Alaska Regulatory Program, 66296-66309 [2019-26128]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of Surface Mining Reclamation and Enforcement

[Federal Register Volume 84, Number 233 (Wednesday, December 4, 2019)]
[Rules and Regulations]
[Pages 66296-66309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-26128]


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DEPARTMENT OF THE INTERIOR

Office of Surface Mining Reclamation and Enforcement

30 CFR Part 902

[SATS No. AK-007-FOR; Docket ID No. OSM-2011-0017; S1D1S SS08011000 
SX064A000 201S180110; S2D2S SS08011000 SX064A000 20XS501520]


Alaska Regulatory Program

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

ACTION: Final rule; approval of amendment with four exceptions.

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SUMMARY: We, the Office of Surface Mining Reclamation and Enforcement 
(OSMRE), are approving, with four exceptions and six additional 
requirements, an amendment to the Alaska regulatory program (the Alaska 
program) under the Surface Mining Control and Reclamation Act of 1977 
(SMCRA or the Act). The amendment was submitted by Alaska to address 
changes made at its own initiative and in response to the required 
program amendment concerning postmining land use. Alaska intends to 
revise its program to be consistent with the corresponding Federal 
regulations and to conform to the drafting manual for the State of 
Alaska.

DATES: Effective January 3, 2020.

FOR FURTHER INFORMATION CONTACT:  Howard Strand, Manager, Denver Field 
Branch, Telephone: 303-293-5026. Email address: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background on the Alaska Program
II. Submission of the Proposed Amendment
III. OSMRE's Findings
IV. Summary and Disposition of Comments
V. OSMRE's Decision
VI. Statutory and Executive Order Reviews

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 program includes, among other things, State laws and regulations 
that govern surface coal mining and reclamation operations in 
accordance with the Act and consistent with the Federal regulations. 
See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the 
Secretary of the Interior approved the Alaska program effective on May 
2, 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. Submission of the Proposed Amendment

    By letter dated September 8, 2011 (Document ID No. OSM-2011-0017-
0002), Alaska sent us an amendment to its program under SMCRA (30 
U.S.C. 1201 et seq.). Alaska sent the amendment to include changes made 
at its own initiative and in response to the required program amendment 
at 30 CFR 902.16(a)(14), requiring consistency with the provisions of 
30 CFR 816.116(b)(3)(i), concerning postmining land use. The amendment 
package submitted by Alaska primarily concerns editorial revisions to 
AK-006-FOR, an amendment OSMRE approved after Alaska's submission on 
May 11, 2004, and revised on April 1, 2005. OSMRE approved the revised 
rules in the Federal Register on November 29, 2005 (70 FR 71383) 
(Document Identification Number (Docket ID No.) OSM-2011-0017-0013).
    Alaska explained that the September 8, 2011, proposed revisions 
were made at the request of the Alaska Department of Law, to conform to 
the State of Alaska ``Drafting Manual for Administrative Regulations'' 
(17th Edition, August 2007). The provisions of the program that Alaska 
submitted for amendment on September 8, 2011, are: 11 Alaska 
Administrative Code (AAC) 90.043(b), water quality analyses; 11 AAC 
90.045(a), (b), (c), and (d), description of geology; 11 AAC 90.057(a) 
and (b), fish and wildlife information; 11 AAC 90.057(c) and 11 AAC 
90.423(h), fish and wildlife information; 11 AAC 90.085(a), (a)(5) and 
(e), plans for protection of the hydrologic balance; 11 AAC 
90.089(a)(1), construction plans for ponds, impoundments, dams, and 
embankments; 11 AAC 90.101(a) through (f), subsidence control plans and 
the definition of material damage; 11 AAC 90.173(b)(2), eligibility for

[[Page 66297]]

assistance under the small operator assistance program; 11 AAC 
90.179(a)(3), (a)(4) and (a)(5), data collection that would be covered 
by the small operator assistance program; 11 AAC 90.185(a) and (a)(4), 
applicant liability under the small operator assistance program; 11 AAC 
90.201(d), requirements pertaining to incremental reclamation bonds; 11 
AAC 90.211(a), bond release procedures and criteria; 11 AAC 90.321(d), 
(e), (f), (f)(1) and (f)(2), replacement of water supplies affected by 
underground mining activities; 11 AAC 90.323(a) and (c), water quality 
standards; 11 AAC 90.323(b), sediment control measures; 11 AAC 
90.325(b) and (c) and 11 AAC 90.327(b)(2), stream channel diversions; 
11 AAC 90.331(d)(1), sedimentation ponds; 11 AAC 90.331(e), removal of 
siltation structures; 11 AAC 90.331(h)(1) and (2), design of other 
treatment facilities; 11 AAC 90.336(a), (b)(1) and (2), (f), and (g), 
impoundment design and construction; 11 AAC 90.337(a), impoundment 
inspection; 11 AAC 90.345(e), requirements for surface water 
monitoring; 11 AAC 90.349, discharges of water or coal mine waste into 
an underground mine working; 11 AAC 90.375(f) and (g), public notice of 
blasting; 11 AAC 90.391(n) and (t), disposal of excess spoil or coal 
mine waste; 11 AAC 90.395(a), general requirements for coal mine waste; 
11 AAC 90.397(a), inspections of disposal areas for excess spoil, 
underground development waste or coal processing waste; 11 AAC 
90.401(a)(1), (b), (d), (e), and (f), construction plans for coal mine 
waste refuse piles; 11 AAC 90.407(c)(1) and (2) and (f), coal mine 
waste dams or embankments; 11 AAC 90.443(a)(2), (k)(2), (l)(2), and 
(m)(2), requirements for backfilling and grading; 11 AAC 90.444(a) and 
(b), requirements for backfilling and grading where there is thick or 
thin overburden; 11 AAC 90.447(c)(1), requirements for auger mining; 11 
AAC 90.461, repeal of provisions which provided for rebuttable 
presumption of causation by subsidence; 11 AAC 90.461(b) and (b)(1) 
through (3), (g) and (g)(1) through (5), (h) and (h)(1) through (3), 
(i) and (i)(1) through (3), (j), (k), and (l)(1) through (3), 
subsidence control; 11 AAC 90.491(f)(1), (f)(2)(E), (f)(2)(E)(iii), 
(f)(3), and (f)(4), requirements for construction and maintenance of 
roads; 11 AAC 90.601(h), (i) and (j), definition of and inspections of 
abandoned sites; 11 AAC 90.629(a), procedures for assessment 
conference; 11 AAC 90.631(a), requests for a hearing on the fact of a 
violation or civil penalty; 11 AAC 90.635(a) and (b), when an 
individual civil penalty may be assessed; 11 AAC 90.637(a) and (b), 
amounts of individual civil penalty; 11 AAC 90.639(a), (b), and (c), 
procedures for assessment of an individual civil penalty; 11 AAC 
90.641(a), (b), (c), and (d), payments of an individual civil penalty; 
11 AAC 90.652 through 11 AAC 90.669, requirements for incidental mining 
of coal; 11 AAC 90.701(a), (b), and (c), filing of a petition to 
designate lands as unsuitable for surface coal mining operations; 11 
AAC 90.901(a), applicability of Alaska's rules to all coal exploration 
and surface coal mining and reclamation operations; 11 AAC 90.911(125), 
definition of ``community or institutional building;'' 11 AAC 
90.911(126), definition of ``cumulative impact area;'' 11 AAC 
90.911(128), definition of ``other minerals;'' 11 AAC 90.911(129), 
definition of ``other treatment facility;'' 11 AAC 90.911(130), 
definition of ``precipitation event;'' 11 AAC 90.911(133), definition 
of ``registered professional engineer;'' 11 AAC 90.911(134), definition 
of ``registered professional land surveyor;'' and 11 AAC 90.911(135), 
definition of ``siltation structure.''
    In the September 8, 2011, submission, Alaska also submitted 
substantive revisions of 11 AAC 90.457(c)(3), concerning standards for 
revegetation success in areas intended for fish and wildlife habitat. 
Alaska submitted these revisions in response to OSMRE's required 
program amendment codified at 30 CFR 902.16(a)(14).
    We announced receipt of the proposed amendment in the November 2, 
2011, Federal Register (76 FR 67635). In the same document, we opened 
the public comment period and provided an opportunity for a public 
hearing or meeting on the amendment's adequacy (Document ID No. OSM-
2011-0017-0001). We did not hold a public hearing or meeting because no 
one requested one. The public comment period ended on December 2, 2011. 
We received comments from two Federal agencies and one State agency.
    During our review of the amendment, we initially identified: (1) 
Minor editorial concerns in three rules about subsidence control plans, 
data requirements for the probable hydrologic consequences in a small 
operator assistance program, and replacement of lost, contaminated, 
diminished, or interrupted water supplies; (2) the need for Alaska to 
include standards for revegetation success in a guideline (rather than 
as promulgated rules in the Alaska program); and (3) deficiencies in 
two rules about assessment of civil penalties.
    We notified Alaska of these concerns by letter dated January 23, 
2012 (Document ID No. OSM-2011-0017-0009).
    Alaska responded with a letter dated February 9, 2012, requesting 
an extension of time to respond to our concerns (Document ID No. OSM-
2011-0017-0010). We approved the extension of time by letter dated 
February 13, 2012 (Document ID No. OSM-2011-0017-0011).
    Alaska responded to OSMRE by sending us a revised amendment 
(Document ID No. OSM-2011-0017-0012), on March 6, 2012. In response to 
our concerns, Alaska proposed non-substantive minor editorial revisions 
of 11 AAC 90.101(e), concerning a subsidence control plan, and 11 AAC 
90.321(e), concerning replacement of water supplies. In addition, 
Alaska withdrew from its proposed amendment the proposed revisions of 
11 AAC 90.637(a)(1) through (4) and 11 AAC 90.637(b), concerning civil 
penalties. Alaska then committed to include these proposed rule 
revisions as part of another forthcoming program amendment proposal 
concerning its ownership and control rules. That amendment proposal 
will be submitted in response to changes in the Federal program, which 
necessitated changes to the Alaska program to ensure that the State 
continues to meet the minimum requirements established under SMCRA and 
its implementing regulations. OSMRE informed Alaska of these required 
changes by an October 2, 2009, letter sent under the authority of 30 
CFR 732.17. The State resubmitted proposed revisions to 11 AAC 
90.637(a)(1) through (4) and 11 AAC 90.637(b) for OSMRE's informal 
review on December 4, 2014. That amendment proposal is currently 
undergoing OSMRE's informal review process under SATS No. AK-008-INF.
    Finally, Alaska also committed to: (1) Develop a general guideline 
for revegetation success standards and sampling techniques for mined 
lands in Alaska and a list of husbandry practices used in Alaska for 
forestry and agricultural purposes and (2) pursue legislation for an 
Alaska statutory revision of Alaska Statute 27.21.220, in which Alaska 
will add a new provision concerning prompt replacement of water 
supplies affected by underground mining operations.
    We did not reopen the public comment period for the March 6, 2012, 
proposed revisions because Alaska did not propose new substantive 
changes. Instead, the State: (1) Withdrew proposed rules concerning 
civil penalties; (2) committed to separately

[[Page 66298]]

develop a general guideline concerning revegetation success standards 
and sampling techniques as well as a list of normal husbandry 
practices; (3) committed to submit a statutory revision concerning 
replacement of water supplies; and (4) proposed only non-substantive, 
minor, editorial revisions of rules that did not alter their meaning or 
Alaska's intent.
    In 2017, we conducted a second review of Alaska's proposed 
amendment and identified additional concerns pertaining to subsidence 
control plan requirements for planned subsidence scenarios and two 
instances where the State proposed to shorten timeframes for requesting 
administrative review of an agency decision on incidental mining 
exceptions from 30 days to 20 days. We verbally discussed these 
concerns with the State on February 21, 2018. The State indicated that 
it preferred to address all remaining concerns with this amendment 
after publication of the final rule. For that reason, we are publishing 
this final rule approving the amendments with a total of four specific 
exceptions and six additional required amendments, as described below.

III. OSMRE'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 with exceptions and additional requirements as 
described below.

A. Minor Revisions to Alaska's Rules

    Alaska proposed minor wording, editorial, punctuation, grammatical, 
and recodification changes to the following previously approved rules. 
In some cases, the provisions are the same or similar to the 
corresponding Federal provisions. In other cases, the provisions may 
differ from, but are no less effective than, the corresponding Federal 
provisions.
    The minor wording, editorial, punctuation, grammatical, and 
recodification changes being addressed in this finding are non-
substantive, editorial revisions made upon promulgation of rules 
previously approved by OSMRE as no less effective than the 
corresponding Federal provisions. The following list provides the 
applicable portion of the Alaska Administrative Code followed by the 
corresponding Federal regulation (including the surface and underground 
mining provisions where applicable):
     11 AAC 90.085(a), 30 CFR 780.21(f)(1) and 784.14(e)(1), 
determination of the probable hydrologic consequences;
     11 AAC 90.201(d), 30 CFR 800.11(b)(1) through (4), 
incremental bonding;
     11 AAC 90.211(a), 30 CFR 800.40(a)(1) and (3), bond 
release procedures and criteria;
     11 AAC 90.331(h)(1), 30 CFR 30 CFR 816.46(d)(1) and (2), 
water treatment facility design;
     11 AAC 90.375(f) and (g), 30 CFR 816.64(a)(1) and (b), 
distribution and public notice of blasting schedules;
     11 AAC 90.395(a), 30 CFR 816.81(a) and 817.81(a), coal 
mine waste, general requirements;
     11 AAC 90.401(a)(1), (d) and (e), 30 CFR 816.83 and 
817.83, coal mine waste refuse piles;
     11 AAC 90.407(f), 30 CFR 816.84(f), coal mine waste dams 
and embankments;
     11 AAC 90.443(a)(2), (k)(2), (l)(2), and (m)(2), 30 CFR 
816.102(a)(2), (d)(2) and (3) and (k)(1) and (2), backfilling and 
grading;
     11 AAC 90.461(b) and (b)(1) through (3), 30 CFR 
817.121(a)(1) and (a)(2), prevention or minimization of subsidence 
damage or planned subsidence;
     11 AAC 90.461(h) and (h)(1) through (3), 30 CFR 
817.121(c)(5), performance bond for subsidence repair;
     11 AAC 90.461(i)(1) through (3), 30 CFR 817.121(c)(5), no 
performance bond for subsidence repair needed for repairs made within 
90 days;
     11 AAC 90.461(j), 30 CFR 817.121(c)(4)(v), use of 
available information for subsidence determination;
     11 AAC 90.491(f)(1), 30 CFR 816.151(a) and 817.151(a), 
construction of roads, certification of plans and drawings;
     11 AAC 90.491(f)(3) and (f)(4), 30 CFR 816.151 (d)(5) and 
(6) and 817.151(d)(5) and (6), approval for relocation of stream 
channels, and structures for crossing intermittent or perennial 
streams;
     11 AAC 90.629(a), 30 CFR 845.18(a), concerning procedures 
for assessment conference;
     11 AAC 90.631(a), 30 CFR 845.19(a) and 846.17(b)(1), 
concerning requests for a hearing on the fact of a violation or civil 
penalty;
     11 AAC 90.635(b), 30 CFR 846.12(b), when an individual 
civil penalty may be assessed;
     11 AAC 90.639(a), (b) and (c), 30 CFR 846.17(a) through 
(c), procedure for assessment of individual civil penalty;
     11 AAC 90.701(b) and (b)(1) through (b)(5), 30 CFR 
764.13(c)(1) and (c)(2), content requirements for petitions to 
terminate designation of lands as unsuitable for surface coal mining 
operations;
     11 AAC 90.701(c) and (c)(1) through (c)(3), 30 CFR 
764.13(c)(1), content requirements for petitions to terminate 
designation of lands unsuitable for surface coal mining operations;
     11 AAC 90.901(a)(1), (2) and (3), 30 CFR 700.11(a)(1),(2), 
and (4), applicability of regulations;
     11 AAC 90.911(125), 30 CFR 761.5, definition for 
``community or institutional building;''
     11 AAC 90.911(135), 30 CFR 701.5, definition for 
``siltation structure;''
     11 AAC 90.911, 30 CFR 795.3 and 795.10, deletion of 
definition for ``qualified laboratory,'' and 11 AAC 90.181, insertion 
of definition for ``qualified laboratory'';
     11 AAC 90.911, 30 CFR 816.104(a) and 816.105(a), deletion 
of definitions for ``thick overburden'' and ``thin overburden,'' and 11 
AAC 90.444, insertion of definitions for ``thick overburden'' and 
``thin overburden''; and
     11 AAC 90.911, 30 CFR 701.5, deletion of definitions for 
``drinking, domestic, or residential water supply,'' ``material 
damage,'' ``non-commercial building,'' ``occupied residential dwelling 
and structures related thereto,'' and ``replacement of water supply,'' 
and 11 AAC 90.461, insertion of definitions of ``drinking, domestic, or 
residential water supply,'' ``material damage,'' ``non-commercial 
building,'' ``occupied residential dwelling and structures related 
thereto,'' and ``replacement of water supply''.
    Because these changes to the Alaska program are minor and primarily 
editorial in nature, we find that they are no less effective than the 
corresponding Federal regulations, and we approve them.

B. 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. The following list provides the applicable 
portion of the Alaska Administrative Code followed by the corresponding 
Federal regulation (including the surface and underground mining 
provisions where applicable):
     11 AAC 90.043(b), 30 CFR 780.21(a), hydrology and geology;
     11 AAC 90.045(a) through (d), 30 CFR 780.22(b) through 
(d), geology description;
     11 AAC 90.057(a) and (b), 30 CFR 780.16(a)(1), fish and 
wildlife information;

[[Page 66299]]

     11 AAC 90.057(c) and deletion of duplicative provision at 
11 AAC 90.423(h), 30 CFR 780.16(c), fish and wildlife information;
     11 AAC 90.085(a)(5), 30 CFR 30 CFR 784.14(e)(3)(iv), plan 
for protection of the hydrologic balance;
     11 AAC 90.085(e), 30 CFR 784.14(f)(1), probable hydrologic 
consequences and cumulative hydrologic impacts;
     11 AAC 90.089(a)(1), 30 CFR 780.25(a)(1)(i) and 
784.16(a)(1)(i), certification by a qualified, registered professional 
engineer (PE) or other qualified professional of plans for siltation 
structures, impoundments, coal mine waste dams, or embankments;
     11 AAC 90.101(a) through (f), 30 CFR 701.5, 784.20(a) and 
(b), subsidence control plan;
     11 AAC 90.179(a)(3), (a)(4) and (a)(5), 30 CFR 795.9(a) 
and (b)(1) through (6), small operator assistance program and probable 
hydrologic consequences data requirements;
     11 AAC 90.185(a) and (a)(4), 30 CFR 795.12(a)(2), small 
operator assistance program, applicant liability;
     11 AAC 90.321(f), (f)(1) and (f)(2), 30 CFR 701.5, 
definition of ``replacement of water supply;''
     11 AAC 90.325(b) and (c), 30 CFR 816.43(c)(3) and 
817.43(c)(3), diversions and conveyance of flow;
     11 AAC 90.327(b)(2), 30 CFR 816.43(b)(2) and (3), stream 
channel diversions, precipitation (design) events;
     11 AAC 90.331(d)(1), 30 CFR 816.46(c)(1)(iii)(C), 
sedimentation pond design capacity;
     11 AAC 90.336(a), 30 CFR 780.25(a)(1)(i) and 816.49(a)(3), 
impoundment design and construction;
     11 AAC 90.336(b)(1) and (2), 30 CFR 816.49(a)(9)(ii)(B) 
and (C), impoundment spillway design;
     11 AAC 90.336(f) and (g), 30 CFR 816.49(a)(1), impoundment 
design;
     11 AAC 90.337(a), 30 CFR 816.49(a)(11), impoundment 
inspection;
     11 AAC 90.345(e), 30 CFR 780.21(j)(1), 784.14(i)(2)(i), 
surface- and ground-water monitoring plans;
     11 AAC 90.349, 30 CFR 816.41(i) and 30 CFR 817.41(h), 
discharge of water or coal mine waste into an underground mine;
     11 AAC 90.391(n) and (t), 30 CFR 816.72(a) and 817.72(a), 
drainage control on valley fills;
     11 AAC 90.391(t), 816.83(c)(2) and 817.83(c)(2), refuse 
pile configuration;
     11 AAC 90.397(a), 816.71(h), 30 CFR 816.83(d), 817.71(h), 
and 817.83(d), coal mine waste disposal area inspections;
     11 AAC 90.401(b) and (f), 30 CFR 816.81 and 816.83, coal 
mine waste refuse piles;
     11 AAC 90.407(c)(1) and (2), 30 CFR 816.84(d) and 
817.84(d), coal mine waste dams and embankments;
     11 AAC 90.423(h), 30 CFR 780.16(c), protection of fish and 
wildlife;
     11 AAC 90.444(a) and (b), 30 CFR 816.104(a) and 
816.105(a), backfilling and grading, thick and thin overburden;
     11 AAC 90.447(c)(1), 30 CFR 819.15(b)(1), requirements for 
auger mining;
     11 AAC 90.461, 30 CFR 817.121(c)(4), repeal of provisions 
providing for rebuttable presumption of causation by subsidence;
     11 AAAC 90.461(g) and (g)(1) through (5), 30 CFR 
817.121(g), detailed plan of underground workings;
     11 AAC 90.461(k), 30 CFR 817.121(c)(5), bond calculation 
for replacement of water supply;
     11 AAC 90.461(l)(1)(A) through (C), 30 CFR 701.5, 
definition of ``material damage;''
     11 AAC 90.461(l)(2), 30 CFR 30 CFR 701.5, definition of 
``non-commercial building;''
     11 AAC 90.461(l)(3)(A) and (B), 30 CFR 701.5, definition 
of ``occupied residential dwelling and related structures;''
     11 AAC 90.491(f)(2)(E) and (f)(2)(E)(iii), 30 CFR 
816.151(d)(2) and 817.151(d)(2), construction and maintenance of roads, 
transportation and support facilities, and utility installations;
     11 AAC 90.601(h), (i) and (j), 30 CFR 840.11(g), and (h), 
definition and inspection of abandoned sites;
     11 AAC 90.635(b), 30 CFR 846.12(b), assessment of 
individual civil penalties;
     11 AAC 90.701(a) and (a)(1) through (a)(6), 30 CFR 
764.13(a) and (b), content requirements for petitions to designate 
lands unsuitable for surface coal mining operations;
     11 AAC 90.911(126), 30 CFR 701.5 and 740.5(a), definition 
of ``cumulative impact area;''
     11 AAC 90.911(128), 30 CFR 702.5, definition of ``other 
minerals;''
     11 AAC 90.911(129), 30 CFR 701.5, definition of ``other 
treatment facility;'' and
     11 AAC 90.911(130), 30 CFR 701.5, definition of 
``precipitation event.''
    Because these proposed rules contain language that is identical to 
or is substantially similar to the corresponding Federal regulations, 
we find that Alaska's proposed amendments are no less effective than 
the corresponding Federal regulations, and approve them with one 
additional requirement about subsidence control plans. As proposed, 11 
AAC 90.101(e) omits counterpart language to 30 CFR 784.20(b)(7). This 
provision pertains to subsidence control plan requirements related to 
minimizing damage to non-commercial buildings and occupied residential 
dwellings in planned subsidence scenarios. OSMRE conditionally approves 
the current revisions to 11 AAC 90.101(e), with the addition of a new 
required amendment at 30 CFR 902.16 requiring Alaska to add the omitted 
provision.

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

1. 11 AAC 90.173(b)(2), Eligibility for the Small Operator Assistance 
Program (SOAP)
    Alaska proposed language at 11 AAC 90.173(b)(2), which requires all 
coal produced by a parent company and all of its subsidiaries to be 
attributed to the applicant of a SOAP grant. This is no less effective 
than the counterpart Federal regulation at 30 CFR 795.6(a)(2)(i) and 
(ii). The Federal regulation requires production to be attributed to 
the SOAP applicant when a proportional ratio of coal produced by 
operations that the applicant owns more than 10 percent, the 
proportional share of other operations owned by persons who own more 
than 10 percent of the applicant's operation, and operations owned by 
persons who directly or indirectly control the applicant by reason of 
direction of the management, and operations owned by members of the 
applicant's family and the applicant's relatives unless it is 
established that there is no direct or indirect business relationship. 
Alaska has proposed deletion of rules previously approved by OSMRE that 
were substantively identical to the Federal provisions of 30 CFR 
795.6(a)(2)(i) and (ii). Alaska's rule now determines eligibility based 
on all coal produced under a parent company rather than proportional 
amounts of coal produced under proportional ownership. Under the 
proposed Alaska regulations, more coal would be attributed to the small 
operator acting under a parent company, which owns or controls other 
coal mines, thereby reducing the number of applicants who would qualify 
for SOAP assistance. The proposed Alaska rule is also consistent with 
the overriding statute at AS 27.21.120.
    30 CFR 795.6(b) allows States to adopt alternate criteria or 
procedures for determining eligibility for SOAP,

[[Page 66300]]

provided that those criteria will not provide a basis for more grant 
requests than would be authorized under Federal requirements.
    Alaska stated in its Statement of Basis and Purpose, submitted with 
the proposed amendment, that the adoption of the new language results 
in the Alaska rule being more stringent than the corresponding Federal 
regulation by limiting the number of eligible applicants.
    OSMRE agrees and finds no evidence that the proposed Alaska 
provision would provide a basis for more grant requests than would be 
authorized under Federal requirements. Therefore, OSMRE finds that 
Alaska's proposed 11 AAC 90.173(b)(2), concerning the eligibility of a 
SOAP applicant, is no less effective than the counterpart Federal 
regulations at 30 CFR 795.6(a)(2)(i) and (ii) and 30 CFR 795.6(b), and 
approves it.
2. 11 AAC 90.321(d), Hydrologic Balance, Prevention or Minimization of 
Pollution and Operation of Water Treatment Facilities
    Alaska proposed to revise 11 AAC 90.321(d), concerning the 
requirement to conduct surface coal mining operations to prevent or 
minimize water pollution. Alaska proposed to remove the discretion of 
the Alaska Commissioner to discontinue operation of necessary water 
treatment facilities. In other words, Alaska's proposed rule would now 
require the operation of necessary water treatment facilities for as 
long as treatment is required under the program.
    The requirement for treatment to satisfy water quality standards is 
inherent throughout the Federal program and more specifically required 
in the Federal regulations at 30 CFR 816.41(a) and 816.42. Those 
regulations require operations to be conducted to minimize disturbance 
of the hydrologic balance and all discharges to be made in compliance 
with all applicable State and Federal water quality laws and 
regulations. Therefore, OSMRE finds that Alaska's proposed deletion of 
the Alaska Commissioner's discretionary authority serves to ensure that 
the requirement 11 AAC 90.321(d) is no less effective in protecting the 
hydrologic balance than the counterpart Federal regulations at 30 CFR 
816.41(a) and 816.42, and approves it.
3. 11 AAC 90.321(e), Hydrologic Balance, Prevention or Minimization of 
Pollution and Replacement of Damaged Water Supplies
    Alaska proposed to revise 11 AAC 90.321(e)(1) and (2), concerning 
the replacement of a water supply of an owner of interest in real 
property, who obtains all or part of the owner's supply of water for 
domestic, agricultural, industrial, or other legitimate use from an 
underground or surface source. Alaska proposed the revision to ensure 
that the rule applies if the water supply had been contaminated, 
diminished, or interrupted by surface or underground mining activities 
conducted after October 24, 1992, and if the affected water supply was 
in existence before the date the Alaska Commissioner received the 
permit application for the activities affecting and requiring 
replacement of the water supply. These changes are intended to satisfy 
certain requirements of the Energy Policy Act, which was passed on 
October 24, 1992, and codified as section 720 of SMCRA, 30 U.S.C. 
1309a, as well as additional requirements within OSMRE's regulations. 
The counterpart Federal regulation at 30 CFR 817.41(j) requires the 
replacement of certain drinking, domestic or residential water supplies 
that are contaminated, diminished, or interrupted by underground mining 
activities. The Federal regulation at 30 CFR 701.5 defines ``drinking, 
domestic or residential water supply'' as water received from a well or 
spring and any appurtenant delivery system that provides water for 
direct human consumption or house hold use. Excluded from this 
definition are wells and springs that serve only agricultural, 
commercial, or industrial enterprises, unless the water supply is for 
direct human consumption or human sanitation, or domestic use.
    By revising 11 AAC 90.321(e) to apply to not only underground 
mining activities, but also to surface mining activities, the 
counterpart Federal regulation for surface mining also applies. This 
counterpart Federal regulation at 30 CFR 816.41(h) requires the 
replacement of certain water supplies for domestic, agricultural, 
industrial, or other legitimate use that are contaminated, diminished, 
or interrupted by surface mining activities. By revising 11 AAC 
90.321(e) to apply to certain water supplies for domestic, 
agricultural, industrial, or other legitimate use, rather than certain 
drinking, domestic, or residential water supplies, Alaska has expanded 
the scope of the rule to protect more types of water supplies than 
protected under the counterpart Federal regulation at 30 CFR 817.41(j), 
if the water supply was contaminated, diminished, or interrupted by 
underground mining activities. Therefore, proposed 11 AAC 90.321(e) is 
more stringent than the counterpart Federal regulations at 30 CFR 
817.41(j) and 816.41(h), as to the type of water supply to be 
protected. Therefore, in this context, OSMRE finds that the Alaska 
regulations is no less effective than the applicable Federal 
counterpart.
    In addition, proposed 11 AAC 90.321(e) is no less effective than 30 
CFR 817.41(j) and 816.41(h) in requiring replacement of water supplies 
affected by underground and surface mining activities conducted after 
October 24, 1992, as required by 30 U.S.C. 1309a.
    However, proposed 11 AAC 90.321(e) is less effective than 30 CFR 
816.41(h), with respect to protecting water supplies affected by 
surface mining activities to the extent that it does not protect those 
water supplies affected by surface mining activities conducted on or 
before October 24, 1992.
    With the exception that proposed 11 AAC 90.321(e) does not protect 
those water supplies affected by surface mining activities conducted on 
or before October 24, 1992, OSMRE finds that 11 AAC 90.321(e) is no 
less effective than 30 CFR 817.41(j) and 816.41(h). However, with 
respect to protecting water supplies affected by surface mining 
activities on or before October 24, 1992, OSMRE does not approve the 
phrase ``conducted after October 24, 1992'' proposed for addition under 
11 AAC 90.321(e)(1) as it relates to surface coal mining activities. 11 
AAC 90.321(e) therefore requires further revision to ensure protection 
of water supplies affected by surface coal mining activities on or 
before October 24, 1992. To address this issue, OSMRE approves the 
current revisions, with this one exception and the addition of a 
required amendment at 30 CFR 902.16, that, in accordance with 30 CFR 
816.41(h), Alaska must further revise 11 AAC 90.321(e) to ensure 
protection of water supplies affected by surface coal mining activities 
conducted on or before October 24, 1992.
    In addition, following passage of the Energy Policy Act of 1992, 
OSMRE issued a Notice of Decision that required Alaska, among other 
states, to implement its requirements codified in section 720 of SMCRA 
(30 U.S.C. 1309a) (60 FR 38482, 38483, July 27, 1995). Alaska indicated 
it would amend its statute at AS 27.21.220 to add subsection (c) 
requiring prompt repair or compensation for material damage resulting 
from subsidence, and prompt replacement of water supplies affected by 
underground mining operations. In Alaska's March 6, 2012, response to 
OSMRE's January 23, 2012, concern letter, Alaska committed to amending 
its statute concerning replacement of water

[[Page 66301]]

supplies during the 2012 legislative session. But Alaska's response was 
silent with respect to the requirement that Alaska revise its statute 
to require prompt repair or compensation for material damage resulting 
from subsidence. Alaska did not revise its statute during the 2012 
legislative session. Because this statutory authority is necessary to 
implement the required changes to 11 AAC 90.321(e), OSMRE is 
conditioning approval of that part upon Alaska's submission of a state 
program amendment to AS 27.21.220. Therefore, OSMRE is adding another 
required amendment at 30 CFR 902.16, that requires, in accordance with 
the Energy Policy Act enacted on October 24, 1992, Alaska to submit, no 
later than the end of the 2019 legislative session, a statutory 
revision requiring prompt repair or compensation for material damage 
resulting from subsidence, and prompt replacement of water supplies 
affected by underground mining operations.
4. 11 AAC 90.323(a), (b) and (c), Treatment of Disturbed Surface 
Drainage To Meet Water Quality Laws and Regulations
    Alaska, at 11 AAC 90.323(a), proposed revisions to require that all 
discharges of water from areas disturbed by surface and underground 
mining activities must be made in compliance with all applicable 
federal water quality laws and regulations, with all applicable 
provisions of AS 46.03 and regulations in effect under that chapter, 
and with the effluent limitations for coal mining promulgated by the 
United States Environmental Protection Agency (EPA) set out in 40 CFR 
part 434, adopted by reference in 11 AAC 90.001(b). In doing so, Alaska 
proposed deletion from 11 AAC 90.323(a) of the requirement that, with 
certain exceptions, such discharges must pass through one or more 
siltation structures before leaving the permit area.
    The Federal regulations at 30 CFR 816.42 require that discharges of 
water from areas disturbed by surface mining activities must be made in 
compliance with all applicable State and Federal water quality laws and 
regulations and with the effluent limitations for coal mining 
promulgated by the EPA set forth in 40 CFR part 434.
    Effective December 22, 1986, OSMRE suspended the Federal 
counterpart language at 30 CFR 816.46(b)(2) requiring that all 
discharges pass through a siltation structure. See Finding No. 16 at 51 
FR 41957 (Nov. 20, 1986). OSMRE suspended this requirement in response 
to a remand by the court in In Re: Permanent Surface Mining Regulation 
Litigation, No. 79-1144 (D.D.C. 1985). 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).
    OSMRE no longer defines BTCA as being siltation structures as we 
previously did in the now-suspended 30 CFR 816.46(b)(2). Instead, OSMRE 
concludes that the regulatory authority must determine on a case-by-
case basis what constitutes BTCA consistent with the definition of the 
term found at 30 CFR 701.5. Although OSMRE anticipates that 
sedimentation ponds or some other siltation structure will most likely 
be the BTCA; a specific determination should be made by the regulatory 
authority. Therefore, OSMRE approves Alaska's proposed deletion of this 
language from 11 AAC 90.323(a) with the understanding that the case-by-
case analysis of BTCA is performed by Alaska.
    Alaska's proposed 11 AAC 90.323(a) contains requirements that are 
the same as or similar to the counterpart Federal regulation at 30 CFR 
816.42, concerning protection of the hydrologic balance.
    Alaska proposed to revise 11 AAC 90.323(b), concerning the 
allowance for other sediment control measures after disturbed areas 
have been regraded, topsoil replaced, and stabilized against erosion, 
if the Alaska Commissioner and the EPA have approved the use of best 
management practices as the effluent limitation. Alaska proposed to 
replace ``EPA'' with the State agency now delegated EPA's authority, 
the Alaska Department of Environmental Conservation. This proposed rule 
revision clarifies the Alaska program without changing the meaning or 
intent of the rule. The proposed rule is otherwise consistent with the 
Federal counterpart regulation at 30 CFR 816.45 concerning the use of 
appropriate sediment control measures.
    Alaska proposed to delete from its program the requirement, at 11 
AAC 90.323(c), that the operator must meet all applicable Federal and 
State water quality laws and regulations for the mixed drainage from 
the permit area when there is mixing of drainage from disturbed, 
reclaimed, and undisturbed areas. This requirement is redundant of the 
requirements proposed at paragraph 11 AAC 90.323(a) and discussed 
above. Therefore, based on the discussion above, OSMRE finds that 
Alaska's proposed 11 AAC 90.923(a) and (b), with the proposed deletion 
of 11 AAC 90.923(c), are no less effective than the counterpart Federal 
regulations at 30 CFR 816.42, 816.45 and 816.46. Therefore, we approve 
these portions of the Alaska program amendment.
5. 11 AAC 90.331(e), Maintenance, Removal and Retention of Siltation 
Structures
    Alaska proposed editorial revisions at 11 AAC 90.331(e), concerning 
maintenance, removal and retention of siltation structures, added 
specificity or clarified grammar without changing the meaning of the 
rule. In addition, Alaska proposed to reference the requirements of 11 
AAC 90.321(a) through (d) and 11 AAC 90.323, rather than 11 AAC 
90.323(b), for the Alaska Commissioner's authority to authorize removal 
of siltation structures.
    With one exception, Alaska's proposed rule is the same as or 
substantially similar to the counterpart Federal regulation at 30 CFR 
816.46(b)(5), which requires siltation structures to be maintained 
until removal is authorized by the regulatory authority and the 
disturbed area has been stabilized and revegetated and that, in no 
case, will the structure be removed sooner than two years after the 
last augmented seeding.
    The exception is that Alaska's proposed rule references the 
requirements of 11 AAC 90.321(a) through (d) and 11 AAC 90.323 for the 
Alaska Commissioner's authority to authorize removal of siltation 
structures, while the counterpart Federal regulation states only that 
removal must be authorized by the regulatory authority. Alaska's 
referenced rules at 11 AAC 90.321(a) through (d) and 11 AAC 90.323 
pertain to, respectively, requirements for protection of the hydrologic 
balance and the requirement that discharges of water from areas 
disturbed by surface and underground mining activities must be made in 
compliance with all applicable Federal and State water quality statues 
and regulations. Alaska's proposed reference to these rules provides 
specificity and clarification. Therefore, based on the above 
discussion, OSMRE finds that proposed 11 AAC 90.331(e) is the same as 
or substantially similar to, and no less effective than the counterpart 
Federal regulation at 30 CFR 816.46(b)(4), and we approve it.
6. 11 AAC 90.331(h)(2), Other Treatment Facilities
    Alaska proposed non-substantive editorial revisions at 11 AAC 
90.331(h)(2), concerning design of other treatment facilities. In 
addition, Alaska proposed to revise 11 AAC 90.331(h)(2) to require 
other treatment facilities to be

[[Page 66302]]

designed in accordance with ``11 AAC 90.336 and 11 AAC 90.338'' rather 
than ``the applicable requirements of this section.''
    The counterpart Federal regulations at 30 CFR 816.46(d)(1) and (2) 
require that other treatment facilities must be designed: (1) To treat 
the 10-year, 24-hour precipitation event, unless a lesser design event 
is approved by the regulatory authority based on terrain, climate, 
other site-specific conditions and a demonstration by the operator that 
the effluent limitations of 30 CFR 816.42 will be met; and (2) in 
accordance with the applicable requirements of 30 CFR 816.46(c), 
specifically discussing sedimentation ponds.
    Alaska's proposed rule at 11 AAC 90.331(h)(2) requires other 
treatment facilities to be designed in accordance with 11 AAC 90.336 
and 11 AAC 90.338 where the counterpart Federal regulations require 
design in accordance with 30 CFR 816.46(c). The referenced rules, at 11 
AAC 90.336 and 11 AAC 90.338, pertain to, respectively, temporary and 
permanent impoundment design and construction and permanent impoundment 
criteria. Alaska's referenced rules provide design criteria while the 
counterpart Federal regulations at 30 CFR 816.46(c) provide performance 
standards. Both pertain to the design of sedimentation ponds. Alaska's 
design criteria are more specific than, and no less effective than, the 
counterpart Federal performance standards. Therefore, based on the 
above discussion, OSMRE finds that Alaska's proposed rule at 11 AAC 
90.331(h)(2), concerning design of other treatment facilities, is no 
less effective than the counterpart Federal regulation concerning other 
treatment facilities at 30 CFR 816.46(d)(2), and approves the changes.
7. 11 AAC 90.635(a), When an Individual Civil Penalty May Be Assessed
    At existing paragraph (a) of 11 AAC 90.635, Alaska states that a 
civil penalty may be assessed against a corporate director, officer, or 
agent of the corporate permittee when the individual knowingly and 
willfully authorizes, orders, or carries out a violation, ``failure or 
refusal.'' Alaska proposed to revise this paragraph to delete the 
quoted phrase and state that it may assess an individual civil penalty 
when there is a violation ``of AS 27.21, this chapter, or a permit 
condition.'' Referenced AS 27.21 is the Alaska Surface Coal Mining 
Control and Reclamation Act. ``[T]his chapter'' is Chapter 90, Surface 
Coal Mining, of the Alaska Administrative Code.
    The federal counterpart requirement of paragraph (a) of 30 CFR 
846.12 addresses the same individuals and types of actions by these 
individuals. This regulation explains that an individual civil penalty 
may be assessed when there is a ``violation, failure or refusal.'' The 
Federal regulations at 30 CFR 701.5 define ``violation, failure or 
refusal'' and ``violation.'' Alaska does not have counterpart 
definitions for these terms in its program, although it committed to 
proposing them by September 2013 in a rulemaking package in response to 
OSMRE's October 2, 2009, 30 CFR part 732 letter, concerning ownership 
and control. The State submitted its proposed definitions for OSMRE's 
informal review on December 4, 2014. That amendment proposal is 
currently undergoing the informal review process under SATS No. AK-008-
INF.
    By proposing to insert in 11 AAC 90.635(a) the phrase ``of AS 
27.21, this chapter, or a permit condition'' in place of the phrase 
``failure or refusal,'' Alaska would consider all violations of any 
part of AS 27.21, which is the Alaska Surface Coal Mining Control and 
Reclamation Act; all violations of any part of 11 AAC Chapter 90, which 
is the chapter containing all of the Alaska Department of Natural 
Resource's regulations governing coal mining; and violations of any 
conditions the Alaska Department of Natural Resources imposes when it 
issues a permit. These violations of the Alaska program include those 
encompassed by the 30 CFR 846.12(a) phrase ``violation, failure or 
refusal'' and the 30 CFR 701.5 definitions of the terms ``violation, 
failure or refusal'' and ``violation.''
    Therefore, based on the above discussion, OSMRE finds that the 
proposed individual civil penalty requirements of 11 AAC 90.635(a) are 
no less effective than the corresponding requirements of 30 CFR 
846.12(a), and we approve it.
8. 11 AAC 90.641(a), (b), (c) and (d), Payment of Individual Civil 
Penalties
    Alaska proposed revisions of 11 AAC 90.641(a) to require that, with 
exceptions in (b) and (c), individual civil penalties must be paid 
within 30 days of the issuance of a notice of proposed individual civil 
penalty assessment. This effectively gives the individual 30 days to 
either pay (thereby rendering the proposed penalty final) or contest 
the penalty (with payment due upon issuance of the final written 
decision). The counterpart Federal regulation at 30 CFR 846.18(a) 
requires that these penalties are due upon issuance of the final order.
    Alaska proposed revisions of 11 AAC 90.641(b) to require that, if 
the individual contests the amount of the penalty or the fact of the 
violation, in accordance with AS 27.21.250(b) and 11 AAC 90.639(b), the 
penalty is due upon issuance of a final written decision (rather than 
administrative order) affirming, increasing, or decreasing the proposed 
penalty.
    In paragraph (b), Alaska references 11 AAC 90.639(b) and AS 
27.21.250(b) for contesting individual civil penalties. Revised 11 AAC 
90.639(b) requires the notice of proposed individual civil penalty 
assessment to become a final decision 30 days after service, unless the 
individual contests the amount of the penalty or the fact of the 
violation, in accordance with AS 27.21.250(b), or Alaska agrees to a 
plan and schedule for abatement or correction of the violation. Alaska 
Statute 27.21.250(b) provides information on how an individual contests 
the amount of the penalty or the facts of the violation. These 
references are correct and appropriate.
    Proposed 11 AAC 90.641(a) and (b) are similar to, and no less 
effective than, the counterpart Federal regulation at 30 CFR 846.18(a) 
and (b), which provides that, if an individual named in a notice of 
proposed individual civil penalty assessment files a petition for 
review in accordance with 43 CFR 4.1300 et seq., the penalty will be 
due upon issuance of a final administrative order affirming, 
increasing, or decreasing the proposed penalty.
    Proposed 11 AAC 90.641(c) is no less effective than its Federal 
counterpart at 30 CFR 846.18(c), which requires that, when a written 
agreement or plan for abatement or compliance of an order is reached, 
the individual may postpone payment until receiving either a final 
order that payment is due or written notification that the penalty has 
been withdrawn. The proposed Alaska provision does not discuss 
postponement of payment or withdrawal of penalties. Because these 
options are implicit in the Alaska Commissioner's and individual's 
ability to agree upon a schedule or plan for the abatement or 
correction of the violation, Alaska's proposed 11 AAC 90.641(c) 
requires that the penalty is due only when the abatement or correction 
has not been satisfactory and a final written decision of the penalty 
amount has been issued.`
    Alaska proposed to delete, from 11 AAC 90.641(d), language 
concerning the accrual of interest and late charges with references to 
the U.S. Department of Treasury. The language proposed for

[[Page 66303]]

deletion reflects requirements placed on OSMRE by the Debt Collection 
Act of 1982 (97 Pub. L. 365), which applies only to debts owed to the 
Federal government. Alaska is not bound by these obligations and it 
does not need to adopt similar language. Therefore, OSMRE can approve 
the deletion of OSMRE-specific language proposed at 11 AAC 90.641(d).
    Alaska also proposed editorial revisions of 11 AAC 90.641(d)(1) 
through (5), concerning overdue payments of civil penalties. These 
revisions add specificity and do not substantively revise the actions 
that the Alaska Commissioner may take if the penalty is not paid. 
Therefore, OSMRE finds that Alaska's proposed 11 AAC 90.641(d)(1) 
through (5) adds specificity, but has the same effect as the Federal 
regulations at 30 CFR 870.23(a) through (f), which are referenced in 
the counterpart Federal regulation at 30 CFR 846.18(d). Therefore, 
Alaska's proposed 11 AAC 90.641(d), concerning overdue payments of 
civil penalties, is no less effective than the counterpart Federal 
regulations at 30 CFR 846.18(d) and 30 CFR 870.23(a) through (f).
    Based on the above discussion, OSMRE finds that proposed 11 AAC 
90.641(a), (b), (c) and (d) are no less effective than the counterpart 
Federal regulations at 30 CFR 846.18 and 870.23, and we approve them.
9. 11 AAC 90.652, 654, 656, 658, 660, 662, 664, 666 and 669, Exemption 
for Coal Extraction Incidental to the Extraction of Other Minerals.
    Alaska, with four exceptions, has proposed at 11 AAC 90.652, 654, 
656, 658, 660, 662, 664, 666 and 669, recodification, non-substantive 
editorial revisions and editorial revisions that add specificity 
without changing the meaning or implementation of Alaska's rules 
concerning the exemption for extraction of coal incidental to the 
mining of other minerals. The exceptions are 11 AAC 90.652(d) 
concerning public notice requirements, 11 AAC 90.652(g)(1) concerning 
the timeframe for requesting administrative review of an agency 
decision, 11 AAC 90.656 concerning the public availability of 
information, and 11 AAC 90.664(c) concerning the timeframe for 
requesting administrative review of an agency decision. These 
exceptions are discussed below.
    11 AAC 90.652(d), Public Notice Requirements. Alaska has proposed 
to delete the requirement, at 11 AAC 90.654, that the applicant provide 
evidence of public notice in an application for incidental mining 
(previously codified as 11 AAC 90.652(i)). In place of the deleted 
provision, Alaska, at 11 AAC 90.652(d), proposed to require that the 
Alaska Commissioner provide public notice and receive comment on an 
application for an incidental mining exemption, in accordance with 11 
AAC 90.907.
    The counterpart Federal regulation, 30 CFR 702.12(i), requires that 
the applicant provide evidence of public notice in a newspaper of 
general circulation in the county of the mining area. Although Alaska's 
program at proposed 11 AAC 90.652(d) requires that the Alaska 
Commissioner provide notice of the application for mining of coal 
incidental to the mining of other minerals, Alaska's proposed 11 AAC 
90.652(d) is no less effective than the Federal regulations at 30 CFR 
702.12(i), which requires that the applicant publish notice. The public 
will be provided effective notice and an opportunity to comment, for a 
period of no less than 30 days, as required in the Federal regulations 
at 30 CFR 702.11(d).
    11 AAC 90.652(g)(1), Administrative Review of an Application for an 
Incidental Mining Exemption. Alaska proposed to shorten the timeframe 
for an adversely affected person to request administrative review of an 
agency decision regarding an incidental mining exemption from 30 days 
to 20 days. This change is inconsistent with and less effective in 
providing the opportunity to seek appeal than the counterpart Federal 
regulation at 30 CFR 702.11(f)(1). The Federal regulation allows for a 
30-day period to seek administrative review of such determination 
according to the Federal or State procedures, whichever are applicable.
    11 AAC 90.656, Public Availability of Information. Alaska proposed, 
in the initial paragraph of 11 AAC 90.656, to require that, except as 
provided in AS 27.21.100(c), all information submitted to the Alaska 
Commissioner under 11 AAC 90.652 through 11 AAC 90.669, will be made 
immediately available for public inspection and copying at the Alaska 
Commissioner's office and at the regional office of the Department 
closest to the location of the coal mining operation. Alaska proposed 
to delete the requirements (previously codified at 11 AAC 90.653(a)) 
that (1) the information be available for a minimum period of 3 years 
after expiration of the period during which the subject mining area is 
active, and (2) the discretion of the Alaska Commissioner to hold 
information concerning trade secrets or privileged commercial or 
financial information of the persons intending to conduct the 
operations, confidential, if requested in writing at the time the 
application is made. The counterpart Federal requirements to the 
requirements that Alaska proposed to delete are 30 CFR 702.13(a), (b) 
and (c).
    Alaska's statute at AS 27.21.100(c) specifies requirements 
concerning confidentiality of information in applications that are 
similar to and no less effective than the Federal regulations at 30 CFR 
702.13(b) and (c). Therefore, Alaska's proposed 11 AAC 90.656, which 
includes a reference to AS 27.21.100(c) in place of language identical 
to 30 CFR 702.13(b) and (c), is no less effective than the Federal 
regulations concerning information that may be held as confidential. 
However, the counterpart Federal regulation at 30 CFR 702.13(a) 
requires, except for information approved as confidential, that all 
information submitted to the regulatory authority must be made 
immediately available for public inspection and copying at the local 
offices of the regulatory authority having jurisdiction over the mining 
operations claiming exemption until at least three years after 
expiration of the period during which the subject mining area is active 
(emphasis added).
    Alaska's proposed 11 AAC 90.656 is the same as the counterpart 
Federal regulation at 30 CFR 702.13(a), with the exception that Alaska 
proposed to remove the requirement that the information must be 
available for three years after expiration of operations. OSMRE notes 
that Alaska's general provisions governing public availability of 
information at 11 AAC 90.907(j) requires information to be available 
for at least five years after expiration of the period during which the 
mining operation is active or is covered by any portion of a 
reclamation bond, whichever is later. However, operations extracting 
coal incidental to mining are exempt from these general provisions, if 
the exemption is approved by the Alaska Commissioner. See 11 AAC 
90.901(a)(3). Therefore, Alaska's proposed deletion from 11 AAC 90.656 
of the requirement that information must be available for three years 
after expiration of operations is less effective at providing public 
availability of certain information than the counterpart Federal 
regulation at 30 CFR 702.13(a).
    11 AAC 90.664(c), Administrative Review of a Revocation of an 
Incidental Mining Exemption. Alaska proposed to shorten the timeframe 
for an adversely affected person to request administrative review of an 
agency decision regarding revocation of an incidental mining exemption 
from 30 days to 20 days. This change is inconsistent with and less 
effective in

[[Page 66304]]

providing the opportunity to seek appeal than the counterpart Federal 
regulation at 30 CFR 702.17(c)(2). That regulation allows for a 30-day 
period to seek administrative review of such determination according to 
the Federal or State procedures, whichever are applicable.
    Therefore, based on the above discussion, with three exceptions 
within 11 AAC 90.652, 11 AAC 656, and 11 AAC 90.664, OSMRE finds that 
Alaska's proposed rules at 11 AAC 90.652, 654, 656, 658, 660, 662, 664, 
666 and 669, concerning the exemption for coal extraction incidental to 
the extraction of other minerals, are the same as or similar to the 
counterpart Federal regulations at 30 CFR part 702, and we approve 
them.
    We find, however, that the proposed reduction of time for an 
adversely affected person to request administrative review of an agency 
decision about an application for an incidental mining exemption at 
90.652(g)(1) is inconsistent with and less effective than the 
counterpart Federal regulation at 30 CFR 702.11(f)(1). Therefore, we do 
not approve it.
    Likewise, OSMRE finds that Alaska's proposed deletion from 11 AAC 
90.656 of the requirement that information must be available for three 
years after expiration of operations is less effective than the 
counterpart Federal regulation at 30 CFR 702.13(a), and we do not 
approve it.
    OSMRE also finds that the proposed reduction of time for an 
adversely affected person to request administrative review of an agency 
decision about revocation of an incidental mining exemption at 
90.664(c) is inconsistent with and less effective than the counterpart 
Federal regulation at 30 CFR 702.17(c)(1). Therefore, OSMRE does not 
approve it.
    Accordingly, OSMRE is adding required amendments, at 30 CFR 902.16, 
that Alaska further amend 11 AAC 90.652(g)(1) and 90.664(c) to restore 
the 30-day timeframes for requesting administrative review of agency 
decisions regarding incidental mining exemptions, and 11 AAC 90.656, 
concerning public availability of information in an application for an 
exemption of coal incidental to the extraction of other minerals, to 
restore the requirement that the information, unless approved as 
confidential, must be made available for public inspection and copying 
until at least three years after expiration of the period during which 
the subject mining area is active.
10. 11 AAC 90.911(133) and (134), Definitions of ``Registered 
Professional Engineer'' and ``Registered Professional Land Surveyor''
    Alaska proposed, at 11 AAC 90.911(133) and (134), definitions of 
``registered professional engineer'' and ``registered professional land 
surveyor.'' OSMRE's regulations in several locations allow either a 
``qualified, registered, professional engineer'' or a ``qualified 
registered professional land surveyor'' to certify certain design 
plans; however, OSMRE does not define the terms. Alaska defines these 
terms by reference to the body of law governing registered 
professionals in the State of Alaska.
    Alaska's proposed inclusion of definitions of ``registered 
professional engineer'' and ``registered professional land surveyor'' 
serves to clarify its rules where these terms are used. See 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; 11 AAC 90.491(f)(1), concerning preparation and 
certification of design plans for primary roads; and 11 AAC 90.337(a), 
concerning inspections of permanent or temporary impoundments. These 
rules are clarified by the proposed definitions and remain no less 
effective than the counterpart Federal regulations, which use the same 
terms (see Federal regulations at 30 CFR 780.37(b), 816.49(a)(3) 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 proposed 
definitions serve to clarify its program and to demonstrate that Alaska 
provides for registration of both professional engineers and land 
surveyors.
    Therefore, based on the above discussion, OSMRE approves Alaska's 
proposed definitions of ``registered professional engineer'' and 
``registered professional land surveyor'' at 11 AAC 90.911(133) and 
(134).

D. Revisions to Alaska's Rules or Other Explanations Submitted in 
Response to Required Amendments Codified at 30 CFR 902.16(a) (See 57 FR 
37410, August 19, 1992, Administrative Record No. AK-C-31)

1. 30 CFR 902.16(a)(14), Minimum Stocking and Planting Arrangements for 
Areas Developed for Fish and Wildlife Habitat, Recreation, Shelter 
Belts or Forest Products at 11 AAC 90.457(c)(3).
    OSMRE required at 30 CFR 902.16(a)(14) that Alaska revise 11 AAC 
90.457(c)(3) to require consultation with and approval by the State 
forestry and wildlife agencies with regard to the minimum stocking and 
planting arrangements for areas developed for fish and wildlife 
habitat, recreation, shelter belts or forest products postmining land 
use as required at 30 CFR 816.116(b)(3)(i) (finding 16, 57 FR 37410, 
37416, August 19, 1992).
    Alaska proposed revisions of 11 AAC 90.457(c)(3) so that it is now 
substantively identical to the counterpart Federal regulations at 30 
CFR 816.116(b)(3).
    Therefore, OSMRE finds that proposed 11 AAC 90.457(c)(3) is no less 
effective than the Federal regulations at 30 CFR 816.116(b)(3) and 
817.116(b)(3), approves it, and removes the required amendment at 30 
CFR 902.16(a)(14).
2. 30 CFR 902.16(a)(15), Standards for Revegetation Success
    OSMRE required at 30 CFR 902.16(a)(15) that Alaska resubmit 
standards for revegetation success per the requirements at 30 CFR 
816.116(a)(1) (finding 18, 57 FR 37410, 37417, August 19, 1992).
    On August 30, 2006, OSMRE revised the Federal regulations at 30 CFR 
816.116(a)(1) by eliminating the requirement that revegetation success 
standards and statistically valid sampling techniques must be included 
in approved State regulatory programs. See 71 FR 51684, 51688. We are 
therefore removing the required amendment at 30 CFR 902.16(a)(15). The 
revised current regulation continues to require that standards for 
success and sampling techniques for measuring success must be selected 
by the regulatory authority and must be described in writing and made 
available to the public to ensure that all interested parties can 
readily find all the options available in their jurisdiction for 
evaluating revegetation success.
    OSMRE approval is still required for any normal husbandry practices 
that Alaska may elect to include as part of its written revegetation 
success standards. The September 7, 1988 Federal Register notice (53 FR 
34641) states that OSMRE ``would consider, on a practice-by-practice 
basis, the administrative record supporting each practice proposed by a 
regulatory authority as normal husbandry practice[,]'' and that the 
regulatory authority ``would be expected to demonstrate (1) that the 
practice is the usual or expected state, form, amount or degree of 
management performed habitually or customarily to prevent exploitation, 
destruction or neglect of the resource and maintain a prescribed

[[Page 66305]]

level of use or productivity of similar unmined lands and (2) that the 
proposed practice is not an augmentative practice prohibited by section 
515(b) (20) of [SMCRA].''
    The Federal regulations at 30 CFR 816.116(c)(1) for surface mining 
operations and 817.116(c)(1) for underground mining operations require 
that the period of extended responsibility for successful revegetation 
must begin after the last year of augmented seeding, fertilizing, 
irrigation, or other work, excluding husbandry practices that are 
approved by the regulatory authority in accordance with 30 CFR 
816.116(c)(4) and 817.116(c)(4).
    The Federal regulations at 30 CFR 816.116(c)(4) and 817.116(c) (4) 
require that a regulatory authority may approve selective husbandry 
practices, excluding augmented seeding, fertilization, or irrigation, 
provided it obtains prior approval from OSMRE that the practices are 
normal husbandry practices, without extending the period of 
responsibility for revegetation success and bond liability, if such 
practices can be expected to continue as part of the postmining land 
use or if discontinuance of the practices after the liability period 
expires will not reduce the probability of permanent vegetation 
success. Approved practices must be normal husbandry practices within 
the region for unmined land having land uses similar to the approved 
postmining land use of the disturbed area, including such practices as 
disease, pest, and vermin control; and any pruning, reseeding, and 
transplanting specifically necessitated by such actions.
    State regulatory authorities may only approve the use of specific 
normal husbandry practices within any permit after receiving prior 
review and approval for the practice from OSMRE. Alaska has not 
proposed any normal husbandry practices for OSMRE review and approval. 
As such, normal husbandry practices may not currently be incorporated 
into any coal mining permit in Alaska. If Alaska intends to allow for 
any normal husbandry practices to be used during the period required 
for demonstration of revegetation success standards, Alaska must submit 
an amendment of its program to demonstrate that each practice is one 
that is customarily performed on similar un-mined lands and otherwise 
are consistent with and no less effective than 30 CFR 816.116(c)(4) and 
30 CFR 817.116(c)(4). Alaska would also have to list, at 11 AAC 
90.457(d), the acceptable practices.
    Alaska stated in its March 6, 2012, response to OSMRE's January 23, 
2012, concern letter, that, due to climatic and environmental 
differences between different mine sites and proposed mine sites in 
Alaska, rather than developing state-wide revegetation success 
standards and sampling techniques, Alaska has approved standards that 
determine vegetative success and the methods used to quantify the 
success of revegetation in each individual permit. Alaska stated that 
the standard is developed from local baseline conditions and is 
reviewed by both the Alaska Departments of Natural Resources (DNR), 
Fish and Game (ADFG) and their respective divisions, such as the DNR 
Division of Agriculture and the ADFG Division of Habitat.
    Although it is appropriate for Alaska to review and approve 
revegetation success standards and sampling techniques in each 
individual permit, the Federal program, 30 CFR 816.116(a)(1) and 30 CFR 
817.116(a)(1), requires the regulatory authority to first select all 
standards for success and statistically valid sampling techniques, 
which are available within the jurisdiction, describe them in writing, 
and make them publicly available. See August 30, 2006, Federal Register 
(71 FR 51684, 51690-91). The manner in which the regulatory authority 
selects success standards and sampling techniques that it will allow 
operators to use in evaluating revegetation success is up to the 
regulatory authority. It may do so in consultation with operators and/
or with assistance from academia. However, selected standards and 
sampling techniques must meet the requirements of 30 CFR 816.116(a) and 
(b) and 30 CFR 817(a) and (b), and they must be put in writing and made 
available to the public. It is from this set of identified success 
standards and sampling techniques that the operators must choose the 
specific standards and techniques to include in their individual permit 
applications.
    In accordance with the requirements at 30 CFR 816.116(a)(1) and 
817.116(a)(1), OSMRE finds that Alaska must clarify its program to 
acknowledge the selection of all revegetation success standards and 
statistically valid sampling techniques available to operators within 
the state will be put in writing and made available to the public. 
Therefore, OSMRE is adding a new, required program amendment at 30 CFR 
902.16(c)(6) to require that Alaska revise 11 AAC 90.457 to indicate 
that all available revegetation success standards and sampling 
techniques approved by the Alaska Commissioner will be put in writing 
and made publicly available. Additionally, this required amendment will 
note that if Alaska intends to allow the use of normal husbandry 
practices to be used during the period required for demonstration of 
revegetation success, it must submit an amendment of its program to 
demonstrate that each practice is one that is customarily performed on 
similar un-mined lands and list, at 11 AAC 90.457(d), the acceptable 
practices.

IV. Summary and Disposition of Comments

Public Comments

    We asked for public comments on the amendment (Document ID No. OSM-
2011-0017-0001), but received none.

Federal Agency Comments

    On November 3, 2011, under 30 CFR 732.17(h)(11)(i) and section 
503(b) of SMCRA (30 U.S.C. 1253), we requested comments on the 
amendment from various Federal agencies with an actual or potential 
interest in the Alaska program (Document ID No. OSM-2011-0017-0003). We 
received two responses indicating the respective agencies did not have 
any comments.
    On November 18, 2011, the U.S. Bureau of Reclamation responded with 
an email stating that it had no comments (Document ID No. OSM-2011-
0017-0006).
    On November 18, 2011, the U.S. Forest Service responded with an 
email stating that it had no comments (Document ID No. OSM-2011-0017-
0008).

Environmental Protection Agency (EPA) Concurrence and Comments

    Under 30 CFR 732.17(h)(11)(ii), we are required to get a written 
concurrence from EPA for those provisions of the program amendment that 
relate to air or water quality standards issued under the authority of 
the Clean Water Act (33 U.S.C. 1251 et seq.) or the Clean Air Act (42 
U.S.C. 7401 et seq.).
    None of the revisions that Alaska proposed to make in this 
amendment pertain to air or water quality standards. Therefore, we did 
not ask EPA to concur on the amendment. However, under 30 CFR 
732.17(h)(11)(i), OSMRE requested comments on the amendment from EPA 
(Document ID No. OSM-2011-0017-0015). EPA did not respond to our 
request.

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 November 3, 2011, we

[[Page 66306]]

requested comments on Alaska's amendment (Document ID No. OSM-2011-
0017-0004). The ACHP did not respond to our request. However, on 
November 9, 2011, the SHPO responded with a letter stating they had no 
objections to the amendment (Document ID No. OSM-2011-0017-0007).

V. OSMRE's Decision

    Based on the above findings, we are approving, with four exceptions 
and six additional required amendments, the Alaska amendment that was 
submitted on September 8, 2011, as revised on March 6, 2012.
    The exceptions, which OSMRE does not approve, are that: (1) 11 AAC 
90.321(e) excludes water supplies affected by surface coal mining 
activities conducted on or before October 24, 1992, from water supply 
replacement requirements, (2) 11 AAC 90.652(g)(1) proposes a reduced 
timeframe of 20 days to request administrative review of an agency 
decision regarding an incidental mining exemption, (3) 11 AAC 90.656 
does not require that information in an application for an exemption of 
coal incidental to the extraction of other minerals will be made 
available for public inspection and copying until at least three years 
after expiration of the period during which the subject mining area is 
active, and (4) 11 AAC 90.664(c) proposes a reduced timeframe of 20 
days to request administrative review of an agency decision to revoke 
an incidental mining exemption. All revisions proposed by Alaska on 
September 8, 2011, had been approved through the State's legislative 
process prior to their submission to OSMRE as a formal program 
amendment. To ensure Alaska corrects its regulations to accurately 
reflect the changes that OSMRE is not approving, we are adding three 
required amendments at 902.16. These requirements will ensure 
protection of water supplies affected by surface coal mining activities 
conducted on or before October 24, 1992, restore both 30-day timeframes 
for requesting administrative review of agency decisions, and ensure 
information in an application for an exemption of coal incidental to 
the extraction of other minerals will be made available for public 
inspection and copying until at least three years after expiration of 
the period during which the subject mining area is active.
    OSMRE's approval of revisions to 11 AAC 90.101(e) is conditioned 
upon the State submitting additional language corresponding to 30 CFR 
784.20(b)(7). The language, which was omitted from Alaska's current 
amendment, pertains to subsidence control plan requirements related to 
minimizing damage to non-commercial buildings and occupied residential 
dwellings in planned subsidence scenarios. We are placing a new 
required amendment at 30 CFR 902.16 to reflect this required addition.
    OSMRE's approval of revisions to 11 AAC 90.321(e) is conditioned 
upon the State submitting statutory revisions to AS 27.21.220 that will 
provide statutory authority to implement the new regulatory language, 
consistent with the Energy Policy Act of 1992. We are placing a new 
required amendment at 30 CFR 902.16 to reflect this required statutory 
addition.
    OSMRE is also removing and reserving the current requirement at 30 
CFR 902.16(a)(15). The existing required amendment is no longer 
necessary due to changes in the Federal program at 30 CFR 
816.116(a)(1). Alaska must have revegetation success standards, which 
are consistent with 30 CFR 816.116(a) and (b); however, the success 
standards may be in a guideline, which does not need to be approved as 
a state program amendment. Such standards must be in writing and 
available to the public. We are, therefore, adding a new required 
amendment at 30 CFR 902.16(c)(6) to state that Alaska must indicate 
revegetation success criteria are available to the public in written 
form. Additionally, Alaska has indicated to OSMRE that it is working to 
develop a list of normal husbandry practices, which could be employed 
without restarting the revegetation responsibility period prior to bond 
release. Because 30 CFR 816.116(c)(4) requires normal husbandry 
practices to be processed as a state program amendment, we are adding a 
required amendment at 30 CFR 902.16(c)(6) that, if Alaska will allow 
for any normal husbandry practices to be used during the period 
required for demonstration of revegetation success, the State must 
submit an amendment of its program to demonstrate that each practice is 
one that is customarily performed on similar un-mined lands and list, 
at 11 AAC 90.457(d), the acceptable practices.
    To implement this decision, we are amending the Federal 
regulations, at 30 CFR part 902, that codify decisions concerning the 
Alaska program. In accordance with the Administrative Procedure Act, 
this rule will take effect 30 days after the date of publication. 
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. SMCRA requires consistency of State and 
Federal standards.

Effect of OSMRE's Decision

    Section 503 of SMCRA provides that a State may not exercise 
jurisdiction under SMCRA unless the State program is approved by the 
Secretary. Similarly, 30 CFR 732.17(a) requires that any change of an 
approved State program be submitted to OSMRE for review as a program 
amendment. The Federal regulations at 30 CFR 732.17(g) prohibit any 
changes to approved State programs that are not approved by OSMRE. In 
the oversight of the Alaska program, we will recognize only the 
statutes, regulations, and other materials we have approved, together 
with any consistent implementing policies, directives, and other 
materials. We will require Alaska to enforce only approved provisions.

VI. Statutory and Executive Order Reviews

Executive Order 12630--Governmental Actions and Interference With 
Constitutionally Protected Property Rights

    This rule would not effect a taking of private property or 
otherwise have taking implications that would result in public property 
being taken for government use without just compensation under the law. 
Therefore, a takings implication assessment is not required. This 
determination is based on an analysis of the corresponding Federal 
regulations.

Executive Order 12866--Regulatory Planning and Review and 13563--
Improving Regulation and Regulatory Review

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget (OMB) will 
review all significant rules. Pursuant to OMB guidance, dated October 
12, 1993, the approval of state program amendments is exempted from OMB 
review under Executive Order 12866. Executive Order 13563, which 
reaffirms and supplements Executive Order 12866, retains this 
exemption.

Executive Order 13771--Reducing Regulation and Controlling Regulatory 
Costs

    State program amendments are not regulatory actions under Executive 
Order 13771 because they are exempt from review under Executive Order 
12866.

Executive Order 12988--Civil Justice Reform

    The Department of the Interior has reviewed this rule as required 
by section 3(a) of Executive Order 12988. The Department has determined 
that this

[[Page 66307]]

Federal Register notice meets the criteria of Section 3 of Executive 
Order 12988, which is intended to ensure that the agency reviews its 
legislation and proposed regulations to eliminate drafting errors and 
ambiguity; that the agency writes its legislation and regulations to 
minimize litigation, and that the agency's legislation and regulations 
provide a clear legal standard for affected conduct rather than a 
general standard, and promote simplification and burden reduction. 
Because Section 3 focuses on the quality of Federal legislation and 
regulations, the Department limited its review under this Executive 
Order to the quality of this Federal Register document and to changes 
to the Federal regulations. The review under this Executive Order did 
not extend to the language of the State regulatory program or to the 
program amendment that the State of Alaska drafted.

Executive Order 13132--Federalism

    This rule is not a ``[p]olicy that [has] Federalism implications'' 
as defined by Section 1(a) of Executive Order 13132 because it does not 
have ``substantial direct effects on the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
Instead, this rule approves an amendment to the Alaska program 
submitted and drafted by that State. OSMRE reviewed the submission with 
fundamental federalism principles in mind as set forth in Sections 2 
and 3 of the Executive Order and with the principles of cooperative 
federalism, as set forth in SMCRA. See, e.g., 30 U.S.C. 1201(f). 
Specifically, pursuant to Section 503(a)(1) and (7) (30 U.S.C. 
1253(a)(1) and (7)), OSMRE reviewed the program amendment to ensure 
that it is ``in accordance with'' the requirements of SMCRA and 
``consistent with'' the regulations issued by the Secretary pursuant to 
SMCRA.

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

    The Department of the Interior strives to strengthen its 
government-to-government relationship with Tribes through a commitment 
to consultation with Tribes and recognition of their right to self-
governance and tribal sovereignty. We have evaluated this rule under 
the Department's consultation policy and under the criteria in 
Executive Order 13175 and have determined that it has no substantial 
direct effects on federally recognized Tribes or on the distribution of 
power and responsibilities between the Federal government and Tribes. 
Therefore, consultation under the Department's tribal consultation 
policy is not required. The basis for this determination is that our 
decision is on the Alaska program, which does not include Tribal lands 
or regulation of activities on Tribal lands. Tribal lands are regulated 
independently under the applicable, approved Federal program.

Executive Order 13211--Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to prepare a Statement of 
Energy Effects for a rulemaking 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 
significant energy action under the definition in Executive Order 
13211, a Statement of Energy Effects is not required.

Executive Order 13045--Protection of Children From Environmental Health 
Risks and Safety Risks

    This rule is not subject to Executive Order 13045 because this is 
not an economically significant regulatory action as defined by 
Executive Order 12866; and this action does not address environmental 
health or safety risks disproportionately affecting children.

National Environmental Policy Act

    Consistent with sections 501(a) and 702(d) of SMCRA (30 U.S.C. 
1251(a) and 1292(d), respectively) and the U.S. Department of the 
Interior Departmental Manual, part 516, section 13.5(A), state program 
amendments are not major Federal actions within the meaning of section 
102(2)(C) of the National Environmental Policy Act (42 U.S.C. 
4332(2)(C).

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act (NTTAA) (15 U.S.C. 3701 et seq.) directs OSMRE to use voluntary 
consensus standards in its regulatory activities unless to do so would 
be inconsistent with applicable law or otherwise impractical. (OMB 
Circular A-119 at p. 14). This action is not subject to the 
requirements of section 12(d) of the NTTAA because application of those 
requirements would be inconsistent with SMCRA.

Paperwork Reduction Act

    This rule does not include requests and requirements of an 
individual, partnership, or corporation to obtain information and 
report it to a Federal agency. As this rule does not contain 
information collection requirements, a submission to the Office of 
Management and Budget under the Paperwork Reduction Act (44 U.S.C. 3501 
et seq.) is not required.

Regulatory Flexibility Act

    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 corresponding 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 corresponding 
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 on an analysis of the 
corresponding Federal regulations, which were determined not to 
constitute a major rule.

Unfunded Mandates

    This rule will not impose an unfunded mandate on State, local, or 
Tribal governments, or the private sector of more than $100 million per 
year. The rule does not have a significant or unique effect on State, 
local, or Tribal governments or the private sector. This determination 
is based on an analysis of the corresponding Federal regulations, which 
were determined not to impose an unfunded mandate. Therefore, a 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

[[Page 66308]]

List of Subjects in 30 CFR Part 902

    Intergovernmental relations, Surface mining, Underground mining.

    Dated: October 23, 2019.
David Berry
Regional Director, Western Region.

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

PART 902--ALASKA

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

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

0
2. Add Sec.  902.12 to read as follows:


Sec.  902.12   Regulatory program and proposed program amendments not 
approved.

    (a) We do not approve the following provisions of the proposed 
program amendment Alaska submitted on September 8, 2011, as revised on 
March 6, 2012:
    (1) Proposed addition of the phrase ``* * * conducted on or before 
October 24, 1992 * * *'' in 11 AAC 90.321(e)(1).
    (2) Proposed reduction of timeframe from 30 to 20 days to request 
administrative review of an agency decision regarding an incidental 
mining exemption under 11 AAC 90.652(g)(1),
    (3) Proposed deletion of the phrase ``* * * until at least three 
years after expiration of the period during which the subject mining 
area is active * * *'' under 11 AAC 90.656.
    (4) Proposed reduction of timeframe from 30 to 20 days to request 
administrative review of an agency decision to revoke an incidental 
mining exemption under 11 AAC 90.664(c).

0
3. Amend Sec.  902.15 by adding an entry to the table in chronological 
order by ``Date of Final Publication'' to read as follows:


Sec.  902.15   Approval of Alaska regulatory program amendments.

* * * * *

----------------------------------------------------------------------------------------------------------------
   Original amendment submission date      Date of final  publication             Citation/description
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
September 8, 2011, as revised on March    December 4, 2019...........  11 Alaska Annotated Code (AAC) 90.043(b);
 6, 2012.                                                               11 AAC 90.045(a), (b), (c), and (d); 11
                                                                        AAC 90.057(a), (b) and (c); 11 AAC
                                                                        90.085(a), (a)(5) and (e); 11 AAC
                                                                        90.089(a)(1); 11 AAC 90.101(a) through
                                                                        (f); 11 AAC 90.173(b)(2); 11 AAC
                                                                        90.179(a)(3), (a)(4) and (a)(5); 11 AAC
                                                                        90.185(a) and (a)(4); 11 AAC 90.201(d);
                                                                        11 AAC 90.211(a); 11 AAC 90.321(d), (e),
                                                                        (f), (f)(1) and (f)(2); 11 AAC
                                                                        90.323(a), (b) and (c); 11 AAC 90.325(b)
                                                                        and (c); 11 AAC 90.327(b)(2); 11 AAC
                                                                        90.331(d)(1), (e), and (h)(1) and (2);
                                                                        11 AAC 90.336(a), (b)(1) and (2), (f),
                                                                        and (g); 11 AAC 90.337(a); 11 AAC
                                                                        90.345(e); 11 AAC 90.349; 11 AAC
                                                                        90.375(f) and (g); 11 AAC 90.391(n) and
                                                                        (t); 11 AAC 90.395(a); 11 AAC 90.397(a);
                                                                        11 AAC 90.401(a)(1), (b), (d), (e), and
                                                                        (f); 11 AAC 90.407(c)(1) and (2) and
                                                                        (f); 11 AAC 90.423(h); 11 AAC
                                                                        90.443(a)(2), (k)(2), (l)(2), and
                                                                        (m)(2); 11 AAC 90.444(a) and (b); 11 AAC
                                                                        90.447(c)(1); 11 AAC 90.457(c)(3); 11
                                                                        AAC 90.461; 11 AAC 90.461(b) and (b)(1)
                                                                        through (3) , (g) and (g)(1) through
                                                                        (5), (h) and (h)(1) through (3), (i) and
                                                                        (i)(1) through (3), (j), (k), and (l)(1)
                                                                        through (3); 11 AAC 90.491(f)(1),
                                                                        (f)(2)(E), (f)(2)(E),(f)(3), (f)(4), and
                                                                        (f)(2)(E) and (E)(iii); 11 AAC
                                                                        90.601(h), (i) and (j); 11 AAC
                                                                        90.629(a); 11 AAC 90.631(a); 11 AAC
                                                                        90.635(a) and (b); 11 AAC 90.639(a),
                                                                        (b), and (c); 11 AAC 90.641(a), (b),
                                                                        (c), and (d); 11 AAC 90.652 through 11
                                                                        AAC 90.669; 11 AAC 90.701(a), (b), and
                                                                        (c); 11 AAC 90.901(a); and 11 AAC
                                                                        90.911(125), (126), (128), (129), (130),
                                                                        (133), (134) and (135).
----------------------------------------------------------------------------------------------------------------


0
4. Amend Sec.  902.16 by removing and reserving paragraphs (a)(14) and 
(15) and by adding paragraph (c).
    The additions read as follows:


Sec.  902.16   Required program amendments.

* * * * *
    (c) By February 3, 2020, Alaska must amend its program as follows:
    (1) At 11 AAC 90.101(e), in accordance with the requirements at 30 
CFR 784.20(b)(7), Alaska must submit a program amendment (or 
description of the amendment with a timetable for submission) to adopt 
subsidence control plan requirements at 11 AAC 90.101(e) for planned 
subsidence scenarios. Such plans must describe the methods to be 
employed to minimize damage to non-commercial buildings and occupied 
residential dwellings and related structures or written consent from 
the owner of the structure or facility that minimization measures not 
be taken, or unless the damage would constitute a threat to health or 
safety, a demonstration that the costs of minimizing damage exceed 
anticipated costs of repair.
    (2) At 11 AAC 90.321(e)(1), in accordance with 30 CFR 816.41(h), 
Alaska must submit a program amendment (or description of the amendment 
with a timetable for submission) to revise 11 AAC 90.321(e)(1) to 
ensure protection of water supplies affected by surface coal mining 
activities conducted on or before October 24, 1992.
    (3) At 11 AAC 90.652(g)(1) and 11 AAC 90.664(c), in accordance with 
the requirements at 30 CFR 702.11(f)(1) and 702.17(c)(2), Alaska must 
submit a program amendment (or description of the amendment with a 
timetable for submission) to restore the 30-day time frames under 11 
AAC 90.652(g)(1) and 11 AAC 90.664(c) for an adversely affected person 
to request administrative review of the agency's decisions regarding 
incidental mining exemptions.
    (4) At 11 AAC 90.656, in accordance with the requirements at 30 CFR 
702.13(a), Alaska must submit a program amendment (or description of 
the amendment with a timetable for submission) to revise 11 AAC 90.656, 
concerning public availability of information in an application for an 
exemption of coal incidental to the extraction of other minerals. The 
amendment or its description must include the requirement that the 
information, unless approved as confidential, will be made available 
for public inspection and copying until at least three years after 
expiration of the period during which the subject mining area is 
active.
    (5) At AS 27.21.220, in accordance with the October 24, 1992, 
Energy Policy Act, Alaska must submit a statutory revision requiring 
prompt repair or compensation for material

[[Page 66309]]

damage resulting from subsidence, and prompt replacement of water 
supplies affected by underground mining operations.
    (6) At 11 AAC 90.457(d), in accordance with the requirements at 30 
CFR 816.116(a)(1) and 817.116(a)(1), Alaska must submit a program 
amendment (or description of the amendment with a timetable for 
submission) to clarify its program by revising 11 AAC 90.457 to 
indicate that all selected revegetation success standards and sampling 
techniques which may be incorporated into individual permits will be 
put in writing and made available to the public. If Alaska will allow 
for any normal husbandry practices to be used during the period 
required for demonstration of revegetation success, in accordance with 
30 CFR 816.116(c)(4), Alaska must submit an amendment of its program to 
demonstrate that each practice is one that is customarily performed on 
similar un-mined lands and list, at 11 AAC 90.457(d), the acceptable 
practices.

[FR Doc. 2019-26128 Filed 12-3-19; 8:45 am]
 BILLING CODE 4310-05-P