Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 71383 

§ 39.13 [Amended] 

■ 2. FAA amends § 39.13 by adding a 

new AD to read as follows: 

2005–24–07 Pacific Aerospace Corporation 

Ltd.: Amendment 39–14387; Docket No. 

FAA–2005–21935; Directorate Identifier 

2005–CE–37–AD. 

When Does This AD Become Effective? 

(a) This AD becomes effective on December 

29, 2005. 

What Other ADs Are Affected by This 

Action? 

(b) None. 

What Airplanes Are Affected by This AD? 

(c) This AD affects Model 750XL, serial 

numbers 101 through 115, that are 

certificated in any category. 

What Is the Unsafe Condition Presented in 

This AD? 

(d) This AD is the result of incorrect sizing 

of the attachment lug spacers causing the 

lugs to distort when the attachment bolt is 

tightened. Also, outer wing attachment lugs 

were used to secure the spar in the wing 

build jig without spacers. This may have bent 

the clevis legs outward. These two problems 

may cause cracking and/or degradation of 

fatigue life. The actions specified in this AD 

are intended to prevent structural failure of 

the outer panel and spar due to a cracked, 

bent, or distorted condition of the left and 

right outer panel attachment lugs; and 

incorrect spacing of the left and right outer 

panel attachment lugs. This failure could 

lead to loss of control of the airplane. 

What Must I Do To Address This Problem? 

(e) To address this problem, you must do 

the following: 

Actions Compliance Procedures 

(1) Inspect the left and right outer panel, paired 

center wing lugs, and the outer panel single 

lugs for damage (scoring or gouging).

Upon accumulating 300 hours time-in-service 

(TIS) or within 50 hours TIS after December 

29, 2005 (the effective date of this AD), 

whichever occurs later.

Follow Pacific Aerospace Corporation Ltd. 

Mandatory Service Bulletin PACSB/XL/015, 

Issue 3, amended April 8, 2005. 

(2) Inspect the left and right outer panel, paired 

center wing lugs, and the outer panel single 

lugs for cracks. You must use a fluorescent 

penetrant inspection procedure instead of the 

dye penetrant inspection procedure stated in 

the service information.

Upon accumulating 300 hours TIS or within 

50 hours TIS after December 29, 2005 (the 

effective date of this AD), whichever occurs 

later.

Follow Pacific Aerospace Corporation Ltd. 

Mandatory Service Bulletin PACSB/XL/015, 

Issue 3, amended April 8, 2005. 

(3) If any damage and/or cracks are found during the inspections required in paragraph 

(e)(1) and (e)(2) of this AD, you must replace 

the lugs.

Prior to further flight, after any inspection 

where damage and/or cracks are found.

Follow Pacific Aerospace Corporation Ltd. 

Mandatory Service Bulletin PACSB/XL/015, 

Issue 3, amended April 8, 2005. 

(4) Inspect the left and right wing paired lugs 

for parallel spacing within 0.010 inches. If the 

paired lugs are not parallel within 0.010 

inches, reshim outer wing attachment points 

and correct spacing.

Inspect upon accumulating 300 hours TIS or 

within 50 hours TIS after December 29, 

2005 (the effective date of this AD), whichever occurs later. Correct spacing and 

reshim prior to further flight after the inspection.

Follow Pacific Aerospace Corporation Ltd. 

Mandatory Service Bulletin PACSB/XL/015, 

Issue 3, amended April 8, 2005. 

May I Request an Alternative Method of 

Compliance? 

(f) You may request a different method of 

compliance or a different compliance time 

for this AD by following the procedures in 14 

CFR 39.19. Unless FAA authorizes otherwise, 

send your request to your principal 

inspector. The principal inspector may add 

comments and will send your request to the 

Manager, Standards Office, Small Airplane 

Directorate, FAA. For information on any 

already approved alternative methods of 

compliance, contact Karl Schletzbaum, 

Aerospace Engineer, FAA, Small Airplane 

Directorate, 901 Locust, Room 301, Kansas 

City, Missouri 64106; telephone: (816) 329–

4146; facsimile: (816) 329–4090. 

Is There Other Information That Relates to 

This Subject? 

(g) CAA Airworthiness Directive DCA/ 

750XL/5, dated April 28, 2005; and Pacific 

Aerospace Corporation Ltd. Mandatory 

Service Bulletin PACSB/XL/015, Issue 3, 

amended April 8, 2005 also address the 

subject of this AD. 

Does This AD Incorporate Any Material by 

Reference? 

(h) You must do the actions required by 

this AD following the instructions in Pacific 

Aerospace Corporation Ltd. Mandatory 

Service Bulletin PACSB/XL/015, Issue 3, 

amended April 8, 2005. The Director of the 

Federal Register approved the incorporation 

by reference of this service bulletin in 

accordance with 5 U.S.C. 552(a) and 1 CFR 

part 51. To get a copy of this service 

information, contact Pacific Aerospace 

Corporation Ltd., Hamilton Airport, Private 

Bag HN 3027, Hamilton, New Zealand; 

telephone: (64) 7–843–6144; facsimile: (64) 

7–843–6134. To review copies of this service 

information, go to the National Archives and 

Records Administration (NARA). For 

information on the availability of this 

material at NARA, go to: http:// 

www.archives.gov/federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html or call (202) 741–6030. To 

view the AD docket, go to the Docket 

Management Facility; U.S. Department of 

Transportation, 400 Seventh Street, SW., 

Nassif Building, Room PL–401, Washington, 

DC 20590–001 or on the Internet at http:// 

dms.dot.gov. The docket number is FAA–

2005–21935; Directorate Identifier 2005–CE–

37–AD. 

Issued in Kansas City, Missouri, on 

November 17, 2005. 

David R. Showers, 

Acting Manager, Small Airplane Directorate, 

Aircraft Certification Service. 

[FR Doc. 05–23260 Filed 11–28–05; 8:45 am] 

BILLING CODE 4910–13–P 

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. 

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 

71384 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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 162⁄3 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: 

JFULTON@OSMRE.GOV. 

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 162⁄3 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 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 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 162⁄3 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 

71386 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 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 

71388 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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). 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 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 MinedOut 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 minedout 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. 

71390 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 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 

71392 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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 162⁄3 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 162⁄3 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. 

Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 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 Federallyrecognized 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 

71394 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Rules and Regulations 

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. 

■ For the reasons set out in the 

preamble, 30 CFR part 902 is amended 

as set forth below: 

PART 902—ALASKA 

■ 1. The authority citation for part 902 

continues to read as follows: 

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

■ 2. Section 902.15 is amended in the 

table by adding a new entry in 

chronological order by ‘‘Date of Final 

Publication’’ to read as follows: 

§ 902.15 Approval of Alaska regulatory 

program amendments. 

* * * * * 

Original amendment submission 

date 

Date of final 

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. 

§ 902.16 [Amended] 

■ 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 

DEPARTMENT OF THE INTERIOR 

Office of Surface Mining Reclamation 

and Enforcement 

30 CFR Part 913 

[Docket No. IL–103–FOR] 

Illinois Regulatory Program 

AGENCY: Office of Surface Mining 

Reclamation and Enforcement, Interior. 

ACTION: Final rule; approval of 

amendment. 

SUMMARY: We, the Office of Surface 

Mining Reclamation and Enforcement 

(OSM), are approving an amendment to 

the Illinois regulatory program (Illinois 

program) under the Surface Mining 

Control and Reclamation Act of 1977 

(SMCRA or the Act). The Illinois 

Department of Natural Resources, Office 

of Mines and Minerals (Department or 

Illinois) is revising its regulations 

regarding revegetation success 

standards, to update statutory citations, 

to correct regulatory citations, and to 

clarify language in various provisions. 

Illinois is revising its program to clarify 

ambiguities and to improve operational 

efficiency. 

DATES: Effective November 29, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Andrew R. Gilmore, Chief, Alton Field 

Division—Indianapolis Area Office. 

Telephone: (317) 226–6700. E-mail: 

IFOMAIL@osmre.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background on the Illinois Program 

II. Submission of the Amendment 

III. OSM’s Findings 

IV. Summary and Disposition of Comments 

V. OSM’s Decision 

VI. Procedural Determinations 

I. Background on the Illinois 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 

(Secretary) conditionally approved the 

Illinois program on June 1, 1982. You 

can find background information on the 

Illinois program, including the 

Secretary’s findings, the disposition of 

comments, and the conditions of 

approval, in the June 1, 1982, Federal 

Register (47 FR 23858). You can also 

find later actions concerning the Illinois 

program and program amendments at 30 

CFR 913.10, 913.15, 913.16, and 913.17. 

II. Submission of the Amendment 

By letter dated February 1, 2005 

(Administrative Record No. IL–5088), 

Illinois sent us an amendment to its 

program under SMCRA (30 U.S.C. 1201 

et seq.). Illinois sent the amendment at 

its own initiative. Illinois proposed to 

amend its regulations at 62 Illinois 

Administrative Code (IAC) parts 1816 

(Surface Mining Operations), 1817 

(Underground Mining Operations), and 

1823 (Prime Farmland). 

We announced receipt of the 

proposed amendment in the April 4, 

2005, Federal Register (70 FR 17014). In 

the same document, we opened the 

public comment period and provided an 

opportunity for a public hearing or 

meeting on the adequacy of the 

amendment. We did not hold a public