Wyoming Regulatory Program

[[Page 14368]]

DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

Wyoming Regulatory Program

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

Interior.

ACTION: Final rule; approval of amendment.

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SUMMARY: OSM is approving a proposed amendment to the Wyoming

regulatory program (hereinafter referred to as the ``Wyoming program'')

under the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C.

1201 et seq. (SMCRA). Wyoming is revising its regulations at Appendix

B--Wildlife Monitoring, both in response to required amendment sat 30

CFR 950.16(aa), and on its own initiative. The amendment is intended to

revise the Wyoming program to be consistent with the corresponding

Federal regulations and SMCRA.

EFFECTIVE DATE: March 17, 1995.

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.

III. Proposed Amendment

By letter dated November 8, 1994, Wyoming submitted a proposed

amendment to its program pursuant to SMCRA (administrative record No.

WY-28-01). Wyoming submitted the proposed amendment in response to the

required program Amendment at 30 CFR 950.16(aa) an also included a

State initiated change. The provisions of its program that Wyoming

proposed to revise are: Appendix B--Wildlife Monitoring, Section C and

E. On its own initiative, at Section C, the State proposed to modify

the requirements for raptor nest status and production success surveys.

At Section E and in response to a required amendment placed on

Wyoming's program at 30 CFR 950.16(aa) in the October 7, 1993, OSM

rulemaking (58 FR 52232), Wyoming proposed to remove language that

would exclude the need to promptly report all observations of migrating

and wintering bald eagles or migrating peregrine falcons.

OSM announced receipt of the proposed amendment in the December 6,

1994, Federal Register (59 FR 62645), provided an opportunity for a

public hearing or meeting on its substantive adequacy, and invited

public comment on its adequacy (administrative record No. WY-28-09).

Because no one requested a public hearing or meeting, none was held.

The public comment period ended on January 5, 1995.

III. Director's Findings

As discussed below, the Director, in accordance with SMCRA and 30

CFR 732.15 an 732.17, finds that the proposed program amendment

submitted by Wyoming on November 8, 1994, is no less effective than the

Federal program requirements and no less stringent than SMCRA.

Accordingly, the Director approves the proposed amendment.

1. Appendix B, Section C Raptor Production, Nest Status and Production

Success

As a result of discussions with the U.S. Fish and Wildlife Service

(USFWS), the Wyoming Game and Fish Division (WGFD), and mining industry

biologists, the Wyoming Land Quality Division (LQD) proposes to modify

requirements for raptor nest status and production success surveys.

Survey requirements presently include: An annual search within the

permit area and within a 1 mile perimeter to locate known and new or

previously unrecorded nests; an initial survey in March for golden

eagle and great horned owl nests; and mid-May through mid-June survey

to locate other new raptor nests and to check the status of known nest.

The current program further requires that all nest checks are to be

conducted from a distance; that productivity checks shall be conducted

on active nests; and that the status and productivity of all nests are

to be reported annually.

The changes being proposed by LQD are as follows: Modify the

requirement that the golden eagle and great horned owl nest survey be

conducted within \1/2\ mile of existing mining activities and those

mining activities proposed for the coming year on or before mid-

February instead of March; require the following three, thorough

surveys covering the entire permit area and within 1 mile: During March

to locate golden eagle and great horned owl nests, an April survey to

locate nests of most other species, and a survey in mid-May through

mid-June to locate new raptor nests and to check the status of all

known nests. Also added, is a requirement to conduct follow up visits

for previously identified nests timed to facilitate documentation of

occupied territories, nest building, incubation and fledgling success

according to the biology of the species present and variation in

breeding chronology among study areas.

The above modifications and additions add more specificity to

Wyoming's survey requirements and provide for more desirable survey

dates for gathering data on nests. Earlier identification of nests

(i.e., before eggs are laid) will allow early mitigation action and

therefore less chance for conflicts with the mining operations. The

changes mutually agreed to by the groups involved are not inconsistent

with the Federal program requirements. The Director is therefore

approving the proposed changes.

2. Appendix B, Section E. Federally Listed Threatened and Endangered

Species

Wyoming proposes to modify the introductory paragraph of Section E,

specifying the requirements for reporting observations of threatened

and endangered species, by (1) removing the language that would exclude

the need to report observations of migrating and wintering bald eagles

or migrating peregrine falcons, and (2) adding language to clarify that

reporting observations of Federally listed threatened and endangered

species must be to the regulatory authority as required by the LQD

regulation at Chapter IV, Section 2.(r)(i)(E), unless otherwise

specified by the USFWS in the approved threatened and endangered

species plan. Item number (1) above in response to a program amendment

placed on the Wyoming program as a result of the October 7, 1993, OSM

rulemaking (58 FR 52232), codified at 30 CFR 950.16(aa). The removal of

the language to exclude reporting of migrating and wintering bald

eagles or migrating peregrine falcons satisfies the required amendment

at 30 CFR 950.16(aa). The Director is therefore removing the required

amendment from 30 CFR 950.16. Item number (2) above merely provides

reference to the specific rule that requires reporting to the

regulatory authority unless otherwise specified by the USFWS (the

Federal agency responsible for the administration of

[[Page 14369]] threatened and endangered species). The proposed change

would make the reporting requirement in the Appendix consistent with

the corresponding performance standard at Chapter IV, Section

2.(r)(i)(E), of Wyoming's regulations. In addition, the proposed change

is consistent with the corresponding Federal reporting requirement at

30 CFR 816.97(b) and 817.97(b). Based on the above discussion, the

Director is approving both modifications to Section E.

IV. Summary and Disposition of Comments

Following are summaries of all substantive written comments on the

proposed amendment that were received by OSM, and OSM's responses to

them.

1. Public Comments

OSM invited public comments on the proposed amendment, but none

were received.

2. Federal Agency Comments

Pursuant to Sec. 732.17(h)(11)(i), OSM solicited comments on the

proposed amendment from various Federal agencies with an actual or

potential interest in the Wyoming program.

The U.S. Bureau of Mines responded on November 30, 1994, that it

had no comment (administrative record No. WY-28-10).

The U.S. Corps. of Engineers responded on December 1, 1994, saying

that they found the changes to be satisfactory to their agency

(administrative record No. WY-28-11).

The Mine Safety and Health Administration (MSHA) responded on

December 16, 1994, that the amendments do not conflict with MSHA's

regulations and do not appear to affect the health and safety of the

Nation's miners (administrative record No. WY-28-12).

The Bureau of Land Management responded on December 28, 1994, that

the monitoring requirements appeared to prescribe a comprehensive and

appropriate wildlife monitoring effort, but suggested that a cross

check with the minimum data standards prepared for the Regional Coal

Teams be made to make sure the State regulations are consistent with

those standards. The Wyoming program requires extensive premining data

gathering whose level of detail must be determined in consultation with

the Wyoming Game and Fish Department and other Federal agencies having

responsibility for management or conservation of such environmental

activities (Wyoming rule at Chapter II, Section 2., (a), (vi), (G)). A

statement of how the applicant will utilize monitoring methods as

specified in Appendix B is required in the permit application (Wyoming

rule at Chapter II, Section 2, (b), (vi), (b). Wyoming also has

performance standards for Fish and Wildlife reclamation that must be

met (Wyoming rule at Chapter IV, Section 2.,(r)) and elsewhere through

out Chapter VI). The above requirements for permit application

information, monitoring during the mining operation, and carrying out

reclamation assure that appropriate consideration and consultation by

the agencies responsible is obtained on a site specific basis. In

addition, the previously approved Wyoming regulations are no less

effective than the corresponding requirements in the Federal

regulations. The minimum data standards prepared for the Regional Coal

Teams2, while certainly providing helpful guidelines, are not

required as part of Wyoming's surface coal mining program. Based on the

above discussion, the Director is not requiring Wyoming to modify its

program in response to the BLM's comments (administrative record No.

WY-28-14).

3. Environmental Protection Agency (EPA) Concurrence and Comments

Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit

the written concurrence of EPA with respect to those provisions of the

proposed program amendment that 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.).

None of the revisions that Wyoming proposed to make in its

amendment pertain to air or water quality standards. Nevertheless, OSM

requested EPA's comments on the proposed amendment (administrative

record No. WY-28-05). EPA responded to OSM's request on December 21,

1994, (administrative record No. WY-28-13) that they did not believe

there would be any impacts to water quality standards promulgated under

the authority of the Clean Water Act, as amended (33 U.S.C. 1251 et

seq.).

4. State Historic Preservation Officer (SHPO) and the Advisory Council

on Historic Preservation (ACHP)

Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the

proposed amendment from the SHPO and the ACHP (administrative record

Nos. WY-28-04 and WY-28-03). Neither SHPO nor the ACHP responded to

OSM's request.

V. Director's Decision

Based on the above finding, the Director approves Wyoming's

proposed amendment as submitted on November 8, 1994, that modifies

Appendix B, Section C, concerning requirements for survey of raptor

nest status and production success; and Appendix B, Section E,

concerning the reporting of threatened and endangered species when

observed. The Director approves the changes as proposed by Wyoming with

the provision that they be fully promulgated in identical form as

submitted to and reviewed by OSM and the public.

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

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

SMCRA.

VI. Procedural Determinations

1. Executive Order 12866

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

Budget (OMB) under Executive Order 12866 (Regulatory Planning and

Review).

2. Executive Order 12778

The Department of the Interior has conducted the reviews required

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

determined that this rule meets the applicable standards of subsections

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

applicable to the actual language of State regulatory programs and

program amendments since each 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 the Federal regulations at 30 CFR

730.11, 732.15, and 732.17(h)(10), decisions on proposed State

regulatory programs and program amendments submitted by the States must

be based solely on a determination of whether the submittal is

consistent with SMCRA and its implementing Federal regulations and

whether the other requirements of 30 CFR parts 730, 731, and 732 have

been met.

3. National Environmental Policy Act

No environmental impact statement is required for this rule since

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

decisions on [[Page 14370]] 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)).

4. Paperwork Reduction Act

This rule does not contain information collection requirements that

require approval by OMB under the Paperwork Reduction Act (44 U.S.C.

3507 et seq.).

5. Regulatory Flexibility Act

The Department of the Interior has determined that this rule will

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

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

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

counterpart Federal regulations for which an economic analysis was

prepared and certification made that such regulations would not have a

significant economic effect upon a substantial number of small

entities. Accordingly, this rule will ensure that existing requirements

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

making the determination as to whether this rule would have a

significant economic impact, the Department relied upon the data and

assumptions for the counterpart Federal regulations.

List of Subjects in 30 CFR Part 950

Intergovernmental relations, Surface mining, Underground mining.

Dated: March 10, 1995.

Charles E. Sandberg,

Acting 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. Section 950.15 is amended by adding paragraph (v) to read as

follows:

Sec. 950.15 Approval of amendments to the Wyoming regulatory program.

* * * * *

(v) The following program changes, as submitted to OSM on November

8, 1994, are approved effective March 17, 1995: Appendix B, Section C

concerning dates for conducting raptor surveys; and Appendix B, Section

E concerning the reporting of observed migrating and wintering bald

eagle or migrating peregrine falcons and observations of other

Federally listed threatened and endangered species.

Sec. 950.16 [Amended]

3. Section 950.16 is amended by removing and reserving paragraph

(aa).

[FR Doc. 95-6589 Filed 3-16-95; 8:45 am]

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