[Federal Register Volume 70, Number 228 (Tuesday, November 29, 2005)]
[Rules and Regulations]
[Pages 71383-71394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23400]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 902

[SATS No. AK-006-FOR]


Alaska Regulatory Program

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

ACTION: Final rule; approval of amendment.

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SUMMARY: We are approving a proposed amendment to the Alaska regulatory 
program (the ``Alaska program'') under the Surface Mining Control and 
Reclamation Act of 1977 (SMCRA or the Act). Alaska proposed revisions 
to and additions of rules about the description of geology; probable 
hydrologic consequences; application requirements for underground 
mining; requirements for a subsidence control plan; bonding; 
replacement of water supplies; design requirements for other treatment 
facilities; design requirements for impoundments; discharges into 
underground mines; performance

[[Page 71384]]

standards for disposal of excess spoil or coal mine waste; inspections 
of excess spoil, underground development waste, or coal processing 
waste disposal areas; performance standards for mining operations that 
have thin or thick overburden; sealing requirements for auger holes; 
as-built plans of underground workings; damage to protected structures 
caused by subsidence from underground mining; inspections of abandoned 
sites; administrative procedures and provisions for civil penalties; 
definitions and provisions governing coal extraction incidental to the 
extraction of other minerals; exemption from provisions governing coal 
exploration and surface coal mining and reclamation operations for 
removal 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; definitions; prime farmlands; western alkaline mine 
initiative; designs, inspections, and certifications by registered 
professional engineers or other qualified professional specialist 
experienced or trained in the construction of impoundments and primary 
roads; coal exploration; reference to ``Standard Methods for the 
Examination of Water and Wastewater'; requirements concerning topsoil; 
requirements for surface and ground water monitoring; placement of coal 
mine waste disposal in excess spoil fills; policy statements; small 
operator assistance program; blasting; cumulative hydrologic impact 
assessment; fish and wildlife and the protection and enhancement plan; 
design and construction requirements for the temporary and permanent 
diversion of miscellaneous flows; design and construction requirements 
for both temporary and permanent stream channel diversions; the design 
and construction requirements for the spillways; drainage control for 
valley fills and coal waste dams and embankments; petitions for 
designating lands unsuitable for mining; and roads and low-water 
crossings.
    Alaska revised its program to be consistent with the corresponding 
Federal regulations, clarify ambiguities and improve operational 
efficiency.

DATES: Effective: November 29, 2005.

FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: (303) 844-
1400 ext. 1424, E-mail address: [email protected].

SUPPLEMENTARY INFORMATION:
I. Background on the Alaska Program
II. Submission of the Proposed Amendment
III. Office of Surface Mining Reclamation and Enforcement's (OSM) 
Findings
IV. Summary and Disposition of Comments
V. OSM's Decision
VI. 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 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. Submission 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; November 1, 1989; February 7, 1990; June 4, 
1996; and June 19, 1997 (administrative record Nos. AK-01, AK-03, AK-
05, 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.
    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 about 
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 
coal is 16\2/3\ percent or less of the total tonnage of minerals 
removed. 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).
    Based upon Alaska's revisions to its amendment, we reopened the 
public comment period in the June 23, 2005, Federal Register (70 FR 
36360; administrative record No. AK-9-4b). The public comment period 
ended on July 25, 2005. We received comments from one Federal agency 
and one local agency.
    By letter dated July 20, 2005 (administrative record No. AK-9-5), 
Alaska submitted editorial clarification concerning proposed rules 11 
AAC 90.461(g), 11 AAC 90.650 and 11 AAC 90.331(e). Alaska explained 
that because there were two proposed rules codified as 11 AAC 
90.461(g), the proposed rule, concerning the consideration of all 
relevant and reasonably available information in any determination 
whether damage to protected structures was caused by subsidence, 
originally codified as 11 AAC 90.461(g), will be codified as 90.461(i). 
Alaska explained that the proposed rules at 11 AAC 90.650 through 11 
AAC 658, concerning exemption for coal extraction incidental to the 
extraction of other minerals, were proposed as new Article 13 in the 
Alaska program and that the existing Article 13 and all following 
articles would be recodified beginning as Article 14. Alaska explained 
that an editorial revision of 11 AAC 90.331(e), concerning removal of 
siltation structures, was made to clarify that if there are areas 
approved by the Commissioner of the Alaska program and the U.S. 
Environmental Protection Agency for use of best management practices as 
alternative sediment control measures where siltation structures 
already exist, the existing siltation structures could be removed. 
Alaska proposed to revise the wording of ``before the Commisioner's 
approval under 11 AAC 90.323(b)'' to read ``until after alternative 
sediment control measures have been approved under 11 AAC 90.323(b)''.
    Because Alaska's proposed editorial revisions and explanations did 
not

[[Page 71385]]

change the meaning of any proposed rules, OSM did not reopen the 
comment period.

III. OSM's Findings

    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.

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

    Alaska proposed revisions to the following rules containing 
language that is the same as or similar to the corresponding sections 
of the Federal regulations. 11 AAC 90.045(b), (c), (d), and (e) (30 CFR 
780.22(b) and (c) and 784.22(b)), concerning the requirements for (1) 
borings, or core samples from a proposed permit area; (2) test borings 
or core samplings collected and analyzed to greater depths within the 
proposed permit area or, for the area outside the proposed permit area, 
an evaluation of the impact of the proposed activities on the 
hydrologic balance; and (3) an application for an underground mine to 
include a separate description of the geology of the area proposed to 
be affected by surface operations and facilities, surface land 
overlying coal to be mined, and the coal to be mined;
    11 AAC 90.085(a)(5) (30 CFR 784.14(e)(3)(iv)), concerning the 
requirement for a finding, in the discussion of probable hydrologic 
consequences, stating whether underground activities may result in 
contamination, diminution, or interruption of a well or spring in use 
for domestic, drinking, or residential purposes;
    11 AAC 90.101(a) and (b) (30 CFR 784.20), concerning application 
requirements for underground mining and requirements for a subsidence 
control plan;
    11 AAC 90.201(d) and (f) (30 CFR 800.11(b)(4) and 800.4(g)), 
concerning requirements for (1) incremental bonding and (2) adequate 
bond coverage to be in effect at all times;
    11 AAC 90.211(a) (30 CFR 800.40(a)(3)), concerning addition of the 
requirement for a notarized statement in bond release applications 
affirming that all applicable reclamation requirements have been met;
    11 AAC 90.321(e) (30 CFR 817.41(j)), concerning the requirement for 
prompt replacement of water supplies damaged by underground mining 
activities conducted after October 24, 1992;
    11 AAC 90.331(h) (30 CFR 816.46(d)), concerning design requirements 
for other treatment facilities;
    11 AAC 90.336(g) (30 CFR 816.49(a)(1)), concerning the requirement 
that impoundments meeting the Class B or C criteria in the U.S. 
Department of Agriculture, Natural Resources Conservation Service, 
Technical Release No. 60 (TR-60), ``Earth Dams and Reservoirs'', comply 
with the table titled ``Minimum Emergency Spillway Hydrologic 
Criteria'' in TR-60;
    11 AAC 90.349(l) (30 CFR 816.41(i)(1)(i)), concerning discharges 
into underground mines;
    11 AAC 90.391(b) and (l), 90.395(a) and 90.401(a), (d), and (e) (30 
CFR 816.81(a) and (c)(1), 816.83, and 816.83(c)(3) and (4)), concerning 
performance standards for disposal of excess spoil or coal mine waste;
    11 AAC 90.397(a) (30 CFR 816.83(d)), concerning inspections of 
excess spoil, underground development waste, or coal processing waste 
disposal areas;
    11 AAC 90.407(f) (30 CFR 816.84(f)), concerning the requirement 
that at least 90 percent of the water stored during the design 
precipitation event shall be removed within the 10-day period following 
the design precipitation event from impounding structures constructed 
of or impounding coal mine waste;
    11 AAC 90.443(a), (i), and (m) (30 CFR 816.104(b) and 816.105(b)), 
concerning performance standards for mining operations that have thin 
or thick overburden;
    11 AAC 90.447(c)(1) (30 CFR 819.15(b)(1)), concerning the sealing 
requirements for auger holes;
    11 AAC 90.461(b) (30 CFR 817.121(a)), concerning applications for 
underground mining, and requirements to either (1) prevent subsidence 
from causing material damage, or (2) plan for subsidence in a 
predictable and controlled manner that will minimize material damage;
    11 AAC 90.461(g) (30 CFR 817.121(g)), concerning the requirement 
to, within an approved schedule, submit as-built plans of underground 
workings and requirements for the content of the plans;
    11 AAC 90.461(h) (30 CFR 817.121(c)(5)), concerning requirements 
for an additional bond amount, when (1) subsidence-related material 
damage occurs to protected land, structures or facilities, or (2) 
contamination, diminution, or interruption occurs to a protected water 
supply;
    11 AAC 90.461(i) (30 CFR 817.121(c)(4)(v)), concerning the 
requirement for the Commissioner of the Alaska program to consider all 
relevant and reasonably available information in any determination 
whether damage to protected structures was caused by subsidence from 
underground mining;
    11 AAC 90.601(h) and (i) (30 CFR 840.11(g) and (h)), concerning 
inspections of abandoned sites;
    11 AAC 90.629(a) and 90.631(a) (30 CFR 845.18(a) and 845.19(a)), 
concerning the administrative procedures for civil penalties;
    11 AAC 90.635(a) and (b), 90.637(a) and (b), 90.639(a) through (c), 
and 90.641(a) through (d) (30 CFR Part 846), concerning provisions 
governing individual civil penalties;
    11 AAC 90.650 through 90.658 (30 CFR Part 702), concerning 
definitions and provisions governing coal extraction incidental to the 
extraction of other minerals;
    11 AAC 90.901(a)(2) (30 CFR 702.11(a)), concerning the exemption 
from provisions governing coal exploration and surface coal mining and 
reclamation operations, for 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;
    11 AAC 90.911 (30 CFR 701.5), concerning addition of definitions 
for ``coal mine waste,'' ``drinking, domestic, or residential water 
supply,'' ``impounding structure,'' ``material damage,'' 
``noncommercial building,'' ``occupied residential dwelling and 
structures related thereto,'' ``previously mined area,'' ``refuse 
piles,'' and ``replacement water supply;''
    11 AAC 90.911 (30 CFR 761.5), concerning addition of a definition 
for ``community or institutional building;''
    11 AAC 90.911 (30 CFR 795.3), concerning addition of a definition 
for ``qualified laboratory;''
    11 AAC 90.911 (30 CFR 800.5), concerning removal of reference to 
personal property from the definition for collateral bond; and
    11 AAC 90.911 (30 CFR 816.104(a) and 816.105(a)), concerning 
addition of definitions for ``thick overburden'' and ``thin 
overburden.''
    Because these proposed rules contain language that is the same as 
or similar to the corresponding Federal regulations, we find that they 
are no less effective than the corresponding Federal regulations.

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

1. Prime Farmlands
    Alaska has no counterpart rules to the Federal regulations at 30 
CFR 785.17 concerning provisions unique to prime

[[Page 71386]]

farmlands. The Director of OSM (Director) required in a letter dated 
June 19, 1997, sent in accordance with 30 CFR 732.17(c), that Alaska 
revise its program to include provisions no less effective than the 
Federal regulations at 30 CFR 785.17 protecting prime farmland soils.
    Alaska's existing rule at 11 AAC 90.157 states that the 
Commissioner of the Alaska program may impose additional requirements 
for permit application contents, soil removal and handling, use of 
nutrients and amendments, erosion control, revegetation, and postmining 
land use to encourage development of agriculture and to assure that 
important farmlands are returned to premining or higher levels of 
productivity.
    Alaska submitted correspondence, sent by e-mail to Alaska on July 
10, 2002, from the U.S. Department of Agriculture, Natural Resources 
Conservation Service (NRCS), Alaska office. NRCS explained that one of 
the criteria for prime farmlands in the National Soils Handbook is that 
the soil temperature regime must be warmer than cryic. NRCS stated that 
all soils in Alaska have cryic soil temperature regimes which explains 
why there are no prime farmland soils in Alaska.
    Based on the NRCS correspondence documenting that there are no 
prime farmland soils in Alaska, the Director finds that no further 
revision of the Alaska program is necessary to protect prime farmland 
soils.
2. 11 AAC 90.323(a), (b), and (c) and 90.331(e), Western Alkaline Mine 
Initiative
    Alaska, at its own initiative, proposed to revise 11 AAC 90.323(a), 
concerning water quality standards, to refer to an exception at 11 AAC 
90.323(b) from the requirement that any discharge of water from the 
disturbed area, including any disturbed area that has been graded, 
seeded, or planted, must pass through one or more siltation structures 
before leaving the permit area until removal is approved by the 
Commissioner of the Alaska program under 11 AAC 90.331(e).
    Alaska proposed to revise 11 AAC 90.323(b) to state that the 
Commissioner may allow other sediment control measures for primary 
sediment control for disturbed areas that have been regraded, respread 
with topsoil, and stabilized against erosion, if the Commissioner and 
the U.S. Environmental Protection Agency (EPA) have approved the use of 
best management practices (BMP) as the effluent limitation.
    Alaska proposed to revise 11 AAC 90.323(c) to require that the 
operator shall meet all applicable Federal and State water quality laws 
and regulations for the drainage from the permit area when there is 
mixing of drainage from disturbed, reclaimed, and undisturbed areas.
    Alaska proposed to revise 11 AAC 90.331(e), to state that a 
siltation structure may not be removed until after the disturbed area 
has been stabilized and revegetated and no earlier than two years after 
the last augmented seeding or until after alternative sediment control 
measures have been approved under 11 AAC 90.323(b).
    OSM suspended the Federal counterpart to Alaska's proposed 11 AAC 
90.323(a) at 30 CFR 816.46(b)(2) on November 20, 1986 (see finding no. 
16 at 51 FR 41957), in response to a remand by the court in Permanent 
Surface Mining Regulation Litigation II. The remaining Federal rules 
governing water quality for discharges from disturbed areas are those 
found at 30 CFR 816.42, 816.45, and 816.46(b)(1). In relevant part, 
those regulations require that sediment be controlled using the best 
technology currently available (BTCA). OSM no longer defines BTCA as 
being siltation structures as we previously did in the now-suspended 30 
CFR 816.46(b)(2).
    Alaska's proposed new language at 11 AAC 90.323(b) requires the 
approval of both the Commissioner of the Alaska program and EPA before 
Alaska could approve the use of BMP as an effluent limitation on 
reclamation areas.
    EPA, on January 23, 2002, published a final rule that establishes 
effluent limitations and performance standards for the Western Alkaline 
Coal Mining Subcategory applicable to alkaline mine drainage from 
reclamation areas, brushing and grubbing areas, topsoil stockpiling 
areas, and regraded areas at western coal mining operations (see 67 FR 
3370). In this final rule, EPA defined (1) ``Western coal mining 
operation'' as a surface or underground coal mining operation located 
in the interior western United States, west of the 100th meridian west 
longitude, in an arid or semiarid environment with an average annual 
precipitation of 26.0 inches or less, and (2) ``Alkaline mine 
drainage'' as ``mine drainage which, before any treatment, has a pH 
equal to or greater than 6.0 and total iron concentration of less than 
10 mg/L'' (see 67 FR 3370 at 3375).
    There are regions in Alaska where coal is mined that meet these 
climatic conditions.
    In the final rule, EPA requires that a western coal mine operator 
develop and implement a site-specific sediment control plan for 
applicable areas (see January 23, 2002, 67 FR 3370 at 3380). The 
sediment control plan must identify sediment control BMPs and present 
their design, construction, maintenance specifications, and their 
expected effectiveness. EPA requires the operator to demonstrate, using 
watershed models accepted by the permitting authority, that 
implementation of the selected BMPs will not increase sediment loads 
over pre-mined, undisturbed condition sediment levels. The permit must 
then incorporate the site-specific sediment control plan and require 
the operator to implement the plan. EPA explains that sediment control 
BMPs for the coal mining industry are well known and established and 
include regrading, revegetation, mulching, check dams, vegetated 
channels, straw bales, dikes, silt fences, small sumps and berms, 
contour terracing, sedimentation ponds, and other construction 
practices (e.g., grass filters, serpentines, leaking berms, etc). In 
order to maintain pre-mined, undisturbed conditions on reclamation and 
associated areas, EPA promulgated non-numeric effluent limits based on 
the design, implementation, and maintenance of these BMPs.
    As clearly stated in Alaska's proposed revision, EPA would have to 
approve any proposed BMPs before implementation of reclamation plans 
without sedimentation ponds or before removal of sedimentation ponds 
that treat reclamation areas. The Director finds that Alaska's proposed 
revision at 11 AAC 90.323(b) is consistent with EPA's new rule 
described above that allows for the installation of BMPs as the 
standard for treating runoff from reclaimed lands in the western United 
States that meet certain climatic conditions.
    Although OSM has no direct counterpart to proposed 11 AAC 
90.323(c), this requirement is implicit in OSM's regulations. Any 
mixing of runoff from undisturbed lands or reclaimed lands with runoff 
from disturbed lands would have to be treated in accordance with the 
Federal regulations at 30 CFR 816.42, 816.45, and 816.46. Both Alaska's 
proposed rule and OSM's existing regulations require, as do EPA's 
rules, that any waste stream that is commingled with a waste stream 
subject to a subpart of 40 CFR part 434 will be required to meet the 
most stringent limitations applicable to any component of the combined 
waste stream (see January 23, 2002, 67 FR 3370 at 3375).
    Alaska's proposed rule at 11 AAC 90.331(e) contains requirements 
that are substantively the same as those in the

[[Page 71387]]

Federal regulations at 30 CFR 816.45(a)(2) and 816.46(a)(5) with the 
exception that Alaska's proposed rule allows for the removal of 
siltation structures after approval of alternative sediment control 
measures as BMPs by the Commissioner and EPA. OSM agrees that the 
allowance for the removal of existing siltation structures including 
sedimentation ponds after the required approvals of BMPs as alternative 
sediment control measures for the same area is inherent in the proposed 
language at 11 AAC 90.323(a) and (b); Alaska's proposed 11 AAC 
90.331(e) makes this rationale explicit.
    Based on the discussion above, the Director finds that Alaska's 
proposed revisions at 11 AAC 90.323(a), 90.323(b), 90.323(c), and 
90.331(e) are no less effective than and consistent with the 
counterpart Federal regulations at 30 CFR 816.42, 816.45, and 
816.46(b)(1) and approves them.
    OSM notes that our approval of 11 AAC 90.323(b) should not be 
construed as approving the use of BMP as an effluent limitation because 
only the EPA has the authority to make that determination as the 
language of Alaska's proposed rule itself acknowledges.
3. 11 AAC 90.089(a)(1), 90.336(a), 90.337(a), 90.491(f)(1), Designs, 
Inspections, and Certifications by Registered Professional Engineers or 
Other Qualified Professional Specialist Experienced or Trained in the 
Construction of Impoundments and Primary Roads
    Alaska proposed to revise 11 AAC 90.089(a)(1) and 90.336(a), 
concerning preparation and certification of design plans for siltation 
structures, impoundments, and coal mine waste dams, and 11 AAC 
90.491(f)(1), concerning preparation and certification of design plans 
for primary roads to require that the plans must be prepared by, or 
under the direction of, and certified by a qualified registered 
professional engineer with experience or training in the design and 
construction of impoundments and roads.
    Alaska also proposed to revise 11 AAC 90.337(a) to require that 
each permanent or temporary impoundment must be inspected by, or under 
the supervision of, a registered professional engineer or other 
qualified professional specialist under the direction of a professional 
engineer, and that the professional engineer or specialist shall be 
experienced or trained in the construction of impoundments.
    These proposed rules are, with one exception, the same as the 
counterpart Federal regulations at 30 CFR 780.37(b), 816.49(a) and 
816.49(a)(11) concerning preparation and certification of plans and 
drawings for primary roads, siltation structures, impoundments, and 
coal mine waste dams, and inspections of impoundments. The exception is 
that Alaska's proposed rules allow for preparation and certification or 
inspection by registered professional engineers with experience or 
training, while the Federal regulations only allow for preparation and 
certification of plans or inspection by registered professional 
engineers with experience. Alaska explained that the allowance for a 
registered professional engineer who is trained in the construction of 
impoundments and roads is necessary because of the limited pool in 
Alaska of such engineers who are experienced in the construction of 
impoundments or roads and inspections of impoundments.
    As noted above, the Federal regulations specify that certain design 
and construction certifications and inspections must be made by a 
qualified, registered, professional engineer or qualified, registered, 
professional land surveyor who is experienced in the design and 
construction or inspection of these facilities. The term 
``experienced'' was introduced in the Federal regulations that were 
promulgated during 1983 and 1987. The term is not defined and there is 
no explanation of it in the preambles to the proposed or final Federal 
Register notices for the promulgated Federal regulations. OSM agrees 
with Alaska that professional registered engineers who are trained, but 
who may not yet have worked in the field, can suffice for these 
certification and inspection responsibilities. OSM acknowledges that, 
in addition to the lack of experienced professional registered 
engineers in Alaska (in comparison to other States), mining in Alaska 
occurs in remote areas where it is not a simple matter to bring in a 
registered professional engineer as a consultant who may have such 
experience.
    Therefore, based on the above discussion, the Director finds that 
Alaska's proposed rules at 11 AAC 90.089(a)(1), 90.336(a), 90.337(a), 
90.491(f)(1) are no less effective than the counterpart Federal 
regulations at 30 CFR 780.37(b), 816.49(a) and 816.49(a)(11), and 
approves them.

C. Revisions to Alaska's Rules or Other Explanations Submitted in 
Response to Required Amendments Codified at 30 CFR 902.16(a) and (b) 
(See, Respectively, 57 FR 37410, August 19, 1992, Administrative Record 
No. AK-C-31; and 61 FR 48835, September 17, 1996, Administrative Record 
No. AK-E-22)

1. 30 CFR 902.16(a)(2), Description of Geology at 11 AAC 90.045(a)
    OSM required at 30 CFR 902.16(a)(2) that Alaska revise 11 AAC 
90.045(a) to require a description of the geology within the permit and 
adjacent areas to include the deeper of either the stratum immediately 
below the lowest coal seam to be mined or any aquifer below the lowest 
coal seam to be mined which may be adversely impacted by mining 
(finding no. 4, 57 FR 37410 at 37413, August 19, 1992).
    Alaska proposed to revise 11 AAC 90.045(a) by adding a requirement 
that is substantively the same as the requirement in the Federal 
regulations at 30 CFR 780.22(b)(1) and 784.14(i)(2)(i).
    Therefore, the Director finds that proposed 11 AAC 90.045(a) is no 
less effective than the Federal regulations at 30 CFR 780.22(b)(1) and 
784.14(i)(2)(i), approves proposed 11 AAC 90.045(a) and removes the 
required amendment at 30 CFR 902.16(a)(2).
2. 30 CFR 902.16(a)(3), Coal Exploration at 11 AAC 90.163(b)(1)
    OSM required at 30 CFR 902.16(a)(3) that Alaska revise 11 AAC 
90.163(b)(1) to require that an operator affirm that a surface coal 
mining permit application will be submitted in the near future as 
required at 30 CFR 772.14(b); and to require that provisions in an 
exploration application provide evidence that sufficient coal reserves 
are available for future use or sale; and that an application for an 
exploration permit to remove more than 250 tons of coal contain a 
statement of why extraction of more than that amount is necessary per 
the requirements of Federal regulations at 30 CFR 772.14(b)(3) and (4) 
(finding no. 5, 57 FR 37410 at 37413, August 19, 1992).
    In response to the required amendment, Alaska explained and OSM 
confirmed that existing rules at 11 AAC 90.163(b)(1), (c)(5) and (c)(6) 
contained the same requirements as those in the Federal regulations at 
30 CFR 772.14(b), (b)(3) and (b)(4). On September 17, 1996, OSM 
approved, among other provisions concerning coal exploration, revisions 
to Alaska's program at 11 AAC 90.163(b)(1), (c)(4) and (c)(5) as 
substantively the same as the

[[Page 71388]]

counterpart Federal regulations at 30 CFR 772.14(b), (b)(3) and (b)(4) 
(see finding nos. 2 and 5, 61 FR 48835 at 48836 and 48837). OSM failed 
to remove the required amendment when these Alaska rules were approved. 
Other than the revision in codification from 11 AAC 90.163(c)(4) and 
(c)(5) to 11 AAC 90.163(c)(5) and (c)(6), these Alaska rules are the 
same as those approved by OSM on September 17, 1996.
    Therefore, the Director is, based on our September 17, 1996, 
approval, removing the required program amendment at 30 CFR 
902.16(a)(3).
3. 30 CFR 902.16(a)(4), Reference to Standard Methods for the 
Examination of Water and Wastewater at 11 AAC 90.043(b)
    OSM required at 30 CFR 902.16(a)(4) that Alaska revise 11 AAC 
90.181(a)(5), .043, .047 and .089 to include reference to the 17th 
edition of the Standard Methods for the Examination of Water and 
Wastewater (finding no. 6, 57 FR 37410 at 37413, August 19, 1992).
    Alaska proposed to revise 11 AAC 90.043(b) to specify that any 
water quality analyses required by 11 AAC 90.043, 90.047 or 90.049 must 
be conducted according to the methodology in the most current edition 
of the Standard Methods for the Examination of Water and Wastewater, or 
the methodology in 40 CFR parts 136 and 434.
    Alaska's existing rule at 11 AAC 90.181(a)(6), concerning qualified 
laboratories, requires, in part, that the laboratory have the 
capability of collecting field samples, and making hydrologic field 
measurements and analytical laboratory determinations in accordance 
with 11 AAC 90.043, which has been revised as described above to 
require analyses conducted according to the methodology in Standard 
Methods for the Examination of Water and Wastewater. Therefore, OSM is 
no longer requiring revision of 11 AAC 90.181(a)(5).
    Alaska's rule language at proposed 11 AAC 90.043(b) differs from 
the Federal language only in that Alaska refers to the most recent 
edition rather than the 17th edition of the Standard Methods for the 
Examination of Water and Wastewater. The U.S. Environmental Protection 
Agency periodically revises the standard methods for water quality 
testing as technology changes; the revised methods reflect the industry 
standard for testing.
    Therefore, the Director finds that proposed 11 AAC 90.043(b) is no 
less effective than the Federal regulations at 30 CFR 780.21(a), 
approves proposed 11 AAC 90.043(b) and removes the required amendment 
at 30 CFR 902.16(a)(4).
4. 30 CFR 902.16(a)(5), Exemption From Requirements Concerning Topsoil 
at 11 AAC 90.311(g)
    OSM required at 30 CFR 902.16(a)(5) that Alaska delete 11 AAC 
90.311(g). This rule provides the Commissioner of the Alaska program 
with the discretion to authorize an exemption from the requirements for 
the removal, stockpiling, and redistribution of topsoil and other 
materials. OSM explained that the Federal regulations as 30 CFR 816.22 
do not provide the regulatory authority with the discretion for such an 
exemption (see finding no. 7, 57 FR 37410 at 37413, August 19, 1992).
    In response to the required amendment, Alaska proposed to delete 11 
AAC 90.311(g).
    Therefore, the Director finds that Alaska's program is now no less 
effective than the Federal regulations at 30 CFR 816.22(a)(1)(ii) in 
protecting soil resources, approves the deletion of 11 AAC 90.311(g) 
and removes the required program amendment at 30 CFR 902.16(a)(5).
5. 30 CFR 902.16(a)(6), Definitions of ``Other Treatment Facilities'' 
and ``Siltation Structure'' at 11 AAC 90.911 and 11 AAC 90.331(d)(1)
    OSM required at 30 CFR 902.16(a)(6) that Alaska revise (1) 11 AAC 
90.331(a) by defining ``other treatment facilities'' and to clarify the 
relationship of ``treatment facility(ies)'', ``water treatment 
facilities'', and ``erosion control structures'' relative to the term 
``siltation structure'' in a manner that is no less effective than the 
Federal program requirements; and (2) 11 AAC 90.331(d)(1) to provide 
for the 10-year, 24-hour precipitation event per the Federal regulation 
at 30 CFR 816.46(c)(1)(iii)(C) (see finding no. 8, 57 FR 37410 at 
37414, August 19, 1992).
    Alaska proposed to revise 11 AAC 90.911 by adding definitions of 
``other treatment facility'' and ``siltation structure'' that are the 
same as the definitions of these terms in the Federal regulations at 30 
CFR 701.5.
    Alaska also proposed to revise 11 AAC 90.331(d)(1) so that the 
design construction and maintenance requirements for sedimentation 
ponds are substantively the same as the requirements of the Federal 
regulations at 30 CFR 816.46(c)(1)(iii)(C).
    Therefore, the Director finds that (1) the proposed definitions of 
``other treatment facility'' and ``siltation structure'' at 11 AAC 
90.911 are no less effective than the same definitions in the Federal 
regulations at 30 CFR 701.5 and (2) proposed 11 AAC 90.331(d)(1) is no 
less effective than the Federal regulation at 30 CFR 
816.46(c)(1)(iii)(C). The Director approves them and removes the 
required program amendment at 30 CFR 902.16(a)(6).
6. 30 CFR 902.16(a)(7), Inspections of Impoundments at 11 AAC 90.337(f)
    OSM required at 30 CFR 902.16(a)(7) that Alaska revise 11 AAC 
90.337(f) to require that all impoundments be examined on a basis that 
is no less effective than the Federal requirements at 30 CFR 
816.49(a)(11) (see finding no. 9, 57 FR 37410 at 37414, August 19, 
1992).
    In response to the required amendment, Alaska explained and OSM 
confirmed that existing rules at 11 AAC 90.337(f) contain the same 
requirements concerning quarterly inspections as the Federal 
regulations at 30 CFR 816.49(a)(11). On September 17, 1996, OSM 
approved revisions to Alaska's program at 11 AAC 90.337(f) as 
substantively the same as the counterpart Federal regulations at 30 CFR 
816.48(a)(11) (see finding no. 11, 61 FR 48835 at 48839, September 17, 
1996). OSM failed to remove the required amendment when this Alaska 
rule was approved.
    Therefore, the Director is, based on our September 17, 1996, 
approval, removing the required program amendment at 30 CFR 
902.16(a)(7).
7. 30 CFR 902.16(a)(8), Water Monitoring at 11 AAC 90.345(e)
    OSM required at 30 CFR 902.16(a)(8) that Alaska revise 11 AAC 
90.345(e) to require that the surface-water monitoring plan include 
both upstream and downstream monitoring locations in all receiving 
bodies of water per the Federal regulation requirements at 30 CFR 
780.21(j)(2)(i) and 784.14(i)(2)(i) (see finding no. 10, 57 FR 37410 at 
37415, August 19, 1992).
    Alaska revised 11 AAC 90.345(e), concerning the requirements for 
surface and ground water monitoring of water bodies that may be 
affected by the mining operation or that will receive a discharge, to 
be substantively the same as the requirements in the counterpart 
Federal regulations at 30 CFR 780.21(j)(2)(i) and 784.14(i)(2)(i).
    Therefore, the Director finds that proposed 11 AAC 90.345(e) is no 
less effective than the Federal regulations at 30 CFR 780.21(j)(2)(i) 
and 784.14(i)(2)(i), approves proposed 11 AAC 90.345(e) and removes the 
required program amendment at 30 CFR 902.16(a)(8).

[[Page 71389]]

8. 30 CFR 902.16(a)(9), Approval of Coal Mine Waste Disposal in Excess 
Spoil Fills at 11 AAC 90.391(h)
    OSM required at 30 CFR 902.16(a)(9) that Alaska revise 11 AAC 
90.391(h) to require that the regulatory authority approve the 
placement of coal mine waste disposal in excess spoil fills per the 
Federal requirements at 30 CFR 816.71(i) (see finding no. 11, 57 FR 
37410 at 37415, August 19, 1992).
    Alaska proposed to revise 11 AAC 90.391(h)(2) to require that an 
operator demonstrate, prior to approval, that disposal of nontoxic and 
nonacid forming coal mine waste in an excess spoil fill is consistent 
with the design stability of the excess spoil fill. This requirement at 
proposed 11 AAC 90.391(h)(2) is substantively the same as the 
requirement in the Federal regulations at 30 CFR 816.71(i).
    Therefore, the Director finds that proposed 11 AAC 90.391(h)(2) is 
no less effective than the Federal regulations at 30 CFR 816.71(i), 
approves proposed 11 AAC 90.391(h)(2) and removes the required program 
amendment at 30 CFR 902.16(a)(9).
9. 30 CFR 902.16(a)(10), Design of Impounding Structures Constructed of 
Coal Mine Waste or Intended To Impound Coal Mine Waste at 11 AAC 
90.407(e)
    OSM required at 30 CFR 902.16(a)(10) that Alaska revise 11 AAC 
90.407(e) to provide for a precipitation event no less effective than 
the requirements of the Federal regulations at 30 CFR 816.84(b)(2) and 
the use of at least the 6-hour precipitation event for structures 
meeting the criteria of 30 CFR 77.216(a) (see finding no. 12, 57 FR 
37410 at 37415, August 19, 1992).
    In response to the required amendment, Alaska explained and OSM 
confirmed that the existing rule at 11 AAC 90.407(e) contains the same 
requirements concerning coal mine waste, dams and embankments as in the 
Federal regulations at 30 CFR 816.84(b)(2). On September 17, 1996, OSM 
approved revisions to Alaska's program at 11 AAC 90.407(e) as 
substantively the same as the counterpart Federal regulations at 30 CFR 
816.84(b)(2) (see finding no. 2, 61 FR 48835 at 48836). OSM failed to 
remove the required amendment when this Alaska rule was approved.
    Therefore, the Director is, based on our September 17, 1996, 
approval, removing the required program amendment at 30 CFR 
902.16(a)(10).
10. 30 CFR 902.16(a)(11), Endangered and Threatened Species Protection 
at 11 AAC 90.423(b)
    OSM required at 30 CFR 902.16(a)(11) that Alaska revise 11 AAC 
90.423(b) to require consultation with Federal and State fish and 
wildlife agencies prior to making a determination as to whether and 
under what conditions an operator may continue with mining activities 
after reporting the presence of a listed endangered or threatened 
species per the Federal regulation requirements at 30 CFR 816.97(b) 
(see finding no. 13, 57 FR 37410 at 37415, August 19, 1992).
    In response to the required amendment, Alaska explained and OSM 
confirmed that the existing rule at 11 AAC 90.423(b) contains the same 
requirements, concerning protection of listed endangered or threatened 
fish and wildlife, as in the Federal regulations at 30 CFR 816.97(b). 
On September 17, 1996, OSM approved revisions to Alaska's program at 11 
AAC 90.423(b) as substantively the same as the counterpart Federal 
regulations at 30 CFR 816.97(b) (see finding no. 2, 61 FR 48835 at 
48836). OSM failed to remove the required amendment when this Alaska 
rule was approved.
    Therefore, the Director is, based on our September 17, 1996, 
approval, removing the required program amendment at 30 CFR 
902.16(a)(11).
11. 30 CFR 902.16(a)(12), Allowance for Spoil To Be Placed Outside of 
Mined-Out Area in Nonsteep Slope Areas To Restore the Approximate 
Original Contour at 11 AAC 90.443(d)
    OSM required at 30 CFR 902.16(a)(12) that Alaska revise 11 AAC 
90.443(d) to allow blending the spoil into the surrounding terrain in 
nonsteep slope areas only, and to require the removal of all vegetative 
and organic material as a requirement for allowing spoil to be placed 
on the area outside the mined-out area per the Federal regulation 
requirements at 30 CFR 816.102(d)(2) (see finding no. 14, 57 FR 37410 
at 37416, August 19, 1992).
    Alaska explained and OSM confirmed that Alaska's existing rule at 
11 AAC 90.443(k)(2) already contains requirements concerning blending 
the spoil into the surrounding terrain in non-steep slope areas that 
are substantively the same as those in the counterpart Federal 
regulations at 30 CFR 816.102(d)(2).
    Therefore, the Director finds that 11 AAC 90.443(k)(2) is no less 
effective than the Federal regulations at 30 CFR 816.102(d)(2), 
approves proposed 11 AAC 90.443(k)(2) and removes the required program 
amendment at 30 CFR 902.16(a)(12).
12. 30 CFR 902.16(a)(13), Spoil in the Immediate Vicinity of a Remining 
Operation at 11 AAC 90.443(d)(1)
    OSM required at 30 CFR 902.16(a)(13) that Alaska revise 11 AAC 
90.443(e)(1) to require that spoil in the immediate vicinity of a 
remining operation be included in the permit area as required at 30 CFR 
816.106(b)(1) (see finding no. 15, 57 FR 37410 at 37416, August 19, 
1992).
    In response to the required amendment, Alaska explained and OSM 
confirmed that the existing rule at 11 AAC 90.443(d)(1), concerning 
backfilling and grading of previously mined areas, contains the same 
requirements as those in the Federal regulation at 30 CFR 
816.106(b)(1). On September 17, 1996, OSM approved revisions to 
Alaska's program at 11 AAC 90.443(d)(1) as substantively the same as 
the counterpart Federal regulations at 30 CFR 816.106(b)(1) (see 
finding no. 2, 61 FR 48835 at 48836). OSM failed to remove the required 
amendment when these Alaska rules were approved.
    Therefore, the Director is, based on our September 17, 1996, 
approval, removing the required program amendment at 30 CFR 
902.16(a)(13).
13. 30 CFR 902.16(a)(16), Submission of Policy Statements or Revision 
of Rules
    OSM required at 30 CFR 902.16(a)(16) that Alaska resubmit policy 
statements and/or provide proposed regulations for those items 
addressed in proposed policy statements A through G in a manner no less 
effective than the Federal regulation requirements (see finding no. 19, 
57 FR 37410 at 37417, August 19, 1992).

Policy Statement A, Maintenance of Records

    In response to the required amendment, Alaska explained and OSM 
confirmed that the existing rule 11 AAC 90.907(j) addresses the 
requirements that copies of all records, reports and inspection 
materials maintained by the regulatory authority shall be made 
immediately available to the public until at least five years after 
expiration of the period during which the subject operation is active 
or is covered by any portion of a reclamation bond in a manner 
substantively similar to the counterpart Federal regulations at 30 CFR 
840.14(b). On September 17, 1996, OSM approved revisions to Alaska's 
program at 11 AAC 90.907(j) as substantively the same as the 
counterpart Federal regulation at 30 CFR 840.14(b) (see finding no. 1, 
61 FR 48836). OSM failed to remove the required amendment when these 
rules were approved.

[[Page 71390]]

    Therefore, the Director, based on OSM's September 17, 1996, 
approval, finds that Alaska has satisfied that portion of the required 
amendment at 30 CFR 902.16(a)(16) pertaining to Policy Statement A.

Policy Statement B, Small Operator Assistance Program (SOAP)

    Rather than resubmit Policy Statement B, Alaska proposed to revise 
its regulations at 11 AAC 90.911 by adding a definition of ``qualified 
laboratory'' that is identical to the Federal definition at 30 CFR 
795.3.
    Therefore, the Director finds that the proposed definition of 
``qualified laboratory'' at 11 AAC 90.911 is no less effective than the 
same definition in the Federal regulation at 30 CFR 795.3 and approves 
it.
    Alaska proposed to revise its regulations at 11 AAC 90.173(a)(2) by 
increasing the eligible annual coal production rate from 100,000 tons 
to 300,000 tons for SOAP assistance so that Alaska's rule is 
substantively the same as the Federal figures at 30 CFR 795.6(a)(2).
    Therefore, the Director finds that proposed 11 AAC 90.173(a)(2) is 
no less effective than the Federal regulation at 30 CFR 795.6(a)(2) and 
approves proposed 11 AAC 90.173(a)(2).
    Alaska proposed to revise its regulations at 11 AAC 90.173(b)(2) 
and (3) by increasing from 5% to 10%, the baseline percentage above 
which ownership will play a role in determining ``attributed coal 
production.'' This requirement in the Alaska proposed rules is 
substantively the same as the requirement in the Federal regulations at 
30 CFR 795.6(a)(2)(i) and (ii).
    Therefore, the Director finds that proposed 11 AAC 90.173(b)(2) and 
(3) are no less effective than the Federal regulations at 30 CFR 
795.6(a)(2)(i) and (ii) and approves proposed 11 AAC 90.173(b)(2) and 
(3).
    In response to the Energy Policy Act of 1992, OSM amended its 
regulations to require funding for additional technical services 
provided to SOAP applicants. Alaska revised the following regulations 
so as to provide those same services.
    Alaska proposed to revise its regulations at 11 AAC 90.179(a)(3) by 
adding language that provides SOAP funding not only for the preparation 
of the statement of results of the test borings or core samplings but 
for the actual drilling as well in a manner substantively similar to 
the Federal regulations at 30 CFR 795.9(b)(2).
    Therefore, the Director finds that proposed 11 AAC 90.179(a)(3) is 
no less effective than the Federal regulation at 30 CFR 795.9(b)(2) and 
approves proposed 11 AAC 90.179(a)(3).
    Alaska proposed to revise its regulations at 11 AAC 90.179(b)(1) 
through (4) pertaining to data collection requirements for SOAP 
applicants so that the requirements would be substantively the same as 
the Federal requirements at 30 CFR 795.9(b)(3) through (6).
    Therefore, the Director finds that proposed 11 AAC 90.179(b)(1) 
through (4) is no less effective than the Federal regulations at 30 CFR 
795.9(b)(3) through (6) and approves proposed 11 AAC 90.179(b)(1) 
through (4).
    Alaska proposed to revise its regulations at 11 AAC 90.179(c) by 
adding language requiring that the SOAP data collected under 11 AAC 
90.179 be made available to interested persons as required by the 
Alaska Statute at AS 27.21.100 and in a substantively similar manner as 
the Federal regulations at 30 CFR 795.9(d).
    The Director finds that proposed 11 AAC 90.179(c) is no less 
effective than the Federal regulation at 30 CFR 795.9(d) and approves 
11 AAC 90.179(c).
    Lastly, Alaska proposed to revise its regulations at 11 AAC 
90.185(a)(4) and (5) by requiring reimbursement of SOAP funding for 
``services rendered'' should the applicant's 12-month production of 
coal exceed 300,000 tons in a manner substantively similar to the 
Federal requirements at 30 CFR 795.12(a)(2) and (3).
    Therefore, the Director finds that proposed 11 AAC 90.185(a)(4) and 
(5) are no less effective than the Federal regulations at 30 CFR 
795.12(a)(4) and (5) and approves 11 AAC 90.185(a)(4) and (5). The 
Director further finds that Alaska has satisfied that portion of 
required amendment 30 CFR 902.16(a)(16) pertaining to Policy Statement 
B.

Policy Statement C, Blasting Notice

    Rather than resubmit Policy Statement C, Alaska proposed to revise 
11 AAC 90.375(f) and (g), concerning the requirement that an operator 
(1) publish a blasting schedule in local newspapers, at least 10 days, 
but not more than 30 days before beginning a blasting program and (2) 
distribute a revised blasting schedule, at least 10 days, but not more 
than 30 days before blasting in the area covered by the schedule 
change. The revisions to 11 AAC 90.375(f) and (g) are substantively the 
same as the Federal regulations at 30 CFR 816.64(b)(1) and (2).
    Therefore, the Director finds that proposed 11 AAC 90.375(f) and 
(g) are no less effective than the Federal regulations at 30 CFR 
816.64(b)(1) and (2), approves 11 AAC 90.375(f) and (g) and finds that 
Alaska has satisfied that portion of required amendment 30 CFR 
902.16(a)(16) pertaining to Policy Statement C.

Policy Statement D, Surface Water Information

    In response to the required amendment, Alaska explained and OSM 
confirmed that the existing rule 11 AAC 90.049(2)(c) and (g) concerning 
acidity and alkalinity information requirements in a permit application 
were substantively similar to the counterpart Federal regulation at 30 
CFR 780.21(b)(2). On September 17, 1996, OSM approved revisions to 
Alaska's program at 11 AAC 90.049(2) (see finding No. 1, 61 FR 48836). 
OSM failed to remove the required amendment when these rules were 
approved.
    Therefore, the Director, based on OSM's September 17, 1996 
approval, finds that Alaska has satisfied that portion of the required 
amendment at 30 CFR 902.16(a)(16) pertaining to Policy Statement D.

Policy Statement E, Scope of Cumulative Hydrologic Impact Assessment

    Rather than resubmit Policy Statement E, Alaska proposed to revise 
its regulations at 11 AAC 90.911 by including a definition of 
``cumulative impact area'' that is identical to the Federal definition 
at 30 CFR 701.5. Since Alaska's current regulations did not contain the 
definition of cumulative impact area, the phrase was not present 
elsewhere in the Alaska regulations which made 11 AAC 90.085(c), 
pertaining to cumulative hydrologic impact assessment deficient as 
well. By adding the definition at 11 AAC 90.911, Alaska was then able 
to revise 11 AAC 90.085(c) by using the phrase in requiring the 
Commissioner to assess the cumulative hydrologic impacts for the 
cumulative impact area in a manner no less effective than the Federal 
regulations at 30 CFR 780.21(g).
    Therefore, the Director finds that the proposed definition of 
``cumulative impact area'' at 11 AAC 90.911 and proposed 11 AAC 
90.085(c) are no less effective than 30 CFR 701.5 and 30 CFR 780.21(g), 
respectively, approves the proposed definition of ``cumulative impact 
area'' at 11 AAC 90.911 and proposed 11 AAC 90.085(c) and finds that 
Alaska has satisfied that portion of required amendment 30 CFR 
902.16(a)(16) pertaining to Policy Statement E.

[[Page 71391]]

Policy Statement F, U.S. Fish and Wildlife Service Information Request

    Rather than resubmit Policy Statement F, Alaska proposed to revise 
11 AAC 90.057, concerning the requirement that the Commissioner provide 
resource information for fish and wildlife and the protection and 
enhancement plan to the U.S. Department of the Interior, Fish and 
Wildlife Service (Service) regional office or field office for their 
review, and that the information shall be provided within 10 days of 
receipt of the request from the Service. The proposed Alaska regulation 
at 11 AAC 90.057 is substantively similar to the Federal regulation at 
30 CFR 780.16(c).
    Therefore, the Director finds that proposed 11 AAC 90.057 is no 
less effective than the Federal regulation at 30 CFR 780.16(c), 
approves proposed 11 AAC 90.057 and finds that Alaska has satisfied 
that portion of required amendment 30 CFR 902.16(a)(16) pertaining to 
Policy Statement F.

Policy Statement G, Determining Peak Discharge for Hydrologic Designs

    Rather than resubmit Policy Statement G, Alaska proposed to revise 
11 AAC 90.325(b) and (c), concerning the design and construction 
requirements for the temporary and permanent diversion of miscellaneous 
flows in a manner that is substantively the same as the counterpart 
Federal regulation at 30 CFR 816.43(c)(3). Therefore, the Director 
finds that proposed 11 AAC 90.325(b) and (c) are no less effective than 
the Federal regulation at 30 CFR 816.43(c)(3) and approves 11 AAC 
90.325(b) and (c).
    Alaska proposed to revise 11 AAC 90.327(b)(2), concerning the 
design and construction requirements for both temporary and permanent 
stream channel diversions in a manner substantively similar to the 
counterpart Federal regulation at 30 CFR 816.43(b)(3).
    Therefore, the Director finds that proposed 11 AAC 90.327(b)(2) is 
no less effective than the Federal regulation at 30 CFR 816.43(b)(3) 
and approves proposed 11 AAC 90.327(b)(3)
    Alaska proposed to revise 11 AAC 90.336(b)(1) and (2), concerning 
the requirement that both temporary and permanent impoundments contain 
a combination of principal and emergency spillways and the design and 
construction requirements for the spillways. The revised Alaska 
regulations at 11 AAC 90.336(b)(1) and (2) are substantively the same 
as the counterpart Federal regulations at 30 CFR 816.49(a)(9)(ii)(B) 
and (C).
    Therefore, the Director finds that proposed 11 AAC 90.336(b)(1) and 
(2) are no less effective than the Federal regulations at 30 CFR 
816.49(a)(9)(ii)(B) and (C) and approves 11 AAC 90.336(b)(1) and (2).
    Alaska proposed to revise 11 AAC 90.391(n) pertaining to the 
requirements for diverting surface water runoff from areas adjacent to 
and above valley fills as well as runoff from the surface of the fill 
itself. The proposed Alaska regulation at 11 AAC 90.391(n) is 
substantively the same as the counterpart Federal regulation at 30 CFR 
816.72(a)(2).
    Therefore, the Director finds that proposed 11 AAC 90.391(n) is no 
less effective than the Federal regulation at 30 CFR 816.72(a)(2) and 
approves 11 AAC 90.391(n).
    Alaska proposed to revise 11 AAC 90.407(c), concerning the 
requirements for diverting surface water runoff from areas above coal 
waste dams and embankments that may cause instability and erosion. The 
proposed Alaska regulation at 11 AAC 90.407(c) is substantively the 
same as the counterpart Federal regulation at 30 CFR 816.84(d).
    Therefore, the Director finds that proposed 11 AAC 90.407(c) is no 
less effective than the Federal regulation at 30 CFR 816.84(d) and 
approves 11 AAC 90.407(c). The Director further finds that Alaska has 
satisfied that portion of required amendment 30 CFR 902.16(a)(16) 
pertaining to Policy Statement G.

Conclusion

    Based on the discussion above, the Director removes the required 
program amendment at 30 CFR 902.16(a)(16).
14. 30 CFR 902.16(a)(17), Petitions for Designating Lands Unsuitable 
for Mining at 11 AAC 90.701
    OSM required at 30 CFR 902.16(a)(17) that Alaska resubmit the 
proposed petition form that requests termination of an unsuitability 
designation or provide proposed regulations that are no less effective 
than the Federal regulation requirements at 30 CFR 764.13(b) (see 
finding no. 20, 57 FR 37410 at 37418, August 19, 1992).
    Alaska proposed to revise 11 AAC 90.701(a), (b), (c)(1) and (2), 
and (d)(1) and (2), concerning the requirements for petitions to 
designate areas unsuitable for mining, so that the proposed rules 
contain requirements that are substantively the same as the 
requirements in the Federal regulations at 30 CFR 764.13.
    Therefore, the Director finds that proposed 11 AAC 90.701(a), (b), 
(c)(1) and (2), and (d)(1) and (2) are no less effective than the 
Federal regulations at 30 CFR 764.13, approves them and removes the 
required program amendment at 30 CFR 902.16(a)(17).
15. 30 CFR 902.16(b)(2), (3), (4), (5), and (6), Definition of 
``Siltation Structure'' at 11 AAC 90.911
    OSM required at 30 CFR 902.16(b)(2), (3), (4), (5) and (6) that 
Alaska add a definition of ``siltation structure'' that is no less 
effective than the Federal definition of this term at 30 CFR 701.5, or 
otherwise revise its program at 11 AAC 90.321(d), 90.323(a), 90.325(a), 
90.327(b)(1) and (c) and 90.341(b)(2) (see finding no. 10, 61 FR 48835 
at 48838, September 17, 1996).
    Alaska proposed to revise 11 AAC 90.911 by adding a definition for 
``siltation structure'' that is substantively the same as the Federal 
definition of this term at 30 CFR 701.5. As discussed in finding no. 
C.5 above, the Director is approving Alaska's proposed definition of 
``siltation structure'' at 11 AAC 90.911.
    Because the proposed definition of ``siltation structure'' at 11 
AAC 90.911 is no less effective than the same definition in the Federal 
regulations at 30 CFR 701.5, the Director removes the required program 
amendments at 30 CFR 902.16(b)(2), (3), (4), (5) and (6).
16. 30 CFR 902.16(b)(7), Requirements for Topsoil on the Area Outside 
the Mined-Out Area in Nonsteep Slope Areas at 11 AAC 90.391(c) and 
90.443(k)(2)
    OSM required at 30 CFR 902.16(b)(7) that Alaska revise 11 AAC 
90.443(k) to 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 for 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) (see finding no. 14, 61 FR 48835 at 48839, 
September 17, 1996). (OSM notes that the requirement concerning 11 AAC 
90.443(k)(2) discussed here is the same as the requirement at 30 CFR 
902.16(a)(12) discussed above in finding no. 11.)
    Alaska explained, and OSM confirmed, that the existing Alaska rules 
at 11 AAC 90.391(c) and 11 AAC 90.443(k)(2) contain requirements that 
are substantively the same as the requirements in the counterpart 
Federal

[[Page 71392]]

regulation at 30 CFR 816.102(d)(2) and (3).
    Therefore, the Director finds that existing 11 AAC 90.391(c) and 
90.443(k)(2) are no less effective than the Federal regulations at 30 
CFR 816.102(d)(2) and (3), approves them and removes the required 
program amendment at 30 CFR 902.16(b)(7).
17. 30 CFR 902.16(b)(8), Requirements for Roads That Alter or Relocate 
Natural Stream Channels and for (1) Structures for Perennial or 
Intermittent Stream Channel Crossings and (2) Design, Construction, and 
Maintenance of All Low-Water Crossings at 11 AAC 90.491(f)(3) and (4)
    OSM required at 30 CFR 902.16(b)(8) that Alaska revise 11 AAC 
90.491(f) to require the addition of provisions concerning 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(d)(5) and (6) and 817.151(d)(5) and (6) 
(see finding no. 15, 61 FR 48835 at 48840, September 17, 1996).
    Alaska proposed to revise 11 AAC 90.491(f)(3) and (4), concerning 
the requirements for roads that alter or relocate natural stream 
channels and for (1) structures for perennial or intermittent stream 
channel crossings and (2) design, construction, and maintenance of all 
low-water crossings. Alaska's proposed rules contain requirements that 
are substantively the same as those in the Federal regulations at 30 
CFR 816.151(d)(5) and (6) and 817.151(d)(5) and (6). Therefore the 
Director finds that proposed 11 AAC 90.491(f)(3) and (4) are no less 
effective than the Federal regulations at 30 CFR 816.151(d)(5) and (6) 
and 817.151(d)(5) and (6), approves them and removes the required 
program amendment at 30 CFR 902.16(b)(8).

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (administrative 
record No. AK-9-4b). In response, by letter dated July 14, 2005, 
(administrative record No. AK-9-4d), the City of Aleknagik (Aleknagik) 
commented that it opposed any amendment that would relax the 
regulations regarding reclamation of mining sites based upon the 
percentage of coal and felt that in order to protect Alaska's unique 
qualities, reclamation regulations should be strengthened not reduced 
regardless of the material that is mined.
    Alaska's amendment included proposed rules at 11 AAC 90.901(a)(2), 
and 11 AAC 90.650 through 11 AAC 90.658, concerning the exemption from 
provisions governing coal exploration and surface coal mining and 
reclamation operations incidental to the extraction of other minerals 
if the coal is 16\2/3\ percent or less of the total tonnage of minerals 
removed. These rules are substantively the same as the Federal 
regulation at 30 CFR part 702 (see finding no. A above).
    Alaska submitted the proposed rule revisions in response to a 
February 7, 1990, letter that OSM sent to Alaska in accordance with 30 
CFR 732.17(c), requiring that Alaska adopt rules that are no less 
effective than the Federal regulations governing the mining of coal 
incidental to the extraction of other minerals if coal is 16\2/3\ 
percent or less of the total tonnage of minerals removed. Alaska's 
proposed rules set forth, as do the Federal regulations, stringent 
tests that an applicant must meet in order to demonstrate that the 
mining of coal is incidental to the mining of other minerals before an 
application to exempt an operation from the requirements for a permit 
under Alaska's coal regulatory program would be approved.
    Although the Director appreciates the concerns raised by Aleknagik, 
the Director finds that these concerns have no merit, and does not 
require further revision of Alaska's rules.

Federal Agency Comments

    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we 
requested comments on the amendment from various Federal agencies with 
an actual or potential interest in the Alaska program (administrative 
record No. AK-9-a). In response, by letter dated June 15, 2004 
(administrative record No. AK-9-b), the Bureau of Land Management 
(BLM), Alaska State Office, submitted comments.
    BLM (1) suggested that ``fill material'' as used at proposed 11 AAC 
90.650(E), may actually be quite valuable and should not necessarily be 
excluded and (2) asked that Alaska define ``other minerals'' as used at 
proposed 11 AAC 90.652(M). These proposed rules govern the exemption 
from the requirement for a permit for coal extraction incidental to the 
extraction of other minerals. The term ``other minerals'' is already 
defined at proposed 11 AAC 90.650(E) to mean any commercially valuable 
substance mined for its mineral value, excluding coal, topsoil, waste 
and fill material; this definition is applicable anywhere this term is 
used in proposed rules 11 AAC 90.650 through 11 AAC 90.658. Alaska's 
use of the term ``fill material'' in the proposed definition of ``other 
minerals'' is identical to the use of the term in the counterpart 
Federal regulation at 30 CFR 702.5. In the context of this definition, 
the value of ``fill material'' is actually recognized but is not at 
issue; rather the issue concerns the exemption of coal from regulation 
under Alaska's rules governing surface coal mining and reclamation 
activities. If coal were to be mined incidental to the mining for 
commercial value of only topsoil, waste and/or fill material, the 
operator could not qualify, under proposed rules at 11 AAC 90.650-11 
AAC 90.658, for an exemption from the regulation of surface coal mining 
and reclamation activities. Therefore, OSM required no revisions to the 
Alaska proposed rules in response to these comments.
    BLM also identified a typographical error at proposed 11 AAC 90.395 
and noted that there are no ``counties'' in Alaska with respect to the 
use of this word at proposed 11 AAC 652(i). OSM notified Alaska of 
BLM's comment and in Alaska's April 1, 2005, revisions to its proposed 
amendment, Alaska corrected the typographical error and revised 
proposed 11 AAC 652(i) to remove the word ``counties'' and require 
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 (for coal 
extraction incidental to the extraction of other minerals) has been 
filed with the regulatory authority. Based on Alaska's response to this 
comment, OSM required no further revision of Alaska's rules.
    Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we also 
requested comments on the revisions to Alaska's proposed amendment from 
various Federal agencies with an actual or potential interest in the 
Alaska program (administrative record No. AK-9-4a). In response, by 
letter dated May 27, 2005 (administrative record No. AK-9-4c), BLM, 
Alaska State Office, stated that they had reviewed the submitted 
changes to the proposed Alaska amendment and found them to be 
consistent and in accordance with SMCRA and had no additional comments.

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the 
amendment from EPA (administrative record No. AK-9-a. EPA did not 
respond to our request.

[[Page 71393]]

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

    Under 30 CFR 732.17(h)(4), we are required to request comments from 
the SHPO and ACHP on amendments that may have an effect on historic 
properties. On May 27, 2004, we requested comments on Alaska's 
amendment (administrative record No. AK-9-a), but neither SHPO or ACHP 
responded to our request.

V. OSM's Decision

    Based on the above findings, we approve Alaska's May 11, 2004, 
amendment, as revised on April 1 and July 20, 2005. We approve 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.
    To implement this decision, we are amending the Federal regulations 
at 30 CFR Part 902, which codify decisions concerning the Alaska 
program. We find that good cause exists under 5 U.S.C. 553(d)(3) to 
make this final rule effective immediately. Section 503(a) of SMCRA 
requires that the State's program demonstrate that the State has the 
capability of carrying out the provisions of the Act and meeting its 
purposes. Making this regulation effective immediately will expedite 
that process. SMCRA requires consistency of State and Federal 
standards.

VI. Procedural Determinations

Executive Order 12630--Takings

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

Executive Order 12866--Regulatory Planning and Review

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

Executive Order 12988--Civil Justice Reform

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

Executive Order 13132--Federalism

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

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

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

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

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

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. 4321 et 
seq).

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 
3501 et seq.).

Regulatory Flexibility Act

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

Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2) of the Small 
Business Regulatory Enforcement Fairness Act. This rule: a. does not 
have an annual effect on the economy of $100 million; b. will not cause 
a major increase in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; 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

[[Page 71394]]

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 902

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: September 29, 2005.
Allen D. Klein,
Director, Western Region.

0
For the reasons set out in the preamble, 30 CFR part 902 is amended as 
set forth below:

PART 902--ALASKA

0
1. The authority citation for part 902 continues to read as follows:

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

0
2. Section 902.15 is amended in the table by adding a new entry in 
chronological order by ``Date of Final Publication'' to read as 
follows:


Sec.  902.15  Approval of Alaska regulatory program amendments.

* * * * *

------------------------------------------------------------------------
 Original amendment submission    Date of final
             date                  publication      Citation/description
------------------------------------------------------------------------
 
                              * * * * * * *
May 11, 2004..................  November 29, 2005  11 AAC 90.043(b);
                                                    90.045(a), (b), (c),
                                                    (d), and (e);
                                                    90.057; 90.085(a)(5)
                                                    and (c);
                                                    90.089(a)(1);
                                                    90.101(a) and (b);
                                                    90.173(a)(2), (b)(2)
                                                    and (3);
                                                    90.179(a)(3), (b)(1)
                                                    through (4) and (c);
                                                    90.185(a)(4) and
                                                    (5); 90.201(d) and
                                                    (f); 90.211(a);
                                                    90.331(d)(1);
                                                    deletion of
                                                    90.311(g);
                                                    90.321(e); 90.323(a)
                                                    through (c);
                                                    90.325(b) and (c);
                                                    90.327(b)(2);
                                                    90.331(e) and (h);
                                                    90.336(a), (b)(1)
                                                    and (2), and (g);
                                                    90.337(a);
                                                    90.345(e);
                                                    90.349(l); 90.375(f)
                                                    and (g); 90.391(b),
                                                    (c), (h)(2), (l),
                                                    and (n); 90.395(a);
                                                    90.397(a);
                                                    90.401(a), (d), and
                                                    (e); 90.407(c) and
                                                    (f); 90.443(a),
                                                    (k)(2), (i), and
                                                    (m); 90.447(c)(1);
                                                    90.461(b), (g), (h)
                                                    and (i);
                                                    90.491(f)(1), (3)
                                                    and (4); 90.601(h)
                                                    and (i); 90.629(a);
                                                    90.631(a); 90.635(a)
                                                    and (b); 90.637(a)
                                                    and (b); 90.639(a)
                                                    through (c);
                                                    90.641(a) through
                                                    (d); 90.650 through
                                                    90.658; 90.701(a),
                                                    (b), (c)(1) and (2),
                                                    and (d)(1) and (2);
                                                    90.901(a)(2); and
                                                    90.911.
------------------------------------------------------------------------

Sec.  902.16  [Amended]

0
3. Section 902.16 is amended by removing and reserving paragraphs 
902.16(a)(2) through (13); removing paragraphs 902.16(a)(16) and (17); 
and removing and reserving paragraph (b).

[FR Doc. 05-23400 Filed 11-28-05; 8:45 am]
BILLING CODE 4310-05-P