[Federal Register Volume 59, Number 34 (Friday, February 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3592]


[[Page Unknown]]

[Federal Register: February 18, 1994]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention

 

Mine Shift Atmospheric Conditions; Respirable Dust Sample

AGENCIES: Mine Safety and Health Administration, Labor, National 
Institute for Occupational Safety and Health, Centers for Disease 
Control and Prevention, HHS.

ACTION: Notice.

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SUMMARY: This notice announces that the Secretary of Labor and the 
Secretary of Health and Human Services1 (the Secretaries) find 
that the average concentration of respirable dust to which each miner 
in the active workings of a coal mine is exposed can be measured over a 
single shift in accordance with section 202(f)(2) of the Federal Mine 
Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq. Based 
on this finding, the Secretaries propose to rescind the notice of 
finding which was published on July 17, 1971, and affirmed on February 
23, 1972. This finding is governed by the provisions of section 101 of 
the Mine Act. This notice should be read in conjunction with the notice 
published separately by the Mine Safety and Health Administration 
(MSHA) today elsewhere in the Federal Register.
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    \1\This notice is signed by the Assistant Secretary for Mine 
Safety and Health, and the Director, National Institute for 
Occupational Safety and Health under authority delegated to them by 
the Secretary of Labor and the Secretary of Health and Human 
Services.

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DATES: Written comments must be submitted on or before April 19, 1994.

ADDRESSES: Send written comments to the Mine Safety and Health 
Administration, Office of Standards, Regulations, and Variances, room 
631, Ballston Tower No. 3, 4015 Wilson Boulevard, Arlington, Virginia 
22203.

FOR FURTHER INFORMATION CONTACT: Ronald J. Schell, Chief, Division of 
Health, Coal Mine Safety and Health, Mine Safety and Health 
Administration, 4015 Wilson Boulevard, Arlington, Virginia 22203, (703) 
235-1358.

SUPPLEMENTARY INFORMATION: In accordance with section 202(f)(2) and 
under section 101 of the Mine Act, this notice is published jointly by 
the Secretaries of the Departments of Labor and Health and Human 
Services.

Statutory Framework

    Section 202(b) of the Mine Act requires that:

    Each operator shall continuously maintain the average 
concentration of respirable dust in the mine atmosphere during each 
shift to which each miner in the active workings of such mine is 
exposed at or below 2.0 milligrams of respirable dust per cubic 
meter of air.

    Section 202(f) of the Mine Act provides that:

    * * * the term average concentration means a determination which 
accurately represents the atmospheric conditions with regard to 
respirable dust to which each miner in the active workings of a mine 
is exposed (1) as measured during an 18 month period following the 
date of enactment of this Act, over a number of continuous 
productions shifts to be determined by the Secretary and the 
Secretary of Health, Education and Welfare, and (2) as measured 
thereafter, over a single shift only, unless the Secretary of Labor 
and the Secretary of Health, Education and Welfare find, in 
accordance with the provisions of Section 101 of the Act, that such 
single-shift measurement will not, after applying valid statistical 
techniques to such measurement, accurately represent such 
atmospheric conditions during such shift.

    The plain meaning of the statutory requirements show clear 
Congressional intent that the atmospheric conditions to which miners 
are exposed be maintained at or below the applicable standard during 
any single working shift. (The use of the term ``applicable standard'' 
recognizes that some mines have respirable dust in the mine atmosphere 
of the active workings that contains more than five percent quartz, and 
that, under the regulations of the Mine Safety and Health 
Administration at 30 CFR 70.101, 71.101 and 90.101, the applicable 
standard for respirable dust in those mines may be reduced because of 
the quartz content). This intent is also clearly reflected in the 
legislative history of the Coal Mine Health and Safety Act of 1969 
(Coal Act). The Senate Committee in its Report noted that the dust 
level should ``not exceed the specified standard during any shift'' 
(emphasis added). Senate Report No. 91-411, 91st congress, 1st Sess., 
p. 20. The Report also specified that:

    It is the Committee's intention that the average dust level at 
any job, for any miner, in any active working place during each and 
every shift, shall be no greater that the standard. Since some mine 
operations involve a varying pace of activity, the dust level could 
significantly differ from one shift to another. It is expressly 
noted, therefore, that the bill does not allow multiple shift 
averaging.

    However, the final version of the bill was amended by a joint House 
and Senate conference committee which mandated an 18 month period for 
the determination of ``average concentration'' over a number of 
continuous production shifts, and thereafter as measured over a single 
shift unless a specific finding was made pursuant to section 202(f) of 
the Coal Act that such measurements were not reliable. Thus, the 
statutory language clearly indicates that the use of multiple-shift 
averaging was not the preferred method of determining the average 
concentration. The National Institute for Occupational Safety and 
Health (NIOSH) and MSHA have jointly developed the finding set forth 
below.

Finding

    The Secretaries find that a single full-shift measurement, after 
applying valid statistical techniques to such measurement accounting 
for the precision of the analytical and sampling method, will 
accurately represent the atmospheric conditions with regard to the 
respirable dust concentration during the shift in which it was taken.

Rescission of the 1971 Notice

    Based on the preceding joint finding, the Secretaries propose to 
rescind the July 17, 1971, notice of finding (36 FR 13286) by their 
predecessors under the authority which is now section 202(f)(2) of the 
Mine Act. The 1971 Finding concluded that ``[a] single shift 
measurement of respirable dust would not, after applying valid 
statistical techniques to such measurement, accurately represent the 
atmospheric conditions to which the miner is continuously exposed.'' 
The finding did not address the average dust concentration during the 
shift the sample was taken. Comments were received and considered, and 
on February 23, 1972, the finding was affirmed by the then Secretaries 
of the Interior and of Health, Education, and Welfare (37 FR 3833). The 
Secretaries now propose to rescind the 1971 finding by superseding it 
with the new finding contained in this notice.

Comments

    MSHA and NIOSH specifically request that interested persons submit 
comments concerning this notice to the address listed above. Written 
comments submitted on or before April 19, 1994 will be considered 
before issuing a final finding.

    Dated: February 1, 1994.
Edward C. Hugler,
Acting Assistant Secretary for Mine Safety and Health.
    Dated: February 1, 1994.
Richard A. Lemen,
Acting Director, National Institute for Occupational Safety and Health.
[FR Doc. 94-3592 Filed 2-17-94; 8:45 am]
BILLING CODE 4510-43-M