[Federal Register Volume 67, Number 135 (Monday, July 15, 2002)]
[Rules and Regulations]
[Pages 46377-46385]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-17651]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[NM-042-FOR]


New Mexico Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the New Mexico 
regulatory program (the ``New Mexico program'') under the Surface 
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New 
Mexico proposed revisions to and additions of rules about definitions, 
general environmental resource information, operations that may have an 
adverse impact on publicly owned parks or places listed on the National 
Register of Historic Places, bond release applications, termination of 
jurisdiction, prime farmland reclamation, inspection frequency of 
abandoned sites, hearings for charges of violation, the qualifying 
criteria for assistance under the small operator's program, areas where 
mining is prohibited or limited, criteria for designating areas 
unsuitable for surface coal mining, applications for and approval of 
coal exploration operations of more than 250 tons, criteria for permit 
approval or denial, application and approval criteria for demonstrating 
valid existing rights, the one square mile criterion in the definition 
of intermittent streams, and miscellaneous non-substantive editorial 
revisions. New Mexico revised its program to be consistent with the 
corresponding Federal regulations, provide additional safeguards, and 
clarify ambiguities.

EFFECTIVE DATE: July 15, 2002.

FOR FURTHER INFORMATION CONTACT: Willis L. Gainer, Telephone: (505) 
248-5096, Internet address: wgainer@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the New Mexico Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act* * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C.

[[Page 46378]]

1253(a)(1) and (7). On the basis of these criteria, the Secretary of 
the Interior conditionally approved the New Mexico program on December 
31, 1980. You can find background information on the New Mexico 
program, including the Secretary's findings, the disposition of 
comments, and conditions of approval in the December 31, 1980, Federal 
Register (45 FR 86459). You can also find later actions concerning New 
Mexico's program and program amendments at 30 CFR 931.11, 931.15, 
931.16, and 931.30.

II. Submission of the Proposed Amendment

    By letter dated November 28, 2001, New Mexico sent us an amendment 
to its program (Administrative Record No. NM-853) under SMCRA (30 
U.S.C. 1201 et seq.). New Mexico sent the amendment in response to June 
19, 1997, and April 2, 2001 letters (Administrative Record Nos. NM-796 
and NM-851) that we sent to New Mexico in accordance with 30 CFR 
732.17(c); in response to the required program amendments at 30 CFR 
931.16(e), (u) and (v); and to include the changes made at its own 
initiative.
    We announced receipt of the proposed amendment in the January 9, 
2002, Federal Register (67 FR 1173). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
No. NM-857). We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on February 8, 2002. We 
received comments from two Federal agencies.

III. OSM's Findings

    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment.

A. Minor Revisions to New Mexico's Rules

    New Mexico proposed minor wording, editorial, punctuation and/or 
grammatical changes to the following previously-approved rules.
    19.8.1 through 19.8.34  New Mexico Annotated Code (NMAC) (no 
corresponding Federal regulation or SMCRA provision), administrative 
code citations;
    19.8.8.802.A NMAC (30 CFR 780.21(c)), general requirements for 
description of hydrology and geology;
    19.8.13.1307 NMAC (30 CFR 774.17(b)(3)), requirement to obtain a 
bond;
    19.8.19.1900.A, C and C(2) NMAC (30 CFR 772.11(a), 772.12, and 
772.13(a)); requirements concerning coal exploration; and
    19.8.20.2009.E and E(5) NMAC (30 CFR 780.21(c)), general 
requirements for the hydrologic balance.
    Because these changes are minor, we find that they will not make 
New Mexico's rules less effective than the corresponding Federal 
regulations.

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

    New Mexico proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations.
    19.8.1.7.O(5) NMAC (30 CFR 701.5), definition of ``other treatment 
facilities;''
    19.8.1.7.P(12) NMAC (30 CFR 701.5), definition of ``previously 
mined area;''
    19.8.1.7.Q(1) NMAC (30 CFR 701.5), definition of ``qualified 
laboratory;''
    19.8.2.201 NMAC (30 CFR 761.11), areas where surface coal mining 
operations are prohibited;
    19.8.2.202.A and B(1), (2) and (3), and (C) NMAC (30 CFR 761.17(a) 
and (b)(1), (2) and (3), and (C)), regulatory authority obligations at 
the time of permit application review;
    19.8.2.202.E NMAC (30 CFR 761.15), procedures for waiving the 
prohibition on surface coal mining operations within the buffer zone of 
an occupied dwelling;
    19.8.2.202.F NMAC (30 CFR 761.17(b)(4) and (d)(1) through (3)), 
procedures for joint approval of surface coal mining operations that 
will adversely affect publicly owned parks or historic places;
    19.8.2.202.G NMAC (30 CFR 761.13(c)), procedures for compatibility 
findings concerning surface coal mining operations on Federal lands in 
national forests;
    19.8.2.202.H and 19.8.3.300.C NMAC (30 CFR 762.14), applicability 
of petitions for lands designated unsuitable for mining to areas where 
surface coal mining operations are prohibited or limited;
    19.8.2.203 NMAC (30 CFR 761.12), exceptions to rules concerning 
areas where surface coal mining operations are prohibited;
    19.8.6.602.A and 603 NAMC (30 CFR 772.12), permit requirements for 
exploration;
    19.8.7.704.C NMAC (30 CFR 778.16), proposed permit area location 
with respect to areas designated unsuitable for mining;
    19.8.8.801.B NMAC (30 CFR 779.12), general environmental resources 
information for cultural and historic resources;
    19.8.9.912.A and B NMAC (30 CFR 780.31), protection of public parks 
and historic places;
    19.8.11.1106.D NMAC (30 CFR 773.15), criteria for permit approval 
or denial;
    19.8.14.1412.A NMAC (30 CFR 800.40(a)(3)), bond release application 
requirements;
    19.8.14.1415.A NMAC (30 CFR 700.11(d)), termination of 
jurisdiction;
    19.8.20.2057.A and 19.8.20.2058.A NMAC (30 CFR 816.104(a), 
816.105(a), 817.104(a), and 817.105(a)), definitions of ``thin 
overburden'' and ``thick overburden;'
    19.8.24.2400.C NMAC (30 CFR 785.17(e)(5)), prime farmland 
performance standard;
    19.8.29.2900.G NMAC (30 CFR 840.11(g)), definition of ``abandoned 
site;''
    19.8.31.3107.A NMAC (30 CFR 845.19(a)), request for an 
administrative review hearing concerning assessed civil penalties; and
    19.8.32.3200.B, 19.8.32.3203.A and B(1) through (6), and 
19.8.32.3206.A NMAC (30 CFR 795.6(a)(2)(i) and (ii), 795.9(a) and 
(b)(1) through (6), and 795.12(a), (a)(2) and (a)(3)), eligibility for 
the small operator assistance program (SOAP), SOAP services and data 
requirements, and SOAP applicant liability.
    19.8.35.7.A, B, C, and D NMAC (30 CFR 761.5 and 761.5(a), (b) and 
(c)), definition of ``valid existing rights'' (VER); and
    19.8.35.8.A and B NMAC; 19.8.35.9.A, B, C, and D NMAC; 19.8.35.10A, 
B, C, and D NMAC; 19.8.35.11.A, B, and C NMAC; 19.8.35.12.A, B, C, D, 
and E NMAC; 19.8.35.13 NMAC; and 19.8.35.14 NMAC (30 CFR 761.16(a), 
(b), (c), (d), (e), (f), and (g)), submission and processing of 
requests for VER.
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

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

1. 19.8.1.7.F(5) and N(2) NMAC, Definitions of ``Fixed Assets'' and 
``Net Worth.''
    At 19.8.1.7.F(5) and N(2) NMAC, New Mexico proposed to revise the 
definitions of, respectively, (1) ``fixed assets'' to mean plants, 
facilities and equipment, not used for the production, transportation 
or processing of coal, and

[[Page 46379]]

does not include land or coal in place and (2) ``net worth'' to mean 
the total assets minus total liabilities and is equivalent to owner's 
equity, and, for the purposes of 19.8.14.1410.A(3)(b) NMAC, plants, 
facilities and equipment used for the production, transportation or 
processing of coal, and land or coal in place shall not be considered 
assets in a calculation of net worth.
    At 30 CFR 800.23(a) and (b), the counterpart Federal regulations 
define, respectively, (1) ``fixed assets'' to mean plants and equipment 
but does not include land or coal in place and (2) ``net worth'' to 
mean total assets minus total liabilities and is equivalent to owner's 
equity.
    New Mexico's proposed definition of ``fixed assets'' requires an 
applicant for self-bonding to reduce the value of its fixed assets by 
eliminating plants, facilities and equipment used for the production, 
transportation or processing of coal from the calculation of fixed 
assets. Similarly, New Mexico's proposed definition of ``net worth'' 
requires an applicant, that bases its qualification for self-bonding on 
the financial tests at 19.8.14.1410.A (3)(b) NMAC, to remove the value 
of assets such as plants, facilities and equipment used for the 
production, transportation or processing of coal from its calculation 
of net worth. These provisions are not included in the counterpart 
Federal definitions.
    Self-bonds are not based upon the permittee's assignment or pledge 
of assets. Therefore, a regulatory authority relies on the financial 
tests to indicate whether the liquidity and solvency levels of a self-
bonding applicant are sufficient for the applicant to perform its 
reclamation obligations without separate surety. Plants, facilities and 
equipment used for coal mining are likely to be more temporary in 
nature and likely to be removed or demolished following mining as part 
of the approved reclamation plan. New Mexico's proposed revisions of 
the definitions of ``fixed assets'' and ``net worth'' require a self-
bonding applicant to rely on the value of more permanent assets not 
related to its mining operation.
    With these proposed revisions, New Mexico has proposed to provide 
additional protection from the risk of forfeiture of a self-bond than 
is afforded in the Federal regulations. In its preamble to the final 
self-bonding regulations (48 FR 36418, August 10, 1983), OSM indicated 
that some balance sheet items were defined by using standard accounting 
definitions; others were altered to provide more protection and less 
risk to the regulatory authority. OSM further stated that in its 
definition of fixed assets--

    Unimproved land will not be allowed in the fixed assets 
calculations because values are often unreliable. Coal in place is 
not easily liquidated and its value depends on mining and market 
conditions; therefore, it is not included.

    New Mexico's proposal to eliminate assets used for coal mining is 
consistent with the Federal regulations at 30 CFR 800.23(a) concerning 
self-bonding that eliminate the use of assets whose values are 
unreliable and not easily liquidated.
    Therefore, the Director finds that New Mexico's proposed 
definitions at 19.8.1.7.F(5) and N(2) NMAC are no less stringent than 
SMCRA and no less effective than the counterpart Federal regulations at 
30 CFR 800.23(a) and approves them.
2. 19.8.1.7.I(7) NMAC, Definition of ``Intermittent Stream,'' New 
Mexico's Response to Required Amendments at 30 CFR 931.16(e), (u) and 
(v).
    New Mexico's existing rule at 19.8.1.7.I(7) NMAC defines 
``intermittent stream'' to mean ``a stream or reach of stream that is 
below the local water table for at least some part of the year, and 
obtains its flow from both surface runoff and ground water discharge.''
    OSM, at 30 CFR 701.5, defines ``intermittent stream'' to mean (a) a 
stream or reach of stream that drains a watershed of at least one 
square mile, or (b) a stream or reach of stream that is below the local 
water table for at least some part of the year, and obtains its flow 
from both surface runoff and ground water discharge.
    OSM required at 30 CFR 931.16(e), (u) and (v) that New Mexico 
revise its definition of ``intermittent stream,'' at 19.8.1.7.I(7) 
NMAC, to include any watershed that drains more than one square mile or 
otherwise revise its rules, concerning streams that drain watersheds 
one square mile or greater in area and that flow only in direct 
response to surface runoff from precipitation or melting snow or ice, 
to be no less effective than the Federal regulations concerning permit 
application requirements and performance standards involving 
diversions, roads and stream protection. (See findings nos. 7(a), 
20(d), and 21; 58 FR 65907, December 17, 1993; Administrative Record 
No. NM-706.)
    New Mexico responded by explaining why, based on regional 
conditions and historical experience, it would be inappropriate to 
include any watershed draining one-square mile in its definition of 
``intermittent stream'' and why the existing New Mexico program 
provides protection for roads and streams involving watersheds one 
square mile or greater in area that flow only in direct response to 
surface runoff from precipitation or melting snow or ice that is no 
less effective than the Federal program. New Mexico pointed out that 
the inclusion of the one square mile watershed criteria in its 
definition of ``intermittent stream'' would, in effect, cause thousands 
of normally dry ephemeral arroyos in New Mexico to arbitrarily be 
classified as intermittent streams. Furthermore, New Mexico stated--

    [t]here has been no historic or scientific justification in the 
last twenty years of New Mexico's regulatory program to impose the 
higher standards of protection associated with the higher flows of 
truly intermittent and perennial streams to the normally dry arroyos 
of New Mexico.

OSM adopted its definition of ``intermittent stream'' along with 
definitions of perennial and ephemeral streams in the original 1979 
permanent program regulations (44 FR 14932, March 13, 1979). OSM stated 
these terms were adopted to distinguish continuously or nearly 
continuously flowing streams from ephemeral streams, because different 
regulatory controls were needed to protect these two categories. A one-
mile watershed concept in part (a) of the Federal definition of 
``intermittent stream'' was adopted because at least two states 
(Alabama, Illinois) found it easy to administer and apply. OSM also 
stated that, even for arid regions, a stream draining that much land 
has the potential for flood volumes that would necessitate application 
of more stringent stream channel diversion criteria (i.e., those 
applicable to intermittent streams rather than ephemeral streams). The 
term ``intermittent stream'' comes into play in the Federal regulations 
governing diversions at 30 CFR 816.43, stream buffer zones at 30 CFR 
816.57 and roads at 30 CFR 816.150 and 151.
    Under the Federal regulations at 30 CFR 816.43, concerning 
diversions, intermittent streams may be diverted but must comply with 
findings for stream buffer zones and the diverted channel must be 
designed and certified by a professional engineer for a 10-year, 6-hour 
storm event for temporary and 100-year, 6-hour storm events for 
permanent diversions. In the Federal regulations, diversions of 
ephemeral streams must be designed for 2-year, 6-hour storms for 
temporary and 10-year, 6-hour storms for permanent diversions.
    Under the Federal regulations at 30 CFR 816.57, concerning stream 
buffer zones, no land within 100 feet of an intermittent stream shall 
be disturbed

[[Page 46380]]

unless the regulatory authority specifically authorizes surface mining 
activities closer to or through such a stream. The regulatory authority 
may authorize such activities only after finding that surface mining 
activities will not cause or contribute to the violation of applicable 
water quality standards, and will not adversely affect the water 
quantity and quality or other environmental resources of the stream. 
The stream buffer limitations do not apply to ephemeral streams.
    Under the Federal regulations at 30 CFR 816.150(a), concerning all 
roads, no part of any road shall be located in the channel of an 
intermittent stream unless specific approval is granted by the 
regulatory authority in accordance with 30 CFR 816.41 through 30 CFR 
816.43 and 30 CFR 816.57. Under the Federal regulations at 30 CFR 
816.151, concerning primary roads, fords of intermittent streams are 
prohibited unless specifically approved by the regulatory authority as 
temporary routes during periods of road construction. These limitations 
on roads do not apply to ephemeral streams.
    New Mexico specifically addressed these regulatory ramifications 
concerning ephemeral streams draining areas greater than one square 
mile with the following discussion in support of the effectiveness of 
its existing program:

    Performance Standards Regarding Diversion Designs. The [New 
Mexico] regulations for diversions of ephemeral streams already 
require that the diversions be designed, constructed and maintained 
to minimize adverse impacts to the hydrologic balance within the 
permit and adjacent areas and prevent material damage outside the 
permit area and to assure the safety of the public.
    Temporary clear water diversions of ephemeral streams must be 
designed to safely pass the peak runoff from a 2-year, 24-hour event 
and temporary diversions of any disturbed area or permanent 
diversions the 10-year, 24-hour event. These design standards take 
into account the exact watershed in question as well as the 
predicted rainfall amounts and intensity of the area. Therefore, a 
site specific calculation must be done for ephemeral stream channel 
diversion that would take into account the possibility of ``flash 
flooding''.
    Diversions of ephemeral streams must also be designed, 
constructed, and maintained in a manner which prevents additional 
contributions of suspended solids to stream flow and to run-off 
outside the permit area, to the extent possible using the best 
technology currently available.
    Therefore, diversion designs of ephemeral streams must already 
use site-specific designs which take into account the local 
watershed and rainfall conditions; use the best technology currently 
available; protect against material damage both on and off-site; 
and, minimize impact to the hydrologic balance.
    The higher standards imposed on diversions of intermittent and 
perennial streams are to provide a greater degree of safety and 
environmental protection for the higher flows associated with those 
types of streams. There has been no historical or scientific 
justification to impose these higher standards on normally dry, 
ephemeral arroyos in New Mexico.
    Performance Standards Regarding Road Crossings. Because of the 
nature of ephemeral steams (dry arroyos) in New Mexico, the 
protection of stream habitat in arroyos is not an issue. Therefore, 
the disallowance of stream fords of arroyos with a watershed of more 
than one square mile is not appropriate.
    Performance Standards Regarding Stream Buffer Zones. Again, the 
higher standards imposed on mining disturbances within 100' of a 
perennial or intermittent stream are to provide a greater degree of 
protection for the higher flows, moisture and stream habitat 
associated with intermittent and perennial streams. Imposing this 
same standard to normally dry, ephemeral arroyos is not necessary or 
appropriate in New Mexico.

    New Mexico noted that the existing New Mexico program requires that 
all structures (e.g., diversions and low water crossings) treating 
disturbed area (emphasis added) runoff must be designed, at a minimum, 
to safely pass the 10-year, 24-hour storm event. This requirement does 
not exist in the Federal program, and is more stringent than the 
Federal regulations with respect to temporary diversions of ephemeral 
streams, which require that temporary structures be designed to safely 
pass the 2-year, 6-hour storm event. In New Mexico, only temporary 
clear water diversions of ephemeral drainages would be designed using 
the minimum 2-year, 24-hour storm event.
    In addition, New Mexico stressed that the existing implementation 
of its design rules for all structures errs on the conservative side 
because the analysis of a watershed (1) includes high curve runoff 
numbers based on soil types and a lack of vegetation and (2) assumes 
that rain falls evenly over the entire watershed. It is the nature of 
storm events in New Mexico that rain is highly localized and rarely if 
ever falls over an entire watershed. These aspects of watershed 
analysis in New Mexico result in structures designed to handle more 
water than would be anticipated to actually ever result from a design 
storm event. Therefore, should a flash flood occur in one part of the 
watershed, New Mexico asserts that the diversion or road crossing 
designed for ephemeral streams draining larger than one square mile 
will include the capacity to handle the more localized event.
    New Mexico provided examples of approved diversions and road 
crossings designed under the existing rules for ephemeral streams 
draining areas larger than one square mile. These examples are from 
three of the five active mining operations in New Mexico. Because of 
topographic conditions in New Mexico where the other two approved 
mining operations exist, there are no ephemeral streams draining a 
watershed that is greater than one square mile. Three of these five 
examples have been in place for 15, 16, and 22 years; the other two 
have been in place 2 and 3 years. These structures involve ephemeral 
drainages with watersheds ranging in area from 2.3 to 121.7 square 
miles.
    Specifically, New Mexico approved: (1) In 2000, a low water road 
crossing for an ephemeral stream that drains a watershed of 121.7 
square miles; (2) in 1999, a temporary diversion for a ephemeral stream 
that drains a watershed of 2.3 square miles; (3) in 1987, a diversion 
for an ephemeral stream that drains a watershed of 16 square miles; (4) 
in 1986, a diversion for an ephemeral stream that drains a watershed of 
7.2 square miles; and (5) in 1980, a diversion for an ephemeral stream 
that drains a watershed of 121.7 square miles. In the history of these 
examples, New Mexico has never observed problems in the field. New 
Mexico offered these examples as evidence that its exiting program 
provides for adequate protection for structures involving ephemeral 
streams that drain more than one square mile and flow only in direct 
response to surface runoff from precipitation or melting snow or ice.
    Based on the above discussion, OSM finds that New Mexico has 
addressed all programmatic ramifications concerning the protection of 
ephemeral streams draining areas greater than one square mile, and, in 
doing so, has demonstrated, through rationale and field examples, that 
its existing program rules are no less effective than the Federal 
program in providing for protection of ephemeral streams draining an 
area of more than one square mile. Therefore, the Director no longer 
requires revision of New Mexico's definition of ``intermittent stream'' 
at 19.8.1.7.I(7) NMAC to include streams draining an area greater than 
one square mile and is removing the required amendments at 30 CFR 
931.16(e), (u) and (v).

[[Page 46381]]

3. 19.8.2.202.D NMAC, Procedures for Relocating or Closing a Public 
Road or Waiving the Prohibition on Surface Coal Mining Operations 
Within the Buffer Zone of a Public Road.
    Both New Mexico's proposed rules at 19.8.2.202.D NMAC and the 
counterpart Federal regulations at 30 CFR 716.14 require that an 
applicant must obtain any necessary approvals from the authority with 
jurisdiction over the road if the applicant proposes to: (1) Relocate a 
public road, (2) close a public road, or (3) conduct surface coal 
mining operations within 100 feet, measured horizontally, of the 
outside right-of-way line of a public road.
    The Federal regulation at 30 CFR 761.14(c) requires that, before 
approving one of the above exceptions to the prohibitions placed on 
mining near public roads, the regulatory authority, or the public road 
authority that it designates, must determine that the interests of the 
public and affected landowners will be protected. The Federal 
regulations state that before making this determination, the authority 
must: (1) Provide a public comment period and opportunity to request a 
public hearing in the locality of the proposed operation; (2) if a 
public hearing is requested, publish appropriate advance notice at 
least two weeks before the hearing in a newspaper of general 
circulation in the affected locality; and (3) based upon information 
received from the public, make a written finding as to whether the 
interests of the public and affected landowners will be protected. If a 
hearing was held, the authority must make this finding within 30 days 
after the hearing.
    New Mexico proposed at 19.8.2.202.D NMAC that, where the proposed 
mining operation is to be conducted within 100 feet measured 
horizontally of the outside right-of-way line of any public road 
(except where mine access roads or haulage roads join such right-of-way 
line) or where the applicant proposes to relocate or close any public 
road, the Director (of the New Mexico program) shall: (1) Require the 
applicant to obtain necessary approvals of the authority with 
jurisdiction over the public road; (2) provide notice in a newspaper of 
general circulation in the affected locale of a public hearing at least 
2 weeks before the hearing; (3) hold a public hearing in the locality 
of the proposed mining operations where any member of the public may 
participate for the purpose of determining whether the interests of the 
public and affected landowners will be protected; and (4) make a 
written finding based upon information received at the public hearing 
within 30 days after completion of the hearing as to whether the 
interests of the public and affected landowners will be protected from 
the proposed mining operations.
    New Mexico's rules are the same as the Federal regulations with one 
exception. New Mexico, instead of requiring a public comment period 
during which a hearing may be requested, has elected to always require 
a public hearing as a means of determining whether the interests of the 
public and affected landowners will be protected. The counterpart 
Federal regulations only require a public hearing if requested during a 
public comment period. New Mexico, in always providing for a public 
hearing, has afforded a greater opportunity for public input than do 
the Federal regulations.
    The Director finds that New Mexico's proposed rules at 19.8.2.202.D 
NMAC are consistent with and no less effective than the Federal 
regulations at 30 CFR 716.14 and approves them.
4. 19.8.29.2900.H NMAC, Inspection Frequency at Abandoned Mines
    New Mexico proposed rules at 19.8.29.2900.H NMAC concerning the 
frequency of inspection at abandoned coal mines. With one exception, 
New Mexico's proposed rules are identical to the counterpart Federal 
regulations at 30 CFR 840.11(h).
    New Mexico's proposed 19.8.29.2900.H NMAC provides for a minimum 
inspection frequency of one complete inspection per quarter at 
abandoned sites. The counterpart Federal regulations at 30 CFR 
840.11(h) provide for a minimum inspection frequency of one complete 
inspection per year. New Mexico's proposed rules eliminate the 
requirement for the partial inspections at abandoned sites that are 
required for active coal mine operations, as do the counterpart Federal 
regulations. However, New Mexico's proposed minimum inspection 
frequency of one complete inspection per quarter is greater than and 
more stringent than that provided for in the Federal regulations. A 
greater inspection frequency may result in greater environmental 
protection at the abandoned site in that field conditions would be 
assessed more frequently.
    Therefore, the Director finds that New Mexico's proposed rules at 
19.8.29.2900.H NMAC are no less effective than the Federal regulations 
at 30 CFR 840.11(h) and approves them.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. NM-854), but did not receive any.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the New Mexico program 
(Administrative Record No. NM-854).
    By letter dated December 17, 2001 (Administrative Record No. NM-
855), the Bureau of Land Management (BLM) responded with the following 
comments. BLM requested clarification of New Mexico's proposed rules at 
(1) 19.8.2.201 NMAC, concerning areas where surface coal mining 
operations are prohibited, and (2) 19.8.24.2400.C NMAC, concerning 
prime farmland.
    Areas where surface coal mining operations are prohibited. New 
Mexico's proposed rule at 19.8.2.201 NMAC is substantively identical to 
the Federal regulation at 30 CFR 761.11. Both identify specific 
locations where surface coal mining operations are prohibited, subject 
to valid existing rights (VER), with possible exceptions. Features 
protected include public and National Parks, wildlife refuges, public 
roads, occupied dwellings, schools, churches and cemeteries.
    BLM asked whether mining would be prohibited or allowed on the 
areas in question if a cultural feature were created after the coal 
lease was issued, or after the operation began on the lease or logical 
mining unit.
    When a mining operation began is directly relevant to whether 
resource protection under 30 CFR 761.11 and 19.8.2.201 NMAC is 
exempted. Whether the coal lease was issued may be relevant to a 
determination of VER. Below is an explanation of the proposed New 
Mexico rules that would determine when mining would be prohibited.
    OSM's Federal regulations at 30 CFR 761.12 and New Mexico's 
proposed rules at 19.8.2.203 NMAC exempt the prohibitions of 30 CFR 
761.11 and 19.8.2.201 NMAC (1) concerning surface coal mining 
operations with a valid permit that existed when the land came under 
the protection of 30 CFR 761.11 or 19.8.2.201 NMAC and (2) with respect 
to operations existing prior to August 3, 1977, lands upon which 
validly authorized surface coal mining operations existed when the land 
came under the protection of the Federal

[[Page 46382]]

regulations at 30 CFR 761.11 or the New Mexico rules at 19.8.2.201 
NMAC.
    Where these exemptions do not apply, the prohibitions may be waived 
if the applicant can demonstrate VER as defined by New Mexico at 
proposed rules 19.8.35.7.A through D NMAC and in the Federal 
regulations at 30 CFR 761.5(a), (b) and (c).
    OSM's definition of VER (New Mexico's definition is identical to 
OSM's definition) provides for a person claiming VER to demonstrate 
that a legally binding conveyance, lease, deed, contract, or other 
document vests that person, or a predecessor in interest, with the 
right to conduct the type of surface coal mining operations intended. 
This right must exist at the time that the land came under the 
protection of 30 CFR 761.11 or 30 U.S.C. 1272(e). Applicable State 
statutory or case law will govern interpretation of documents relied 
upon to establish property rights, unless Federal law provides 
otherwise. If no applicable State law exists, custom and generally 
accepted usage at the time and place that the documents came into 
existence will govern their interpretation. However, a person claiming 
VER must also demonstrate compliance with one of the following 
standards: (1) All permits and other authorizations required to conduct 
surface coal mining operations must have been obtained, or a good faith 
effort to obtain all necessary permits and authorizations must have 
been made, before the land came under the protection of Sec. 761.11 or 
30 U.S.C. 1272(e). At a minimum, an application must have been 
submitted for any permit required under the Federal regulations or a 
counterpart State program; (2) the land is needed for and immediately 
adjacent to a surface coal mining operation for which all permits and 
other authorizations required to conduct surface coal mining operations 
have been obtained, or a good faith attempt to obtain all permits and 
authorizations has been made, before the land came under the protection 
of 30 CFR 761.11 or 30 U.S.C. 1272(e). To meet this standard, a person 
must demonstrate that prohibiting expansion of the operation onto that 
land would unfairly impact the viability of the operation as originally 
planned before the land came under the protection of 30 CFR 761.11 or 
30 U.S.C. 1272(e). Except for operations in existence before August 3, 
1977, or for which a good faith effort to obtain all necessary permits 
had been made before August 3, 1977, this standard does not apply to 
lands already under the protection of 30 CFR 761.11 or 30 U.S.C. 
1272(e) when the regulatory authority approved the permit for the 
original operation or when the good faith effort to obtain all 
necessary permits for the original operation was made. In evaluating 
whether a person meets this standard, the agency making the 
determination may consider factors such as: (i) The extent to which 
coal supply contracts or other legal and business commitments that 
predate the time that the land came under the protection of 30 CFR 
761.11 or 30 U.S.C. 1272(e) depend upon use of that land for surface 
coal mining operations. (ii) The extent to which plans used to obtain 
financing for the operation before the land came under the protection 
of 30 CFR 761.11 or 30 U.S.C. 1272(e) rely upon use of that land for 
surface coal mining operations. (iii) The extent to which investments 
in the operation before the land came under the protection of 30 CFR 
761.11 or 30 U.S.C. 1272(e) rely upon use of that land for surface coal 
mining operations. (iv) Whether the land lies within the area 
identified on the life-of-mine map submitted under 30 CFR 779.24(c) or 
30 CFR 783.24(c) before the land came under the protection of 30 CFR 
761.11.
    Furthermore, a person who claims VER to use or construct a road 
across the surface of lands protected by 30 CFR 761.11 or 30 U.S.C. 
1272(e) must demonstrate that one or more of the following 
circumstances exist if the road is included within the definition of 
``surface coal mining operations'' in 30 CFR 700.5: (1) The road 
existed when the land upon which it is located came under the 
protection of 30 CFR 761.11 or 30 U.S.C. 1272(e), and the person has a 
legal right to use the road for surface coal mining operations. (2) A 
properly recorded right of way or easement for a road in that location 
existed when the land came under the protection of 30 CFR 761.11 or 30 
U.S.C. 1272(e), and, under the document creating the right of way or 
easement, and under subsequent conveyances, the person has a legal 
right to use or construct a road across the right of way or easement 
for surface coal mining operations. (3) A valid permit for use or 
construction of a road in that location for surface coal mining 
operations existed when the land came under the protection of 30 CFR 
761.11 or 30 U.S.C. 1272(e). (4) VER exist under paragraphs (a) and (b) 
of the definition.
    Because New Mexico's proposed rules at 19.8.2.201 NMAC are 
substantively identical to the Federal regulations at 30 CFR 761.11, 
the Director, as discussed in Finding No. III.B above, is approving 
them. The Director is not requiring that New Mexico take any action in 
response to BLM's comments.
    Prime Farmlands. New Mexico's proposed rule 19.8.24.2400.C NMAC is 
identical to the Federal regulation at 30 CFR 785.17(e)(5) and requires 
that--

the aggregate total prime farmland acreage shall not be decreased 
from that which existed prior to mining. Water bodies, if any, to be 
constructed during mining and reclamation operations must be located 
within the post-reclamation non-prime farmland portions of the 
permit area. The creation of any such water bodies must be approved 
by the regulatory authority and the consent of all affected property 
owners within the permit area must be obtained.

BLM questioned (1) whether the proposed rule meant that soil and growth 
medium (which we construed to be prime farmland soils) would not be 
covered by any planned water body, (2) how far removed must any water 
body be located (i.e., would there be a required zone between the prime 
farmland and the water body or could prime farmland surround a water 
body) and (3) can prime farmland be relocated in the reclamation 
process?
    OSM promulgated the Federal regulation at 30 CFR 785.17(e)(5) on 
October 18, 1988; see the preamble discussion at II.A, 53 FR 40828, 
40829--40835. In this discussion OSM asserted that the relocation of 
prime farmland soils within the permit is authorized. The only 
limitation is that the applicant must demonstrate that there will be no 
decrease in the acreage of prime farmland soils and the productivity 
capacity of reconstructed prime farmland will be maintained. OSM 
clarified that where non-prime farmland areas are found on the permit 
areas, these areas may be subjected to land use changes, including the 
creation of water bodies, provided that the alternative post-mining 
land use requirements of the regulations are met.
    OSM stated that prime farmland soils removed for water bodies must 
be removed, segregated, and stockpiled, but not replaced within the 
impoundment. These soils are to be reconstructed in the same way other 
prime farmland soils are reconstructed within the permit area and with 
the review and concurrence of the Nation Resource Conservation Service 
(NRCS, old Soil Conservation Service). OSM also stated that prime 
farmland soils may not be moved from a pre-mining location to a post-
mining location within a permit area if the pre-mining area would not 
normally be disturbed in order to extract the coal, and, when the 
shifting of the location of prime farmland soils is part of a complete 
mining and reclamation plan, such soil relocation will be kept to a 
minimum, will be reviewed and concurred in by

[[Page 46383]]

the NRCS and must still meet the prime farmland soil reconstruction and 
bond release standards.
    OSM did not discuss the location of the water body with respect to 
prime farmland soils. The plain language of New Mexico's rule and the 
Federal regulation requires that the water body be within the post-
reclamation non-prime farmland portions of the permit area. Therefore, 
it could not be within the post-reclamation prime farmland portions of 
the permit area. The location of the water body with respect to the 
location of the prime farmland soils would be predicated by the 
requirement that the applicant demonstrate that the productivity of the 
prime farmland soils would be maintained. We also note that protection 
of all non-prime farmland topsoil is required and it would not be 
placed beneath a reclaimed water body.
    Because New Mexico's proposed rules at 19.8.24.2400.C NMAC are 
substantively identical to the Federal regulations at 785.17(e)(5), the 
Director, as discussed in Finding No. III.B above, is approving them. 
The Director is not requiring that New Mexico take any action in 
response to BLM's comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that New Mexico proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), 
OSM requested comments on the amendment from EPA (Administrative Record 
No. NM-854). EPA did not respond to our request.

State Historic Preservation Officer (SHPO) and the Advisory Council on 
Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On December 10, 2001, we requested comments on New Mexico's 
amendment (Administrative Record No. NM-854). ACHP did not respond to 
our request.
    The SHPO responded with a letter dated January 10, 2002 
(Administrative Record No. NM-856), with the following comment 
concerning New Mexico's proposed rule at 19.8.9.912.A NMAC.
    New Mexico's proposed 19.8.9.912.A NMAC requires that an applicant 
for a proposed operation that may have an adverse effect on any 
publicly owned parks or any places listed on the National Register of 
Historic Places shall include a plan describing the measures to be used 
to prevent adverse impacts, or designed to minimize adverse impacts 
when valid existing rights exist or joint agency approval is to be 
obtained under 19.8.2.202.E NMAC.
    SHPO recommended that New Mexico's proposed rule at 19.8.9.912.A 
NMAC include a reference to the State Register of Cultural Properties 
to ensure adequate protection to properties listed only on the State 
Register and not listed on the National Register.
    Properties on the State Register of Cultural Properties include 
properties that are listed on the National Register of Historic Places, 
are in the process of being listed on the national register, and would 
likely be eligible for listing on the National Register of Historic 
Places. Properties that would be eligible for listing on the National 
Register of Historic Places would be protected under proposed 
19.8.9.912.B NMAC. New Mexico's rule at 19.8.9.912.B NMAC provides that 
the Director of the New Mexico program may require the applicant to 
protect historic or archeological properties listed on or eligible for 
listing on the National Register of Historic Places through appropriate 
mitigation and treatment measures. Appropriate mitigation and treatment 
measures may be required to be taken after permit issuance provided 
that the required measures are completed before the properties are 
affected by any mining operation.
    Proposed 19.8.9.912.A and B NMAC are identical to the Federal 
regulations at 30 CFR 780.31(a) and (b). The Federal regulations and 
New Mexico's proposed rules do provide for more stringent protection of 
public parks and places listed on the National Register of Historic 
Places. However, applications that may impact cultural and historic 
resources are sent by the Director of the New Mexico program to the 
SHPO for review and comment. New Mexico would take seriously all 
recommendations from the SHPO and would likely, under 19.8.9.912B NMAC, 
require mitigation of any adverse impacts.
    Because OSM cannot require that New Mexico promulgate rules that 
are more stringent than the Federal regulations, the Director, as 
discussed in Finding No. III.B above, is approving New Mexico's 
proposed rules. The Director is not requiring that New Mexico take 
action in response to this comment.

V. OSM's Decision

    Based on the above findings, we approve New Mexico's November 28, 
2001, amendment.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 931, which codify decisions concerning the New Mexico 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart federal regulation.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the federal and state

[[Page 46384]]

governments with regard to the regulation of surface coal mining and 
reclamation operations. One of the purposes of SMCRA is to ``establish 
a nationwide program to protect society and the environment from the 
adverse effects of surface coal mining operations.'' Section 503(a)(1) 
of SMCRA requires that state laws regulating surface coal mining and 
reclamation operations be ``in accordance with'' the requirements of 
SMCRA, and section 503(a)(7) requires that state programs contain rules 
and regulations ``consistent with'' regulations issued by the Secretary 
pursuant to SMCRA.

Executive Order 13211--Regulations That Significantly Affect The 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that 
agency decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

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.).

Regulatory Flexibility Act

    The Department of the Interior certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal, which is the subject of this rule, is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. In making the determination as to whether this rule would 
have a significant economic impact, the Department relied upon the data 
and assumptions for the counterpart Federal regulations.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S. based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that the state submittal 
which is the subject of this rule is based upon counterpart Federal 
regulations for which an analysis was prepared and a determination made 
that the Federal regulation was not considered a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on state, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based upon the fact that the state 
submittal, which is the subject of this rule, is based upon counterpart 
Federal regulations for which an analysis was prepared and a 
determination made that the Federal regulation did not impose an 
unfunded mandate.

List of Subjects in 30 CFR Part 931

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: June 3, 2002.
Brent T. Wahlquist,
Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, 30 CFR 931 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 in the table by adding a new entry in 
chronological order by July 15, 2002, to read as follows:


Sec. 931.15  Approval of New Mexico regulatory program amendments

* * * * *

----------------------------------------------------------------------------------------------------------------
                                            Date of final
       Original submission date              publication                      Citation/description
----------------------------------------------------------------------------------------------------------------
 
*                  *                  *                  *                  *                  *
                                                        *
November 28, 2001....................  July 15, 2002..........  19.8.1.7.F(5); 19.8.1.7N(2); 19.8.1.7.O(5);
                                                                 19.8.1.7.P(12); 19.8.1.7.Q(1); 19.8.2.201;
                                                                 19.8.2.202.A through H; 19.8.2.203;
                                                                 19.8.3.300.C; 19.8.6.602.A and 603;
                                                                 19.8.7.704.C; 19.8.8.801.B; 19.8.8.802.A;
                                                                 19.8.9.912.A and B; 19.8.11.1106.D;
                                                                 19.8.13.1307; 19.8.14.1412.A; 19.8.14.1415.A;
                                                                 19.8.19.1900.A, C and C(2); 19.8.20.2009.E and
                                                                 E(5); 19.8.20.2057.A; 19.8.20.2058.A;
                                                                 19.8.24.2400.C; 19.8.29.2900.G and H;
                                                                 19.8.31.3107.A; 19.8.32.3200.B; 19.8.32.3203.A
                                                                 and B; 19.8.32.3206.A; and 19.8.35.7 through 14
                                                                 NMAC.
----------------------------------------------------------------------------------------------------------------


[[Page 46385]]

Sec. 931.16  [Amended]

    3. Section 931.16 is amended by removing and reserving paragraphs 
(e), (u) and (v).
[FR Doc. 02-17651 Filed 7-12-02; 8:45 am]
BILLING CODE 4310-05-P