New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 931

[SPATS No. NM-036-FOR]

New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment with one exception and

additional requirements.

-----------------------------------------------------------------------

SUMMARY: Office of Surface Mining Reclamation and Enforcement (OSM) is

approving, with one exception and additional requirements, a proposed

amendment to the New Mexico regulatory program (hereinafter referred to

as the ``New Mexico program'') under the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). New Mexico proposed revisions to and/

or additions of rules pertaining to definitions; procedures for

designating lands unsuitable for coal mining; permit application

requirements concerning compliance information, the reclamation plan,

and the subsidence information and control plan; procedures concerning

permit application review; criteria for permit approval or denial;

procedures concerning improvidently issued permits; permit conditions;

requirements concerning ownership and control information; and

performance standards for coal exploration, hydrologic balance,

permanent and temporary impoundments, coal processing waste, disposal

of noncoal waste, protection of fish, wildlife, and related

environmental values, revegetation success, subsidence control, and

roads. The amendment was intended to revise the New Mexico program to

be consistent with the corresponding Federal regulations, incorporate

the additional flexibility afforded by the revised Federal regulations,

and improve operational efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248-5070.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

On December 31, 1980, the Secretary of the Interior conditionally

approved the New Mexico program. General 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

can be found in the December 31, 1980, Federal Register (45 FR 86459).

Subsequent actions concerning New Mexico's program and program

amendments can be found at 30 CFR 931.11, 931.15, 931.16, and 931.30.

II. Proposed Amendment

By letter dated January 22, 1996, New Mexico submitted a proposed

amendment to its program (administrative record No. NM-766) pursuant to

SMCRA (30 U.S.C. 1201 et seq.). New Mexico submitted the proposed

amendment at its own initiative and in response to the required program

amendments at 30 CFR 931.16 (a), (c), (d), (f) through (p), and (n)(2)

through (s) (55 FR 48841, November 23, 1990; 56 FR 67520, December 31,

1991; and 58 FR 65907, December 17, 1993).

OSM announced receipt of the proposed amendment in the February 1,

1996, Federal Register (61 FR 3625), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. NM-767).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on March 4, 1996.

During its review of the amendment, OSM identified concerns

relating to the certain provisions of the proposed amendment. OSM

notified New Mexico of the concerns on March 13, 1996 (administrative

record No. NM-774).

New Mexico responded on March 13, 1996, that it would not submit

revisions to the amendment and that OSM should proceed with the

publishing of this final rule Federal Register notice (administrative

record No. NM-774).

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 and 732.17, finds, with certain exceptions and additional

requirements, that the proposed program amendment submitted by New

Mexico on January 22, 1996, is no less effective than the corresponding

Federal regulations. Accordingly, the Director approves, with one

exception, the proposed amendment and adds additional requirements.

1. Nonsubstantive Revisions to New Mexico's Rules

New Mexico proposed revisions to the following previously-approved

rules that are nonsubstantive in nature and consist of minor editorial

changes or recodification (corresponding Federal regulation provisions

are listed in parentheses):

Coal Surface Mining Commission (CSMC) Rule 80-1-11-20(d) (30 CFR

773.20(c)), concerning remedial measures for improvidently issued

permits, to recodify existing CSMC Rule 80-1-11-20(c) as CSMC Rule

80-1-11-20(d);

CSMC Rule 80-1-20-41(e)(3)(i) (30 CFR 816.41 (c)(3) and (e)(3)

and 817.41 (c)(3) and (e)(3)), concerning general performance

standard requirements for protection of the hydrologic balance, to

correctly reference CSMC 80-1-20-41(e)(2)(i); and

CSMC Rule 80-1-20-82(a)(4) (30 CFR 816.71(h) and 817.71(h)),

concerning inspections of coal processing waste banks, to correctly

reference ``Part 9'' of New Mexico's rules.

CSMC Rule 80-1-20-89(d)(2) (30 CFR 816.89(b)), concerning

disposal of noncoal

[[Page 26826]]

wastes, to correctly reference ``Section 3-109D'' of the New Mexico

Water Quality Control Commission regulations.

Because the proposed revisions to these previously-approved rules

are nonsubstantive in nature, the Director finds that these proposed

New Mexico rules are no less effective than the Federal regulations.

The Director approves these proposed rules.

2. Substantive Revisions to New Mexico's Rules That Are Substantively

Identical to the Corresponding Provisions of the Federal Regulations

New Mexico proposed revisions to or additions of the following

rules that are substantive in nature and contain language that is

substantively identical to the requirements of the corresponding

Federal regulation provisions (listed in parentheses).

CSMC Rule 80-1-1-5 (30 CFR 773.5), concerning the definitions of

``Applicant/violator system or AVS,'' ``Federal violation notice,''

``Ownership or control link,'' ``State violation notice,'' and

Violation notice;''

CSMC Rule 80-1-1-5 (30 CFR 700.5), concerning the definition of

``OSM;''

CSMC Rules 80-1-1-5 (30 CFR 701.5), concerning the definition of

``Road;''

CSMC Rules 80-1-11-20(c) (1) and (2) and (e) (30 CFR

773.20(b)(2) (i) and (ii) and (c)(2)), concerning general procedures

for improvidently issued permits;

CSMC 80-1-11-24(a) and [deletion of] (c) (30 CFR 773.21(a)),

concerning rescission procedures for improvidently issued permits;

CSMC Rule 80-1-11-31 (a) through (d) (30 CFR 773.22 (a) through

(d)), concerning verification of ownership or control application

information;

CSMC Rule 80-1-11-32 (a) through (c) (30 CFR 773.23 (a) through

(c)), concerning review of ownership or control and violation

information;

CSMC Rule 80-1-11-33 (a) through (d) (30 CFR 773.24 (a) through

(d)), concerning procedures for challenging ownership or control

links shown in AVS; and

CSMC Rule 80-1-11-34 (a) through (d) (30 CFR 773.25 (a) through

(d)), concerning standards for challenging ownership or control

links and the status of violations.

Because these proposed New Mexico rules are substantively identical

to the corresponding provisions of the Federal regulations, the

Director finds that they are no less effective than the Federal

regulations. The Director approves these proposed rules.

3. CSMC Rule 80-1-1-5, Definition of ``Qualified Laboratory''

At its own initiative, New Mexico proposed a definition of

``Qualified laboratory'' at CSMC Rule 80-1-1-5 that is, with one

exception, substantively identical to the Federal definition of

``qualified laboratory'' at 30 CFR 795.3. The exception is that New

Mexico's definitions only provides for laboratory services related to

the determination of probable hydrolic consequences or statement of

results of test borings or core samplings under the new Mexico small

operator assistance program (SOAP), where as the Federal definition

provides for these and other services specified at 30 CFR 795.9.

New Mexico's CSMC Rule 80-1-32-9, which corresponds to 30 CFR 795.9

in the Federal regulations, has not been revised to include the

additional services which can be funded under the Federal SOAP program

(59 FR 28168, May 31, 1994). However, a State's implementation of SOAP

is not mandated by SMCRA nor the Federal regulations and the provisions

for SOAP funding may, to the extent provided for in the Federal

program, be elected by the State.

Therefore, the Director finds that New Mexico's definition of

``Qualified laboratory'' at CSMC Rule 80-1-1-5 is no less effective

than the Federal definition of ``qualified laboratory'' at 30 CFR 795.3

and approves the proposed definition of ``Qualified laboratories'' at

CSMC 80-1-1-5.

4. CSMC Rules 80-1-1-5 and 80-1-7-14(c) (1) through (5), Ownership and

Control Information Required in Permit Applications Concerning

Violations

OSM required at 30 CFR 931.16(d) that New Mexico revise CSMC Rule

80-1-7-14(c) to add the requirement that a permit application include

information on violations received pursuant to SMCRA, its implementing

regulations, and to any State or Federal law, rule or regulation

enacted or promulgated pursuant to SMCRA (finding No. 4, 58 FR 65907,

65909, December 17, 1993).

New Mexico proposed to revise CSMC Rules 80-1-7-14(c) (1) through

(5), concerning compliance information required in permit applications,

to include requirements that are, with one exception, substantively

identical to the Federal regulations at 30 CFR 778.14(c) (1) through

(5).

The exception is that New Mexico requires information concerning

violations received pursuant to SMCRA. New Mexico proposed, at CSMC

Rule 80-1-1-5, to add a definition of ``SMCRA'' which means, in

addition to the Federal act, its implementing regulations at 30 CFR

Chapter VII, and any State or Federal law, rule, regulation, or program

enacted or promulgated pursuant to the Federal act.

The corresponding Federal regulations at 30 CFR 778.14(c) require

information concerning violations received pursuant to SMCRA, its

implementing regulations, and to any State or Federal law, rule or

regulation enacted or promulgated pursuant to SMCRA. As defined by New

Mexico, the use of the term ``SMCRA'' in proposed CSMC Rules 80-1-7-

14(c) is equivalent to the use, in the Federal regulations, of the

phrase ``SMCRA, its implementing regulations, and any State or Federal

law, rule or regulation enacted or promulgated pursuant to SMCRA.''

Based upon the above discussion, the Director finds that proposed

CSMC Rules 80-1-7-14(c) (1) through (5) and the term ``SMCRA,'' as

proposed at CSMC Rule 80-1-1-5, (1) are consistent with and no less

effective than the Federal regulations at 30 CFR Part 778.14(c) (1)

through (5), concerning compliance information required in permit

applications, and (2) satisfy the required amendment at 30 CFR

931.16(d). The Director approves proposed CSMC Rules 80-1-7-14(c) (1)

through (5) and the proposed definition of ``SMCRA'' at CSMC Rule 80-1-

1-5, and removes the required amendment at 30 CFR 931.16(d).

5. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or

residential water supply,'' ``Material damage,'' ``Noncommercial

building,'' ``Occupied residential dwelling and associated

structures,'' and ``Replacement of water supply'' and CSMC Rules 80-1-

20-121, 124, 125, and 127, Performance Standards Concerning the

Subsidence Information and Control Plan

At 30 CFR 931.16(s), OSM required that New Mexico revise CSMC Rule

80-1-20-124 to require that an operator (1) repair or compensate for

subsidence-related material damage to structures and facilities, (2)

correct, by restoring the land to the extent technologically and

economically feasible, any material damage resulting from subsidence

caused to surface lands, (3) require an operator to either repair or

compensate the owner in full regardless of the extent of operator

liability under State law for any subsidence-related damage occuring

after October 24, 1992, to occupied residential dwellings, structures

related thereto, and noncommercial buildings, and (4) remove the

inconsistency with proposed CSMC Rule 80-1-9-39(c) with regard to

limiting to the extent required under State law, an operator's

obligation to remedy subsidence-related material damage to structures

and facilities (finding No. 19, 58 FR 65907, 65922, December 17, 1993).

In response to these required amendments, New Mexico proposed to

delete its existing rules at CSMC Rule 80-1-20-121 and 124 and add

rules that incorporate the definitions and

[[Page 26827]]

performance standards pertaining to the repair of subsidence-caused

damages that were promulgated on March 31, 1995, in the Federal program

at 30 CFR 701.5 and 817.121 (60 FR 16749).

a. CSMC Rule 80-1-1-5, Definitions of ``Drinking, domestic, or

residential water supply,'' ``Material damage,'' ``Noncommercial

building,'' ``Occupied residential dwelling and associated

structures,'' and ``Replacement of water supply.'' New Mexico proposed

to revise CSMC Rule 80-1-1-5 by adding definitions for ``Drinking,

domestic, or residential water supply,'' ``Material damage,''

``Noncommercial building,'' ``Occupied residential dwelling and

associated structures,'' and ``Replacement of water supply.'' These

proposed definitions are substantively identical, with one exception,

to the counterpart Federal definitions at 30 CFR 701.5.

The exception concerns a reference to the performance standards

pertaining to repair of subsidence-caused damages in the proposed

definitions of ``Material damage'' and ``Occupied residential dwelling

and structures related thereto.'' The Federal definitions of ``material

damage'' and ``occupied residential dwelling and structures related

thereto'' reference the Federal regulations at 30 CFR 780.20 and

817.121. The New Mexico rules that correspond to the Federal

regulations at 30 CFR 817.121 are proposed CSMC Rules 80-1-9-39 and 80-

1-20-121, 124, 125, and 127 (discussed below); however, New Mexico's

proposed definitions of ``Material damage'' and ``Occupied residential

dwelling and structures related thereto'' reference only New Mexico's

CSMC Rules 80-1-9-39 and 80-1-20-124.

The Director finds that, with the exception of the reference to the

performance standards pertaining to repair or subsidence-caused damages

at CSMC Rule 80-1-20-124 in the proposed definitions of ``Material

damage'' and ``Occupied residential dwelling and structures related

thereto,'' New Mexico's proposed definitions at CSMC 80-1-1-5 for

``Drinking, domestic, or residential water supply,'' ``Material

damage,'' ``Noncommercial building,'' ``Occupied residential dwelling

and associated structures,'' and ``Replacement of water supply'' are no

less effective than the corresponding Federal definitions at 30 CFR

701.5. The Director approves these proposed definitions at CSMC 80-1-1-

5, but is adding a new requirement that New Mexico further revise the

definitions of ``Material damage'' and ``Occupied residential dwelling

and associated structures'' at CSMC 80-1-1-5 to include references to

CSMC Rules 80-1-20-121, 125, and 127.

b. CSMC Rules 80-1-20-121, 124, 125, and 127, Performance standards

concerning the subsidence information and control plan. New Mexico

proposed to add the following performance standards pertaining to

subsidence that are, with one exception, substantively identical to the

corresponding Federal regulations (in parentheses):

CSMC Rules 80-1-20-121 (a) through (d) (30 CFR 817.121(a) (1)-

(3) and 817.121(b)), concerning general requirements for subsidence

control;

CSMC Rules 80-1-20-124 (a) through (d) (30 CFR 817.121(c)(1),

817.41(j), and 817.121 (c)(2) and (c)(3)), concerning surface owner

protection and restoration, replacement, repair, or compensation of

subsidence-caused damages;

CSMC Rules 80-1-20-125 (a) through (e) (30 CFR 817.121 (c)(4)(i)

through (c)(4)(v)), concerning rebuttable presumption of causation

by subsidence; and

CSMC Rule 80-1-20-127 (30 CFR 817.121(c)(5)), concerning the

requirement to adjust the bond amount for subsidence damage.

The exception concerns New Mexico's proposed requirement at CSMC

80-1-20-127 to adjust the bond amount when subsidence-related material

damage occurs to land, structures or facilities protected under CSMC

80-1-20-124(a) through (d). The Federal regulation at 30 CFR

817.121(c)(5) requires adjustment of the bond amount when subsidence-

related material damage to land, structures or facilities, or when

contamination, diminution, or interruption to a water supply occurs

(emphasis added). Although New Mexico's proposed CSMC 80-1-20-127

includes a reference to proposed CSMC 80-1-20-124(b) concerning

replacement of water supplies, because the term ``material damage'' is

not defined with respect to water supplies and it is not clear that the

term ``facilities'' would include a water supply, New Mexico's proposed

CSMC 80-1-20-127 does not clearly require adjustment of the bond amount

when subsidence-related ``contamination, diminution, or interruption to

a water supply'' occurs.

Based on the above discussion, the Director finds that, with the

exception of the lack of a clear requirement at proposed CSMC 80-1-20-

127 for adjustment of the bond amount when subsidence-related

``contamination, diminution, or interruption to a water supply''

occurs, proposed CSMC Rules 80-1-20-121, 124, 125, and 127 are no less

effective than the corresponding Federal regulations at 30 CFR 817.121

(a) through (c) and satisfy the required amendment at 30 CFR 931.16(a).

The Director approves proposed CSMC Rules 80-1-20-121, 124, 125, and

127 and removes the required amendment at 30 CFR 931.16(s). However,

the Director is adding a new requirement that New Mexico further revise

proposed CSMC Rules 80-1-20-127 to clearly require adjustment of the

bond amount when subsidence-related ``contamination, diminution, or

interruption to a water supply'' occurs.

6. CSMC Rules 80-1-4-15(b)(1), Procedures for Initial Processing,

Record-Keeping, and Notification Requirements Concerning Petitions to

Designate Lands Unsuitable for Mining

OSM required at 30 CFR 931.16(c) that New Mexico revise CSMC Rule

80-1-4-15(b)(1) to require publication in the New Mexico State register

of a public notice of receipt of a petition to designate lands

unsuitable for mining (finding No. 4, 56 FR 67520, 67522, December 31,

1991).

New Mexico proposed to revise CSMC Rule 80-1-4-15(b)(1) by adding

the requirement that the regulatory authority notify the general public

of the receipt of such a petition in the New Mexico register of public

notices. This proposed requirement is substantively identical to the

requirement in the Federal regulation at 30 CFR 764.15(b)(1) and

satisfies the requirement that New Mexico amend its program at 30 CFR

931.16(c).

Therefore, the Director finds that proposed CSMC Rule 80-1-4-

15(b)(1) is no less effective than the Federal regulation at 30 CFR

764.15(b)(1), approves New Mexico's proposed CSMC Rule 80-1-4-15(b)(1),

and removes the required amendment at 30 CFR 931.16(c).

7. CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11),

Requirements for Ponds, Impoundments, and Banks, Dams, and Embankments

that Meet or Exceed the Class B or C Criteria of Technical Release No.

60 (210-VI-TR60, October 1985)

At its own initiative, New Mexico proposed to revise its program to

incorporate the requirements for permit applications and performance

standards pertaining to design, construction, and inspection of ponds

and impoundments, and banks, dams, and embankments that meet or exceed

the Class B or C criteria of Technical Release No. 60 (210-VI-TR60,

October 1985), i.e., the hazardous classification criteria published by

the U.S. Department of Interior, National Resource Conservation Service

(NRCS). These requirements were incorporated into the Federal program

on October 20,

[[Page 26828]]

1994 (see 59 FR 53029). Because New Mexico intended to revise its

program to be no less effective than the Federal program with respect

to the hazardous classification criteria published by the NRCS, OSM has

identified those existing provisions in the New Mexico program which

were not proposed to be revised but which New Mexico must revise in

order for the New Mexico program to be no less effective than the

Federal program.

a. CSMC Rule 80-1-9-25(a) (2) and (3), and 80-1-9-25(c), Contents

of permit applications. New Mexico proposed to revise CSMC Rules 80-1-

9-25(a) (2) and (3) and 80-1-9-25(c), concerning the contents of permit

applications, to incorporate requirements pertaining to ponds and

impoundments, and banks, dams, and embankments that meet or exceed the

Class B or C criteria of Technical Release No. 60 (210-VI-TR60, October

1985). The proposed requirements are substantively identical to the

requirements in the corresponding Federal regulations at 30 CFR 780.25

(a)(2), (a)(3), and (c)(3). Therefore, the Director finds that New

Mexico's program at CSMC Rule 80-1-9-25, with the exception of an

existing rule that was not revised, is no less effective than the

Federal program at 30 CFR 780.25 with respect to incorporation of the

NRCS hazardous classification criteria.

The exception concerns New Mexico's existing CSMC 80-1-9-25(e)(5),

which New Mexico did not propose to revise to incorporate requirements

pertaining to the NRCS hazardous classification criteria. The

corresponding Federal regulation at 30 CFR 780.25(f) requires that, if

the structure meets the Class B or C criteria for dams in TR-60 or

meets the size or other criteria of 30 CFR 77.216(a), each plan

required under 30 CFR 780.25(b), (c), and (e) must include a stability

analysis of the structure and a description of each engineering design

assumption and calculation with a discussion of each alternative

considered in selecting the specific design parameters and construction

methods.

Therefore, the Director finds that existing CSMC 80-1-9-25(e)(5) is

less effective than the revised Federal regulations at 30 CFR 780.25(f)

with respect to requirements pertaining to those structures that meet

the Class B or C criteria for dams in TR-60.

Based on the discussion above, the Director approves proposed CSMC

Rules 80-1-9-25(a) (2) and (3) and 80-1-9-25(c), but is adding a new

requirement that New Mexico further revise existing CSMC 80-1-9-

25(e)(5) to incorporate the requirements pertaining to those structures

that meet the Class B or C criteria for dams in TR-60.

b. CSMC Rules 80-1-20-49(e) (1) through (11), Performance

standards. New Mexico proposed to revise the introductory paragraph at

CSMC Rule 80-1-20-49(e) to clarify that its requirements apply to all

temporary or permanent impoundments at both surface and underground

mining operations. In addition, New Mexico proposed to recodify CSMC

Rules 80-1-20-49(e) (1) through (11) and to incorporate requirements

concerning impoundments that meet or exceed the Class B or C criteria

of Technical Release No. 60 (210-VI-TR60, October 1985).

The requirements of New Mexico's CSMC Rule 80-1-20-49(e) (1)

through (11), along with existing requirements at CSMC Rules 80-1-20-49

(b), (c), (d), (f), and (g) are, with two exceptions discussed below,

substantively identical to the requirements in the corresponding

Federal regulations at 30 CFR 816.49(a) and 817.49(a).

The first exception concerns New Mexico's existing CSMC Rules 80-1-

20-49(d), which pertains to construction certification, 80-1-20-

49(f)(2), which pertains to required design precipitation events, and

80-1-20-49(g) (4) and (5), which pertain to inspection and construction

certification. New Mexico did not propose to revise these rules to

incorporate requirements pertaining to the NRCS hazardous

classification criteria. The corresponding Federal regulations at 30

CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv), and 816.49(12) and

30 CFR 817.49(a)(9)(ii) (A) and (C), 817.49(a)(11)(iv), and 817.49(12)

include requirements pertaining to structures that meet or exceed the

Class B or C criteria for dams in TR-60.

Therefore, the Director finds that proposed CSMC Rules 80-1-20-

49(e) (1) through (11) are no less effective than the Federal

regulations at 30 CFR 816.49(a) and 817.49(a). However, the Director

also finds that existing CSMC Rules 80-1-20-49(d), 80-1-20-49(f)(2),

and 80-1-20-49(g) (4) and (5) are, with respect to requirements

pertaining to those structures that meet or exceed the Class B or C

criteria for dams in TR-60, less effective than the revised Federal

regulations at 30 CFR 816.49(a)(9)(ii) (A) and (C), 816.49(a)(11)(iv),

and 816.49(12) and 30 CFR 817.49(a)(9)(ii) (A) and (C),

817.49(a)(11)(iv), and 817.49(12).

The second exception in New Mexico's proposed CSMC 80-1-20-

49(e)(11) which requires barriers to control seepage. Proposed CSMC 80-

1-20-49(e)(11) has no Federal counterpart. However, this requirement is

not inconsistent with the requirements of 30 CFR 816.49(a)(6),

concerning foundation stability, and provides for additional

protection.

Based on the discussion above, the Director approves proposed CSMC

Rules 80-1-20-49(e) (1) through (11), but is adding a new requirement

that New Mexico further revise existing CSMS Rules 80-1-20-49(d), 80-1-

20-49(f)(2), and 80-1-20-(g) (4) and (5) to incorporate the

requirements pertaining to those structures that meet or exceed and do

not meet or exceed the Class B or C criteria for dams in TR-60.

8. CSMC Rule 80-1-9-39 (a), (b), and (c), Permit Application

Requirements Concerning a Subsidence Information and Control Plan for

Underground Mining Operations

OSM required at 30 CFR 931.16 (f) and (g) that New Mexico revise,

respectively, (1) its program to require that a permit application

include a description of measures that an operator would use to

mitigate or remedy subsidence-related material damage to the land and

to occupied residential dwellings, structures related thereto, and

noncommercial buildings where the damage resulted from underground

mining operations conducted after October 23, 1992; and (2) CSMC Rule

80-1-9-39(d) to remove from its program the exception allowed at

paragraph (d)(2) from the requirements of CSMC Rule 80-1-9-39(d),

concerning adoption of measures to prevent subsidence causing material

damage to the extent technologically and economically feasible

(findings Nos. 8. b and c, 58 FR 65907, 65912 and 65913, December 17,

1993).

New Mexico proposed to delete existing CSMC Rules 80-1-9-39(a) (1)

through (5), (b) (1) through (3), and (c) (1) through (4), and add CSMC

Rules 80-1-9-39 (a) (1) through (6), (b), and (c) (1) through (9),

concerning permit application requirements for subsidence information

and control plans.

New Mexico's proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b),

and (c) (1) through (9), are, with one exception, substantively

identical to the corresponding Federal regulations at 30 CFR 780.24(a)

(1) through (3) and (b) (1) through (9), and satisfy the required

amendments at 30 CFR 931.16 (f) and (g). The exception concerns New

Mexico's requirement at proposed CSMC Rule 80-1-9-39(a)(3), concerning

the pre-subsidence survey, for a photo, prior to mining, of the

exterior of each non-commercial building or occupied

[[Page 26829]]

residential dwelling and associated structures. The counterpart Federal

regulation at 30 CFR 784.20(a)(3) does not require photographs as part

of the survey. However, proposed CSMC Rule 80-1-9-39(a)(3) is not

inconsistent with the Federal regulations and provides for additional

documentation of the condition of existing structures that may be

materially damaged or for which the reasonably foreseeable use maybe

diminished by subsidence.

Based on the above discussion, the Director finds that New Mexico's

proposed CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1)

through (9), concerning permit application requirements for a

subsidence information and control plan, are no less effective than the

Federal regulations at 30 CFR 780.24(a) (1) through (3) and (b) (1)

through (9). The Director approves proposed CSMC Rules 80-1-9-39(a) (1)

through (6), (b), and (c) (1) through (9), and removes the required

amendments at 30 CFR 931.16 (f) and (g).

9. CSMC Rule 80-1-11-17(c), Basis for Permit Denial

OSM required at 30 CFR 931.16(h) that New Mexico revise CSMC Rule

80-1-11-17(c) to require, as a basis of permit denial, that New Mexico

(1) consider delinquent civil penalties issued pursuant to all the

derivative State and Federal programs encompassed by the Federal phrase

``section 518 of the Act,'' and (2) prohibit issuance of a permit if

there exist uncorrected or unabated violations received by an applicant

or other controlling entity pursuant to SMCRA, its implementing

regulations, or any State or Federal law, rule or regulation enacted or

promulgated pursuant to SMCRA (finding No. 9.b, 58 FR 65907, 65913,

December 17, 1993).

New Mexico proposed to revise CSMC Rule 80-1-11-17(c), concerning

the basis for permit denial, to include requirements that are

substantively identical to those in the Federal regulation at 30 CFR

773.15(b)(1) and, in doing so, has satisfied the required amendment at

30 CFR 931.16(h).

Because New Mexico's proposed rule is substantively identical to

the Federal regulation, the Director finds that proposed CSMC Rule 80-

1-11-17(c) is no less effective than the Federal regulation at 30 CFR

773.15(b)(1). The Director approves proposed CSMC 80-1-11-17(c) and

removes the required amendment at 30 CFR 931.16(h).

10. CSMC Rules 80-1-11-17(d) and 80-1-11-19(i), Review of Permit

Applications and Criteria for Permit Approval or Denial

OSM required at 30 CFR 931.16(i) that New Mexico revise CSMC Rules

80-1-11-17(d) and 80-1-11-19(i) to require that the Director of the New

Mexico program, when making a determination of whether a pattern of

willful violations exists, consider violations received by an

applicant, operator, or controlling entity pursuant to SMCRA, its

implementing regulations, or any State or Federal law, rule or

regulation enacted or promulgated pursuant to SMCRA (finding No. 9.c,

58 FR 65907, 65914, December 7, 1993).

New Mexico proposed to revise CSMC Rule 80-1-11-17(d) and 80-1-11-

19(i), concerning, respectively, New Mexico's (1) review of permit

applications for a demonstrated pattern of willful violations, and (2)

criteria for permit approval and denial pertaining to a demonstrated

pattern of willful violations, to include the requirement that the

Director of the New Mexico program consider violations received by an

applicant, operator, or controlling entity pursuant to ``SMCRA.'' New

Mexico proposed a definition of the term ``SMCRA'' at CSMC Rule 80-1-1-

5 to mean, in addition to the Federal act, its implementing regulations

at 30 CFR Chapter VII, and any State or Federal law, rule, regulation,

or program enacted or promulgated pursuant to it (see finding No. 4.c

for a discussion of the Director's approval of the definition of

``SMCRA'' proposed at CSMC Rule 80-1-1-5).

New Mexico's use of the term ``SMCRA'' in proposed CSMC Rules 80-1-

11-17(d) and 80-1-11-19(i) is equivalent to the use, in the Federal

regulations at 30 CFR 773.15(b)(3), of the phrase ``SMCRA, its

implementing regulations, and any State or Federal law, rule or

regulation enacted or promulgated pursuant to SMCRA'' and satisfies the

required amendment at 30 CFR 931.16(i).

Based upon the above discussion, the Director finds that proposed

CSMC Rules 80-1-11-17(d) and 80-1-11-19(i) are consistent with and no

less effective than the counterpart Federal regulations at 30 CFR

773.15(b)(3), approves proposed CSMC Rules 80-1-11-17(d) and 80-1-11-

19(i), and removes the required amendment at 30 CFR 931.16(i).

11. CSMC Rules 80-1-11-20 (b)(1) and (b)(3), General Procedures

Pertaining to Improvidently Issued Permits

OSM required at 30 CFR 931.16(j) that New Mexico revise CSMC Rules

80-1-11-20 (b)(1) and (b)(3) to reference CSMC Rule 80-1-11-

20(b)(1)(iii) instead of CSMC Rule 80-1-7-14 (finding No. 10.a, 58 FR

65907, 65914, December 17, 1993).

New Mexico proposed to revise CSMC Rules 80-1-11-20 (b)(1),

(b)(1)(ii), and (b)(3), concerning review criteria for improvidently

issued permits, to include requirements that are, with one exception,

substantively identical to the Federal regulations at 30 CFR

773.20(b)(1) (i) and (iii). In doing so, New Mexico deleted the

language that necessitated the reference to CSMC Rule 80-1-11-

20(b)(1)(iii) and, thereby, satisfied the required amendment at 30 CFR

931.16(j).

The exception is that New Mexico proposed to delete, from CSMC Rule

80-1-11-20(b)(1)(ii), a reference to the applicable violations review

criteria in the preamble of the Federal regulations published at 54 CFR

18438, 18440-18441. This reference identifies the applicable review

criteria the Director of the New Mexico program is to use when

determining what specific unabated violations, delinquent penalties and

fees, and ownership and control relationship apply under this rule.

The Federal regulations at 30 CFR 773.20(b)(1)(i) require that a

regulatory authority shall find that a surface coal mining and

reclamation permit was improvidently issued if, under the violations

review criteria of the regulatory program at the time the permit was

issued, the regulatory authority should not have issued the permit

because of an unabated violation or a delinquent penalty or fee; or the

permit was issued on the presumption that a notice of violation was in

the process of being corrected to the satisfaction of the agency with

jurisdiction over the violation, but a cessation order subsequently was

issued.

Because New Mexico proposed to delete from CSMC Rule 80-1-11-

20(b)(1)(ii) the reference to the applicable violations review

criteria, New Mexico's program no longer identifies the review criteria

that the Director of the New Mexico program would use to determine what

specific unabated violations, delinquent penalties and fees, and

ownership and control relationship applied at the time a permit was

issued. To be no less effective than the Federal regulations at 30 CFR

773.20(b)(1)(i), New Mexico

[[Page 26830]]

must review CSMC Rule 80-1-11-20(b)(1) to identify the applicable

violations review criteria.

Based on the above discussion, the Director finds that (1) New

Mexico has satisfied the required amendment at 30 CFR 931.16(j), and

(2) New Mexico's proposed CSMC Rules 80-1-11-20(b)(1), (b)(1)(ii), and

(b)(3), with the exception of the proposed deletion the applicable

violations review criteria at CSMC Rule 80-1-11-20(b)(1)(ii), are no

less effective than the Federal regulations at 30 CFR 773.20(b)(1) (i)

and (iii). The Director approves proposed CSMC Rules 80-1-11-20 (b)(1),

(b)(1)(ii), and (b)(3) and removes the required amendment at 30 CFR

931.16(j). However, the Director is adding a new requirement that New

Mexico further revise CSMC Rule 80-1-11-20(b)(1) to identify the

applicable violations review criteria that the Director of the New

Mexico program would use to determine what specific unabated

violations, delinquent penalties and fees, and ownership and control

relationship applied at the time a permit was issued.

12. CSMC Rule 80-1-11-29(d) Conditions of Permits

OSM required at 30 CFR 931.16(k) that New Mexico revise CSMC Rule

80-1-11-29(d) to require the permittee to update the ownership and

control information when a Federal cessation order has been issued in

accordance with 30 CFR 843.11, or, if there has been no change in the

required information, to so notify the Director (finding No. 11, 58 FR

65907, 65915, December 17, 1993).

New Mexico proposed to revise CSMC Rule 80-1-11-29(d) to require

that a permittee submit information concerning, among other things, ``a

Federal cessation order issued in accordance with 30 CFR 843.11.''

Existing CSMC Rule 80-1-11-29(d)(3) requires that the permittee notify

New Mexico in writing if there has been no change in previously

submitted information.

Therefore, the Director finds that proposed CSMC Rule 80-1-11-29(d)

is no less effective than the Federal regulation at 30 CFR 773.17(i)

and satisfies the required amendment at 30 CFR 931.16(k). The Director

approves CSMC Rule 80-1-11-29(d) and removes the required amendment at

30 CFR 931.16(k).

13. CSMC Rule 80-1-19-15(c) Performance Standards for Coal Exploration

OSM required at 30 CFR 931.16(l) that New Mexico revise CSMC Rule

80-1-19-15(c) to require that ``other transportation facilities'' used

for coal exploration activities meet the requirements of CSMC Rules 80-

1-20-150 (b) through (g) and 80-1-20-181 (a) and (b) (finding No. 12,

58 FR 65907, 65916, December 17, 1993).

New Mexico proposed to revise CSMC Rules 80-1-19-15 (c)(2), (c)(3),

and (c)(3)(iii), concerning performance standards applicable to coal

exploration, to apply these rules to other transportation facilities as

well as to new and existing roads and to require that new and

significantly altered existing roads or other transportation facilities

comply with the provisions of CSMC Rules 80-1-20-150 (b) through (f)

and 80-1-20-180 and 181. In addition, New Mexico proposed to further

revise CSMC Rule 80-1-19-15(c)(4) to clarify that (1) any road or

facility that will be retained permanently must comply with the

applicable provisions of CSMC Rules 80-1-20-150, 151, 20-180, and 20-

182 and (2) if a road or facility will not be retained it must be

immediately reclaimed.

The Federal regulations at 30 CFR 815.15(b) require that all roads

or other transportation facilities used for coal exploration shall

comply with the applicable provisions of 30 CFR 816.150 (b) through

(f), 816.180, and 816.181.

The Director finds that proposed CSMC Rules 80-1-19-15 (c)(2),

(c)(3), (c)(iii), and (c)(4) are no less effective than the Federal

regulations at 30 CFR 815.15(b) and satisfy the required amendment at

30 CFR 931.16(l). The Director approves proposed CSMC Rules 80-1-19-15

(c)(2), (c)(3), (c)(iii), and (c)(4) and removes the required amendment

at 30 CFR 931.16(1).

14. CSMC Rule 80-1-20-93(a)(1) Performance Standard Pertaining to the

Design and Construction of Dams and Embankments Constructed of or

Intended to Impound Coal Processing Waste

At its own initiative, New Mexico proposed to revise CSMC 80-1-20-

93(a)(1) to delete the requirement that the design freeboard must be at

least 3 feet and to require, for the design of each dam and embankment

constructed of or intended to impound coal processing waste, that the

maximum water elevation shall be that determined by the freeboard

hydrograph criteria contained in the NRCS hazardous classification

criteria referenced in CSMC Rule 80-1-20-49.

The corresponding Federal regulations concerning the design of each

dam and embankment constructed of coal processing waste or intended to

impound such waste are at 30 CFR 816.84(b)(1) and 817.64(b)(1). These

Federal regulations reference the requirements at 30 CFR 816.49(a) and

817.49(a) for determination of the maximum water elevation. As

discussed in finding No. 7 above, OSM revised the Federal program at 30

CFR 816.49(a) and 817.49(a) to include new requirements for

impoundments that meet or exceed the NRCS hazardous classification

criteria. Specifically, the Federal regulations at 30 CFR 816.49(a)(5)

and 817.49(a)(5) include the requirement that freeboard design for

impoundments that meet the Class B or C criteria for dams in NRCS

Technical Release No. 60 (TR-60; 210-VI-TR60, Oct. 1985), shall comply

with the freeboard hydrograph criteria in the ``Minimum Emergency

Spillway Hydrologic Criteria'' table in TR-60. In this amendment, also

discussed in finding No. 7.b above, New Mexico proposed to revise CSMC

Rule 80-1-20-49(e) to include NRCS hazardous classification criteria

that are no less effective than those in the Federal regulations.

Specifically, New Mexico proposed to revise CSMC Rules 80-1-20-49(e)(4)

to incorporated requirements concerning freeboard design for

impoundments meeting the NRCS hazardous classification criteria.

Because proposed CSMC 80-1-20-93(a)(1) requires, by reference to

CSMC 80-1-20-49, that the maximum water elevation be that determined by

the freeboard hydrograph criteria in the ``Minimum Emergency Spillway

Hydrologic Criteria'' table, proposed CSMC 80-1-20-93(a)(1) is no less

effective than the Federal regulations at 30 CFR 816.84(b)(1) and

817.64(b)(1). The Director approves proposed CSMC 80-1-20-93(a)(1);

however, OSM recommends, for clarity, the New Mexico further revise

proposed CSMC 80-1-20-93(a)(1) to reference the requirements at CSMC

80-1-20-49(e)(4) rather than CSMC 80-1-20-49.

15. CSMC Rules 80-1-20-97 (b) and (c), Protection of Fish, Wildlife,

and Related Environmental Values

OSM required at 30 CFR 931.16(a) that New Mexico revise its program

to require protection of threatened and endangered species from

underground mining activities (finding No. 4, 55 FR 48837, 48839,

November 23, 1990).

New Mexico proposed to revise CSMC Rules 80-1-20-97 (b) and (c) to

prohibit operators from conducting ``surface coal mining operations or

reclamation'' that are likely to jeopardize the continued existence of

endangered or threatened species and their habitats, including bald and

golden eagles, their nests and

[[Page 26831]]

eggs. New Mexico also proposed to extend the prohibition to threatened

and endangered species listed by the ``New Mexico Energy, Minerals and

Natural Resources and Game and Fish Department'' in addition to those

listed by the Secretary of the U.S. Department of the Interior.

The corresponding Federal regulations at 30 CFR 816.97 (b) and (c)

and 817.97 (b) and (c) prohibit operators from conducting,

respectively, ``surface mining activities'' or ``underground mining

activities'' that are likely to jeopardize the continued existence of

endangered or threatened species listed by the Secretary of the

Interior and their habitats, including bald and golden eagles, their

nests and eggs.

At existing CSMC Rule 80-1-1-5, New Mexico defines (1)

``Reclamation'' to mean

those actions taken to restore mined land as required by the Act and

these rules and regulations to a postmining land use approved by the

Director

and (2) ``Surface coal mining operations'' to mean

(a) activities conducted on the surface lands in connection with a

surface coal mine or, subject to the requirements of Section 69-25A-

20 NMSA 1978 of the Act, surface operations and surface impacts

incident to an underground coal mine, the products of which enter

commerce or the operations of which directly or indirectly affect

interstate commerce.

Therefore, New Mexico's use, at proposed CSMC Rules 80-1-20-97 (b)

and (c), of the phrase ``surface coal mining operations or

reclamation'' includes ``surface operations and surface impacts

incident to an underground coal mine'' and satisfies the required

amendment at 30 CFR 931.16(a).

The corresponding Federal regulations at 30 CFR 816.97(b) and

817.97(b) also require protection of species listed by the Secretary,

but do not prohibit the protection of other species. Therefore, New

Mexico's proposed inclusion of additional species at CSMC Rules 80-1-

20-97 (b) and (c), while not required, is not inconsistent with the

Federal requirements.

Based on the above discussion, the Director finds that proposed

CSMC Rules 80-1-20-97 (b) and (c) are consistent with and no less

effective than the Federal regulations at 30 CFR 816.97 (b) and (c) and

817.97 (b) and (c), approves proposed CSMC Rules 80-1-20-97 (b) and

(c), and removes the required amendment at 30 CFR 931.16(a).

16. CSMC Rule 80-1-20-116(b)(1), Period of Extended Responsibility

OSM required at 30 CFR 931.16(n)(2) that New Mexico revise CSMC

Rule 80-1-20-116(b)(1) to require that the period of extended

responsibility begin after the last year of augmented seeding,

fertilizing, irrigation, or other work (finding No. 16.b, 58 FR 65907,

65919, December 17, 1993).

New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (1) to (1)

delete the allowance for supplemental fertilization and interseeding in

order to establish species diversity to occur without disrupting the

liability period and (2) require that the extended liability period

begin after the last year of augmented seeding, fertilizing,

irrigation, or other work, excluding husbandry practices that are

approved by the Director in accordance with CSMC Rule 80-1-20-

116(b)(6).

The Federal regulations at 30 CFR 816.116(c)(1) provide that the

period of extended responsibility for successful revegetation shall

begin after the last year of augmented seeding, fertilizing,

irrigation, or other work, excluding husbandry practices that are

approved by the regulatory authority in accordance with 30 CFR with 30

CFR 816.116(c)(4).

The Director finds that the proposed revisions at CSMC Rule 80-1-

20-116(b)(1), concerning the beginning of the bond liability period,

(1) are substantively identical to and, therefore, no less effective

than the Federal regulations at 30 CFR 816.116(c) (1), and (2) satisfy

the required amendment at 30 CFR 931.16(n)(2). (Please note that the

existing provision at CSMC Rule 80-1-20-116(b)(1), concerning

revegetation success standards for ground cover and productivity, which

allows for standards other than those developed by use of a reference

area to be approved by the Director of the New Mexico program, is

subject to an outstanding required amendment at 30 CFR 931.16(n)(1).)

Based on the above discussion, the Director approves the proposed

revisions at CSMC Rule 80-1-20-116(b)(1), concerning the beginning of

the bond liability period, and removes the required amendment at 30 CFR

931.16(n)(2).

17. CSMC 80-1-20-116(b) (1) Through (5), Revegetation Success Standards

At its own initiative, New Mexico proposed to revise CSMC 80-1-20-

116(b)(1) (i) and (ii), (b)(2), and (b)(3) by recodifying these rules

as CSMC 80-1-20-116 (b)(2) through (b)(5) and proposing nonsubstantive

editorial revisions at CSMC 80-1-20-116(b) (2) and (3). In addition,

New Mexico proposed to revise CSMC Rule 80-1-20-116(b) (5) to (1)

delete the allowance for 80 percent statistical confidence to

demonstrate success of shrubland when compared to reference areas, and

(2) allow shrubland stocking, in addition to ground cover and

production, to be considered successful when they are at least 90

percent of the standards developed for historical records under CSMC

Rule 8-1-20-116(a).

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require, among other things, that ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard and that the

sampling techniques for measuring success shall use a 90-percent

statistical confidence interval (i.e., one-sided test with a 0.10 alpha

error).

Therefore, the Director finds that, because New Mexico's proposed

CSMC Rule 80-1-20-116(b)(5) now requires success of ground cover and

productivity of all revegetation to be measured with 90 percent

statistical confidence in order to be considered successful, proposed

CSMC Rule 80-1-20-116(b)(5) is no less effective than the Federal

regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The Director

approves the (1) recodification and nonsubstantive editorial revisions

at CSMC 80-1-20-116 (b)(2) through (b)(4), and (2) proposed revisions

at CSMC Rule 80-1-20-116(b)(5).

18. CSMC 80-1-20-116(b)(6), Normal Husbandry Practices

At its own initiative, New Mexico proposed a new CSMC Rule 80-1-20-

116(b)(6) that allows the Director of the New Mexico program to approve

selective husbandry practices without extending the period of

responsibility for revegetation success or bond liability, and

identifies husbandry practices as those activities that can be expected

to continue as part of the post mining land use, and are employed

within the region for unmined lands having land uses similar to the

approved postmining land use of the disturbed area, to control disease,

pest and vermin and appropriate pruning, reseeding, and transplanting

activities. Proposed CSMC Rule 80-1-20-116(b)(6) also provides that

husbandry practices may be allowed if they will not reduce the

probability of permanent revegetative success if they are discontinued

after the liability period expires and states that any practice the

Director determines to be augmented

[[Page 26832]]

seeding, fertilization or irrigation shall not be considered a

husbandry practice.

The Federal regulations at 30 CFR 816.116(c)(4) provide that the

regulatory authority may approve selective husbandry practices,

excluding augmented seeding, fertilization, or irrigation, provided it

obtains prior approval from the Director of OSM, in accordance with 30

CFR 732.17, that the practices are normal husbandry practices, without

extending the period of responsibility for revegetation success and

bond liability, if such practices can be expected to continue as part

of the postmining land use or if discontinuance of the practices after

the liability period expires will not reduce the probability of

permanent revegetation success. Approved practices shall be normal

husbandry practices within the region for unmined lands having land

uses similar to the approved postmining land use of the disturbed area,

including such practices as disease, pest, and vermin control; and any

pruning, reseeding, and transplanting specifically necessitated by such

actions.

New Mexico's proposed CSMC Rule 80-1-20-116(b)(6) mimics the

language in the Federal regulations, but does not actually identify

husbandry practices. It only states that the Director of the New Mexico

program may approve selective husbandry practices that would not extend

the period of responsibility for revegetation success or bond liability

and describes the nature of husbandry practices. The Federal

regulations at 30 CFR 816.116(c)(4) require that the regulatory

authority obtain prior approval, that the selected practices are normal

husbandry practices, from OSM in accordance with 30 CFR 732.17 (i.e.,

the state program approval process).

Based on the above discussion, the Director finds that proposed

CSMC Rule 80-1-20-116(b)(6) is less effective than the Federal

regulations at 30 CFR 816.116(c)(4). With the exception of the

allowance for the Director of the New Mexico program to approve

husbandry practices that have not received approval from OSM in

accordance with 30 CFR 732.17, the Director approves proposed CSMC Rule

80-1-20-116(b)(6).

However, the Director is also adding a new requirement that New

Mexico revise CSMC Rule 80-1-20-116(b)(6) to either (1) identify

selected husbandry practices and submit them with documentation

verifying that the proposed practices would be considered normal in the

areas being mined or (2) state that selected husbandry practices

approved by the Director may not be implemented prior to approval from

OSM in accordance with the State program amendment process at 30 CFR

772.17.

19. CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2),

and 117(d)(3)(i), Performance Standards for the Revegetation of Trees

and Shrubs

In response to required program amendments at 30 CFR 931.16 (p),

(q), and (4), New Mexico proposed revisions at CSMC Rules 80-1-20-117,

117(c)(1), 117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i),

concerning performance standards for the revegetation of trees and

shrubs. At its own initiative, New Mexico also proposed revisions at

CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical sampling

techniques (finding Nos. 17.a, 17.c.i, and 17.c.ii, 58 FR 65907, 65920,

and 65921, December 17, 1993).

Based on the discussion in paragraphs 19.a through 19.d below, the

Director approves proposed CSMC Rules 80-1-20-117, 117(c)(1),

117(c)(3), 117(c)(4), 117(d)(2), and 117(d)(3)(i), and removes the

required amendment at 30 CFR 931.16 (p), (q), and (r).

a. CSMC Rule 80-1-20-117, Performance standards for tree and shrub

stocking and utility of the trees and shrubs for the approved

postmining land use. OSM required at 30 CFR 931.16(p) that New Mexico

revise CSMC Rule 80-1-20-117(a) and (b) to (1) provide revegetation

success standards for lands developed as fish or wildlife habitat,

recreation areas, or shelterbelts, and (2) require that the trees and

shrubs used in determining stocking success and adequacy of plant

arrangement shall have utility for the approved postmining land use.

In response to the required amendment at 30 CFR 931.16(p), New

Mexico proposed to revise CSMC Rule 80-1-20-117 to (1) apply its tree

and shrub stocking requirements to reclaimed land developed for use as

fish and wildlife habitat, recreation, shelterbelts, or forestry and

(2) require that trees and shrubs used in determining the success of

stocking and the adequacy of plant arrangement shall have utility for

the approved postmining land use.

The Director finds that proposed CSMC Rule 80-1-20-117 satisfies

the required amendment at 30 CFR 931.16(p) and is no less effective

than the Federal regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).

b. CMSC 80-1-20-117(c)(1), (3), and (4), Performance standards for

stocking of trees and shrubs where commercial forest land is the

approved postmining land use. OSM required at 30 CFR 931.16(q) that New

Mexico revise CSMC Rule 80-1-20-117(c) to (1) clarify whether the

stocking rate for commercial forest land will be determined by the

State Forester on a permit-specific or program-wide basis, (2)

reference the correct rules for determining the number of trees,

shrubs, and ground-cover plants on commercial forest land, and (3)

reference CSMC Rule 80-1-20-117(d)(2) for the appropriate bond release

success standards for stocking and ground cover.

In response to the required amendment at 30 CFR 931.16(q)(1), New

Mexico proposed to revise CSMC 80-1-20-117(c)(1) to require that the

minimum stocking of trees or shrubs will be determined by the State

Forester on a permit-specific basis (emphasis added). In response to

the required amendment at 30 CFR 931.16(q)(2), New Mexico proposed to

revise CSMC Rule 80-1-20-117(c)(3), concerning success standards for

areas where commercial forest land is the approved postmining land use,

to (1) reference CSMC Rules 80-1-20-116(b)(5)(iv) and 20-117(b) for the

approved sampling methods, and (2) delete a provision specific to tree

and shrub stocking for the beginning of the extended liability period.

In response to the required amendment at 30 CFR 931.16(q)(3), New

Mexico proposed to revise CSMC 80-1-20-117(c)(4) to reference CSMC

Rules 80-1-20-116 and 80-1-20-117 for the requirements pertaining to

the demonstration required, upon request for final bond release, to

show success of tree and shrub stocking and ground cover.

The Director finds that New Mexico's proposed CSMC Rules 80-1-20-

117(c) (1), (3), and (4) satisfy the requirements of 30 CFR 931.16(q)

(1), (2), and (3), and are no less effective than the Federal

regulations at 30 CFR 816.116(b)(3) and 817.116(b)(3).

c. CSMC Rules 80-1-20-117(d)(2) and (d)(3)(i), Performance

standards for tree and shrub stocking concerning sampling techniques,

revegetation success standards, and the extended period of

responsibility for revegetation success. OSM required at 30 CFR

931.16(r) that New Mexico revise CSMC Rule 80-1-20-117 (d) to (1)

provide at CSMC Rule 80-1-20-117 (d)(2) and (d)(3)(i) the correct

references to rules pertaining to revegetation success standards and

the extended period of responsibility for revegetation success, and (2)

require at CSMC Rule 80-1-20-117(d)(3)(i) that the sampling techniques

for measuring revegegation success shall use a 90-percent statistical

confidence interval.

In response to the required amendment at 30 CFR 931.16(r)(1), New

Mexico proposed to revise CSMC Rules

[[Page 26833]]

80-1-20-117(d)(2), concerning success standards for areas where woody

plants are used for wildlife management, recreation, shelter belts, or

forest uses other than commercial forest land, to (1) reference CSMC

Rules 80-1-20-116(b)(5)(iv) and 80-1-20-117(d)(1) for the revegetation

success standards for stocking of trees, half-shrubs, shrubs, and

ground cover, and (2) delete a provision specific to tree and shrub

stocking for the beginning of the extended liability period.

In response to the required amendments at 30 CFR 931.16(r) (1) and

(2), New Mexico proposed to revise CSMC Rule 80-1-20-117(d)(3)(i) to

require that, upon expiration of the 5 or 10 year responsibility period

and at the time of request for bond release, vegetated woody plants

must be equal to or greater than 90 percent of the stocking of live

woody plants of the same life form ascertained pursuant to CSMC Rule

80-1-20-117(b) with 90 percent statistical confidence.

The Director finds that New Mexico's proposed revisions of (1) CSMC

Rules 80-1-20-117 (d)(2) and (d)(3)(i), concerning referenced rules for

revegetation success standards, and (2) CSMC Rule 80-1-20-117(d)(3)(i),

concerning the requirement that the sampling techniques for measuring

revegetation success shall use a 90-percent statistical confidence

interval, satisfy the required amendments at 30 CFR 931.16(r) (1) and

(2) and are no less effective than the Federal regulations at 30 CFR

816.116 (a)(2) and (b)(3) and 817.116 (a)(2) and (b)(3).

d. CSMC Rule 80-1-20-117(d)(3)(i), Performance standards concerning

the statistical techniques for measuring success of tree and shrub

stocking. At its own initiative, New Mexico proposed a revision at CSMC

80-1-20-117(d)(3)(i) to require that statistical techniques for

measuring success use appropriate parametric or nonparametric one-tail

test with a 90-percent confidence interval and a 10-percent alpha

error.

The Federal regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2)

require, among other things, that ground cover, production, or stocking

shall be considered equal to the approved success standard when they

are not less than 90 percent of the success standard and that the

sampling techniques for measuring success shall use a 90-percent

statistical confidence interval (i.e., one-sided test with a 0.10 alpha

error).

With one exception, New Mexico's proposed CSMC Rule 80-1-20-

117(d)(3)(i), concerning statistical sampling techniques, is

substantively identical to these requirements in the Federal

regulations at 30 CFR 816.116(a)(2) and 817.116(a)(2). The exception is

that New Mexico cites as appropriate statistical tests either

parametric or nonparametric tests and indicates that both would be

tests that are one-tailed with a 90-percent confidence interval and a

10-percent alpha error. Nonparametrically distributed populations exist

when the parameters being measured are not normally distributed

throughout the area being sampled, e.g., in the arid west when the

vegetation cover approaches zero and where shrubs are planted and occur

with irregularity throughout the reclaimed area. A test for a

nonparametrically distributed population can be found to be 90%

confident with a one-tailed test with a .1% alpha error, just as can a

test for parametrically distributed populations.

Therefore, based on the above discussion, the Director finds that

proposed CSMC Rule 80-1-20-117(d)(3)(i), concerning statistical

sampling techniques, is no less effective than the Federal regulations

at 30 CFR 816.116(a)(2) and 817.116(a)(2).

20. CSMC Rule 80-1-20-150(c), Prohibition of Vehicular Fords or Low

Water Crossings by Ancillary Roads

At its own initiative, New Mexico proposed to delete CSMC Rule 80-

1-20-150(c) which prohibits vehicular use of fords or low water

crossings by ancillary roads at any time there is a visible surface

flow.

The Federal regulations at 30 CFR 816.151(c)(2) and 817.151(c)(2)

prohibit fords of perennial and intermittent streams by primary roads.

However, there is no similar prohibition in the general requirements

for all roads in the Federal regulations at 30 CFR 816.150(b) (2) and

(3) and 817.150(b) (2) and (3), which correspond to New Mexico's CSMC

Rule 80-1-20-150.

Therefore, the Director finds that New Mexico's proposed deletion

of CSMC Rule 80-1-20-150(c), concerning the prohibition pertaining to

fords by ancillary roads, does not cause CSMC Rule 80-1-20-150 to be

inconsistent with nor less effective than the general requirements for

all roads in the Federal regulations at 30 CFR 816.150(b) (2) and (3)

and 817.150(b) s(2) and (3). The Director approves the proposed

deletion of CSMC Rule 80-1-20-150(c).

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the New Mexico program.

The U.S. Army Corps of Engineers responded on February 27, 1996,

that the proposed revisions were satisfactory (administrative record

No. NM-769).

The U.S. Bureau of Land Management (BLM) responded on March 4,

1996, with the following comments (administrative record No. NM-771).

BLM questioned the appropriateness of New Mexico's proposed

definitions at CSMC 80-1-1-5 for (1) ``Occupied residential dwelling

and associated structures,''commenting that by providing for fenced in

areas to count as part of a dwelling, it would allow large tracts to be

excluded from mining consideration, (2) ``Ownership or control link,''

commenting that, by using the phrase ``owns and controls,'' the

reasoning if circular, and (3) ``Replacement of water supply,''

commenting that it is not a pure definition because procedure and

definition are mixed together. Because, as discussed in finding Nos. 2

and 5.a, these definitions proposed by New Mexico are, with one

exception concerning a reference to other New Mexico rules in

``Occupied residential dwelling and associated structures,''

substantively identical to the same Federal definitions at 30 CFR 701.5

and 773.5, the Director is not requiring that New Mexico further revise

its rules in response to these comments. However, nothing in New

Mexico's proposed definition of ``Occupied residential dwelling and

associated structures,'' nor in the same Federal definition, excludes

areas from mining. The term is defined in order that compensation may

be provided if damage to such a structure occurs after October 24,

1992, that is, under certain conditions, a result of subsidence due to

underground mining operations.

BLM commented that proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3),

concerning permit application requirements for ponds and impoundments,

are incomplete statements. New Mexico's proposed amendment contained

only the language that was proposed for revision and did not include

language in the approved New Mexico program that was not being revised.

Therefore, the commenter did

[[Page 26834]]

not see the subparagraphs that exist in New Mexico which complete the

statements at proposed CSMC Rules 80-1-9-25 (a)(2) and (a)(3). Because

complete statements exist in the New Mexico program, the Director is

not requiring that New Mexico further revise its rules in response to

this comment.

BLM commented that proposed CSMC Rule 80-1-9-25(c)(3), concerning

permit application requirements for subsidence information and control

plans, should require that photos be taken of all sides of occupied

building, and buildings of considerable value, and that a foundation

inspection should be done on such buildings as part of the survey of

conditions. Proposed CSMC Rule 80-1-9-39(c)(3) does require a photo,

taken prior to mining, of the exterior of all non-commercial buildings

or occupied residential dwellings and associated structures that are

within the area encompassed by the applicable angle of draw. Proposed

CSMC Rule 80-1-9-39(c)(3) is substantially identical to the counterpart

Federal regulation at 30 CFR 784.20(a)(3), with the exception that it

requires a photo of the buildings prior to mining as part of a

presubsidence survey. Therefore, because New Mexico's proposed

requirement for a photo already provides for additional information not

specified in the Federal program, the Director is not requiring that

New Mexico further revise proposed CSMC Rule 80-1-9-39(c)(3) in

response to this comment. However, nothing in the proposed rule would

prevent the applicant from documenting the condition of the buildings

to the extent recommended by the commenter.

BLM commented that proposed CSMC Rules 80-1-11-33 and 34,

concerning procedures and standards for challenging ownership and

control links, are detailed procedures and standards and should be

covered in an internal document. As discussed in finding No. 2, these

proposed rules are substantively identical to the requirements in the

Federal regulations at 30 CFR 773.24 (a) through (d) and 773.25 (a)

through (d). With these proposed rules, New Mexico's approved program

is no less effective than the Federal program. Therefore, the Director

is not requiring that New Mexico further revise its program in response

to this comment.

BLM commented that at (proposed performance standards for ponds and

impoundments) (1) CSMC Rule 80-1-20-49(e)(4), the size of the storm

event that the impoundment is expected to weather without overtopping

should be specified, (2) CSMC Rule 80-1-20-49(e)(8), protection against

sudden drawdown does not make sense because sudden drawdown is a

subsurface phenomenon which would not occur as a result of sheet

erosion, and (3) CSMC Rule 80-1-20-49(e)(10), it is unclear whether the

rule referred to submerged highwalls in a pit left flooded after

reclamation.

These New Mexico proposed rules are substantively identical to the

respective counterpart Federal regulations at 30 CFR 816.19(a)(5) and

817.49(a)(5), 816.49(a)(7) and 817.49(a)(7), and 816.49(a)(10) and

817.49(a)(10). In response to the comment concerning proposed CSMC Rule

80-1-20-49(e)(4), the Director notes that the design storm event is

specified within the referenced ``Minimum Emergency Spillway Hydrologic

Criteria'' table in TR-60. In response to the comment concerning

proposed CSMC Rule 80-1-20-49(e)(8), the rule requires protection

(e.g., by rip rap, fabric, or vegetation) of the pond or impoundment

inslope against sudden drawdown, which could occur as a result of

pumping or other rapid release of water. In addition, the rule requires

outslope protection that could occur as a result of surface sheet

erosion. In response to the comment concerning proposed CSMC Rule 80-1-

20-49(e)(10), the Director notes that the rule does refer to a

permanent impoundment which is created by a portion of a pit approved

to be left in the reclaimed environment in support of the approved

postmining land use. Because New Mexico's proposed rules are

substantively identical to the counterpart Federal regulations, the

Director is not requiring that New Mexico further revise its rules in

response to these comments.

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that relate to air or water quality

standards promulgated 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 its

amendment pertain to air or water quality standards. Therefore, OSM did

not request EPA's concurrence.

Pursuant to 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from EPA (administrative record No. NM-768. It

responded on February 27, 1996, that it had no comments (administrative

record No. NM-770).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and ACHP (administrative record No.

NM-768). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

Based on the above findings, the Director approves, with one

exception and certain additional requirements, New Mexico's proposed

amendment as submitted on January 22, 1996.

The Director approves, as discussed in finding No. 1,

nonsubstantive editorial revisions at: CSMC Rule 80-1-11-22(d),

concerning remedial measures for improvidently issued permits; CSMC

Rule 80-1-20-41(e)(3)(i), concerning general performance standard

requirements for protection of the hydrologic balance; CSMC Rule 80-1-

20-82(a)(4), concerning inspections of coal processing waste banks; and

CSMC Rule 80-1-20-89(d)(2), concerning disposal of noncoal wastes.

The Director approves, as discussed in finding No. 2, concerning

rules that are substantively identical to the corresponding Federal

regulations at: CSMC Rule 80-1-1-5, the definitions of ``Applicant/

violator system or AVS,'' ``Federal violation notice,'' ``Ownership or

control link,'' ``State violation notice,'' ``Violation notice,''

``OSM,'' and ``Road;'' CSMC Rules 80-1-11-20(c) (1) and (2) and (e),

concerning general procedures for improvidently issued permits; CSMC

80-1-11-24(a) and [deletion of] (c), concerning rescission procedures

for improvidently issued permits; CSMC Rule 80-1-11-31 (a) through (d),

concerning verification of ownership or control application

information; CSMC Rule 80-1-11-32 (a) through (c), concerning review of

ownership or control and violation information; CSMC Rule 80-1-11-33

(a) through (d), concerning procedures for challenging ownership or

control links shown in AVS; and CSMC Rule 80-1-11-34 (a) through (d),

concerning standards for challenging ownership or control links and the

status of violations;

The Director approves, as discussed in: finding No. 3, CSMC Rule

80-1-1-5, concerning the definition of ``Qualified laboratory;''

finding No. 5.a, CSMC Rule 80-1-1-5, concerning definitions for

``Drinking, domestic, or residential water supply,'' ``Noncommercial

building,'' and ``Replacement of water supply;'' finding No. 14, CSMC

Rule 80-1-20-93(a)(1),

[[Page 26835]]

concerning performance standard pertaining to the design and

construction of dams and embankments constructed of or intended to

impound coal processing waste; and finding No. 20, deletion of CSMC

Rule 80-1-20-150(c), concerning the prohibition pertaining to vehicular

use of fords or low water crossings by ancillary roads at any time

there is a visible surface flow.

The Director removes existing required amendments and approves, as

discussed in: finding No. 4, CSMC Rule 80-1-1-5, concerning the

definition of ``SMCRA'' and CSMC Rules 80-1-7-14(c) (1) through (5),

concerning compliance information required in permit applications;

finding No. 6, CSMC Rule 80-1-4-15(b)(1), concerning procedures for

initial processing, record-keeping, and notification requirements

concerning petitions to designate lands unsuitable for mining; finding

No. 8, CSMC Rules 80-1-9-39(a) (1) through (6), (b), and (c) (1)

through (9), concerning permit application requirements for subsidence

information and control plans; finding No. 9, CSMC Rule 80-1-11-17(c),

concerning the basis for permit denial; finding No. 10, CSMC Rules 80-

1-11-17(d) and 80-1-11-19(i), concerning, respectively, review of

permit applications for a demonstrated pattern of willful violations,

and criteria for permit approval and denial pertaining to a

demonstrated pattern of willful violations; finding No. 12, CSMC Rule

80-1-29(d), concerning conditions of permits; finding No. 13, CSMC

Rules 80-1-19-15 (c)(2), (c)(3), (c)(3)(iii), and (c)(4), concerning

performance standards applicable to coal exploration; finding No. 15,

CSMC Rules 80-1-20-97 (b) and (c), concerning protection of fish,

wildlife, and related environmental values; finding No. 16, CSMC Rule

80-1-20-116(b)(1), concerning the period of extended liability for

demonstration of revegetation success; finding No. 17, CSMC Rule 80-1-

20-116(b)(1) through (b)(5), concerning revegetation success standards;

and finding No. 19, CSMC Rules 80-1-20-117, 117(c)(1), 117(c)(3),

117(c)(4), 117(d)(2), and 117(d)(3)(i), concerning performance

standards for revegetation success pertaining to trees and shrubs.

With the requirement that New Mexico further revise its rules, the

Director approves, as discussed in: finding No. 5.a, CSMC Rule 80-1-1-

5, concerning definitions for ``Material damage'' and ``Occupied

residential dwelling and structures related thereto;'' and finding No.

7, CSMC Rules 80-1-9-25 (a) and (c) and 80-1-20-49(e) (1) through (11),

concerning requirements for ponds, impoundments, and banks, dams, and

embankments that meet or exceed the Class B or C criteria of Technical

Release No. 60 (210-VI-TR60, October 1985).

With the requirement that New Mexico further revise its rules, the

Director removes existing required amendments and approves, as

discussed in: finding No. 5.b, CSMC Rules 80-1-20-121 (a) through (d),

concerning general requirements for subsidence control, CSMC Rules 80-

1-20-124 (a) through (d), concerning surface owner protection and

restoration, replacement, repair, or compensation of subsidence-caused

damages, CSMC Rules 80-1-20-125 (a) through (e), concerning rebuttable

presumption of causation by subsidence, and CSMC Rules 80-1-20-127,

concerning the requirement to adjust the bond amount for subsidence

damage; finding No. 11, CSMC Rules 80-1-11-20 (b)(1), (b)(1)(ii), and

(b)(3), concerning review criteria for improvidently issued permits;

and finding No. 18, CSMC Rule 80-1-20-116(b)(6), concerning normal

husbandry practices that may be used during the extending liability

period for demonstrating revegetation success, with the exception of

the allowance for the Director of the New Mexico program to approve

husbandry practices that have not received approval from OSM.

The Federal regulations at 30 CFR Part 931, codifying decisions

concerning the New Mexico's program, are being amended to implement

this decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undue delay. Consistency of State and Federal standards is required by

SMCRA.

Effect of Director'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 alteration of

an approved State program be submitted to OSM for review as a program

amendment. Thus, any changes to the State program are not enforceable

until approved by OSM. The Federal regulations at 30 CFR 732.17(g)

prohibit any unilateral changes to approved State programs. In the

oversight of the New Mexico program, the Director will recognize only

the statutes, regulations and other materials approved by OSM, together

with any consistent implementing policies, directives and other

materials, and will require the enforcement by New Mexico of only such

provisions.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by the Office of Management and

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12988

The Department of the Interior has conducted the reviews required

by section 3 of Executive Order 12988 (Civil Justice Reform) 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 Tribe or State AMLR plans and

revisions thereof since each such plan is drafted and promulgated by a

specific Tribe or State, not by OSM. Decisions on proposed Tribe or

State AMLR plans and revisions thereof submitted by a Tribe or State

are based on a determination of whether the submittal meets the

requirements of Title IV of SMCRA (30 U.S.C. 1231-1243) and the

applicable Federal regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

agency decisions on proposed Tribe or State AMLR plans and revisions

thereof are categorically excluded from compliance with the National

Environmental Policy Act (42 U.S.C. 4332) by the Manual of the

Department of the Interior (516 DM 6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined 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 Tribe or State submittal which is the subject of this rule is based

upon 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. Accordingly, this rule will ensure that existing requirements

established by SMCRA or previously promulgated by OSM will be

implemented by the Tribe or State. In making the determination as to

whether this rule would have a significant economic impact, the

[[Page 26836]]

Department relied upon the data and assumptions in the analysis for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of $100 million or more in any

given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface mining, Underground mining.

Dated: May 7, 1996.

Richard J. Seibel,

Regional Director, Western Regional Coordinating Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal Regulations is amended as set forth

below:

PART 931--NEW MEXICO

1. The authority citation for Part 931 continues to read as

follows:

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

2. Section 931.15 is amended by adding paragraph (t) to read as

follows:

Sec. 931.15 Approval of amendments to State regulatory program.

* * * * *

(t) The director approves, with one exception at CSMC 80-1-20-

116(b)(6) concerning the authorization for the Director of the New

Mexico program to approve normal husbandry practices that have not been

approved by OSM, the proposed revisions submitted by New Mexico on

January 22, 1996.

3. Section 931.16 is amended by removing and reserving paragraphs

(a), (c), (d), (f), (g), (h), (i), (j), (k), (l), (p), (q), (r), and

(s); revising (n); and adding paragraphs (w),(x),(y), (z), and (aa) to

read as follows:

Sec. 931.16 Required program amendments.

* * * * *

(n) By February 15, 1994, New Mexico shall submit to OSM proposed

revisions to CSMC Rule 80-1-20-116(b)(1), or otherwise amend its

program, to require that all revegetation success standards and

measuring techniques be approved by the Director of OSM as well as the

Director of MMD.

* * * * *

(w) By November 25, 1996, New Mexico shall submit revisions at CSMC

Rule 80-1-1-5, for the definitions of ``Material damage'' and

``Occupied residential dwelling and associated structures'' to include

references in these definitions to CSMC Rules 80-1-20-121, 125, and

127.

(x) By November 25, 1996, New Mexico shall submit revisions at CSMC

Rule 80-1-9-29(e)(5) and CSMC Rules 80-1-20-49(d), (f)(2), and (g)(4)

and (5), to incorporate the requirements pertaining to those structures

that meet or exceed the Class B or C criteria for dams in TR-60.

(y) By November 25, 1996, New Mexico shall submit revisions at CSMC

Rule 80-1-11-20(b)(1) to violations review criteria that the Director

of the New Mexico program would use to determine what specific unabated

violations, delinquent penalties and fees, and ownership and control

relationship applied at the time a permit was issued.

(z) By November 25, 1996, New Mexico shall submit revisions at CSMC

Rule 80-1-20-116(b)(6) to either

(1) Identify selected husbandry practices and submit them with

documentation verifying that the proposed practices would be considered

normal in the areas being mined or

(2) State that selected husbandry practices approved by the

Director may not be implemented prior to approval from OSM in

accordance with the State program amendment process at 30 CFR 772.17.

(aa) By November 25, 1996, New Mexico shall submit revisions at

CSMC Rule 80-1-20-127 to clearly require adjustment of the bond amount

when subsidence-related contamination, diminution, or interruption to a

water supply occurs.

[FR Doc. 96-13265 Filed 5-28-96; 8:45 am]

BILLING CODE 4310-05-M