New Mexico Regulatory Program, 4461-4466 [2012-1956]
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Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations
promulgated, will not have a significant
economic impact on a substantial
number of small entities under the
criteria of the Regulatory Flexibility Act.
The FAA’s authority to issue rules
regarding aviation safety is found in
Title 49 of the U.S. Code. Subtitle 1,
section 106, describes the authority of
the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more
detail the scope of the agency’s
authority. This rulemaking is
promulgated under the authority
described in subtitle VII, part A, subpart
I, section 40103. Under that section, the
FAA is charged with prescribing
regulations to assign the use of airspace
necessary to ensure the safety of aircraft
and the efficient use of airspace. This
regulation is within the scope of that
authority as it amends controlled
airspace at Greater Portsmouth Regional
Airport, Portsmouth, OH.
List of Subjects in 14 CFR Part 71
Airspace, Incorporation by reference,
Navigation (air).
Adoption of the Amendment
In consideration of the foregoing, the
Federal Aviation Administration
amends 14 CFR Part 71 as follows:
PART 71—DESIGNATION OF CLASS A,
B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND
REPORTING POINTS
1. The authority citation for 14 CFR
part 71 continues to read as follows:
■
Issued in Fort Worth, Texas, on January 13,
2012.
Walter L. Tweedy,
Acting Manager, Operations Support Group,
ATO Central Service Center.
[FR Doc. 2012–1793 Filed 1–27–12; 8:45 am]
BILLING CODE 4910–13–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 931
[SATS No. NM–048–FOR; Docket ID OSM–
2010–0014]
New Mexico Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment.
AGENCY:
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 non-substantive editorial
revisions to its rules; substantive
revisions and additions to rules
concerning ownership and control; and
substantive revisions to one rule about
retention of sedimentation ponds. New
Mexico revised its program to be
consistent with the corresponding
Federal regulations and to clarify
ambiguities.
SUMMARY:
Authority: 49 U.S.C. 106(g), 40103, 40113,
40120; E. O. 10854, 24 FR 9565, 3 CFR, 1959–
1963 Comp., p. 389.
DATES:
§ 71.1
FOR FURTHER INFORMATION CONTACT:
[Amended]
2. The incorporation by reference in
14 CFR 71.1 of the Federal Aviation
Administration Order 7400.9V, Airspace
Designations and Reporting Points,
dated August 9, 2011, and effective
September 15, 2011 is amended as
follows:
*
*
*
*
*
■
Paragraph 6005 Class E airspace areas
extending upward from 700 feet or more
above the surface.
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AGL OH E5 Portsmouth, OH [Amended]
Greater Portsmouth Regional Airport, OH
(Lat. 38°50′26″ N., long. 82°50′50″ W.)
Portsmouth, Southern Ohio Medical Center
Helipad, OH Point in Space Coordinates
(Lat. 38°45′05″ N., long. 83°00′19″ W.)
That airspace extending upward from 700
feet above the surface within a 6.4-mile
radius of Greater Portsmouth Regional
Airport, and within a 6-mile radius of the
Point in Space serving Southern Ohio
Medical Center Helipad.
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Effective Date: January 30, 2012.
Kenneth Walker, Chief, Denver Field
Division, Office of Surface Mining
Reclamation and Enforcement, 1999
Broadway, Suite 3320, Denver, CO
80202, Telephone: (303) 293–5012.
Internet: kwalker@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’s) Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
I. Background on the New Mexico
Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
and non-Indian lands within its borders
by demonstrating that its State program
includes, among other things, ‘‘a State
law which provides for the regulation of
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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 of the Interior
conditionally approved the New Mexico
program on December 31, 1980. You can
find background information on the
New Mexico program, including the
Secretary’s findings, the disposition of
comments, and conditions of approval
in the December 31, 1980, Federal
Register (45 FR 86459). You can also
find later actions concerning New
Mexico’s program and program
amendments at 30 CFR 931.10, 931.11,
931.13, 931.15, 931.16, and 931.30.
II. Submission of the Proposed
Amendment
By letter dated September 1, 2010,
New Mexico submitted an amendment
to its program (SATS No. NM–048–FOR,
Docket ID OSM–2010–0014–0007)
under SMCRA (30 U.S.C. 1201 et seq.).
New Mexico sent the amendment (1) in
response to a September 3, 2009, OSM
letter (Docket ID OSM–2010–0014–
0003), concerning our ownership and
control regulations, consistent with 30
CFR 732.17(c); and (2) to include
proposed program changes made at its
own initiative.
We announced receipt of the
proposed amendment in the January 25,
2011, Federal Register (76 FR 4266). 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
(Docket ID OSM–2010–0014–0001). We
did not hold a public hearing or meeting
because no one requested one. The
public comment period ended on
February 24, 2011. We received two
Federal agency comment letters.
III. OSM’s Findings
Following are the findings we made
concerning the amendment under
SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17. We are
approving the amendment.
A. Minor Revisions to New Mexico’s
Rules
New Mexico proposed minor
wording, editorial, punctuation, and
grammatical changes to the following
previously-approved rules.
19.8.11.1105.E NMAC (30 CFR
774.11(a)(1)), Review of Permit
Applications;
19.8.11.1114 NMAC (30 CFR Part
773.17), Conformance of Permit;
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19.8.30.3003.D NMAC (30 CFR
843.14(c)), Service of Notices of
Violation and Cessation Orders;
19.8.30.3004.D NMAC (30 CFR 843.15),
Informal Hearings;
19.8.31.3103.A NMAC (30 CFR
845.15(a)), Assessment of Separate
Violation for Each Day;
19.8.34.3402.F(1) and (2) NMAC (30
CFR 702.11(f)(1) and (2)),
Application Requirements and
Procedures;
19.8.34.3408.C(2) and (3) NMAC (30
CFR 702.17(c)(2) and (3)),
Revocation and Enforcement; and
19.8.35.13 NMAC (30 CFR 761.16(f)),
Administrative and Judicial Review
of a Valid Existing Rights
Determination.
Because these changes are minor nonsubstantive editorial revisions, we find
that they will not make New Mexico’s
rules less effective than the
corresponding Federal regulations and
we approve them.
B. Revisions to New Mexico’s Rules That
Have the Same Meaning as the
Corresponding Provisions of the Federal
Regulations
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New Mexico proposed additions of or
revisions to the following rules
concerning ownership and control
which contain language that is the same
as or similar to the corresponding
sections of the Federal regulations.
19.8.11.1120.A through C NMAC (30
CFR 774.12(a) through (c)),
Addition of Rules Concerning PostPermit Issuance Information
Requirements for Permittees,
19.8.11.1121.A through D NMAC (30
CFR 778.9(a), (b), (c) and (d)),
Addition of Rules Concerning
Certifying and Updating Existing
Permit Application Information,
and
19.8.31.3113.A through C NMAC (30
CFR 847.11(a), (b) and (c)),
Addition of Rules Concerning
Criminal Penalties.
Because these proposed rules contain
language that is the same as or similar
to the corresponding Federal
regulations, we find that they are no less
effective than the corresponding Federal
regulations, and we approve them.
C. Revisions to New Mexico’s Rules That
Are Not the Same as the Corresponding
Provisions of the Federal Regulations
1. Ownership and Control. New
Mexico submitted revisions of the
following rules concerning ownership
and control. OSM discusses below all
proposed rules which New Mexico
proposed to modify so that its program
would be no less effective than the
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counterpart Federal regulations
concerning ownership and control,
including those rules which provide the
authority in the New Mexico program to
take enforcement actions against those
found to be in positions of ownership
and control.
a. 19.8.1.7.K NMAC, Definition of
‘‘Knowing and Knowingly’’ and
19.8.1.7.W(2) NMAC, Definition of
‘‘Willful and Willfully’’ and deletion of
the Definition for ‘‘Willful Violation.’’
New Mexico proposed new definitions
of ‘‘knowing and knowingly’’ and
‘‘willful and willfully’’ at, 19.8.1.7.K
NMAC and 19.8.1.7.W(2) NMAC, that
are identical to the same counterpart
Federal definitions at 30 CFR 701.5.
New Mexico proposed inclusion of
these definitions in the New Mexico
program such that these terms are
defined for their use throughout the
New Mexico program.
New Mexico also proposed to delete
the definition of ‘‘willful violation’’ at
19.8.1.7.W(2) NMAC; there exists no
counterpart Federal program definition.
For these reasons, the Director finds
that New Mexico’s proposed addition of
the definitions for ‘‘knowing and
knowingly’’ and ‘‘willful and willfully’’
at 19.8.1.7.K and 19.8.1.7.W(2) NMAC
and proposed deletion of the definition
for ‘‘willful violation’’ at 19.8.1.7.W(2)
NMAC are consistent with and no less
effective than the counterpart Federal
definitions of ‘‘knowing and
knowingly’’ and ‘‘willful and willfully’’
at 30 CFR 701.5.
b. 19.8.1.7.O(8)(a) and (b) NMAC,
Definition of ‘‘Owned or Controlled and
Owns or Controls.’’ New Mexico’s
proposed definition of ‘‘owned or
controlled and owns or controls’’ at
19.8.1.7.O(8)(a) and (b) NMAC includes
counterpart language to two of OSM’s
Federal definitions at 30 CFR 701.5, the
definitions for ‘‘control or controller’’
and ‘‘own, owner, or ownership.’’
New Mexico proposed a revision of its
definition of ‘‘owned or controlled and
owns or controls’’ at 19.8.1.7.O(8)(a)
NMAC that is, with one exception,
substantively the same as the Federal
definition of ‘‘control or controller’’ at
30 CFR 701.5. The exception is that, at
19.8.1.7.O(8)(a) NMAC, New Mexico
does not include the operator as a
controller in the language. However, in
the definition of ‘‘owned or controlled
and owns or controls’’ at
19.8.1.7.O(8)(b)(ii) NMAC, New Mexico
does include an operator as a presumed
controller.
New Mexico proposed revisions of its
definition of ‘‘owned or controlled and
owns or controls’’ at 19.8.1.7.O(8)(b)(iv)
through (viii) NMAC, which are, with
one exception, substantively the same as
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the counterpart Federal definition of
‘‘Own, owner, or ownership’’ at 30 CFR
701.5. The exception is that, at
19.8.1.7.O(8)(b)(vii) NMAC, New
Mexico proposes that ownership be
based on owning of record 10 percent or
more of the entity, while OSM, in the
Federal definition, provides for
ownership based on possessing or
controlling in excess of 50 percent of the
voting securities or other instruments of
ownership of an entity. In this respect,
New Mexico’s definition is more
stringent than the Federal definition;
however, it is no less effective than the
Federal definition in identifying
ownership.
New Mexico’s existing definition of
‘‘owned or controlled and owns or
controls’’ at 19.8.1.7.O(8)(b) NMAC
provides that a person, who is identified
as an owner, the opportunity to
demonstrate that he/she does not in fact
have the authority directly or indirectly
to determine the manner in which the
relevant surface coal mining operation
is conducted. In addition, New Mexico’s
existing rules at 19.8.11.1102 NMAC,
19.8.11.1117 NMAC, and 19.8.11.1118
NMAC are no less effective than the
Federal regulations at 30 CFR 773.25, 30
CFR 773.26, and 30 CFR 773.27 in
allowing for challenges to ownership or
control findings.
For these reasons, the Director finds
that New Mexico’s proposed definition
of ‘‘owned or controlled and owns or
controls’’ at 19.8.1.7.O(8)(a) and (b)
NMAC is no less effective than the
counterpart Federal definitions of
‘‘control or controller’’ and ‘‘own,
owner, or ownership’’ at 30 CFR 701.5,
and approves it.
c. 19.8.7.701.C(3) NMAC,
Identification of Interests. New Mexico
proposed to revise 19.8.7.701.C(3)
NMAC to require that a permit
application contain, among other things,
information specific to the identification
of persons whose identification is
required by 19.8.11.1120.C NMAC,
rather than 19.8.11.1113.D.
New Mexico’s proposed 19.8.11.1120
NMAC, concerning post-permit issuance
information requirements for
permittees, as discussed above, is
substantively identical to the
counterpart Federal regulations at 30
CFR 774.12(a) through (c). The
previously referenced rule at
19.8.11.1113.D NMAC does not exist in
New Mexico’s program; furthermore,
New Mexico’s existing rules at
19.8.11.1113 NMAC pertain to
conditions of a permit affecting
environment, public health and safety,
not ownership and control information.
Therefore, New Mexico’s proposed
revision of 19.8.7.701.C(3) NMAC to
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reference 19.8.11.1120.C NMAC,
ensures that a permit application will
contain the most recent information
pertaining to ownership and control and
eliminates confusion by deleting an
inappropriately referenced rule that has
nothing to do with applicant ownership
and control information.
New Mexico also proposed to revise
19.8.7.701(C) NMAC to require the
submission of telephone numbers for
persons who own or control the
applicant according to the definitions of
‘‘owned or controlled and owns or
controls’’ at 19.8.1.107.O NMAC. As
discussed above, the Director finds that
New Mexico’s proposed definition of
‘‘owned or controlled and owns or
controls’’ at 19.8.1.107.O NMAC is no
less effective than the counterpart
definitions of ‘‘control or controller’’
and ‘‘own, owner, or ownership’’ at 30
CFR 701.5. New Mexico’s proposed
revision to require submission of
telephone numbers is consistent with
the requirement in the Federal
regulations at 30 CFR 778.11(d). For any
change in persons identified, the
Federal regulations under 30 CFR
774.12(c)(1) and by 30 CFR 778.11(d)
requires, among other things, a
telephone number.
For these reasons, the Director finds
that New Mexico’s proposed revisions
of 19.8.7.701.C(3) NMAC are no less
effective than the counterpart Federal
regulations at 30 CFR 774.12(a) through
(c) and 30 CFR 778.11(d), and approves
them.
d. 19.8.11.1105.F NMAC, Review of
Permit Applications for Permit
Eligibility. New Mexico proposed
revising 19.8.11.1105.F NMAC by
adding the requirement for the Director
of the New Mexico program, after an
applicant’s completion of the reporting
required by 19.8.7.702 NMAC, to
request, no more than five business days
before permit issuance, a compliance
history report from the applicant
violator system (AVS) and make that
report part of the AVS record review
required by New Mexico’s rule at
19.8.11.1116 NMAC. New Mexico’s rule
at 19.8.7.702.D NMAC requires, after an
applicant is notified that his or her
application is approved, but before the
permit is issued, an applicant to either
update the information, concerning
compliance information, previously
submitted or indicate that no change has
occurred in the information. New
Mexico’s rule at 19.8.11.116 requires,
among other things, that New Mexico
must review all reasonably available
information concerning violation
notices and ownership or control links
to determine whether the application
can be approved.
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Because New Mexico has revised its
rule at 19.8.11.1105.F NMAC,
concerning a final compliance review
for all permit applications, with
references to the reporting requirements
of 19.8.7.702.D NMAC and the AVS
record review for permit eligibility
required by 19.8.11.1116 NMAC, the
Director finds that New Mexico’s
proposed 19.8.11.1105.F NMAC is no
less effective in making the permit
eligibility determination required by 30
CFR 773.12, and approves it.
The Director notes that New Mexico’s
19.8.11.1116.B NMAC, of which New
Mexico proposed no revision, requires
New Mexico to deny approval of an
application if the review conducted
discloses any ownership or control link
between the applicant and any person
cited in a violation notice unless certain
actions have been taken (which are
specified in 19.8.11.1116.B NMAC).
Under the counterpart Federal
regulation at 30 CFR 773.12(a), permits
may be denied only if an applicant
directly (one level down) owns or
controls, or if the applicant or operator
indirectly controls an entity with an
unabated or uncorrected
(‘‘outstanding’’) violation if the control
and the violation occurred after
November 2, 1988. In this respect, New
Mexico’s proposed rule at
19.8.11.1105.F NMAC is more stringent,
but no less effective than, the
counterpart Federal regulation at 30
CFR 773.12(a).
e. 19.8.11.1119.A through H NMAC,
Post-Permit Issuance Requirements and
Other Actions. New Mexico proposed
additional rules at 19.8.11.1119.A
through H NMAC, concerning postpermit issuance requirements and other
actions based on ownership, control,
and violation information, that are, with
one exception, substantively identical to
the counterpart Federal regulations at 30
CFR 774.11(a) through (h). The
exception is that New Mexico’s
proposed rule at 19.8.11.1119.C NMAC
is more stringent than the counterpart
Federal regulation at 30 CFR 774.11(c),
in that the referenced rule at
19.8.11.1116 NMAC, as discussed
above, allows for any ownership or
control link between the applicant and
any person cited in a violation notice to
cause finding of permanent permit
ineligibility rather than the more limited
ownership and control link provided for
the Federal regulation referenced at 30
CFR 773.12(a). The proposed New
Mexico rules need only meet the
minimum requirements of the
counterpart Federal regulations; New
Mexico may elect to be more stringent.
For this reason, the Director finds that
New Mexico’s proposed 19.8.11.1119.A
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through H NMAC are no less effective
than the counterpart 30 CFR 774.11(a)
through (h), and approves them.
f. 19.8.30.3000.L NMAC, Cessation
Orders. New Mexico proposed to revise
19.8.30.3000.L NMAC, concerning
persons who must receive New
Mexico’s written notification of
issuance of a cessation order, to require
that the notice be sent to any person
who has been identified under
19.8.11.1119.F NMAC, rather than
19.8.11.1113.D NMAC. New Mexico’s
referenced rule at 19.8.11.1119.F
specifies, among other things, that New
Mexico may, at any time, identify any
person who owns or controls all or part
of a surface coal mining operation.
New Mexico’s proposed rule at
19.8.30.3000.L NMAC also requires that
persons identified in 19.8.7.701.C
NMAC and 19.8.7.701.D NMAC as
owning or controlling the permittee
receive the same written notification of
the issuance of a cessation order; New
Mexico has proposed no revision of
these rules. Referenced 19.8.7.701.C
NMAC specifies information required to
be in a permit application, including a
list of outstanding violation notices
received prior to the date of the
application by any surface coal mining
operation that is owned or controlled by
either the applicant or any person who
owns or controls the applicant under
the definition of ‘‘owned or controlled
and owns or controls’’ at 19.8.1.107.O
NMAC. Referenced 19.8.7.702.D NMAC
requires, after an applicant is notified
that his or her application is approved,
but before the permit is issued, an
applicant to either update the
information, concerning compliance
information, previously submitted or
indicate that no change has occurred in
the information.
The counterpart Federal regulation to
New Mexico’s referenced 19.8.11.3000.L
NMAC is 30 CFR 843.11(g), which
requires that the Director notify in
writing persons identified as an owner
or controller of the operation, as defined
at 30 CFR 701.5, that a cessation order
has been issued.
As discussed above, 19.8.11.1113.D
NMAC does not exist in New Mexico’s
program and New Mexico’s existing
rules at 19.8.11.1113.A through C
pertain to conditions of permit affecting
environment, public health and safety
(not ownership and control
information). Also as discussed above,
the Director finds that New Mexico’s
proposed rules at 19.8.11.1119.A
through H NMAC are substantively
identical to and no less effective than
the counterpart 30 CFR 777.11(a)
through (h). In addition, as discussed
above, New Mexico’s proposed
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definition of ‘‘owned or controlled and
owns or controls’’ at 19.8.1.107.O
NMAC is no less effective than the
counterpart definitions of ‘‘control or
controller’’ and ‘‘own, owner, or
ownership’’ at 30 CFR 701.5.
For these reasons, the Director finds
that New Mexico’s proposed revision at
19.8.30.3000.L NMAC causes proposed
19.8.30.3000.L to be no less effective
than the counterpart Federal regulation
at 30 CFR 843.11(g), in that the
proposed reference to 19.8.11.1119.F
NMAC will ensure that all people listed
as owners or controllers will receive a
written notification of the issuance of a
cessation order. The Director approves
proposed 19.8.30.3000.L NMAC.
g. 19.8.31.3109.A NMAC, Individual
Civil Penalties. New Mexico proposed
revision of 19.8.31.3109.A NMAC to
clarify when the Director of the New
Mexico program may assess an
individual civil penalty; i.e., the
Director may assess an individual civil
penalty against any corporate director,
officer, or agent of a corporate permittee
who knowingly and willfully
authorized, ordered, or carried out a
violation of a permit condition, or a
failure or refusal to comply with any
order issued under the act. New Mexico
proposed this clarification because New
Mexico proposed deletion of definition
of ‘‘willful violation’’ at 19.8.1.7.W(2)
NMAC.
The counterpart Federal regulation at
30 CFR 846.12(a) provides that OSM
may assess an individual civil penalty
against any corporate director, officer, or
agent to a corporate permitttee who
knowingly and willfully authorized,
ordered, or carried out a violation,
failure, or refusal.
New Mexico’s proposed rule at
19.8.31.3109.A NMAC is substantively
the same as the counterpart Federal
regulation at 30 CFR 846.12(a),
concerning individual civil penalties.
New Mexico’s proposed rule differs
only in that it provides clarification of
the phrase ‘a violation, failure or refusal’
as used in the counterpart Federal
regulation.
For these reasons, the Director finds
that New Mexico’s proposed revision of
19.8.31.3109.A NMAC is no less
effective than the counterpart Federal
regulation at 30 CFR 846.12(a),
concerning individual civil penalties,
and approves it.
h. 19.8.31.3109.A(1), (2) and (3)
NMAC, Deletion of definitions of
‘‘knowingly’’, ‘‘willfully’’, and
‘‘violation, failure or refusal.’’ At
19.8.31.3109.A(1), (2), and (3) NMAC,
New Mexico proposed to delete the
definitions of ‘‘knowingly,’’ ‘‘willfully,’’
and ‘‘violation, failure or refusal’’.
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As discussed above, in finding
number C.1.a, New Mexico proposed
new definitions of ‘‘knowing and
knowingly’’ and ‘‘willful and willfully’’
at, respectively, 19.8.1.7.K NMAC and
19.8.1.7.W(2) NMAC, that are (1)
identical to the same counterpart
Federal definitions at 30 CFR 701.5 and
(2) defined for their use throughout the
New Mexico program. New Mexico’s
definitions of ‘‘knowingly’’, ‘‘willfully’’,
and ‘‘violation, failure or refusal’’ have
no counterpart in the Federal program
and were applicable only to rules
concerning individual civil penalties in
New Mexico’s program.
Therefore, the Director finds that New
Mexico’s proposed deletion, at
19.8.31.3109.A(1), (2), and (3) NMAC, of
the definitions of ‘‘knowingly,’’
‘‘willfully,’’ and ‘‘violation, failure or
refusal’’ is consistent with New
Mexico’s proposed definitions of
‘‘knowing and knowingly’’ and ‘‘willful
and willfully,’’ and no less effective
than the counterpart Federal definitions
of ‘‘knowing and knowingly’’ and
‘‘willful and willfully’’ at 30 CFR 701.5.
The Director approves New Mexico’s
proposed deletions of these terms.
2. 19.8.20.2010.A(2) NMAC, Sediment
Control Measures and Water Quality
Standards and Effluent Limitations.
New Mexico proposes to delete
19.8.20.2010.A(2)(a) and (b) NMAC
pertaining to the maintenance of
sedimentation ponds.
19.8.20.2010.A(2)(a) NMAC. New
Mexico proposed to delete a provision
at paragraph (2)(a) which requires that
sedimentation ponds be retained to
prevent gully erosion from occurring.
New Mexico’s existing rule at paragraph
(2) requires, among other things, that
sediment ponds be maintained until
erosion on the regraded area has been
controlled. The requirement in
paragraph (2), to retain sediment ponds
until erosion has been controlled,
achieves the same purpose in the
deleted provision at (2)(a). Therefore,
New Mexico’s proposal to delete the
provision at 19.8.20.2010.A(2)(a)
NMAC, is not necessary in New
Mexico’s program to ensure the
appropriate use of sedimentation ponds.
19.8.20.2010.A(2)(b) NMAC. This
provision, proposed for deletion,
requires maintenance of sedimentation
ponds to insure that the quality of the
untreated drainage from the disturbed
area meets the applicable State and
Federal water quality standard
requirements for the receiving stream,
except during precipitation events
which are equal to or greater than the
2-year recurrence interval. New Mexico
explained that the provision proposed
for deletion at 19.8.20.2010.A(2)(b)
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Fmt 4700
Sfmt 4700
NMAC, contradicts New Mexico’s rule
at 19.8.20.2010.B(1) NMAC, which
provides for discharges from disturbed
areas to exceed the effluent limitations
of 19.8.20 NMAC, if the discharge (1)
resulted from a precipitation event
equal to or larger than a 10-year 24-hour
precipitation event and (2) is from
facilities designed, constructed, and
maintained in accordance with the
requirements of 19.8.20 NMAC.
In addition, New Mexico’s existing
rule at 19.8.20.2010.C NMAC requires,
among other things, that a permittee
must install, operate, and maintain
adequate facilities to treat any water
discharged from the disturbed area so
that it complies with all Federal and
State laws and regulations and the
limitations of 19.8.20 NMAC.
Therefore, New Mexico’s proposed
deletion of 19.8.20.2010.A(2)(a) and (b)
NMAC clarifies their program by
removing language that is either
contradictory of existing requirements at
19.8.20.2010.B(1) NMAC, or repetitive
of existing requirements at
19.8.20.2010.C NMAC.
The Federal counterparts to New
Mexico’s rules proposed for deletion at
19.8.20.2010.A(2)(a) and (b) NMAC are
found at 30 CFR 816.42 and 30 CFR
816.45(a)(2). The counterpart Federal
regulations at 30 CFR 816.42 require
that discharges of water from areas
disturbed by surface mining activities
shall be made in compliance with all
applicable State and Federal water
quality laws and regulations and with
the effluent limitations for coal mining
promulgated by the U.S. Environmental
Protection Agency set forth in 40 CFR
Part 434. The Federal regulations at 40
CFR Part 434, similar to those in the
New Mexico program, provide for
exemptions from the requirement to
meet effluent standards. The
counterpart Federal regulations at 30
CFR 816.45(a)(2) require appropriate
sediment control measures be
maintained to, among other things, meet
the more stringent of applicable State or
Federal effluent limitations.
OSM finds that New Mexico’s
proposed deletion of
19.8.20.2010.A(2)(a) and (b) NMAC, in
conjunction with New Mexico’s existing
rules at 19.8.20.2010.A(1), A(2), B(1),
and C NMAC, is consistent with and no
less effective than the requirements of
the Federal regulations at 30 CFR
816.42, concerning the need for runoff
from disturbed areas to meet applicable
water quality effluent standards, and 30
CFR 816.45(a)(2), concerning the
requirement for adequate sediment
control measures. The Director approves
proposed rule 19.8.20.2010.A.2 NMAC.
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Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations
IV. Summary and Disposition of
Comments
did not receive responses from the
SHPO or ACHP.
Public Comments
V. OSM’s Decision
Based on the above findings, we
approve New Mexico’s September 1,
2010, amendment.
To implement this decision, we are
amending the Federal regulations at 30
CFR part 931, which codify decisions
concerning the New Mexico program.
We find that good cause exists under 5
U.S.C. 553(d)(3) to make this final rule
effective immediately. Section 503(a) of
SMCRA requires that the State’s
program demonstrate 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.
We asked for public comments on the
amendment (Docket ID Nos. OSM–
2010–0014–0001 and OSM–2010–0014–
0008), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and
section 503(b) of SMCRA, we requested
comments on the amendment from
various Federal agencies with an actual
or potential interest in the New Mexico
program (Docket ID No. OSM–2010–
0014–0008). We received two comment
letters. We received one comment letter
from the U.S. Department of
Agriculture, Natural Resources
Conservation Service (NRCS), dated
February 24, 2011 (Docket ID No. OSM–
2010–0014–0009). The NRCS stated that
they had no comments on the proposed
rulemaking. We received one emailed
comment from the U.S. Department of
Energy (DOE), dated March 15, 2011
(Docket ID No. OSM–2010–0014–0010).
The DOE stated that they had no
comments on the proposed rulemaking.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and
(ii), we are required to obtain
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 setting air or
water quality standards. Therefore, we
did not ask EPA to concur on the
amendment. However, under 30 CFR
732.17(h)(11)(i), OSM requested
comments on the amendment from EPA
(Docket ID No. OSM–2010–0014–0008).
EPA did not respond to our request.
emcdonald on DSK29S0YB1PROD with RULES
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. Although the revisions that
New Mexico proposed to make in this
amendment would not have effects on
historic properties, on January 25, 2011,
we nonetheless requested comments
from the SHPO and ACHP on New
Mexico’s amendment (Docket ID No.
OSM–2010–0014–0008). However, we
VerDate Mar<15>2010
13:14 Jan 27, 2012
Jkt 226001
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.
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
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
4465
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. 4332(2)(C) et seq.).
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.).
E:\FR\FM\30JAR1.SGM
30JAR1
4466
Federal Register / Vol. 77, No. 19 / Monday, January 30, 2012 / Rules and Regulations
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,
Original amendment submission
date
*
*
September 1, 2010 ........................
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.
Dated: April 18, 2011.
Allen D. Klein,
Director, Western Region.
Editorial Note: This document was
received at the Office of the Federal Register
on January 25, 2012.
For the reasons set out in the
preamble, 30 CFR part 931 is amended
as set forth below:
PART 931—NEW MEXICO
1. The authority citation for part 931
continues to read as follows:
■
Authority: 30 U.S.C. 1201 et seq.
2. Section 931.15 is amended in the
table by adding a new entry in
chronological order by ‘‘Date of Final
Publication’’ to read as follows:
■
§ 931.15 Approval of New Mexico
regulatory program amendments
*
*
*
*
*
Citation/description
ANCHORAGE (LPD 23) 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.
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.
ACTION: Final rule.
AGENCY:
emcdonald on DSK29S0YB1PROD with RULES
Intergovernmental relations, Surface
mining, Underground mining.
*
*
*
*
*
January 30, 2012. .......................... 19 NMAC 8.1.7.K; 8.1.7.O(8)(a) and (b); 8.1.7.W(2)(a) and (b);
8.7.701.C(3); 8.11.1105.E; 8.11.1105.F; 8.11.1114; 8.11.1119.A
through H; 8.11.1120.A through C; 8.11.1121.A through D;
8.20.2010.A(2)(a) and (b) (deletion); 8.30.3000.L; 8.30.3003.D;
8.30.3004.D; 8.31.3103.A; 8.31.3109.A; 8.31.3109.A(1) through (3)
(deletion); 8.31.3113.A, B, and C; 8.34.3402.F(1) and (2);
8.34.3408.C(2) and (3); and 8.35.13.
BILLING CODE 4310–05–P
The Department of the Navy
(DoN) 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 (DAJAG) (Admiralty and
Maritime Law) has determined that USS
SUMMARY:
13:14 Jan 27, 2012
List of Subjects in 30 CFR Part 931
Unfunded Mandates
Date of final publication
[FR Doc. 2012–1956 Filed 1–27–12; 8:45 am]
VerDate Mar<15>2010
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.
Jkt 226001
This rule is effective January 30,
2012 and is applicable beginning
January 16, 2012.
DATES:
FOR FURTHER INFORMATION CONTACT:
Lieutenant Jaewon Choi, JAGC, U.S.
Navy, Admiralty Attorney, (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.
Pursuant
to the authority granted in 33 U.S.C.
1605, the DoN amends 32 CFR part 706.
SUPPLEMENTARY INFORMATION:
PO 00000
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Fmt 4700
Sfmt 4700
This amendment provides notice that
the DAJAG (Admiralty and Maritime
Law), under authority delegated by the
Secretary of the Navy, has certified that
USS ANCHORAGE (LPD 23) 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 27(a)(i) and (b)(i),
pertaining to the placement of all-round
task lights in a vertical line; Annex I,
paragraph 3(a), pertaining to the
horizontal distance between the forward
and after masthead lights; and Annex I,
paragraph 2(k) as described in Rule
30(a)(i), pertaining to the vertical
separation between anchor lights. The
DAJAG (Admiralty and Maritime Law)
has also certified that the lights
involved are located in closest possible
compliance with the applicable 72
COLREGS requirements.
E:\FR\FM\30JAR1.SGM
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]]>Agencies
[Federal Register Volume 77, Number 19 (Monday, January 30, 2012)]
[Rules and Regulations]
[Pages 4461-4466]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-1956]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 931
[SATS No. NM-048-FOR; Docket ID OSM-2010-0014]
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 non-substantive editorial revisions to its rules; substantive
revisions and additions to rules concerning ownership and control; and
substantive revisions to one rule about retention of sedimentation
ponds. New Mexico revised its program to be consistent with the
corresponding Federal regulations and to clarify ambiguities.
DATES: Effective Date: January 30, 2012.
FOR FURTHER INFORMATION CONTACT: Kenneth Walker, Chief, Denver Field
Division, Office of Surface Mining Reclamation and Enforcement, 1999
Broadway, Suite 3320, Denver, CO 80202, Telephone: (303) 293-5012.
Internet: kwalker@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's)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the New Mexico Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the New Mexico program on December 31, 1980. You
can find background information on the New Mexico program, including
the Secretary's findings, the disposition of comments, and conditions
of approval in the December 31, 1980, Federal Register (45 FR 86459).
You can also find later actions concerning New Mexico's program and
program amendments at 30 CFR 931.10, 931.11, 931.13, 931.15, 931.16,
and 931.30.
II. Submission of the Proposed Amendment
By letter dated September 1, 2010, New Mexico submitted an
amendment to its program (SATS No. NM-048-FOR, Docket ID OSM-2010-0014-
0007) under SMCRA (30 U.S.C. 1201 et seq.). New Mexico sent the
amendment (1) in response to a September 3, 2009, OSM letter (Docket ID
OSM-2010-0014-0003), concerning our ownership and control regulations,
consistent with 30 CFR 732.17(c); and (2) to include proposed program
changes made at its own initiative.
We announced receipt of the proposed amendment in the January 25,
2011, Federal Register (76 FR 4266). 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 (Docket ID OSM-2010-
0014-0001). We did not hold a public hearing or meeting because no one
requested one. The public comment period ended on February 24, 2011. We
received two Federal agency comment letters.
III. OSM's Findings
Following are the findings we made concerning the amendment under
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are
approving the amendment.
A. Minor Revisions to New Mexico's Rules
New Mexico proposed minor wording, editorial, punctuation, and
grammatical changes to the following previously-approved rules.
19.8.11.1105.E NMAC (30 CFR 774.11(a)(1)), Review of Permit
Applications;
19.8.11.1114 NMAC (30 CFR Part 773.17), Conformance of Permit;
[[Page 4462]]
19.8.30.3003.D NMAC (30 CFR 843.14(c)), Service of Notices of Violation
and Cessation Orders;
19.8.30.3004.D NMAC (30 CFR 843.15), Informal Hearings;
19.8.31.3103.A NMAC (30 CFR 845.15(a)), Assessment of Separate
Violation for Each Day;
19.8.34.3402.F(1) and (2) NMAC (30 CFR 702.11(f)(1) and (2)),
Application Requirements and Procedures;
19.8.34.3408.C(2) and (3) NMAC (30 CFR 702.17(c)(2) and (3)),
Revocation and Enforcement; and
19.8.35.13 NMAC (30 CFR 761.16(f)), Administrative and Judicial Review
of a Valid Existing Rights Determination.
Because these changes are minor non-substantive editorial
revisions, we find that they will not make New Mexico's rules less
effective than the corresponding Federal regulations and we approve
them.
B. Revisions to New Mexico's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
New Mexico proposed additions of or revisions to the following
rules concerning ownership and control which contain language that is
the same as or similar to the corresponding sections of the Federal
regulations.
19.8.11.1120.A through C NMAC (30 CFR 774.12(a) through (c)), Addition
of Rules Concerning Post-Permit Issuance Information Requirements for
Permittees,
19.8.11.1121.A through D NMAC (30 CFR 778.9(a), (b), (c) and (d)),
Addition of Rules Concerning Certifying and Updating Existing Permit
Application Information, and
19.8.31.3113.A through C NMAC (30 CFR 847.11(a), (b) and (c)), Addition
of Rules Concerning Criminal Penalties.
Because these proposed rules contain language that is the same as
or similar to the corresponding Federal regulations, we find that they
are no less effective than the corresponding Federal regulations, and
we approve them.
C. Revisions to New Mexico's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Ownership and Control. New Mexico submitted revisions of the
following rules concerning ownership and control. OSM discusses below
all proposed rules which New Mexico proposed to modify so that its
program would be no less effective than the counterpart Federal
regulations concerning ownership and control, including those rules
which provide the authority in the New Mexico program to take
enforcement actions against those found to be in positions of ownership
and control.
a. 19.8.1.7.K NMAC, Definition of ``Knowing and Knowingly'' and
19.8.1.7.W(2) NMAC, Definition of ``Willful and Willfully'' and
deletion of the Definition for ``Willful Violation.'' New Mexico
proposed new definitions of ``knowing and knowingly'' and ``willful and
willfully'' at, 19.8.1.7.K NMAC and 19.8.1.7.W(2) NMAC, that are
identical to the same counterpart Federal definitions at 30 CFR 701.5.
New Mexico proposed inclusion of these definitions in the New Mexico
program such that these terms are defined for their use throughout the
New Mexico program.
New Mexico also proposed to delete the definition of ``willful
violation'' at 19.8.1.7.W(2) NMAC; there exists no counterpart Federal
program definition.
For these reasons, the Director finds that New Mexico's proposed
addition of the definitions for ``knowing and knowingly'' and ``willful
and willfully'' at 19.8.1.7.K and 19.8.1.7.W(2) NMAC and proposed
deletion of the definition for ``willful violation'' at 19.8.1.7.W(2)
NMAC are consistent with and no less effective than the counterpart
Federal definitions of ``knowing and knowingly'' and ``willful and
willfully'' at 30 CFR 701.5.
b. 19.8.1.7.O(8)(a) and (b) NMAC, Definition of ``Owned or
Controlled and Owns or Controls.'' New Mexico's proposed definition of
``owned or controlled and owns or controls'' at 19.8.1.7.O(8)(a) and
(b) NMAC includes counterpart language to two of OSM's Federal
definitions at 30 CFR 701.5, the definitions for ``control or
controller'' and ``own, owner, or ownership.''
New Mexico proposed a revision of its definition of ``owned or
controlled and owns or controls'' at 19.8.1.7.O(8)(a) NMAC that is,
with one exception, substantively the same as the Federal definition of
``control or controller'' at 30 CFR 701.5. The exception is that, at
19.8.1.7.O(8)(a) NMAC, New Mexico does not include the operator as a
controller in the language. However, in the definition of ``owned or
controlled and owns or controls'' at 19.8.1.7.O(8)(b)(ii) NMAC, New
Mexico does include an operator as a presumed controller.
New Mexico proposed revisions of its definition of ``owned or
controlled and owns or controls'' at 19.8.1.7.O(8)(b)(iv) through
(viii) NMAC, which are, with one exception, substantively the same as
the counterpart Federal definition of ``Own, owner, or ownership'' at
30 CFR 701.5. The exception is that, at 19.8.1.7.O(8)(b)(vii) NMAC, New
Mexico proposes that ownership be based on owning of record 10 percent
or more of the entity, while OSM, in the Federal definition, provides
for ownership based on possessing or controlling in excess of 50
percent of the voting securities or other instruments of ownership of
an entity. In this respect, New Mexico's definition is more stringent
than the Federal definition; however, it is no less effective than the
Federal definition in identifying ownership.
New Mexico's existing definition of ``owned or controlled and owns
or controls'' at 19.8.1.7.O(8)(b) NMAC provides that a person, who is
identified as an owner, the opportunity to demonstrate that he/she does
not in fact have the authority directly or indirectly to determine the
manner in which the relevant surface coal mining operation is
conducted. In addition, New Mexico's existing rules at 19.8.11.1102
NMAC, 19.8.11.1117 NMAC, and 19.8.11.1118 NMAC are no less effective
than the Federal regulations at 30 CFR 773.25, 30 CFR 773.26, and 30
CFR 773.27 in allowing for challenges to ownership or control findings.
For these reasons, the Director finds that New Mexico's proposed
definition of ``owned or controlled and owns or controls'' at
19.8.1.7.O(8)(a) and (b) NMAC is no less effective than the counterpart
Federal definitions of ``control or controller'' and ``own, owner, or
ownership'' at 30 CFR 701.5, and approves it.
c. 19.8.7.701.C(3) NMAC, Identification of Interests. New Mexico
proposed to revise 19.8.7.701.C(3) NMAC to require that a permit
application contain, among other things, information specific to the
identification of persons whose identification is required by
19.8.11.1120.C NMAC, rather than 19.8.11.1113.D.
New Mexico's proposed 19.8.11.1120 NMAC, concerning post-permit
issuance information requirements for permittees, as discussed above,
is substantively identical to the counterpart Federal regulations at 30
CFR 774.12(a) through (c). The previously referenced rule at
19.8.11.1113.D NMAC does not exist in New Mexico's program;
furthermore, New Mexico's existing rules at 19.8.11.1113 NMAC pertain
to conditions of a permit affecting environment, public health and
safety, not ownership and control information.
Therefore, New Mexico's proposed revision of 19.8.7.701.C(3) NMAC
to
[[Page 4463]]
reference 19.8.11.1120.C NMAC, ensures that a permit application will
contain the most recent information pertaining to ownership and control
and eliminates confusion by deleting an inappropriately referenced rule
that has nothing to do with applicant ownership and control
information.
New Mexico also proposed to revise 19.8.7.701(C) NMAC to require
the submission of telephone numbers for persons who own or control the
applicant according to the definitions of ``owned or controlled and
owns or controls'' at 19.8.1.107.O NMAC. As discussed above, the
Director finds that New Mexico's proposed definition of ``owned or
controlled and owns or controls'' at 19.8.1.107.O NMAC is no less
effective than the counterpart definitions of ``control or controller''
and ``own, owner, or ownership'' at 30 CFR 701.5. New Mexico's proposed
revision to require submission of telephone numbers is consistent with
the requirement in the Federal regulations at 30 CFR 778.11(d). For any
change in persons identified, the Federal regulations under 30 CFR
774.12(c)(1) and by 30 CFR 778.11(d) requires, among other things, a
telephone number.
For these reasons, the Director finds that New Mexico's proposed
revisions of 19.8.7.701.C(3) NMAC are no less effective than the
counterpart Federal regulations at 30 CFR 774.12(a) through (c) and 30
CFR 778.11(d), and approves them.
d. 19.8.11.1105.F NMAC, Review of Permit Applications for Permit
Eligibility. New Mexico proposed revising 19.8.11.1105.F NMAC by adding
the requirement for the Director of the New Mexico program, after an
applicant's completion of the reporting required by 19.8.7.702 NMAC, to
request, no more than five business days before permit issuance, a
compliance history report from the applicant violator system (AVS) and
make that report part of the AVS record review required by New Mexico's
rule at 19.8.11.1116 NMAC. New Mexico's rule at 19.8.7.702.D NMAC
requires, after an applicant is notified that his or her application is
approved, but before the permit is issued, an applicant to either
update the information, concerning compliance information, previously
submitted or indicate that no change has occurred in the information.
New Mexico's rule at 19.8.11.116 requires, among other things, that New
Mexico must review all reasonably available information concerning
violation notices and ownership or control links to determine whether
the application can be approved.
Because New Mexico has revised its rule at 19.8.11.1105.F NMAC,
concerning a final compliance review for all permit applications, with
references to the reporting requirements of 19.8.7.702.D NMAC and the
AVS record review for permit eligibility required by 19.8.11.1116 NMAC,
the Director finds that New Mexico's proposed 19.8.11.1105.F NMAC is no
less effective in making the permit eligibility determination required
by 30 CFR 773.12, and approves it.
The Director notes that New Mexico's 19.8.11.1116.B NMAC, of which
New Mexico proposed no revision, requires New Mexico to deny approval
of an application if the review conducted discloses any ownership or
control link between the applicant and any person cited in a violation
notice unless certain actions have been taken (which are specified in
19.8.11.1116.B NMAC). Under the counterpart Federal regulation at 30
CFR 773.12(a), permits may be denied only if an applicant directly (one
level down) owns or controls, or if the applicant or operator
indirectly controls an entity with an unabated or uncorrected
(``outstanding'') violation if the control and the violation occurred
after November 2, 1988. In this respect, New Mexico's proposed rule at
19.8.11.1105.F NMAC is more stringent, but no less effective than, the
counterpart Federal regulation at 30 CFR 773.12(a).
e. 19.8.11.1119.A through H NMAC, Post-Permit Issuance Requirements
and Other Actions. New Mexico proposed additional rules at
19.8.11.1119.A through H NMAC, concerning post-permit issuance
requirements and other actions based on ownership, control, and
violation information, that are, with one exception, substantively
identical to the counterpart Federal regulations at 30 CFR 774.11(a)
through (h). The exception is that New Mexico's proposed rule at
19.8.11.1119.C NMAC is more stringent than the counterpart Federal
regulation at 30 CFR 774.11(c), in that the referenced rule at
19.8.11.1116 NMAC, as discussed above, allows for any ownership or
control link between the applicant and any person cited in a violation
notice to cause finding of permanent permit ineligibility rather than
the more limited ownership and control link provided for the Federal
regulation referenced at 30 CFR 773.12(a). The proposed New Mexico
rules need only meet the minimum requirements of the counterpart
Federal regulations; New Mexico may elect to be more stringent.
For this reason, the Director finds that New Mexico's proposed
19.8.11.1119.A through H NMAC are no less effective than the
counterpart 30 CFR 774.11(a) through (h), and approves them.
f. 19.8.30.3000.L NMAC, Cessation Orders. New Mexico proposed to
revise 19.8.30.3000.L NMAC, concerning persons who must receive New
Mexico's written notification of issuance of a cessation order, to
require that the notice be sent to any person who has been identified
under 19.8.11.1119.F NMAC, rather than 19.8.11.1113.D NMAC. New
Mexico's referenced rule at 19.8.11.1119.F specifies, among other
things, that New Mexico may, at any time, identify any person who owns
or controls all or part of a surface coal mining operation.
New Mexico's proposed rule at 19.8.30.3000.L NMAC also requires
that persons identified in 19.8.7.701.C NMAC and 19.8.7.701.D NMAC as
owning or controlling the permittee receive the same written
notification of the issuance of a cessation order; New Mexico has
proposed no revision of these rules. Referenced 19.8.7.701.C NMAC
specifies information required to be in a permit application, including
a list of outstanding violation notices received prior to the date of
the application by any surface coal mining operation that is owned or
controlled by either the applicant or any person who owns or controls
the applicant under the definition of ``owned or controlled and owns or
controls'' at 19.8.1.107.O NMAC. Referenced 19.8.7.702.D NMAC requires,
after an applicant is notified that his or her application is approved,
but before the permit is issued, an applicant to either update the
information, concerning compliance information, previously submitted or
indicate that no change has occurred in the information.
The counterpart Federal regulation to New Mexico's referenced
19.8.11.3000.L NMAC is 30 CFR 843.11(g), which requires that the
Director notify in writing persons identified as an owner or controller
of the operation, as defined at 30 CFR 701.5, that a cessation order
has been issued.
As discussed above, 19.8.11.1113.D NMAC does not exist in New
Mexico's program and New Mexico's existing rules at 19.8.11.1113.A
through C pertain to conditions of permit affecting environment, public
health and safety (not ownership and control information). Also as
discussed above, the Director finds that New Mexico's proposed rules at
19.8.11.1119.A through H NMAC are substantively identical to and no
less effective than the counterpart 30 CFR 777.11(a) through (h). In
addition, as discussed above, New Mexico's proposed
[[Page 4464]]
definition of ``owned or controlled and owns or controls'' at
19.8.1.107.O NMAC is no less effective than the counterpart definitions
of ``control or controller'' and ``own, owner, or ownership'' at 30 CFR
701.5.
For these reasons, the Director finds that New Mexico's proposed
revision at 19.8.30.3000.L NMAC causes proposed 19.8.30.3000.L to be no
less effective than the counterpart Federal regulation at 30 CFR
843.11(g), in that the proposed reference to 19.8.11.1119.F NMAC will
ensure that all people listed as owners or controllers will receive a
written notification of the issuance of a cessation order. The Director
approves proposed 19.8.30.3000.L NMAC.
g. 19.8.31.3109.A NMAC, Individual Civil Penalties. New Mexico
proposed revision of 19.8.31.3109.A NMAC to clarify when the Director
of the New Mexico program may assess an individual civil penalty; i.e.,
the Director may assess an individual civil penalty against any
corporate director, officer, or agent of a corporate permittee who
knowingly and willfully authorized, ordered, or carried out a violation
of a permit condition, or a failure or refusal to comply with any order
issued under the act. New Mexico proposed this clarification because
New Mexico proposed deletion of definition of ``willful violation'' at
19.8.1.7.W(2) NMAC.
The counterpart Federal regulation at 30 CFR 846.12(a) provides
that OSM may assess an individual civil penalty against any corporate
director, officer, or agent to a corporate permitttee who knowingly and
willfully authorized, ordered, or carried out a violation, failure, or
refusal.
New Mexico's proposed rule at 19.8.31.3109.A NMAC is substantively
the same as the counterpart Federal regulation at 30 CFR 846.12(a),
concerning individual civil penalties. New Mexico's proposed rule
differs only in that it provides clarification of the phrase `a
violation, failure or refusal' as used in the counterpart Federal
regulation.
For these reasons, the Director finds that New Mexico's proposed
revision of 19.8.31.3109.A NMAC is no less effective than the
counterpart Federal regulation at 30 CFR 846.12(a), concerning
individual civil penalties, and approves it.
h. 19.8.31.3109.A(1), (2) and (3) NMAC, Deletion of definitions of
``knowingly'', ``willfully'', and ``violation, failure or refusal.'' At
19.8.31.3109.A(1), (2), and (3) NMAC, New Mexico proposed to delete the
definitions of ``knowingly,'' ``willfully,'' and ``violation, failure
or refusal''.
As discussed above, in finding number C.1.a, New Mexico proposed
new definitions of ``knowing and knowingly'' and ``willful and
willfully'' at, respectively, 19.8.1.7.K NMAC and 19.8.1.7.W(2) NMAC,
that are (1) identical to the same counterpart Federal definitions at
30 CFR 701.5 and (2) defined for their use throughout the New Mexico
program. New Mexico's definitions of ``knowingly'', ``willfully'', and
``violation, failure or refusal'' have no counterpart in the Federal
program and were applicable only to rules concerning individual civil
penalties in New Mexico's program.
Therefore, the Director finds that New Mexico's proposed deletion,
at 19.8.31.3109.A(1), (2), and (3) NMAC, of the definitions of
``knowingly,'' ``willfully,'' and ``violation, failure or refusal'' is
consistent with New Mexico's proposed definitions of ``knowing and
knowingly'' and ``willful and willfully,'' and no less effective than
the counterpart Federal definitions of ``knowing and knowingly'' and
``willful and willfully'' at 30 CFR 701.5. The Director approves New
Mexico's proposed deletions of these terms.
2. 19.8.20.2010.A(2) NMAC, Sediment Control Measures and Water
Quality Standards and Effluent Limitations. New Mexico proposes to
delete 19.8.20.2010.A(2)(a) and (b) NMAC pertaining to the maintenance
of sedimentation ponds.
19.8.20.2010.A(2)(a) NMAC. New Mexico proposed to delete a
provision at paragraph (2)(a) which requires that sedimentation ponds
be retained to prevent gully erosion from occurring. New Mexico's
existing rule at paragraph (2) requires, among other things, that
sediment ponds be maintained until erosion on the regraded area has
been controlled. The requirement in paragraph (2), to retain sediment
ponds until erosion has been controlled, achieves the same purpose in
the deleted provision at (2)(a). Therefore, New Mexico's proposal to
delete the provision at 19.8.20.2010.A(2)(a) NMAC, is not necessary in
New Mexico's program to ensure the appropriate use of sedimentation
ponds.
19.8.20.2010.A(2)(b) NMAC. This provision, proposed for deletion,
requires maintenance of sedimentation ponds to insure that the quality
of the untreated drainage from the disturbed area meets the applicable
State and Federal water quality standard requirements for the receiving
stream, except during precipitation events which are equal to or
greater than the 2-year recurrence interval. New Mexico explained that
the provision proposed for deletion at 19.8.20.2010.A(2)(b) NMAC,
contradicts New Mexico's rule at 19.8.20.2010.B(1) NMAC, which provides
for discharges from disturbed areas to exceed the effluent limitations
of 19.8.20 NMAC, if the discharge (1) resulted from a precipitation
event equal to or larger than a 10-year 24-hour precipitation event and
(2) is from facilities designed, constructed, and maintained in
accordance with the requirements of 19.8.20 NMAC.
In addition, New Mexico's existing rule at 19.8.20.2010.C NMAC
requires, among other things, that a permittee must install, operate,
and maintain adequate facilities to treat any water discharged from the
disturbed area so that it complies with all Federal and State laws and
regulations and the limitations of 19.8.20 NMAC.
Therefore, New Mexico's proposed deletion of 19.8.20.2010.A(2)(a)
and (b) NMAC clarifies their program by removing language that is
either contradictory of existing requirements at 19.8.20.2010.B(1)
NMAC, or repetitive of existing requirements at 19.8.20.2010.C NMAC.
The Federal counterparts to New Mexico's rules proposed for
deletion at 19.8.20.2010.A(2)(a) and (b) NMAC are found at 30 CFR
816.42 and 30 CFR 816.45(a)(2). The counterpart Federal regulations at
30 CFR 816.42 require that discharges of water from areas disturbed by
surface mining activities shall be made in compliance with all
applicable State and Federal water quality laws and regulations and
with the effluent limitations for coal mining promulgated by the U.S.
Environmental Protection Agency set forth in 40 CFR Part 434. The
Federal regulations at 40 CFR Part 434, similar to those in the New
Mexico program, provide for exemptions from the requirement to meet
effluent standards. The counterpart Federal regulations at 30 CFR
816.45(a)(2) require appropriate sediment control measures be
maintained to, among other things, meet the more stringent of
applicable State or Federal effluent limitations.
OSM finds that New Mexico's proposed deletion of
19.8.20.2010.A(2)(a) and (b) NMAC, in conjunction with New Mexico's
existing rules at 19.8.20.2010.A(1), A(2), B(1), and C NMAC, is
consistent with and no less effective than the requirements of the
Federal regulations at 30 CFR 816.42, concerning the need for runoff
from disturbed areas to meet applicable water quality effluent
standards, and 30 CFR 816.45(a)(2), concerning the requirement for
adequate sediment control measures. The Director approves proposed rule
19.8.20.2010.A.2 NMAC.
[[Page 4465]]
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Docket ID Nos. OSM-
2010-0014-0001 and OSM-2010-0014-0008), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the New Mexico program (Docket ID
No. OSM-2010-0014-0008). We received two comment letters. We received
one comment letter from the U.S. Department of Agriculture, Natural
Resources Conservation Service (NRCS), dated February 24, 2011 (Docket
ID No. OSM-2010-0014-0009). The NRCS stated that they had no comments
on the proposed rulemaking. We received one emailed comment from the
U.S. Department of Energy (DOE), dated March 15, 2011 (Docket ID No.
OSM-2010-0014-0010). The DOE stated that they had no comments on the
proposed rulemaking.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to obtain
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 setting air or water quality standards.
Therefore, we did not ask EPA to concur on the amendment. However,
under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment
from EPA (Docket ID No. OSM-2010-0014-0008). 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. Although the revisions that New Mexico proposed to make in
this amendment would not have effects on historic properties, on
January 25, 2011, we nonetheless requested comments from the SHPO and
ACHP on New Mexico's amendment (Docket ID No. OSM-2010-0014-0008).
However, we did not receive responses from the SHPO or ACHP.
V. OSM's Decision
Based on the above findings, we approve New Mexico's September 1,
2010, amendment.
To implement this decision, we are amending the Federal regulations
at 30 CFR part 931, which codify decisions concerning the New Mexico
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately. Section 503(a) of SMCRA
requires that the State's program demonstrate 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.
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.
4332(2)(C) et seq.).
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.).
[[Page 4466]]
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.
Dated: April 18, 2011.
Allen D. Klein,
Director, Western Region.
Editorial Note: This document was received at the Office of the
Federal Register on January 25, 2012.
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 of final
date publication Citation/description
------------------------------------------------------------------------
* * * * * * *
September 1, 2010............. January 30, 2012. 19 NMAC 8.1.7.K;
8.1.7.O(8)(a) and
(b); 8.1.7.W(2)(a)
and (b);
8.7.701.C(3);
8.11.1105.E;
8.11.1105.F;
8.11.1114;
8.11.1119.A through
H; 8.11.1120.A
through C;
8.11.1121.A through
D; 8.20.2010.A(2)(a)
and (b) (deletion);
8.30.3000.L;
8.30.3003.D;
8.30.3004.D;
8.31.3103.A;
8.31.3109.A;
8.31.3109.A(1)
through (3)
(deletion);
8.31.3113.A, B, and
C; 8.34.3402.F(1)
and (2);
8.34.3408.C(2) and
(3); and 8.35.13.
------------------------------------------------------------------------
[FR Doc. 2012-1956 Filed 1-27-12; 8:45 am]
BILLING CODE 4310-05-P
