[Federal Register Volume 59, Number 107 (Monday, June 6, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-13664]


[[Page Unknown]]

[Federal Register: June 6, 1994]


_______________________________________________________________________

Part III

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 and Coal Mine 
Respirable Dust Standard Noncompliance Determinations; Notices
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, Department of Health and Human Services.

ACTION: Notice of public hearing.

-----------------------------------------------------------------------

SUMMARY: The Mine Safety and Health Administration (MSHA) and the 
National Institute for Occupational Safety and Health (NIOSH) will hold 
a joint public hearing to receive comments on the February 18, 1994, 
(59 FR 8357) notice addressing the joint finding by the Secretary of 
Labor and the Secretary of Health and Human Services that the average 
concentration of respirable dust to which each miner in the active 
workings of a coal mine is exposed can be measured accurately over a 
single shift. This hearing is being held pursuant to section 101 of the 
Federal Mine Safety and Health Act of 1977 (Mine Act). The hearing will 
be held in Morgantown, West Virginia.
    This notice should be read in conjunction with the notice on 
noncompliance determinations published separately by MSHA today 
elsewhere in the Federal Register.

DATES: All requests to make oral presentations for the record should be 
submitted at least 5 days before the hearing date. Immediately before 
the hearing, any unalloted time will be made available to persons 
making late requests. The public hearing will be held on Wednesday, 
July 6, 1994. The hearing will be held from 9 a.m. to 12 p.m.

ADDRESSES: The hearing will be held at the following location: 
Department of Energy, Morgantown Energy Technology Center (METC), room 
51-C, 3610 Collins Ferry Road, Morgantown, West Virginia 26507-0880.
    Send requests to make oral presentations to: Mine Safety and Health 
Administration, Office of Standards, Regulations and Variances, room 
631, 4015 Wilson Boulevard, Arlington, Virginia 22203.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations and Variances, MSHA, (703) 235-1910.

SUPPLEMENTARY INFORMATION: On February 18, 1994, the Secretary of Labor 
and the Secretary of Health and Human Services jointly published a 
notice in the Federal Register (59 FR 8357) announcing a new finding 
that the average concentration of respirable dust to which each miner 
in the active workings of a coal mine is exposed can be accurately 
measured over a single shift in accordance with section 202(f)(2) of 
the Federal Mine Safety and Health Act of 1977. Based on this finding, 
the Secretaries are proposing to rescind the finding issued on July 17, 
1971, and affirmed on February 23, 1972, which is discussed below.
    Concurrently, MSHA published a notice in the Federal Register (59 
FR 8356) announcing its intention to use both single, full-shift 
respirable dust measurements, and the average of multiple, full-shift 
respirable dust samples, to determine noncompliance and issue citations 
for violations of the respirable dust standard under the MSHA coal mine 
respirable dust program.
    The comment periods for these notices were scheduled to close on 
April 19, 1994, but, in response to requests from the mining community 
for additional time in which to prepare their comments, MSHA extended 
the comment period to May 20, 1994 (59 FR 16958).
    The purpose of the public hearing is to receive relevant comments 
and to answer questions concerning the notices. The hearing will be 
conducted in an informal manner by a panel of MSHA and NIOSH officials. 
Although formal rules of evidence or cross examination will not apply, 
the presiding official may exercise discretion to ensure the orderly 
progress of the hearing and may exclude irrelevant or unduly 
repetitious material and questions.
    The hearing will begin with an opening statement from MSHA and 
NIOSH, followed by an opportunity for members of the public to make 
oral presentations. The hearing panel will be available to address 
relevant questions. At the discretion of the presiding official, 
speakers may be limited to a maximum of 20 minutes for their 
presentations. In the interests of conducting a productive hearing, 
MSHA and NIOSH will schedule speakers in a manner that allows all 
points of view to be heard as effectively as possible.
    Verbatim transcripts of the proceedings will be prepared and made a 
part of the rulemaking record. Copies of the hearing transcripts will 
be made available to the public for review.
    MSHA and NIOSH will also accept for the record additional written 
comments and other appropriate data from any interested party, 
including those not presenting oral statements. Written comments and 
data submitted to MSHA or NIOSH will be included in the rulemaking 
record. To allow for the submission of any post-hearing comments, the 
record will remain open until August 5, 1994.

Issues

Rescission of Joint 1971/1972 Finding

    Comments received to date have reflected some confusion over the 
MSHA and NIOSH decision to rescind the 1971 Notice of Finding which was 
affirmed in 1972. On July 17, 1971, a Notice of Finding under section 
202(f)(2) of the Mine Act was published by the Secretaries of the 
Interior and Health, Education, and Welfare (36 FR 13286, July 17, 
1971). This finding was based on an analysis of mine operator dust 
sample results from 2,179 working sections in compliance with the dust 
standard. Specifically, the average concentration of all 10 full-shift 
samples submitted from each working section under the regulations in 
effect at the time (referred to as ``basic samples'') ``* * * was 
compared with the average of the two most recently submitted samples * 
* *, then to the three most recently submitted samples, then to the 
four most recently submitted samples, etc.''
    In discussing the results of these comparisons, the Secretaries 
stated that ``* * * the average of the two most recently submitted 
samples of respirable dust was statistically equivalent to the average 
concentration of the current basic samples for each working section in 
only 9.6 percent of the comparisons.'' The 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.''
    MSHA and NIOSH have concluded that the statistical analysis and the 
1971 Finding itself were not germane to the Congressional intent as 
stated in section 202(f) of the Mine Act. On examination, it can be 
seen that the conclusion reached in the notice is not consistent with 
the title of the notice. Specifically, the title of the notice 
published in 1971 and affirmed in 1972 states the following: ``Notice 
of Finding That Single Shift Measurements of Respirable Dust Will Not 
Accurately Represent Atmospheric Conditions During Such Shift''. The 
conclusion reached in the notice states that: ``* * * a single shift 
measurement would not, after applying valid statistical techniques, 
accurately represent the atmospheric conditions to which the miner is 
continuously exposed''. Section 202(f) specifies a finding focused on 
the ``atmospheric conditions on such shift,'' not the ``atmospheric 
conditions during which the miner is continuously exposed.'' The 
analysis did not address the accuracy of a single full-shift 
measurement in representing atmospheric conditions during the shift on 
which it was taken. Therefore, the 1971/1972 finding does not establish 
that a single-shift measurement is invalid.
    NIOSH and MSHA request additional comments on their decision to 
rescind the joint 1971/1972 finding and issue a new finding.

Accuracy of Single Full-Shift Measurements

    The proposed joint finding is based on NIOSH and MSHA's position 
that a sample taken in accordance with the provisions of 30 CFR parts 
70, 71, and 90 accurately represents the full-shift, average 
atmospheric dust concentration at the location where the sample is 
collected. These regulatory provisions were designed to assure that 
measurements taken with approved sampling devices in a prescribed 
manner would meet a level of accuracy acceptable to the Secretaries. 
Some commenters suggested that the joint finding was invalid because 
NIOSH and MSHA had no evidence that a single shift sample would 
accurately measure atmospheric conditions as required by section 
202(f).
    MSHA and NIOSH request further comments and data from the mining 
community concerning the accuracy of a single, full-shift respirable 
coal dust measurement.

    Dated: May 27, 1994.
J. Davitt McAteer,
 Assistant Secretary for Mine Safety and Health.
    Dated: May 31, 1994.
Linda Rosenstock,
Director, National Institute for Occupational Safety and Health.
[FR Doc. 94-13664 Filed 6-3-94; 8:45 am]
BILLING CODE 4570-43-P