[Federal Register Volume 64, Number 153 (Tuesday, August 10, 1999)]
[Rules and Regulations]
[Pages 43283-43286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20409]


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

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: Final rule; technical amendment.

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

SUMMARY: We (MSHA) have revised and updated our 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) 
entitled, ``Calibration and Maintenance Procedures for Coal Mine 
Respirable Dust Samplers.'' This final rule updates the existing 
incorporation-by-reference of IR 1121 in MSHA's coal mine respirable 
dust standards to reference IR 1240.

EFFECTIVE DATE: This regulation is effective October 12, 1999. The 
incorporation-by-reference of the publication listed in the rule is 
approved by the Director of the Federal Register as of October 12, 
1999.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director; 
Office of Standards, Regulations, and Variances, MSHA; 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Regulatory Background

    In response to the Administration's regulatory reinvention 
initiative, we conducted a review of existing regulations to identify 
obsolete, outdated, redundant, or unnecessary provisions that could be 
removed or revised without reducing protection afforded miners. This 
final rule is part of our ongoing plan to improve our regulations. It 
updates the incorporation-by-reference of IR 1121, with the most recent 
revision, IR 1240. IR 1240 allows mine operators to use advanced 
technology without reducing protection to miners.
    On September 3, 1998, we published a proposed rule in the Federal 
Register (63 FR 47123) requesting public comment on our intention to 
update the incorporation-by-reference in title 30 of the Code of 
Federal Regulations (30 CFR) Secs. 70.204, 71.204, and 90.204. We 
allowed 60 days for public comment and received no comments, no 
requests for an extension of the comment period, and no requests for a 
public hearing.
    To increase awareness of this regulatory action, MSHA will mail a 
copy of this final rule to all operators and miners' representatives 
and will post it and IR 1240 on MSHA's Website at www.msha.gov.

II. Discussion of Final Rule

    Existing coal mining regulations Secs. 70.204, 71.204, and 90.204 
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 regulations 
further state that amendments to IR 1121 will be announced in the 
Federal Register. This final rule updates the incorporation-by-
reference of IR 1121, with the most recent revision, IR 1240, which is 
entitled ``Calibration and Maintenance Procedures for Coal Mine 
Respirable Dust Samplers.''
    IR 1240 addresses improved technology and describes the standard 
procedures that MSHA currently uses 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 and 
thereafter.
    IR 1240 includes the calibration and maintenance procedures for the 
newest approved sampling unit for collecting respirable coal mine dust. 
This sampling unit 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. In addition, IR 1240 cautions mine operators and 
other interested parties to maintain such units as approved so as to 
ensure the accurate collection of respirable coal mine dust samples. 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; at each 
MSHA

[[Page 43284]]

Coal Mine Safety and Health district and subdistrict office; and on 
MSHA's Home Page at www.msha.gov.

III. Paperwork Reduction Act

    This final rule, like the existing rule, contains information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(PRA 95). MSHA submitted the proposed information collection request to 
OMB for its review and approval under Sec. 3507(o) of PRA 95. OMB 
reviewed and approved the collection of information under OMB Control 
Number 1219-0128. This section contains a description of the 
information collection requirement, the respondent categories, and the 
annual information collection burden.

Description

    Final 30 CFR 70.204, 71.204, and 90.204 require that approved 
respirable dust sampling devices be calibrated in accordance with IR 
1240 ``Calibration and Maintenance Procedures for Coal Mine Respirable 
Dust Samplers.'' Calibration of sampling units requires data to be 
recorded as part of the calibration procedure. Most mines that 
calibrate their own pumps now use instantaneous flow meters for this 
purpose; and almost all but the largest underground mines send their 
pumps out to be calibrated, rather than calibrating them themselves.

Respondents

    The respondents are mine operators. We estimate that this 
information collection requirement affects about 900 coal mines and 
that these mines calibrate about 1,850 pumps per year. Further, MSHA 
estimates that 897 of these mines calibrate 1814 pumps with a fast 
response calibrator; that three mines calibrate 36 pumps using the 
bubble tube method of pump calibration; and that no mines use the wet 
test meter method of pump calibration.

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 (0.5 hour) to calibrate a pump using the bubble tube method, 
including recording calibration-related information and marking the 
pump flowmeter, and that it takes about 3 minutes (0.05 hour) to 
calibrate each pump with a fast-response calibrator and mark the pump 
flowmeter. The average time for pump calibration is 0.059 hour. The 
mine's technical staff usually does the pump calibration, if it's done 
at the mine, at a cost of about $42 per hour.
    The total estimated annual information collection burden for pump 
calibration and marking the pump flowmeter is about 109 hours with an 
associated cost of about $4,580.
    We estimate that most mine operators incurred the capital and 
start-up costs associated with pump calibration prior to October 1, 
1995. 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 annualized cost for calibrators, therefore, is 
about $128 per calibrator. For the purpose of this analysis, we 
estimate that about five new mines per year would purchase a fast-
response calibrator resulting in a total annualized capital cost of 
about $640.
    We estimate 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 require routine calibration and maintenance each year 
at a cost of about $100. The cost for calibration and maintenance of 
2040 pumps and five calibrators, therefore, is $204,500.
    The following chart summarizes MSHA's estimates for compliance with 
PRA 95.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Number of
                                                                        Number of        Number of      responses per      Hours per
                             Provision                                 respondents       responses        respondent        response       Total hours
                                                                                                          (average)        (average)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Calibration records................................................             900             1849                2            0.059              109
--------------------------------------------------------------------------------------------------------------------------------------------------------


 
                                                                           Annual cost of 5
                                                        Annual cost of         new mines
                                                       calibration for 5    acquiring fast-
Annual Cost of calibration for 2040 pumps @ $100 ea.     fast-response         response        Total annual cost
                                                      calibrators @ $100  calibrators @ $128
                                                              ea.           ea. annualized
----------------------------------------------------------------------------------------------------------------
$204,000............................................               $500                $640            $205,140
----------------------------------------------------------------------------------------------------------------

The burden hours and costs associated with pump calibratioin and 
marking the flowmeter do not represent any license for the mining 
industry because MSHA regulations currently require operators to 
perform these activities.

IV. Executive Order 12866

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of regulations. We estimate that the cost impact 
of the final rule is the same as under the existing rule. The primary 
benefit of the final 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 
final 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.

V. 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

[[Page 43285]]

employees, MSHA has analyzed the impact of the final 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 
final rule will 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, we must include in the final rule a 
factual basis for this certification. We also must publish the 
regulatory flexibility certification in the Federal Register, along 
with its factual basis. We believe that this analysis provides a 
reasonable basis for the certification in this case.
    We have provided a copy of this final rule and regulatory 
flexibility certification statement to the SBA Office of Advocacy. In 
addition, we will mail a copy of the final rule, including the preamble 
and regulatory flexibility certification statement, to all affected 
mines and miners' representatives.

Factual Basis for Certification

    We used a qualitative approach in concluding that the final rule 
would not have a significant economic impact on a substantial number of 
small entities. This final 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 final rule will 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 will 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 final rule does not include any Federal 
mandate that may result in increased expenditures by State, local, and 
tribal governments, or by the private sector.

VII. 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 final rule on 
children. The Agency has determined that the final rule would have no 
effect on children.

VIII. Executive Order 13084 Consultation and Coordination With 
Indian Tribal Governments

    The Agency has reviewed this final rule in accordance with 
Executive Order 13084, and certifies that the final rule does not 
impose substantial direct compliance costs on Indian tribal 
governments.

IX. Executive Order 12612  Federalism

    Executive Order 12612, regarding federalism, requires that 
agencies, to the extent possible, refrain from limiting state policy 
options, consult with states prior to taking any actions which would 
restrict state policy options, and take such actions only when there is 
clear constitutional authority and the presence of a problem of 
national scope. Since this rule does not limit state policy options, it 
complies with the principles of federalism and with Executive Order 
12612.

X. Executive Order 12630  Government Actions and Interference With 
Constitutionally Protected Property Rights

    This rule is not subject to Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights, because it does not involve implementation of a policy with 
takings implications.

XI. Executive Order 12988  Civil Justice Reform

    The Agency has reviewed Executive Order 12988, Civil Justice 
Reform, and determined that this rulemaking will not unduly burden the 
Federal court system. The regulation has been written so as to provide 
a clear legal standard for affected conduct, and has been reviewed 
carefully to eliminate drafting errors and ambiguities.

XII. 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 final actions and to prepare an Environmental 
Impact Statement on major actions significantly affecting the quality 
of the human environment. We have reviewed the final 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 final rule will have no environmental 
impact.

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

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

    Dated: August 3, 1999.
Marvin W. Nichols, Jr.,
Deputy 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 is amending chapter I, title 30 
of the Code of Federal Regulations, as follows.

PART 70--[AMENDED]

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

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

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

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

    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 (1996) 
``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 (1996) 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 71--[AMENDED]

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

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

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

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


[[Page 43286]]


    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 (1996) 
``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 (1996) 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 (1996) 
``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 (1996)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. 99-20409 Filed 8-9-99; 8:45 am]
BILLING CODE 4510-43-P