[Federal Register Volume 66, Number 247 (Wednesday, December 26, 2001)]
[Proposed Rules]
[Pages 66377-66379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31615]


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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; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM), are announcing receipt of revisions to a previously proposed 
amendment to the Louisiana regulatory program (Louisiana program) under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the 
Act). The revisions concern valid existing rights. Louisiana intends to 
revise its program to be consistent with the corresponding Federal 
regulations.

DATES: We will accept written comments until 4 p.m., c.s.t., January 
10, 2002.

ADDRESSES: You should mail or hand deliver written comments to Michael 
C. Wolfrom, Director, Tulsa Field Office, at the address listed below.
    You may review copies of the Louisiana program, the amendment, 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
Department of Natural Resources, Office of Conservation, Injection and 
Mining Division, 625 N. 4th Street, P. O. 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.

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 these 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. Discussion 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).
    We announced receipt of the amendment in the September 20, 2001, 
Federal Register (66 FR 48393) and invited public comment on its 
adequacy. The public comment period closed October 22, 2001.
    During our review of the amendment, we identified concerns about 
the proposed amendment. We notified Louisiana of these concerns by 
letter dated November 14, 2001 (Administrative Record No. LA-366.08). 
By letter dated November 20, 2001, Louisiana sent us a revised 
amendment (Administrative Record No. LA-366.09).
    Louisiana submitted additional revisions for the following 
provisions of the amendment:

A. Section 105, Definition of Valid Existing Rights

    Louisiana proposes to add a provision at paragraph c.4 of its 
proposed definition to provide that a person who claims valid existing 
rights to use or construct a road across the surface of protected lands 
may demonstrate that valid existing rights exist under Sec. 105.Valid 
Existing Rights a and b.

[[Page 66378]]

B. Section 1105, Areas Where Mining Is Prohibited or Limited

    Louisiana proposes to revise the introductory language of this 
section to read as follows:

    No surface coal mining operation shall be conducted on the 
following lands unless the applicant has either valid existing 
rights, as determined under Sec. 2323, or qualifies for the 
exception under Sec. 1109.

C. Section 1107, Procedures

    1. Louisiana proposes to add a new Sec. 1107.B to provide that the 
office will reject any portion of a permit application that would 
locate surface coal mining operations on lands protected under 
Sec. 1105 unless (1) the site qualifies for the exception for existing 
operations under Sec. 1109; (2) a person has valid existing rights for 
the land, as determined under Sec. 2323; (3) the applicant obtains a 
waiver or exception from the prohibitions of Sec. 1105 in accordance 
with Sec. 1107.C or D; or (4) 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.
    2. Louisiana proposes to redesignate existing Sec. 1107.B as new 
Sec. 1107.C, and revise it to read as follows:

    1. If the office is unable to determine whether the proposed 
operation includes land within an area specified in Sec. 1105.A.1. 
or is located closer than the limits provided in Sec. 1105.A.6 or 7, 
the office shall transmit a copy of the relevant portions of the 
permit application to the federal, state, or local government agency 
with jurisdiction over the protected land, structure, or feature for 
a determination or clarification of the relevant boundaries or 
distances, with a notice to the appropriate agency that it must 
respond within 30 days of receipt of the request. The notice must 
specify that another 30 days is available upon request, and that the 
office will not necessarily consider a response received after the 
comment period provided. If no response is received within the 30-
day period or within the extended period granted, the office may 
make the necessary determination based on the information it has 
available.

    3. Louisiana proposes to redesignate existing Sec. 1107.C as new 
Sec. 1107.D, and add a sentence at the beginning that states that the 
provisions of Sec. 1107.D do not apply to lands for which a person has 
valid existing rights, as determined under Sec. 2323; lands within the 
scope of the exception for existing operations in Sec. 1109; or access 
or haul roads that join a public road, as described in Sec. 1105.A.4.b.
    4. Louisiana proposes to redesignate existing Sec. 1107.D as new 
Sec. 1107.E, and add a sentence at the beginning that states that the 
provisions of Sec. 1107.E do not apply to lands for which a person has 
valid existing rights, as determined under Sec. 2323; lands within the 
scope of the exception for existing operations in Sec. 1109; or access 
or haul roads that connect with an existing public road on the side of 
the public road opposite the dwelling, as provided in Sec. 1105.A.5.
    5. Louisiana proposes to redesignate existing Sec. 1107.E as new 
Sec. 1107.F, and revise it to read as follows:

    1. Where the office determines that the proposed surface coal 
mining operation will adversely affect any publicly owned park or 
any place included in the National Register of Historic Places, the 
office shall transmit to the federal, state, or local agency with 
jurisdiction over the park or place a copy of applicable parts of 
the permit application, together with a request for the agency's 
approval or disapproval of the operation, and a notice to that 
agency that it has 30 days from receipt of the request within which 
to respond. The notice must specify that another 30 days is 
available upon request, and that failure to interpose a timely 
objection will constitute approval. The office may not issue a 
permit for a proposed operation subject to the provisions of this 
paragraph unless all affected agencies jointly approve.
    2. Sec. 1107.F does not apply to lands for which a person has 
valid existing rights, as determined under Sec. 2323 or lands within 
the scope of the exception for existing operations in Sec. 1109.

    6. Finally, Louisiana proposed to delete existing Sec. 1107.F and 
G.

D. Section 1109, Exception for Existing Operations

    Louisiana proposes to add this new section to provide that the 
prohibitions of Sec. 1105 do not apply to surface coal mining 
operations for which a valid permit, issued under Subpart 3 of the 
Louisiana Surface Mining Regulations, exists when the land comes under 
the protection of Sec. 1105. This exception applies only to lands 
within the permit area as it exists when the land comes under the 
protection Sec. 1105.

E. Section 2323, Valid Existing Rights Determination

    1. Louisiana proposes to add new Sec. 2323.A to describe when the 
office is responsible for making valid existing rights determinations.
    2. Louisiana proposes to redesignate proposed Sec. 2323.A as new 
Sec. 2323.B, and revise it to describe what an applicant must submit 
when a request for a valid existing rights determination relies on the 
various standards described in Sec. 105.Valid Existing Rights.b, b.i, 
b.ii, and c.
    3. Louisiana proposes to redesignate proposed Sec. 2323.B as new 
Sec. 2323.C, and correct references throughout to reflect the changes 
made in this proposed rule.
    4. Louisiana proposes to redesignate proposed Sec. 2323.C as new 
Sec. 2323.D, delete the sentence at new Sec. 2323.D.1 that provides 
that OSM will publish a public notice in the Federal Register, and 
correct references throughout new Sec. 2323.D to reflect the changes 
made in this proposed rule.
    5. Louisiana proposes to redesignate proposed Sec. 2323.D as new 
Sec. 2323.E, correct references throughout to reflect the changes made 
in this proposed rule, and replace the phrases ``agency responsible for 
making the determination of valid existing rights,'' ``responsible 
agency,'' and ``agency'' with the word ``office.'' Louisiana also 
proposes to delete the sentence at new Sec. 2323.E.5.b that provides 
that OSM will publish its determination, along with an explanation of 
appeal rights and procedures, in the Federal Register.
    6. Louisiana proposes to redesignate proposed Sec. 2323.E and F as 
new Sec. 2323.F and G, and correct references throughout to reflect the 
changes made in this proposed rule. Louisiana also proposes to replace 
the phrases ``agency responsible for processing a request subject to 
notice and comment under Sec. 2323.C,'' ``agency, when acting as the 
regulatory authority,'' and ``agency'' with the word ``office.''

F. Miscellaneous Changes

    Finally, Louisiana proposes to make a number of cross-reference 
changes in Secs. 1105.A.4.b, 2311.B, 2731.A.2, 2733, 3103.A.5, and 
3115.A.4.c to reflect the changes made in this proposed rule. Louisiana 
also proposes to correct a typographical error in Sec. 2111.

III. Public Comment Procedures

    We are reopening the comment period on the proposed Louisiana 
program amendment to provide you an opportunity to reconsider the 
adequacy of the amendment in light of the additional materials sent to 
us. Under the provisions of 30 CFR 732.17(h), we are requesting 
comments on whether the amendment satisfies the 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 comments on the proposed 
rule during the 15-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).

[[Page 66379]]

    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 representatives or officials of organizations 
or businesses, available for public inspection in their entirety.

IV. 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 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. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

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).

Paperwork Reduction Act

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

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), 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 governmental agencies or 
geographic regions; and (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 918

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: December 10, 2001.
Charles E. Sandberg,
Acting Regional Director, Mid-Continent Regional Coordinating Center.
[FR Doc. 01-31615 Filed 12-21-01; 8:45 am]
BILLING CODE 4310-05-P