[Federal Register Volume 60, Number 242 (Monday, December 18, 1995)]
[Proposed Rules]
[Pages 65048-65051]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-30649]



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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SPATS No. WY-022]


Wyoming Regulatory Program

AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), 
Interior.

ACTION: Proposed rule; public comment period and opportunity for public 
hearing on proposed amendment.

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SUMMARY: OSM is announcing receipt of a proposed amendment to the 
Wyoming regulatory program (hereinafter, the ``Wyoming program'') under 
the Surface Mining Control and Reclamation Act of 1977 (SMCRA). The 
proposed amendment consists of the addition and revision of statutes 
and rules pertaining to shrub density stocking requirements and 
wildlife habitat. The amendment is intended to revise the Wyoming 
program to be consistent with SMCRA and the corresponding Federal 
regulations.

DATES: Written comments must be received by 4:00 p.m., m.s.t., January 
17, 1996. If requested, a public hearing on the proposed amendment will 
be held on January 12, 1996. Requests to present oral testimony at the 
hearing must be 

[[Page 65049]]
received by 4:00 p.m., m.s.t., January 2, 1996.

ADDRESSES: Written comments should be mailed or hand delivered to Guy 
V. Padgett at the address listed below.
    Copies of the Wyoming program, the proposed amendment, and all 
written comments received in response to this document will be 
available for public review at the addresses listed below during normal 
business hours, Monday through Friday, excluding holidays. Each 
requester may receive one free copy of the proposed amendment by 
contacting OSM's Casper Field Office.

Guy V. Padgett, Director, Casper Field Office, Office of Surface Mining 
Reclamation and Enforcement, Federal Building, Room 2128, 100 East 
``B'' Street, Casper, Wyoming 82601-1918
Dennis Hemmer, Director, Department of Environmental Quality, Herschler 
Building--4th Floor West, 125 West 25th Street, Cheyenne, Wyoming 
82002, Telephone: (307) 777-7938

FOR FURTHER INFORMATION CONTACT: Guy V. Padgett, Telephone: (307) 261-
5824.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

    On November 26, 1980, the Secretary of the Interior conditionally 
approved the Wyoming program. General background information on the 
Wyoming program, including the Secretary's findings, the disposition of 
comments, and the conditions of approval of the Wyoming program can be 
found in the November 26, 1980, Federal Register (45 FR 78637). 
Subsequent actions concerning Wyoming's program and program amendments 
can be found at 30 CFR 950.12, 950.15, 950.16, and 950.20.

II. Proposed Amendment

    By letter dated November 29, 1995, Wyoming submitted a proposed 
amendment to is program (administrative record No. WY-031-1) pursuant 
to SMCRA (30 U.S.C. 1201 et seq.). Wyoming submitted the proposed 
amendment in response to the required program amendments at 30 CFR 
950.16(q) and (bb) through (gg). The provisions of the Wyoming 
Environmental Quality Act that Wyoming proposes to revise are: Wyoming 
Statue (W.S.) 35-11-103, definitions, and W.S. 35-11-402, establishment 
of reclamation standards. The provisions of the coal rules and 
regulations of the Department of Environmental Quality, Land Quality 
Division, that Wyoming proposes to revise are: chapter I, section 2, 
definitions; chapter II, section 2, permit application requirements for 
surface coal mining operations; chapter IV, section 2, general 
environmental protection performance standards for surface coal mining 
operations; chapter X, section 4, coal exploration and reclamation 
performance standards; chapter XI, section 5, self-bonding; chapter 
XIII, section 3, notice and opportunity for public hearing on surface 
coal mining permit revisions; chapter XVII, section 1, definitions for 
designation of areas unsuitable for surface coal mining; and appendix 
A, vegetation sampling methods and reclamation success standards for 
surface coal mining operations.
    Specifically, Wyoming proposes to delete the definitions for 
``Agricultural lands,'' ``Critical habitat,'' and ``Important habitat'' 
or ``crucial habitat'' at W.S. 35-11-103(e) (xxviii), (xxix), and 
(xxx).
    Wyoming proposes to revise W.S. 35-11-402(b) to indicate that this 
statutory provision addresses, to the extent required by Federal law or 
regulations, State wildlife agencies' approval, rather than 
consultation and approval, of reclamation standards for fish and 
wildlife habitat. It proposes to further revise W.S. 35-11-402(b) to 
require that the Wyoming Game and Fish Department shall consider ``fish 
and wildlife habitat'' to be that defined at W.S. 35-11-103(e)(xxvi) 
and not to include grazing land as defined in W.S. 35-11-103(e) (xxvii) 
``unless the grazingland has been designated as critical habitat by the 
United States Fish and Wildlife Service'' or ``crucial habitat by the 
Wyoming Game and Fish Department prior to submittal of the initial 
permit application or any subsequent amendments to the permit 
application.'' Wyoming proposes to revise W.S. 35-11-402(c) to require 
that native shrubs shall be reestablished on grazing land and that no 
shrub species shall be required to be more than one-half of the shrubs 
in the postmining standard.
    Wyoming also proposes several revisions to its rules and 
regulations. In chapter I, Wyoming proposes to revise the definition 
for ``Critical habitat'' at section 2(v) to be ``those areas essential 
to the survival and recovery of species listed by the Secretary of the 
Interior or Commerce as threatened or endangered; (50 CFR Parts 17 and 
226).'' It proposes to add a definition for ``Crucial habitat'' at 
section 2(w) to be ``those areas, designated as such by the Wyoming 
Game and Fish Department, which determine a population's ability to 
maintain and reproduce itself at a certain level over a long term.'' It 
proposes to add a definition for ``Eligible land'' at section 2(ac) to 
be

All land to be affected by a mining operation after the shrub 
standard set forth at Chapter IV, Section 2.(d)(x)(E) is approved by 
the Office of Surface Mining. Cropland, pastureland, or treated 
grazingland approved by the Administrator which is to be affected by 
a mining operation after the shrub standard set forth at chapter IV, 
section 2.(d)(x)(E) is approved by the Office of Surface Mining is 
not `eligible land'.

Wyoming proposes to revise the definition for ``Important habitat'' at 
recodified section 2(ax) to be

That habitat which, in limited availability, supports or encourages 
a maximum diversity of wildlife species or fulfills one or more 
living requirements of a wildlife species. Examples of important 
habitat include, but are not limited to, wetlands, riparian areas, 
rimrocks, areas offering special shelter or protection, reproduction 
and nursery areas, and wintering areas.

It proposes to revise section 2(bc)(iii) to indicate that ``Grazingland 
includes rangelands and forest lands where the indigenous native 
vegetation is actively managed for grazing, browsing, and occasionally 
hay production, and occasional use by wildlife.'' Wyoming proposes to 
revise section 2(bc)(viii) to indicate that ``Fish and wildlife habitat 
means land dedicated wholly or partially to the production, protection 
or management of species of fish or wildlife.'' It proposes to add at 
section 2(bc)(xi) a provision to indicate that

``Treated grazingland'' means grazingland which has been altered to 
reduce or eliminate shrubs provided such treatment was applied at 
least five years prior to submission of the state program permit 
application. However, grazingland altered more than five years prior 
to submission of the state program permit application on which full 
shrubs have reestablished to a density of at least one per nine 
square meters does not qualify as treated grazingland.

Wyoming proposes to recodify the definitions in chapter 1, section 2, 
to reflect the additions of new terms as discussed above.
    In chapter II, Wyoming proposes to revise section 2(a)(vi)(G)(II) 
to require that, if crucial habitat, in addition to critical or 
important habitat, disruption is likely, the Wyoming Game and Fish 
Department shall be contacted to determine the types and numbers of 
wildlife likely to be disturbed or displaced. It also proposes to 
revise section 2(b)(iv)(C), regarding revegetation plans, to require 
that (1) the Wyoming Game and Fish Department shall be consulted, and 
its approval received, for minimum stocking and planting arrangements 
of trees and shrubs, including species composition 

[[Page 65050]]
and ground cover for crucial and critical habitat, (2) the Wyoming Game 
and Fish Department shall be consulted for minimum stocking and 
planting arrangements of trees and shrubs, including species 
composition and vegetative ground cover for important habitat, and (3) 
the Wyoming Department of Agriculture shall be consulted on cropland 
and erosion control techniques.
    In chapter IV, Wyoming proposes to revise section 2(d)(x)(E) to 
include a requirement that the postmining density, composition, and 
distribution of shrubs shall be based upon site-specific evaluation of 
premining vegetation and wildlife use. It proposes to revise section 
2(d)(x)(E)(I) to require that (1) except where a lesser density is 
justified from premining condition in accordance with appendix A, at 
least 20 percent of the eligible land shall be restored to shrub 
patches supporting an average density of one shrub per square meter, 
(2) patches shall be no less than .05 acres each and shall be arranged 
in a mosaic that will optimize habitat interspersion and edge effect, 
(3) criteria and procedures for establishing the standard are specified 
in appendix A, and (4) this standard shall apply upon approval by OSM 
to all lands affected thereafter. It also proposes to revise section 
2(d)(x)(E)(II) to require that approved shrub species and seeding 
techniques shall be applied to all remaining grazingland. Finally, it 
proposes to revise section 2(d)(x)(E)(III) to require that (1) for 
areas containing designated critical or crucial habitat, the Wyoming 
Game and Fish Department shall be consulted about, and its approval 
received for, minimum stocking and planting arrangements of shrubs, 
including species composition, and (2) for areas determined to be 
important habitat, the Wyoming Game and Fish Department shall be 
consulted for recommended minimum stocking and planting arrangements of 
shrubs, including species composition, that may exceed the programmatic 
standard discussed above.
    In chapter X, Wyoming proposes to revise section 4(e) to require 
that coal exploration operations that will substantially disturb the 
natural land surface shall not disturb critical or crucial habitats and 
that they shall consult the Wyoming Game and Fish Department prior to 
disturbing important habitat.
    In chapter XI, Wyoming proposes to revise section 5(a) to require 
that the Administrator of the Division of Land Quality shall require 
the substitution of a corporate surety for a self-bond if the financial 
information submitted or requested under section 4(a)(ii), rather than 
section 3(a)(ii), indicates that the operator no longer qualifies under 
the self-bonding program.
    In Chapter XIII, Wyoming proposes to revise section 3(a) to require 
that (1) the operator's newspaper notice of application for permit 
revision shall include the information required by W.S. 35-11-406(j) 
and the permit number and date approved, and (2) the operator shall 
mail a copy of the application mine plan map to the Wyoming Oil and Gas 
Commission in accordance with W.S. 35-11-406(j).
    In chapter XVII, Wyoming proposes to revise its rules concerning 
designation of areas unsuitable for surface coal mining at section 1(a) 
to define ``Fragile lands'' to include crucial habitats for fish or 
wildlife.
    In appendix A, Wyoming proposes to revise section II.C.3, suggested 
sampling procedures for ``shrub habitat characteristics,'' to indicate 
that (1) the postmining density composition and distribution of shrubs 
shall be based upon site-specific evaluation of the premining 
vegetation and wildlife use, (2) except where a lesser density is 
justified from premining conditions, at least 20 percent of the 
eligible land shall be restored to shrub patches supporting an average 
density of one shrub per square meter, (3) the baseline vegetation 
``shall,'' instead of ``should,'' include premining shrub distribution 
data, (4) shrub density and cover data ``shall,'' instead of 
``should,'' be components of the shrub distribution information, (5) 
when shrub density data are estimated, they ``shall,'' instead of 
``should,'' be gathered from each community, but not from control 
areas, reference areas, or extended reference areas, (6) ``shrubs'' 
``shall,'' instead of ``should,'' be divided into woody species (full 
shrubs) and suffrutescent species (subshrubs) for sampling purposes, 
(7) shrub density counts shall be performed within a 50 square meter 
area using a plot shape appropriate to the community, (8) data 
``shall,'' instead of ``should,'' be recorded by species, (9) data 
``shall,'' instead of ``should,'' be reported as number per square 
meter and per acre, (10) all shrub density data collected after the 
effective date specified in chapter IV, section 2(d)(x)(E) of the rules 
and regulations shall be subject to the sample adequacy tests specified 
in appendix A, section IV, although all shrub density data collected on 
land affected prior to the effective date shall not be subject to 
sample adequacy tests unless that shrub density data is being used to 
fulfill the 20 percent shrub density standard, and (11) when sampling, 
which is not subject to sample adequacy, is conducted, the number of 
shrub density sample points should correspond to the number of cover 
samples in each community type.
    In appendix A, Wyoming proposes to revise table 1 to include 
parameter values to be used for 50 square meter shrub density plots in 
assessing sample adequacy, (2) to revise table 2, minimum and maximum 
sample sizes for various sampling methods, to delete the belt transect 
sampling method, and (3) to revise table 2 to require, for 50 square 
meter shrub density plots, a minimum of 15 samples and to indicate 
that, if sample adequacy cannot be achieved after sampling 50 shrub 
density plots, the operator shall contact the Land Quality Division for 
guidance.
    In appendix A, Wyoming proposes to revise section IV.D to require 
that, with respect to maximum and minimum sampling sizes, shrub density 
be estimated using a 50 square meter plot.
    In appendix A, Wyoming proposes to revise section VII.F, 
restoration of shrubs, subshrubs, and trees, to require that (1) the 
postmining density, composition, and distribution of shrubs shall be 
based upon site-specific evaluation of the premining vegetation and 
wildlife use and (2) except where a lesser density is justified from 
premining conditions, at least 20 percent of the eligible land shall be 
restored to shrub patches supporting an average density of one shrub 
per square meter. In this section, Wyoming also proposes to delete 
various shrub density criteria.
    In Appendix A, Wyoming proposes to add in section VIII.E various 
and numerous standards and criteria for the evaluation of shrub 
density.
    Lastly, in appendix A, Wyoming proposes to revise the glossary at 
appendix VII to define ``dominant'' as the species with the greatest 
density relative to all other species sampled and ``primary shrub 
species'' as

All full shrub species which comprise at least 10 percent of the 
relative density of full shrubs. However, if an operator selects 
option IV, the community-specific full shrub and approved subshrub 
density standard, then `primary shrub species' means all full shrub 
and approved subshrub species which comprise at least 10 percent of 
the relative density of full shrubs. It is further provided under 
option IV that in order to be considered as a ``primary shrub 
species,'' fringed sagewort must comprise at least 20 percent of the 
relative shrub and approved subshrub species composition.

III. Public Comment Procedures

    In accordance with the provisions of 30 CFR 732.17(h), OSM is 
seeking comments on whether the proposed amendment satisfies the 
applicable 

[[Page 65051]]
program approval criteria of 30 CFR 732.15. If the amendment is deemed 
adequate, it will become a part of the Wyoming program.

1. Written Comments

    Written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of the 
commenter's recommendations. Comments received after the time indicated 
under ``DATES'' or at locations other than the Casper Field Office will 
not necessarily be considered in the final rulemaking or included in 
the administrative record.

2. Public Hearing

    Persons wishing to testify at the public hearing should contact the 
person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., 
m.s.t., January 2, 1996. Any disabled individual who has need for a 
special accommodation to attend a public hearing should contact the 
individual listed under FOR FURTHER INFORMATION CONTACT. The location 
and time of the hearing will be arranged with those persons requesting 
the hearing. If no one requests an opportunity to testify at the public 
hearing, the hearing will not be held.
    Filing of a written statement at the time of the hearing is 
requested as it will greatly assist the transcriber. Submission of 
written statements in advance of the hearing will allow OSM officials 
to prepare adequate responses and appropriate questions.
    The public hearing will continue on the specified date until all 
persons scheduled to testify have been heard. Persons in the audience 
who have not been scheduled to testify, and who wish to do so, will be 
heard following those who have been scheduled. The hearing will end 
after all persons scheduled to testify and persons present in the 
audience who wish to testify have been heard.

3. Public Meeting

    If only one person requests an opportunity to testify at a hearing, 
a public meeting, rather than a public hearing, may be held. Persons 
wishing to meet with OSM representatives to discuss the proposed 
amendment may request a meeting by contacting the person listed under 
FOR FURTHER INFORMATION CONTACT. All such meetings will be open to the 
public and, if possible, notices of meeting will be posted at the 
locations listed under ADDRESSES. A written summary of each meeting 
will be made a part of the administrative record.

IV. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12778

    The Department of the Interior has conducted the reviews required 
by section 2 of Executive Order 12778 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each program is drafted and promulgated by a 
specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 
U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 
732.15, and 732.17(h)(10), decisions on proposed State regulatory 
programs and program amendments submitted by the States must be based 
solely on a determination of whether the submittal is consistent with 
SMCRA and its implementing Federal regulations and whether the other 
requirements of 30 CFR Parts 730, 731, and 732 have been met.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 950

    Intergrovernmental relations, Surface mining, Underground mining

    Dated: December 7, 1995.
Russell F. Price,
Acting Regional Director, Western Regional Coordinating Center.
[FR Doc. 95-30649 Filed 12-15-95; 8:45 am]
BILLING CODE 4310-05-M