[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4461-4466]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-1956]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SATS No. NM-048-FOR; Docket ID OSM-2010-0014]


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 
proposed non-substantive editorial revisions to its rules; substantive 
revisions and additions to rules concerning ownership and control; and 
substantive revisions to one rule about retention of sedimentation 
ponds. New Mexico revised its program to be consistent with the 
corresponding Federal regulations and to clarify ambiguities.

DATES: Effective Date: January 30, 2012.

FOR FURTHER INFORMATION CONTACT: Kenneth Walker, Chief, Denver Field 
Division, Office of Surface Mining Reclamation and Enforcement, 1999 
Broadway, Suite 3320, Denver, CO 80202, Telephone: (303) 293-5012. 
Internet: [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 (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 September 1, 2010, New Mexico submitted an 
amendment to its program (SATS No. NM-048-FOR, Docket ID OSM-2010-0014-
0007) under SMCRA (30 U.S.C. 1201 et seq.). New Mexico sent the 
amendment (1) in response to a September 3, 2009, OSM letter (Docket ID 
OSM-2010-0014-0003), concerning our ownership and control regulations, 
consistent with 30 CFR 732.17(c); and (2) to include proposed program 
changes made at its own initiative.
    We announced receipt of the proposed amendment in the January 25, 
2011, Federal Register (76 FR 4266). 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 (Docket ID OSM-2010-
0014-0001). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on February 24, 2011. We 
received two Federal agency comment letters.

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, and 
grammatical changes to the following previously-approved rules.

19.8.11.1105.E NMAC (30 CFR 774.11(a)(1)), Review of Permit 
Applications;
19.8.11.1114 NMAC (30 CFR Part 773.17), Conformance of Permit;

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19.8.30.3003.D NMAC (30 CFR 843.14(c)), Service of Notices of Violation 
and Cessation Orders;
19.8.30.3004.D NMAC (30 CFR 843.15), Informal Hearings;
19.8.31.3103.A NMAC (30 CFR 845.15(a)), Assessment of Separate 
Violation for Each Day;
19.8.34.3402.F(1) and (2) NMAC (30 CFR 702.11(f)(1) and (2)), 
Application Requirements and Procedures;
19.8.34.3408.C(2) and (3) NMAC (30 CFR 702.17(c)(2) and (3)), 
Revocation and Enforcement; and
19.8.35.13 NMAC (30 CFR 761.16(f)), Administrative and Judicial Review 
of a Valid Existing Rights Determination.

    Because these changes are minor non-substantive editorial 
revisions, we find that they will not make New Mexico's rules less 
effective than the corresponding Federal regulations and we approve 
them.

B. Revisions to New Mexico's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    New Mexico proposed additions of or revisions to the following 
rules concerning ownership and control which contain language that is 
the same as or similar to the corresponding sections of the Federal 
regulations.

19.8.11.1120.A through C NMAC (30 CFR 774.12(a) through (c)), Addition 
of Rules Concerning Post-Permit Issuance Information Requirements for 
Permittees,
19.8.11.1121.A through D NMAC (30 CFR 778.9(a), (b), (c) and (d)), 
Addition of Rules Concerning Certifying and Updating Existing Permit 
Application Information, and
19.8.31.3113.A through C NMAC (30 CFR 847.11(a), (b) and (c)), Addition 
of Rules Concerning Criminal Penalties.

    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, and 
we approve them.

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

    1. Ownership and Control. New Mexico submitted revisions of the 
following rules concerning ownership and control. OSM discusses below 
all proposed rules which New Mexico proposed to modify so that its 
program would be no less effective than the counterpart Federal 
regulations concerning ownership and control, including those rules 
which provide the authority in the New Mexico program to take 
enforcement actions against those found to be in positions of ownership 
and control.
    a. 19.8.1.7.K NMAC, Definition of ``Knowing and Knowingly'' and 
19.8.1.7.W(2) NMAC, Definition of ``Willful and Willfully'' and 
deletion of the Definition for ``Willful Violation.'' New Mexico 
proposed new definitions of ``knowing and knowingly'' and ``willful and 
willfully'' at, 19.8.1.7.K NMAC and 19.8.1.7.W(2) NMAC, that are 
identical to the same counterpart Federal definitions at 30 CFR 701.5. 
New Mexico proposed inclusion of these definitions in the New Mexico 
program such that these terms are defined for their use throughout the 
New Mexico program.
    New Mexico also proposed to delete the definition of ``willful 
violation'' at 19.8.1.7.W(2) NMAC; there exists no counterpart Federal 
program definition.
    For these reasons, the Director finds that New Mexico's proposed 
addition of the definitions for ``knowing and knowingly'' and ``willful 
and willfully'' at 19.8.1.7.K and 19.8.1.7.W(2) NMAC and proposed 
deletion of the definition for ``willful violation'' at 19.8.1.7.W(2) 
NMAC are consistent with and no less effective than the counterpart 
Federal definitions of ``knowing and knowingly'' and ``willful and 
willfully'' at 30 CFR 701.5.
    b. 19.8.1.7.O(8)(a) and (b) NMAC, Definition of ``Owned or 
Controlled and Owns or Controls.'' New Mexico's proposed definition of 
``owned or controlled and owns or controls'' at 19.8.1.7.O(8)(a) and 
(b) NMAC includes counterpart language to two of OSM's Federal 
definitions at 30 CFR 701.5, the definitions for ``control or 
controller'' and ``own, owner, or ownership.''
    New Mexico proposed a revision of its definition of ``owned or 
controlled and owns or controls'' at 19.8.1.7.O(8)(a) NMAC that is, 
with one exception, substantively the same as the Federal definition of 
``control or controller'' at 30 CFR 701.5. The exception is that, at 
19.8.1.7.O(8)(a) NMAC, New Mexico does not include the operator as a 
controller in the language. However, in the definition of ``owned or 
controlled and owns or controls'' at 19.8.1.7.O(8)(b)(ii) NMAC, New 
Mexico does include an operator as a presumed controller.
    New Mexico proposed revisions of its definition of ``owned or 
controlled and owns or controls'' at 19.8.1.7.O(8)(b)(iv) through 
(viii) NMAC, which are, with one exception, substantively the same as 
the counterpart Federal definition of ``Own, owner, or ownership'' at 
30 CFR 701.5. The exception is that, at 19.8.1.7.O(8)(b)(vii) NMAC, New 
Mexico proposes that ownership be based on owning of record 10 percent 
or more of the entity, while OSM, in the Federal definition, provides 
for ownership based on possessing or controlling in excess of 50 
percent of the voting securities or other instruments of ownership of 
an entity. In this respect, New Mexico's definition is more stringent 
than the Federal definition; however, it is no less effective than the 
Federal definition in identifying ownership.
    New Mexico's existing definition of ``owned or controlled and owns 
or controls'' at 19.8.1.7.O(8)(b) NMAC provides that a person, who is 
identified as an owner, the opportunity to demonstrate that he/she does 
not in fact have the authority directly or indirectly to determine the 
manner in which the relevant surface coal mining operation is 
conducted. In addition, New Mexico's existing rules at 19.8.11.1102 
NMAC, 19.8.11.1117 NMAC, and 19.8.11.1118 NMAC are no less effective 
than the Federal regulations at 30 CFR 773.25, 30 CFR 773.26, and 30 
CFR 773.27 in allowing for challenges to ownership or control findings.
    For these reasons, the Director finds that New Mexico's proposed 
definition of ``owned or controlled and owns or controls'' at 
19.8.1.7.O(8)(a) and (b) NMAC is no less effective than the counterpart 
Federal definitions of ``control or controller'' and ``own, owner, or 
ownership'' at 30 CFR 701.5, and approves it.
    c. 19.8.7.701.C(3) NMAC, Identification of Interests. New Mexico 
proposed to revise 19.8.7.701.C(3) NMAC to require that a permit 
application contain, among other things, information specific to the 
identification of persons whose identification is required by 
19.8.11.1120.C NMAC, rather than 19.8.11.1113.D.
    New Mexico's proposed 19.8.11.1120 NMAC, concerning post-permit 
issuance information requirements for permittees, as discussed above, 
is substantively identical to the counterpart Federal regulations at 30 
CFR 774.12(a) through (c). The previously referenced rule at 
19.8.11.1113.D NMAC does not exist in New Mexico's program; 
furthermore, New Mexico's existing rules at 19.8.11.1113 NMAC pertain 
to conditions of a permit affecting environment, public health and 
safety, not ownership and control information.
    Therefore, New Mexico's proposed revision of 19.8.7.701.C(3) NMAC 
to

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reference 19.8.11.1120.C NMAC, ensures that a permit application will 
contain the most recent information pertaining to ownership and control 
and eliminates confusion by deleting an inappropriately referenced rule 
that has nothing to do with applicant ownership and control 
information.
    New Mexico also proposed to revise 19.8.7.701(C) NMAC to require 
the submission of telephone numbers for persons who own or control the 
applicant according to the definitions of ``owned or controlled and 
owns or controls'' at 19.8.1.107.O NMAC. As discussed above, the 
Director finds that New Mexico's proposed definition of ``owned or 
controlled and owns or controls'' at 19.8.1.107.O NMAC is no less 
effective than the counterpart definitions of ``control or controller'' 
and ``own, owner, or ownership'' at 30 CFR 701.5. New Mexico's proposed 
revision to require submission of telephone numbers is consistent with 
the requirement in the Federal regulations at 30 CFR 778.11(d). For any 
change in persons identified, the Federal regulations under 30 CFR 
774.12(c)(1) and by 30 CFR 778.11(d) requires, among other things, a 
telephone number.
    For these reasons, the Director finds that New Mexico's proposed 
revisions of 19.8.7.701.C(3) NMAC are no less effective than the 
counterpart Federal regulations at 30 CFR 774.12(a) through (c) and 30 
CFR 778.11(d), and approves them.
    d. 19.8.11.1105.F NMAC, Review of Permit Applications for Permit 
Eligibility. New Mexico proposed revising 19.8.11.1105.F NMAC by adding 
the requirement for the Director of the New Mexico program, after an 
applicant's completion of the reporting required by 19.8.7.702 NMAC, to 
request, no more than five business days before permit issuance, a 
compliance history report from the applicant violator system (AVS) and 
make that report part of the AVS record review required by New Mexico's 
rule at 19.8.11.1116 NMAC. New Mexico's rule at 19.8.7.702.D NMAC 
requires, after an applicant is notified that his or her application is 
approved, but before the permit is issued, an applicant to either 
update the information, concerning compliance information, previously 
submitted or indicate that no change has occurred in the information. 
New Mexico's rule at 19.8.11.116 requires, among other things, that New 
Mexico must review all reasonably available information concerning 
violation notices and ownership or control links to determine whether 
the application can be approved.
    Because New Mexico has revised its rule at 19.8.11.1105.F NMAC, 
concerning a final compliance review for all permit applications, with 
references to the reporting requirements of 19.8.7.702.D NMAC and the 
AVS record review for permit eligibility required by 19.8.11.1116 NMAC, 
the Director finds that New Mexico's proposed 19.8.11.1105.F NMAC is no 
less effective in making the permit eligibility determination required 
by 30 CFR 773.12, and approves it.
    The Director notes that New Mexico's 19.8.11.1116.B NMAC, of which 
New Mexico proposed no revision, requires New Mexico to deny approval 
of an application if the review conducted discloses any ownership or 
control link between the applicant and any person cited in a violation 
notice unless certain actions have been taken (which are specified in 
19.8.11.1116.B NMAC). Under the counterpart Federal regulation at 30 
CFR 773.12(a), permits may be denied only if an applicant directly (one 
level down) owns or controls, or if the applicant or operator 
indirectly controls an entity with an unabated or uncorrected 
(``outstanding'') violation if the control and the violation occurred 
after November 2, 1988. In this respect, New Mexico's proposed rule at 
19.8.11.1105.F NMAC is more stringent, but no less effective than, the 
counterpart Federal regulation at 30 CFR 773.12(a).
    e. 19.8.11.1119.A through H NMAC, Post-Permit Issuance Requirements 
and Other Actions. New Mexico proposed additional rules at 
19.8.11.1119.A through H NMAC, concerning post-permit issuance 
requirements and other actions based on ownership, control, and 
violation information, that are, with one exception, substantively 
identical to the counterpart Federal regulations at 30 CFR 774.11(a) 
through (h). The exception is that New Mexico's proposed rule at 
19.8.11.1119.C NMAC is more stringent than the counterpart Federal 
regulation at 30 CFR 774.11(c), in that the referenced rule at 
19.8.11.1116 NMAC, as discussed above, allows for any ownership or 
control link between the applicant and any person cited in a violation 
notice to cause finding of permanent permit ineligibility rather than 
the more limited ownership and control link provided for the Federal 
regulation referenced at 30 CFR 773.12(a). The proposed New Mexico 
rules need only meet the minimum requirements of the counterpart 
Federal regulations; New Mexico may elect to be more stringent.
    For this reason, the Director finds that New Mexico's proposed 
19.8.11.1119.A through H NMAC are no less effective than the 
counterpart 30 CFR 774.11(a) through (h), and approves them.
    f. 19.8.30.3000.L NMAC, Cessation Orders. New Mexico proposed to 
revise 19.8.30.3000.L NMAC, concerning persons who must receive New 
Mexico's written notification of issuance of a cessation order, to 
require that the notice be sent to any person who has been identified 
under 19.8.11.1119.F NMAC, rather than 19.8.11.1113.D NMAC. New 
Mexico's referenced rule at 19.8.11.1119.F specifies, among other 
things, that New Mexico may, at any time, identify any person who owns 
or controls all or part of a surface coal mining operation.
    New Mexico's proposed rule at 19.8.30.3000.L NMAC also requires 
that persons identified in 19.8.7.701.C NMAC and 19.8.7.701.D NMAC as 
owning or controlling the permittee receive the same written 
notification of the issuance of a cessation order; New Mexico has 
proposed no revision of these rules. Referenced 19.8.7.701.C NMAC 
specifies information required to be in a permit application, including 
a list of outstanding violation notices received prior to the date of 
the application by any surface coal mining operation that is owned or 
controlled by either the applicant or any person who owns or controls 
the applicant under the definition of ``owned or controlled and owns or 
controls'' at 19.8.1.107.O NMAC. Referenced 19.8.7.702.D NMAC requires, 
after an applicant is notified that his or her application is approved, 
but before the permit is issued, an applicant to either update the 
information, concerning compliance information, previously submitted or 
indicate that no change has occurred in the information.
    The counterpart Federal regulation to New Mexico's referenced 
19.8.11.3000.L NMAC is 30 CFR 843.11(g), which requires that the 
Director notify in writing persons identified as an owner or controller 
of the operation, as defined at 30 CFR 701.5, that a cessation order 
has been issued.
    As discussed above, 19.8.11.1113.D NMAC does not exist in New 
Mexico's program and New Mexico's existing rules at 19.8.11.1113.A 
through C pertain to conditions of permit affecting environment, public 
health and safety (not ownership and control information). Also as 
discussed above, the Director finds that New Mexico's proposed rules at 
19.8.11.1119.A through H NMAC are substantively identical to and no 
less effective than the counterpart 30 CFR 777.11(a) through (h). In 
addition, as discussed above, New Mexico's proposed

[[Page 4464]]

definition of ``owned or controlled and owns or controls'' at 
19.8.1.107.O NMAC is no less effective than the counterpart definitions 
of ``control or controller'' and ``own, owner, or ownership'' at 30 CFR 
701.5.
    For these reasons, the Director finds that New Mexico's proposed 
revision at 19.8.30.3000.L NMAC causes proposed 19.8.30.3000.L to be no 
less effective than the counterpart Federal regulation at 30 CFR 
843.11(g), in that the proposed reference to 19.8.11.1119.F NMAC will 
ensure that all people listed as owners or controllers will receive a 
written notification of the issuance of a cessation order. The Director 
approves proposed 19.8.30.3000.L NMAC.
    g. 19.8.31.3109.A NMAC, Individual Civil Penalties. New Mexico 
proposed revision of 19.8.31.3109.A NMAC to clarify when the Director 
of the New Mexico program may assess an individual civil penalty; i.e., 
the Director may assess an individual civil penalty against any 
corporate director, officer, or agent of a corporate permittee who 
knowingly and willfully authorized, ordered, or carried out a violation 
of a permit condition, or a failure or refusal to comply with any order 
issued under the act. New Mexico proposed this clarification because 
New Mexico proposed deletion of definition of ``willful violation'' at 
19.8.1.7.W(2) NMAC.
    The counterpart Federal regulation at 30 CFR 846.12(a) provides 
that OSM may assess an individual civil penalty against any corporate 
director, officer, or agent to a corporate permitttee who knowingly and 
willfully authorized, ordered, or carried out a violation, failure, or 
refusal.
    New Mexico's proposed rule at 19.8.31.3109.A NMAC is substantively 
the same as the counterpart Federal regulation at 30 CFR 846.12(a), 
concerning individual civil penalties. New Mexico's proposed rule 
differs only in that it provides clarification of the phrase `a 
violation, failure or refusal' as used in the counterpart Federal 
regulation.
    For these reasons, the Director finds that New Mexico's proposed 
revision of 19.8.31.3109.A NMAC is no less effective than the 
counterpart Federal regulation at 30 CFR 846.12(a), concerning 
individual civil penalties, and approves it.
    h. 19.8.31.3109.A(1), (2) and (3) NMAC, Deletion of definitions of 
``knowingly'', ``willfully'', and ``violation, failure or refusal.'' At 
19.8.31.3109.A(1), (2), and (3) NMAC, New Mexico proposed to delete the 
definitions of ``knowingly,'' ``willfully,'' and ``violation, failure 
or refusal''.
    As discussed above, in finding number C.1.a, New Mexico proposed 
new definitions of ``knowing and knowingly'' and ``willful and 
willfully'' at, respectively, 19.8.1.7.K NMAC and 19.8.1.7.W(2) NMAC, 
that are (1) identical to the same counterpart Federal definitions at 
30 CFR 701.5 and (2) defined for their use throughout the New Mexico 
program. New Mexico's definitions of ``knowingly'', ``willfully'', and 
``violation, failure or refusal'' have no counterpart in the Federal 
program and were applicable only to rules concerning individual civil 
penalties in New Mexico's program.
    Therefore, the Director finds that New Mexico's proposed deletion, 
at 19.8.31.3109.A(1), (2), and (3) NMAC, of the definitions of 
``knowingly,'' ``willfully,'' and ``violation, failure or refusal'' is 
consistent with New Mexico's proposed definitions of ``knowing and 
knowingly'' and ``willful and willfully,'' and no less effective than 
the counterpart Federal definitions of ``knowing and knowingly'' and 
``willful and willfully'' at 30 CFR 701.5. The Director approves New 
Mexico's proposed deletions of these terms.
    2. 19.8.20.2010.A(2) NMAC, Sediment Control Measures and Water 
Quality Standards and Effluent Limitations. New Mexico proposes to 
delete 19.8.20.2010.A(2)(a) and (b) NMAC pertaining to the maintenance 
of sedimentation ponds.
    19.8.20.2010.A(2)(a) NMAC. New Mexico proposed to delete a 
provision at paragraph (2)(a) which requires that sedimentation ponds 
be retained to prevent gully erosion from occurring. New Mexico's 
existing rule at paragraph (2) requires, among other things, that 
sediment ponds be maintained until erosion on the regraded area has 
been controlled. The requirement in paragraph (2), to retain sediment 
ponds until erosion has been controlled, achieves the same purpose in 
the deleted provision at (2)(a). Therefore, New Mexico's proposal to 
delete the provision at 19.8.20.2010.A(2)(a) NMAC, is not necessary in 
New Mexico's program to ensure the appropriate use of sedimentation 
ponds.
    19.8.20.2010.A(2)(b) NMAC. This provision, proposed for deletion, 
requires maintenance of sedimentation ponds to insure that the quality 
of the untreated drainage from the disturbed area meets the applicable 
State and Federal water quality standard requirements for the receiving 
stream, except during precipitation events which are equal to or 
greater than the 2-year recurrence interval. New Mexico explained that 
the provision proposed for deletion at 19.8.20.2010.A(2)(b) NMAC, 
contradicts New Mexico's rule at 19.8.20.2010.B(1) NMAC, which provides 
for discharges from disturbed areas to exceed the effluent limitations 
of 19.8.20 NMAC, if the discharge (1) resulted from a precipitation 
event equal to or larger than a 10-year 24-hour precipitation event and 
(2) is from facilities designed, constructed, and maintained in 
accordance with the requirements of 19.8.20 NMAC.
    In addition, New Mexico's existing rule at 19.8.20.2010.C NMAC 
requires, among other things, that a permittee must install, operate, 
and maintain adequate facilities to treat any water discharged from the 
disturbed area so that it complies with all Federal and State laws and 
regulations and the limitations of 19.8.20 NMAC.
    Therefore, New Mexico's proposed deletion of 19.8.20.2010.A(2)(a) 
and (b) NMAC clarifies their program by removing language that is 
either contradictory of existing requirements at 19.8.20.2010.B(1) 
NMAC, or repetitive of existing requirements at 19.8.20.2010.C NMAC.
    The Federal counterparts to New Mexico's rules proposed for 
deletion at 19.8.20.2010.A(2)(a) and (b) NMAC are found at 30 CFR 
816.42 and 30 CFR 816.45(a)(2). The counterpart Federal regulations at 
30 CFR 816.42 require that discharges of water from areas disturbed by 
surface mining activities shall be made in compliance with all 
applicable State and Federal water quality laws and regulations and 
with the effluent limitations for coal mining promulgated by the U.S. 
Environmental Protection Agency set forth in 40 CFR Part 434. The 
Federal regulations at 40 CFR Part 434, similar to those in the New 
Mexico program, provide for exemptions from the requirement to meet 
effluent standards. The counterpart Federal regulations at 30 CFR 
816.45(a)(2) require appropriate sediment control measures be 
maintained to, among other things, meet the more stringent of 
applicable State or Federal effluent limitations.
    OSM finds that New Mexico's proposed deletion of 
19.8.20.2010.A(2)(a) and (b) NMAC, in conjunction with New Mexico's 
existing rules at 19.8.20.2010.A(1), A(2), B(1), and C NMAC, is 
consistent with and no less effective than the requirements of the 
Federal regulations at 30 CFR 816.42, concerning the need for runoff 
from disturbed areas to meet applicable water quality effluent 
standards, and 30 CFR 816.45(a)(2), concerning the requirement for 
adequate sediment control measures. The Director approves proposed rule 
19.8.20.2010.A.2 NMAC.

[[Page 4465]]

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Docket ID Nos. OSM-
2010-0014-0001 and OSM-2010-0014-0008), 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 (Docket ID 
No. OSM-2010-0014-0008). We received two comment letters. We received 
one comment letter from the U.S. Department of Agriculture, Natural 
Resources Conservation Service (NRCS), dated February 24, 2011 (Docket 
ID No. OSM-2010-0014-0009). The NRCS stated that they had no comments 
on the proposed rulemaking. We received one emailed comment from the 
U.S. Department of Energy (DOE), dated March 15, 2011 (Docket ID No. 
OSM-2010-0014-0010). The DOE stated that they had no comments on the 
proposed rulemaking.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to obtain 
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 pertains to setting air or water quality standards. 
Therefore, we did not ask EPA to concur on the amendment. However, 
under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment 
from EPA (Docket ID No. OSM-2010-0014-0008). EPA did not respond to our 
request.

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. Although the revisions that New Mexico proposed to make in 
this amendment would not have effects on historic properties, on 
January 25, 2011, we nonetheless requested comments from the SHPO and 
ACHP on New Mexico's amendment (Docket ID No. OSM-2010-0014-0008). 
However, we did not receive responses from the SHPO or ACHP.

V. OSM's Decision

    Based on the above findings, we approve New Mexico's September 1, 
2010, amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 931, which codify decisions 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 demonstrate 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.

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.

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. 
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. 
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.).

[[Page 4466]]

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 regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: April 18, 2011.
Allen D. Klein,
Director, Western Region.

    Editorial Note: This document was received at the Office of the 
Federal Register on January 25, 2012.
    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 of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
September 1, 2010.............  January 30, 2012.  19 NMAC 8.1.7.K;
                                                    8.1.7.O(8)(a) and
                                                    (b); 8.1.7.W(2)(a)
                                                    and (b);
                                                    8.7.701.C(3);
                                                    8.11.1105.E;
                                                    8.11.1105.F;
                                                    8.11.1114;
                                                    8.11.1119.A through
                                                    H; 8.11.1120.A
                                                    through C;
                                                    8.11.1121.A through
                                                    D; 8.20.2010.A(2)(a)
                                                    and (b) (deletion);
                                                    8.30.3000.L;
                                                    8.30.3003.D;
                                                    8.30.3004.D;
                                                    8.31.3103.A;
                                                    8.31.3109.A;
                                                    8.31.3109.A(1)
                                                    through (3)
                                                    (deletion);
                                                    8.31.3113.A, B, and
                                                    C; 8.34.3402.F(1)
                                                    and (2);
                                                    8.34.3408.C(2) and
                                                    (3); and 8.35.13.
------------------------------------------------------------------------

[FR Doc. 2012-1956 Filed 1-27-12; 8:45 am]
BILLING CODE 4310-05-P