Wyoming Regulatory Program, 17863-17868 [2014-07106]
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Federal Register / Vol. 79, No. 61 / Monday, March 31, 2014 / Rules and Regulations
acts of an employer with respect to all of the
wages Corporation P paid to the individuals
performing services for Employer for all
quarters of 2015. Employer and Corporation
P are each subject to all provisions of law
(including penalties) applicable in respect of
employers for all quarters of 2015 with
respect to such wages.
(5) Example 5. Same facts as Example 1,
except that after Corporation P reports the
wage and tax amounts on Form 941,
Employer’s QUARTERLY Federal Tax
Return, filed for each quarter of 2015 under
Corporation P’s employer identification
number, Corporation P files a claim for
refund of the employment taxes it paid for
each quarter of 2015 that are related to wages
Corporation P paid to the individuals
performing services for Employer. The basis
for Corporation P’s refund claim is that
Corporation P is not the employer of the
individuals that performed services for
Employer. Corporation P is designated to
perform the acts of an employer with respect
to all of the wages Corporation P paid to the
individuals performing services for Employer
for all quarters of 2015. Accordingly,
Corporation P is not entitled to a refund.
Employer and Corporation P are each subject
to all provisions of law (including penalties)
applicable in respect of employers for all
quarters of 2015 with respect to such wages.
(6) Example 6. Corporation S enters into an
agreement with Employer, effective January
1, 2015. Under the agreement, Corporation S
provides payroll services, including payment
of wages to individuals performing services
for Employer, and assumes responsibility for
the collection, reporting, and payment of
applicable taxes. For all pay periods in 2015,
Employer provides Corporation S with an
amount equal to the gross payroll (that is,
wage and tax amounts) of the individuals,
and Corporation S pays wages (less the
applicable withholding) to the individuals
performing services for Employer.
Corporation S also reports the wage and tax
amounts on Form 941, Employer’s
QUARTERLY Federal Tax Return, filed for
each quarter of 2015 under Employer’s
employer identification number. Corporation
S is not designated to perform the acts of an
employer with respect to all of the wages
Corporation S paid to the individuals
performing services for Employer for all
quarters of 2015. Corporation S did not assert
it was the employer and filed Forms 941
using Employer’s employer identification
number. Accordingly, Corporation S is not
liable for the applicable employment taxes
under this section. Employer remains subject
to all provisions of law (including penalties)
applicable in respect of employers for all
quarters of 2015 with respect to such wages.
(7) Example 7. Corporation T enters into a
consulting agreement with Manufacturer
effective January 1, 2015, to provide
consulting services to Manufacturer.
Corporation T is responsible to pay wages to
the individuals providing the consulting
services to Manufacturer and to collect,
report, and pay the applicable taxes.
Corporation T has the right to direct and
control the individuals as to when and how
to perform the consulting services and, thus,
is the common law employer of the
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individuals providing the consulting
services. Corporation T is not designated to
perform the acts of an employer with respect
to all of the wages Corporation T pays to
individuals providing consulting services to
Manufacturer. However, as the common law
employer of the individuals, Corporation T is
subject to all provisions of law (including
penalties) applicable in respect of employers
with respect to such wages.
(8) Example 8. On January 1, 2015,
Corporation U enters into an agreement with
Employer for Employer to farm Corporation
U’s property. Under the agreement,
Corporation U and Employer agree to split
the proceeds of the sale of the products
grown on the property. Employer hires
workers to assist it with the farming.
Employer has the right to direct and control
the workers as to when and how to perform
the services and, thus, is the common law
employer of the workers. However, Employer
is unable to pay the workers until after the
products are sold. Therefore, Corporation U
pays wages to the workers and deducts this
amount from Employer’s share of the profits.
Corporation U controls the payment of wages
within the meaning of section 3401(d)(1).
Corporation U is not designated to perform
the acts of an employer with respect to all of
the wages Corporation U paid to workers
providing services for Employer. However, as
the section 3401(d)(1) employer of the
workers performing services for Employer,
Corporation U is subject to all provisions of
law (including penalties) applicable in
respect of employers with respect to such
wages.
(9) Example 9. Corporation V and
Employer execute and submit a Form 2678,
Employer/Payer Appointment of Agent, to
the Service, requesting approval to authorize
Corporation U to report, deposit, and pay
taxes with respect to wages it pays, as agent
of Employer for purposes of Form 941,
Employer’s QUARTERLY Federal Tax
Return. The Form 2678 is approved by the
Service and effective for all quarters of 2015.
Accordingly, Corporation V reports the wages
it pays to individuals performing services for
Employer and related tax amounts on Form
941 and Schedule R (Form 941), Allocation
Schedule for Aggregate Form 941 Filers, filed
for each quarter of 2015 under Corporation
V’s employer identification number.
Corporation V is not designated under this
section to perform the acts of an employer
with respect to all of the wages Corporation
V paid to the individuals performing services
for Employer for all quarters of 2015.
However, as an agent authorized under
§ 31.3504–1(a), Corporation V is subject to all
provisions of law (including penalties)
applicable in respect of employers for all
quarters of 2015 with respect to such wages.
Employer also remains subject to all
provisions of law (including penalties)
applicable in respect of employers for all
quarters of 2015 with respect to such wages.
(f) Effective/applicability date. These
final regulations are effective for wages
or compensation paid by a payor in
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17863
quarters beginning on or after March 31,
2014.
John Dalrymple,
Deputy Commissioner for Services and
Enforcement.
Approved: March 20, 2014.
Mark J. Mazur,
Assistant Secretary of the Treasury (Tax
Policy).
[FR Doc. 2014–07152 Filed 3–28–14; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation
and Enforcement
30 CFR Part 950
[SATS No: WY–044–FOR; Docket ID: OSM–
2013–0001; S1D1SSS08011000
SX066A00067F144S180110;
S2D2SSS08011000SX066A00033
F14XS501520]
Wyoming Regulatory Program
Office of Surface Mining
Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of
amendment with certain exceptions.
AGENCY:
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 and
disapproves in part the amendment.
Wyoming proposes revisions to rules
concerning valid existing rights and
individual civil penalties. Wyoming
revised its program to be consistent with
the corresponding Federal regulations
and SMCRA, clarify ambiguities, and
improve operational efficiency.
DATES: Effective Date: March 31, 2014.
FOR FURTHER INFORMATION CONTACT:
Jeffrey Fleischman, Chief, Denver Field
Division, Telephone: 307–261–6550,
Internet address: jfleischman@
OSMRE.gov.
SUMMARY:
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and
Enforcement’s (OSM’s) Findings
IV. Summary and Disposition of Comments
V. OSM’s Decision
VI. Procedural Determinations
I. Background on the Wyoming
Program
Section 503(a) of the Act permits a
State to assume primacy for the
regulation of surface coal mining and
reclamation operations on non-Federal
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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 January 4, 2013,
Wyoming sent us a proposed
amendment to its approved regulatory
program (Administrative Record Docket
ID No. OSM–2013–0001) under SMCRA
(30 U.S.C. 1201 et seq.). Wyoming
submitted the amendment in response
to a concern letter OSM sent relating to
valid existing rights (VER) and a Federal
Register notice (78 FR 10512) that
disapproved several VER rule changes
that were required by an April 2, 2001,
letter we sent in accordance with 30
CFR 732.17(c) (‘‘732 letter’’). That letter
required Wyoming to submit
amendments to ensure its program
remains consistent with the Federal
program. This amendment package is
intended to address all remaining
required rule changes pertaining to VER.
Wyoming also proposes changes to its
rules for individual civil penalties that
were disapproved in the Federal
Register notice.
We announced receipt of the
proposed amendment in the March 14,
2013, Federal Register (78 FR 16204). 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–2013–0001–0001). We did not
hold a public hearing or meeting
because no one requested one. The
public comment period ended on April
15, 2013. We received comments from
two Federal agencies (discussed under
‘‘IV. Summary and Disposition of
Comments’’).
During our review of the amendment,
we identified concerns regarding
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Wyoming’s proposed rule changes in
response to a November 7, 1988, 732
letter and the Federal Register notice
(78 FR 10512, 10518) concerning its
newly-proposed rules at Chapter 16,
Section 4(c)(i)(A) imposing criteria that
shall be considered when determining
the amount of an individual civil
penalty to be assessed, and its proposed
revisions at Chapter 12, Section
1(a)(vii)(F) regarding availability of
records in response to the April 2, 2001,
732 letter. We notified Wyoming of
these concerns by letter dated June 24,
2013 (Administrative Record Document
ID No. OSM–2013–0001–0010).
We delayed final rulemaking to afford
Wyoming the opportunity to submit
new material to address the
deficiencies. Wyoming responded in a
letter dated August 5, 2013, that it could
not currently submit additional formal
revisions to the amendment due to the
administrative rulemaking requirements
for promulgation of revised substantive
rules (Administrative Record Document
ID No. OSM–2013–0001–0011).
Specifically, Wyoming explained that
the required changes would be
considered substantive in nature and
therefore the Land Quality Division
(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
OSM 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. OSM’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, OSM 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
regulations in meeting the requirements
of SMCRA.
Following are the findings we made
concerning the amendment under
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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. Revisions to Wyoming’s Rules That
Have the Same Meaning as the
Corresponding Provisions of the Federal
Regulations
1. Wyoming proposes additions and
revisions to the following rules
containing language that are the same as
or similar to the corresponding sections
of the Federal regulations and/or
SMCRA. Therefore we are approving
them.
Chapter 12, Section 1(a)(v)(D); VER
Permitting Procedures; public road
waivers [30 CFR 761.14 (b) and (c)];
Chapter 12, Section 1(a)(vii)(A)(I);
VER Submission Requirements and
Procedures; requests for VER
determinations and property rights
demonstrations [30 CFR 761.16(b)(1)];
Chapter 12, Section 1(a)(vii)(A)(IV);
VER Submission Requirements and
Procedures; requests for VER
determinations and standards for mine
roads; [30 CFR 761.16(b)(4)];
Chapter 12, Section 1(a)(vii)(B)(I);
VER Submission Requirements and
Procedures; initial review of VER
request; [30 CFR 761.16(c)(1)];
Chapter 12, Section 1(a)(vii)(B)(IV);
VER Submission Requirements and
Procedures; initial review of VER
request; [30 CFR 761.16(c)(4)];
Chapter 12, Section
1(a)(vii)(C)(I)(3.)(a)–(d); VER Submission
Requirements and Procedures; VER
notice and comment requirements; [30
CFR 761.16(d)(1)(iii)(A)–(C) and (iv)];
Chapter 12, Section 1(a)(vii)(C)(II)(2.);
VER Submission Requirements and
Procedures; VER notice and comment
requirements; [30 CFR 761.16(d)(2)(ii)];
Chapter 12, Section 1(a)(vii)(C)(III);
VER Submission Requirements and
Procedures; VER notice and comment
requirements; [30 CFR 761.16(d)(3)];
Chapter 12, Section 1(a)(vii)(D)(I);
VER Submission Requirements and
Procedures; how a VER decision will be
made; [30 CFR 761.16(e)(1)];
Chapter 12, Section 1(a)(vii)(D)(III)(1.)
and (2.); VER Submission Requirements
and Procedures; how a VER decision
will be made; [30 CFR 761.16(e)(3)(i)
and (ii)];
Chapter 12, Section
1(a)(vii)(G)(III)(2.); VER Submission
Requirements and Procedures;
procedures for joint approval of surface
coal mining operations that will
adversely affect publicly owned parks or
historic places; [30 CFR 761.17(d)(3)(ii)];
Chapter 16, Section 4(a)(iii);
Individual Civil Penalties; definition of
‘‘Willfully;’’ [30 CFR 701.5]; and
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Chapter 16, Section 4(b)(i); Individual
Civil Penalties; when an individual civil
penalty may be assessed; [30 CFR
846.12(a)].
2. Chapter 1, Section 2(fl)(ii)(B)(IV);
Definition of ‘‘Needed for and adjacent
standard.’’
In a previous rulemaking action (WY–
040–FOR), Wyoming proposed a new
‘‘Needed for and adjacent standard’’
definition at Chapter 1, Section
2(fl)(ii)(B) in response to Item B–5 of
OSM’s April 2, 2001, 732 letter.
Subsection (IV) of the definition
included a requirement that, when
evaluating if a person meets that
standard, the agency making the
decision may consider ‘‘Whether the
land lies within the area identified on
the life-of-mine map submitted before
the land came under the protection of
30 CFR 761.11 (2009).’’ OSM
subsequently disapproved proposed
subsection (IV) in a February 14, 2013,
Federal Register notice (78 FR 10512,
10514) because the Federal counterpart
provision at 30 CFR 761.5(b)(2)(iv)
includes specific citation crossreferences requiring the submission of a
life-of-mine map as part of a permit
application. As a result, we required
Wyoming to revise the proposed rule
language to specify the applicable
counterpart permit application reference
for requiring the submission of life-ofmine maps.
In response to the February 14, 2013,
disapproval, Wyoming now proposes to
revise its rule at Chapter 1, Section
2(fl)(ii)(B)(IV) to include specific
citation cross-references requiring the
submission of a life-of-mine map as part
of a permit application. Wyoming’s
proposed rule change makes its rule
consistent with and no less effective
than the Federal counterpart provision
at 30 CFR 761.5(b)(2)(iv) and satisfies
Item B–5 of the April 2, 2001, 732 letter.
Accordingly, we approve it.
3. Chapter 1, Section 2(fl)(iii); VER
standards for roads.
In a previous rulemaking action (WY–
040–FOR), Wyoming proposed a new
rule at Chapter 1, Section 2(fl)(iii) to
apply the VER standard to all roads in
response to Item B–5 of OSM’s April 2,
2001, 732 letter. However, the proposed
rule language referred to roads included
within a ‘‘surface mining operation.’’
OSM subsequently disapproved
proposed subsection (iii) in a February
14, 2013, Federal Register notice (78 FR
10512, 10515) because the Federal
counterpart provision at 30 CFR
761.5(c), as well as the remainder of
Wyoming’s rules refer to ‘‘surface coal
mining operations.’’ As a result, we
required Wyoming to revise its
proposed rule language at Chapter 1,
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Section 2(fl)(iii)) to include the term
‘‘coal.’’
In response to the February 14, 2013,
disapproval, Wyoming now proposes to
revise its rule at Chapter 1, Section
2(fl)(iii) to apply the VER standard to
roads included within a ‘‘surface coal
mining operation.’’ It should also be
noted that Wyoming’s statutory
definition of ‘‘surface coal mining
operation’’ at W.S. § 35–11–103(e)(xx)
was approved by OSM on March 31,
1980, and is substantively identical to
the Federal definitions found at Section
701(28) of SMCRA and 30 CFR 700.5,
respectively. Wyoming’s proposed
language makes its rule consistent with
and no less effective than the Federal
counterpart provision at 30 CFR 761.5(c)
and satisfies Item B–5 of the April 2,
2001, 732 letter. Accordingly, we
approve the proposed rule change.
4. Chapter 12, Section 1(a)(vii)(E);
Administrative and judicial review.
In a previous rulemaking action (WY–
040–FOR), Wyoming proposed to add
requirements to its rules at Chapter 12,
Section 1(a)(vii)(E) providing for
administrative and judicial review of
VER determinations in response to Item
G–1 of OSM’s April 2, 2001, 732 letter.
OSM subsequently disapproved
proposed subsection (E) in a February
14, 2013, Federal Register notice (78 FR
10512, 10517) because Wyoming did not
provide a counterpart reference to the
Federal requirements in 30 CFR
761.16(f) regarding the procedures
pertaining to administrative and judicial
review. As a result, we required
Wyoming to revise its proposed rule
language at Chapter 12, Section
1(a)(vii)(E) by adding a reference to the
Wyoming Administrative Procedure
Act.
In response to the February 14, 2013,
disapproval, Wyoming now proposes to
revise its rules at Chapter 12, Section
1(a)(vii)(E) by including a reference to
its statutes at W.S. § 16–3–101 through
16–3–115 of the Wyoming
Administrative Procedure Act
concerning administrative (contested
case) and judicial review. Wyoming’s
reference to its statutes pertaining to
administrative and judicial review in
place of the corresponding Federal
requirements does not render proposed
subsection (E) less effective than the
Federal regulations at 30 CFR 761.16(f).
For these reasons, Wyoming’s proposed
rule change satisfies Item G–1 of the
April 2, 2001, 732 letter and we approve
it.
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B. Revisions to Wyoming’s Rules That
Are Not the Same as the Corresponding
Provisions of the Federal Regulations
1. Chapter 1, Section 2(fl); Definition
of ‘‘Valid Existing Rights.’’
Item B–1 of OSM’s April 2, 2001, 732
letter required Wyoming to revise its
definition of VER at Chapter 1, Section
2(fl) by adding an explanation of the
operation of VER. In response, Wyoming
proposed to revise its rules at Chapter
1, Section 2(fl) in a previous rulemaking
action (WY–040–FOR) by adding a basic
conceptual definition of VER and noting
that operations on prohibited or limited
areas under VER are still subject to the
remainder of SMCRA regulations. OSM
subsequently disapproved the revised
VER definition at Chapter 1, Section
2(fl) in a February 14, 2013, Federal
Register notice (78 FR 10512, 10517)
because Wyoming did not include
Federal counterpart language stating
that ‘‘Possession of valid existing rights
only confers an exception from the
prohibitions of § 761.11 and 30 U.S.C.
1272(e).’’ Consequently, we required
Wyoming to add the ‘‘exception’’
language to its proposed definition of
VER.
In response to the February 14, 2013,
disapproval, Wyoming proposed to
revise its rules at Chapter 1, Section 2(fl)
by specifying that ‘‘Possession of valid
existing rights only confers an exception
from the prohibitions of 30 CFR 761.11
and Section 522(e) of P.L. 98–87.’’
Unfortunately, the proposed language
referencing SMCRA contains an
incorrect citation wherein ‘‘P.L. 98–87’’
is referenced rather than ‘‘P.L. 95–87.’’
For this reason, we are not approving
Wyoming’s proposed rule revision.
2. Chapter 12, Section 1(a)(vii)(F);
Availability of records.
Item G–4 of OSM’s April 2, 2001, 732
letter required Wyoming to submit
counterpart provisions to 30 CFR
761.16(g) regarding availability of
records requirements. In response,
Wyoming proposed to revise its rules at
Chapter 12, Section 1(a)(vii)(F) in a
previous rulemaking action (WY–040–
FOR) by requiring that the Division or
agency responsible for processing a VER
request shall make a copy of the request
and related materials available to the
public. OSM subsequently disapproved
proposed subsection (F) in a February
14, 2013, Federal Register notice (78 FR
10512, 10517) because Wyoming did not
specify in the heading that the rule
pertains to ‘‘Availability of records’’ and
did not provide counterpart language to
the Federal requirements in 30 CFR
761.16(g) explaining that, in addition to
the VER request and related materials,
records associated with any subsequent
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VER determination shall also be made
available to the public. As a result, we
required Wyoming to revise its
proposed rule language at Chapter 12,
Section 1(a)(vii)(F) by making the
aforementioned changes.
In response to the February 14, 2013,
disapproval, Wyoming proposed to
revise its rules at Chapter 12, Section
1(a)(vii)(F) by specifying that the rule
pertains to ‘‘Availability of records.’’ In
addition, Wyoming proposed language
explaining that, in addition to the VER
request and related materials, records
associated with any subsequent VER
determination under subsection (D) of
its rules shall be made available to the
public in accordance with the
requirements and procedures of W.S.
§ 35–11–1101.
OSM replied in a letter dated June 24,
2013, that 30 CFR 761.16(g) requires the
agency responsible for processing VER
determination requests to make a copy
of the request available to the public in
the same manner as it makes permit
applications available under 30 CFR
773.6(d). The responsible agency must
also make records associated with the
VER request and any subsequent
determination available to the public in
accordance with the requirements and
procedures of 30 CFR 840.14.
Wyoming’s proposed rule language
requires the Division to make a copy of
a VER request and related materials
available to the public in the same
manner as public availability of permit
applications under its rules and
regulations. Wyoming’s regulatory
counterpart to 30 CFR 773.6(d)(1)
regarding public availability of permit
applications is found at Chapter 12,
Section 1(b) and requires, in pertinent
part, that all procedural requirements of
the Act and the regulations relating to
review, public participation, and
approval or disapproval of permit
applications, and permit term and
conditions shall, unless otherwise
provided, apply to permit revisions,
amendments, renewals and permit
transfer, assignment or sale of permit
rights.
Wyoming’s statutory provisions
regarding availability of records to the
public and confidentiality are found at
W.S. § 35–11–1101(a) and (b) of the
Wyoming Environmental Quality Act.
Subsection (a) holds that any records,
reports or information obtained under
the Wyoming Environmental Quality
Act or the rules, regulations and
standards promulgated thereunder are
available to the public, unless a
satisfactory showing is made to the
director by any person that his records,
reports or information or particular
parts thereof would divulge trade
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secrets if made public. If such a showing
is satisfactory, the director and
administrators shall consider the
records, reports or information or
particular portions thereof confidential
in the administration of the Act.
Subsection (b) states that nothing shall
be construed to prevent disclosure of
any records, reports or information to
Federal, state or local agencies
necessary for the purposes of
administration of any Federal, state or
local air, water or land control measures
or regulations or when relevant to any
proceedings under the act.
While W.S. § 35–11–1101 meets some
of the requirements of 30 CFR 840.14, it
fails to satisfy all of them. In particular,
30 CFR 840.14(b) specifies that the
regulatory authority shall make copies
of all records immediately available to
the public in the area of mining until at
least five years after the expiration of
the period during which the operation
is active or is covered by any portion of
a reclamation bond. Since W.S. § 35–
11–1101 fails to include a similar
provision, we found that Wyoming’s
reference to the statute does not satisfy
the requirements of 30 CFR 840.14 as
referenced in 30 CFR 761.16(g) and
newly-proposed subsection (F) remains
less effective than the Federal
regulations.
Wyoming responded in a letter dated
August 5, 2013, by stating its belief that
the current record retention
requirements and public records acts for
the State may already satisfy the public
availability requirements of 30 CFR
840.14(b). As a result, Wyoming stated
that the LQD will examine other
statutory requirements and records
retention requirements for the agency,
and will provide the results of that
examination to OSM in order to discuss
whether the requested revision is still
necessary in light of the information
provided. Wyoming concluded by
noting that if it is determined that the
rules are still deficient the LQD will
draft rules to address OSM’s concern.
For the reasons discussed above, we
are not approving Wyoming’s newlyproposed rule at Chapter 12, Section
1(a)(vii)(F) concerning requirements for
making VER requests and related
materials available to the public. We
also acknowledge Wyoming’s desire to
examine other statutory and records
retention requirements to determine
compliance with 30 CFR 840.14(b), and
its commitment to revise its rules and
address OSM’s concerns in a future
rulemaking effort if required as a result
of that examination.
3. Chapter 16, Section 4(c)(i); Amount
of Civil Penalty.
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In a November 7, 1988, 732 letter,
OSM notified Wyoming that its rules
concerning individual civil penalties
were deficient. In a previous rulemaking
action (WY–040–FOR), Wyoming
proposed new rules at Chapter 16,
Section 4(c)(i) imposing criteria that
shall be considered when determining
the amount of the individual civil
penalty to be assessed. Proposed
subsection (A) requires the Director to
consider the ‘‘individual’s history of
authorizing, ordering or carrying out
previous violations, failures or refusals
at the particular surface mining
operation.’’ OSM subsequently
disapproved proposed subsection (A) in
a February 14, 2013, Federal Register
notice (78 FR 10512, 10518) because the
Federal counterpart provision at 30 CFR
846.14(a)(1), as well as the remainder of
Wyoming’s rules refer to ‘‘surface coal
mining operations.’’ As a result, we
required Wyoming to revise its
proposed rule language at Chapter 16,
Section 4(c)(i)(A) to include the term
‘‘coal.’’
Unfortunately, Wyoming did not
address this disapproval in its January
4, 2013, amendment and we notified
Wyoming in a letter dated June 24,
2013, that our original decision remains
outstanding.
Wyoming responded in a letter dated
August 5, 2013, by stating that it will
revise its proposed rule language at
Section 4(c)(i)(A) to read ‘‘surface coal
mining operations.’’
Accordingly, we are not approving
Wyoming’s newly-proposed rule at
Chapter 16, Section 4(c)(i)(A) imposing
criteria that shall be considered when
determining the amount of an
individual civil penalty to be assessed.
We also acknowledge Wyoming’s
commitment to revise the rule to
address the required change discussed
above in a future rulemaking effort.
IV. Summary and Disposition of
Comments
Public Comments
We asked for public comments on the
amendment (Administrative Record
Document ID No. OSM–2013–0001–
0001), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h) (11) (i) and
section 503(b) of SMCRA, we requested
comments on the amendment from
various Federal agencies with an actual
or potential interest in the Wyoming
program (Administrative Record No.
WY–49–03). We received comments
from two Federal Agencies.
The United States Forest Service
(USFS) commented in a February 27,
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2013, email response (Administrative
Record Document ID No. OSM–2013–
0001–0008), and the Mine Safety and
Health Administration (MSHA)
commented in a March 1, 2013, letter
(Administrative Record Document ID
No. OSM–2013–0001–0009).
The USFS responded that its
comment is reflective of its role as a
Federal land managing agency in the
coal permitting process. The USFS then
stated its support for the clarification in
the formal amendment on using variable
topsoil depths to facilitate species
diversity during reclamation.
MSHA responded that it reviewed the
proposed changes in the formal
amendment, concurs with the proposed
revisions, and had no further comment.
Environmental Protection Agency (EPA)
Concurrence and Comments
Under 30 CFR 732.17(h) (11) (i) and
(ii), we are required to get concurrence
from EPA for those provisions of the
program amendment that relate to air or
water quality standards issued under
the authority of the Clean Water Act (33
U.S.C. 1251 et seq.) or the Clean Air Act
(42 U.S.C. 7401 et seq.).
Under 30 CFR 732.17(h) (11) (i), OSM
requested comments on the amendment
from EPA (Administrative Record No.
WY–49–03). EPA did not respond to our
request.
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State Historic Preservation Officer
(SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h) (4), we are
required to request comments from the
SHPO and ACHP on amendments that
may have an effect on historic
properties. On January 31, 2013, we
requested comments on Wyoming’s
amendment (Administrative Record
Nos. WY–49–04 and WY–49–05), but
neither responded to our request.
V. OSM’s Decision
Based on the above findings, we
approve, with certain exceptions,
Wyoming’s January 4, 2013,
amendment. We do not approve the
following provisions or parts of
provisions.
As discussed in Finding No. III.B.1,
we are not approving Wyoming’s
revised VER definition at Chapter 1,
Section 2(fl).
As discussed in Finding No. III.B.2,
we are not approving Wyoming’s newlyproposed rule at Chapter 12, Section
1(a)(vii)(F) concerning requirements for
making VER requests and related
materials available to the public.
As discussed in Finding No. III.B.3,
we are not approving Wyoming’s newlyproposed rule at Chapter 16, Section
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16:18 Mar 28, 2014
Jkt 232001
4(c)(i)(A) imposing criteria that shall be
considered when determining the
amount of the individual civil penalty
to be assessed.
To implement this decision, we are
amending the Federal regulations at 30
CFR Part 950, which codify decisions
concerning the Wyoming program. We
find that good cause exists under 5
U.S.C. 553(d)(3) to make this final rule
effective immediately.
Section 503(a) of SMCRA requires
that the State’s program demonstrates
that the State has the capability of
carrying out the provisions of the Act
and meeting its purposes. Making this
regulation effective immediately will
expedite that process. SMCRA requires
consistency of State and Federal
standards.
Effect of OSM’s Decision
Section 503 of SMCRA provides that
a State may not exercise jurisdiction
under SMCRA unless the State program
is approved by the Secretary. Similarly,
30 CFR 732.17(a) requires that any
change of an approved State program be
submitted to OSM for review as a
program amendment. The Federal
regulations at 30 CFR 732.17(g) prohibit
any changes to approved State programs
that are not approved by OSM. In the
oversight of the Wyoming program, we
will recognize only the statutes,
regulations and other materials we have
approved, together with any consistent
implementing policies, directives and
other materials. We will require
Wyoming to enforce only approved
provisions.
VI. Procedural Determinations
Executive Order 12630—Takings
This rule does not have takings
implications. This determination is
based on the analysis performed for the
counterpart Federal regulation.
Executive Order 12866—Regulatory
Planning and Review
This rule is exempted from review by
the Office of Management and Budget
(OMB) under Executive Order 12866.
Executive Order 12988—Civil Justice
Reform
The Department of the Interior has
conducted the reviews required by
section 3 of Executive Order 12988 and
has determined that this rule meets the
applicable standards of subsections (a)
and (b) of that section. However, these
standards are not applicable to the
actual language of State regulatory
programs and program amendments
because each program is drafted and
promulgated by a specific State, not by
OSM. Under sections 503 and 505 of
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17867
SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR
730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory
programs and program amendments
submitted by the States must be based
solely on a determination of whether the
submittal is consistent with SMCRA and
its implementing Federal regulations
and whether the other requirements of
30 CFR Parts 730, 731, and 732 have
been met.
Executive Order 13132—Federalism
This rule does not have Federalism
implications. SMCRA delineates the
roles of the Federal and State
governments with regard to the
regulation of surface coal mining and
reclamation operations. One of the
purposes of SMCRA is to ‘‘establish a
nationwide program to protect society
and the environment from the adverse
effects of surface coal mining
operations.’’ Section 503(a)(1) of
SMCRA requires that State laws
regulating surface coal mining and
reclamation operations be ‘‘in
accordance with’’ the requirements of
SMCRA, and section 503(a)(7) requires
that State programs contain rules and
regulations ‘‘consistent with’’
regulations issued by the Secretary
pursuant to SMCRA.
Executive Order 13175—Consultation
and Coordination With Indian Tribal
Governments
In accordance with Executive Order
13175, we have evaluated the potential
effects of this rule on Federally
recognized Indian Tribes and have
determined that the rule does not have
substantial direct effects on one or more
Indian Tribes, on the relationship
between the Federal Government and
Indian Tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian Tribes.
The rule does not involve or affect
Indian Tribes in any way.
Executive Order 13211—Regulations
That Significantly Affect The Supply,
Distribution, or Use of Energy
On May 18, 2001, the President issued
Executive Order 13211 which requires
agencies to prepare a Statement of
Energy Effects for a rule that is (1)
considered significant under Executive
Order 12866, and (2) likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Because
this rule is exempt from review under
Executive Order 12866 and is not
expected to have a significant adverse
effect on the supply, distribution, or use
of energy, a Statement of Energy Effects
is not required.
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Federal Register / Vol. 79, No. 61 / Monday, March 31, 2014 / Rules and Regulations
National Environmental Policy Act
This rule does not require an
environmental impact statement
because section 702(d) of SMCRA (30
CFR U.S.C. 1292(d)) provides that
agency decisions on proposed State
regulatory program provisions do not
constitute major Federal actions within
the meaning of section 102(2)(C) of the
National Environmental Policy Act (42
U.S.C. 4332(2)(C) et seq).
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.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior
certifies 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. In
making the determination as to whether
Original amendment
submission date
*
March 31, 2014 .........
[FR Doc. 2014–07106 Filed 3–28–14; 8:45 am]
BILLING CODE 4310–05–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2014–0086]
emcdonald on DSK67QTVN1PROD with RULES
Small Business Regulatory Enforcement
Fairness Act
This rule is not a major rule under 5
U.S.C. 804(2), of the Small Business
Regulatory Enforcement Fairness Act.
This rule:
a. Does not have an annual effect on
the economy of $100 million.
b. Will not cause a major increase in
costs or prices for consumers,
individual industries, Federal, State, or
local government agencies, or
geographic regions.
c. Does not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S. based enterprises to
compete with foreign-based enterprises.
This determination is based upon the
fact that the State submittal which is the
subject of this rule is based upon
counterpart Federal regulations for
which an analysis was prepared and a
determination made that the Federal
regulation was not considered a major
rule.
Unfunded Mandates
This rule will not impose an
unfunded mandate on State, local, or
Date of final
publication
*
January 4, 2013 ........
this rule would have a significant
economic impact, the Department relied
upon the data and assumptions for the
counterpart Federal regulations.
Safety Zone; San Francisco Giants
Fireworks, San Francisco Bay, San
Francisco, CA
Coast Guard, DHS.
ACTION: Notice of enforcement of
regulation.
AGENCY:
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16:18 Mar 28, 2014
Jkt 232001
tribal governments or the private sector
of $100 million or more in any given
year. This determination is based upon
the fact that the State submittal, which
is the subject of this rule, is based upon
counterpart Federal regulations for
which an analysis was prepared and a
determination made that the Federal
regulation did not impose an unfunded
mandate.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface
mining, Underground mining.
Dated: January 29, 2014.
Allen D. Klein,
Director, Western Region.
For the reasons set out in the
preamble, 30 CFR part 950 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 in the
table by adding a new entry in
chronological order by ‘‘Date of Final
Publication’’ to read as follows:
■
§ 950.15 Approval of Wyoming regulatory
program amendments.
*
*
*
*
*
Citation/description
*
*
*
Chap. 1, Sec. 2(fl) (ii) (B)(IV); Chap. 1, Sec. 2(fl)(iii); Chap.
1(a)(vii)(A)(I); Chap. 12, Sec. 1(a)(vii)(A)(IV); Chap. 12,
1(a)(vii)(B)(IV); Chap. 12, Sec. 1(a)(vii)(C)(I)(3.)(a)–(d);
Chap. 12, Sec. 1(a)(vii)(C)(III); Chap. 12, Sec.
1(a)(vii)(D)(III)(1.) and (2.); Chap. 12, Sec. 1(a)(vii)(E);
Chap. 16, Sec. 4(a)(iii); Chap. 16, Sec. 4(b)(i);
The Coast Guard will enforce
the safety zone for the San Francisco
Giants Fireworks display in the Captain
of the Port, San Francisco area of
responsibility during the dates and
times noted below. This action is
necessary to protect life and property of
the maritime public from the hazards
associated with the fireworks display.
During the enforcement period,
unauthorized persons or vessels are
prohibited from entering into, transiting
through, or anchoring in the safety zone,
unless authorized by the Patrol
Commander (PATCOM).
SUMMARY:
The regulations in 33 CFR
165.1191, Table 1, Item number 1 will
be enforced from 11 a.m. to 10:30 p.m.
on April 11, 2014.
DATES:
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*
*
12, Sec. 1(a)(v)(D); Chap. 12, Sec.
Sec. 1(a)(vii)(B)(I); Chap. 12, Sec.
Chap. 12, Sec. 1(a)(vii)(C)(II)(2.);
1(a)(vii)(D)(I); Chap. 12, Sec.
Chap. 12, Sec. 1(a)(vii)(G)(III)(2.);
If
you have questions on this notice, call
or email Lieutenant Junior Grade
William Hawn, U.S. Coast Guard Sector
San Francisco; telephone (415) 399–
7442 or email at D11-PF-MarineEvents@
uscg.mil.
FOR FURTHER INFORMATION CONTACT:
The Coast
Guard will enforce the safety zones
established in 33 CFR 165.1191, Table 1,
Item number 1 on April 11, 2014. From
11 a.m. until 10 p.m. on April 11, 2014
the safety zone applies to the navigable
waters around and under the fireworks
barge within a radius of 100 feet during
the loading, transit, and arrival of the
fireworks barge at the launch site and
until the start of the fireworks display.
From 11 a.m. until 8:30 p.m. on April
11, 2014 the fireworks barge will be
SUPPLEMENTARY INFORMATION:
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]]>Agencies
[Federal Register Volume 79, Number 61 (Monday, March 31, 2014)]
[Rules and Regulations]
[Pages 17863-17868]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-07106]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 950
[SATS No: WY-044-FOR; Docket ID: OSM-2013-0001;
S1D1SSS08011000SX066A00067F144S180110;
S2D2SSS08011000SX066A00033F14XS501520]
Wyoming Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule; approval of amendment with certain exceptions.
-----------------------------------------------------------------------
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 and disapproves in part the amendment.
Wyoming proposes revisions to rules concerning valid existing rights
and individual civil penalties. Wyoming revised its program to be
consistent with the corresponding Federal regulations and SMCRA,
clarify ambiguities, and improve operational efficiency.
DATES: Effective Date: March 31, 2014.
FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Chief, Denver
Field Division, Telephone: 307-261-6550, Internet address:
jfleischman@OSMRE.gov.
SUPPLEMENTARY INFORMATION:
I. Background on the Wyoming Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM's)
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. Procedural Determinations
I. Background on the Wyoming Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal
[[Page 17864]]
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 January 4, 2013, Wyoming sent us a proposed
amendment to its approved regulatory program (Administrative Record
Docket ID No. OSM-2013-0001) under SMCRA (30 U.S.C. 1201 et seq.).
Wyoming submitted the amendment in response to a concern letter OSM
sent relating to valid existing rights (VER) and a Federal Register
notice (78 FR 10512) that disapproved several VER rule changes that
were required by an April 2, 2001, letter we sent in accordance with 30
CFR 732.17(c) (``732 letter''). That letter required Wyoming to submit
amendments to ensure its program remains consistent with the Federal
program. This amendment package is intended to address all remaining
required rule changes pertaining to VER. Wyoming also proposes changes
to its rules for individual civil penalties that were disapproved in
the Federal Register notice.
We announced receipt of the proposed amendment in the March 14,
2013, Federal Register (78 FR 16204). 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-2013-0001-0001). We did not hold a public hearing
or meeting because no one requested one. The public comment period
ended on April 15, 2013. We received comments from two Federal agencies
(discussed under ``IV. Summary and Disposition of Comments'').
During our review of the amendment, we identified concerns
regarding Wyoming's proposed rule changes in response to a November 7,
1988, 732 letter and the Federal Register notice (78 FR 10512, 10518)
concerning its newly-proposed rules at Chapter 16, Section 4(c)(i)(A)
imposing criteria that shall be considered when determining the amount
of an individual civil penalty to be assessed, and its proposed
revisions at Chapter 12, Section 1(a)(vii)(F) regarding availability of
records in response to the April 2, 2001, 732 letter. We notified
Wyoming of these concerns by letter dated June 24, 2013 (Administrative
Record Document ID No. OSM-2013-0001-0010).
We delayed final rulemaking to afford Wyoming the opportunity to
submit new material to address the deficiencies. Wyoming responded in a
letter dated August 5, 2013, that it could not currently submit
additional formal revisions to the amendment due to the administrative
rulemaking requirements for promulgation of revised substantive rules
(Administrative Record Document ID No. OSM-2013-0001-0011).
Specifically, Wyoming explained that the required changes would be
considered substantive in nature and therefore the Land Quality
Division (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 OSM 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. OSM'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, OSM 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 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. Revisions to Wyoming's Rules That Have the Same Meaning as the
Corresponding Provisions of the Federal Regulations
1. Wyoming proposes additions and revisions to the following rules
containing language that are the same as or similar to the
corresponding sections of the Federal regulations and/or SMCRA.
Therefore we are approving them.
Chapter 12, Section 1(a)(v)(D); VER Permitting Procedures; public
road waivers [30 CFR 761.14 (b) and (c)];
Chapter 12, Section 1(a)(vii)(A)(I); VER Submission Requirements
and Procedures; requests for VER determinations and property rights
demonstrations [30 CFR 761.16(b)(1)];
Chapter 12, Section 1(a)(vii)(A)(IV); VER Submission Requirements
and Procedures; requests for VER determinations and standards for mine
roads; [30 CFR 761.16(b)(4)];
Chapter 12, Section 1(a)(vii)(B)(I); VER Submission Requirements
and Procedures; initial review of VER request; [30 CFR 761.16(c)(1)];
Chapter 12, Section 1(a)(vii)(B)(IV); VER Submission Requirements
and Procedures; initial review of VER request; [30 CFR 761.16(c)(4)];
Chapter 12, Section 1(a)(vii)(C)(I)(3.)(a)-(d); VER Submission
Requirements and Procedures; VER notice and comment requirements; [30
CFR 761.16(d)(1)(iii)(A)-(C) and (iv)];
Chapter 12, Section 1(a)(vii)(C)(II)(2.); VER Submission
Requirements and Procedures; VER notice and comment requirements; [30
CFR 761.16(d)(2)(ii)];
Chapter 12, Section 1(a)(vii)(C)(III); VER Submission Requirements
and Procedures; VER notice and comment requirements; [30 CFR
761.16(d)(3)];
Chapter 12, Section 1(a)(vii)(D)(I); VER Submission Requirements
and Procedures; how a VER decision will be made; [30 CFR 761.16(e)(1)];
Chapter 12, Section 1(a)(vii)(D)(III)(1.) and (2.); VER Submission
Requirements and Procedures; how a VER decision will be made; [30 CFR
761.16(e)(3)(i) and (ii)];
Chapter 12, Section 1(a)(vii)(G)(III)(2.); VER Submission
Requirements and Procedures; procedures for joint approval of surface
coal mining operations that will adversely affect publicly owned parks
or historic places; [30 CFR 761.17(d)(3)(ii)];
Chapter 16, Section 4(a)(iii); Individual Civil Penalties;
definition of ``Willfully;'' [30 CFR 701.5]; and
[[Page 17865]]
Chapter 16, Section 4(b)(i); Individual Civil Penalties; when an
individual civil penalty may be assessed; [30 CFR 846.12(a)].
2. Chapter 1, Section 2(fl)(ii)(B)(IV); Definition of ``Needed for
and adjacent standard.''
In a previous rulemaking action (WY-040-FOR), Wyoming proposed a
new ``Needed for and adjacent standard'' definition at Chapter 1,
Section 2(fl)(ii)(B) in response to Item B-5 of OSM's April 2, 2001,
732 letter. Subsection (IV) of the definition included a requirement
that, when evaluating if a person meets that standard, the agency
making the decision may consider ``Whether the land lies within the
area identified on the life-of-mine map submitted before the land came
under the protection of 30 CFR 761.11 (2009).'' OSM subsequently
disapproved proposed subsection (IV) in a February 14, 2013, Federal
Register notice (78 FR 10512, 10514) because the Federal counterpart
provision at 30 CFR 761.5(b)(2)(iv) includes specific citation cross-
references requiring the submission of a life-of-mine map as part of a
permit application. As a result, we required Wyoming to revise the
proposed rule language to specify the applicable counterpart permit
application reference for requiring the submission of life-of-mine
maps.
In response to the February 14, 2013, disapproval, Wyoming now
proposes to revise its rule at Chapter 1, Section 2(fl)(ii)(B)(IV) to
include specific citation cross-references requiring the submission of
a life-of-mine map as part of a permit application. Wyoming's proposed
rule change makes its rule consistent with and no less effective than
the Federal counterpart provision at 30 CFR 761.5(b)(2)(iv) and
satisfies Item B-5 of the April 2, 2001, 732 letter. Accordingly, we
approve it.
3. Chapter 1, Section 2(fl)(iii); VER standards for roads.
In a previous rulemaking action (WY-040-FOR), Wyoming proposed a
new rule at Chapter 1, Section 2(fl)(iii) to apply the VER standard to
all roads in response to Item B-5 of OSM's April 2, 2001, 732 letter.
However, the proposed rule language referred to roads included within a
``surface mining operation.'' OSM subsequently disapproved proposed
subsection (iii) in a February 14, 2013, Federal Register notice (78 FR
10512, 10515) because the Federal counterpart provision at 30 CFR
761.5(c), as well as the remainder of Wyoming's rules refer to
``surface coal mining operations.'' As a result, we required Wyoming to
revise its proposed rule language at Chapter 1, Section 2(fl)(iii)) to
include the term ``coal.''
In response to the February 14, 2013, disapproval, Wyoming now
proposes to revise its rule at Chapter 1, Section 2(fl)(iii) to apply
the VER standard to roads included within a ``surface coal mining
operation.'' It should also be noted that Wyoming's statutory
definition of ``surface coal mining operation'' at W.S. Sec. 35-11-
103(e)(xx) was approved by OSM on March 31, 1980, and is substantively
identical to the Federal definitions found at Section 701(28) of SMCRA
and 30 CFR 700.5, respectively. Wyoming's proposed language makes its
rule consistent with and no less effective than the Federal counterpart
provision at 30 CFR 761.5(c) and satisfies Item B-5 of the April 2,
2001, 732 letter. Accordingly, we approve the proposed rule change.
4. Chapter 12, Section 1(a)(vii)(E); Administrative and judicial
review.
In a previous rulemaking action (WY-040-FOR), Wyoming proposed to
add requirements to its rules at Chapter 12, Section 1(a)(vii)(E)
providing for administrative and judicial review of VER determinations
in response to Item G-1 of OSM's April 2, 2001, 732 letter. OSM
subsequently disapproved proposed subsection (E) in a February 14,
2013, Federal Register notice (78 FR 10512, 10517) because Wyoming did
not provide a counterpart reference to the Federal requirements in 30
CFR 761.16(f) regarding the procedures pertaining to administrative and
judicial review. As a result, we required Wyoming to revise its
proposed rule language at Chapter 12, Section 1(a)(vii)(E) by adding a
reference to the Wyoming Administrative Procedure Act.
In response to the February 14, 2013, disapproval, Wyoming now
proposes to revise its rules at Chapter 12, Section 1(a)(vii)(E) by
including a reference to its statutes at W.S. Sec. 16-3-101 through
16-3-115 of the Wyoming Administrative Procedure Act concerning
administrative (contested case) and judicial review. Wyoming's
reference to its statutes pertaining to administrative and judicial
review in place of the corresponding Federal requirements does not
render proposed subsection (E) less effective than the Federal
regulations at 30 CFR 761.16(f). For these reasons, Wyoming's proposed
rule change satisfies Item G-1 of the April 2, 2001, 732 letter and we
approve it.
B. Revisions to Wyoming's Rules That Are Not the Same as the
Corresponding Provisions of the Federal Regulations
1. Chapter 1, Section 2(fl); Definition of ``Valid Existing
Rights.''
Item B-1 of OSM's April 2, 2001, 732 letter required Wyoming to
revise its definition of VER at Chapter 1, Section 2(fl) by adding an
explanation of the operation of VER. In response, Wyoming proposed to
revise its rules at Chapter 1, Section 2(fl) in a previous rulemaking
action (WY-040-FOR) by adding a basic conceptual definition of VER and
noting that operations on prohibited or limited areas under VER are
still subject to the remainder of SMCRA regulations. OSM subsequently
disapproved the revised VER definition at Chapter 1, Section 2(fl) in a
February 14, 2013, Federal Register notice (78 FR 10512, 10517) because
Wyoming did not include Federal counterpart language stating that
``Possession of valid existing rights only confers an exception from
the prohibitions of Sec. 761.11 and 30 U.S.C. 1272(e).'' Consequently,
we required Wyoming to add the ``exception'' language to its proposed
definition of VER.
In response to the February 14, 2013, disapproval, Wyoming proposed
to revise its rules at Chapter 1, Section 2(fl) by specifying that
``Possession of valid existing rights only confers an exception from
the prohibitions of 30 CFR 761.11 and Section 522(e) of P.L. 98-87.''
Unfortunately, the proposed language referencing SMCRA contains an
incorrect citation wherein ``P.L. 98-87'' is referenced rather than
``P.L. 95-87.'' For this reason, we are not approving Wyoming's
proposed rule revision.
2. Chapter 12, Section 1(a)(vii)(F); Availability of records.
Item G-4 of OSM's April 2, 2001, 732 letter required Wyoming to
submit counterpart provisions to 30 CFR 761.16(g) regarding
availability of records requirements. In response, Wyoming proposed to
revise its rules at Chapter 12, Section 1(a)(vii)(F) in a previous
rulemaking action (WY-040-FOR) by requiring that the Division or agency
responsible for processing a VER request shall make a copy of the
request and related materials available to the public. OSM subsequently
disapproved proposed subsection (F) in a February 14, 2013, Federal
Register notice (78 FR 10512, 10517) because Wyoming did not specify in
the heading that the rule pertains to ``Availability of records'' and
did not provide counterpart language to the Federal requirements in 30
CFR 761.16(g) explaining that, in addition to the VER request and
related materials, records associated with any subsequent
[[Page 17866]]
VER determination shall also be made available to the public. As a
result, we required Wyoming to revise its proposed rule language at
Chapter 12, Section 1(a)(vii)(F) by making the aforementioned changes.
In response to the February 14, 2013, disapproval, Wyoming proposed
to revise its rules at Chapter 12, Section 1(a)(vii)(F) by specifying
that the rule pertains to ``Availability of records.'' In addition,
Wyoming proposed language explaining that, in addition to the VER
request and related materials, records associated with any subsequent
VER determination under subsection (D) of its rules shall be made
available to the public in accordance with the requirements and
procedures of W.S. Sec. 35-11-1101.
OSM replied in a letter dated June 24, 2013, that 30 CFR 761.16(g)
requires the agency responsible for processing VER determination
requests to make a copy of the request available to the public in the
same manner as it makes permit applications available under 30 CFR
773.6(d). The responsible agency must also make records associated with
the VER request and any subsequent determination available to the
public in accordance with the requirements and procedures of 30 CFR
840.14.
Wyoming's proposed rule language requires the Division to make a
copy of a VER request and related materials available to the public in
the same manner as public availability of permit applications under its
rules and regulations. Wyoming's regulatory counterpart to 30 CFR
773.6(d)(1) regarding public availability of permit applications is
found at Chapter 12, Section 1(b) and requires, in pertinent part, that
all procedural requirements of the Act and the regulations relating to
review, public participation, and approval or disapproval of permit
applications, and permit term and conditions shall, unless otherwise
provided, apply to permit revisions, amendments, renewals and permit
transfer, assignment or sale of permit rights.
Wyoming's statutory provisions regarding availability of records to
the public and confidentiality are found at W.S. Sec. 35-11-1101(a)
and (b) of the Wyoming Environmental Quality Act. Subsection (a) holds
that any records, reports or information obtained under the Wyoming
Environmental Quality Act or the rules, regulations and standards
promulgated thereunder are available to the public, unless a
satisfactory showing is made to the director by any person that his
records, reports or information or particular parts thereof would
divulge trade secrets if made public. If such a showing is
satisfactory, the director and administrators shall consider the
records, reports or information or particular portions thereof
confidential in the administration of the Act. Subsection (b) states
that nothing shall be construed to prevent disclosure of any records,
reports or information to Federal, state or local agencies necessary
for the purposes of administration of any Federal, state or local air,
water or land control measures or regulations or when relevant to any
proceedings under the act.
While W.S. Sec. 35-11-1101 meets some of the requirements of 30
CFR 840.14, it fails to satisfy all of them. In particular, 30 CFR
840.14(b) specifies that the regulatory authority shall make copies of
all records immediately available to the public in the area of mining
until at least five years after the expiration of the period during
which the operation is active or is covered by any portion of a
reclamation bond. Since W.S. Sec. 35-11-1101 fails to include a
similar provision, we found that Wyoming's reference to the statute
does not satisfy the requirements of 30 CFR 840.14 as referenced in 30
CFR 761.16(g) and newly-proposed subsection (F) remains less effective
than the Federal regulations.
Wyoming responded in a letter dated August 5, 2013, by stating its
belief that the current record retention requirements and public
records acts for the State may already satisfy the public availability
requirements of 30 CFR 840.14(b). As a result, Wyoming stated that the
LQD will examine other statutory requirements and records retention
requirements for the agency, and will provide the results of that
examination to OSM in order to discuss whether the requested revision
is still necessary in light of the information provided. Wyoming
concluded by noting that if it is determined that the rules are still
deficient the LQD will draft rules to address OSM's concern.
For the reasons discussed above, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(vii)(F) concerning
requirements for making VER requests and related materials available to
the public. We also acknowledge Wyoming's desire to examine other
statutory and records retention requirements to determine compliance
with 30 CFR 840.14(b), and its commitment to revise its rules and
address OSM's concerns in a future rulemaking effort if required as a
result of that examination.
3. Chapter 16, Section 4(c)(i); Amount of Civil Penalty.
In a November 7, 1988, 732 letter, OSM notified Wyoming that its
rules concerning individual civil penalties were deficient. In a
previous rulemaking action (WY-040-FOR), Wyoming proposed new rules at
Chapter 16, Section 4(c)(i) imposing criteria that shall be considered
when determining the amount of the individual civil penalty to be
assessed. Proposed subsection (A) requires the Director to consider the
``individual's history of authorizing, ordering or carrying out
previous violations, failures or refusals at the particular surface
mining operation.'' OSM subsequently disapproved proposed subsection
(A) in a February 14, 2013, Federal Register notice (78 FR 10512,
10518) because the Federal counterpart provision at 30 CFR
846.14(a)(1), as well as the remainder of Wyoming's rules refer to
``surface coal mining operations.'' As a result, we required Wyoming to
revise its proposed rule language at Chapter 16, Section 4(c)(i)(A) to
include the term ``coal.''
Unfortunately, Wyoming did not address this disapproval in its
January 4, 2013, amendment and we notified Wyoming in a letter dated
June 24, 2013, that our original decision remains outstanding.
Wyoming responded in a letter dated August 5, 2013, by stating that
it will revise its proposed rule language at Section 4(c)(i)(A) to read
``surface coal mining operations.''
Accordingly, we are not approving Wyoming's newly-proposed rule at
Chapter 16, Section 4(c)(i)(A) imposing criteria that shall be
considered when determining the amount of an individual civil penalty
to be assessed. We also acknowledge Wyoming's commitment to revise the
rule to address the required change discussed above in a future
rulemaking effort.
IV. Summary and Disposition of Comments
Public Comments
We asked for public comments on the amendment (Administrative
Record Document ID No. OSM-2013-0001-0001), but did not receive any.
Federal Agency Comments
Under 30 CFR 732.17(h) (11) (i) and section 503(b) of SMCRA, we
requested comments on the amendment from various Federal agencies with
an actual or potential interest in the Wyoming program (Administrative
Record No. WY-49-03). We received comments from two Federal Agencies.
The United States Forest Service (USFS) commented in a February 27,
[[Page 17867]]
2013, email response (Administrative Record Document ID No. OSM-2013-
0001-0008), and the Mine Safety and Health Administration (MSHA)
commented in a March 1, 2013, letter (Administrative Record Document ID
No. OSM-2013-0001-0009).
The USFS responded that its comment is reflective of its role as a
Federal land managing agency in the coal permitting process. The USFS
then stated its support for the clarification in the formal amendment
on using variable topsoil depths to facilitate species diversity during
reclamation.
MSHA responded that it reviewed the proposed changes in the formal
amendment, concurs with the proposed revisions, and had no further
comment.
Environmental Protection Agency (EPA) Concurrence and Comments
Under 30 CFR 732.17(h) (11) (i) and (ii), we are required to get
concurrence from EPA for those provisions of the program amendment that
relate to air or water quality standards issued under the authority of
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42
U.S.C. 7401 et seq.).
Under 30 CFR 732.17(h) (11) (i), OSM requested comments on the
amendment from EPA (Administrative Record No. WY-49-03). EPA did not
respond to our request.
State Historic Preservation Officer (SHPO) and the Advisory Council on
Historic Preservation (ACHP)
Under 30 CFR 732.17(h) (4), we are required to request comments
from the SHPO and ACHP on amendments that may have an effect on
historic properties. On January 31, 2013, we requested comments on
Wyoming's amendment (Administrative Record Nos. WY-49-04 and WY-49-05),
but neither responded to our request.
V. OSM's Decision
Based on the above findings, we approve, with certain exceptions,
Wyoming's January 4, 2013, amendment. We do not approve the following
provisions or parts of provisions.
As discussed in Finding No. III.B.1, we are not approving Wyoming's
revised VER definition at Chapter 1, Section 2(fl).
As discussed in Finding No. III.B.2, we are not approving Wyoming's
newly-proposed rule at Chapter 12, Section 1(a)(vii)(F) concerning
requirements for making VER requests and related materials available to
the public.
As discussed in Finding No. III.B.3, we are not approving Wyoming's
newly-proposed rule at Chapter 16, Section 4(c)(i)(A) imposing criteria
that shall be considered when determining the amount of the individual
civil penalty to be assessed.
To implement this decision, we are amending the Federal regulations
at 30 CFR Part 950, which codify decisions concerning the Wyoming
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to
make this final rule effective immediately.
Section 503(a) of SMCRA requires that the State's program
demonstrates that the State has the capability of carrying out the
provisions of the Act and meeting its purposes. Making this regulation
effective immediately will expedite that process. SMCRA requires
consistency of State and Federal standards.
Effect of OSM's Decision
Section 503 of SMCRA provides that a State may not exercise
jurisdiction under SMCRA unless the State program is approved by the
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an
approved State program be submitted to OSM for review as a program
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any
changes to approved State programs that are not approved by OSM. In the
oversight of the Wyoming program, we will recognize only the statutes,
regulations and other materials we have approved, together with any
consistent implementing policies, directives and other materials. We
will require Wyoming to enforce only approved provisions.
VI. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have Federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA, and section 503(a)(7)
requires that State programs contain rules and regulations ``consistent
with'' regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal Government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect The
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
[[Page 17868]]
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C) et seq).
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.
3501 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies 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. 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.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), of the Small
Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S. based enterprises to compete with foreign-based enterprises.
This determination is based upon the fact that the State submittal
which is the subject of this rule is based upon counterpart Federal
regulations for which an analysis was prepared and a determination made
that the Federal regulation was not considered a major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
List of Subjects in 30 CFR Part 950
Intergovernmental relations, Surface mining, Underground mining.
Dated: January 29, 2014.
Allen D. Klein,
Director, Western Region.
For the reasons set out in the preamble, 30 CFR part 950 is amended
as set forth below:
PART 950--WYOMING
0
1. The authority citation for part 950 continues to read as follows:
Authority: 30 U.S.C. 1201 et seq.
0
2. Section 950.15 is amended in the table by adding a new entry in
chronological order by ``Date of Final Publication'' to read as
follows:
Sec. 950.15 Approval of Wyoming regulatory program amendments.
* * * * *
----------------------------------------------------------------------------------------------------------------
Original amendment submission date Date of final publication Citation/description
----------------------------------------------------------------------------------------------------------------
* * * * * * *
January 4, 2013....................... March 31, 2014........................ Chap. 1, Sec. 2(fl) (ii)
(B)(IV); Chap. 1, Sec.
2(fl)(iii); Chap. 12, Sec.
1(a)(v)(D); Chap. 12, Sec.
1(a)(vii)(A)(I); Chap. 12, Sec.
1(a)(vii)(A)(IV); Chap. 12,
Sec. 1(a)(vii)(B)(I); Chap. 12,
Sec. 1(a)(vii)(B)(IV); Chap.
12, Sec. 1(a)(vii)(C)(I)(3.)(a)-
(d); Chap. 12, Sec.
1(a)(vii)(C)(II)(2.); Chap. 12,
Sec. 1(a)(vii)(C)(III); Chap.
12, Sec. 1(a)(vii)(D)(I); Chap.
12, Sec. 1(a)(vii)(D)(III)(1.)
and (2.); Chap. 12, Sec.
1(a)(vii)(E); Chap. 12, Sec.
1(a)(vii)(G)(III)(2.); Chap.
16, Sec. 4(a)(iii); Chap. 16,
Sec. 4(b)(i);
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[FR Doc. 2014-07106 Filed 3-28-14; 8:45 am]
BILLING CODE 4310-05-P
