[Federal Register Volume 70, Number 120 (Thursday, June 23, 2005)]
[Proposed Rules]
[Pages 36360-36363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12439]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 906

[SATS No. AK-006]


Alaska Regulatory Program

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

ACTION: Proposed rule; reopening and extension of public comment period 
on proposed amendment.

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SUMMARY: We are announcing the receipt of revisions pertaining to a 
previously proposed amendment to the Alaska regulatory program 
(hereinafter, the ``Alaska program'') under the Surface Mining Control 
and Reclamation Act of 1977 (SMCRA or the Act). Alaska proposes 
revisions to its rules concerning revegetation of areas with a fish and 
wildlife habitat, recreation, shelter belts, or forest products post 
mining land use; subsidence and water replacement; bond release 
applications; topsoil removal; the removal of siltation structures; 
impoundment design; coal mine waste; and mining of coal incidental to 
the extraction of other minerals if the coal is 16\2/3\ percent or less 
of the total tonnage of minerals removed.
    Alaska intends to revise its program to be consistent with the 
corresponding Federal regulations and incorporate the additional 
flexibility afforded by the revised Federal regulations.

DATES: We will accept written comments on this amendment until 4 p.m., 
m.s.t. July 25, 2005.

ADDRESSES: You may submit comments, identified by docket number AK-006, 
by any of the following methods:
     E-mail: [email protected]. Include AK-006 in the subject 
line of the message.
     Mail/Hand Delivery/Courier: James F. Fulton, Chief, Denver 
Field Division, Western Region, Office of Surface Mining Reclamation 
and Enforcement, PO Box 46667, 1999 Broadway, Suite 3320, Denver, CO 
80201-6667, 303-844-1400 extension 1424, [email protected].
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Instructions: All submissions received must include the agency name 
and docket number AK-006. For detailed instructions on submitting 
comments and additional information on the rulemaking process, see the 
``Public Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.
    Docket: For access to the docket to review copies of the Alaska 
program, this amendment, a listing of any scheduled public hearings, 
and all written comments received in response to this document you must 
go to the addresses listed below during normal business hours, Monday 
through Friday, excluding holidays. You may receive one free copy of 
the amendment by contacting the Office of Surface Mining Reclamation 
and Enforcement's (OSM) Denver Field Division. In addition, you may 
review a copy of the amendment during regular business hours at the 
following locations:

James F. Fulton, Chief, Denver Field Division, Office of Surface Mining 
Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO 
80202-6667, 303-844-1400 extension 1424, [email protected].
Stan Foo, Mining Chief, Division Of Mining, Land and Water, Alaska 
Department of Natural Resources, 550 W. 7th Avenue, Suite 900D, 
Anchorage, AK 99501, 907-269-8503, [email protected].

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: 303-844-
1400 ext. 1424. Internet: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Alaska Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations

I. Background on the Alaska Program

    Section 503(a) of the Act permits a State to assume primacy for the 
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that 
its State program includes, among other things, ``a State law which 
provides for the regulation of surface coal mining and reclamation 
operations in accordance with the requirements of this Act * * *; and 
rules and regulations consistent with regulations issued by the 
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On 
the basis of these criteria, the Secretary of the Interior 
conditionally approved the Alaska program on March 23, 1983. You can 
find background information on the Alaska program, including the 
Secretary's findings, the disposition of comments, and conditions of 
approval of the Alaska program in the March 23, 1983, Federal Register 
(48 FR 12274). You can also find later actions concerning Alaska's 
program and program amendments at 30 CFR 902.10, 902.15 and 902.16.

II. Description of the Proposed Amendment

    By letter dated May 11, 2004, Alaska sent us a proposed amendment 
to its program, (State Amendment Tracking System (SATS) No. AK-006, 
administrative record No. AK-9) under SMCRA (30 U.S.C. 1201 et seq.). 
Alaska sent the amendment in response to portions of letters dated May 
7, 1986, December 16, 1988, February 7, 1990, June 4, 1996, and June 
19, 1997 (administrative record Nos. AK-01, AK-03, AK-06, AK-07 and AK-
09), that we sent to Alaska in accordance with 30 CFR 732.17(c). Alaska 
also submitted the amendment in response to required program amendments 
codified at 30 CFR 902.16(a) and (b). Alaska submitted one provision at 
its own initiative. The full text of the program amendment is

[[Page 36361]]

available for you to read at the locations listed above under 
ADDRESSES.
    We announced receipt of the proposed amendment in the July 19, 
2004, Federal Register (69 FR 42920), provided an opportunity for a 
public hearing or meeting on its substantive adequacy, and invited 
public comment on its adequacy (administrative record No. AK-9-c). 
Because no one requested a public hearing or meeting, none was held. 
The public comment period ended on August 18, 2004. We received 
comments from one Federal agency.
    During our review of the amendment, we identified concerns relating 
to the provisions of:
    11 AAC (Alaska Annotated Code) 90.211(a), concerning the 
requirement that a permittee include in the application for each phase 
of bond release a notarized statement certifying that all applicable 
reclamation activities have been accomplished in accordance with 
appropriate rules and the approved reclamation plan;
    11 AAC 90.311(g), concerning the subsection that provides the 
Commissioner of the Alaska Department of Natural Resources 
(Commissioner) the discretion to authorize an exemption from the 
requirements for the removal, stockpiling, and redistribution of 
topsoil and other materials;
    11 AAC 90.336(f), concerning the need to incorporate by reference 
the criteria in the ``Minimum Emergency Spillway Hydrologic Criteria'' 
table found in the Natural Resources Conservation Service (NRCS) 
publication Earth, Dams and Reservoirs Techical Release No. 60 (TR-60) 
or include the ``Minimum Emergency Spillway Hydrologic Criteria'' table 
in its performance standards for impoundments;
    11 AAC 90.457(c)(3), concerning consultation with, and approval by 
the State forestry and wildlife agencies with regard to the minimum 
planting and stocking arrangements for areas to be developed for fish 
and wildlife habitat, recreation, shelter belts, or forest products 
postmining land use;
    11 AAC 90.461(g)(1) through (4), concerning rebuttable presumption 
in rules governing subsidence and water replacement; and 11 AAC 652(i), 
concerning the use of the word ``counties.''
    We notified Alaska of our concerns by letter dated October 4, 2004 
(administrative record No. AK-9-3). Alaska responded in a letter dated 
April 1, 2005, by submitting a revised amendment (administrative record 
No. AK-9-4).
    Alaska requested that we withdraw from the May 11, 2004, amendment 
proposed revisions at (1) 11 AAC 90.457(c)(3), concerning consultation 
with, and approval by the State forestry and wildlife agencies with 
regard to the minimum planting and stocking arrangements for areas to 
be developed for fish and wildlife habitat, recreation, shelter belts, 
or forest products postmining land use; and (2) 11 AAC 90.461(g)(1) 
through (4), concerning rebuttable presumption in rules governing 
subsidence and water replacement.
    To require a notarized statement, Alaska proposes to add to 11 AAC 
90.211(a), concerning bond release procedure and criteria, the 
requirement that the permittee shall include in the application for 
bond release a notarized statement which certifies that all applicable 
reclamation activities have been accomplished in accordance with the 
requirements of Alaska Statute 27.21, 11 AAC 90, and the approved 
reclamation plan. Such certification shall be submitted for each 
application or phase of bond release.
    To remove the discretion of the Commissioner to authorize an 
exemption from the requirements for the removal, stockpiling, and 
redistribution of topsoil and other materials, Alaska proposes to 
delete subsection 11 AAC 90.311(g), concerning removal of topsoil which 
allows, in lieu of the requirements of this chapter for removal, 
stockpiling, and redistribution of topsoil and other materials, that 
the Commissioner will, in his or her discretion, authorize the handling 
of the material as part of the backfilling and grading process under 11 
AAC 90.441 and 11 AAC 90.443.
    To clarify the intent of the rule with editorial revisions, Alaska 
now proposes that 11 AAC 90.331(e), concerning siltation structures, 
require that unless removal is authorized under 11 AAC 90.232(b), a 
siltation structure may not be removed before the Commissioner's 
approval under 11 AAC 90.323(b), until after the disturbed area has 
been stabilized and revegetated, and no earlier than two years after 
the last augmented seeding. When the structure is removed, the operator 
must regrade and revegetate the affected land in accordance with the 
requirements of this chapter, unless the Commissioner approves 
retaining a pond, or ponds, as part of the postmining land use under 11 
AAC 90.481. Any pond proposed for retention must meet all requirements 
for a permanent impoundment under 11 AAC 90.336-11 AAC 90.338 and 11 
AAC 90.351.
    To require that certain impoundments be designed according to NRCS 
TR-60, Alaska proposes to add a new subsection at 11 AAC 90.336(g), 
concerning impoundment design and construction, to require that 
impoundments meeting the class B or C criteria for dams in NRCS TR-60 
shall comply with ``Minimum Emergency Spillway Hydrologic Criteria'' 
table in TR-60 and the requirements of this section.
    To clarify the intent of the rule with an editorial revision, 
Alaska proposes that 11 AAC 90.395(a), concerning general requirements 
for coal mine waste, require that all coal mine waste disposed of in an 
area other than the mine workings or excavations shall be placed in new 
or existing disposal areas within a permit area, which is approved by 
the Commissioner for this purpose.
    To require publication in a newspaper of Statewide circulation 
rather than circulation in a county, Alaska proposes that 11 AAC 
90.652(i), concerning the requirements for the content of an 
application for exemption from a permit for mining of coal incidental 
to the extraction of other minerals if the coal is 16\2/3\ percent or 
less of the total tonnage of minerals removed, require that the 
application include, among other things, evidence of publication in a 
newspaper of Statewide circulation and in a newspaper of general 
circulation in the vicinity of the mining area, of a public notice that 
an application for exemption has been filed with the regulatory 
authority (the public notice must identify the persons claiming the 
exemption and must contain a description of the proposed operation and 
its locality that is sufficient for interested persons to identify the 
operation).

III. Public Comment Procedures

Written Comments

    Send your written comments to OSM at the address given above. Your 
written comments should be specific, pertain only to the issues 
proposed in this rulemaking, and include explanations in support of 
your recommendations. We will not consider or respond to your comments 
when developing the final rule if they are received after the close of 
the comment period (see DATES). We will make every attempt to log all 
comments into the administrative record, but comments delivered to an 
address other than the Denver Field Division may not be logged in.

Electronic Comments

    Please submit Internet comments as an ASCII file avoiding the use 
of special characters and any form of encryption. Please also include 
``Attn: SATS No. AK-006'' and your name and return

[[Page 36362]]

address in your Internet message. If you do not receive a confirmation 
that we have received your Internet message, contact the Denver Field 
Division at 303-844-1400 extension 1424.

Availability of Comment

    We will make comments, including names and addresses of 
respondents, available for public review during normal business hours. 
We will not consider anonymous comments. If individual respondents 
request confidentiality, we will honor their request to the extent 
allowable by law. Individual respondents who wish to withhold their 
name or address from public review, except for the city or town, must 
state this prominently at the beginning of their comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public review in their entirety.

IV. Procedural Determinations

Executive Order 12630--Takings

    This rule does not have takings implications. This determination is 
based on the analysis performed for the counterpart Federal regulation.

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has conducted the reviews required 
by section 3 of Executive Order 12988 and has determined that this rule 
meets the applicable standards of subsections (a) and (b) of that 
section. However, these standards are not applicable to the actual 
language of State regulatory programs and program amendments because 
each program is drafted and promulgated by a specific State, not by 
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and 
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), 
decisions on proposed State regulatory programs and program amendments 
submitted by the States must be based solely on a determination of 
whether the submittal is consistent with SMCRA and its implementing 
Federal regulations and whether the other requirements of 30 CFR Parts 
730, 731, and 732 have been met.

Executive Order 13132--Federalism

    This rule does not have federalism implications. SMCRA delineates 
the roles of the Federal and State governments with regard to the 
regulation of surface coal mining and reclamation operations. One of 
the purposes of SMCRA is to ``establish a nationwide program to protect 
society and the environment from the adverse effects of surface coal 
mining operations.'' Section 503(a)(1) of SMCRA requires that State 
laws regulating surface coal mining and reclamation operations be ``in 
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires 
that State programs contain rules and regulations ``consistent with'' 
regulations issued by the Secretary pursuant to SMCRA.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    In accordance with Executive Order 13175, we have evaluated the 
potential effects of this rule on Federally-recognized Indian Tribes 
and have determined that the rule does not have substantial direct 
effects on one or more Indian Tribes, on the relationship between the 
Federal government and Indian Tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian Tribes. 
The rule does not involve or affect Indian Tribes in any way.

Executive Order 13211--Regulations That Significantly Affect the 
Supply, Distribution, or Use of Energy

    On May 18, 2001, the President issued Executive Order 13211 which 
requires agencies to prepare a Statement of Energy Effects for a rule 
that is (1) considered significant under Executive Order 12866, and (2) 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Because this rule is exempt from review 
under Executive Order 12866 and is not expected to have a significant 
adverse effect on the supply, distribution, or use of energy, a 
Statement of Energy Effects is not required.

National Environmental Policy Act

    This rule does not require an environmental impact statement 
because 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)).

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.).

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), 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; and (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.

[[Page 36363]]

List of Subjects in 30 CFR Part 902

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: May 18, 2005.
Allen D. Klein,
Director, Western Region.
[FR Doc. 05-12439 Filed 6-22-05; 8:45 am]
BILLING CODE 4310-05-P