[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Notices]
[Pages 7415-7417]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-02090]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration


Petition for Modification of Application of Existing Mandatory 
Safety Standard

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 March 4, 2024.

ADDRESSES: You may submit comments identified by Docket No. MSHA-2023-
0055 by any of the following methods:
    1. Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments for MSHA-2023-0055.
    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, 4th Floor West, 
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, 4th Floor West. 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,

[[Page 7416]]

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-2023-026-C.
    Petitioner: Panther Creek Mining, LLC, 903 Dawes Hollow, Dawes, 
West Virginia 25054.
    Mine: Winchester 2 Mine, MSHA ID No. 46-09615, located in Kanawha 
County, West Virginia.
    Regulation Affected: 30 CFR 75.507-1(a) (Electric equipment other 
than power-connection points; outby the last open crosscut; return air; 
permissibility requirements).
    Modification Request: The petitioner requests a modification of 30 
CFR 75.507-1(a) to permit the use of non-permissible battery-powered 
electronic surveying equipment in return air outby the last open 
crosscut.
    The petitioner states that:
    (a) The mine utilizes the continuous miner method of mining.
    (b) In order 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.
    (c) Mechanical surveying equipment has been obsolete for several 
years. Such equipment of acceptable quality is not commercially 
available. It is difficult to have such equipment serviced or repaired.
    (d) Battery-powered electronic surveying equipment is, at a 
minimum, 8-10 times more accurate than mechanical equipment.
    (e) Accurate surveying is critical to the safety of the miners at 
the Winchester 2 Mine.
    (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. Use of electronic surveying equipment 
provides significant safety benefits.
    The petitioner proposes the following alternative method:
    (a) Non-permissible battery-powered electronic surveying equipment 
to be used includes:
    (1) Topcom GM 52 Total Station.
    (b) The equipment used is low voltage or battery-powered non-
permissible total stations and theodolites. All non-permissible 
electronic total stations and theodolites shall have an IP 66 or 
greater rating.
    (c) The operator shall maintain a logbook for electronic surveying 
equipment with the equipment, or in the location where mine record 
books are kept or in the location where the surveying record books are 
kept. The logbook shall 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 return air outby the last open crosscut shall be examined by the 
person to operate the equipment prior to taking the equipment 
underground to ensure the equipment is being maintained in 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 batter attachment to 
ensure that 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. These records shall be 
retained for 1 year.
    (f) The operator shall ensure that all non-permissible electronic 
surveying equipment is serviced according to the manufacturer's 
recommendations. Date of service shall be recorded in the equipment's 
logbook and shall include a description of the work performed.
    (g) The non-permissible electronic surveying equipment to be used 
in return air outby the last open crosscut 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 
Proposed Decision and Order (PDO) granted by MSHA.
    (h) Non-permissible electronic surveying equipment shall not be 
used if methane is detected in concentrations at or above 1.0 percent. 
When 1.0 percent or more of methane is detected while the non-
permissible electronic surveying equipment is being used, the equipment 
shall be de-energized immediately and withdrawn out of the return air 
outby the last open crosscut. All requirements of 30 CFR 75.323 shall 
be complied with prior to entering in return air outby the last open 
crosscut.
    (i) Before setting up and energizing nonpermissible electronic 
surveying equipment in return air outby the last open crosscut, 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 nonpermissible electronic surveying 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 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 non-permissible 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 electronic 
surveying equipment in return air outby the last open crosscut, 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

[[Page 7417]]

monitor for methane immediately before and during the use of non-
permissible electronic surveying equipment in return air outby the last 
open crosscut. 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 to continue on the 
surveying crew. If the surveying crew consists of only one person, the 
person shall monitor for methane with two separate devices.
    (n) Batteries contained in the non-permissible electronic surveying 
equipment shall be changed out or charged in intake air outby the last 
open crosscut. Replacement batteries for the non-permissible electronic 
surveying equipment shall be carried only in the electronic equipment 
carrying case spare battery compartment. Before each surveying shift, 
all batteries for the non-permissible electronic surveying equipment 
shall be charged sufficiently so that they are not expected to be 
replaced on that shift.
    (o) When using non-permissible electronic surveying equipment in 
return air outby the last open crosscut, 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 in return air outby 
the last open crosscut is at least the minimum quantity required by the 
mine's ventilation plan.
    (p) Personnel engaged in the use of non-permissible electronic 
surveying equipment shall be properly trained to recognize the hazards 
and limitations associated with the use of non-permissible electronic 
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 PDO granted by MSHA before 
using non-permissible electronic surveying equipment in return air 
outby the last open crosscut. A record of the training shall be kept 
with the other training records.
    (r) Within 60 days after the PDO granted by MSHA 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 PDO. When training is 
conducted on the terms and conditions of the PDO, 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 non-
permissible electronic surveying instrument acquired prior to December 
31, 2004, within 1 year of the PDO granted by MSHA becomes final. 
Within 3 years of the date the PDO becomes final, the operator shall 
replace or retire from service any theodolite acquired more than 5 
years prior to the date the PDO became final and any total station or 
other electronic surveying equipment identified in the PDO acquired 
more than10 years prior to the date the PDO 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 the 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 non-permissible electronic 
surveying equipment in accordance with the requirements of paragraph 
(s) of the PDO granted by MSHA. The conditions of use specified in the 
PDO shall apply to all non-permissible electronic surveying equipment 
used in return air outby the last open crosscut, regardless of whether 
the equipment is used by the operator or by an independent contractor.
    (u) Non-permissible electronic 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 electronic 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 a surveyor must disrupt ventilation while surveying, 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 PDO granted by MSHA. 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 PDO granted by MSHA within 60 days of the date the 
PDO becomes final. Such training shall be completed before any non-
permissible electronic 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 PDO granted by MSHA in accordance with 30 CFR 48.5 
and shall train experienced miners, as defined in 30 CFR 48.6, on the 
requirements of the PDO 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 alternate 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. 2024-02090 Filed 2-1-24; 8:45 am]
BILLING CODE 4520-43-P