Wyoming Regulatory Program, 57664-57674 [2017-26432]

Agencies

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

[Federal Register Volume 82, Number 234 (Thursday, December 7, 2017)]
[Rules and Regulations]
[Pages 57664-57674]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-26432]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 950

[SATS No: WY-045-FOR; Docket ID: OSM-2013-0002; S1D1S SS08011000 
SX064A000 189S180110; S2D2S SS08011000 SX064A000 18XS501520]


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 and disapproves in part the amendment. 
Wyoming proposes both revisions of and additions to its coal rules and 
regulations concerning ownership and control, adds a provision 
concerning variable topsoil depths during reclamation, and addresses 
four deficiencies that were identified by the Office of Surface Mining 
Reclamation and Enforcement (OSMRE) during the review of a previous 
program amendment (WY-038-FOR; Docket ID No. OSM-2009-0012). Wyoming 
revised its program to be consistent with the corresponding Federal 
regulations and SMCRA, clarify ambiguities, and improve operational 
efficiency.

DATES: The effective date is January 8, 2018.

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 
(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, State laws and 
regulations that govern surface coal

[[Page 57665]]

mining and reclamation operations in accordance with the Act and 
consistent with the Federal regulations. 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 8, 2013, Wyoming sent us a proposed 
amendment to its approved regulatory program (Administrative Record 
Docket ID No. OSM-2013-0002) under SMCRA (30 U.S.C. 1201 et seq.). 
Wyoming submitted the amendment to address required rule changes OSMRE 
identified in a letter to Wyoming dated October 2, 2009, under 30 CFR 
732.17(c) (``732 letter''). These included changes to Wyoming's rules 
for ownership and control. The amendment also adds a provision 
concerning variable topsoil depths during reclamation, addresses four 
deficiencies that OSMRE identified in response to Wyoming's formally 
submitted revegetation rule package (WY-038-FOR; Docket ID No. OSM-
2009-0012), and corrects numerous inaccurate citations to other 
sections of Wyoming's rules and regulations.
    We announced receipt of the proposed amendment in the February 26, 
2013, Federal Register (78 FR 13004). 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-2013-0002-0001). We did not hold a public hearing 
or meeting because no one requested one. The public comment period 
ended on March 28, 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 the October 2, 
2009, 732 letter including the omission of the term ``surface'' in its 
newly-proposed definition of ``Control or Controller'' at Chapter 1, 
Section 2(aa), the title for Chapter 2 of its rules concerning permit 
application requirements, and its revised rule at Chapter 2, Section 
2(a)(ii)(A)(I) regarding the requirement that permit applications 
contain a complete statement of compliance; revisions to its rules 
concerning adjudication requirements and identification of interests at 
Chapter 2, Section 2(a)(i)(B); its rules at Chapter 12, Section 
1(a)(x)(D)(I) regarding unanticipated events or conditions at remining 
sites; its final compliance review requirements at Chapter 12, Section 
1(a)(viii)(B); its provisions concerning written agency decisions on 
challenges to ownership or control listings or findings at Chapter 12, 
Section 1(a)(xiv)(F); and its transfer, assignment, or sale of permit 
rights requirements at Chapter 12, Section 1(b)(ii). We notified 
Wyoming of these concerns by letter dated April 9, 2013 (Administrative 
Record Document ID No. OSM-2013-0002-0012).
    We delayed final rulemaking to afford Wyoming the opportunity to 
submit new material to address the deficiencies. Wyoming responded in a 
letter dated July 2, 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-2013-0002-0013). 
Specifically, Wyoming explained that the required changes would be 
considered substantive in nature and therefore the Department of 
Environmental Quality's (DEQ) 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 OSMRE for final review. 
Wyoming could not submit formal changes, but it did submit informal 
responses to OSMRE's noted concerns. Therefore, we are proceeding to 
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 regulations in 
meeting the requirements of SMCRA.
    The 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. Minor Revisions to Wyoming's Rules

    Wyoming proposed minor punctuation, grammatical, and codification 
changes to the following previously-approved rules. Many of the 
codification changes correct inaccurate citations and cross-references 
that resulted from Wyoming's proposed rule changes. No substantive 
changes to the text of these regulations were proposed. Because the 
proposed revisions to these previously approved rules are minor, we are 
approving the changes and find that they are no less effective than the 
corresponding Federal regulations at 30 CFR parts 700 through 887.
    Chapter 2, Section 1(c)(v); minor grammatical and citation cross-
reference changes;
    Chapter 2, Section 3(c)(iii)(F), and (f); citation cross-reference 
changes;
    Chapter 2, Section 3(i)(i)(A); minor grammatical change;
    Chapter 2, Section 5(a)(viii)(B)(II) and (C); citation cross-
reference changes;
    Chapter 2, Section 5(a)(ix)(D)(I)(1.) and (2.); (II)(1.) and (2.); 
and (xvi)(A)(IV); citation cross-reference changes;
    Chapter 2, Section 6(b)(iv)(A); citation cross-reference change;
    Chapter 4, Section 2(c)(xi)(G)(II)(1.)(c.) and (xii)(A)(I); 
citation cross-reference changes;
    Chapter 4, Section 2(d)(i)(J); citation cross-reference change;
    Chapter 4, Section 2(d)(i)(M)(II); citation cross-reference 
changes;
    Chapter 4, Section 2(d)(ii)(B)(I)(2.) and (D)(II); citation cross-
reference changes;
    Chapter 4, Section 2(d)(ii)(C)(II); punctuation and citation cross-
reference changes;
    Chapter 4, Section 2(f)(iii); citation cross-reference change; and
    Chapter 4, Section 2(i); minor grammar and citation cross-reference 
changes.

B. 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

[[Page 57666]]

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(i); definition of ``Applicant violator system 
or AVS;'' [30 CFR 701.5];
    Chapter 1, Section 2(co); definition of ``Notice of violation;'' 
[30 CFR 701.5];
    Chapter 1, Section 2(cr); definition of ``Own, owner or 
ownership;'' [30 CFR 701.5];
    Chapter 1, Section 2(cv); definition of ``Permit transfer, 
assignment or sale of permit rights;'' [30 CFR 701.5];
    Chapter 1, Section 2(ez); definition of ``surface coal mining and 
reclamation operations;'' [30 CFR 700.5];
    Chapter 2, Section 1(c); Permit applications; USGS topographic map 
scale requirement; [30 CFR 777.14(a)];
    Chapter 2, Section 2(a)(i)(C) and (D); Permit Applications; 
adjudication requirements and identification of interests; [30 CFR 
778.11(a)(2) and (b)(4)];
    Chapter 2, Section 2(a)(i)(E); Permit Applications; adjudication 
requirements and identification of interests; [30 CFR 778.11(c) and 
(d)];
    Chapter 2, Section 2(a)(ii)(A)(II); Permit Applications; 
adjudication requirements and statement of compliance; [30 CFR 
778.14(a)(2)];
    Chapter 2, Section 2(a)(ii)(A)(III); Permit Applications; 
adjudication requirements and statement of compliance; [30 CFR 
778.14(b)];
    Chapter 2, Section 2(a)(ii)(B); Permit Applications; adjudication 
requirements and statement of compliance; [30 CFR 778.14(c)];
    Chapter 2, Section 2(a)(iv), (v)(A)(I)(2.) and (III); Permit 
Applications; adjudication requirements and statement of compliance; 
[30 CFR 778.15 and 778.16];
    Chapter 4, Section 2(c)(v)(A); General Environmental Protection 
Performance Standards; topsoil, subsoil, and/or approved topsoil 
substitutes; [30 CFR 816/817.22(d)(1)(i)];
    Chapter 4, Section 2(l)(ii)(F); Environmental Protection 
Performance Standards; unanticipated events or conditions at remining 
sites; [30 CFR 773.13(b)];
    Chapter 12, Section 1(a)(viii); Permitting Procedures; final 
compliance review; [30 CFR 773.8(a), 773.9(b), 773.10(a) and 
773.11(b)];
    Chapter 12, Section 1(a)(viii)(A); Permitting Procedures; final 
compliance review; [30 CFR 773.9(a)];
    Chapter 12, Section 1(a)(viii)(C); Permitting Procedures; final 
compliance review; [30 CFR 773.11(a)];
    Chapter 12, Section 1(a)(ix)(A)-(C); Permitting Procedures; entry 
of information into AVS; [30 CFR 773.8(b) and (c)];
    Chapter 12, Section 1(a)(ix)(D); Permitting Procedures; entry of 
information into AVS post-permit issuance; [30 CFR 774.11(a)(1)-(4)];
    Chapter 12, Section 1(a)(ix)(E); Post-permit issuance requirements 
for regulatory authorities and other actions based on ownership, 
control, and violation information; [30 CFR 774.11(d)-(h)];
    Chapter 12, Section 1(a)(ix)(F); Post-permit issuance requirements 
for regulatory authorities and other actions based on ownership, 
control, and violation information; [30 CFR 778.11(e)];
    Chapter 12, Section 1(a)(x)(D)(II)-(IV); Eligibility for 
provisionally issued permits; [30 CFR 773.14(a), (b), and (c)];
    Chapter 12, Section 1(a)(xiii)(A)-(C); Permitting Procedures; 
ownership or control challenges; [30 CFR 773.25(a)-(c)];
    Chapter 12, Section 1(a)(xiv)(A)and(B); Permitting Procedures; 
ownership or control challenges; [30 CFR 773.26(a)-(d)];
    Chapter 12, Section 1(a)(xiv)(D) and (E); Permitting Procedures; 
ownership or control challenges; [30 CFR 773.27(a)-(c)];
    Chapter 12, Section 1(a)(xiv)(G)(I)-(IX); Permitting Procedures; 
improvidently issued coal mining permits; [30 CFR 773.21(a)-(e), 
773.22(a)-(g) and 773.23(a)-(d)];
    Chapter 12, Section 1(b); Permitting Procedures; procedural 
requirements relating to permitting applications; [30 CFR 774.17(b)]; 
and
    Chapter 16, Section 2(j); Enforcement and AVS; [30 CFR 774.11(b)].
    2. Wyoming proposed to remove the term ``surface'' throughout its 
rules in Chapters 1, 2, and 4 in an earlier rulemaking action (WY-038-
FOR). OSMRE subsequently disapproved Wyoming's proposed deletions in a 
June 14, 2011, Federal Register notice (76 FR 34816, 34821) because 
they were less stringent than SMCRA and less effective than the 
corresponding Federal regulations. Wyoming now proposes to add the term 
``surface'' back to its rules where it was previously removed. 
Wyoming's reinsertion of the term ``surface'' makes the following rules 
the same as or similar to the corresponding sections of the Federal 
regulations. Therefore we are approving them.
    Chapter 1 (title); Authorities and Definitions for Surface Coal 
Mining Operations [30 CFR 701.3 and 701.5];
    Chapter 1, Section 2(u)(ii); definition of ``Coal exploration;'' 
[30 CFR 701.5];
    Chapter 1, Section 2(aw); definition of ``Existing structure;'' [30 
CFR 701.5];
    Chapter 1, Section 2(az); definition of ``Farm;'' [30 CFR 701.5];
    Chapter 1, Section 2(br); definition of ``Imminent danger to the 
public;'' [30 CFR 701.5];
    Chapter 1, Section 2(bz); definition of ``Joint agency approval;'' 
[30 CFR 761.17(d)];
    Chapter 1, Section 2(ca); definition of ``Land use;'' [30 CFR 
701.5];
    Chapter 1, Section 2(cg); definition of ``Materially damage the 
quantity or quality of water;'' [30 CFR 701.5];
    Chapter 1, Section 2(dd); definition of ``Probable hydrologic 
consequences;'' [30 CFR 780.21(f)];
    Chapter 1, Section 2(df); definition of ``Property to be mined;'' 
[30 CFR 701.5];
    Chapter 1, Section 2(ds); definition of ``Road(s);'' [30 CFR 
701.5];
    Chapter 1, Section 2(fi); definition of ``Trade secret;'' [30 CFR 
772.15(b) and 773.6(d)(2) and (3)(i) and (ii)];
    Chapter 1, Section 3(b)(i) and (c); Applicability; [30 CFR 701.11];
    Chapter 2, Section 2(a); Providing applicant and operator 
information; [30 CFR 778.11(a)];
    Chapter 2, Section 2(a)(iv); Status of unsuitability claims; [30 
CFR 778.16(a)];
    Chapter 2, Section 2(a)(v)(A)(I)(2.); Ground water and surface 
water quality monitoring; [30 CFR 780.21(i) and (j)];
    Chapter 2, Section 2(a)(v)(A)(III); State engineer information (no 
Federal counterpart]; and
    Chapter 4 (title); Environmental Protection Performance Standards 
for Surface Coal Mining Operations [30 CFR part 816].
    3. Chapter 1, Section 2(fs); Definition of ``Violation.''
    Item A.6 of OSMRE's October 2, 2009, 732 letter required Wyoming to 
adopt a State counterpart to the Federal definition of ``violation,'' 
when used in the context of the permit application information or 
permit eligibility requirements. The 732 letter states that in the 2000 
rule (beginning at 65 FR 79605), the term was defined for the first 
time and separately from ``violation notice'' to distinguish action or 
inaction that constitutes a violation from the written notice of 
violation. The letter further explained that the definition added a new 
violation type at (2)(v), when the amount [of bond] forfeited and 
collected is insufficient for full reclamation, the regulatory 
authority is authorized to order reimbursement of the additional 
reclamation costs.
    In response to Item A.6, Wyoming proposed a new rule at Chapter 1, 
Section 2(fs) that is substantively identical to the Federal definition 
of ``violation'' at 30 CFR 701.5. Wyoming also references its 
regulations pertaining to permit application information or

[[Page 57667]]

permit eligibility requirements in proposed Chapter 1, Section 2(fs). 
Referencing these rules in place of the corresponding Federal 
requirements in Sections 507 and 510(c) of SMCRA does not render the 
proposed definition less effective.
    Similarly, Wyoming references its statutes pertaining to bond 
forfeiture and cessation orders at W.S. Sec. Sec.  35-11-421, 422, and 
437, respectively. Referencing these statutes in place of the 
corresponding Federal regulations in subsections (ii)(B) and (E) does 
not render the proposed rules less effective. Wyoming also explains in 
its Statement of Principal Reasons for Adoption (SOPR) that it did not 
provide a counterpart provision to subsection 2(v)(C) of the Federal 
definition regarding bond forfeiture sites that are covered by an 
alternative bonding system because Wyoming does not have an alternative 
bonding system approved under 30 CFR 800.11(e). Wyoming's proposed 
definition of ``violation'' is no less effective than the Federal 
definition at 30 CFR 701.5 and satisfies Item A.6 of OSMRE's October 2, 
2009, 732 letter. Accordingly, we are approving it.
    4. Chapter 2, Section 1(a), Chapter 2, Section 2(a)(i)(G), and 
Chapter 12, Section 1(a)(xi); Certifying and updating existing permit 
application information.
    In response to Item K.1 of OSMRE's October 2, 2009, 732 letter, 
Wyoming revised its rule at Chapter 2, Section 1(a) and proposed new 
rules at Chapter 2, Section 2(a)(i)(G)(I)-(III) pertaining to permit 
application requirements and Chapter 12, Section 1(a)(xi) regarding 
permitting procedures that allow an applicant who has previously 
applied for a permit with the regulatory authority and who has 
information which is already in the AVS to update the information 
required under 30 CFR 778.9.
    Wyoming's newly-proposed rules at Chapter 2, Section 2(a)(i)(G)(I)-
(III) and Chapter 12, Section 1(a)(xi) include counterpart provisions 
to 778.9(a)(1)-(3) and (d), respectively. Wyoming's proposed revision 
to its existing rule at Chapter 2, Section 1(a) includes counterpart 
language to 778.9(b) that requires an applicant to swear or affirm, 
under oath and in writing, that all information the applicant provides 
in an application is accurate and complete. Wyoming also proposed to 
revise its existing rule to include counterpart language to 778.9(c) 
which states that the regulatory authority may establish a central file 
to house the applicant's identity information, rather than place 
duplicate information in each of the applicant's permit files, and will 
make the information available to the public upon request.
    Wyoming's references to its regulations pertaining to required 
permit application information are consistent with references in the 
corresponding Federal requirements and do not render the newly-proposed 
rules less effective. Wyoming's proposed rule changes, taken together, 
satisfy the requirements specified in Item K.1 of OSMRE's October 2, 
2009, 732 letter and are consistent with and no less effective than the 
Federal regulations at 30 CFR 778.9. For that reason, we are approving 
them.
    5. Chapter 2, Section 2(a)(i)(F); Providing applicant and operator 
information.
    Item K.3 of OSMRE's October 2, 2009, 732 letter instructs the 
reader to ``See LQD Rules and Regulations, Chapter 1, Section 2 and 
Chapter 2, Section 2'' regarding counterpart rules to the Federal 
requirements for providing applicant and operator permit history 
information at 30 CFR 778.12. The 732 letter indicates that this 
section was newly added in the 2000 rule and it was constructed from 
provisions in previous 778.13.
    In response to Item K.3, Wyoming proposed new rules at Chapter 2, 
Section 2(a)(i)(F) that require each application for a surface coal 
mining permit to contain a complete identification of interests and 
permit history information required under 30 CFR 778.12.
    Wyoming's proposed rule at Chapter 2, Section 2(a)(i)(F) includes 
counterpart provisions to 778.12(b), and (c), respectively. Wyoming's 
proposed rule language adds specificity to the extent that it requires 
each application for a surface coal mining and reclamation permit 
contain a list of any pending, current or previous permit applications 
held by the applicant and the operator's partner or principal 
shareholders who operate or previously operated a surface coal mining 
operation during the five year period preceding the date of the 
application. Wyoming's proposed rule language in subsection (F) is no 
less effective than the Federal requirements at 778.12(b) and (c) and 
satisfies the applicable requirements specified in Item K.3 of OSMRE's 
October 2, 2009, 732 letter. Accordingly, we are approving it.
    6. Chapter 12, Section 1(a)(x)(A)-(C), (xi) and (xii); Permitting 
procedures; Permit eligibility determinations.
    In response to Item E.6 of OSMRE's October 2, 2009, 732 letter 
Wyoming proposed new rules at Chapter 12, Section 1(a)(x)(A)-(C), (xi) 
and (xii) pertaining to permit eligibility determinations required 
under 30 CFR 773.12.
    Wyoming's newly-proposed rules at Chapter 12, Section 1(a)(x)(A)-
(C) include counterpart provisions for determining permit eligibility 
that are substantively identical to the Federal requirements at 
773.12(a) and (b). Wyoming also references its statutes concerning 
permit eligibility and permanent ineligibility determinations for 
applicants at W.S. Sec.  35-11-406(n) and (o), respectively. Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(xi) includes 
counterpart language to the first part of 773.12(c) that requires an 
applicant to update, correct, or indicate that no change has occurred 
to existing permit application information required by Chapter 2, 
Section 2 following approval but prior to issuance of that permit. 
Lastly, Wyoming proposed a new rule at Chapter 12, Section 1(a)(xii) 
that includes counterpart language to the second part of 773.12(c) and 
subsection (d) which states that once the above requirements are met, 
the DEQ shall request a compliance history report from AVS to determine 
if there are any unabated or uncorrected violations that affect the 
applicant's permit eligibility in subsection (x) above. The DEQ shall 
request this report no more than five business days before a permit is 
issued. If the applicant is ineligible for a permit the DEQ shall send 
written notification of the decision and will detail the reasons for 
ineligibility and include notice of appeal rights.
    Wyoming's references to its statutes and regulations pertaining to 
permit eligibility determinations are consistent with references in the 
corresponding Federal requirements and do not render the newly-proposed 
rules at Chapter 12, Section 1(a)(x)(A)-(C), (xi) and (xii) less 
effective. Wyoming's proposed rule changes, taken together, satisfy the 
requirements specified in Item E.6 of OSMRE's October 2, 2009, 732 
letter and are consistent with and no less effective than the Federal 
regulations at 30 CFR 773.12. For that reason, we are approving them.
    7. Chapter 12, Section 1(a)(x)(D)(II)-(IV); Eligibility for 
provisionally issued permits.
    In response to Item E.8 of OSMRE's October 2, 2009, 732 letter, 
Wyoming proposed new rules at Chapter 12, Section 1(a)(x)(D) (II)-(IV) 
pertaining to eligibility requirements for provisionally issued permits 
under 30 CFR 773.14.
    Wyoming's newly-proposed rule at Chapter 12, Section 1(a)(x)(D) 
(II) includes counterpart provisions to 773.14(a) regarding 
provisionally issued

[[Page 57668]]

permit eligibility for applicants who own or control a surface coal 
mining and reclamation operation with a notice of violation issued 
under Chapter 16 of Wyoming's rules for which the abatement period has 
not yet expired, or a violation that is unabated or uncorrected beyond 
the abatement or correction period.
    Wyoming's newly-proposed rule at Chapter 12, Section 1(a)(x)(D) 
(III) includes counterpart language to 773.14(b)(3) and (4) and states 
that an applicant is eligible for a provisionally issued permit if the 
applicant is pursuing a good faith challenge to all pertinent ownership 
or control listings or findings under Chapter 12, Section 1, or 
administrative or judicial appeal of all pertinent ownership or control 
listings or findings, or contesting the validity of a violation unless 
there is an initial judicial decision affirming the listing or finding 
or the violation, and those decisions remain in force.
    Lastly, Wyoming's newly-proposed rule at Chapter 12, Section 
1(a)(x)(D)(IV) includes counterpart language to 773.14(b)(1), (b)(2), 
and (c) and states that a provisionally issued permit will be 
considered improvidently issued and the Division will begin procedures 
to suspend or rescind the permit as described in Section 1(a)(xiv)(G) 
if the violations are not abated within the specified abatement period, 
or the applicant, operator or operations that the operator or applicant 
own or control do not comply with the terms of an abatement plan or 
payment schedule for fees or penalties assessed. Suspension or 
rescission proceedings will also be initiated if, in the absence of a 
request for judicial review, the disposition of a challenge and any 
subsequent administrative review as discussed above affirms the 
validity of the violation or the ownership or control listing or 
finding, or if the initial judicial review decision discussed above 
affirms the validity of the violation or the ownership or control 
listing or finding.
    Wyoming's references to its regulations pertaining to enforcement 
actions, ownership or control listings or findings, and improvidently 
issued permits are consistent with references in the corresponding 
Federal requirements and do not render the newly-proposed rules less 
effective. Wyoming's proposed rule changes, taken together, satisfy the 
requirements specified in Item E.8 of OSMRE's October 2, 2009, 732 
letter and are consistent with and no less effective than the Federal 
regulations at 30 CFR 773.14. As a result, we are approving them.
    8. Chapter 16, Section 2(h); Post-permit issuance information 
requirements for permittees.
    In response to Item H.2 of OSMRE's October 2, 2009, 732 letter, 
Wyoming proposed revisions to its rules at Chapter 16, Section 2(h) to 
require that permittees provide or update all the ownership and control 
information required under Chapter 2 of its rules within 30 days of 
issuance of a cessation order as required by 30 CFR 774.12(a). In 
addition, Wyoming proposed language to be consistent with and no less 
effective than the Federal counterpart rules at 774.12(b) by stating 
that information does not need to be provided if a court of competent 
jurisdiction has granted a stay of the cessation order and that stay 
remains in effect.
    Wyoming also proposed counterpart language to 774.12(c) which 
requires that within 60 days of any addition, departure or change in 
position of any person identified in Chapter 2, Section 2(a)(i)(E), the 
applicant or permittee shall provide the information required by that 
section and the date of any departure. Wyoming's counterpart provisions 
to 778.11(c) and (d) appear at Chapter 2, Section 2(a)(i)(E).
    Item M of OSMRE's October 2, 2009, 732 letter addressing cessation 
orders under 30 CFR 843.11(g) notes that prior to the 2000 rule, this 
section required notification of those identified as owners and 
controllers when a cessation order was written. The 2000 rule changed 
the notification requirement from only those identified as owners and 
controllers, to a general notification of those persons listed in the 
cessation order that a cessation order has been issued.
    In response to Item M, Wyoming proposed to revise its rule at 
Chapter 16, Section 2(h) by adding counterpart language to 843.11(g) 
that provides a general written notification to those persons listed or 
identified as an owner or controller of the operation in the cessation 
order that a cessation order has been issued.
    Wyoming's references to its regulations pertaining to ownership or 
control information are consistent with references in the corresponding 
Federal requirements and do not render the newly-proposed rule less 
effective. Wyoming's proposed rule changes, taken together, satisfy the 
requirements specified in Items H.2 and M of OSMRE's October 2, 2009, 
732 letter and are consistent with and no less effective than the 
Federal regulations at 30 CFR 774.12 and 843.11(g), respectively. 
Accordingly, we are approving them.

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

    1. Chapters 1 and 2, Omission of the term ``Surface.''
    In a previous rulemaking action, Wyoming proposed to delete the 
definition of ``surface coal mining and reclamation operations'' in 
Chapter 1, Section 2, as well as the word ``surface'' throughout its 
rules in Chapters 1, 2, 4 and 5, respectively. OSMRE subsequently 
disapproved Wyoming's proposed deletions in a June 14, 2011, Federal 
Register notice (76 FR 34816, 34821).
    In response, Wyoming proposed to reinsert its regulatory definition 
of ``surface coal mining and reclamation operations,'' which was 
approved in its November 26, 1980, original program approval, and is 
substantively identical to the Federal definitions found at Section 
701(27) of SMCRA and 30 CFR 700.5, respectively. Wyoming also proposed 
to reinsert the term ``surface'' in its rules where it had been 
previously removed.
    OSMRE replied in a letter dated April 9, 2013, that in order to 
maintain consistency with its rules and be no less effective than the 
corresponding Federal regulations at 30 CFR 701.5 and 778.14(a)(1), 
Wyoming must also include the term ``surface'' in its newly-proposed 
definition of ``Control or Controller'' at Chapter 1, Section 2(aa). In 
addition, Wyoming needs to reinsert the phrase ``For Surface Coal 
Mining Operations'' in the title for Chapter 2, and include the term 
``surface'' in its revised rule at Chapter 2, Section 2(a)(ii)(A)(I) 
regarding the requirement that permit applications contain a complete 
statement of compliance.
    Wyoming responded in a letter dated July 2, 2013, and stated that 
it will add the term ``surface'' to its rules as directed in the April 
9, 2013, concern letter in a future rulemaking.
    Based on the discussion above, we are not approving Wyoming's 
proposed rule changes that omit the term ``surface'' from its rules. We 
also acknowledge Wyoming's commitment to reinstate the term in a future 
rulemaking effort.
    2. Chapter 2, Section 2(a)(i)(B); Adjudication Requirements--
Identification of Interests.
    Item K.3 of OSMRE's October 2, 2009, 732 letter instructs the 
reader to ``See LQD Rules and Regulations, Chapter 1, Section 2 and 
Chapter 2, Section 2'' regarding counterpart rules to the Federal 
requirements for providing applicant and operator permit history 
information at 30 CFR 778.12. The 732 letter indicates that this 
section was

[[Page 57669]]

newly added in the 2000 rule and it was constructed from provisions in 
previous Sec.  778.13.
    In response to Item K.3, Wyoming proposed to revise its rules at 
Chapter 2, Section 2(a)(i)(B) to identify additional organizational 
members in an application for a surface coal mining permit including 
owners of record of ten (10) percent or more of the business entity in 
question, as required under 30 CFR 778.11(b).
    OSMRE replied in a letter dated April 9, 2013, that Wyoming's 
proposed rule at Chapter 2, Section 2(a)(i)(B) includes counterpart 
provisions to Sec.  778.11(b)(1)-(3). In addition, Wyoming's 
counterpart language to Sec.  778.11(b)(4) is found in proposed 
subsection (D). The language in these provisions, taken together, are 
consistent with and no less effective than the Federal regulations at 
30 CFR 778.11(b). However, Wyoming's existing rule language in 
subsection (B) warrants the inclusion of additional clarifying language 
to be consistent with and no less effective than both the Federal 
counterpart rule at 30 CFR 778.12(a) and its proposed rule language in 
Subsection (F). Specifically, Wyoming needs to revise the language in 
subsection (B) to read ``* * * This shall also include a list of all 
the names under which the applicant, the applicant's partners or 
principal shareholders, and the operator and the operator's partners or 
principal shareholders operate or previously operated a surface coal 
mining operation in the United States within the five year period 
preceding the date of submission of the application * * *.'' 
Accordingly, we required Wyoming to further revise its proposed rule 
language to be no less effective than the Federal regulations at 30 CFR 
778.12(a).
    Wyoming responded in a letter dated July 2, 2013, and stated that 
it will draft a revised rule to be consistent with the Federal 
Regulations at 30 CFR 778.12(a) and add the term ``surface'' as 
discussed in Finding III.C.1. above in a future rule package.
    Therefore, we are not approving Wyoming's revised rule at Chapter 
2, Section 2(a)(i)(B). We also acknowledge Wyoming's commitment to 
revise the proposed rule language as discussed above in a future 
rulemaking effort.
    3. Chapter 12, Section 1(a)(x)(D)(I); Unanticipated Events or 
Conditions at Remining Sites.
    Item E.7 of OSMRE's October 2, 2009, 732 letter under ``application 
and permit review requirements'' instructs the reader to ``See LQD Coal 
Rules and Regulations, Chapter 5, Section 7'' regarding unanticipated 
events or conditions at remining sites. Chapter 5, Section 7 of 
Wyoming's rules includes a section on remining, but does not address 
permit eligibility and unanticipated events or conditions at remining 
sites. Consequently, OSMRE required that Wyoming submit counterpart 
rules to the Federal regulations at 773.13.
    In response to Item E.7, Wyoming revised its rules at Chapter 4, 
Section 2(l)(ii)(F) to include a State counterpart to the Federal 
regulations at 30 CFR 773.13(b) that addresses permit eligibility and 
unanticipated events or conditions at remining sites. Wyoming also 
revised its rules at Chapter 12, Section 1(a)(x)(D)(I) to include a 
State counterpart to the Federal regulations at 30 CFR 773.13(a) which 
provides an exception to permit ineligibility for applicants with 
unabated violations that result from unanticipated events or conditions 
on lands eligible for remining.
    OSMRE replied in a letter dated April 9, 2013, that Wyoming's 
newly-proposed rule language at Chapter 4, Section 2(l)(ii)(F) is 
consistent with and no less effective than the Federal regulations. 
However, unlike its newly-proposed rule at Subsection (F), Wyoming does 
not include the phrase ``event or'' in its proposed rule language at 
Chapter 12, Section 1(a)(x)(D)(I) which reads ``from an unanticipated 
condition at a surface coal mining and reclamation operation * * *.'' 
Thus, in order to maintain consistency with its own rules and be no 
less effective than the corresponding Federal regulation at 30 CFR 
773.13(a), we required Wyoming to revise the proposed rule language to 
include the phrase ``event or.''
    Wyoming responded in a letter dated July 2, 2013, and stated that 
Chapter 4, Section 2(l)(ii)(F) is part of a section that is entitled 
``unanticipated conditions'' and that Subsection (F) is the only 
location where the ``event or'' language is found in the rules. For 
this reason, Wyoming believes that the rules in Chapter 12 follow the 
broader language of ``unanticipated conditions'' and therefore does not 
need the ``event or'' language as it would appear that this would 
merely be a synonymous term for ``unanticipated conditions.'' 
Accordingly, Wyoming does not agree that the rules in Chapter 12, 
Section 1(a)(x)(D)(I) are less effective than the Federal counterpart. 
However, Wyoming agreed that if during the final review the rules are 
still found less effective than the Federal counterpart, a revision to 
the rules will be made.
    We disagree with Wyoming's rationale for not revising its rules. 
Specifically, Wyoming's claim that the phrase ``event or'' is 
synonymous with the phrase ``unanticipated conditions'' is erroneous. 
The Federal regulations at 30 CFR 701.5 define ``Unanticipated event or 
condition'' to mean ``an event or condition related to prior mining 
activity which arises from a surface coal mining and reclamation 
operation on lands eligible for remining and was not contemplated by 
the applicable permit.'' While Wyoming does not have a counterpart 
definition in its rules, the Federal definition clearly distinguishes 
between the two terms as demonstrated by the word ``or.'' Moreover, 
because this phrase has been defined, Wyoming's use of the phrase in 
its rules must be consistent with its use in the Federal regulations.
    Based on the discussion above, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(x)(D)(I). We also 
acknowledge Wyoming's willingness to revise the proposed rule language 
we are disapproving in a future rulemaking effort.
    4. Chapter 12, Section 1(a)(viii)(B); Final Compliance Review.
    In response to Item E.4 of OSMRE's October 2, 2009, 732 letter, 
Wyoming revised its rules at Chapter 12, Section 1(a)(viii)(B) to 
include State counterpart language to the Federal regulations at 30 CFR 
773.10(a)-(c) that address an applicant or operator's permit history.
    OSMRE replied in letter dated April 9, 2013, that Wyoming's newly-
proposed rule language is consistent with and no less effective than 
the Federal regulations at 773.10(a) and (b). However, Wyoming's 
proposed rule at subsection (B) warrants the inclusion of additional 
clarifying language with respect to conducting additional ownership or 
control investigations to be consistent with and no less effective than 
the Federal counterpart rule at 30 CFR 773.10(c). Specifically, Wyoming 
needs to revise its proposed rule to read ``* * * if the applicant or 
operator does not have any previous mining experience, additional 
ownership or control investigations may be conducted under subsection 
(ix)(E) below to determine if someone else with mining experience 
controls the mining operation; and * * *.'' Subsection (ix)(E) of 
Wyoming's proposed rules includes counterpart language to 30 CFR 
774.11(f) which is referenced in Sec.  773.10(c). Accordingly, we 
required Wyoming to further revise its proposed rule language to be no 
less effective than the Federal regulations at 30 CFR 773.10(c). We 
also required Wyoming to replace the term ``regulatory authority'' in 
proposed subsection (B) with the appropriate State reference (e.g., 
``Division'') in order to maintain consistency throughout its rules.

[[Page 57670]]

    Wyoming responded in a letter dated July 2, 2013, and stated that 
it will propose rule language, as detailed in OSMRE's April 9, 2013, 
letter to be consistent with the Federal Regulations at 30 CFR 
773.10(c), and will add the previously defined clarifier ``Division'' 
to be consistent with the rest of the Chapter in a future rulemaking.
    Therefore, we are not approving Wyoming's newly-proposed rule at 
Chapter 12, Section 1(a)(viii)(B). We also acknowledge Wyoming's 
commitment to revise the proposed rule language as discussed above in a 
future rulemaking effort.
    5. Chapter 12, Section 1(a)(xiv)(C); Permitting Procedures; 
Challenges to Ownership or Control Listings in AVS.
    In response to Item F.2 of OSMRE's October 2, 2009, 732 letter, 
Wyoming revised its rules at Chapter 12, Section 1(a)(xiv)(C) to 
include a State counterpart provision to the Federal regulations at 30 
CFR 773.26(e) that allows a person who is unsure why he or she is shown 
in AVS as an owner or controller of a surface coal mining operation to 
request an informal explanation from OSMRE's AVS office. The provision 
requires a response to such a request within 14 days.
    During OSMRE's review of the amendment, we found that Wyoming's 
proposed rule language clarifies that a person listed in AVS may 
request an informal explanation from the AVS office at any time, but 
does not include language requiring a response to such a request within 
14 days. Consequently, we are not approving Wyoming's newly-proposed 
rule at Chapter 12, Section 1(a)(xiv)(C).
    6. Chapter 12, Section 1(a)(xiv)(F); Written Agency Decision on 
Challenges to Ownership or Control Listings or Findings.
    In response to Item F.4 of OSMRE's October 2, 2009, 732 letter, 
Wyoming revised its rules at Chapter 12, Section 1(a)(xiv)(F) to 
include State counterpart provisions to the Federal regulations at 30 
CFR 773.28(a)-(f) that address the requirements for written agency 
decisions on challenges to ownership or control listings or findings.
    OSMRE replied in a letter dated April 9, 2013, that Wyoming's 
newly-proposed rule language is consistent with and no less effective 
than the Federal regulations at Sec.  773.28(a)-(d). However, Wyoming's 
proposed rule requires additional clarifying language with respect to 
appeals of written decisions to be consistent with and no less 
effective than the Federal counterpart rule at 30 CFR 773.28(e). 
Specifically, Wyoming's proposed language merely states that ``appeals 
of written decisions will be administered under the Department's Rules 
of Practice and Procedure,'' but does not require that ``all 
administrative remedies be exhausted under the procedures of the 
Wyoming Environmental Quality Act, the Department's Rules of Practice 
and Procedure, the Wyoming Administrative Procedure Act and Chapter 12 
of these Rules and Regulations before seeking judicial review.''
    Similarly, we noted that the last sentence of proposed subsection 
(F) is very general and only states that ``AVS shall be revised as 
necessary to reflect these decisions.'' Consequently, to be consistent 
with and no less effective than the Federal counterpart rule at 30 CFR 
773.28(f) we required Wyoming to further revise subsection (F) to state 
that, ``following the Division's written decision or any decision by a 
reviewing administrative or judicial tribunal, the Division must review 
the information in AVS to determine if it is consistent with the 
decision. If it is not, the Division must promptly revise the 
information to reflect the decision.''
    Wyoming responded in a letter dated July 2, 2013, and stated its 
belief that additional language discussing the exhaustion of remedies 
or referencing the appropriate Wyoming statutes is unnecessary. In 
particular, Wyoming explained that W.S. Sec.  35-11-112 of the 
Environmental Quality Act details the powers and duties of the 
Environmental Quality Council, including the authority to ``conduct 
hearing in any case contesting the administration or enforcement of any 
law, rule, regulation, standard or order issued or administered by the 
department or any division thereof (W.S. Sec.  35-11-112(a)(iii)).'' 
Wyoming also stated that the Rules of Practice and Procedure, as 
referenced in the proposed rule language, are the regulations which 
support the Environmental Quality Act, and notes that W.S. Sec.  35-11-
112(f) also requires that ``[a]ll proceedings of the council shall be 
conducted in accordance with the Wyoming Administrative Procedure 
Act.'' For these reasons, Wyoming believes that if the sections of the 
Environmental Quality Act and the rules are read together, they address 
OSMRE's concerns with regard to the exhaustion of remedies and lack of 
statutory reference.
    We disagree with Wyoming's rationale for not revising its rules. 
Wyoming's lone reference to the Rules of Practice and Procedure in its 
proposed rule language is very general and misleading. For example, the 
exhaustion of administrative remedies is only discussed in the context 
of informal conferences that are held by the DEQ Director for appeals 
of decisions, orders, or notices by the LQD Administrator or assessment 
of penalty by the agency. There is no mention of or discussion 
regarding judicial review. Moreover, Wyoming's claim that the 
relational basis between the Environmental Quality Act, the Rules of 
Practice and Procedure, and the Wyoming Administrative Procedure Act 
serves to address the issues outlined in the concern letter is overly 
vague. To the contrary, Wyoming's explanation is precisely why 
additional clarifying language discussing the exhaustion of 
administrative remedies under specific state program procedures prior 
to seeking judicial review is necessary. We believe that it is not 
reasonable to expect a casual reader of the regulations to intuitively 
follow its complicated explanation regarding the relationship between 
the various Acts and procedures of the program and their application 
without providing more information.
    Thus, Wyoming must revise its proposed rule language to address 
appeals of written agency decisions on challenges to ownership or 
control listings or findings and require that all administrative 
remedies must be exhausted under the procedures of the Wyoming 
Environmental Quality Act, the Department's Rules of Practice and 
Procedure, the Wyoming Administrative Procedure Act and Chapter 12 of 
its Rules and Regulations before any person who receives a written 
agency decision can seek judicial review.
    Wyoming also agreed that additional language should be added to 
Chapter 12, Section l(a)(xiv)(F) to clarify that AVS must be reviewed 
in light of any decisions by reviewing tribunals to determine whether 
AVS properly reflected those decisions. Wyoming stated that draft 
language addressing this concern will be provided in a future 
rulemaking and will be consistent with the suggested revisions 
discussed in the concern letter.
    Based on the discussion above, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(F) concerning 
written agency decisions on challenges to ownership or control listings 
or findings. We also acknowledge Wyoming's commitment to revise the 
proposed rule language to clarify that the Division must review the 
information in AVS to ensure consistency with decisions by reviewing 
administrative or judicial tribunals.
    7. Chapter 12, Section 1(b)(ii); Transfer, Assignment or Sale of 
Permit Rights (TAS).

[[Page 57671]]

    Item I. of OSMRE's October 2, 2009, 732 letter instructs the reader 
to ``See W.S. 35-11-408'' regarding TAS. The 732 letter states that the 
2007 rule clarifies at (a) and (d) of 30 CFR 774.17 that at the 
regulatory authority's discretion, a prospective successor in interest, 
with sufficient bond coverage, may continue to mine during the TAS 
process. This recognizes that an acquiring entity only becomes the 
successor in interest to the rights granted under the permit (under 30 
CFR 705.1) after the regulatory authority approves the transfer, 
assignment, or sale.
    In response to the 732 letter, Wyoming proposed to revise its 
existing rule at Chapter 12, Section 1(b) to apply 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 to permit transfer, assignment or sale of 
permit rights.
    Similarly, Wyoming proposed to revise subsection (b)(ii) by 
applying the requirements imposed by W.S. Sec.  35-11-408 regarding 
procedures for permit transfers to the assignment or sale of permit 
rights.
    Wyoming also revised subsection (b)(ii)(B) by adding a cross 
reference to its rules at Chapter 2, Section 2(a)(i) through (iii), 
which is the counterpart to 30 CFR 778, regarding permit application 
requirements for all legal, financial, compliance and related 
information. Finally, Wyoming added language to require that a 
potential transferee's statement of qualifications include the name, 
address and permit number of the existing permit holder, which is the 
counterpart to 30 CFR 774.17(b)(1)(i).
    OSMRE replied in a letter dated April 9, 2013, that Wyoming's 
attempt to apply the ``permit transfer'' requirements in its statute at 
W.S. Sec.  35-11-408 to its proposed revisions to Chapter 12, Section 
1(b)(ii) is incomplete because the rules do not address many of the 
specific application approval requirements for a transfer, assignment, 
or sale of permit rights at 30 CFR 774.17.
    For example, Wyoming's proposed rule changes do not include 
counterpart provisions to 30 CFR 774.17(b)(2) concerning advertisement 
requirements for newly-filed applications, subsection (d) regarding 
criteria for approval by the regulatory authority that allows a 
permittee to transfer, assign, or sell permit rights to a successor, 
subsection (e) concerning notification requirements, and subsection (f) 
regarding continued operation under an existing permit.
    In addition, the language in W.S. Sec.  35-11-408 and subsections 
(b)(ii)(A) and (B) of Wyoming's rules all refer to a ``potential 
transferee'' and do not address the assignment or sale of permit 
rights. Wyoming does not define ``potential transferee'' in its rules, 
nor does it have a counterpart to the Federal definition of ``successor 
in interest'' at 30 CFR 701.5 as it relates to transfer, assignment or 
sale of permit rights in 30 CFR 774.17. Accordingly, we required 
Wyoming to further revise its proposed rule language by submitting 
counterpart provisions to the specific transfer, assignment, or sale of 
permit rights requirements at 30 CFR 774.17(a)-(f). We also recommended 
that Wyoming submit a counterpart to the Federal definition of 
``successor in interest'' at 30 CFR 701.5.
    Wyoming responded in a letter dated July 2, 2013, and agreed that 
additional revisions to its proposed rule are necessary. Wyoming also 
stated that it will draft proposed revisions to the rules to address 
the concerns noted in the concern letter.
    Therefore, we are not approving Wyoming's proposed rule changes at 
Chapter 12, Section 1(b)(ii) concerning TAS. We also acknowledge 
Wyoming's commitment to revise the proposed rule language as discussed 
above in a future rulemaking effort.

D. Removal of Required Amendments

    1. Required Amendment at 30 CFR 950.16(u); Public availability of 
permit applications and confidentiality.
    Wyoming's current rule at Chapter 2, Section 4(a)(xvii) regarding 
procedures for protecting the confidentiality of qualified 
archeological information was approved by OSMRE in an October 29, 1992, 
Federal Register (57 FR 48987) notice as being no less effective than 
the Federal regulations at 30 CFR 773.6(d)(3)(iii). However, in that 
same 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 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 Federal 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 proposed in a previous rulemaking action to further revise its 
rules at Chapter 2, Section 4(a)(xvii) regarding procedures for 
protecting the confidentiality of qualified archeological information 
by adding language clarifying that information related to the nature 
and location of archeological resources on public lands shall be 
submitted separately from other application materials. Wyoming also 
proposed language stating that requests to disclose confidential 
information shall be administered under the Department of Environmental 
Quality Rules of Practice and Procedure, the Wyoming Public Records 
Act, and the Wyoming Environmental Quality Act. Wyoming noted in its 
SOPR that the proposed revision was intended to clarify the procedures 
and identify the standards that apply to the administration of requests 
for confidential information that is submitted to the Land Quality 
Division. We found that although Wyoming's rationale for making the 
rule change was sound, the proposed language referencing its Public 
Records Act contained an incorrect citation wherein W.S. Sec. Sec.  16-
4-2001 thru 16-4-2005 (2007) was referenced rather than W.S. Sec. Sec.  
16-4-201 thru 16-4-205 (2007). For this reason, we did not approve 
Wyoming's proposed rule revision in a June 14, 2011, Federal Register 
notice (76 FR 34816, 34823) and the required program amendment at 30 
CFR 950.16(u) remained outstanding.
    Wyoming has now corrected the previously identified typographical 
error that resulted in the June 14, 2011, disapproval. We also note 
that Wyoming's counterpart provisions to 30 CFR 773.6(d)(3) regarding 
procedures to ensure confidentiality of qualified permit application 
information can be found in its existing statutes and other rules. For 
example, W.S. Sec.  35-11-1101(a) of the referenced Wyoming 
Environmental Quality Act pertains to public availability of records 
and confidentiality and provides 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 satisfactorily made, the Director and administrators shall

[[Page 57672]]

consider the records, reports or information or particular portions 
thereof, confidential in the administration of the Act.
    In addition, provisions of the referenced Department of 
Environmental Quality Rules of Practice and Procedure (Chapters 1 and 2 
regarding General Rules and Contested Case Proceedings) and the Wyoming 
Public Records Act (W.S. Sec. Sec.  16-4-201-205) fully explain the 
administrative procedures related to requests to disclose confidential 
information, including notice and opportunity to be heard, that apply 
to persons both seeking and opposing the disclosure of such 
information. These statutes and rules, taken together, include 
procedures that ensure the confidentiality of qualified confidential 
information, which shall be clearly identified by the applicant and 
submitted separately from the remainder of the application, and are no 
less effective than the Federal requirements regarding confidentiality 
at 30 CFR 773.6(d)(3). For these reasons, we are approving Wyoming's 
proposed rule change and are removing the required program amendment at 
30 CFR 950.16(u).
    2. Required Amendments at 30 CFR 950.16(p); 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). The required 
program amendment 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.
    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 explained 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, but Wyoming never attempted to revise the 
language and promulgate it anytime after the 1993 comment letter. 
Consequently, in a subsequent rulemaking action Wyoming chose not to 
draft specific language to address the required amendment at 30 CFR 
950.16(p). Rather, Wyoming provided additional clarification and 
suggested 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, addressed 
the required program amendment. In a June 14, 2011, Federal Register 
notice (76 FR 34816, 34823) we found that that the additional 
information provided by Wyoming and the accompanying rationale did not 
address the concerns expressed by OSMRE in the April 12, 1993, comment 
letter and we did not accept Wyoming's explanation for not revising or 
amending its rules in response to 30 CFR 950.16(p). Accordingly, the 
program deficiencies specified in 30 CFR 950.16(p) regarding fish and 
wildlife enhancement measures remained outstanding.
    In response to that disapproval and the required program amendment 
at 30 CFR 950.16(p), Wyoming now proposes to revise its rules at 
Chapter 2, Section 5(a)(viii) to require that, when fish and wildlife 
enhancement measures are not included in a surface coal mining permit 
application, the applicant shall affirmatively demonstrate why such 
measures are not practicable. In addition, Wyoming proposes to revise 
subsection (A) by adding the phrase ``and other enhancement measures'' 
to clarify that enhancement of fish and wildlife resources are not 
limited to revegetation efforts, but also includes the fish and 
wildlife performance standards found at Chapter 4, Section 2(r) of 
Wyoming's rules. Wyoming's proposed revisions make its rules at Chapter 
2, Section 5(a)(viii)(A) consistent with and no less effective than the 
Federal regulations at 30 CFR 780.16(b)(3)(ii) and 784.21(b)(3)(ii) 
respectively, and we are removing the required program amendment at 30 
CFR 950.16(p).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Administrative 
Record Document ID No. OSM-2013-0002-0001), 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 
concerned with or having special expertise relevant to the Wyoming 
program amendment (Administrative Record No. WY-50-03). We received 
comments from two Federal agencies.
    The United States Forest Service (USFS) commented in a February 27, 
2013, email response (Administrative Record Document ID No. OSM-2013-
0002-0010), and the Mine Safety and Health Administration (MSHA) 
commented in a March 1, 2013, letter (Administrative Record Document ID 
No. OSM-2013-0002-0011).
    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 seek the 
views of the EPA on the program amendment and obtain the written 
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), OSMRE requested comments on the 
amendment from EPA (Administrative Record No. WY-50-03). EPA did not 
respond to our request. Because the amendment does not relate to air or 
water quality standards, written concurrence from the EPA is not 
necessary.

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. Although the amendment will not have an effect on historic 
properties, on January 31, 2013, we requested comments on Wyoming's 
amendment from the SHPO and ACHP (Administrative Record Nos. WY-50-04 
and WY-50-05), but neither responded to our request.

V. OSMRE's Decision

    Based on the above findings, we approve, with certain exceptions, 
Wyoming's January 8, 2013, amendment. We do not approve the

[[Page 57673]]

following provisions or parts of provisions.
    As discussed in Finding No. III.C.1, we are not approving Wyoming's 
proposed rule changes that omit the term ``surface'' from its rules in 
Chapters 1 and 2.
    As discussed in Finding No. III.C.2, we are not approving Wyoming's 
revised rule at Chapter 2, Section 2(a)(i)(B) concerning requirements 
for providing applicant and operator permit history information.
    As discussed in Finding No. III.C.3, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(x)(D)(I) regarding 
unanticipated events or conditions at remining sites.
    As discussed in Finding No. III.C.4, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(viii)(B) concerning 
final compliance review of an applicant's or operator's permit history.
    As discussed in Finding No. III.C.5, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(C) concerning 
challenges to ownership or control listings in AVS.
    As discussed in Finding No. III.C.6, we are not approving Wyoming's 
newly-proposed rule at Chapter 12, Section 1(a)(xiv)(F) concerning 
written agency decisions on challenges to ownership or control listings 
or findings.
    As discussed in Finding No. III.C.7, we are not approving Wyoming's 
proposed rule changes at Chapter 12, Section 1(b)(ii) regarding 
Transfer, Assignment or Sale of Permit Rights.
    We are removing existing required amendments and approving, as 
discussed in: Finding No. III.D.1, Chapter 2, Section 4(a)(xvii) 
concerning public availability of permit applications and 
confidentiality; and Finding No. III.D.2, Chapter 2, Section 
5(a)(viii)(A) concerning fish and wildlife enhancement measures.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR part 950, which codify decisions concerning the Wyoming 
program. In accordance with the Administrative Procedure Act, this rule 
will take effect 30 days after the date of publication. 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. SMCRA requires consistency of State and Federal 
standards.

Effect of OSMRE'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 OSMRE 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 OSMRE. 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 the 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

    Pursuant to Office of Management and Budget (OMB) Guidance dated 
October 12, 1993, the approval of state program amendments is exempted 
from OMB review under Executive Order 12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3(a) of Executive Order 12988. The Department determined 
that this Federal Register notice meets the criteria of Section 3 of 
Executive Order 12988, which is intended to ensure that the agency 
review its legislation and proposed regulations to eliminate drafting 
errors and ambiguity; that the agency write its legislation and 
regulations to minimize litigation; and that the agency's legislation 
and regulations provide a clear legal standard for affected conduct 
rather than a general standard, and promote simplification and burden 
reduction. Because section 3 focuses on the quality of Federal 
legislation and regulations, the Department limited its review under 
this Executive Order to the quality of this Federal Register notice and 
to changes to the Federal regulations. The review under this Executive 
Order did not extend to the language of the State regulatory program or 
to the program amendment that the State of Wyoming drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Wyoming program 
submitted and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in sections 2 
and 3 of the Executive Order and with the principles of cooperative 
federalism set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). As such, 
pursuant to section 503(a)(1) and (7) (30 U.S.C. 1253(a)(1) and (7)), 
OSMRE reviewed the program amendment to ensure that it is ``in 
accordance with'' the requirements of SMCRA and ``consistent with'' the 
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

    Executive Order 13211 of May 18, 2001, 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.

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.).

[[Page 57674]]

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: September 19, 2017.
David Berry,
Regional 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 8, 2013..................  December 7, 2017.................  Chapter 1 (Title); Chap. 1, Sec. 2(i);
                                                                       Chap. 1, Sec. 2(u)(ii); Chap. 1, Sec.
                                                                       2(aw); Chap. 1, Sec. 2(az); Chap. 1, Sec.
                                                                       2(br); Chap. 1, Sec. 2(bz); Chap. 1, Sec.
                                                                       2(ca); Chap. 1, Sec. 2(cg); Chap. 1, Sec.
                                                                       2(co); Chap. 1, Sec. 2(cr); Chap. 1, Sec.
                                                                       2(cv); Chap. 1, Sec. 2(dd); Chap. 1, Sec.
                                                                       2(df); Chap. 1, Sec. 2(ds); Chap. 1, Sec.
                                                                       2(ez); Chap. 1, Sec. 2(fi); Chap. 1, Sec.
                                                                       2(fs); Chap. 1, Sec. 3(b)(i) and (c);
                                                                       Chap. 2, Sec. 1(a); Chap. 2, Sec. 1(c);
                                                                       Chap. 2, Sec. 2(a); Chap. 2, Sec.
                                                                       2(a)(i)(C)-(E); Chap. 2, Sec. 2(a)(i)(F);
                                                                       Chap. 2, Sec. 2(a)(i)(G); Chap. 2, Sec.
                                                                       2(a)(ii)(A)(II) and (III); Chap. 2, Sec.
                                                                       2(a)(ii)(B); Chap. 2, Sec. 2(a)(iv);
                                                                       Chap. 2, Sec. 2(a)(v)(A) (I)(2.) and
                                                                       (III); Chap. 2, Sec. 4(a)(xvii); Chap. 2,
                                                                       Sec. 5(a)(viii)(A); Chapter 4 (Title);
                                                                       Chap. 4, Sec. 2(c)(v)(A); Chap. 4, Sec.
                                                                       2(l)(ii)(F); Chap. 12, Sec. 1(a)(viii);
                                                                       Chap. 12, Sec. 1(a) (viii)(A) and (C);
                                                                       Chap. 12, Sec. 1(a)(ix)(A)-(F); Chap. 12,
                                                                       Sec. 1(a)(x)(A)-(C); Chap. 12, Sec.
                                                                       1(a)(x)(D) (II)-(IV); Chap. 12, Sec.
                                                                       1(a)(xi); Chap. 12, Sec. 1(a)(xii); Chap.
                                                                       12, Sec. 1(a)(xiii) (A)-(C); Chap. 12,
                                                                       Sec. 1(a)(xiv)(A, B, D, and (E); Chap.
                                                                       12, Sec. 1(a)(xiv)(G) (I)-(IX); Chap. 12,
                                                                       Sec. 1(b); Chap. 16, Sec. 2(h); Chap. 16,
                                                                       Sec. 2(j); also all minor punctuation,
                                                                       grammatical, and codification changes.
----------------------------------------------------------------------------------------------------------------

Sec.  950.16   [Amended]

0
3. Section 950.16 is amended by removing and reserving paragraphs (p) 
and (u).

[FR Doc. 2017-26432 Filed 12-6-17; 8:45 am]
 BILLING CODE 4310-05-P