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[December 22, 2003 (Volume 68, Number 245)]
[Unified Agenda]
[Page 73214]

Department of Labor (DOL)
(Final Rule Stage)

Mine Safety and Health Administration (MSHA)



Priority: Other Significant

Legal Authority: 30 USC 811

CFR Citation: 30 CFR 57

Legal Deadline: None

Abstract: On January 19, 2001, MSHA published a final rule addressing diesel particulate matter (DPM) exposure of underground metal and nonmetal miners (66 FR 5706). The final rule established new health standards for underground metal and nonmetal mines that use equipment powered by diesel engines. The rule establishes an interim concentration limit of 400 micrograms of total carbon per cubic meter of air that became applicable July 20, 2002, and a final concentration limit of 160 micrograms to become applicable after January 19, 2006. Industry challenged the rule and organized labor intervened in the litigation. Settlement negotiations with the litigants have resulted in further regulatory actions on several requirements of the rule. One final rule has been published (67 FR 9180). This new rulemaking will address the remaining issues. MSHA issued an ANPRM on September 25, 2002 to obtain additional information and to develop a proposed rule in 2003.

Statement of Need: As a result of the first partial settlement with the litigants, MSHA published two documents in the Federal Register on July 5, 2001. One document delayed the effective date of 57.5066(b) regarding the tagging provisions of the maintenance standard; clarified the effective dates of certain provisions of the final rule; and gave correction amendments.

The second document was a proposed rule to clarify 57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new paragraph (b)(3) to 57.5067 regarding the transfer of existing diesel equipment from one underground mine to another underground mine. The final rule on these issues was published February 27, 2002, and became effective March 29, 2002.

As a request of the second partial settlement agreement, MSHA also agreed to proposed specific changes to the 2001 DPM final rule. On September 25, 2002, MSHA published an Advance Notice of Proposed Rulemaking (ANPRM) (67 FR 60199). In response to commenters, MSHA intends at this time to propose changes only to the interim DPM standard of 400 micrograms per cubic meter of air. In a separate rulemaking, the Agency will propose a rule to revise the final concentration limit of 160 micrograms per cubic meter of air pursuant to the DPM settlement agreement. The scope of both rulemakings is limited to the settlement agreement. The current rulemaking addresses the following provisions:

57.5060(a)--Propose to change the existing DPM surrogate from total carbon to elemental carbon; propose that a single personal sample of miner's exposure would be an adequate basis for MSHA compliance determinations; and propose the current hierarchy of controls that MSHA applies in its existing metal and nonmetal exposure based health standards for abating violations.

57.5060(c)--Propose to adapt to the interim limit the existing provision that allows mine operators to apply to the Secretary for additional time to come into compliance with the final concentration limit. MSHA also agreed to propose to include consideration of economic feasibility, and to allow for annual renewals of such special extensions.

57.5060(d)--This existing provision permits miners to engage in certain activities in concentrations exceeding the interim and final limits upon application and approval from the Secretary. MSHA asked commenters if this provision should be removed since the Agency agreed to propose the existing hierarchy of controls.

57.5060(e)--MSHA agreed to propose to remove the existing prohibition on the use of personal protective equipment.

57.5060(f)--MSHA agreed to propose to remove the prohibition on the use of administrative controls.

57.5061(b)--MSHA is proposing to change the reference from ``total carbon'' to ``elemental carbon.''

57.5061(c)--MSHA is proposing to delete the references to ``area'' and ``occupational'' sampling for compliance.

57.5062--MSHA agreed to propose revisions to the existing diesel control plan.

Summary of Legal Basis: Promulgation of these regulations is authorized by sections 101 and 103 of the Federal Mine Safety and Health Act of 1977.

Alternatives: This rulemaking action is a result of the parties' settlement agreement. This action will not decrease protection for miners.

Anticipated Cost and Benefits: MSHA's preliminary economic analysis indicates minimum costs to the mining industry.

Risks: Several epidemiological studies have found that exposure to diesel exhaust presents potential health risk to the miners. These potential adverse health effects range from headaches and nausea to respiratory disease and cancer. In the confined space of the underground mining environment, occupational exposure to diesel exhaust may present a greater hazard due to ventilation limitations and the presence of other airborne contaminants, such as toxic mine dusts or mine gases. We believe that the health evidence forms a reasonable basis for reducing miners' exposure to diesel particulate matter. Proceeding with rulemaking on the provisions discussed above will more effectively reduce miners exposure to DPM.

Action                                 DFR Cite

ANPRM           67 FR 60199                                    09/25/02
ANPRM Comment Period End                                       11/25/02
NPRM            68 FR 48668                                    08/14/03
NPRM Comment Period End                                        10/14/03
Final Action                                                   03/00/04

Regulatory Flexibility Analysis Required: Yes

Government Levels Affected: None

Agency Contact: Marvin W. Nichols Jr.
Director, Office of Standards
Department of Labor
Mine Safety and Health Administration
1100 Wilson Boulevard, Room 2350
Arlington, VA 22209
Phone: 202 693-9440
Fax: 202 693-9441

RIN: 1219-AB29


Phone: (202) 693-9400

Fax-on-demand: (202) 693-9401