[Federal Register Volume 67, Number 38 (Tuesday, February 26, 2002)]
[Rules and Regulations]
[Pages 8717-8719]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4516]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 918

[LA-021-FOR]


Louisiana Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSM) are approving an amendment to the Louisiana regulatory program 
(Louisiana program) under the Surface Mining Control and Reclamation 
Act of 1977 (SMCRA or the Act). Louisiana proposed revisions to and 
additions of regulations concerning valid existing rights. Louisiana 
revised its program to be consistent with the corresponding Federal 
regulations.

EFFECTIVE DATE: February 26, 2002.

FOR FURTHER INFORMATION CONTACT: Michael C. Wolfrom, Director, Tulsa 
Field Office, Office of Surface Mining, 5100 East Skelly Drive, Suite 
470, Tulsa, Oklahoma 74135-6548, Telephone: (918) 581-6430, Internet: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Louisiana Program
II. Submission of the Amendment
III. OSM's Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

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 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 Louisiana program on October 10, 1980. You 
can find background information on the Louisiana program, including the 
Secretary's findings, the disposition of comments, and the conditions 
of approval in the October 10, 1980, Federal Register (47 FR 23883). 
You can also find later actions concerning the Louisiana program and 
program amendments at 30 CFR 918.15 and 918.16.

II. Submission of the Amendment

    By letter dated August 3, 2001 (Administrative Record No. LA-
366.04), Louisiana sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Louisiana sent the amendment in response to an 
August 23, 2000, letter (Administrative Record No. LA-366) that we sent 
to Louisiana in accordance with 30 CFR 732.17(c). Louisiana proposed to 
amend the Louisiana Surface Mining Regulations (LSMR).
    We announced receipt of the proposed amendment in the September 20, 
2001, Federal Register (66 FR 48393). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy. We did not hold a 
public hearing or meeting because no one requested one. The public 
comment period ended on October 22, 2001. We received comments from one 
Federal agency.
    During our review of the amendment, we identified concerns about 
the definition of valid existing rights; areas where mining is 
prohibited or limited; exceptions for existing operations; procedures 
for permit application review; general requirements for development 
operations involving removal of more than 250 tons; valid existing 
rights determinations; criteria for permit approval or denial; and 
several cross-reference errors. We notified Louisiana of these concerns 
by letter dated November 16, 2001 (Administrative Record No. LA-
366.08). By letter dated November 20, 2001 (Administrative Record No. 
LA-366.09), Louisiana sent us revisions to its proposed program 
amendment.
    Based on Louisiana's revisions to its amendment, we reopened the 
public comment period in the December 26, 2001, Federal Register (66 FR 
66377). The public comment period ended on January 10, 2002. We 
received comments from one Federal agency.

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. Any 
revisions that we do not discuss below concern nonsubstantive wording 
or editorial changes or revised cross-references and paragraph 
notations to reflect organizational changes resulting from this 
amendment.
    Louisiana's regulations listed in the table below contain language 
that is the same as or similar to the corresponding sections of the 
Federal regulations.

[[Page 8718]]



------------------------------------------------------------------------
                                   State          Federal counterpart
            Topic                regulation           regulation
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Definition of valid existing   Sec.  105....  30 CFR 761.5.
 rights.
Areas where mining is          Sec.  1105...  30 CFR 761.11.
 prohibited or limited.
Procedures for permit          Sec.  1107.B.  30 CFR 761.17(b).
 application review.
Location verification........  Sec.  1107.C.  30 CFR 761.17(c).
Procedures for relocating or   Sec.  1107.D.  30 CFR 761.14.
 closing a public road or
 waiving the prohibition on
 surface coal mining
 operations within the buffer
 zone of a public road.
Procedures for waiving the     Sec.  1107.E.  30 CFR 761.15.
 prohibition on surface coal
 mining operations within the
 buffer zone of an occupied
 dwelling.
Procedures for joint approval  Sec.  1107.F.  30 CFR 761.17(d).
 of surface coal mining
 operations that will
 adversely affect publicly
 owned parks and historic
 places.
Exception for existing         Sec.  1109...  30 CFR 761.12(a).
 operations.
General requirements for       Sec.  2111.A.  30 CFR 772.12(b)(14).
 development operations         8.
 involving removal of more
 than 250 tons.
Applications: approval or      Sec.  2113.B.  30 CFR 772.12(d)(2)(iv).
 disapproval of development     4.
 of more than 250 tons.
Valid existing rights          Sec.  2323...  30 CFR 761.16.
 deterimations.
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    Because the above State regulations contain language that is the 
same as or similar to the corresponding Federal regulations, we find 
that they are no less effective than the Federal regulations.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment, 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 Louisiana program 
(Administrative Record Nos. LA-366.05 and LA-366.10). The U.S. Fish and 
Wildlife Service (FWS) responded on September 12, 2001 (Administrative 
Record No. LA-366.06), that it reviewed the amendment and concludes 
that the proposed changes would not result in significant adverse 
impacts to fish and wildlife resources within its trusteeship. The FWS 
also responded on December 21, 2001 (Administrative Record No. LA-
366.11), that it reviewed the revisions to the amendment and concludes 
that the activity is not pertinent to those Federal-trust resources 
under its charge.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from the 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 Louisiana 
proposed to make in this amendment pertain to air or water quality 
standards. Therefore, we did not ask the EPA to concur on the 
amendment.
    Under 30 CFR 732.17(h)(11)(i), we requested comments on the 
amendment from the EPA (Administrative Record Nos. LA-366.05 and LA-
366.10). The EPA did not respond to our requests.

State Historical Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On August 15, 2001, and December 10, 2001, we requested 
comments on Louisiana's amendment (Administrative Record Nos. LA-366.05 
and LA-366.10), but neither responded to our requests.

V. OSM's Decision

    Based on the above findings, we approve the amendment as submitted 
by Louisiana on August 3, 2001, and as revised on November 20, 2001.
    We approve the regulations proposed by Louisiana with the provision 
that they be fully promulgated in identical form to the regulations 
submitted to and reviewed by OSM and the public.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 918, which codify decisions concerning the Louisiana 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this rule effective immediately will expedite that 
process. SMCRA requires consistency of State and Federal standards.

VI. Procedural Determinations

Executive Order 12630--Takings

    In this rule, the State is adopting valid existing rights standards 
that are similar to the standards in the Federal definition at 30 CFR 
761.5. Therefore, this rule has the same takings implications as the 
Federal valid existing rights rule. The taking implications assessment 
for the Federal valid existing rights rule appears in Part XXIX.E. of 
the preamble to that rule. See 64 FR 70766, 70822-27, December 17, 
1999.

Executive Order 12866--Regulatory Planning and Review

    This rule is exempt 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.

[[Page 8719]]

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 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 government 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: January 25, 2002.
Ervin J. Barchenger,
Acting Regional Director, Mid-Continent Regional Coordinating Center.


    For the reasons set out in the preamble, 30 CFR Part 918 is amended 
as set forth below:

PART 918--LOUISIANA

    1. The authority citation for Part 918 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.


    2. Section 918.15 is amended in the table by adding a new entry in 
chronological order by ``Date of final publication'' to read as 
follows:


Sec. 918.15  Approval of Louisiana regulatory program amendments.

* * * * *

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   Original amendment           Date of final
     submission date             publication        Citation/description
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*                  *                  *                  *
         *                  *                  *
August 3, 2001..........  February 26, 2002.......  LSMR Sections 105,
                                                     1105, 1107.B
                                                     through F, 1109,
                                                     2111.A.8, 2113.B.4,
                                                     and 2323.
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[FR Doc. 02-4516 Filed 2-25-02; 8:45 am]
BILLING CODE 4310-05-P