[Federal Register Volume 71, Number 230 (Thursday, November 30, 2006)]
[Rules and Regulations]
[Pages 69191-69195]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-9461]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 931

[NM-044-FOR]


New Mexico Regulatory Program

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

[[Page 69192]]


ACTION: Final rule; approval of amendment.

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SUMMARY: The Secretary of the Interior (Secretary) is announcing the 
approval of an 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) and the removal of the 
remaining condition of program approval. New Mexico proposed addition 
of rules and revision of a statute concerning the award of costs and 
expenses, including attorney fees, incurred in connection with the 
administrative and judicial appeals process.
    New Mexico revised its program to be consistent with SMCRA and the 
corresponding Federal regulations.

EFFECTIVE DATE: November 30, 2006.

FOR FURTHER INFORMATION CONTACT: Willis Gainer, Telephone: (505) 248-
5096, e-mail address: <a href="/cdn-cgi/l/email-protection#11667670787f7463517e627c63743f767e67"><span class="__cf_email__" data-cfemail="790e1e1810171c0b39160a140b1c571e160f">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Secretary's Findings
IV. Summary and Disposition of Comments
V. Secretary'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. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary 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. Submission of the Proposed Amendment

    By letter dated November 18, 2005, New Mexico sent us an amendment 
to its program (Administrative Record No. 874) under SMCRA (30 U.S.C. 
1201 et seq.). New Mexico sent the amendment in response to a condition 
of the New Mexico program approval at 30 CFR 931.11(e), concerning the 
award of attorney fees and legal costs.
    We announced receipt of the proposed amendment in the February 13, 
2006, Federal Register (71 FR 7477; Administrative Record No. NM-882). 
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. We did not hold a public hearing or meeting because no one 
requested one. The public comment period ended on March 15, 2006. We 
received one agency comment from the State Historic Preservation 
Officer and one public comment from the Zuni Tribe.

III. Secretary's Findings

    Following is the finding the Secretary made concerning the 
amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 
732.17. The Secretary is approving the amendment as described below.

New Mexico Surface Mining Act (NMSA), Section 69-25A-29.F, and New 
Mexico Annotated Code (NMAC), Section 19.8.12.1204, Award of Legal 
Costs and Expenses

    The Secretary required, as a condition of program approval 
(codified at 30 CFR 931.11(e)), that New Mexico implement regulations 
containing provisions which are the same as or similar to those in 43 
CFR 4.1290-4.1296, relating to the award of costs, including attorney 
fees, in administrative proceedings, or otherwise amend its program to 
accomplish the same result.
    OSM's current standard for approval of State program provisions 
concerning assessment of costs in administrative proceedings is that 
the State statutory and regulatory provisions must be in accordance 
with section 525(e) of SMCRA and consistent with 43 CFR Part 4. ``Same 
or similar'' is OSM's standard for approval of State program 
counterparts to the Federal provisions in section 518 of SMCRA 
concerning penalties, and section 521 of SMCRA concerning enforcement.
    In response to the condition at 30 CFR 931.11(e), New Mexico 
proposes to (1) revise its statutory provision at NMSA, section 69-25A-
29.F, concerning administrative review and the assessment of costs and 
expenses, including attorney fees, for a person's participation in 
administrative proceedings, including judicial review of agency 
actions, and (2) add newly-created rules at NMAC, section 19.8.12.1204, 
which contain provisions allowing for the award of appropriate costs 
and expenses, including attorney fees, reasonably incurred as a result 
of participation in an administrative review.

NMSA, Section 69-25A-29.F

    New Mexico proposes to revise NMSA, section 69-25A-29.F, concerning 
administrative review and the assessment of costs and expenses, 
including attorney fees, for a person's participation in administrative 
proceedings, including judicial review of agency actions, by deleting 
the provision stating that no such assessment shall be imposed upon the 
Director of the New Mexico program. With this revision, the Director of 
the New Mexico program has authority to determine whether expenses 
(that have been reasonably incurred for or in connection with 
participation in administrative proceedings, including any judicial 
review of agency actions) may be assessed against any party which would 
now include the Director.
    Section 525(e) of SMCRA allows for an award of a sum equal to the 
aggregate amount of all costs, expenses, and attorney fees determined 
by the Secretary of the Interior to have been reasonably incurred by a 
person for or in connection with his participation in administrative 
proceedings, including any judicial review of agency actions.

NMAC, Section 19.8.12.1204

    New Mexico proposes addition of rules at NMAC, sections 
19.8.12.1204A-G, which establish procedures, timeframes and standards 
for petitions for award of legal costs and expenses. New Mexico's 
proposed rules are intended to be consistent with the corresponding 
Federal regulations at 43 CFR 4.1290-4.1296, thereby satisfying the 
condition of State program approval at 30 CFR 931.11(e). With the 
exceptions discussed below, New Mexico's proposed revisions are 
substantively the same as the corresponding Federal regulations at 43 
CFR 4.1290-4.1296.

No State Counterpart to 43 CFR 4.1294(a)(2)

    New Mexico does not propose a counterpart regulation to 43 CFR 
4.1294(a)(2) concerning the award of costs and expenses for alleged 
discriminatory acts. The regulations pertaining to the reporting and 
handling of such acts are found at 30 CFR Part 830 (now Part 865). 
These regulations were promulgated pursuant to section 703 of the Act. 
Because the provisions

[[Page 69193]]

for Employee Protection in section 703 of SMCRA are strictly Federal 
requirements, State programs are not required to include counterparts 
to these requirements. Therefore, the lack of a New Mexico program 
counterpart provision to the Federal regulation at 43 CFR 4.1294(a)(2) 
is not inconsistent with the Act.

NMAC, Section 19.8.12.1204E(2), and 43 CFR 4.1294(b), Award of Fees to 
Those Who Prevail in Whole or Significant Part and Achieve at Least 
Some Degree of Success on the Merits

    New Mexico's proposed rule at NMAC, section 19.8.12.1204E(2), 
provides for awards from the Mining and Minerals Division (MMD) to a 
person other than the permittee who initiates or participates in a 
proceeding under the New Mexico program, prevails in whole or in 
significant part and achieves at least some degree of success on the 
merits. The award is contingent upon a finding that the person 
substantially contributed to the issues' full and fair determination, 
except that the contribution of the person who did not initiate the 
proceeding must be separate and distinct from the contribution made by 
the person initiating the proceeding. New Mexico's proposed rule 
differs from the Federal counterpart regulation at 43 CFR 4.1294(b) in 
that it requires that the person prevail in whole or in significant 
part where the Federal rule requires that the person prevail in whole 
or in part without the ``significant'' qualifier. New Mexico's proposed 
rule also distinguishes the contribution to a proceeding made by a 
participating person from the contribution made by an initiating party.
    For the reasons discussion below, we believe that New Mexico's 
qualifying language adds reasonable clarification for administrative 
and judicial reviewers and is, therefore, not inconsistent with the 
Federal regulations.
    In order to establish procedures governing petitions for the award 
of costs and expenses under section 525(e), the Secretary promulgated 
the regulations which appear at 43 CFR 4.1290-4.1296. The original 
regulations were published on August 3, 1978 (43 FR 34376). The 1978 
regulations at 43 CFR 4.1294(b) provided that costs and expenses may be 
awarded from OSM to persons other than the permittee, if the person 
``made a substantial contribution to the full and fair determination of 
the issues.'' They did not contain criteria with regard to the degree 
of success on the merits to be achieved for such awards.
    After the Secretary conditionally approved the New Mexico 
Regulatory program, the 1978 regulations at 43 CFR 4.1294(b) were 
revised (50 FR 47222; November 15, 1985). The revision was prompted by 
the decision of the United States Supreme Court in Ruckelshaus v. 
Sierra Club, 463 U.S. 680 (1983), which held in a statutory context 
similar to section 525(e) of the Act, that an award of costs and 
expenses is conditioned upon a party prevailing in whole or in part in 
the underlying proceeding. In view of the court's decision in 
Ruckelshaus, the Secretary revised paragraph (b) of 30 CFR 4.1294 to 
state explicitly that eligibility to receive an award is ``subject to 
the condition that the person shall have prevailed in whole or in part, 
achieving at least some degree of success on the merits.'' The 1985 
revision retained the requirement that the ``person made a substantial 
contribution to a full and fair determination of the issues.''
    Subsequent court cases have held that plaintiffs may be considered 
``prevailing parties'' for attorney fees purposes if they succeed on 
any significant issue in litigation which achieves some of the benefit 
the parties sought.\1\ The relief cannot be merely declaratory or 
procedural; it must reach the underlying merits of the claim. The level 
of success is relevant to the amount of fees to be awarded.
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    \1\ Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 
U.S. 782, 789 (1989).
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    In the context of the above discussion, the Secretary finds that 
New Mexico's proposed NMAC, section 19.8.12.1204E(2), is consistent 
with and no less effective than the Act and counterpart Federal 
regulation at 43 CFR 4.1294(b).

Removal of Program Condition

    Based on the above discussion, the Secretary (1) finds that New 
Mexico's proposed revision of NMSA, section 69-25A-29.F, and addition 
of NMAC, section 19.8.12.1204, satisfy the requirements of the program 
condition at 30 CFR 931.11(e) and (2) therefore, removes the condition.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record No. NM-876). We received one comment letter.
    By letter dated February 2, 2006 (Administrative Record No. NM-
879), we received comments from the Governor of the Zuni Tribe in Zuni, 
New Mexico. Our response to the Governor's comments regarding New 
Mexico's proposed rule revisions NMAC, section 19.8.12.1204, concerning 
the award of attorney fees, is discussed below.
    The Governor raised concerns about a provision at proposed NMAC, 
section 19.8.12.1204.E(5), that allows attorney fees to be awarded to 
the New Mexico Minerals and Mining Division (MMD) by the Director of 
the New Mexico program. The Director of the New Mexico program is also 
the Director of MMD. The Governor expressed concern that the allowance 
for the agency to collect attorney fees would intimidate parties from 
challenging agency actions.
    The authority for the Director of the New Mexico program to award 
attorney fees to any party, including MMD, has existed in New Mexico's 
statute at NMSA, section 69-25A-29.F, since 1979. New Mexico's proposed 
rules at NMAC, section 19.8.12.1204, are intended to provide 
counterpart provisions to the Federal regulations at 43 CFR 4.1290-
1296, which restrict the right of certain parties, including the agency 
and the permittee, to collect fees from other parties.
    As discussed in the Secretary's finding above, New Mexico's 
proposed rule at NMAC, section 19.8.12.1204.E(5), which allows the 
award of attorney fees to MMD is consistent with New Mexico's existing 
statute at NMSA, section 69-25A-29.F, and with the counterpart Federal 
regulations at 43 CFR 4.1290-1296. Both New Mexico's proposed rule and 
the Federal regulations limit an agency's right to collect attorney 
fees in either an administrative or judicial proceeding to situations 
where the agency can demonstrate that another party participated in the 
proceeding in bad faith and for the purpose of harassing or 
embarrassing the government. Furthermore, as discussed above, without 
the proposed revision at NMAC, section 19.8.12.1204.E(5), the agency 
could apply, under the existing statutory provision for attorney fees, 
on the same basis as other parties.
    For the reasons discussed above, we are not requiring any revision 
of New Mexico's proposed rules in response to these comments.

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-876). We received no comments.

[[Page 69194]]

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 pertains to air or water quality standards. Under 30 CFR 
732.17(h)(11)(i), OSM requested comments on the amendment from EPA 
(Administrative Record No. NM-876). 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 20, 2005, we requested comments on New Mexico's 
amendment (Administrative Record No. NM-876). The SHPO responded on 
February 9, 2006, that it had no comments because the proposed 
amendments do no affect cultural resources (Administrative Record No. 
NM-881). We did not receive a response from the ACHP.

V. Secretary's Decision

    Based on the above findings, we approve New Mexico's November 18, 
2005, proposed amendment, as revised on March 27, 2006.
    We approve New Mexico's proposed statutory revisions as they were 
enacted by New Mexico (effective on June 17, 2005) and rule revisions 
as they were promulgated by New Mexico (effective on April 28, 2006).
    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 demonstrate 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 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 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. 4321).

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. 
3501 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), of the Small 
Business

[[Page 69195]]

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.
    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: November 9, 2006.
C. Stephen Allred,
Assistant Secretary, Land and Minerals Management.

0
For the reasons set out in the preamble, 30 CFR part 931 is amended as 
set forth below:

PART 931--NEW MEXICO

0
1. The authority citation for part 931 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


Sec.  931.11 [Amended]  

0
2. Section 931.11 is amended by removing and reserving paragraph (e).

0
3. Section 931.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec.  931.15 Approval of New Mexico regulatory program amendments  

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
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                              * * * * * * *
November 18, 2005.............  November 30, 2006  NMSA, sections 69-25A-
                                                    29.F, concerning
                                                    award of legal costs
                                                    and expenses; and
                                                    NMAC, sections
                                                    19.8.12.1204.A
                                                    through G,
                                                    concerning award of
                                                    legal costs and
                                                    expenses, including
                                                    attorney fees.
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[FR Doc. 06-9461 Filed 11-29-06; 8:45 am]
BILLING CODE 4310-05-M


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