[Federal Register Volume 70, Number 120 (Thursday, June 23, 2005)]
[Proposed Rules]
[Pages 36360-36363]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-12439]
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DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 906
[SATS No. AK-006]
Alaska Regulatory Program
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule; reopening and extension of public comment period
on proposed amendment.
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SUMMARY: We are announcing the receipt of revisions pertaining to a
previously proposed amendment to the Alaska regulatory program
(hereinafter, the ``Alaska program'') under the Surface Mining Control
and Reclamation Act of 1977 (SMCRA or the Act). Alaska proposes
revisions to its rules concerning revegetation of areas with a fish and
wildlife habitat, recreation, shelter belts, or forest products post
mining land use; subsidence and water replacement; bond release
applications; topsoil removal; the removal of siltation structures;
impoundment design; coal mine waste; and mining of coal incidental to
the extraction of other minerals if the coal is 16\2/3\ percent or less
of the total tonnage of minerals removed.
Alaska intends to revise its program to be consistent with the
corresponding Federal regulations and incorporate the additional
flexibility afforded by the revised Federal regulations.
DATES: We will accept written comments on this amendment until 4 p.m.,
m.s.t. July 25, 2005.
ADDRESSES: You may submit comments, identified by docket number AK-006,
by any of the following methods:
E-mail: [email protected]. Include AK-006 in the subject
line of the message.
Mail/Hand Delivery/Courier: James F. Fulton, Chief, Denver
Field Division, Western Region, Office of Surface Mining Reclamation
and Enforcement, PO Box 46667, 1999 Broadway, Suite 3320, Denver, CO
80201-6667, 303-844-1400 extension 1424, [email protected].
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Instructions: All submissions received must include the agency name
and docket number AK-006. For detailed instructions on submitting
comments and additional information on the rulemaking process, see the
``Public Comment Procedures'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
Docket: For access to the docket to review copies of the Alaska
program, this amendment, a listing of any scheduled public hearings,
and all written comments received in response to this document you must
go to the addresses listed below during normal business hours, Monday
through Friday, excluding holidays. You may receive one free copy of
the amendment by contacting the Office of Surface Mining Reclamation
and Enforcement's (OSM) Denver Field Division. In addition, you may
review a copy of the amendment during regular business hours at the
following locations:
James F. Fulton, Chief, Denver Field Division, Office of Surface Mining
Reclamation and Enforcement, 1999 Broadway, Suite 3320, Denver, CO
80202-6667, 303-844-1400 extension 1424, [email protected].
Stan Foo, Mining Chief, Division Of Mining, Land and Water, Alaska
Department of Natural Resources, 550 W. 7th Avenue, Suite 900D,
Anchorage, AK 99501, 907-269-8503, [email protected].
FOR FURTHER INFORMATION CONTACT: James F. Fulton, Telephone: 303-844-
1400 ext. 1424. Internet: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background on the Alaska Program
II. Description of the Proposed Amendment
III. Public Comment Procedures
IV. Procedural Determinations
I. Background on the Alaska Program
Section 503(a) of the Act permits a State to assume primacy for the
regulation of surface coal mining and reclamation operations on non-
Federal and non-Indian lands within its borders by demonstrating that
its State program includes, among other things, ``a State law which
provides for the regulation of surface coal mining and reclamation
operations in accordance with the requirements of this Act * * *; and
rules and regulations consistent with regulations issued by the
Secretary pursuant to this Act.'' See 30 U.S.C. 1253(a)(1) and (7). On
the basis of these criteria, the Secretary of the Interior
conditionally approved the Alaska program on March 23, 1983. You can
find background information on the Alaska program, including the
Secretary's findings, the disposition of comments, and conditions of
approval of the Alaska program in the March 23, 1983, Federal Register
(48 FR 12274). You can also find later actions concerning Alaska's
program and program amendments at 30 CFR 902.10, 902.15 and 902.16.
II. Description of the Proposed Amendment
By letter dated May 11, 2004, Alaska sent us a proposed amendment
to its program, (State Amendment Tracking System (SATS) No. AK-006,
administrative record No. AK-9) under SMCRA (30 U.S.C. 1201 et seq.).
Alaska sent the amendment in response to portions of letters dated May
7, 1986, December 16, 1988, February 7, 1990, June 4, 1996, and June
19, 1997 (administrative record Nos. AK-01, AK-03, AK-06, AK-07 and AK-
09), that we sent to Alaska in accordance with 30 CFR 732.17(c). Alaska
also submitted the amendment in response to required program amendments
codified at 30 CFR 902.16(a) and (b). Alaska submitted one provision at
its own initiative. The full text of the program amendment is
[[Page 36361]]
available for you to read at the locations listed above under
ADDRESSES.
We announced receipt of the proposed amendment in the July 19,
2004, Federal Register (69 FR 42920), provided an opportunity for a
public hearing or meeting on its substantive adequacy, and invited
public comment on its adequacy (administrative record No. AK-9-c).
Because no one requested a public hearing or meeting, none was held.
The public comment period ended on August 18, 2004. We received
comments from one Federal agency.
During our review of the amendment, we identified concerns relating
to the provisions of:
11 AAC (Alaska Annotated Code) 90.211(a), concerning the
requirement that a permittee include in the application for each phase
of bond release a notarized statement certifying that all applicable
reclamation activities have been accomplished in accordance with
appropriate rules and the approved reclamation plan;
11 AAC 90.311(g), concerning the subsection that provides the
Commissioner of the Alaska Department of Natural Resources
(Commissioner) the discretion to authorize an exemption from the
requirements for the removal, stockpiling, and redistribution of
topsoil and other materials;
11 AAC 90.336(f), concerning the need to incorporate by reference
the criteria in the ``Minimum Emergency Spillway Hydrologic Criteria''
table found in the Natural Resources Conservation Service (NRCS)
publication Earth, Dams and Reservoirs Techical Release No. 60 (TR-60)
or include the ``Minimum Emergency Spillway Hydrologic Criteria'' table
in its performance standards for impoundments;
11 AAC 90.457(c)(3), concerning consultation with, and approval by
the State forestry and wildlife agencies with regard to the minimum
planting and stocking arrangements for areas to be developed for fish
and wildlife habitat, recreation, shelter belts, or forest products
postmining land use;
11 AAC 90.461(g)(1) through (4), concerning rebuttable presumption
in rules governing subsidence and water replacement; and 11 AAC 652(i),
concerning the use of the word ``counties.''
We notified Alaska of our concerns by letter dated October 4, 2004
(administrative record No. AK-9-3). Alaska responded in a letter dated
April 1, 2005, by submitting a revised amendment (administrative record
No. AK-9-4).
Alaska requested that we withdraw from the May 11, 2004, amendment
proposed revisions at (1) 11 AAC 90.457(c)(3), concerning consultation
with, and approval by the State forestry and wildlife agencies with
regard to the minimum planting and stocking arrangements for areas to
be developed for fish and wildlife habitat, recreation, shelter belts,
or forest products postmining land use; and (2) 11 AAC 90.461(g)(1)
through (4), concerning rebuttable presumption in rules governing
subsidence and water replacement.
To require a notarized statement, Alaska proposes to add to 11 AAC
90.211(a), concerning bond release procedure and criteria, the
requirement that the permittee shall include in the application for
bond release a notarized statement which certifies that all applicable
reclamation activities have been accomplished in accordance with the
requirements of Alaska Statute 27.21, 11 AAC 90, and the approved
reclamation plan. Such certification shall be submitted for each
application or phase of bond release.
To remove the discretion of the Commissioner to authorize an
exemption from the requirements for the removal, stockpiling, and
redistribution of topsoil and other materials, Alaska proposes to
delete subsection 11 AAC 90.311(g), concerning removal of topsoil which
allows, in lieu of the requirements of this chapter for removal,
stockpiling, and redistribution of topsoil and other materials, that
the Commissioner will, in his or her discretion, authorize the handling
of the material as part of the backfilling and grading process under 11
AAC 90.441 and 11 AAC 90.443.
To clarify the intent of the rule with editorial revisions, Alaska
now proposes that 11 AAC 90.331(e), concerning siltation structures,
require that unless removal is authorized under 11 AAC 90.232(b), a
siltation structure may not be removed before the Commissioner's
approval under 11 AAC 90.323(b), until after the disturbed area has
been stabilized and revegetated, and no earlier than two years after
the last augmented seeding. When the structure is removed, the operator
must regrade and revegetate the affected land in accordance with the
requirements of this chapter, unless the Commissioner approves
retaining a pond, or ponds, as part of the postmining land use under 11
AAC 90.481. Any pond proposed for retention must meet all requirements
for a permanent impoundment under 11 AAC 90.336-11 AAC 90.338 and 11
AAC 90.351.
To require that certain impoundments be designed according to NRCS
TR-60, Alaska proposes to add a new subsection at 11 AAC 90.336(g),
concerning impoundment design and construction, to require that
impoundments meeting the class B or C criteria for dams in NRCS TR-60
shall comply with ``Minimum Emergency Spillway Hydrologic Criteria''
table in TR-60 and the requirements of this section.
To clarify the intent of the rule with an editorial revision,
Alaska proposes that 11 AAC 90.395(a), concerning general requirements
for coal mine waste, require that all coal mine waste disposed of in an
area other than the mine workings or excavations shall be placed in new
or existing disposal areas within a permit area, which is approved by
the Commissioner for this purpose.
To require publication in a newspaper of Statewide circulation
rather than circulation in a county, Alaska proposes that 11 AAC
90.652(i), concerning the requirements for the content of an
application for exemption from a permit for mining of coal incidental
to the extraction of other minerals if the coal is 16\2/3\ percent or
less of the total tonnage of minerals removed, require that the
application include, among other things, evidence of publication in a
newspaper of Statewide circulation and in a newspaper of general
circulation in the vicinity of the mining area, of a public notice that
an application for exemption has been filed with the regulatory
authority (the public notice must identify the persons claiming the
exemption and must contain a description of the proposed operation and
its locality that is sufficient for interested persons to identify the
operation).
III. Public Comment Procedures
Written Comments
Send your written comments to OSM at the address given above. Your
written comments should be specific, pertain only to the issues
proposed in this rulemaking, and include explanations in support of
your recommendations. We will not consider or respond to your comments
when developing the final rule if they are received after the close of
the comment period (see DATES). We will make every attempt to log all
comments into the administrative record, but comments delivered to an
address other than the Denver Field Division may not be logged in.
Electronic Comments
Please submit Internet comments as an ASCII file avoiding the use
of special characters and any form of encryption. Please also include
``Attn: SATS No. AK-006'' and your name and return
[[Page 36362]]
address in your Internet message. If you do not receive a confirmation
that we have received your Internet message, contact the Denver Field
Division at 303-844-1400 extension 1424.
Availability of Comment
We will make comments, including names and addresses of
respondents, available for public review during normal business hours.
We will not consider anonymous comments. If individual respondents
request confidentiality, we will honor their request to the extent
allowable by law. Individual respondents who wish to withhold their
name or address from public review, except for the city or town, must
state this prominently at the beginning of their comments. We will make
all submissions from organizations or businesses, and from individuals
identifying themselves as representatives or officials of organizations
or businesses, available for public review in their entirety.
IV. Procedural Determinations
Executive Order 12630--Takings
This rule does not have takings implications. This determination is
based on the analysis performed for the counterpart Federal regulation.
Executive Order 12866--Regulatory Planning and Review
This rule is exempted from review by the Office of Management and
Budget (OMB) under Executive Order 12866.
Executive Order 12988--Civil Justice Reform
The Department of the Interior has conducted the reviews required
by section 3 of Executive Order 12988 and has determined that this rule
meets the applicable standards of subsections (a) and (b) of that
section. However, these standards are not applicable to the actual
language of State regulatory programs and program amendments because
each program is drafted and promulgated by a specific State, not by
OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and
the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10),
decisions on proposed State regulatory programs and program amendments
submitted by the States must be based solely on a determination of
whether the submittal is consistent with SMCRA and its implementing
Federal regulations and whether the other requirements of 30 CFR Parts
730, 731, and 732 have been met.
Executive Order 13132--Federalism
This rule does not have federalism implications. SMCRA delineates
the roles of the Federal and State governments with regard to the
regulation of surface coal mining and reclamation operations. One of
the purposes of SMCRA is to ``establish a nationwide program to protect
society and the environment from the adverse effects of surface coal
mining operations.'' Section 503(a)(1) of SMCRA requires that State
laws regulating surface coal mining and reclamation operations be ``in
accordance with'' the requirements of SMCRA. Section 503(a)(7) requires
that State programs contain rules and regulations ``consistent with''
regulations issued by the Secretary pursuant to SMCRA.
Executive Order 13175--Consultation and Coordination With Indian Tribal
Governments
In accordance with Executive Order 13175, we have evaluated the
potential effects of this rule on Federally-recognized Indian Tribes
and have determined that the rule does not have substantial direct
effects on one or more Indian Tribes, on the relationship between the
Federal government and Indian Tribes, or on the distribution of power
and responsibilities between the Federal government and Indian Tribes.
The rule does not involve or affect Indian Tribes in any way.
Executive Order 13211--Regulations That Significantly Affect the
Supply, Distribution, or Use of Energy
On May 18, 2001, the President issued Executive Order 13211 which
requires agencies to prepare a Statement of Energy Effects for a rule
that is (1) considered significant under Executive Order 12866, and (2)
likely to have a significant adverse effect on the supply,
distribution, or use of energy. Because this rule is exempt from review
under Executive Order 12866 and is not expected to have a significant
adverse effect on the supply, distribution, or use of energy, a
Statement of Energy Effects is not required.
National Environmental Policy Act
This rule does not require an environmental impact statement
because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that
agency decisions on proposed State regulatory program provisions do not
constitute major Federal actions within the meaning of section
102(2)(C) of the National Environmental Policy Act (42 U.S.C.
4332(2)(C)).
Paperwork Reduction Act
This rule does not contain information collection requirements that
require approval by OMB under the Paperwork Reduction Act (44 U.S.C.
3507 et seq.).
Regulatory Flexibility Act
The Department of the Interior certifies that this rule will not
have a significant economic impact on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
The State submittal, which is the subject of this rule, is based upon
counterpart Federal regulations for which an economic analysis was
prepared and certification made that such regulations would not have a
significant economic effect upon a substantial number of small
entities. In making the determination as to whether this rule would
have a significant economic impact, the Department relied upon the data
and assumptions for the counterpart Federal regulations.
Small Business Regulatory Enforcement Fairness Act
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This rule: (a) Does not
have an annual effect on the economy of $100 million; (b) will not
cause a major increase in costs or prices for consumers, individual
industries, Federal, State, or local government agencies, or geographic
regions; and (c) does not have significant adverse effects on
competition, employment, investment, productivity, innovation, or the
ability of U.S.-based enterprises to compete with foreign-based
enterprises. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation was not considered a
major rule.
Unfunded Mandates
This rule will not impose an unfunded mandate on State, local, or
tribal governments or the private sector of $100 million or more in any
given year. This determination is based upon the fact that the State
submittal, which is the subject of this rule, is based upon counterpart
Federal regulations for which an analysis was prepared and a
determination made that the Federal regulation did not impose an
unfunded mandate.
[[Page 36363]]
List of Subjects in 30 CFR Part 902
Intergovernmental relations, Surface mining, Underground mining.
Dated: May 18, 2005.
Allen D. Klein,
Director, Western Region.
[FR Doc. 05-12439 Filed 6-22-05; 8:45 am]
BILLING CODE 4310-05-P