[Federal Register Volume 63, Number 171 (Thursday, September 3, 1998)]
[Proposed Rules]
[Pages 47123-47126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-23348]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 70, 71, and 90

RIN 1219-AA98


Improving and Eliminating Regulations; Calibration and 
Maintenance Procedures for Coal Mine Respirable Dust Samplers

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Proposed rule; technical amendment.

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SUMMARY: MSHA has revised and updated its Informational Report No. 1121 
(IR 1121) to include currently approved sampling equipment and to 
permit the use of fast-response calibrators having a volumetric tube. 
The updated document is Informational Report No. 1240 (IR 1240). This 
proposed rule would update the existing incorporation by reference of 
IR 1121 in MSHA's coal mine respirable dust standards to reference IR 
1240.

DATES: Submit all comments by November 2, 1998.

ADDRESSES: Send comments by mail to Patricia W. Silvey, Director, 
Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson 
Boulevard, Room 631, Arlington, VA 22203; by facsimile to MSHA, Office 
of Standards, Regulations, and Variances at 703-235-5551; or by E-mail 
to [email protected]. MSHA encourages commenters sending written 
comments by mail or facsimile to also send a computer disk of the 
comments. Submit written comments on the information collection 
requirements to the Office of Information and Regulatory Affairs, 
Office of Management and Budget (OMB), Attention: Desk Officer for 
MSHA, 725 17th Street NW., Room 10235, Washington, DC 20503.

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

SUPPLEMENTARY INFORMATION:

I. Discussion of Proposal

    Existing coal mining regulations Secs. 70.204, 71.204, and 90.204 
in title 30 of the Code of Federal Regulations (30 CFR) require that 
approved respirable dust sampling devices be calibrated in accordance 
with MSHA Informational Report No. 1121 (IR 1121) ``Standard 
Calibration and Maintenance Procedures for Wet Test Meters and Coal 
Mine Respirable Dust Samplers (Supersedes IR 1073).'' These

[[Page 47124]]

regulations state that amendments to IR 1121 will be announced in the 
Federal Register. This proposed rule would update the incorporation by 
reference of MSHA IR 1121, with the most recent revision ``IR 1240'' 
entitled, ``Calibration and Maintenance Procedures for Coal Mine 
Respirable Dust Samplers.'' This proposed rule, like the existing rule, 
contains information collection requirements subject to the Paperwork 
Reduction Act of 1995. MSHA has submitted the information collection 
request to OMB for approval.
    IR 1240 addresses improved technology and describes the standard 
procedures currently used by MSHA for calibration of approved personal 
samplers and associated equipment and for maintenance of this 
equipment. IR 1240 continues to require operators to record calibration 
parameters and results. MSHA encourages mine operators who store 
records electronically to provide a mechanism which will allow the 
continued storage and retrieval of records in the year 2000.
    IR 1240 includes the calibration and maintenance procedures for the 
newest approved sampling unit for collecting respirable coal mine dust 
which uses constant flow technology and a power source which is 
different from other approved sampling units. The constant flow 
technology permits the calibration of this unit without concern for 
flow fluctuations. IR 1240 notifies mine operators, and other 
interested parties, that such units are to be maintained as approved to 
ensure the accurate collection of respirable coal mine dust samples as 
required in 30 CFR 70, 71, and 90.
    IR 1240 also permits the use of fast-response calibrators for 
calibrating all approved sampling units. It takes only 1 to 2 minutes 
per unit to calibrate a sampling unit using this newer technology, as 
opposed to 30 minutes using the traditional calibration systems 
addressed in IR 1121.
    Copies of IR 1240 are available at MSHA, Coal Mine Safety and 
Health, Room 816, 4015 Wilson Boulevard, Arlington, VA 22203 and at 
each MSHA Coal Mine Safety and Health district and subdistrict office.

II. Paperwork Reduction Act

    The collection of information contained in this proposal is subject 
to review by OMB under the Paperwork Reduction Act of 1995 (PRA 95). 
The title, description, and respondent categories are discussed below 
with an estimate of the annual information collection burden.
    With respect to the following collection of information, MSHA 
invites comments on: (1) whether the proposed collection of information 
is necessary for proper performance of MSHA's functions, including 
whether the information would have practical utility; (2) the accuracy 
of MSHA's estimate of the burden of the proposed collection of 
information, including the validity of the methodology and assumptions 
used; (3) ways to enhance the quality, utility, and clarity of the 
information to be collected; and (4) ways to minimize the burden of the 
collection of information on respondents, including through the use of 
automated collection techniques, when appropriate, and other forms of 
information technology.
    Description: Proposed 30 CFR 70.204, 71.204, and 90.204 would 
require that approved respirable dust sampling devices be calibrated in 
accordance with MSHA Informational Report No. 1240 (IR 1240) 
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust 
Samplers.'' The calibration procedures for wet test meters and the 
bubble tube method which are described in IR 1240 both require data to 
be recorded as part of the calibration procedure. These two calibration 
methods are rarely used in the mining industry because (1) most mines 
that calibrate their own pumps now use instantaneous flow meters for 
this purpose; and (2) almost all but the largest underground mines send 
their pumps out to be calibrated, rather than calibrating them 
themselves.
    Description of Respondents: The respondents are mine operators. 
MSHA estimates that this information collection requirement affects 
about 900 coal mines and that these mines calibrate about 1,850 pumps 
per year.
    Information Collection Burden: The recording of calibration data is 
considered an information collection burden under PRA 95. MSHA 
estimates that it takes about 30 minutes to calibrate each pump using 
the bubble tube method, including recording calibration-related 
information and marking the pump flowmeter; that it takes about 3 
minutes (0.05 hour) to calibrate each pump with a fast-response 
calibrator and mark the pump flowmeter; and that pump calibration is 
done by the mine's technical staff at a cost of about $42 per hour. 
Further, MSHA estimates that 897 mines calibrate 1814 pumps with a fast 
response calibrator and three mines calibrate 36 pumps using the bubble 
tube method of pump calibration. The average time for pump calibration 
is 0.059 hour. MSHA anticipates that no mine operators use the wet test 
meter method of pump calibration.
    The total estimated annual information collection burden for pump 
calibration and marking the pump flowmeter is about 109 hours. The 
estimated annual cost for this information collection burden is about 
$4,580.
    MSHA estimates that most mine operators incurred the capital and 
start-up costs associated with pump calibration prior to October 1, 
1995. For the purpose of this analysis, however, MSHA estimates that 
about five new mines per year would purchase a fast-response 
calibrator. Fast-response calibrators cost about $900 and have a useful 
life of about 10 years. The annualization factor for an equipment life 
of 10 years is 0.142. The annual cost for calibrators is about $640.
    MSHA estimates that about 2010 mines send about 2040 pumps per year 
to an outside contractor for calibration and maintenance. This service 
includes pump calibration and marking the flowmeter; certification of 
pump calibration; cleaning and checking pump function; replacing worn 
or damaged parts; and shipping and handling. MSHA estimates that the 
average cost for this service is about $100 per pump. Fast-response 
calibrators also would require routine calibration and maintenance each 
year at a cost of about $100. The cost for these services is $204,500.
    The following chart summarizes MSHA's estimates for compliance with 
PRA 95.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                   Number of                                Number of      Number of responses                                    Total 
           Provision              respondents      Hours per response       responses         per respondent              Annual cost             hours 
--------------------------------------------------------------------------------------------------------------------------------------------------------
70.204(a), 71.204(a),                      900   0.059 (average).......            1849   2 (average)..........    $204,500 + $639 = $205,139       109 
 90.204(a).                                                                                                                                             
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[[Page 47125]]

The burden hours and costs associated with pump calibration and marking 
the flowmeter do not represent any increase for the mining industry 
because mine operators currently are required to perform these 
activities.
    Under section 3507(o) of PRA 95, the Agency has submitted a copy of 
this proposed rule to OMB for its review and approval of this 
information collection. Interested persons are requested to send 
comments regarding the burden estimates or any other aspect of the 
collection of information, including suggestions for reducing the 
burden, (1) directly to the Office of Information and Regulatory 
Affairs, OMB, Attention: Desk Officer for MSHA; 725 17th Street NW., 
Room 10235; Washington, DC 20503, and (2) to Patricia W. Silvey, 
Director; Office of Standards, Regulations, and Variances, MSHA; 4015 
Wilson Boulevard, Room 631; Arlington, VA 22203.

III. Executive Order 12866

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of regulations. MSHA estimates that the cost 
impact of the proposed rule is the same as under the existing rule. The 
primary benefit of the proposed rule is that it provides mine operators 
alternatives in maintaining and calibrating dust sampling units. It 
takes only 1 to 2 minutes per unit to calibrate a sampling unit using 
this newer technology, as opposed to 30 minutes using the traditional 
calibration systems addressed in IR 1121. MSHA has determined that this 
proposed rule does not meet the criteria for a significant regulatory 
action and, therefore, has not prepared a separate analysis of costs 
and benefits. The analysis contained in this preamble meets MSHA's 
responsibilities under Executive Order 12866 and the Regulatory 
Flexibility Act.

IV. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires regulatory agencies 
to consider a rule's impact on small entities. Under the RFA, MSHA must 
use the Small Business Administration (SBA) definition for a small mine 
of 500 or fewer employees or, after consultation with the SBA Office of 
Advocacy, establish an alternative definition for the mining industry 
by publishing that definition in the Federal Register for notice and 
comment. Although MSHA traditionally has considered small mines to be 
those with fewer than 20 employees, MSHA has analyzed the impact of the 
proposed rule on mines with 500 or fewer employees for the purposes of 
the RFA.

Regulatory Flexibility Certification

    In accordance with Sec. 605 of the RFA, MSHA certifies that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. No small governmental 
jurisdictions or nonprofit organizations are affected.
    Under the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) amendments to the RFA, MSHA must include in the proposed rule 
a factual basis for this certification. The Agency also must publish 
the regulatory flexibility certification in the Federal Register, along 
with its factual basis. The Agency believes that this analysis provides 
a reasonable basis for the certification in this case.
    The Agency has provided a copy of this proposed rule and regulatory 
flexibility certification statement to the SBA Office of Advocacy. In 
addition, MSHA will mail a copy of the proposed rule, including the 
preamble and regulatory flexibility certification statement, to all 
affected mines and miners' representatives.

Factual Basis for Certification

    MSHA used a qualitative approach in concluding that the proposed 
rule would not have a significant economic impact on a substantial 
number of small entities. This proposed rule updates the regulations to 
incorporate by reference the latest revision of an MSHA informational 
report describing the calibration and maintenance procedures for coal 
mine respirable dust sampling units. The benefit of updating provisions 
is that MSHA regulations would be clearer and reflect advances in 
technology. This proposed rule would have no economic impact on the 
mining industry. The cost impact on mines employing fewer than 20 
miners or those employing 500 or fewer miners would be the same as 
under the existing rule.

VI. Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995, as well 
as Executive Order 12875, this proposed rule does not include any 
Federal mandate that may result in increased expenditures by State, 
local, and tribal governments, or by the private sector.

V. Executive Order 13045

    In accordance with Executive Order 13045, Protection of Children 
from Environmental Health Risks and Safety Risks, MSHA has evaluated 
the environmental health and safety risks of the proposed rule on 
children. The Agency has determined that the proposed rule would have 
no effect on children.

VI. National Environmental Policy Act

    The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et. seq.) requires each Federal agency to consider the 
environmental effects of proposed actions and to prepare an 
Environmental Impact Statement on major actions significantly affecting 
the quality of the human environment. MSHA has reviewed the proposed 
standards in accordance with the requirements of NEPA, the regulations 
of the Council on Environmental Policy (40 CFR 1500), and the NEPA 
procedures of the Department of Labor (29 CFR 11). As a result of this 
review, MSHA has determined that this proposed rule would have no 
environmental impact.

List of Subjects in 30 CFR Parts 70, 71, and 90

    Coal mines, Incorporation by reference, Scientific equipment, Mine 
safety and health.

    Dated: August 24, 1998.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.

    Accordingly, under the authority of 30 U.S.C. 811 and for the 
reasons set out in the preamble, MSHA proposes to amend chapter I, 
title 30 of the Code of Federal Regulations as follows:

PART 70--[AMENDED]

    1. The authority citation for part 70 continues to read as follows:

    Authority: 30 U.S.C. 811, 813(h), 957, 961.

    2. The authority citation for subpart C is revised to read as 
follows:

    Authority: 30 U.S.C. 811, 813(h), 957, 961.

    3. Section 70.204 is amended by revising paragraphs (a) and (e) to 
read as follows:


Sec. 70.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and 
calibrated in accordance with MSHA Informational Report IR 1240 
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust 
Samplers (supersedes IR 1121)'' by a person certified in accordance 
with Sec. 70.203 (Certified person; maintenance and calibration).
* * * * *
    (e) MSHA Informational Report IR 1240 referenced in paragraph (a) 
of this section is incorporated by reference.

[[Page 47126]]

This incorporation by reference was approved by the Director of the 
Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. 
Copies may be inspected or obtained at MSHA, Coal Mine Safety and 
Health, 4015 Wilson Boulevard, Room 816, Arlington, VA 22203 and at 
each MSHA Coal Mine Safety and Health district and subdistrict office. 
Copies may be inspected at the Office of the Federal Register, 800 
North Capitol Street NW., Suite 700, Washington, DC.

PART 71--[AMENDED]

    4. The authority citation for part 71 continues to read as follows:

    Authority: 30 U.S.C. 811, 951, 957, 961.

    5. The authority citation for subpart C is revised to read as 
follows:

    Authority: 30 U.S.C. 811, 951, 957, 961.

    6. Section 71.204 is amended by revising paragraphs (a) and (e) to 
read as follows:


Sec. 71.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and 
calibrated in accordance with MSHA Informational Report IR 1240 
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust 
Samplers (supersedes IR 1121)'' by a person certified in accordance 
with Sec. 71.203 (Certified person; maintenance and calibration).
* * * * *
    (e) MSHA Informational Report IR 1240 referenced in paragraph (a) 
of this section is incorporated by reference. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
inspected or obtained at MSHA, Coal Mine Safety and Health, 4015 Wilson 
Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal Mine 
Safety and Health district and subdistrict office. Copies may be 
inspected at the Office of the Federal Register, 800 North Capitol 
Street NW., Suite 700, Washington, DC.

PART 90--[AMENDED]

    7. The authority citation for part 90 continues to read as follows:

    Authority: 30 U.S.C. 811, 813(h).

    8. The authority citation for subpart C is revised to read as 
follows:

    Authority: 30 U.S.C. 811, 813(h), 957.

    9. Section 90.204 is amended by revising paragraphs (a) and (e) to 
read as follows:


Sec. 90.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and 
calibrated in accordance with MSHA Informational Report IR 1240 
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust 
Samplers ``(supersedes IR 1121)'' by a person certified in accordance 
with Sec. 90.203 (Certified person; maintenance and calibration).
* * * * *
    (e) MSHA Informational Report IR 1240 referenced in paragraph (a) 
of this section is incorporated by reference. This incorporation by 
reference was approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be 
inspected or obtained at MSHA, Coal Mine Safety and Health, 4015 Wilson 
Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal Mine 
Safety and Health district and subdistrict office. Copies may be 
inspected at the Office of the Federal Register, 800 North Capitol 
Street NW., Suite 700, Washington, DC.

[FR Doc. 98-23348 Filed 9-2-98; 8:45 am]
BILLING CODE 4510-43-P