New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[NM-037-FOR]

New Mexico Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period

on proposed amendment.

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

announcing receipt of revisions and additional explanatory information

pertaining to previously proposed amendment to the New Mexico

regulatory program (hereinafter, the ``New Mexico program'') under the

Surface Mining Control and Reclamation Act of 1977 (SMCRA). The

revisions and additional explanatory information for New Mexico's

proposed rules pertain to permit application contents for operations

exclusively under reclamation and the timing of backfilling and

grading. The amendment is intended to revise the New Mexico program to

incorporate the additional flexibility afforded by the revised Federal

regulations, as amended, and improve operational efficiency.

DATES: Written comments must be received by 4:00 p.m., m.s.t. December

18, 1998.

ADDRESSES: Written comments should be mailed or hand delivered to

Willis L. Gainer at the address listed below.

Copies of the New Mexico program, the proposed amendment, and all

written comments received in response to this document will be

available for public review at the addresses listed below during normal

business hours, Monday through Friday, excluding holidays. Each

requester may receive one free copy of the proposed amendment by

contacting OSM's Albuquerque Field Office.

Willis L. Gainer, Director, Albuquerque Field Office, Office of Surface

Mining Reclamation and Enforcement, 505 Marquette Avenue, NW., Suite

1200, Albuquerque, New Mexico 87102

Mining and Minerals Division, New Mexico Energy & Minerals Department

2040 South Pacheco Street, Santa Fe, New Mexico 87505, Telephone: (505)

827-5970

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505)

248-5096, Internet address [email protected]

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 March 11, 1996, New Mexico submitted a proposed

amendment (administrative record No. NM-773) to its program pursuant to

[[Page 66775]]

SMCRA (30 U.S.C. 1201 et seq.). OSM announced receipt of the proposed

amendment in the March 26, 1996, Federal Register (61 FR 13117;

administrative record No. NM-802), provided an opportunity for a public

hearing or meeting on its substantive adequacy, and invited public

comment on its adequacy. Because no none requested a public hearing or

meeting, none was held. The public comment period ended on April 25,

1996.

During its review of the amendment, OSM identified concerns

relating to the provisions of Coal Surface Mining Commission (CSMC)

Rules 80-1-5-23(a) and 80-1-15-11 through 80-1-15-27, minimum

requirements for permit applications concerning coal mining operations

exclusively under reclamation, and CSMC Rule 80-1-20-101(a)(1) and (3),

timing of backfilling and grading. OSM notified New Mexico of the

concerns by letter dated May 15, 1996 (administrative record No. NM-

885).

Please note that by letter dated January 6, 1998, New Mexico

submitted a proposed amendment (administrative record No. NM-795) to

recodify the New Mexico Surface Coal Mining Regulations. New Mexico

recodified its rules from Coal Surface Mining Code Rule 80-1 (CSMC Rule

80-1), sections 1 through 15 and sections 19 through 34, to Title 19

(Natural Resources and Wildlife), Chapter 8, (Coal Mining), Part 2

(Cold Surface Mining) of the New Mexico Administrative Code (19 NMAC

8.2), Subparts 1 through 34. No substantive changes to the text of the

rules were proposed. OSM approved the recodification of New Mexico's

rules on June 8, 1998 (63 FR 31112, administrative record No. NM-805).

For purposes of clarity, OSM will hereinafter give both the recodified

and the old citations of New Mexico's proposed revisions that are the

subject of this document.

New Mexico responded in a letter dated November 9, 1998, by

submitting a revised amendment and additional explanatory information

(administrative record No. NM-803). New Mexico proposes to further

revise its program by (1) withdrawing it's proposed revision of 19 NMAC

8.2 505.A (old CSMC Rule 80-1-5-23(a)) and withdrawing in its entirety

the proposed addition of Subpart 15 (old CSMC Rules 80-1-15-11 through

80-1-15-27), concerning minimum requirements for permit applications

pertaining to coal mining operations exclusively under reclamation, and

(2) revising and submitting additional explanatory information for 19

NNMAC 8.2 2054.A (old CSMC Rules 80-1-20-101(a)), concerning the timing

of backfilling and grading.

Specifically, New Mexico proposes to:

(1) Withdraw it's proposed revision at 19 NMAC 8.2 505.A (old CSMC

Rule 80-1-5-23(a)) and withdraw in its entirety the proposed addition

of Subpart 15 (old CSMC Rules 80-1-15-11 through 80-1-15-27),

concerning minimum requirements for permit applications pertaining to

coal mining operations exclusively under reclamation;

(2) Submit additional explanatory information for 19 NMAC 8.2

2054.A (old CSMC Rules 80-1-20-101(a)), pertaining to timing of

backfilling and grading; and

(3) Further amended proposed 19 NMAC 8.2 2054.A by (a) revising

2054.A(2), pertaining to open pit mining, to allow for an annual

backfilling and grading schedule based on either time or distance; (b)

revising 2054.A(4), pertaining to surface areas disturbed incidental to

underground mining activities, to require backfilling and grading in

accordance with an annual time schedule; and (c) adding 2054.A(5),

pertaining to any final pit at the completion of mining activities, to

require that rough backfilling and grading occur in accordance with a

time schedule approved by the Director of the New Mexico program.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed New Mexico

program amendment to provide the public an opportunity to reconsider

the adequacy of the proposed amendment in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), OSM is seeking comments on whether the proposed amendment

satisfies the applicable program approval criteria of 30 CFR 732.15. If

the amendment is deemed adequate, it will become part of the New Mexico

program.

Written comments should be specific, pertain only to the issues

proposed in this rulemaking, and include explanations in support of the

commenter's recommendations. Comments received after the time indicated

under DATES or at locations other than the Alburquerque Field Office

will not necessarily be considered in the final rulemaking or included

in the administrative record.

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 State regulatory programs and

program amendments since each such program is drafted and promulgated

by a sepcific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act (42 U.S.C.

4332(2)(C)).

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 State submittal that is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

[[Page 66776]]

6. Unfunded Mandates

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

Intergovermental relations, Surface mining, Underground mining.

Dated: November 24, 1998.

Russell F. Price,

Acting Regional Director, Western Regional Coordinating Center

[FR Doc. 98-32187 Filed 12-2-98; 8:45 am]

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