[Federal Register Volume 59, Number 246 (Friday, December 23, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-31599]
[[Page Unknown]]
[Federal Register: December 23, 1994]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
Wyoming Permanent Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of extension to timetable for enactment of
required program amendments.
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SUMMARY: OSM is announcing the Director's decision to extend time
frames for the State of Wyoming to enact required program amendments to
its permanent regulatory program (hereinafter referred to as the
Wyoming program) under the Surface Mining Control and Reclamation Act.
OSM did not approve Wyoming's previously proposed amendment to revise
and add rules and statutes pertaining to definitions and revegetation
success standards in the January 24, 1994, Federal Register (59 FR
3521). In that decision OSM required Wyoming to submit proposed program
amendments to these statutes and rules by March 25, 1994.
EFFECTIVE DATE: December 23, 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 Extension Request
By letter dated February 28, 1994, Wyoming submitted, consistent
with the requirements at 30 CFR 732.17(f)(1), a description of a
proposed amendment and a timetable for its enactment. The proposed
timetable in the submission provided that Wyoming would have until the
end of calendar year 1994 to complete the enactment of the proposed
amendment (Administrative Record No. WY-26-1). In the letter, Wyoming
notified OSM that the unusually lengthy timetable was needed to
complete rulemaking regarding the required State program amendments at
30 CFR 950.16 (bb) through (gg). Since its February 28 submission of
the proposed amendment and timetable for its enactment, Wyoming has
been successful in drafting and receiving legislature approval of the
required statutory changes as described at 30 CFR 950.16 (bb), (cc),
(dd), (ee), and (ff). The statutory changes were signed by the Governor
and filed with the Secretary of State on March 16, 1994. Wyoming, in
its February 28 letter, asserts that it has been in ``negotiated rule
making'' with all interested parties, including representatives from
State, coal industry, and environmental groups, regarding the rule
(non-statutory) portions of the required amendments that address
specific shrub density standards for reclamation. Wyoming asserts that
the ``negotiated rule making'' process, and the subsequent formal
rulemaking process, are the reasons for the lengthy timetable in this
submission.
OSM published a notice, in the March 21, 1994, Federal Register (59
FR 13286), announcing receipt of the Wyoming's February 28, 1994,
letter and in the same notice requested public comment as to whether
the proposed timetable should be approved. The public comment period
closed on April 20, 1994.
By letter dated September 1, 1994, (Administrative Record No. WY-
26-7), Wyoming submitted a request for additional time to complete
rulemaking regarding the required State program amendments. This
request would delay the resubmittal date of March 25, 1994, until
November 1995. Wyoming informed OSM that, since the time of the initial
submission, its Attorney General's Office had identified conflicts
between the proposed statutes and ``negotiated'' rules and existing
statutes and rules. This conflict, asserted Wyoming, had prohibited the
State from proceeding with its formal rulemaking. Wyoming further
asserted that statute changes that would eliminate the conflicts and
allow Wyoming to proceed with formal rulemaking are currently being
considered by the Wyoming Mining and Mineral Legislative committee. The
statute changes cannot be considered by the entire Wyoming legislature,
asserted Wyoming, until the State of Wyoming's next legislative session
beginning in January 1995. The formal rulemaking, asserted Wyoming,
could only proceed after successful legislative action and the
Governor's approval of the statute changes.
OSM published a notice in the September 20, 1994, Federal Register
(50 FR 48192), announcing receipt of the timetable extension request
and in the same notice reopened the public comment period requesting
written comments on the proposed request. The public comment period
closed on October 5, 1994.
III. Director's Findings
Set forth below, pursuant to the Surface Mining Control and
Reclamation Act of 1977, 30 U.S.C. 1201-1328 (SMCRA) and the Federal
regulations at 30 CFR 732.15 and 732.17, are the Director's findings
concerning the proposed timetable for enactment submitted on February
28, 1994, and the subsequent request to extend that timetable submitted
on September 1, 1994.
By letter submitted February 28, 1994, Wyoming proposed a timetable
for enactment of required program amendments at 30 CFR 950.16 (bb)
through (gg). That timetable extended until the end of calendar year
1994. The length of the timetable, according to Wyoming, resulted from
a time consuming ``negotiated rulemaking'' that the State was
conducting in cooperation with State, coal industry, and environmental
groups.
By its letter dated September 1, 1994, Wyoming requested an
extension to the timetable for enactment of the required program
amendments at 30 CFR 950.16 (bb) through (gg). The extension, asserted
Wyoming, was needed to allow the State Legislature time to change
existing statutes that conflicted with the proposed rules resulting
from Wyoming's ``negotiated rulemaking'' effort with State, coal
industry, and environmental groups. Wyoming informed OSM that, at the
conclusion of the legislative session, the formal rulemaking process
would proceed and that Wyoming expected to enact the 1994 statute
changes, the revised rules, and any additional changes to the statutes
that might be required to satisfy OSM's required program amendments at
30 CFR 950.16 (bb) through (gg). Wyoming informed OSM that the
``negotiated rulemaking'' with State, coal industry, and environmental
groups referred to in its February 28, 1994, letter had been completed
and that the extension to its original timetable was needed to
implement the results of that rulemaking.
The required amendments concern Wyoming Statute (W.S.) 35-11-
103(e)(xxviii) definition of ``Agricultural lands''; W.S. 35-11-
103(e)(xxix) definition of ``Critical habitat''; W.S. 35-11-103(e)(xxx)
definition of ``Important habitat or critical habitat''; W.S. 35-11-
402(b) provisions that direct Wyoming to use specific statutory
definitions; W.S. 35-11-402(c) grazingland reclamation success
standards; and the Department of Environmental Quality--Land Quality
Division (DEQ/LQD) Rules at Chapter IV, Section 2(d)(x)(E) and Appendix
A, pertaining to revegetation success standards for shrubs, as
discussed in detail in the January 24, 1994, Federal Register (59 FR
3521).
OSM Directive REG-5 (Processing of Proposed State Regulatory
Programs, Amendments and Part 732 Notifications) provides several
factors to be considered in reviewing a proposed timetable for
enactment of a required amendment or a subsequent proposed change to a
timetable for enactment of a required amendment. These factors include:
(1) The State's amendment process and constraints imposed by the State
administrative and legislative rulemaking requirements, schedules and
procedures; (2) the criticality of the amendment and/or portion of the
State program to be amended, including any potential impacts on public
health and safety or the environment; (3) the suitability of State
promulgation of emergency regulations when the need for a program
amendment is immediate; (4) the complexity of the amendment's subject
matter and the nature of the change to be made, i.e., does the section
of the program being amended ``stand alone,'' or will change (or lack
thereof) affect multiple sections of the State's program; (5) State
workload factors; and (6) the possibility of combination with other
amendments in related subject areas which are already scheduled under
an improved timetable for enactment.
Factor 1
Wyoming's rulemaking process is quite complex and time consuming.
In addition, Wyoming's administrative and legislative rulemaking
requirements, schedules, and procedures are quite constraining. In
Wyoming, the following steps are required for promulgation of a rule
change:
(1) DEQ prepares draft rule;
(2) DEQ presents draft rule to an Advisory Board;
(3) DEQ modifies draft rule if required by the Advisory Board;
(4) DEQ requests concurrence from the Governor and Attorney
General (AG) to proceed with adoption of draft rule;
(5) DEQ receive concurrence from Governor and AG;
(6) DEQ modifies draft rule if required by Governor and/or the
AG;
(7) DEQ sends copies of draft rule to the Environmental Quality
Council (EQC) with request for a hearing;
(8) Public notice of the hearing is published and a 45 day
comment period on the draft rule occurs before EQC hearing;
(9) Comments on draft rule are analyzed by DEQ and DEQ modifies
draft rule, if needed;
(10) EQC conducts hearing and decides to reject, adopt or modify
draft rule;
(11) The Land Quality Division (LQD) submits EQC's decision to
the AG and Legislative Service Office (LSO) within 10 days following
announcement of decision of EQC;
(12) Within 30 days of decision, EQC issues a statement of
reasons for overruling any public comment objections, if applicable;
(13) AG, with LSO concurrence, submits draft rule to Governor
for approval; and,
(14) If Governor approves draft rule, the draft rule is
forwarded to the Secretary of State's Office, within 60 days of
approval, for filing.
In this instance, Wyoming asserts that the State rulemaking process
has been stalled after the AG's office determination that the proposed,
negotiated rules are in conflict with existing Wyoming Statute (W.S.)
35-11-402 (b) and (c). These statutes address consultation and approval
requirements by State wildlife agencies. Wyoming State law prohibits
Wyoming from promulgating rules that are in direct conflict with
existing statutes. Thus, Wyoming's rulemaking process cannot proceed
until the statutes are changed in the next legislative session. This
would extend the timetable for the enactment of this amendment package
to as late as November 1995, according to Wyoming.
Factor 2
The proposed amendment does not appear to present a potential
impact to public health and safety. However, the proposed amendment
does impact the environment because it concerns a revegetation success
standard that is part of Wyoming's existing approved program and that
has been determined to be less effective than the Federal program
requirements. The State has already repealed portions of the statutes,
negotiated proposed rules, and drafted statutory changes to resolve
conflicts between those statutes and rules and the existing statutes.
Thus, it is apparent that the State has determined these required
amendments to be critical and is correcting them as expeditiously as
possible.
Factor 3
The proposed amendment does not qualify as an emergency and it does
not present potential impacts to public health and safety.
Factor 4
The complexity of the shrub reclamation amendment is evident by the
divergent professional opinions regarding the appropriate minimum
stocking rate and planting arrangements. The proposed change will
affect multiple sections of the State's program concerning reclamation
requirements.
Factor 5
The State has not shown that workload is a factor in considering
this proposed extension.
Factor 6
The required program amendments at 30 CFR 950.16 (bb) through (ff)
appear to have been addressed in the last Wyoming legislative session.
The remaining required program amendment at 30 CFR 950.16(gg) is in
``negotiated rulemaking,'' which will be followed by formal rulemaking
and promulgation. Wyoming has requested that 30 CFR 950.16 (bb) through
(gg) be submitted in one amendment package due to relationship of the
subject matter. OSM agrees with the State on this approach.
Based on review of the above factors, the Director is approving
Wyoming's February 28, 1994, proposed timetable for enactment, as
revised by Wyoming's September 1, 1994, request for extension of that
timetable. The timetable, as revised, will allow Wyoming to enact the
required program amendments specified at 30 CFR 950.16 (bb) through
(gg). The timetable, as revised, extends through November 30, 1995. OSM
has determined that this timetable will provide Wyoming the necessary
time to allow for required legislative changes and public participation
in their formal rulemaking process. OSM will monitor Wyoming's
progress. Should the process break down and prohibit Wyoming from
proceeding with the promulgation of the required program amendments
within the time frame proposed in this rulemaking action. OSM will take
immediate and appropriate action.
IV. Summary and Disposition of Comments
Public Comments
The Director solicited public comments on the initial proposed
timetable and the request to extend the proposed timetable. Written
comments were received during both comment periods from the National
Wildlife Federation (NWF), the Wyoming Wildlife Federation (WWF), and
the Wyoming Outdoor Council (WOC) in letters dated April 19, 1994, and
October 4, 1994, (Administrative Records Nos. WY-26-03 and WY-26-09).
In both letters, the commenters collectively expressed concerns that
the proposed extension is in violation of the regulations implementing
SMCRA, questioned the 60-day time frame for renegotiating ``minor
changes to the proposed shrub density rule in response to the adopted
legislation,'' and had concern with the unexplained additional 60-90
days to submit the proposed rules to OSM after the Environmental
Quality Council's approval.
In the January 24, 1994, Federal Register, OSM did not approve a
previously submitted proposed amendment from Wyoming and codified
required program amendments at 30 CFR 950.16 (bb) through (gg) that
were all inclusive to the proposed amendment. In accordance with 30 CFR
732.17(f)(1), the State had 60 days after notification to submit a
written amendment or a description of an amendment along with a
timetable for enactment. Therefore, the State's response was required
by March 24, 1994. The State submitted a letter on February 28, 1994,
which, by reference to an earlier, informal submittal of February 4,
1994, included a description of a proposed amendment. In addition, the
February 28, 1994, letter included a proposed timetable for enactment
of the proposed amendment. The proposed timetable extended through the
end of calendar year 1994. In the February 28, 1994, letter, Wyoming
discussed the then current ``negotiated rulemaking'' and the 1994
legislative action previously discussed as the reason for the unusually
lengthy proposed timetable.
Thus, although characterized by the State and OSM as a ``request
for extension of time,'' Wyoming's February 28, 1994, letter, was, in
fact, a description of a proposed amendment and a timetable for its
enactment, submitted within the 60 day deadline at 30 CFR 732.17(f)(1).
The commenters asserted that OSM violated 30 CFR 732.17(h)(8) by
allowing 60 days to submit new amendments. The Federal regulation at 30
CFR 732.17(h)(8) allows a State regulatory authority (RA) to resubmit a
revised amendment within 30 days after publication of the disapproval.
As stated above, OSM did not approve the proposed amendment and
required additional amendments, pursuant to the process at 30 CFR
732.17(f)(1), to remedy existing deficiencies in the Wyoming program
discovered during that review. As discussed above, Wyoming complied
with OSM's required amendment by submitting a description of an
amendment and a timetable for its enactment within 60 days. Thus,
neither OSM nor Wyoming acted inappropriately in this instance.
In stating that OSM should have given Wyoming only 30 days, rather
than 60 days, in which to respond to OSM's required amendment, the
commenters appear to confuse the purpose of 30 CFR 732.17(f), which
allows OSM to require changes in State programs, with the purpose of 30
CFR 732.17(h)(8), which allows a State, on its own initiative, once a
proposed amendment is disapproved, to submit a revised version to OSM
for reconsideration. The 30 day time limit applies to voluntary
submissions of revised versions of disapproved amendments under 30 CFR
732.17(h)(8). The 60 day time limit applies to mandatory submissions
for changes to a State program under 30 CFR 732.17(f). Since Wyoming's
February 28, 1994, submission was a response to an OSM required change
to Wyoming's program, rather than a voluntary submission of a revised
version of disapproved amendment, OSM applied the correct time limit in
when it allowed 60 days for Wyoming to respond to the required
amendment. For additional information on the purposes of 30 CFR
732.17(f) and 30 CFR 732.17(h)(8), please see the June 17, 1982,
Federal Register (47 FR 26356, 26360-1) and the January 23, 1981,
Federal Register (46 FR 7906).
The commenters also asserted that OSM has failed to enforce 30 CFR
732.17(f)(2) and that 30 CFR 733 proceedings (substitution Federal
enforcement of a State program) should be instituted. The Federal
regulations at 30 CFR 732.17(f)(2) require that if a State RA does not
submit a proposed amendment or a description of an amendment along with
a timetable for enactment within 60 days from receipt of notice by the
Director, or does not comply with the submitted schedule, then the
Director shall begin proceedings under 30 CFR part 733.
As discussed above, Wyoming's February 28, 1994, letter, which
included a description of an amendment with a timetable for its
enactment, satisfied the requirement at 30 CFR 732.17(f)(1), that a
proposed amendment or description of amendment and timetable for
enactment, be submitted within 60 days of notification of the required
changes in the State program. Having met the deadline at 30 CFR
732.17(f)(1), it would be inappropriate for OSM to institute 30 CFR
part 733 proceedings against Wyoming at this time.
In addition, as discussed in detail in the commenters' letter,
Wyoming has gone through a negotiated rulemaking process once before
which was submitted to OSM for review as a formal amendment. At the
same time, legislative action created statutes that conflicted with the
negotiated rules. Consequently, OSM did not approve the rules and the
statutes and required the State to amend its program. It is apparent,
based upon the history described by the commenters, that the State has
been working on correcting this deficient portion of the program and
that 30 CFR part 733 proceedings would not be appropriate while the
State is working on correcting the deficiency.
Because of the 1994 legislative repeal of those portions of the
conflicting statutes and results of the ``negotiated rulemaking,'' it
would appear that the State is in a position to submit an amendment
that will correct this portion of its program. The proposed statute
changes for the 1995 legislative session should resolve the most
recently discovered statutory conflicts and thus allow completion of
the formal rulemaking process. OSM believes that this is the
appropriate process to assure that the deficiency identified in the
required amendment is adequately remedied.
The commenters pointed out that specific portions of Wyoming's
timetable, as revised on September 1, 1994, are quite lengthy. The
commenters assert that they are concerned with the 60 days the
timetable allows for ``minor changes to the proposed shrub density rule
in response to the adopted legislation'' from April through May 1995,
as well as the 90 days the timetable allows, after the Environmental
Quality Council (EQC) approval of the proposed rules, but before
submission of the amendment package to OSM, from September through
November 1995. The commenters also mentioned that Wyoming's program
includes a provision allowing the EQC to meet in an emergency hearing,
which would speed the rulemaking process, but that Wyoming has not
pursued this option.
OSM believes the 60 days allotted for dealing with ``minor
changes'' shows acceptable caution on the part of Wyoming. OSM
understands that, if the 60 days is not needed, the state will press
forward with its formal rulemaking process. Allowing 90 days to submit
the negotiated rule to OSM after approval by the EQC reflects Wyoming's
administrative processes and procedures. Rules must be filed with the
Secretary of State within 60 days after approval by the EQC. The EQC
hearings can be held at any time during the month. Therefore, Wyoming's
planned September 1995 EQC hearing could take place at the beginning or
end of that month. If it takes place at the end of the month, then the
60-day filing deadline may not occur until the end of November 1995.
Wyoming is again using acceptable caution in establishing this time
frame. Regarding Wyoming's ability to request an emergency EQC hearing,
under State law, such a request can only be made in a genuine emergency
situation. In other words, only an unplanned or unanticipated event
justifies an emergency hearing of the EQC. The current rulemaking,
while important, is neither unplanned nor unanticipated. In addition
OSM understands that Wyoming is retaining the option to request an
emergency EQC hearing if the need arises.
Agency Comments
The Bureau of Land Management responded by determining that the
amendment as written will have no effect on BLM operations.
(Administrative Record No. WY-26-6)
V. Director's Decision
Based on the above, the Director is approving Wyoming's February
28, 1994, proposed timetable for enactment of a required amendment, as
revised by Wyoming's September 1, 1994, request for extension of that
timetable. The timetable, as revised, will allow Wyoming to enact the
required program amendments specified at 30 CFR 950.16 (bb) through
(gg). The timetable, as revised, extends through November 30, 1995.
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. Procedural Determinations
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 subsection
(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 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
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 Part 950
Intergovernmental relations, Surface Mining, Underground mining.
Dated: December 19, 1994.
Charles E. Sandberg,
Acting Assistant Director, Western Support Center.
For the reasons set out in the preamble, Title 30, Chapter VII,
Subchapter T, 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, paragraph (hh) is added to read as follows:
Sec. 950.16 Required program amendments.
* * * * *
(hh) By letters dated February 28, 1994, and September 1, 1994,
Wyoming submitted a description of required amendments, time table for
enactment, and request for additional time to complete the rulemaking
for paragraphs (aa) through (gg) of this section. The request provides
that Wyoming will have through November 30, 1995, to submit those
required program amendments.
[FR Doc. 94-31599 Filed 12-22-94; 8:45 am]
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