[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