[Federal Register Volume 67, Number 239 (Thursday, December 12, 2002)]
[Rules and Regulations]
[Pages 76658-76665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-31358]



[[Page 76657]]

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Part VIII





Department of Labor





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 Mine Safety and Health Administration



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30 CFR Parts 48 and 75



Emergency Evacuations; Emergency Temporary Standard; Final Rule

  Federal Register / Vol. 67, No. 239 / Thursday, December 12, 2002 / 
Rules and Regulations  

[[Page 76658]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 48 and 75

RIN 1219 AB33


Emergency Evacuations; Emergency Temporary Standard

AGENCY: Mine Safety and Health Administration.

ACTION: Emergency temporary standard for underground coal mines.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is issuing an 
emergency temporary standard (ETS) under section 101(b) of the Federal 
Mine Safety and Health Act of 1977 (Mine Act) in response to the grave 
danger which miners are exposed to during mine fire, explosion, and gas 
or water inundation emergencies. The recent deaths of 14 miners at two 
underground coal mines confirm that miners working underground are 
exposed to grave danger during mine emergencies and demonstrate the 
need for MSHA to address proper training and mine emergency evacuation 
procedures in an ETS.
    This ETS requires operators of underground coal mines to designate, 
for each shift that miners are working underground, a responsible 
person in attendance at the mine to take charge during mine fire, 
explosion, and gas or water inundation emergencies. In order to make an 
informed decision regarding an evacuation, this ETS also requires that 
the designated responsible person have current knowledge of various 
mine systems that protect the safety and health of miners.
    In addition, this ETS requires the responsible person to initiate 
and conduct an immediate mine evacuation when there is a mine emergency 
which presents an imminent danger to miners due to fire, explosion, or 
gas or water inundation. This ETS further provides that only properly 
trained and equipped persons essential to respond to the mine emergency 
may remain underground.
    This ETS also broadens the existing requirements for a program of 
instruction for firefighting and evacuation to address fire, explosion, 
and gas or water inundation emergencies. Under this ETS, operators must 
adopt a program of instruction which incorporates mine fire, explosion, 
and gas or water inundation emergencies into existing approved 
firefighting and evacuation plans and must train miners in those 
procedures. Finally, this ETS revises the part 48 training requirements 
to reflect that annual refresher training includes a review of mine 
fire, explosion, and gas or water inundation emergency evacuation and 
firefighting plans in effect at the mine.

DATES: This ETS is effective on December 12, 2002. Submit comments on 
this ETS on or before January 13, 2003. Public hearings will be held at 
9 a.m. on February 4, 6, 11, and 13, 2003. The post-hearing comment 
period will close on February 28, 2003.

ADDRESSES: Comments must be clearly identified as such and transmitted 
either electronically to [email protected], by facsimile to (202) 693-
9441, or by regular mail or hand delivery to MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, 
Virginia 22209-3939. You may contact MSHA with any format questions. 
Comments are posted for public viewing at http://www.msha.gov/currentcomments.htm.
    Information Collection Requirements: Send written comments on the 
information collection requirements to both the Office of Management 
and Budget (OMB) and MSHA as follows:
    (1) To OMB: If under 10 pages, by facsimile (202) 395-6974 to Attn: 
Desk Officer for MSHA. All comments may by sent by mail addressed to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, New Executive Office Building, 725 17th Street, NW., 
Washington, DC 20503, Attn: Desk Officer for MSHA; and
    (2) To MSHA: Comments must be clearly identified as comments on the 
information collection requirements and transmitted either 
electronically to [email protected], by facsimile to (202) 693-9441, or 
by regular mail or hand delivery to MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2313, Arlington, 
Virginia 22209-3939.
    Hearings: (1) The hearing on Tuesday, February 4, 2003, will be 
held at the Holiday Inn Lexington--North, 1950 Newton Pike, Lexington, 
Kentucky, 40511 (phone: 859-233-0512).
    (2) The hearing on Thursday, February 6, 2003, will be held at the 
Holiday Inn Grand Junction, 755 Horizon Drive, Grand Junction, 
Colorado, 81506 (phone: 970-243-6790).
    (3) The hearing on Tuesday, February 11, 2003, will be held at the 
India Center, 800 Green Road South, Charleston, West Virginia, 25309 
(phone: 304-744-0021).
    (4) The hearing on Thursday, February 13, 2003, will be held at the 
Hyatt Regency, Pittsburgh International Airport, 1111 Airport Blvd. 
15231 (phone: 724-899-1234).

FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Director; Office of 
Standards, Regulations, and Variances, MSHA; phone: (202) 693-9440; 
facsimile: (202) 693-9441; E-mail: [email protected]. You can 
view comments filed on this rulemaking at http://www.msha.gov/currentcomments.htm.

SUPPLEMENTARY INFORMATION: This ETS is issued in accordance with 
section 101(b) of the Mine Act, 30 U.S.C. 811. This ETS is effective 
immediately. The ETS establishes two new standards in subpart P, 
section 75.1501 Emergency Evacuations, and section 75.1502 Mine 
Emergency Evacuation and Firefighting Program of Instruction. Subpart P 
is renamed ``Subpart P--Mine Emergencies.'' In addition, existing part 
48, subpart A, section 48.8 is revised.
    In accordance with section 101(b)(3) of the Mine Act, this ETS will 
also serve as the Agency's proposed rule. The preamble discusses 
specific provisions that may be included in the final rule and MSHA 
solicits comments on these provisions.
    New section 75.1501 establishes that an operator must designate a 
responsible person to take charge in the event of a mine emergency 
which presents an imminent danger to miners involving a fire, 
explosion, or gas or water inundation. Section 75.1501 also requires 
that miners need to be trained about the requirements of this section.
    New section 75.1502 revises redesignated section 75.1101-23 by 
including all mine emergencies created as a result of a fire, an 
explosion, or a gas or water inundation, requires revisions to existing 
firefighting and evacuation plans to address these emergencies, 
requires training of miners regarding the mine emergency evacuation and 
firefighting plan, and requires that mine operators train miners in any 
revisions to the plan after its submission to MSHA for approval.

I. Basis for the Emergency Temporary Standard

A. Regulatory Authority

    Section 101(b) of the Mine Act provides that:

    (1) The Secretary shall provide, without regard to the 
requirements of chapter 5, title 5, United States Code, for an 
emergency temporary mandatory health or safety standard to take 
immediate effect upon publication in the Federal Register if [s]he 
determines (A) that miners are exposed to grave danger from exposure 
to substances or agents determined to be toxic or physically 
harmful, or to other hazards, and (B) that such emergency standard 
is necessary to protect miners from such danger.

[[Page 76659]]

    (2) A temporary mandatory health or safety standard shall be 
effective until superseded by a mandatory standard promulgated in 
accordance with the procedures prescribed in paragraph (3) of this 
subsection.
    (3) Upon publication of such standard in the Federal Register, 
the Secretary shall commence a proceeding in accordance with section 
101(a), and the standards as published shall also serve as a 
proposed rule for the proceeding. The Secretary shall promulgate a 
mandatory health or safety standard under this paragraph no later 
than nine months after publication of the emergency temporary 
standard as provided in paragraph (2).

    Issuance of an ETS is an extraordinary measure provided for by the 
Mine Act to enable MSHA to ``react quickly to grave dangers which 
threaten miners before those dangers manifest themselves in serious or 
fatal injuries or illnesses.'' S. Rept. 181, 95th Cong., 1st Sess. 23 
(1977). The language authorizing the issuance of a temporary mandatory 
standard for these purposes indicates that it is appropriate to address 
miner exposure to ``other hazards,'' as well as toxic substances or 
harmful agents. This broad scope is further indicated in the 
legislative history, which states that ``[t]o exclude any kind of grave 
danger would contradict the basic purpose of emergency temporary 
standards--protecting miners from grave dangers.'' Id. The suggestion 
that a temporary mandatory standard is limited to new dangers in the 
mining industry is also dispelled in the legislative history which 
explains: ``That a danger has gone unremedied should not be a bar to 
issuing an emergency standard. Indeed, if such is the case, the need 
for prompt action is that much more pressing.'' Id. In addition, the 
legislative history emphasizes that a record of fatalities or serious 
injuries is not necessary before an ETS can be issued because 
``[d]isasters, fatalities, and disabilities are the very thing this 
provision is designed to prevent.'' ``Waiting until those dangers 
manifest themselves as fatalities or disabling injuries or illnesses, 
frustrates the purpose of this [ETS] provision.'' Id. at 23-24.

B. Grave Danger

    In response to the recent accidents of September 2001 at the Jim 
Walter Resources No. 5 Mine and of July 2000 at the Willow Creek Mine 
described elsewhere in this preamble, MSHA has determined that new 
safety standards are necessary to further protect miners when a mine 
emergency presenting an imminent danger to miners due to fire, 
explosion, or gas or water inundation occurs which requires an 
evacuation of miners. Miners and mine operators must be able to rapidly 
and safely respond to emergency situations created by fire, explosion, 
or gas or water inundation hazards, and initiate an immediate mine 
evacuation when necessary to protect miners from the grave dangers of 
remaining underground or re-entering affected areas when hazards and 
conditions arise that endanger safety. A rapid and planned evacuation 
of all miners, who are knowledgeable about the mine's plan for mine 
emergencies, is essential to survival, and is one of the last 
safeguards that would allow miners to exit from the mine under 
extremely adverse conditions. The current lack of such knowledge and 
demonstrated inability to quickly initiate and properly conduct a mine 
evacuation, presents a grave danger to miners who work in underground 
coal mines when a mine fire, explosion, or gas or water inundation 
emergency occurs.
    Miners who are not directed to leave the scene of a mine emergency 
and who do not have knowledge about the mine's emergency evacuation and 
firefighting plan face serious physical injury or death from the 
hazards detailed below.
    Underground coal mines are dynamic work environments where the 
working conditions can change rapidly. Diligent compliance with safety 
and health standards and safety conscious work habits provide a 
substantial measure of protection against the occurrence of fire and 
explosions and resultant mine emergencies underground. In the high 
hazard work environment of underground coal mines, however, the danger 
of a deadly fire, explosion, or gas or water inundation hazard which 
can develop into a mine emergency is always present. For example, 
electricity or other sources of power can ignite methane gas or coal 
dust resulting in an explosion. Mining equipment can also be the source 
of a deadly fire that may involve fuel, lubricants and the surrounding 
coal. Caved, mined out areas which contain coal and accumulated gas can 
be the locations for explosions caused by rock falls, and in some 
instances, fires are started by spontaneous combustion. Moreover, when 
active mines are connected into previously mined-out areas, there is 
also the risk of exposure to an oxygen deficient atmosphere that can 
cause asphyxiation. Finally, when mining near other mined out areas, 
there may be a risk of water inundation.
    MSHA standards are designed to prevent these types of hazards, but 
mine emergencies can and do occur after these hazards develop. The 
existence and development of mine emergencies is unpredictable. 
Underground coal mine emergencies can quickly expand from hazards 
presented in one isolated mining section to involve the entire coal 
mine.
    The Secretary has therefore determined that miners are exposed to 
grave danger when they remain underground or re-enter affected mine 
areas at the time of a mine emergency which presents an imminent danger 
to miners due to fire, explosion, or gas or water inundation, without a 
responsible person at the mine initiating and conducting a mine 
evacuation. In addition, without timely knowledge, information and 
training about a mine's emergency evacuation and firefighting program 
of instruction specifically developed to cover mine fire, explosion, or 
gas or water inundation emergencies, miners are exposed to a grave 
danger because they are not prepared to take immediate action to 
evacuate the mine in the event of such a mine emergency.

II. Discussion of the Emergency Temporary Standards

A. Background

    During the past three years, at least 14 miners have died in two 
accidents as a result of faulty mine evacuations.
    Explosions at the Jim Walter Resources, Inc. No. 5 Mine on 
September 23, 2001, resulted in 13 fatalities. An initial roof fall and 
explosion occurred at 5:20 p.m. and resulted in injuries to four 
miners. One of the four miners was severely injured and could not be 
moved. Miners from other parts of the mine responded in an 
uncoordinated effort. In addition, the CO Room operator (monitoring the 
carbon monoxide monitoring system at the mine) after being notified 
about the explosion, attempted to locate the afternoon shift haulage 
foreman who he believed was working at the mine. This foreman was not 
working that shift. There was also some confusion about where the first 
explosion occurred.
    By the time the second explosion occurred at 6:15 p.m., 12 
additional miners headed towards the accident site and eight of those 
miners entered the affected area without gas detection equipment. Seven 
additional miners were directed to travel to the emergency area. The 
6:15 p.m. explosion occurred before those seven additional miners 
arrived in the area affected by the second explosion. It is uncertain 
whether the miner immobilized by the first explosion died as a result 
of the first or second explosion. It is certain, however, that 12 
miners died when the second explosion occurred as they were attempting 
to reach the injured miner.
    MSHA's accident investigation report determined that in addition to 
not

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following proper evacuation procedures after the initial explosion, 
there was never a mine wide evacuation initiated at the mine, even 
after an explosion damaged critical ventilation controls. MSHA's 
accident investigation team found that gas detection equipment was not 
found on any of the miners or during the underground investigation in 
the affected section where the explosion occurred. Gas detection 
equipment is essential to determine the composition of the mine 
atmosphere and secure the safety of those entering unknown atmospheres 
especially when ventilation controls are damaged. MSHA's accident 
investigation report concluded that the lack of training and the 
failure to conduct fire and emergency drills relative to proper 
evacuation procedures ``affected the miners' response'' to the 
emergency situation of September 2001.
    After careful review of this accident, MSHA has determined that had 
a designated responsible person knowledgeable about the mine safety 
systems taken charge of the evacuation and rescue effort, fewer miners 
would have been permitted to remain underground or re-enter the 
affected mine area during the mine emergency.
    Under this ETS, all 32 miners underground at the mine who were not 
essential to an immediate response to the explosion would have been 
immediately evacuated from the mine. In addition, the designated person 
would have assured that the miners attempting a rescue were equipped 
with gas detection equipment. Moreover, miners would have understood 
from mine emergency evacuation and firefighting training that an 
evacuation was necessary and that they were not to re-enter the 
emergency areas without instruction and appropriate safety equipment.
    On July 31, 2000, four explosions occurred at the Willow Creek 
mine. The initial explosion and subsequent fire occurred approximately 
seven minutes before the later explosions which killed two miners. 
Although firefighting activities began almost immediately after the 
first explosion, evacuation procedures did not begin immediately and 
conditions worsened before the fatal explosions occurred. After careful 
review of the accident, MSHA has determined that had the decision to 
evacuate been made sooner, i.e., after it became evident that the fire 
was not controllable, and had the individuals present at the affected 
mine section been more aware of the urgent need for evacuation under 
emergency conditions, the fatalities might not have occurred. Some 
miners at the mine were equipped with personal emergency devices (PEDs) 
which are capable of carrying text messages to underground personnel. 
Many miners had evacuated the mine but these devices alerted the 
remaining miners to evacuate the mine. The message to evacuate, 
however, was not transmitted until after the third of four explosions 
occurred.
    MSHA is also aware of two water inundations and one gas inundation 
where miners died. In 1968 in Hominey Falls, West Virginia, four miners 
died from a water inundation involving old workings and 21 miners were 
rescued. In Tower City, Pennsylvania in 1977 at Porter Tunnel, water 
from old workings injured one miner, entrapped one miner and resulted 
in nine fatalities. Finally, in 1978 at Moss 3 Mine in Duty, 
West Virginia, blackdamp (atmosphere depleted of oxygen) from old 
workings resulted in 5 fatalities.

B. Section-by-Section Discussion

Section 75.1501 Emergency Evacuations
    Section 75.1501 is a new section which addresses mine emergency 
evacuations. Paragraph (a) provides that for each shift that miners 
work underground the mine operator shall designate a responsible person 
in attendance at the mine to take charge during mine fire, explosion, 
or gas or water inundation emergencies which present an imminent danger 
to miners. Paragraph (a) further provides that the designated 
responsible person shall have current knowledge of the assigned 
location and expected movements of miners underground, the operation of 
the mine ventilation system, the location of the mine escapeways, the 
mine communications system, any mine monitoring system if used, and the 
mine emergency evacuation and firefighting program of instruction. The 
purpose of these requirements is to ensure that during mine emergencies 
an informed decision is made by one responsible person regarding 
responses to mine emergencies, and that mine evacuations be conducted 
rapidly, efficiently, and safely. The accidents described in the 
background section to this preamble demonstrate the need for a 
designated person to take charge during mine emergencies.
    In taking charge during an emergency, the designated person directs 
resources that may be required during the emergency and assures that 
all nonessential miners are evacuated safely. In addition, requiring 
that the designated responsible person be at the mine site during all 
shifts when miners are underground assures that no delays result from 
off-site telephone calls requesting instructions.
    Furthermore, requiring that the designated responsible person have 
current knowledge of the aforementioned elements assures that informed 
decisions are made during a mine emergency. For example, having 
knowledge of the work areas and the assigned locations of miners and 
their movement during the work shift allows miners working in remote 
locations where electronic communication may not be readily available 
to be notified of an evacuation as soon as possible. The designated 
responsible person will be aware of their presence and location 
underground. Formal procedures may be needed to assure that the 
responsible person can quickly locate all underground miners.
    Paragraph (b) of new section 75.1501 requires that the designated 
responsible person initiate and conduct an immediate mine evacuation 
when there is a mine emergency which presents an imminent danger to 
miners due to fire, explosion, or gas or water inundation. Paragraph 
(b) further provides that only properly trained and equipped persons 
essential to respond to the mine emergency may remain underground.
    Although the MSHA standards have been successful in addressing 
hazards and reducing risks created by fires, explosions, and gas or 
water inundations, MSHA has determined that this ETS is necessary. 
Miners are exposed to grave danger when they remain underground or re-
enter affected mine areas during mine emergencies which present an 
imminent danger to miners. In addition, MSHA understands that not every 
mine fire, explosion, or gas or water inundation hazard listed above 
may result in a mine emergency. For example, only unplanned mine fires 
not extinguished within 30 minutes of discovery are reportable to MSHA 
under 30 CFR part 50. Such fires may not endanger miners and therefore 
may not constitute a mine emergency. It is when the hazards listed 
above present an imminent danger to miners that MSHA expects that an 
immediate mine evacuation be initiated.
    MSHA notes that the term ``imminent danger'' is defined in the Mine 
Act, Section 3(j). It means, ``the existence of any condition or 
practice in a coal or other mine which can be expected to cause death 
or serious physical harm before such condition or practice can be 
abated.'' This definition is well known and provides readily 
understandable criteria for the responsible person to decide to 
initiate a mine evacuation. To protect miners from the grave danger of 
remaining underground at that time, a

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designated responsible person must be present to initiate and conduct 
an immediate evacuation and must assure that only persons who are 
properly trained and equipped and essential to respond to the mine 
emergency remain underground.
    Paragraph (c) of new section 75.1501 requires the operator to 
instruct all miners about the requirements of this section and the 
identity of the responsible person designated by the operator for their 
workshift within 7 days of publication of this ETS. Paragraph (c) 
further provides that the mine operator must instruct miners of any 
change in the identity of the responsible person before the start of 
their workshift. MSHA has determined that this provision is necessary 
because, in order for a mine evacuation to be conducted without 
exposing miners to grave danger, miners need up-to-date information 
concerning mine emergency evacuations and the identity of the person or 
persons in charge of initiating and conducting such evacuations. The 
tragic accident at the Jim Walter No. 5 Mine shows that at least one 
miner with access to mine wide communications did not know which 
foreman was working the shift when the accident occurred and valuable 
time may have been lost while trying to locate that foreman.
    Paragraph (d) of new section 75.1501 provides that the ability of 
any person to warn of an imminent danger which warrants an evacuation 
is not restricted by the provisions of section 75.1501. This provision 
is intended to recognize that there will be circumstances of imminent 
danger warranting a warning by someone other than the designated 
responsible person under section 75.1501(b). For example, at the 
Quecreek Mine inundation accident which occurred July 24, 2002, miners 
from the affected section rapidly warned miners in the other working 
section of a water inundation, enabling them to escape the mine 
unharmed. These actions are consistent with the approach of this 
paragraph (d) which recognizes that any person may warn others of an 
imminent danger. Had any delays occurred at Quecreek in warning the 
miners, tragic results might have ensued.
    MSHA is soliciting comments on broadening the coverage of this 
section to include outbursts, massive roof falls, or other occurrences, 
for example the failure of a mine system designed to protect miner 
safety and health such as the ventilation control system, roof control 
system, or the mine communication system.
Section 75.1502--Mine Emergency Evacuation and Firefighting Program of 
Instruction
    New Section 75.1502(a) requires that each operator of an 
underground coal mine adopt a mine emergency evacuation and 
firefighting program and begin training in those procedures as soon as 
possible but in no event not to exceed 30 days from the date of 
publication of this ETS. In addition, the program must be submitted to 
the District Manager of the Coal Mine Health and Safety District in 
which the mine is located for approval. Before any revision to the 
program is implemented, persons affected by the revision must be 
instructed on the revised provision.
    The existing standard regarding evacuation procedures, section 
75.1101-23, is located in subpart L. MSHA has determined that existing 
section 75.1101-23 should be redesignated as new section 75.1502 in 
subpart P and revised. New section 75.1502 focuses attention on safe 
evacuation procedures to be followed in the event of a fire, explosion, 
or gas or water inundation emergency.
    Paragraph (a) of new section 75.1502 of this ETS revises and 
replaces redesignated section 75.1101-23(a). Under new paragraph (a), 
MSHA has expanded the existing program of instruction to include the 
proper evacuation procedures in the event of a mine emergency. This 
change reflects MSHA's determination that under the existing standards, 
miners are exposed to a grave danger caused by a mine emergency due to 
fire, explosion, or gas or water inundation. In addition, paragraph (a) 
of new section 75.1502 retains the requirements of existing section 
75.1101-23(a) that the program of instruction include procedures to be 
followed regarding the location and use of firefighting equipment, 
location of escapeways, exits, and routes of travel to the surface.
    Like existing section 75.1101-23, new section 75.1502 of this ETS 
provides a requirement for training of all miners in the proper 
evacuation procedures to be followed in the event of a mine emergency, 
the location and use of firefighting equipment, the location of 
escapeways, exits, and routes of travel to the surface. The training 
under section 75.1502 must begin as soon as possible but in no event 
later than 30 days from the date of publication of this ETS. Training 
is necessary to acquaint all miners with the emergency evacuation 
procedures for all mine emergencies which endanger miners due to fires, 
explosions, or gas or water inundations. The decision to require 
training reflects the Agency's evaluation of the existing training 
programs at underground coal mines and the results of an investigation 
of a mining accident where victims were unfamiliar with evacuation 
procedures and did not know not to re-enter the affected areas of the 
mine during a mine emergency.
    Based on Agency experience, MSHA estimates that there are 
approximately 45,000 workers affected by this ETS. Because effective 
training related to evacuation procedures for the specified mine 
emergencies is essential to the safety and health of miners, MSHA has 
determined that there is a need for training of miners to acquaint all 
miners with the emergency response and evacuation procedures for all 
mine emergencies. In addition, in the event that any revisions are made 
to the mine emergency evacuation and firefighting program of 
instruction as a result of its submission to MSHA for approval, miners 
would need to be trained in those revisions.
    Moreover, as part of this ETS, MSHA's existing training regulation 
in 30 CFR part 48 is being revised to specifically include annual 
refresher training of miners regarding mine emergency evacuation and 
firefighting plans. The training of new miners and experienced miner 
training under part 48 does not need to be revised, however, because 
existing section 48.5(b)(5) provides for training regarding emergency 
evacuation and firefighting plans for new miners and existing section 
48.6(b)(5) provides for training regarding emergency evacuation and 
firefighting plans for experienced miners. Further discussion of the 
annual refresher training of miners regarding the mine emergency 
evacuation and firefighting plan is located elsewhere in this preamble.
    Furthermore, unlike existing section 75.1101-23(a)(2), new section 
75.1502(a) does not include an explicit provision that the approved 
program of instruction be given to all miners annually or newly 
employed miners within six months after the date of employment. Rather, 
as discussed above, section 75.1502(a) provides for the training of 
miners to acquaint all miners with the mine emergency evacuation 
procedures for the specified mine emergencies as soon as possible but 
not more than 30 days after the date of publication of this ETS.
    In addition, new miner and experienced miner training is covered 
under existing sections 48.5 and 48.6, and annual refresher training of 
miners regarding mine emergency evacuation and firefighting plans are 
now covered under the revised part 48 training

[[Page 76662]]

regulations. Accordingly, inclusion of those training provisions within 
new section 75.1502 would be duplicative. Therefore, under this ETS, 
the level of safety afforded miners will be maintained or increased 
from the level of safety afforded under existing section 75.1101-23 
because this ETS provides for the training of all miners for mine 
emergencies including explosions and gas or water inundations, not just 
mine fires, and continues to provide annual refresher training of 
miners while eliminating duplicate provisions and consolidating the 
training requirements under part 48. This modification of the training 
requirements under existing section 75.1101-23 does not represent a 
reduction in safety to miners because the training requirements of 
existing section 75.1101-23 are incorporated in new section 75.1502 and 
the revised and existing sections of part 48.
    Paragraph (a) of new section 75.1502, like existing section 
75.1101-23(a), requires that the program of instruction be submitted 
for approval to MSHA. The Agency has determined that in view of the 
emergency nature of this standard, operators must submit a mine 
emergency evacuation and firefighting program of instruction to MSHA 
within 30 days of the publication of this ETS. Paragraph (a) of new 
section 75.1502 further provides that all miners will be trained on any 
revisions made to the program of instruction after it has been approved 
by MSHA to ensure that miners are kept aware of any changes made to the 
mine emergency evacuation and firefighting plan after they have 
received initial training.
    Because MSHA has determined that miners are exposed to grave danger 
under the specified mine emergencies which require evacuation, 
paragraphs(a) (1) through (a)(4) of new section 75.1502 broaden the 
scope of the approved program of instruction under existing section 
75.1101-23(a)(1) through (3). Under new section 75.1502(a)(1), the 
approved program of instruction must include a specific plan to 
acquaint miners on all shifts with procedures for mine emergency 
evacuation for mine emergencies which endanger miners due to fire, 
explosion, or gas or water inundation. New paragraph (a)(2) also 
expands the existing requirements to include procedures for the 
evacuation of all miners not required for a mine emergency response. In 
addition, under new paragraph (a)(3), the procedures for the rapid 
assembly and transportation of necessary miners, fire suppression 
equipment, and rescue apparatus to the scene of the mine fire is 
broadened to include the scene of the mine emergency. Finally, new 
paragraph (a)(4) retains the same requirements for procedures for the 
operation of fire suppression equipment.
    Existing MSHA-approved plans already discuss in detail the use, 
location of firefighting equipment, and location of escapeways and exit 
routes, and other procedures. These topics should be expanded to cover 
mine explosion and gas and water inundation emergencies in addition to 
fire emergencies. MSHA believes that an effective plan consists of at 
least the following elements: Procedures to rapidly notify each 
underground miner in the event of an emergency; and assignments of 
personnel in preparation for an evacuation including procedures to 
assemble and account for all miners during an evacuation, procedures to 
direct underground water supplies, and procedures to deenergize 
electrical power as may be appropriate during an evacuation. Mine 
operators should also include within the plans the location and 
availability of communication systems underground, assignments of 
underground and surface personnel to coordinate the evacuation, and the 
design and layout of the mine ventilation system as it might affect 
miners in an evacuation.
    In addition, any mine using an atmospheric monitoring system should 
integrate the alert and alarm response procedure into the firefighting 
and evacuation plan. The plan should be designed to assure that all 
miners are familiar with the escape routes and escape facilities from 
their work area, and are familiar with the operation and proper donning 
procedures of self-contained self-rescuers under emergency scenarios. 
The plan should also address the requirements of new section 75.1501, 
and make it clear to miners that they are required to evacuate unless 
they are essential for emergency response activities and they are 
properly equipped and trained.
    MSHA is soliciting comments on the specific elements of the mine 
emergency evacuation and firefighting plan to be included in the final 
rule.
    Finally, as required by the last sentence in section 75.1501(b), 
only properly trained and equipped persons essential to respond to the 
mine emergency may remain underground. Therefore, plans should address 
proper training and equipment to be used under various emergency 
scenarios. For example, the plan might state that miners must be 
equipped with gas detectors and qualified to use them when entering an 
area affected by a gas inundation.
    Paragraph (b) of new section 75.1502, concerning firefighting, 
retains the same requirements as existing section 75.1101-23(b).
    Paragraph (c) of new section 75.1502 essentially retains the same 
requirements as existing section 75.1101-23(c) with the exception that 
mine emergency evacuation drills are now required to ensure that miners 
are familiar with and are able to accomplish a mine evacuation in the 
event of a mine fire, explosion, or gas or water inundation emergency.
Revisions to Part 48--Annual Refresher Training of Miners
    MSHA has determined to unify the training approach for mine 
emergency evacuation and for firefighting plans. The rule includes the 
initial immediate training requirement in section 75.1501 of this ETS. 
The rule also revises part 48 for annual refresher training of miners 
regarding mine emergency evacuation and firefighting plans specifically 
for underground coal mines.
    Subpart A of 30 CFR part 48 prescribes requirements for submitting 
and obtaining MSHA approval of operator-administered programs for 
training and retraining underground miners. Each mine must have an 
approved training program for training new miners and newly-employed 
experienced miners, as well as training miners for new tasks, and 
providing annual refresher training.
    The existing training requirements for new miners under Sec.  48.5, 
and newly-employed experienced miners under Sec.  48.6, do not need to 
be revised because emergency evacuation and firefighting training are 
provided under those existing sections. Annual refresher training under 
existing Sec.  48.8, however, does not cover emergency evacuation or 
firefighting training. Therefore, Sec.  48.8 is revised by this ETS to 
include a requirement that the annual refresher training include the 
mine emergency evacuation and firefighting plan. This training will 
acquaint all underground coal miners with the mine emergency evacuation 
procedures for mine emergencies involving fire, explosion, or gas or 
water inundations. MSHA specifically solicits comments on whether any 
conforming amendments should be made in the final rule to sections 48.5 
and 48.6. Those conforming amendments would state that mine emergency 
evacuation and firefighting plans would be topics included. MSHA 
further solicits comments on whether the training provision should be 
included in part 48 or in new section 75.1502.

[[Page 76663]]

C. Feasibility

    We have concluded that the requirements of the final rule are both 
technologically and economically feasible.
1. Technological Feasibility
    MSHA believes that the ETS would be technologically feasible for 
the mining industry. An agency must show that modern technology has at 
least conceived some industrial strategies or devices that are likely 
to be capable of meeting the standard, and which industry is generally 
capable of adopting. American Iron and Steel Institute v. OSHA, (AISI-
II) 939 F.2d 975, 980 (D.C. Cir. 1991); American Iron and Steel 
Institute v. OSHA, (AISI-I) 577 F.2d 825 (3d Cir. 1978) at 832-835; and 
Industrial Union Dept., AFL-CIO v. Hodgson, 499 F.2d 467,478 (D.C. Cir. 
1974).
    This ETS addresses revisions of mine emergency evacuation plans and 
associated training. This ETS neither requires underground coal mines 
to procure any additional equipment nor use any new technology. This is 
not a technology-forcing standard and does not involve activities on 
the frontiers of science. We conclude, therefore, that this ETS is 
technologically feasible.
2. Economic Feasibility
    Underground coal mines would incur costs of approximately $0.26 
million yearly to comply with this ETS. That these compliance costs 
represent well under 1 percent (about 0.004 percent) of annual revenues 
is sufficient evidence, MSHA believe, to conclude that this ETS is 
economically feasible for underground coal mines.

III. Executive Order 12291 and the Regulatory Flexibility Act

    Based on its analysis, MSHA has preliminarily determined that this 
ETS would not have a significant economic impact on a substantial 
number of small entities. MSHA has so certified this finding to the 
SBA. The factual basis for this certification is discussed in chapter V 
of the Preliminary Regulatory Economic Analysis (PREA).

IV. Paperwork Reduction Act

    The ETS contains information collections that are subject to review 
by the Office of Management and Budget (OMB) under the Paperwork 
Reduction Act of 1995 (PRA95). The ETS has first year burden hours 
(those that occur only in the first year) and, annual burden hours 
which occur in the first year and every year thereafter.

In the First Year of the ETS

    In the first year the ETS is in effect, there would be an increase 
of 5,010 burden hours and a related cost increase of $250,041. Table 
VII-1 in the PREA supporting this ETS shows that, with respect to first 
year-only burden hours and costs, there would be an increase of 4,304 
burden hours and related costs of $211,565. Table VII-2 in the PREA 
shows that, with respect to every year that the ETS is in effect 
(including the first year), there would be an increase of 706 burden 
hours and related costs of $38,476.

In the Second Year of the ETS

    After the first year of the ETS, those burden hours and related 
costs occurring only in the first year would no longer occur, and what 
remains are only the annual burden hours and related costs. Therefore, 
in the second year of the ETS, and for every year thereafter, there 
would be an increase of 706 burden hours and related costs of $38,476.
    Under section 101(b)(3) of the Mine Act, an ETS as published serves 
as a proposed rule. As a proposed rule, we invite public comments and 
are particularly interested in comments which:
    1. Evaluate whether the collection of information (presented here 
and in the PREA for the ETS) is necessary for the proper performance of 
the functions of MSHA, including whether the information would have 
practical utility;
    2. Evaluate the accuracy of our estimate of the burden of the 
collection of information, including the validity of the methodology 
and assumptions used;
    3. Enhance the quality, utility, and clarity of the information to 
be collected; and
    4. Minimize the burden of the collection of information on 
respondents, including through the use of appropriate automated, 
electronic, mechanical, or other technological collection techniques or 
other forms of information technology, e.g., permitting electronic 
submissions of responses.
    We have submitted a copy of this ETS to OMB for its review and 
approval of these information collections. Interested persons are 
requested to send comments regarding this information collection, 
including suggestions for reducing this burden, if under 10 pages, by 
facsimile (202) 395-6974 to Attn: Desk Officer for MSHA. All comments 
may be sent by mail addressed to the Office of Information and 
Regulatory Affairs, Office of Management and Budget, New Executive 
Office Building, 725 17th Street, NW., Washington, DC 20503, Attn: Desk 
Officer for MSHA. Please send a copy of your comments to MSHA at the 
addresses listed in the ADDRESSES section of the preamble. Submit 
written comments on the information collection not later than February 
10, 2003.
    Our paperwork submission summarized above is explained in detail in 
the PREA that accompanies the ETS. The PREA includes the estimated 
costs and assumptions for each paperwork requirement related to the 
ETS. A copy of the PREA is available on our website at http://www.msha.gov/REGSINFO.HTM and can also be obtained in hardcopy from us. 
These paperwork requirements have been submitted to the Office of 
Management and Budget for review under section 3504(h) of the Paperwork 
Reduction Act of 1995. Respondents are not required to respond to any 
collection of information unless it displays a current valid OMB 
control number. Comments may be sent to the addresses listed in the 
ADDRESSES section of the preamble.

V. Executive Order 12866

    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of intended standards and regulations. We have 
fulfilled this requirement for this ETS and determined that it would 
not have an annual effect of $100 million or more on the economy. 
Therefore, we do not consider this ETS to be economically significant 
under section 3(f)(1) of Executive Order 12866.
    In the PREA, MSHA has developed estimates of the safety benefits of 
this ETS, which ensures that operators and miners have a clear 
understanding of actions and procedures to be followed in the event of 
a mine emergency. MSHA has concluded that the two fatalities at the 
Willow Creek Mine and nine of the 13 fatalities at the Jim Walter No. 5 
Mine might have been prevented had this ETS been in place. The Agency 
has reviewed its coal accident investigation database and has not 
identified any other fatalities during the past 10 years that might 
have been prevented by this ETS. In summary, based on its experience 
over the past ten years, MSHA believes it is reasonable to estimate 
that this ETS could prevent 11 miners' lives from being lost every ten 
years, or an average benefit of the ETS of 1.1 miners' lives saved 
every year. The actual number of mine fatalities prevented could be 
much larger.

[[Page 76664]]

VI. The Unfunded Mandates Reform Act of 1995 and Other Regulatory 
Considerations

A. Unfunded Mandates Reform Act

    MSHA has determined that, for purposes of section 202 of the 
Unfunded Mandates Reform Act of 1995, this ETS does not include any 
Federal mandate that may result in increased expenditures by State, 
local, or tribal governments in the aggregate of more than $100 
million, or increased expenditures by the private sector of more than 
$100 million. Moreover, the Agency has determined that for purposes of 
section 203 of that Act, this ETS would not significantly or uniquely 
affect small governments.
Background
    The Unfunded Mandates Reform Act was enacted in 1995. While much of 
the Act is designed to assist the Congress in determining whether its 
actions will impose costly new mandates on State, local, and tribal 
governments, the Act also includes requirements to assist Federal 
Agencies to make this same determination with respect to regulatory 
actions.
Analysis
    Based on the analysis in this PREA, compliance with this ETS by 
coal mine operators and contractors covered by this rulemaking would 
result in a compliance cost of approximately $0.26 million per year. 
Accordingly, there is no need for further analysis under section 202 of 
the Unfunded Mandates Reform Act.
    We have concluded that small governmental entities would not be 
significantly or uniquely impacted by the ETS. The ETS would cover 664 
underground coal mining operations.

B. Executive Order 13132: Federalism

    We have reviewed this ETS in accordance with Executive Order 13132 
regarding federalism and have determined that it does not have 
``federalism implications.'' This ETS 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.''

C. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    In accordance with Executive Order 13045, we have evaluated the 
environmental health and safety effects of the ETS on children. The 
Agency has determined that the ETS would have no adverse effect on 
children.

D. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    We certify that the ETS would not impose substantial direct 
compliance cost on Indian tribal governments. Under section 101(b)(3) 
of the Mine Act, an ETS as published serves as a proposed rule. As a 
proposed rule, we will provide the public, including Indian tribal 
governments that operate mines, the opportunity to comment on the 
requirements of the ETS.

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

    This ETS 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.

F. Executive Order 12988: Civil Justice Reform

    We have reviewed Executive Order 12988 and determined that this ETS 
would not unduly burden the Federal court system. We drafted the ETS to 
provide a clear legal standard for affected conduct. Since the ETS 
serves as a proposed rule, we have asked for public comment to 
eliminate ambiguities or drafting errors.

G. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    In accordance with Executive Order 13211, we have reviewed the ETS 
for its energy impacts. The ETS would have no effect on the 
distribution or use of energy. The only impacts of the ETS on the 
supply of energy would be through its effect on the price of coal.
    The estimated yearly cost of the ETS for the coal mining industry 
would be about $0.26 million.\1\ The annual revenues of the coal mining 
industry in 2000 were approximately 17.7 billion.\2\ The cost of the 
ETS for the coal mining industry would therefore be 0.001% of revenues. 
Even if we were to suppose that the increased cost caused by the ETS 
would be fully reflected in coal prices, the impact would be 
negligible.
---------------------------------------------------------------------------

    \1\ Estimate obtained from Table IV-1 of the PREA.
    \2\ Data for revenues derived from: U.S. Department of Labor, 
Mine Safety and Health Administration, Office of Standards, 
Regulations, and Variances, based on 2000 PEIR data and U.S. 
Department of Energy, Energy Information Administration, Coal 
Industry Annual 2000, January 2002, p. 206.
---------------------------------------------------------------------------

    Accordingly, we have determined that the ETS would have no 
significant adverse effect on the supply, distribution, or use of 
energy.

H. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    In accordance with Executive Order 13272, MSHA has thoroughly 
reviewed the ETS to assess and take appropriate account of its 
potential impact on small businesses, small governmental jurisdictions, 
and small organizations. As discussed in chapter V of the PREA, MSHA 
has determined that the ETS would not have a significant economic 
impact on a substantial number of small entities.

VII. Conduct of Public Hearings

    As stated above, in accordance with section 101(b)(3) of the Mine 
Act, this ETS will also serve as the Agency's proposed rule. MSHA will 
hold hearings on the proposed rule at the locations and dates listed in 
the ADDRESSES section of the preamble. The hearings 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 
hearings 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. The hearings will begin at 9 a.m. and end 
after the last scheduled speaker appears; and in any event, not later 
than 5 p.m. A verbatim transcript of the proceedings 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 Web page at http://www.msha.gov, under Statutory and Regulatory Information.
    MSHA will accept post-hearing 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.

VIII. Close of Post-hearing Comment Period

    The post-hearing comment period will close on February 28, 2003.

[[Page 76665]]

List of Subjects

30 CFR Part 48

    Education, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 75

    Coal mines, Underground coal mining, Mine safety and health, 
Emergency medical services, Fire prevention, reporting and 
recordkeeping requirements.

    Dated: December 9, 2002.
Dave D. Lauriski,
Assistant Secretary of Labor for Mine Safety and Health.

    Chapter I of title 30, parts 48 and 75, of the Code of Federal 
Regulations is amended as follows:

PART 48--[AMENDED]

    1. The authority citation for part 48 continues to read as follows:

    Authority: 30 U.S.C. 811, 825.

    2. Section 48.8 is amended by revising paragraph (b)(4) to read as 
follows:


Sec.  48.8  Annual refresher training of miners; minimum courses of 
instruction; hours of instruction.

* * * * *
    (b) * * *
    (4) Roof or ground control, ventilation, emergency evacuation and 
firefighting plans. The course shall include a review of roof or ground 
control plans in effect at the mine and the procedures for maintaining 
and controlling ventilation. In addition, for underground coal mines 
the course shall include a review of the emergency evacuation and 
firefighting plans in effect at the mine.
* * * * *

PART 75--[AMENDED]

    3. The authority citation for part 75 continues to read as follows:

    Authority: 30 U.S.C. 811.


    4. Subpart P is amended by revising the heading and by adding Sec.  
75.1501 to read as follows:

Subpart P-Mine Emergencies

* * * * *


Sec.  75.1501  Emergency evacuations.

    (a) For each shift that miners work underground, there shall be in 
attendance a responsible person designated by the mine operator to take 
charge during mine emergencies involving a fire, explosion or gas or 
water inundations. The responsible person shall have current knowledge 
of the assigned location and expected movements of miners underground, 
the operation of the mine ventilation system, the location of the mine 
escapeways, the mine communications system, any mine monitoring system 
if used, and the mine emergency evacuation and firefighting program of 
instruction.
    (b) The responsible person shall initiate and conduct an immediate 
mine evacuation when there is a mine emergency which presents an 
imminent danger to miners due to fire or explosion or gas or water 
inundation. Only properly trained and equipped persons essential to 
respond to the mine emergency may remain underground.
    (c) By December 19, 2002, the mine operator shall instruct all 
miners about the requirements of this section and the identity of the 
responsible person(s) designated by the operator for their workshift. 
The mine operator shall instruct miners of any change in the identity 
of the responsible person(s) before the start of their workshift.
    (d) Nothing in this section shall be construed to restrict the 
ability of other persons in the mine to warn of an imminent danger 
which warrants evacuation.


Sec.  75.1101-23  [Redesignated as Sec.  75.1502]

    5. Section 75.1101-23 is redesignated as 75.1502 and revised to 
read as follows:


Sec.  75.1502  Mine emergency evacuation and firefighting program of 
instruction.

    (a) Each operator of an underground coal mine shall adopt a program 
for the instruction of all miners in the proper evacuation procedures 
to be followed in the event of a mine emergency, the location and use 
of firefighting equipment, location of escapeways, exits, and routes of 
travel to the surface, and shall begin training in those procedures as 
soon as possible but no later than January 13, 2003. In addition, such 
program shall be submitted for approval to the District Manager of the 
Coal Mine Health and Safety District in which the mine is located no 
later than January 13, 2003. Before implementing any revision to the 
mine emergency evacuation and firefighting program of instruction 
persons affected by the revision shall be instructed by the operator in 
its provisions. The approved program of instruction shall include a 
specific plan designed to acquaint miners on all shifts with procedures 
for:
    (1) Mine emergency evacuation for mine emergencies that endanger 
miners due to fire, explosion, or gas or water inundation;
    (2) Evacuation of all miners not required for a mine emergency 
response;
    (3) Rapid assembly and transportation of necessary miners, fire 
suppression equipment, and rescue apparatus to the scene of the mine 
emergency; and,
    (4) Operation of the fire suppression equipment available in the 
mine.
    (b) In addition to the approved program of instruction required by 
paragraph (a) of this section, each operator of an underground coal 
mine shall ensure that:
    (1) At least two miners in each working section on each production 
shift are proficient in the use of all fire suppression equipment 
available on such working section, and know the location of such fire 
suppression equipment;
    (2) Each operator of attended equipment specified in Sec.  75.1107-
1(c)(1), and each miner assigned to perform job duties at the job site 
in the direct line of sight of attended equipment as described in Sec.  
75.1107-1(c)(2), is proficient in the use of fire suppression devices 
installed on such attended equipment; and,
    (3) The shift foreman and at least one miner for every five miners 
working underground on a maintenance shift are proficient in the use of 
fire suppression equipment available in the mine, and know the location 
of such fire suppression equipment.
    (c) Each operator of an underground coal mine shall require all 
miners to participate in mine emergency evacuation drills, which shall 
be held at periods of time so as to ensure that all miners participate 
in such evacuations at intervals of not more than 90 days.
    (1) The operator shall certify by signature and date that the mine 
emergency evacuation drills were held in accordance with the 
requirements of this section. Certifications shall be kept at the mine 
and made available on request to an authorized representative of the 
Secretary.
    (2) For purposes of this paragraph (c), a mine emergency evacuation 
drill shall consist of a simulation of the actions required by the 
approved mine emergency evacuation and firefighting plan described in 
paragraph (a)(1) through (4) of this section.

[FR Doc. 02-31358 Filed 12-11-02; 8:45 am]
BILLING CODE 4510-43-P