Wyoming Regulatory Program, 34816-34837 [2011-14310]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement
• Surface Mining Reclamation and Enforcement Office

[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Rules and Regulations]
[Pages 34816-34837]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14310]



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Vol. 76

Tuesday,

No. 114

June 14, 2011

Part II





Department of the Interior





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Office of Surface Mining Reclamation and Enforcement





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30 CFR Part 950





Wyoming Regulatory Program; Final Rule

Federal Register / Vol. 76 , No. 114 / Tuesday, June 14, 2011 / Rules 
and Regulations

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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SATS No WY-038-FOR; Docket ID OSM-2009-0012]


Wyoming Regulatory Program

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

ACTION: Final rule; approval of amendment with certain exceptions.

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SUMMARY: We are issuing a final decision on an amendment to the Wyoming 
regulatory program (the ``Wyoming program'') under the Surface Mining 
Control and Reclamation Act of 1977 (``SMCRA'' or ``the Act''). Our 
decision approves in part, disapproves in part and defers in part the 
amendment. Wyoming proposed to amend Chapters 1, 2, 4, 5, and Appendix 
A of the Land Quality Division (LQD) Coal Rules and Regulations to 
address required program amendments and other deficiencies identified 
by OSMRE, and to improve and clarify rules relating to requirements for 
vegetation measurements and performance standards. Specifically, the 
proposed changes clarify baseline vegetation requirements and 
revegetation reclamation plan requirements, clarify revegetation 
success standards and codify normal husbandry practices, reorganize and 
clarify species diversity and shrub density requirements, and revise 
and add definitions supporting those proposed changes. Wyoming also 
proposed changes to its rules in Chapters 2, 4, and 5 regarding 
cultural and historic resources, prime farmland, siltation structures 
and impoundments, and operator information. Wyoming revised its program 
to be consistent with the corresponding Federal regulations and SMCRA, 
clarify ambiguities, and improve operational efficiency.

DATES: Effective Date: June 14, 2011.

FOR FURTHER INFORMATION CONTACT: Jeffrey W. Fleischman, Telephone: 
307.261.6550, E-mail address: jfleischman@osmre.gov.

SUPPLEMENTARY INFORMATION:

I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE'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 the conditions 
of approval of the Wyoming program 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 950.12, 950.15, 
950.16, and 950.20.

II. Submission of the Proposed Amendment

    By letter dated October 15, 2009, Wyoming sent OSMRE a proposed 
amendment to its approved regulatory program (SATS number: WY-038-FOR, 
Administrative Record Docket ID No. OSM-2009-0012). Wyoming sent the 
amendment in response to: Portions of a February 21, 1990, letter that 
we sent to Wyoming in accordance with 30 CFR 732.17(c); previous OSMRE 
disapprovals at 30 CFR 950.12(a) (6) and (7); and required program 
amendments at 30 CFR 950.16(f), (l), (m), (p), and (u). The amendment 
also includes changes made at Wyoming's own initiative.
    We announced receipt of the proposed amendment in the February 9, 
2010, Federal Register (75 FR 6332). 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 
Document ID No. OSM-2009-0012-0001). We did not hold a public hearing 
or meeting because no one requested one. The public comment period 
ended on March 11, 2010. We received comments from three Federal 
agencies and one State agency discussed under ``IV. Summary and 
Disposition of Comments.''
    During our review of the amendment, we identified concerns 
regarding Wyoming's proposed deletion of its definition for ``surface 
coal mining and reclamation operations'' at Chapter 1, Section 2 (ct) 
and the term ``surface'' in Chapters 1, 2, 4 and 5; its proposed 
deletion of the U.S. Geological Survey topographic map scale 
requirement at Chapter 2, Section 1 (c); its response to a required 
program amendment at 30 CFR 950.16(p) concerning fish and wildlife 
enhancement measures at Chapter 2, Section 5(a) (viii) (A); design 
precipitation event requirements for siltation structures and 
impoundments at Chapter 4, Section 2(c) (xii) (D) (II); and, incorrect 
rule cross-references regarding normal husbandry practices at Chapter 4 
Section 2(d) (i) (M) (II). We notified Wyoming of these concerns by 
letter dated May 21, 2010 (Administrative Record Document ID No. OSM-
2009-0012-0006).
    We delayed final rulemaking to afford Wyoming the opportunity to 
submit new material to address the deficiencies. Wyoming responded in a 
letter dated June 21, 2010, that it could not currently submit formal 
revisions to the amendment due to the administrative rulemaking 
requirements for promulgation of revised substantive rules 
(Administrative Record Document ID No. OSM-2009-0012-0007). 
Specifically, Wyoming explained that the required changes would be 
considered substantive in nature and therefore the LQD is required to 
present the proposed rules to the LQD Advisory Board and then the 
Wyoming Environmental Quality Council for vetting. Following approval 
by the Governor, the rules may be submitted to OSMRE for final review. 
While it could not submit formal changes, Wyoming did submit informal 
responses to the noted concerns. Therefore, we are proceeding with the 
final rule Federal Register document. Our concerns and Wyoming's 
responses thereto are explained in detail below.

III. OSMRE's Findings

    30 CFR 732.17(h)(10) requires that State program amendments meet 
the criteria for approval of State programs set forth in 30 CFR 732.15, 
including that the State's laws and regulations are in accordance with 
the provisions of the Act and consistent with the requirements of 30 
CFR Part 700. In 30 CFR 730.5, OSMRE defines ``consistent with'' and 
``in accordance with'' to mean (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 the Act and 
(b) with regard to the Federal regulations, the State laws and 
regulations are no less effective than the Federal

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regulations in meeting the requirements of SMCRA.
    Following are the findings we made concerning the amendment under 
SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are 
approving the amendment with certain exceptions as described below.

A. Purpose and History of Wyoming's Amendment Regarding Appendix A

    Appendix A of the LQD Coal Rules and Regulations contains rules on 
vegetation sampling methods and reclamation success standards for 
shrubs on reclaimed lands. Appendix A was previously incorporated by 
reference in Chapters 2 and 4 of the LQD Coal Rules and Regulations and 
was approved by OSMRE in a November 24, 1986, Federal Register notice 
(51 FR 42212). However, on August 30, 2006, OSMRE published new 
revegetation success standards that no longer required sampling and 
statistical methods to be included in the rules of the regulatory 
authority (See 71 FR 51684). Consequently, much of Appendix A was no 
longer required to be in the rule and Wyoming proposed to delete 
Appendix A entirely and relocate portions thereof into Chapters 1, 2, 
and 4. Specifically, Wyoming's proposed changes to Chapter 1 contain 
definitions that were relocated from deleted Appendix A, plus new and 
revised definitions intended to clarify current or proposed rules and/
or sampling methods in support of proposed changes in Chapters 2 and 4. 
Wyoming also proposed to substantially reorganize the structure of 
Chapter 2 to revise Section 1 (General Requirements) and divide Section 
2 (Application Content Requirements) into five new sections including 
Adjudication Requirements; Vegetation Baseline Requirements; General 
Baseline Requirements; Mine Plan; and, Reclamation Plan. Similarly, 
Wyoming proposed to substantially reorganize the structure of Chapter 4 
Section 2(d) into two new subsections with subsection (i) containing 
General Revegetation Performance Standards and most of the current 
Section 2(d) rules, and adding rules dealing with normal husbandry 
practices. Subsection (ii) contains Revegetation Success Standards 
listed by post-mine land use categories. Wyoming also proposed to 
combine the standards for grazingland and pastureland into a single 
section and proposes new Chapter 4 Appendix 4A, Evaluation of Shrub 
Density, which describes the different shrub standard options and is 
relocated from deleted Appendix A. Lastly, Wyoming indicates in its 
``Statement of Principal Reasons for Adoption'' (SOPR) that rules for 
sampling and statistical methods that had previously been developed for 
inclusion into Chapter 4 will now be incorporated into the 
Administrator's Approved Sampling and Statistical Methods document.

B. Minor Wording, Editorial, Punctuation, Grammatical, and 
Recodification Changes to Previously Approved Regulations

    Wyoming proposed minor wording, editorial, punctuation, 
grammatical, and recodification changes to previously approved rules. 
The proposed changes are intended to simplify references to applicable 
rules and reduce unnecessary, outdated, and duplicative language. No 
substantive changes to the text of these regulations were proposed. 
Because the proposed revisions to these previously approved rules are 
minor in nature and do not change any fundamental requirements or 
weaken Wyoming's authority to enforce them, we are approving the 
changes and find that they are no less effective than the Federal 
regulations at Title 30 (Mineral Resources), Chapter VII (Office of 
Surface Mining Reclamation and Enforcement, Department of the 
Interior), Parts 700 through 887.
    Chapter 1, Section 2(f); deletion of ``Animal unit'' definition 
because it is no longer used in the rules;
    Chapter 1, Section 2(j) through (q); recodification of definitions;
    Chapter 1, Section 2(s); deletion of ``Complete application'' 
definition as it is already defined in Wyoming's statutes;
    Chapter 1, Section 2(by)(i), (iii)-(xi); minor punctuation and 
grammatical changes;
    Chapter 1, Section 2(eb)(i)-(iv); minor formatting and grammatical 
changes;
    Chapter 1, Section 2(ed); minor grammatical changes;
    Chapter 2, Section 1(c)(iii) and (iv); minor grammatical changes;
    Chapter 2, Section 1(c)(v); reference to new rule documenting time 
frames and bond release standards defined in Chapter 1(dm);
    Chapter 2, Section 2; title change to ``Adjudication Requirements'' 
to reflect reorganization of the chapter;
    Chapter 2, Sections 3-6; recodification of existing Section 2 to 
reflect reorganization and expansion to new sections 3 through 6;
    Chapter 2, Section 2(a)(i)(C), (D), (E), and (iv); minor 
grammatical and punctuation changes;
    Chapter 2, Section 2(a)(v)(A)(I)(2.) and (III); minor grammatical 
changes;
    Chapter 2, Section 2(a)(vi)(C) and (C)(I); deletion of current 
subsections and relocation of rule language throughout reorganized 
Chapter 2 where appropriate.
    Chapter 2, Section 2(b)(vii); deletion of existing rule language as 
being duplicative due to reorganization and is covered in new Section 
6(b)(iii).
    Chapter 2, Section 3(l); minor grammatical change;
    Chapter 2, Section 4; new section entitled ``Other Baseline 
Requirements'' to reflect reorganization of the Chapter;
    Chapter 2, Section 4(a)(i); reference to land uses and vegetation 
communities that comprise them as defined in Chapter 1;
    Chapter 2, Section 4(a)(v)(A); change ``Soil Conservation Service'' 
to ``Natural Resource Conservation Service;''
    Chapter 2, Section 4(a)(xiv); recodification of cross-reference;
    Chapter 2, Section 5(a)(ii); deletion of existing rule language as 
being duplicative as it is covered in greater detail elsewhere in the 
section.
    Chapter 2, Section 5(a)(ix)(E); recodification of cross-reference;
    Chapter 2, Section 6(a), (b), and (b)(iii)(A); minor grammatical 
changes;
    Chapter 4, Section 2; recodification of existing Section 2(d) to 
reflect reorganization and expansion to new subsections (i) and (ii);
    Chapter 4, Section 2(d)(i)(C); minor grammatical change;
    Chapter 4, Section 2(d)(i)(E); minor grammatical change;
    Chapter 4, Section 2(d)(i)(J); minor grammatical change and 
recodification of cross-reference;
    Chapter 4, Section 2(d)(i)(K); minor grammatical change;
    Chapter 4, Section 2(g)(vi); minor grammatical change;
    Chapter 4, Section 2(g)(v); minor grammatical change;
    Chapter 4, Section 2(i); recodification of cross-reference;
    Chapter 4, Section 2(j)(vii)(B); recodification of cross-reference;
    Chapter 4, Appendix 4A Introduction; minor change referencing the 
recodified and revised definition of ``eligible lands.''

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

    Wyoming proposes revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations and/or SMCRA. Therefore we are approving 
them.
    Chapter 1, Section 2(cm); definition of ``Noxious weed'' [30 CFR 
701.5];
    Chapter 4, Section 2(d)(i)(I); Tree density and replacement [30 CFR 
816/817.116(b)(3)(ii)];

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    Chapter 4, Section 2(g)(iv)(L); Impoundment spillways [30 CFR 816/
817.49(a)(9)(i)];
    Chapter 4, Section 2(g)(iv)(M); Temporary impoundments [30 CFR 816/
817.49(c)(2)];
    Chapter 4, Section 2(g)(v)(A); Design precipitation event criteria 
[30 CFR 816/817.49(a)(9)(ii)(B)];
    Chapter 4, Section 2(g)(v)(B); Design precipitation event criteria 
[30 CFR 816/817.84(b)(2)];

D. Reorganization/Relocation of Existing Provisions and Previously 
Approved Language in Wyoming's Rules

    1. Wyoming proposes to relocate both existing definitions in 
Chapter 1 as well as previously approved definitions in Appendix A to 
Chapter 1. The changes are intended to reorganize and/or relocate 
already existing and approved language to a more appropriate place 
within the regulations and clarify language contained in the current 
rules. Because the relocation of previously approved definitions within 
the regulations does not change any fundamental requirements or weaken 
Wyoming's authority to enforce them, we are approving the following 
proposed changes.
    Chapter 1, Section 2(r); deletion of ``Comparison area'' definition 
and relocated as a subcategory under new definition for ``Reference 
area;''
    Chapter 1, Section 2(t); deletion of ``Control area'' definition 
and relocated as a subcategory under new definition for ``Reference 
area;''
    Chapter 1, Section 2(af); relocation of existing definition of 
``Density'' from Appendix A Glossary;
    Chapter 1, Section 2(ba); relocation of existing definition of 
``Full Shrub'' from Appendix A Glossary;
    Chapter 1, Section 2(ct); relocation of existing definition of 
``Plotless sampling'' from Appendix A Glossary.
    2. Wyoming proposes to substantially reorganize the structure of 
Chapter 2 by revising Section 1 (General Requirements) and dividing 
current Section 2 (Application Content Requirements) into the five new 
sections. Wyoming proposed minor revisions to Sections 1, 2, 4, and 5 
all which are approved in Section B. above.
    Wyoming also proposes to create new Section 6 entitled 
``Reclamation Plan'' by reorganizing rules currently found in Chapter 2 
and consolidating both existing revegetation requirements and revised 
text from Chapter 4 and Appendix A. The reorganized provisions contain 
concepts and rule language that was previously approved by OSMRE. 
Wyoming notes in its SOPR that some of the language in the relocated 
Appendix A rules has been revised to be technically current. In 
addition, Wyoming explains that a few of the rules currently in Chapter 
4 Section 2(d) were moved to Chapter 2 so that all of the rules 
regarding the reclamation plan are located together. Wyoming further 
indicates in its SOPR that in most cases, the relocated rules have been 
reworded and/or restructured to clarify their intent and better fit the 
rules format. The revised rules in newly-created Section 6 are intended 
to provide clarity and consistency regarding reclamation plan 
requirements, as well as maintain organizational continuity. Wyoming's 
relocation and inclusion of already existing and approved language to a 
more appropriate place within the regulations, along with its proposed 
revisions to these previously approved rules, do not change any 
fundamental requirements or weaken Wyoming's authority to enforce them. 
Accordingly, we are approving the proposed changes and find that they 
are consistent with and no less effective than the basic Federal 
requirements of 30 CFR 780.18(b)(5).
    Chapter 2, Section 6(b)(iii)(B) and (C); (existing rule language of 
Chapter 2, Section 2(b)(iv)(C) has been divided into two new 
subsections and revised to clarify language in the current rules and 
fit the new format);
    Chapter 2, Section 6(b)(iii)(D); Requirements for tree species in 
reclamation plan (relocated from Chapter 4, Section 2(d)(x)(F));
    Chapter 2, Section 6(b)(iii)(E); Requirements for seed mixtures 
(relocated with revision from Appendix A, Section VII.B.);
    Chapter 2, Section 6(b)(iii)(E)(I)-(IV); Species of vegetation 
described in the reclamation plan and seeding rates (relocated with 
revision from Chapter 4, Section 2(d)(v));
    Chapter 2, Section 6(b)(iii)(E)(V)(1.)-(5.); Requirements for 
introduced species seed mixtures (relocated with revision from Appendix 
A, Section VII.B. and Chapter 4, Section 2(d)(vi));
    Chapter 2, Section 6(b)(iii)(E)(VI); Requirement to document 
suitability of introduced species (relocated with revision from Chapter 
4, Section 2(d)(vi));
    Chapter 2, Section 6(b)(iii)(E)(VII); Seed mix requirements for 
grazingland (relocated with revision from Appendix A, Section 
VII.B.5.);
    Chapter 2, Section 6(b)(iii)(E)(IX); Postmining locations of seed 
mixes (relocated with revision from Appendix A, Section VII.B.);
    Chapter 2, Section 6(b)(iii)(F); Operator requests to not use mulch 
(relocated from Appendix A, Section VII.C.);
    Chapter 2, Section 6(b)(iii)(H); Irrigation plans (relocated from 
Chapter 4, Section 2(d)(xii));
    Chapter 2, Section 6(b)(iii)(I); Pest and disease control measures 
(revision of current Chapter 2, Section 2(b)(vii)(A) to maintain 
organizational consistency);
    Chapter 2, Section 6(b)(iii)(J); Monitoring plan for permanent 
revegetation (relocated from current Chapter 2, Section 2(b)(vii)(C));
    Chapter 2, Section 6(b)(iv); Plan to measure revegetation success 
(revision of current Chapter 2, Section 2(b)(vii)(B) to maintain 
organizational consistency);
    Chapter 2, Section 6(b)(iv)(A), (B), (D), (E), and (F); Reclamation 
plan requirements for measuring revegetation success (relocated with 
revision from Appendix A, Section VIII.F.);
    Chapter 2, Section 6(b)(iv)(C); Reclamation plan requirements for 
measuring revegetation success (inclusion of previously approved shrub 
goal standard);
    Chapter 2, Section 6(b)(iv)(G); Reforestation for commercial 
harvest success standards (relocated from Chapter 4, Section 
2(d)(x)(G)).
    3. Wyoming proposes to substantially reorganize the structure of 
Chapter 4 Section 2(d) into two new subsections. New subsection (i) 
contains General Revegetation Performance Standards and most of the 
current Section 2(d) rules, and adds rules dealing with normal 
husbandry practices. Wyoming explains that a few of the rules currently 
in Chapter 4 Section 2(d) were moved to Chapter 2 so that all of the 
rules regarding the reclamation plan are located together. Other rules 
with performance standards for Revegetation Success listed by post-mine 
land use categories were moved to new subsection (ii) and are addressed 
in Finding No. III.E.15. below.
    Wyoming also indicates in its SOPR that in several instances, the 
relocated rules have been reworded for purposes of consistent 
terminology usage and restructured to clarify their intent and better 
fit the rules format. The revised rules in newly-created subsection (i) 
are intended to provide clarity and consistency regarding revegetation 
performance standards, and maintain organizational continuity. 
Wyoming's relocation of already existing and approved language to a 
more appropriate place within the regulations, along with its proposed 
revisions to these previously approved rules, do not change any 
fundamental requirements or weaken Wyoming's authority to enforce them. 
Accordingly, we are approving the proposed changes

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and find that they are consistent with and no less effective than the 
basic Federal requirements of 30 CFR 816/817.111.
    Chapter 4, Section 2(d)(i)(F); Rills and gullies (relocated from 
Chapter 4, Section 2(d)(v));
    Chapter 4, Section 2(d)(i)(L); existing rule language has been 
revised to clarify noxious weed control responsibility by the operator;
    Chapter 4, Section 2(d)(v) and (vi); deleted and relocated with 
revision to Chapter 2, Section 6(b)(iii)(E);
    Chapter 4, Section 2(d)(vii); deleted and relocated with revision 
to Chapter 4, Section 2(d)(ii) and divided into Section 2(d)(ii)(C) for 
``cropland'' and (F) for ``industrial, commercial, and residential land 
uses;''
    Chapter 4, Section 2(d)(viii); deleted and relocated to Chapter 4, 
Section 2(d)(ii)(J)(I) under ``special success standards;''
    Chapter 4, Section 2(d)(i)(H); Bond release and revegetation (first 
sentence relocated from Chapter 4, Section 2(d)(x));
    Chapter 4, Section 2(d)(x); deleted and relocated with revision to 
Chapter 4, Section 2(d)(ii)(B)(I) under ``Revegetation Success 
Standards for Grazingland and Pastureland;''
    Chapter 4, Section 2(d)(x)(A)-(D); deleted and relocated with 
revision to Chapter 1, Section 2(dl) ``Reference Area'' definitions;
    Chapter 4, Section 2(d)(x)(E) and (E)(I)-(E)(IV); deleted and 
relocated with revision to Chapter 4, Section 2(d)(ii)(B)(II) under 
shrub replacement requirements for grazingland;
    Chapter 4, Section 2(d)(x)(G); Standards for success of 
reforestation (deleted; first and last sentences relocated with 
revision to Chapter 4, Section 2(d)(ii)(H), with remainder moved to 
Chapter 2, Section 6(b)(iv)(G));
    Chapter 4, Section 2(d)(x)(H); deleted and relocated with revision 
to Chapter 4, Section 2(d)(ii)(C)(I) under cropland success standards;
    Chapter 4, Section 2(d)(x)(I); deleted and relocated with revision 
to Chapter 4, Section 2(d)(ii)(C)(II) under cropland success standards;
    Chapter 4, Section 2(d)(x)(J); deleted and relocated with revision 
to Chapter 4, Section 2(d)(ii)(B)(I)(3.) under cropland success 
standards;
    Chapter 4, Section 2(d)(xii); Irrigation plans deleted and 
relocated with revision to Chapter 2, Section 6(b)(iii)(H).
    4. Wyoming proposes new Chapter 4 Appendix 4A, Evaluation of Shrub 
Density, which describes the different shrub standard options and is 
relocated from deleted Appendix A. Wyoming's relocation of already 
existing and previously approved language to a more appropriate place 
within the regulations does not change any fundamental requirements or 
weaken Wyoming's authority to enforce them. Accordingly, we are 
approving the proposed change.

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

1. Chapter 1, Section 2(j); Definition of ``Augmented Seeding''
    Wyoming proposes to add a new definition for ``Augmented Seeding'' 
to its rules at Chapter 1, Section 2(j) that reads as follows:

    (j) ``Augmented Seeding'' means reseeding in response to the 
unsuccessful germination, establishment or permanence of 
revegetation efforts. Augmented seeding resets the applicable 
liability period. A synonym is reseeding.

    In its SOPR, Wyoming states that this definition is needed to 
support its proposed normal husbandry rules [Chapter 4, Section 
2(d)(i)(M)(I)], and was required by OSM to address the difference 
between interseeding, which is a husbandry practice that does not reset 
the bond clock, and augmented seeding which does reset the bond clock. 
Wyoming continues that the difference between the two is that augmented 
seeding is used when the original seeding has been unsuccessful, and 
that interseeding is used to enhance established vegetation in order to 
improve composition.
    The proposed definition appropriately distinguishes the differences 
between augmented seeding and interseeding, and is consistent with 
other state definitions and uses previously approved by OSMRE. We also 
find that while there is no direct Federal counterpart to the proposed 
rule it implements the Federal requirements at 30 CFR 816/817.116(c)(1) 
and (4), and is no less effective than the Federal regulations. 
Accordingly, we are approving Wyoming's proposed definition.
2. Chapter 1, Section 2(am); Definition of ``Eligible Land''
    Wyoming proposes to revise its definition for ``Eligible land'' in 
its rules at Chapter 1, Section 2(am) to read as follows:

    (am) ``Eligible land'' means all land to be affected by a mining 
operation after August 6, 1996 which carries the grazingland land 
use designation and all affected pastureland land use units which 
have a full shrub density greater than one full shrub per square 
meter. Pastureland is eligible only if the surface owner requests 
that the pastureland be eligible and only if the land units are 
included in a new permit or permit amendment application which is 
submitted to the Administrator after approval of this rule by the 
Office of Surface Mining.

    Wyoming states in its SOPR that grazingland, including land with 
pre-mining shrub densities of less than one shrub per square meter, 
functions as wildlife habitat and is eligible for shrub reclamation. 
Wyoming continues that pastureland, with its primary use as domestic 
livestock grazing and haying, often has a significant enough shrub 
component that it also functions as wildlife habitat. Thus, the 
Pastureland shrubs may be replaced on other reclaimed land such as 
grazingland.
    Next, Wyoming states that the revision adds pastureland with a full 
shrub density greater than one shrub per square meter as eligible land. 
Wyoming goes on to explain that this means the areas defined as 
pastureland are required to meet the shrub density standard if their 
pre-mine shrub densities are greater than one full shrub per square 
meter. Conversely, pasturelands with lower pre-mine shrub densities are 
not required to replace shrubs postmine.
    Wyoming also notes that the definition is being revised to make 
pastureland ``eligible land'' only if the surface owner requests that 
pastureland be eligible. Originally, the proposed rule made pastureland 
subject to shrub replacement when full shrub density was greater than 
one shrub per square meter. Wyoming confirms that meeting this standard 
is still required, but only with surface owner consent. Wyoming also 
explains that the concept of surface owner consent was added as a 
result of public comment and testimony during a Wyoming Environmental 
Quality Council hearing on these rules. Wyoming concludes by stating 
that this adds the option of replacing shrubs on pastureland with a 
shrub density of greater than one shrub per square meter if the owner 
of the land requests that pastureland be eligible land.
    The Federal regulations at 30 CFR 816/817.116(b)(1) require that 
for areas developed for use as grazing land or pasture land, the ground 
cover and production for living plants shall be at least equal to that 
of a reference area or such other [revegetation] success standards 
approved by the regulatory authority. Wyoming's proposed definition for 
``Eligible land'' adds specificity beyond that contained in the Federal 
regulations. We also find that while there is no direct Federal 
counterpart to the proposed rule, it implements the Federal requirement 
at 30 CFR 816/817.116(b)(1) and is no less effective than the Federal 
regulations.

[[Page 34820]]

Accordingly, we are approving Wyoming's revised definition.
3. Chapter 1, Section 2(bm); Definition of ``Husbandry Practice''
    Wyoming proposes to add a new definition for ``Husbandry practice'' 
to its rules at Chapter 1, Section 2(bm) that reads as follows:

    (bm) ``Husbandry practice'' means when preceded by the word 
``normal'', those management practices that may be used to achieve 
revegetation success without restarting the bond responsibility 
period. Normal husbandry practices are sound management techniques 
which are commonly practiced on native lands in the area of the mine 
and, if discontinued after the area is bond released, shall not 
reduce the probability of permanent vegetation success.

    Wyoming states that a definition of ``Husbandry practice'' is 
needed to support its proposed normal husbandry rules [Chapter 4, 
Section 2(d)(i)(M)], and explains that the new definition includes 
elements from the current ``Good husbandry practices'' definition at 
Chapter 1, Section 2(ao) that is proposed for deletion. Specifically, 
the second sentence of the proposed definition was moved from the 
current definition of ``Good husbandry practices'' in response to 
public comments. Wyoming also points out that the specific list of 
acceptable normal husbandry practices and their limitations, which are 
enforceable, are included in Chapter 4, Section 2(d)(i)(M).
    The Federal regulations at 30 CFR 816/817.116(b) state, in 
pertinent part, that ``Standards for [revegetation] success shall be 
applied in accordance with the approved postmining land use * * *.''
    The Federal regulations at 30 CFR 816.116(c)(1) require that the 
period of extended responsibility for successful revegetation shall 
begin after the last year of augmented seeding, fertilizing, 
irrigation, or other work, excluding husbandry practices that are 
approved by the regulatory authority in accordance with 30 CFR 
816.116(c)(4).
    The Federal regulations at 30 CFR 816.116(c)(4) state, in pertinent 
part, that management practices are normal husbandry practices ``if 
such practices can be expected to continue as part of the postmining 
land use or if discontinuance of the practices after the liability 
period expires will not reduce the probability of permanent 
revegetation success.''
    We are approving Wyoming's proposed definition of ``Husbandry 
practice,'' with the understanding that it be interpreted as achieving 
successful revegetation through ``normal husbandry practices'' in 
accordance with the approved postmining land use. We also find, based 
on the above understanding, that while there is no direct Federal 
counterpart definition to the proposed rule, it implements the Federal 
requirements at 30 CFR 816/817.116(b) and (c)(4) and is no less 
effective than the Federal regulations.
    Wyoming also proposes to delete its current definition of ``Good 
husbandry practices'' at Chapter 1, Section 2(ao) as being unnecessary 
and redundant because the proposed addition of the term ``normal'' has 
been included in the new definition for ``Husbandry practice.'' For the 
same reasons explained above, we approve the proposed deletion.
4. Chapter 1, Section 2(bu); Definition of ``Interseed''
    Wyoming proposes to add a new definition for ``Interseed'' to its 
rules at Chapter 1, Section 2(bu) that reads as follows:

    (bu) ``Interseed'' means a secondary seeding into established 
vegetation in order to improve composition, diversity or 
seasonality. Interseeding is done to enhance revegetation rather 
than to augment the revegetation that is unsuccessful in terms of 
germination, establishment, or permanence.

    Similar to Finding No. III.E.1. above for ``Augmented seeding,'' 
Wyoming states that a definition of ``Interseeding'' is needed to 
support its proposed normal husbandry rules [Chapter 4, Section 
2(d)(i)(M)(I)], and distinguish it from augmented seeding which 
restarts the bond responsibility period. OSMRE has previously approved 
the use of interseeding as a normal husbandry practice in both Colorado 
and New Mexico using similar language.
    We find that Wyoming's proposed definition provides specificity 
beyond that contained in the Federal regulations, appropriately 
distinguishes the differences between augmented seeding and 
interseeding, and is consistent with other state definitions and uses 
previously approved by OSMRE. We also find that while there is no 
direct Federal counterpart to the proposed rule it implements the 
Federal requirements at 30 CFR 816/817.116(c)(1) and (4), and is no 
less effective than the Federal regulations. Accordingly, we are 
approving Wyoming's proposed definition.
5. Chapter 1, Section 2(by)(ii); Definition of ``Pastureland''
    Wyoming proposes to revise its definition for ``Pastureland'' in 
its rules at Chapter 1, Section 2(by)(ii) to read as follows:

    (ii) ``Pastureland'' means land used primarily for the long-term 
production of adapted, domesticated forage plants to be grazed by 
livestock or occasionally cut and cured for livestock feed. In 
addition, for the purpose of determining premining land use, the 
relative cover of introduced perennial forage species must be 
greater than 40% of the relative cover of total vegetation in order 
for the land to be pastureland. If the full shrub density is greater 
than one shrub per square meter on those lands and the surface owner 
requests the lands to be eligible, the land use is still pastureland 
but the land is also ``eligible land'' in terms of shrub 
reclamation.

    Wyoming explains that the revised definition of pastureland is 
intended to identify land that has been altered in the past to better 
suit domestic grazing and haying purposes. Wyoming further states that 
it is recognized that many pasturelands have, since initial treatment, 
reverted back to a more native vegetation composition, including 
shrubs, which now also provide functional wildlife habitat as a pre-
mining land use. Thus, the distinction between pastureland and 
grazingland needs to be clear. Wyoming notes that the rule identifies 
the vegetative composition, including native forage and shrubs, that 
would distinguish treated lands as either pastureland or grazingland, 
and that since it is possible for land to be defined as pastureland and 
still have a functional shrub habitat component, the definition also 
identifies when pastureland is eligible for shrub reclamation. Lastly, 
Wyoming states that surface owner consent is required in addition to 
the requirement that shrub density be greater than one shrub per square 
meter for lands to become eligible lands. The surface owner consent 
requirement was added as a result of public comment and testimony 
during a Wyoming Environmental Quality Council rulemaking hearing.
    Wyoming's proposed revision specifies the amount of relative cover 
required of pastureland species in order for the vegetation community 
to be considered pastureland. The revision also specifies when pre-mine 
plant communities qualify as pastureland, and when pastureland is 
required (eligible) to meet the shrub density standard. We find that 
Wyoming's revised definition for pastureland adds specificity beyond 
that contained in the Federal definition and is no less effective than 
the counterpart Federal Regulation at 30 CFR 701.5. Accordingly, we are 
approving Wyoming's revised definition.

[[Page 34821]]

6. Chapter 1, Section 2(ct); Definition ``Surface Coal Mining and 
Reclamation Operations'' and deletion of the Term ``Surface'' in 
Chapters 1, 2, 4, and 5
    Wyoming proposes to delete the definition of ``surface coal mining 
and reclamation operations'' at Chapter 1, Section 2(ct), as well as 
the word ``surface'' throughout its rules in Chapters 1, 2, 4, and 5, 
respectively. Wyoming states that both the definition and term are 
being deleted because they are holdovers from when the coal and non-
coal rules were combined. Wyoming also notes in its SOPR that deletion 
of the word ``surface'' is necessary to eliminate potential confusion 
for underground coal operations because the same requirements apply for 
both surface and underground mines. At OSMRE's request, Wyoming 
provided additional justification for deleting its regulatory 
definition of ``surface coal mining and reclamation operations'' by 
explaining that similar definitions are included in its statutes for 
``Surface coal mining operation'' at 35-11-103(e)(xx) and 
``Reclamation'' at 35-11-103(e)(i). Wyoming concluded by noting that if 
the statute and regulation conflict, the statute would supersede the 
regulation; therefore redundant or duplicative regulations are removed 
when possible (Administrative Record Document ID No. OSM-2009-0012-
0010).
    OSMRE replied in a letter dated May 21, 2010, that Wyoming's 
regulatory definition of ``surface coal mining and reclamation 
operations,'' which was approved in its November 26, 1980, original 
program approval, is substantively identical to the Federal definitions 
found at Section 701(27) of SMCRA and 30 CFR 700.5. Additionally, 
Wyoming's statutory definition of ``surface coal mining operation,'' as 
approved by OSMRE on March 31, 1980, is substantively identical to the 
Federal definitions found at Section 701(28) of SMCRA and 30 CFR 700.5. 
Consequently, we determined that, like their Federal counterparts, 
Wyoming's definitions of ``surface coal mining and reclamation 
operations'' and ``surface coal mining operation'' are companion 
requirements that complement one another and do not conflict. We also 
informed Wyoming that its proposed deletions would result in continued 
use of the undefined terms ``coal mining and reclamation operations'' 
and ``coal mining operations'' throughout its rules. Therefore, in lieu 
of removing the definition of ``surface coal mining and reclamation 
operations'' we required that Wyoming propose definitions for ``coal 
mining operations'' and ``coal mining and reclamation operations'' that 
are consistent with and no less effective than the requirements of 
Federal counterpart definitions found at 30 CFR 700.5. In the absence 
of such definitions, we concluded that Wyoming's proposed deletions are 
less stringent than SMCRA and inconsistent with and less effective than 
the corresponding Federal regulations.
    Wyoming responded in a letter dated June 21, 2010, by stating its 
agreement with OSMRE that removal of the definition ``surface coal 
mining and reclamation operations'' and the term ``surface'' throughout 
Chapters 1, 2, 4, and 5 ``would result in Wyoming's continued use of 
the undefined terms.'' As a result, Wyoming replied that it will review 
the formally submitted rules for instances where the term ``surface'' 
was removed and reinsert that language as originally approved. Wyoming 
also stated that it would place the definition of ``surface coal mining 
and reclamation operations'' back in Chapter 1 as originally defined as 
part of its future Advisory Board rulemaking efforts.
    Based on the discussion above, we are not approving Wyoming's 
proposed rule changes deleting the definition of ``surface coal mining 
and reclamation operations'' at Chapter 1, Section 2(ct), and removing 
the term ``surface'' throughout its rules in Chapters 1, 2, 4 and 5. We 
also acknowledge Wyoming's commitment to reinstate the proposed 
deletions in a future rulemaking effort and are deferring our decision 
on them until such time as they are formally submitted to OSMRE for 
review.
7. Chapter 1, Section 2(dl); Definition of ``Reference Area'' and 
Subcategories ``Comparison Area,'' ``Control Area,'' ``Extended 
Reference Area,'' and ``Limited Reference Area''
    Wyoming proposes to revise its definition for ``Reference area'' in 
its rules at Chapter 1, Section 2(dl) to read as follows:

    (dl) ``Reference area'' means a land unit established to 
evaluate revegetation success. A ``Reference area'' is 
representative of a vegetation community or communities that will be 
affected by mining activities, in terms of physiography, soils, 
vegetation and land use history. The ``Reference area'' and its 
corresponding postmine vegetation community (or communities) must be 
approved by LQD and shall be defined in the approved Reclamation 
Plan. All ``Reference areas'' shall be managed to not cause 
significant changes in the vegetation parameters which will be used 
to evaluate Chapter 4 revegetation success performance standards. A 
``Reference area'' can be a ``Comparison area'', ``Control area'', 
``Extended reference area'', or ``Limited reference area'', 
depending on how it is established and used, in accordance with the 
following provisions:

    Wyoming states in its SOPR that ``Reference area'' is now defined 
as a general umbrella term for all types of areas used for measuring 
revegetation success. These include the current revised definitions for 
``comparison area,'' ``control area,'' ``extended reference area,'' and 
a newly-proposed definition for ``limited reference area,'' all of 
which are defined as subcategories under the reference area category. 
Wyoming explains that this allows ``reference area'' to serve as a 
generic term referring to all categories, which will facilitate clarity 
in rules and communication with the public and operators. Wyoming also 
notes that it combined the current revised and newly-proposed rules for 
``reference areas'' from Appendix A, and Chapters 1, 2, and 4 and 
placed them in Chapter 1 under the definitions noted below to make it 
easier to compare them.

    (i) ``Comparison area'' means a type of ``Reference area'' that 
is established after a vegetation community has been affected. A 
qualitative determination shall be used to evaluate if the proposed 
``Comparison area'' adequately represents the affected vegetation 
community. A ``Comparison area'' may be used when other types of 
``Reference areas'' are not available for measuring revegetation 
success or when other types of ``Reference areas'' will not be 
representative of revegetation success. ``Comparison areas'' shall 
be approved by the Administrator prior to their establishment. When 
evaluating Chapter 4 revegetation success performance standards, 
data from the ``Comparison areas'' are directly compared by 
statistical procedures to data from the reclaimed area.
    (ii) ``Control area'' means a type of ``Reference area'' that is 
established during baseline sampling. Quantitative comparisons of 
vegetation cover, total ground cover, and production between the 
proposed ``Control area'' and the vegetation community to be 
affected are used to demonstrate the representative nature of the 
``Control area''. When evaluating revegetation success, baseline 
data are climatically adjusted using equations. These adjusted data 
are directly compared by statistical procedures to vegetation data 
from the reclaimed area. The Administrator may determine to make a 
direct comparison without the climatic adjustment between the 
``Control area'' and the reclaimed area. Each ``Control area'' shall 
be at least two acres.

    Wyoming explains in its SOPR that ``Control areas'' have been 
deemed not the best technology because of their small size and will not 
be allowed for new permitted lands. However, mines that have ``Control 
areas'' currently approved will be allowed to continue to use them on 
currently permitted lands but will not be allowed to use ``Control

[[Page 34822]]

areas'' on lands amended into the permit after the effective date of 
these rules as per new rule Chapter 4, Sec. 2(d)(ii)(A)(I)(1). Wyoming 
also clarifies that the two acre size remains because these areas were 
selected under the current rules which require two acres.

    (iii) ``Extended reference area'' means a type of a ``Reference 
area'' that includes a major portion of one or more premine 
vegetation communities within the permit area. During baseline 
sampling, the ``Extended reference area'' includes areas proposed to 
be affected and areas that will be unaffected. Postmine, the 
unaffected areas constitute the ``Reference area'' for revegetation 
success evaluation. ``Extended reference areas'' should be 
established during baseline sampling, but in some circumstances, may 
be established after mining begins. The representative nature of the 
vegetation community within the ``Extended reference area'' is 
demonstrated by vegetation community mapping procedures, sampling 
data, soil data, physiography and land use history. To evaluate 
revegetation success, data from the ``Extended reference area'' are 
directly compared by the statistical procedures to data from the 
reclaimed area. Each ``Extended reference area'' will be as large as 
possible.
    (iv) ``Limited reference area'' is one type of a ``Reference 
area'' that is established during baseline sampling to represent one 
vegetation community to be reestablished. The representative nature 
of the ``Limited reference area'' is determined by quantitative 
comparisons of vegetation cover, and production between the 
``Limited reference area'' and proposed affected areas at the 90 
percent confidence level. To evaluate revegetation success, data 
from the ``Limited reference area'' are directly compared by 
statistical procedures to data from the reclaimed area. Each 
``Limited reference area'' shall be at least five acres.

    In order to alleviate the potential for confusion OSMRE notes that, 
with respect to vegetation, the term ``established'' generally infers 
the seeding, germination, and successful independent propagation of 
vegetation. Thus, we interpret the term ``established'' in Wyoming's 
proposed rules to mean those areas ``designated,'' ``delineated,'' and/
or ``identified'' as meeting a ''Reference area'' standard.
    Additionally, we interpret the five acre requirement for ``Limited 
Reference Areas'' to be a minimum requirement even if a valid 
statistical analysis indicates the validity of a smaller sized area; a 
minimum five acre requirement will help buffer the reference area from 
such things as edge and other effects.
    The Federal definition of ``Reference area'' is found at 30 CFR 
701.5 and reads as follows:

    Reference area means a land unit maintained under appropriate 
management for the purpose of measuring vegetation ground cover, 
productivity, and plant species diversity that are produced 
naturally or by crop production methods approved by the Regulatory 
authority. Reference areas must be representative of geology, soil, 
slope, and vegetation in the permit area.

    Wyoming's proposed definition for ``Reference area'' adds 
specificity beyond that contained in the Federal regulations. We also 
find that while there are no direct Federal counterparts to the 
proposed subcategory definitions for ``comparison area,'' ``control 
area,'' ``extended reference area,'' and ``limited reference area,'' 
they implement the Federal requirements at 30 CFR 816/817.116 and are 
no less effective than the Federal regulations. Accordingly, we are 
approving both Wyoming's revised and proposed definitions with the 
understanding that they be interpreted as explained above.
8. Chapter 2, Section 1(c); U.S. Geological Survey Topographic Map 
Scale Requirement
    Wyoming proposes to delete the requirement that maps the equivalent 
of a U.S. Geological Survey topographic map submitted with a permit 
application be no smaller than a scale of 1:24,000. In its SOPR, 
Wyoming states that ``the reference to a particular scale has been 
removed from rule and will be placed in a guideline. This will allow 
maximum flexibility to allow the scale be appropriate for the size of 
the mine or item depicted. The scale will still have to be acceptable 
to the Administrator to ensure its usefulness to the division.''
    By letter dated May 21, 2010, OSMRE responded that Section 
507(b)(13)(B) of SMCRA requires, in pertinent part, that:

permit applications shall be submitted in a manner satisfactory to 
the regulatory authority and shall contain, among other things, 
accurate maps to an appropriate scale clearly showing * * * all 
types of information set forth on topographic maps of the United 
States Geological Survey of a scale of 1:24,000 or 1:125,000 or 
larger, * * *.

    In addition, we stated that the counterpart Federal regulations at 
30 CFR 777.14(a) concerning the general requirements for maps and plans 
require, in pertinent part, that:

    Maps submitted with applications shall be presented in a 
consolidated format, to the extent possible, and shall include all 
the types of information that are set forth on topographic maps of 
the U.S. Geological Survey of the 1:24,000 scale series. * * * Maps 
of the adjacent area shall clearly show the lands and waters within 
those areas and be in a scale determined by the regulatory 
authority, but in no event smaller than 1:24,000.

    30 CFR Part 730 sets forth criteria and procedures for amending 
approved programs to be no less stringent that SMCRA and no less 
effective than the Federal regulations, and does not contemplate the 
use of guidelines in lieu of counterpart State laws and regulations. 
Thus, we determined that Wyoming's proposal to remove the scale 
requirement from its currently approved rules and place it in a 
guideline renders its program less stringent than SMCRA and less 
effective than the Federal regulations, and concluded that Wyoming must 
retain the 1:24,000 scale requirement at Chapter 2, Section 1(c) for 
maps that are submitted with permit applications.
    Wyoming replied in a letter dated June 21, 2010, that it will 
submit a rule package to the Advisory Board that will put the 1:24,000 
scale requirement back into its rules at Chapter 2, Section 1(c).
    Based on the discussion above, we are not approving Wyoming's 
proposed rule change deleting the 1:24,000 scale requirement at Chapter 
2, Section 1(c) for maps that are submitted with permit applications. 
We also acknowledge Wyoming's commitment to reinstate the proposed 
deletion in a future rulemaking effort and are deferring our decision 
on it until such time as the rule is formally submitted to OSMRE for 
review.
9. Chapter 2, Section 3(a)-(m); Vegetation Baseline Requirements
    Wyoming proposes to add a new section to its rules at Chapter 2, 
Section 3 entitled ``Vegetation Baseline Requirements.''
    In its SOPR, Wyoming states that Section 3, Vegetation Baseline 
Requirements, is almost entirely new language for Chapter 2. Wyoming 
explains that most of these rules are relocated from Appendix A, and 
include rules on mapping, sampling, species inventory, and vegetation 
community descriptions. Wyoming continues that the concepts contained 
in the current Appendix A and elsewhere in Chapters 2 and 4 were 
combined and presented in a single location to provide clarity and 
consistency to maps provided to the LQD for review. Wyoming maintains 
that the new section includes rules that assimilate and clarify the 
requirements applicable to the mapping of vegetation communities, and 
states that terminology used by the Natural Resources Conservation 
Service may be used to describe the vegetation communities. The rules 
contain a requirement that locations of certain weeds be shown on the 
map, and Wyoming states that this has been the normal practice but it 
is now clarified in the rules. Wyoming also proposes to reduce baseline 
measurement

[[Page 34823]]

requirements for plant communities that have already been thoroughly 
described in previous baseline studies and proposes to add new rules on 
shrub standard option selection and sample sizes. Additionally, the 
requirement for production measurements was eliminated for baseline 
sampling unless the operator is developing a technical standard or the 
vegetation community has not been described adequately in the past. 
Wyoming explains that a semi-quantitative method is proposed for areas 
where the LQD has numerous data sets that describe in detail the pre-
mine vegetation communities.
    The Federal regulations at 30 CFR 779.19 concerning the general 
requirements for collecting information on plant communities to 
document pre-mine baseline vegetation conditions require that:

    (a) The permit application shall, if required by the regulatory 
authority, contain a map that delineates existing vegetative types 
and a description of the plant communities within the proposed 
permit area and within any proposed reference area. This description 
shall include information adequate to predict the potential for 
reestablishing vegetation.
    (b) When a map or aerial photograph is required, sufficient 
adjacent areas shall be included to allow evaluation of vegetation 
as important habitat for fish and wildlife for those species of fish 
and wildlife identified under 30 CFR 780.16.

    Furthermore, the Federal regulations at 30 CFR 816/817.116 require 
the use of statistically valid sampling techniques to ensure that that 
all revegetation meet or exceed success standards--including criteria 
representative of unmined lands in the area being reclaimed to evaluate 
the appropriate vegetation parameters of ground cover, production, or 
stocking--for purposes of achieving bond release, regardless of whether 
technical standards or comparisons to reference areas are used. All 
approved State programs must maintain counterparts to these key 
nationwide minimum protections.
    Therefore, any methods used to designate a reference area for 
comparison to reclaimed areas and demonstrate revegetation success at 
the time of bond release should also use valid methods of comparison 
during such designation and during the success standard demonstration.
    In its SOPR, Wyoming acknowledges this requirement, in part, by 
stating that ``With the exception of shrubs which have special rules * 
* *, the baseline data collected by quantitative methods are not used 
to develop bond release standards unless a technical standard is being 
developed because reference areas are used instead when a technical 
standard is not. The development of technical standards requires the 
use of data that are collected by specified methods that ensures the 
data is representative of the vegetation community. Quantitative 
methods are also appropriate for those mining areas that have 
vegetation communities that have not been fully described by previous 
baseline studies.''
    Wyoming's proposed amendment relocates and combines existing 
previously approved rules from former Appendix A and Chapters 2 and 4 
in a single location to maintain organizational continuity and provide 
clarity and consistency regarding mapping, sampling, species inventory, 
and vegetation community descriptions. Moreover, Wyoming's newly-
proposed rules on shrub standard option selection and sample sizes 
provide specificity beyond that contained in the Federal regulations. 
We find that Wyoming's explanation justifying the addition of these new 
provisions in Chapter 2, Section 3 is reasonable, and the lack of exact 
Federal counterpart requirements do not render them less effective than 
the Federal regulations. Accordingly, we are approving them.
10. Chapter 2, Section 4(a)(xvii); Public Availability of Permit 
Applications and Confidentiality
    In an October 29, 1992, Federal Register (57 FR 48987) notice, we 
required Wyoming to further amend its regulations regarding procedures, 
including notice and opportunity to be heard for persons seeking 
disclosure, to ensure confidentiality of qualified information, which 
shall be clearly identified by the by the applicant and submitted 
separately from the remainder of the application as required by the 
Federal regulations at 30 CFR 773.13(d)(3). The Federal rules 
concerning Public Participation in Permit Processing were subsequently 
amended and redesignated as 30 CFR 773.6 in a Federal Register notice 
dated December 19, 2000 (65 FR 79663). Consequently, the rules 
addressing confidentiality are now found at 30 CFR 773.6(d)(3).
    In response to the required program amendment at 30 CFR 950.16(u), 
Wyoming proposes to revise its rules at Chapter 2, Section 4(a)(xvii) 
regarding procedures for protecting the confidentiality of qualified 
archeological information to read as follows:

    (xvii) Boundaries and descriptions of all cultural, historic and 
archaeological resources listed on, or eligible for listing on, the 
National Register of Historic Places. In compliance with the 
Archaeological Resources Protection Act of 1979 (P.L. 96-95), this 
information shall not be placed on display at the county clerk's 
office (as required by W.S. Sec.  35-11-406(d)) where such resources 
occur on lands owned by the United States. This information shall be 
clearly labeled as ``Confidential'' and submitted separately from 
the remainder of the application materials. Requests to disclose 
confidential information shall be administered under the Department 
of Environmental Quality, Rules of Practice and Procedure, the 
Wyoming Public Records Act (W.S. Sec. Sec.  16-4-2001 thru 16-4-2005 
(2007)) and the Wyoming Environmental Quality Act (2007).

    In its SOPR, Wyoming explains that the proposed rule language 
clarifies that information related to the nature and location of 
archeological resources on public lands shall be submitted separately 
from other application materials, and outlines the procedures which 
govern requests to disclose information that has been submitted as 
confidential. Wyoming further notes that the proposed language 
references the Department of Environmental Quality Rules of Practice 
and Procedure, the Wyoming Public Records Act, and the Environmental 
Quality Act to more clearly identify the applicable standards regarding 
the administration of requests for confidential information.
    Although Wyoming's rationale for making the rule change is sound, 
the proposed language referencing its Public Records Act contains an 
incorrect citation wherein W.S. Sec. Sec.  16-4-2001 thru 16-4-2005 
(2007) is referenced rather than W.S. Sec. Sec.  16-4-201 thru 16-4-205 
(2007). For this reason, we are not approving Wyoming's proposed rule 
revision rule regarding administrative procedures to ensure 
confidentiality of qualified archaeological information and the 
required program amendment at 30 CFR 950.16(u) remains outstanding.
11. Chapter 2, Section 5(a)(viii)(A); Fish and Wildlife Enhancement 
Measures
    In a July 8, 1992, Federal Register (57 FR 30124), we placed a 
required program amendment on Wyoming at 30 CFR 950.16(p) that 
discussed two distinct items. The first item required Wyoming to revise 
its rules at former Chapter 2, Section 3(b)(iv)(A) or otherwise amend 
its program to specify that, when fish and wildlife enhancement 
measures are not included in a proposed permit application, the 
applicant must provide a statement explaining why such measures are not 
practicable. The second item required that the rule be revised to 
clarify that fish and wildlife enhancement measures are not limited to 
revegetation efforts.

[[Page 34824]]

    In response to questions from OSMRE regarding the underlying 
rationale for not revising or amending its rules in response to 30 CFR 
950.16(p), Wyoming explains that it informally submitted rule language 
[in a January 28, 1993, letter] that was intended to resolve the 
required program amendment. By letter dated April 12, 1993, OSMRE found 
that the proposed language was less effective than the Federal 
counterpart regulations, and it appears that Wyoming never attempted to 
revise the language and promulgate it anytime after the 1993 comment 
letter. Consequently, Wyoming states that it did not draft any specific 
language to address the required amendment in this rule package.
    Rather, Wyoming provides additional clarification and suggests that 
the current requirements of Chapter 2, Section 5(a)(viii)(B) (former 
Chapter 2, Section 3(b)(iv)(B)) and Chapter 4, Section 2(r) (former 
Chapter 4, Section 3(o)), respectively, address the required program 
amendment. Wyoming continues that OSMRE's April 12, 1993, comment 
letter directed it to clarify that wildlife enhancement was not limited 
to revegetation efforts. Wyoming also states that the deficient 
language is now found in Chapter 2, Section 5(a)(viii)(A) and it has 
not changed. However, Wyoming submits that the language in subsection 
(B) makes clear that enhancement efforts are not limited to 
revegetation because this section goes on to clarify that the applicant 
must show how certain habitat components and features will be 
``protect[ed] or enhance[d].'' This would include important habitats 
such as wetlands, riparian areas, rimrocks, and other special habitat 
features. Wyoming also notes that the wildlife performance standards 
contained in Chapter 4, Section 2(r) speaks to things other than 
vegetation (Administrative Record Document ID No. OSM-2009-0012-0009).
    We replied in a letter dated May 21, 2010, that OSMRE's April 12, 
1993, comment letter in response to Wyoming's informal rule proposal 
stated that ``the existing rules at Chapter II, Section 3(b)(iv)(A) 
appear to limit enhancement only to revegetation efforts in Chapter IV, 
Section 3(o).'' We also noted that this ``is confusing since the rules 
at Chapter IV, Section 3(o) refer to many enhancement features in 
addition to revegetation enhancement which is specifically located at 
Chapter IV, Section 3(o) (D). Thus, it appears that removal of the 
existing language ``through successful revegetation'' * * * would allow 
enhancement features to include all the items in Chapter IV, Section 
3(o).'' Notwithstanding Wyoming's reference to Chapter 2, Section 
5(a)(viii)(B) our position remains unchanged from the April 12, 1993, 
comment letter. The July 8, 1992, Federal Register (57 FR 30124) 
specifically identified former Chapter 2, Section 3(b)(iv)(A) as being 
the deficient provision in Wyoming's rules, and Wyoming states that the 
problematic language has not changed. For these reasons, we continue to 
interpret current Chapter 2, Section 5(a)(viii)(A) as limiting the 
scope of enhancement measures to revegetation efforts and concluded 
that Wyoming's explanation does not satisfy the program deficiency 
specified in 30 CFR 950.16(p).
    Next, Wyoming submits that while it did not specifically add a 
provision requiring a statement from the applicant when that person did 
not include enhancement efforts in a proposed permit application, 
Chapter 2, Section 5(a)(viii)(B) requires a statement of how the 
applicant will ``utilize monitoring methods as specified in Appendix B 
* * * and impact control measures and management techniques to protect 
and enhance'' wildlife habitats and features. Wyoming also asserts that 
Chapter 4, Section 2(r) requires the operator to the extent possible 
using the best technology currently available minimize disturbance and 
impacts and achieve enhancement of such resources when practicable. 
Accordingly, Wyoming believes that the combination of these two 
sections is no less effective than the Federal regulations because the 
rules are written as affirmative duties on the part of the applicant 
and are required as part of the