[Federal Register Volume 60, Number 242 (Monday, December 18, 1995)]
[Proposed Rules]
[Pages 65048-65051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30649]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SPATS No. WY-022]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Proposed rule; public comment period and opportunity for public
hearing on proposed amendment.
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SUMMARY: OSM is announcing receipt of a proposed amendment to the
Wyoming regulatory program (hereinafter, the ``Wyoming program'') under
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The
proposed amendment consists of the addition and revision of statutes
and rules pertaining to shrub density stocking requirements and
wildlife habitat. The amendment is intended to revise the Wyoming
program to be consistent with SMCRA and the corresponding Federal
regulations.
DATES: Written comments must be received by 4:00 p.m., m.s.t., January
17, 1996. If requested, a public hearing on the proposed amendment will
be held on January 12, 1996. Requests to present oral testimony at the
hearing must be
[[Page 65049]]
received by 4:00 p.m., m.s.t., January 2, 1996.
ADDRESSES: Written comments should be mailed or hand delivered to Guy
V. Padgett at the address listed below.
Copies of the Wyoming program, the proposed amendment, and all
written comments received in response to this document will be
available for public review at the addresses listed below during normal
business hours, Monday through Friday, excluding holidays. Each
requester may receive one free copy of the proposed amendment by
contacting OSM's Casper Field Office.
Guy V. Padgett, Director, Casper Field Office, Office of Surface Mining
Reclamation and Enforcement, Federal Building, Room 2128, 100 East
``B'' Street, Casper, Wyoming 82601-1918
Dennis Hemmer, Director, Department of Environmental Quality, Herschler
Building--4th Floor West, 125 West 25th Street, Cheyenne, Wyoming
82002, Telephone: (307) 777-7938
FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
5824.
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 the 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 950.12, 950.15, 950.16, and 950.20.
II. Proposed Amendment
By letter dated November 29, 1995, Wyoming submitted a proposed
amendment to is program (administrative record No. WY-031-1) pursuant
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed
amendment in response to the required program amendments at 30 CFR
950.16(q) and (bb) through (gg). The provisions of the Wyoming
Environmental Quality Act that Wyoming proposes to revise are: Wyoming
Statue (W.S.) 35-11-103, definitions, and W.S. 35-11-402, establishment
of reclamation standards. The provisions of the coal rules and
regulations of the Department of Environmental Quality, Land Quality
Division, that Wyoming proposes to revise are: chapter I, section 2,
definitions; chapter II, section 2, permit application requirements for
surface coal mining operations; chapter IV, section 2, general
environmental protection performance standards for surface coal mining
operations; chapter X, section 4, coal exploration and reclamation
performance standards; chapter XI, section 5, self-bonding; chapter
XIII, section 3, notice and opportunity for public hearing on surface
coal mining permit revisions; chapter XVII, section 1, definitions for
designation of areas unsuitable for surface coal mining; and appendix
A, vegetation sampling methods and reclamation success standards for
surface coal mining operations.
Specifically, Wyoming proposes to delete the definitions for
``Agricultural lands,'' ``Critical habitat,'' and ``Important habitat''
or ``crucial habitat'' at W.S. 35-11-103(e) (xxviii), (xxix), and
(xxx).
Wyoming proposes to revise W.S. 35-11-402(b) to indicate that this
statutory provision addresses, to the extent required by Federal law or
regulations, State wildlife agencies' approval, rather than
consultation and approval, of reclamation standards for fish and
wildlife habitat. It proposes to further revise W.S. 35-11-402(b) to
require that the Wyoming Game and Fish Department shall consider ``fish
and wildlife habitat'' to be that defined at W.S. 35-11-103(e)(xxvi)
and not to include grazing land as defined in W.S. 35-11-103(e) (xxvii)
``unless the grazingland has been designated as critical habitat by the
United States Fish and Wildlife Service'' or ``crucial habitat by the
Wyoming Game and Fish Department prior to submittal of the initial
permit application or any subsequent amendments to the permit
application.'' Wyoming proposes to revise W.S. 35-11-402(c) to require
that native shrubs shall be reestablished on grazing land and that no
shrub species shall be required to be more than one-half of the shrubs
in the postmining standard.
Wyoming also proposes several revisions to its rules and
regulations. In chapter I, Wyoming proposes to revise the definition
for ``Critical habitat'' at section 2(v) to be ``those areas essential
to the survival and recovery of species listed by the Secretary of the
Interior or Commerce as threatened or endangered; (50 CFR Parts 17 and
226).'' It proposes to add a definition for ``Crucial habitat'' at
section 2(w) to be ``those areas, designated as such by the Wyoming
Game and Fish Department, which determine a population's ability to
maintain and reproduce itself at a certain level over a long term.'' It
proposes to add a definition for ``Eligible land'' at section 2(ac) to
be
All land to be affected by a mining operation after the shrub
standard set forth at Chapter IV, Section 2.(d)(x)(E) is approved by
the Office of Surface Mining. Cropland, pastureland, or treated
grazingland approved by the Administrator which is to be affected by
a mining operation after the shrub standard set forth at chapter IV,
section 2.(d)(x)(E) is approved by the Office of Surface Mining is
not `eligible land'.
Wyoming proposes to revise the definition for ``Important habitat'' at
recodified section 2(ax) to be
That habitat which, in limited availability, supports or encourages
a maximum diversity of wildlife species or fulfills one or more
living requirements of a wildlife species. Examples of important
habitat include, but are not limited to, wetlands, riparian areas,
rimrocks, areas offering special shelter or protection, reproduction
and nursery areas, and wintering areas.
It proposes to revise section 2(bc)(iii) to indicate that ``Grazingland
includes rangelands and forest lands where the indigenous native
vegetation is actively managed for grazing, browsing, and occasionally
hay production, and occasional use by wildlife.'' Wyoming proposes to
revise section 2(bc)(viii) to indicate that ``Fish and wildlife habitat
means land dedicated wholly or partially to the production, protection
or management of species of fish or wildlife.'' It proposes to add at
section 2(bc)(xi) a provision to indicate that
``Treated grazingland'' means grazingland which has been altered to
reduce or eliminate shrubs provided such treatment was applied at
least five years prior to submission of the state program permit
application. However, grazingland altered more than five years prior
to submission of the state program permit application on which full
shrubs have reestablished to a density of at least one per nine
square meters does not qualify as treated grazingland.
Wyoming proposes to recodify the definitions in chapter 1, section 2,
to reflect the additions of new terms as discussed above.
In chapter II, Wyoming proposes to revise section 2(a)(vi)(G)(II)
to require that, if crucial habitat, in addition to critical or
important habitat, disruption is likely, the Wyoming Game and Fish
Department shall be contacted to determine the types and numbers of
wildlife likely to be disturbed or displaced. It also proposes to
revise section 2(b)(iv)(C), regarding revegetation plans, to require
that (1) the Wyoming Game and Fish Department shall be consulted, and
its approval received, for minimum stocking and planting arrangements
of trees and shrubs, including species composition
[[Page 65050]]
and ground cover for crucial and critical habitat, (2) the Wyoming Game
and Fish Department shall be consulted for minimum stocking and
planting arrangements of trees and shrubs, including species
composition and vegetative ground cover for important habitat, and (3)
the Wyoming Department of Agriculture shall be consulted on cropland
and erosion control techniques.
In chapter IV, Wyoming proposes to revise section 2(d)(x)(E) to
include a requirement that the postmining density, composition, and
distribution of shrubs shall be based upon site-specific evaluation of
premining vegetation and wildlife use. It proposes to revise section
2(d)(x)(E)(I) to require that (1) except where a lesser density is
justified from premining condition in accordance with appendix A, at
least 20 percent of the eligible land shall be restored to shrub
patches supporting an average density of one shrub per square meter,
(2) patches shall be no less than .05 acres each and shall be arranged
in a mosaic that will optimize habitat interspersion and edge effect,
(3) criteria and procedures for establishing the standard are specified
in appendix A, and (4) this standard shall apply upon approval by OSM
to all lands affected thereafter. It also proposes to revise section
2(d)(x)(E)(II) to require that approved shrub species and seeding
techniques shall be applied to all remaining grazingland. Finally, it
proposes to revise section 2(d)(x)(E)(III) to require that (1) for
areas containing designated critical or crucial habitat, the Wyoming
Game and Fish Department shall be consulted about, and its approval
received for, minimum stocking and planting arrangements of shrubs,
including species composition, and (2) for areas determined to be
important habitat, the Wyoming Game and Fish Department shall be
consulted for recommended minimum stocking and planting arrangements of
shrubs, including species composition, that may exceed the programmatic
standard discussed above.
In chapter X, Wyoming proposes to revise section 4(e) to require
that coal exploration operations that will substantially disturb the
natural land surface shall not disturb critical or crucial habitats and
that they shall consult the Wyoming Game and Fish Department prior to
disturbing important habitat.
In chapter XI, Wyoming proposes to revise section 5(a) to require
that the Administrator of the Division of Land Quality shall require
the substitution of a corporate surety for a self-bond if the financial
information submitted or requested under section 4(a)(ii), rather than
section 3(a)(ii), indicates that the operator no longer qualifies under
the self-bonding program.
In Chapter XIII, Wyoming proposes to revise section 3(a) to require
that (1) the operator's newspaper notice of application for permit
revision shall include the information required by W.S. 35-11-406(j)
and the permit number and date approved, and (2) the operator shall
mail a copy of the application mine plan map to the Wyoming Oil and Gas
Commission in accordance with W.S. 35-11-406(j).
In chapter XVII, Wyoming proposes to revise its rules concerning
designation of areas unsuitable for surface coal mining at section 1(a)
to define ``Fragile lands'' to include crucial habitats for fish or
wildlife.
In appendix A, Wyoming proposes to revise section II.C.3, suggested
sampling procedures for ``shrub habitat characteristics,'' to indicate
that (1) the postmining density composition and distribution of shrubs
shall be based upon site-specific evaluation of the premining
vegetation and wildlife use, (2) except where a lesser density is
justified from premining conditions, at least 20 percent of the
eligible land shall be restored to shrub patches supporting an average
density of one shrub per square meter, (3) the baseline vegetation
``shall,'' instead of ``should,'' include premining shrub distribution
data, (4) shrub density and cover data ``shall,'' instead of
``should,'' be components of the shrub distribution information, (5)
when shrub density data are estimated, they ``shall,'' instead of
``should,'' be gathered from each community, but not from control
areas, reference areas, or extended reference areas, (6) ``shrubs''
``shall,'' instead of ``should,'' be divided into woody species (full
shrubs) and suffrutescent species (subshrubs) for sampling purposes,
(7) shrub density counts shall be performed within a 50 square meter
area using a plot shape appropriate to the community, (8) data
``shall,'' instead of ``should,'' be recorded by species, (9) data
``shall,'' instead of ``should,'' be reported as number per square
meter and per acre, (10) all shrub density data collected after the
effective date specified in chapter IV, section 2(d)(x)(E) of the rules
and regulations shall be subject to the sample adequacy tests specified
in appendix A, section IV, although all shrub density data collected on
land affected prior to the effective date shall not be subject to
sample adequacy tests unless that shrub density data is being used to
fulfill the 20 percent shrub density standard, and (11) when sampling,
which is not subject to sample adequacy, is conducted, the number of
shrub density sample points should correspond to the number of cover
samples in each community type.
In appendix A, Wyoming proposes to revise table 1 to include
parameter values to be used for 50 square meter shrub density plots in
assessing sample adequacy, (2) to revise table 2, minimum and maximum
sample sizes for various sampling methods, to delete the belt transect
sampling method, and (3) to revise table 2 to require, for 50 square
meter shrub density plots, a minimum of 15 samples and to indicate
that, if sample adequacy cannot be achieved after sampling 50 shrub
density plots, the operator shall contact the Land Quality Division for
guidance.
In appendix A, Wyoming proposes to revise section IV.D to require
that, with respect to maximum and minimum sampling sizes, shrub density
be estimated using a 50 square meter plot.
In appendix A, Wyoming proposes to revise section VII.F,
restoration of shrubs, subshrubs, and trees, to require that (1) the
postmining density, composition, and distribution of shrubs shall be
based upon site-specific evaluation of the premining vegetation and
wildlife use and (2) except where a lesser density is justified from
premining conditions, at least 20 percent of the eligible land shall be
restored to shrub patches supporting an average density of one shrub
per square meter. In this section, Wyoming also proposes to delete
various shrub density criteria.
In Appendix A, Wyoming proposes to add in section VIII.E various
and numerous standards and criteria for the evaluation of shrub
density.
Lastly, in appendix A, Wyoming proposes to revise the glossary at
appendix VII to define ``dominant'' as the species with the greatest
density relative to all other species sampled and ``primary shrub
species'' as
All full shrub species which comprise at least 10 percent of the
relative density of full shrubs. However, if an operator selects
option IV, the community-specific full shrub and approved subshrub
density standard, then `primary shrub species' means all full shrub
and approved subshrub species which comprise at least 10 percent of
the relative density of full shrubs. It is further provided under
option IV that in order to be considered as a ``primary shrub
species,'' fringed sagewort must comprise at least 20 percent of the
relative shrub and approved subshrub species composition.
III. Public Comment Procedures
In accordance with the provisions of 30 CFR 732.17(h), OSM is
seeking comments on whether the proposed amendment satisfies the
applicable
[[Page 65051]]
program approval criteria of 30 CFR 732.15. If the amendment is deemed
adequate, it will become a part of the Wyoming program.
1. Written Comments
Written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of the
commenter's recommendations. Comments received after the time indicated
under ``DATES'' or at locations other than the Casper Field Office will
not necessarily be considered in the final rulemaking or included in
the administrative record.
2. Public Hearing
Persons wishing to testify at the public hearing should contact the
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m.,
m.s.t., January 2, 1996. Any disabled individual who has need for a
special accommodation to attend a public hearing should contact the
individual listed under FOR FURTHER INFORMATION CONTACT. The location
and time of the hearing will be arranged with those persons requesting
the hearing. If no one requests an opportunity to testify at the public
hearing, the hearing will not be held.
Filing of a written statement at the time of the hearing is
requested as it will greatly assist the transcriber. Submission of
written statements in advance of the hearing will allow OSM officials
to prepare adequate responses and appropriate questions.
The public hearing will continue on the specified date until all
persons scheduled to testify have been heard. Persons in the audience
who have not been scheduled to testify, and who wish to do so, will be
heard following those who have been scheduled. The hearing will end
after all persons scheduled to testify and persons present in the
audience who wish to testify have been heard.
3. Public Meeting
If only one person requests an opportunity to testify at a hearing,
a public meeting, rather than a public hearing, may be held. Persons
wishing to meet with OSM representatives to discuss the proposed
amendment may request a meeting by contacting the person listed under
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the
public and, if possible, notices of meeting will be posted at the
locations listed under ADDRESSES. A written summary of each meeting
will be made a part of the administrative record.
IV. Procedural Determinations
1. Executive Order 12866
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866 (Regulatory Planning and
Review).
2. 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 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.
3. 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)).
4. 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.).
5. 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 that 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.
List of Subjects in 30 CFR Part 950
Intergrovernmental relations, Surface mining, Underground mining
Dated: December 7, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-30649 Filed 12-15-95; 8:45 am]
BILLING CODE 4310-05-M
