[Federal Register Volume 70, Number 63 (Monday, April 4, 2005)]
[Rules and Regulations]
[Pages 16945-16955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-6602]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[WY-032-FOR]


Wyoming Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving, with one exception, a proposed amendment to 
the Wyoming regulatory program (the ``Wyoming program'') under the 
Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). 
Wyoming proposed to remove rules pertaining to soft rock surface mining 
and to revise and add rules about highwalls and coal exploration. 
Wyoming intended to revise or revised its program to be consistent with 
the corresponding Federal regulations, provide additional safeguards, 
clarify ambiguities, and to enhance and diversify reclamation.

DATES: Effective Date: April 4, 2005.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Chief, Denver Field 
Division, telephone: (303) 844-1400, extension 1424; Internet address: 
[email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining's (OSM's) Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations

I. Background on the Wyoming Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * * and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Wyoming program on November 26, 1980. You 
can find background information on the Wyoming program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval in the November 26, 1980, Federal Register (45 FR 78637). You 
can also find later actions concerning Wyoming's program and program 
amendments at 30 CFR 950.10, 950.12, 950.15, 950.16, and 950.20.

II. Submission of the Proposed Amendment

    By letter dated May 21, 2004, Wyoming sent us an amendment to its 
program (Rule Package 1R, Administrative Record number WY-37-1) under 
SMCRA (30 U.S.C. 1201 et seq.). Wyoming sent the amendment in response 
to a February 21, 1990, letter (Administrative Record number WY-37-7) 
that we sent to the State under 30 CFR 732.17(c), and in response to 
the required program amendments at 30 CFR 950.16(a), (w), and (ll), and 
to include the changes made at its own initiative.
    Changes Wyoming proposed to make in its Coal Rules included: (1) 
Chapter 1, section 2(l), revising the definition of ``coal 
exploration;'' (2) Chapter 1, section 2(ce), removing the definition of 
``soft rock surface mining;'' (3) Chapter 4, section 2(b)(iv)(A), 
adding provisions for small depressions; (4) Chapter 4, section 
2(b)(ix), (ix)(A), (B), and (C), removing soft rock surface mining 
provisions for backfilling and grading; (5) Chapter 4, section 
2(b)(ix)(D), retaining and revising a soft rock mining provision for 
highwall retention; (6) Chapter 10, sections 1 and 1(b)(iii), revising 
requirements for coal exploration of 250 tons or less; (7) Chapter 10, 
sections 2(b), (b)(i), (ii), (iii), (iv), (v), (vi), (vii), (viii), 
(ix), (x), (xi), and (xii), adding and revising application 
requirements for coal exploration of more than 250 tons or in areas 
designated unsuitable for mining; (8) Chapter 10, section 3(b), 
revising

[[Page 16946]]

provisions of application approval for exploration of more than 250 
tons or in areas designated unsuitable for mining; (9) Chapter 10, 
section 4(e), revising performance standards for protecting certain 
critical, crucial and important habitats during exploration; and (10) 
Chapter 10, sections 8, 8(a), (b), (b)(i), (ii), (ii)(A), (ii)(B), 
(ii)(C), (iii), and (iv), adding rules pertaining to commercial use and 
sale of coal extracted during exploration.
    We announced receipt of the proposed amendment in the August 17, 
2004, Federal Register (69 FR 51026). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Administrative Record 
number WY-37-10). We did not hold a public hearing or meeting because 
nobody requested either one. The public comment period ended on 
September 15, 2004. We received comments from two Federal agencies.
    During our review of the amendment, we identified concerns about 
Wyoming's proposed highwall retention rule at Chapter 4, section 
2(b)(ix)(D). We notified the State of our concerns by letter dated 
August 11, 2004 (Administrative Record Number WY-37-11).
    Wyoming responded in a letter dated August 30, 2004, by sending us 
a Coal Rule Package 1-T (Administrative Record Number WY-37-12). In 
that package, Wyoming proposed additional revisions to the highwall 
retention rule at Chapter 4, section 2(b)(ix)(D). It also noted, 
however, that the proposed change to the highwall retention rule 
included in Coal Rule Package 1-T must be reviewed further in the 
State's internal rulemaking process, which it expected to take several 
months. In light of Wyoming's ongoing rulemaking, we will defer making 
a final decision on Chapter 4, section 2(b)(ix) until that process is 
completed and we know the final wording of that proposed rule.

III. OSM's Findings

    Following are our findings concerning the amendment under SMCRA and 
the Federal regulations at 30 CFR 732.15 and 732.17. We are approving 
the amendment, with one exception as noted above and discussed below.

A. Minor Revisions to Wyoming's Rules

    Wyoming proposed minor recodification changes to the following 
previously-approved rules as shown:
    Chapter 10, sections 2(b)(iii), (iv), (v), (vii), (vi), and (viii), 
application requirements for exploration of more than 250 tons or in an 
area designated unsuitable for mining, recodified as 2(b)(vi), (vii), 
(viii), (x), (xi), and (xii), respectively (Federal counterparts at 30 
CFR 772(b)(6), (7), (8), (8)(i), (8)(ii), (8)(iii), (9), (11), (12), 
and (13), respectively).
    Because these changes are minor, we find that they will not make 
Wyoming's rules less effective than the corresponding Federal 
regulations and can be approved.

B. Revisions to Wyoming's Rules That Have the Same Meaning as the 
Corresponding Provisions of the Federal Regulations

    Wyoming proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations. In some cases, the State also proposed to 
recodify the revised rules as shown below:
    1. Chapter 1, section 2(l), revising the definition of ``coal 
exploration'' (30 CFR 701.5);
    2. Chapter 4, section 2(b)(iv)(A), adding a new provision for the 
use of small depressions in reclamation (30 CFR 816.102(h));
    3. Chapter 10, sections 1 and 1(b)(iii), revising general 
requirements for coal exploration of 250 tons or less (30 CFR 772.11, 
11(b), and 11(b)(3));
    4. Chapter 10, sections 2(b), (b)(i), (ii), and (iii), (b)(iv), and 
(b)(v), revising and adding general requirements for coal exploration 
of more than 250 tons or in an area designated as unsuitable for 
mining, including recodification (30 CFR 772.12(b), (b)(1), (2), (3), 
(4) and (5));
    5. Chapter 10, section 2(b)(ix), description of measures to be used 
so exploration of more than 250 tons or in areas designated unsuitable 
for mining complies with exploration performance standards at Chapter 
10, section 4, including recodification (30 CFR 772.12(b)(10));
    6. Chapter 10, section 3(b), provision for administrative and 
judicial review for anyone adversely affected by decisions on coal 
exploration applications (30 CFR 772.12(e)(2); required amendment at 30 
CFR 950.16(a));
    7. Chapter 10, section 8, adding a new heading for the section 
addressing commercial use or sale of coal extracted under a coal 
exploration license (30 CFR 772.14);
    8. Chapter 10, section 8(b), adding a new provision for written 
approval to not require a mining permit for coal exploration where sale 
or commercial use of extracted coal is for coal testing purposes only, 
with an added requirement for an application to demonstrate the need 
for coal testing and the purpose for coal extraction during exploration 
(30 CFR 772.14(b));
    9. Chapter 10, section 8(b)(i), adding a new requirement for the 
testing firm name and coal testing locations for coal extracted during 
exploration (30 CFR 772.14(b)(1));
    10. Chapter 10, section 8(b)(ii), adding a new requirement for a 
statement from the end user or agent or broker if coal extracted during 
exploration is sold or commercially used, with a requirement for the 
statement to include other information described in following 
subsections (30 CFR 772.14(b)(2));
    11. Chapter 10, section 8(b)(ii)(A), adding a new requirement for 
the statement to include the reason for the test, including why the 
coal is so different from the user's coal as to require testing (30 CFR 
772.14(b)(2)(i));
    12. Chapter 10, section 8(b)(ii)(B), adding a new requirement for 
the statement to show the amount of coal needed for testing and why a 
lesser amount is insufficient (30 CFR 772.14(b)(2)(ii));
    13. Chapter 10, section 8(b)(ii)(C), adding a new requirement for a 
description of the test to be conducted (30 CFR 772.14(b)(2)(iii));
    14. Chapter 10, section 8(b)(iii), adding a new requirement for 
evidence of sufficient coal reserves to show that coal to be removed 
during exploration is not the total reserve but a sample (30 CFR 
772.14(b)(3)); and
    15. Chapter 10, section 8(b)(iv), adding a new requirement for an 
explanation as to why other means of exploration are not adequate to 
determine coal quality and/or mining feasibility (30 CFR 772.14(b)(4).
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations and 
can be approved.

C. Revisions to Wyoming's Rules That Are Not the Same as the 
Corresponding Provisions of the Federal Regulations

1. Information Required in Applications for Exploration About Historic 
or Archeological Resources
    Wyoming proposed to add a sentence to the end of recodified section 
2(b)(vii) in Chapter 10 of its Coal Rules describing requirements for 
applications for coal exploration involving more than 250 tons or in 
areas designated unsuitable for mining. Wyoming's proposed change 
responds to the amendment required at 30 CFR 950.16(w). The new 
sentence would expand exploration application

[[Page 16947]]

requirements to ``* * * include any other information which the 
Administrator may require regarding known or possible historic or 
archeological resources.'' With the exception of the word ``possible,'' 
Wyoming's proposed change is substantively identical to the counterpart 
Federal regulation at 30 CFR 772.12(b)(8)(iv), which requires a 
description of ``[a]ny other information which the regulatory authority 
may require regarding known or unknown historic or archeological 
resources' (emphasis added for comparison). Wyoming did not explain its 
use of the word ``possible'' in contrast to the term ``unknown'' used 
in the Federal regulation.
    Neither Black's Law Dictionary nor the regulations at 36 CFR part 
800 et seq. define the adjectives ``possible'' or ``unknown.'' 
Webster's Ninth New Collegiate Dictionary defines the adjective 
``unknown'' as--

    [n]ot known or not well-known; also: having an unknown value.

    On the other hand, Webster's defines the adjective ``possible'' 
as--

    1 a: being within the limits of ability, capacity, or 
realization b: being what may be done or may occur according to 
nature, custom, or manners 2 a : being something that may or may not 
occur b : being something that may or may not be true or actual 3 : 
having an indicated potential.

    In its explanation of synonyms for ``possible,'' Webster's adds 
that--

    POSSIBLE implies that a thing may certainly exist or occur given 
the proper conditions * * *.

    In the preamble to the final rule Federal Register publishing the 
regulations at 30 CFR 772.12 (52 FR 4244; February 10, 1987) we said 
``[s]everal commenters stated that they do not believe that OSMRE has 
any authority to require information on unknown archeological sites.'' 
In response, we acknowledged that ``[s]ection 772.12(b) does not 
require submission of information on unknown archeological sites.'' We 
continued by saying--

    [r]ather, OSMRE is making explicit that the regulatory authority 
has the discretion to require such information, should the 
regulatory authority need the information to make informed decisions 
in the public interest concerning important historic properties that 
may be disturbed by coal exploration activities. The basis for such 
authority is the same as for requiring information on historic 
resources in the permitting process, discussed in the preceding 
portion of this preamble (Id., at 4256).

    In the preamble's discussion of our authority to require 
information on historic and archeological resources in the permitting 
process, as referenced in the quotation above, we said--

    [c]onsideration of the effects of surface coal mining operations 
extends both to know[n] [sic] resources and to situations where a 
well reasoned conclusion has been reached that there may be 
resources which are likely to be impacted, as well as to properties 
listed on, and those eligible for listing on, the National Register 
of Historic Properties.

    The foregoing explanation reveals consistency between use of the 
terms ``unknown'' and ``possible'' in the Federal regulation and 
proposed State rule, respectively. The preamble's explanation of the 
Federal regulation characterizes ``unknown'' resources as ``situations 
where a well reasoned conclusion has been reached that there may be 
resources which are likely to be impacted * * *.'' Wyoming's use of the 
term ``possible'' is not inconsistent with the Federal regulation's 
corresponding use of the term ``unknown'' in view of Webster's 
definition of ``possible'' as ``being what may be done or may occur 
according to nature, custom, or manners'' and its explanation that 
``possible'' ``* * * implies a thing may certainly exist or occur given 
the proper conditions.''
    As we explained in the 1987 final rule (Id.) , the Federal 
regulation does not require operators to submit information about 
``unknown'' resources but gives regulatory authorities the discretion 
to require such information if they need it. In effect, Wyoming's 
proposed rule gives it the authority to require additional information 
about historic and archeological resources if needed and the discretion 
to require it for known resources and ``possible'' others that might 
exist but are not definitely known to exist. As such, we find the 
State's proposed rule at Chapter 10, recodified section 2(b)(vii) is 
not inconsistent with, and is no less effective than, the counterpart 
Federal regulation and can be approved. We also are removing the 
required amendment at 30 CFR 950.16(w).
2. Restrictions on Disturbing Certain Critical, Crucial, and Important 
Habitats During Exploration
    Wyoming's proposed rule at Chapter 10, section 4(e) of its coal 
rules would prohibit disturbing critical habitat for listed threatened 
and endangered species during exploration. It also would prohibit 
disturbing crucial or important wildlife habitat during exploration 
without written evidence of consultation with the Wyoming Game and Fish 
Department, including any resulting recommendations. The counterpart 
Federal regulation at 30 CFR 815.15(a) prohibits disturbing unique or 
unusually high value habitats for fish, wildlife, and other related 
environmental values and critical habitats for threatened and 
endangered species during exploration. The State rule pertains to 
listed threatened and endangered species; the counterpart Federal 
regulation refers only to threatened and endangered species.
    Wyoming defines the terms ``crucial habitat'' and ``important 
habitat'' in its rules. We approved Wyoming's definitions of those two 
terms in the August 6, 1996, Federal Register for amendment WY-022-FOR 
(61 FR 40735). In that approval, we noted that Wyoming's definition of 
``important habitat'' coincides with ``habitats of unusually high value 
for fish [and] wildlife'' as described further in 30 CFR 
780.16(a)(2)(ii) (Id., at 40737). It also is consistent with the 
wording of the counterpart Federal regulation at 30 CFR 815.15(a) for 
the rule being revised at section 4(e) of Chapter 10 of the State's 
rules. In the 1996 approval (Id.), we found Wyoming's definitions of 
``important habitat'' and ``crucial habitat'' were not inconsistent 
with the surface mining permit application regulations at 30 CFR 
780.16(a) and (b) and the performance standards at 816.97(f). There are 
no counterpart provisions in the Federal regulations for the term 
``crucial habitat.''
    In the same August 6, 1996, Federal Register (Id.), we required 
Wyoming to revise section 4(e) of Chapter 10. The required amendment is 
found at 30 CFR 950.16(ll). As proposed then in amendment WY-022-FOR, 
section 4(e) would have allowed coal exploration operations to disturb 
important habitat after consultation with the Wyoming Game and Fish 
Department while prohibiting disturbance to critical and crucial 
habitat. Because ``important habitat'' in Wyoming's rules is analogous 
to ``habitats of unique or unusually high value for fish [and] 
wildlife'' as used in the Federal regulations and because the Federal 
regulations prohibit disturbance of unusually high value habitats, we 
found Wyoming's proposed rule was less effective than the counterpart 
Federal regulation because it allowed coal exploration to disturb 
important habitat based on consultation with the Wyoming Game and Fish 
Department.
    In a letter dated April 8, 1997 (Administrative Record number WY-
37-13), Wyoming noted its ongoing efforts to reword section 4(e) of 
Chapter 10 to comply with the required amendment. The State asked us 
for

[[Page 16948]]

guidance and flexibility in interpreting the prohibition on disturbance 
required at 30 CFR 815.15(a). We responded to Wyoming's request for 
guidance in a letter dated September 7, 2000 (Administrative Record 
number WY-37-14) after discussing the issue with the State on a number 
of occasions. In that letter, we acknowledged the Federal regulation's 
prohibition of exploration disturbance on habitats of unique or 
unusually high value for fish, wildlife, and related environmental 
values, and by analogy, on important habitats in Wyoming. However, we 
suggested the following alternative:

    For coal exploration on ``important habitat'' or ``crucial 
habitat'' the State may wish to consider a proposed amendment that 
requires the same consultation process with State and Federal 
agencies responsible for fish and wildlife as those required by 
permanent regulatory program surface coal mining activities and 
reclamation plans (30 CFR 780.16, 816.97 and the State 
counterparts). We would consider this alternative to be consistent 
with and no less effective in meeting the intent of SMCRA.

    As proposed, Wyoming's exploration performance standard at section 
4(e) of Chapter 10 responds to the required amendment as follows:

    Critical habitats of listed threatened or endangered species 
identified pursuant to the Endangered Species Act of 1973 (16 U.S.C. 
1531 et seq.) shall not be disturbed during coal exploration. 
Crucial or important habitat for wildlife shall not be disturbed 
during coal exploration unless written evidence of consultation with 
the Wyoming Game and Fish Department and any resulting 
recommendations are submitted to the Administrator as part of either 
a coal exploration license or notice of intent to explore 
application.

    Wyoming explained in its amendment how its proposed rule addresses 
the approval criterion we established in the September 7, 2000, letter. 
The State explained that--

    * * * as is currently required prior to approving any coal 
permit, the Wyoming Game and Fish Department reviews the permit 
application and their recommendations for minimizing the impacts to 
wildlife and their habitats are considered and integrated into the 
Mine and Reclamation Plan of that permit. A similar process would be 
necessary as part of any [Land Quality Division] approval of a 
Notice of Intent to Explore or a Coal Exploration License. 
Therefore, this proposed rule amendment is maintaining the current 
requirement that important habitat can only be disturbed after 
consultation with the Wyoming Game and Fish Department, but is 
extending this flexibility to crucial habitats which had previously 
been off limits to coal exploration.

    We reviewed Wyoming's surface coal mining provisions for 
consultation on fish and wildlife issues in context of the criterion 
established in our September 7, 2000, letter. The State's approved 
counterparts to the Federal regulations for permit application 
requirements and consultation at 30 CFR 780.16(a) and (a)(1) are found 
at Chapter 2, sections 2(a)(vi)(C)(III), (G), (G)(I), (II), and (III). 
Its approved counterparts to the Federal regulations for permit 
application requirements at 30 CFR 780.16(a)(2)(i) and (ii) and 
780.16(b) are found at Chapter 2, sections 2(b)(vi), (vi)(B) and 
(vi)(C). Chapter 4, section 2(r) of Wyoming's rules includes the 
State's previously-approved counterparts to the Federal performance 
standards for surface coal mining at 30 CFR 816.97(a) and (b).
    Chapter 10 of Wyoming's exploration rules includes requirements 
pertaining to endangered and threatened species as well. Section 
2(b)(v) of Wyoming's coal exploration rules is the State's previously-
approved counterpart to the Federal regulation at 30 CFR 772.12(b)(9). 
The State's rule requires applications for exploration of more than 250 
tons or in areas designated as unsuitable to include a description of 
any endangered or threatened species listed under the Endangered 
Species Act that are in the proposed exploration area. Further, section 
2(b)(vi) requires a map showing the areas of land to be disturbed by 
proposed exploration and reclamation, including the location of 
critical habitats of any endangered or threatened species listed 
pursuant to the Endangered Species Act. Its Federal counterpart is 
found at 30 CFR 772.12(b)(12).
    Proposed section 4(e) does not repeat the various fish and wildlife 
consultation provisions that appear throughout the State's regulations 
for surface coal mining. However, it requires written evidence of 
consultation with the Wyoming Department of Game and Fish and the 
results of that consultation to be submitted to the State as a 
prerequisite to disturbing important or crucial habitat during coal 
exploration. Wyoming's explanation for proposed section 4(e) said it 
would require a process similar to that for mine permit applications. 
Such a process would require the Game and Fish Department's review of 
applications for exploration that would disturb important or crucial 
habitat, consider its recommendations for minimizing impacts to 
wildlife and their habitats, and integrate its recommendations into any 
approval of a Notice of Intent to Explore or a Coal Exploration 
License. Those procedures are not explicit in Wyoming's proposed 
wording of section 4(e). We interpret proposed section 4(e) as 
requiring persons who explore for coal in crucial and important 
habitats to submit to the Land Quality Division the recommendations 
that resulted from their consultation with the Wyoming Department of 
Game and Fish and to fully comply with those recommendations. We 
interpret and therefore accept Wyoming's explanation as a commitment to 
providing the described level of protection for important and crucial 
habitat during exploration, and will verify its implementation during 
our oversight of the State's regulatory program.
    Though proposed section 4(e) also does not explicitly require 
consultation with the U.S. Department of the Interior, Fish and 
Wildlife Service (U.S. Fish and Wildlife Service or the Service), it 
prohibits disturbing critical habitat for listed threatened and 
endangered species. Moreover, section 2(b)(v) of the State's 
exploration rules requires a description of any listed endangered or 
threatened species in the proposed exploration area, and section 
2(b)(vi) requires a map showing areas to be disturbed by exploration 
and reclamation, including the location of critical habitats of any 
listed endangered or threatened species. We recognized in our August 6, 
1996, approval of amendment WY-022-FOR (Id., at 40741) that the Service 
is responsible for listing, recovery, administration, and prohibitions 
associated with threatened and endangered species designated under the 
Endangered Species Act. As such, the Service is the primary repository 
of information compiled for threatened and endangered species and their 
critical habitats under the Endangered Species Act. Our experience 
shows that the Service either disseminates such information directly to 
State regulatory authorities upon request or indirectly through States' 
wildlife / fish and game agencies. We interpret the proposed wording of 
Wyoming's section 4(e), as well as sections 2(b)(v) and (b)(vi) of its 
Chapter 10 exploration rules, to imply direct or indirect consultation 
with the Service as a result of requiring information pertaining to 
listed threatened and endangered species and critical habitats.
    Wyoming applied proposed section 4(e)'s prohibition of disturbance 
to critical habitats to such habitats of threatened and endangered 
species listed under the Endangered Species Act. The State explained in 
its amendment that it added the word ``listed'' to the rule ``* * * in 
order to add specificity and to be consistent with the language in the 
rest of the chapter * * *.'' The distinction is that such a

[[Page 16949]]

prohibition would not apply to species that are proposed for listing 
but are not yet listed. As Wyoming noted, proposed section 4(e) is 
consistent with the previously-approved wording of sections 2(b)(v) and 
2(b)(vi) of Chapter 10, described above, which pertain to threatened 
and endangered species and critical habitats, respectively, listed 
under the Endangered Species Act. Section 4(a)(1) of the Endangered 
Species Act (16 U.S.C. 1531 et seq.) requires the Secretary of the 
Interior to determine if species within his or her program 
responsibilities are threatened or endangered based on certain factors, 
and section 4(c) requires the publication of a list of such species. 
Also, section 4(a)(3) of the Endangered Species Act requires the 
Secretary to designate critical habitat of species concurrently when 
determining the same species to be threatened or endangered. The 
Endangered Species Act's requirement to designate critical habitats 
applies only to those species determined to be threatened and 
endangered (i.e., listed species), not to species only proposed for 
listing. Wyoming's qualification of its proposed rule's prohibition on 
disturbing critical habitats of listed threatened and endangered 
species is not inconsistent with that limitation of the Endangered 
Species Act. The State's proposed addition of the ``listed'' qualifier 
also is not inconsistent with the counterpart Federal regulation at 30 
CFR 815.15(a), which similarly prohibits exploration operations from 
disturbing critical habitats of threatened or endangered species 
``identified pursuant to the Endangered Species Act * * *.''
    Based on the foregoing discussions, we find Wyoming's proposed 
Chapter 10, section 4(e) to be in accordance with SMCRA and consistent 
with the Federal regulations. We also find it satisfies the required 
amendment at 30 CFR 950.16(ll). Accordingly, we approve proposed 
section 4(e) and remove the required amendment.
3. Requirement To Obtain a Permit To Conduct Surface Coal Mining 
Operations If Coal Extracted During Exploration Will Be Commercially 
Used or Sold
    Our 30 CFR part 732 (Part 732) letter dated September 21, 1990, 
notified Wyoming of the need to change its rules in response to changes 
in the Federal regulations for coal exploration. Item F-4 of that 
letter addressed 30 CFR 772.14(a). We said --

    [t]his Federal rule has been expanded to apply to both 
commercial use and sale of coal. Thus, except as provided under 30 
CFR 772.14(b) and 700.11(a)(5), any person who intends to 
commercially use or sell coal extracted under an exploration permit 
must first obtain a surface coal mining and reclamation operations 
permit. Since Wyoming's rules restrict commercial sale but not 
commercial use, the program will need to be revised to include 
commercial use restrictions no less effective than those of the 
Federal rule.

    Wyoming proposes a number of changes in response to our letter. 
First, it proposes to revise its definition of ``coal exploration'' at 
Chapter 1, section 2(l) of its rules by removing the sentence that 
reads ``[i]f this activity results in the extraction of coal, the coal 
shall not be offered for commercial sale (except for test burns) * * 
*.'' That change makes Wyoming's proposed definition substantively 
identical to the Federal definition at 30 CFR 701.5, and is included in 
our finding at Part III.B of this final rule.
    The State also proposes to add new rules at section 8 of Chapter 10 
for coal exploration. Proposed section 8(a) would require any person 
who intends to commercially use or sell coal extracted during coal 
exploration operations under an exploration license to first obtain a 
permit to conduct surface coal mining operations, except as provided 
under proposed section (8)(b). Wyoming's proposed rule contains the 
required restrictions on commercial use and sale of coal as described 
in our Part 732 letter and contained in the Federal regulation. 
Referenced, proposed section 8(b) provides that, with the 
Administrator's prior written permission, no permit to mine is required 
for the sale or commercial use of coal extracted during exploration if 
such sale or use is for coal testing purposes only. It also describes 
the application that must be filed with, and approved by, the 
Administrator as a basis for waiving the permit requirement. 
Referenced, proposed section 8(b) is Wyoming's counterpart to 30 CFR 
772.14(b) and is substantively identical to that Federal regulation. We 
included it in our finding at Part III.B of this final rule.
    As proposed, section 8(a) is similar to counterpart 30 CFR 
772.14(a) with one significant difference. The Wyoming rule provides 
one exception to the requirement to obtain a mine permit if coal 
extracted during exploration is to be commercially used or sold; the 
Federal regulation provides two exceptions. The exception provided in 
Wyoming's rules is referenced section 8(b), described above, and is the 
same as the first exception provided by the Federal regulation at 
referenced 30 CFR 772.14(b). The second exception provided by the 
Federal regulation is referenced 30 CFR 700.11(a)(5), which has no 
counterpart in Wyoming's proposed rule. Under that regulation, Chapter 
VII of Title 30 does not apply to exploration on lands subject to the 
requirements of 43 CFR parts 3480--3487. Those referenced regulations 
govern operations for the exploration, development, and production of 
Federal coal under Federal coal leases, licenses, and permits. As 
authorized by 43 CFR 3480.0-6(b), the U.S. Department of the Interior, 
Bureau of Land Management (BLM) issues exploration licenses for 
unleased Federal coal and supervises exploration operations for Federal 
coal.
    Wyoming noted in its amendment that it is required by State statute 
to oversee coal exploration on all lands within Wyoming regardless of 
the ownership of the coal. The State referred to three sections of the 
Wyoming Environmental Quality Act to support its position that its rule 
must apply to all lands within the State's borders. Section 35-11-
404(a) addresses closure of all drill holes ``on all lands within the 
State of Wyoming * * *.'' Section 35-11-404(j) requires notice to be 
filed with the Administrator before drilling ``on lands within the 
state of Wyoming * * *.'' Third, section 35-11-414(a) requires anyone 
who wants to ``engage in mineral exploration * * *'' to apply to the 
Administrator for a special license.
    We find Wyoming's proposed section 8(a) of Chapter 10 to be no less 
effective than counterpart 30 CFR 772.14(a) based on restricting the 
commercial sale and use of coal extracted during exploration as 
required by item F-4 in the September 21, 1990, Part 732 letter, and 
can be approved. We also recognize that proposed section 8(a) reflects 
Wyoming's assertion of jurisdiction over all coal exploration on lands 
within the State's borders. Including exploration for Federal coal 
within the scope of Wyoming's proposed rule does not make it less 
effective than the Federal regulations because the State's rule applies 
as needed to exploration for non-Federal coal and the commercial use 
and sale of that coal. Though we recognize Wyoming asserts jurisdiction 
over all exploration within the State, we make no determination on that 
point and expect Wyoming and persons seeking permits to explore for 
Federal coal to abide by the regulations at 43 CFR part 3480 et seq.

[[Page 16950]]

D. Revisions to Wyoming's Rules With No Corresponding Federal 
Regulations

1. Definition of ``Soft Rock Surface Mining''
    Wyoming explained that the definition of ``soft rock surface 
mining'' was to have been deleted from its coal rules when the State 
separated its coal and noncoal rules in 1994. That is a reference to 
OSM's approval of amendment WY-016-FOR in the March 30, 1994, Federal 
Register (59 FR 14750). The State noted that, though the definition of 
``soft rock surface mining'' includes coal mining, it ``* * * should 
not have been incorporated into the Coal-Only set of rules * * *.'' 
Wyoming added that, ``* * * because the Coal rules pertain only to coal 
mining, there is no reason to maintain a definition that also lists 
other minerals.''
    In the March 30, 1994, Federal Register approving amendment WY-016-
FOR, (id.), OSM recognized that Wyoming submitted that amendment ``* * 
* as part of a State effort to eliminate the confusion that was 
inherent in regulatory rules that applied to two separate and distinct 
programs, i.e. the regulation of coal and noncoal mining operations.'' 
OSM further noted that ``[t]he proposed reorganized rule package is 
intended to facilitate a better understanding of and increased 
compliance with Wyoming's statutes and rules, and with SMCRA.''
    Wyoming's removal of the definition at Chapter 1, section 2(ce) 
further clarifies that its coal rules pertain only to coal mining. We 
find the proposed change does not make the State's coal rules less 
effective than the Federal regulations and, therefore, we can approve 
it.
2. Backfilling and Grading Requirements for Soft Rock Surface Mining, 
Including Highwall Retention
    Wyoming explained that it proposed to remove sections 2(b)(ix), 
2(b)(ix)(A), (B), (C), and (D) from Chapter 4 of its coal rules because 
section 2(b)(ix) was inadvertently ``* * * carried over when the coal 
and noncoal rules were divided into separate rules.'' The State added 
that, ``[w]hen the rules were separated in 1994, the rules pertaining 
to soft rock mining should not have been incorporated into the Coal-
Only set of rules.'' Amendment WY-016-FOR, which we approved in the 
March 30, 1994, Federal Register (59 FR 14750), separated most of the 
State's coal and noncoal regulations by removing most ``soft rock 
surface mining'' provisions from the State's coal rules. The rules 
cited above survived that separation, and Wyoming now proposes to 
correct that oversight by removing them in amendment WY-032-FOR. Also, 
the State explained that the ``* * * language [of section 2(b)(ix)(A)] 
was redundant to other sections of the Coal rules.''
    In a letter dated December 20, 1993 (Administrative Record number 
WY-20-26), responding to our concerns for amendment WY-016-FOR, the 
State agreed to delete section 2(b)(ix) of Chapter 4 to remove language 
pertaining to ``bluffs,'' which we considered a form of retained 
highwalls. Because section 2(b)(ix) is only the heading ``Soft rock 
surface mining,'' Wyoming's reference to it can be interpreted to 
include subsections A, B, C, and D as well, though subsection D 
specifically addresses highwall retention, not bluffs. We referred to 
Wyoming's removal of section 2(b)(ix) in our approval of amendment WY-
016-FOR when its subsections included provisions for bluff retention as 
a form of highwall retention that we never approved (Id., at 14751).
    Sections 2(b)(ix), 2(b)(ix)(A), (B), and (C) included backfilling 
and grading performance standards for ``soft rock surface mining'' 
operations that do, or do not, plan to leave permanent impoundments and 
for those that wish to construct terraces or benches. Similar 
provisions appear in Wyoming's rules at Chapter 8, sections 4(a)(v), 
(vi), and (vii) for special bituminous surface coal mines and in the 
permit application requirements at Chapter 2, sections 2(b)(i)(D)(IV) 
and 2(b)(iv)(B). There are no direct counterpart provisions in the 
Federal regulations though 30 CFR 816.102 includes similar provisions 
concerning general backfilling and grading and 30 CFR 816.49(10) 
addresses underwater highwalls in permanent impoundments. Removal of 
these provisions, given Wyoming's assertion that they only pertain to 
noncoal mining, does not make the State's rules less effective than the 
Federal regulations. Accordingly, we can approve Wyoming's removal of 
sections 2(b)(ix), 2(b)(ix)(A), 2(b)(ix)(B), and 2(b)(ix)(C) from 
Chapter 4 of its coal rules.
    Though Wyoming noted that its highwall retention rule at Chapter 4, 
section 2(b)(ix)(D) is among those pertaining to ``soft rock surface 
mining'' that should be removed to complete its separation of coal and 
noncoal rules, instead it proposed to partly delete that rule and 
partly revise it. Wyoming explained that it wants to ``* * * make a 
clear statement that [it] supports the retention of highwalls to 
enhance and diversify reclamation as allowed by the current coal 
program.'' The rule currently reads--

    [h]ighwall retention may be considered on a case-by-case basis 
for enhanced wildlife habitat. The Wyoming Game and Fish Department 
shall be consulted by the applicant for need and design of the land 
form. Any approval under this paragraph shall be based on a 
demonstration of safety, stability, environmental protection, and 
equal or better land use considerations.

    Wyoming's proposed rule would read--

    [h]ighwall retention may be considered on a case-by-case basis 
to enhance wildlife habitat as replacement for natural features that 
were eliminated by mining.

    In the amendment's statement of reasons, Wyoming recognized the 
differences between its proposed rule, the Federal regulations, and the 
highwall retention provision we approved as part of the New Mexico 
regulatory program. It also said a future State rule amendment package 
would address those differences.
    Section 515(b)(3) of SMCRA and 30 CFR 816.102(a)(2) require 
highwalls to be eliminated to achieve approximate original contour 
(AOC), with an exception for previously mined areas. As Wyoming noted 
in its amendment, however, we previously approved a highwall retention 
provision in New Mexico's rules (45 FR 86458; December 31, 1980). The 
approved New Mexico provision is an alternative approach to restoring 
mined land to its approximate original contour, in contrast to a 
provision that would allow a variance from AOC. It also imposes 
specific criteria for retained highwalls. Those criteria address: The 
static safety factor; overall highwall safety; backfilling to cover 
coal seams; allowable length of retained highwalls; the need to replace 
pre-existing cliff-type habitat and contouring the ends of highwalls; 
and a requirement for State approval to retain highwalls. By requiring 
an operator to demonstrate that retained highwalls will meet all six 
criteria of New Mexico's rule, thereby showing they closely resemble 
premining features, we concluded that--

    [s]uch retention in these instances actually reflects the intent 
of ``approximate original contour'' since these features were part 
of the natural pre-mined landscape. In all other cases, the highwall 
must be eliminated according to 30 CFR 816.102 (id., at 86464).

    Based on the criteria New Mexico imposed for retained highwalls, as 
conditioned in the approval, we found the State's ``* * * alternative 
to be in accordance with the provisions of SMCRA and consistent with 
the regulations in 30 CFR Chapter VII.''

[[Page 16951]]

    In our disapproval of the rule Wyoming proposed in 1988 to allow 
highwall retention by recreating ``bluffs'' (54 FR 52958; December 26, 
1989), we asserted that--

    [w]here the two requirements [achieving AOC and eliminating 
highwalls] are in conflict, i.e., where the premining topography 
includes sheer cliffs or bluffs, as is common in New Mexico's San 
Juan Basin, the Secretary previously determined that highwalls could 
be retained only to the extent that they closely resemble premining 
features in both form and function * * * (Finding 4(b), 45 FR 86464, 
December 31, 1980).

    Our review of Wyoming's proposed section 2(b)(ix)(D) finds that it 
is not specific enough with respect to the criteria retained highwalls 
must meet as an alternative approach to achieving AOC. As proposed, the 
rule would provide for highwall retention on a case-by-case basis to 
enhance wildlife habitat as replacement for natural features that were 
eliminated by mining. In comparison with the New Mexico provision that 
Wyoming refers to in its amendment, the proposed rule addresses one 
criterion for allowing highwall retention: Retained highwalls would 
replace pre-existing natural features. However, the proposed rule does 
not address other criteria that would require retained highwalls to 
closely resemble premining features in form and function.
    To approve Wyoming's proposed alternative approach to achieving AOC 
by retaining highwalls, we must find that the proposed rule is in 
accordance with the provisions of SMCRA and consistent with the 
requirements of the Federal regulations at Chapter VII of the Title 30 
regulations, as required by the reference at 30 CFR 732.17(h)(10) to 
732.15. As defined at 30 CFR 730.5, ``consistent with'' and ``in 
accordance with'' mean, respectively:

    (a) With regard to [SMCRA], the State laws and regulations are 
no less stringent than, meet the minimum requirements of and include 
all applicable provisions of [SMCRA].
    (b) With regard to the Secretary's regulations, the State laws 
and regulations are no less effective than the Secretary's 
regulations in meeting the requirements of [SMCRA].

    Absent more specific criteria for retained highwalls to meet, 
Wyoming's proposed rule does not impose requirements similar to those 
of 30 CFR 816.102 for ensuring the safety and effectiveness of 
reclamation in achieving AOC. As such, it is not in accordance with the 
requirements of SMCRA and is not consistent with the Federal 
regulations.
    In a letter dated August 11, 2004, we notified Wyoming of our 
concern with the proposed highwall retention rule at section 
2(b)(ix)(D) of Chapter 4 (Administrative Record number WY-37-11). As 
noted above, Wyoming's amendment recognized the differences between the 
proposed rule, the Federal regulations, and New Mexico's approved 
highwall retention regulation. It also said the State would submit 
another amendment to continue addressing those differences. Given those 
statements, we said in our August 11, 2004, letter that we were 
uncertain how to proceed with the amended highwall retention rule and 
are unlikely to approve it as proposed. We suggested that Wyoming 
provide a letter with specific rule language that would further explain 
how the State will further consider highwall retention, including 
provisions similar to those we approved for New Mexico. We added that 
we could defer a decision on the proposed highwall retention rule in 
amendment WY-032-FOR instead of disapproving it if the letter described 
Wyoming's future rulemaking and a timetable for submitting another 
amendment.
    Wyoming responded to our August 22, 2004, letter, by submitting 
Coal Rule Package 1-T, dated August 30, 2004 (Administrative Record 
number WY-37-12). That submittal patterns additional proposed changes 
after provisions we approved as part of the New Mexico and Utah 
regulatory programs. However, the transmittal letter says several 
months might pass before the State's internal rulemaking can proceed to 
the next step, ``* * * which is to require a hearing before the 
Environmental Quality Council (EQC) * * *'' on changes proposed in Coal 
Rule Package 1(T). Because the EQC has yet to make the final 
determination of how Wyoming's rule will be worded, at this time we 
cannot consider the State's August 30, 2004, submittal to be the final 
version of the proposed revision to the highwall retention rule. We 
therefore defer making a decision on proposed Chapter 4, section 
2(b)(ix)(D) until the State completes its internal rulemaking.

IV. Summary and Disposition of Comments

A. Public Comments

    We asked for public comments on the amendment (Administrative 
Record number WY-37-10), but did not receive any.

B. Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Wyoming program (Administrative 
Record number WY-37-06).
1. U.S. Department of Labor, Mine Safety and Health Administration 
Comments
    The U.S. Department of Labor, Mine Safety and Health Administration 
(MSHA), responded to our request for comments in a letter dated July 
15, 2004 (Administrative Record number WY-37-09). MSHA stated that it 
did not find anything in the proposed amendment that would conflict 
with its regulations or policies.
2. U.S. Department of the Interior, Fish and Wildlife Service Comments
    We also received comments from the U.S. Fish and Wildlife Service 
(Service) in a letter dated July 15, 2004 (Administrative Record number 
WY-37-08). The Service found the proposed changes ``increased clarity 
of some sections of the program direction.''
    The Service also expressed concern that the proposed amendment 
might lead to increased use of undesirable grading and contouring of 
disturbed areas and a decreased use of highwall retention around 
permanent ponds. More specifically, the Service commented that--

    * * * it is unclear why soft rock surface mining; terraces or 
benches; sloping, grading or contouring or proposed pit areas for 
permanent water impoundments; and highwall retention are being 
dropped from the program direction.

    The Service's comment refers to Wyoming's proposed removal of the 
rules at Chapter 4, section 2(b)(ix), (ix)(A), (B), (C), and (D). 
Regarding the proposed removal of section 2(b)(ix)(A) and (B), the 
Service commented that eliminating those provisions--

    [w]ill lead to an increase in the use of terraces and benches to 
recontour disturbed areas. The Service strongly recommends, to the 
greatest extent possible, that all mining reclamation reestablish 
areas to the original contour.

    As we explained in our finding at Part III.D.2 of this final rule, 
Wyoming explained that it proposed to remove sections 2(b)(ix), 
2(b)(ix)(A), (B), (C), and (D) from Chapter 4 of its coal rules because 
those rules were inadvertently ``carried over when the coal and noncoal 
rules were divided into separate rules * * *.'' We previously approved 
Wyoming's separation of most

[[Page 16952]]

of its coal and noncoal rules on March 30, 1994, in amendment WY-016-
FOR (59 FR 14750). The rules cited in the Service's comment survived 
that separation, and Wyoming now proposes to remove them in amendment 
WY-032-FOR. Wyoming also explained that the provisions of section 
2(b)(ix)(A) were repeated elsewhere in the coal rules and asserted that 
2(b)(ix), (ix)(A), (B), (C), and (D) do not belong in its coal-only 
rules.
    In our approval of amendment WY-016-FOR, we recognized the State's 
effort to eliminate the confusion inherent to rules that applied to two 
separate and distinct programs (coal and noncoal mining). We further 
noted that separating the coal and noncoal rules is ``* * * intended to 
facilitate a better understanding of and increased compliance with 
Wyoming's statutes and rules, and with SMCRA.''
    We also believe the Service's comment misinterprets section 
2(b)(ix)(B). This rule allows use of terraces or benches ``* * * only 
when it can be shown to the Administrator's satisfaction that other 
methods of contouring will not provide the required result * * *'' 
(emphasis added). As written, it provides a limited exception to the 
requirement to backfill and grade to approximate original contour 
(``the required result''). By removing this rule, Wyoming will reduce 
those circumstances under which terraces and benches can be used in 
final reclamation.
    Similar reasoning applies to the Service's comment concerning 
section 2(b)(ix)(C). General performance standards for sloping, 
grading, and contouring to blend in with the topography (i.e., AOC) and 
to control erosion similar to those imposed by this rule appear in 
other sections of Chapter 4 of Wyoming's coal rules. The remaining part 
of the rule provides for certain circumstances in which partial 
pitwalls may be left intact above water along the shoreline of 
permanent impoundments. This provision actually conflicts with the 
Federal regulation at 30 CFR 816.49(10). That regulation requires the 
vertical portion of any remaining highwall ``* * * to be located far 
enough below the low-water line along the full extent of the highwall 
to provide adequate safety and access for the proposed water users * * 
*'' at temporary and permanent impoundments. By removing section 
2(b)(ix)(C), Wyoming will reduce the circumstances under which 
highwalls may be left intact where they were not part of the premining 
landscape and also eliminate a conflict with Federal provisions for 
reclaiming to AOC.
    Conversely, the Service expressed concern in another comment that 
Wyoming's proposed removal of section 2(b)(ix)(D) would lead to a 
decrease in highwall retention around permanent ponds. It stated that 
retained highwalls are ``* * * highly beneficial to wildlife, 
especially raptors, by providing nesting structure.'' Wyoming explained 
that it proposes to remove section 2(b)(ix)(D) along with other rules 
that pertain to ``soft rock surface mining'' in an effort to separate 
its coal rules from its noncoal rules. Further, while we agree in 
principle with the Service about highwalls' potential benefit, we 
cannot waive the requirement of SMCRA and the Federal regulations to 
reclaim mined lands to AOC on that basis. We are unlikely to approve 
the proposed revision as written because it provides an exemption from 
reclaiming mined lands to AOC that is not in accordance with section 
515(b)(3) of SMCRA and consistent with 30 CFR 816.102(a)(1) and (2). 
The only exceptions to the AOC requirement are cases involving steep 
slopes or previously mined areas, and Wyoming's proposed rule does not 
fit either situation.
    On the other hand, Wyoming is considering further revisions to 
proposed section 2(b)(ix)(D) in an effort to develop an alternative 
approach to achieving AOC that would allow highwall retention in 
certain cases. As we discussed in our finding at Part III.D.2 of this 
final rule, the State submitted Coal Rule Package 1-T in response to 
our August 11, 2004, concern letter. That package proposed to further 
revise section 2(b)(ix)(D) to include provisions similar to those we 
approved as part of the New Mexico and Utah regulatory programs for 
retaining highwalls where similar features existed in the pre-mine 
landscape and where the retained highwalls were very similar to the 
pre-existing features in form and function. We recognize Wyoming's 
review process is ongoing for this proposed rule and defer our decision 
on it until we know the final form it will take.
    The Service also expressed concern that Wyoming's proposed change 
to section 4(e) of Chapter 10 would lessen protection of crucial 
wildlife habitats during coal exploration. It added that the State 
should also promote the protection of ``other important habitats'' 
during coal exploration. The proposed rule would prohibit disturbing 
crucial and important habitat during coal exploration ``* * * unless 
written evidence of consultation with the Wyoming Game and Fish 
Department and any resulting recommendations are submitted to the 
Administrator as part of either a coal exploration license or notice of 
intent to explore application.'' In part III.C.2 of this final rule, we 
described an alternative we suggested Wyoming consider in response to 
the State's request for guidance and flexibility in interpreting the 
prohibition on disturbance required at 30 CFR 815.15(a). Specifically, 
we suggested that Wyoming consider requiring the same consultation 
process with State and Federal agencies for coal exploration on 
important or crucial habitat that it requires of surface coal mining 
activities and reclamation plans. We agreed that we would consider such 
an alternative to be consistent with and no less effective in meeting 
the intent of SMCRA. Our finding at Part III.C.2 of this final rule 
describes how we interpret Wyoming's proposed rule and additional 
explanation as a commitment to providing the same level of protection 
for important or crucial habitat during exploration as its rules 
require for surface coal mining and reclamation operations. As we 
stated in our finding, we will verify Wyoming's consultation during our 
oversight of its regulatory program.
3. Environmental Protection Agency (EPA) Concurrence and Comments
    Under 30 CFR 732.17(h)(11)(i) and (ii), we are required to get 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that Wyoming proposed to make in this 
amendment pertains to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment. Nevertheless, under 30 CFR 
732.17(h)(11)(i), we requested EPA's comments on the amendment in a 
letter dated May 27, 2004 (Administrative Record number WY-37-05). EPA 
did not respond to our request.

C. State Historic Preservation Officer (SHPO) and the Advisory Council 
on Historic Preservation (ACHP)

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. In a letter dated May 27, 2004, we requested comments from 
the SHPO and ACHP on Wyoming's amendment (Administrative Record numbers 
WY-37-03 and WY-37-04, respectively), but neither responded to our 
request.

[[Page 16953]]

V. OSM's Decision

    Based on the above findings, we approve Wyoming's May 21, 2004, 
amendment with one exception as noted below.
    We defer making a decision on proposed section 2(b)(ix)(D), 
highwall retention, as discussed in finding number III.D.2.
    We approve, as discussed in: finding III.A, Chapter 10, sections 
2(b)(vi), (vii), (x), and (xi), application requirements for 
exploration of more than 250 tons or in an area designated unsuitable 
for mining; finding III.B., Chapter 1, section 2(l), revising the 
definition of ``coal exploration;'' Chapter 4, section 2(b)(iv)(A), 
using small depressions; Chapter 10, sections 1 and 1(b)(iii), general 
requirements for coal exploration of 250 tons or less, including 
recodification; Chapter 10, sections 2(b), (b)(i), (ii), and (iii), 
(b)(iv), (vi), and (v), general requirements for coal exploration of 
more than 250 tons or in an area designated as unsuitable for mining, 
including recodification; Chapter 10, section 2(b)(ix), measures used 
so exploration of more than 250 tons or in areas designated unsuitable 
for mining complies with exploration performance standards, including 
recodification; Chapter 10, section 3(b), administrative and judicial 
review for anyone adversely affected by decisions on coal exploration 
applications; Chapter 10, section 8, section heading for commercial use 
or sale of coal extracted under a coal exploration license; Chapter 10, 
section 8(b), written approval to not require a mining permit for coal 
exploration where commercial use or sale of coal is for testing only 
and demonstrating the need for coal testing and the purpose for coal 
extraction; Chapter 10, section 8(b)(i), requirement for the testing 
firm name and coal testing locations; Chapter 10, section 8(b)(ii), 
requirement for a statement from the end user or agent or broker if 
coal extracted during exploration is sold or commercially used and for 
other information; Chapter 10, section 8(b)(ii)(A), requirement for the 
statement to include the reason for coal testing; Chapter 10, section 
8(b)(ii)(B), requirement for the statement to show the amount of coal 
needed for testing and why a lesser amount is insufficient; Chapter 10, 
section 8(b)(ii)(C), requirement for a description of the test to be 
conducted; Chapter 10, section 8(b)(iii), requirement for evidence of 
sufficient coal reserves; Chapter 10, section 8(b)(iv), requirement for 
explanation why other means of exploration are not adequate to 
determine coal quality and/or mining feasibility; in finding III.C.1, 
Chapter 10, section 2(b)(vii), provision authorizing the State to 
require exploration applications to include information regarding known 
or possible historic or archeological resources; in finding III.C.2, 
Chapter 10, section 4(e), prohibiting disturbance of critical habitat 
during exploration, and disturbance of important or crucial habitat 
during exploration without written evidence of consultation with the 
Wyoming Game and Fish Department; in finding III.C.3, Chapter 10, 
Section 8(a), requiring a permit to conduct surface coal mining 
operations if coal extracted during construction will be commercially 
used or sold, with one exception; in finding III.D.1, Chapter 1, 
section 2(ce), removal of the definition of ``soft rock surface 
mining;'' and in finding III.D.2, Chapter 4, sections 2(b)(ix), 
(ix)(A), (B), and (C), removing backfilling and grading requirements 
for soft rock surface mining.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 950, which codify decisions concerning the Wyoming 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrates that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

Effect of OSM'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. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to us for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that we do not approve. In the 
oversight of the Wyoming program, we will recognize only the statutes, 
regulations and other materials we have approved, together with any 
consistent implementing policies, directives and other materials. We 
will require the State to enforce only approved provisions.

VI. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based in part on the analysis performed for the counterpart Federal 
regulations. Some of the State provisions addressed in this final rule 
have no counterpart Federal regulations. In those instances, we have 
determined that there are no takings implications because we are 
approving the State's removal of those provisions, which then no longer 
apply to the regulated industry. In one instance, we are deferring our 
decision on a State rule that has no Federal counterpart. There are no 
takings implications in that instance either because 30 CFR 731.17(g) 
prevents State laws and regulations from taking effect without our 
approval; therefore, the provision has no effect on the regulated 
industry.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 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 because 
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.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA, and section 503(a)(7) 
requires

[[Page 16954]]

that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on federally-recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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 (42 U.S.C. 
4332(2)(C)).

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.).

Regulatory Flexibility Act

    The Department of the Interior certifies that the provisions in 
this rule based on counterpart Federal regulations 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.) This 
determination is based on the economic analysis performed for the 
counterpart Federal regulations for which a certification was made that 
those regulations would not have a significant economic effect on a 
substantial number of small entities. The Department of the Interior 
also certifies that the provisions in this rule that are not based on 
counterpart Federal regulations 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.). This determination is based on 
the fact that the State is removing all those provisions but one. 
Because the removed provisions no longer apply to the regulated 
industry, they have no effect. The remaining provision does not impose 
significant economic impacts on a substantial number of small entities 
because we are deferring our decision in that instance, and 30 CFR 
731.17(g) prevents State laws and regulations from taking effect 
without our approval.

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; and c. does not have significant adverse effects on 
competition, employment, investment, productivity, innovation, or the 
ability of U.S.-based enterprises to compete with foreign-based 
enterprises.
    This determination is based upon the fact that some of the State 
provisions are based on counterpart Federal regulations for which an 
analysis was prepared and a determination made that the Federal 
regulation was not considered a major rule. For all but one of those 
State provisions that are not based on counterpart Federal regulations, 
the ``non-major'' determination is based on the fact that the State is 
removing them, so they no longer apply to the regulated industry. For 
the one remaining State provision without a Federal counterpart, this 
determination is based on the fact that we are deferring a decision on 
that provision, and 30 CFR 731.17(g) prevents State laws and 
regulations from taking effect without our approval.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of $100 million or more in any 
given year. This determination is based on the fact that part of the 
State submittal is based on counterpart Federal regulations for which 
an analysis was prepared and a determination made that the Federal 
regulation did not impose an unfunded mandate. For all but one of those 
State provisions that are not based on counterpart Federal regulations, 
this determination is based on the fact that the State is removing 
them, so they no longer apply to the regulated industry. For the one 
remaining State provision without a Federal counterpart, this 
determination is based on the fact that we are deferring a decision on 
that provision, and 30 CFR 731.17(g) prevents State laws and 
regulations from taking effect without our approval.

List of Subjects in 30 CFR Part 950

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: February 25, 2005.
Allen D. Klein,
Regional Director, Western Regional Coordinating Center.

0
For the reasons set out in the preamble, 30 CFR part 950 is amended as 
set forth below:

PART 950--WYOMING

0
1. The authority citation for part 950 continues to read as follows:

    Authority: 30 U.S.C. 1201 et seq.


0
2. Section 950.15 is amended in the table by adding a new entry in 
chronological order by date of final publication to read as follows:


Sec.  950.15  Approval of Wyoming regulatory program amendments.

* * * * *


[[Page 16955]]



------------------------------------------------------------------------
Original amendment submission     Date of final           Citation
             date                  publication           description
------------------------------------------------------------------------
 
                              * * * * * * *
May 21, 2004.................  April 4, 2005......  Coal Rules: Chapter
                                                     1, sections 2(l)
                                                     and (ce); chapter
                                                     4, sections
                                                     2(b)(iv)(A),
                                                     (b)(ix),
                                                     (b)(ix)(A), (B),
                                                     and (C); Chapter
                                                     10, sections 1,
                                                     1(b)(iii), 2(b),
                                                     (b)(i), (ii),
                                                     (iii), (iv), (v),
                                                     (vi), (vii),
                                                     (viii), (ix), (x),
                                                     (xi), and (xii),
                                                     3(b), 4(e), 8,
                                                     8(a), 8(b), (b)(i),
                                                     (ii), (ii)(A),
                                                     (ii)(B), (ii)(C),
                                                     (iii), and (iv).
------------------------------------------------------------------------

Sec.  950.16  [Amended]

0
3. Section 950.16 is amended by removing and reserving paragraphs (a), 
(w), and (ll).

[FR Doc. 05-6602 Filed 4-1-05; 8:45 am]
BILLING CODE 4310-05-P