[Federal Register Volume 66, Number 183 (Thursday, September 20, 2001)]
[Proposed Rules]
[Pages 48393-48396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23505]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

[SPATS No. LA-021-FOR]


Louisiana Regulatory Program

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

ACTION: Proposed rule; public comment period and opportunity for public 
hearing.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is announcing receipt of a proposed amendment to the Louisiana 
regulatory program (Louisiana program) under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Louisiana proposes 
revisions to and additions of regulations concerning valid existing 
rights. Louisiana intends to revise the Louisiana program to be 
consistent with the corresponding Federal regulations.
    This document gives the times and locations that the Louisiana 
program and the proposed amendment to that program are available for 
your inspection, the comment period during which you may submit written 
comments on the amendment, and the procedures that we will follow for 
the public hearing, if one is requested.

DATES: We will accept written comments until 4 p.m., c.d.t., October 
22, 2001. If requested, we will hold a public hearing on the amendment 
on October 15, 2001. We will accept requests to speak at the hearing 
until 4 p.m., c.d.t. on October 5, 2001.

ADDRESSES: You should mail or hand deliver written comments and 
requests to speak at the hearing to Michael C. Wolfrom, Director, Tulsa 
Field Office, at the address listed below.
    You may review copies of the Louisiana program, the amendment, a 
listing of any scheduled public hearings, and all written comments 
received in response to this document at the addresses listed below 
during normal business hours, Monday through Friday, excluding 
holidays. You may receive one free copy of the amendment by contacting 
OSM's Tulsa Field Office.
    Michael C. Wolfrom, Director, Tulsa Field Office, Office of Surface 
Mining, 5100 East Skelly Drive, Suite 470, Tulsa, Oklahoma 74135-6547, 
Telephone: (918) 581-6430.
    Louisiana Department of Natural Resources, Office of Conservation, 
Injection and Mining Division, 625 N . 4th Street, PO Box 94275, Baton 
Rouge, LA 70804, Telephone: (225) 342-5540.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office. Telephone: (918) 581-6430. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana 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 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 the Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to the Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of this criteria, the Secretary of the Interior approved the 
Louisiana program on October 10, 1980. You can find background 
information on the Louisiana program, including the Secretary's 
findings and the disposition of comments in the October 10, 1980, 
Federal Register (45 FR 67340). You can find later actions concerning 
the Louisiana program at 30 CFR 918.15 and 918.16.

II. Description of the Proposed Amendment

    By letter dated August 3, 2001 (Administrative Record No. LA-
366.04), Louisiana sent us an amendment to its program under SMCRA and 
the Federal regulations at 30 CFR 732.17(b). Louisiana sent the 
amendment in response to our letters dated August 23, 2000, and March 
14, 2001 (Administrative Record Nos. LA-366 and LA-366.03, 
respectively), that we sent to Louisiana under 30 CFR 732.17(c). 
Louisiana proposes to amend the Louisiana Surface Mining Regulations to 
be consistent with the corresponding Federal regulations on valid 
existing rights that were published on December 17, 1999 (64 FR 70766). 
Below is a summary of the changes proposed by Louisiana. The full text 
of the program amendment is available for your inspection at the 
locations listed above under ADDRESSES.

A. Section 105  Definition of Valid Existing Rights

    Louisiana proposes to replace its currently approved definition of 
``valid existing rights'' with a new definition that sets out the 
circumstances under which a person may, subject to the

[[Page 48394]]

Office of Conservation's (office) approval, conduct surface coal mining 
operations on lands where it would otherwise be prohibited by section 
922.D of the Louisiana Surface Mining and Reclamation Act or section 
1105 of the Louisiana Surface Mining Regulations. Section 105.a 
provides that a person claiming valid existing rights for any type of 
surface coal mining operations other than roads must make a property 
rights demonstration. It includes provisions for the type of documents 
needed and interpretation of the documents used for the demonstration. 
Section 105.b provides that a person claiming valid existing rights 
also must demonstrate compliance with either a good faith/all permits 
standard or a needed for and adjacent standard. Section 105.b.i 
contains provisions for the good faith/all permits standard, and 
section 105.b.ii includes provisions for the needed for and adjacent 
standard. Section 105.c provides that a person who claims valid 
existing rights to use or construct a road across the surface of 
protected lands must demonstrate that one or more of the circumstances 
listed in paragraphs c.i through c.iii exist if the road is included 
within the definition of surface coal mining operations in section 105. 
The circumstances listed in paragraphs c.i through c.iii include 
provisions specifying that: (1) The road existed when the land upon 
which it is located came under protection and the person has a legal 
right to use the road, (2) a properly recorded right-of-way or easement 
for a road in that location existed when the land came under 
protection, and (3) a valid permit for use or construction of a road in 
that location existed when the land came under protection.

B. Section 2323  Valid Existing Rights Determination

    Louisiana proposes to add provisions concerning submission and 
processing of requests for valid existing rights determinations. 
Section A requires submission of a request for a valid existing rights 
determination if surface coal mining operations will be conducted on 
the basis of valid existing rights under section 1105. Section A.1 
includes provisions for requesting a determination for roads. Section B 
includes procedures for an initial review of a request for a 
determination that valid existing rights have been demonstrated. 
Section C includes requirements and procedures for public notice and 
comment. Section D contains procedures and criteria for making a final 
decision on the request for a determination that valid existing rights 
have been demonstrated. Section E specifies that a determination of an 
applicant having or not having valid existing rights is subject to 
administrative and judicial review. Section F requires Louisiana to 
make a copy of the request for a valid existing rights determination 
and records associated with the request available to the public.

C. Section 1107  Procedures

    Louisiana is proposing to revise section 1107.B by removing the 
existing first sentence and adding the following provisions:

    B. The office shall reject any portion of the application that 
would locate surface coal mining operations on land protected under 
Sec. 1105 unless:
    1. A person has valid existing rights for the land, as 
determined under Sec. 2323;
    2. The applicant obtains a waiver or exception from the 
prohibitions of Sec. 1105 in accordance with Secs. 1107.C or D; or
    3. For lands protected by Sec. 1105.A.3, both the office and the 
agency with jurisdiction over the park or place jointly approve the 
proposed operation in accordance with Sec. 1107.E.
    The remaining existing sentences will be added to the end of the 
new provision in section 1107.B.3.

D. Section 2111  General Requirements: Development Operations Involving 
Removal of More than 250 Tons

    At section 2111.A.8, Louisiana is proposing that the application 
for a development operation involving removal of more than 250 tons of 
coal must contain the following additional information:

    8. For any lands listed in Sec. 1105, a demonstration that to 
the extent technologically and economically feasible, the proposed 
exploration activities have been designed to minimize interference 
with the values for which those lands were designated as unsuitable 
for surface coal mining operations. The application must include 
documentation of consultation with the owner of the feature causing 
the land to come under the protection [of] Sec. 1105, and, when 
applicable, with the agency with primary jurisdiction over the 
feature with respect to the values that caused the land to come 
under the protection of Sec. 1105.

E. Section 2113  Applications: Approval or Disapproval of Development 
of More Than 250 Tons

    At section 2113.B.4, Louisiana is proposing the following new 
finding that must be made before the Commissioner of the Office of 
Conservation approves a complete application for a development 
operation involving removal of more than 250 tons of coal:

    4. Will, with respect to exploration activities on any lands 
protected under Sec. 1105, minimize interference, to the extent 
technologically and economically feasible, with the values for which 
those lands were designated as unsuitable for surface coal mining 
operations. Before making this finding, the office will provide 
reasonable opportunity to the owner of the feature causing the land 
to come under the protection of Sec. 1105, and, when applicable, to 
the agency with primary jurisdiction over the feature with respect 
to the values that caused the land to come under the protection of 
Sec. 1105, to comment on whether the finding is appropriate.

III. Public Comment Procedures

    Under the provisions of 30 CFR 732.17(h), we are seeking comments 
on whether the proposed amendment satisfies the applicable program 
approval criteria of 30 CFR 732.15. If we approve the amendment, it 
will become part of the Louisiana program.
    Written Comments: If you submit written or electronic comments on 
the proposed rule during the 30-day comment period, they should be 
specific, should be confined to issues pertinent to the notice, and 
should explain the reason for your recommendation(s). We may not be 
able to consider or include in the Administrative Record comments 
delivered to an address other than the one listed above (see 
ADDRESSES).
    Electronic Comments: Please submit Internet comments as an ASCII, 
WordPerfect, or Word file avoiding the use of special characters and 
any form of encryption. Please also include ``Attn: SPATS NO. LA-021-
FOR'' and your name and return address in your Internet message. If you 
do not receive a confirmation that we have received your Internet 
message, contact the Tulsa Field Office at (918) 581-6430.
    Availability of Comments: Our practice is to make comments, 
including names and home addresses of respondents, available for public 
review during regular business hours at OSM's Tulsa Field Office (see 
ADDRESSES). Individual respondents may request that we withhold their 
home address from the administrative record, which we will honor to the 
extent allowable by law. There also may be circumstances in which we 
would withhold from the administrative record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as

[[Page 48395]]

representatives or officials of organizations or businesses, available 
for public inspection in their entirety.
    Public Hearing: If you wish to speak at the public hearing, contact 
the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., 
c.d.t. on October 5, 2001. We will arrange the location and time of the 
hearing with those persons requesting the hearing. If no one requests 
an opportunity to speak at the public hearing, the hearing will not be 
held.
    To assist the transcriber and ensure an accurate record, we 
request, if possible, that each person who speaks at a public hearing 
provide us with a written copy of his or her testimony. The public 
hearing will continue on the specified date until all persons scheduled 
to speak have been heard. If you are in the audience and have not been 
scheduled to speak and wish to do so, you will be allowed to speak 
after those who have been scheduled. We will end the hearing after all 
persons scheduled to speak and persons present in the audience who wish 
to speak have been heard.
    If you are disabled and need a special accommodation to attend a 
public hearing, contact the person listed under FOR FURTHER INFORMATION 
CONTACT.
    Public Meeting: If only one person requests an opportunity to speak 
at a hearing, a public meeting, rather than a public hearing, may be 
held. If you wish to meet with us to discuss the proposed amendment, 
you may request a meeting by contacting the person listed under FOR 
FURTHER INFORMATION CONTACT. All such meetings are open to the public 
and, if possible, we will post notices of meetings at the locations 
listed under ADDRESSES. We will also make a written summary of each 
meeting a part of the Administrative Record.

IV. Procedural Determinations

Executive Order 12866--Regulatory Planning and Review

    This rule is exempted from review by the Office of Management and 
Budget under Executive Order 12866.

Executive Order 12630--Takings

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

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 under SMCRA.

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, to the 
extent allowed by law, 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 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 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

    Section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that a 
decision on a proposed State regulatory program provision does not 
constitute a major Federal action within the meaning of section 
102(2)(C) of the National Environmental Policy Act (NEPA) (42 U.S.C. 
4332(2)(C)). A determination has been made that such decisions are 
categorically excluded from the NEPA process (516 DM 8.4.A).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The 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. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. 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), 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 a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

[[Page 48396]]

List of Subjects in 30 CFR Part 918

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 16, 2001.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-23505 Filed 9-19-01; 8:45 am]
BILLING CODE 4310-05-P