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Federal Register / Vol. 70, No.

228 / Tuesday, November 29, 2005 / Proposed Rules 71421

[FR Doc. 05–23404 Filed 11–28–05; 8:45 am] ACTION: Advance notice of proposed objections regarding the advanced
BILLING CODE 6717–01–C rulemaking and announcement of notice of the proposed rulemaking by
public meeting. any of the following methods:
By regular U.S. mail. Minerals
SUMMARY: The MMS requests comments Management Service, Minerals Revenue
and suggestions to assist us in proposing Management, P.O. Box 25165, MS
DEPARTMENT OF THE INTERIOR
regulations regarding so-called ‘‘takes 302B2, Denver, Colorado 80225–0165;
Minerals Management Service versus entitlements’’ reporting and By overnight mail, courier, or hand-
payment of royalties when oil and gas delivery. Minerals Management Service,
production is commingled upstream of Minerals Revenue Management,
30 CFR Part 205
the point of royalty measurement. See Building 85, Room A–614, Denver
IV, Description of Information Federal Center, West 6th Avenue and
RIN 1010–AC29 Requested, for details. Kipling Blvd., Denver, Colorado 80225;
DATES: You must submit your comments or
Reporting and Paying Royalties on
by January 30, 2006. A public meeting By e-mail. mrm.comments@mms.gov.
Federal Leases on Takes or
will be held on December 14, 2005. Please submit Internet comments as an
Entitlements Basis
ADDRESSES: Please use the regulation ASCII file and avoid the use of special
AGENCY: Minerals Management Service identifier number (RIN), RIN 1010– characters and any form of encryption.
(MMS), Interior. AC29, in all your correspondence. Also, please include ‘‘Attn: RIN 1010–
Submit your comments, suggestions, or AC29’’ and your name and return
EP29no05.000</GPH>

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71422 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules

address in your Internet message. If you to, and analyses of, the applicable laws organizations or businesses, available
do not receive a confirmation that we and regulations. for public inspection in their entirety.
have received your Internet message,
B. Public Meeting Procedures IV. Description of Information
call the contact person listed below.
Requested
FOR FURTHER INFORMATION CONTACT: At the public meeting, those attending
Sharron L. Gebhardt, Lead Regulatory will be able to comment on the scope, On August 13, 1996, the President
Specialist, Minerals Management proposed action, and possible signed RSFA into law. Section 6(d) of
Service, Minerals Revenue Management, alternatives the MMS should consider. RSFA, entitled, ‘‘Volume Allocations of
P.O. Box 25165, MS 302B2, Denver, The purpose of the meeting is to gather Oil and Gas Production,’’ amended
Colorado 80225–0165, telephone (303) comments and input from a variety of section 111 of the Federal Oil and Gas
231–3211, FAX (303) 231–3781, or e- stakeholders and the public. Royalty Management Act of 1982
mail Sharron.Gebhardt@mms.gov. If you do not wish to speak at the (FOGRMA), Public Law 97–451—Jan.
meeting but you have views, questions, 12, 1983 (30 U.S.C. 1721), by adding
SUPPLEMENTARY INFORMATION: new paragraphs (k)(1)–(5). The proposed
or concerns with regard to the MMS’s
I. Dates Information implementation of section 6(d) of RSFA, rulemaking would implement RSFA
Public Law 104–185, Aug. 13, 1996, 110 amendments to FOGRMA section
The MMS may not necessarily 111(k)(1)–(4).
Stat 1700, 1713–1714, as corrected by
consider or include in the Congress enacted these amendments
Public Law 104–200, Sept. 22, 1996,
Administrative Record, for any to clarify and resolve the long-standing
codified at 30 U.S.C. 1721(k), entitled
proposed rule, comments that MMS issues regarding so-called ‘‘takes versus
‘‘Volume Allocations of Oil and Gas
receives after the close of the comment entitlements.’’ Those issues arose
Production,’’ you may submit written
period or comments delivered to an primarily where the amount of natural
statements at the meeting for inclusion
address other than those listed in the gas taken (‘‘takes’’) and sold by a lessee
in the public record. You may also
ADDRESSES section of this document.
submit written comments and from Federal leases subject to a unit or
II. Public Meeting Information suggestions regardless of whether you communitization agreement was not
attend or speak at the public meeting. equal to the lessee’s entitled share
The MMS will hold a public meeting (‘‘entitlements’’), based on its ownership
See the ADDRESSES section of this
to allow the public an opportunity to interest in leases in the unit or
document for instructions on submitting
comment on how MMS should communitization agreement. These
written comments.
implement the royalty reporting and imbalances led to numerous questions
payment provision at section 6(d) of the The site for the public meeting is
accessible to individuals with physical about who should report and pay on
Federal Oil and Gas Royalty what volumes and for what leases.
Simplification and Fairness Act (RSFA). impairments. If you need a special
accommodation to participate in the To obtain input from parties affected
The meeting will be held in Houston, by RSFA amendments to FOGRMA
Texas, on the following date at the meeting (e.g., interpretive service,
assistive listening device, or materials in section 111(k)(1)–(4), MMS formed a
following specified time and location: consultation team comprised of
Wednesday, December 14, 2005, from 9 alternative format), please notify Lonnie
Kimball at (281) 987–6800, no later than representatives from interested states,
a.m.–1 p.m. central time, in the San oil and gas trade associations, and
Antonio Room located on the second 2 weeks prior to the scheduled meeting.
Although we will make every effort to MMS. The consultation team held
floor of the Sheraton North Houston meetings on October 30, November 19,
Hotel, located at 15700 John F. Kennedy accommodate requests received, it may
not be possible to satisfy every request. and December 6, 1996. The meetings
Blvd, Houston, Texas 77032. For further resulted in general agreement on
information, please contact Roman A. C. Public Comment Policy definitions, the reporting requirements
Geissel at (303) 231–3226. for 100-percent Federal units and
Our practice is to make comments,
III. Public Comment and Meeting including names and home addresses of communitization agreements, the
Procedures respondents, available for public review definition of a ‘‘marginal property,’’ and
at our Denver office during regular how a marginal property reporting
A. Written Comment Procedures exception would be determined.
business hours and on our Web site at
We are particularly interested in http://www.mrm.mms.gov/Law_R_D/ Subsequent to those meetings, in the
receiving comments and suggestions FRNotices/FRHome.htm, or on request process of trying to develop a proposed
about the topics identified in IV, to Sharron Gephardt at (303) 231–3211. rule implementing RSFA amendments
Description of Information Requested. Individual respondents may request that to FOGRMA section 111(k)(1)–(4), an
Your written comments should: (1) Be we withhold their individual home issue arose regarding the commingling
specific; (2) explain the reason for your address from the rulemaking record, of oil and gas production from multiple
comments and suggestions; (3) address which we will honor to the extent properties upstream of the point of
the issues outlined in this notice; and allowable by law. There also may be royalty measurement. For purposes of
(4) where possible, if you refer to the circumstances in which we would this discussion:
specific provision, section, or paragraph withhold from the rulemaking record a • A ‘‘property’’ is defined as a lease,
of statutory law, case law, or existing respondent’s identity, as allowable by unit, or communitization agreement.
regulations, please cite that provision. law. If you wish us to withhold your • A ‘‘100-percent Federal unit or
The comments and recommendations name and/or address, you must state communitization agreement’’ means any
that are most useful and have greater this prominently at the beginning of unit or communitization agreement that
likelihood of influencing decisions on your comments. However, we will not contains only Federal leases having the
the content of a possible future consider anonymous comments. We same fixed royalty rate and funds
proposed rule are: (1) Comments and will make all submissions from distribution.
recommendations supported by organizations or businesses, and from • A ‘‘unit’’ means a unit participating
quantitative information or studies; and/ individuals identifying themselves as area, enhanced recovery unit, or field-
or (2) comments that include citations representatives or officials of wide unit.

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Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71423

• A ‘‘mixed unit or communitization approval identifies where the volume is pay initially on their takes in a situation
agreement’’ means any unit or measured by royalty purposes and how where production from that lease or unit
communitization agreement other than that volume must be allocated to each or communitization agreement is
100-percent Federal unit or property that is subject to the commingled with other production
communitization agreement. These are commingling approval. It does not affect upstream of the royalty measurement
unit or communitization agreements how volume is allocated to leases point:
that contain any mixture of Federal, within a unit or communitization (2) RSFA requires that Federal lessees
Indian, state or private mineral estates, agreement. Commingling can be, and in mixed unit or communitization
or that contain all Federal leases with often is, approved between properties agreements report royalties on an
different royalty rates (fixed or variable) with the same royalty rate and funds entitlement basis, regardless of whether
or different funds distribution. distribution and between properties the unit or communitization agreement
• A ‘‘stand-alone lease’’ means a lease with different royalty rates or different is subject to a commingling approval.
or a portion of a lease that is not in a funds distributions. Should MMS treat a commingling
unit or communitization agreement. The RSFA provision added to approval as the equivalent of a unit or
The RSFA cldarly identifies when it FOGRMA at 30 U.S.C. 1721(k)(1)–(5) communitization agreement and apply
is appropriate to initially report and pay does not address the effect of the RSFA reporting and payment
on a ‘‘takes’’ or ‘‘entitlements’’ basis for commingling or commingling provisions on that basis? For example,
production from leases, units or imbalances. Commingling complicates if all properties measured at the
communization agreements that is not reporting requirements because there is commingling point are 100 percent
commingled with production from other an impact on royalty payments when Federal leases or units or
properties before the royalty there are properties with mixed royalty communitization agreements with the
measurement point. For instance: rates or funds distribution upstream of same fixed royalty rate and funds
• When taking production from a the approved commingling point. For distribution, then payments could be
100-percent Federal unit or example, assume that production from made on takes. If one or more of the
communitization agreement, the two stand-alone Federal leases that are properties measured at or after the
lessee(s) must pay on actual takes (30 not unitized or communitized, each commingling point have different
U.S.C. 1721(K)(1)(A)), or with a different royalty rate, is royalty rates (fixed or variable, different
• When taking production from a commingled before the royalty funds distribution, or are not 100
mixed Federal unit or communitization measurement point. Assume that each percent Federal, all lessees would pay
agreement, the Federal lessee(s) must lease receives a 50 percent allocation of on entitlements.
pay on entitlements (30 U.S.C. the total measure production (1,000 The three examples presented below
1721(k)(1)(B)), or Mcf) under the commingling approval. illustrate some alternative
• When taking production from a The lessee of the lease with a 162⁄3 methodologies to apply the provisions
stand-alone Federal lease, the lessee(s) percent royalty rate actually sells (takes) of RSFA to situations where production
must pay on takes (30 U.S.C. 750 Mcf of gas and the lessee of the is commingled before royalty
1721(k)(1)(C)). lease with the 121⁄2 percent royalty rate measurement. For each example,
It is important to note that, while actually sells (takes) 250 Mcf of gas. assume there is a stand-alone Federal
RSFA section 6(d) amended FOGRMA Based on the commingling approval, the lease with two lessees (lessee A and
by adding section 111(k)(1), which leases are out of balance. The lessee B, each of whom owns 50 percent
addressed the reporting and payment commingling approval determines the of the working interest), a 100-percent
requirements, the addition of section volume deemed to have been removed Federal unit or communitization
111(k)(2) went on to clarify that the or sold from each lease upon which the agreement with two lessees (with lessee
requirements outlined in section lessees ultimately must pay royalty. C owning 75 percent of the combined
111(k)(1) ‘‘apply only to requirements Should each lessee pay royalties on its working interest in the two leases, and
for reporting and paying royalties. actual sales (takes), the Federal lessee D owning the remaining 25
Nothing in this subsection is intended Government initially would be paid percent), and a state lease, all of which
to alter a lessee’s liability for royalties more than the royalty ultimately owed. are subject to a commingling approval.
on oil or gas production allocated to If the sales were reversed, the Federal (For simplicity, assume that all of the
lease, in accordance with the terms of Government initially would be paid on Federal leases have the same royalty
the lease, a unit or communitization less than the royalty ultimately owed. rate.) Additionally, assume that for each
agreement, or any other agreement.’’ RSFA prescribes how lessees should example, the total commingled
Thus, the lessee’s ultimate liability to initially report and pay royalty on production allocated to the properties is
pay royalties on its entitled share of production removed or sold from a lease 100,000 Mcf of gas. Further assume that,
production is not changed. or unit or communitization agreement. for the month shown in the examples,
Commingling adds additional The commingling approval determines the stand-alone Federal lease and the
complications to the issue of how to the volume removed or sold from the state lease are each allocated 25 percent
report and pay royalties. Not only do leases or unit or communitization of the commingled production under
imbalances between operating rights agreements subject to the commingling the commingling approval, and that the
owners within a property occur, but approval. RSFA was silent on the effect Federal unit or communitization
imbalances between properties also are of commingling approvals. We are agreement is allocated 50 percent.
commonplace. asking for your input on several Further, assume that lessee A takes and
Commingling is the combining of questions regarding RSFA’s application sells 20,000 Mcf of gas. Assume that
production from multiple properties to production subject to a commingling lessee B has no takes. Assume that
before measurement for royalty approval before the royalty lessee C takes and sells 30,000 Mcf of
purposes and requires approval of the measurement point. Those questions gas while lessee D takes and sells 23,000
MMS Offshore Minerals Management include the following: Mcf of gas. Assume that the lessee of the
program for offshore leases or the (1) Should lessees of a lease or a 100- state lease takes and sells 27,000 Mcf of
Bureau of Land Management for percent Federal unit or gas. In each example, lessee ownership
onshore leases. The commingling communitization agreement report and percentages and liability remain the

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71424 Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules

same, but the volume on which royalty used in the following examples are
initially must be paid varies depending rounded to the nearest whole number.)
on the methology used. (The numbers

EXAMPLE 1—‘‘PURE TAKES’’ REPORTING AND PAYING


Allocated vol- Volume on
Entitled share
ume per com- Sales by les- which royalty
Ownership of allocated
Property mingling ap- Lessee sees paid to MMS
percentage volume
proval (Mcf) (Takes)
(Mcf)
(Mcf) (Mcf)

Federal Lease (2 lessees) ............................... 25,000 A ............ 50 12,500 20,000 20,000


B ............ 50 12,500 0 0
100-percent Federal Unit or Communitization 50,000 C ............ 75 37,500 30,000 30,000
Agreement (2 lessees). D ............ 25 12,500 23,000 23,000
State Lease ...................................................... 25,000 ................ ........................ 25,000 27,000 0

Totals ........................................................ 100,000 ................ ........................ 100,000 100,000 73,000

By using a pure takes methodology, on which the Federal lessees reported on a pure takes basis, the Federal lessees
the volume deemed sold and removed and paid royalty would not always only paid on 73,000 Mcf. Therefore,
from each lease and the unit or equal the volume on which royalty is adopting this methodology presumably
communitization agreement as due under the commingling approval. In would require each royalty reporter to
determined under the commingling this example, the MMS would be paid adjust royalty payments (at least on an
approval is not properly accounted for. royalty on 2,000 Mcf less than the annual basis) to its entitled volume
Under this methodology, MMS could be volume on which the Federal lessees (equal to its ownership percentage times
paid on a volume either greater than or ultimately owe royalty because under the volume allocated to its lease or unit
less than that on which the lessees the commingling approval the Federal or communitization agreement under
ultimately owe royalty because the takes lessees owe royalty on 75,000 Mcf and the commingling approval).

EXAMPLE 2.—‘‘PURE ENTITLEMENTS’’ REPORTING AND PAYING


Allocated vol- Volume on
Entitled share
ume per com- Sales by les- which royalty
Ownership of allocated
Property mingling ap- Lessee see paid to MMS
percentage volume
proval (Mcf) (entitlements)
(Mcf)
(Mcf) (Mcf)

Federal Lease (2 lessees) ............................... 25,000 A ............ 50 12,500 20,000 12,500


B ............ 50 12,500 0 12,500
100-percent Federal Unit or Communitization 50,000 C ............ 75 37,500 30,000 37,500
Agreement (2 lessees). D ............ 25 12,500 23,000 12,500
State Lease ...................................................... 25,000 ................ ........................ 25,000 27,00 0

Totals ........................................................ 100,000 ................ ........................ 100,000 100,000 75,000

Reporting on a ‘‘pure entitlements’’ production is commingled before the volume each month, even if a particular
basis that the Federal government is royalty measurement point. Under this lessee (lessee B in this example) took no
made whole with respect to royalties, methodology, MMS would be made production. Therefore, an adjustment to
but would not allow for initial reporting whole each month because lessees the entitled volume, as discussed above
and payment based on takes if would report and pay on their entitled for Example 1, would not be necessary.

EXAMPLE 3.—‘‘PROPORTIONATE TAKES’’ REPORTING AND PAYING


Volume on
Allocated vol- Entitled share which royalty
ume per com- Sales by les-
Ownership of allocated paid to MMS
Property mingling ap- Lessee see
percentage volume (proportionate
proval (Mcf)
(Mcf) takes)
(Mcf) (Mcf)

Federal Lease (2 lessees) ............................... 25,000 A ............ 50 12,500 20,000 25,000


B ............ 50 12,500 0 0
100-percent Federal Unit or Communitization 50,000 C ............ 75 37,500 30,000 28,302
Agreement (2 lessees). D ............ 25 12,500 23,000 21,698
State Lease ...................................................... 25,000 ................ ........................ 25,000 27,000 0

Totals ........................................................ 100,000 ................ ........................ 100,000 100,000 75,000

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Federal Register / Vol. 70, No. 228 / Tuesday, November 29, 2005 / Proposed Rules 71425

This methodology would combine Dated: November 14, 2005. proposed amendment to that program
takes and entitlements by requiring R.M. ‘‘Johnnie’’ Burton, are available for your inspection, the
lessees to report and pay on volumes Assistant Secretary for Land and Minerals comment period during which you may
equal to the sales by the lessee divided Management. submit written comments on the
by the total sales for the property times [FR Doc. 05–23380 Filed 11–28–05; 8:45 am] amendment, and the procedures that we
the allocated volume under the BILLING CODE 4310–MR–M will follow for the public hearing, if one
commingling approval for the property. is requested.
Consider lessees C and D: In this DATES: We will accept written
example, lessee C would report and pay DEPARTMENT OF THE INTERIOR comments on this amendment until 4
on 28,302 Mcf, even though it actually p.m., c.t., December 29, 2005. If
took 30,000 Mcf, and its entitled volume Office of Surface Mining Reclamation requested, we will hold a public hearing
is 37,500 Mcf. The 28,302 Mcf is and Enforcement on the amendment on December 27,
computed as follows: 2005. We will accept requests to speak
(30,000 Mcf/53,000 Mcf) × 50,000 Mcf 30 CFR Part 925 at a hearing until 4 p.m., c.t. on
= 28,302 Mcf for lessee C, where 53,000 December 14, 2005.
[Docket No. MO–038–FOR]
Mcf (total sales for the property) is the
ADDRESSES: You may submit comments,
sum of 30,000 Mcf (lessee C’s total sales) Missouri Regulatory Program identified by Docket No. MO–038–FOR,
and 23,000 Mcf (lessee D’s total sales),
AGENCY: Office of Surface Mining by any of the following methods:
and 50,000 Mcf is the allocated volume
Reclamation and Enforcement, Interior. • E-mail: IFOMAIL@osmre.gov.
under the commingling approval for the
Include Docket No. MO–038–FOR in the
property. Lessee D’s initial reporting ACTION: Proposed rule; public comment
subject line of the message.
and payment would be computed period and opportunity for public • Mail/Hand Delivery: Andrew R.
similarly. hearing on proposed amendment. Gilmore, Chief, Alton Field Division,
Considering lessees A and B: If a
SUMMARY: We, the Office of Surface Office of Surface Mining Reclamation
lessee took no production (lessee B in
Mining Reclamation and Enforcement and Enforcement, 501 Belle Street,
this example), it would not have to pay
any royalty. However, a lessee (lessee A (OSM), are announcing receipt of a Alton, Illinois 62002.
proposed amendment to the Missouri • Fax: (618) 463–6470
in this example) could pay royalty on a
regulatory program (Missouri program) • Federal eRulemaking Portal: http://
volume greater than either its actual
under the Surface Mining Control and www.regulations.gov. Follow the
takes or its entitled share. Under this
Reclamation Act of 1977 (SMCRA or the instructions for submitting comments.
methodology, MMS would be made Instructions: All submissions received
whole each month because it would Act). Missouri intends to revise its
program to improve operational must include the agency name and
receive royalty based on the total
efficiency. docket number for this rulemaking. For
Federal production subject to the
Currently, we are substituting direct detailed instructions on submitting
commingling approval each month.
Federal enforcement for portions of the comments and additional information
Therefore, an adjustment to the entitled
Missouri program. With the substitution on the rulemaking process, see the
volume, as discussed above for Example
of Federal enforcement authority, we ‘‘Public Comment Procedures’’ heading
1, would not be necessary. In Example
outlined a process by which Missouri of the SUPPLEMENTARY INFORMATION
3, lessees would have to adjust their
could regain full authority for its section of this document.
payments among themselves.
As explained above, in instances program. As part of this process, Docket: For access to the docket to
where a lessee pays on ‘‘Pure Missouri proposes to amend its review copies of the Missouri program,
Entitlements’’ such as Example 2, or approved regulatory program and this amendment, and all written
‘‘Proportionate Takes’’ such as Example submitted a temporary emergency comments received in response to this
3, the lessee may take production that regulatory program rule (emergency document, you must go to the address
is more or less than its entitled share. In rule). The purpose of the emergency listed below during normal business
that case, a lessee would need to value rule is to revise Missouri’s regulations hours, Monday through Friday,
its entitled share. The MMS believes regarding bonding of surface coal excluding holidays. You may receive
that the best means of valuing the mining and reclamation operations to one free copy of the amendment by
entitled share is to apply a volume allow Missouri to transition from a contacting OSM’s Alton Field Division.
weighted average of the royalty values ‘‘bond pool’’ approach to a ‘‘full cost Andrew R. Gilmore, Chief, Alton Field
of the volumes actually taken to the bond’’ approach. We are announcing Division, Office of Surface Mining
entitled shared volumes. The MMS receipt of the emergency rule in this Reclamation and Enforcement, 501 Belle
requests comments on any other rulemaking. Missouri has indicated that, Street, Alton, Illinois 62002, Telephone:
alternatives for valuing such volumes. in the near future, it will submit a (618) 463–6460, E-mail:
In addition, MMS is interested in permanent regulatory program rule IFOMAIL@osmre.gov.
receiving comments on these three (permanent rule) regarding its bonding In addition, you may review a copy of
Examples which describe alternative regulations and that this rule will the amendment during regular business
methodologies. The MMS is also contain regulatory language that is hours at the following location:
interested in receiving comments on any substantially identical to the language in Missouri Department of Natural
other alternative methodologies. If you this emergency rule. If we approve the Resources, Land Reclamation Program,
propose a methodology different from emergency rule and Missouri submits 205 Jefferson Street, P.O. Box 176,
those discussed above, please use our the permanent rule with language that Jefferson City, Missouri 65102,
example criteria and explain why you has the same meaning as the emergency Telephone: (573) 751–4041.
believe your methodology is the best rule, we will publish a final rule and the FOR FURTHER INFORMATION CONTACT:
alternative. In addition, MMS would permanent rule will become part of the Andrew R. Gilmore, Chief, Alton Field
like your input on how the various Missouri program. Division. Telephone: (618) 463–6460. E-
methodologies would affect your This document gives the times and mail: IFOMAIL@osmre.gov.
business practices, bookkeeping, etc. locations that the Missouri program and SUPPLEMENTARY INFORMATION:

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