[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 9180-9184]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4611]



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Part IX





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

  Federal Register / Vol. 67, No. 39 / Wednesday, February 27, 2002 / 
Rules and Regulations  

[[Page 9180]]


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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: Final rule.

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SUMMARY: This final rule revises two provisions of the Mine Safety and 
Health Administration's (MSHA) existing 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).
    The two provisions are the evidence and tagging provisions of the 
Maintenance standard and the definition of introduced in the Engine 
standard. The revisions clarify the existing rule.

EFFECTIVE DATE: March 29, 2002.

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director; 
Office of Standards, Regulations, and Variances; MSHA, 4015 Wilson 
Boulevard, Arlington, Virginia 22203-1984. Mr. Nichols can be reached 
at [email protected] (E-mail), 703-235-5551 (Fax), or 703-235-
1910 (Voice). You may obtain copies of the final rule in alternative 
formats by calling this number. The alternative formats available are 
either a large print version of the final rule or the final rule in an 
electronic file on computer disk. You may obtain copies of this final 
rule from MSHA's website at http://www.msha.gov under Statutory and 
Regulatory Information.

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 established new health 
standards for underground metal and nonmetal miners working at mines 
that use equipment powered by diesel engines. The rule was 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 Court of Appeals. On February 7, 2001, 
the Georgia Mining Association, the National Mining Association, the 
Salt Institute, and the 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 
Court of Appeals. The three petitions have been consolidated and are 
pending in the District of Columbia Circuit Court of Appeals. The 
United Steelworkers of America (USWA) intervened in the litigation.
    While these challenges were pending, the Anglogold petitioner 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 petitioner 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 15032), 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 (Department) 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 further delaying the effective date of the 
final rule until July 5, 2001 to allow the Department an opportunity to 
continue negotiations to settle the legal challenges to the final rule.
    As a result of settlement negotiations, on July 5, 2001, MSHA 
published two notices in the Federal Register addressing the January 
19, 2001 final rule on dpm exposures of underground metal and nonmetal 
miners. One notice (66 FR 35518) delayed the effective date of 
Sec. 57.5066(b) regarding the evidence and the tagging provision of the 
Maintenance standard; clarified the effective dates of certain 
provisions of the final rule; and gave correction amendments. MSHA 
noted that its intent in delaying the effective date of final 
Sec. 57.5066(b) was to assist the parties in negotiating an acceptable 
disposition of the pending litigation.
    The proposed rule published in the Federal Register on July 5, 2001 
(66 FR 35521) would clarify in Sec. 57.5066(b)(1) and (b)(2) of the 
maintenance standards the terms promptly and evidence, as used in 
paragraphs (b)(1) and (b)(2), respectively. The proposed rule would 
also add a new paragraph (b)(3) to Sec. 57.5067 (regarding the 
definition of introduced in the Engine standard) to clarify that 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. The proposed rule allowed the 
affected mining community further opportunity to express its concerns 
to MSHA about these provisions of the January 2001 final rule.
    The comment period on the proposed rule closed on August 6, 2001. 
MSHA received comments from trade associations, organized labor, and 
individual mine operators. A public hearing was held in Arlington, 
Virginia, on August 16, 2001. The United Steelworkers of America 
presented the only oral testimony at this hearing. The rulemaking 
record closed on August 20, 2001.

II. Section-by-Section Discussion of This Final Rule

    The following section-by-section analysis explains this final rule 
and its effect on existing standards.

A. Section 57.5066, Maintenance standards

    Paragraph (b)(1) of this final Sec. 57.5066, as published on 
January 19, 2001, requires operators of underground metal and nonmetal 
mines to authorize and require that each miner operating diesel-powered 
equipment underground affix a visible and dated tag to the equipment at 
any time the miner notes evidence that the equipment may require 
maintenance to comply with the maintenance standards of paragraph (a) 
of Sec. 57.5066. However, the January 19, 2001 final rule did not 
specify the type of evidence MSHA intended for equipment operators to 
use to determine when the equipment must be tagged for prompt 
examination by an authorized person. The January 19, 2001 final rule, 
as published, could have resulted in equipment operators tagging a 
piece of diesel-powered equipment for reasons unrelated to diesel 
emissions. This was contrary to what MSHA intended, and the mining 
community requested that MSHA clarify the term evidence.
    Revised paragraph (b)(1) of Sec. 57.5066 is the same as the January 
19, 2001 final rule with the exception of the clarification of the term 
evidence. 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.''

[[Page 9181]]

    Commenters commended MSHA on proposing to clarify 
Sec. 57.5066(b)(1). Some commenters, however, suggested that MSHA make 
further modifications to the tagging requirements of the standard to 
avoid confusion with the tagging requirements of MSHA's safety standard 
for self-propelled mobile equipment at Sec. 57.14100(c), Safety 
defects; examination, correction and records.
    These commenters were concerned that a miner would operate a 
defective piece of equipment tagged under Sec. 57.14100(c), which 
requires tagged equipment to be removed from service until defects are 
corrected. Commenters feared that the two tags might be confused and 
tagged equipment could be removed unnecessarily or that unsafe 
equipment might not be removed. Section 57.14100(c) requires that:

    When defects make continued operation hazardous to persons, the 
defective items, including self-propelled mobile equipment, shall be 
taken out of service and placed in a designated area posted for that 
purpose, or a tag or other effective method of marking the defective 
items shall be used to prohibit further use until the defects are 
corrected.

    A commenter suggested that MSHA allow the mine operator to choose 
the means of identification for purposes of the dpm tag to avoid 
confusion with the tagging requirements of Sec. 57.14100(c). Other 
commenters suggested that the best way to reconcile Sec. 57.14100(c) 
and proposed Sec. 57.5066(b)(1) is by adding an additional paragraph 
(b)(3) to proposed Sec. 57.5066(b)(1), to allow a mine operator to 
incorporate the mine's procedures adopted pursuant to Sec. 57.14100 or 
allow the mine operator to develop an alternative system for 
identifying equipment referred to in the dpm standard. These commenters 
also suggested that the alternative system be subject to approval by 
the appropriate MSHA District Manager.
    By contrast, some commenters stated that the safety tag required 
under Sec. 57.14100(c) and the diesel emissions tag required under 
Sec. 57.5066(b)(1) will not create confusion among miners. These 
commenters noted that under Sec. 57.5066(b)(1), mine operators have the 
flexibility to design their own diesel emissions tag and that they can 
design the tag to be of a particular shape or color to avoid any 
confusion with the safety tag. These commenters noted, however, that it 
is essential for the final standard to continue to require that the 
diesel emissions tag be dated.
    MSHA considered the concerns raised by all of the commenters 
pertaining to the tagging requirements in the dpm standard. MSHA 
considered requiring a particular design for the diesel emissions tag, 
but chose not to impose an additional compliance burden upon operators 
because little, if any, safety and health benefit would be achieved. 
Additionally, MSHA believes that the possibility that miners will 
confuse the safety tag with the diesel emissions tag is remote. As 
noted by some commenters, proposed Sec. 57.5066(b)(1) does not specify 
the design of the diesel emissions tag which can be differentiated by 
size, color, or other obvious visual characteristics to avoid 
confusion. Under the proposed rule, MSHA left this decision to the 
discretion of the mine operator. Therefore, the final rule is the same 
as the proposed rule for the diesel emissions tag.
    A commenter suggested that MSHA provide the operator the option of 
either tagging the equipment as proposed, or allow the miner to include 
on the pre-shift inspection card that evidence was noted that the 
equipment might require maintenance related to the diesel engine. This 
commenter stated that the use of the pre-shift inspection card is 
allowed under Sec. 57.14100 and it could be used to meet the 
maintenance-related provision of the dpm regulation. This commenter 
also stated that this documentation would be available during 
compliance inspections.
    MSHA determined that the tagging requirement of Sec. 57.5066(b)(1) 
is both necessary and more protective than the alternative suggested by 
the commenter. The requirements of Sec. 57.5066(b)(1) and 
Sec. 57.14100(c) cannot be consolidated because these standards serve 
different purposes. The purpose of Sec. 57.14100(c) is to remove 
equipment from service if it poses a safety hazard to miners, whereas 
the purpose of Sec. 57.5066(b)(1) is to identify a potential exposure-
related problem that may require maintenance but does not justify 
removal from service.
    A commenter stated that an equipment operator is not a mechanic 
trained in diesel engine maintenance, and should not have the authority 
to tag out diesel equipment if the odor or visible smoke level of the 
equipment changes. This commenter stated that odor is not a reasonable 
distinguishing factor because multiple activities occurring throughout 
the working environment could emit a misleading smell. This commenter 
was also concerned that if the equipment operator became disgruntled 
that day, the equipment operator could tag the unit in question in 
order to delay operations. According to this commenter, if the 
equipment operator believes there is an irregularity in the machine, 
the equipment operator should inform the immediate supervisor. Then, 
the supervisor, the qualified mechanic, and the equipment operator 
would assess the unit to see if any action should be taken.
    MSHA acknowledges this commenter's concerns. However, the dpm rule 
does not require that the tagged equipment be removed from service. 
Consistent with the proposed rule, the final rule requires only that 
the equipment operator be authorized and required to note, by affixing 
a tag, a potential problem in a diesel-powered machine. It is also the 
responsibility of the mine operator to respond appropriately to the 
presence of the tag.
    MSHA reproposed paragraph (b)(1) to clarify the type of evidence 
that should alert the equipment operator to the fact that the equipment 
needs to be tagged for examination. This paragraph, as revised in the 
final rule, addresses the potential problem of disgruntled miners 
inappropriately tagging the dpm equipment. MSHA believes that, because 
equipment operators spend more time operating the equipment than other 
miners (such as mechanics), and are present when the equipment 
functions under the widest range of operating conditions, they are 
better able to detect emissions-related problems than are mechanics. It 
is MSHA's opinion that even though equipment operators may not be 
trained or qualified as diesel mechanics, they often recognize the 
difference between normal and abnormal equipment performance, 
especially as it relates to diesel particulate matter generation, which 
is often plainly visible or apparent (for example, black smoke while 
the equipment is under normal load).
    Some commenters suggested that, in terms of the evidence of diesel 
emission problems, MSHA replace the phrase ``under normal operating 
procedures'' with ``under normal operations.'' These commenters 
believed that their suggested language would clarify and simplify the 
rule. Other commenters, however, objected to the suggested change, 
noting that it could alter the purpose of the provision.
    MSHA agrees with those commenters who believe that the suggested 
change could alter the meaning of the provision. MSHA intends that the 
evidence of diesel emission problems relate to the operation of a 
particular piece of diesel equipment. On the other hand, the suggested 
phrase ``under normal operations'' could be construed as referring to 
the normal operating procedures of a particular mine as a whole. This 
is not MSHA's intent.

[[Page 9182]]

    Final paragraph (b)(2) of Sec. 57.5066, adopts the proposed 
language requiring that mine operators of underground metal and 
nonmetal mines make certain that any equipment tagged pursuant to this 
section is promptly examined by a person authorized to maintain diesel 
equipment, and that the tag not be removed until the examination has 
been completed. The mining community requested that MSHA clarify the 
term promptly as it appeared in the January 19, 2001 final rule. In 
response to commenters, MSHA proposed a revision to paragraph (b)(2) of 
Sec. 57.5066. MSHA proposed that the term promptly be clarified to 
mean, ``before the end of the next shift during which a qualified 
mechanic is scheduled to work.'' For example, an equipment operator, on 
the morning shift, tags a piece of diesel-powered equipment because it 
is emitting visible black smoke. The operator's qualified person who 
performs the maintenance checks on such equipment works at the mine 
only on the midnight shift. The mine operator must make certain that 
the qualified person examines the tagged equipment before the end of 
the midnight shift. In the interim, the mine operator can continue to 
use the equipment as long as the tag is not removed. MSHA's experience 
is that most underground metal and nonmetal mines have intermittent 
maintenance schedules. Maintenance at these mines may be conducted on 
the late night shift during periods of less production activities in 
the mine. MSHA received no comments specifically addressing this 
proposed change, and the language of the final rule is the same as the 
proposed rule.
    MSHA proposed no change to the language of paragraph (b)(3) of 
Sec. 57.5066 of the January 19, 2001 final rule, and MSHA received no 
comments addressing this provision. Final paragraph (b)(3) of 
Sec. 57.5066 continues to require that a mine operator retain a log of 
any equipment tagged pursuant to this section. The log must include the 
date the equipment is tagged, the date the equipment is examined, the 
name of the person examining the equipment, and any action taken as a 
result of the examination. The operator must retain the information in 
the log for a period of at least one year after the date the tagged 
equipment is examined.

B. Section 57.5067, Engines

    Paragraph (a) of Sec. 57.5067 of the January 19, 2001 final rule 
requires that any diesel engine added to the fleet of an underground 
metal or nonmetal mine after the effective date of the rule be approved 
by MSHA under 30 CFR part 7 or 30 CFR part 36, or meet or exceed the 
applicable dpm emission requirements of the Environmental Protection 
Agency (EPA) incorporated in paragraph (a) of the engines standard. 
Diesel engines used in ambulances and firefighting equipment are 
specifically exempted from this provision in the final rule.
    Paragraph (b)(1) of Sec. 57.5067 of the January 19, 2001 final rule 
states:

    (1) The term introduced means any engine added to the 
underground inventory of engines of the mine in question, including:
    (i) An engine in newly purchased equipment;
    (ii) An engine in used equipment brought into the mine; and
    (iii) A replacement engine that has a different serial number 
than the engine it is replacing.

Paragraph (b)(2) states:

    The term introduced does not include engines that were 
previously part of the mine inventory and rebuilt.

    Thus, the application of the term introduced in Sec. 57.5067 of the 
January 19, 2001 final rule required mine operators who transferred 
existing engines or 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 incorporated in paragraph (a) of the engine 
standard. This is contrary to what MSHA intended, and the mining 
community requested that MSHA clarify the definition of introduced.
    Accordingly, MSHA proposed to revise Sec. 57.5067 by adding a new 
paragraph (b)(3) to clarify that 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. MSHA proposed no change to paragraphs (b)(1) and (2) of the 
January 19, 2001 final rule, and no comments were received by MSHA on 
these provisions.
    In general, commenters supported the need to clarify the term 
introduced in paragraph (b)(3) of Sec. 57.5067. A number of commenters, 
however, suggested certain modifications to the proposed language. 
These commenters recommended that MSHA add ``or affiliated company or 
corporate entities of that operator'' at the end of proposed paragraph 
(b)(3) so that the definition of introduced would read as follows:

    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 or affiliated 
company or corporate entities of that operator.

    These commenters stated that the suggested language would expand 
MSHA's concept to include corporate divisions within the same parent 
corporation, assuring that all operators of multiple underground mines 
were treated equally regardless of their corporate structure, and also 
would clarify that affiliated corporations, even across national 
borders, are included in the term mine operator for purposes of the 
rule.
    Additionally, these commenters were of the opinion that proposed 
paragraph (b)(3) would still impose an undue burden and hardship on 
numerous mine operators because it would prohibit mining companies that 
have chosen to segregate different regions by creating separate 
affiliated corporations (for example, Operator A West, Operator A East, 
and Operator A Central), from transferring diesel-powered equipment 
between mines operated by another corporate division. They believe this 
may cause separate corporate divisions of the same parent-corporation 
to have to purchase multiple diesel-powered machines when the transfer 
of one machine is all that is necessary. These commenters also 
indicated that the same issue arises for operators with mines outside 
the United States, who may frequently (or even occasionally) transfer 
diesel equipment between foreign mines (whose ownership necessarily is 
through a different corporate entity) and domestic mines.
    By contrast, some commenters strongly disagreed that MSHA should 
revise proposed paragraph (b)(3) of Sec. 57.5067 to incorporate the 
suggested phrase ``or affiliated company or corporate entities of that 
operator,'' stating that MSHA's intent, as expressed in the proposed 
rule, was clear and that the definition of introduced covered only 
domestic mine entities. These commenters requested that the preamble to 
the final rule specifically address this issue so that all interested 
parties are clear on the application of the term introduced.
    MSHA wants to emphasize that the exemption from the definition of 
introduced in revised paragraph (b)(3) of Sec. 57.5067 applies to the 
transfer of existing diesel engines or diesel-powered equipment from 
the inventory of one underground mine to another underground mine 
operated by the same mine operator, even if the mines have different 
identification numbers.
    A mine operator may move a diesel engine from one mine to another 
mine if both mines are underground and

[[Page 9183]]

operated by the same mine operator, and the diesel-powered engine being 
moved was introduced into at least one of the mines before July 5, 
2001, the effective date of the rule, and the engine is listed on each 
mine's inventory. For compliance purposes, MSHA informed the mining 
community in its most recent diesel particulate public meetings that 
MSHA will conduct a physical inventory of diesel engines in every 
underground metal and nonmetal mine. Any diesel engine entered on 
MSHA's inventory and which meets the requirements listed above will be 
exempt from the approval requirements of Sec. 57.5067.
    Final Sec. 57.5067 does not exempt engines and equipment jointly 
owned or shared by different mine operators, even if the engine carries 
an MSHA approval plate or meets the EPA requirements in paragraph (a) 
of Sec. 57.5067. Final Sec. 57.5067(b)(3) does not exempt diesel 
engines or equipment transferred between two mines with the same parent 
corporation or among affiliated mines. As to the transfer of diesel 
engines and equipment between mines operated by affiliated companies, 
MSHA declines to accept the commenters' suggestion. The purpose of this 
provision was to encourage the introduction of cleaner diesel-powered 
equipment into underground mines as expeditiously as possible. The 
commenters did not demonstrate a compelling economic need to justify 
this departure from generally accepted concepts of equipment ownership 
by operating companies. Expansion of the equipment ownership concept to 
potentially remote entities who may have little economic interest in or 
control over the operations of a particular mine would defeat the 
Agency's objective of getting cleaner engines into underground mines.
    This rulemaking was limited in scope in that it only revised two 
provisions of the January 19, 2001 final rule. MSHA, however, received 
comments from the mining community regarding the January 19, 2001 final 
rule's risk assessment, as well as its regulatory flexibility analysis. 
MSHA did not address these comments because they exceeded the scope of 
this rulemaking. The preamble to the January 19, 2001 final rule 
contains a detailed discussion about MSHA's cost analysis and 
determination of significance of risk, and addresses comments received 
from the mining community on these issues.

III. Impact Analyses

A. Cost and Benefits: Executive Order 12866

    There are no costs associated with this final rule because the 
costs in the economic analysis for this rulemaking have already been 
accounted for in the economic analysis that supported the January 19, 
2001 final rule. The costs shown in the economic analysis supporting 
this rulemaking, were taken directly from the economic analysis that 
supported the dpm final rule published on January 19, 2001.
    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of intended regulations. MSHA determined that 
the January 19, 2001 dpm final rule (including the two provisions in 
the economic analysis supporting this rulemaking) was not economically 
significant but was a significant regulatory action under Executive 
Order 12866.
    The economic analysis in support of the January 19, 2001 final rule 
demonstrated that the dpm final rule for underground metal and nonmetal 
mines will reduce a significant health risk to underground miners. 
Benefits of the January 19, 2001 final rule included reductions in lung 
cancers. As the mining population turns over, MSHA estimated that a 
minimum of 8.5 lung cancer deaths will be avoided per year. Other 
benefits include reductions in the risk of death from cardiovascular, 
cardiopulmonary, or respiratory causes and reductions in the risk of 
sensory irritation and respiratory symptoms. By improving compliance 
with the January 19, 2001 final rule, this final rule will contribute 
to the realization of the benefits mentioned above.

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. 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 final rule does 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 final 
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 final rule would impose no new or additional burden hours or 
related costs. Burden hours and related costs shown in the economic 
analysis supporting this rulemaking were taken from the economic 
analysis that supported the January 19, 2001 final rule. The burden 
hours and costs presented in the economic analysis supporting this 
rulemaking are provided to give a detailed account of the two revised 
provisions.

E. National Environmental Policy Act

    The National Environmental Policy Act (NEPA) of 1969 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 environment. MSHA has 
reviewed the final 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 final 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 and Safety Risks

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

[[Page 9184]]

H. Executive Order 12988 (Civil Justice)

    MSHA has reviewed Executive Order 12988, Civil Justice Reform, and 
determined that the final 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 13175  Consultation and Coordination with Indian 
Tribal Governments

    MSHA has reviewed the final rule in accordance with Executive Order 
13175, and certifies that the final rule will not impose substantial 
direct compliance costs on Indian tribal governments.

J. Executive Order 13132 (Federalism)

    MSHA has reviewed the final rule in accordance with Executive Order 
13132 regarding federalism and has determined that it does not have 
federalism implications. The final 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 final rule in accordance with Executive 
Order 13211 regarding the energy effects of Federal regulations and has 
determined that this final rule does not have any adverse effects on 
energy supply, distribution, or use. Therefore, no reasonable 
alternatives to this action are necessary.

List of Subjects in 30 CFR Part 57

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

    Dated: February 14, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, we are amending Chapter 
I, Title 30 of the Code of Federal Regulations to read as follows:

PART 57--[AMENDED]

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

    Authority: 30 U.S.C. 811.


    2. Section 57.5066 is amended by revising paragraphs (b)(1) and (2) 
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.

[FR Doc. 02-4611 Filed 2-26-02; 8:45 am]
BILLING CODE 4510-43-P