New Mexico Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[SPATS Nos. NM-037-FOR and NM-039-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 pertaining to two previously proposed

amendments to the New Mexico regulatory program (hereinafter, the ``New

Mexico program'') under the Surface Mining Control and Reclamation Act

of 1977 (SMCRA). The revisions for New Mexico's proposed rules pertain

to timing of backfilling and grading; definitions of ``material

damage'' and ``occupied residential dwelling and associated

structures''; design criteria and inspection requirements for

impoundments and spillways; adjustment of bond amount for subsidence

damage; ground cover requirements for lands to be developed for

recreation and shelterbelts; other transportation facilities; and

review criteria for improvidently issued permits. The amendments are

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.

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

21, 2000.

ADDRESSES: You should mail or hand deliver written comments to Willis

L. Gainer at the address listed below.

You may review copies of the New Mexico program, the amendment, a

listing of any scheduled public hearings, and all written comments

received in response to this document at the addresses listed below

during normal business hours, Monday through Friday, excluding

holidays. You may receive one free copy of the 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

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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

SPATS Nos. NM-037-FOR and NM-039-FOR

By letters dated March 11, 1996 (SPATS No. NM-037-FOR), and

November 13, 1998 (SPATS No. NM-039-FOR), New Mexico submitted proposed

amendments (respectively, administrative record Nos. NM-773 and NM-804)

to its program pursuant to SMCRA (30 U.S.C. 1201 et seq.). New Mexico

submitted the proposed amendments in response to the required program

amendments at 30 CFR 931.16 (w), (x), and (aa), and at its own

initiative.

OSM announced receipt of the proposed amendments in the,

respectively, March 26, 1996 and the December 3, 1998 Federal Register

(respectively, 59 FR 13117 and 63 FR 66772), provided an opportunity

for a public hearing or meeting on its substantive adequacy, and

invited public comment on its adequacy (respectively, administrative

record Nos. NM-802 and NM-808). Because no one requested public

hearings or meetings, none were held. The public comment periods ended

on, respectively, April 25, 1996 and January 4, 1999.

SPATS No. NM-037-FOR

During its review of the March 11, 1996 amendment, OSM identified

concerns and notified New Mexico of the concerns by letter dated May

15, 1996 (administrative record no. NM-785). New Mexico responded in a

letter dated November 9, 1998 by submitting a revised amendment and

additional explanatory information (administrative record no. NM-803).

OSM announced receipt of the proposed amendments in the December 3,

1998 Federal Register (63 FR 66774) and invited public comment on its

adequacy (administrative record No. NM-809). The public comment period

ended on December 18, 1998.

During its review of the November 9, 1998, revised amendment, OSM

identified concerns and notified New Mexico of the concerns by letter

dated December 21, 1998 (administrative record no. NM-814). New Mexico

responded in a letter dated December 1, 1999, by submitting a revised

amendment (administrative record No. NM-816).

New Mexico proposes further revisions to 19 NMAC 8.2 2054.A(1),

(2), and (3), concerning timing of backfilling and grading.

Specifically, New Mexico proposes to revise 19 NMAC 8.2 2054.A(1),

concerning contour mining, to require rough backfilling and grading by

not more than 60 days or 1500 linear feet; 19 NMAC 8.2 2054.A(2),

concerning open pit mining, to require rough backfilling and grading on

the basis of the materials submitted under 19 NMAC 8.2 906.B(3) which

shall establish in specific increments the period between removal of

coal and completion of backfilling and grading; and 19 NMAC 8.2

2054.A(3), concerning strip mining, to require rough backfilling and

grading to be completed within 180 days and not more than four spoil

ridges behind the pit being worked. New Mexico also revised both 19

NMAC 8.2 2054.A(1) and (3) to provided for additional time or distance

for rough backfilling and grading if the permittee con, on the basis of

the materials submitted under 19 NMAC 8.2 906.B(3) that additional time

or distance is necessary. New Mexico's existing rule at 19 NMAC 8.2

906.B(3) requires a reclamation plan for backfilling, soil

stabilization, compacting and grading, with contour maps or cross

sections that show the anticipated final surface configuration of the

proposed permit area. New Mexico also proposes to add a new rule at 19

NMAC 8.2 2054.A(5), concerning final pit at completion of mining, to

require that rough backfilling and grading occur in accordance with a

time schedule approved by the Director based on materials submitted

under 19 NMAC 8.2. 906.B9(3).

SPATS No. NM-039-FOR

During its review of the November 13, 1998 amendment, OSM

identified concerns and notified New Mexico of the concerns by letter

dated January 7, 1999 (administrative record no. NM-815). New Mexico

responded in a letter dated December 1, 1999, by submitting a revised

amendment (administrative record No. NM-816).

New Mexico proposes further revisions to 19 NMAC 8.2 107.M(1) and

O(2), definitions of ``material damage'' and ``occupied residential

dwelling and associated structures''; 19 NMAC 8.2 2017.D, 2017.F(2),

and 2017.G(4) and (5), design criteria for impoundments and spillways

and inspection requirements for impoundments; and 19 NMAC 8.2 2072,

adjustment of bond amount for subsidence damage. New Mexico also

submitted, in response to required amendments at 30 CFR 931.16(o) and

(t), new explanatory information concerning, respectively, (1) ground

cover requirements for lands to be developed for recreation and

shelterbelts at 19 NMAC 8.2 2065.B, and (2) other transportation

facilities at 19 NMAC 8.2 2076. In addition, in response to the

required amendment at 30 CFR 931.16(y), New Mexico submitted a new

revision to 19 NMAC 8.2 1107.C(4), concerning improvidently issued

permits.

Specifically, New Mexico proposed to revise:

(1) The definitions of ``material damage'' and ``occupied

residential dwelling and associated structures'' at 19 NMAC 8.2

107.M(1) and O(2) to be applicable to the rules at 19 NMAC 8.2 2069

through 2072;

(2) 19 NMAC 8.2 1107.C(4) by requiring the use of the violations

review criteria published in the preamble of the Federal Register at 54

FR 18440-18441 when determining what specific unabated violations,

delinquent penalties and fees, and ownership and control relationships

will apply in finding that a permit was improvidently issued permits;

(3) 19 NMAC 8.2 2017.D, 2017.F(2), and 2017.G (4) and (5), design

criteria for impoundment and spillways and inspection requirements for

impoundments, to apply the design or inspection criteria applicable for

those structures meeting the size criteria of 30 CFR 77.216(a) to those

structures meeting the Class B or C criteria for dams in TR-60; and

(4) 19 NMAC 8.2 2072 by adding a paragraph that requires adjustment

of the bond amount for subsidence damage.

New Mexico explained, in response to the required amendments at 30

CFR 931.16 (o) and (t), that the ground cover requirements for lands to

be developed for recreation and shelterbelts are at 19 NMAC 8.2 2065.B,

and that the

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requirements for other transportation facilities are at 19 NMAC 8.2

2076.

III. Public Comment Procedures

OSM is reopening the comment period on the proposed New Mexico

program amendments to provide the public an opportunity to reconsider

the adequacy of the proposed amendments in light of the additional

materials submitted. In accordance with the provisions of 30 CFR

732.17(h), we are requesting comments on whether the amendments satisfy

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

approve the amendments, they will become part of the New Mexico

program.

We will make comments, including names and addresses of

respondents, available for public review during normal business hours.

We will not consider anonymous comments. If individual respondents

request confidentiality, we will honor their request to the extent

allowable by law. Individual respondents who wish to withhold their

name or address from public review, except for the city or town, must

state this prominently at the beginning of their comments. We will make

all submissions from organizations or businesses, and from individuals

identifying themselves as representatives or officials of organizations

or businesses, available for public review in their entirety.

Please submit Internet comments as an ASCII file avoiding the use

of special characters and any form of encryption. Please also include

``Attn: SPATS No. NM-037-FOR and/or SPATS No. NM-039-FOR'' and your

name and return address in your Internet message. If you do not receive

a confirmation that we have received your Internet message, contact the

Albuquerque Field Office at (505) 248-5096.

Your written comments should be specific, pertain only to the

issues proposed in this rulemaking, and include explanations in support

of the commenter's recommendations. In the final rulemaking, we will

not necessarily consider or include in the Administrative Record any

comments received after the time indicated under DATES or at locations

other than the Albuquerque Field Office.

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

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

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

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the other

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

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.

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

Intergovernmental relations, Surface mining, Underground mining.

Dated: December 13, 1999.

Brent T. Wahlquist,

Regional Director, Western Regional Coordinating Center.

[FR Doc. 99-33140 Filed 12-21-99; 8:45 am]

BILLING CODE 4310-05-M