Wyoming Permanent Regulatory Program

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

Wyoming Permanent Regulatory Program

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

Interior.

ACTION: Final rule; approval of extension to timetable for enactment of

required program amendments.

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SUMMARY: OSM is announcing the Director's decision to extend time

frames for the State of Wyoming to enact required program amendments to

its permanent regulatory program (hereinafter referred to as the

Wyoming program) under the Surface Mining Control and Reclamation Act.

OSM did not approve Wyoming's previously proposed amendment to revise

and add rules and statutes pertaining to definitions and revegetation

success standards in the January 24, 1994, Federal Register (59 FR

3521). In that decision OSM required Wyoming to submit proposed program

amendments to these statutes and rules by March 25, 1994.

EFFECTIVE DATE: December 23, 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 Extension Request

By letter dated February 28, 1994, Wyoming submitted, consistent

with the requirements at 30 CFR 732.17(f)(1), a description of a

proposed amendment and a timetable for its enactment. The proposed

timetable in the submission provided that Wyoming would have until the

end of calendar year 1994 to complete the enactment of the proposed

amendment (Administrative Record No. WY-26-1). In the letter, Wyoming

notified OSM that the unusually lengthy timetable was needed to

complete rulemaking regarding the required State program amendments at

30 CFR 950.16 (bb) through (gg). Since its February 28 submission of

the proposed amendment and timetable for its enactment, Wyoming has

been successful in drafting and receiving legislature approval of the

required statutory changes as described at 30 CFR 950.16 (bb), (cc),

(dd), (ee), and (ff). The statutory changes were signed by the Governor

and filed with the Secretary of State on March 16, 1994. Wyoming, in

its February 28 letter, asserts that it has been in ``negotiated rule

making'' with all interested parties, including representatives from

State, coal industry, and environmental groups, regarding the rule

(non-statutory) portions of the required amendments that address

specific shrub density standards for reclamation. Wyoming asserts that

the ``negotiated rule making'' process, and the subsequent formal

rulemaking process, are the reasons for the lengthy timetable in this

submission.

OSM published a notice, in the March 21, 1994, Federal Register (59

FR 13286), announcing receipt of the Wyoming's February 28, 1994,

letter and in the same notice requested public comment as to whether

the proposed timetable should be approved. The public comment period

closed on April 20, 1994.

By letter dated September 1, 1994, (Administrative Record No. WY-

26-7), Wyoming submitted a request for additional time to complete

rulemaking regarding the required State program amendments. This

request would delay the resubmittal date of March 25, 1994, until

November 1995. Wyoming informed OSM that, since the time of the initial

submission, its Attorney General's Office had identified conflicts

between the proposed statutes and ``negotiated'' rules and existing

statutes and rules. This conflict, asserted Wyoming, had prohibited the

State from proceeding with its formal rulemaking. Wyoming further

asserted that statute changes that would eliminate the conflicts and

allow Wyoming to proceed with formal rulemaking are currently being

considered by the Wyoming Mining and Mineral Legislative committee. The

statute changes cannot be considered by the entire Wyoming legislature,

asserted Wyoming, until the State of Wyoming's next legislative session

beginning in January 1995. The formal rulemaking, asserted Wyoming,

could only proceed after successful legislative action and the

Governor's approval of the statute changes.

OSM published a notice in the September 20, 1994, Federal Register

(50 FR 48192), announcing receipt of the timetable extension request

and in the same notice reopened the public comment period requesting

written comments on the proposed request. The public comment period

closed on October 5, 1994.

III. Director's Findings

Set forth below, pursuant to the Surface Mining Control and

Reclamation Act of 1977, 30 U.S.C. 1201-1328 (SMCRA) and the Federal

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

concerning the proposed timetable for enactment submitted on February

28, 1994, and the subsequent request to extend that timetable submitted

on September 1, 1994.

By letter submitted February 28, 1994, Wyoming proposed a timetable

for enactment of required program amendments at 30 CFR 950.16 (bb)

through (gg). That timetable extended until the end of calendar year

1994. The length of the timetable, according to Wyoming, resulted from

a time consuming ``negotiated rulemaking'' that the State was

conducting in cooperation with State, coal industry, and environmental

groups.

By its letter dated September 1, 1994, Wyoming requested an

extension to the timetable for enactment of the required program

amendments at 30 CFR 950.16 (bb) through (gg). The extension, asserted

Wyoming, was needed to allow the State Legislature time to change

existing statutes that conflicted with the proposed rules resulting

from Wyoming's ``negotiated rulemaking'' effort with State, coal

industry, and environmental groups. Wyoming informed OSM that, at the

conclusion of the legislative session, the formal rulemaking process

would proceed and that Wyoming expected to enact the 1994 statute

changes, the revised rules, and any additional changes to the statutes

that might be required to satisfy OSM's required program amendments at

30 CFR 950.16 (bb) through (gg). Wyoming informed OSM that the

``negotiated rulemaking'' with State, coal industry, and environmental

groups referred to in its February 28, 1994, letter had been completed

and that the extension to its original timetable was needed to

implement the results of that rulemaking.

The required amendments concern Wyoming Statute (W.S.) 35-11-

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

103(e)(xxix) definition of ``Critical habitat''; W.S. 35-11-103(e)(xxx)

definition of ``Important habitat or critical habitat''; W.S. 35-11-

402(b) provisions that direct Wyoming to use specific statutory

definitions; W.S. 35-11-402(c) grazingland reclamation success

standards; and the Department of Environmental Quality--Land Quality

Division (DEQ/LQD) Rules at Chapter IV, Section 2(d)(x)(E) and Appendix

A, pertaining to revegetation success standards for shrubs, as

discussed in detail in the January 24, 1994, Federal Register (59 FR

3521).

OSM Directive REG-5 (Processing of Proposed State Regulatory

Programs, Amendments and Part 732 Notifications) provides several

factors to be considered in reviewing a proposed timetable for

enactment of a required amendment or a subsequent proposed change to a

timetable for enactment of a required amendment. These factors include:

(1) The State's amendment process and constraints imposed by the State

administrative and legislative rulemaking requirements, schedules and

procedures; (2) the criticality of the amendment and/or portion of the

State program to be amended, including any potential impacts on public

health and safety or the environment; (3) the suitability of State

promulgation of emergency regulations when the need for a program

amendment is immediate; (4) the complexity of the amendment's subject

matter and the nature of the change to be made, i.e., does the section

of the program being amended ``stand alone,'' or will change (or lack

thereof) affect multiple sections of the State's program; (5) State

workload factors; and (6) the possibility of combination with other

amendments in related subject areas which are already scheduled under

an improved timetable for enactment.

Factor 1

Wyoming's rulemaking process is quite complex and time consuming.

In addition, Wyoming's administrative and legislative rulemaking

requirements, schedules, and procedures are quite constraining. In

Wyoming, the following steps are required for promulgation of a rule

change:

(1) DEQ prepares draft rule;

(2) DEQ presents draft rule to an Advisory Board;

(3) DEQ modifies draft rule if required by the Advisory Board;

(4) DEQ requests concurrence from the Governor and Attorney

General (AG) to proceed with adoption of draft rule;

(5) DEQ receive concurrence from Governor and AG;

(6) DEQ modifies draft rule if required by Governor and/or the

AG;

(7) DEQ sends copies of draft rule to the Environmental Quality

Council (EQC) with request for a hearing;

(8) Public notice of the hearing is published and a 45 day

comment period on the draft rule occurs before EQC hearing;

(9) Comments on draft rule are analyzed by DEQ and DEQ modifies

draft rule, if needed;

(10) EQC conducts hearing and decides to reject, adopt or modify

draft rule;

(11) The Land Quality Division (LQD) submits EQC's decision to

the AG and Legislative Service Office (LSO) within 10 days following

announcement of decision of EQC;

(12) Within 30 days of decision, EQC issues a statement of

reasons for overruling any public comment objections, if applicable;

(13) AG, with LSO concurrence, submits draft rule to Governor

for approval; and,

(14) If Governor approves draft rule, the draft rule is

forwarded to the Secretary of State's Office, within 60 days of

approval, for filing.

In this instance, Wyoming asserts that the State rulemaking process

has been stalled after the AG's office determination that the proposed,

negotiated rules are in conflict with existing Wyoming Statute (W.S.)

35-11-402 (b) and (c). These statutes address consultation and approval

requirements by State wildlife agencies. Wyoming State law prohibits

Wyoming from promulgating rules that are in direct conflict with

existing statutes. Thus, Wyoming's rulemaking process cannot proceed

until the statutes are changed in the next legislative session. This

would extend the timetable for the enactment of this amendment package

to as late as November 1995, according to Wyoming.

Factor 2

The proposed amendment does not appear to present a potential

impact to public health and safety. However, the proposed amendment

does impact the environment because it concerns a revegetation success

standard that is part of Wyoming's existing approved program and that

has been determined to be less effective than the Federal program

requirements. The State has already repealed portions of the statutes,

negotiated proposed rules, and drafted statutory changes to resolve

conflicts between those statutes and rules and the existing statutes.

Thus, it is apparent that the State has determined these required

amendments to be critical and is correcting them as expeditiously as

possible.

Factor 3

The proposed amendment does not qualify as an emergency and it does

not present potential impacts to public health and safety.

Factor 4

The complexity of the shrub reclamation amendment is evident by the

divergent professional opinions regarding the appropriate minimum

stocking rate and planting arrangements. The proposed change will

affect multiple sections of the State's program concerning reclamation

requirements.

Factor 5

The State has not shown that workload is a factor in considering

this proposed extension.

Factor 6

The required program amendments at 30 CFR 950.16 (bb) through (ff)

appear to have been addressed in the last Wyoming legislative session.

The remaining required program amendment at 30 CFR 950.16(gg) is in

``negotiated rulemaking,'' which will be followed by formal rulemaking

and promulgation. Wyoming has requested that 30 CFR 950.16 (bb) through

(gg) be submitted in one amendment package due to relationship of the

subject matter. OSM agrees with the State on this approach.

Based on review of the above factors, the Director is approving

Wyoming's February 28, 1994, proposed timetable for enactment, as

revised by Wyoming's September 1, 1994, request for extension of that

timetable. The timetable, as revised, will allow Wyoming to enact the

required program amendments specified at 30 CFR 950.16 (bb) through

(gg). The timetable, as revised, extends through November 30, 1995. OSM

has determined that this timetable will provide Wyoming the necessary

time to allow for required legislative changes and public participation

in their formal rulemaking process. OSM will monitor Wyoming's

progress. Should the process break down and prohibit Wyoming from

proceeding with the promulgation of the required program amendments

within the time frame proposed in this rulemaking action. OSM will take

immediate and appropriate action.

IV. Summary and Disposition of Comments

Public Comments

The Director solicited public comments on the initial proposed

timetable and the request to extend the proposed timetable. Written

comments were received during both comment periods from the National

Wildlife Federation (NWF), the Wyoming Wildlife Federation (WWF), and

the Wyoming Outdoor Council (WOC) in letters dated April 19, 1994, and

October 4, 1994, (Administrative Records Nos. WY-26-03 and WY-26-09).

In both letters, the commenters collectively expressed concerns that

the proposed extension is in violation of the regulations implementing

SMCRA, questioned the 60-day time frame for renegotiating ``minor

changes to the proposed shrub density rule in response to the adopted

legislation,'' and had concern with the unexplained additional 60-90

days to submit the proposed rules to OSM after the Environmental

Quality Council's approval.

In the January 24, 1994, Federal Register, OSM did not approve a

previously submitted proposed amendment from Wyoming and codified

required program amendments at 30 CFR 950.16 (bb) through (gg) that

were all inclusive to the proposed amendment. In accordance with 30 CFR

732.17(f)(1), the State had 60 days after notification to submit a

written amendment or a description of an amendment along with a

timetable for enactment. Therefore, the State's response was required

by March 24, 1994. The State submitted a letter on February 28, 1994,

which, by reference to an earlier, informal submittal of February 4,

1994, included a description of a proposed amendment. In addition, the

February 28, 1994, letter included a proposed timetable for enactment

of the proposed amendment. The proposed timetable extended through the

end of calendar year 1994. In the February 28, 1994, letter, Wyoming

discussed the then current ``negotiated rulemaking'' and the 1994

legislative action previously discussed as the reason for the unusually

lengthy proposed timetable.

Thus, although characterized by the State and OSM as a ``request

for extension of time,'' Wyoming's February 28, 1994, letter, was, in

fact, a description of a proposed amendment and a timetable for its

enactment, submitted within the 60 day deadline at 30 CFR 732.17(f)(1).

The commenters asserted that OSM violated 30 CFR 732.17(h)(8) by

allowing 60 days to submit new amendments. The Federal regulation at 30

CFR 732.17(h)(8) allows a State regulatory authority (RA) to resubmit a

revised amendment within 30 days after publication of the disapproval.

As stated above, OSM did not approve the proposed amendment and

required additional amendments, pursuant to the process at 30 CFR

732.17(f)(1), to remedy existing deficiencies in the Wyoming program

discovered during that review. As discussed above, Wyoming complied

with OSM's required amendment by submitting a description of an

amendment and a timetable for its enactment within 60 days. Thus,

neither OSM nor Wyoming acted inappropriately in this instance.

In stating that OSM should have given Wyoming only 30 days, rather

than 60 days, in which to respond to OSM's required amendment, the

commenters appear to confuse the purpose of 30 CFR 732.17(f), which

allows OSM to require changes in State programs, with the purpose of 30

CFR 732.17(h)(8), which allows a State, on its own initiative, once a

proposed amendment is disapproved, to submit a revised version to OSM

for reconsideration. The 30 day time limit applies to voluntary

submissions of revised versions of disapproved amendments under 30 CFR

732.17(h)(8). The 60 day time limit applies to mandatory submissions

for changes to a State program under 30 CFR 732.17(f). Since Wyoming's

February 28, 1994, submission was a response to an OSM required change

to Wyoming's program, rather than a voluntary submission of a revised

version of disapproved amendment, OSM applied the correct time limit in

when it allowed 60 days for Wyoming to respond to the required

amendment. For additional information on the purposes of 30 CFR

732.17(f) and 30 CFR 732.17(h)(8), please see the June 17, 1982,

Federal Register (47 FR 26356, 26360-1) and the January 23, 1981,

Federal Register (46 FR 7906).

The commenters also asserted that OSM has failed to enforce 30 CFR

732.17(f)(2) and that 30 CFR 733 proceedings (substitution Federal

enforcement of a State program) should be instituted. The Federal

regulations at 30 CFR 732.17(f)(2) require that if a State RA does not

submit a proposed amendment or a description of an amendment along with

a timetable for enactment within 60 days from receipt of notice by the

Director, or does not comply with the submitted schedule, then the

Director shall begin proceedings under 30 CFR part 733.

As discussed above, Wyoming's February 28, 1994, letter, which

included a description of an amendment with a timetable for its

enactment, satisfied the requirement at 30 CFR 732.17(f)(1), that a

proposed amendment or description of amendment and timetable for

enactment, be submitted within 60 days of notification of the required

changes in the State program. Having met the deadline at 30 CFR

732.17(f)(1), it would be inappropriate for OSM to institute 30 CFR

part 733 proceedings against Wyoming at this time.

In addition, as discussed in detail in the commenters' letter,

Wyoming has gone through a negotiated rulemaking process once before

which was submitted to OSM for review as a formal amendment. At the

same time, legislative action created statutes that conflicted with the

negotiated rules. Consequently, OSM did not approve the rules and the

statutes and required the State to amend its program. It is apparent,

based upon the history described by the commenters, that the State has

been working on correcting this deficient portion of the program and

that 30 CFR part 733 proceedings would not be appropriate while the

State is working on correcting the deficiency.

Because of the 1994 legislative repeal of those portions of the

conflicting statutes and results of the ``negotiated rulemaking,'' it

would appear that the State is in a position to submit an amendment

that will correct this portion of its program. The proposed statute

changes for the 1995 legislative session should resolve the most

recently discovered statutory conflicts and thus allow completion of

the formal rulemaking process. OSM believes that this is the

appropriate process to assure that the deficiency identified in the

required amendment is adequately remedied.

The commenters pointed out that specific portions of Wyoming's

timetable, as revised on September 1, 1994, are quite lengthy. The

commenters assert that they are concerned with the 60 days the

timetable allows for ``minor changes to the proposed shrub density rule

in response to the adopted legislation'' from April through May 1995,

as well as the 90 days the timetable allows, after the Environmental

Quality Council (EQC) approval of the proposed rules, but before

submission of the amendment package to OSM, from September through

November 1995. The commenters also mentioned that Wyoming's program

includes a provision allowing the EQC to meet in an emergency hearing,

which would speed the rulemaking process, but that Wyoming has not

pursued this option.

OSM believes the 60 days allotted for dealing with ``minor

changes'' shows acceptable caution on the part of Wyoming. OSM

understands that, if the 60 days is not needed, the state will press

forward with its formal rulemaking process. Allowing 90 days to submit

the negotiated rule to OSM after approval by the EQC reflects Wyoming's

administrative processes and procedures. Rules must be filed with the

Secretary of State within 60 days after approval by the EQC. The EQC

hearings can be held at any time during the month. Therefore, Wyoming's

planned September 1995 EQC hearing could take place at the beginning or

end of that month. If it takes place at the end of the month, then the

60-day filing deadline may not occur until the end of November 1995.

Wyoming is again using acceptable caution in establishing this time

frame. Regarding Wyoming's ability to request an emergency EQC hearing,

under State law, such a request can only be made in a genuine emergency

situation. In other words, only an unplanned or unanticipated event

justifies an emergency hearing of the EQC. The current rulemaking,

while important, is neither unplanned nor unanticipated. In addition

OSM understands that Wyoming is retaining the option to request an

emergency EQC hearing if the need arises.

Agency Comments

The Bureau of Land Management responded by determining that the

amendment as written will have no effect on BLM operations.

(Administrative Record No. WY-26-6)

V. Director's Decision

Based on the above, the Director is approving Wyoming's February

28, 1994, proposed timetable for enactment of a required amendment, as

revised by Wyoming's September 1, 1994, request for extension of that

timetable. The timetable, as revised, will allow Wyoming to enact the

required program amendments specified at 30 CFR 950.16 (bb) through

(gg). The timetable, as revised, extends through November 30, 1995.

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. Procedural Determinations

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 subsection

(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 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

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 Part 950

Intergovernmental relations, Surface Mining, Underground mining.

Dated: December 19, 1994.

Charles E. Sandberg,

Acting Assistant Director, Western Support Center.

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

Subchapter T, 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, paragraph (hh) is added to read as follows:

Sec. 950.16 Required program amendments.

* * * * *

(hh) By letters dated February 28, 1994, and September 1, 1994,

Wyoming submitted a description of required amendments, time table for

enactment, and request for additional time to complete the rulemaking

for paragraphs (aa) through (gg) of this section. The request provides

that Wyoming will have through November 30, 1995, to submit those

required program amendments.

[FR Doc. 94-31599 Filed 12-22-94; 8:45 am]

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