[Federal Register Volume 66, Number 129 (Thursday, July 5, 2001)]
[Rules and Regulations]
[Pages 35518-35520]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16837]



[[Page 35517]]

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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Part 57



Diesel Particulate Matter Exposure of Underground Metal and Nonmetal 
Miners; Final Rule and Proposed Rule

  Federal Register / Vol. 66, No. 129 / Thursday, July 5, 2001 / Rules 
and Regulations  

[[Page 35518]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 57

RIN 1219-AB11


Diesel Particulate Matter Exposure of Underground Metal and 
Nonmetal Miners

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

ACTION: Final rule; partial delay of effective date; clarification of 
effective dates; and correction amendments.

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SUMMARY: This document gives notice of a delay of the effective date of 
30 CFR 57.5066(b) of the final rule addressing ``Diesel Particulate 
Matter Exposure of Underground Metal and Nonmetal Miners,'' published 
in the Federal Register on January 19, 2001 (66 FR 5706). The delayed 
provision concerns tagging equipment for maintenance purposes. This 
document also clarifies the applicability dates of other final rule 
provisions and makes corrections to the preamble and regulatory text.

DATES: The final rule as published on January 19, 2001 (66 FR 5706), 
and delayed on March 15, 2001 (66 FR 15033) and on May 21, 2001 (66 FR 
27863), will become effective July 5, 2001 except for Sec. 57.5066(b) 
which is delayed pending disposition of current litigation challenging 
the rule.
    The corrections in this document are effective July 5, 2001.
    MSHA also clarifies that, under the terms of the rule,Sec. 57.5061, 
Sec. 57.5062, and Sec. 57.5071, do not apply until Sec. 57.5060 
applies. As stated in the final rule published on January 19, 2001, 
Sec. 57.5060(a) will not apply until after July 19, 2002; and 
Sec. 57.5060(b) will not apply until after January 19, 2006. Sections 
57.5067, 57.5070, and 57.5075 apply insofar as they relate to 
requirements of the rule that are in effect.

FOR FURTHER INFORMATION CONTACT: David L. Meyer, Director; Office of 
Standards, Regulations, and Variances; MSHA, 4015 Wilson Boulevard, 
Arlington, Virginia 22203-1984. Mr. Meyer can be reached at [email protected] (E-mail), 703-235-1910 (Voice), or 703-235-5551 (fax).

SUPPLEMENTARY INFORMATION: On January 19, 2001, MSHA published a final 
rule addressing the exposure of underground metal and nonmetal miners 
to diesel particulate matter (66 FR 5706). The rule establishes new 
health standards for underground metal and nonmetal miners working at 
mines that use equipment powered by diesel engines. The rule is 
designed to reduce the risk to these miners of serious health hazards 
that are associated with exposure to high concentrations of dpm.
    The effective date of the rule was listed as March 20, 2001 (66 FR 
5706). Section 57.5060 of the rule establishes an interim concentration 
limit of 400 micrograms of dpm per cubic meter of air to become 
applicable after July 19, 2002, and a final concentration limit of 160 
micrograms of dpm per cubic meter of air to become applicable after 
January 19, 2006 (66 FR 5706, 5708, 5907). The rule also includes 
provisions on how the Secretary of Labor determines compliance with the 
concentration limits (Sec. 57.5061), what operators must do when they 
exceed the applicable concentration limit (Sec. 57.5062), and what 
operators must do to determine the concentration of dpm in their mines 
(Sec. 57.5071). The summary section of the preamble of the rule did not 
clearly specify the applicable date of these provisions on 
concentration limits, or of the associated recordkeeping requirements 
(Sec. 57.5075).
    On January 29, 2001, Anglogold (Jerritt Canyon) Corp. and Kennecott 
Greens Creek Mining Company filed a petition for review of the rule in 
the District of Columbia Circuit. On February 7, 2001, the Georgia 
Mining Association, the National Mining Association, the Salt 
Institute, and MARG Diesel Coalition filed a similar petition in the 
Eleventh Circuit. On March 14, 2001, Getchell Gold Corporation 
petitioned for review of the rule in the District of Columbia Circuit. 
The three petitions have been consolidated and are pending in the 
District of Columbia Circuit. The United Steelworkers of America (USWA) 
has intervened in the Anglogold case.
    While these challenges were pending, the Anglogold petitioners 
filed with MSHA an application for reconsideration and amendment of the 
final rule and to postpone the effective date of the final rule pending 
judicial review. The Georgia Mining petitioners similarly filed with 
MSHA a request for an administrative stay or postponement of the 
effective date of the rule. On March 15, 2001, MSHA delayed the 
effective date of the rule until May 21, 2001, in accordance with a 
January 20, 2001 memorandum from the President's Chief of Staff (66 FR 
15032). This delay was necessary to give Department of Labor officials 
the opportunity for further review and consideration of these new 
regulations. Ibid. On May 21, 2001 (66 FR 27863), MSHA published a 
notice in the Federal Register delaying the effective date of the final 
rule until July 5, 2001.
    After review of the rule, consideration of the applications filed 
with MSHA, and discussions with the affected parties, MSHA has 
determined to take the following actions:

I. Delay of Effective Date of 30 CFR 57.5066(b)

    MSHA grants the applications insofar as they request a delay of the 
effective date of 30 CFR 57.5066(b), Maintenance standards, relating to 
``tagging'' requirements. See 5 U.S.C. 705 (``When an agency finds that 
justice so requires, it may postpone the effective date of action taken 
by it, pending judicial review''). MSHA has determined that 
Sec. 57.5066(b) as written, may give rise to confusion and thereby may 
prove costly to mine operators without effectively furthering the 
rule's goal of protecting miners from dpm exposure. MSHA believes that 
a delay of this provision may assist the parties in negotiating an 
acceptable disposition of the current pending litigation. For these 
reasons, MSHA hereby delays the effective date of Sec. 57.5066(b). By 
separate notice published in today's Federal Register, MSHA will be 
initiating rulemaking on this delayed provision.

II. Clarification to the Final Rule Preamble

    In the preamble to the final rule, MSHA specified under the 
``dates'' caption that Sec. 57.5060(a), addressing the interim 
concentration limit of diesel particulate matter, will not apply until 
after July 19, 2002, and that Sec. 57.5060(b), addressing the final 
concentration limit of diesel particulate matter, will not apply until 
after January 19, 2006. MSHA clarifies that the applicable date of 
Sec. 57.5061, Compliance determinations, Sec. 57.5062, Diesel 
particulate matter control plan, and Sec. 57.5071, Environmental 
monitoring, will also apply after July 19, 2002, because these 
provisions are directly related to Sec. 57.5060(a). Section 57.5067, 
Engines; Sec. 57.5070, Miner training; and Sec. 57.5075, Diesel 
particulate records, apply insofar as they relate to the requirements 
of the rule that are in effect.

III. Corrections to Final Rule Preamble and Regulatory Text of 66 
FR 5706

    As discussed in the preamble to the final rule (66 FR 5706), 
proposed paragraph (c) of Sec. 57.5065 would have prohibited idling of 
mobile diesel powered equipment, except as required for normal mining 
operations. Although commenters generally agreed with MSHA's statement 
in the proposed rule,

[[Page 35519]]

that this requirement will aid in the reduction of dpm concentrations 
at the mine, they noted that the total amount of dpm emitted from this 
single source might have little effect on the levels of dpm in the 
overall mining environment. They also questioned the need for an idling 
restriction in light of the proposed concentration limits established 
in the regulation. Also, a commenter indicated that the provision was 
not necessary because mine operators, in an effort to comply with the 
applicable concentration limits, would be forced to institute work 
rules to this effect anyway. Moreover, as pointed out by commenters, 
nothing in the regulatory language prohibits operators from voluntarily 
restricting idling at the mine, eliminating the need to include this 
provision. The preamble further indicates that although MSHA is 
deleting this requirement from the final regulation, MSHA recommends as 
a best practice that mine operators do not allow miners to idle diesel-
powered equipment unnecessarily.
    After consideration of comments received during the comment period, 
as well as testimony presented at the public hearings, MSHA decided to 
delete the idling requirement from the final rule. However, MSHA 
inadvertently included this requirement in the final regulation. This 
document corrects this error, as well as other errors made in the 
preamble at the time of publication. These corrections are effective on 
July 5, 2001.

Procedural Requirements

    MSHA is of the view that these corrections to an inadvertent error 
in the final rule are not a rule to which the procedural requirements 
of 5 U.S.C. 553 apply, or the various statutes and executive orders 
relating to rules apply. If these corrections are a rule, however, 
notice and comment is not required based on the good cause exceptions 
in 5 U.S.C. 553(b)(B) and 553(d)(3). MSHA finds good cause not to 
provide further notice and comment in that additional notice and 
comment is unnecessary and contrary to the public interest because the 
public was advised in the preamble to the final rule of MSHA's 
intention to delete the idling requirement from the regulation. 
Consequently, unnecessary confusion may result if this correction is 
not made immediately. This document corrects this error, as well as 
other errors made in the preamble at the time of publication. These 
corrections are effective on July 5, 2001, the effective date of the 
final rule.
    These corrections contain no paperwork requirements to which the 
Paperwork Reduction Act applies. In addition, this action, if a rule, 
is not a ``significant regulatory action'' within the meaning of 
Executive Order 12866. Furthermore, this action is not a ``major rule'' 
within the meaning of the Small Business Regulatory Enforcement 
Fairness Act, or an ``unfunded mandate'' within the meaning of Title II 
of the Unfunded Mandates Reform Act of 1995. The action also will not 
have federalism implications within the meaning of Executive Order 
13132, and a regulatory flexibility analysis is not required by the 
Regulatory Flexibility Act. Additionally, in accordance with Executive 
Order 13211 regarding the energy effects of Federal regulations, MSHA 
has determined that this action does not have any adverse effects on 
energy supply, distribution, or use.
    Accordingly, MSHA makes the following corrections to the final rule 
published on January 19, 2001:

I. Printing Errors in the Preamble

    The following corrections to the preamble in the Federal Register 
issue of January 19, 2001 (66 FR 5706), are made:
    1. On page 5776, columns 7-8, line 7, change ``SMR = 0.86 for taxi 
drivers (*)'' to ``SMR = 0.86 for taxi drivers''.

    2. On page 5776, columns 7-8, line 11, change ``SMR = 1.59 for 
truck drivers'' to ``SMR = 1.59 for truck drivers (*)''.

    3. On page 5776, columns 7-8, line 16, change ``SMR = 1.59 for 
(*)'' to ``SMR = 1.59 for''.

    4. On page 5776, columns 7-8, line 17, change ``railroad work- 
(*)'' to ``railroad work-''.

    5. On page 5776, columns 7-8, line 19, change ``RR = 2.60 for'' to 
``RR = 2.60 for (*)''.
    6. On page 5776, columns 7-8, line 21, change ``RR = 2.67 for'' to 
``RR = 2.67 for (*)''.

    7. On page 5776, columns 7-8, line 39, change ``RR = 1.40 for 15'' 
to ``RR = 1.40 for 15 (*)''.

    8. On page 5778, columns 7-8, line 1, change ``SMR = 1.01 for (*)'' 
to ``SMR = 1.01 for''.

    9. On page 5779, columns 9-10, line 22, change ``any occupa- (*)'' 
to ``any occupa-''.

    10. On page 5779, columns 9-10, line 23, change ``tional diesel 
(*)'' to ``tonal diesel''.

    11. On page 5779, columns 9-10, line 24, change ``exposure dur- 
(*)'' to ``exposure dur-''.

    12. On page 5779, columns 9-10, line 25, change ``ing lifetime. 
(*)'' to ``ing lifetime.''

    13. On page 5779, columns 9-10, line 26, change ``OR = 1.56 for'' 
to ``OR = 1.56 for (*)''.

    14. On page 5779, columns 9-10, line 31, change ``OR = 2.88 for >'' 
to ``OR = 2.88 for > (*)''.

    15. On page 5779, columns 9-10, line 36, change ``OR = 6.81 for >'' 
to ``OR = 6.81 for > (*)''.

    16. On page 5779, columns 9-10, line 40, change ``OR = 4.30 for >'' 
to ``OR = 4.30 for > (*)''.

    17. On page 5779, columns 9-10, line 52, change ``RR = 1.9 for non- 
(*)'' to ``RR = 1.9 for non-''.

    18. On page 5779, columns 9-10, line 56, change ``RR = 4.5 for non-
'' to ``RR = 4.5 for non- (*)''.

    19. On page 5781, columns 9-10, line 1, change ``OR = 3.5 for (*) 
to ``OR = 3.5 for''.

    20. On page 5781, columns 9-10, line 3, change ``OR = 1.6 for'' to 
``OR = 1.6 for (*)''.

    21. On page 5781, columns 9-10, line 19, change ``OR = 1.27 for 
(*)'' to OR = 1.27 for''.

    22. On page 5781, columns 9-10, line 29, change ``OR = 1.89 for'' 
to ``OR = 1.89 (*)''.

    23. On page 5804, in the second table, ``Main Results from Saverin, 
et al.,'' column 1, line 4, change `` 6.1'' to 
``6.1''.

    24. On page 5806, column 1, first paragraph, line 4, change 
``6.1'' to ``6.1''.

II. Additional Corrections to the Preamble

    The following additional corrections to the preamble in the final 
rule published on January 19, 2001 (66 FR 5706), are made:

    1. On page 5718, column 1, second paragraph, line 8, insert a 
quotation mark after the word ``engines''.

    2. On page 5729, column 2, second paragraph, line 14, change ``0.45 
mg/3'' to ``0.45 g/m3''

    3. On page 5747, column 2, first paragraph, line 12, delete 
sentence, ``To further reduce miners' exposure to diesel exhaust, the 
final rule prohibits operators from unnecessary idling diesel-powered 
equipment.''

    4. On page 5755, change the title of the figure from ``Figure 1'' 
to ``Figure III-1''.

    5. On page 5757, change the title of the figure from ``Figure 2'' 
to ``Figure III-2''.

    6. On page 5760, change the title from ``Figure 3'' to ``Figure 
III-3''.

    7. On page 5778, Footnote (a), change ``a RR = Relative 
Risk; SMR =

[[Page 35520]]

Standardized Mortality Ratio. Values greater than 1.0 indicate excess 
prevalence of lung cancer associated with diesel exposure.'' to 
``a RR = Relative Risk; SMR = Standardized Mortality Ratio; 
SMOR = Standardized Mortality Odds Ratio. Values greater than 1.0 
indicate excess prevalence of lung cancer associated with diesel 
exposure.''

    8. On page 5827, change the title of the figure from ``Figure'' to 
``Figure III-5''.

    9. On page 5827, at the end of the figure caption insert ``(Cohen 
and Higgins, 1995)''.

    10. On page 5828, change title of the figure from ``Figure'' to 
``Figure III-6''.

    11. On page 5860, column 1, third paragraph, line 10, delete the 
phrase, ``limits on unnecessary idling of diesel engines,''

    12. On page 5871, column 1, first paragraph, delete the following 
sentence: ``As noted in Part II, the necessary sampling equipment is 
commercially available.''

    13. On page 5874, column 3, second paragraph, change 
``Sec. 57.5021'' to read ``Sec. 57.5065''.

    14. On page 5886, column 1, lines 6 and 7, remove ``3/4''.

    15. On page 5887, column 3, second paragraph, line 7, change 
``$17.8 billion'' to ``$10.5 billion''.

    16. On page 5887, column 3, second paragraph, line 9, change ``22.2 
billion'' to ``29.5 billion''.

    17. On page, 5887, column 3, second paragraph, line 11, change ``$8 
billion'' to ``$15.3 billion''.

    18. On page 5887, column 3, Footnote 7, replace ``U.S. Department 
of Energy, Energy Information Administration, Annual Energy Review 
1998, July 1999, pp. 3, 6, 142, 158, and 160,'' with ``U.S. Department 
of the Interior, U.S. Geological Survey, Mineral Commodity Summaries 
1999, pp. 6, 146, 148, 162, and 164.''

    19. On page 5890, column 1, fifth paragraph, line 9, delete the 
word ``proposed''.

    20. On page 5890, column 2, fourth paragraph, line 4, change 
``number 7).'' to ``number 2(C)).''

    21. On page 5890, column 2, fifth paragraph, line 5, change ``1219-
AA74'' to ``1219-AB11''.

    22. On page 5890, column 3, fourth paragraph, line 4, change 
``employees 3/4 those'' to ``employees--those''.

    23. On page 5899, column 2, fourth paragraph, line 2, change 
``3,571'' to ``6,047.''

    24. On page 5899, column 2, fourth paragraph, line 3, change 
``$171,926'' to ``$223,982.''

    25. On page 5899, column 2, fourth paragraph, line 5, change 
``526'' to ``2,929.''

    26. On page 5899, column 2, fourth paragraph, line 6, change 
``$21,871'' to ``$87,569.''

PART 57--[CORRECTED]

III. Corrections to the Regulatory Text

    The following corrections to the regulatory text of 30 CFR Part 57, 
the final rule published on January 19, 2001, (66 FR 5706), are made:

    1. On page 5907, column 1, Table of Contents, correct the entry 
``57.5065 Fueling and idling practices.'' to ``57.5065 Fueling 
practices.''

    2. On page 5908, column 3, Sec. 57.5065, correct the section title 
to read, ``Fueling practices;'' and remove paragraph (c).

    Signed at Arlington, VA, this 29th day of June 2001.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 01-16837 Filed 7-3-01; 8:45 am]
BILLING CODE 4510-42-P