New Mexico Regulatory Program, 61680-61685 [E6-17521]
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61680
Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations
purposes of the taxable income limitation
under section 199(a)(1)(B), just as in Example
1. Thus, for purposes of determining B’s
taxable income limitation in 2011, B is
considered to have taxable income of $1,500,
and B has a section 199 deduction of 9% of
$1,500, or $135.
Example 4. Corporations A, B, and C are
the only members of an EAG. A, B, and C are
all calendar year taxpayers and they do not
join in the filing of a consolidated Federal
income tax return. None of the EAG members
(A, B, or C) had taxable income or loss prior
to 2010. In 2010, A has QPAI of $2,000 and
taxable income of $1,000, B has QPAI of
$1,000 and an NOL of $1,000, and C has
QPAI of $1,000 and an NOL of $3,000. In
2011, prior to the NOL deduction allowed
under section 172, A and B each has taxable
income of $200 and C has taxable income of
$5,000. In determining the EAG’s section 199
deduction for 2010, A’s QPAI of $2,000, B’s
QPAI of $1,000, and C’s QPAI of $1,000 are
aggregated, as are A’s taxable income of
$1,000, B’s NOL of $1,000, and C’s NOL of
$3,000. Thus, for 2010, the EAG has QPAI of
$4,000 and taxable income of ($3,000). In
determining the EAG’s taxable income
limitation under section 199(a)(1)(B) in 2011,
$1,000 of B’s and C’s aggregate NOLs in 2010
of $4,000 are considered to have been used
in 2010 to reduce the EAG’s taxable income
to $0, in proportion to their NOLs. Thus,
$250 of B’s NOL from 2010 ($1,000 x $1,000/
$4,000) and $750 of C’s NOL from 2010
($1,000 x $3,000/$4,000) are deemed to have
been used in 2010. The remaining $750 of B’s
NOL and the remaining $2,250 of C’s NOL
are not deemed to have been used because so
doing would have reduced the EAG’s taxable
income in 2010 below $0. Accordingly, for
purposes of determining the EAG’s taxable
income limitation in 2011, B is deemed to
have a $750 NOL carryover from 2010 and C
is deemed to have a $2,250 NOL carryover
from 2010. Thus, for purposes of determining
the EAG’s taxable income limitation, B’s
taxable income in 2011 is $0 and C’s taxable
income in 2011 is $2,750, which are
aggregated with A’s $200 taxable income. B’s
unused NOL carryover from 2010 cannot be
used to reduce either A’s or C’s 2011 taxable
income. Thus, the EAG’s taxable income
limitation in 2011 is $2,950, A’s taxable
income of $200 plus B’s taxable income of $0
plus C’s taxable income of $2,750.
Par. 11. Section 1.199–8 is amended
by adding new paragraphs (i)(5) and (6)
to read as follows:
I
§ 1.199–8
Other rules.
PWALKER on PRODPC60 with RULES
*
*
*
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*
(i) * * *
(5) Tax Increase Prevention and
Reconciliation Act of 2005. [Reserved].
For further guidance, see § 1.199–
8T(i)(5).
(6) Losses used to reduce taxable
income of expanded affiliated group.
[Reserved]. For further guidance, see
§ 1.199–8T(i)(6).
I Par. 12. Section 1.199–8T is amended
by adding new paragraphs (i)(5) and (6)
to read as follows:
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§ 1.199–8T
Other rules (temporary).
*
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(i) * * *
(5) Tax Increase Prevention and
Reconciliation Act of 2005. Sections
1.199–2T(e)(2), 1.199–3T(i)(7) and (8),
and 1.199–5T are applicable for taxable
years beginning on or after October 19,
2006. A taxpayer may apply §§ 1.199–
2T(e)(2), 1.199–3T(i)(7) and (8), and
1.199–5T to taxable years beginning
after May 17, 2006, and before October
19, 2006 regardless of whether the
taxpayer otherwise relied upon Notice
2005–14 (2005–1 CB 498) (see
§ 601.601(d)(2) of this chapter), the
provisions of REG–105847–05 (2005–47
IRB 987) (see § 601.601(d)(2) of this
chapter), or §§ 1.199–1 through 1.199–8.
The applicability of §§ 1.199–2T(e)(2),
1.199–3T(i)(7) and (8), and 1.199–5T
expires on October 19, 2009.
(6) Losses used to reduce taxable
income of expanded affiliated group.
Section 1.199–7T(b)(4) is applicable for
taxable years beginning on or after
October 19, 2006. A taxpayer may apply
§ 1.199–7T(b)(4) to taxable years
beginning after December 31, 2004, and
before October 19, 2006 regardless of
whether the taxpayer otherwise relied
upon Notice 2005–14 (2005–1 CB 498)
(see § 601.601(d)(2) of this chapter), the
provisions of REG–105847–05 (2005–47
IRB 987) (see § 601.601(d)(2) of this
chapter), or §§ 1.199–1 through 1.199–9.
The applicability of § 1.199–7T(b)(4)
expires on October 19, 2009.
Mark E. Matthews,
Deputy Commissioner for Services and
Enforcement.
Approved: October 12, 2006.
Eric Solomon,
Acting Deputy Assistant Secretary of the
Treasury.
[FR Doc. E6–17402 Filed 10–18–06; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 931
[NM–045–FOR]
New Mexico Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
SUMMARY: We are approving an
amendment to the New Mexico
regulatory program (the ‘‘New Mexico
program’’) under the Surface Mining
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Control and Reclamation Act of 1977
(SMCRA or the Act). New Mexico
proposed revisions to and additions of
rules and revisions to statutes
concerning the administrative appeals
process and revisions to statutes
concerning an extension of time for the
authority of the Coal Surface Mining
Commission (Commission). New
Mexico revised its program to be
consistent with SMCRA and the
corresponding Federal regulations,
streamline and clarify the
administrative and judicial appeals
process and ensure continuing authority
for the New Mexico program.
EFFECTIVE DATE: October 19, 2006.
FOR FURTHER INFORMATION CONTACT:
Willis Gainer, Telephone: (505) 248–
5096, E-mail address:
wgainer@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and
Enforcement’s (OSM) Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
I. Background on the New Mexico
Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
and non-Indian lands within its borders
by demonstrating that its State program
includes, among other things, ‘‘a State
law which provides for the regulation of
surface coal mining and reclamation
operations in accordance with the
requirements of this Act * * *; and
rules and regulations consistent with
regulations issued by the Secretary
pursuant to this Act.’’ See 30 U.S.C.
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
to include the changes made at its own
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initiative to (1) Streamline and clarify
the administrative and judicial appeals
process and (2) extend the time for the
authority of the Commission to operate.
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.
During our review of the amendment,
we identified one non-substantive
editorial concern with an incorrect
statutory citation referenced in a
proposed rule. We notified New Mexico
of this concern by letter dated March 24,
2006 (Administrative Record No. NM–
887).
New Mexico responded in a letter
dated March 27, 2006, by sending us a
revised amendment (Administrative
Record No. NM–888). New Mexico
responded with a revision to correct the
statutory cite, from the New Mexico
Surface Mining Act of 1978 (NMSA),
section 69–25A–30.G to NMSA, section
69–25A–29.A, referenced at proposed
rule New Mexico Annotated Code
(NMAC), section 19.8.12.1203.K.
Because the correction was editorial in
nature and did not substantively revise
New Mexico’s proposed amendment, we
did not reopen the opportunity for
public comment and we are proceeding
with the final rule Federal Register
document.
III. OSM’s Findings
Following are the findings we made
concerning the amendment under
SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are
approving the amendment as described
below.
PWALKER on PRODPC60 with RULES
A. Minor Revisions to New Mexico’s
Rules and Statute
New Mexico proposed minor
wording, editorial, punctuation,
grammatical, and recodification changes
to the following previously-approved
statutes in NMSA, and rules in the
NMAC.
NMSA, sections 69–25A–18.A, B, C, D
and F concerning the decisions of the
Director of the New Mexico program
and appeals;
NMSA, sections 69–25A–29.A, B, C, D
and F concerning the administrative
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review of a notice or order by the
Director of the New Mexico program;
NMAC, sections 19.8.11.1100.A(3), D,
and D(2), concerning public notices of
filing of permit applications;
NMAC, section 19.8.11.1101.C,
concerning opportunity for submission
of written comments on permit
applications;
NMAC, sections 19.8.11.1102.A and
B(2), concerning the right to file written
objections;
NMAC, sections 19.8.11.1103.A(3), B,
B(1), D, E(1), and F, concerning hearings
and conferences;
NMAC, section 19.8.11.1104.B,
concerning public availability of
information in permit applications on
file with the Director;
NMAC, sections 19.8.11.1105.C(2), D,
E, and F, concerning review of permit
applications;
NMAC, sections 19.8.11.1106.C, D(3),
F, G(1) and (2), and N, concerning
criteria for permit approval or denial;
NMAC, sections 19.8.11.1107.A, B,
B(1), B(1)(b), B(3), C, D, E, and F,
concerning general procedures for
improvidently issued permits;
NMAC, section 19.8.11.1108.B,
concerning existing structures and
criteria for permit approval or denial;
NMAC, sections 19.8.11.1109.A(4), B,
B(1) and (2), B(2)(b), B(3), and D,
concerning permit approval or denial
actions;
NMAC, section 19.8.11.1110.A(1),
concerning the rescission process for
improvidently issued permits;
NMAC, section 19.8.11.1111.B,
concerning permit terms;
NMAC, section 19.8.11.1113.C(2),
concerning conditions of permit for
environment, public health and safety;
NMAC, section 19.8.11.1114,
concerning conformance of permit;
NMAC, sections 19.8.11.1115.A, B,
and C, concerning verification of
ownership or control application
information;
NMAC, sections 19.8.11.1116.B and
B(2)(b), concerning review of ownership
or control and violation information;
NMAC, sections 19.8.11.1117.A, A(1),
(2) and (3), B, C, D, D(1) and (2), and
D(2)(a) and (b), concerning procedures
for challenging ownership or control
links shown in the applicant violator
system;
NMAC, sections 19.8.11.1118.B, B(1),
(2) and (3), B(3)(1), C, C(1)(a) through
(c), and C(2), concerning standards for
challenging ownership or control links
and the status of violations; and
NMAC, sections 19.8.12.1203.A
through J and L, concerning formal
review of notices of violations, cessation
orders and show cause orders.
Because these changes are minor, we
find that they will not make New
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61681
Mexico’s rules and statutes less effective
than the corresponding Federal
regulations or less stringent than
SMCRA.
B. Revisions to New Mexico’s Statutes
and Rules That Require an Explanation
and Basis for Approval
The Federal regulations at 30 CFR
732.15(b) require, among other things,
that a State program include provisions
that provide for (1) Administrative
review of State program actions, in
accordance with section 525 of SMCRA
and 30 CFR Subchapter L, and (2)
judicial review of State program actions
in accordance with State law, as
provided in section 526(e) of SMCRA,
except that judicial review of State
enforcement actions shall be in
accordance with section 526 of SMCRA.
The Federal definitions at 30 CFR
730.5 set forth the standards for review
of State program provisions which must
be consistent with and in accordance
with the Act and the counterpart
Federal regulations. OSM defines
consistent with and in accordance with
to mean (a) with regard to SMCRA, the
State laws and regulations are no less
stringent than, meet the minimum
requirements of and include all
applicable provisions of the Act and (b)
with regard to the Federal regulations,
the State laws and regulations are no
less effective than the Federal
regulations in meeting the requirements
of SMCRA.
As discussed below, New Mexico’s
proposed revisions of NMSA and the
State’s implementing regulations are in
accordance with the corresponding
sections of SMCRA and consistent with
the Federal regulations.
1. NMSA, Section 69–25A–29.G, and
NMAC, Section 19.8.12.1201,
Elimination of Appeals for Review by
the Commission of Decisions of the
Director of the New Mexico Program
At its own initiative, New Mexico
proposes to eliminate the provisions in
NMSA at 69–25A–29.G and in NMAC,
section 19.8.12.1201 that require
administrative review by the
Commission of decisions by the Director
of the New Mexico program.
States must provide for administrative
review of State program actions, in
accordance with section 525 of SMCRA
and 30 CFR subchapter L. States must
also have a permit system which
provides for review of decisions
consistent with 30 CFR subchapter G.
Section 525 of SMCRA and subchapter
G require one level of administrative
review. New Mexico is retaining its
statutory provisions for administrative
review of enforcement actions by the
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PWALKER on PRODPC60 with RULES
Director of the New Mexico program in
NMSA section 69–25A–29 and
permitting decisions in NMSA section
69–25A–18. New Mexico also is
retaining regulations at NMAC, section
19.8.12.1203, for administrative review
of enforcement actions by the Director
of the New Mexico program. The
elimination of administrative review by
the Commission leaves in place existing
provisions for administrative review
conducted by the Director of the New
Mexico program for decisions
concerning permitting and enforcement
actions.
OSM finds that New Mexico’s
proposed revisions concerning
administrative review at NMSA, section
69–25A–29.G, and NMAC, section
19.8.12.1201, are consistent with the
Act and the Federal regulations, and the
revisions will not make New Mexico’s
statutes and rules less stringent than
section 525 of SMCRA or less effective
than 30 CFR subchapters L and G.
2. NMSA, Section 69–25A–30.A, and
NMAC, Sections 19.8.12.1202.A and
19.8.12.1203.K, Appeals of Decisions by
the Director of the New Mexico Program
to the State District Court
New Mexico proposes revisions of
NMSA, section 69–25A–30.A,
concerning judicial review, to clarify
that appeals to a State District Court
may be made by a party who is
aggrieved by a decision of the Director,
rather than the Commission, of the New
Mexico program. Likewise, New Mexico
proposes to revise NMAC, sections
10.8.12.1202.A and 19.8.12.1203.K,
concerning judicial review, to state
respectively that (1) A party to a
proceeding before the Director who is
aggrieved by a Director’s decision issued
after a hearing may obtain a review of
that decision pursuant to NMSA section
39–3–1.1, and (2) the State District
Court may review decisions concerning
formal review of notices of violation,
cessation orders, and show cause orders
issued by the Director of the New
Mexico program, pursuant to Subsection
G of section 69–25A–30, NMSA, and
NMAC 19.8.12.1202.
Existing NMAC 19.8.12.1202.A
through D established procedures for
judicial review of administrative
decisions under the New Mexico
program. New Mexico proposes to
eliminate the procedures in NMAC
19.8.12.1202.A through D and revise
NMAC 19.8.12.1202.A to require that
appeals to State District Court will be
subject to section 39–3–1.1 of the
NMSA. Section 39–3–1.1 is applicable
to all New Mexico State agencies for
appeal of final agency decisions to the
State District Court and covers
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procedures for application and scope of
review.
The Federal regulation at 30 CFR
732.15(b)(15) requires State programs to
provide for judicial review of State
program actions in accordance with
State laws, as provided in section 526(e)
of SMCRA, except that judicial review
of State enforcement actions shall be in
accordance with section 526 of SMCRA.
Section 526(e) of SMCRA requires that
actions of the State regulatory authority
pursuant to an approved State program
shall be subject to judicial review by a
court of competent jurisdiction in
accordance with State law. Sections
526(a) through (d) of SMCRA establish
procedures for such judicial review of
enforcement actions. Section 526(a)
specifies that actions constituting
rulemaking and orders or decisions in a
civil penalty proceeding, issued by the
Secretary of the Interior, may be subject
to judicial review; it also provides the
location and timeframe for filing of a
petition for judicial review. Section
526(b) specifies the actions of the court
hearing such a petition. Section 526(c)
specifies the circumstances necessary
for a court to grant temporary relief in
the case of a proceeding to review any
order or decision for cessation of coal
mining and reclamation operations.
Section 526(d) specifies that the
commencement of a proceeding for
judicial review shall not, unless
specifically ordered by the court,
operate as a stay of the action, order, or
decision of the Secretary. There are no
Federal regulations that set forth
procedures for judicial review.
The procedures set forth in NMSA
39–3–1.1 apply to judicial review of any
final decision by a New Mexico agency,
and among other things, specify how
final agency decisions must be
documented and published, provide for
appeal of a decision by any person
aggrieved by the decision, specify the
actions that may be taken by the district
court, and provide for review of the
State District Court decision by a party
to the appeal.
The procedures set forth by New
Mexico in NMSA 39–3–1.1 provide for
similar procedures concerning judicial
review set forth in SMCRA at sections
526(a) through (d) and demonstrate the
ability for a person to obtain judicial
review of all agency decisions as
required by SMCRA at section 526(e).
These proposed revisions are also
consistent with New Mexico’s revisions
discussed in finding B.1 above that
eliminate administrative review by the
Commission of decisions, other than
those concerning promulgation of rules,
by the Director. (See finding No. 3
below for New Mexico’s provisions
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concerning judicial review of agency
rulemaking decisions.)
Therefore, OSM finds that the
proposed revisions concerning judicial
review at NMSA, section 69–25A–30.A,
and at NMAC, sections 10.8.12.1202.A
and 19.8.12.1203.K are consistent with
the Act and the Federal regulations and
the revisions will not make New
Mexico’s statutes and rules less
stringent than section 526 of SMCRA or
less effective than 30 CFR subchapters
L and G.
3. NMAC, Section 19.8.12.1202.B,
Judicial Review of Decisions by the
Commission Concerning Adoption of a
Rule, Amendment of a Rule or Repeal of
a Rule
Existing NMAC 19.8.12.1202.E
provides that persons aggrieved by a
rule or amendment or repeal of a rule
the Commission adopts may appeal to
the State Court of Appeals. The existing
regulation also includes procedures and
timeframes for such an appeal as well as
the standards for review by the court. As
described in finding B.2 above, New
Mexico proposes to eliminate existing
NMAC 19.8.12.1202.B, C and D so that
New Mexico’s existing NMAC
19.8.12.1202.E becomes NMAC
19.8.12.1202.B. New Mexico proposes to
eliminate the existing procedures,
timeframe and standards in proposed
NMAC 19.8.12.1202.B and instead
proposes to cross-reference the statutory
provision at NMSA, Subsection B of 69–
25A–30, which sets forth the same
procedures, timeframes and standards
for judicial review.
30 CFR 732.15(b)(15) requires that
State programs provide for judicial
review of State program actions in
accordance with State law, as provided
in section 526(e) of the Act. Section
526(e) states that actions of the State
regulatory authority shall be subject to
judicial review by a court of competent
jurisdiction in accordance with State
law. There are no Federal regulations for
section 526(e) of the Act.
OSM finds that New Mexico’s
proposed NMAC 19.8.12.1202.B,
concerning judicial review of
rulemaking by the Commission, and the
reference to NMSA, subsection B of 69–
25A–30, are in accordance with the
requirements of section 526(e) of
SMCRA for judicial review.
4. NMSA, Section 69–25A–29.F,
Administrative Review of a Notice or
Order by the Director of the New
Mexico Program
New Mexico proposes to revise
NMSA, section 69–25A–29.F,
concerning administrative review, by
deleting references to the Commission.
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With these revisions, New Mexico
removed authority from the Commission
and left authority with the Director of
the New Mexico program 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.
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.
As discussed in finding No. B.1.
above, New Mexico’s proposed
revisions to delete the additional
administrative review by the
Commission of the Director’s decisions,
is consistent with section 525 of
SMCRA. OSM finds that New Mexico’s
proposed revisions to NMSA, section
69–25A–29.F, deleting references to the
Commission, are consistent with and no
less stringent than section 525(e) of
SMCRA.
5. NMSA, Section 69–25A–36,
Termination of Agency Life
New Mexico proposes revisions of
NMSA at section 69–25A–36,
concerning termination of agency life, to
extend the authority of the Commission
to operate according to the provisions of
NMSA from July 1, 2005, until July 1,
2012.
The Commission, created in NMSA at
section 69–25A–1, meets at least once a
year to adopt, amend and repeal rules.
SMCRA, at section 503(a), and the
Federal regulation at 30 CFR 732.15(a)
requires that the State program provide
for the State to carry out the provisions
and meet the purposes of SMCRA
within the State and that the State’s
laws and regulations are in accordance
with the provisions of SMCRA. Because
New Mexico’s proposed revision
extends the authority of the Commission
to operate until July 1, 2012, and
therefore enables rulemaking for the
New Mexico program, OSM approves
the proposed revision.
IV. Summary and Disposition of
Comments
PWALKER on PRODPC60 with RULES
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),
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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 at
NMAC, section 19.8.12.1202.A,
concerning judicial review of final
agency decisions, is discussed below.
The Governor raised a concern that
the proposed revision to NMAC, section
19.8.12.1202.A, would limit a person’s
ability to challenge agency decisions.
New Mexico’s proposed revisions at
NMAC, sections 19.8.12.1201 and
19.8.12.1202.A eliminate the need for a
second administrative hearing before
the Commission prior to allowing an
appeal to the State District Court; this
rule revision reflects the same statutory
revision of the NMSA at section 69–
25A–29.G.
As discussed in finding No. B.2
above, New Mexico’s proposed
elimination of the opportunity for a
second administrative hearing is
consistent with the counterpart Federal
regulations at 30 CFR 775.13.
The Governor also expressed concern
that because only certain agency
decisions can be the subject of an
administrative hearing, some decisions
may not therefore be appealed to the
State District Court.
As discussed in finding B.1 above,
New Mexico’s proposed revision of
NMSA, section 69–25A–30.A, and
NMAC, sections 19.8.12.1202.A and
19.8.12.1203.K, provide for appeals of
decisions by the Director to the State
District Court. New Mexico’s NMSA,
section 69–25A–29, provides for
administrative review of enforcement
actions and NMSA, section 69–25A–18,
provides for administrative review of
permitting decisions. New Mexico is
also retaining regulations at NMAC,
section 19.8.12.1203, for administrative
review of enforcement actions by the
Director. The elimination of
administrative review by the
Commission leaves in place existing
provisions for administrative review
conducted by the Director for decisions
concerning both permitting and
enforcement actions and appeal of these
decisions to the State District Court.
Therefore, New Mexico’s proposed
revision is consistent with and in
accordance with section 526 of SMCRA
and 30 CFR subchapters L and G.
The Governor also correctly noted
that the existing New Mexico rule at
NMAC, section 19.8.12.1200.A, allows
an administrative appeal of, among
other final decisions made by the
Director of the New Mexico program, a
decision concerning a permit
modification; this opportunity for
review has not been revised. OSM notes
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61683
that New Mexico’s allowance for an
administrative appeal of a decision
concerning a permit modification at
NMAC section 19.8.12.1200.A is not
specifically required under the
counterpart Federal regulation at 30
CFR 775.11(a) (see OSM’s approval of
NMAC, section 19.8.12.1200.A, on April
13, 2004, 69 FR 19321, at 19322, finding
No. C.2.).
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.
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, 2006, 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 not affect cultural
resources (Administrative Record No.
NM–881). We did not receive a response
from the ACHP.
V. OSM’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,
E:\FR\FM\19OCR1.SGM
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61684
Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations
2005) and rule revisions as 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).
PWALKER on PRODPC60 with RULES
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
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20:58 Oct 18, 2006
Jkt 211001
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.).
PO 00000
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Fmt 4700
Sfmt 4700
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
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.
E:\FR\FM\19OCR1.SGM
19OCR1
Federal Register / Vol. 71, No. 202 / Thursday, October 19, 2006 / Rules and Regulations
Dated: September 11, 2006.
Allen D. Klein,
Regional Director, Western Region.
PART 931—NEW MEXICO
1. The authority citation for part 931
continues to read as follows:
I
For the reasons set out in the
preamble, 30 CFR part 931 is amended
as set forth below:
I
Authority: 30 U.S.C. 1201 et seq.
2. Section 931.15 is amended in the
table by adding a new entry in
I
61685
chronological order by ‘‘Date of final
publication’’ to read as follows:
§ 931.15 Approval of New Mexico
regulatory program amendments.
*
*
*
*
*
Original amendment
submission date
Date of final
publication
Citation/description
*
November 18, 2005, as
revised on March 27,
2006.
*
October 19, 2006 ...
*
*
*
*
*
NMSA, sections 69–25A–18.A, B, C, D and F, concerning the decisions of the Director and appeals; NMSA, sections 69–25A–29.A, B, C, D, and F, concerning the administrative review of
a notice or order by the Director; NMSA, sections 69–25A–29.G, concerning deletion of statutes allowing for review by the Commission of decisions of the Director; NMSA, section 69–
25A–30.A, concerning judicial review of final decisions by the Director; NMSA, sections 69–
25A–36, concerning termination of agency life; NMAC, sections 19.8.11.1100.A(3), D, and
D(2), concerning public notices of filing of permit applications; NMAC, section
19.8.11.1101.C, concerning opportunity for submission of written comments on permit applications; NMAC, sections 19.8.11.1102.A and B(2), concerning the right to file written objections; NMAC, sections 19.8.11.1103.A(3), B, B(1), D, E(1), and F, concerning hearings and
conferences; NMAC, section 19.8.11.1104.B, concerning public availability of information in
permit applications on file with the Director; NMAC, sections 19.8.11.1105.C(2), D, E, and F,
concerning review of permit applications; NMAC, sections 19.8.11.1106.C, D(3), F, G(1) and
(2), and N, concerning criteria for permit approval or denial; NMAC, sections 19.8.11.1107.A,
B, B(1), B(1)(b), B(3), C, D, E, and F, concerning general procedures for improvidently issued
permits; NMAC, section 19.8.11.1108.B, concerning existing structures and criteria for permit
approval or denial; NMAC, sections 19.8.11.1109.A(4), B, B(1) and (2), B(2)(b), B(3), and D,
concerning permit approval or denial actions; NMAC, section 19.8.11.1110.A(1), concerning
the rescission process for improvidently issued permits; NMAC, section 19.8.11.1111.B, concerning permit terms; NMAC, section 19.8.11.1113.C(2), concerning conditions of permit for
environment, public health and safety; NMAC, section 19.8.11.1114, concerning conformance
of permit; NMAC, sections 19.8.11.1115.A, B, and C, concerning verification of ownership or
control application information; NMAC, sections 19.8.11.1116.B and B(2)(b), concerning review of ownership or control and violation information; NMAC, sections 19.8.11.1117.A, A(1),
(2) and (3), B, C, D, D(1) and (2), and D(2)(a) and (b), concerning procedures for challenging
ownership or control links shown in the applicant violator system; NMAC, sections
19.8.11.1118.B, B(1), (2) and (3), B(3)(1), C, C(1)(a) through (c), and C(2), concerning standards for challenging ownership or control links and the status of violations; NMAC, section
19.8.12.1201, deletion of rules allowing for review by the Commission of decisions of the Director; NMAC, sections 19.8.12.1202.A, concerning judicial review of final decisions by the
Director; NMAC, sections 19.8.12.1202.B, concerning judicial review of decisions by the
Commission; and NMAC, sections 19.8.12.1203.A through L, concerning formal review of notices of violations, cessation orders, and show cause orders.
[FR Doc. E6–17521 Filed 10–18–06; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF DEFENSE
Department of the Navy
32 CFR Part 706
Certifications and Exemptions Under
the International Regulations for
Preventing Collisions at Sea, 1972
Department of the Navy, DoD.
Final rule.
AGENCY:
PWALKER on PRODPC60 with RULES
ACTION:
SUMMARY: The Department of the Navy
is amending its certifications and
exemptions under the International
Regulations for Preventing Collisions at
Sea, 1972 (72 COLREGS), to reflect that
the Deputy Assistant Judge Advocate
General (Admiralty and Maritime Law)
VerDate Aug<31>2005
20:58 Oct 18, 2006
Jkt 211001
has determined that USS HAWAII (SSN
776) is a vessel of the Navy which, due
to its special construction and purpose,
cannot fully comply with certain
provisions of the 72 COLREGS without
interfering with its special function as a
naval ship. The intended effect of this
rule is to warn mariners in waters where
72 COLREGS apply.
DATES: Effective Date: October 5, 2006.
FOR FURTHER INFORMATION CONTACT:
Commander C. J. Spain, JAGC, U.S.
Navy, Deputy Assistant Judge Advocate
General (Admiralty and Maritime Law),
Office of the Judge Advocate General,
Department of the Navy, 1322 Patterson
Ave., SE., Suite 3000, Washington Navy
Yard, DC 20374–5066, telephone 202–
685–5040.
SUPPLEMENTARY INFORMATION: Pursuant
to the authority granted in 33 U.S.C.
1605, the Department of the Navy
amends 32 CFR Part 706. This
PO 00000
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amendment provides notice that the
Deputy Assistant Judge Advocate
General (Admiralty and Maritime Law),
under authority delegated by the
Secretary of the Navy, has certified that
USS HAWAII(SSN 776) is a vessel of the
Navy which, due to its special
construction and purpose, cannot fully
comply with the following specific
provisions of 72 COLREGS without
interfering with its special function as a
naval ship: Rule 21(c) pertaining to the
arc of visibility of the stern light; Annex
I, section 2(a)(i), pertaining to the height
of the masthead light; Annex I, section
2(k) pertaining to the height and relative
positions of the anchor lights; and
Annex I, section 3(b), pertaining to the
location of the sidelights. The Deputy
Assistant Judge Advocate General
(Admiralty and Maritime Law) has also
certified that the lights involved are
located in closest possible compliance
E:\FR\FM\19OCR1.SGM
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]]>Agencies
[Federal Register Volume 71, Number 202 (Thursday, October 19, 2006)]
[Rules and Regulations]
[Pages 61680-61685]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-17521]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[NM-045-FOR]
New Mexico Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment.
-----------------------------------------------------------------------
SUMMARY: We are approving 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). New Mexico proposed
revisions to and additions of rules and revisions to statutes
concerning the administrative appeals process and revisions to statutes
concerning an extension of time for the authority of the Coal Surface
Mining Commission (Commission). New Mexico revised its program to be
consistent with SMCRA and the corresponding Federal regulations,
streamline and clarify the administrative and judicial appeals process
and ensure continuing authority for the New Mexico program.
EFFECTIVE DATE: October 19, 2006.
FOR FURTHER INFORMATION CONTACT: Willis Gainer, Telephone: (505) 248-
5096, E-mail address: wgainer@osmre.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the New Mexico Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the New Mexico Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 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 to include the changes
made at its own
[[Page 61681]]
initiative to (1) Streamline and clarify the administrative and
judicial appeals process and (2) extend the time for the authority of
the Commission to operate.
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.
During our review of the amendment, we identified one non-
substantive editorial concern with an incorrect statutory citation
referenced in a proposed rule. We notified New Mexico of this concern
by letter dated March 24, 2006 (Administrative Record No. NM-887).
New Mexico responded in a letter dated March 27, 2006, by sending
us a revised amendment (Administrative Record No. NM-888). New Mexico
responded with a revision to correct the statutory cite, from the New
Mexico Surface Mining Act of 1978 (NMSA), section 69-25A-30.G to NMSA,
section 69-25A-29.A, referenced at proposed rule New Mexico Annotated
Code (NMAC), section 19.8.12.1203.K. Because the correction was
editorial in nature and did not substantively revise New Mexico's
proposed amendment, we did not reopen the opportunity for public
comment and we are proceeding with the final rule Federal Register
document.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment as described below.
A. Minor Revisions to New Mexico's Rules and Statute
New Mexico proposed minor wording, editorial, punctuation,
grammatical, and recodification changes to the following previously-
approved statutes in NMSA, and rules in the NMAC.
NMSA, sections 69-25A-18.A, B, C, D and F concerning the decisions
of the Director of the New Mexico program and appeals;
NMSA, sections 69-25A-29.A, B, C, D and F concerning the
administrative review of a notice or order by the Director of the New
Mexico program;
NMAC, sections 19.8.11.1100.A(3), D, and D(2), concerning public
notices of filing of permit applications;
NMAC, section 19.8.11.1101.C, concerning opportunity for submission
of written comments on permit applications;
NMAC, sections 19.8.11.1102.A and B(2), concerning the right to
file written objections;
NMAC, sections 19.8.11.1103.A(3), B, B(1), D, E(1), and F,
concerning hearings and conferences;
NMAC, section 19.8.11.1104.B, concerning public availability of
information in permit applications on file with the Director;
NMAC, sections 19.8.11.1105.C(2), D, E, and F, concerning review of
permit applications;
NMAC, sections 19.8.11.1106.C, D(3), F, G(1) and (2), and N,
concerning criteria for permit approval or denial;
NMAC, sections 19.8.11.1107.A, B, B(1), B(1)(b), B(3), C, D, E, and
F, concerning general procedures for improvidently issued permits;
NMAC, section 19.8.11.1108.B, concerning existing structures and
criteria for permit approval or denial;
NMAC, sections 19.8.11.1109.A(4), B, B(1) and (2), B(2)(b), B(3),
and D, concerning permit approval or denial actions;
NMAC, section 19.8.11.1110.A(1), concerning the rescission process
for improvidently issued permits;
NMAC, section 19.8.11.1111.B, concerning permit terms;
NMAC, section 19.8.11.1113.C(2), concerning conditions of permit
for environment, public health and safety;
NMAC, section 19.8.11.1114, concerning conformance of permit;
NMAC, sections 19.8.11.1115.A, B, and C, concerning verification of
ownership or control application information;
NMAC, sections 19.8.11.1116.B and B(2)(b), concerning review of
ownership or control and violation information;
NMAC, sections 19.8.11.1117.A, A(1), (2) and (3), B, C, D, D(1) and
(2), and D(2)(a) and (b), concerning procedures for challenging
ownership or control links shown in the applicant violator system;
NMAC, sections 19.8.11.1118.B, B(1), (2) and (3), B(3)(1), C,
C(1)(a) through (c), and C(2), concerning standards for challenging
ownership or control links and the status of violations; and
NMAC, sections 19.8.12.1203.A through J and L, concerning formal
review of notices of violations, cessation orders and show cause
orders.
Because these changes are minor, we find that they will not make
New Mexico's rules and statutes less effective than the corresponding
Federal regulations or less stringent than SMCRA.
B. Revisions to New Mexico's Statutes and Rules That Require an
Explanation and Basis for Approval
The Federal regulations at 30 CFR 732.15(b) require, among other
things, that a State program include provisions that provide for (1)
Administrative review of State program actions, in accordance with
section 525 of SMCRA and 30 CFR Subchapter L, and (2) judicial review
of State program actions in accordance with State law, as provided in
section 526(e) of SMCRA, except that judicial review of State
enforcement actions shall be in accordance with section 526 of SMCRA.
The Federal definitions at 30 CFR 730.5 set forth the standards for
review of State program provisions which must be consistent with and in
accordance with the Act and the counterpart Federal regulations. OSM
defines consistent with and in accordance with to mean (a) with regard
to SMCRA, the State laws and regulations are no less stringent than,
meet the minimum requirements of and include all applicable provisions
of the Act and (b) with regard to the Federal regulations, the State
laws and regulations are no less effective than the Federal regulations
in meeting the requirements of SMCRA.
As discussed below, New Mexico's proposed revisions of NMSA and the
State's implementing regulations are in accordance with the
corresponding sections of SMCRA and consistent with the Federal
regulations.
1. NMSA, Section 69-25A-29.G, and NMAC, Section 19.8.12.1201,
Elimination of Appeals for Review by the Commission of Decisions of the
Director of the New Mexico Program
At its own initiative, New Mexico proposes to eliminate the
provisions in NMSA at 69-25A-29.G and in NMAC, section 19.8.12.1201
that require administrative review by the Commission of decisions by
the Director of the New Mexico program.
States must provide for administrative review of State program
actions, in accordance with section 525 of SMCRA and 30 CFR subchapter
L. States must also have a permit system which provides for review of
decisions consistent with 30 CFR subchapter G. Section 525 of SMCRA and
subchapter G require one level of administrative review. New Mexico is
retaining its statutory provisions for administrative review of
enforcement actions by the
[[Page 61682]]
Director of the New Mexico program in NMSA section 69-25A-29 and
permitting decisions in NMSA section 69-25A-18. New Mexico also is
retaining regulations at NMAC, section 19.8.12.1203, for administrative
review of enforcement actions by the Director of the New Mexico
program. The elimination of administrative review by the Commission
leaves in place existing provisions for administrative review conducted
by the Director of the New Mexico program for decisions concerning
permitting and enforcement actions.
OSM finds that New Mexico's proposed revisions concerning
administrative review at NMSA, section 69-25A-29.G, and NMAC, section
19.8.12.1201, are consistent with the Act and the Federal regulations,
and the revisions will not make New Mexico's statutes and rules less
stringent than section 525 of SMCRA or less effective than 30 CFR
subchapters L and G.
2. NMSA, Section 69-25A-30.A, and NMAC, Sections 19.8.12.1202.A and
19.8.12.1203.K, Appeals of Decisions by the Director of the New Mexico
Program to the State District Court
New Mexico proposes revisions of NMSA, section 69-25A-30.A,
concerning judicial review, to clarify that appeals to a State District
Court may be made by a party who is aggrieved by a decision of the
Director, rather than the Commission, of the New Mexico program.
Likewise, New Mexico proposes to revise NMAC, sections 10.8.12.1202.A
and 19.8.12.1203.K, concerning judicial review, to state respectively
that (1) A party to a proceeding before the Director who is aggrieved
by a Director's decision issued after a hearing may obtain a review of
that decision pursuant to NMSA section 39-3-1.1, and (2) the State
District Court may review decisions concerning formal review of notices
of violation, cessation orders, and show cause orders issued by the
Director of the New Mexico program, pursuant to Subsection G of section
69-25A-30, NMSA, and NMAC 19.8.12.1202.
Existing NMAC 19.8.12.1202.A through D established procedures for
judicial review of administrative decisions under the New Mexico
program. New Mexico proposes to eliminate the procedures in NMAC
19.8.12.1202.A through D and revise NMAC 19.8.12.1202.A to require that
appeals to State District Court will be subject to section 39-3-1.1 of
the NMSA. Section 39-3-1.1 is applicable to all New Mexico State
agencies for appeal of final agency decisions to the State District
Court and covers procedures for application and scope of review.
The Federal regulation at 30 CFR 732.15(b)(15) requires State
programs to provide for judicial review of State program actions in
accordance with State laws, as provided in section 526(e) of SMCRA,
except that judicial review of State enforcement actions shall be in
accordance with section 526 of SMCRA. Section 526(e) of SMCRA requires
that actions of the State regulatory authority pursuant to an approved
State program shall be subject to judicial review by a court of
competent jurisdiction in accordance with State law. Sections 526(a)
through (d) of SMCRA establish procedures for such judicial review of
enforcement actions. Section 526(a) specifies that actions constituting
rulemaking and orders or decisions in a civil penalty proceeding,
issued by the Secretary of the Interior, may be subject to judicial
review; it also provides the location and timeframe for filing of a
petition for judicial review. Section 526(b) specifies the actions of
the court hearing such a petition. Section 526(c) specifies the
circumstances necessary for a court to grant temporary relief in the
case of a proceeding to review any order or decision for cessation of
coal mining and reclamation operations. Section 526(d) specifies that
the commencement of a proceeding for judicial review shall not, unless
specifically ordered by the court, operate as a stay of the action,
order, or decision of the Secretary. There are no Federal regulations
that set forth procedures for judicial review.
The procedures set forth in NMSA 39-3-1.1 apply to judicial review
of any final decision by a New Mexico agency, and among other things,
specify how final agency decisions must be documented and published,
provide for appeal of a decision by any person aggrieved by the
decision, specify the actions that may be taken by the district court,
and provide for review of the State District Court decision by a party
to the appeal.
The procedures set forth by New Mexico in NMSA 39-3-1.1 provide for
similar procedures concerning judicial review set forth in SMCRA at
sections 526(a) through (d) and demonstrate the ability for a person to
obtain judicial review of all agency decisions as required by SMCRA at
section 526(e).
These proposed revisions are also consistent with New Mexico's
revisions discussed in finding B.1 above that eliminate administrative
review by the Commission of decisions, other than those concerning
promulgation of rules, by the Director. (See finding No. 3 below for
New Mexico's provisions concerning judicial review of agency rulemaking
decisions.)
Therefore, OSM finds that the proposed revisions concerning
judicial review at NMSA, section 69-25A-30.A, and at NMAC, sections
10.8.12.1202.A and 19.8.12.1203.K are consistent with the Act and the
Federal regulations and the revisions will not make New Mexico's
statutes and rules less stringent than section 526 of SMCRA or less
effective than 30 CFR subchapters L and G.
3. NMAC, Section 19.8.12.1202.B, Judicial Review of Decisions by the
Commission Concerning Adoption of a Rule, Amendment of a Rule or Repeal
of a Rule
Existing NMAC 19.8.12.1202.E provides that persons aggrieved by a
rule or amendment or repeal of a rule the Commission adopts may appeal
to the State Court of Appeals. The existing regulation also includes
procedures and timeframes for such an appeal as well as the standards
for review by the court. As described in finding B.2 above, New Mexico
proposes to eliminate existing NMAC 19.8.12.1202.B, C and D so that New
Mexico's existing NMAC 19.8.12.1202.E becomes NMAC 19.8.12.1202.B. New
Mexico proposes to eliminate the existing procedures, timeframe and
standards in proposed NMAC 19.8.12.1202.B and instead proposes to
cross-reference the statutory provision at NMSA, Subsection B of 69-
25A-30, which sets forth the same procedures, timeframes and standards
for judicial review.
30 CFR 732.15(b)(15) requires that State programs provide for
judicial review of State program actions in accordance with State law,
as provided in section 526(e) of the Act. Section 526(e) states that
actions of the State regulatory authority shall be subject to judicial
review by a court of competent jurisdiction in accordance with State
law. There are no Federal regulations for section 526(e) of the Act.
OSM finds that New Mexico's proposed NMAC 19.8.12.1202.B,
concerning judicial review of rulemaking by the Commission, and the
reference to NMSA, subsection B of 69-25A-30, are in accordance with
the requirements of section 526(e) of SMCRA for judicial review.
4. NMSA, Section 69-25A-29.F, Administrative Review of a Notice or
Order by the Director of the New Mexico Program
New Mexico proposes to revise NMSA, section 69-25A-29.F, concerning
administrative review, by deleting references to the Commission.
[[Page 61683]]
With these revisions, New Mexico removed authority from the Commission
and left authority with the Director of the New Mexico program 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.
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.
As discussed in finding No. B.1. above, New Mexico's proposed
revisions to delete the additional administrative review by the
Commission of the Director's decisions, is consistent with section 525
of SMCRA. OSM finds that New Mexico's proposed revisions to NMSA,
section 69-25A-29.F, deleting references to the Commission, are
consistent with and no less stringent than section 525(e) of SMCRA.
5. NMSA, Section 69-25A-36, Termination of Agency Life
New Mexico proposes revisions of NMSA at section 69-25A-36,
concerning termination of agency life, to extend the authority of the
Commission to operate according to the provisions of NMSA from July 1,
2005, until July 1, 2012.
The Commission, created in NMSA at section 69-25A-1, meets at least
once a year to adopt, amend and repeal rules. SMCRA, at section 503(a),
and the Federal regulation at 30 CFR 732.15(a) requires that the State
program provide for the State to carry out the provisions and meet the
purposes of SMCRA within the State and that the State's laws and
regulations are in accordance with the provisions of SMCRA. Because New
Mexico's proposed revision extends the authority of the Commission to
operate until July 1, 2012, and therefore enables rulemaking for the
New Mexico program, OSM approves the proposed revision.
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 at NMAC, section 19.8.12.1202.A,
concerning judicial review of final agency decisions, is discussed
below.
The Governor raised a concern that the proposed revision to NMAC,
section 19.8.12.1202.A, would limit a person's ability to challenge
agency decisions.
New Mexico's proposed revisions at NMAC, sections 19.8.12.1201 and
19.8.12.1202.A eliminate the need for a second administrative hearing
before the Commission prior to allowing an appeal to the State District
Court; this rule revision reflects the same statutory revision of the
NMSA at section 69-25A-29.G.
As discussed in finding No. B.2 above, New Mexico's proposed
elimination of the opportunity for a second administrative hearing is
consistent with the counterpart Federal regulations at 30 CFR 775.13.
The Governor also expressed concern that because only certain
agency decisions can be the subject of an administrative hearing, some
decisions may not therefore be appealed to the State District Court.
As discussed in finding B.1 above, New Mexico's proposed revision
of NMSA, section 69-25A-30.A, and NMAC, sections 19.8.12.1202.A and
19.8.12.1203.K, provide for appeals of decisions by the Director to the
State District Court. New Mexico's NMSA, section 69-25A-29, provides
for administrative review of enforcement actions and NMSA, section 69-
25A-18, provides for administrative review of permitting decisions. New
Mexico is also retaining regulations at NMAC, section 19.8.12.1203, for
administrative review of enforcement actions by the Director. The
elimination of administrative review by the Commission leaves in place
existing provisions for administrative review conducted by the Director
for decisions concerning both permitting and enforcement actions and
appeal of these decisions to the State District Court. Therefore, New
Mexico's proposed revision is consistent with and in accordance with
section 526 of SMCRA and 30 CFR subchapters L and G.
The Governor also correctly noted that the existing New Mexico rule
at NMAC, section 19.8.12.1200.A, allows an administrative appeal of,
among other final decisions made by the Director of the New Mexico
program, a decision concerning a permit modification; this opportunity
for review has not been revised. OSM notes that New Mexico's allowance
for an administrative appeal of a decision concerning a permit
modification at NMAC section 19.8.12.1200.A is not specifically
required under the counterpart Federal regulation at 30 CFR 775.11(a)
(see OSM's approval of NMAC, section 19.8.12.1200.A, on April 13, 2004,
69 FR 19321, at 19322, finding No. C.2.).
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.
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, 2006, 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 not affect cultural resources (Administrative Record No.
NM-881). We did not receive a response from the ACHP.
V. OSM'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,
[[Page 61684]]
2005) and rule revisions as 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 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.
[[Page 61685]]
Dated: September 11, 2006.
Allen D. Klein,
Regional Director, Western Region.
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.
0
2. 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 Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
November 18, 2005, as revised on March October 19, 2006.................... NMSA, sections 69-25A-18.A, B,
27, 2006. C, D and F, concerning the
decisions of the Director and
appeals; NMSA, sections 69-25A-
29.A, B, C, D, and F,
concerning the administrative
review of a notice or order by
the Director; NMSA, sections 69-
25A-29.G, concerning deletion
of statutes allowing for review
by the Commission of decisions
of the Director; NMSA, section
69-25A-30.A, concerning
judicial review of final
decisions by the Director;
NMSA, sections 69-25A-36,
concerning termination of
agency life; NMAC, sections
19.8.11.1100.A(3), D, and D(2),
concerning public notices of
filing of permit applications;
NMAC, section 19.8.11.1101.C,
concerning opportunity for
submission of written comments
on permit applications; NMAC,
sections 19.8.11.1102.A and
B(2), concerning the right to
file written objections; NMAC,
sections 19.8.11.1103.A(3), B,
B(1), D, E(1), and F,
concerning hearings and
conferences; NMAC, section
19.8.11.1104.B, concerning
public availability of
information in permit
applications on file with the
Director; NMAC, sections
19.8.11.1105.C(2), D, E, and F,
concerning review of permit
applications; NMAC, sections
19.8.11.1106.C, D(3), F, G(1)
and (2), and N, concerning
criteria for permit approval or
denial; NMAC, sections
19.8.11.1107.A, B, B(1),
B(1)(b), B(3), C, D, E, and F,
concerning general procedures
for improvidently issued
permits; NMAC, section
19.8.11.1108.B, concerning
existing structures and
criteria for permit approval or
denial; NMAC, sections
19.8.11.1109.A(4), B, B(1) and
(2), B(2)(b), B(3), and D,
concerning permit approval or
denial actions; NMAC, section
19.8.11.1110.A(1), concerning
the rescission process for
improvidently issued permits;
NMAC, section 19.8.11.1111.B,
concerning permit terms; NMAC,
section 19.8.11.1113.C(2),
concerning conditions of permit
for environment, public health
and safety; NMAC, section
19.8.11.1114, concerning
conformance of permit; NMAC,
sections 19.8.11.1115.A, B, and
C, concerning verification of
ownership or control
application information; NMAC,
sections 19.8.11.1116.B and
B(2)(b), concerning review of
ownership or control and
violation information; NMAC,
sections 19.8.11.1117.A, A(1),
(2) and (3), B, C, D, D(1) and
(2), and D(2)(a) and (b),
concerning procedures for
challenging ownership or
control links shown in the
applicant violator system;
NMAC, sections 19.8.11.1118.B,
B(1), (2) and (3), B(3)(1), C,
C(1)(a) through (c), and C(2),
concerning standards for
challenging ownership or
control links and the status of
violations; NMAC, section
19.8.12.1201, deletion of rules
allowing for review by the
Commission of decisions of the
Director; NMAC, sections
19.8.12.1202.A, concerning
judicial review of final
decisions by the Director;
NMAC, sections 19.8.12.1202.B,
concerning judicial review of
decisions by the Commission;
and NMAC, sections
19.8.12.1203.A through L,
concerning formal review of
notices of violations,
cessation orders, and show
cause orders.
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[FR Doc. E6-17521 Filed 10-18-06; 8:45 am]
BILLING CODE 4310-05-P
