Wyoming Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

30 CFR Part 950

Wyoming Permanent Regulatory Program

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

Interior.

ACTION: Final rule; non-approval of amendment.

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SUMMARY: OSM is announcing the non-approval with required amendments of

a proposed amendment to the Wyoming permanent regulatory program

(hereinafter, the ``Wyoming program'') under the Surface Mining Control

and Reclamation Act of 1977 (SMCRA). The amendment, submitted January

6, 1993, and April 13, 1993, pertains to shrub density standards. The

proposed amendment was intended to revise the Wyoming program to be

consistent with the corresponding Federal standards and to incorporate

the additional flexibility afforded by the revised Federal rules.

EFFECTIVE DATE: January 24, 1994.

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

5776.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program

On November 26, 1980, the Secretary of the Interior conditionally

approved the Wyoming program. General background information on the

Wyoming program, including the Secretary's findings, the disposition of

comments, and conditions of approval of the Wyoming program can be

found in the November 26, 1980, Federal Register (45 FR 78637).

Subsequent actions concerning Wyoming's program and program amendments

can be found at 30 CFR 950.11, 950.12, 950.15 and 950.16.

II. Submission of Amendment

By letter dated January 6, 1993, (Administrative Record No. WY-21-

1) Wyoming submitted shrub density rules as a proposed amendment to its

permanent program pursuant to SMCRA. The proposed Wyoming amendment

revises the Land Quality Division (LQD) Rules at Chapter IV, Section

2(d)(x)(E), shrub density standard, and Appendix A, entitled

``Vegetation Sampling Methods and Reclamation Success Standards for

Surface Coal Mining Operations.''

OSM published a notice in the March 22, 1993, Federal Register (58

FR 15318) announcing receipt of the amendment and inviting public

comment on the adequacy of the proposed amendment. The public comment

period ended April 21, 1993. During this public comment period Wyoming

submitted additional information regarding shrub density legislation,

Enrolled Act No. 86 [Senate File No. 39] on April 13, 1993

(Administrative Record No. WY-21-21). This proposed legislation amended

Wyoming Statute (W.S.) 35-11-103(e) by creating new paragraphs

(xxxviii) through (xxx), that define agricultural lands, critical

habitat, and important or critical habitat; modified the paragraph at

W.S. 35-11-402(b), that provides shrub density standards; and created a

new subsection (c) at W.S. 35-11-402, that would provide shrub density

standards on grazingland.

OSM published a second notice in the April 30, 1993, Federal

Register (58 FR 26079) announcing receipt of this additional

information, reopening and extending the comment period, and providing

an opportunity for a public hearing. The public comment period closed

on June 1, 1993.

A public meeting was requested and held on June 8, 1993. The

summary notes for that meeting are available for public review

(administrative record No. WY-21-49).

During its review of the amendment, OSM identified various concerns

in the proposed regulations and legislation, including the conflicting

nature of the proposed rules and statute. OSM notified Wyoming of these

concerns by letter dated August 17, 1993 (Administrative Record No. WY-

21-50).

Wyoming responded to these concerns by letter dated October 7,

1993, with additional information (Administrative Record No. WY-21-51).

Wyoming's submittal included a table identifying the proposed statutes

and rules that conflict with each other, those that complement one

another, and discussions on some of the concerns in the issue letter.

OSM published a third notice in the October 22, 1993, Federal

Register (58 FR 54540) announcing receipt of this additional

information; reopening and extending the comment period. The public

comment period closed on November 8, 1993.

III. Director's Findings

Set forth below, pursuant to SMCRA and the Federal regulations at

30 CFR 732.15 and 732.17, are the Director's findings concerning the

amendment submitted by Wyoming on January 6, 1993, and April 13, 1993,

and subsequently clarified on October 7, 1993.

1. W.S. 35-11-103(e)(xxviii): Definition of Agricultural Lands

Wyoming proposes at W.S. 35-11-103(e)(xxviii) a definition as

follows:

(e) (xxviii) ``Agricultural lands'' means cropland, pastureland,

hayland, or grazingland;

Neither SMCRA nor the implementing Federal regulations include a

definition of agricultural lands. Wyoming's proposed statutory

definition appears to make explicit what land uses are considered

agricultural in nature. Wyoming is combining specific land uses into a

general category but still maintains the individual land use

definitions in its program. Nothing in the Federal program would

preclude such combining of land uses into a single category so long as

it does not result in being inconsistent with the Federal and State

program requirements.

In the August 17, 1993, letter, OSM cautioned the State regarding

the exclusion of ``agricultural lands'' from lands that can contain

habitat of unusually high value as proposed at W.S. 35-11-103(e)(xxx)

(see discussion at Finding 3). Wyoming did not address this concern in

its October 7, 1993, reply. It appears that the sole purpose of the

proposed statutory definition of ``Agricultural lands'' is its use in

the proposed statutory definition of ``Important habitat or crucial

habitat''. Thus the proposed definition would cause the State program

to be inconsistent with the Federal program requirements.

Therefore, the definition of ``Agricultural lands'' as is proposed

to be used at W.S. 35-11-103(e)(xxx) would not be in accordance with

the Federal requirements. The Director is: (1) not approving the

definition; and (2) is requiring Wyoming to either clarify how the

definition would not render its program less stringent than SMCRA

requirements and less effective than the Federal regulation

requirements or repeal the definition.

2. W.S. 35-11-103(e)(xxix): Definition of Critical Habitat

Wyoming proposes at W.S. 35-11-103(e) a new definition as follows:

(xxix) ``Critical habitat'' means only that fish and wildlife

habitat designated as critical by the United States Secretary of the

Interior or Secretary of Commerce, for the survival and recovery of

listed threatened and endangered species;

Neither SMCRA nor the implementing Federal regulations define

critical habitat. Wyoming's LQD rules at Chapter I, Section 2(v)

already define the term critical habitat. However, based on Wyoming's

clarification submitted October 7, 1993, this rule definition is

superseded by the proposed statutory definition (Administrative Record

No. WY-21-51).

All references to critical habitat in the Federal regulations at 30

CFR 780/784.16 and 816/817.97 cite critical habitats listed by the

Secretary under the Endangered Species Act (ESA) of 1973, as amended

(16 U.S.C. 1531 et seq.). Under section 3 of ESA, a critical habitat is

the specific areas within the geographical area occupied by the

species, at the time it is listed in accordance with provisions of

Section 4 of this Act, on which are found those physical or biological

features (I) essential to the conservation of the species and (II)

which may require special management consideration or protection; and

(III) specific areas outside the geographical area occupied by the

species at the time it is listed * * * that such areas are essential

for the conservation of the species.

The ESA does not use the term ``fish and wildlife habitat'' in the

definition of critical habitat. Instead, the ESA only refers to

geographic areas with physical or biological features that are

essential for the species. The ESA also defines the term ``species'' as

including ``any subspecies of fish or wildlife or plants, and any

distinct population segment of any species or vertebrate fish or

wildlife which interbreeds when mature'' (Emphasis added).

The proposed Wyoming definition of critical habitat appears to

exclude plants. Also, Wyoming has not specified any State statutes or

rules that identify State critical habitat or Threatened and Endangered

Species as required by the Federal regulations at 30 CFR 780/784.16.

Additionally, OSM cannot determine whether the term ``fish and wildlife

habitat'' in this definition means fish and wildlife habitat for ESA

purposes or fish and wildlife habitat as a land use. Finally, Wyoming

also recognizes critical habitat designated by the ``Secretary of

Commerce.'' It is not clear if this requirement is in addition to the

Secretary of the Interior's designation or is an option to use the

``Secretary of Commerce'' designation instead of the Secretary of

Interior's.

Therefore, based on the above discussion, the Director finds that

the proposed statutory definition at W.S. 35-11-103(e)(xxix) is not in

accordance with and is less effective than the Federal program

requirements and is not approving the proposed definition. Wyoming is

required to either repeal this statutory definition or modify it to be

in accordance with and no less effective than the Federal program

requirements.

3. W.S. 35-11-103(e)(xxx): Definition of Important and Crucial Habitat

Wyoming proposes at W.S. 35-11-103(e)(xxx) a definition as follows:

(xxx) ``Important habitat'' or ``crucial habitat'' means that fish

and wildlife habitat, exclusive of agricultural lands, which in limited

availability, increases the species diversity of a localized area and

fulfills one (1) or more of the essential living requirements of

important wildlife species.

Neither SMCRA nor the implementing Federal regulations include a

definition of important habitat or crucial habitat. However, the

Federal regulation at 30 CFR 780/784.16(a)(2) requires permit

applications to include site-specific resource information when the

permit area or adjacent area is likely to include ``habitats of

unusually high value for fish and wildlife such as streams, wetlands,

riparian areas, cliffs supporting raptors, areas offering special

shelter or protection, migration routes, or reproduction and wintering

areas.''

These habitats of unusually high value would appear to be

comparable to the State proposed definition for important or crucial

habitat. Additionally, the State regulations at LQD Rule Chapter II,

Section 2(a)(i)(E)(II) require permit applications to include specific

information ``if critical or important habitat or migration route

disruption is likely.'' Wyoming's LQD Rule at Chapter II, Section

3(b)(iv)(B) is similar to the Federal regulation at 30 CFR

780.16(b)(3)(ii) in requiring protection and enhancement of ``important

habitat for fish and wildlife, such as wetlands, riparian areas,

rimrocks, areas offering special shelter or protection, reproduction

and nursery areas, and wintering areas.''

However, the Federal permitting and performance standard

regulations do not exclude any land uses from consideration in meeting

the requirements for protection and enhancement. Wetlands, riparian

areas, migration and wintering areas can potentially occur within any

land use including grazingland, pastureland, forestry, etc. Wyoming's

proposed definition would appear to exclude consideration of important

habitat or crucial habitat from those land uses included in the

categorical definition of ``agricultural lands.'' These would include

the land uses of cropland, pastureland, hayland and grazingland.

In its August 17, 1993, letter to the State, OSM cautioned that

such exclusion would render Wyoming's statute less effective than the

Federal regulations requirements and less stringent than the

requirements of SMCRA. In its October 7, 1993, reply to OSM's concerns,

Wyoming did not address this issue. Additionally, OSM cannot determine

whether the use of the term ``fish and wildlife habitat'' in this

definition means fish and wildlife habitat for ESA purposes or fish and

wildlife habitat as a land use.

Based on the above discussion the Director finds that the proposed

statutory definition at W.S. 35-11-103(e)(xxx) is not in accordance

with and is less effective than the Federal program requirements and is

not approving the proposed definition. Wyoming is required to either

repeal this statutory definition or modify it to be in accordance with

and no less effective than the Federal program requirements.

4. W.S. 35-11-402(b): Establishing Standards

Wyoming proposes to revise existing W.S. 35-11-402(b) as follows

(proposed language in upper case):

(b) To the extent federal law or regulations require consultation

and approval by state wildlife agencies regarding surface mining lands

to be reclaimed for fish and wildlife habitat, the Wyoming game and

fish department shall consider fish and wildlife habitat to mean as

defined in W.S. 35-11-103(e)(xxvi) and does not include grazingland as

defined in W.S. 35-11-103(e)(xxvii). IN ESTABLISHING RECLAMATION

STANDARDS PURSUANT TO THIS SECTION AND APPLICABLE FEDERAL LAW OR

REGULATION THE COUNCIL SHALL APPLY THE DEFINITIONS OF W.S. 35-11-

103(e)(xxvi) THROUGH (xxx).

a. Proposed Statutory Provision

The proposed new language requires the Environmental Quality

Council to use the following specific statutory definitions when

establishing standards regarding required consultation and approval by

State wildlife agencies when lands are to be reclaimed for fish and

wildlife habitat: ``Fish and wildlife habitat'' land use (W.S. 35-11-

103(e)(xxvi)); ``Grazingland'' land use (W.S. 35-11-103(e)(xxvii));

``Agricultural lands'' (W.S. 35-11-103(e)(xxviii)); ``Critical

habitat'' (W.S. 35-11-103(e)(xxix)); and, ``Important habitat or

crucial habitat'' (W.S. 35-11-103(e)(xxx)). The statutory definitions

for fish and wildlife habitat and grazingland are existing definitions

that were previously approved by OSM. The statutory definitions for

agricultural lands, critical habitat, and important habitat or crucial

habitat were proposed by Wyoming in this amendment.

As discussed in Findings 1, 2, and 3, the three proposed

definitions referenced in this provision, W.S. 35-11-103(e)(xxviii),

(xxix) and (xxx), are not being approved by OSM. This provision, if

approved, would inappropriately reference the disapproved definitions.

Furthermore, the Environmental Quality Council is already required,

by existing W.S. 35-11-402(b), to use the land use definitions of fish

and wildlife habitat and grazingland at W.S. 35-11-103(e)(xxvi) and

(xxvii) when developing reclamation standards for those two postmining

land uses. The proposed additional language is redundant and confusing.

Based on the foregoing, the Director finds that the proposed

revision to W.S. 35-11-402(b) is less stringent than SMCRA and less

effective than the Federal regulations and is not approving it. The

Director is requiring Wyoming to repeal this provision.

b. Existing Statutory Provision

On February 21, 1990, OSM required Wyoming, by letter, pursuant to

30 CFR 732 (required amendment), to revise its program to be no less

effective than the Federal regulations at 30 CFR 816/817.116(b)(3)(i).

In the cover letter to this submittal, Wyoming specified that

existing W.S. 35-11-402(b) and W.S. 35-11-103(e)(xxvi), approved by OSM

on July 8, 1992 (57 FR 30121), satisfy the required amendment of

February 21, 1990. Wyoming did not, at that time, identify the

submission of proposed W.S. 35-11-402(b) and W.S. 35-11-103(e)(xxvi) as

a response to the required amendment of February 21, 1990, but rather

as a State-initiated amendment. OSM approved W.S. 35-11-402(b) and W.S.

35-11-103(e)(xxvi) as a State initiative, leaving the required

amendment outstanding.

Wyoming now contends that the language approved in the previous

program amendment was intended to address the portion of the February

21, 1990, required amendment pertaining to consultation and approval by

the appropriate State agencies responsible for fish and wildlife

habitat land uses. Accordingly, OSM has reviewed the State provision at

W.S. 35-11-402(b), as well as the existing State provision at W.S. 35-

11-103(e)(xxvi), to determine if Wyoming has satisfied the required

program amendment.

The Federal regulations at 30 CFR 816/817.116(b)(3)(i) provide as

follows:

(b) Standards for [revegetation] success shall be applied in

accordance with the approved postmining land use and, at a minimum, the

following conditions: * * *

(3) For areas to be developed for fish and wildlife habitat,

recreation, shelter belts, or forest products, success of vegetation

shall be determined on the basis of tree and shrub stocking and

vegetative ground cover. Such parameters are described as follows:

(i) Minimum stocking and planting arrangements shall be specified

by the regulatory authority on the basis of local and regional

conditions and after consultation with and approval by the State

agencies responsible for the administration of forestry and wildlife

programs. Consultation and approval may occur on either a program-wide

or a permit-specific basis.

The existing State statutory provisions at W.S. 35-11-402(b) and

W.S. 35-11-103(e)(xxvi), respectively, provide as follows:

(b) To the extent federal law or regulations require consultation

and approval by state wildlife agencies regarding surface mining lands

to be reclaimed for fish and wildlife habitat, the Wyoming game and

fish department shall consider fish and wildlife habitat to mean as

defined in W.S. 35-11-103(e)(xxvi) and does not include grazingland as

defined in W.S. 35-11-103(e)(xxvii).

(e) (xxvi) ``Fish and wildlife habitat'' means land designated

wholly or partially to the production, protection, or management of

species of fish or wildlife.

The quoted State provisions require the Wyoming Game and Fish

Department to use the noted definition of ``fish and wildlife habitat''

when consulting on the revegetation of lands to be reclaimed to the

fish and wildlife habitat land use. These provisions do not correspond

to 30 CFR 816/817.116(b)(3)(i).

Additionally, the quoted provisions do not specify if the Wyoming

Game and Fish Department would be the appropriate State agency

responsible for the administration of forestry and wildlife programs

for any of the land uses, other than fish and wildlife habitat,

mentioned in the Federal regulations (recreation, shelterbelts, and

forest products).

Therefore, without further clarifying information from Wyoming, the

Director finds the statutory provision at W.S. 35-11-402(b) combined

with the previously approved definition of fish and wildlife habitat at

W.S. 35-11-103(e)(xxvi), does not satisfy OSM's February 21, 1990,

required amendment.

5. W.S. 35-11-402(c): Grazingland Shrub Standard

Wyoming proposes at W.S. 35-11-402 establishment of standards as

follows:

(c) For the reclamation of grazingland, operators shall be required

to reestablish shrubs on ten percent (10%) of the affected surface at a

density of one (1) shrub per nine (9) square meters, or to a pre-mine

density, whichever is less. The shrubs used for reestablishment shall

be those native to the general area, and shall include those found pre-

mining, but the premining dominant shrub need not be the dominant shrub

in the post-mining reclamation.

SMCRA, at section 515(b)(24), requires that the operator, to the

extent possible, using the best technology currently available (BTCA),

minimize disturbances and adverse impacts of the operation on fish,

wildlife, and related environmental values, and achieve enhancement of

such resources where practicable. Further, the Federal regulations at

30 CFR 780/784.16 (Fish and wildlife information for permit

applications) require resource information of which the scope and level

of detail determined by the regulatory authority in consultation with

State and Federal agencies with responsibilities for fish and wildlife

shall be sufficient to design the protection and enhancement plan. This

plan shall include a description of how, to the extent possible using

BTCA, the operator will minimize disturbances and adverse impacts on

fish and wildlife and related environmental values.

The State has failed to demonstrate through the submission of

documentation and/or other materials, that the proposed shrub standard:

(1) would minimize disturbances and adverse impacts on fish and

wildlife and related environmental values; (2) represents BTCA; and (3)

was developed in consultation with the Wyoming Game and Fish Department

(WGFD).

Therefore, the Director finds the proposed statutory provision at

W.S. 35-11-402(c) to be less stringent than SMCRA and less effective

than the Federal regulation requirements. The Director is not approving

the proposed statutory provision and is requiring Wyoming to either

repeal this statutory provision, modify it to make it consistent with

SMRA and no less effective than the Federal regulations, or provide the

required documentation to show that the standard meets the Federal

program requirements.

6. LQD Rules at Chapter IV, Section 2 and Appendix A--Shrub Density

Rule and Revegetation Success Standards

The State additionally proposes to revise LQD Rule Chapter IV,

Section 2(d)(x)(E) to require a shrub density standard of 1 shrub per

square meter over 20 percent of the affected surface (including fish

and wildlife habitat land use) and excluding areas where the premining

land use was pastureland or cropland. Additionally, the proposed

standard can be reduced to the level of the premine shrub densities if

premine shrub densities are less than the proposed success standard.

The proposed rule requires establishment of shrubs in a mosaic pattern

to optimize habitat interspersion and edge effect. A minimum shrub

patch size of 0.05 acres is required. For areas of crucial or important

habitat, the Wyoming Game and Fish Department (WGFD) must be consulted

for recommended reclamation standards for shrub establishment. Specific

criteria and procedures implementing this proposed rule were provided

in modifications to Appendix A--Vegetation Sampling Methods and

Reclamation Success Standards for Surface Coal Mining Operations. The

modifications provide examples of acceptable shrub density standards on

specific land uses, shrub composition, and acceptable species type.

Several portions of the Federal regulations place requirements with

regard to revegetation standards involving fish and wildlife habitat.

The Federal regulations at 30 CFR 780/784.16 require an operator to

provide a protection and enhancement plan for fish and wildlife

resources. The scope and level of premine resource information must be

determined in consultation with State and Federal agencies responsible

for fish and wildlife and be sufficient to develop the protection and

enhancement plan that describes how, to the extent possible using BTCA,

the operator will minimize disturbance and adverse impacts on fish and

wildlife values. An element to be considered is the establishment of

vegetation for wildlife food and cover. The Federal regulations at 30

CFR 816/817.116(a)(1) require that standards for success and

statistically valid sampling techniques for measuring success shall be

selected by the regulatory authority and included in an approved

regulatory program. Additionally, 30 CFR 816/817.116(b)(3)(i) require

that minimum stocking and planting arrangements shall be specified by

the regulatory authority on the basis of local and regional conditions

after consultation with an approval by the State agencies responsible

for the administration of forestry and wildlife programs. Specific land

uses include areas to be developed for fish and wildlife habitat,

recreation, shelter belts, or forest products. Consultation and

approval may occur on either a program-wide or a permit-specific basis.

The proposed rule at Chapter IV, Section 2(d)(x)(E) was the result

of an extensive coordination effort involving LQD, the WGFD, and the

coal industry. Public meetings and hearings were also held. Therefore,

all necessary processing was conducted that would allow the Director to

render a decision on the proposed rule and appendix.

However, based on Wyoming's clarification submitted October 7,

1993, in the form of a table specifying rules that conflict with and

rules that complement the statutory provisions, it was demonstrated

that much of the proposed rule and modifications to appendix A,

conflict with the proposed statutes (Administrative Record No. WY-21-

51). Furthermore, in its October 7, 1993, reply to OSM's concerns,

Wyoming clarified that the legislation (statutory language) prevails

over the conflicting rule language. Consequently, the conflicting

proposed rules and modifications to appendix A cannot be approved since

they have been superseded by the statutory language.

Therefore, the Director finds the proposed regulations at LQD Rule

Chapter IV, Section 2(d)(x)(E) and proposed modifications to Appendix

A, are in conflict with and are superseded by the proposed statutory

provision at W.S. 35-11-103(e) and W.S. 35-103-402 (b) and (c), and

thus cannot be approved.

The Director is requiring Wyoming to amend its program to establish

revegetation shrub density standards in compliance with Section

515(b)(24) of SMCRA and the Federal regulations at 30 CFR 780/784.16,

816/817.97 and 816/817.116.

IV. Summary and Disposition of Comments

Public Comments

OSM solicited public comment on the proposed amendment and provided

opportunity for a public hearing. Numerous comments were received and a

public meeting was held. Since OSM is not approving Wyoming's submittal

for the reasons given in this rulemaking action and since most of the

comments provided technical support for the proposed rule and

modifications to Appendix A, that were superseded by the legislative

changes, the merit of these comments becomes moot to this rulemaking

effort. However, general categories of comments included:

1. Most commenters supported the proposed rules (20% standard) as

minimum standards or as reasonable standards. As discussed in Finding

6, the majority of the proposed rules conflict with the proposed

statutory standard and therefore cannot be approved. The legislative

standard (10%) is not being approved because of reasons discussed in

Finding 5. Since neither standard can be approved the discussion of

various technical merits provided by commenters in support of the two

standards becomes irrelevant to this rulemaking action.

2. Several commenters recommended changes to the proposed rules and

appendix. As previously stated OSM cannot approve the proposed rules

and appendix for reasons discussed in Finding 6. Thus, detailed

discussion of the comments recommending changes would be of no value to

this rulemaking action.

3. Two commenters supported the proposed statutory standard (10%)

and did not support the proposed rules and appendix. Additionally, they

noted that the rules had been superseded by the statutory language and

should not be considered in this amendment. OSM agrees that the

proposed rules are superseded by the statutory standard as discussed in

Finding 6, but OSM cannot approve the legislative standard (10%) for

reasons discussed in Finding 5.

4. Several commenters supported, and several did not support, the

proposed statutory language at W.S. 35-11-402(b) that provides

direction to the Environmental Quality Council in establishing

standards. As discussed in Finding 4.a., this provision is confusing

and is redundant with Wyoming's approved program. The Director is not

approving it and is requiring Wyoming to repeal this provision.

5. Most commenters did not support, and several supported, the

proposed statutory definitions at W.S. 35-11-103(e) (xxviii) through

(xxx) that define agricultural lands, critical habitat, and important

or crucial habitat. OSM is not approving these proposed statutory

definitions as discussed in Findings 1, 2, and 3. OSM does not agree

with the few comments that supported these definitions as discussed in

this rulemaking action.

Agency Comments

Pursuant to Section 503(b) of SMCRA and implementing regulations at

30 CFR 732.17(h)(11)(i), comments were solicited from various Federal

agencies with an actual or potential interest in the Wyoming program. A

summary of the comments, and the Director's responses to them, appear

below:

1. The U.S. Department of Interior (USDI)--Bureau of Indian

Affairs, U.S. Army Corps of Engineers, USDI--Bureau of Mines, USDI--

Bureau of Reclamation, U.S. Department of Labor--Mine Safety and Health

Administration (MSHA)--Arlington, and U.S. Department of Labor--Mine

Safety and Health District 9, responded with no comment (Administrative

Record Nos. WY-21-7, WY-21-41, WY-21-65, WY-21-8, WY-21-12, WY-21-32,

WY-21-59, WY-21-14, WY-21-4, WY-21-31, WY-21-56, and WY-21-28).

2. The USDI--Geological Survey responded to the rule portion of the

amendment by praising the botanical approach to this portion of the

Wyoming regulations (Administrative Record No. WY-21-11).

3. The U.S. Department of Agriculture--Soil Conservation Service

commented that the SCS supports the proposed rule amendment and feels

that it is quite workable (Administrative Record Nos. WY-21-9, WY-21-

24, and WY-21-66).

4. U.S. Department of Agriculture--Forest Service--Rocky Mountain

Region commented that the proposed rule plan is well written and well

thought out. They additionally suggested that weed free native hay be

required rather than preferred as proposed in Appendix A

(Administrative Record No. WY-21-13). As previously noted, neither the

proposed rule nor the modification to the appendix can be approved.

Therefore, the suggested requirements for weed free native hay becomes

moot to this rulemaking action.

5. U.S. Department of Agriculture--Agricultural Research Service--

Northern Plains Area recommended changes to the proposed rules and

appendix. As discussed in Finding 6, the Director is not approving the

proposed rules and appendix. Thus changes to them need not be discussed

at this time (Administrative Record No. WY-21-10).

6. The U.S. Department of Interior--U.S. Fish and Wildlife Service

(USFWS or the Service) provided substantial comments on February 16,

April 14, and November 22, 1993 (Administrative Record Nos. WY-21-5,

WY-21-19, and WY-21-64). The comments supported the proposed rules and

appendix but not the statutory language. They additionally recommended

several changes to the proposed rules. As discussed above, the majority

of the proposed rules conflict with the statutory language and OSM is

not approving either the proposed rules or statutory provisions.

7. The U.S. Department of Interior--Bureau of Land Management (BLM)

provided substantial comments on March 10 and December 3, 1993

(Administrative Record Nos. WY-21-15 and WY-21-67). Again the comments

supported the proposed rules and appendix, therefore discussion of

BLM's comments would be of no merit.

State Historic Preservation Office (SHPO) and Advisory Council on

Historic Preservation (ACHP) Comments

As required by 30 CFR 732.17(h)(4), OSM provided the proposed

amendment to the SHPO and ACHP for comment. No comments were received

from the ACHP. The Wyoming Division of Parks and Cultural Resources--

State Historic Preservation Office commented by reminding OSM that

management of cultural resources on OSM projects is conducted in

accordance with Section 106 of the National Historic Preservation Act

and Advisory Council regulations at 36 CFR 800. The SHPO had no

objections to the proposed Wyoming amendment provided that OSM follows

the procedures established in these regulations. The Director assures

the SHPO that OSM will follow the procedures established in the

Advisory Council rules at 36 CFR 800.

Environmental Protection Agency Concurrence

Under 30 CFR 732.17(h)(11)(ii), the Director is required to obtain

the written concurrence of the Administrator of the Environmental

Protection Agency (EPA) with respect to provisions of a State program

amendment which relate to air or water quality standards promulgated

under the authority of the Clean Water Act (33 U.S.C. 1251 et seq.) or

the Clean Air Act (42 U.S.C. 7401 et seq.).

On October 25, 1993, the EPA concurred without comment regarding

Wyoming's proposed amendment (Administrative Record No. WY-21-57).

V. Director's Decision

Based on the above findings, the Director is not approving

Wyoming's proposed program amendment as submitted January 6, 1993, and

April 13, 1993, and clarified on October 7, 1993. The Director is

requiring program amendments at 30 CFR 950.16 as discussed in Findings

1, 2, 3, 4.a., 5,

and 6.

The Federal regulations at 30 CFR part 950 codifying decisions

concerning the Wyoming program are being amended to implement this

decision. This final rule is being made effective immediately to

expedite the State program amendment process and to encourage States to

bring their programs into conformity with the Federal standards without

undo delay. Consistency of State and Federal standards is required by

SMCRA.

VI. Effect of Director's Decision

Section 503 of SMCRA provides that a State may not exercise

jurisdiction under SMCRA unless the State program is approved by the

Secretary of the Interior. Federal regulations at 30 CFR 732.17(a)

require that any alteration of an approved State program must be

submitted to OSM for review as a program amendment. The Federal

regulations at 30 CFR 732.17(g) prohibit any unilateral changes to

approved State programs. Thus, any changes to the State program are not

enforceable by the State as part of the approved State program until

approved by the Director. In the oversight of the Wyoming program, OSM

will recognize only statutes, regulations, and other materials approved

by the Director, together with any consistent implementing policies,

directives and other materials, and will require the enforcement by

Wyoming of only such provisions.

VII. Procedural Determination

Compliance With Executive Order 12866

This final rule is exempted from review by the Office of Management

and Budget under Executive Order 12866 (Regulatory Planning and

Review).

Compliance With Executive Order 12778

The Department of the Interior has conducted the reviews required

by section 2 of Executive Order 12778 (Civil Justice Reform) and has

determined that this rule meets the applicable standards of subsections

(a) and (b) of that section. However, these standards are not

applicable to the actual language of State regulatory programs and

program amendments since each such program is drafted and promulgated

by a specific State, not by OSM. Under sections 503 and 505 of SMCRA

(30 U.S.C. 1253 and 12550) and Federal regulations at 30 CFR 730.11,

732.15, and 732.17(h)(10), decisions on proposed State regulatory

programs and program amendments submitted by the States must be based

solely on a determination of whether the submittal is consistent with

SMCRA and its implementing Federal regulations and whether the

requirements of 30 CFR parts 730, 731, and 732 have been met.

Compliance With the National Environmental Policy Act

No environmental impact statement is required for this rule since

section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency

decisions on proposed State regulatory program provisions do not

constitute major Federal actions within the meaning of section

102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.

4332(2)(C)).

Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by the Office of Management and Budget under the

Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Compliance With the Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

not have a significant economic impact on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

The State submittal which is the subject of this rule is based upon

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Hence, this rule will ensure that existing requirements

previously promulgated by OSM will be implemented by the State. In

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: January 13, 1994.

Raymond L. Lowrie,

Assistant Director, Western Support Center.

For the reasons set out in the preamble, Title 30, Chapter VII,

SubChapter T, of the Code of Federal Regulations is amended as set

forth below.

PART 950--WYOMING

1. The authority citation for Part 950 continues to read as

follows:

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

2. In Sec. 950.16, paragraphs (bb), (cc), (dd), (ee), (ff), and

(gg) are added to read as follows.

Sec. 950.16 Required program amendments.

* * * * *

(bb) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-

11-103(e)(xxviii) to clarify how the definition of ``Agricultural

lands'' would not render its program less stringent than SMCRA

requirements and less effective than the Federal regulation

requirements or repeal the definition.

(cc) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-

11-103(e) (xxix), that defines ``Critical habitat'', to either repeal

this statutory definition or modify it to be in accordance with no less

effective than the Federal program requirements.

(dd) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-

11-103(e) (xxx), that defines ``Important habitat or crucial habitat'',

to either repeal this statutory definition or modify it to be in

accordance with and no less effective than the Federal program

requirements.

(ee) By March 25, 1994, Wyoming shall repeal the provision at W.S.

35-11-402(b) that provides direction to the Environmental Quality

Council to use specific statutory definitions.

(ff) By March 25, 1994, Wyoming shall submit revisions to W.S. 35-

11-402(c), that provides for the reclamation of grazingland to either

repeal this statutory provision, modify it to make it consistent with

SMCRA and no less effective than the Federal regulations, or provide

the required documentation to show that the standard meets the Federal

program requirements.

(gg) By March 25, 1994, Wyoming shall submit revisions to amend its

program at LQD Rule Chapter IV, Section 2(d)(x)(E) and Appendix A, to

establish revegetation shrub density standards in compliance with

Section 515(b)(24) of SMCRA and the Federal regulations at 30 CFR 780/

784.16, 816/817.97 and 816/817.116.

[FR Doc. 94-1418 Filed 1-21-94; 10:00 am]

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