[Federal Register Volume 87, Number 218 (Monday, November 14, 2022)]
[Notices]
[Pages 68197-68199]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-24673]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration


Petition for Modification of Application of Existing Mandatory 
Safety Standards

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Notice.

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SUMMARY: This notice is a summary of a petition for modification 
submitted to the Mine Safety and Health Administration (MSHA) by the 
party listed below.

DATES: All comments on the petition must be received by MSHA's Office 
of Standards, Regulations, and Variances on or before December 14, 
2022.

ADDRESSES: You may submit comments identified by Docket No. MSHA-2022-
0060 by any of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments for MSHA-2022-0060.
    2. Fax: 202-693-9441.
    3. Email: [email protected].
    4. Regular Mail or Hand Delivery: MSHA, Office of Standards, 
Regulations, and Variances, 201 12th Street South, Suite 4E401, 
Arlington, Virginia 22202-5452.
    Attention: S. Aromie Noe, Director, Office of Standards, 
Regulations, and Variances. Persons delivering documents are required 
to check in at the receptionist's desk in Suite 4E401. Individuals may 
inspect copies of the petition and comments during normal business 
hours at the address listed above. Before visiting MSHA in person, call 
202-693-9455 to make an appointment, in keeping with the Department of 
Labor's COVID-19 policy. Special health precautions may be required.

FOR FURTHER INFORMATION CONTACT: S. Aromie Noe, Office of Standards, 
Regulations, and Variances at 202-693-9440 (voice), 
[email protected] (email), or 202-693-9441 (fax). [These 
are not toll-free numbers.]

SUPPLEMENTARY INFORMATION: Section 101(c) of the Federal Mine Safety 
and Health Act of 1977 and Title 30 of the Code of Federal Regulations 
(CFR) part 44 govern the application, processing, and disposition of 
petitions for modification.

I. Background

    Section 101(c) of the Federal Mine Safety and Health Act of 1977 
(Mine Act) allows the mine operator or representative of miners to file 
a petition to modify the application of any mandatory safety standard 
to a coal or other mine if the Secretary of Labor determines that:
    1. An alternative method of achieving the result of such standard 
exists which will at all times guarantee no less than the same measure 
of protection afforded the miners of such mine by such standard; or
    2. The application of such standard to such mine will result in a 
diminution of safety to the miners in such mine.
    In addition, sections 44.10 and 44.11 of 30 CFR establish the 
requirements for filing petitions for modification.

II. Petition for Modification

    Docket Number: M-2022-025-C.
    Petitioner: Panther Creek Mining, 250 West Main Street, Suite 2000, 
Lexington, Kentucky, 40507.
    Mine: Maple Eagle No. 1 Mine, MSHA ID No. 46-04236, located in 
Fayette County, West Virginia.
    Regulation Affected: 30 CFR 75.500(d), Permissible electric 
equipment.
    Modification Request: The petitioner requests a modification of 30 
CFR

[[Page 68198]]

75.500(d) to permit the use of battery-powered nonpermissible surveying 
equipment, including, but not limited to, portable battery operated 
mine transits, total station surveying equipment, distance meters, and 
data loggers in or inby the last open crosscut.
    The petitioner states that:
    (a) To comply with requirements of 30 CFR 75.372 and 30 CFR 75.1200 
use of the most practical and accurate surveying equipment is 
necessary.
    (b) Mechanical surveying equipment has been obsolete for several 
years. Such equipment of acceptable quality is not commercially 
available, and it is difficult, if not impossible, to have such 
equipment serviced or repaired.
    (c) Electronic surveying equipment is, at a minimum, eight to ten 
times more accurate than mechanical equipment.
    (d) The mine uses the continuous mining machine method of mining.
    (e) Accurate surveying is critical to the safety of the miners.
    (f) Underground mining by its nature, size and complexity of mine 
plans requires that accurate and precise measurements be completed in a 
prompt and efficient manner.
    The petitioner proposes the following alternative method:
    (a) Using the following total station and theodolite and similar 
low voltage battery-operated total stations and theodolites with an 
ingress protection (IP) rating of 66 or greater in or inby the last 
open crosscut, in the return, or within 150 feet of pillar workings or 
longwall faces subject to the conditions of the Decision and Order:
    (1) Topcom GPT-3002LW.
    (b) The equipment allowed under the Decision and Order is low 
voltage or battery-powered non-permissible total stations and 
theodolites with an IP rating of 66 or greater.
    (c) The operator shall maintain a logbook for electronic surveying 
equipment with the equipment, in the location where mine record books 
are kept, or in the location where the surveying record books are kept. 
The logbook will contain the date of manufacture and/or purchase of 
each piece of electronic surveying equipment. The logbook shall be made 
available to MSHA upon request.
    (d) All non-permissible electronic surveying equipment to be used 
in or inby the last open crosscut, in the return, or within 150 feet of 
pillar workings or longwall faces shall be examined by the person to 
operate the equipment prior to taking the equipment underground to 
ensure the equipment is maintained in a safe operating condition. These 
examinations shall include:
    (1) Checking the instrument for any physical damage and the 
integrity of the case;
    (2) Removing the battery and inspecting for corrosion;
    (3) Inspecting the contact points to ensure a secure connection to 
the battery;
    (4) Reinserting the battery and powering up and shutting down to 
ensure proper connections; and
    (5) Checking the battery compartment cover or battery attachment to 
ensure that it is securely fastened.
    The results of this examination shall be recorded in the logbook.
    (e) The equipment shall be examined at least weekly by a qualified 
person as defined in 30 CFR 75.153; the examination results shall be 
recorded weekly in the equipment's logbook. Examination entries in the 
logbook may be expunged after 1 year.
    (f) The operator shall ensure that all non-permissible electronic 
surveying equipment is serviced according to the manufacturer's 
recommendations. Dates of service shall be recorded in the equipment's 
logbook and shall include a description of the work performed.
    (g) The non-permissible surveying equipment to be used in or inby 
the last open crosscut, in the return, or within 150 feet of pillar 
workings or longwall faces shall not be put into service until MSHA has 
initially inspected the equipment and determined that it is in 
compliance with all the terms and conditions of the Decision and Order.
    (h) Non-permissible surveying equipment shall not be used if 
methane is detected in concentrations at or above 1.0 percent methane. 
When 1.0 percent or more of methane is detected while the non-
permissible surveying equipment is being used, the equipment shall be 
de-energized immediately and the non-permissible electronic equipment 
withdrawn outby the last open crosscut, out of the return, or more than 
150 feet from pillar workings or longwall faces. All requirements of 30 
CFR 75.323 shall be complied with prior to entering in or inby the last 
open crosscut, in the return, or within 150 feet of pillar workings or 
longwall faces.
    (i) As an additional safety check, prior to setting up and 
energizing nonpermissible electronic surveying equipment in or inby the 
last open crosscut, in the return, or within 150 feet of pillar 
workings or longwall faces, the surveyor(s) shall conduct a visual 
examination of the immediate area for evidence that the area appears to 
be sufficiently rock-dusted and for the presence of accumulated float 
coal dust. If the rock-dusting appears insufficient or the presence of 
accumulated float coal dust is observed, the equipment shall not be 
energized until sufficient rock dust has been applied and/or the 
accumulations of float coal dust have been removed. If nonpermissible 
electronic surveying equipment is to be used in an area that has not 
been rock-dusted area within 40 feet of a working face where a 
continuous mining machine is used to extract coal, the area shall be 
rock-dusted prior to energizing the electronic surveying equipment.
    (j) All hand-held methane detectors shall be MSHA-approved and 
maintained in permissible and proper operating condition as defined by 
30 CFR 75.320. All methane detectors shall provide visual and audible 
warnings when methane is detected at or above 1.0 percent.
    (k) Prior to energizing any of the non-permissible surveying 
equipment in or inby the last open crosscut, in the return, or within 
150 feet of pillar workings or longwall faces, methane tests shall be 
made in accordance with 30 CFR 75.323(a).
    (l) All areas to be surveyed must be pre-shifted according to 30 
CFR 75.360 prior to surveying. If the area was not pre-shifted, a 
supplemental examination according to 30 CFR 75.361 shall be performed 
before any non-certified person enters the area. If the area has been 
examined according to 30 CFR 75.360 or 30 CFR 75.361, additional 
examination is not required.
    (m) A qualified person as defined in 30 CFR 75.151 shall 
continuously monitor for methane immediately before and during the use 
of non-permissible surveying equipment in or inby the last open 
crosscut, in the return, or within 150 feet of pillar workings or 
longwall faces. A second person in the surveying crew, if there are two 
people in the crew, shall also continuously monitor for methane. That 
person shall be a qualified person as defined in 30 CFR 75.151 or be in 
the process of being trained to be a qualified person but have yet to 
``make such tests for a period of 6 months'' as required by 30 CFR 
75.150. Upon completion of the 6-month training period, the second 
person on the surveying crew shall become qualified in order to 
continue on the surveying crew. If the surveying crew consists of only 
one person, they shall monitor for methane with two separate devices.
    (n) Batteries contained in the surveying equipment shall be changed 
out or charged in intake air outby the last open crosscut, out of the 
return, and more than 150 feet away from pillar workings or the 
longwall face. Replacement batteries for the electronic surveying 
equipment shall be carried

[[Page 68199]]

only in the electronic equipment carrying case spare battery 
compartment. Before each surveying shift, all batteries for the 
electronic surveying equipment shall be charged sufficiently that they 
are not expected to be replaced on that shift.
    (o) When using non-permissible electronic surveying equipment in or 
inby the last open crosscut, in the return, or within 150 feet of the 
pillar workings or longwall faces, the surveyor shall confirm by 
measurement or by inquiry of the person in charge of the section that 
the air quantity on the section, on that shift, in the last open 
crosscut is at least the minimum quantity required by the mine's 
ventilation plan.
    (p) Personnel engaged in the use of surveying equipment shall be 
properly trained to recognize the hazards and limitations associated 
with the use of surveying equipment in areas where methane could be 
present.
    (q) All members of the surveying crew shall receive specific 
training on the terms and conditions of the Decision and Order before 
using non-permissible electronic equipment in or inby the last open 
crosscut, in the return, or within 150 feet of the pillar workings or 
longwall face. A record of the training shall be kept with the other 
training records.
    (r) Within 60 days after any granted Decision and Order becomes 
final, the operator shall submit proposed revisions for its approved 30 
CFR part 48 training plans to the Coal Mine Safety and Health District 
Manager. These proposed revisions shall specify initial and refresher 
training regarding the terms and conditions of the Decision and Order. 
When training is conducted on the terms and conditions of the Decision 
and Order, a MSHA Certificate of Training (Form 5000-23) shall be 
completed and shall include comments indicating it was surveyor 
training.
    (s) The operator shall replace or retire from service any 
electronic surveying instrument acquired prior to December 31, 2004, 
within 1 year of the Decision and Order becoming final. Within 3 years 
of the date the Decision and Order becomes final, the operator shall 
replace or retire from service any theodolite acquired more than 5 
years prior to the date the granted Decision and Order became final and 
any total station or other electronic surveying equipment identified in 
the Decision and Order acquired more than10 years prior to the date the 
Decision and Order became final. After 5 years, the operator shall 
maintain a cycle of purchasing new electronic surveying equipment so 
that theodolites shall be no older than 5 years from date of 
manufacture and total stations and other electronic surveying equipment 
shall be no older than 10 years from date of manufacture.
    (t) The operator is responsible for ensuring that all surveying 
contractors hired by the operator use electronic equipment in 
accordance with the requirements of item(s). The conditions of use 
specified in the Decision and Order shall apply to all non-permissible 
electronic surveying equipment used in or inby the last open crosscut, 
in a return, or within 150 feet of pillar workings or longwall faces 
regardless of whether the equipment is used by the operator or by an 
independent contractor.
    (u) Non-permissible surveying equipment may be used when production 
is occurring, subject to these conditions:
    (1) On a mechanized mining unit (MMU) where production is 
occurring, non-permissible electronic surveying equipment shall not be 
used downwind of the discharge point of any face ventilation controls, 
such as tubing (including controls such as ``baloney skins'') or 
curtains.
    (2) Production may continue while non-permissible electronic 
surveying equipment is used if the surveying equipment is used in a 
separate split of air from where production is occurring.
    (3) Non-permissible surveying equipment shall not be used in a 
split of air ventilating a MMU if any ventilation controls will be 
disrupted during such surveying. Disruption of ventilation controls 
means any change to the mine's ventilation system that causes the 
ventilation system not to function in accordance with the mine's 
approved ventilation plan.
    (4) If while surveying a surveyor must disrupt ventilation, the 
surveyor shall cease surveying and communicate to the section foreman 
that ventilation must be disrupted. Production shall stop while 
ventilation is disrupted. Ventilation controls shall be reestablished 
immediately after the disruption is no longer necessary. Production 
shall only resume after all ventilation controls are reestablished and 
are in compliance with approved ventilation or other plans and other 
applicable laws, standards, or regulations.
    (5) Any disruption in ventilation shall be recorded in the logbook 
required by the Decision and Order. The logbook shall include a 
description of the nature of the disruption, the location of the 
disruption, the date and time of the disruption, the date and time the 
surveyor communicated the disruption to the section foreman, the date 
and time production ceased, the date and time ventilation was 
reestablished, and the date and time production resumed.
    (6) All surveyors, section foremen, section crew members, and other 
personnel who will be involved with or affected by surveying operations 
shall receive training in accordance with 30 CFR 48.7 on the 
requirements of the Decision and Order within 60 days of the date the 
Decision and Order becomes final. Such training shall be completed 
before any non-permissible surveying equipment can be used while 
production is occurring. The operator shall keep a record of such 
training and provide it to MSHA upon request.
    (7) The operator shall provide annual retraining to all personnel 
who will be involved with or affected by surveying operations in 
accordance with 30 CFR 48.8. The operator shall train new miners on the 
requirements of the Decision and Order in accordance with 30 CFR 48.5 
and shall train experienced miners, as defined in 30 CFR 48.6, on the 
requirements of the Decision and Order in accordance with 30 CFR 48.6. 
The operator shall keep a record of such training and provide it to 
MSHA upon request.
    The petitioner asserts that the alternative method proposed will at 
all times guarantee no less than the same measure of protection 
afforded the miners under the mandatory standard.

Song-ae Aromie Noe,
Director, Office of Standards, Regulations, and Variances.
[FR Doc. 2022-24673 Filed 11-10-22; 8:45 am]
BILLING CODE 4520-43-P