E8-359. New Mexico Regulatory Program

AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

Proposed rule; public comment period and opportunity for public hearing on proposed amendment.

SUMMARY:

We are announcing receipt of a proposed amendment to the New Mexico regulatory program (hereinafter, the “New Mexico program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). New Mexico is proposing additions of and revisions to the New Mexico Annotated Code (NMAC) to improve and clarify the public notification process during permitting actions, to correct outdated citations, to comply with formatting requirements for New Mexico administrative law; the revisions also include non-substantive editorial changes. New Mexico revised its program to provide additional safeguards, clarify ambiguities, and achieve stylistic consistency.

This document gives the times and locations that the New Mexico program and proposed amendment to that program are available for your inspection, the comment period during which you may submit written comments on the amendment, and the procedures that we will follow for the public hearing, if one is requested.

DATES:

We will accept written comments on this amendment until 4 p.m., mountain standard time February 11, 2008. If requested, we will hold a public hearing on the amendment on February 5, 2008. We will accept requests to speak until 4 p.m., mountain standard time on January 28, 2008.

ADDRESSES:

You may submit comments by either of the following methods:

• Mail/Hand Delivery/Courier:

Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining, Reclamation, and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone: [phone], Internet address: [e-mail].

• Federal eRulemaking Portal: http://www.regulations.gov. The proposed rule is listed under the agency name “OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT.” The proposed rule has been assigned Docket ID: OSM-2007-0021.

If you would like to submit comments through the Federal eRulemaking Portal, go to www.regulations.gov and do the following. Click on the “Advanced Docket Search” button on the right side of the screen. Type in the Docket ID OSM-2007-0021 and click the “Submit” button at the bottom of the page. The next screen will display the Docket for NM-047-FOR. If you click on OSM-2007-0021, you can view the proposed rule, add comments, and view any comments submitted by other persons.

Docket: You may access the docket for this rulemaking at www.regulations.gov. Search for Docket ID: OSM-2007-0021. At www.regulations.gov, you may review and print a copy of the New Mexico program amendment, a listing of any scheduled public hearings, and all written comments received in response to this document. The information may also be obtained 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 Area Office.

Bob Postle, Branch Chief, Field Operations, Program Support Division, Western Region, Office of Surface Mining Reclamation and Enforcement, 505 Marquette Ave. NM Suite 1200, Albuquerque, NM 87102, Telephone: [phone].

Bill Brancard, Director, Mining and Minerals Division, New Mexico Energy, Minerals, and Natural Resources Department, 1220 South St. Francis Drive, Sante Fe, New Mexico 87505, Telephone: [phone].

FOR FURTHER INFORMATION CONTACT:

Bob Postle, Telephone: [phone], Internet address: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program

II. Description of the Proposed Amendment

III. Public Comment Procedures

IV. 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. 1253(a)(1) and (a)(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 931.10, 931.11, 931.13, 931.15, 931.16, and 931.30.

II. Description of the Proposed Amendment

By letter dated November 28, 2007, New Mexico sent us a proposed amendment to its program (SATS No. NM-047-FOR) under SMCRA (30 U.S.C. 1201 et seq.). New Mexico proposed this amendment at its own initiative. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES.

New Mexico proposes revisions to the New Mexico Annotated Code (NMAC) 19.8. New Mexico proposed the revisions to improve and clarify the public notification process during permitting actions, correct outdated citations, and comply with formatting requirements for New Mexico administrative law; these revisions include many non-substantive editorial changes which are not described below.

Specifically, New Mexico proposes the following substantive revisions:

NMAC 19.8.7.701.F requires the permit application to include the owner of record and residents of dwellings and structures within one-half mile of any part of the proposed permit area (the previous requirement was limited to properties contiguous to any part of the proposed permit area).

NMAC 19.8.8.812.D requires, consistent with the above proposed rule, that all dwellings and structures within one-half mile of the proposed permit area are included on the permit application maps (the previous rule required that only dwellings and structures within 1000 feet be included on the maps).

NMAC 19.8.11.1100.B(1) requires that notice of a permit application or permit revision be provided by at least three of the following methods: mailing a notice to the owners of record within one-half mile of the proposed permit area, posting a notice in four publicly accessible places, publishing a notice in a newspaper, and radio broadcasted public service announcements. If there is a significant non-English speaking population living within the area, a method to reach these people must be used.

NMAC 19.8.11.1100.D(5) requires that written notifications shall be mailed to persons on a list maintained by the Director.

NMAC 19.8.11.1100.E(3) requires that written notifications be posted on a Web site after an application is received.

NMAC 19.8.11.1100.F require that the Director shall hold a public meeting within 60 days of receipt of a completed application for a new permit or a permit revision.

III. Public Comment Procedures

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the New Mexico program.

Written Comments

Send your written or electronic comments to OSM at one of the two addresses given above (see ADDRESSES). Your comments should be specific, pertain only to the issues proposed in this rulemaking, and include explanations in support of your recommendations. We cannot ensure that comments received after the close of the comment period (see DATES) or sent to an address other than the two listed above will be included in the docket for this rulemaking and considered.

Availability of Comments

Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

Public Hearing

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., mountain standard time, on January 28, 2008. If you are disabled and need reasonable accommodation to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT. We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold the hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at a public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

Public Meeting

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT. All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES. We will make a written summary of each meeting a part of the docket for this rulemaking.

IV. Procedural Determinations

Executive Order 12630—Takings

This rule does not have takings implications. This determination is based on the analysis performed for the Federal regulations.

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.

Executive Order 12988—Civil Justice Reform

The Department of the Interior conducted the reviews required by section 3 of Executive Order 12988 and 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 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.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way.

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 on Federal regulations for which an analysis was prepared and certification made that such regulations would not have a significant economic effect on 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 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 analysis prepared for the Federal regulations.

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 on Federal regulations for which an analysis was prepared and a determination made that the Federal regulations did not impose an unfunded mandate.

List of Subjects in 30 CFR Part 931

• Intergovernmental relations
• Surface mining
• Underground mining

Dated: December 7, 2007.

Allen D. Klein,

Regional Director, Western Regional Coordinating Center.