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[October 31, 2005 (Volume 70, Number 209)]
[Unified Agenda]
[Page 64918]

Department of Labor (DOL)
Mine Safety and Health Administration (MSHA)
[Final Rule Stage]



Regulatory Plan: This entry is Seq. No. 83 in part II of this issue of the Federal Register.


Priority: Other Significant

Legal Authority: 30 USC 811; 30 USC 813

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 established 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 was published on February 27, 2002 (67 FR 9180). MSHA issued an advance notice of proposed rulemaking (ANPRM) on September 25, 2002 (67 FR 60199) to obtain additional information and published a notice of proposed rulemaking (NPRM) in August 2003 (68 FR 48668). MSHA issued a final rule on June 6, 2005 (70 FR 32868) that revises MSHA's existing standards addressing diesel particulate matter (DPM) exposure in underground metal and nonmetal (M/NM) mines. The rule, among other things, changes the interim concentration limit measured by total carbon (TC) to a comparable permissible exposure limit (PEL) measured by elemental carbon (EC). MSHA is developing a rule to phase in implementation of the final limit.

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 (66 FR 35518).

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 (66 FR 35521). The final rule on these issues was published February 27, 2002, and became effective March 29, 2002.

As a result of the second partial settlement agreement, MSHA proposed specific changes to the 2001 DPM final rule. On September 25, 2002, MSHA published an ANPRM. In response to commenters, MSHA proposed and finalized changes only to the interim DPM standard of 400 micrograms per cubic meter of air. MSHA also committed to proposing a rule to revise the final DPM limit of 160 micrograms per cubic meter of air.

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

Alternatives: This rulemaking would amend and improve health protection from that afforded by the existing standard.

Anticipated Cost and Benefits: MSHA's preliminary economic analysis indicates that making the changes under consideration would result in a net cost savings to the mining industry.

Risks: A number of epidemiological studies have found that exposure to diesel exhaust presents potential health risks to 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

Final Action    67 FR 9180                                     02/27/02
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
Limited Reopenin69 FR 7881omment Period                        02/20/04
Limited Reopenin69 FR 7881omment Period End                    04/05/04
Final Action    70 FR 32868                                    06/06/05
Final Action Effective                                         07/06/05
Second NPRM     70 FR 53280                                    09/07/05
Notice of Public70 FR 53280                                    09/07/05
Close of Comment70 FR 53280                                    09/07/05
Request for Data70 FR 53280                                    09/07/05
Comment Period E70 FR 55018                                    09/19/05
Change of Public70 FR 55018ates                                09/19/05
Final Action                                                   05/00/06
Regulatory Flexibility Analysis Required: Yes

Small Entities Affected: Businesses

Government Levels Affected: None

Agency Contact: Rebecca J. Smith, Acting Director, Office of Standards,
Department of Labor, Mine Safety and Health Administration, 1100 Wilson
Boulevard, Room 2350, Arlington, VA 22209-3939
Phone: 202 693-9440
Fax: 202-693-9441

RIN: 1219-AB29