[Federal Register Volume 76, Number 119 (Tuesday, June 21, 2011)]
[Rules and Regulations]
[Pages 35968-35978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-15247]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AB76


Maintenance of Incombustible Content of Rock Dust in Underground 
Coal Mines

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Final rule.

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SUMMARY: This final rule replaces the Mine Safety and Health 
Administration's Emergency Temporary Standard (ETS) pursuant to section 
101(b) of the Federal Mine Safety and Health Act of 1977. The final 
rule adopts the requirements contained in the ETS. Under the final 
rule, mine operators must maintain the incombustible content of 
combined coal dust, rock dust, and other dust to at least 80 percent in 
underground areas of bituminous coal mines. The final rule further 
requires that the incombustible content of such combined dust be 
increased 0.4 percent for each 0.1 percent of methane present.
    Accumulations of coal dust can ignite, resulting in an explosion, 
or after an explosion, they can intensify flame propagation, increasing 
the severity of explosions. The final rule, like the ETS, reduces both 
the potential for a coal mine explosion and the severity of explosions 
should they occur.

DATES: Effective date: June 21, 2011.

[[Page 35969]]


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

SUPPLEMENTARY INFORMATION: MSHA is including the following outline to 
assist the public in finding information in the preamble.

I. Introduction
II. Discussion of Final Rule
III. Regulatory Economic Analysis
    A. Executive Order (E.O.) 12866 and E.O. 13563
    B. Population at Risk
    C. Benefits
    D. Compliance Costs
    E. Net Benefits
IV. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
V. Regulatory Flexibility Act (RFA) and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VI. Paperwork Reduction Act of 1995
VII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. Executive Order 13132: Federalism
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    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
VIII. References
IX. Final Rule--Regulatory Text

I. Introduction

    Rock dust is a pulverized stone used to cover coal dust and render 
accumulations of it inert. The Mine Safety and Health Administration 
(MSHA) defines ``rock dust'' under 30 CFR 75.2 as:

    Pulverized limestone, dolomite, gypsum, anhydrite, shale, adobe, 
or other inert material, preferably light colored, 100 percent of 
which will pass through a sieve having 20 meshes per linear inch and 
70 percent or more of which will pass through a sieve having 200 
meshes per linear inch; the particles of which when wetted and dried 
will not cohere to form a cake which will not be dispersed into 
separate particles by a light blast of air; and which does not 
contain more than 5 percent combustible matter or more than a total 
of 4 percent free and combined silica (SiO2), or, where 
the Secretary finds that such silica concentrations are not 
available, which does not contain more than 5 percent of free and 
combined silica.

    Mine operators are required to apply rock dust in underground 
bituminous coal mines to reduce the explosion potential of coal dust 
and other dust generated during mining operations. Effective and 
frequent rock dust application is essential to protect miners from the 
potential of a coal dust explosion, or if one occurs, to reduce its 
severity.
    When drafting the Federal Coal Mine Safety Act of 1952, Public Law 
49-77 (1952), the Congress recognized a need to prevent major disasters 
in underground coal mines. At that time, the Congress particularly 
noted the threat of coal mine explosions due to accumulations of coal 
dust.
    Under the Federal Coal Mine Health and Safety Act of 1969 (Coal 
Act), Public Law 91-173, Congress emphasized, among other things, the 
need for interim safety standards to improve control of combustibles--
such as loose coal--that propagate explosions. The Congress also 
recognized the need to prevent coal dust from accumulating in explosive 
quantities and to prevent coal dust explosions. Congress included 
language related to rock dusting, which provided:

    Where rock dust is required to be applied, it shall be 
distributed upon the top, floor, and sides of all underground areas 
of a coal mine and maintained in such quantities that the 
incombustible content of the combined coal dust, rock dust, and 
other dust shall be not less than 65 per centum, but the 
incombustible content in the return aircourses shall be no less than 
80 per centum. Where methane is present in any ventilating current, 
the per centum of incombustible content of such combined dust shall 
be increased 1.0 and 0.4 per centum for each 0.1 per centum of 
methane where 65 and 80 per centum, respectively, of incombustibles 
are required. [Conference Report No. 91-761, Section 304(d)].

    The Congress retained this Coal Act provision in the Federal Mine 
Safety and Health Act of 1977 (Mine Act). The higher limit for return 
airways was determined in large part because fine ``float'' coal dust 
(100 percent < 200 mesh or 75 micrometers ([micro]m)) tends to collect 
in these airways.
    On September 23, 2010, under section 101(b) of the Mine Act, MSHA 
published an ETS, notice of public hearings, and notice of close of 
comment period (75 FR 57849) revising the existing standard at 30 CFR 
75.403, ``Maintenance of incombustible content of rock dust'' 
applicable to underground areas of bituminous coal mines. The ETS 
served both as an emergency temporary final rule with immediate effect 
and provided an opportunity for notice and comment. Under the Act, MSHA 
is required to promulgate a final rule within nine months after 
publication of an ETS.
    The legislative history of the Mine Act reinforces the statutory 
language regarding the ETS providing opportunity for comment ``so that 
all views can be carefully considered in connection with the issuance 
of a permanent standard.'' S. Rept. No. 95-181, 24 (1977). With 
publication of this final rule, MSHA has fulfilled its obligations 
under section 101(b) of the Mine Act.
    MSHA held four public hearings on the ETS: St. Louis, Missouri, 
October 26, 2010; Birmingham, Alabama, October 28, 2010; Lexington, 
Kentucky, November 16, 2010; and Charleston, West Virginia, November 
18, 2010. The public comment period closed on December 20, 2010. In 
addition to testimony provided by the mining community at the public 
hearings, MSHA received comments to the rulemaking record. Comments are 
discussed below.
    To clarify MSHA's enforcement under the ETS, the Agency issued 
Program Information Bulletin (PIB) No. P10-18, ``Accumulation of 
Combustible Materials and Rock Dust,'' on September 21, 2010 (September 
2010 PIB). The PIB emphasized that underground coal mine operators had 
not been rock dusting in all required areas and were not maintaining 
the required levels of rock dust applications in compliance with the 
previous MSHA standard of no less than 65 per centum in intake 
aircourses, and no less than 80 per centum in return aircourses under 
30 CFR 75.403.
    On October 14, 2010, MSHA issued Procedure Instruction Letter No. 
10-V-16, ``Accumulation of Combustible Materials and Rock Dust'' 
(October 2010 PIL). The October 2010 PIL provided instruction for MSHA 
enforcement personnel regarding accumulation of combustible materials 
and rock dust. In the 2010 PIL, MSHA emphasized each mine operator's 
responsibility to comply with the ETS by October 7, 2010, for newly 
mined areas; and November 22, 2010, for all other areas of the mine. 
MSHA provided instruction to Agency personnel for enforcing the ETS and 
for taking spot rock dust samples at applicable mines.

II. Discussion of Final Rule

    Final 30 CFR 75.403 retains the requirements of the ETS verbatim to

[[Page 35970]]

ensure continuous protection for underground bituminous coal miners 
from grave danger due to hazards of coal dust explosions. Mine 
operators must maintain the incombustible content of the combined coal 
dust, rock dust, and other dust in all areas of underground bituminous 
coal mines to at least 80 percent. Where rock dust is required, it must 
be distributed upon the top, floor, and ribs of all underground areas 
of a bituminous coal mine and maintained in such quantities that the 
incombustible content of the combined coal dust, rock dust, and other 
dust will be at least 80 percent. The final rule, like the ETS, 
increases the incombustible content in all areas, other than return air 
courses, from 65 percent to 80 percent. In addition, the final rule, 
like the ETS, requires that where methane is present in any ventilating 
current, the percent of incombustible content of such combined dust 
shall be increased 0.4 percent for each 0.1 percent of methane.
    In developing the final rule, MSHA considered its accident 
investigation reports of mine explosions in intake air courses that 
involved coal dust (Dubaniewicz 2009); the National Institute for 
Occupational Safety and Health's (NIOSH) Report of Investigations 9679 
(Cashdollar et al., 2010), ``Recommendations for a New Rock Dusting 
Standard to Prevent Coal Dust Explosions in Intake Airways''; MSHA's 
experience and data; public comments on the ETS; and testimony provided 
at the public hearings. MSHA believes that the requirements of the 
final rule are necessary to continue to protect underground bituminous 
coal miners from grave danger.
    In the 1920s, the U.S. Bureau of Mines (the Bureau) conducted 
industry-wide surveys of coal dust particle size produced by mining. 
The Bureau conducted large-scale explosion tests using dust particles 
of the size range obtained from the survey to determine the amount of 
rock dust required to prevent explosion propagation. The results of 
this research were the basis for the interim safety standard under the 
Coal Act and the standard promulgated under the Mine Act.
    Mining technology, equipment, and methods have changed 
significantly since the 1920s. In the latest study, NIOSH and MSHA 
collaborated to conduct a survey to update information about existing 
coal dust particle size distribution in underground bituminous coal 
mines. MSHA inspectors collected a variety of dust samples from intake 
and return airways from these mines. NIOSH found that the coal dust 
particle size distribution in intake airways is much finer than in 
mines of the 1920s because of the significant changes in mining methods 
and equipment (Cashdollar et al., 2010).
    Given the results of this latest coal dust particle size survey, 
NIOSH conducted a series of large-scale dust explosion tests at the 
NIOSH Lake Lynn Experimental Mine (LLEM) using the dust survey results 
to determine the incombustible content necessary to prevent explosion 
propagation. NIOSH determined that to significantly decrease the 
potential for propagation of explosions, the finer coal dust particle 
size found in intake airways requires a greater incombustible content 
than the 65 percent required under MSHA's standard at that time, since 
the explosion hazard increases as the coal dust particle size 
decreases. Based on the results of the LLEM testing, NIOSH recommended 
an 80 percent total incombustible content (TIC) in both intake and 
return airways of bituminous coal mines. In addition, despite survey 
indications that return dust particle sizes are finer than those in 
past studies, NIOSH found that the existing requirement of 80 percent 
TIC is still sufficient for these areas, in the absence of methane. The 
testing showed that the TIC required to prevent flame propagation 
becomes much less dependent on coal particle size as the TIC approaches 
and exceeds 80 percent (Cashdollar et al., 2010). Therefore, the 
results of the experiments support MSHA's final rule requiring 80 
percent TIC for all areas of underground bituminous coal mines.
    In 2009, NIOSH published a paper examining past mine explosions to 
identify the ignition locations and ignition sources responsible for 
the most severe explosion events ignited in intake air courses 
resulting in death (Dubaniewicz 2009). MSHA reviewed all of the 
accident reports identified by NIOSH for the period from 1976 through 
2001 (26 years). MSHA determined that there were six explosions that 
resulted in 46 fatalities in which rock dusting conditions and 
practices in intake air courses contributed to the severity of the 
explosions. These explosions occurred at: Scotia Mine in 1976; Adkins 
Coal Company, No. 11 Mine in 1981; No. 1 Mine, RFH Coal Company in 
1982; Southmountain Coal Company Mine No. 3 in 1992; No. 9 Mine, Day 
Branch Coal Company in 1994; and Jim Walter Resources, Inc. No. 5 Mine 
in 2001.
    The Scotia Mine, Scotia Coal Company, experienced two explosions in 
1976: March 9 and March 11. The first explosion, which claimed the 
lives of 15 miners, resulted from the ignition of a large methane 
accumulation. Coal dust entered into this explosion, but only to a 
minor degree. The second explosion, which claimed the lives of eleven 
miners, started as a methane explosion and coal dust entered into the 
explosion and aided in the propagation of the explosion (DOL/MSHA 
1993).
    On December 7, 1981, an explosion at the Adkins Coal Company, No. 
11 Mine resulted in fatal injuries to eight miners. A coal dust 
explosion occurred when a blown-out shot ignited coal dust put into 
suspension by other blasts of the coal face. Sufficient quantities of 
rock dust were not applied to the mine surfaces and coal dust deposited 
on the floor, roof, and ribs from previously mined areas ignited and 
propagated the explosion away from the face (DOL/MSHA 1981).
    The No. 1 Mine, RFH Coal Company, experienced an explosion on 
January 20, 1982, resulting in the death of seven miners. Flames from 
explosives were not contained within the limits of the coal being 
blasted killing two miners. A coal dust explosion occurred when the 
flame ignited coal dust put into suspension by previous blasts. 
Sufficient quantities of rock dust were not applied to the mine 
surfaces and coal dust propagated the explosion throughout the entire 
mine. This coal dust explosion claimed the lives of five more miners 
(DOL/MSHA 1982).
    The Southmountain Coal Company Mine No. 3 experienced an explosion 
on December 7, 1992, resulting in fatal injuries to eight miners. An 
explosion fueled by a limited quantity of methane created enough force 
to place coal dust into suspension ahead of the flame front. Ignition 
of the coal dust allowed immediate propagation of the explosion because 
sufficient quantities of incombustible rock dust were not available to 
inert the coal dust. The coal dust explosion propagated to the surface 
areas of the mine (DOL/MSHA 1993).
    The No. 9 Mine, Day Branch Coal Company, experienced an explosion 
on May 11, 1994, resulting in fatal injuries to two miners. A limited 
quantity of methane was ignited, and both methane and coal dust 
accumulations contributed to the propagation of the initial explosion 
flame. As the explosion traveled through the panel the methane was 
consumed, however, coal dust suspended in the air propagated the 
explosion approximately 715 feet away from the face (DOL/MSHA 1995).
    On September 23, 2001, two explosions at the Jim Walter Resources, 
Inc. No. 5 Mine resulted in fatal injuries to thirteen miners. The 
first explosion was a methane explosion caused when a roof fall 
occurred and damaged a large

[[Page 35971]]

six-ton 64-volt scoop battery that was connected to a battery charger. 
One miner was severely injured or killed by the first explosion. The 
MSHA investigation report concluded that the second explosion also 
started as a methane explosion and strengthened when it encountered 
additional methane and coal dust. The explosion, fueled primarily by 
coal dust, propagated outby and claimed the lives of 12 miners (DOL/
MSHA 2002).
    The impact of these mine explosions might have been significantly 
reduced had there been quantities of rock dust applied in accordance 
with the final rule. The rock dust would have prevented the explosions 
from propagating to areas where miners were working, thus saving lives.
    In addition, MSHA is also aware of at least 4 explosions or 
ignitions occurring in underground bituminous mines from 1985 through 
2008 which did not result in miner injuries or fatalities; however, 
MSHA investigation reports concluded that poor rock dust practices 
contributed to these explosions.
    Several commenters on the ETS, including participants at the public 
hearings, stated that they agreed with MSHA's actions in issuing the 
ETS and the supporting documentation for increasing the incombustible 
content in intake entries to 80 percent in underground bituminous coal 
mines. These commenters stated that explosions in U.S. underground coal 
mines have escalated in magnitude. According to the commenters, one 
explosion was so powerful that it had ripped a roof strap bolted to the 
mine roof, while another explosion destroyed the welds on a scoop 
bucket. MSHA's experience indicates that many explosions in underground 
bituminous coal mines can be intensified by coal dust.
    Where rock dust is required to be applied, the final rule requires 
that mine operators distribute it upon the top, floor, and sides of all 
underground areas of a coal mine. MSHA intends for mine operators to 
rock dust areas that pose the greatest risk to miners. These areas 
include areas near the active faces and areas that contain ignition 
sources, such as conveyor belt drives and conveyor belt entries because 
they pose the greatest potential for methane and coal dust explosions.
    Some commenters expressed concerns with MSHA's enforcement of the 
ETS because they believe mine operators are applying less rock dust in 
underground bituminous mines than required under the ETS. For example, 
they noted a longwall tailgate where a longwall shearer had cut across 
a ``thousand-plus foot longwall face'' and deposited considerable coal 
dust accumulations in the immediate tailgate entry that was not cleaned 
up or effectively rock dusted. They also questioned MSHA's enforcement 
of the rock dust maintenance standard in remote areas such as remotely-
located bleeder entries. These commenters noted that in Alabama, 
underground coal mine bleeder entries have high levels of methane, 
pillars yielding raw coal ribs with fresh sloughage, coal accumulation, 
and no mechanism to apply rock dust.
    The ETS and this final rule do not change existing 30 CFR 75.402 
which addresses remote areas where there is no feasible mechanism to 
apply additional rock dust and states:

    All underground areas of a coal mine, except those areas in 
which the dust is too wet or too high in incombustible content to 
propagate an explosion, shall be rock dusted to within 40 feet of 
all working faces, unless such areas are inaccessible or unsafe to 
enter or unless the Secretary or his authorized representative 
permits an exception upon his finding that such exception will not 
pose a hazard to the miners. All crosscuts that are less than 40 
feet from a working face shall also be rock dusted.

    The September 2010 PIB provided guidance to operators on existing 
Sec.  75.402 and ETS Sec.  75.403. It suggested that they use bulk 
dusters, trickle dusters or high-pressure rock dusting machines to blow 
the rock dust into inaccessible areas to maintain the 80% TIC in remote 
areas.
    In the ETS preamble, MSHA stated that ``Rock dust, when effectively 
applied, can prevent explosions or reduce the severity of explosions'' 
(75 FR 57851). In response, commenters questioned what MSHA meant by 
the term ``effectively.'' In the September 2010 PIB, MSHA emphasized 
that mine operators are responsible for applying rock dust in areas of 
underground bituminous coal mines to inert coal and float coal dust, 
loose coal, and other combustible materials to comply with the ETS. 
Miners are exposed to grave hazards in these underground mines. As 
little as 0.005 inch (the thickness of a sheet of paper) of coal and 
float coal dust on top of rock dusted surfaces is capable of 
propagating an explosion. Therefore, removal of coal dust, including 
float coal dust, loose coal, other combustible materials, and the 
application and re-application, where necessary, of rock dust are 
essential to effectively protect miners from the potential of a coal 
dust explosion; or if one occurs, to reduce its severity and prevent 
loss of life.
    In the October 2010 PIL, MSHA issued instructions to its 
inspectorate to enhance enforcement of the ETS and to check mine 
operators' compliance with the ETS and to take appropriate action, as 
necessary. MSHA stated that if mine operators allow coal, float coal 
dust, and other combustible materials to accumulate in active workings 
and on equipment in the mine, or if the TIC of the combined coal dust, 
rock dust, and other dust in any area of the mine does not meet the 
quantities required by the ETS, inspectors should take appropriate 
enforcement action.
    MSHA stated in the October 2010 PIL that during regular inspections 
MSHA inspectors should continue to sample the incombustible content as 
required by MSHA's existing sampling policy and procedures for 
collecting rock dust samples, including sampling to within 50 feet of 
the tailpiece. In addition, the 2010 PIL instructed inspectors to take 
selective spot samples in areas that were rock dusted prior to 
September 23, 2010 (the date the ETS was published), to determine 
whether the mine operator is maintaining the 80 percent TIC 
requirements of the ETS. MSHA also recommended that inspectors conduct 
selective spot sampling in immediate return entries, especially 
longwall tailgate entries, and areas containing seals. MSHA instructed 
inspectors to begin spot sampling near the active faces and in areas 
that contain ignition sources, such as conveyor belt drives and 
conveyor belt entries because these areas pose the greatest potential 
for methane and coal dust explosions. Inspectors were instructed to 
identify the spot samples in the same manner as samples collected under 
the existing sampling policy and use the same mailing procedures. 
MSHA's existing sampling policy and procedures are under review.
    When MSHA found a violation of 30 CFR 75.400, 75.402, or 75.403 
under the ETS, the October 2010 PIL instructed Agency inspectors that 
abatement should be set at the shortest reasonable time after careful 
evaluation of conditions on a mine-by-mine basis, including whether the 
mine liberates large volumes of methane gas or has a history of methane 
ignitions. Inspectors were further instructed that if an operator 
failed to totally abate the violation within the specified time, they 
should consider issuance of a Section 104 (b) Order of Withdrawal.
    If a mine operator has repeat violations of Sec. Sec.  75.400, 
75.402 or 75.403, the October 2010 PIL advised that inspection 
personnel should discuss the adequacy of the cleanup program with the 
operator and consider

[[Page 35972]]

requiring the use of more effective rock dusting equipment and methods 
for controlling and maintaining the incombustible content of the 
combined coal dust, rock dust, and other dust along with elevated 
enforcement actions. Inspection personnel should also consider changes 
to the cleanup program which would require the use of bulk dusters, 
trickle dusters or high-pressure rock dusting machines to continuously 
rock dust the areas downwind of belt transfers, the returns of active 
sections, the tailgates of longwalls and the bleeder entries.
    A commenter suggested dividing existing Sec.  75.400 
(accumulations) into three requirements. According to the commenter, 
this action would separate violations for accumulations on rock dusted 
surfaces, on mobile equipment, and on fixed plant equipment. This 
comment is outside the scope of this rulemaking.
    Some commenters objected to application of rock dust by hand. In 
their opinion, this method is inadequate to protect miners. Application 
of rock dust by hand is not prohibited under the final rule, as long as 
the 80 percent incombustible content of the combined coal dust, rock 
dust, and other dust is maintained. Based on MSHA experience, mine 
operators are capable of maintaining the requirements of the final rule 
through application of rock dust by hand. However, MSHA acknowledges 
that there are more efficient methods of rock dusting, such as:
     High pressure bulk--transfers large dust quantities in 
short time with limited labor required.
     Bantam--portable unit that can mount on equipment to 
easily dust face areas or can be used to spot dust.
     Slinger--portable duster with good perimeter coating in a 
single pass.
     Trickle--good for dusting return entries or belt entries, 
run continuously.
     Wet/Slurry--more coverage per pound of dust, good 
adherence to coal, can dust with miners inby and can be easily applied 
in high areas.
     Mine-wide automated dusting systems--System can be 
controlled by programmable logic controllers requiring less labor.
    A commenter questioned whether it is appropriate for MSHA to rely 
on results of the NIOSH explosibility testing (Cashdollar et al., 2010) 
from one coal seam and apply it to all types of coal. The commenter 
stated that the overall hazard to miners in other coal seams is 
inaccurately quantified by this study. Other commenters urged MSHA to 
set rock-dusting standards based on a worst-case scenario (using high 
volatile coal) with no relaxation for lower volatile coal.
    In its experimental studies of the effect of particle size on 
explosion hazard, NIOSH used coal from the Pittsburgh coal seam. The 
data represent the worst-case condition as stated in the ETS preamble 
and in the NIOSH Report of Investigations 9679 (Cashdollar et al., 
2010). NIOSH used this approach to limit variables that could have 
influenced the experiments related to particle size alone. Published 
studies, reported by Cashdollar 1996 and Cashdollar et al., 2010, have 
examined the roles of seam-specific and site-specific coal qualities on 
explosibility. Based on this research, there are two primary coal 
characteristics that influence dust explosibility and vary by seam: (1) 
Inherent ash and moisture content and (2) the volatility of the coal. 
The final rule, like the ETS, considers the variability of inherent ash 
and moisture of coal as part of the incombustible content of a sample 
used to calculate the 80% requirement. The volatility of the coal is 
expressed as the percentage of volatile matter determined by proximate 
analysis. Studies published by the U.S. Bureau of Mines (USBM) found 
that all coals with volatility in excess of 12% are explosible. More 
specifically, higher volatile coals require a lower dust concentration 
(mass of dust per unit volume) to produce an explosion. The Pittsburgh 
seam coal has an average volatility of 37%. Experimental studies 
comparing explosion hazards of various coals have defined a 
relationship between the minimum rock dusting requirements to inert and 
the volatility of coals (Cashdollar, 1996).
    Lower volatile coals (less than 30% volatile matter) require less 
rock dust to inert the coal dust, although it would not be a 
significant reduction in the amount of rock dust. The final rule is 
based on the worst-case conditions of coal dust (particles less than 
200 mesh) for high volatile bituminous coals. Therefore, the final rule 
retains the ETS language and provides an extra margin of safety for 
coals with lower volatile content.
    Commenters questioned whether additional rock dust, particularly in 
intake airways, increases miners' exposures to respirable coal mine 
dust above the allowable limit. This commenter suggested that the ETS, 
coupled with MSHA's proposal to reduce the respirable coal mine dust 
limit by half in these same air courses, created incompatible 
standards. This commenter believes that if MSHA is to require both 
standards, then MSHA must revise its position with regard to the use of 
wet dusting systems for intake roadways and aircourses to reduce 
respirable dust exposures from rock dusting.
    MSHA standards do not require that rock dust contain any respirable 
fraction. MSHA's existing definition for rock dust establishes 
specifications for rock dust. Operators must assure that rock dust 
applied meets this definition.
    With regard to the utility of wet dusting methods to control rock 
dust in underground coal mines, MSHA believes that for this approach to 
be effective, the wet products must be applied often enough to prevent 
an accumulation of float coal dust atop coated surfaces. The use of wet 
dusting technology has some limitations in an underground coal mine. 
The use of wet or foam-type application of rock dust and the use of 
other inerting agents have been explored for decades. These wet 
products work by binding or coating coal dusts and preventing them from 
being entrained in an explosion front rather than mixing with and 
inerting the coal dust. This creates a coating on surfaces, on top of 
which new coal dust can accumulate. This coating will not provide as 
effective inerting capability in the event of an explosion as dry rock 
dust.
    Finally, some commenters expressed concern that MSHA is precluding 
some mine operators from using scrubbers in underground mines. These 
commenters suggested that MSHA should allow the immediate use of 
scrubbers on mining machinery where coal dust is being generated at the 
face, stating that scrubbers remove 92 percent of respirable dust out 
of the air, which would help operators achieve the rock dusting 
requirements. Commenters did not provide supporting data. Although MSHA 
does not prohibit the use of scrubbers in appropriate cases, this issue 
is outside the scope of this rulemaking.
    Commenters objected to the protracted time that it takes MSHA to 
obtain results of rock dust samples. These commenters also inquired as 
to the availability of a method to immediately assess compliance 
through real-time monitoring instead of waiting weeks for compliance 
results. The Coal Dust Explosibility Meter (CDEM) is new technology 
that uses optical reflectance to measure the relative concentration 
ratio of coal dust (black) to rock dust (white/grey) in a rock dust 
sample collected in an underground coal mine. The CDEM is intended to 
be used by mine operators and MSHA as a screening tool inside the mine 
to assess the explosion hazard potential in real time and take prudent 
actions to

[[Page 35973]]

mitigate the hazard. The CDEM is not intended to replace the current 
MSHA laboratory analysis of coal mine dust samples for incombustible 
content, but to serve as a supplemental device for enhancing mine 
safety through improved rock dusting practices. MSHA is improving its 
laboratory analysis function to reduce analysis time.

III. Regulatory Economic Analysis

A. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review

    Under Executive Order (E.O.) 12866, the Agency must determine 
whether a regulatory action is ``significant'' and subject to review by 
the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule: (1) Having an annual effect on the economy of $100 
million or more, or adversely and materially affecting a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety or state local or tribal governments or communities 
(also referred to as ``economically significant''); (2) creating 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.
    Under E.O.s 13563 and 12866, the Agency must assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility.
    MSHA has determined that this final rule does not have an annual 
effect of $100 million or more on the economy, and is not an 
economically ``significant regulatory action'' pursuant to Sec.  3(f) 
of E.O. 12866. However, the final rule, like the ETS, raises novel, 
legal or policy issues and is therefore subject to OMB review.
    MSHA has not prepared a separate regulatory economic analysis for 
this rulemaking. Rather, the analysis is presented below.

B. Population at Risk

    The final rule applies to all underground bituminous coal mines in 
the United States. There are approximately 415 active underground 
bituminous coal mines employing 47,119 miners. Table 1 presents the 415 
underground bituminous coal mines by employment size.

 Table 1--Underground Bituminous Coal Mines and Miners, 12 Month Average
                as of January 2010, by Employment Size *
------------------------------------------------------------------------
                                             Number of         Total
                                            underground    employment at
                Mine size                   bituminous      underground
                                            coal mines      coal mines
------------------------------------------------------------------------
1-19 Employees..........................              73           1,136
20-500 Employees........................             330          29,390
501+ Employees..........................              12           9,708
Contractors.............................  ..............           6,885
                                         -------------------------------
    Total...............................             415          47,119
------------------------------------------------------------------------
* Source: MSHA MSIS Data (March 2010).

    The 415 underground coal mines produced an estimated 331.7 million 
short tons of coal in 2009. The average price of coal in underground 
mines in 2009 was $55.77 per short ton and was obtained from the U.S. 
Department of Energy (DOE), Energy Information Administration (EIA), 
Annual Coal Report 2009, October 2010, Table 28. Table 2 presents the 
coal production and revenues for 2009.

  Table 2--Coal Production in Short Tons and Coal Revenues in 2009 for
                    Mines Affected by the Final Rule
------------------------------------------------------------------------
              Mine size                Coal production    Coal revenue
------------------------------------------------------------------------
1-19 Employees......................         4,972,836      $277,335,064
20-500 Employees....................       236,453,706    13,187,023,184
500+ Employees......................        90,256,010     5,033,577,678
                                     -----------------------------------
    Total...........................       331,682,552    18,497,935,926
------------------------------------------------------------------------

C. Benefits

    Since MSHA did not receive any comments on the benefits analysis 
presented in the preamble of the ETS, the Agency has retained that 
analysis for the final rule. For the convenience of the reader, the 
entire benefits analysis is presented below.
    Accumulations of coal dust can propagate and contribute to the 
severity of mine explosions. During the period 1976 to 2001 (26 years) 
there were 26 fatal methane and/or coal dust explosions in underground 
coal mines that resulted in 139 fatalities (Dubaniewicz, 2009). In 6 of 
those 26 explosions, the rock dusting conditions and practices in 
intake air courses were identified as either the cause or a 
contributing factor in the explosions. In addition to reviewing the 
Dubaniewicz report, MSHA also reviewed the Agency's own fatal 
investigation reports for these explosions. Based upon this

[[Page 35974]]

review, MSHA determined that the requirements in this final rule would 
have either prevented or reduced the severity of these explosions. 
These explosions resulted in 46 deaths, approximately 2 deaths per year 
(46 deaths/26 years). The requirements in this final rule probably 
would not have prevented all of the deaths from the 6 explosions. MSHA 
estimates that the final rule will prevent approximately 1 to 1.5 
deaths per year.
    MSHA also studied explosions and ignitions resulting in non-fatal 
injuries that occurred during the period from 1986 through 2001 (16 
years). During that time, there were 3 explosions that resulted in at 
least 4 non-fatal injuries in which rock dusting conditions and 
practices contributed to the explosions. Based on the data, MSHA 
determined that the requirements in the final rule will prevent 1 
additional injury about every 4 years (4 injuries/16 years).
    However, these estimates are not precise and the final rule could 
prevent additional injuries. MSHA is also aware of at least 4 
explosions or ignitions occurring from 1985 through 2008 which did not 
result in any injuries or fatalities; however, the investigation report 
concluded that poor rock dust practices contributed to these 
explosions. MSHA projects that the final rule will improve rock dust 
practices in underground bituminous coal mines and the safety and 
health of miners.
    The final rule will decrease explosibility of the coal dust 
deposited in underground bituminous coal mines, which will decrease 
both the probability that an explosion will occur and, if an explosion 
does occur, the severity of the explosion. MSHA projects a significant 
reduction in fatalities and injuries with the implementation of the 
final rule.
    MSHA calculates benefits in terms of an annual average. However, 
the final rule is targeted at mine explosions, which are catastrophic 
events that may not occur on a regular basis. They can unfortunately 
occur multiple times in a single year, but may not occur again for a 
number of years. Thus, MSHA's average estimate of 1 to 1.5 deaths 
prevented a year cannot fully reflect the impact of preventing a given 
explosion or series of explosions, since each would be unique in terms 
of its impacts. MSHA has estimated the benefits of the final rule 
within this context. The number of fatalities and injuries that may be 
prevented by this final rule may be understated.

D. Compliance Costs

    MSHA did not receive any comments that directly addressed the cost 
estimates presented in the preamble of the ETS. For this reason, MSHA 
has retained that analysis for the final rule, with one change as is 
noted below to address rock dusting in hard-to-reach areas, such as 
remote bleeder entries.
    MSHA estimates that the final rule will result in total yearly 
costs for operators of underground bituminous coal mines of 
approximately $26.3 million: $0.3 million for mines with 1-19 
employees; $18.9 million for mines with 20-500 employees; and $7.2 
million for mines with 501 or more employees. The totals above do not 
sum due to rounding.
    As is noted below, MSHA's cost estimates are based upon 2009 data. 
On April 14, 2010, West Virginia (WV) issued an Executive Order 
requiring that dust samples meet the NIOSH recommendation of 80% total 
incombustible content. MSHA did not consider the WV requirement in its 
analysis; thus the cost estimates attributable to the final rule may be 
overstated.
Derivation of Compliance Costs
    Results from 26,576 intake rock dust samples collected by MSHA in 
2009 show that over 75% of the samples had a total incombustible 
content (TIC) equal to or greater than 80%. While it is not possible to 
precisely determine the additional amount of rock dust needed based 
upon these samples, MSHA developed cost estimates using the following:
     MSHA assumed that the costs related to the 25% of samples 
that were below 80% TIC were the costs of going from 65% required under 
the existing standard to 80% TIC.
     Some samples that were below 80% TIC were below 65% TIC 
and others were above 65% TIC. To calculate costs, MSHA assumed that 
25% of the mines in each size category would have to increase the TIC 
in the intakes from 65% to 80%, and developed costs accordingly.
    MSHA estimates that approximately 18 mines with fewer than 20 
employees (73 mines x 25%); 83 mines with 20-500 employees (330 mines x 
25%); and 3 mines with more than 500 employees (12 mines x 25%) will 
incur costs to comply with the final rule.
    MSHA also estimates that these mines will require 115% more rock 
dust to comply with the final rule. The 115% increase in the amount of 
rock dust needed was calculated by solving the following set of 
equations:
     The initial amount of rock dust (RD0) equals 
65% of the initial amount of total dust (TD0), as is 
specified in equation 1.

Equation 1: RD0 = 0.65 x TD0

     The initial amount of rock dust (RD0) plus the 
added rock dust (RDAD) equals 80% of the initial amount of 
total dust (TD0) plus the added rock dust (RDAD) 
as is specified in equation 2.

Equation 2: RD0 + RDAD = 0.8 x (TD0 + 
RDAD)

    Based upon the experience of MSHA's field staff, MSHA estimates the 
total costs associated with purchasing and applying rock dust to comply 
with the previous rock dust requirements were $0.20 per ton of coal 
produced for mine operators with fewer than 20 employees and $0.23 per 
ton of coal produced for mine operators with 20 or more employees. 
Therefore, the regulatory economic analysis for the ETS estimated 
additional compliance cost for the affected mines would be $0.23 ($0.20 
x 115%) per ton of coal produced for mines with fewer than 20 employees 
and $0.27 ($0.23 x 115%) per ton of coal produced for mines with 20 or 
more employees.
    In response to commenters' concerns, MSHA has increased the 
estimated cost to purchase and apply rock dust by 20 percent in this 
analysis to account for the additional cost related to applying rock 
dust in hard-to-reach areas. Thus the compliance cost for the affected 
mines will be $0.28 ($0.23 x 120%) per ton of coal produced for mines 
with fewer than 20 employees and $0.32 ($0.27 x 120%) per ton of coal 
produced for mines with 20 or more employees.
    From these estimates, MSHA projects that the costs for purchasing 
and applying rock dust would increase by $26.3 million per year due to 
the final rule. Table 3 shows that, disaggregated by mine size, yearly 
costs will be approximately: $0.3 million for mine operators with fewer 
than 20 employees; $18.9 million for mine operators with 20-500 
employees; and $7.2 million for mine operators with more than 500 
employees. The totals above do not sum due to rounding.

[[Page 35975]]



 Table 3--Projected Compliance Costs Based on Mine Size and Additional Rock Dust per Short Ton of Coal Produced
----------------------------------------------------------------------------------------------------------------
                                                                 Average
                                                               preliminary    Additional  rock     Increase in
                                                                2009 coal      dust  costs per  yearly costs  to
                Mine size                    Mine count        production       short ton of     apply rock dust
                                                              (short tons)      coal produced    to  comply with
                                                                per mine                           final rule
----------------------------------------------------------------------------------------------------------------
1-19 Employees..........................                18            68,121            $0.276          $338,000
20-500 Employees........................                83           716,526             0.317        18,853,000
501+ Employees..........................                 3         7,521,334             0.317         7,153,000
                                         -----------------------------------------------------------------------
    Total...............................               104  ................  ................        26,344,000
----------------------------------------------------------------------------------------------------------------

E. Net Benefits

    Since MSHA did not receive any comments in the net benefits 
analysis in the preamble of the ETS, the Agency has retained that 
analysis for the final rule. The only changes are due to the changes in 
the estimated costs discussed in the previous section.
    This section presents a summary of the estimated net benefits of 
the final rule for informational purposes only. Under the Mine Act, 
MSHA is not required to use estimated net benefits as the basis for its 
decision.
    MSHA based its estimates of the monetary values for the benefits 
associated with the final rule on relevant literature. To estimate the 
monetary values of these reductions in cases, MSHA performed an 
analysis of the imputed value of fatalities prevented based on a 
willingness-to-pay approach. This approach relies on the theory of 
compensating wage differentials (i.e., the wage premium paid to workers 
to accept the risk associated with various jobs) in the labor market. A 
number of studies have shown a correlation between higher job risk and 
higher wages, suggesting that employees demand monetary compensation in 
return for incurring a greater risk of injury or fatality.
    Viscusi and Aldy (2003) conducted an analysis of studies that use a 
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and found that each fatality 
prevented was valued at approximately $7 million and each lost work-day 
injury was approximately $50,000 in 2000 dollars. Using the GDP 
Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an 
estimate of $8.7 million for each fatality prevented and $62,000 for 
each injury prevented in 2009 dollars. This value of a statistical life 
(VSL) estimate is within the range of the substantial majority of such 
estimates in the literature ($1 million to $10 million per statistical 
life), as discussed in OMB Circular A-4 (OMB, 2003).
    Although MSHA is using the Viscusi and Aldy (2003) study as the 
basis for monetizing the expected benefits of the final rule, the 
Agency does so with several reservations, given the methodological 
difficulties involved in estimating the compensating wage differentials 
(see Hintermann et al., 2008). Furthermore, these estimates pooled 
across different industries may not capture the unique circumstances 
faced by coal miners. For example, some have suggested that VSL models 
be disaggregated to account for different levels of risk, as might 
occur in coal mining (Sunstein, 2004). In addition, coal miners may 
have few options of alternative employers and in some cases only one 
employer (near-monopsony or monopsony) that may depress wages below 
those in a more competitive labor market.
    MSHA recognizes that monetizing the value of a statistical life is 
difficult and involves uncertainty and imprecision. In the future, MSHA 
plans to work with other agencies to refine the approach taken in this 
final rule.
    Based upon the estimated prevention of 1 to 1.5 deaths per year and 
1 injury every 4 years, the final rule will result in monetized 
benefits of approximately $8.7 to 13.1 million per year. As noted 
above, MSHA believes that the final rule may prevent additional 
injuries; however, due to data limitations, quantification is not 
possible and they have not been included in the monetized benefits.
    In addition to the injuries and fatalities prevented, MSHA 
anticipates that savings to operators will result from the final rule 
preventing or reducing the severity of explosions. As noted above, 6 
explosions (about 0.23 per year) involving fatalities occurred in the 
26 year period 1976 to 2001 and 4 explosions (about 0.17 per year) that 
did not involve any fatalities or injuries occurred in the 24 year 
period 1985 through 2008. MSHA estimates that the final rule will 
prevent or reduce the severity of about one explosion every two and a 
half years.
    Explosions can result in tremendous costs to a mine operator. MSHA 
estimates that the time to recover a mine after an explosion is a 
minimum of 8 weeks. Factors such as lost wages, lost production, 
rehabilitation, payment for the mine rescue teams and other staff, and 
miscellaneous expenses could result in costs that range between $2 and 
$7 million, depending on the extent of the explosion and the size of 
the mine.
    Additional costs include lost equipment, which could run into the 
millions of dollars. For example, the cost of a set of advancing type 
mining equipment (continuous mining machine, roof bolting machine, 
shuttle car, scoop and power center) would be approximately $8 million 
while the cost of a longwall unit would be approximately $200 million. 
Replacing the electric and waterlines, rails, roof supports, pumps, and 
power centers could add a couple of million dollars more to costs.
    If a mine operator is unable to reopen the mine after an explosion 
like some of the mines examined by MSHA, costs will vary depending on 
the amount of recoverable reserves. The anticipated cost of lost 
reserves could range from a few million dollars for a small mine to in 
excess of hundreds of millions dollars for a large mine.
    Based upon these values, MSHA estimates that preventing or reducing 
the severity of a typical explosion in an underground coal mine will 
save the operator approximately $15 to $40 million in direct costs 
(e.g., mine rescue, wages and equipment). Based on one explosion every 
two and a half years, MSHA estimates that the final rule will result in 
annual savings to operators of between $6 million ($15 million per 
explosion x 0.4 explosions per year) and $16 million ($40 million per 
explosion x 0.4 explosions per year) depending upon the size of the 
mine and severity

[[Page 35976]]

of the explosion. In addition, MSHA believes that the final rule will 
prevent operator losses resulting from the inability to recover coal 
reserves, although MSHA has not quantified these savings due to the 
imprecision of the data. Furthermore, MSHA's average estimate of 1 to 
1.5 deaths prevented a year cannot fully reflect the impact of 
preventing a given explosion or series of explosions, since each would 
be unique in terms of its impacts.

                                         Table 4--Monetized Net Benefits
                                           [Millions of 2009 dollars]
----------------------------------------------------------------------------------------------------------------
                                         Yearly cost  to
                                              apply          Yearly savings  from
Yearly fatalities and injuries avoided  additional  rock     reducing  explosions        Annual net  benefits
                                              dust
----------------------------------------------------------------------------------------------------------------
$8.7 to $13.1.........................             $26.3  $6 to $16................  -11.6 to 2.8.
----------------------------------------------------------------------------------------------------------------
Note: The final rule is targeted at the prevention of explosions, which are rare but catastrophic events. The
  net benefits, which must be estimated on an annual basis, do not necessarily reflect the impact of preventing
  a given explosion or series of explosions, since each would be unique in terms of its impacts.

IV. Feasibility

    MSHA did not receive any comments on the feasibility analysis 
presented in the preamble of the ETS. The Agency concludes that the 
requirements of the final rule are technologically and economically 
feasible.

A. Technological Feasibility

    MSHA concludes that this final rule is technologically feasible. 
The final rule is not technology-forcing. The benefits of rock dusting 
have been known for at least a century. Mine operators have been 
required to comply with the Coal Act, Mine Act, and ETS rock dusting 
requirements in 30 CFR 75.403, collectively for more than 40 years. The 
final rule adopts the ETS requirement for total incombustible content 
of dust in the mine. The final rule does not require operators to make 
any innovations in existing equipment or techniques used to rock dust.

B. Economic Feasibility

    MSHA also concludes that this final rule is economically feasible. 
The U.S. underground bituminous sector produced an estimated 
331,682,552 short tons of coal in 2009. Using the 2009 price of 
underground coal of $55.77 per short ton, and estimated 2009 coal 
production in tons, underground coal revenues are estimated to be 
approximately $18.5 billion. MSHA estimated the yearly compliance costs 
of the final rule to be $26.3 million, which is 0.14 percent of 
revenues ($26.3 million/$18.5 billion) for underground bituminous coal 
mines. MSHA has traditionally used a revenue screening test--whether 
the yearly compliance costs of a regulation are less than 1 percent of 
revenues--to establish presumptively that compliance with the 
regulation is economically feasible for the mining community.

V. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act (SBREFA)

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by SBREFA, MSHA has analyzed the impact of the final rule on 
small businesses. Based on that analysis, MSHA has notified the Chief 
Counsel for Advocacy, Small Business Administration, and made the 
certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) 
that the final rule will 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 the final rule on small 
entities, MSHA must use the Small Business Administration (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 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.
    In addition to examining small entities as defined by SBA, MSHA has 
also looked at the impact of this final rule on underground bituminous 
coal mines with fewer than 20 employees, which MSHA and the mining 
community have 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. The 
costs of complying with the final rule and the impact of the final rule 
on small mines will also be different. It is for this reason that small 
mines are of special concern to MSHA.
    MSHA concludes that it can certify that the final rule will not 
have a significant economic impact on a substantial number of small 
entities that are covered by this final rule. The Agency has determined 
that this is the case both for mines with fewer than 20 employees and 
for mines with 500 or fewer employees.

B. Factual Basis for Certification

    MSHA initially evaluates the impacts on ``small entities'' by 
comparing the estimated compliance costs of a rule for small entities 
in the sector affected by the rule to the estimated revenues for the 
affected sector. When estimated compliance costs are less than one 
percent of the estimated revenues, the Agency believes it is generally 
appropriate to conclude that there is no significant economic impact on 
a substantial number of small entities. When estimated compliance costs 
exceed one percent of revenues, MSHA investigates whether a further 
analysis is required.
    For underground bituminous coal mines, the estimated preliminary 
2009 production was 4,972,836 short tons for mines that had fewer than 
20 employees and 241,426,542 short tons for mines that had 500 or fewer 
employees. Using the 2009 price of underground coal of $55.77 per short 
ton and total 2009 coal production in short tons, underground coal 
revenues are estimated to be approximately $277.3 million for mines 
employing fewer than 20 employees and $13.4 billion for mines employing 
500 or fewer employees. The yearly costs of the final rule for mines 
that have fewer than 20 employees is 0.12 percent ($338,000/$277.3 
million) of annual revenues, and the yearly costs of the final rule for 
mines that have 500 or fewer employees is 0.14 percent ($19.2 million/
$13.5 billion) of annual

[[Page 35977]]

revenues. Using either MSHA's traditional definition of a small mine 
(one having fewer than 20 employees) or SBA's definition of a small 
mine (one having 500 or fewer employees), the yearly costs for 
underground bituminous coal mines to comply with the final rule will be 
less than 1 percent of estimated revenues. Accordingly, MSHA has 
certified that the final rule will not have a significant impact on a 
substantial number of small entities that are covered by the final 
rule.

VI. Paperwork Reduction Act of 1995

    The final rule contains no additional information collections under 
the Paperwork Reduction Act.

VII. 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.). MSHA has determined that the final 
rule does not include any federal mandate that may result in increased 
expenditures by State, local, or tribal governments; nor will it 
increase private sector expenditures by more than $100 million in any 
one year or significantly or uniquely affect small governments. 
Accordingly, the Unfunded Mandates Reform Act of 1995 requires no 
further Agency action or analysis.

B. Executive Order 13132: Federalism

    The final rule does not have ``federalism implications'' because it 
will 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.'' Accordingly, under E.O. 13132, no further Agency action 
or analysis is required.

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

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Agency action on family well-being. MSHA has determined that the 
final rule will have no effect on family stability or safety, marital 
commitment, parental rights and authority, or income or poverty of 
families and children. The final rule impacts only the underground 
bituminous coal mine industry. Accordingly, MSHA certifies that the 
final rule will not impact family well-being.

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

    The final rule does not implement a policy with takings 
implications. Accordingly, under E.O. 12630, no further Agency action 
or analysis is required.

E. Executive Order 12988: Civil Justice Reform

    The 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, the final rule will meet the 
applicable standards provided in section 3 of E.O. 12988, Civil Justice 
Reform.

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

    The final rule will have no adverse impact on children. 
Accordingly, under E.O. 13045, no further Agency action or analysis is 
required.

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

    The final rule does not have ``tribal implications'' because it 
will 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, under E.O. 
13175, no further Agency action or analysis is required.

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

    Executive Order 13211 requires agencies to publish a statement of 
energy effects when a rule has a significant energy action (i.e., it 
adversely affects energy supply, distribution or use). MSHA has 
reviewed this final rule for its energy effects because the final rule 
applies to the underground coal mining sector. Because the final rule 
will result in yearly costs of approximately $26.3 million to the 
underground coal mining industry, relative to annual revenues of $18.5 
billion in 2009, MSHA has concluded that it is not a significant energy 
action because it is not likely to have a significant adverse effect on 
the supply, distribution, or use of energy. Accordingly, under this 
analysis, no further Agency action or analysis is required.

VIII. References

Cashdollar K. 1996. Coal dust explosibility. J Loss Prev Process Ind 
9(1):65-76.
Cashdollar K, Hertzberg M. 1989. Laboratory study of rock dust 
inerting requirements: effects of coal volatility, particle size, 
and methane addition. In: Proceedings of the 23rd International 
Conference of Safety in Mines Research Institutes (Washington, DC, 
September 11-15, 1989). Pittsburgh, PA: U.S. Department of the 
Interior, Bureau of Mines, pp. 965-977.
Cashdollar K, Sapko M, Weiss E, Harris M, Man C, Harteis S, Green G. 
2010. Recommendations for a New Rock Dusting Standard to Prevent 
Coal Dust Explosions in Intake Airways. Report of Investigations 
9679. National Institute for Occupational Safety and Health, 
Pittsburgh Research Laboratory, Pittsburgh, PA, May. 59 Pages.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 1982. Report of Investigation. Underground Coal Mine Dust 
Explosion. No. 11 Mine (ID No. 15-02290). Adkins Coal Company. Kite, 
Knott County, Kentucky. December 7, 1981. U.S. Department of Labor. 
60 Pages. [Missing Appendices I through L]
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 1982. Report of Investigation. Underground Coal Mine Dust 
Explosion. No. 1 Mine (ID No. 15-12624). RFH Coal Company. Craynor, 
Floyd County, Kentucky. January 20, 1982. U.S. Department of Labor. 
53 Pages. [Missing Appendices J through M]
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 1993. Report of Investigation. Underground Coal Mine 
Explosions. Scotia Mine I.D. No. 15-02055. Scotia Coal Company. 
Ovenfork, Letcher County, Kentucky. March 9 and 11, 1976. U.S. 
Department of Labor. August 11, 1993. 229 Pages.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 1993. Report of Investigation. December 7, 1992. Underground 
Coal Mine Explosion. 3 Mine ID. No. 44-06594. Southmountain 
Coal Co., Inc. Norton, Wise County, Virginia. U.S. Department of 
Labor. May 6, 1993. 67 Pages.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 1995. Report of Investigation. May 11, 1994. Underground Coal 
Mine Explosion. No. 9 Mine I.D. No. 15-16418. Day Branch Coal 
Company, Inc. Pathfork, Harlan County, Kentucky. U.S. Department of 
Labor, May 26, 1995. 49 Pages. [Missing Appendix H].
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 2002. Report of Investigation. Fatal Underground Coal Mine 
Explosions. September 23, 2001. No. 5 Mine Jim Walter Resources, 
Inc. Brookwood, Tuscaloosa County, Alabama. ID No. 01-01322. U.S. 
Department of Labor, CAI-

[[Page 35978]]

2001-20 through 32, December 11, 2002. 125 Pages.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 2010. Emergency Temporary Standard-- Maintenance of 
Incombustible Content of Rock Dust in Underground Coal Mines (75 FR 
57849), September 23, 2010.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 2010. Program Information Bulletin No. P10-18, Accumulation 
of Combustible Materials and Rock Dust. September 21, 2010. 3 Pages.
Department of Labor, Mine Safety and Health Administration (DOL/
MSHA). 2010. Procedure Instruction Letter No. 10-V-16, Accumulation 
of Combustible Materials and Rock Dust. October 14, 2010. 3 Pages.
Dubaniewicz T. 2009. From Scotia to Brookwood, fatal US underground 
coal mine explosions ignited in intake air courses. J Loss Prev 
Process Ind 22(1):52-58.
Hintermann B, Alberini A, Markandya A. 2010. Estimating the Value of 
Safety with Labor Market Data: Are the Results Trustworthy? Applied 
Economics 42(9):1085-1100.
National Institute for Occupational Safety and Health (NIOSH). 2006. 
Float Coal Dust Explosion Hazards. NIOSH Technology News No. 515, 
April. DHHS (NIOSH) Publication No. 2006-125. 2 Pages.
Office of Management and Budget (OMB). 1992. Circular No. A-94, 
``Guidelines and Discount Rates for Benefit-Cost Analysis of Federal 
Programs,'' October 29, 1992. 22 Pages.
Sunstein C. 2004. Valuing Life: A Plea for Disaggregation. Duke Law 
Journal, 54 (November 2004): 385-445.
U.S. Bureau of Economic Analysis. 2010. National Income and Product 
Accounts Table: Table 1.1.9. Implicit Price Deflators for Gross 
Domestic Product [Index numbers, 2005 = 100]. Revised May 27, 2010. 
3 Pages. http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=13&Freq=Qtr&FirstYear=2006&LastYear=2008
U.S. Department of Energy (DOE). 2010. Energy Information 
Administration (EIA, 2010). Annual Coal Report 2009, Table 28. 
Revised October 1, 2010. 1 Page.
Viscusi W, Aldy J. 2003. The Value of a Statistical Life: A Critical 
Review of Market Estimates Throughout the World. Journal of Risk and 
Uncertainty 27:5-76.

IX. Final Rule--Regulatory Text

List of Subjects in 30 CFR Part 75

    Mine safety and health, Underground coal mines, Combustible 
Materials and Rock Dusting.

    Dated: June 15, 2011.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.

    Chapter I of Title 30, part 75 of the Code of Federal Regulations 
is amended as follows:

PART 75--SAFETY STANDARDS FOR UNDERGROUND COAL MINES

0
1. The authority citation for part 75 is revised to read as follows:

    Authority:  30 U.S.C. 811.


0
2. Section 75.403 is republished to read as follows:


Sec.  75.403  Maintenance of incombustible content of rock dust.

    Where rock dust is required to be applied, it shall be distributed 
upon the top, floor, and sides of all underground areas of a coal mine 
and maintained in such quantities that the incombustible content of the 
combined coal dust, rock dust, and other dust shall be not less than 80 
percent. Where methane is present in any ventilating current, the 
percent of incombustible content of such combined dust shall be 
increased 0.4 percent for each 0.1 percent of methane.

[FR Doc. 2011-15247 Filed 6-20-11; 8:45 am]
BILLING CODE 4510-43-P