60138 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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.

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 lowrank 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.
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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. ‘‘Asshipped 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 lowrank 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 asshipped 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;
60140 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

—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°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°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°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
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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°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°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°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.
60142 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

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 asshipped 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 highrank 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:

§ 870.5 Definitions.

* * * * *

Excess moisture means the difference

between total moisture and inherent

moisture, calculated according to

§ 870.19 for high-rank coals or the

difference between total moisture and

inherent moisture calculated according

to § 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

§ 870.19(a) or § 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

§ 870.19(a) or § 870.20(a).

3. Section 870.18 is revised to read as

follows:

§ 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 § 870.19. To calculate

excess moisture in LOW-rank coal,

follow § 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 §§ 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.
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 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 § 870.15(c) and

penalties computed according to

§ 870.15(f).

(c) The following definitions are

applicable to §§ 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°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

§ 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:

§ 870.19 How to calculate excess moisture

in HIGH-rank coals.

Here are the requirements for

calculating the excess moisture in highrank 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°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:

EM TM IM

or

EM TM IM TM

IM

= −

= − × −

−









100

100

(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.

BILLING CODE 1505-01-D
60144 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60145

BILLING CODE 1505-01-D
60146 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations

§ 870.20 How to calculate excess moisture

in LOW-rank coals.

Here are the requirements for

calculating the excess moisture in lowrank 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°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:

EM TM IM

or

EM TM IM TM

IM

= −

= − × −

−









100

100

(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.

BILLING CODE 1505-01-D
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60147
60148 Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations
Federal Register / Vol. 62, No. 215 / Thursday, November 6, 1997 / Rules and Regulations 60149

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]

BILLING CODE 1505-01-D