[Federal Register Volume 60, Number 52 (Friday, March 17, 1995)]
[Rules and Regulations]
[Pages 14367-14370]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6589]
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[[Page 14368]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM),
Interior.
ACTION: Final rule; approval of amendment.
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SUMMARY: OSM is approving a proposed amendment to the Wyoming
regulatory program (hereinafter referred to as the ``Wyoming program'')
under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.
1201 et seq. (SMCRA). Wyoming is revising its regulations at Appendix
B--Wildlife Monitoring, both in response to required amendment sat 30
CFR 950.16(aa), and on its own initiative. The amendment is intended to
revise the Wyoming program to be consistent with the corresponding
Federal regulations and SMCRA.
EFFECTIVE DATE: March 17, 1995.
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.
III. Proposed Amendment
By letter dated November 8, 1994, Wyoming submitted a proposed
amendment to its program pursuant to SMCRA (administrative record No.
WY-28-01). Wyoming submitted the proposed amendment in response to the
required program Amendment at 30 CFR 950.16(aa) an also included a
State initiated change. The provisions of its program that Wyoming
proposed to revise are: Appendix B--Wildlife Monitoring, Section C and
E. On its own initiative, at Section C, the State proposed to modify
the requirements for raptor nest status and production success surveys.
At Section E and in response to a required amendment placed on
Wyoming's program at 30 CFR 950.16(aa) in the October 7, 1993, OSM
rulemaking (58 FR 52232), Wyoming proposed to remove language that
would exclude the need to promptly report all observations of migrating
and wintering bald eagles or migrating peregrine falcons.
OSM announced receipt of the proposed amendment in the December 6,
1994, Federal Register (59 FR 62645), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. WY-28-09).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on January 5, 1995.
III. Director's Findings
As discussed below, the Director, in accordance with SMCRA and 30
CFR 732.15 an 732.17, finds that the proposed program amendment
submitted by Wyoming on November 8, 1994, is no less effective than the
Federal program requirements and no less stringent than SMCRA.
Accordingly, the Director approves the proposed amendment.
1. Appendix B, Section C Raptor Production, Nest Status and Production
Success
As a result of discussions with the U.S. Fish and Wildlife Service
(USFWS), the Wyoming Game and Fish Division (WGFD), and mining industry
biologists, the Wyoming Land Quality Division (LQD) proposes to modify
requirements for raptor nest status and production success surveys.
Survey requirements presently include: An annual search within the
permit area and within a 1 mile perimeter to locate known and new or
previously unrecorded nests; an initial survey in March for golden
eagle and great horned owl nests; and mid-May through mid-June survey
to locate other new raptor nests and to check the status of known nest.
The current program further requires that all nest checks are to be
conducted from a distance; that productivity checks shall be conducted
on active nests; and that the status and productivity of all nests are
to be reported annually.
The changes being proposed by LQD are as follows: Modify the
requirement that the golden eagle and great horned owl nest survey be
conducted within \1/2\ mile of existing mining activities and those
mining activities proposed for the coming year on or before mid-
February instead of March; require the following three, thorough
surveys covering the entire permit area and within 1 mile: During March
to locate golden eagle and great horned owl nests, an April survey to
locate nests of most other species, and a survey in mid-May through
mid-June to locate new raptor nests and to check the status of all
known nests. Also added, is a requirement to conduct follow up visits
for previously identified nests timed to facilitate documentation of
occupied territories, nest building, incubation and fledgling success
according to the biology of the species present and variation in
breeding chronology among study areas.
The above modifications and additions add more specificity to
Wyoming's survey requirements and provide for more desirable survey
dates for gathering data on nests. Earlier identification of nests
(i.e., before eggs are laid) will allow early mitigation action and
therefore less chance for conflicts with the mining operations. The
changes mutually agreed to by the groups involved are not inconsistent
with the Federal program requirements. The Director is therefore
approving the proposed changes.
2. Appendix B, Section E. Federally Listed Threatened and Endangered
Species
Wyoming proposes to modify the introductory paragraph of Section E,
specifying the requirements for reporting observations of threatened
and endangered species, by (1) removing the language that would exclude
the need to report observations of migrating and wintering bald eagles
or migrating peregrine falcons, and (2) adding language to clarify that
reporting observations of Federally listed threatened and endangered
species must be to the regulatory authority as required by the LQD
regulation at Chapter IV, Section 2.(r)(i)(E), unless otherwise
specified by the USFWS in the approved threatened and endangered
species plan. Item number (1) above in response to a program amendment
placed on the Wyoming program as a result of the October 7, 1993, OSM
rulemaking (58 FR 52232), codified at 30 CFR 950.16(aa). The removal of
the language to exclude reporting of migrating and wintering bald
eagles or migrating peregrine falcons satisfies the required amendment
at 30 CFR 950.16(aa). The Director is therefore removing the required
amendment from 30 CFR 950.16. Item number (2) above merely provides
reference to the specific rule that requires reporting to the
regulatory authority unless otherwise specified by the USFWS (the
Federal agency responsible for the administration of
[[Page 14369]] threatened and endangered species). The proposed change
would make the reporting requirement in the Appendix consistent with
the corresponding performance standard at Chapter IV, Section
2.(r)(i)(E), of Wyoming's regulations. In addition, the proposed change
is consistent with the corresponding Federal reporting requirement at
30 CFR 816.97(b) and 817.97(b). Based on the above discussion, the
Director is approving both modifications to Section E.
IV. Summary and Disposition of Comments
Following are summaries of all substantive written comments on the
proposed amendment that were received by OSM, and OSM's responses to
them.
1. Public Comments
OSM invited public comments on the proposed amendment, but none
were received.
2. Federal Agency Comments
Pursuant to Sec. 732.17(h)(11)(i), OSM solicited comments on the
proposed amendment from various Federal agencies with an actual or
potential interest in the Wyoming program.
The U.S. Bureau of Mines responded on November 30, 1994, that it
had no comment (administrative record No. WY-28-10).
The U.S. Corps. of Engineers responded on December 1, 1994, saying
that they found the changes to be satisfactory to their agency
(administrative record No. WY-28-11).
The Mine Safety and Health Administration (MSHA) responded on
December 16, 1994, that the amendments do not conflict with MSHA's
regulations and do not appear to affect the health and safety of the
Nation's miners (administrative record No. WY-28-12).
The Bureau of Land Management responded on December 28, 1994, that
the monitoring requirements appeared to prescribe a comprehensive and
appropriate wildlife monitoring effort, but suggested that a cross
check with the minimum data standards prepared for the Regional Coal
Teams be made to make sure the State regulations are consistent with
those standards. The Wyoming program requires extensive premining data
gathering whose level of detail must be determined in consultation with
the Wyoming Game and Fish Department and other Federal agencies having
responsibility for management or conservation of such environmental
activities (Wyoming rule at Chapter II, Section 2., (a), (vi), (G)). A
statement of how the applicant will utilize monitoring methods as
specified in Appendix B is required in the permit application (Wyoming
rule at Chapter II, Section 2, (b), (vi), (b). Wyoming also has
performance standards for Fish and Wildlife reclamation that must be
met (Wyoming rule at Chapter IV, Section 2.,(r)) and elsewhere through
out Chapter VI). The above requirements for permit application
information, monitoring during the mining operation, and carrying out
reclamation assure that appropriate consideration and consultation by
the agencies responsible is obtained on a site specific basis. In
addition, the previously approved Wyoming regulations are no less
effective than the corresponding requirements in the Federal
regulations. The minimum data standards prepared for the Regional Coal
Teams2, while certainly providing helpful guidelines, are not
required as part of Wyoming's surface coal mining program. Based on the
above discussion, the Director is not requiring Wyoming to modify its
program in response to the BLM's comments (administrative record No.
WY-28-14).
3. Environmental Protection Agency (EPA) Concurrence and Comments
Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit
the written concurrence of EPA with respect to those provisions of the
proposed program amendment that 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.).
None of the revisions that Wyoming proposed to make in its
amendment pertain to air or water quality standards. Nevertheless, OSM
requested EPA's comments on the proposed amendment (administrative
record No. WY-28-05). EPA responded to OSM's request on December 21,
1994, (administrative record No. WY-28-13) that they did not believe
there would be any impacts to water quality standards promulgated under
the authority of the Clean Water Act, as amended (33 U.S.C. 1251 et
seq.).
4. State Historic Preservation Officer (SHPO) and the Advisory Council
on Historic Preservation (ACHP)
Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the
proposed amendment from the SHPO and the ACHP (administrative record
Nos. WY-28-04 and WY-28-03). Neither SHPO nor the ACHP responded to
OSM's request.
V. Director's Decision
Based on the above finding, the Director approves Wyoming's
proposed amendment as submitted on November 8, 1994, that modifies
Appendix B, Section C, concerning requirements for survey of raptor
nest status and production success; and Appendix B, Section E,
concerning the reporting of threatened and endangered species when
observed. The Director approves the changes as proposed by Wyoming with
the provision that they be fully promulgated in identical form as
submitted to and reviewed by OSM and the public.
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
undue delay. Consistency of State and Federal standards is required by
SMCRA.
VI. 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 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 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 [[Page 14370]] 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)).
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
Intergovernmental relations, Surface mining, Underground mining.
Dated: March 10, 1995.
Charles E. Sandberg,
Acting 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. Section 950.15 is amended by adding paragraph (v) to read as
follows:
Sec. 950.15 Approval of amendments to the Wyoming regulatory program.
* * * * *
(v) The following program changes, as submitted to OSM on November
8, 1994, are approved effective March 17, 1995: Appendix B, Section C
concerning dates for conducting raptor surveys; and Appendix B, Section
E concerning the reporting of observed migrating and wintering bald
eagle or migrating peregrine falcons and observations of other
Federally listed threatened and endangered species.
Sec. 950.16 [Amended]
3. Section 950.16 is amended by removing and reserving paragraph
(aa).
[FR Doc. 95-6589 Filed 3-16-95; 8:45 am]
BILLING CODE 4310-05-M
