[Federal Register Volume 62, Number 215 (Thursday, November 6, 1997)]
[Rules and Regulations]
[Pages 60138-60149]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-22903]
[[Page 60137]]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Office of Surface Mining Reclamation and Enforcement
_______________________________________________________________________
30 CFR Part 870
Coal Moisture; Republication; Final Rule
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 /
Rules and Regulations
[[Page 60138]]
DEPARTMENT OF THE INTERIOR
Office of Surface Mining Reclamation and Enforcement
30 CFR Part 870
RIN 1029-AB78
Coal Moisture; Republication
Editorial Note: FR Doc. 97-22903 was originally published as
Part II in the issue of Tuesday, August 29, 1997. The corrected
document is republished below in its entirety at the request of the
agency, due to the omission of the Table numbers.
AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior.
ACTION: Final rule.
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SUMMARY: The Office of Surface Mining Reclamation and Enforcement (OSM)
is amending its regulations governing how the excess moisture allowance
is determined for reclamation fee purposes. This action defines terms
and phrases related to the collection and testing of coal samples used
to determine the inherent and total moisture of coal; identifies
acceptable American Society for Testing and Materials (ASTM) standard
sampling and testing methods for high and low-rank coals; prescribes
frequencies for collecting and testing coal samples; and provides 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 regulatory revision clarifies and simplifies technical guidance
for all users, and provides 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 revision is to
enhance compliance with the provisions of section 402 of the Surface
Mining Control and Reclamation Act of 1977 (SMCRA or the Act). The
prescribed criteria will ensure that all tonnage reductions for excess
moisture are taken on comparable bases.
EFFECTIVE DATE: This regulation is effective October 1, 1997. The
incorporation by reference of certain publications listed in the
regulations is approved by the Director of the Federal Register as of
October 1, 1997.
FOR FURTHER INFORMATION CONTACT: Dr. Kewal Kohli, Office of Surface
Mining Reclamation and Enforcement, 3 Parkway Center, Pittsburgh, PA
15220; telephone (412) 937-2175.
SUPPLEMENTARY INFORMATION:
I. Background
II. Discussion of Final Rule and Responses to Comments
A. Section 870.5--Definitions.
B. Section 870.18--General rules for calculating excess
moisture.
C. Section 870.19--How to calculate excess moisture in HIGH-rank
coals.
D. Section 870.20--How to calculate excess moisture in LOW-rank
coals.
III. Procedural Matters
I. 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 provision (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 ownership,
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 all coals. 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.''
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 given 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 ASTM standard 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 subbituminous 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.
The final rule which OSM adopted in 1988, at 30 CFR 870.18, allowed
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
subsequently issued five AML Payer Letters to provide technical
guidance to the coal industry and assist with the application of this
regulation. OSM also published the guidance in the OSM Payer Handbooks.
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.
On December 3, 1996 (61 FR 64220), OSM published its proposal for
revising the rule in the Federal Register. The public comment period
closed on February 3, 1997.
[[Page 60139]]
II. Discussion of the Final Rule and Responses to Comments
Five commenters commented on the proposed rule revision: two coal
companies, a trade association, a law firm representing a coal company,
and an industry consulting firm. The majority of the commenters
supported the intent of consolidating previous guidance into a single
rulemaking, but expressed various concerns on specific issues.
Based on the comments received, OSM is revising its regulations
governing the excess moisture allowance to codify regulatory technical
requirements as proposed, with some changes. The proposal incorporates
by reference ASTM standards used for collecting and testing a coal
sample as specified in 30 CFR 870.19(a), Table 1 and Table 2, and 30
CFR 870.20(a), Tables 1, 2, and 3. The ASTM standards were 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 101, 1951 Constitution Avenue, NW.,
Washington, DC, and at the Office of the Federal Register, 800 North
Capitol St., Washington, DC. The 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 X1. Use of this procedure for low-rank coal
will 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. Definitions for high and
low rank coal are provided. The rule also includes an option that
provides operators with a method to calculate an allowance for the
excess moisture present in as-shipped coal. This is 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.
A. Section 870.5--Definitions
None of the commenters addressed this section, and the revised
definitions for excess, inherent, and total moisture are being adopted
as proposed. The definition for excess moisture is revised 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 section 870.19 and the formula for low-
rank coals is found in a new section 870.20. The existing definition of
inherent moisture is expanded to incorporate by reference the specific
ASTM methods of sample collection and test procedures shown in section
870.19, Table 2, Calculating INHERENT moisture percentage in HIGH-rank
coals, and section 870.20, Table 2, and Table 3, Calculating INHERENT
moisture percentage in LOW-rank coals. The existing definition of total
moisture is expanded to incorporate by reference ASTM criteria in
section 870.19, Table 1, for Calculating the TOTAL moisture percentage
in HIGH-rank coals, and section 870.20, Table 1, for Calculating the
TOTAL moisture percentage in LOW-rank coals. The expansion of the
existing definitions to incorporate by reference specific ASTM sample
collection methods and test procedures provides precise technical
standards to facilitate operator compliance with OSM's requirements,
and provides a consistent basis to calculate all excess moisture
allowances.
B. Section 870.18--General Rules for Calculating Excess Moisture
The modifications to 30 CFR 870.18, excess moisture content
allowance at section 870.18(a), (b), and (c) are adopted as proposed.
The previous section 870.18(a) required an operator to demonstrate
through competent evidence that the basis for determining the existence
and amount of excess moisture is reasonable. Section 870.18(b) required
standard laboratory analyses for testing inherent and total moisture.
Section 870.18(c) required an operator who blended 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 revision replaces the reasonableness standard found at section
870.18(a), the generic laboratory test requirement at section
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 at section 870.18(c). The revision also recognizes the distinct
differences in high and low-rank coals in sections 870.19 and 870.20.
Section 870.19 provides acceptable standards for collecting and testing
a sample of high-rank coals to establish the percentage of inherent and
total moisture contained in the coal, and calculate the excess moisture
allowance. Section 870.20 provides like standards for calculating the
excess moisture allowance for low-rank coals.
Revised section 870.18(c) adds definitions to further explain the
meaning of terms as they are used in new sections 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 coals under section 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 X1, are
incorporated by reference. Types of ``high-rank coals'' and ``low-rank
coals'' are defined to explain how these terms are used throughout
sections 870.5 and 870.18-20.
C. Section 870.19--How To Calculate Excess Moisture in HIGH-Rank Coals
The new section 870.19, which provides standard criteria for an
operator to use to establish excess moisture in high-rank coals, is
being adopted as proposed. Table 1 includes the ASTM standard sample
collection method, ASTM D2234-89, Standard Test Methods for Collection
of a Gross Sample of Coal, that OSM will accept for use as the basis
for calculating the percentage of total moisture in as-shipped high-
rank coals each day the coal is either shipped or used. Table 1 also
provides the test procedure, ASTM D3302-91, Standard Test Method for
Total Moisture in Coal, that would be acceptable for that purpose.
Two commenters suggested that more than one test method be accepted
for determining total moisture in high-rank coals. The prescribed test
methodology is designed to provide operators with the most reliable
means of determining the total moisture in the coals. While other
methods are available, the results produced may be less accurate, and
they are not incorporated as being acceptable in all cases. Operators
wishing to use other methodologies should obtain prior OSM approval to
avoid possible disallowance of their excess moisture amounts. The
operator must demonstrate that the test used yields accurate results.
One commenter opposed the requirement to test for total moisture
each day coal is shipped or used because:
--It would represent an excessive burden for small to medium-sized
operators who do not now test for total moisture every day they ship
coal;
[[Page 60140]]
--The cost involved with testing for total moisture every day in many
cases will either exceed or substantially diminish the value of the
coal moisture deduction; and
--The previous regulation did not require it.
The commenter recommended that one analysis of each stockpile of
coal be allowed as an alternative to daily testing. OSM has considered
these comments, but is retaining the daily testing requirement. The
basis for the coal moisture deduction is to recognize that coal
operators generally are not compensated for the weight of excess
moisture in the coal they ship, and therefore, should not be required
to pay fees on that weight. The total moisture of the coal can vary
significantly from day to day based on weather and other conditions.
The commenter stated that a single test of each stockpile, if depleted
in 10 days or less, would provide an average value of the total
moisture percentage for the stockpile for each day that the coal was
used or shipped. In OSM's view, such an approach will not adequately
recognize the variations in day-to-day moisture amounts and tonnages
shipped. The more this relationship is obscured, the less relevant it
becomes in recognizing the weight of excess moisture for which the
operator may not be compensated.
OSM also recognizes that the cost of daily moisture tests could
exceed the value of the excess moisture fee deduction that would be
derived. For that reason, OSM emphasizes in section 870.18(a) that the
operator may use the customer's test results on the shipped coal in
support of an excess moisture deduction. It has been OSM's experience
that the majority of buyers conduct such tests as part of their efforts
to ensure quality. By obtaining copies of the test results and related
records, the seller could avoid the expense of testing.
The daily total moisture test results must be converted to
quarterly figures to be reported to OSM on the OSM-1 Form, Coal
Reclamation Fee Report. To calculate the quarterly total moisture
percentage an operator should: (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 coals for the quarter which is reported on the Coal
Reclamation Fee Report.
Table 2 provides three methods for sampling high-rank coals, and
testing the sample to determine the inherent moisture percentage that
will be acceptable to OSM. To collect a coal 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 is required to
collect the sample using procedures in ASTM D5192-91, Standard Practice
for Collection of Coal Samples from Core and to test by ASTM D1412-93,
Standard Test Method for Equilibrium Moisture of Coal at 96 to 97
Percent Relative Humidity and 30 deg.C. If a channel sample is used,
the operator is 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 test by 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 collect a sample of blended coal, as-shipped coal, tipple
coal, commingled coal, or coal from slurry ponds an operator will use
procedures in ASTM D2234-89, Standard Test Methods for Collection of a
Gross Sample of Coal and test by 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.
An operator may select one of two options for timing inherent
moisture tests, either quarterly or monthly. If a quarterly inherent
moisture test is chosen, the operator must 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 must 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 must collect and test one sample in each month of
the calendar quarter. The quarterly inherent moisture percentage
reported to OSM for each of the first 8 quarters a seam is in
continuous operation is then based on a weighted average of the 3-
monthly inherent moisture tests results from each quarter. To determine
the quarterly weighted average inherent moisture percentage an operator
would then: (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 determined in (3) for the quarter to OSM on the OSM-
1 form. After the first 24-months, an operator would 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 coals 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 section
870.19(a) that allows 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 providing this option as an
alternative to the existing formula used to determine the excess
moisture percentage. The excess moisture percentage found in section
870.19(a) is multiplied by the tonnage sold, transferred, or used
during the quarter to determine the excess moisture reduced tonnage for
the quarter under section 870.19(b).
D. Section 870.20--How To Calculate Excess Moisture in LOW-Rank Coals
A new section 870.20, which provides standard criteria for an
operator to use to establish excess moisture in low-rank coals, is
being adopted with changes. Table 1 includes the ASTM standard sample
collection procedure, ASTM D2234-89, Standard Test Methods for
Collection of a Gross Sample, and test
[[Page 60141]]
procedure, ASTM D3302-91, Standard Test Method for Total Moisture in
Coal, OSM will accept for use as the basis for calculating the
percentage of total moisture in as shipped low-rank coals each day the
coal is either shipped or used.
The daily total moisture test results must 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 must: (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 by the OSM-1, Coal Reclamation Fee
Report.
Table 2 provides instructions on how an operator will determine the
inherent moisture percentage of coal mined from one or more benches of
low-rank coals by: collecting one sample of as-shipped coal each month
of the calendar quarter using procedure ASTM D2234-89, Standard Test
Methods for Collection of a Gross Sample of Coal; and testing each
sample for equilibrium moisture by 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 3 provides the method an operator is required to use to
establish the correction factor during the first quarter an excess
moisture allowance is taken on low-rank coals mined from a bench or
multiple benches. The correction factor is found by using procedures in
ASTM D1412-93 Appendix X1, Standard Test Method for Equilibrium
Moisture of Coal at 96 to 97 Percent Relative Humidity and 30 deg.C to
collect 15 samples of coal from a freshly exposed, unweathered coal
seam face during the quarter. All 15 samples would be tested for
inherent moisture and equilibrium moisture as required by ASTM D1412-93
Appendix X1, Standard Test Method for Equilibrium Moisture of Coal at
96 to 97 Percent Relative Humidity and 30 deg.C.
In the proposed rule, we stated that 5 samples had to be taken in
each month of the first quarter for a total of 15 samples. Three
commenters suggested a variety of alternatives, including allowing
companies to:
--Perform a single annual collection of 20 samples;
--Collect all 15 samples in a single month; or
--Take 20 to 30 samples annually.
The OSM-1 forms reporting tonnage and moisture amounts are to be
filed for each calendar quarter. The purpose of the samples is to help
determine the appropriate moisture amount for the coal shipped or used
in the calendar quarter being reported. As a result, it is not feasible
to delay the sampling and testing beyond that quarter. In response to
the commenters, however, we have revised the final rule to state that
the sampling and testing need not be done until the first quarter a
deduction is taken, and that all 15 samples may be taken anytime during
the quarter rather than 5 each month. This is also designed to address
some commenters' concerns that sampling on some days during the quarter
may be difficult due to harsh weather.
The operator is required to establish the correction factor for the
first quarter and all later quarters by: averaging the 15 inherent
moisture test results; averaging the 15 equilibrium moisture test
results; and, subtracting the average inherent moisture from the
average equilibrium moisture.
Three commenters also suggested that a regression formula be
allowed to determine the correction factor rather than simple
subtraction of the average equilibrium moisture from the average
inherent moisture. Generally, regression analysis is a statistical
approach which can be used to determine inherent moisture based on its
relationship to possibly several other variables of coal content, such
as ash, Btu, and equilibrium moisture. We examined this approach and
found that it would require sampling for every variable used in the
analysis and a substantially greater number of tests to produce
reliable results. We also found it difficult to specify all the
different variables that should be considered in every situation. As a
result, we are not incorporating a regression approach into the final
rule. If an operator elects to use a method other than that provided in
the rule, the operator should obtain prior OSM approval to avoid having
to revert to the simple subtraction method.
One commenter objected to calculating a correction factor for each
bench as we originally proposed, pointing out that multiple benches may
be mined simultaneously. We have revised the requirement in the final
rule to allow an average correction factor to be calculated and applied
when such situations exist. The correction factor could be changed at
any time provided new samples are taken and all procedures shown in
Table 3 are repeated.
III. Procedural Matters
Federal Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995, Public Law
104-13, OSM requested comments from the public and the Office of
Management and Budget (OMB) on the information collections contained in
the proposed rulemaking. Commenters were asked to 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. Comments received on the information collection
requirements in the proposed rule have been addressed in the preamble
above:
Title: Abandoned mine reclamation fund--fee collection and coal
production reporting: 30 CFR part 870.
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.
Sections 870.18, 870.19, and 870.20 of the regulations allow an
operator to take an excess moisture content allowance when calculating
the amount of reclamation fees that are owed. To 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.
[[Page 60142]]
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. Response to this
collection of information is required to obtain a benefit and is held
confidential under the Freedom of Information Act.
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.
Executive Order 12988 on Civil Justice Reform
The Department of the Interior has determined that this rule meets
the requirements of sections 3(a) and 3(b)(2) of Executive Order 12988,
Civil Justice Reform.
Executive Order 12866
This rule has been determined to be significant under Executive
Order 12866 and has been reviewed by the Office of Management and
Budget.
The 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 providing 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
1996, the industry saved approximately $5,729,000 in terms of the
tonnage reported. With regard to benefits, the rule revision will
ensure that all excess moisture allowances are fair and equitable.
OSM's revision also includes an option that will provide operators with
a method to calculate an allowance for the inherent moisture present in
as-shipped coal. This will 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.
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 will
not have a significant economic effect on a substantial number of small
entities for the following reason. The 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 will 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 other
option as an alternative to the existing formula used to determine the
excess moisture percentage. Thus, for small operators any change from
current practices is optional.
Unfunded Mandates Reform Act
This rule will not impose a cost of $100 million or more in any
given year on any governmental entity or the private sector.
National Environmental Policy Act
OSM has prepared an environmental assessment (EA) of this rule and
has made a Finding of No Significant Impact (FONSI) on 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). The EA
and FONSI are on file in the OSM Administrative Record.
Author: The principal author of this 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 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: July 2, 1997.
Bob Armstrong,
Assistant Secretary, Land and Minerals Management.
Accordingly, 30 CFR part 870 is amended 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 30 CFR 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 the OSM-1 form, Coal Reclamation Fee Report, for
every calendar quarter in which you claim a deduction. Some cautions:
(a) You or your customer 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.
[[Page 60143]]
(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. ASTM standards D4596-93, Standard Practice for Collection of
Channel Samples of Coal in a Mine; D5192-91, Standard Practice for
Collection of Coal Samples from Core; and, D1412-93, Standard Test
Method for Equilibrium Moisture of Coal at 96 to 97 Percent Relative
Humidity and 30 deg.C 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, 100 Barr Harbor Drive, West Conshohocken,
Pennsylvania 19428. A copy of the ASTM standards is available for
inspection at the Office of Surface Mining Reclamation and Enforcement,
Administrative Record, Room 101, 1951 Constitution Avenue, NW.,
Washington, DC, or at the Office of the Federal Register, 800 North
Capitol St., NW., Suite 700, Washington, DC.
(1) As-shipped coal means raw or prepared coal that is loaded for
shipment from the mine or loading facility.
(2) Blended coal means coals of various qualities and predetermined
quantities mixed to control the final product.
(3) 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.
(4) Commingled coal means coal from different sources and/or types
combined prior to shipment or use.
(5) 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.
(6) 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).
(7) Equilibrium moisture means the moisture in the coal as
determined through ASTM standard D1412-93.
(8) High-rank coals means anthracite, bituminous, and subbituminous
A and B coals.
(9) Low-rank coals means subbituminous C and lignite coals.
(10) Slurry pond means any natural or artificial pond or lagoon
used for the settlement and draining of the solids from the slurry
resulting from the coal washing process.
(11) 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 coals.
Here are the requirements for calculating the excess moisture in
high-rank coals for a calendar quarter. ASTM standards D2234-89,
Standard Test Methods for Collection of a Gross Sample of Coal; D3302-
91, Standard Test Method for Total Moisture in Coal; D5192-91, Standard
Practice for Collection of Coal Samples from Core; D1412-93, Standard
Test Method for Equilibrium Moisture of Coal at 96 to 97 Percent
Relative Humidity and 30 deg.C; and, D4596-93, Standard Practice for
Collection of Channel Samples of Coal in a Mine 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,
100 Barr Harbor Drive, West Conshohocken, Pennsylvania 19428. A copy of
the ASTM standards is available for inspection at the Office of Surface
Mining Reclamation and Enforcement, Administrative Record, Room 101,
1951 Constitution Avenue, NW., Washington, DC, or at the Office of the
Federal Register, 800 North Capitol St., NW., Suite 700, Washington,
DC.
(a)(1) Calculate the excess moisture percentage using one of these
equations:
[GRAPHIC] [TIFF OMITTED] TR06NO97.000
(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 from the
bonafide sales, transfers of ownership, or uses by the operator during
the quarter.
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Sec. 870.20 How to calculate excess moisture in LOW-rank coals.
Here are the requirements for calculating the excess moisture in
low-rank coals for a calendar quarter. ASTM standards D2234-89,
Standard Test Methods for Collection of a Gross Sample of Coal; D3302-
91, Standard Test Method for Total Moisture in Coal; and, D1412-93,
Standard Test Method for Equilibrium Moisture of Coal at 96 to 97
Percent Relative Humidity and 30 deg.C 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, 100 Barr Harbor
Drive, West Conshohocken, Pennsylvania 19428. 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.
(a)(1) Calculate the excess moisture percentage using one of these
equations:
[GRAPHIC] [TIFF OMITTED] TR06NO97.003
(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.
(b) Multiply the excess moisture percentage by the tonnage from the
bona fide sales, transfers of ownership, or uses by the operator during
the quarter.
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[GRAPHIC] [TIFF OMITTED] TR06NO97.004
[[Page 60148]]
[GRAPHIC] [TIFF OMITTED] TR06NO97.005
[[Page 60149]]
[GRAPHIC] [TIFF OMITTED] TR06NO97.006
Editorial Note: FR Doc. 97-22903 was originally published as
Part II in the issue of Tuesday, August 29, 1997. The corrected
document is republished in its entirety at the request of the
agency, due to the omission of the Table numbers.
[FR Doc. 97-22903 Filed 8-28-97; 8:45 am]
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