[Federal Register Volume 66, Number 129 (Thursday, July 5, 2001)]
[Proposed Rules]
[Pages 35521-35523]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-16838]



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

[[Page 35521]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 57

RIN 1219-AB28


Diesel Particulate Matter Exposure of Underground Metal and 
Nonmetal Miners

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

ACTION: Proposed rule; notice of public hearing; close of record.

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SUMMARY: This proposed rule addresses two provisions of the Mine Safety 
and Health Administration's final rule pertaining to ``Diesel 
Particulate Matter Exposure of Underground Metal and Nonmetal Miners,'' 
published in the Federal Register on January 19, 2001 (66 FR 5706, RIN 
1219-AB11).\1\ The two provisions are Sec. 57.5066(b)(regarding the 
tagging provision of the Maintenance standard) and Sec. 57.5067(b) 
(regarding the definition of ``introduced'' in the Engine standard). 
This proposal gives notice of MSHA's intent to revise these two 
provisions and requests comments from the mining community.
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    \1\ On March 15, 2001, the effective date of the final rule was 
extended to May 21, 2001 (66 FR 15033). On May 21, 2001, the 
effective date was further extended until July 5, 2001 (66 FR 
27863). On July 5, 2001, MSHA delayed the effective date of 
Sec. 57.5066(b) (66 FR (to be added by the FR)).
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    By this document, the Agency is also announcing its intent to hold 
a public hearing pursuant to section 101 of the Federal Mine Safety and 
Health Act of 1977 (Mine Act).

DATES: Comments on the proposed rule must be received on or before 
August 6, 2001.
    The public hearing will be held on August 16, 2001 in Arlington, 
Virginia.
    If individuals or organizations wish to make an oral presentation 
for the record, submit your request at least 5 days prior to the 
hearing date. However, you do not have to make a written request to 
speak. Any unalloted time will be made available for persons making 
same-day requests.
    The rulemaking record will close August 20, 2001.

ADDRESSES: Comments on the proposed rule may be transmitted by 
electronic mail, fax, or mail. Comments by electronic mail must be 
clearly identified as such and sent to this e-mail address: 
[email protected]. Comments by fax must be clearly identified as such 
and sent to: MSHA, Office of Standards, Regulations, and Variances, 
703-235-5551. Send comments by mail to: MSHA, Office of Standards, 
Regulations, and Variances, Room 631, 4015 Wilson Boulevard, Arlington, 
VA 22203-1984.
    You may use mail, fax or electronic mail to send us your request to 
make an oral presentation at the public hearing.
    The hearing will begin at 9:00 a.m. and will be held at:The U.S. 
Department of Labor,Mine Safety and Health Administration,7th Floor 
Conference Room,4015 Wilson Boulevard,Arlington, Va 22203.
    This proposed rule is available on MSHA's webpage at http://www.msha.gov, under Statutory and Regulatory Information.

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:

I. Background

    On January 19, 2001 (66 FR 5706), MSHA published a final rule 
addressing the exposure of underground metal and nonmetal miners to 
diesel particulate matter (dpm). The final 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 final rule 
was to become effective on March 20, 2001.
    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 (66 FR 15033), MSHA 
delayed the effective date of the final rule until May 21, 2001, in 
accordance with a January 20, 2001 memorandum from the President's 
Chief of Staff (66 FR 7702). This delay was necessary to give 
Department of Labor officials the opportunity for further review and 
consideration of these new regulations. On May 21, 2001 (66 FR 27863), 
MSHA published a document in the Federal Register delaying the 
effective date of the final rule until July 5, 2001.
    Elsewhere in this issue of the Federal Register, MSHA is publishing 
a final rule addressing the exposure of underground metal and nonmetal 
miners to diesel particulate matter. In the same Federal Register 
document, MSHA also delayed the effective date of one provision of the 
final rule, Sec. 57.5066(b) (regarding the tagging provision of the 
Maintenance standard) because MSHA believes it needs further 
clarification, and that the affected mining public could benefit from 
further dialogue. MSHA believes that this dialogue will both clarify 
the delayed provision and help ensure that it is effectively 
implemented, thus providing improved health protection for miners. MSHA 
also believes that the delay of the effective date of this provision 
will assist the parties in negotiating an acceptable disposition of the 
current pending litigation.
    This proposed rule also has been developed to revise the language 
of Sec. 57.5066(b) (regarding the tagging provision of the Maintenance 
standard) and to add a new paragraph (b)(3) to Sec. 57.5067(b) 
(regarding the definition of the term ``introduced'' in the Engine 
standard) of MSHA's final rule addressing the exposure of underground 
metal and nonmetal miners to diesel particulate matter.
    MSHA believes that the issues surrounding the two provisions need 
further input from the public. MSHA will consider all comments on the 
delayed provision and on the issue of ``introduced'' currently within 
the rulemaking record to the January 2001 final rule, as well as any 
other comments received on this proposed rule. Commenters are 
encouraged to submit their comments on or before August 6, 2001. Your 
comments will become a part of the official rulemaking record. 
Interested persons are encouraged to supplement written comments with 
computer files or disks; please contact MSHA with any questions about 
format.

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II. Proposed Rule

A. Section 57.5066(b) (Tagging Provision of Maintenance Standards)

    Paragraph (b)(1) of Sec. 57.5066(b) as published on January 19, 
2001, requires the operators of underground metal and nonmetal mines to 
authorize and require miners who operate diesel-powered equipment to 
affix a visible and dated tag to the equipment at any time the 
equipment operator notes any evidence that the equipment may require 
maintenance. Paragraph (b)(2) requires the mine operator to make 
certain that the tagged equipment be ``promptly'' examined by a person 
authorized by the mine operator to maintain diesel equipment, and 
prohibits removal of the tag until after the examination is completed. 
Paragraph (b)(3) requires that a log be retained of all equipment 
tagged. This provision specifically lists the information that mine 
operators must include in the log.
    MSHA proposes to revise Sec. 57.5066(b)(1) of the final rule to 
require that a mine operator authorize each miner who operates diesel-
powered equipment underground to affix a visible and dated tag to the 
equipment when the miner notes evidence that the equipment may require 
maintenance.
    MSHA is proposing to clarify the term ``evidence'' to mean 
``visible smoke or odor that is unusual for that piece of equipment 
under normal operating procedures, or obvious or visible defects in the 
exhaust emissions control system or in the engine affecting 
emissions''.
    Proposed paragraph (b)(2) would require that a mine operator ensure 
that any equipment tagged pursuant to this section is promptly examined 
by a person authorized by the mine operator to maintain diesel 
equipment, and that the affixed tag not be removed until after the 
examination has been completed. MSHA is proposing that the term 
``promptly'' means before the end of the next shift during which a 
qualified mechanic is scheduled to work.
    No change is proposed to the language in paragraph(b)(3).

B. Section 57.5067(b)(3) (Definition of ``Introduced'' in the Engine 
Provision)

    Paragraph (a) of Sec. 57.5067 of the final rule requires that any 
diesel engines added to the fleet of an underground metal or nonmetal 
mine in the future be either engines approved by MSHA under 30 CFR Part 
7 or 30 CFR Part 36 or engines that meet or exceed the applicable dpm 
emission requirements of the EPA. Diesel engines used in ambulances and 
firefighting equipment are specifically exempted in the final rule from 
this provision. Only engines approved by MSHA as permissible can be 
used in areas of the mine where permissible diesel equipment is 
required. The composition of the existing fleet in an underground metal 
and nonmetal mine is not impacted by the final rule. However, after the 
final rule's effective date, any engine introduced into the underground 
areas of the mine must be either MSHA approved or meet the applicable 
EPA requirements.
    Paragraph (b)(1) of Sec. 57.5067 of the final rule defines the term 
``introduced'' to mean any engine added to the underground inventory of 
engines of the mine in question, including an engine in newly purchased 
equipment; an engine in used equipment brought into the mine; and a 
replacement engine that has a different serial number than the engine 
it is replacing. MSHA did not intend, however, for this provision to 
require a mine operator who moves diesel-powered equipment from one 
underground mine to another underground mine operated by the same mine 
operator to obtain MSHA approval for the diesel engine pursuant to 30 
CFR part 7 or 30 CFR part 36, or meet or exceed the applicable dpm 
emission requirements of the EPA that are incorporated in paragraph (a) 
of Sec. 57.5067.
    MSHA proposes no change to paragraph (b)(2).
    Accordingly, MSHA proposes to add paragraph (b)(3) to Sec. 57.5067 
to clarify that a mine operator operating more than one underground 
mine may move a piece of diesel-powered equipment from one underground 
mine to another underground mine even though each underground mine 
operated by that same operator has a different mine identification 
number.

III. Impact Analyses

A. Cost and Benefits: Executive Order 12866

    There are no costs associated with this proposed rule. The costs 
shown in the Preliminary Regulatory Economic Analysis (PREA) were taken 
directly from the Regulatory Economic Analysis (REA) that supported the 
dpm final rule. These costs are repeated in the PREA in order to give a 
detailed account of the provisions as they were discussed in the REA 
that supported the dpm final rule. Because the costs in the PREA have 
already been accounted for in the REA that supported the dpm final 
rule, the PREA introduces no new or additional costs.
    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of intended regulations. MSHA determined that 
the DPM final rule (including the two provisions in the PREA) was not 
economically significant but was a significant regulatory action under 
Executive Order 12866.

B. Regulatory Flexibility Certification

    The Regulatory Flexibility Act (RFA) requires regulatory agencies 
to consider a rule's economic impact on small entities. Under the RFA, 
MSHA must use the Small Business Administration's (SBA's) criterion for 
a small entity in determining a rule's economic impact unless, after 
consultation with the SBA Office of Advocacy, MSHA establishes an 
alternative definition for a small mine and publishes that definition 
in the Federal Register for notice and comment. For the mining 
industry, SBA defines ``small'' as a mine with 500 or fewer workers. 
MSHA traditionally has considered small mines to be those with fewer 
than 20 workers. To ensure that the final rule conforms with the RFA, 
MSHA has analyzed the economic impact of the final rule on mines with 
500 or fewer workers (as well as on those with fewer than 20 workers). 
MSHA has concluded that the proposed rule would not have a significant 
economic impact on a substantial number of small entities.

C. Unfunded Mandates Reform Act of 1995

    For purposes of the Unfunded Mandates Reform Act of 1995, the 
proposed rule does not include any Federal mandate that may result in 
increased expenditures by State, local, or tribal governments, or 
increased expenditures by the private sector of more than $100 million.

D. Paperwork Reduction Act of 1995 (PRA)

    The proposed rule would impose no new or additional burden hours or 
related costs. Burden hours and related costs shown in the PREA were 
taken from the REA that supported the dpm final rule. These burden 
hours and costs were presented in the PREA in order to give a detailed 
account of the two provisions.

E. National Environmental Policy Act

    The National Environmental Policy Act (NEPA) of 1969 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 environment. MSHA 
has

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reviewed the proposed rule in accordance with NEPA requirements (42 
U.S.C. 4321 et seq.), the regulations of the Council of Environmental 
Quality (40 CFR part 1500), and the Department of Labor's NEPA 
procedures (29 CFR part 11). As a result of this review, MSHA has 
determined that this rule will have no significant environmental 
impact.

F. Executive Order 12630

    This proposed 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.

G. Executive Order 13045 Protection of Children From Environmental 
Health Risks

    In accordance with Executive Order 13045, MSHA has evaluated the 
environmental health and safety effects of the proposed rule on 
children. MSHA has determined that the rule will not have an adverse 
impact on children.

H. Executive Order 12988 (Civil Justice)

    MSHA has reviewed Executive Order 12988, Civil Justice Reform, and 
determined that the proposed rule will not unduly burden the Federal 
court system. The rule 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.

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

    MSHA certifies that the proposed rule will not impose substantial 
direct compliance costs on Indian tribal governments.

J. Executive Order 13132 (Federalism)

    MSHA has reviewed the proposed rule in accordance withExecutive 
Order 13132 regarding federalism and has determined that it does not 
have ``federalism implications.'' The proposed rule does not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''

K. Executive Order 13211 (Energy)

    MSHA has reviewed this proposed rule in accordance with Executive 
Order 13211 regarding the energy effects of Federal regulations and has 
determined that this proposed rule does not have any adverse effects on 
energy supply, distribution, or use. Therefore, no reasonable 
alternatives to this action are necessary.

IV. Conduct of Public Hearing

    The hearing will be conducted in an informal manner. 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, 
followed by an opportunity for members of the public to make oral 
presentations. The hearing panel may ask questions of speakers. At the 
discretion of the presiding official, the time allocated to speakers 
for their presentation may be limited.
    A verbatim transcript of the proceeding will be prepared and made a 
part of the rulemaking record. Copies of the transcript will be 
available to the public. The transcript will also be available on 
MSHA's webpage at http://www.msha.gov, under Statutory and Regulatory 
Information.
    MSHA will accept additional written comments and other appropriate 
data for the record from any interested party, including those not 
presenting oral statements. Written comments will be included in the 
rulemaking record.

V. Close of Record

    To allow for the submission of post-hearing comments, the 
rulemaking record will close on August 20, 2001.

List of Subjects in 30 CFR Part 57

    Diesel particulate matter, Metal and Nonmetal, Mine Safety and 
Health, Underground mines.

    It is proposed to amend Chapter I of Title 30 as follows:

PART 57--[AMENDED]

    1. The authority citation for part 57 continues to read as follows:

    Authority: 30 U.S.C. 811.

    2. Paragraphs (b)(1) and (b)(2) of Sec. 57.5066 are revised to read 
as follows:


Sec. 57.5066  Maintenance standards.

* * * * *
    (b)(1) A mine operator must authorize each miner operating diesel-
powered equipment underground to affix a visible and dated tag to the 
equipment when the miner notes evidence that the equipment may require 
maintenance in order to comply with the maintenance standards of 
paragraph (a) of this section. The term ``evidence'' means visible 
smoke or odor that is unusual for that piece of equipment under normal 
operating procedures, or obvious or visible defects in the exhaust 
emissions control system or in the engine affecting emissions.
    (2) A mine operator must ensure that any equipment tagged pursuant 
to this section is promptly examined by a person authorized to maintain 
diesel equipment, and that the affixed tag not be removed until the 
examination has been completed. The term ``promptly'' means before the 
end of the next shift during which a qualified mechanic is scheduled to 
work.
* * * * *
    3. Section 57.5067 is amended by adding paragraph (b)(3) to read as 
follows:


Sec. 57.5067  Engines.

* * * * *
    (b) * * *
    (3) The term ``introduced'' does not include the transfer of 
engines or equipment from the inventory of one underground mine to 
another underground mine operated by the same mine operator.

    Signed at Arlington, VA, this 29th day of June, 2001.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.
[FR Doc. 01-16838 Filed 7-3-01; 8:45 am]
BILLING CODE 4510-42-P