[Federal Register Volume 59, Number 15 (Monday, January 24, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-1418]
[[Page Unknown]]
[Federal Register: January 24, 1994]
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DEPARTMENT OF THE INTERIOR
30 CFR Part 950
Wyoming Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; non-approval of amendment.
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SUMMARY: OSM is announcing the non-approval with required amendments of
a proposed amendment to the Wyoming permanent regulatory program
(hereinafter, the ``Wyoming program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA). The amendment, submitted January
6, 1993, and April 13, 1993, pertains to shrub density standards. The
proposed amendment was intended to revise the Wyoming program to be
consistent with the corresponding Federal standards and to incorporate
the additional flexibility afforded by the revised Federal rules.
EFFECTIVE DATE: January 24, 1994.
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
5776.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
On November 26, 1980, the Secretary of the Interior conditionally
approved the Wyoming program. General background information on the
Wyoming program, including the Secretary's findings, the disposition of
comments, and conditions of approval of the Wyoming program can be
found in the November 26, 1980, Federal Register (45 FR 78637).
Subsequent actions concerning Wyoming's program and program amendments
can be found at 30 CFR 950.11, 950.12, 950.15 and 950.16.
II. Submission of Amendment
By letter dated January 6, 1993, (Administrative Record No. WY-21-
1) Wyoming submitted shrub density rules as a proposed amendment to its
permanent program pursuant to SMCRA. The proposed Wyoming amendment
revises the Land Quality Division (LQD) Rules at Chapter IV, Section
2(d)(x)(E), shrub density standard, and Appendix A, entitled
``Vegetation Sampling Methods and Reclamation Success Standards for
Surface Coal Mining Operations.''
OSM published a notice in the March 22, 1993, Federal Register (58
FR 15318) announcing receipt of the amendment and inviting public
comment on the adequacy of the proposed amendment. The public comment
period ended April 21, 1993. During this public comment period Wyoming
submitted additional information regarding shrub density legislation,
Enrolled Act No. 86 [Senate File No. 39] on April 13, 1993
(Administrative Record No. WY-21-21). This proposed legislation amended
Wyoming Statute (W.S.) 35-11-103(e) by creating new paragraphs
(xxxviii) through (xxx), that define agricultural lands, critical
habitat, and important or critical habitat; modified the paragraph at
W.S. 35-11-402(b), that provides shrub density standards; and created a
new subsection (c) at W.S. 35-11-402, that would provide shrub density
standards on grazingland.
OSM published a second notice in the April 30, 1993, Federal
Register (58 FR 26079) announcing receipt of this additional
information, reopening and extending the comment period, and providing
an opportunity for a public hearing. The public comment period closed
on June 1, 1993.
A public meeting was requested and held on June 8, 1993. The
summary notes for that meeting are available for public review
(administrative record No. WY-21-49).
During its review of the amendment, OSM identified various concerns
in the proposed regulations and legislation, including the conflicting
nature of the proposed rules and statute. OSM notified Wyoming of these
concerns by letter dated August 17, 1993 (Administrative Record No. WY-
21-50).
Wyoming responded to these concerns by letter dated October 7,
1993, with additional information (Administrative Record No. WY-21-51).
Wyoming's submittal included a table identifying the proposed statutes
and rules that conflict with each other, those that complement one
another, and discussions on some of the concerns in the issue letter.
OSM published a third notice in the October 22, 1993, Federal
Register (58 FR 54540) announcing receipt of this additional
information; reopening and extending the comment period. The public
comment period closed on November 8, 1993.
III. Director's Findings
Set forth below, pursuant to SMCRA and the Federal regulations at
30 CFR 732.15 and 732.17, are the Director's findings concerning the
amendment submitted by Wyoming on January 6, 1993, and April 13, 1993,
and subsequently clarified on October 7, 1993.
1. W.S. 35-11-103(e)(xxviii): Definition of Agricultural Lands
Wyoming proposes at W.S. 35-11-103(e)(xxviii) a definition as
follows:
(e) (xxviii) ``Agricultural lands'' means cropland, pastureland,
hayland, or grazingland;
Neither SMCRA nor the implementing Federal regulations include a
definition of agricultural lands. Wyoming's proposed statutory
definition appears to make explicit what land uses are considered
agricultural in nature. Wyoming is combining specific land uses into a
general category but still maintains the individual land use
definitions in its program. Nothing in the Federal program would
preclude such combining of land uses into a single category so long as
it does not result in being inconsistent with the Federal and State
program requirements.
In the August 17, 1993, letter, OSM cautioned the State regarding
the exclusion of ``agricultural lands'' from lands that can contain
habitat of unusually high value as proposed at W.S. 35-11-103(e)(xxx)
(see discussion at Finding 3). Wyoming did not address this concern in
its October 7, 1993, reply. It appears that the sole purpose of the
proposed statutory definition of ``Agricultural lands'' is its use in
the proposed statutory definition of ``Important habitat or crucial
habitat''. Thus the proposed definition would cause the State program
to be inconsistent with the Federal program requirements.
Therefore, the definition of ``Agricultural lands'' as is proposed
to be used at W.S. 35-11-103(e)(xxx) would not be in accordance with
the Federal requirements. The Director is: (1) not approving the
definition; and (2) is requiring Wyoming to either clarify how the
definition would not render its program less stringent than SMCRA
requirements and less effective than the Federal regulation
requirements or repeal the definition.
2. W.S. 35-11-103(e)(xxix): Definition of Critical Habitat
Wyoming proposes at W.S. 35-11-103(e) a new definition as follows:
(xxix) ``Critical habitat'' means only that fish and wildlife
habitat designated as critical by the United States Secretary of the
Interior or Secretary of Commerce, for the survival and recovery of
listed threatened and endangered species;
Neither SMCRA nor the implementing Federal regulations define
critical habitat. Wyoming's LQD rules at Chapter I, Section 2(v)
already define the term critical habitat. However, based on Wyoming's
clarification submitted October 7, 1993, this rule definition is
superseded by the proposed statutory definition (Administrative Record
No. WY-21-51).
All references to critical habitat in the Federal regulations at 30
CFR 780/784.16 and 816/817.97 cite critical habitats listed by the
Secretary under the Endangered Species Act (ESA) of 1973, as amended
(16 U.S.C. 1531 et seq.). Under section 3 of ESA, a critical habitat is
the specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with provisions of
Section 4 of this Act, on which are found those physical or biological
features (I) essential to the conservation of the species and (II)
which may require special management consideration or protection; and
(III) specific areas outside the geographical area occupied by the
species at the time it is listed * * * that such areas are essential
for the conservation of the species.
The ESA does not use the term ``fish and wildlife habitat'' in the
definition of critical habitat. Instead, the ESA only refers to
geographic areas with physical or biological features that are
essential for the species. The ESA also defines the term ``species'' as
including ``any subspecies of fish or wildlife or plants, and any
distinct population segment of any species or vertebrate fish or
wildlife which interbreeds when mature'' (Emphasis added).
The proposed Wyoming definition of critical habitat appears to
exclude plants. Also, Wyoming has not specified any State statutes or
rules that identify State critical habitat or Threatened and Endangered
Species as required by the Federal regulations at 30 CFR 780/784.16.
Additionally, OSM cannot determine whether the term ``fish and wildlife
habitat'' in this definition means fish and wildlife habitat for ESA
purposes or fish and wildlife habitat as a land use. Finally, Wyoming
also recognizes critical habitat designated by the ``Secretary of
Commerce.'' It is not clear if this requirement is in addition to the
Secretary of the Interior's designation or is an option to use the
``Secretary of Commerce'' designation instead of the Secretary of
Interior's.
Therefore, based on the above discussion, the Director finds that
the proposed statutory definition at W.S. 35-11-103(e)(xxix) is not in
accordance with and is less effective than the Federal program
requirements and is not approving the proposed definition. Wyoming is
required to either repeal this statutory definition or modify it to be
in accordance with and no less effective than the Federal program
requirements.
3. W.S. 35-11-103(e)(xxx): Definition of Important and Crucial Habitat
Wyoming proposes at W.S. 35-11-103(e)(xxx) a definition as follows:
(xxx) ``Important habitat'' or ``crucial habitat'' means that fish
and wildlife habitat, exclusive of agricultural lands, which in limited
availability, increases the species diversity of a localized area and
fulfills one (1) or more of the essential living requirements of
important wildlife species.
Neither SMCRA nor the implementing Federal regulations include a
definition of important habitat or crucial habitat. However, the
Federal regulation at 30 CFR 780/784.16(a)(2) requires permit
applications to include site-specific resource information when the
permit area or adjacent area is likely to include ``habitats of
unusually high value for fish and wildlife such as streams, wetlands,
riparian areas, cliffs supporting raptors, areas offering special
shelter or protection, migration routes, or reproduction and wintering
areas.''
These habitats of unusually high value would appear to be
comparable to the State proposed definition for important or crucial
habitat. Additionally, the State regulations at LQD Rule Chapter II,
Section 2(a)(i)(E)(II) require permit applications to include specific
information ``if critical or important habitat or migration route
disruption is likely.'' Wyoming's LQD Rule at Chapter II, Section
3(b)(iv)(B) is similar to the Federal regulation at 30 CFR
780.16(b)(3)(ii) in requiring protection and enhancement of ``important
habitat for fish and wildlife, such as wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.''
However, the Federal permitting and performance standard
regulations do not exclude any land uses from consideration in meeting
the requirements for protection and enhancement. Wetlands, riparian
areas, migration and wintering areas can potentially occur within any
land use including grazingland, pastureland, forestry, etc. Wyoming's
proposed definition would appear to exclude consideration of important
habitat or crucial habitat from those land uses included in the
categorical definition of ``agricultural lands.'' These would include
the land uses of cropland, pastureland, hayland and grazingland.
In its August 17, 1993, letter to the State, OSM cautioned that
such exclusion would render Wyoming's statute less effective than the
Federal regulations requirements and less stringent than the
requirements of SMCRA. In its October 7, 1993, reply to OSM's concerns,
Wyoming did not address this issue. Additionally, OSM cannot determine
whether the use of the term ``fish and wildlife habitat'' in this
definition means fish and wildlife habitat for ESA purposes or fish and
wildlife habitat as a land use.
Based on the above discussion the Director finds that the proposed
statutory definition at W.S. 35-11-103(e)(xxx) is not in accordance
with and is less effective than the Federal program requirements and is
not approving the proposed definition. Wyoming is required to either
repeal this statutory definition or modify it to be in accordance with
and no less effective than the Federal program requirements.
4. W.S. 35-11-402(b): Establishing Standards
Wyoming proposes to revise existing W.S. 35-11-402(b) as follows
(proposed language in upper case):
(b) To the extent federal law or regulations require consultation
and approval by state wildlife agencies regarding surface mining lands
to be reclaimed for fish and wildlife habitat, the Wyoming game and
fish department shall consider fish and wildlife habitat to mean as
defined in W.S. 35-11-103(e)(xxvi) and does not include grazingland as
defined in W.S. 35-11-103(e)(xxvii). IN ESTABLISHING RECLAMATION
STANDARDS PURSUANT TO THIS SECTION AND APPLICABLE FEDERAL LAW OR
REGULATION THE COUNCIL SHALL APPLY THE DEFINITIONS OF W.S. 35-11-
103(e)(xxvi) THROUGH (xxx).
a. Proposed Statutory Provision
The proposed new language requires the Environmental Quality
Council to use the following specific statutory definitions when
establishing standards regarding required consultation and approval by
State wildlife agencies when lands are to be reclaimed for fish and
wildlife habitat: ``Fish and wildlife habitat'' land use (W.S. 35-11-
103(e)(xxvi)); ``Grazingland'' land use (W.S. 35-11-103(e)(xxvii));
``Agricultural lands'' (W.S. 35-11-103(e)(xxviii)); ``Critical
habitat'' (W.S. 35-11-103(e)(xxix)); and, ``Important habitat or
crucial habitat'' (W.S. 35-11-103(e)(xxx)). The statutory definitions
for fish and wildlife habitat and grazingland are existing definitions
that were previously approved by OSM. The statutory definitions for
agricultural lands, critical habitat, and important habitat or crucial
habitat were proposed by Wyoming in this amendment.
As discussed in Findings 1, 2, and 3, the three proposed
definitions referenced in this provision, W.S. 35-11-103(e)(xxviii),
(xxix) and (xxx), are not being approved by OSM. This provision, if
approved, would inappropriately reference the disapproved definitions.
Furthermore, the Environmental Quality Council is already required,
by existing W.S. 35-11-402(b), to use the land use definitions of fish
and wildlife habitat and grazingland at W.S. 35-11-103(e)(xxvi) and
(xxvii) when developing reclamation standards for those two postmining
land uses. The proposed additional language is redundant and confusing.
Based on the foregoing, the Director finds that the proposed
revision to W.S. 35-11-402(b) is less stringent than SMCRA and less
effective than the Federal regulations and is not approving it. The
Director is requiring Wyoming to repeal this provision.
b. Existing Statutory Provision
On February 21, 1990, OSM required Wyoming, by letter, pursuant to
30 CFR 732 (required amendment), to revise its program to be no less
effective than the Federal regulations at 30 CFR 816/817.116(b)(3)(i).
In the cover letter to this submittal, Wyoming specified that
existing W.S. 35-11-402(b) and W.S. 35-11-103(e)(xxvi), approved by OSM
on July 8, 1992 (57 FR 30121), satisfy the required amendment of
February 21, 1990. Wyoming did not, at that time, identify the
submission of proposed W.S. 35-11-402(b) and W.S. 35-11-103(e)(xxvi) as
a response to the required amendment of February 21, 1990, but rather
as a State-initiated amendment. OSM approved W.S. 35-11-402(b) and W.S.
35-11-103(e)(xxvi) as a State initiative, leaving the required
amendment outstanding.
Wyoming now contends that the language approved in the previous
program amendment was intended to address the portion of the February
21, 1990, required amendment pertaining to consultation and approval by
the appropriate State agencies responsible for fish and wildlife
habitat land uses. Accordingly, OSM has reviewed the State provision at
W.S. 35-11-402(b), as well as the existing State provision at W.S. 35-
11-103(e)(xxvi), to determine if Wyoming has satisfied the required
program amendment.
The Federal regulations at 30 CFR 816/817.116(b)(3)(i) provide as
follows:
(b) Standards for [revegetation] success shall be applied in
accordance with the approved postmining land use and, at a minimum, the
following conditions: * * *
(3) For areas to be developed for fish and wildlife habitat,
recreation, shelter belts, or forest products, success of vegetation
shall be determined on the basis of tree and shrub stocking and
vegetative ground cover. Such parameters are described as follows:
(i) Minimum stocking and planting arrangements shall be specified
by the regulatory authority on the basis of local and regional
conditions and after consultation with and approval by the State
agencies responsible for the administration of forestry and wildlife
programs. Consultation and approval may occur on either a program-wide
or a permit-specific basis.
The existing State statutory provisions at W.S. 35-11-402(b) and
W.S. 35-11-103(e)(xxvi), respectively, provide as follows:
(b) To the extent federal law or regulations require consultation
and approval by state wildlife agencies regarding surface mining lands
to be reclaimed for fish and wildlife habitat, the Wyoming game and
fish department shall consider fish and wildlife habitat to mean as
defined in W.S. 35-11-103(e)(xxvi) and does not include grazingland as
defined in W.S. 35-11-103(e)(xxvii).
(e) (xxvi) ``Fish and wildlife habitat'' means land designated
wholly or partially to the production, protection, or management of
species of fish or wildlife.
The quoted State provisions require the Wyoming Game and Fish
Department to use the noted definition of ``fish and wildlife habitat''
when consulting on the revegetation of lands to be reclaimed to the
fish and wildlife habitat land use. These provisions do not correspond
to 30 CFR 816/817.116(b)(3)(i).
Additionally, the quoted provisions do not specify if the Wyoming
Game and Fish Department would be the appropriate State agency
responsible for the administration of forestry and wildlife programs
for any of the land uses, other than fish and wildlife habitat,
mentioned in the Federal regulations (recreation, shelterbelts, and
forest products).
Therefore, without further clarifying information from Wyoming, the
Director finds the statutory provision at W.S. 35-11-402(b) combined
with the previously approved definition of fish and wildlife habitat at
W.S. 35-11-103(e)(xxvi), does not satisfy OSM's February 21, 1990,
required amendment.
5. W.S. 35-11-402(c): Grazingland Shrub Standard
Wyoming proposes at W.S. 35-11-402 establishment of standards as
follows:
(c) For the reclamation of grazingland, operators shall be required
to reestablish shrubs on ten percent (10%) of the affected surface at a
density of one (1) shrub per nine (9) square meters, or to a pre-mine
density, whichever is less. The shrubs used for reestablishment shall
be those native to the general area, and shall include those found pre-
mining, but the premining dominant shrub need not be the dominant shrub
in the post-mining reclamation.
SMCRA, at section 515(b)(24), requires that the operator, to the
extent possible, using the best technology currently available (BTCA),
minimize disturbances and adverse impacts of the operation on fish,
wildlife, and related environmental values, and achieve enhancement of
such resources where practicable. Further, the Federal regulations at
30 CFR 780/784.16 (Fish and wildlife information for permit
applications) require resource information of which the scope and level
of detail determined by the regulatory authority in consultation with
State and Federal agencies with responsibilities for fish and wildlife
shall be sufficient to design the protection and enhancement plan. This
plan shall include a description of how, to the extent possible using
BTCA, the operator will minimize disturbances and adverse impacts on
fish and wildlife and related environmental values.
The State has failed to demonstrate through the submission of
documentation and/or other materials, that the proposed shrub standard:
(1) would minimize disturbances and adverse impacts on fish and
wildlife and related environmental values; (2) represents BTCA; and (3)
was developed in consultation with the Wyoming Game and Fish Department
(WGFD).
Therefore, the Director finds the proposed statutory provision at
W.S. 35-11-402(c) to be less stringent than SMCRA and less effective
than the Federal regulation requirements. The Director is not approving
the proposed statutory provision and is requiring Wyoming to either
repeal this statutory provision, modify it to make it consistent with
SMRA and no less effective than the Federal regulations, or provide the
required documentation to show that the standard meets the Federal
program requirements.
6. LQD Rules at Chapter IV, Section 2 and Appendix A--Shrub Density
Rule and Revegetation Success Standards
The State additionally proposes to revise LQD Rule Chapter IV,
Section 2(d)(x)(E) to require a shrub density standard of 1 shrub per
square meter over 20 percent of the affected surface (including fish
and wildlife habitat land use) and excluding areas where the premining
land use was pastureland or cropland. Additionally, the proposed
standard can be reduced to the level of the premine shrub densities if
premine shrub densities are less than the proposed success standard.
The proposed rule requires establishment of shrubs in a mosaic pattern
to optimize habitat interspersion and edge effect. A minimum shrub
patch size of 0.05 acres is required. For areas of crucial or important
habitat, the Wyoming Game and Fish Department (WGFD) must be consulted
for recommended reclamation standards for shrub establishment. Specific
criteria and procedures implementing this proposed rule were provided
in modifications to Appendix A--Vegetation Sampling Methods and
Reclamation Success Standards for Surface Coal Mining Operations. The
modifications provide examples of acceptable shrub density standards on
specific land uses, shrub composition, and acceptable species type.
Several portions of the Federal regulations place requirements with
regard to revegetation standards involving fish and wildlife habitat.
The Federal regulations at 30 CFR 780/784.16 require an operator to
provide a protection and enhancement plan for fish and wildlife
resources. The scope and level of premine resource information must be
determined in consultation with State and Federal agencies responsible
for fish and wildlife and be sufficient to develop the protection and
enhancement plan that describes how, to the extent possible using BTCA,
the operator will minimize disturbance and adverse impacts on fish and
wildlife values. An element to be considered is the establishment of
vegetation for wildlife food and cover. The Federal regulations at 30
CFR 816/817.116(a)(1) require that standards for success and
statistically valid sampling techniques for measuring success shall be
selected by the regulatory authority and included in an approved
regulatory program. Additionally, 30 CFR 816/817.116(b)(3)(i) require
that minimum stocking and planting arrangements shall be specified by
the regulatory authority on the basis of local and regional conditions
after consultation with an approval by the State agencies responsible
for the administration of forestry and wildlife programs. Specific land
uses include areas to be developed for fish and wildlife habitat,
recreation, shelter belts, or forest products. Consultation and
approval may occur on either a program-wide or a permit-specific basis.
The proposed rule at Chapter IV, Section 2(d)(x)(E) was the result
of an extensive coordination effort involving LQD, the WGFD, and the
coal industry. Public meetings and hearings were also held. Therefore,
all necessary processing was conducted that would allow the Director to
render a decision on the proposed rule and appendix.
However, based on Wyoming's clarification submitted October 7,
1993, in the form of a table specifying rules that conflict with and
rules that complement the statutory provisions, it was demonstrated
that much of the proposed rule and modifications to appendix A,
conflict with the proposed statutes (Administrative Record No. WY-21-
51). Furthermore, in its October 7, 1993, reply to OSM's concerns,
Wyoming clarified that the legislation (statutory language) prevails
over the conflicting rule language. Consequently, the conflicting
proposed rules and modifications to appendix A cannot be approved since
they have been superseded by the statutory language.
Therefore, the Director finds the proposed regulations at LQD Rule
Chapter IV, Section 2(d)(x)(E) and proposed modifications to Appendix
A, are in conflict with and are superseded by the proposed statutory
provision at W.S. 35-11-103(e) and W.S. 35-103-402 (b) and (c), and
thus cannot be approved.
The Director is requiring Wyoming to amend its program to establish
revegetation shrub density standards in compliance with Section
515(b)(24) of SMCRA and the Federal regulations at 30 CFR 780/784.16,
816/817.97 and 816/817.116.
IV. Summary and Disposition of Comments
Public Comments
OSM solicited public comment on the proposed amendment and provided
opportunity for a public hearing. Numerous comments were received and a
public meeting was held. Since OSM is not approving Wyoming's submittal
for the reasons given in this rulemaking action and since most of the
comments provided technical support for the proposed rule and
modifications to Appendix A, that were superseded by the legislative
changes, the merit of these comments becomes moot to this rulemaking
effort. However, general categories of comments included:
1. Most commenters supported the proposed rules (20% standard) as
minimum standards or as reasonable standards. As discussed in Finding
6, the majority of the proposed rules conflict with the proposed
statutory standard and therefore cannot be approved. The legislative
standard (10%) is not being approved because of reasons discussed in
Finding 5. Since neither standard can be approved the discussion of
various technical merits provided by commenters in support of the two
standards becomes irrelevant to this rulemaking action.
2. Several commenters recommended changes to the proposed rules and
appendix. As previously stated OSM cannot approve the proposed rules
and appendix for reasons discussed in Finding 6. Thus, detailed
discussion of the comments recommending changes would be of no value to
this rulemaking action.
3. Two commenters supported the proposed statutory standard (10%)
and did not support the proposed rules and appendix. Additionally, they
noted that the rules had been superseded by the statutory language and
should not be considered in this amendment. OSM agrees that the
proposed rules are superseded by the statutory standard as discussed in
Finding 6, but OSM cannot approve the legislative standard (10%) for
reasons discussed in Finding 5.
4. Several commenters supported, and several did not support, the
proposed statutory language at W.S. 35-11-402(b) that provides
direction to the Environmental Quality Council in establishing
standards. As discussed in Finding 4.a., this provision is confusing
and is redundant with Wyoming's approved program. The Director is not
approving it and is requiring Wyoming to repeal this provision.
5. Most commenters did not support, and several supported, the
proposed statutory definitions at W.S. 35-11-103(e) (xxviii) through
(xxx) that define agricultural lands, critical habitat, and important
or crucial habitat. OSM is not approving these proposed statutory
definitions as discussed in Findings 1, 2, and 3. OSM does not agree
with the few comments that supported these definitions as discussed in
this rulemaking action.
Agency Comments
Pursuant to Section 503(b) of SMCRA and implementing regulations at
30 CFR 732.17(h)(11)(i), comments were solicited from various Federal
agencies with an actual or potential interest in the Wyoming program. A
summary of the comments, and the Director's responses to them, appear
below:
1. The U.S. Department of Interior (USDI)--Bureau of Indian
Affairs, U.S. Army Corps of Engineers, USDI--Bureau of Mines, USDI--
Bureau of Reclamation, U.S. Department of Labor--Mine Safety and Health
Administration (MSHA)--Arlington, and U.S. Department of Labor--Mine
Safety and Health District 9, responded with no comment (Administrative
Record Nos. WY-21-7, WY-21-41, WY-21-65, WY-21-8, WY-21-12, WY-21-32,
WY-21-59, WY-21-14, WY-21-4, WY-21-31, WY-21-56, and WY-21-28).
2. The USDI--Geological Survey responded to the rule portion of the
amendment by praising the botanical approach to this portion of the
Wyoming regulations (Administrative Record No. WY-21-11).
3. The U.S. Department of Agriculture--Soil Conservation Service
commented that the SCS supports the proposed rule amendment and feels
that it is quite workable (Administrative Record Nos. WY-21-9, WY-21-
24, and WY-21-66).
4. U.S. Department of Agriculture--Forest Service--Rocky Mountain
Region commented that the proposed rule plan is well written and well
thought out. They additionally suggested that weed free native hay be
required rather than preferred as proposed in Appendix A
(Administrative Record No. WY-21-13). As previously noted, neither the
proposed rule nor the modification to the appendix can be approved.
Therefore, the suggested requirements for weed free native hay becomes
moot to this rulemaking action.
5. U.S. Department of Agriculture--Agricultural Research Service--
Northern Plains Area recommended changes to the proposed rules and
appendix. As discussed in Finding 6, the Director is not approving the
proposed rules and appendix. Thus changes to them need not be discussed
at this time (Administrative Record No. WY-21-10).
6. The U.S. Department of Interior--U.S. Fish and Wildlife Service
(USFWS or the Service) provided substantial comments on February 16,
April 14, and November 22, 1993 (Administrative Record Nos. WY-21-5,
WY-21-19, and WY-21-64). The comments supported the proposed rules and
appendix but not the statutory language. They additionally recommended
several changes to the proposed rules. As discussed above, the majority
of the proposed rules conflict with the statutory language and OSM is
not approving either the proposed rules or statutory provisions.
7. The U.S. Department of Interior--Bureau of Land Management (BLM)
provided substantial comments on March 10 and December 3, 1993
(Administrative Record Nos. WY-21-15 and WY-21-67). Again the comments
supported the proposed rules and appendix, therefore discussion of
BLM's comments would be of no merit.
State Historic Preservation Office (SHPO) and Advisory Council on
Historic Preservation (ACHP) Comments
As required by 30 CFR 732.17(h)(4), OSM provided the proposed
amendment to the SHPO and ACHP for comment. No comments were received
from the ACHP. The Wyoming Division of Parks and Cultural Resources--
State Historic Preservation Office commented by reminding OSM that
management of cultural resources on OSM projects is conducted in
accordance with Section 106 of the National Historic Preservation Act
and Advisory Council regulations at 36 CFR 800. The SHPO had no
objections to the proposed Wyoming amendment provided that OSM follows
the procedures established in these regulations. The Director assures
the SHPO that OSM will follow the procedures established in the
Advisory Council rules at 36 CFR 800.
Environmental Protection Agency Concurrence
Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain
the written concurrence of the Administrator of the Environmental
Protection Agency (EPA) with respect to provisions of a State program
amendment which relate to air or water quality standards promulgated
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.).
On October 25, 1993, the EPA concurred without comment regarding
Wyoming's proposed amendment (Administrative Record No. WY-21-57).
V. Director's Decision
Based on the above findings, the Director is not approving
Wyoming's proposed program amendment as submitted January 6, 1993, and
April 13, 1993, and clarified on October 7, 1993. The Director is
requiring program amendments at 30 CFR 950.16 as discussed in Findings
1, 2, 3, 4.a., 5,
and 6.
The Federal regulations at 30 CFR part 950 codifying decisions
concerning the Wyoming program are being amended to implement this
decision. This final rule is being made effective immediately to
expedite the State program amendment process and to encourage States to
bring their programs into conformity with the Federal standards without
undo delay. Consistency of State and Federal standards is required by
SMCRA.
VI. Effect of Director's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary of the Interior. Federal regulations at 30 CFR 732.17(a)
require that any alteration of an approved State program must be
submitted to OSM for review as a program amendment. The Federal
regulations at 30 CFR 732.17(g) prohibit any unilateral changes to
approved State programs. Thus, any changes to the State program are not
enforceable by the State as part of the approved State program until
approved by the Director. In the oversight of the Wyoming program, OSM
will recognize only statutes, regulations, and other materials approved
by the Director, together with any consistent implementing policies,
directives and other materials, and will require the enforcement by
Wyoming of only such provisions.
VII. Procedural Determination
Compliance With Executive Order 12866
This final rule is exempted from review by the Office of Management
and Budget under Executive Order 12866 (Regulatory Planning and
Review).
Compliance With Executive Order 12778
The Department of the Interior has conducted the reviews required
by section 2 of Executive Order 12778 (Civil Justice Reform) 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 since each such 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 12550) and 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
requirements of 30 CFR parts 730, 731, and 732 have been met.
Compliance With the National Environmental Policy Act
No environmental impact statement is required for this rule since
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 of 1969 (42 U.S.C.
4332(2)(C)).
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.).
Compliance With the 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. Hence, 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.
List of Subjects in 30 CFR 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 13, 1994.
Raymond L. Lowrie,
Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
SubChapter T, of the Code of Federal Regulations is amended as set
forth below.
PART 950--WYOMING
1. The authority citation for Part 950 continues to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. In Sec. 950.16, paragraphs (bb), (cc), (dd), (ee), (ff), and
(gg) are added to read as follows.
Sec. 950.16 Required program amendments.
* * * * *
(bb) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-
11-103(e)(xxviii) to clarify how the definition of ``Agricultural
lands'' would not render its program less stringent than SMCRA
requirements and less effective than the Federal regulation
requirements or repeal the definition.
(cc) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-
11-103(e) (xxix), that defines ``Critical habitat'', to either repeal
this statutory definition or modify it to be in accordance with no less
effective than the Federal program requirements.
(dd) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-
11-103(e) (xxx), that defines ``Important habitat or crucial habitat'',
to either repeal this statutory definition or modify it to be in
accordance with and no less effective than the Federal program
requirements.
(ee) By March 25, 1994, Wyoming shall repeal the provision at W.S.
35-11-402(b) that provides direction to the Environmental Quality
Council to use specific statutory definitions.
(ff) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-
11-402(c), that provides for the reclamation of grazingland to either
repeal this statutory provision, modify it to make it consistent with
SMCRA and no less effective than the Federal regulations, or provide
the required documentation to show that the standard meets the Federal
program requirements.
(gg) By March 25, 1994, Wyoming shall submit revisions to amend its
program at LQD Rule Chapter IV, Section 2(d)(x)(E) and Appendix A, to
establish revegetation shrub density standards in compliance with
Section 515(b)(24) of SMCRA and the Federal regulations at 30 CFR 780/
784.16, 816/817.97 and 816/817.116.
[FR Doc. 94-1418 Filed 1-21-94; 10:00 am]
BILLING CODE 4310-05-M
