[Federal Register Volume 73, Number 179 (Monday, September 15, 2008)]
[Rules and Regulations]
[Pages 53116-53124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-21449]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 49

RIN 1219-AB56


Mine Rescue Team Equipment

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

ACTION: Final rule.

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SUMMARY: The final rule amends MSHA's existing standards addressing 
mine rescue team equipment at mine rescue stations serving underground 
coal and metal and nonmetal mines. It updates the existing standards to 
reflect advances in mine rescue team equipment technology to increase 
safety and improve the effectiveness of mine rescue teams.

DATES: This final rule is effective on November 14, 2008.

[[Page 53117]]


FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
[email protected] (Internet e-mail), 202-693-9440 (voice), or 
202-693-9441 (facsimile).

SUPPLEMENTARY INFORMATION: 

Outline of the Preamble

I. Introduction
II. Statutory and Rulemaking Background
III. Section-By-Section Analysis
    A. Subpart A--Mine Rescue Teams for Underground Metal and 
Nonmetal Mines
    B. Subpart B--Mine Rescue Teams for Underground Coal Mines
IV. Regulatory Economic Analysis
    A. Executive Order 12866
    B. Population at Risk
    C. Compliance Costs
    D. Benefits
V. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking

I. Introduction

    This final rule updates MSHA's existing mine rescue team equipment 
standards for teams serving underground metal and nonmetal mines (part 
49, subpart A, Sec.  49.6) and underground coal mines (part 49, subpart 
B, Sec.  49.16). MSHA developed this final rule from existing 
standards, Agency experience, and comments and testimony during the 
rulemaking. It is critical that mine rescue team members be provided 
with the latest in protective equipment so they can safely and 
effectively carry out their mission. These changes will increase safety 
and improve the effectiveness of mine rescue teams in responding to 
mine emergencies.

II. Statutory and Rulemaking Background

    In accordance with section 115(e) of the Federal Mine Safety and 
Health Act of 1977 (Mine Act), MSHA issued standards in 30 CFR part 49 
for mine rescue teams at underground coal and metal and nonmetal mines 
(45 FR 47002; July 11, 1980). On September 6, 2007, MSHA published the 
proposed rule for Mine Rescue Team Equipment (72 FR 51338) to update 
mine rescue team equipment standards for underground coal and metal and 
nonmetal mines. MSHA held four public hearings on October 23, 2007, in 
Salt Lake City, Utah; on October 25, 2007, in Lexington, Kentucky; on 
October 30, 2007, in Charleston, West Virginia; and on November 1, 
2007, in Birmingham, Alabama. In response to a request from the public, 
MSHA extended the comment period for the proposed rule from November 9, 
2007, to November 16, 2007, to allow additional time for public review 
of transcripts.

III. Section-by-Section Analysis

    On February 8, 2008, MSHA published a final rule for Mine Rescue 
Teams (73 FR 7636) making certain non-substantive organizational 
changes to 30 CFR part 49 and designating existing standards for 
underground metal and nonmetal mines as Subpart A--Mine Rescue Teams 
for Underground Metal and Nonmetal Mines, and existing standards for 
underground coal mines as Subpart B--Mine Rescue Teams for Underground 
Coal Mines.
    MSHA requested comment on whether an oxygen resuscitator should be 
provided for use by mine rescue teams. A commenter stated that it was 
important to include resuscitators as standard mine rescue equipment 
and that one of his company's self-contained breathing apparatus 
(SCBAs) can be used as a resuscitator. However, other commenters 
emphasized that states have different requirements as to who may 
administer oxygen and that to use the oxygen resuscitator safely, 
personnel must have considerable training and retraining. When 
questioned by the MSHA panel concerning requirements of one particular 
state, the commenter stated that his state had specific requirements 
for use of emergency medical service systems and suggested that MSHA 
review the state's Web site.
    Standard mine rescue practice is to have a spare oxygen breathing 
apparatus available for trapped miners during search and rescue 
operations. In consideration of the differing state requirements, MSHA 
has decided not to require oxygen resuscitators in this final rule for 
these medical devices. Under the final rule, mine rescue teams could 
use oxygen resuscitators provided they are used in accordance with 
relevant state requirements and team members are properly trained. The 
mine operator and mine rescue team should determine whether it is 
appropriate to use an oxygen resuscitator.

A. Subpart A--Mine Rescue Teams for Underground Metal and Nonmetal 
Mines

Section 49.6 Equipment and Maintenance Requirements

1. Sec.  49.6(a)(1)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with 12 self-contained breathing apparatus (SCBAs), each 
having a 4-hour capacity rather than a 2-hour capacity. It updates the 
existing rule to reflect current industry practice. The higher capacity 
SCBAs provide for greater team effectiveness and provide a greater 
measure of safety and health for miners. The final rule also continues 
to require that the mine rescue station have any equipment necessary 
for testing the breathing apparatus and that the apparatus be approved 
by MSHA and NIOSH under 42 CFR part 84 subpart H. The final rule also 
contains non-substantive word changes. MSHA received no comments on 
this proposal.
2. Sec.  49.6(a)(2)
    The final rule, like the proposal, requires that mine rescue 
stations maintain supplies of liquid air, liquid oxygen, pressurized 
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent 
chemicals, as applicable to the supplied breathing apparatus and 
sufficient to sustain each team for 8 hours while using the breathing 
apparatus during rescue operations. MSHA received no comments on this 
proposal.
3. Sec.  49.6(a)(3)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with two extra, fully-charged oxygen bottles for every six 
SCBAs at the station. MSHA received a comment stating that the existing 
standard, which required one extra fully-charged oxygen bottle, was 
adequate. MSHA continues to believe that two extra oxygen bottles for 
every six SCBAs will assure an additional reserve of a critical safety 
component for mine rescue teams

[[Page 53118]]

during time-sensitive underground rescue or recovery operations.
4. Sec.  49.6(a)(4), (a)(5), and (a)(9)
    The final rule, like the proposal, addresses requirements for 
oxygen pumps, cap lamps, and spare parts and tools for repairing 
breathing apparatus and communication systems. MSHA received no 
comments on this proposal.
5. Sec.  49.6(a)(6)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with four gas detectors appropriate for each gas that may 
be encountered at the mines served. In addition, like the proposal, 
detectors must be capable of measuring specific concentrations of 
methane, oxygen, and carbon dioxide. Like the proposal, the final rule 
leaves the decision as to the type of detector to be used to the mine 
operator.
    Commenters stated that it was unnecessary to require mine rescue 
stations serving non-gassy metal and nonmetal mines to have detectors 
to measure methane. Mine rescue teams serving metal and nonmetal mines 
generally would need gas detectors capable of measuring oxygen and 
carbon monoxide.
    Underground metal and nonmetal mines classified under Sec.  
57.22003 as I-B, I-C, II-B, IV, V-B, and VI are commonly referred to as 
``non-gassy'' mines. Existing Sec.  57.22003 provides overall 
parameters and testing procedures for categorizing underground metal 
and nonmetal mines. Under the final rule, mine rescue stations that 
service these mines, with no methane in explosive concentrations, would 
not need detectors to measure methane.
    Underground metal and nonmetal mines classified in accordance with 
Sec.  57.22003 as I-A, II-A, III, and V-A are capable of producing 
methane gas in explosive concentrations and are commonly referred to as 
``gassy'' mines. Currently, eight underground M/NM mines, classified 
under Sec.  57.22003 as II-A, III, and V-A, are ``gassy'' mines. There 
are no active underground M/NM mines currently classified as I-A. 
Existing regulations in 30 CFR part 57 subpart T for these four 
categories of M/NM ``gassy'' mines require underground equipment to be 
approved, examinations for methane to be conducted at specified 
intervals, and the use of MSHA-approved monitoring or remote sensing 
devices. Mine rescue stations serving these mines must have detectors 
that measure methane in the concentration range specified in the final 
rule.
    Some commenters stated that the existing requirement for mine 
rescue stations to have two detectors per station seemed sufficient. 
One commenter stated that the reason given in the proposal by MSHA that 
detectors require time to recharge and be calibrated does not take into 
account all brands of detectors. The commenter stated that Dra[euml]ger 
detectors have replaceable alkaline batteries that could easily last 
the four hours teams might need to spend underground in rescue and/or 
recovery activities. However, the typical shift for a mine rescue team 
during underground search and rescue or recovery operations is eight 
hours, some of which is under oxygen. Shifts can last beyond eight 
hours under special circumstances (e.g., availability of 
transportation, type of work required, and availability of change-out 
teams). Gas detectors used underground by mine rescue teams are cycled 
through work shifts. After detectors have been used, they need to be 
cleaned, recharged, and sometimes recalibrated, so they can be used for 
the next shift. Mine rescue teams cannot go underground without the 
required gas-measuring instrumentation and, in time-sensitive 
emergencies, cannot wait for instruments to be recharged, cleaned, or 
recalibrated. Having four detectors, two per team, will allow teams to 
continue their rescue/recovery activities without having to be delayed. 
This requirement will also provide the team with a backup device 
underground in the event of an equipment failure.
    Like the proposal, the final rule requires that detectors must be 
able to measure methane concentrations from 0 percent to 100 percent of 
volume and oxygen from 0 percent to at least 20 percent of volume. In 
response to comments, the final rule requires that detectors measure 
carbon monoxide from 0 ppm to at least 9,999 ppm. The proposal required 
that the detector measure to at least 10,000 ppm. A commenter stated 
that a multi-gas detector that measures carbon monoxide from 0 ppm to 
at least 9,999 ppm will soon be available and will be smaller and 
easier to carry than current versions, and that MSHA should permit this 
detector to be used. The final rule requires detectors to 9,999 ppm 
since this is essentially equivalent to 10,000 ppm.
    Some commenters stated their preference to continue the 
longstanding practice of using electronic oxygen and carbon monoxide 
testers in conjunction with a bellows pump gas tube tester. One 
commenter asked whether the proposed rule would prohibit the bellows 
pump detector. Under the proposal, MSHA did not intend to prohibit the 
bellows pump with gas tube detectors. However, if used, they must be 
capable of measuring the required gases within the ranges specified in 
the final rule. MSHA encourages the use of electronic gas detectors. 
These types of detectors are more accurate than gas tube-type 
detectors, and are available in the ranges required by the final rule.
6. Sec.  49.6(a)(7) Reserved
    The final rule, like the proposal, deletes the existing provision 
which required mine rescue stations to be provided with two oxygen 
indicators or flame safety lamps, since this equipment is 
technologically obsolete. MSHA received no comments on this proposal.
7. Sec.  49.6(a)(8)
    The final rule, like the proposal, makes organizational changes to 
the existing standard on communication systems. MSHA received no 
comment on this proposal.
8. Sec.  49.6(b)
    The final rule, like the proposal, requires that mine rescue team 
equipment be maintained to ensure readiness for immediate use. The 
final rule renumbers existing provisions, but makes no substantive 
changes. MSHA received no comments on this proposal.

B. Subpart B--Mine Rescue Teams for Underground Coal Mines

Section 49.16 Equipment and Maintenance Requirements

1. Sec.  49.16(a)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with certain equipment. It allows mine rescue stations 
serving certain underground anthracite coal mines to have the type and 
amount of equipment that would be appropriate for the number of their 
mine rescue team members.
    As a result of granted petitions for modification, mine rescue 
teams for underground anthracite coal mines that have no electrical 
equipment at the face or working section are composed of three members 
with one alternate to serve both teams. Given these smaller teams, 
anthracite operators submitted petitions for modification requesting 
that their mine rescue stations be allowed to maintain eight SCBAs, 
eight cap lamps, and a charging station, rather than 12 of each as 
required by existing Sec. Sec.  49.6(a)(1) and (a)(5). MSHA 
investigated each petition and made the following finding:


[[Page 53119]]


    MSHA's investigation found that reducing the quantity of 
equipment required to be purchased and maintained at the anthracite 
mine rescue station to a quantity consistent with the requirements 
of granted modifications currently in effect, which allow anthracite 
mines to be covered by two mine rescue teams of three members each 
and an alternate, will provide the same measure of protection to the 
miners.

    On the basis of those investigations, MSHA granted these petitions 
for modification of existing Sec. Sec.  49.6(a)(1) and (a)(5). 
Currently, 11 underground anthracite coal mines operate under this 
approved alternative method. The reduced number of SCBAs and cap lamps 
would provide sufficient equipment for teams serving these anthracite 
coal mines. MSHA received no comments on this proposal.
2. Sec.  49.16(a)(1)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with 12 SCBAs, each with a minimum 4-hour capacity, rather 
than a 2-hour capacity. It updates the existing rule to reflect current 
industry practice. The higher capacity SCBAs provide for greater team 
effectiveness and provide a greater measure of safety and health for 
miners. The final rule also continues to require that the mine rescue 
station have any equipment necessary for testing the breathing 
apparatus and that the apparatus be approved by MSHA and NIOSH under 42 
CFR part 84 subpart H. The final rule also contains non-substantive 
word changes. MSHA received no comments on this proposal.
3. Sec.  49.16(a)(2)
    The final rule, like the proposal, requires that mine rescue 
stations maintain supplies of liquid air, liquid oxygen, pressurized 
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent 
chemicals, as applicable to the supplied breathing apparatus and 
sufficient to sustain each team for eight hours while using the 
breathing apparatus during rescue operations. MSHA received no comments 
on this proposal.
4. Sec.  49.16(a)(3)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with two extra, fully-charged, oxygen bottles for every six 
SCBAs at the station. The existing standard required one extra, fully-
charged, oxygen bottle for every six SCBAs.
    MSHA received a comment stating that the existing standard, which 
required one extra fully charged oxygen bottle, was adequate. MSHA 
continues to believe that two extra oxygen bottles for every six SCBAs 
will assure an additional reserve of a critical safety component for 
mine rescue teams during time-sensitive underground rescue or recovery 
operations.
5. Sec. Sec.  49.16(a)(4), (a)(5), and (a)(9)
    The final rule, like the proposal, addresses requirements for 
oxygen pumps, cap lamps, and spare parts and tools for repairing 
breathing apparatus and communication systems. MSHA received no comment 
on this proposal.
6. Sec.  49.16(a)(6)
    The final rule, like the proposal, requires mine rescue stations to 
be equipped with four gas detectors appropriate for each gas that may 
be encountered at the mines served. In addition, like the proposal, 
detectors must be capable of measuring specific concentrations of 
methane, oxygen, and carbon dioxide. Like the proposal, the final rule 
leaves the decision as to the type of detector to be used to the mine 
operator.
    Some commenters stated that the existing requirement for mine 
rescue stations to have two detectors per station seemed sufficient. 
One commenter stated that the reason given in the proposal by MSHA that 
detectors require time to recharge and be calibrated does not take into 
account all brands of detectors. The commenter stated Dra[euml]ger 
detectors have replaceable alkaline batteries that could easily last 
the four hours teams might need to spend underground in rescue and/or 
recovery activities. However, the typical shift for a mine rescue team 
during underground search and rescue or recovery operations is eight 
hours, some of which is under oxygen. Shifts can last beyond eight 
hours under special circumstances (e.g., availability of 
transportation, type of work required, and availability of change-out 
teams). Gas detectors used underground by mine rescue teams are cycled 
through work shifts. After detectors have been used, they need to be 
cleaned, recharged, and sometimes re-calibrated, so they can be used 
for the next shift. Mine rescue teams cannot go underground without the 
required gas-measuring instrumentation and, in time-sensitive 
emergencies, cannot wait for instruments to be recharged, cleaned, or 
recalibrated. Having four detectors, two per team, will allow teams to 
continue their rescue/recovery activities without having to be delayed. 
This requirement will also provide the team with a backup device 
underground in the event of an equipment failure.
    Like the proposal, the final rule requires that detectors must be 
able to measure methane concentrations from 0 percent to 100 percent of 
volume and oxygen from 0 percent to at least 20 percent of volume. In 
response to comments, the final rule requires that detectors measure 
carbon monoxide from 0 ppm to at least 9,999 ppm. The proposal required 
that the detector measure to at least 10,000 ppm. A commenter stated 
that multi-gas detectors that measure carbon monoxide from 0 ppm to at 
least 9,999 ppm will soon be available, and will be smaller and easier 
to carry than current versions, and that MSHA should permit this 
detector to be used. The final rule requires detectors to 9,999 ppm 
since this is essentially equivalent to 10,000 ppm.
    Some commenters stated their preference to continue the 
longstanding practice of using electronic oxygen and carbon monoxide 
testers in conjunction with a bellows pump gas tube tester. One 
commenter asked whether the proposed rule would prohibit the bellows 
pump detector. Under the proposal, MSHA did not intend to prohibit the 
bellows pump with gas tube detectors. However, if these devices are 
used, they must be capable of measuring the required gases within the 
ranges specified in the final rule. MSHA encourages the use of 
electronic gas detectors. These types of detectors are more accurate 
than gas tube-type detectors, and are available in the ranges required 
by the final rule.
7. Sec.  49.16(a)(7) Reserved
    The final rule, like the proposal, deletes the existing provision 
that mine rescue stations be provided with two oxygen indicators or 
flame safety lamps since this equipment is technologically obsolete. 
MSHA received no comment on this proposal.
8. Sec.  49.16(a)(8)
    The final rule, like the proposal, requires that mine rescue team 
equipment include a communication system. One commenter suggested that 
MSHA allow handheld permissible radios to satisfy the requirement. In 
support of this suggestion, the commenter stated that these radios are 
the best technology, and have been used by the commenter exclusively in 
mine emergencies and underground training for the past five years. Mine 
rescue teams may use a wireless communication system or a wired system 
provided the system is approved under Part 23 of this title.
9. Sec.  49.16(b)
    The final rule, like the proposal, requires that mine rescue team 
equipment be maintained to ensure

[[Page 53120]]

readiness for immediate use. MSHA received no comments on this 
proposal.

IV. Regulatory Economic Analysis

A. Executive Order 12866

    Executive Order (E.O.) 12866 (58 FR 51735), as amended by E.O. 
13258 (67 FR 9385), requires that regulatory agencies assess both the 
costs and benefits of regulations. E.O. 12866 classifies a rule as a 
significant regulatory action requiring review by the Office of 
Management and Budget if, among other things, it has an annual effect 
on the economy of $100 million or more; creates a serious inconsistency 
or interferes with an action of another agency; materially alters the 
budgetary impact of entitlements or the rights of entitlement 
recipients; or raises novel legal or policy issues. MSHA has determined 
that the final rule does not have an annual effect of $100 million or 
more on the economy and that, therefore, it is not an economically 
``significant regulatory action'' pursuant to section 3(f) of E.O. 
12866. MSHA, however, has concluded that the final rule is ``otherwise 
significant'' under E.O. 12866 because it raises novel legal or policy 
issues.

B. Population at Risk

    Based on data for 2007, the final rule applies to 613 underground 
coal mines and 233 underground metal and nonmetal mines with miners 
working underground. It covers 42,176 coal miners, 15,223 metal and 
nonmetal miners, and 8,139 coal and metal and nonmetal (non-office) 
contractors working underground in these mines.

C. Compliance Costs

    MSHA estimates that the total yearly cost of the final rule is 
approximately $812,000. MSHA estimates that the costs are allocated as 
follows: approximately $452,000 for coal operators, approximately 
$250,000 for metal and nonmetal operators, and approximately $110,000 
for State and local governments. Government-owned mine rescue stations 
serving underground coal mines include 20 State, one county, and two 
public colleges. Government-owned mine rescue stations serving 
underground metal and nonmetal mines include one Federal and 13 State. 
Some of the mine rescue stations serving underground coal mines also 
serve underground metal and nonmetal mines.
    Final Sec.  49.16(a) requires that mine rescue stations serving 
underground anthracite coal mines, which have no electrical equipment 
at the face or working section, have at least the amount of equipment 
appropriate for the number of mine rescue team members. These 
anthracite coal mines typically have fewer mine rescue team members. 
This standard allows mine rescue stations associated with mine rescue 
teams having a reduced number of members to maintain fewer SCBAs, cap 
lamps, and charging racks than required under Sec. Sec.  49.16(a)(1) 
and (a)(5) for other coal mine rescue stations. Because granted 
petitions for modification already permit these anthracite coal mines 
to have equipment appropriate for the number of mine rescue team 
members, MSHA estimates that, for anthracite mines, there will be no 
change in costs for this provision.
    Final Sec. Sec.  49.6(a)(1) and 49.16(a)(1) require that mine 
rescue stations serving underground metal and nonmetal and coal mines 
be equipped with 12 SCBAs, each with a minimum 4-hour capacity, and 
associated testing equipment. Because MSHA has determined that all mine 
rescue stations serving metal and nonmetal and coal mines are already 
equipped with MSHA and NIOSH approved 4-hour SCBAs and associated 
testing equipment, the Agency estimates that there are no costs 
associated with this requirement.
    Final Sec. Sec.  49.6(a)(2) and 49.16(a)(2) require that mine 
rescue stations serving underground coal and metal and nonmetal mines 
increase their supply of liquid air, liquid oxygen, pressurized oxygen, 
or oxygen generating chemicals and carbon dioxide absorbent chemicals 
from six hours to eight hours for each team. Based on MSHA's knowledge 
and experience, these supplies are purchased in bulk, and the final 
rule would only cause mine operators to restock these supplies slightly 
more frequently. MSHA estimates that the associated cost would be 
negligible. Under the final rule, mine operators must stock an extra 
two hours of liquid oxygen, pressurized oxygen, or oxygen generating 
chemicals and carbon dioxide absorbent chemicals; they do not have to 
use them in training.
    Final Sec. Sec.  49.6(a)(3) and 49.16(a)(3) require that two 
additional fully-charged oxygen bottles be provided for every six self-
contained breathing apparatus. The existing standard required one 
extra, fully-charged oxygen bottle for every six self-contained 
breathing apparatus. To meet the final requirements, MSHA estimates 
that one additional oxygen bottle will have to be purchased for each 
mine rescue station. MSHA estimates that the cost for one oxygen bottle 
is $1,615, to which MSHA has applied an annualization factor of 0.11 to 
reflect a 7 percent discount rate applied over 15 years. The resulting 
annualized cost is $178 for each mine rescue station. There are 92 
existing mine rescue stations serving underground coal mines and a 
total of 65 mine rescue stations serving metal and nonmetal mines. In 
the Agency's final rule for Mine Rescue Teams (73 FR 7635, February 8, 
2008), MSHA estimated that the underground coal mining industry will 
need to create 28 additional stations, for a total of 120 mine rescue 
stations. MSHA estimates that the yearly cost of this final requirement 
is $11,570 for mine rescue stations serving underground metal and 
nonmetal mines, and $21,360 for mine rescue stations serving 
underground coal mines.
    Final Sec. Sec.  49.6(a)(6) and 49.16(a)(6) require mine rescue 
stations serving underground metal and nonmetal mines and underground 
coal mines to have four gas detectors appropriate for each type of gas 
that may be encountered at the mines served. Gas detectors must measure 
concentrations of methane from 0.0 percent to 100 percent of volume, 
oxygen from 0.0 percent to at least 20 percent of volume, and carbon 
monoxide from 0.0 parts per million to at least 9,999 parts per 
million. Oxygen is present in all underground metal and nonmetal mines, 
and carbon monoxide can be found in the vast majority of underground 
metal and nonmetal mines. Other gases can also be found in underground 
metal and nonmetal mines. Methane, oxygen, and carbon monoxide and 
other gases can be found in underground coal mines.
    To estimate the incremental costs for gas detectors under this 
final rule, MSHA compared the cost for gas detectors under the final 
rule to the baseline cost for gas detectors under the existing rule. 
Either single-gas or multi-gas detectors may be used under the existing 
and final rules, but for costing purposes MSHA assumed that multi-gas 
detectors are being and will be used. In addition, in response to 
comments, MSHA increased costs from the proposal to cover maintenance 
and calibration.
    Under the existing rule, each mine rescue station is required to 
have two gas detectors appropriate for each type of gas that may be 
encountered at the mines served. Mine rescue stations currently have 
multi-gas detectors that comply with the existing rule, and these 
detectors would have to be replaced over time. MSHA assumed a 
replacement cost of $2,000 for each multi-gas detector required under 
the existing rule. MSHA also assumed that the existing calibration kit 
for each mine rescue station would not need to be replaced. MSHA 
estimates that the

[[Page 53121]]

essential accessories for a multi-gas detector include a charging 
module, a battery pack, a protective case, and a remote sampling pump 
at a cost of $862. The total estimated baseline cost for for a multi-
gas detector and essential accessories is $2,862. These baseline costs 
are subject to an annualization factor of 0.244 to reflect a 7 percent 
discount rate and a service life of 5 years. MSHA further assumed that 
replacement of a multi-gas detector and essential accessories under the 
existing rule would have occurred in approximately three years. 
Therefore, these baseline costs were discounted by three years using a 
7 percent discount rate. The estimated annualized cost for the 
replacement of a multi-gas detector and essential accessories is $569.
    In addition, MSHA estimated a baseline cost of $712 for annual 
maintenance and calibration for each multi-gas detector. MSHA assumed 
that annual maintenance and calibration would have continued each 
following year and, therefore, annual maintenance baseline costs were 
discounted by one year using a 7 percent discount rate. The discounted 
baseline cost for annual maintenance and calibration for a multi-gas 
detector is estimated to be $666.
    The total estimated yearly baseline cost to replace a multi-gas 
detector and essential accessories and to maintain and calibrate the 
multi-gas detector under the existing rule is $1,235 a year. Because 
each mine rescue station is required to have two gas detectors under 
the existing rule, the total baseline cost for two multi-gas detectors 
is $2,470 for each mine rescue station.
    Under the final rule, MSHA estimates that all mine rescue stations 
will be equipped with four multi-gas detectors appropriate for each 
type of gas that may be encountered at the mines served. MSHA also 
estimates that all mine rescue stations will be equipped with essential 
accessories for each multi-gas detector and that each mine will be 
equipped with one calibration kit. In response to comments, MSHA 
increased the cost for each multi-gas detector from $2,000 under the 
proposal to $3,000 under this final rule. MSHA estimates that the cost 
of essential accessories for a multi-gas detector is $862 and that a 
calibration kit costs approximately $268. The estimated cost for four 
multi-gas detectors, four essential accessories, and one calibration 
kit is $15,716. These costs are all subject to an annualization factor 
of 0.244 to reflect a 7 percent discount rate and a service life of 5 
years. The annualized cost to purchase the four multi-gas detectors, 
four essential accessories, and one calibration kit under this final 
rule is $3,835 for each mine rescue station. In addition, MSHA 
estimates that the annual maintenance and calibration cost for a multi-
gas detector is approximately $712, for a total of $2,848 for four 
multi-gas detectors. The total estimated yearly cost to purchase four 
multi-gas detectors, four essential accessories, and a calibration kit, 
and to maintain and calibrate the four multi-gas detectors is $6,683.
    MSHA estimates that the incremental yearly cost of the gas 
detectors is $4,213 ($6,683 minus the baseline cost of $2,470) for each 
mine rescue station, and a total of $273,845 for the 65 mine rescue 
stations serving underground metal and nonmetal mines, and $505,580 for 
the 120 mine rescue stations serving underground coal mines.
    MSHA has not associated any costs with the existing requirements 
for mine rescue stations to be equipped with either two oxygen 
indicators or two flame safety lamps, since they reflect obsolete 
technology. MSHA believes that most mine operators have already 
replaced flame safety lamps and oxygen indicators with new, more 
accurate technologically advanced devices.
    Table I summarizes the estimated total cost of this rule. In 
response to comments, MSHA has estimated separate costs for mine rescue 
stations serving underground coal mines and underground metal and 
nonmetal mines of $526,920 and $285,415, respectively.

                             Table I--Estimated Total Yearly Cost of the Final Rule
----------------------------------------------------------------------------------------------------------------
                                                                                Annualized
                                                          Annualized cost    incremental cost
                                        Number of mine    per mine rescue    per mine rescue
              Mine size                rescue stations    station for one    station for gas   Total yearly cost
                                                           oxygen bottle     detectors under
                                                                                final rule
----------------------------------------------------------------------------------------------------------------
                               Mine Rescue Stations Serving Underground Coal Mines
----------------------------------------------------------------------------------------------------------------
1-19................................                 19               $178             $4,213            $83,429
20-500..............................                 71                178              4,213            311,761
501+................................                 13                178              4,213             57,083
Government..........................                 17                178              4,213             74,647
                                     -------------------                                      ------------------
    Total...........................                120  .................  .................            526,920
----------------------------------------------------------------------------------------------------------------
                       Mine Rescue Stations Serving Underground Metal and Non-Metal Mines
----------------------------------------------------------------------------------------------------------------
1-19................................                  2               $178             $4,213             $8,782
20-500..............................                 50                178              4,213            219,550
501+................................                  5                178              4,213             21,955
Government..........................                  8                178              4,213             35,128
                                     -------------------                                      ------------------
    Total...........................                 65  .................  .................            285,415
----------------------------------------------------------------------------------------------------------------

D. Benefits

    The requirements in this rule will improve and enhance equipment 
for mine rescue teams who must respond, for rescue and recovery, to an 
emergency at an underground mine. Mine operators often rely on mine 
rescue teams to save miners during an underground emergency, such as an 
explosion, fire, roof fall, or water inundation. Mine rescue team 
members often put themselves in danger to save miners injured or 
trapped underground as the result of these events, and to recover 
miners who can't be rescued. To help them to conduct mine rescue and 
recovery activities safely and effectively, mine rescue teams must be 
provided

[[Page 53122]]

with up-to-date mine rescue equipment. In an emergency, a properly 
equipped mine rescue team could mean the difference between life and 
death.

V. Feasibility

    MSHA has concluded that the requirements of the final rule are 
technologically and economically feasible.

A. Technological Feasibility

    This final rule is technologically feasible because all mine rescue 
team equipment required in this rule is available and in use in many 
underground mines.

B. Economic Feasibility

    Due to a total cost of approximately $812,000 for this rule, MSHA 
concludes that the rule is economically feasible.

VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act

    In accordance with the Regulatory Flexibility Act (RFA) of 1980 as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA analyzed the impact of the final rule on small entities. 
Based on that analysis, MSHA notified the Chief Counsel for Advocacy, 
Small Business Administration (SBA), and made the certification under 
section 605(b) of the Regulatory Flexibility Act that the final rule 
does not have a significant economic impact on a substantial number of 
small entities. The factual basis for this certification is presented 
below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the SBA definition for a small entity or, after 
consultation with the SBA Office of Advocacy, establish an alternative 
definition for the mining industry by publishing that definition in the 
Federal Register for notice and comment. MSHA has not taken such an 
action and, thus, is required to use the SBA definition. The SBA 
defines a small entity in the mining industry as an establishment with 
500 or fewer employees.
    MSHA has also examined the impacts of this rule on underground coal 
and metal and nonmetal mines with fewer than 20 employees, which MSHA 
has traditionally referred to as ``small mines.'' These small mines 
differ from larger mines not only in the number of employees, but also 
in economies of scale in material produced, in the type and amount of 
production equipment, and in supply inventory.

B. Factual Basis for Certification

    MSHA initially evaluates the economic impact of a rule on ``small 
entities'' by comparing the estimated cost of the rule for small 
entities to their estimated revenue. When the estimated cost is less 
than one percent of estimated revenue for the size categories 
considered, MSHA believes it is generally appropriate to conclude that 
there is not a significant economic impact on a substantial number of 
small entities. Due to the costs of this final rule, MSHA certifies 
that it does not have a significant economic impact on a substantial 
number of small entities.

VII. Paperwork Reduction Act of 1995

    The final rule, like the existing rule, requires certification of 
inspection, testing, and any corrective action taken for breathing 
apparatus. MSHA estimates that any additional paperwork burden due to 
the requirements in the final rule is de minimis and, therefore, has 
not included an additional paperwork burden.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.). The final rule will not increase 
private sector expenditures by more than $100 million annually; nor 
will it significantly or uniquely affect small governments. The final 
rule may increase expenditures minimally by State, local, or tribal 
governments, because it requires certain new equipment for mine rescue 
stations. These changes will not directly affect States or their 
relationships with the national government; however, some States 
sponsor or equip mine rescue stations.

B. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    This final rule will have no affect on family well-being or 
stability, marital commitment, parental rights or authority, or income 
or poverty of families and children. Accordingly, Section 654 of the 
Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 
601 note) requires no further Agency action, analysis, or assessment.

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

    This final rule would not implement a policy with takings 
implications. Accordingly, E.O. 12630, Governmental Actions and 
Interference with Constitutionally Protected Property Rights, requires 
no further Agency action or analysis.

D. Executive Order 12988: Civil Justice Reform

    This final rule was written to provide a clear legal standard for 
affected conduct and was carefully reviewed to eliminate drafting 
errors and ambiguities, so as to minimize litigation and undue burden 
on the Federal court system. Accordingly, this final rule meets the 
applicable standards provided in section 3 of E.O. 12988, Civil Justice 
Reform.

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

    This final rule would have no adverse impact on children. 
Accordingly, E.O. 13045, Protection of Children from Environmental 
Health Risks and Safety Risks, as amended by E.O. 13229 and 13296, 
requires no further Agency action or analysis.

F. Executive Order 13132: Federalism

    Executive Order (E.O.) 13132 requires MSHA to develop an 
accountable process to ensure a meaningful and timely input by State 
and local officials in the development of regulatory policies that have 
``federalism implications.'' Policies that have federalism implications 
are defined as having ``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.'' The final rule places new equipment requirements on 
mine operators and States that provide mine rescue stations. These 
changes will not directly affect States or their relationships with the 
federal government. Although the final rule does not directly affect 
States, some States sponsor or equip mine rescue stations.

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

    This final rule would not have ``tribal implications'' because it 
does not ``have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.'' Accordingly, E.O. 13175, 
Consultation and Coordination with Indian Tribal

[[Page 53123]]

Governments, requires no further Agency action or analysis.

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

    This final rule has been reviewed for its impact on the supply, 
distribution, and use of energy because it applies to the underground 
coal mining sector. Insofar as this final rule results in yearly costs 
of approximately $0.5 million to the underground coal mining industry, 
relative to annual revenues of $14.1 billion in 2007, it is not a 
``significant energy action'' because it will not be ``likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy * * * (including a shortfall in supply, price increases, and 
increased use of foreign supplies).'' Accordingly, E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use, requires no further Agency action or analysis.

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

    MSHA has reviewed the final rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. MSHA has determined and 
certified that the final rule does not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 30 CFR Part 49

    Coal mines, Emergency equipment and maintenance, Emergency response 
services, Metal mines, Mine safety and health, Nonmetal mines, 
Underground mining.

    Dated: September 9, 2008.
Richard E. Stickler,
Acting Assistant Secretary for Mine Safety and Health.

0
For the reasons set out in the preamble, and under the authority of the 
Federal Mine Safety and Health Act of 1977, as amended by the Mine 
Improvement and New Emergency Response Act of 2006, MSHA is amending 
chapter I of title 30 of the Code of Federal Regulations as follows:

PART 49--MINE RESCUE TEAMS

0
1. The authority for part 49 continues to read as follows:

    Authority: 30 U.S.C. 811, 825(e), 957.


0
2. Revise Sec.  49.6 to read as follows:


Sec.  49.6  Equipment and maintenance requirements.

    (a) Each mine rescue station shall be provided with at least the 
following equipment:
    (1) Twelve self-contained breathing apparatus, each with a minimum 
of 4 hours capacity (approved by MSHA and NIOSH under 42 CFR Part 84, 
Subpart H), and any necessary equipment for testing such breathing 
apparatus;
    (2) A portable supply of liquid air, liquid oxygen, pressurized 
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent 
chemicals, applicable to the supplied breathing apparatus and 
sufficient to sustain each team for eight hours while using the 
breathing apparatus during rescue operations.
    (3) Two extra, fully-charged oxygen bottles for every six self-
contained breathing apparatus;
    (4) One oxygen pump or a cascading system, compatible with the 
supplied breathing apparatus;
    (5) Twelve permissible cap lamps and a charging rack;
    (6) Four gas detectors appropriate for each type of gas that may be 
encountered at the mines served. Gas detectors must measure 
concentrations of methane from 0.0 percent to 100 percent of volume, 
oxygen from 0.0 percent to at least 20 percent of volume, and carbon 
monoxide from 0.0 parts per million to at least 9,999 parts per 
million.
    (7) [Reserved].
    (8) One portable mine rescue communication system (approved under 
part 23 of this title) or a sound-powered communication system.
    (i) The wires or cable to the communication system shall be of 
sufficient tensile strength to be used as a manual communication 
system.
    (ii) These communication systems shall be at least 1,000 feet in 
length.
    (9) Necessary spare parts and tools for repairing the breathing 
apparatus and communication system.
    (b) Mine rescue apparatus and equipment shall be maintained in a 
manner that will ensure readiness for immediate use.
    (1) A person trained in the use and care of breathing apparatus 
shall inspect and test the apparatus at intervals not exceeding 30 days 
and shall certify by signature and date that the inspections and tests 
were done.
    (2) When the inspection indicates that a corrective action is 
necessary, the corrective action shall be made and the person shall 
record the corrective action taken.
    (3) The certification and the record of corrective action shall be 
maintained at the mine rescue station for a period of one year and made 
available on request to an authorized representative of the Secretary.

0
3. Revise Sec.  49.16 to read as follows:


Sec.  49.16  Equipment and maintenance requirements.

    (a) Each mine rescue station shall be provided with at least the 
following equipment. Mine rescue stations serving underground 
anthracite coal mines, which have no electrical equipment at the face 
or working section, shall have at least the amount of equipment 
appropriate for the number of mine rescue team members.
    (1) Twelve self-contained breathing apparatus, each with a minimum 
of 4 hours capacity (approved by MSHA and NIOSH under 42 CFR part 84, 
subpart H), and any necessary equipment for testing such breathing 
apparatus.
    (2) A portable supply of liquid air, liquid oxygen, pressurized 
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent 
chemicals, as applicable to the supplied breathing apparatus and 
sufficient to sustain each team for 8 hours while using the breathing 
apparatus during rescue operations.
    (3) Two extra, fully-charged oxygen bottles for every six self-
contained breathing apparatus.
    (4) One oxygen pump or a cascading system, compatible with the 
supplied breathing apparatus.
    (5) Twelve permissible cap lamps and a charging rack.
    (6) Four gas detectors appropriate for each type of gas that may be 
encountered at the mines served. Gas detectors must measure 
concentrations of methane from 0.0 percent to 100 percent of volume, 
oxygen from 0.0 percent to at least 20 percent of volume, and carbon 
monoxide from 0.0 parts per million to at least 9,999 parts per 
million.
    (7) [Reserved].
    (8) One portable mine rescue communication system (approved under 
part 23 of this title) or a sound-powered communication system.
    (i) The wires or cable to the communication system shall be of 
sufficient tensile strength to be used as a manual communication 
system.
    (ii) These communication systems shall be at least 1,000 feet in 
length.
    (9) Necessary spare parts and tools for repairing the breathing 
apparatus and communication system.
    (b) Mine rescue apparatus and equipment shall be maintained in a 
manner that will ensure readiness for immediate use.
    (1) A person trained in the use and care of breathing apparatus 
shall inspect

[[Page 53124]]

and test the apparatus at intervals not exceeding 30 days and shall 
certify by signature and date that the inspections and tests were done.
    (2) When the inspection indicates that a corrective action is 
necessary, the corrective action shall be made and the person shall 
record the corrective action taken.
    (3) The certification and the record of corrective action shall be 
maintained at the mine rescue station for a period of 1 year and made 
available on request to an authorized representative of the Secretary.

[FR Doc. E8-21449 Filed 9-12-08; 8:45 am]
BILLING CODE 4510-43-P