[Federal Register Volume 61, Number 181 (Tuesday, September 17, 1996)]
[Rules and Regulations]
[Pages 48835-48843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23677]


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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement

30 CFR Part 902

[AK-004-FOR; Alaska Amendment IV]


Alaska Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM) 
is approving, with certain exceptions and additional requirements, a 
proposed amendment to the Alaska regulatory program (hereinafter 
referred to as the ``Alaska program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA). Alaska proposed revisions to and 
additions of rules pertaining to fees for services, general permitting 
requirements, general permit application information requirements, 
environmental resource information requirements, reclamation and 
operation plan requirements, processing of permit applications, 
permitting for special categories of mining, exploration, the small 
operator assistance program, bonding, performance standards, inspection 
and enforcement, and general provisions. The amendment revised the 
Alaska program to be consistent with the corresponding Federal 
regulations, to clarify ambiguities, and to improve operational 
efficiency.

EFFECTIVE DATE: September 17, 1996.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 672-
5524.

SUPPLEMENTARY INFORMATION:

I. Background on the Alaska Program

    On March 23, 1983, the Secretary of the Interior conditionally 
approved the Alaska program. General background information on the 
Alaska program, including the Secretary's findings, the disposition of 
comments, and conditions of approval of the Alaska program can be found 
in the March 23, 1983, Federal Register (48 FR 12274). Subsequent 
actions concerning Alaska's program and program amendments can be found 
at 30 CFR 902.15 and 902.16.

II. Proposed Amendment

    By letter dated January 26, 1995, and FAX transmittals dated 
February 13 and 14, 1995, Alaska submitted a proposed amendment 
(Amendment IV, administrative record No. AK-E-01) to its program 
pursuant to SMCRA (30 U.S.C. 1201 et seq.). Alaska submitted the 
proposed amendment at its own initiative and in response to (1) letters 
dated November 1, 1989, and February 7, 1990 (administrative record 
Nos. AK-60-05 and AK-60-06), that OSM sent to Alaska in accordance with 
30 CFR 732.17(c), and (2) required program amendments at 30 CFR Part 
902.16(a)(1), (2), (3), (6) through (14), and (16).
    The provisions of the Alaska Administrative Code (AAC) that Alaska 
proposed to revise, repeal, and add were: 11 AAC 05.010(a)(9)(D), fees 
for incidental boundary revisions; 11 AAC 90.002, responsibilities; 11 
AAC 90.003, continued operation under interim permits; 11 AAC 90.011, 
permit fees; 11 AAC 90.023, identification of interests and compliance 
information; 11 AAC 90.025, authority to enter and ownership 
information; 11 AAC 90.045(a), geology description; 11 AAC 90.049(2), 
surface water information; 11 AAC 90.083(b), reclamation plan general 
requirements; 11 AAC 90.097, transportation facilities; 11 AAC 90.099, 
return of coal mine waste to abandoned underground workings; 11 AAC 
90.117, administrative processing of permit applications; 11 AAC 
90.125, Commissioner's [of Natural Resources] findings; 11 AAC 90.126, 
improvidently issued permits; 11 AAC 90.127, permit conditions; 11 AAC 
90.129, permit revisions and renewals; 11 AAC 90.149(d), operations 
near alluvial valley floors; 11 AAC 90.163, exploration that 
substantially disturbs the natural land surface or occurs in areas 
designated unsuitable for mining; 11 AAC 90.173(b), eligibility for 
small operator assistance; 11 AAC 90.207(f), self-bonding provisions; 
11 AAC 90.321(d), hydrologic balance; 11 AAC 90.323(a), water quality 
standards; 11 AAC 90.325(a), diversions and conveyance of flows; 11 AAC 
90.327 (b) and (c), stream channel diversions; 11 AAC 90.336(b), 
impoundment design and construction; 111 AAC 90.337(f), impoundment 
inspection; 11 AAC 90.341(b), underground mine entry and access 
discharges; 11 AAC 90.345(e), surface and ground water monitoring; 11 
AAC 90.375(f), public notice of blasting; 11 AAC 90.391, disposal of 
excess spoil or coal mine waste; 11 AAC 90.401(e), coal mine waste, 
refuse piles; 11 AAC 90.407(e), coal mine waste, dams and embankments; 
11 AAC 90.409, return of coal mine waste to underground workings; 11 
AAC 90.423(b), protection of fish and wildlife; 11 AAC 90.443 (d) and 
(k), backfilling and grading; 11 AAC 90.457 (c) and (d), standards for 
revegetation success; 11 AAC 90.491, construction and maintenance of 
roads, transportation and support facilities, and utility 
installations; 11 AAC 90.601, inspections; 11 AAC 90.613, cessation 
orders; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for coal 
extraction incidental to the extraction of other minerals; 11 AAC 
90.907, public participation; and 11 AAC 90.911, definitions. 
Additionally, Alaska proposed several minor editorial revisions.
    OSM announced receipt of the proposed amendment in the February 27, 
1995, Federal Register (60 FR 10520), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. AK-E-05). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on March 29, 1995.
    During its review of the amendment, OSM identified concerns 
relating to the provisions of the Alaska Administrative Code at 11 AAC 
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.023, identification 
of interests and compliance information; 11 AAC 90.117, administrative 
processing of permit applications; 11 AAC 90.125, Commissioner's 
findings; 11 AAC 90.126, improvidently issued permits; 11 AAC 90.129, 
permit revisions and renewals; 11 AAC 90.149(d), operations near 
alluvial valley floors; 11 AAC 90.173, eligibility for small operator 
assistance; 11 AAC 90.207(f), self-bonding provisions; 11 AAC 90.327, 
stream channel diversions; 11 AAC 90.336, impoundment design and 
construction; 11 AAC 90.391, disposal of excess spoil or coal mine 
waste; 11 AAC 90.409, return of materials to underground workings; 11 
AAC 90.423, protection of fish and wildlife; 11 AAC 90.443, backfilling 
and grading; 11 AAC 90.457, revegetation success standards; 11 AAC 
90.491, construction and maintenance of roads, transportation and 
support facilities, and utility installations; 11 AAC 90.601, 
inspections; 11 AAC 90.901, applicability; 11 AAC 90.902, exemption for 
coal extraction incidental to the extraction of other minerals; 11 AAC 
90.907, public participation; and 11 AAC 90.911, definitions. OSM 
notified Alaska of the concerns by letter

[[Page 48836]]

dated July 19, 1995 (administrative record No. AK-E-12).
    Alaska responded in letters dated October 11 and 24, 1995, and by a 
FAX transmittal dated October 23, 1995, by submitting a revised 
amendment and additional explanatory information and withdrawing 
certain provisions (administrative record No. AK-E-14). Alaska proposed 
revisions to and additional explanatory information for: 11 AAC 
05.010(a)(9)(D) and 11 AAC 90.011, fees; 11 AAC 90.045(a), geology 
description; 11 AAC 90.099, return of coal mine waste and excess spoil 
to abandoned underground workings; 11 AAC 90.149(d), operations near 
alluvial valley floors; 11 AAC 90.163, exploration that occurs in an 
area designated unsuitable for surface coal mining; 11 AAC 90.207, 
self-bonding provisions; 11 AAC 90.327, stream channel diversions; 11 
AAC 90.391, disposal of excess spoil or coal mine waste; 11 AAC 90.409, 
coal mine waste, return to underground workings; 11 AAC 90.423, 
protection of fish and wildlife; 11 AAC 90.443, backfilling and 
grading; 11 AAC 90491, construction and maintenance of roads, 
transportation and support facilities, and utility installations; 11 
AAC 90.901, applicability; and 11 AAC 90907, public participation.
    In addition, Alaska withdrew proposed revisions and additions at: 
11 AAC 90.023, identification of interests and compliance information; 
11 AAC 90.117, administrative processing of permit applications; 11 AAC 
90.125, Commissioner's findings; 11 ACC 90.126, improvidently issued 
permits; 11 AAC 90.127, permit conditions; 11 AAC 90.129, permit 
revisions and renewals; 11 AAC 90.336, impoundment design and 
construction; 11 AAC 90.457, revegetation success standards; 11 AAC 
90.601, inspections; 11 AAC 90.613, cessation order; 11 AAC 90.902, 
exemption for coal extraction incidental to the extraction of other 
minerals; and 11 AAC 90.911, definitions.
    Based upon the revisions to and additional explanatory information 
for the proposed amendment submitted by Alaska and the withdrawal of 
certain proposed provisions, OSM reopened the public comment period in 
the November 9, 1995, Federal Register (60 FR 56547; administrative 
record No. AK-E-21). The public comment period ended on November 24, 
1995.

III. Director's Findings

    As discussed below, the Director, in accordance with SMCRA and 30 
CFR 732.15 and 732.17, finds, with certain exceptions and additional 
requirements, that the proposed program amendment submitted by Alaska 
on January 26 and February 13 and 14, 1995, and as revised by it and 
supplemented with additional explanatory information on October 11, 23, 
and 24, 1995, is no less effective than the corresponding Federal 
regulations. Accordingly, the Director approves the proposed amendment.

1. Nonsubstantive Revisions to Alaska's Rules

    Alaska proposed revisions to the following previously-approved 
rules that are non substantive in nature and consist of minor 
editorial, punctuation, grammatical, and recodification changes 
(corresponding Federal regulation provisions are listed in 
parentheses):

11 AAC 90.025(b) and (c) (30 CFR 778.15(a) and (b)), right of entry 
information,
11 AAC 90.049(2) and (2)(E) through (H) (30 CFR 780.21(b)(2) and 
784.14(b)(2)), surface water information,
11 AAC 90.083(b)(10) and (11) (30 CFR 780.27, 780.37(a)(4), and 
784.24(a)(4)), reclamation plan general requirements,
11 AAC 90.149(d) (30 CFR 785.19(b)(2)), operations near alluvial 
valley floors,
11 AAC 90.163(b), (c), and (c)(3)(B) (30 CFR 772.14(b)(1), and 
(b)(2)(i), exploration that substantially disturbs the natural land 
surface or occurs in an area designated unsuitable for mining,
11 AAC 90.391(b) (30 CFR 816.71(b) and 817.71(b)), disposal of 
excess spoil or coal mine waste,
11 AAC 90.401(e) (30 CFR 816.83(c)(4) and 817.83(c)(4)), coal mine 
waste refuse piles,
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8) (30 CFR 816.150(b), 
(b)(4), (f)(4), and (f)(6) and 817.150(b), (b)(4), (f)(4), and 
(f)(6)), construction and maintenance of roads, transportation and 
support facilities, and utility installations, and
11 AAC 90.907(e), (f), (g), (h), and (j) (30 CFR 740.13(c), 
772.12(c), 773.13, 774.17(c), 785.13(h), 800.40, and 840.15), public 
participation.

    Because the proposed revisions to these previously-approved rules 
are nonsubstantive in nature, the Director finds that these proposed 
Alaska rules are no less effective than the Federal regulations. The 
Director approves these proposed rules.

2. Substantive Revisions to Alaska's Rules That Are Substantively 
Identical to the Corresponding Provisions of the Federal Regulations

    Alaska proposed revisions to the following rules that are 
substantive in nature and contain language that is substantively 
identical to the requirements of the corresponding Federal regulation 
provisions (listed in parentheses):

11 AAC 05.010(a)(11)(D) and 11 AAC 90.011 (30 CFR 777.17), permit 
fees,
11 AAC 90.002 (30 CFR Part 772 and 773.11), responsibilities under 
general permitting requirements,
11 AAC 90.025(a) (30 CFR 778.13(e) and (f)), authority to enter and 
ownership information,
11 AAC 90.045(a) (30 CFR 780.22(b)(1) and 784.22(b)(1)), geology 
description,
11 AAC 90.049(2)(D) (30 CFR 780.21(b)(2) and 784.14(b)(1)), surface 
water information,
11 AAC 90.083(b)(12) (30 CFR 780.37(a)(6) and 784.24(a)(6)), 
reclamation plan general requirements,
11 AAC 90.097 (30 CFR 780.37(a)(1), (3), and (5) and 784.24(a)(1), 
(3), and (5)), transportation facilities,
11 AAC 90.149(d)(1) (30 CFR 785.19(d)(2)(1)), operations near 
alluvial valley floors,
11 AAC 90.163, (a), (b)(1), (c)(4), and (c)(5) (30 CFR 772.12(a) and 
772.14(b), (b)(1), (3), and (4)), exploration that substantially 
disturbs the natural land surface or occurs in an area designated 
unsuitable for mining,
11 AAC 90.207(f)(1), (2), and (4) through (7) (30 CFR 800.16(e)(2) 
and 800.23(b), (c)(1), and (d) through (g)), requirements for self-
bonding,
11 AAC 90.375 (30 CFR 816.64(b) and 817.64(b)), public notice of 
blasting,
11 AAC 90.391 (h) and (s) (30 CFR 816.71 (g) and (i) and 817.71 (g) 
and (i)), disposal of excess spoil or coal mine waste,
11 AAC 90.407(e) (30 CFR 816.84(b)(2) and 817.84(b)(2)), coal mine 
waste, dams and embankments,
11 AAC 90.409 (30 CFR 816.71(j), 817.71(j), 816.81(f), and 
817.81(f), return to underground workings,
11 AAC 90.423(b) and (h) (30 CFR 780.16(c), 784.21(c), 816.97(b), 
and 817.91(b)), protection of fish and wildlife,
11 AAC 90.443(d)(1) (30 CFR 816.106(b)(1) and 817.106(b)(1)), 
backfilling and grading of previously mined areas,
11 AAC 90.491(a)(1), (6), and (8), (c) (5) through (7), and (e) (30 
CFR 816.150(b)(1), (3), (7), (d), and (f) (3) and (6); 816.181(b) 
(1) and (2)(ii), 817.150(b)(1), (3), and (7), (d), and (f) (3) and 
(6); and 817.181(b) (1) and (2)(ii)), construction and maintenance 
of roads, transportation and support facilities, and utility 
installations,
11 AAC 90.901(e) (30 CFR 700.11(d)(1)(ii)), applicability, and
11 AAC 90.907 (c) and (d) (30 CFR 840.14 (b) and (c)(2)), public 
participation.

    Because these proposed Alaska rules are substantively identical to 
the corresponding provisions of the Federal regulations, the Director 
finds that they are no less effective than the Federal regulations. The 
Director approves these proposed rules.

3. 11 AAC 90.003. Continued Operation Under Interim Permits

    Alaska proposed to repeal 11 AAC 90.003, which provides that a 
person operation under a permit issued or amended by the Commissioner 
in accordance with section 502 of SMCRA

[[Page 48837]]

may conduct operations more than eight months after approval of the 
Alaska program if certain criteria are met. 11 AAC 90.003 is 
substantively the same as the counterpart Federal regulations at 30 CFR 
773.11(b)(2), which provide for continuation of initial program 
operations when certain conditions are met. Alaska has informed OSM 
that there are no interim permits within the State. Therefore, the 
Director finds that 11 AAC 90.003 is no longer applicable in Alaska's 
program. The Director approves the repeal of this rule.

4. 11 AAC 90.099, Return of Coal Mine Waste and Excess Spoil to 
Abandoned Underground Workings

    Alaska proposed to revise 11 AAC 90.099 to require that the 
underground mining plan must describe the design, operation, and 
maintenance of any proposed facility to return coal mine waste and 
excess spoil to underground workings, including flow diagrams and other 
drawing and maps required by the Commissioner, and that the permit 
application also include any plans required to be submitted to the 
Federal Mine Safety and Health Administration (MSHA) under 30 CFR 
817.81(f). The Federal regulations at 30 CFR 784.25(a) provide, in 
pertinent part, that each plan shall describe the design, operation and 
maintenance of any proposed coal processing waste disposal facility, 
for the approval of the regulatory authority and MSHA under 30 CFR 
817.81(f). The performance standards at reference 30 CFR 817.81(f) and 
those concerning excess spoil at 30 CFR 817.71(j) allow for the 
disposal of coal mine waste and excess spoil in underground mine 
workings in accordance with a plan approved by the regulatory authority 
and MSHA under 30 CFR 784.25. Despite the fact that the plan 
requirements at 30 CFR 784.25 do not specifically provide for the 
underground disposal of excess spoil, the reference to 30 CFR 784.24 in 
the performance standard at 30 CFR 817.71(j), which provides that 
excess spoil may be disposed of in underground workings, clearly does 
provide for such disposal. Therefore, the Director finds that the 
proposed revision by Alaska at 11 AAC 90.099 is no less effective than 
the Federal regulations at 30 CFR 784.25(a), 817.81(f) and 817.71(j). 
The Director approves the revisions to this rule.

5. 11 AAC 90.163(C) (4) and (5), Exploration That Substantially 
Disturbs the Natural Land Surface or Occurs in an Area Designated 
Unsuitable for Surface Coal Mining

    Alaska proposed the addition of new provisions at 11 AAC 90.163(c) 
(4) and (5) to require that the demonstration that coal testing is 
necessary for the development of a surface coal mining and reclamation 
operation must also include evidence that sufficient reserves of coal 
are available to the applicant for future commercial use or sale and an 
explanation of why other mean of exploration are not adequate. Proposed 
11 AAC 90.163(c) (4) and (5) are substantively the same as the 
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4). They 
are also identical to existing 11 AAC 90.163(d) (1) and (2). It is not 
clear to OSM why Alaska choose to add 11 AAC 90.163(c) (4) & (5) to its 
rules when the same requirements already existed at 11 AAC 90.163(d) 
(1) and (2). The Director finds that the addition of the provisions at 
11 AAC 90.163(c) (4) and (5) is superfluous; however, the addition of 
these provisions does not render Alaska's rule less effective than the 
counterpart Federal regulations at 30 CFR 772.14(b) (3) and (4). 
Therefore, the Director approves the addition of these rules.

6. 11 AAC 90.207(f), Requirements for Self-Bonding

    Alaska proposed new rules at 11 AAC 90.207(f) to provide specific 
requirements for self-bonding. With the exceptions discussed below, the 
proposed 11 AAC 90.207(f) is substantively similar to the requirements 
of the counterpart Federal regulations at 30 CFR 800.23. Therefore, the 
Director finds proposed 11 AAC 90.207(f) to be no less effective than 
the Federal regulations and approves it.
    a. 11 AAC 90.207(f), Definitions of ``self-bond'' and other terms 
concerning financial statements.--Alaska's rules at 11 AAC 90.207 do 
not define ``self-bond,'' which is an allowable form of bond under the 
Federal regulations at 30 CFR 800.23. The term `'self-bond'' as defined 
at 30 CFR 800.5(c) means ``an indemnity agreement in a sum certain 
executed by the applicant or by the applicant and any corporate 
guarantor and made payable to the regulatory authority with or without 
a separate surety.''
    OSM, in its July 19, 1995, issue letter, notified Alaska of the 
lack of a counterpart definition in its rules (issue No. 9). Alaska's 
response, dated October 11 and 24, 1995, provided that the term ``self-
bond'' was defined at Alaska Statute (AS) 27.21.160(d). AS 27.21.160(d) 
is Alaska's statutory counterpart to section 509(c) of SMCRA, which 
provides the conditions under which the regulatory authority may accept 
a self-bond. Neither the Alaska statute nor the cited section of SMCRA 
define ``self-bond.'' Therefore, the Director finds that the lack of a 
definition of ``self-bond'' at 11 AAC 90.207(f) is less effective than 
the Federal regulations and is requiring Alaska to add a definition of 
`'self-bond'' to its rules or otherwise revise its program to define 
``self-bond'' consistent with the Federal regulations at 30 CFR 
800.5(c).
    In addition, Alaska's proposed rules at 11 AAC 90.207(f) do not 
include definitions for financial statement terms associated with self-
bonding such as ``current assets,'' ``current liabilities,'' ``fixed 
assets,'' ``liabilities,'' ``net worth,'' and ``tangible net worth.'' 
The Federal regulations at 30 CFR 800.23(a) provide definitions for 
financial statement terms because they are terms used in the provisions 
concerning self-bonding to clarify what is meant or required by the 
self-bonding financial tests. The terms are defined to avoid 
misunderstandings about what an applicant can and cannot include in its 
self-bonding application. This is necessary because not all financial 
term definitions are consistent with standard accounting definitions. 
For example, `'fixed assets,'' as defined for self-bonding, does not 
allow land and coal in place to be counted as fixed assets because they 
are difficult to evaluate and to liquidate. Standard accounting 
principles, on the other hand, allow land and coal in place to be 
counted as an asset when calculating total assets.
    Therefore, the Director finds 11 AAC 90.207(f) to be less effective 
than the counterpart Federal regulations at 30 CFR 800.23(a) to the 
extent that the Alaska rule does not define the financial statement 
terms used specifically for self-bonding. The Director requires Alaska 
to provide financial statement definitions that are similar to the 
definitions provided in the Federal regulations or otherwise revise its 
program to be consistent with and no less effective than the Federal 
regulations at 30 CFR 800.23(a)
    b. 11 90.207(f)(3), Agent for service.--The rules proposed by 
Alaska at 11 AAC 90.207(f)(3) provide requirements for acceptance of a 
corporate guarantee of an applicant's self-bond, including requirements 
concerning business history, submission of financial statements, and an 
agent for service of process in Alaska. These requirements are 
consistent with the Federal regulations at 30 CFR 800.23(c)(2), except 
that the Federal regulations contain an additional requirement 
concerning an agent for service for the applicant. The Director finds, 
to the extent that 11 AAC 90.207(f)(3) does not require an applicant 
whose self-bond is

[[Page 48838]]

guaranteed by a corporate guarantor to maintain its own agent for 
service of process in Alaska, that Alaska's rule is less effective than 
the counterpart Federal regulations at 30 CFR 800.23(c)(2). The 
Director requires Alaska to amend its rule to require an applicant for 
a self-bond to meet the requirements of 11 AAC 90.207(f)(1) (A), (C), 
and (D), otherwise revise its program to require the permittee to 
maintain an agent for service of process while its self-bond is 
guaranteed by a corporate guarantor.

7. 11 AAC 90.321(d), Hydrologic Balance

    Alaska proposed at 11 AAC 90.321(d) to require that the 
Commissioner will, in the Commissioner's discretion, require operation 
of necessary ``siltation structures,'' rather than water treatment 
facilities, for as long as treatment is required. The counterpart 
Federal regulations at 30 CFR 816.41 (a) and (d) provide, in pertinent 
part, that the regulatory authority may require additional 
preventative, remedial, or monitoring measures to assure that material 
damage to the hydrologic balance outside the permit area is prevented 
and that if drainage control, restabilization and revegetation of 
disturbed areas, diversion of runoff, mulching, or other reclamation 
and remedial practices are not adequate, the operator shall use and 
maintain the necessary water-treatment facilities or water quality 
controls. Further, the Federal regulations at 30 CFR 701.5 define 
``siltation structure'' to mean ``a sedimentation pond, a series of 
sedimentation ponds, or other treatment facility.'' Alaska has no 
counterpart definition for ``siltation structure.'' Because Alaska's 
rule lacks the requirement that the operator maintain and use necessary 
water-treatment facilities, not just siltation structures, the Director 
finds 11 AAC 90.321(d) to be less effective than the Federal 
regulations at 30 CFR 816.41 (a) and (d) and 817.41 (a) and (d). The 
Director does not approve 11 AAC 90.321(d) and requires Alaska to 
revise it by ensuring that water treatment facilities will be operated 
for as long as necessary or by adding a definition of ``siltation 
structure'' to its rules that is no less effective than the Federal 
definition of this term at 30 CFR 701.5.

8. 11 AAC 90.323(a), Water Quality Standards

    Alaska proposed nonsubstantive editorial changes at 11 AAC 
90.323(a), which are approved by the Director (see finding No. 1); 
however, existing language contained in this provision provides that 
discharges from underground workings to surface water and surface 
drainage from the disturbed area must pass through one or more 
``siltation structures.'' As discussed in finding No. 7 above, the 
Director finds use of the term ``siltation structure'' to be less 
effective than the Federal regulations at 30 CFR 816.41 (a) and (d) and 
817.41 (a) and (d). The Director requires Alaska to revise 11 AAC 
90.323 (a) to replace ``siltation structures'' with ``sedimentation 
ponds or a treatment facility,'' or otherwise amend its regulatory 
program to provide a definition of ``siltation structures'' that is no 
less effective than the Federal definition of this term at 30 CFR 
701.5.

9. 11 AAC 90.325(a), Diversions and Conveyance of Flow

    Alaska proposed at 11 AACV 90.325(a) to require that all diversions 
and collection drains that are used to transport water into ``siltation 
structures,'' rather than ``treatment facilities,'' must meet the 
requirements of this section for diversions and conveyance of flow. The 
counterpart Federal regulations at 30 CFR 816.43(a) and (c)(2) and 
817.43(a) and (c)(2) provide, in pertinent part, that all diversions 
shall be designed to minimize the adverse impacts to the hydrologic 
balance, which includes, as provided at 30 CFR 816.41(d)(1) and 
817.41(d)(1), the use and maintenance of necessary water-treatment 
facilities or water quality controls if drainage control, 
restabilization and revegetation of disturbed areas, diversion of 
runoff, mulching, or other reclamation or remedial practices are not 
adequate to meet the hydrologic-balance protection requirements and the 
water quality standards and effluent limitations. Therefore, because 
Alaska's rule uses the term ``siltation structure,'' which is not 
defined in the Alaska program, and because the rule lacks the 
requirement that the operator maintain and use necessary water-
treatment facilities, not just siltation structures, the Director finds 
11 AAC 90.325(a) to be less effective than the Federal regulations at 
30 CFR 816.41(d)(1) and 817.41(d)(1), and does not approve the 
replacement of ``treatment facilities'' with ``siltation structures.'' 
The Director requires Alaska to revise 11 AAC 90.325(a) by ensuring 
that water treatment facilities will be operated for as long as 
necessary or by adding a definition of ``siltation structure'' to its 
rules that is no less effective than the Federal definition of this 
term at 30 CFR 701. 5.

10. 11 AAC 90.327(b)(1) and (c), Stream Channel Diversions

    Alaska proposed at 11 AAC 90.327 (b)(1) and (c) to replace 
``erosion control structures'' and ``water treatment facilities'' with 
the term ``siltation structures.'' The Director finds such replacement 
to be less effective than the counterpart Federal regulations at 30 CFR 
816.43 (a)(1) and (3) and 817.43 (a)(1) and (3) for the reasons 
discussed below.
    a. 11 AAC 90.327(b)(2), Design and Construction of stream channel 
diversions.--Alaska proposed at 11 AAC 90.327(b)(1) to require that 
``siltation structures'' rather than ``erosion control structures'' 
must be approved by the Commissioner and should be used only if 
necessary to control erosion.
    In the context of describing Federal performance standards for 
stream channel diversions, ``erosion control structures'' and 
``siltation structures'' are different kinds of structures and not 
inter-changeable. The preamble for the Federal regulations at 30 CFR 
816.44(b)(1) (44 FR 15399, March 13, 1979) stated that ``erosion 
control structures such as channel lining structures, retention basins, 
and artificial channel roughness structures shall be used in diversions 
only when approved by the regulatory authority as being necessary to 
control erosion.'' Because the Alaska program lacks a definition for 
``siltation structures,'' it is not known whether ``siltation 
structures,'' as used here, would include structures such as channel 
linings, gabions, or retention basins. Therefore, the Director does not 
approve at proposed 11 AAC 90.327(b)(1) the replacement of the term 
``erosion control structures'' with ``siltation structures,'' and 
requires Alaska to continue to use ``erosion control structures'' when 
describing standards for stream channel diversions used to control 
erosion.
    b. 11 AAC 90.327(c), Removal of temporary stream channel 
diversions.--Alaska proposed at 11 AAC 90.327(c) to require that 
downstream ``siltation structures,'' rather than ``water treatment 
facilities,'' previously protected by the diversion, must be modified 
or removed at the time diversions are removed to prevent overtopping or 
failure of the facilities, and that this requirement does not relieve 
the operator from maintenance of a ``siltation structure,'' rather than 
a ``water treatment facility,'' otherwise required under this chapter 
or the permit. The counterpart Federal regulations at 30 CFR 
816.43(a)(3) and

[[Page 48839]]

817.43(a)(3) require, in pertinent part, that downstream water-
treatment facilities previously protected by a diversion shall be 
modified or removed, as necessary, to prevent overtopping or failure of 
the facilities, and that this requirement shall not relieve the 
operator from maintaining water-treatment facilities as otherwise 
required. Because Alaska has not defined ``siltation structures,'' the 
Director finds that replacement of ``water treatment facilities'' or 
water treatment facility'' with ``siltation structures'' or ``siltation 
structure'' is less effective than 30 CFR 816.43(a)(3) and 
817.43(a)(3). The Director is not approving proposed 11 AAC 90.327(c) 
and is requiring Alaska to revise it by retaining the terms ``water 
treatment facilities'' and ``water treatment facility,'' or to provide 
a definition of ``siltation structures'' that includes ``water-
treatment facilities.''

11. 11 AAC 90.337(f), Impoundment Inspection

    Alaska proposed at 11 AAC 90.337(f) to require that in addition to 
the formal inspections required under 11 AAC 90.337(a) through (e), all 
impoundments must be examined at least once a quarter by a qualified 
person for any appearances of structural weakness or other hazardous 
conditions. The Federal regulations at 30 CFR 816.49(a)(12) and 
817.49(a)(12) require, in pertinent part, that impoundments not meeting 
the SCS (Soil Conservation Service, now Natural Resources Conservation 
Service) class B or C criteria for dams in TR-60, or subject to 30 CFR 
77.216-3, shall be examined at least quarterly. The Director finds 11 
AAC 90.337(f), which requires that all impoundments must be examined at 
least quarterly, is no less effective than the Federal regulations and 
approves the revisions to this rule.

12. 11 AAC 90.341(b)(2), Underground Mine Entry and Access Discharges

    Alaska proposed at 11 AAC 90.341(b)(2) to replace ``treatment 
facility'' with ``siltation structure,'' and allow gravity discharge of 
water from an underground mine if all water discharged, whether treated 
or not, meets applicable State and Federal laws and regulations, and 
the Commissioner finds that consistent maintenance of any siltation 
structure required under 11 AAC 90.323 will occur throughout the 
anticipated period of gravity discharge. The Federal regulations at 30 
CFR 817.41(i)(1) require, in pertinent part, that gravity discharges of 
water from underground mines may be allowed by the regulatory authority 
if it is demonstrated that the untreated or treated discharge complies 
with the performance standards of this part. This part includes the 
provisions at 817.41(d)(1), concerning protection of the hydrologic 
balance and monitoring, 817.42, concerning water quality standards, and 
817.46(b)(5), concerning maintenance of siltation structures until 
removal is authorized by the regulatory authority. As discussed in 
previous findings, because Alaska has not defined ``siltation 
structures,'' the Director finds that use of the term ``siltation 
structures'' is less effective than the Federal regulations at 30 CFR 
817.46(b)(5). The Director does not approve proposed 11 AAC 
90.341(b)(2) and requires Alaska to revise it to provide for consistent 
maintenance of any treatment facility used during the anticipated 
period of gravity discharge, or otherwise revise its regulatory program 
to ensure that ``siltation structure'' is defined in accordance with 30 
CFR 701.5.

13. 11 AAC 90.345(e), Surface and Ground Water Monitoring

    Alaska proposed at 11 AAC 90.345(e), concerning the monitoring of 
stream, lake, and other surface water bodies that may be affected by 
the mining operation or that will receive a discharge, to require that 
the monitoring must be conducted at both upstream and downstream 
locations in all receiving water bodies. The Federal regulations 
concerning ground-water and surface-water monitoring at 30 CFR 
816.41(c) and (e) and 817.41(c) and (e) require that monitoring shall 
be conducted according to the ground-water monitoring plan and surface-
water monitoring plan approved under 30 CFR 780.21(i) and (j) for 
surface mining activities and 30 CFR 784.14(h) and (i) for underground 
mining activities, and that the regulatory authority may require 
additional monitoring when necessary. There is no specific Federal 
regulatory counterpart to Alaska's proposed rule at 11 AAC 90.345(e), 
which requires both upstream and downstream monitoring locations. 
However, the proposed requirement is not inconsistent with the Federal 
regulations. Therefore, the Director finds that proposed 11 AAC 
90.345(e) is no less effective than 30 CFR 816.41(c) and (e) and 
817.41(c) and (e), which provide, in addition to conducting monitoring 
in accordance with the approved monitoring plan, that the regulatory 
authority may require additional monitoring when necessary. The 
Director approves the proposed revisions to this rule.

14. 11 AAC 90.443(k), Backfilling and Grading

Alaska proposed new language at 11 AAC 90.443(k) to provide that spoil 
shall be returned to the mined-out area, except for (1) excess spoil 
disposed of in accordance with 11 AAC 90.391, and (2) spoil necessary 
to blend regraded areas into the surrounding terrain in non-steep slope 
areas so long as all vegetative and organic material is removed. The 
counterpart Federal regulations at 30 CFR 816.102(b) provide that 
spoil, except excess spoil disposed of in accordance with 30 CFR 816.71 
through 816.74, shall be returned to the mined-out area. In addition, 
30 CFR 816.102(d) (1) through (3) provide that spoil may be placed on 
the area outside the mined-out area in nonsteep slope areas to restore 
the approximate original contour by blending the spoil into the 
surrounding terrain if certain requirements are met, including removal 
of all vegetative and organic material, removal, segregation, storage 
and redistribution of topsoil, and backfilling and grading of the spoil 
in accordance with the requirements of 30 CFR 816.102.
    Alaska's proposed rule at 11 AAC 90.443(k) is similar to the 
Federal regulations at 30 CFR 816.102 (b) and (d), except that Alaska's 
rule does not require that (1) the topsoil on the area outside the 
mined-out area in nonsteep slope areas be removed, segregated, stored, 
and redistributed in accordance with Alaska's counterpart to the cited 
Federal regulation at 30 CFR 816.22, and (2) the spoil to be placed on 
the area outside the mined-out area in nonsteep slope areas be 
backfilled and graded in accordance with the requirements of Alaska's 
counterpart to the cited Federal regulation at 30 CFR 816.102. 
Therefore, the Director finds, to the extent that Alaska's rule at 11 
AAC 90.443(k) lacks the counterpart requirements of the Federal 
regulations at 30 CFR 816.102(d) (2) and (3), 11 AAC 90.443(k) to be 
less effective than the Federal regulations. The Director approves 
proposed 11 AAC 90.443(k), but requires Alaska to revise it to provide 
that the topsoil on the area outside the mined-out area in nonsteep 
slope areas shall be removed, segregated, stored and redistributed in 
accordance with its topsoil removal provisions and that the spoil be 
backfilled and graded on the area in accordance with its provisions 
concerning performance standards for backfilling and grading, or 
otherwise amend its program to ensure that the disposal of spoil 
provisions are no less effective than the Federal regulations at 30 CFR 
816.102(d) (2) and (3).

[[Page 48840]]

15. 11 AAC 90.491(f) Construction and Maintenance of Roads

    Alaska proposed at 11 AAC 90.491(f) that any road used to transport 
coal or spoil, frequently used in excess of six months for access or 
other purposes, or retained for an approved postmining land use, must 
meet several additional requirements, including certification, safety 
factor, location, drainage control, and surfacing. Proposed 11 AAC 
90.491(f) is substantively the same as the counterpart Federal 
regulations at 30 CFR 816.150(b) and 817.150(b) and 816.151 (a) through 
(c), (d) (1) through (4), and (e) and 817.151 (a) through (c), (d) (1) 
through (4), and (e). However, proposed 11 AAC 90.491(f) lacks 
provisions that are required by the Federal regulations at 30 CFR 
816.151(c)(2), (d)(5), and (d)(6) and 817.151(c)(2), (d)(5) and (d)(6), 
concerning fords of perennial or intermittent streams, the alteration 
or relocation of natural stream channels, and structures for perennial 
or intermittent stream channel crossings. Alaska proposed new language 
at 11 AAC 90.097 concerning reclamation plan general requirements for 
transportation facilities, to require that the surface coal mining 
application contain the specifications for each low water crossing and 
temporary stream ford (see finding No. 2), but Alaska did not include 
all the necessary performance standards concerning location and 
drainage control. With the exception of the lack of necessary 
provisions discussed above, the Director finds that proposed 11 AAC 
90.491(f) is no less effective than the Federal regulations at 30 CFR 
816.151 and 817.151 and approves it. The Director is, however, 
requiring Alaska to revise 11 AAC 90.491(f) to ensure that its 
performance standards for primary roads include requirements concerning 
fords, alteration or relocation of natural stream channels, and stream 
crossings, or otherwise revise its program to provide counterpart 
provisions to the Federal regulations at 30 CFR 816.151(c)(2), (d)(5), 
and (d)(6) and 817.151(c)(2), (d)(5), and (d)(6).

IV. Summary and Disposition of Comments

    Following are summaries of all substantive written comments on the 
proposed amendment that were received by OSM, and OSM's responses to 
them.

1. Public Comments

    OSM invited public comments on the proposed amendment, but none 
were received.

2. Federal Agency Comments

    Pursuant to 732.17(h)(11)(i), OSM solicited comments on the 
proposed amendment from various Federal agencies with an actual or 
potential interest in the Alaska program (administrative record Nos. 
AK-E-2 and AK-E-16).
    U.S. Bureau of Reclamation (BOR).--By letter dated March 15, 1995, 
the BOR Washington, D.C. office responded that it does not have 
jurisdiction in the Alaska area (administrative record No. AK-E-6). OSM 
has, therefore, removed the BOR Washington, D.C. office from the 
mailing list soliciting comments on Alaska amendments.
    Bureau of Land Management (BLM).--By letters dated March 17 and 
November 9, 1995, the BLM Alaska State Office responded that the 
amendment created no potential conflicts with the management criteria 
of the BLM surface management program in Alaska concerning mineral 
development. Therefore, BLM had no comments on the proposed amendment 
(administrative record Nos. AK-E-7 and AK-E-19).
    U.S. Bureau of Mines (BOM).--The BOM Washington, D.C. office 
responded on March 17 and November 2, 1995, that it had no comments 
(administrative record Nos. AK-E-8 and AK-E-18). In addition, the BOM 
Alaska Field Operations Center responded on March 27, 1995, that it had 
no comments on the proposed revisions (administrative record No. AK-E-
11).
    U.S. Fish and Wildlife Service (FWS).--FWS responded on March 22, 
1995, that it was not able to thoroughly review the proposed changes to 
Alaska's rules due to staffing and funding constraints, and therefore, 
it had no specific comments (administrative record No. AK-E-9).
    U.S. Department of Energy (DOE).--By letters dated March 21 and 
November 1, 1995, the DOE Alaska Power Administration responded on that 
it had no comments (administrative record Nos. AK-E-10 and AK-E-17).
    Natural Resources Conservation Service (NRCS).--NRCS responded on 
December 5, 1995, with comments on the proposed amendment 
(administrative record No. AK-E-20).
    NRCS commented that the ``history of farming'' at 11 AAC 90.149(d) 
should be expanded to include ``or potential for farming.'' NRCS stated 
that many alluvial valley floors have soil and climate characteristics 
suitable for agriculture and that even though the total existing acres 
in production in Alaska are limited due to market conditions, that 
should not preclude maintaining hydrologic functions on areas with 
agriculture potential. NRCS suggested that these areas can be 
identified using existing Department of Natural Resources guidelines 
for identifying lands with agricultural potential.
    Alaska's rule at 11 AAC 90.149(d) provides, in pertinent part, that 
certain information must be included in the permit application if the 
proposed operation may affect an alluvial valley floor, unless the 
Commissioner determines that some or all of the information is 
unnecessary because the particular valley floor has no history of 
farming, is not subirrigated, or has no deficiency of water. The 
counterpart Federal regulations at 30 CFR 785.19(b)(2) and (d)(1) 
provide, in pertinent part, for statutory exclusions concerning 
alluvial valley floors, including determinations by the State 
regulatory authority that (1) the premining land use is undeveloped 
rangeland which is not significant to farming or (2) any farming on the 
alluvial valley floor that would be affected by the surface coal mining 
operation is of such small acreage as to be of negligible impact on the 
farm's agricultural production. Farm, as used in these Federal 
regulations, is one or more land units on which farming is conducted 
and a farm is considered to be the combination of land units with 
acreage and boundaries in existence prior to enactment of SMCRA, or if 
established after August 3, 1977, with those boundaries based on 
enhancement of the farm's agricultural productivity.
    The Federal regulations do not specifically address ``history of 
farming'' or ``potential for farming.'' However, OSM has determined 
that Alaska's rule at 11 AAC 90.149(d) is no less effective than the 
Federal regulations at 30 CFR 785.19(d)(2) (see finding No. 1). OSM 
interprets the phrase ``history of farming'' to be consistent with the 
exceptions provided at 30 CFR 785.19(b)(2) in that the Federal 
regulations require the regulatory authority to determine the presence 
or absence of an alluvial valley floor, and if an alluvial valley floor 
is present, then the regulatory authority determines the premining land 
use and extent of farming in relation to the farm's agricultural 
production. If there is no history of farming on the lands, then the 
premining land use was not farming nor will a surface coal mining 
operation impact the farm's agricultural production. Therefore, OSM is 
not requiring Alaska to revise 11 AAC 90.149(d).
    NRCS questioned why areas with permafrost or ice-covered ponds are

[[Page 48841]]

excluded from the provisions at 11 AAC 90.323(a). NRCS stated that 
permafrost or ice-covered ponds should have no impact on the need for 
siltation structures to maintain water quality because many areas with 
permafrost will, upon disturbance, mining or otherwise, release 
considerable sediment-laden water as the permafrost thaws. NRCS also 
commented that the relevancy of ice-covered ponds is not clear at all. 
Alaska's rule at 11 AAC 90.323(a) provides for protection of the 
hydrologic balance and requires, in pertinent part, that the 
Commissioner must make a finding, when conditions such as permafrost or 
ice-covered ponds are present, that the drainage will meet the 
applicable State and Federal water quality laws and regulations without 
treatment. What NCRA has interpreted to be an exclusion from the 
requirements of 11 AAC 90.323(a) is not an exclusion from the 
requirement to meet the State's water quality standards. Therefore, OSM 
is not requiring Alaska to revise 11 AAC 90.323(a) to remove the 
language concerning permafrost and ice-covered ponds.
    Concerning proposed 11 AAC 90.391, NRCS questioned to what 
standards must revegetation occur, whether this meant native species, 
and if revegetation had to be compatible with the post-mining land use. 
Proposed 11 AAC 90.391(s) requires, in pertinent part, that all 
disturbed areas, including diversion channels that are not riprapped or 
otherwise protected, shall be revegetated upon completion of 
construction. The requirements of proposed 11 AAC 90.391(s) concern 
stabilization of the surface area and are substantively the same as the 
counterpart Federal regulations at 816.71(g) and 817.71(g) (see finding 
No. 2). OSM states that the performance standards for revegetation are 
provided at 30 CFR 816.111 and 817.111, including the use of native 
species and compatibility with the approved postmining land use. 
Therefore, vegetative cover used for surface area stabilization must 
meet the specific requirements addressed by NRCS's questions concerning 
revegetation.

3. Environmental Protection Agency (EPA) Concurrence

    Pursuant to 30 CFR 732.17(h)(11)(ii), OSM is required to solicit 
the written concurrence of EPA with respect to those provisions of the 
proposed program amendment that relate to air or water quality 
standards promulgated under the authority of the Clean Water Act (33 
U.S.C. 1251 et seq.) or the Clean Air Act (42 U.S.C. 7401 et seq.).
    None of the revisions that Alaska proposed to make in its amendment 
pertain to air or water quality standards. Nevertheless, OSM requested 
EPA's concurrence with the proposed amendment (administrative record 
No. AK-E-03). EPA did not respond to OSM's request.

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

    Pursuant to 30 CFR 732.17(h)(4), OSM solicited comments on the 
proposed amendment from the SHPO and ACHP (administrative record No. 
AK-E-02). Neither SHPO nor ACHP responded to OSM's request.

V. Director's Decision

    Based on the above findings, the Director approves, with certain 
exceptions and additional requirements, Alaska's proposed amendment as 
submitted on January 26 and February 13 and 14, 1995, and as revised 
and supplemented with additional explanatory information on October 11, 
23, and 24, 1995.
    With the requirement that Alaska further revise its rules, the 
Director does not approve, as discussed in:
    (1) Finding No. 7, 11 AAC 90.321(d), concerning hydrologic balance,
    (2) Finding No. 9, 11 AAC 90.325(a), concerning diversions and 
conveyance of flow,
    (3) Finding No. 10(a) and (b), 11 AAC 90.327(b)(1) and (c), 
concerning stream channel diversions, and
    (4) Finding No. 12, 11 AAC 90.341(b)(2), concerning underground 
mine entry and access discharges.
    The Director approves, as discussed in:
    (1) finding No. 1, 11 AAC 90.025(b) and (c), concerning right of 
entry information, 11 AAC 90.049(2) and (2)(E) through (H), concerning 
surface water information, 11 AAC 90.083(b)(10) and (11), concerning 
reclamation plan general requirements, 11 AAC 90.149(d), concerning 
operations near alluvial valley floors, 11 AAC 90.163(b), (c), and 
(c)(3)(B), concerning exploration that substantially disturbs the 
natural land surface or occurs in an area designated unsuitable for 
mining, 11 AAC 90.391(b), concerning disposal of excess spoil or coal 
mine waste, 11 AAC 90.401(e), concerning coal mine waste refuse piles, 
11 AAC 90.491(a), (a)(7), (c)(4), and (c)(8), concerning construction 
and maintenance of roads, transportation and support facilities, and 
utility installations, and 11 AAC 90.907(e), (f), (g), (h), and (j), 
concerning public participation;
    (2) Finding No. 2, 11 AAC 05.010(a)(11)(D) and 11 AAC 90.011, 
concerning permit fees, 11 AAC 90.002, concerning responsibilities, 11 
AAC 90.025(a), concerning authority to enter and ownership information, 
11 AAC 90.045(a), concerning geology description, 11 AAC 90.049(2)(D), 
concerning surface water information, 11 AAC 90.083(b)(12), concerning 
reclamation plan general requirements, 11 AAC 90.097, concerning 
transportation facilities, 11 AAC 90.149(d)(1), concerning operations 
near alluvial valley floors, 11 AAC 90.163, (a), (b)(1), (c)(4), and 
(c)(5), concerning exploration that substantially disturbs the natural 
land surface or occurs in an area designated unsuitable for mining, 11 
AAC 90.207(f)(1), (2), and (4) through (7), concerning requirements for 
self-bonding, 11 AAC 90.375, concerning public notice of blasting, 11 
AAC 90.391(h) and (s), concerning disposal of excess spoil or coal mine 
waste, 11 AAC 90.407(e), concerning coal mine waste dams and 
embankments, 11 AAC 90.409, concerning return to underground workings, 
11 AAC 90.423(b) and (h), concerning protection of fish and wildlife, 
11 AAC 90.443(d)(1), concerning backfilling and grading previously 
mined areas, 11 AAC 90.491(a)(1), (6), and (8), (c)(5) through (7), 
(e), and (f)(1) through (9), concerning construction and maintenance of 
roads, transportation and support facilities, and utility 
installations, 11 AAC 90.901(e), concerning authority, and 11 AAC 
90.907(c) and (d), concerning public participation;
    (3) Finding No. 3, 11 AAC 90.003, repeal of provisions concerning 
continued operation under interim permits;
    (4) Finding No. 4, 11 AAC 90.099, concerning return of coal mine 
waste and excess spoil to abandoned underground workings;
    (5) Finding No. 5, 11 AAC 90.163(c)(4) and (5), concerning 
exploration that substantially disturbs the natural land surface or 
occurs in an area designated unsuitable for surface coal mining;
    (6) Finding No. 11, 11 AAC 90.337(f), concerning impoundment 
inspections; and
    (7) Finding No. 13, 11 AAC 90.345(e), concerning surface and ground 
water monitoring.
    With the requirement that Alaska further revise its rules, the 
Director approves, as discussed in:
    (1) Finding No. 6a., 11 AAC 90.207(f), concerning definitions of 
``self-bond'' and other terms concerning financial statements,

[[Page 48842]]

    (2) Finding No. 6b, 11 AAC 90.207(f)(3), concerning an agent for 
service,
    (3) Finding No. 8, 11 AAC 90.323(a), concerning water quality 
standards,
    (4) Finding No. 14, 11 AAC 90.443(k), concerning backfilling and 
grading, and
    (5) Finding No. 15, concerning construction and maintenance of 
roads.
    In accordance with 30 CFR 732.17(f)(1), the Director is also taking 
this opportunity to clarify in the required amendment section at 30 CFR 
902.16 that, within 60 days of the publication of this final rule, 
Alaska must either submit a proposed written amendment, or a 
description of an amendment to be proposed that meets the requirements 
of SMCRA and 30 CFR Chapter VII and a timetable for enactment that is 
consistent with Alaska's established administrative or legislative 
procedures.
    The Director approves the rules as proposed by Alaska with the 
provision that they be fully promulgated in identical form to the rules 
submitted to and reviewed by OSM and the public.
    The Federal regulations at 30 CFR Part 902, codifying decisions 
concerning the Alaska program, are being amended to implement this 
decision. This final rule is being made effective immediately to 
expedite the State program amendment process and to encourage States to 
bring their programs into conformity with the Federal standards without 
undue delay. Consistency of State and Federal standards is required by 
SMCRA.

Effect of Director'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 alteration of 
an approved State program be submitted to OSM for review as a program 
amendment. Thus, any changes to the State program are not enforceable 
until approved by OSM. The Federal regulations at 30 CFR 732.17(g) 
prohibit any unilateral changes to approved State programs. In the 
oversight of the Alaska program, the Director will recognize only the 
statutes, regulations and other materials approved by OSM, together 
with any consistent implementing policies, directives and other 
materials, and will require the enforcement by [State] of only such 
provisions.

VI. Procedural Determinations

1. Executive Order 12866

    This rule is exempted from review by the Office of Management and 
Budget (OMB) under Executive Order 12866 (Regulatory Planning and 
Review).

2. Executive Order 12988

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 (Civil Justice Reform) and has 
determined that this rule meets the applicable standards of subsections 
(a) and (b) of that section. However, these standards are not 
applicable to the actual language of State regulatory programs and 
program amendments since each such program is drafted and promulgated 
by a specific State, not by OSM. Under sections 503 and 505 of SMCRA 
(30 U.S.C. 1253 and 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.

3. National Environmental Policy Act

    No environmental impact statement is required for this rule since 
section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency 
decisions on proposed State regulatory program provisions do not 
constitute major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C)).

4. Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3507 et seq.).

5. Regulatory Flexibility Act

    The Department of the Interior has determined that this rule will 
not have a significant economic impact on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
The State submittal that is the subject of this rule is based upon 
counterpart Federal regulations for which an economic analysis was 
prepared and certification made that such regulations would not have a 
significant economic effect upon a substantial number of small 
entities. Accordingly, this rule will ensure that existing requirements 
previously promulgated by OSM will be implemented by the State. In 
making the determination as to whether this rule would have a 
significant economic impact, the Department relied upon the data and 
assumptions for the counterpart Federal regulations.

6. Unfunded Mandates Reform Act

    This rule will not impose a cost of $100 million or more in any 
given year on any governmental entity or the private sector.

List of Subjects in 30 CFR Part 902

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: August 26, 1996.
James F. Fulton,
Acting Regional Director, Western Regional Coordinating Center.

    For the reasons set out in the preamble, title 30, chapter VII, 
subchapter T of the Code of Federal Regulations is amended as set forth 
below:

PART 902--ALASKA

    1. The authority citation for part 902 continues to read as 
follows:

    Authority: 30 U.S.C. 1201 et seq.

    2. Section 902.15 is amended by adding paragraph (d) to read as 
follows:


Sec. 902.15  Approval of regulatory program amendments.

* * * * *
    (d) With the exception of 11 AAC 207(f), concerning requirements 
for self-bonds, 11 AAC 90.321(d), concerning hydrologic balance, 11 AAC 
90.323(a), concerning water quality standards, 11 AAC 90.325(a), 
concerning diversions and conveyance of flow, 11 AAC 90.327(b)(1) and 
(c), concerning stream channel diversions, 11 AAC 90.341(b)(2), 
concerning underground mine entry and access discharges, 11 AAC 
90.443(k), concerning backfilling and grading, and 11 AAC 90.491(f), 
concerning construction and maintenance of roads, the revisions to and 
additions of rules proposed in Alaska Amendment IV, as submitted to OSM 
on January 26, 1995, and as revised on October 11, 23, and 24, are 
approved effective September 17, 1996.
    3. Section 902.16 is amended by adding the introductory paragraph 
and paragraph (b) to read as follows:


Sec. 902.16  Required program amendments.

    Pursuant to 30 CFR 732.17(f)(1), Alaska is required to submit to 
OSM by the specified date the following written, proposed program 
amendments, or a description of an amendment to be proposed that meets 
the requirements of SMCRA and 30 CFR Chapter VII and a timetable for 
enactment that is consistent with Alaska's established administrative 
or legislative procedures.
* * * * *

[[Page 48843]]

    (b) By November 18, 1996, Alaska shall revise the following rules, 
or otherwise modify its program, to:
    (1) At 11 AAC 90.207(f), require the addition of a definition for 
the term ``self-bond'' and other financial terms used to describe self-
bonds consistent with the Federal regulations at 30 CFR 800.5(c) and 
800.23(a), and to require the applicant for a self-bond that is 
guaranteed by a corporate guarantor to retain his/her own agent for 
service in Alaska.
    (2) At 11 AAC 90.321(d), require that water treatment facilities 
will be operated for as long as necessary, or add a definition of 
``siltation structure'' that is no less effective than the Federal 
definition of this term at 30 CFR 701.5.
    (3) At 11 AAC 90.323(a), replace ``siltation structures'' with 
``treatment facilities,'' or add a definition of ``siltation 
structure'' that is no less effective than the Federal definition of 
this term at 30 CFR 701.5.
    (4) At 11 AAC 90.325(a), require that water treatment facilities 
will be operated for as long as necessary or add a definition of 
``siltation structure'' that is no less effective than the Federal 
definition of this term at 30 CFR 701.5.
    (5) At 11 AAC 90.327(b)(1) and (c), require that ``erosion control 
structures'' be used when describing standards for stream channel 
diversions used to control erosion, and that the terms ``water 
treatment facilities'' and ``water treatment facility'' be retained or 
provide a definition of ``siltation structures'' that includes ``water-
treatment facilities.''
    (6) At 11 AAC 90.341(b)(2), require that any treatment facility 
used during the anticipated period of gravity discharge will be 
consistently maintained, or add a definition of ``siltation structure'' 
that is no less effective than the Federal definition of this term at 
30 CFR 701.5.
    (7) At 11 AAC 90.443(k), require that the topsoil on the area 
outside the mined-out area in nonsteep slope areas shall be removed, 
segregated, stored and redistributed in accordance with its topsoil 
removal provisions and that the spoil be backfilled and graded on the 
area in accordance with its provisions concerning performance standards 
or backfilling and grading, or add provisions to ensure that the 
disposal of spoil provisions are no less effective than the Federal 
regulations at 30 CFR 816.102(d) (2) and (3).
    (8) At 11 AAC 90.491(f), require the addition of provisions 
concerning fords of perennial or intermittent streams, the alteration 
or relocation of natural stream channels, and structures for perennial 
or intermittent stream channel crossings that are no less effective 
than 30 CFR 816.151(b)(2), (d)(5), and (d)(6) and 817.151(b)(2), (d)(5) 
and (d)(6).

[FR Doc. 96-23677 Filed 9-16-96; 8:45 am]
BILLING CODE 4310-05-M