[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] ----------------------------------------------------------------------- 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. ----------------------------------------------------------------------- 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