New Mexico Abandoned Mine Land Reclamation Plan

DEPARTMENT OF THE INTERIOR

30 CFR Part 931

[NM-035-FOR]

New Mexico Abandoned Mine Land Reclamation Plan

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

ACTION: Final rule; approval of amendment.

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

approving, with certain exceptions and additional requirements, a

proposed amendment to the New Mexico abandoned mine land reclamation

(AMLR) plan (hereinafter, the ``New Mexico plan'') under the Surface

Mining Control and Reclamation Act of 1977 (SMCRA). New Mexico proposed

to amend its plan by adding plan provisions pertaining to contractor

responsibilities, exclusion of certain sites from eligibility for

reclamation, and reports. In addition, New Mexico proposed revising the

State AMLR statute pertaining to its purpose, definition, creation of

the abandoned mine reclamation fund, objectives of the fund,

acquisition and reclamation of land adversely affected by past mining

practices, liens, and emergency powers. The amendment was intended to

revise the New Mexico plan to be consistent with SMCRA and meet the

requirements of the corresponding Federal regulations, and to improve

operational efficiency.

EFFECTIVE DATE: July 24, 1996.

FOR FURTHER INFORMATION CONTACT: Guy Padgett, Telephone: (505) 248-

5070, Internet address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Plan

On June 17, 1981, the Secretary of the Interior approved the New

Mexico. General background information on the New Mexico plan,

including the Secretary's findings and the disposition of comments, can

be found in the June 17, 1981, Federal Register (46 FR 31641).

Subsequent actions concerning New Mexico's plan and plan amendments can

be found at 30 CFR 931.25 and 931.26.

II. Proposed Amendment

By letter dated July 24, 1995, New Mexico submitted a proposed

amendment to its plan (administrative record No. NM-758) pursuant to

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

amendment in response to a September 26, 1994, letter (administrative

record No. NM-732) that OSM sent it in accordance with 30 CFR

884.15(d), and at its own initiative.

The provisions of the New Mexico plan that New Mexico proposed to

add were: section 874.16, contractor responsibility; 875.16, exclusion

of certain sites from eligibility for reclamation; 875.20, contractor

responsibility; and 886.23(c), reports. The provisions of the New

Mexico Abandoned Mine Reclamation Act that New Mexico proposed to

revise were: New Mexico Statute Annotated (NMSA) 69-25B-2, purpose of

the act; NMSA 69-25B-3, definitions; NMSA 69-25B-4, creation of the

abandoned mine reclamation fund; NMSA 69-25B-6, objective of the fund;

NMSA 69-25B-7, acquisition and reclamation of land adversely affected

by past mining practices; NMSA 69-25B-8, liens; and NMSA 69-25B-12,

emergency powers.

OSM announced receipt of the proposed amendment in the August 22,

1995, Federal Register (60 FR 43576), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. NM-760).

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

The public comment period ended on September 21, 1995.

During its review of the amendment, OSM identified concerns

relating to the provisions of the New Mexico Abandoned Mine Reclamation

Act at NMSA 69-25B-2 and 69-25B-3.B, lands and water eligible for

reclamation; NMSA 69-25B-6.C, construction of public facilities; and

NMSA 69-25B-12, emergency powers. OSM notified New Mexico of these

concerns by letter dated September 27, 1995 (administrative record No.

NM-764).

New Mexico responded by telephone on April 10, 1995 (administrative

record No. NM-778), that it would not submit revisions to the amendment

and that OSM should proceed with the publication of this final rule

Federal Register document.

III. Director's Findings

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

CFR 884.14 and 884.15, finds, with certain exceptions and additional

requirements, that the proposed plan amendment submitted by New Mexico

on July 24, 1995, meets the requirements of the corresponding Federal

regulations and is consistent with SMCRA. Thus, the Director approves

the proposed amendment.

1. Nonsubstantive Revisions to New Mexico's Statutes

New Mexico proposed revisions to the following previously approved

statutes that are nonsubstantive in nature and consist of minor

editorial, recodification, and State agency name changes (corresponding

SMCRA provisions are listed in parentheses):

NMSA 69-25B-3.A and D (section 401(a) of SMCRA), definitions for

the terms ``director'' and ``fund,''

NMSA 69-25B-4 (section 401(a) of SMCRA), creation of abandoned

mine reclamation fund, and

NMSA 69-25B-6.B (section 409 (a) and (d) of SMCRA), filling

voids and sealing tunnels.

Because the proposed revisions to these previously-approved

statutes are nonsubstantive in nature, the Director finds that they are

consistent with the corresponding provisions of SMCRA. The Director

approved the proposed revisions to these statutes.

2. Substantive Revisions to New Mexico's Plan Provisions and Statutes

That Are Substantively Identical to the Corresponding Provisions of

SMCRA and the Federal Regulations

New Mexico proposed revisions to the following plan provisions and

statutes that are substantive in nature and contain language that is

substantively identical to the requirements of the corresponding

Federal regulations and SMCRA provisions (listed in parentheses):

Plan section 875.16 (30 CFR 875.16), exclusion of certain

noncoal reclamation sites,

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Plan section 886.23(c) (30 CFR 886.23 (b)), reports,

NMSA 69-25B-3.C (30 CFR 870.5), definition of the term

``emergency,''

NMSA 69-25B-7 (sections 407 and 411 (g) of SMCRA), acquisition

and reclamation of land adversely affected by past mining practices,

and

NMSA 69-25B-8, (section 408 and 411(g) of SMCRA), liens.

Because these proposed New Mexico plan provisions and statutes are

substantively identical to the corresponding provisions of the Federal

regulations and SMCRA, the Director finds that they meet the

requirements of the Federal regulations and are consistent with SMCRA.

The Director approves the proposed revisions to these plan provisions

and statutes.

3. Plan Sections 874.16 and 875.20, Contractor Responsibility

New Mexico proposed plan sections 874.16 and 875.20 to provide

procedures that require the low bidders for abandoned mine land (AML)

coal and noncoal project contracts to clear OSM's Applicant/Violator

System (AVS) prior to the New Mexico AML office awarding project

contracts to any such bidders. AVS is a computer system used to track

the ownership and control relationships of parties involved in surface

coal mining and reclamation operations.

The counterpart Federal regulations at 30 CFR 874.16 for coal and

875.20 for noncoal, require that in order to receive AML funds, every

successful bidder for an AML contract must be eligible under 30 CFR

773.15(b)(1) at the time of contract award to receive a permit or

conditional permit to conduct surface coal mining operations, and that

bidder eligibility must be confirmed by OSM's automated AVS for each

contract to be awarded.

As proposed in sections 874.16 and 875.20 of the New Mexico plan,

successful bidders for AML contracts would have to clear AVS before

receiving a contract. A bidder could not clear AVS if, at the time of

contract award, the bidder could not qualify to receive a surface coal

mining and reclamation permit because the surface coal mining and

reclamation operation owned or controlled by either the bidder, or by

any person who owns or controls the bidder, was in violation of SMCRA,

any Federal rule or regulation promulgated pursuant thereto, a State

program, or any Federal or State law, rule, or regulation pertaining to

air or water environmental protection.

Unlike the Federal regulations at 30 CFR 874.16 and 875.20, New

Mexico's proposed plan provisions concerning contractor responsibility

contain details on how the AVS checks will be carried out. These

details include procedures that require New Mexico to provide OSM with

the information submitted by the apparent low bidder in order for OSM

to conduct the AVS check. This procedure is consistent with the

preamble for OSM's May 31, 1994, regulations, which states that ``[i]n

order to provide information that will allow the States to meet this

requirement, potential contractors may submit to OSM or the State

regulatory authority that ownership and control information enumerated

at 30 CFR 778.13 (c) and (d)'' (59 FR 28136, 28158). By the State

passing the bidder information to OSM for processing, the bidder is in

effect submitting the information to OSM for the AVS check. These

proposed procedural requirements meet the requirements of the Federal

regulations at 30 CFR 874.16 and 875.20.

In addition, New Mexico proposed at plan sections 874.16 and 875.20

that any subcontractor receiving 10 percent or more of the total

contract funding, and any contract inspector, would have to receive AVS

clearance before being allowed to work on an AML contract. No

counterpart requirements to these proposed provisions exist in the

Federal regulations, and the preamble for the Federal regulations at 30

CFR 874.16 and 875.20 does not address whether subcontractors and

contract inspectors must also clear AVS (May 31, 1994; 59 FR 28136,

28158 and 28164). Absent any specific requirements for subcontractors

and contract inspectors in the Federal regulations or the preamble

language for these regulations, New Mexico's proposed provisions

concerning subcontractors and contract inspectors are not inconsistent

with the Federal regulations at 30 CFR 874.16 and 875.20.

If, at any time in the future, OSM decides to promulgate

regulations or an interpretive rule to address subcontractors or

contract inspectors, it would notify New Mexico in accordance with 30

CFR Part 884.15(b) of any needed revisions to these plan sections.

For the above reasons, the Director finds that New Mexico's plan

provisions at sections 874.16 and 875.20 are consistent with the

Federal regulations at 30 CFR 874.16 and 875.20. The Director approves

these New Mexico plan provisions.

4. NMSA 69-25B-2 and NMSA 69-25B-3.B, Purpose of the New Mexico

Abandoned Mine Reclamation Act and Definition of ``Eligible Lands and

Water''.

New Mexico proposed at NMSA 69-25B-2 to delete the legal citation

for SMCRA and refer to it as ``SMCRA, as amended.'' This is a stylistic

revision that has no substantive effect on the New Mexico plan.

Therefore, the Director approves this proposed revision to the statute.

OSM addresses below substantive revisions to NMSA 69-25B-2 and NMSA

69-25B-3.B.

a. Deletion of ``prior to the enactment of that act and which'' and

deletion of ``prior to August 3, 1977''.--New Mexico also proposed at

NMSA 69-25B-2 to delete the phrase ``prior to the enactment of that act

and which'' from the provision which indicates that the purpose of New

Mexico's Abandoned Mine Reclamation Act (Act) is ``to promote the

reclamation of mined areas left without adequate reclamation prior to

the enactment of that act [SMCRA] and which continue, in their

unreclaimed condition, to substantially degrade the quality of the

environment.'' In addition, New Mexico proposed in its definition for

``eligible lands and water'' at NMSA 69-25B-3.B to delete the phrase

``prior to August 3, 1977.'' The effect of the proposed deletions from

NMSA 69-25B-2 and NMSA 69-25B-3.B makes coal lands and water affected

after August 3, 1977, eligible for reclamation under New Mexico's

statute.

Counterpart section 404 of SMCRA indicates that sites eligible for

reclamation are those left in an inadequate state ``prior to the date

[(August 3, 1977)] of enactment of this Act'' [(SMCRA)]. It provides,

as well, through its reference to section 402(g)(4) of SMCRA, for the

reclamation of certain sites affected by surface coal mining operations

between August 4, 1977, and December 31, 1980, and certain other sites

affected by surface coal mining operations between August 4, 1977, and

November 5, 1990. Through its reference to section 403(b)(1), it also

provides in a State that has not certified to the completion of all

known coal-related projects for the reclamation of the adverse effects

on water supplies that occurred both prior to and after August 3, 1977,

when such effects occurred predominantly prior to August 3, 1977, or

the dates and under the criteria set forth at section 402(g)(4)(B).

Therefore, under section 404 of SMCRA, only those post-August 3, 1977,

sites addressed by selections

[[Page 38378]]

402(g)(4) and 403(b) of SMCRA are allowed to be reclaimed under a State

plan. New Mexico has not proposed to revise its statute to add

counterparts to sections 402(g)(4) and 403(b) of SMCRA.

Because New Mexico at proposed NMSA 69-25B-2 and 69-25B-3.B has in

effect, through its deletion of the two phrases, revised its statute to

allow the reclamation of post-August 3, 1977, sites beyond those

allowed by sections 402(g)(4) and 403(b)(2) of SMCRA, these proposed

statutory provisions are not in compliance with section 404 of SMCRA.

Therefore, the Director does not approve these revisions, and requires

New Mexico to revise NMSA 69-25B-2 and NMSA 69-25B-3.B to preclude the

reclamation of post-SMCRA sites, with the only two possible exceptions

being that New Mexico may allow the reclamation of post-SMCRA sites if

it adopts counterparts to sections 402(g)(4) and/or 403(b) of SMCRA.

b. Deletion of the word ``coal''.--At NMSA 69-25B-3.B, New Mexico

proposed to delete the word ``coal'' from the phrases ``mined for

coal,'' ``coal processing,'' and ``other coal mining processes.'' The

effect of the deletion of the word ``coal'' (1) makes lands affected by

any type of mining operation, not just coal mining operations, eligible

for reclamation under the New Mexico plan and (2) allows New Mexico to

reclaim noncoal lands and water prior to reclaiming all coal lands and

water. These revisions also make the statute inconsistent with the

unrevised corresponding ``Ranking and Selection'' section of New

Mexico's plan, which continues to rank coal projects ahead of noncoal

projects.

Counterpart section 404 of SMCRA indicates that sites eligible for

reclamation are those affected by coal mining. It also provides,

through its reference to section 409 of SMCRA and the reference of

section 403(a)(1) in section 409(c)(1), for the reclamation of sites

affected by noncoal mining in States such as New Mexico that have not

certified completion of coal projects if the Governor makes a request

for reclamation of a noncoal site on the basis that the site poses an

extreme danger to public health, safety, general welfare, or property.

New Mexico's proposed deletion of the word ``coal'' from its

definition for ``eligible lands and water'' at NMSA 69-25B-3.B causes

the State's AML program not to be in compliance with section 404 of

SMCRA. The Director does not approve the deletion of the word ``coal''

at NMSA 69-25B-3.B and requires New Mexico to reinsert the word

``coal'' or otherwise revise its statute to preclude reclamation of

noncoal sites before coal sites, except in those limited circumstances

allowed by section 404 of SMCRA.

5. NMSA 69-25B-6, Objectives of the Fund

At NMSA 69-25B-6, New Mexico proposed to make stylistic changes

(use of ``the'' and ``those,'' instead of ``such'') and delete the

legal citation for the New Mexico Abandoned Mine Reclamation Act. None

of these revisions are substantive in nature. Therefore, the Director

approves these changes to this statute.

OSM addresses below substantive revisions to NMSA 69-25B-6.

a. NMSA 69-25B-6.A, Expenditure Priorities.--New Mexico proposed at

NMSA 69-25B-6.A (1) through (3), (5) and (6) to delete the word

``coal'' in several instances so that the objectives of the State

abandoned mine reclamation fund are to protect the public against the

adverse effects of ``mining practices'' and ``mining development''

respectively rather than ``coal mining practices'' and ``coal

development.'' Except for the proposed deletion of the word ``coal,''

these provisions are substantively identical to the provisions at

section Counterpart section 403(a) of SMCRA indicates that sites

eligible for reclamation are those affected by coal mining. New

Mexico's proposed deletion of the word ``coal'' at NMSA 69-25B-6.A

causes this provision to be not in compliance with section 403(a) of

SMCRA. (See finding No. 4.6.) Therefore, the Director does not approve

the deletion of the word ``coal'' at NMSA 69-25B-6.A, and requires New

Mexico to revise its provisions to reflect the priorities for

expenditures at counterpart 403(a) of the SMCRA.

In addition, New Mexico still retains, at NMSA 69-25B-6.A(4) and in

item No. I(d) of the ``Ranking and Selection'' section of its plan, as

its fourth priority, the expenditure of funds for ``research and

demonstration projects relating to the development of surface mining

reclamation and water quality control program methods and techniques.''

The counterpart provision at section 403(a)(4) of SMCRA was elected by

the Energy Policy Act of 1992, Pub. L. 102-486 (October 24, 1992), and

the subsequent paragraphs (5) and (6) were renumbered accordingly. To

be in compliance with section 403(a) of SMCRA, the Director requires

New Mexico to delete NMSA 69-25B-6.A(4) and item No. I(d) of the

``Ranking and Selection'' section of its plan. In the intervening

period until New Mexico revises its statute and plan to be consistent

with section 403(a) of SMCRA, OSM cannot approve any New Mexico grant

applications for research and demonstration projects relating to the

development of surface mining reclamation and water control program

methods and techniques.

The Director notes that New Mexico has not inserted into its

statute a counterpart to section 403(b) of SMCRA, which provides for

mitigation of adverse effects to water supplies caused by coal mining

practices. Lack of a counterpart provision in the New Mexico plan does

not make the plan inconsistent with SMCRA or the Federal regulations,

but if New Mexico wished to expend funds for a water project as defined

at 403(b)(1) of SMCRA, it would be prevented from utilizing up to 30

percent of the AML funds allocated to the State under 402(g)(1) and (5)

for this purpose, because it appears that the plan lacks the statutory

authority. If such projects have been identified in the State's ranking

and selection process, New Mexico may wish to amend its plan so that it

has the proper authority to proceed with such water projects.

b. NMSA 69-25B-6.C, Public Facilities.--New Mexico proposed at NMSA

69-25B-6.C to delete the word ``coal'' as used in ``communities

impacted by coal mining development,'' where money in the fund may be

expended for the purpose of constructing specific public facilities if

certain criteria are met. Prior to the Abandoned Mine Reclamation Act

(AMRA) of 1990, Pub. L. 101-508 (November 5, 1990), a counterpart

provision in SMCRA existed at section 402(g)(2). However, AMRA deleted

the provision there and created a new provision at section 411(e). This

newly-created section addresses the priority of reclamation projects

after the State has certified completion of coal projects and provides

that ``[r]eclamation projects involving * * * the construction of

public facilities in communities impacted by coal or other mineral

mining and processing practices, shall be deemed part of the objects

set forth, and undertaken as they relate to, the priorities stated in

subsection (c).''

Proposed NMSA 69-25B-6.C is deficient by allowing, through the

deletion of the word ``coal,'' for the undertaking of noncoal projects

prior to New Mexico's certification of completion of coal projects and,

through its reference to NMSA 69-25B-6.A, which includes NMSA 69-25B-

6.A(4), and as discussed above, no longer has a counterpart at section

403(a) of SMCRA. Therefore, the Director requires New Mexico to

reinsert the word ``coal'' at NMSA 69-25B-6.C. The Director also

reiterates that to the extent that the

[[Page 38379]]

provisions of NMSA 69-25B-6.A(4) apply by reference, New Mexico would

not receive OSM's approval to expend funds for research and

demonstration projects relating to the development of surface mining

reclamation and water control program methods and techniques. (See

finding No. 5.a.)

6. NMSA 69-25B-12, Emergency Powers

New Mexico proposed at NMSA 69-25B-12 to delete the word ``coal''

from its provisions setting forth emergency powers for the Director of

the Mining and Minerals Division.

Counterpart section 410 of SMCRA provides for an emergency program

to restore, reclaim, abate, control, or prevent the adverse effects of

coal mining practices on eligible lands. This emergency program extends

only to coal lands and water and is a Federal responsibility except in

those cases where a State has sought and been given such authority.

In 1985, New Mexico enacted into law NMSA 69-25B-12, which is the

State counterpart to section 410 of SMCRA for the assumption by New

Mexico of an emergency program. On May 9, 1986, New Mexico of an

emergency program. On May 9, 1986, New Mexico submitted a formal

amendment in which it requested approval of a State emergency program

(administrative record Nos. NM-AML-36 and 37). New Mexico subsequently

withdrew its request on August 22, 1988 (administrative record NO. NM-

AML-51).

The amendment currently under review by OSM still includes NMSA 69-

25B-12, but OSM understands that New Mexico's intent at this time is

not to assume an emergency program. Therefore, the Director reluctantly

cannot approve NMSA 69-25B-12. Even though OSM strongly supports and

encourages State assumption of emergency programs, NMSA 69-25B-12 will

have no effect in New Mexico's AML program until such time as New

Mexico requests, with supporting documentation, an emergency program

limited to coal reclamation only, and OSM approves it.

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 30 CFR 884.15(a) and 884.14(a)(2), OSM solicited

comments on the proposed amendment from various Federal agencies with

an actual or potential interest in the New Mexico plan (administrative

record No. NM-759).

U.S. Bureau of Mines.--The U.S. Bureau of Mines, in a telephone

conversation on September 7, 1955, responded that it had no comments on

the proposed amendment (administrative record No. NM-761).

U.S. Environmental Protection Agency (EPA).--EPA responded on

September 7, 1995 (administrative record No. NM-762), with comments on

the proposed amendments to the New Mexico plan and New Mexico Abandoned

Mine Reclamation Act.

EPA agreed with the deletion of specific references to ``coal''

mining throughout the amendments because the State's act should not be

restricted to coal mining, as the references to ``coal'' would suggest.

OSM agrees that in some instances deletion of the word ``coal'' is

appropriate, but as discussed at finding Nos. 4.a and 5.a and b above,

the proposed deletions cause certain statutes of New Mexico's act to be

deficient.

EPA commented that NMSA 69-25B-6.C should specify the types of

public facilities that may be built with money from the Abandoned Mine

Reclamation Fund. The counterpart provisions at sections 411 (e) and

(f) of SMCRA allow for the construction of public facilities in

communities impacted by coal or other mineral mining and processing

practices and for activities or construction of specific public

facilities related to the coal or minerals industry in States impacted

by coal or minerals development when a need is established and the

Secretary of the Interior concurs in the need. ``Public facilities''

are not specifically defined in SMCRA. The scope of public facilities

funded under section 411 of SMCRA is very broad and covers facilities

related in some way to the coal or minerals industry in a State. OSM is

not requiring New Mexico to revise NMSA 69-25B-6.C to list types of

public facilities addressed by the statute.

EPA commented that NMSA 69-25B-7.D, which provides in part that

``the price paid for land acquired under this section shall reflect the

market value of the land as adversely affected by past mining

practices,'' is inconsistent with the Federal land acquisition

regulations. EPA commented further that the price to be paid for land

acquired pursuant to the New Mexico Abandoned Mine Reclamation Act

should reflect the fair market value of land as ``unaffected by

contamination.'' This change could cause New Mexico to pay a higher

price for lands acquired under NMSA 69-25B-7, and would cause NMSA 69-

25B-7.D to be inconsistent with SMCRA. Counterpart sections 407(d) and

411(g) of SMCRA require that the price paid for acquired lands reflect

the market value of the lands as ``adversely affected by past mining

practices.'' Because the price to be paid for acquired lands at NMSA

69-25B-7.D is consistent with section 407(d) of SMCRA, OSM is not

requiring New Mexico to make any additional changes to this statute.

Lastly, EPA commented that NMSA 69-25B-8 should provide for the

disposition of monies collected through liens (i.e., deposit monies in

the Abandoned Mine Reclamation Fund or use them to reimburse the

Federal government). New Mexico, at unrevised plan section

884.13(c)(5), requires that ``monies derived from the satisfaction of

liens established under this part shall be deposited in the Abandoned

Mine Reclamation Fund.'' This provision already satisfies EPA's

concern.

Bureau of Land Management (BLM)--The BLM New Mexico State Office

suggested on August 24, 1995, two changes to the proposed amendment

(administrative record No. NM-765). BLM suggested that the ownership

and control information proposed at plan sections 874.16 and 875.20

could be changed by adding ``[i]f the Apparent Low Bidder is

unqualifiable, the AML office may process a subsequent Low Bidder

without reinitiating the bidding process.'' This suggestion was offered

as an option to allow for a streamlined bidding process and cost

savings in the event of an unqualifiable low bidder rejection.

OSM responds that the requirements proposed by New Mexico at plan

sections 874.16 and 875.20 are consistent with the requirements of the

Federal regulations concerning contractor responsibility at 30 CFR

874.16 and 875.20. (See finding No. 3.) OSM has passed BLM's comment on

to the New Mexico Mining and Minerals Division. It is left to the State

to determine whether it will adopt the suggestion.

BLM also suggested that the amendment does not assert that funds

available for reclamation through the abandoned mine act should address

coal reclamation before noncoal reclamation. BLM stated that including

wording that requires AML funds to be used for coal reclamation before

noncoal reclamation would assure that the amendment is

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fully compatible with the Federal statute.

OSM agrees that New Mexico's statute does not require this (see

finding No. 4.b). New Mexico's plan section 884.13(c)(2), which is not

proposed for revisions in this amendment, does require that coal

reclamation be completed before noncoal reclamation, except, upon the

request of the Governor of New Mexico, reclamation can occur on noncoal

sites to protect the public from extreme hazards endangering life and

property resulting from the adverse effects of past noncoal mining

practices. This plan provision is consistent with sections 403 and 409

of SMCRA and the implementing Federal regulations at 30 CFR 874.13 and

875.12. Therefore, OSM is not requiring New Mexico to provide a

statement as suggested by BLM that requires AML funds to be used for

coal reclamation before noncoal reclamation, but as discussed in

finding No. 4.b. above, OSM is requiring New Mexico to reinsert the

word ``coal'' at NMSA 69-25B-3.B or otherwise revise its statute to

preclude reclamation of noncoal sites before coal sites, except in

those limited circumstances allowed by section 404 of SMCRA.

V. Director's Decision

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

exceptions and/or additional requirements, New Mexico's proposed plan

amendment as submitted on July 24, 1995.

With the requirement that New Mexico further revise its statutes,

the Director does not approve, as discussed in: finding Nos. 4.a and b,

NMSA 69-25B-2 and 3.B, concerning the purpose of the New Mexico

Abandoned Mine Land Reclamation Act and definition of the term

``eligible lands and water;'' finding No. 5.a, NMSA 69-25B-6.A,

concerning objectives of the fund; finding No. 5.b, NMSA 69-25B-6.C,

concerning public facilities; and finding No. 6, NMSA 69-25B-12,

concerning emergency powers.

The Director approves, as discussed in: finding No. 1, NMSA 69-25B-

3.A and D, concerning definitions of ``director'' and ``fund,'' NMSA

69-25B-4, concerning creation of abandoned mine reclamation fund, and

NMSA 69-25B-6.B, concerning filling voids and sealing tunnels; finding

No. 2, plan section 875.16, concerning exclusion of certain noncoal

reclamation sites, plan section 886.23(c), concerning reports, NMSA 69-

25B-3.C, concerning definition of ``emergency,'' NMSA 69-25B-7,

concerning acquisition and reclamation of land adversely affected by

past mining practices, and NMSA 69-25B-8, concerning liens; and finding

No. 3, plan sections 874.16 and 875.20, concerning contractor

responsibility.

The Director approves the plan provisions and statutes as proposed

by New Mexico with the provision that they be fully promulgated in

identical form to the plan provisions and statutes submitted to and

reviewed by OSM and the public.

The Federal regulations at 30 CFR Part 931, codifying decisions

concerning the New Mexico plan, are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State plan amendment process and to encourage States to

bring their plans into conformity with the Federal standards without

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

SMCRA.

VI. 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

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

corresponding Federal regulations.

6. Unfunded Mandates Act

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

given year on any governmental entity or private sector.

List of Subjects in 30 CFR Part 931

Abandoned mine reclamation programs, Intergovernmental relations,

Surface mining, Underground mining.

Dated: June 26, 1996.

Peter A. Rutledge,

Acting 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 931.25 is added to read as follows:

Sec. 931.25 Approval of abandoned mine land reclamation plan

amendments.

(a) With the exception of New Mexico Statute Annotated (NMSA) 69-

25B-2, concerning the purpose of the New Mexico Abandoned Mine Land

Reclamation Act, NMSA 69-25B-3.B, concerning the definition of

``eligible lands and water,'' NMSA 69-25B-6.A, concerning objectives of

the fund, NMSA 69-25B-6.C, concerning public facilities, and NMSA 69-

25B-12,

[[Page 38381]]

concerning emergency powers, the addition of and revisions to the

following plan provisions and statutes, as submitted to OSM on July 24,

1995, are approved effective July 24, 1996:

Plan sections 874.16 and 875.20, contractor responsibility.

Plan section 875.16, exclusion of certain noncoal reclamation

sites.

Plan section 886.23(c), reports.

NMSA 69-25B-3.A, C, and D, definitions of ``director,''

``emergency'', and ``fund.''

NMSA 69-25B-4, creation of abandoned mine reclamation fund.

NMSA 69-25B-6.B, filling voids and sealing tunnels.

NMSA 69-25B-7, acquisition and reclamation of land adversely

affected by past mining practices.

NMSA 69-25B-8, liens.

(b) [Reserved]

3. Section 931.26 is added to read as follows:

Sec. 931.26 Required plan amendments.

Pursuant to 30 CFR 884.15, New Mexico is required to submit for

OSM's approval the following proposed plan amendments by the date

specified.

(a) By January 21, 1997, New Mexico shall revise NMSA 69-25B-2 and

3.B to provide references to August 3, 1977, the effective date of

SMCRA, or otherwise modify its plan, to ensure that the reclamation of

post-August 3, 1977, sites is specifically provided for with

counterpart provisions to sections 402(g)(4) and 403(b)(2).

(b) By January 21, 1997, New Mexico shall further revise NMSA 69-

25B-3.B to provide a definition for ``eligible lands and water'' that

is consistent with the term as defined at section 404 of SMCRA.

(c) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.A,

or otherwise modify its plan, to reflect the same expenditure

priorities as counterpart section 403(a) of SMCRA.

(d) By January 21, 1997 New Mexico shall revise NMSA 69-25B-6.A by

deleting NMSA 69-25B-6.A(4) and item No. I (d) of the ``Ranking and

Selection'' section of its plan.

(e) By January 21, 1997, New Mexico shall revise NMSA 69-25B-6.C by

reinserting the word ``coal.''

[FR Doc. 96-18612 Filed 7-23-96; 8:45 am]

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