and 
shall be given prior to the last publication of the notice in, 
Subsection A of 19.8.11.1100 NMAC. The methods may include:
    (1) Mailing a notice to the owners of record, as shown by the most 
recent property tax schedule, of all properties adjacent to the 
proposed permit area and to the owners of all properties containing a 
residence located within one-half mile (2640 feet) of the proposed 
permit area as identified in Subsection F of 19.8.7.701 NMAC;
    (2) Posting a notice in at least four publicly accessible and 
conspicuous places, including the entrance to the proposed operation if 
that entrance is publicly accessible and conspicuous;
    (3) Publishing a notice in a display ad at least three inches by 
four inches at a place in the newspaper calculated to give the general 
public the most effective notice; or
    (4) Broadcasting public service announcements on radio stations 
that serve the general permit area''.
    OSM supports any additional outreach to the public during the 
notification process. Because New Mexico's additions to NMAC result in 
more public notification than 30 CFR 773.6 requires, they are no less 
effective than the Federal regulations relating to public notification 
of permit applications. We approve these changes.
5. NMAC 19.8.11.1100.D(5), Public Notices of Filing of Permit 
Applications
    New Mexico proposed to modify its existing rules to require that, 
in addition to Federal, State, Tribal, and local government agencies, 
governmental planning agencies, sewage and water treatment authorities, 
and water companies, written notifications shall also be sent to ``all 
persons on a list, maintained by the director, of individuals and 
organizations who have requested notice of applications under the act 
and who have provided a surface or electronic mail address to the 
director''. This means that in addition to the above listed agencies, 
non-agency interested parties or individuals have equal access to 
written notifications. Because New Mexico's proposed rule provides 
additional access to written notification of agency decisions, we find 
that NMAC 19.8.11.1100.D(5) is no less effective than 30 CFR 
773.6(a)(3) and approve it.
6. NMAC 19.8.11.1100.E(3), Public Notices of Filing of Permit 
Applications
    New Mexico proposed a provision at NMAC 19.8.11.1100.E(3) that 
requires written notification to be posted on a Web site maintained by 
the director after receipt of a complete application. This proposed 
rule creates and requires an additional way to notify the public about 
a permit application. Although there is no Federal counterpart that 
exists, this provision expands upon the requirements listed in 30 CFR 
773.6(a) and is therefore no less effective than 30 CFR. We approve 
this proposed revision.
7. NMAC 19.8.11.1103.B, 30 CFR 773.6(c)(2), Hearings and Conferences
    New Mexico proposed to add a provision that in addition to ``any 
person, whose interests are or may be adversely affected by the 
issuance, revision or renewal of the permit, or the officer or head of 
any federal, state, tribal or local government agency or authority'', 
the director may also motion for an informal conference. This proposed 
change is more inclusive than the Federal counterpart at 30 CFR 
773.6(c)(2), since an additional entity may request an informal 
conference. Therefore, we approve this proposed revision to NMAC 
19.8.11.1103.B.
8. NMAC 19.8.11.1103.E, 30 CFR 773.6(c)(2) and 30 CFR 775.11, Hearings 
and Conferences
    New Mexico proposed to repeal the ``public hearing'' option at 
19.8.11.1103.E. Since 30 CFR has no part about ``public hearings'', 
only ``informal conferences'' at 30 CFR 773.6(c) (pre-approval of 
permit application) and ``hearings'' at 30 CFR 775.11 (after 
notification of decision concerning the application) in relation to the 
permit application process, the State thought this part should be 
omitted to be more consistent with 30

[[Page 68342]]

CFR. New Mexico's rules concerning informal conferences at NMAC 
19.8.11.1103.A and B, like their Federal counterpart at 30 CFR 
773.6(c)(2), include procedural guidelines for requesting an informal 
conference on any permit application, rules for conducting an informal 
conference (notification of location, time, and date of informal 
conference and who shall conduct the informal conference), and rules 
concerning requesting access to the permit area for information-
gathering purposes. The rules at 19.8.11.1103 are as effective as the 
Federal counterpart at 30 CFR 773.6(c).
    Of great importance is the proposed deletion of the following 
language at NMAC 19.8.11.1103.E concerning a person's right to present 
evidence, give testimony, etc. at the hearing:
    NMAC 19.8.11.1103.E(5), which states that ``any person desiring to 
present evidence or give testimony at the hearing on the proposed plan 
shall:
    (a) File a request to do so with the director at least ten days 
prior to the hearing;
    (b) Contain the name and address of the person desiring to 
participate; and
    (c) Contain a concise statement of the nature of the person's 
interest'' and NMAC 19.8.11.1103.E(7), which states that ``any person 
who has filed a timely request to participate in the hearing shall be 
given reasonable time at the hearing to submit relevant evidence, data 
and views, and shall be allowed to call and examine witnesses, 
introduce exhibits, cross examine witnesses and submit rebuttal 
evidence.''
    It is essential that a person is provided the opportunity to 
present evidence, give testimony, cross examine witnesses, etc. at a 
hearing that is adjudicatory in nature.
    The above two rules are addressed at NMAC 19.8.12.1200, 
Administrative Review By The Director (equivalent to the Federal 
regulation at 30 CFR 775.11, Administrative and Judicial Review of 
Decisions). 30 CFR 775.11 and NMAC 19.8.12.1200 both pertain to the 
request of a hearing on the reasons for the final decision after the 
applicant is notified of the final decision concerning the application.
    It was a concern that the deletion of NMAC 19.8.11.1103.E would 
eliminate the opportunity for a person to request a hearing after the 
decision, but this option is clearly addressed and allowed by NMAC 
19.8.12.1200.A, which states that ``within 30 days after the applicant 
or permittee is notified of the final decision of the director 
concerning the application for a permit, revision or renewal thereof, 
application for transfer, sale, or assignment of rights, or concerning 
an application for coal exploration, or pursuant to Paragraph (2) of 
Subsection E of 19.8.13.1301 NMAC a decision regarding a permit 
modification, the applicant, permittee or any person with an interest 
which is or may be adversely affected may request a hearing on the 
reasons for the final decision in accordance with this section. Such 
request shall be in writing and state with reasonable specificity the 
reasons for the request and objections to the director's decision''. 
Part B continues, ``The director shall commence the hearing within 30 
days of such request. This hearing shall be of record, adjudicatory in 
nature, and no person who presided at an informal conference under 
19.8.11.1103 NMAC shall either preside at the hearing or participate in 
the decision following the hearing, or in any administrative appeal 
therefrom''. Part 19.8.12.1200.B(1) addresses the granting of temporary 
relief, and is not relevant to this discussion. Part 19.8.12.1200.B(2) 
continues, ``For the purpose of such hearing, the director may 
administer oaths and affirmation, subpoena witnesses, written or 
printed materials, compel attendance of witnesses or production of 
those materials, compel discovery, and take evidence, including, but 
not limited to, site inspections of the land to be affected and other 
surface coal mining and reclamation operations carried on by the 
applicant in the general vicinity of the proposed operations''. 
Continuing with the rules at NMAC 1200, NMAC 19.8.12.1200.B(3) requires 
the director to issue and furnish the applicant and hearing 
participants with the written findings of fact, conclusions of law, and 
order of the director (with respect to the appeal) within a specified 
time period (see section 69-25A-29 New Mexico Statutes 1978 Annotated 
(NMSA)). These requirements parallel the requirements of 30 CFR 
775.11(b)(4). NMAC 19.8.12.1200.B(4) explains that the burden of proof 
is on the party seeking to reverse the decision of the director. 30 CFR 
775.11(b)(5) uses similar language, ``The burden of proof at such 
hearings shall be on the party seeking to reverse the decision of the 
regulatory authority''.
    We believe that the language at NMAC 19.8.12.1200 adequately 
replaces the omitted parts of 19.8.11.1103.E and is as effective as the 
SMCRA counterpart at 775.11. We approve these changes.
9. NMAC 19.8.11.1103.F, 30 CFR 773.6(c)(2), Hearings and Conferences
    New Mexico proposed to omit NMAC 19.8.11.1103.F concerning public 
hearings. The unavailability of an informal conference if a public 
hearing is held is irrelevant since 19.8.11.1103.E (Public hearings) is 
proposed to be deleted. We agree with New Mexico's reasoning and 
therefore approve this change.
10. NMAC 19.8.13.1301.E(2)(a), 30 CFR 773.19(b), Permit Revisions
    New Mexico proposed this revision in an attempt to clarify who 
``interested parties'' are. The new language specifies that a written 
copy of decision must now be mailed to ``all persons on a list 
maintained by the director who have requested notice of applications 
under the act''. New Mexico borrows this language from its Hard Rock 
Mining program, where there is an extensive list of people who have 
requested to be informed of all hard rock permitting activity. This 
proposed change to NMAC 19.8.13.1301.E(2)(a) offers more clarification 
and expands upon the Federal counterpart at 30 CFR 773.19(b). For this 
reason, we find New Mexico's proposed revision to be consistent with 
and no less effective than its Federal counterpart at 30 CFR 773.19(b) 
and we approve it.
11. NMAC 19.8.31.3106.B(3)(a), 30 CFR 845.18(b)(3)(i), Procedure for 
Assessment Conference
    30 CFR 845.18(b)(3)(i) requires that the settlement agreement shall 
be prepared and signed by the conference officer on behalf of the 
Office and by the person assessed for the civil penalty. New Mexico 
proposed the addition of inadvertently missing language to 
19.8.31.3106.B(3)(a) to make it no less effective than the Federal 
counterpart at 30 CFR 845.18(b)(3)(i); with the additional requirement 
that the director, as well as the person assessed, must sign the 
settlement agreement. We find that this proposed language is no less 
effective than the Federal counterpart at 30 CFR 845.18(b)(3)(i) and 
therefore approve this proposed revision to NMAC 19.8.31.3106.B(3)(a).
    The following parts have been amended to include the word 
``tribal'' any time there is reference to any Federal, State, or local 
government agency. For example, at 19.8.13.1307.B(2), it is stated that 
``Any person whose interests are or may be adversely affected, 
including, but not limited to, the head of any local, state, tribal, or 
federal government agency may submit written comments on the 
application * * * ''.

[[Page 68343]]

12. NMAC 19.8.11.1100.D(1), 30 CFR 773.6(a)(3), Public Notices of 
Filing of Permit Applications
13. NMAC 19.8.11.1102.A, 30 CFR 773.6(b)(2), Right To File Written 
Objections
14. NMAC 19.8.11.1103.A, 30 CFR 773.6(c)(1), Hearings and Conferences
15. NMAC 19.8.13.1307.B(2), 30 CFR 774.17(c), Transfer, Assignment or 
Sale of Permit Rights: Obtaining Approval
16. NMAC 19.8.14.1412.A(2)(f), 30 CFR 800.40(a)(2), Requirement To 
Release Performance Bonds
17. NMAC 19.8.14.1412.F, 30 CFR 800.40(f), Requirement To Release 
Performance Bonds
    In a conversation with the State (Administrative Record No. OSM-
2007-0021-0006, `Conversation Record'), it was clarified that New 
Mexico has always considered the tribes to be a local government 
agency. Historically, New Mexico has shown great concern for the tribes 
and has included them any time other government agencies have been 
involved. OSM recognizes the tribes' role and the importance of the 
tribes' involvement to the State. Although 30 CFR does not include 
tribes in its language at the above listed Federal counterparts, it 
supports New Mexico's revisions because they are potentially more 
inclusive than the Federal regulations.

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

1. NMAC 19.8.11.1100.F, Public Notices of Filing of Permit Applications
    New Mexico proposed to add the following parts to 19.8.11.1100 
NMAC:

    F. Public meeting. Within sixty days of receipt of a complete 
application for a new permit or a permit revision, the director 
shall hold a public meeting at a location near the proposed mining 
operation.
    (1) The public meeting will serve as an opportunity for the 
director and applicant to inform the public of the proposed action 
and to provide an opportunity for the public to identify issues and 
concerns associated with the application.
    (2) The director shall give notice at least fifteen days prior 
to the meeting date in a newspaper of general circulation and on 
radio stations serving the mine area.
    (3) The director or his representative shall keep a record 
summarizing issues and concerns raised at the meeting.
    (4) Any person attending the meeting may submit written comments 
to the director up to thirty days after the meeting.

    New Mexico proposes to add language that requires a public meeting 
to be held to afford the community the opportunity to gain information 
about the permit application. At least fifteen days prior to the public 
meeting, the director shall give notice of the meeting in a newspaper 
of general circulation and on radio stations serving the mine area. At 
this public meeting, the applicant and the State will inform the public 
of the proposed action. Up to thirty days after the public meeting, 
attendees may submit written comments to the director.
    The public meeting is an addition to the provision at NMAC 
19.8.11.1103.A, whereby any person whose interests are or may be 
adversely affected by the issuance, revision, or renewal of a permit 
may request an informal conference by rule NMAC 19.8.11.1103.A. New 
Mexico's informal conference is consistent with opportunities for an 
informal conference at 30 CFR 773.6(c)(1).
    There is no direct 30 CFR counterpart to the added requirement of a 
public meeting at NMAC 19.8.11.1100.F. However, OSM supports any 
additional outreach to and informative opportunities for the public 
during the notification process. Because New Mexico's additions to NMAC 
result in more public notification than 30 CFR 773.6 requires, they are 
no less effective than the Federal regulations relating to public 
notification of permit applications. We approve these changes to New 
Mexico Administrative Code.
2. 19.8.11.1109.B and 19.8.11.1109.C, Permit Approval or Denial Actions
    New Mexico proposed to eliminate references to public hearings at 
NMAC 19.8.11.1109.B and C, since the proposed deletion of 
19.8.11.1103.E (Hearings and Conferences: Public hearing) will omit any 
language about public hearings. The language must now only refer to the 
informal conference that exists at 19.8.11.1103. We approve this 
proposed revision.
3. 19.8.13.1301.E(1), Permit Revisions
    The State proposed to remove the following language associated with 
applications for a permit revision: ``(any application for a revision) 
* * * that proposes significant alterations in the operations described 
in the materials submitted in the application for the original permit 
under 19.8.7 NMAC, 19.8.8 NMAC, 19.8.9 NMAC, or 19.8.10 NMAC, or in the 
conditions of the original permit * * * (shall, at a minimum, be 
subject to the requirements of 19.8.11 NMAC and 19.8.12 NMAC)''. Rule 
19.8.13.1301.A(1) already describes when it is necessary for a permit 
revision to be obtained, stating that ``a revision to a permit shall be 
obtained for changes in the surface coal mining or reclamation 
operation as described in the original application and approved under 
the original permit, when such changes constitute a significant 
departure from the method of conducting mining or reclamation 
operations contemplated by the original permit * * *''. Consequently, 
this language is repetitive and unnecessary, and OSM approves the 
removal of this language.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. OSM-2007-0021-0001), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the New Mexico program 
(Administrative Record No. OSM-2007-0021-0003). We did not receive any 
comments from other Federal agencies.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence 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. Therefore, we did 
not ask EPA to concur on the amendment.

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. On January 16, 2008, we requested comments on New Mexico's 
amendment (Administrative Record No. OSM-2007-0021-0002), but neither 
responded to our request.

V. OSM's Decision

    Based on the above findings, we approve New Mexico's November 28, 
2007, amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 931, which codify decisions

[[Page 68344]]

concerning the New Mexico program. We find that good cause exists under 
5 U.S.C. 553(d)(3) to make this final rule effective immediately. 
Section 503(a) of SMCRA requires that the State's program demonstrates 
that the State has the capability of carrying out the provisions of the 
Act and meeting its purposes. Making this regulation effective 
immediately will expedite that process. SMCRA requires consistency of 
State and Federal standards.

Effect of OSM's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSM for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSM. In the 
oversight of the New Mexico program, we will recognize only the 
statutes, regulations and other materials we have approved, together 
with any consistent implementing policies, directives and other 
materials. We will require New Mexico to enforce only those approved 
provisions.

VI. 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 (Regulatory Planning and 
Review).

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, and 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.

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 CFR 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) 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.
    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

[[Page 68345]]

regulation did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 9, 2008.
Allen D. Klein,
Regional Director, Western Region.

0
For the reasons set out in the preamble, 30 CFR part 931 is amended as 
set forth below:

PART 931--New Mexico

0
1. The authority citation for part 931 continues to read as follows:

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


0
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
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
November 28, 2007.....................  November 18, 2008.....................  19 NMAC Parts 1 through 35
                                                                                 (recodification),
                                                                                 19.8.1.7.G(1);
                                                                                 19.8.11.1100.D(1);
                                                                                 19.8.11.1102.A; 19.8.11.1103.A;
                                                                                 19.8.11.1109.B and C;
                                                                                 19.8.13.1301.E(1) and E(2)(b);
                                                                                 19.8.13.1307.B(2);
                                                                                 19.8.14.1412.A(2)(f);
                                                                                 19.8.14.1412.F; 19.8.20.2065.A
                                                                                 and B(1); 19.8.20.2068;
                                                                                 19.8.30.3000; 19.8.31.3108.B;
                                                                                 19.8.31.3110.B; 19.8.5.504.D;
                                                                                 19.8.7.701.F; 19.8.8.812.D;
                                                                                 19.8.11.1100.B(1), (2), (3),
                                                                                 and (4), D(5), E(3), and F;
                                                                                 19.8.11.1103.B, E, and F;
                                                                                 19.8.13.1301.E(2)(a);
                                                                                 19.8.31.3106.B(3)(a).
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 [FR Doc. E8-27360 Filed 11-17-08; 8:45 am]
BILLING CODE 4310-05-P