Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26825

(t), and (u) and by adding paragraphs

(w), (x), and (y) to read as follows:

§ 913.16 Required program amendments.

* * * * *

(s)–(u) [Reserved]

* * * * *

(w) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the regulation provisions at 62

IAC 1816.116(a)(2)(F)(i) and

1817.116(a)(2)(f)(i), concerning the

authority to approve augmentative

practices without restarting the period

of extended responsibility for

revegetation success and bond liability

for pasture, hayland, and grazing land,

from Chapter I, Title 62 of the Illinois

Administrative Code.

(x) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the regulations at 62 IAC

1816.116(a)(3)(F) and 1817.116(a)(3)(F),

concerning the revegetation success

standards for non-contiguous areas less

than or equal to four acres that would

not require statistically valid sampling

techniques be used to evaluate success

of revegetation, from Chapter I, Title 62

of the Illinois Administrative Code.

(y) By July 29, 1996, Illinois shall

submit either a proposed amendment or

a description of an amendment to be

proposed, together with a timetable for

adoption of proposed revisions to

remove the provision at 62 IAC

1816.116(a)(4)(A)(ii), concerning

revegetation success for a larger field

being representative of the revegetation

success of a non-contiguous reclaimed

area less than or equal to four acres,

from Chapter I, Title 62 of the Illinois

Administrative Code.

[FR Doc. 96–13267 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 931

[SPATS No. NM–036–FOR]

New Mexico Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement, Interior.

ACTION: Final rule; approval of

amendment with one exception and

additional requirements.

SUMMARY: Office of Surface Mining

Reclamation and Enforcement (OSM) is

approving, with one exception and

additional requirements, a proposed

amendment to the New Mexico

regulatory program (hereinafter referred

to as the ‘‘New Mexico program’’) under

the Surface Mining Control and

Reclamation Act of 1977 (SMCRA). New

Mexico proposed revisions to and/or

additions of rules pertaining to

definitions; procedures for designating

lands unsuitable for coal mining; permit

application requirements concerning

compliance information, the

reclamation plan, and the subsidence

information and control plan;

procedures concerning permit

application review; criteria for permit

approval or denial; procedures

concerning improvidently issued

permits; permit conditions;

requirements concerning ownership and

control information; and performance

standards for coal exploration,

hydrologic balance, permanent and

temporary impoundments, coal

processing waste, disposal of noncoal

waste, protection of fish, wildlife, and

related environmental values,

revegetation success, subsidence

control, and roads. The amendment was

intended to revise the New Mexico

program to be consistent with the

corresponding Federal regulations,

incorporate the additional flexibility

afforded by the revised Federal

regulations, and improve operational

efficiency.

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Guy Padgett, Telephone: (505) 248–

5070.

SUPPLEMENTARY INFORMATION:

I. Background on the New Mexico

Program

On December 31, 1980, the Secretary

of the Interior conditionally approved

the New Mexico program. General

background information on the New

Mexico program, including the

Secretary’s findings, the disposition of

comments, and the conditions of

approval of the New Mexico program

can be found in the December 31, 1980,

Federal Register (45 FR 86459).

Subsequent actions concerning New

Mexico’s program and program

amendments can be found at 30 CFR

931.11, 931.15, 931.16, and 931.30.

II. Proposed Amendment

By letter dated January 22, 1996, New

Mexico submitted a proposed

amendment to its program

(administrative record No. NM–766)

pursuant to SMCRA (30 U.S.C. 1201 et

seq.). New Mexico submitted the

proposed amendment at its own

initiative and in response to the

required program amendments at 30

CFR 931.16 (a), (c), (d), (f) through (p),

and (n)(2) through (s) (55 FR 48841,

November 23, 1990; 56 FR 67520,

December 31, 1991; and 58 FR 65907,

December 17, 1993).

OSM announced receipt of the

proposed amendment in the February 1,

1996, Federal Register (61 FR 3625),

provided an opportunity for a public

hearing or meeting on its substantive

adequacy, and invited public comment

on its adequacy (administrative record

No. NM–767). Because no one requested

a public hearing or meeting, none was

held. The public comment period ended

on March 4, 1996.

During its review of the amendment,

OSM identified concerns relating to the

certain provisions of the proposed

amendment. OSM notified New Mexico

of the concerns on March 13, 1996

(administrative record No. NM–774).

New Mexico responded on March 13,

1996, that it would not submit revisions

to the amendment and that OSM should

proceed with the publishing of this final

rule Federal Register notice

(administrative record No. NM–774).

III. Director’s Findings

As discussed below, the Director, in

accordance with SMCRA and 30 CFR

732.15 and 732.17, finds, with certain

exceptions and additional requirements,

that the proposed program amendment

submitted by New Mexico on January

22, 1996, is no less effective than the

corresponding Federal regulations.

Accordingly, the Director approves,

with one exception, the proposed

amendment and adds additional

requirements.

1. Nonsubstantive Revisions to New

Mexico’s Rules

New Mexico proposed revisions to the

following previously-approved rules

that are nonsubstantive in nature and

consist of minor editorial changes or

recodification (corresponding Federal

regulation provisions are listed in

parentheses):

Coal Surface Mining Commission (CSMC)

Rule 80–1–11–20(d) (30 CFR 773.20(c)),

concerning remedial measures for

improvidently issued permits, to recodify

existing CSMC Rule 80–1–11–20(c) as CSMC

Rule 80–1–11–20(d);

CSMC Rule 80–1–20–41(e)(3)(i) (30 CFR

816.41 (c)(3) and (e)(3) and 817.41 (c)(3) and

(e)(3)), concerning general performance

standard requirements for protection of the

hydrologic balance, to correctly reference

CSMC 80–1–20–41(e)(2)(i); and

CSMC Rule 80–1–20–82(a)(4) (30 CFR

816.71(h) and 817.71(h)), concerning

inspections of coal processing waste banks,

to correctly reference ‘‘Part 9’’ of New

Mexico’s rules.

CSMC Rule 80–1–20–89(d)(2) (30 CFR

816.89(b)), concerning disposal of noncoal
26826 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

wastes, to correctly reference ‘‘Section 3–

109D’’ of the New Mexico Water Quality

Control Commission regulations.

Because the proposed revisions to

these previously-approved rules are

nonsubstantive in nature, the Director

finds that these proposed New Mexico

rules are no less effective than the

Federal regulations. The Director

approves these proposed rules.

2. Substantive Revisions to New

Mexico’s Rules That Are Substantively

Identical to the Corresponding

Provisions of the Federal Regulations

New Mexico proposed revisions to or

additions of the following rules that are

substantive in nature and contain

language that is substantively identical

to the requirements of the

corresponding Federal regulation

provisions (listed in parentheses).

CSMC Rule 80–1–1–5 (30 CFR 773.5),

concerning the definitions of ‘‘Applicant/

violator system or AVS,’’ ‘‘Federal violation

notice,’’ ‘‘Ownership or control link,’’ ‘‘State

violation notice,’’ and Violation notice;’’

CSMC Rule 80–1–1–5 (30 CFR 700.5),

concerning the definition of ‘‘OSM;’’

CSMC Rules 80–1–1–5 (30 CFR 701.5),

concerning the definition of ‘‘Road;’’

CSMC Rules 80–1–11–20(c) (1) and (2) and

(e) (30 CFR 773.20(b)(2) (i) and (ii) and

(c)(2)), concerning general procedures for

improvidently issued permits;

CSMC 80–1–11–24(a) and [deletion of] (c)

(30 CFR 773.21(a)), concerning rescission

procedures for improvidently issued permits;

CSMC Rule 80–1–11–31 (a) through (d) (30

CFR 773.22 (a) through (d)), concerning

verification of ownership or control

application information;

CSMC Rule 80–1–11–32 (a) through (c) (30

CFR 773.23 (a) through (c)), concerning

review of ownership or control and violation

information;

CSMC Rule 80–1–11–33 (a) through (d) (30

CFR 773.24 (a) through (d)), concerning

procedures for challenging ownership or

control links shown in AVS; and

CSMC Rule 80–1–11–34 (a) through (d) (30

CFR 773.25 (a) through (d)), concerning

standards for challenging ownership or

control links and the status of violations.

Because these proposed New Mexico

rules are substantively identical to the

corresponding provisions of the Federal

regulations, the Director finds that they

are no less effective than the Federal

regulations. The Director approves these

proposed rules.

3. CSMC Rule 80–1–1–5, Definition of

‘‘Qualified Laboratory’’

At its own initiative, New Mexico

proposed a definition of ‘‘Qualified

laboratory’’ at CSMC Rule 80–1–1–5 that

is, with one exception, substantively

identical to the Federal definition of

‘‘qualified laboratory’’ at 30 CFR 795.3.

The exception is that New Mexico’s

definitions only provides for laboratory

services related to the determination of

probable hydrolic consequences or

statement of results of test borings or

core samplings under the new Mexico

small operator assistance program

(SOAP), where as the Federal definition

provides for these and other services

specified at 30 CFR 795.9.

New Mexico’s CSMC Rule 80–1–32–9,

which corresponds to 30 CFR 795.9 in

the Federal regulations, has not been

revised to include the additional

services which can be funded under the

Federal SOAP program (59 FR 28168,

May 31, 1994). However, a State’s

implementation of SOAP is not

mandated by SMCRA nor the Federal

regulations and the provisions for SOAP

funding may, to the extent provided for

in the Federal program, be elected by

the State.

Therefore, the Director finds that New

Mexico’s definition of ‘‘Qualified

laboratory’’ at CSMC Rule 80–1–1–5 is

no less effective than the Federal

definition of ‘‘qualified laboratory’’ at 30

CFR 795.3 and approves the proposed

definition of ‘‘Qualified laboratories’’ at

CSMC 80–1–1–5.

4. CSMC Rules 80–1–1–5 and 80–1–7–

14(c) (1) through (5), Ownership and

Control Information Required in Permit

Applications Concerning Violations

OSM required at 30 CFR 931.16(d)

that New Mexico revise CSMC Rule 80–

1–7–14(c) to add the requirement that a

permit application include information

on violations received pursuant to

SMCRA, its implementing regulations,

and to any State or Federal law, rule or

regulation enacted or promulgated

pursuant to SMCRA (finding No. 4, 58

FR 65907, 65909, December 17, 1993).

New Mexico proposed to revise CSMC

Rules 80–1–7–14(c) (1) through (5),

concerning compliance information

required in permit applications, to

include requirements that are, with one

exception, substantively identical to the

Federal regulations at 30 CFR 778.14(c)

(1) through (5).

The exception is that New Mexico

requires information concerning

violations received pursuant to SMCRA.

New Mexico proposed, at CSMC Rule

80–1–1–5, to add a definition of

‘‘SMCRA’’ which means, in addition to

the Federal act, its implementing

regulations at 30 CFR Chapter VII, and

any State or Federal law, rule,

regulation, or program enacted or

promulgated pursuant to the Federal

act.

The corresponding Federal

regulations at 30 CFR 778.14(c) require

information concerning violations

received pursuant to SMCRA, its

implementing regulations, and to any

State or Federal law, rule or regulation

enacted or promulgated pursuant to

SMCRA. As defined by New Mexico, the

use of the term ‘‘SMCRA’’ in proposed

CSMC Rules 80–1–7–14(c) is equivalent

to the use, in the Federal regulations, of

the phrase ‘‘SMCRA, its implementing

regulations, and any State or Federal

law, rule or regulation enacted or

promulgated pursuant to SMCRA.’’

Based upon the above discussion, the

Director finds that proposed CSMC

Rules 80–1–7–14(c) (1) through (5) and

the term ‘‘SMCRA,’’ as proposed at

CSMC Rule 80–1–1–5, (1) are consistent

with and no less effective than the

Federal regulations at 30 CFR Part

778.14(c) (1) through (5), concerning

compliance information required in

permit applications, and (2) satisfy the

required amendment at 30 CFR

931.16(d). The Director approves

proposed CSMC Rules 80–1–7–14(c) (1)

through (5) and the proposed definition

of ‘‘SMCRA’’ at CSMC Rule 80–1–1–5,

and removes the required amendment at

30 CFR 931.16(d).

5. CSMC Rule 80–1–1–5, Definitions of

‘‘Drinking, domestic, or residential

water supply,’’ ‘‘Material damage,’’

‘‘Noncommercial building,’’ ‘‘Occupied

residential dwelling and associated

structures,’’ and ‘‘Replacement of water

supply’’ and CSMC Rules 80–1–20–121,

124, 125, and 127, Performance

Standards Concerning the Subsidence

Information and Control Plan

At 30 CFR 931.16(s), OSM required

that New Mexico revise CSMC Rule 80–

1–20–124 to require that an operator (1)

repair or compensate for subsidencerelated material damage to structures

and facilities, (2) correct, by restoring

the land to the extent technologically

and economically feasible, any material

damage resulting from subsidence

caused to surface lands, (3) require an

operator to either repair or compensate

the owner in full regardless of the extent

of operator liability under State law for

any subsidence-related damage occuring

after October 24, 1992, to occupied

residential dwellings, structures related

thereto, and noncommercial buildings,

and (4) remove the inconsistency with

proposed CSMC Rule 80–1–9–39(c) with

regard to limiting to the extent required

under State law, an operator’s obligation

to remedy subsidence-related material

damage to structures and facilities

(finding No. 19, 58 FR 65907, 65922,

December 17, 1993).

In response to these required

amendments, New Mexico proposed to

delete its existing rules at CSMC Rule

80–1–20–121 and 124 and add rules that

incorporate the definitions and
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26827

performance standards pertaining to the

repair of subsidence-caused damages

that were promulgated on March 31,

1995, in the Federal program at 30 CFR

701.5 and 817.121 (60 FR 16749).

a. CSMC Rule 80–1–1–5, Definitions of

‘‘Drinking, domestic, or residential

water supply,’’ ‘‘Material damage,’’

‘‘Noncommercial building,’’ ‘‘Occupied

residential dwelling and associated

structures,’’ and ‘‘Replacement of water

supply.’’ New Mexico proposed to

revise CSMC Rule 80–1–1–5 by adding

definitions for ‘‘Drinking, domestic, or

residential water supply,’’ ‘‘Material

damage,’’ ‘‘Noncommercial building,’’

‘‘Occupied residential dwelling and

associated structures,’’ and

‘‘Replacement of water supply.’’ These

proposed definitions are substantively

identical, with one exception, to the

counterpart Federal definitions at 30

CFR 701.5.

The exception concerns a reference to

the performance standards pertaining to

repair of subsidence-caused damages in

the proposed definitions of ‘‘Material

damage’’ and ‘‘Occupied residential

dwelling and structures related thereto.’’

The Federal definitions of ‘‘material

damage’’ and ‘‘occupied residential

dwelling and structures related thereto’’

reference the Federal regulations at 30

CFR 780.20 and 817.121. The New

Mexico rules that correspond to the

Federal regulations at 30 CFR 817.121

are proposed CSMC Rules 80–1–9–39

and 80–1–20–121, 124, 125, and 127

(discussed below); however, New

Mexico’s proposed definitions of

‘‘Material damage’’ and ‘‘Occupied

residential dwelling and structures

related thereto’’ reference only New

Mexico’s CSMC Rules 80–1–9–39 and

80–1–20–124.

The Director finds that, with the

exception of the reference to the

performance standards pertaining to

repair or subsidence-caused damages at

CSMC Rule 80–1–20–124 in the

proposed definitions of ‘‘Material

damage’’ and ‘‘Occupied residential

dwelling and structures related thereto,’’

New Mexico’s proposed definitions at

CSMC 80–1–1–5 for ‘‘Drinking,

domestic, or residential water supply,’’

‘‘Material damage,’’ ‘‘Noncommercial

building,’’ ‘‘Occupied residential

dwelling and associated structures,’’

and ‘‘Replacement of water supply’’ are

no less effective than the corresponding

Federal definitions at 30 CFR 701.5. The

Director approves these proposed

definitions at CSMC 80–1–1–5, but is

adding a new requirement that New

Mexico further revise the definitions of

‘‘Material damage’’ and ‘‘Occupied

residential dwelling and associated

structures’’ at CSMC 80–1–1–5 to

include references to CSMC Rules 80–1–

20–121, 125, and 127.

b. CSMC Rules 80–1–20–121, 124,

125, and 127, Performance standards

concerning the subsidence information

and control plan. New Mexico proposed

to add the following performance

standards pertaining to subsidence that

are, with one exception, substantively

identical to the corresponding Federal

regulations (in parentheses):

CSMC Rules 80–1–20–121 (a) through (d)

(30 CFR 817.121(a) (1)–(3) and 817.121(b)),

concerning general requirements for

subsidence control;

CSMC Rules 80–1–20–124 (a) through (d)

(30 CFR 817.121(c)(1), 817.41(j), and 817.121

(c)(2) and (c)(3)), concerning surface owner

protection and restoration, replacement,

repair, or compensation of subsidence-caused

damages;

CSMC Rules 80–1–20–125 (a) through (e)

(30 CFR 817.121 (c)(4)(i) through (c)(4)(v)),

concerning rebuttable presumption of

causation by subsidence; and

CSMC Rule 80–1–20–127 (30 CFR

817.121(c)(5)), concerning the requirement to

adjust the bond amount for subsidence

damage.

The exception concerns New

Mexico’s proposed requirement at

CSMC 80–1–20–127 to adjust the bond

amount when subsidence-related

material damage occurs to land,

structures or facilities protected under

CSMC 80–1–20–124(a) through (d). The

Federal regulation at 30 CFR

817.121(c)(5) requires adjustment of the

bond amount when subsidence-related

material damage to land, structures or

facilities, or when contamination,

diminution, or interruption to a water

supply occurs (emphasis added).

Although New Mexico’s proposed

CSMC 80–1–20–127 includes a

reference to proposed CSMC 80–1–20–

124(b) concerning replacement of water

supplies, because the term ‘‘material

damage’’ is not defined with respect to

water supplies and it is not clear that

the term ‘‘facilities’’ would include a

water supply, New Mexico’s proposed

CSMC 80–1–20–127 does not clearly

require adjustment of the bond amount

when subsidence-related

‘‘contamination, diminution, or

interruption to a water supply’’ occurs.

Based on the above discussion, the

Director finds that, with the exception

of the lack of a clear requirement at

proposed CSMC 80–1–20–127 for

adjustment of the bond amount when

subsidence-related ‘‘contamination,

diminution, or interruption to a water

supply’’ occurs, proposed CSMC Rules

80–1–20–121, 124, 125, and 127 are no

less effective than the corresponding

Federal regulations at 30 CFR 817.121

(a) through (c) and satisfy the required

amendment at 30 CFR 931.16(a). The

Director approves proposed CSMC

Rules 80–1–20–121, 124, 125, and 127

and removes the required amendment at

30 CFR 931.16(s). However, the Director

is adding a new requirement that New

Mexico further revise proposed CSMC

Rules 80–1–20–127 to clearly require

adjustment of the bond amount when

subsidence-related ‘‘contamination,

diminution, or interruption to a water

supply’’ occurs.

6. CSMC Rules 80–1–4–15(b)(1),

Procedures for Initial Processing,

Record-Keeping, and Notification

Requirements Concerning Petitions to

Designate Lands Unsuitable for Mining

OSM required at 30 CFR 931.16(c)

that New Mexico revise CSMC Rule 80–

1–4–15(b)(1) to require publication in

the New Mexico State register of a

public notice of receipt of a petition to

designate lands unsuitable for mining

(finding No. 4, 56 FR 67520, 67522,

December 31, 1991).

New Mexico proposed to revise CSMC

Rule 80–1–4–15(b)(1) by adding the

requirement that the regulatory

authority notify the general public of the

receipt of such a petition in the New

Mexico register of public notices. This

proposed requirement is substantively

identical to the requirement in the

Federal regulation at 30 CFR

764.15(b)(1) and satisfies the

requirement that New Mexico amend its

program at 30 CFR 931.16(c).

Therefore, the Director finds that

proposed CSMC Rule 80–1–4–15(b)(1) is

no less effective than the Federal

regulation at 30 CFR 764.15(b)(1),

approves New Mexico’s proposed CSMC

Rule 80–1–4–15(b)(1), and removes the

required amendment at 30 CFR

931.16(c).

7. CSMC Rules 80–1–9–25 (a) and (c)

and 80–1–20–49(e) (1) through (11),

Requirements for Ponds,

Impoundments, and Banks, Dams, and

Embankments that Meet or Exceed the

Class B or C Criteria of Technical

Release No. 60 (210–VI–TR60, October

1985)

At its own initiative, New Mexico

proposed to revise its program to

incorporate the requirements for permit

applications and performance standards

pertaining to design, construction, and

inspection of ponds and impoundments,

and banks, dams, and embankments that

meet or exceed the Class B or C criteria

of Technical Release No. 60 (210–VI–

TR60, October 1985), i.e., the hazardous

classification criteria published by the

U.S. Department of Interior, National

Resource Conservation Service (NRCS).

These requirements were incorporated

into the Federal program on October 20,
26828 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

1994 (see 59 FR 53029). Because New

Mexico intended to revise its program to

be no less effective than the Federal

program with respect to the hazardous

classification criteria published by the

NRCS, OSM has identified those

existing provisions in the New Mexico

program which were not proposed to be

revised but which New Mexico must

revise in order for the New Mexico

program to be no less effective than the

Federal program.

a. CSMC Rule 80–1–9–25(a) (2) and

(3), and 80–1–9–25(c), Contents of

permit applications. New Mexico

proposed to revise CSMC Rules 80–1–9–

25(a) (2) and (3) and 80–1–9–25(c),

concerning the contents of permit

applications, to incorporate

requirements pertaining to ponds and

impoundments, and banks, dams, and

embankments that meet or exceed the

Class B or C criteria of Technical

Release No. 60 (210–VI–TR60, October

1985). The proposed requirements are

substantively identical to the

requirements in the corresponding

Federal regulations at 30 CFR 780.25

(a)(2), (a)(3), and (c)(3). Therefore, the

Director finds that New Mexico’s

program at CSMC Rule 80–1–9–25, with

the exception of an existing rule that

was not revised, is no less effective than

the Federal program at 30 CFR 780.25

with respect to incorporation of the

NRCS hazardous classification criteria.

The exception concerns New

Mexico’s existing CSMC 80–1–9–

25(e)(5), which New Mexico did not

propose to revise to incorporate

requirements pertaining to the NRCS

hazardous classification criteria. The

corresponding Federal regulation at 30

CFR 780.25(f) requires that, if the

structure meets the Class B or C criteria

for dams in TR–60 or meets the size or

other criteria of 30 CFR 77.216(a), each

plan required under 30 CFR 780.25(b),

(c), and (e) must include a stability

analysis of the structure and a

description of each engineering design

assumption and calculation with a

discussion of each alternative

considered in selecting the specific

design parameters and construction

methods.

Therefore, the Director finds that

existing CSMC 80–1–9–25(e)(5) is less

effective than the revised Federal

regulations at 30 CFR 780.25(f) with

respect to requirements pertaining to

those structures that meet the Class B or

C criteria for dams in TR–60.

Based on the discussion above, the

Director approves proposed CSMC

Rules 80–1–9–25(a) (2) and (3) and 80–

1–9–25(c), but is adding a new

requirement that New Mexico further

revise existing CSMC 80–1–9–25(e)(5) to

incorporate the requirements pertaining

to those structures that meet the Class

B or C criteria for dams in TR–60.

b. CSMC Rules 80–1–20–49(e) (1)

through (11), Performance standards.

New Mexico proposed to revise the

introductory paragraph at CSMC Rule

80–1–20–49(e) to clarify that its

requirements apply to all temporary or

permanent impoundments at both

surface and underground mining

operations. In addition, New Mexico

proposed to recodify CSMC Rules 80–1–

20–49(e) (1) through (11) and to

incorporate requirements concerning

impoundments that meet or exceed the

Class B or C criteria of Technical

Release No. 60 (210–VI–TR60, October

1985).

The requirements of New Mexico’s

CSMC Rule 80–1–20–49(e) (1) through

(11), along with existing requirements at

CSMC Rules 80–1–20–49 (b), (c), (d), (f),

and (g) are, with two exceptions

discussed below, substantively identical

to the requirements in the

corresponding Federal regulations at 30

CFR 816.49(a) and 817.49(a).

The first exception concerns New

Mexico’s existing CSMC Rules 80–1–

20–49(d), which pertains to

construction certification, 80–1–20–

49(f)(2), which pertains to required

design precipitation events, and 80–1–

20–49(g) (4) and (5), which pertain to

inspection and construction

certification. New Mexico did not

propose to revise these rules to

incorporate requirements pertaining to

the NRCS hazardous classification

criteria. The corresponding Federal

regulations at 30 CFR 816.49(a)(9)(ii) (A)

and (C), 816.49(a)(11)(iv), and

816.49(12) and 30 CFR 817.49(a)(9)(ii)

(A) and (C), 817.49(a)(11)(iv), and

817.49(12) include requirements

pertaining to structures that meet or

exceed the Class B or C criteria for dams

in TR–60.

Therefore, the Director finds that

proposed CSMC Rules 80–1–20–49(e)

(1) through (11) are no less effective

than the Federal regulations at 30 CFR

816.49(a) and 817.49(a). However, the

Director also finds that existing CSMC

Rules 80–1–20–49(d), 80–1–20–49(f)(2),

and 80–1-20–49(g) (4) and (5) are, with

respect to requirements pertaining to

those structures that meet or exceed the

Class B or C criteria for dams in TR–60,

less effective than the revised Federal

regulations at 30 CFR 816.49(a)(9)(ii) (A)

and (C), 816.49(a)(11)(iv), and

816.49(12) and 30 CFR 817.49(a)(9)(ii)

(A) and (C), 817.49(a)(11)(iv), and

817.49(12).

The second exception in New

Mexico’s proposed CSMC 80–1–20–

49(e)(11) which requires barriers to

control seepage. Proposed CSMC 80–1–

20–49(e)(11) has no Federal counterpart.

However, this requirement is not

inconsistent with the requirements of 30

CFR 816.49(a)(6), concerning foundation

stability, and provides for additional

protection.

Based on the discussion above, the

Director approves proposed CSMC

Rules 80–1–20–49(e) (1) through (11),

but is adding a new requirement that

New Mexico further revise existing

CSMS Rules 80–1–20–49(d), 80–1–20–

49(f)(2), and 80–1–20–(g) (4) and (5) to

incorporate the requirements pertaining

to those structures that meet or exceed

and do not meet or exceed the Class B

or C criteria for dams in TR–60.

8. CSMC Rule 80–1–9–39 (a), (b), and

(c), Permit Application Requirements

Concerning a Subsidence Information

and Control Plan for Underground

Mining Operations

OSM required at 30 CFR 931.16 (f)

and (g) that New Mexico revise,

respectively, (1) its program to require

that a permit application include a

description of measures that an operator

would use to mitigate or remedy

subsidence-related material damage to

the land and to occupied residential

dwellings, structures related thereto,

and noncommercial buildings where the

damage resulted from underground

mining operations conducted after

October 23, 1992; and (2) CSMC Rule

80–1–9–39(d) to remove from its

program the exception allowed at

paragraph (d)(2) from the requirements

of CSMC Rule 80–1–9–39(d), concerning

adoption of measures to prevent

subsidence causing material damage to

the extent technologically and

economically feasible (findings Nos. 8. b

and c, 58 FR 65907, 65912 and 65913,

December 17, 1993).

New Mexico proposed to delete

existing CSMC Rules 80–1–9–39(a) (1)

through (5), (b) (1) through (3), and (c)

(1) through (4), and add CSMC Rules

80–1–9–39 (a) (1) through (6), (b), and

(c) (1) through (9), concerning permit

application requirements for subsidence

information and control plans.

New Mexico’s proposed CSMC Rules

80–1–9–39(a) (1) through (6), (b), and (c)

(1) through (9), are, with one exception,

substantively identical to the

corresponding Federal regulations at 30

CFR 780.24(a) (1) through (3) and (b) (1)

through (9), and satisfy the required

amendments at 30 CFR 931.16 (f) and

(g). The exception concerns New

Mexico’s requirement at proposed

CSMC Rule 80–1–9–39(a)(3), concerning

the pre-subsidence survey, for a photo,

prior to mining, of the exterior of each

non-commercial building or occupied
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26829

residential dwelling and associated

structures. The counterpart Federal

regulation at 30 CFR 784.20(a)(3) does

not require photographs as part of the

survey. However, proposed CSMC Rule

80–1–9–39(a)(3) is not inconsistent with

the Federal regulations and provides for

additional documentation of the

condition of existing structures that may

be materially damaged or for which the

reasonably foreseeable use maybe

diminished by subsidence.

Based on the above discussion, the

Director finds that New Mexico’s

proposed CSMC Rules 80–1–9–39(a) (1)

through (6), (b), and (c) (1) through (9),

concerning permit application

requirements for a subsidence

information and control plan, are no

less effective than the Federal

regulations at 30 CFR 780.24(a) (1)

through (3) and (b) (1) through (9). The

Director approves proposed CSMC

Rules 80–1–9–39(a) (1) through (6), (b),

and (c) (1) through (9), and removes the

required amendments at 30 CFR 931.16

(f) and (g).

9. CSMC Rule 80–1–11–17(c), Basis for

Permit Denial

OSM required at 30 CFR 931.16(h)

that New Mexico revise CSMC Rule 80–

1–11–17(c) to require, as a basis of

permit denial, that New Mexico (1)

consider delinquent civil penalties

issued pursuant to all the derivative

State and Federal programs

encompassed by the Federal phrase

‘‘section 518 of the Act,’’ and (2)

prohibit issuance of a permit if there

exist uncorrected or unabated violations

received by an applicant or other

controlling entity pursuant to SMCRA,

its implementing regulations, or any

State or Federal law, rule or regulation

enacted or promulgated pursuant to

SMCRA (finding No. 9.b, 58 FR 65907,

65913, December 17, 1993).

New Mexico proposed to revise CSMC

Rule 80–1–11–17(c), concerning the

basis for permit denial, to include

requirements that are substantively

identical to those in the Federal

regulation at 30 CFR 773.15(b)(1) and, in

doing so, has satisfied the required

amendment at 30 CFR 931.16(h).

Because New Mexico’s proposed rule

is substantively identical to the Federal

regulation, the Director finds that

proposed CSMC Rule 80–1–11–17(c) is

no less effective than the Federal

regulation at 30 CFR 773.15(b)(1). The

Director approves proposed CSMC 80–

1–11–17(c) and removes the required

amendment at 30 CFR 931.16(h).

10. CSMC Rules 80–1–11–17(d) and 80–

1–11–19(i), Review of Permit

Applications and Criteria for Permit

Approval or Denial

OSM required at 30 CFR 931.16(i) that

New Mexico revise CSMC Rules 80–1–

11–17(d) and 80–1–11–19(i) to require

that the Director of the New Mexico

program, when making a determination

of whether a pattern of willful violations

exists, consider violations received by

an applicant, operator, or controlling

entity pursuant to SMCRA, its

implementing regulations, or any State

or Federal law, rule or regulation

enacted or promulgated pursuant to

SMCRA (finding No. 9.c, 58 FR 65907,

65914, December 7, 1993).

New Mexico proposed to revise CSMC

Rule 80–1–11–17(d) and 80–1–11–19(i),

concerning, respectively, New Mexico’s

(1) review of permit applications for a

demonstrated pattern of willful

violations, and (2) criteria for permit

approval and denial pertaining to a

demonstrated pattern of willful

violations, to include the requirement

that the Director of the New Mexico

program consider violations received by

an applicant, operator, or controlling

entity pursuant to ‘‘SMCRA.’’ New

Mexico proposed a definition of the

term ‘‘SMCRA’’ at CSMC Rule 80–1–1–

5 to mean, in addition to the Federal act,

its implementing regulations at 30 CFR

Chapter VII, and any State or Federal

law, rule, regulation, or program

enacted or promulgated pursuant to it

(see finding No. 4.c for a discussion of

the Director’s approval of the definition

of ‘‘SMCRA’’ proposed at CSMC Rule

80–1–1–5).

New Mexico’s use of the term

‘‘SMCRA’’ in proposed CSMC Rules 80–

1–11–17(d) and 80–1–11–19(i) is

equivalent to the use, in the Federal

regulations at 30 CFR 773.15(b)(3), of

the phrase ‘‘SMCRA, its implementing

regulations, and any State or Federal

law, rule or regulation enacted or

promulgated pursuant to SMCRA’’ and

satisfies the required amendment at 30

CFR 931.16(i).

Based upon the above discussion, the

Director finds that proposed CSMC

Rules 80–1–11–17(d) and 80–1–11–19(i)

are consistent with and no less effective

than the counterpart Federal regulations

at 30 CFR 773.15(b)(3), approves

proposed CSMC Rules 80–1–11–17(d)

and 80–1–11–19(i), and removes the

required amendment at 30 CFR

931.16(i).

11. CSMC Rules 80–1–11–20 (b)(1) and

(b)(3), General Procedures Pertaining to

Improvidently Issued Permits

OSM required at 30 CFR 931.16(j) that

New Mexico revise CSMC Rules 80–1–

11–20 (b)(1) and (b)(3) to reference

CSMC Rule 80–1–11–20(b)(1)(iii)

instead of CSMC Rule 80–1–7–14

(finding No. 10.a, 58 FR 65907, 65914,

December 17, 1993).

New Mexico proposed to revise CSMC

Rules 80–1–11–20 (b)(1), (b)(1)(ii), and

(b)(3), concerning review criteria for

improvidently issued permits, to

include requirements that are, with one

exception, substantively identical to the

Federal regulations at 30 CFR

773.20(b)(1) (i) and (iii). In doing so,

New Mexico deleted the language that

necessitated the reference to CSMC Rule

80–1–11–20(b)(1)(iii) and, thereby,

satisfied the required amendment at 30

CFR 931.16(j).

The exception is that New Mexico

proposed to delete, from CSMC Rule

80–1–11–20(b)(1)(ii), a reference to the

applicable violations review criteria in

the preamble of the Federal regulations

published at 54 CFR 18438, 18440–

18441. This reference identifies the

applicable review criteria the Director of

the New Mexico program is to use when

determining what specific unabated

violations, delinquent penalties and

fees, and ownership and control

relationship apply under this rule.

The Federal regulations at 30 CFR

773.20(b)(1)(i) require that a regulatory

authority shall find that a surface coal

mining and reclamation permit was

improvidently issued if, under the

violations review criteria of the

regulatory program at the time the

permit was issued, the regulatory

authority should not have issued the

permit because of an unabated violation

or a delinquent penalty or fee; or the

permit was issued on the presumption

that a notice of violation was in the

process of being corrected to the

satisfaction of the agency with

jurisdiction over the violation, but a

cessation order subsequently was

issued.

Because New Mexico proposed to

delete from CSMC Rule 80–1–11–

20(b)(1)(ii) the reference to the

applicable violations review criteria,

New Mexico’s program no longer

identifies the review criteria that the

Director of the New Mexico program

would use to determine what specific

unabated violations, delinquent

penalties and fees, and ownership and

control relationship applied at the time

a permit was issued. To be no less

effective than the Federal regulations at

30 CFR 773.20(b)(1)(i), New Mexico
26830 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

must review CSMC Rule 80–1–11–

20(b)(1) to identify the applicable

violations review criteria.

Based on the above discussion, the

Director finds that (1) New Mexico has

satisfied the required amendment at 30

CFR 931.16(j), and (2) New Mexico’s

proposed CSMC Rules 80–1–11–

20(b)(1), (b)(1)(ii), and (b)(3), with the

exception of the proposed deletion the

applicable violations review criteria at

CSMC Rule 80–1–11–20(b)(1)(ii), are no

less effective than the Federal

regulations at 30 CFR 773.20(b)(1) (i)

and (iii). The Director approves

proposed CSMC Rules 80–1–11–20

(b)(1), (b)(1)(ii), and (b)(3) and removes

the required amendment at 30 CFR

931.16(j). However, the Director is

adding a new requirement that New

Mexico further revise CSMC Rule 80–1–

11–20(b)(1) to identify the applicable

violations review criteria that the

Director of the New Mexico program

would use to determine what specific

unabated violations, delinquent

penalties and fees, and ownership and

control relationship applied at the time

a permit was issued.

12. CSMC Rule 80–1–11–29(d)

Conditions of Permits

OSM required at 30 CFR 931.16(k)

that New Mexico revise CSMC Rule 80–

1–11–29(d) to require the permittee to

update the ownership and control

information when a Federal cessation

order has been issued in accordance

with 30 CFR 843.11, or, if there has been

no change in the required information,

to so notify the Director (finding No. 11,

58 FR 65907, 65915, December 17,

1993).

New Mexico proposed to revise CSMC

Rule 80–1–11–29(d) to require that a

permittee submit information

concerning, among other things, ‘‘a

Federal cessation order issued in

accordance with 30 CFR 843.11.’’

Existing CSMC Rule 80–1–11–29(d)(3)

requires that the permittee notify New

Mexico in writing if there has been no

change in previously submitted

information.

Therefore, the Director finds that

proposed CSMC Rule 80–1–11–29(d) is

no less effective than the Federal

regulation at 30 CFR 773.17(i) and

satisfies the required amendment at 30

CFR 931.16(k). The Director approves

CSMC Rule 80–1–11–29(d) and removes

the required amendment at 30 CFR

931.16(k).

13. CSMC Rule 80–1–19–15(c)

Performance Standards for Coal

Exploration

OSM required at 30 CFR 931.16(l) that

New Mexico revise CSMC Rule 80–1–

19–15(c) to require that ‘‘other

transportation facilities’’ used for coal

exploration activities meet the

requirements of CSMC Rules 80–1–20–

150 (b) through (g) and 80–1–20–181 (a)

and (b) (finding No. 12, 58 FR 65907,

65916, December 17, 1993).

New Mexico proposed to revise CSMC

Rules 80–1–19–15 (c)(2), (c)(3), and

(c)(3)(iii), concerning performance

standards applicable to coal exploration,

to apply these rules to other

transportation facilities as well as to

new and existing roads and to require

that new and significantly altered

existing roads or other transportation

facilities comply with the provisions of

CSMC Rules 80–1–20–150 (b) through

(f) and 80–1–20–180 and 181. In

addition, New Mexico proposed to

further revise CSMC Rule 80–1–19–

15(c)(4) to clarify that (1) any road or

facility that will be retained

permanently must comply with the

applicable provisions of CSMC Rules

80–1–20–150, 151, 20–180, and 20–182

and (2) if a road or facility will not be

retained it must be immediately

reclaimed.

The Federal regulations at 30 CFR

815.15(b) require that all roads or other

transportation facilities used for coal

exploration shall comply with the

applicable provisions of 30 CFR 816.150

(b) through (f), 816.180, and 816.181.

The Director finds that proposed

CSMC Rules 80–1–19–15 (c)(2), (c)(3),

(c)(iii), and (c)(4) are no less effective

than the Federal regulations at 30 CFR

815.15(b) and satisfy the required

amendment at 30 CFR 931.16(l). The

Director approves proposed CSMC

Rules 80–1–19–15 (c)(2), (c)(3), (c)(iii),

and (c)(4) and removes the required

amendment at 30 CFR 931.16(1).

14. CSMC Rule 80–1–20–93(a)(1)

Performance Standard Pertaining to the

Design and Construction of Dams and

Embankments Constructed of or

Intended to Impound Coal Processing

Waste

At its own initiative, New Mexico

proposed to revise CSMC 80–1–20–

93(a)(1) to delete the requirement that

the design freeboard must be at least 3

feet and to require, for the design of

each dam and embankment constructed

of or intended to impound coal

processing waste, that the maximum

water elevation shall be that determined

by the freeboard hydrograph criteria

contained in the NRCS hazardous

classification criteria referenced in

CSMC Rule 80–1–20–49.

The corresponding Federal

regulations concerning the design of

each dam and embankment constructed

of coal processing waste or intended to

impound such waste are at 30 CFR

816.84(b)(1) and 817.64(b)(1). These

Federal regulations reference the

requirements at 30 CFR 816.49(a) and

817.49(a) for determination of the

maximum water elevation. As discussed

in finding No. 7 above, OSM revised the

Federal program at 30 CFR 816.49(a)

and 817.49(a) to include new

requirements for impoundments that

meet or exceed the NRCS hazardous

classification criteria. Specifically, the

Federal regulations at 30 CFR

816.49(a)(5) and 817.49(a)(5) include the

requirement that freeboard design for

impoundments that meet the Class B or

C criteria for dams in NRCS Technical

Release No. 60 (TR–60; 210–VI–TR60,

Oct. 1985), shall comply with the

freeboard hydrograph criteria in the

‘‘Minimum Emergency Spillway

Hydrologic Criteria’’ table in TR–60. In

this amendment, also discussed in

finding No. 7.b above, New Mexico

proposed to revise CSMC Rule 80–1–

20–49(e) to include NRCS hazardous

classification criteria that are no less

effective than those in the Federal

regulations. Specifically, New Mexico

proposed to revise CSMC Rules 80–1–

20–49(e)(4) to incorporated

requirements concerning freeboard

design for impoundments meeting the

NRCS hazardous classification criteria.

Because proposed CSMC 80–1–20–

93(a)(1) requires, by reference to CSMC

80–1–20–49, that the maximum water

elevation be that determined by the

freeboard hydrograph criteria in the

‘‘Minimum Emergency Spillway

Hydrologic Criteria’’ table, proposed

CSMC 80–1–20–93(a)(1) is no less

effective than the Federal regulations at

30 CFR 816.84(b)(1) and 817.64(b)(1).

The Director approves proposed CSMC

80–1–20–93(a)(1); however, OSM

recommends, for clarity, the New

Mexico further revise proposed CSMC

80–1–20–93(a)(1) to reference the

requirements at CSMC 80–1–20–49(e)(4)

rather than CSMC 80–1–20–49.

15. CSMC Rules 80–1–20–97 (b) and (c),

Protection of Fish, Wildlife, and Related

Environmental Values

OSM required at 30 CFR 931.16(a)

that New Mexico revise its program to

require protection of threatened and

endangered species from underground

mining activities (finding No. 4, 55 FR

48837, 48839, November 23, 1990).

New Mexico proposed to revise CSMC

Rules 80–1–20–97 (b) and (c) to prohibit

operators from conducting ‘‘surface coal

mining operations or reclamation’’ that

are likely to jeopardize the continued

existence of endangered or threatened

species and their habitats, including

bald and golden eagles, their nests and
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26831

eggs. New Mexico also proposed to

extend the prohibition to threatened and

endangered species listed by the ‘‘New

Mexico Energy, Minerals and Natural

Resources and Game and Fish

Department’’ in addition to those listed

by the Secretary of the U.S. Department

of the Interior.

The corresponding Federal

regulations at 30 CFR 816.97 (b) and (c)

and 817.97 (b) and (c) prohibit operators

from conducting, respectively, ‘‘surface

mining activities’’ or ‘‘underground

mining activities’’ that are likely to

jeopardize the continued existence of

endangered or threatened species listed

by the Secretary of the Interior and their

habitats, including bald and golden

eagles, their nests and eggs.

At existing CSMC Rule 80–1–1–5,

New Mexico defines (1) ‘‘Reclamation’’

to mean

those actions taken to restore mined land as

required by the Act and these rules and

regulations to a postmining land use

approved by the Director

and (2) ‘‘Surface coal mining

operations’’ to mean

(a) activities conducted on the surface lands

in connection with a surface coal mine or,

subject to the requirements of Section 69–

25A–20 NMSA 1978 of the Act, surface

operations and surface impacts incident to an

underground coal mine, the products of

which enter commerce or the operations of

which directly or indirectly affect interstate

commerce.

Therefore, New Mexico’s use, at

proposed CSMC Rules 80–1–20–97 (b)

and (c), of the phrase ‘‘surface coal

mining operations or reclamation’’

includes ‘‘surface operations and

surface impacts incident to an

underground coal mine’’ and satisfies

the required amendment at 30 CFR

931.16(a).

The corresponding Federal

regulations at 30 CFR 816.97(b) and

817.97(b) also require protection of

species listed by the Secretary, but do

not prohibit the protection of other

species. Therefore, New Mexico’s

proposed inclusion of additional species

at CSMC Rules 80–1–20–97 (b) and (c),

while not required, is not inconsistent

with the Federal requirements.

Based on the above discussion, the

Director finds that proposed CSMC

Rules 80–1–20–97 (b) and (c) are

consistent with and no less effective

than the Federal regulations at 30 CFR

816.97 (b) and (c) and 817.97 (b) and (c),

approves proposed CSMC Rules 80–1–

20–97 (b) and (c), and removes the

required amendment at 30 CFR

931.16(a).

16. CSMC Rule 80–1–20–116(b)(1),

Period of Extended Responsibility

OSM required at 30 CFR 931.16(n)(2)

that New Mexico revise CSMC Rule 80–

1–20–116(b)(1) to require that the period

of extended responsibility begin after

the last year of augmented seeding,

fertilizing, irrigation, or other work

(finding No. 16.b, 58 FR 65907, 65919,

December 17, 1993).

New Mexico proposed to revise CSMC

Rule 80–1–20–116(b) (1) to (1) delete the

allowance for supplemental fertilization

and interseeding in order to establish

species diversity to occur without

disrupting the liability period and (2)

require that the extended liability

period begin after the last year of

augmented seeding, fertilizing,

irrigation, or other work, excluding

husbandry practices that are approved

by the Director in accordance with

CSMC Rule 80–1–20–116(b)(6).

The Federal regulations at 30 CFR

816.116(c)(1) provide that the period of

extended responsibility for successful

revegetation shall begin after the last

year of augmented seeding, fertilizing,

irrigation, or other work, excluding

husbandry practices that are approved

by the regulatory authority in

accordance with 30 CFR with 30 CFR

816.116(c)(4).

The Director finds that the proposed

revisions at CSMC Rule 80–1–20–

116(b)(1), concerning the beginning of

the bond liability period, (1) are

substantively identical to and, therefore,

no less effective than the Federal

regulations at 30 CFR 816.116(c) (1), and

(2) satisfy the required amendment at 30

CFR 931.16(n)(2). (Please note that the

existing provision at CSMC Rule 80–1–

20–116(b)(1), concerning revegetation

success standards for ground cover and

productivity, which allows for

standards other than those developed by

use of a reference area to be approved

by the Director of the New Mexico

program, is subject to an outstanding

required amendment at 30 CFR

931.16(n)(1).)

Based on the above discussion, the

Director approves the proposed

revisions at CSMC Rule 80–1–20–

116(b)(1), concerning the beginning of

the bond liability period, and removes

the required amendment at 30 CFR

931.16(n)(2).

17. CSMC 80–1–20–116(b) (1) Through

(5), Revegetation Success Standards

At its own initiative, New Mexico

proposed to revise CSMC 80–1–20–

116(b)(1) (i) and (ii), (b)(2), and (b)(3) by

recodifying these rules as CSMC 80–1–

20–116 (b)(2) through (b)(5) and

proposing nonsubstantive editorial

revisions at CSMC 80–1–20–116(b) (2)

and (3). In addition, New Mexico

proposed to revise CSMC Rule 80–1–

20–116(b) (5) to (1) delete the allowance

for 80 percent statistical confidence to

demonstrate success of shrubland when

compared to reference areas, and (2)

allow shrubland stocking, in addition to

ground cover and production, to be

considered successful when they are at

least 90 percent of the standards

developed for historical records under

CSMC Rule 8–1–20–116(a).

The Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) require,

among other things, that ground cover,

production, or stocking shall be

considered equal to the approved

success standard when they are not less

than 90 percent of the success standard

and that the sampling techniques for

measuring success shall use a 90-

percent statistical confidence interval

(i.e., one-sided test with a 0.10 alpha

error).

Therefore, the Director finds that,

because New Mexico’s proposed CSMC

Rule 80–1–20–116(b)(5) now requires

success of ground cover and

productivity of all revegetation to be

measured with 90 percent statistical

confidence in order to be considered

successful, proposed CSMC Rule 80–1–

20–116(b)(5) is no less effective than the

Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2). The

Director approves the (1) recodification

and nonsubstantive editorial revisions

at CSMC 80–1–20–116 (b)(2) through

(b)(4), and (2) proposed revisions at

CSMC Rule 80–1–20–116(b)(5).

18. CSMC 80–1–20–116(b)(6), Normal

Husbandry Practices

At its own initiative, New Mexico

proposed a new CSMC Rule 80–1–20–

116(b)(6) that allows the Director of the

New Mexico program to approve

selective husbandry practices without

extending the period of responsibility

for revegetation success or bond

liability, and identifies husbandry

practices as those activities that can be

expected to continue as part of the post

mining land use, and are employed

within the region for unmined lands

having land uses similar to the

approved postmining land use of the

disturbed area, to control disease, pest

and vermin and appropriate pruning,

reseeding, and transplanting activities.

Proposed CSMC Rule 80–1–20–116(b)(6)

also provides that husbandry practices

may be allowed if they will not reduce

the probability of permanent

revegetative success if they are

discontinued after the liability period

expires and states that any practice the

Director determines to be augmented
26832 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

seeding, fertilization or irrigation shall

not be considered a husbandry practice.

The Federal regulations at 30 CFR

816.116(c)(4) provide that the regulatory

authority may approve selective

husbandry practices, excluding

augmented seeding, fertilization, or

irrigation, provided it obtains prior

approval from the Director of OSM, in

accordance with 30 CFR 732.17, that the

practices are normal husbandry

practices, without extending the period

of responsibility for revegetation success

and bond liability, if such practices can

be expected to continue as part of the

postmining land use or if

discontinuance of the practices after the

liability period expires will not reduce

the probability of permanent

revegetation success. Approved

practices shall be normal husbandry

practices within the region for unmined

lands having land uses similar to the

approved postmining land use of the

disturbed area, including such practices

as disease, pest, and vermin control; and

any pruning, reseeding, and

transplanting specifically necessitated

by such actions.

New Mexico’s proposed CSMC Rule

80–1–20–116(b)(6) mimics the language

in the Federal regulations, but does not

actually identify husbandry practices. It

only states that the Director of the New

Mexico program may approve selective

husbandry practices that would not

extend the period of responsibility for

revegetation success or bond liability

and describes the nature of husbandry

practices. The Federal regulations at 30

CFR 816.116(c)(4) require that the

regulatory authority obtain prior

approval, that the selected practices are

normal husbandry practices, from OSM

in accordance with 30 CFR 732.17 (i.e.,

the state program approval process).

Based on the above discussion, the

Director finds that proposed CSMC Rule

80–1–20–116(b)(6) is less effective than

the Federal regulations at 30 CFR

816.116(c)(4). With the exception of the

allowance for the Director of the New

Mexico program to approve husbandry

practices that have not received

approval from OSM in accordance with

30 CFR 732.17, the Director approves

proposed CSMC Rule 80–1–20–

116(b)(6).

However, the Director is also adding

a new requirement that New Mexico

revise CSMC Rule 80–1–20–116(b)(6) to

either (1) identify selected husbandry

practices and submit them with

documentation verifying that the

proposed practices would be considered

normal in the areas being mined or (2)

state that selected husbandry practices

approved by the Director may not be

implemented prior to approval from

OSM in accordance with the State

program amendment process at 30 CFR

772.17.

19. CSMC Rules 80–1–20–117, 117(c)(1),

117(c)(3), 117(c)(4), 117(d)(2), and

117(d)(3)(i), Performance Standards for

the Revegetation of Trees and Shrubs

In response to required program

amendments at 30 CFR 931.16 (p), (q),

and (4), New Mexico proposed revisions

at CSMC Rules 80–1–20–117, 117(c)(1),

117(c)(3), 117(c)(4), 117(d)(2), and

117(d)(3)(i), concerning performance

standards for the revegetation of trees

and shrubs. At its own initiative, New

Mexico also proposed revisions at

CSMC Rule 80–1–20–117(d)(3)(i),

concerning statistical sampling

techniques (finding Nos. 17.a, 17.c.i,

and 17.c.ii, 58 FR 65907, 65920, and

65921, December 17, 1993).

Based on the discussion in paragraphs

19.a through 19.d below, the Director

approves proposed CSMC Rules 80–1–

20–117, 117(c)(1), 117(c)(3), 117(c)(4),

117(d)(2), and 117(d)(3)(i), and removes

the required amendment at 30 CFR

931.16 (p), (q), and (r).

a. CSMC Rule 80–1–20–117,

Performance standards for tree and

shrub stocking and utility of the trees

and shrubs for the approved postmining

land use. OSM required at 30 CFR

931.16(p) that New Mexico revise CSMC

Rule 80–1–20–117(a) and (b) to (1)

provide revegetation success standards

for lands developed as fish or wildlife

habitat, recreation areas, or shelterbelts,

and (2) require that the trees and shrubs

used in determining stocking success

and adequacy of plant arrangement shall

have utility for the approved postmining

land use.

In response to the required

amendment at 30 CFR 931.16(p), New

Mexico proposed to revise CSMC Rule

80–1–20–117 to (1) apply its tree and

shrub stocking requirements to

reclaimed land developed for use as fish

and wildlife habitat, recreation,

shelterbelts, or forestry and (2) require

that trees and shrubs used in

determining the success of stocking and

the adequacy of plant arrangement shall

have utility for the approved postmining

land use.

The Director finds that proposed

CSMC Rule 80–1–20–117 satisfies the

required amendment at 30 CFR

931.16(p) and is no less effective than

the Federal regulations at 30 CFR

816.116(b)(3) and 817.116(b)(3).

b. CMSC 80–1–20–117(c)(1), (3), and

(4), Performance standards for stocking

of trees and shrubs where commercial

forest land is the approved postmining

land use. OSM required at 30 CFR

931.16(q) that New Mexico revise CSMC

Rule 80–1–20–117(c) to (1) clarify

whether the stocking rate for

commercial forest land will be

determined by the State Forester on a

permit-specific or program-wide basis,

(2) reference the correct rules for

determining the number of trees, shrubs,

and ground-cover plants on commercial

forest land, and (3) reference CSMC

Rule 80–1–20–117(d)(2) for the

appropriate bond release success

standards for stocking and ground

cover.

In response to the required

amendment at 30 CFR 931.16(q)(1), New

Mexico proposed to revise CSMC 80–1–

20–117(c)(1) to require that the

minimum stocking of trees or shrubs

will be determined by the State Forester

on a permit-specific basis (emphasis

added). In response to the required

amendment at 30 CFR 931.16(q)(2), New

Mexico proposed to revise CSMC Rule

80–1–20–117(c)(3), concerning success

standards for areas where commercial

forest land is the approved postmining

land use, to (1) reference CSMC Rules

80–1–20–116(b)(5)(iv) and 20–117(b) for

the approved sampling methods, and (2)

delete a provision specific to tree and

shrub stocking for the beginning of the

extended liability period. In response to

the required amendment at 30 CFR

931.16(q)(3), New Mexico proposed to

revise CSMC 80–1–20–117(c)(4) to

reference CSMC Rules 80–1–20–116 and

80–1–20–117 for the requirements

pertaining to the demonstration

required, upon request for final bond

release, to show success of tree and

shrub stocking and ground cover.

The Director finds that New Mexico’s

proposed CSMC Rules 80–1–20–117(c)

(1), (3), and (4) satisfy the requirements

of 30 CFR 931.16(q) (1), (2), and (3), and

are no less effective than the Federal

regulations at 30 CFR 816.116(b)(3) and

817.116(b)(3).

c. CSMC Rules 80–1–20–117(d)(2) and

(d)(3)(i), Performance standards for tree

and shrub stocking concerning sampling

techniques, revegetation success

standards, and the extended period of

responsibility for revegetation success.

OSM required at 30 CFR 931.16(r) that

New Mexico revise CSMC Rule 80–1–

20–117 (d) to (1) provide at CSMC Rule

80–1–20–117 (d)(2) and (d)(3)(i) the

correct references to rules pertaining to

revegetation success standards and the

extended period of responsibility for

revegetation success, and (2) require at

CSMC Rule 80–1–20–117(d)(3)(i) that

the sampling techniques for measuring

revegegation success shall use a 90-

percent statistical confidence interval.

In response to the required

amendment at 30 CFR 931.16(r)(1), New

Mexico proposed to revise CSMC Rules
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26833

80–1–20–117(d)(2), concerning success

standards for areas where woody plants

are used for wildlife management,

recreation, shelter belts, or forest uses

other than commercial forest land, to (1)

reference CSMC Rules 80–1–20–

116(b)(5)(iv) and 80–1–20–117(d)(1) for

the revegetation success standards for

stocking of trees, half-shrubs, shrubs,

and ground cover, and (2) delete a

provision specific to tree and shrub

stocking for the beginning of the

extended liability period.

In response to the required

amendments at 30 CFR 931.16(r) (1) and

(2), New Mexico proposed to revise

CSMC Rule 80–1–20–117(d)(3)(i) to

require that, upon expiration of the 5 or

10 year responsibility period and at the

time of request for bond release,

vegetated woody plants must be equal to

or greater than 90 percent of the

stocking of live woody plants of the

same life form ascertained pursuant to

CSMC Rule 80–1–20–117(b) with 90

percent statistical confidence.

The Director finds that New Mexico’s

proposed revisions of (1) CSMC Rules

80–1–20–117 (d)(2) and (d)(3)(i),

concerning referenced rules for

revegetation success standards, and (2)

CSMC Rule 80–1–20–117(d)(3)(i),

concerning the requirement that the

sampling techniques for measuring

revegetation success shall use a 90-

percent statistical confidence interval,

satisfy the required amendments at 30

CFR 931.16(r) (1) and (2) and are no less

effective than the Federal regulations at

30 CFR 816.116 (a)(2) and (b)(3) and

817.116 (a)(2) and (b)(3).

d. CSMC Rule 80–1–20–117(d)(3)(i),

Performance standards concerning the

statistical techniques for measuring

success of tree and shrub stocking. At its

own initiative, New Mexico proposed a

revision at CSMC 80–1–20–117(d)(3)(i)

to require that statistical techniques for

measuring success use appropriate

parametric or nonparametric one-tail

test with a 90-percent confidence

interval and a 10-percent alpha error.

The Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2) require,

among other things, that ground cover,

production, or stocking shall be

considered equal to the approved

success standard when they are not less

than 90 percent of the success standard

and that the sampling techniques for

measuring success shall use a 90-

percent statistical confidence interval

(i.e., one-sided test with a 0.10 alpha

error).

With one exception, New Mexico’s

proposed CSMC Rule 80–1–20–

117(d)(3)(i), concerning statistical

sampling techniques, is substantively

identical to these requirements in the

Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2). The

exception is that New Mexico cites as

appropriate statistical tests either

parametric or nonparametric tests and

indicates that both would be tests that

are one-tailed with a 90-percent

confidence interval and a 10-percent

alpha error. Nonparametrically

distributed populations exist when the

parameters being measured are not

normally distributed throughout the

area being sampled, e.g., in the arid west

when the vegetation cover approaches

zero and where shrubs are planted and

occur with irregularity throughout the

reclaimed area. A test for a

nonparametrically distributed

population can be found to be 90%

confident with a one-tailed test with a

.1% alpha error, just as can a test for

parametrically distributed populations.

Therefore, based on the above

discussion, the Director finds that

proposed CSMC Rule 80–1–20–

117(d)(3)(i), concerning statistical

sampling techniques, is no less effective

than the Federal regulations at 30 CFR

816.116(a)(2) and 817.116(a)(2).

20. CSMC Rule 80–1–20–150(c),

Prohibition of Vehicular Fords or Low

Water Crossings by Ancillary Roads

At its own initiative, New Mexico

proposed to delete CSMC Rule 80–1–

20–150(c) which prohibits vehicular use

of fords or low water crossings by

ancillary roads at any time there is a

visible surface flow.

The Federal regulations at 30 CFR

816.151(c)(2) and 817.151(c)(2) prohibit

fords of perennial and intermittent

streams by primary roads. However,

there is no similar prohibition in the

general requirements for all roads in the

Federal regulations at 30 CFR 816.150(b)

(2) and (3) and 817.150(b) (2) and (3),

which correspond to New Mexico’s

CSMC Rule 80–1–20–150.

Therefore, the Director finds that New

Mexico’s proposed deletion of CSMC

Rule 80–1–20–150(c), concerning the

prohibition pertaining to fords by

ancillary roads, does not cause CSMC

Rule 80–1–20–150 to be inconsistent

with nor less effective than the general

requirements for all roads in the Federal

regulations at 30 CFR 816.150(b) (2) and

(3) and 817.150(b) s(2) and (3). The

Director approves the proposed deletion

of CSMC Rule 80–1–20–150(c).

IV. Summary and Disposition of

Comments

Following are summaries of all

substantive written comments on the

proposed amendment that were

received by OSM, and OSM’s responses

to them.

1. Public Comments

OSM invited public comments on the

proposed amendment, but none were

received.

2. Federal Agency Comments

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from various Federal

agencies with an actual or potential

interest in the New Mexico program.

The U.S. Army Corps of Engineers

responded on February 27, 1996, that

the proposed revisions were satisfactory

(administrative record No. NM–769).

The U.S. Bureau of Land Management

(BLM) responded on March 4, 1996,

with the following comments

(administrative record No. NM–771).

BLM questioned the appropriateness

of New Mexico’s proposed definitions at

CSMC 80–1–1–5 for (1) ‘‘Occupied

residential dwelling and associated

structures,’’commenting that by

providing for fenced in areas to count as

part of a dwelling, it would allow large

tracts to be excluded from mining

consideration, (2) ‘‘Ownership or

control link,’’ commenting that, by

using the phrase ‘‘owns and controls,’’

the reasoning if circular, and (3)

‘‘Replacement of water supply,’’

commenting that it is not a pure

definition because procedure and

definition are mixed together. Because,

as discussed in finding Nos. 2 and 5.a,

these definitions proposed by New

Mexico are, with one exception

concerning a reference to other New

Mexico rules in ‘‘Occupied residential

dwelling and associated structures,’’

substantively identical to the same

Federal definitions at 30 CFR 701.5 and

773.5, the Director is not requiring that

New Mexico further revise its rules in

response to these comments. However,

nothing in New Mexico’s proposed

definition of ‘‘Occupied residential

dwelling and associated structures,’’ nor

in the same Federal definition, excludes

areas from mining. The term is defined

in order that compensation may be

provided if damage to such a structure

occurs after October 24, 1992, that is,

under certain conditions, a result of

subsidence due to underground mining

operations.

BLM commented that proposed CSMC

Rules 80–1–9–25 (a)(2) and (a)(3),

concerning permit application

requirements for ponds and

impoundments, are incomplete

statements. New Mexico’s proposed

amendment contained only the language

that was proposed for revision and did

not include language in the approved

New Mexico program that was not being

revised. Therefore, the commenter did
26834 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

not see the subparagraphs that exist in

New Mexico which complete the

statements at proposed CSMC Rules 80–

1–9–25 (a)(2) and (a)(3). Because

complete statements exist in the New

Mexico program, the Director is not

requiring that New Mexico further

revise its rules in response to this

comment.

BLM commented that proposed CSMC

Rule 80–1–9–25(c)(3), concerning

permit application requirements for

subsidence information and control

plans, should require that photos be

taken of all sides of occupied building,

and buildings of considerable value, and

that a foundation inspection should be

done on such buildings as part of the

survey of conditions. Proposed CSMC

Rule 80–1–9–39(c)(3) does require a

photo, taken prior to mining, of the

exterior of all non-commercial buildings

or occupied residential dwellings and

associated structures that are within the

area encompassed by the applicable

angle of draw. Proposed CSMC Rule 80–

1–9–39(c)(3) is substantially identical to

the counterpart Federal regulation at 30

CFR 784.20(a)(3), with the exception

that it requires a photo of the buildings

prior to mining as part of a

presubsidence survey. Therefore,

because New Mexico’s proposed

requirement for a photo already

provides for additional information not

specified in the Federal program, the

Director is not requiring that New

Mexico further revise proposed CSMC

Rule 80–1–9–39(c)(3) in response to this

comment. However, nothing in the

proposed rule would prevent the

applicant from documenting the

condition of the buildings to the extent

recommended by the commenter.

BLM commented that proposed CSMC

Rules 80–1–11–33 and 34, concerning

procedures and standards for

challenging ownership and control

links, are detailed procedures and

standards and should be covered in an

internal document. As discussed in

finding No. 2, these proposed rules are

substantively identical to the

requirements in the Federal regulations

at 30 CFR 773.24 (a) through (d) and

773.25 (a) through (d). With these

proposed rules, New Mexico’s approved

program is no less effective than the

Federal program. Therefore, the Director

is not requiring that New Mexico further

revise its program in response to this

comment.

BLM commented that at (proposed

performance standards for ponds and

impoundments) (1) CSMC Rule 80–1–

20–49(e)(4), the size of the storm event

that the impoundment is expected to

weather without overtopping should be

specified, (2) CSMC Rule 80–1–20–

49(e)(8), protection against sudden

drawdown does not make sense because

sudden drawdown is a subsurface

phenomenon which would not occur as

a result of sheet erosion, and (3) CSMC

Rule 80–1–20–49(e)(10), it is unclear

whether the rule referred to submerged

highwalls in a pit left flooded after

reclamation.

These New Mexico proposed rules are

substantively identical to the respective

counterpart Federal regulations at 30

CFR 816.19(a)(5) and 817.49(a)(5),

816.49(a)(7) and 817.49(a)(7), and

816.49(a)(10) and 817.49(a)(10). In

response to the comment concerning

proposed CSMC Rule 80–1–20–49(e)(4),

the Director notes that the design storm

event is specified within the referenced

‘‘Minimum Emergency Spillway

Hydrologic Criteria’’ table in TR–60. In

response to the comment concerning

proposed CSMC Rule 80–1–20–49(e)(8),

the rule requires protection (e.g., by rip

rap, fabric, or vegetation) of the pond or

impoundment inslope against sudden

drawdown, which could occur as a

result of pumping or other rapid release

of water. In addition, the rule requires

outslope protection that could occur as

a result of surface sheet erosion. In

response to the comment concerning

proposed CSMC Rule 80–1–20–

49(e)(10), the Director notes that the rule

does refer to a permanent impoundment

which is created by a portion of a pit

approved to be left in the reclaimed

environment in support of the approved

postmining land use. Because New

Mexico’s proposed rules are

substantively identical to the

counterpart Federal regulations, the

Director is not requiring that New

Mexico further revise its rules in

response to these comments.

3. Environmental Protection Agency

(EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii),

OSM is required to solicit the written

concurrence of EPA with respect to

those provisions of the proposed

program amendment that relate to air or

water quality standards promulgated

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 its

amendment pertain to air or water

quality standards. Therefore, OSM did

not request EPA’s concurrence.

Pursuant to 732.17(h)(11)(i), OSM

solicited comments on the proposed

amendment from EPA (administrative

record No. NM–768. It responded on

February 27, 1996, that it had no

comments (administrative record No.

NM–770).

4. State Historic Preservation Officer

(SHPO) and the Advisory Council on

Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM

solicited comments on the proposed

amendment from the SHPO and ACHP

(administrative record No. NM–768).

Neither SHPO nor ACHP responded to

OSM’s request.

V. Director’s Decision

Based on the above findings, the

Director approves, with one exception

and certain additional requirements,

New Mexico’s proposed amendment as

submitted on January 22, 1996.

The Director approves, as discussed

in finding No. 1, nonsubstantive

editorial revisions at: CSMC Rule 80–1–

11–22(d), concerning remedial measures

for improvidently issued permits; CSMC

Rule 80–1–20–41(e)(3)(i), concerning

general performance standard

requirements for protection of the

hydrologic balance; CSMC Rule 80–1–

20–82(a)(4), concerning inspections of

coal processing waste banks; and CSMC

Rule 80–1–20–89(d)(2), concerning

disposal of noncoal wastes.

The Director approves, as discussed

in finding No. 2, concerning rules that

are substantively identical to the

corresponding Federal regulations at:

CSMC Rule 80–1–1–5, the definitions of

‘‘Applicant/violator system or AVS,’’

‘‘Federal violation notice,’’ ‘‘Ownership

or control link,’’ ‘‘State violation

notice,’’ ‘‘Violation notice,’’ ‘‘OSM,’’

and ‘‘Road;’’ CSMC Rules 80–1–11–

20(c) (1) and (2) and (e), concerning

general procedures for improvidently

issued permits; CSMC 80–1–11–24(a)

and [deletion of] (c), concerning

rescission procedures for improvidently

issued permits; CSMC Rule 80–1–11–31

(a) through (d), concerning verification

of ownership or control application

information; CSMC Rule 80–1–11–32 (a)

through (c), concerning review of

ownership or control and violation

information; CSMC Rule 80–1–11–33 (a)

through (d), concerning procedures for

challenging ownership or control links

shown in AVS; and CSMC Rule 80–1–

11–34 (a) through (d), concerning

standards for challenging ownership or

control links and the status of

violations;

The Director approves, as discussed

in: finding No. 3, CSMC Rule 80–1–1–

5, concerning the definition of

‘‘Qualified laboratory;’’ finding No. 5.a,

CSMC Rule 80–1–1–5, concerning

definitions for ‘‘Drinking, domestic, or

residential water supply,’’

‘‘Noncommercial building,’’ and

‘‘Replacement of water supply;’’ finding

No. 14, CSMC Rule 80–1–20–93(a)(1),
Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations 26835

concerning performance standard

pertaining to the design and

construction of dams and embankments

constructed of or intended to impound

coal processing waste; and finding No.

20, deletion of CSMC Rule 80–1–20–

150(c), concerning the prohibition

pertaining to vehicular use of fords or

low water crossings by ancillary roads at

any time there is a visible surface flow.

The Director removes existing

required amendments and approves, as

discussed in: finding No. 4, CSMC Rule

80–1–1–5, concerning the definition of

‘‘SMCRA’’ and CSMC Rules 80–1–7–

14(c) (1) through (5), concerning

compliance information required in

permit applications; finding No. 6,

CSMC Rule 80–1–4–15(b)(1), concerning

procedures for initial processing,

record-keeping, and notification

requirements concerning petitions to

designate lands unsuitable for mining;

finding No. 8, CSMC Rules 80–1–9–

39(a) (1) through (6), (b), and (c) (1)

through (9), concerning permit

application requirements for subsidence

information and control plans; finding

No. 9, CSMC Rule 80–1–11–17(c),

concerning the basis for permit denial;

finding No. 10, CSMC Rules 80–1–11–

17(d) and 80–1–11–19(i), concerning,

respectively, review of permit

applications for a demonstrated pattern

of willful violations, and criteria for

permit approval and denial pertaining

to a demonstrated pattern of willful

violations; finding No. 12, CSMC Rule

80–1–29(d), concerning conditions of

permits; finding No. 13, CSMC Rules

80–1–19–15 (c)(2), (c)(3), (c)(3)(iii), and

(c)(4), concerning performance

standards applicable to coal exploration;

finding No. 15, CSMC Rules 80–1–20–

97 (b) and (c), concerning protection of

fish, wildlife, and related environmental

values; finding No. 16, CSMC Rule 80–

1–20–116(b)(1), concerning the period

of extended liability for demonstration

of revegetation success; finding No. 17,

CSMC Rule 80–1–20–116(b)(1) through

(b)(5), concerning revegetation success

standards; and finding No. 19, CSMC

Rules 80–1–20–117, 117(c)(1), 117(c)(3),

117(c)(4), 117(d)(2), and 117(d)(3)(i),

concerning performance standards for

revegetation success pertaining to trees

and shrubs.

With the requirement that New

Mexico further revise its rules, the

Director approves, as discussed in:

finding No. 5.a, CSMC Rule 80–1–1–5,

concerning definitions for ‘‘Material

damage’’ and ‘‘Occupied residential

dwelling and structures related thereto;’’

and finding No. 7, CSMC Rules 80–1–

9–25 (a) and (c) and 80–1–20–49(e) (1)

through (11), concerning requirements

for ponds, impoundments, and banks,

dams, and embankments that meet or

exceed the Class B or C criteria of

Technical Release No. 60 (210–VI–

TR60, October 1985).

With the requirement that New

Mexico further revise its rules, the

Director removes existing required

amendments and approves, as discussed

in: finding No. 5.b, CSMC Rules 80–1–

20–121 (a) through (d), concerning

general requirements for subsidence

control, CSMC Rules 80–1–20–124 (a)

through (d), concerning surface owner

protection and restoration, replacement,

repair, or compensation of subsidencecaused damages, CSMC Rules 80–1–20–

125 (a) through (e), concerning

rebuttable presumption of causation by

subsidence, and CSMC Rules 80–1–20–

127, concerning the requirement to

adjust the bond amount for subsidence

damage; finding No. 11, CSMC Rules

80–1–11–20 (b)(1), (b)(1)(ii), and (b)(3),

concerning review criteria for

improvidently issued permits; and

finding No. 18, CSMC Rule 80–1–20–

116(b)(6), concerning normal husbandry

practices that may be used during the

extending liability period for

demonstrating revegetation success,

with the exception of the allowance for

the Director of the New Mexico program

to approve husbandry practices that

have not received approval from OSM.

The Federal regulations at 30 CFR

Part 931, codifying decisions concerning

the New Mexico’s program, are being

amended to implement this decision.

This final rule is being made effective

immediately to expedite the State

program amendment process and to

encourage States to bring their programs

into conformity with the Federal

standards without undue delay.

Consistency of State and Federal

standards is required by SMCRA.

Effect of Director’s Decision

Section 503 of SMCRA provides that

a State may not exercise jurisdiction

under SMCRA unless the State program

is approved by the Secretary. Similarly,

30 CFR 732.17(a) requires that any

alteration of an approved State program

be submitted to OSM for review as a

program amendment. Thus, any changes

to the State program are not enforceable

until approved by OSM. The Federal

regulations at 30 CFR 732.17(g) prohibit

any unilateral changes to approved State

programs. In the oversight of the New

Mexico program, the Director will

recognize only the statutes, regulations

and other materials approved by OSM,

together with any consistent

implementing policies, directives and

other materials, and will require the

enforcement by New Mexico of only

such provisions.

IV. Procedural Determinations

1. Executive Order 12866

This rule is exempted from review by

the Office of Management and Budget

(OMB) under Executive Order 12866

(Regulatory Planning and Review).

2. Executive Order 12988

The Department of the Interior has

conducted the reviews required by

section 3 of Executive Order 12988

(Civil Justice Reform) and has

determined that this rule meets the

applicable standards of subsections (a)

and (b) of that section. However, these

standards are not applicable to the

actual language of Tribe or State AMLR

plans and revisions thereof since each

such plan is drafted and promulgated by

a specific Tribe or State, not by OSM.

Decisions on proposed Tribe or State

AMLR plans and revisions thereof

submitted by a Tribe or State are based

on a determination of whether the

submittal meets the requirements of

Title IV of SMCRA (30 U.S.C. 1231–

1243) and the applicable Federal

regulations at 30 CFR Parts 884 and 888.

3. National Environmental Policy Act

No environmental impact statement is

required for this rule since agency

decisions on proposed Tribe or State

AMLR plans and revisions thereof are

categorically excluded from compliance

with the National Environmental Policy

Act (42 U.S.C. 4332) by the Manual of

the Department of the Interior (516 DM

6, appendix 8, paragraph 8.4B(29)).

4. Paperwork Reduction Act

This rule does not contain

information collection requirements that

require approval by OMB under the

Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has

determined that this rule will not have

a significant economic impact on a

substantial number of small entities

under the Regulatory Flexibility Act (5

U.S.C. 601 et seq.). The Tribe or State

submittal which is the subject of this

rule is based upon Federal regulations

for which an economic analysis was

prepared and certification made that

such regulations would not have a

significant economic effect upon a

substantial number of small entities.

Accordingly, this rule will ensure that

existing requirements established by

SMCRA or previously promulgated by

OSM will be implemented by the Tribe

or State. In making the determination as

to whether this rule would have a

significant economic impact, the
26836 Federal Register / Vol. 61, No. 104 / Wednesday, May 29, 1996 / Rules and Regulations

Department relied upon the data and

assumptions in the analysis for the

corresponding Federal regulations.

6. Unfunded Mandates Reform Act

This rule will not impose a cost of

$100 million or more in any given year

on any governmental entity or the

private sector.

List of Subjects in 30 CFR Part 931

Intergovernmental relations, Surface

mining, Underground mining.

Dated: May 7, 1996.

Richard J. Seibel,

Regional Director, Western Regional

Coordinating Center.

For the reasons set out in the

preamble, Title 30, Chapter VII,

Subchapter T of the Code of Federal

Regulations 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 by

adding paragraph (t) to read as follows:

§ 931.15 Approval of amendments to State

regulatory program.

* * * * *

(t) The director approves, with one

exception at CSMC 80–1–20–116(b)(6)

concerning the authorization for the

Director of the New Mexico program to

approve normal husbandry practices

that have not been approved by OSM,

the proposed revisions submitted by

New Mexico on January 22, 1996.

3. Section 931.16 is amended by

removing and reserving paragraphs (a),

(c), (d), (f), (g), (h), (i), (j), (k), (l), (p), (q),

(r), and (s); revising (n); and adding

paragraphs (w),(x),(y), (z), and (aa) to

read as follows:

§ 931.16 Required program amendments.

* * * * *

(n) By February 15, 1994, New Mexico

shall submit to OSM proposed revisions

to CSMC Rule 80–1–20–116(b)(1), or

otherwise amend its program, to require

that all revegetation success standards

and measuring techniques be approved

by the Director of OSM as well as the

Director of MMD.

* * * * *

(w) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–1–5, for the definitions of

‘‘Material damage’’ and ‘‘Occupied

residential dwelling and associated

structures’’ to include references in

these definitions to CSMC Rules 80–1–

20–121, 125, and 127.

(x) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–9–29(e)(5) and CSMC Rules

80–1–20–49(d), (f)(2), and (g)(4) and (5),

to incorporate the requirements

pertaining to those structures that meet

or exceed the Class B or C criteria for

dams in TR–60.

(y) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–11–20(b)(1) to violations

review criteria that the Director of the

New Mexico program would use to

determine what specific unabated

violations, delinquent penalties and

fees, and ownership and control

relationship applied at the time a permit

was issued.

(z) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–20–116(b)(6) to either

(1) Identify selected husbandry

practices and submit them with

documentation verifying that the

proposed practices would be considered

normal in the areas being mined or

(2) State that selected husbandry

practices approved by the Director may

not be implemented prior to approval

from OSM in accordance with the State

program amendment process at 30 CFR

772.17.

(aa) By November 25, 1996, New

Mexico shall submit revisions at CSMC

Rule 80–1–20–127 to clearly require

adjustment of the bond amount when

subsidence-related contamination,

diminution, or interruption to a water

supply occurs.

[FR Doc. 96–13265 Filed 5–28–96; 8:45 am]

BILLING CODE 4310–05–M

30 CFR Part 946

[VA–105–FOR]

Virginia Regulatory Program

AGENCY: Office of Surface Mining

Reclamation and Enforcement (OSM),

Interior.

ACTION: Final rule; approval of

amendment.

SUMMARY: OSM is approving a proposed

amendment to the Virginia permanent

regulatory program (hereinafter referred

to as the Virginia program) under the

Surface Mining Control and

Reclamation Act of 1977 (SMCRA). The

amendment consists of five explanatory

statements written to clarify and assist

the implementation of, and compliance

with, recent changes to §§ 480–03–

19.816/817.102(e) of the Virginia

program relative to the disposal of coal

processing waste and underground

development waste in mined-out areas.

The amendment is intended to address

a required program amendment at 30

CFR 946.16(a).

EFFECTIVE DATE: May 29, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. Robert A. Penn, Director, Big Stone

Gap Field Office, Office of Surface

Mining Reclamation and Enforcement,

1941 Neeley Road, Suite 201,

Compartment 116, Big Stone Gap,

Virginia 24219, Telephone: (703) 523–

4303.

SUPPLEMENTARY INFORMATION:

I. Background on the Virginia Program.

II. Submission of the Amendment.

III. Director’s Findings.

IV. Summary and Disposition of Comments.

V. Director’s Decision.

VI. Procedural Determination.

I. Background on the Virginia Program

SMCRA was passed in 1977 to

address environmental and safety

problems associated with coal mining.

Under SMCRA, OSM works with States

to ensure that coal mines are operated

in a manner that protects citizens and

the environment during mining, that the

land is restored to beneficial use

following mining, and that the effects of

past mining at abandoned coal mines

are mitigated.

Many coal-producing States,

including Virginia, have sought and

obtained approval from the Secretary of

the Interior to carry out SMCRA’s

requirements within their borders. In

becoming the primary enforces of

SMCRA, these ‘‘primacy’’ States accept

a shared responsibility with OSM to

achieve the goals of the Act. Such States

join with OSM in a shared commitment

to the protection of citizens from

abusive mining practices, to be

responsive to their concerns, and to

allow them full access to information

needed to evaluate the effects of mining

on their health, safety, general welfare,

and property. This commitment also

recognizes the need for clear, fair, and

consistently applied policies that are

not unnecessarily burdensome to the

coal industry—producers of an

important sources of our Nation’s

energy.

Under SMCRA, OSM sets minimum

regulatory and reclamation standards.

Each primacy State ensures that coal

mines are operated and reclaimed in

accordance with the standards in its

approved State program. The States

serve as the front-line authorities for

implementation and enforcement of

SMCRA, while OSM maintains a State

performance evaluation role and

provides funding and technical

assistance to States to carry out their

approved programs. OSM also is

responsible for taking direct