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Proposed Rule

Alaska Regulatory Program

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Information about this document as published in the Federal Register.

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AGENCY:

Office of Surface Mining Reclamation and Enforcement, Interior.

ACTION:

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

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 162/3 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: jfulton@osmre.gov. 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, jfulton@osmre.gov.
  • 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, jfulton@osmre.gov.

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, stanf@dnr.state.ak.us.

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FOR FURTHER INFORMATION CONTACT:

James F. Fulton, Telephone: 303-844-1400 ext. 1424. Internet: jfulton@osmre.gov.

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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 Start Printed Page 36361available 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 162/3 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 Start Printed Page 36362address 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.

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List of Subjects in 30 CFR Part 902

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Dated: May 18, 2005.

Allen D. Klein,

Director, Western Region.

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[FR Doc. 05-12439 Filed 6-22-05; 8:45 am]

BILLING CODE 4310-05-P