[Federal Register Volume 61, Number 233 (Tuesday, December 3, 1996)]
[Proposed Rules]
[Pages 64220-64227]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30134]
[[Page 64219]]
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Part III
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Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
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30 CFR Part 870
Coal Moisture; Proposed Rule
Federal Register / Vol. 61, No. 233 / Tuesday, December 3, 1996 /
Proposed Rules
[[Page 64220]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 870
RIN 1029-AB78
Coal Moisture
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
proposes to amend its regulations governing how the excess moisture
allowance is determined for reclamation fee purposes. This action will
define terms and phrases related to the collection and testing of coal
samples used to determine the inherent and total moisture of coal;
identify acceptable American Society for Testing and Materials (ASTM)
standard sampling and testing methods for high and low-rank coals;
prescribe frequencies for collecting and testing coal samples; and
provide the coal industry with formulas for use in calculating an
excess moisture tonnage allowance for the purpose of reducing the
weight of coal subject to the abandoned mine land reclamation fee.
The proposed regulatory revision is necessary to clarify and
simplify technical guidance for all users, and to provide the coal
industry with standard criteria for calculating an excess moisture
allowance on all coals subject to reclamation fee payment. The intended
effect of this proposal is to enhance compliance with the provisions of
section 402 of the Surface Mining Control and Reclamation Act of 1977
(SMCRA or the ACT). Operator use of the prescribed criteria will ensure
that all tonnage reductions for excess moisture are taken on the same
basis.
DATES: Written comments: OSM will accept written comments on the
proposed rule until 5 p.m. Eastern time on February 3, 1997.
Public Hearings: OSM will accept requests for public hearings until
5 p.m. Eastern time on January 2, 1997.
ADDRESSES: Written comments: Hand-deliver or mail to the Office of
Surface Mining Reclamation and Enforcement, Administrative Record, Room
120, 1951 Constitution Avenue, NW., Washington, D.C. 20240.
Comments may also be sent through the Internet to OSM's
Administrative Record, Internet address: [email protected]. Copies of
any messages received electronically will be filed with the
Administrative Record.
Request for public hearings: Submit requests to Dr. Kewal Kohli,
Office of Surface Mining Reclamation and Enforcement, U.S. Department
of the Interior, 9 Parkway Center, Pittsburgh, PA 15220, telephone
(412) 937-2175.
FOR FURTHER INFORMATION CONTACT: Dr. Kewal Kohli, telephone (412) 937-
2175.
SUPPLEMENTARY INFORMATION:
I. Public Comment Procedures
II. Background
III. Discussion of the Proposed Rules
IV. Procedural Matters
I. Public Comment Procedures
Written Comments
Written comments submitted on the proposed rule should be specific,
should be confined to issues pertinent to the proposed rule, and should
explain the reason for any recommended change. Where practical,
commenters should submit three copies of their comments. Comments
received after the close of the comment period (see DATES) or delivered
to addresses other than those listed above (see ADDRESSES), may not be
considered or included in the Administrative Record for the final rule.
Public Hearings
OSM will hold public hearings on the proposed rule by request only.
The times, dates, and addresses for all hearings will be announced in
the Federal Register at least 7 days prior to any hearings which are to
be held. Upon request, OSM will hold a public hearing on the proposed
rule in Washington, D.C. and in the State of Colorado. Individuals
wishing to attend, but not testify at any hearing should contact the
person identified under FOR FURTHER INFORMATION CONTACT beforehand to
verify that the hearing will be held, should also contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Any person interested in participating at a hearing at a particular
location, or any disabled individual who requires special accommodation
to attend a public hearing, should inform Dr. Kohli (see FOR FURTHER
INFORMATION CONTACT) either orally or in writing of the desired hearing
location by 5 p.m. Eastern time on January 2, 1997. If no one has
contacted Dr. Kohli to express an interest in participating in a
hearing at a given location by that date the hearing will not be held.
If only one person expresses an interest, a public meeting rather than
a hearing may be held and the results will be included in the
Administrative Record.
If a hearing is held, it will continue until all persons wishing to
testify have been heard. To assist the transcriber and ensure an
accurate record, OSM requests that persons who testify at a hearing
provide the transcriber a written copy of their testimony.
To assist OSM in preparing appropriate questions, OSM also requests
that persons who plan to testify submit to OSM at the address
previously specified for the submission of written comments (see
ADDRESSES) an advance copy of their testimony.
II. Background
Section 402(a) of the SMCRA requires all operators of coal mining
operations subject to its provisions to pay a reclamation fee on each
ton of coal produced. In December 1977 OSM first promulgated
regulations to implement this provisions (42 FR 62714, December 13,
1977). Briefly, the regulations require that the Abandoned Mine Land
(AML) fees must be paid on the actual gross weight of the coal, at the
time of the first transaction (sale, transfer of ownership, or use)
involving the coal. This regulation has been in effect basically
unchanged since 1977. In 1982, OSM revised the regulatory language to
clarify the point in time of fee determination and to stress that the
actual gross weight of the coal must be used for fee calculation. At
that time OSM also specifically noted that no fees were owed on
impurities physically removed before the sale, transfer of possession
or use. In 1988, OSM again revised this regulation to allow an operator
who mined coal after July 1, 1988, to elect to take an allowance for
moisture contained in the coal at the time of sale that is determined
to be in excess of the inherent, or natural bed moisture, in the coal.
Initially, OSM adopted the excess moisture allowance to address an
inconsistency in the methods of determining coal weight under various
Federal taxation requirements. At the time OSM proposed to amend its
regulation to allow a deduction for excess moisture, the ASTM Committee
on Coal and Coke, whose membership included representatives of the
Internal Revenue Service (IRS) and OSM, was conducting a study to
develop and/or confirm precision statements for the ASTM standard test
method used to estimate the bed moisture in high-rank coals, ASTM
D1412-85, as it applied to coals of all ranks. In a letter of November
18, 1987, the IRS submitted the following comment in response to the
OSM proposal, ``the results of the ASTM or a similar study should be
received before one test is prescribed for use by all taxpayers.''
[[Page 64221]]
As an interim measure, until adequate and fully reliable testing
procedures became available for coals of all ranks, OSM's 1988 adopted
regulation incorporated a suggestion made by the IRS. OSM decided to
rely on a facts and circumstances test to allow an operator to elect to
take an allowance for excess moisture provided the operator could
demonstrate, through competent evidence, that there was a reasonable
basis for determining the existence and amount of excess moisture.
OSM's standard of reasonableness required an operator to provide
sufficient documentation to sustain the weight reduction. Although no
specific time periods were prescribed for testing, an operator was also
required to prove that time frames chosen to measure the existence and
amount of excess moisture were reasonable.
The preamble to the 1988 rule discussed OSM's willingness to accept
the standard ASTM test methods to determine inherent moisture, ASTM
D1412-85, and total moisture, ASTM D3302-82, pending the availability
of more suitable alternatives. OSM recognized that these tests were not
always reliable for this purpose and acknowledged its willingness to
accept other testing methods for some sub-bituminous and lignite coals.
OSM also stated its intent to develop technical guidance to assist
operators and to assure uniform application of the excess moisture
allowance throughout the industry.
As a result of the 1988 regulatory revision, under both OSM's
regulatory requirements, and the IRS Ruling (86-96), an operator may
claim a reduction in coal subject to reclamation fees, and a reduction
in coal subject to the black lung tax, by estimating the excess
moisture contained in the coal. OSM has notified the IRS of its intent
to propose a revision to its current regulation, and will continue to
consult with the IRS throughout this rulemaking process.
The final rule which OSM adopted in 1988, at 30 CFR Sec. 870.12,
allows an operator to elect to reduce the weight of coal tonnage
subject to reclamation fee payment by a percentage of excess moisture
estimated to be contained in the coal at the time of fee assessment.
OSM defines the term ``excess moisture'' as the difference between
``total moisture'' and ``inherent moisture.'' The ASTM definitions are
used for the terms ``total moisture'' and ``inherent moisture,'' at 30
CFR Sec. 870.5.
Standard laboratory test methods must be used to determine the
estimated amount of excess moisture contained in the coal that is used
as the basis for an excess moisture allowance. The excess moisture
contained in mined coal must be found by collecting a coal sample and
testing the sample to determine a percentage of inherent moisture
estimated to be in the undisturbed coal as it lies in the seam. The
operator must also collect and test coal at the shipping point to find
the estimated total moisture percentage in as-shipped coal. The
percentage of excess moisture that may be deducted from the weight of
the coal for fee payment purposes is then calculated by finding the
difference between the total moisture percentage and the inherent
moisture percentage.
OSM has issued five AML Payer Letters to provide technical guidance
to the coal industry and assist with the application of this
regulation. OSM has also published this guidance in the OSM Payer
Handbooks. The first AML Payer Letter, issued on June 16, 1988,
provided for the operator to: Make an inventory of any coal mined prior
to July 1, 1988, that was stockpiled, or otherwise stored on the mine
site; use the ASTM D1412 test as the standard test method to determine
the estimated percentage of inherent moisture; establish an accurate
estimate of the coal seam's baseline inherent moisture by taking one
inherent moisture test in each month of the first 24 months a coal seam
is in continuous operation; and, take one annual inherent moisture test
after completion of the baseline study period. The baseline can be
based, in part, on information from existing sources such as the United
States Geological Survey or the Department of Energy, provided the
operator uses its own sampling and testing data to validate or update
data obtained from these sources. An operator can use either ASTM
Standard Test Method for Total Moisture in Coal, D3302, or ASTM
Standard Practice for Proximate Analysis of Coal and Coke, test method
D3172, to determine an estimated total moisture percentage. Total
moisture is tested at the time of the initial bona fide sale, transfer
of ownership, or use of the coal. Operators are advised to maintain a
full description and rationale for any deviations from standard test
methods, according to 30 CFR Sec. 870.18(d).
The second AML Payer Letter, issued on September 28, 1988, provided
ten different examples illustrating how to calculate an excess moisture
allowance under various circumstances for coal that was either raw,
clean, or blended. That Letter also provides instructions for
completing the Coal Production and Reclamation Fee Report (Coal
Reclamation Fee Report), Form OSM-1, to report the excess moisture
allowance.
A third AML Payer Letter dated July 17, 1989, acknowledged that OSM
would accept: Total moisture tests performed by the operator's
customer, provided the operator maintains documentation to support the
test results; and, moisture percentages accepted by another taxing
authority only when the percentages were supported by actual test data.
This Letter provided notice that OSM would not accept the use of a core
sample to establish inherent moisture. The use of a weighted average in
calculations, and the type of test documentation an operator would need
to maintain are illustrated.
On September 14, 1990, OSM issued its fourth AML Payer Letter. This
Letter consolidated and replaced the guidance in the three previous AML
Payer letters on testing, completion of the Form OSM-1, and computing
the excess moisture allowance under various scenarios. OSM also re-
emphasized that total moisture should be determined for each day's
shipments.
In an AML Payer Letter issued on July 15, 1993, OSM was able to
expand its testing frequency guidelines for inherent moisture to
include quarterly testing as an alternative to monthly testing. This
came about as a result of research conducted by the OSM engineering
staff on actual excess moisture allowances taken for more than 4 years.
The AML Payer Letter advised operators that OSM would accept either
quarterly inherent moisture estimates based on tests taken once in a
quarter, or monthly tests. The ASTM had adopted the use of a corehole
sample to test for inherent moisture. The AML Payer Letter informed the
industry that OSM also accepts the use of corehole samples to test coal
for inherent moisture. OSM advised the industry that it cannot accept
residual moisture as inherent moisture because residual moisture and
inherent moisture are not equal. This AML Payer Letter also informed
the industry that OSM will provide notice when it proposes to adopt an
alternative procedure that will more accurately establish inherent
moisture in low-rank coal.
OSM's audits of excess moisture reduced tonnages find that
operators frequently fail to conform to inherent moisture test
procedures described in AML Payer Letters, and do not provide adequate
support for procedures they do use. Some operators mining large volumes
of low-rank coal base tonnage reductions on test data that is known to
be unreliable.
In October 1992, OSM conducted its own independent sampling and
testing program in Wyoming's Powder River
[[Page 64222]]
Basin to assess the reliability of existing ASTM methods and procedures
for determining inherent moisture in low-rank coal. In March 1993, OSM
met with operators in Gillette, Wyoming, to provide them with the
results of its study and inform them that OSM was considering
regulatory requirements for inherent moisture testing. This rulemaking
proposes to adopt a new requirement for establishing inherent moisture
in low rank coal based, in part, on the results of OSM's Powder River
Basin sampling and testing program.
III. Discussion of the Proposed Rules
At this time OSM is proposing to revise its regulations governing
the excess moisture allowance to codify regulatory technical
requirements to be met by an operator who elects to take an excess
moisture allowance in either high- or low-rank coals. The proposal
incorporates by reference ASTM standards used for collecting and
testing a coal sample as specified in Sec. 870.19(a), Table 1 and Table
2, and Sec. 870.20(a), Tables 3, 4, and 5, as published in the 1994
Annual Book of ASTM Standards, Volume 05.05. A copy of the ASTM
standards is available for inspection at the OSM Headquarters Office,
Office of Surface Mining Reclamation and Enforcement, Administrative
Record, Room 120, 1951 Constitution Avenue, NW., Washington, DC, or at
the Office of the Federal Register, 800 North Capitol St., Washington,
DC. The proposed rule establishes a frequency for using ASTM standard
test methods on coals of all ranks, and adopts the method approved by
the ASTM to establish inherent moisture in low-rank coal, the ASTM
D1412-93, Appendix XI. Use of this procedure for low-rank coal would
ensure excess moisture allowances taken on low-rank coals are on a
comparable basis to those taken on high-rank coal, and all excess
moisture allowances are fair and equitable. OSM's proposal also
includes an option that would provide operators with a method to
calculate an allowance for the inherent moisture present in as-shipped
coal. This would be of particular benefit when an operator sells large
volumes of coal, and/or sells coal with a substantial variance between
the total and inherent moisture.
Definitions--Section 870.5
OSM would modify the existing definition for excess moisture by
including, by reference, a formula for use in calculating excess
moisture in high- and low-rank coals. The formula to be used for high-
rank coals is found in a new Sec. 870.19 and the formula for low-rank
coals is in a new Sec. 870.20. The existing definition of inherent
moisture would be expanded to incorporate by reference the specific
ASTM sample collection methods and test procedures shown in
Sec. 870.19, Table 2, Calculating INHERENT moisture percentage in HIGH-
rank coal, and Sec. 870.20, Table 4, and Table 5, Calculating INHERENT
moisture percentage in LOW-rank coal. The existing definition of total
moisture would be expanded to incorporate by reference ASTM criteria in
Sec. 870.19, Table 1, for Calculating the TOTAL moisture percentage in
HIGH-rank coal, and Sec. 870.20, Table 3, for Calculating the TOTAL
moisture percentage in LOW-rank coal. The expansion of the existing
definitions to incorporate by reference specific ASTM sample collection
methods and test procedures would provide precise technical standards
to facilitate operator compliance with OSM's requirements, and to
ensure that the same basis is used to calculate all excess moisture
allowances.
General Rules for Calculating Excess Moisture--Section 870.18
OSM proposes to modify 30 CFR Sec. 870.18, Excess moisture content
allowance at Sec. 870.18 (a), (b), and (c). Section 870.18(a) requires
an operator to demonstrate through competent evidence that the basis
for determining the existence and amount of excess moisture is
reasonable. OSM requires documentation to be updated as needed to prove
an excess moisture allowance taken by an operator continues to be
valid. Section 870.18(b) requires standard laboratory analyses for
testing inherent and total moisture. Section 870.18(c) requires an
operator who blends coal mined from multiple seams prior to the initial
sale, transfer or use of the coal to test for variations in the
inherent moisture amounts from different seams.
This proposal would replace the reasonableness standard found at
Sec. 870.18(a), the generic laboratory test requirement at
Sec. 870.18(b), and the requirement for a separate test of coal from
each seam mined prior to blending the coal for sale, transfer of
ownership or use. OSM proposes a revision to the existing regulation
that would recognize the distinct differences in high- and low-rank
coals in new Secs. 870.19 and 870.20. Section 870.19 proposes
acceptable standards for collecting and testing a sample of high-rank
coal to establish the percentage of inherent and total moisture
contained in the coal, and calculate the excess moisture allowance.
Section 870.20 proposes like standards for calculating the excess
moisture allowance for low-rank coal.
Revised section 870.18(c) would add definitions to further explain
the meaning of terms as they are used in new Secs. 870.19 and 870.20.
``As-shipped coal'' and ``tipple coal'' is defined as the coal found at
the mine or loading facility. A precise meaning for a ``channel
sample'' and ``core sample'' is given and the definitions incorporate
by reference the specific ASTM procedure used to take the particular
kind of sample. The ``correction factor'' is added as the method used
to establish the difference between the equilibrium moisture and
inherent moisture in low-rank coal under Sec. 870.20. ``Equilibrium
moisture'' is defined as the method used to estimate the inherent
moisture in all coals, and ASTM D1412 and ASTM D1412, Appendix XI, are
incorporated by reference. Types of ``high-rank coals'' and ``low-rank
coals'' are defined to explain how these terms are used throughout
Sec. 870.5 and Secs. 870.18-20.
How To Calculate Excess Moisture in HIGH-Rank Coal--Section 870.19
A new Sec. 870.19 would provide standard criteria for an operator
to use to establish excess moisture in high-rank coal. Table 1 includes
the ASTM standard sample collection method, ASTM D2234-89, Standard
Test Methods for Collection of a Gross Sample; and test procedure,
ASTM-D3302-91, Standard Test Method for Total Moisture in Coal, that
OSM would accept for use as the basis for calculating the percentage of
total moisture in as-shipped high-rank coal each day the coal is either
shipped or used.
The daily total moisture test results would be converted to
quarterly figures to be reported to OSM on the OSM-1 Coal Reclamation
Fee Report. To calculate the quarterly total moisture percentage an
operator would: (1) multiply the daily total moisture percentage by the
tonnage shipped or used that day, to find the daily total moisture
tonnage; and, (2) add the daily total moisture tonnage for each day in
the quarter; and, (3) add the daily tonnage shipped or used in the
quarter, to find the total tonnage shipped or used during the quarter.
Then, divide the sum of the daily total moisture tonnage, step (2), by
the sum of the daily tonnage shipped or used in the quarter, step (3).
This will result in the total moisture percentage in high-rank coal for
the quarter which would be reported on the OSM-1, Coal Reclamation Fee
Report.
Table 2 provides three methods for sampling high-rank coal, and
testing the sample to determine the inherent moisture percentage that
would be acceptable to OSM. To collect a coal
[[Page 64223]]
sample directly from a coal seam an operator could use either a core or
a channel sample method. If a core sample is collected the operator
would be required to collect the sample using procedures in ASTM D5192-
91, Standard Practice for Collection of Coal Samples from Core and to
use laboratory procedures in ASTM D1412-93, Standard Test Method for
Equilibrium Moisture of Coal at 96 to 97 Percent Relative Humidity and
30 deg.C to estimate the inherent moisture in the sample. If a channel
sample method is used the operator would be required to collect the
sample using procedures in ASTM D4596-93, Standard Practice for
Collection of Channel Samples of Coal in a Mine and to use laboratory
procedures in either ASTM D1412-93, Standard Test Method for
Equilibrium Moisture of Coal at 96 to 97 Percent Relative Humidity and
30 deg.C, or ASTM D3302-91, Standard Test Method for Total Moisture in
Coal to estimate the inherent moisture in the sample. To collect a
sample of blended coal, as-shipped coal, tipple coal, commingled coal,
or coal from slurry ponds an operator would use Procedures in ASTM
D2234-89, Standard Test Methods for Collection of a Gross Sample and
laboratory procedures in ASTM D1412-93, Standard Test Method for
Equilibrium Moisture of Coal at 96 to 97 Percent Relative Humidity and
30 deg.C would be required to estimate the inherent moisture in the
sample.
An operator would be required to select one of two options for
timing inherent moisture tests, either quarterly or monthly. If a
quarterly inherent moisture test is chosen, the operator would have to
report the results of one inherent moisture test taken at any time
during the quarter on the OSM-1 form for the quarter in which the test
was taken. If monthly inherent moisture testing is preferred, the
operator would be required to create a 24-month inherent moisture
baseline during the first 24-months a coal seam is in continuous
operation. To create the 24-month inherent moisture baseline an
operator would have to collect and test one sample in each month of the
calendar quarter. The quarterly inherent moisture percentage reported
to OSM for the first 8 quarters a seam is in continuous operation would
then be based on a weighted average of the 3-monthly inherent moisture
test results. To determine the quarterly weighted average inherent
moisture percentage an operator would have to: (1) multiply the
inherent moisture percentage for one month by the number of tons
produced or shipped in that month to find the monthly inherent moisture
tonnage; (2) add the inherent moisture tonnage determined in (1) for
each of the 3 months to find the quarterly inherent moisture tonnage;
(3) divide the inherent moisture tonnage found in (2) by the total
number of tons produced or shipped during the three months of the
quarter; and, (4) report the weighted average percentage for the
quarter to OSM on the OSM-1 form. After the first 24-months an operator
would have to use an updated rolling average percentage to report
inherent moisture percentages for all subsequent quarters in which a
coal seam is continuously mined. The rolling average percentage would
be calculated by: adding the results of one inherent moisture test of
one coal sample collected during every 12-month period to the inherent
moisture percentages for the preceding 23 tests, and dividing the sum
of these tests by 24.
Section 870.19(a) provides instruction on how an operator would
calculate the excess moisture in high-rank coal by using one of two
methods. One method involves the simple subtraction of the inherent
moisture percentage from the total moisture percentage as it is found
in the existing rule. OSM expects that most operators of small to
medium size mines would likely prefer to continue to use this method. A
new alternative formula is added as a second method in Sec. 870.19(a)
that would allow an adjustment in the excess moisture calculation for a
percentage of inherent moisture contained in the as-shipped coal. Some
operators who either mine a large volume of coal, or mine coal with a
significant variance in total and inherent moisture, have requested
OSM's approval to use this formula for calculating a tonnage reduction
for excess moisture. OSM is now proposing this option as an alternative
to the existing formula used to determine the excess moisture
percentage. The excess moisture percentage found in Sec. 870.19(a) is
multiplied by the tonnage shipped or used during the quarter to
determine the excess moisture reduced tonnage for the quarter under
Sec. 870.19(b).
How to calculate excess moisture in LOW-rank coal--Section 870.20
A new Sec. 870.20 would provide standard criteria for an operator
to use to establish excess moisture in low-rank coal. Table 3 includes
the ASTM standard sample collection method, ASTM D2234-89, Standard
Test Methods for Collection of a Gross Sample, and test procedure,
ASTM-D 3302-91, Standard Test Method for Total Moisture in Coal, that
OSM would accept for use as the basis for calculating the percentage of
total moisture in as shipped low-rank coal each day the coal is either
shipped or used.
The daily total moisture test results would be converted to
quarterly figures to be reported to OSM on the OSM-1 Coal Reclamation
Fee Report. To calculate the quarterly total moisture percentage an
operator would: (1) multiply the daily total moisture percentage by the
tonnage shipped or used that day, to find the daily total moisture
tonnage; (2) add the daily total moisture tonnage for each day in the
quarter; and, (3) add the daily tonnage shipped or used in the quarter,
to find the total tonnage shipped or used during the quarter. Then,
divide the sum of the daily total moisture tonnage, step (2), by the
sum of the daily tonnage shipped or used in the quarter, step (3). This
will result in the total moisture percentage in low-rank coal for the
quarter which would be reported on the OMS-1, Coal Reclamation Fee
Report.
Table 4 provides instructions on how an operator would determine
the inherent moisture percentage of coal mined from a bench of low-rank
coal by: collecting one sample of as-shipped coal in each month of the
calendar quarter using ASTM D2234-89, Standard Test Methods for
Collection of a Gross Sample of Coal; and, testing each sample for
equilibrium moisture following laboratory procedures in ASTM D1412-93,
Standard Test Method for Equilibrium Moisture of Coal at 96 to 97
Percent Relative Humidity and 30 deg.C.
The operator would calculate the inherent moisture percentage to
report to OSM for the quarter by averaging the results from the 3
monthly equilibrium moisture tests, and adding the correction factor.
Table 5 provides the methodology for establishing the correction factor
for all coal mined from each bench of low-rank coal.
Table 5 provides the method an operator would be required to use to
establish a correction factor during the first quarter an excess
moisture allowance is taken on low-rank coal mined from a bench. The
correction factor would be found by using ASTM D1412 Appendix XI,
Standard Test Method for Equilibrium Moisture of Coal at 96 to 97
Percent Relative Humidity and 30 deg.C to collect 5 samples of coal
from a freshly exposed, unweathered coal seam face during each month of
the quarter. Each of the 15 samples, 5 in each quarter, would be tested
for inherent moisture and equilibrium moisture as required by ASTM
D1412 Appendix XI, Standard Test Method for
[[Page 64224]]
Equilibrium Moisture of Coal at 96 to 97 Percent Relative Humidity and
30 deg.C.
The operator would be required to establish the correction factor
for the first quarter and all later quarters by: averaging the 15
monthly inherent moisture test results; and, averaging the 15 monthly
equilibrium moisture test results; and, subtracting the average
inherent moisture from the average equilibrium moisture. The correction
factor would apply only to coal mined from the bench that is sampled.
The correction factor could be changed at any time provided new samples
are taken and all procedures shown in Table 5 are repeated.
IV. Procedural Matters
Federal Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995, Public Law
104-13, OSM is requesting comments from the public and the Office of
Management and Budget (OMB) on the information collections contained in
this proposed rulemaking. Comments should address: (a) Whether the
proposed collection of information is necessary for the proper
performance of OSM, including whether the information will have
practical utility; (b) the accuracy of OSM's estimate of the burdens of
the proposed collection of information; (c) ways to enhance the
quality, utility, and clarity of the information to be collected; and
(d) ways to minimize the burden of collection on the respondents,
including the use of automated collection techniques or other forms of
information technology. No person is required to respond to a
collection of information unless it displays a currently valid OMB
Control Number. OSM's Control Numbers are displayed in 30 CFR Parts
710-955.
30 CFR Part 870
Title: Abandoned mine reclamation fund--fee collection and coal
production reporting.
OMB Control Number: 1029-0090.
Abstract: Section 402 of the Surface Mining Control and Reclamation
Act of 1977 requires operators of coal mining operations to pay a
reclamation fee to the Secretary for deposit in the Abandoned Mine
Reclamation Fund for the purpose of reclaiming lands mined and left
abandoned, or inadequately reclaimed, prior to the Act's effective
date. Reclamation fees are to be paid on each ton of coal produced.
Section 870.18 of the regulations allows an operator to take an
excess moisture content allowance when calculating the amount of
reclamation fees that are owed. Top substantiate the calculated
moisture deduction claimed, an operator (or other entity responsible
for the payment of the reclamation fee) is required to document by
standard laboratory analysis the excess moisture content for each coal
seam mined. This documentation must be updated as necessary to
establish the continuing validity of the excess moisture content
allowance taken by the operator.
Need For and Use: The information submitted will be used by OSM
auditors to verify an operator's compliance with Section 402 of the Act
and the requirements of the regulation at 30 CFR 870.18, 870.19, and
870.20. During an audit, operators must substantiate how the
calculation for excess moisture was determined. Operators must retain
their records for a 6-year period to allow for the audit of tax
records. Courts have ruled that the AML fee is an excise tax. The
applicable provision of the Energy Policy Act of 1992 (Section 2515)
extended the fee through 2004.
Respondents: Approximately 1,050 coal mining operators who take the
coal moisture deduction allowance.
Total Annual Burden: OSM estimates that 2 hours will be required to
prepare and maintain the documentation for audit purposes per
respondent. The total annual burden is estimated to be 2,100 hours.
Send comments regarding these burden estimates or any other aspect
of these information collection requirements by January 2, 1997, to the
Office of Surface Mining Reclamation and Enforcement, Information
Collection Clearance Officer, SIB 120, 1951 Constitution Avenue, NW.,
Washington, DC 20240; and the Office of Information and Regulatory
Affairs, Office of Management and Budget, Attention: Interior Desk
Officer, 725 17th Street, NW, Washington, DC 20503.
Please refer to OMB Control Number 1029-090 in any correspondence.
Executive Order 12988 on Civil Justice Reform
The Department of the Interior has determined that this proposed
rule meets the requirements of sections (3)(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform (56 FR 55195).
Executive Order 12866
This proposed rule has been determined to be significant under
Executive Order 12866 and has been reviewed by the Office of Management
and Budget.
The proposed rule is not considered economically significant under
section 3(f)(1) of Executive Order 12866 and will not have a
significant economic effect on the coal mining industry, or on regional
or national economies. OSM is attempting to provide a viable
methodology that will enable coal mine operators to calculate the
correct allowance for excess moisture. OSM is not attempting to specify
any given amount, or percentage, as an excess moisture allowance. For
that reason it is not possible to predict the cost that this revision
will have in terms of the amount of the additional AML fees that the
industry will pay and the government collect or the industry save and
the government not collect. Based on AML tonnages reported, and the
total moisture allowances taken for 1995, the industry saved
approximately $5,284,000 (rounded) in terms of the tonnage reported.
With regard to benefits, the proposed rule will ensure that all excess
moisture allowances are fair and equitable. OSM's proposal also
includes an option that would provide operators with a method to
calculate an allowance for the inherent moisture present in as-shipped
coal. This would be of particular benefit when an operator sells large
volumes of coal, and/or sells coal with a substantial variance between
the total and inherent moisture.
To assist OSM in complying with the requirements of Executive Order
12866, OSM invites comments on the potential costs and benefits of the
proposed rule.
Regulatory Flexibility Act
In accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et
seq., the Department of the Interior has determined that this rule
would not have a significant economic effect on a substantial number of
small entities for the reason stated below. This proposed rule will
provide two methods for operators to calculate the excess moisture in
high-rank coal. OSM expects that most operators of small to medium size
mines would likely prefer to continue to use the current method of
calculation while operators who either mine a large volume of coal, or
mine coal with a significant variance in total and inherent moisture,
will use the proposed option as an alternative to the existing formula
used to determine the excess moisture percentage. Thus, for small
operators any change from current practices would be optional.
Unfunded Mandates Reform Act
This rule is not expected to impose a cost of $100 million or more
in any given year on any governmental entity or the private sector.
[[Page 64225]]
National Environmental Policy Act
OSM has prepared a draft environmental assessment (EA) of this
proposed rule and has made a tentative finding that the proposed rule
would not significantly affect the quality of the human environment
under section 102(2)(C) of the National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4332(2)(C). It is anticipated that a Finding of
No Significant Impact (FONSI) will be approved for the final rule in
accordance with OSM procedures under NEPA. The EA is on file in the OSM
Administrative Record at the address specified previously (see
ADDRESSES). An EA will be completed on the final rule and a finding
made on the significance of any resulting impacts prior to promulgation
of the final rule.
Author
The principal author of this proposed rule is Dr. Kewal Kohli,
Mining Engineer, Office of Surface Mining, U.S. Department of the
Interior, 3 Parkway Center, Pittsburgh, PA 15220.
Inquiries with respect to the proposed rule should be directed to
Dr. Kohli at the address and telephone specified under FOR FURTHER
INFORMATION CONTACT.
List of Subjects in 30 CFR Part 870
Incorporation by reference, Reporting and recordkeeping
requirements, Surface mining, Underground mining.
Dated: June 24, 1996.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, it is proposed to amend 30 CFR part 870 as set forth
below:
PART 870--ABANDONED MINE RECLAMATION FUND--FEE COLLECTION AND COAL
PRODUCTION REPORTING
1. The authority citation for part 870 is revised to read as
follows:
Authority: 30 U.S.C. 1201 et seq.
2. Section 870.5 is amended by revising definitions of ``excess
moisture,'' ``inherent moisture'' and ``total moisture'' to read as
follows:
Sec. 870.5 Definitions.
* * * * *
Excess moisture means the difference between total moisture and
inherent moisture, calculated according to Sec. 870.19 for high-rank
coals or the difference between total moisture and inherent moisture
calculated according to Sec. 870.20 for low-rank coals.
* * * * *
Inherent moisture means moisture that exists as an integral part of
the coal seam in its natural state, including water in pores, but
excluding that present in macroscopically visible fractures, as
determined according to Sec. 870.19(a) or Sec. 870.20(a).
* * * * *
Total moisture means the measure of weight loss in an air
atmosphere under rigidly controlled conditions of temperature, time and
air flow, as determined according to either Sec. 870.19(a) or
Sec. 870.20(a).
* * * * *
3. Section 870.18 is revised to read as follows:
Sec. 870.18 General rules for calculating excess moisture.
If you are an operator who mined coal after June 1988, you may
deduct the weight of excess moisture in the coal to determine
reclamation fees you owe under Sec. 870.12(b)(3)(i). Excess moisture is
the difference between total moisture and inherent moisture. To
calculate excess moisture in HIGH-rank coal, follow Sec. 870.19. To
calculate excess moisture in LOW-rank coal, follow Sec. 870.20. Report
your calculations on OSM-1, Coal Reclamation Fee Report, for every
calendar quarter in which you claim a deduction. Some cautions:
(a) You or a customer of yours may do any test required by
Secs. 870.19 and 870.20. But whoever does a test, you are to keep test
results and all related records for at least six years after the test
date.
(b) If OSM disallows any or all of an allowance for excess
moisture, you must submit an additional fee plus interest computed
according to Sec. 870.15(c) and penalties computed according to
Sec. 870.15(f).
(c) The following definitions are applicable to Secs. 870.19 and
870.20. Applicable ASTM standards are incorporated by reference as
published in the 1994 Annual Book of ASTM Standards, Volume 05.05. The
Director of the Federal Register approved this incorporation by
reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Each
applicable ASTM standard is incorporated as it exists on the date of
the approval, and a notice of any change in it will be published in the
Federal Register. You may obtain copies from the ASTM, 1916 Race
Street, Philadelphia, Pennsylvania, 19103-1187. A copy of the ASTM
standards is available for inspection at the Office of Surface Mining
Reclamation and Enforcement, Administrative Record, Room 120, 1951
Constitution Avenue, NW., Washington, DC, or at the Office of the
Federal Register, 800 North Capitol St., NW., Suite 700, Washington,
DC.
Note: The incorporation by reference and availability of
inspection copies are pending approval by the Office of the Federal
Register.
(1) As-shipped coal means raw or prepared coal that is loaded for
shipment from the mine or loading facility.
(2) Channel sample means a sample of coal collected according to
ASTM standard D4596-93 from a channel extending from the top to the
bottom of a coal seam.
(3) Core sample means a cylindrical sample of coal that represents
the thickness of a coal seam penetrated by drilling according to ASTM
standard D5192-91.
(4) Correction factor means the difference between the equilibrium
moisture and the inherent moisture in low rank coals for the purpose of
Sec. 870.20(a).
(5) Equilibrium moisture means an estimate of the inherent moisture
in all coals. The equilibrium moisture is determined according to ASTM
standard D1412-93 and accompanying appendices, as appropriate.
(6) High-rank coals means anthracite, bituminous, and subbituminous
A and B coals.
(7) Low-rank coals means subbituminous C and lignite coals.
(8) Tipple coal means coal from a mine or loading facility that is
ready for shipment.
4. Sections 870.19 and 870.20 are added to read as follows:
Sec. 870.19 How to calculate excess moisture in high-rank coal.
Here are the requirements for calculating the excess moisture in
high-rank coal for a calendar quarter. Applicable ASTM standards are
incorporated by reference as published in the 1994 Annual Book of ASTM
Standards, Volume 05.05. The Director of the Federal Register approved
this incorporation by reference in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Each applicable ASTM standard is incorporated as it
exists on the date of the approval, and a notice of any change in it
will be published in the Federal Register. You may obtain copies from
the ASTM, 1916 Race Street, Philadelphia, Pennsylvania, 19103-1187. A
copy of the ASTM standards is available for inspection at the Office of
Surface Mining Reclamation and Enforcement, Administrative Record, Room
120, 1951 Constitution Avenue, NW., Washington, DC, or at the Office of
the Federal Register, 800 North
[[Page 64226]]
Capitol St., NW., Suite 700, Washington, DC.
Note: The incorporation by reference and availability of
inspection copies are pending approval by the Office of the Federal
Register.
(a)(1) Calculate the excess moisture percentage using one of these
equations:
[GRAPHIC] [TIFF OMITTED] TP03DE96.000
(2) EM equals excess moisture percentage. TM equals total as-
shipped moisture percentage calculated according to Table 1 of this
section. IM equals inherent moisture percentage calculated according to
Table 2 of this section.
(b) Multiply the excess moisture percentage by the tonnage shipped
or used during the quarter.
Table 1 to Sec. 870.19.--Calculating Total Moisture Percentage in High-
Rank coal \1\
------------------------------------------------------------------------
Collect and test each day you Convert daily test results to
ship or use coal quarterly figures and report them
------------------------------------------------------------------------
Collect a sample of as-shipped or 1. Multiply daily total moisture
used coal. Follow procedures in percentage by daily tonnage shipped
ASTM D2234-89 or used. You now have daily total
Test the sample for daily total moisture tonnage.
moisture percentage. Follow 2. Add up daily total moisture
laboratory procedures in ASTM tonnage for the quarter.
D3302-91. 3. Add up daily tonnage shipped or
used in the quarter.
4. Divide 2 by 3.
Report this total moisture percentage
in high-rank coal for the quarter on
OSM-1, Coal Reclamation Fee Report.
------------------------------------------------------------------------
\1\ See Sec. 870.19 for the incorporation by reference of the ASTM
standards.
Table 2 to Sec. 870.19.--Calculating INHERENT Moisture Percentage in
HIGH-Rank Coal \1\
------------------------------------------------------------------------
Choose from 2 ways to time the tests
Choose from 3 ways to collect and and convert the results for quarterly
test reporting
------------------------------------------------------------------------
First First
Collect a core sample. Follow Collect and test once each quarter.
procedures in ASTM D5192-91. Report test results by quarter on
OSM-1. Test results need no
converting; they are in quarterly
units already.
Test the sample to estimate
inherent moisture. Follow
laboratory procedures in ASTM
D1412-93.
Or second Or second
Collect a channel sample. Follow Create a 24-month baseline and update
procedures in ASTM D4596-93. as follows:
Test the sample to estimate For reporting months 1-24...
inherent moisture. Follow Collect and test one sample each
laboratory procedures in ASTM month. Each quarter, calculate a
D1412-93 or ASTM D3302-91. weighted average percentage of
inherent moisture:
Multiply a month's inherent
moisture percentage by tons produced
or shipped. You now have the month's
inherent moisture tonnage.
Add up 3 months of that
inherent moisture tonnage.
Divide by tons produced or
shipped in those 3 months.
Report the quarter's weighted average
percentage on OSM-1.
Or third
Collect a sample of blended coal, For all subsequent months...
as-shipped coal, tipple coal, Collect and test one sample for
commingled coal, or coal from inherent moisture every 12 months.
slurry ponds. Follow procedures Calculate--and report in the
in ASTM D2234-89. following 4 quarters--one updated
Test the sample to estimate rolling average percentage:
inherent moisture. Follow Add to the annual sample
laboratory procedures in ASTM percentage the inherent moisture
D1412-93. percentages for the preceding 23
tests.
Divide by 24.
Report the quarter's weighted average
percentage on OSM-1.
------------------------------------------------------------------------
\1\ See Sec. 870.19 for the incorporation by reference of the ASTM
standards.
Sec. 870.20 How to calculate excess moisture in LOW-rank coal.
Here are the requirements for calculating the excess moisture in
low-rank coal for a calendar quarter. Applicable ASTM standards are
incorporated by reference as published in the 1994 Annual Book of ASTM
Standards, Volume 05.05. The Director of the Federal Register approved
this incorporation by reference in accordance with 5 U.S.C. 552(a) and
1 CFR part 51. Each applicable ASTM standard is incorporated as it
exists on the date of the approval, and a notice of any change in it
will be published in the Federal Register. You may obtain copies from
the ASTM, 1916 Race Street, Philadelphia, Pennsylvania, 19103-1187. A
copy of the ASTM standards is available for inspection at the Office of
Surface Mining Reclamation and Enforcement, Administrative Record, Room
120, 1951 Constitution Avenue, NW., Washington, DC, or at the Office of
the Federal Register, 800 North Capitol St., NW., Suite 700,
Washington, DC.
Note: The incorporation by reference and availability of
inspection copies are pending approval by the Office of the Federal
Register.
(a)(1) Calculate the excess moisture percentage using one of these
equations:
[GRAPHIC] [TIFF OMITTED] TP03DE96.001
(2) EM equals excess moisture percentage. TM equals total as-
shipped moisture percentage calculated according to Table 1 of this
section. IM equals inherent moisture percentage calculated according to
Tables 2 and 3 of this section.
[[Page 64227]]
(b) Multiply the excess moisture percentage by the tonnage shipped
or used during the quarter.
Table 1 to Sec. 870.20.--Calculating TOTAL Moisture Percentage in LOW-
Rank Coal\1\
------------------------------------------------------------------------
Collect and test each day you Convert test results to quarterly
ship or use coal figures and report them
------------------------------------------------------------------------
Collect a sample of as-shipped or Convert daily total moisture
used coal. Follow procedures in percentage to quarterly total
ASTM D2234-89. moisture percentage:
Test the sample for daily total 1. Multiply daily total moisture
moisture percentage. Follow percentage by daily tonnage shipped
laboratory procedures in ASTM or used. You now have daily total
D3302-91. moisture tonnage.
2. Add up daily total moisture
tonnage for the quarter.
3. Add up daily tonnage shipped or
used in the quarter.
4. Divide 2 by 3.
Report this total moisture percentage
in low-rank coal for the quarter on
OSM-1, Coal Reclamation Fee Report.
------------------------------------------------------------------------
\1\ See Sec. 870.20 for the incorporation by reference of the ASTM
standards.
Table 2 to Sec. 870.20.--Calculating INHERENT Moisture Percentage in
LOW-Rank Coal \1\
------------------------------------------------------------------------
Convert test results to quarterly
Collect and test once a month figures and report them
------------------------------------------------------------------------
Collect 1 sample of as-shipped Calculate inherent moisture
coal. Follow procedures in ASTM percentage for the quarter:
D2234-89. Average the 3 equilibrium
Test the sample for equilibrium moisture results from your monthly
moisture. Follow laboratory tests.
procedures in ASTM D1412-93. Add to this average a
Correction Factor that you calculate
for the first quarter according to
Table 5 below.
Report this inherent moisture
percentage for the quarter on OSM-1.
------------------------------------------------------------------------
\1\ See Sec. 870.20 for the incorporation by reference of the ASTM
standards.
Table 3 to Sec. 870.20.--Calculating the Correction Factor for Table 4
\1\
------------------------------------------------------------------------
Convert test results into a
Collect and test each month in correction factor for all quarterly
the first quarter reports
------------------------------------------------------------------------
Collect 5 samples of a freshly Use the test results to calculate a
exposed, unweathered coal seam correction factor:
face. Follow procedures in ASTM Average the 15 inherent
D1412-93 Appendix XI. moisture results from your monthly
tests.
Average the 15 equilibrium
moisture results from your monthly
tests.
Subtract the average
equilibrium moisture from the
average inherent moisture.
Test each sample for two things: You now have a correction factor for
Inherent moisture the first quarter the deduction is
Equilibrium moisture. taken, and all later quarters. Use
it in Table 4 above. You may change
the correction factor at any time by
repeating the steps in this table.
Follow laboratory procedures in A correction factor applies to only
ASTM D1412-93 Appendix XI. the bench you sample.
------------------------------------------------------------------------
\1\ See Sec. 870.20 for the incorporation by reference of the ASTM
standards.
[FR Doc. 96-30134 Filed 12-2-96; 8:45 am]
BILLING CODE 4310-05-M