Determination of Concentration of Respirable Coal Mine Dust [Proposed Rules] [08/12/2003]

MSHA Proposed Rule
Determination of Concentration of Respirable Coal Mine Dust [08/12/2003]

[PDF Version]

Volume 68, Number 155, Page 47886-47887

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Disease Control and Prevention

30 CFR Part 72

RIN 1219-AB18

 
Determination of Concentration of Respirable Coal Mine Dust

AGENCIES: Mine Safety and Health Administration (MSHA), Department of 
Labor, National Institute for Occupational Safety and Health (NIOSH), 
Centers for Disease Control and Prevention, Department of Health and 
Human Services.

ACTION: Proposed rule; reopening of the rulemaking record; extension of 
comment period.

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SUMMARY: This document reopens the rulemaking record and extends the 
comment period for the proposed rule addressing Determination of 
Concentration of Respirable Coal Mine Dust, (Single Sample) published 
in the Federal Register on July 7, 2000 and reopened for public comment 
on March 6, 2003.
    The Agencies have decided to reopen the rulemaking record and 
further extend the comment period in order to obtain further 
information on Personal Dust Monitors (PDMs), a new technology which is 
currently being tested by NIOSH.
    The rulemaking record and comment period will remain open until 
further notice is published in the Federal Register. All comments 
received will be entered into the rulemaking record.

DATES: The rulemaking record for the proposed rule, published on July 
7, 2000 and reopened for comment on March 6, 2003, will remain open 
until further notice is published in the Federal Register.

ADDRESSES: You may use mail, facsimile (fax), or electronic mail to 
send us your comments. Clearly identify them as comments and send them 
(1) by mail to MSHA, Office of Standards, Regulations, and Variances, 
1100 Wilson Blvd., Room 2313, Arlington, Virginia 22209-3939; (2) by 
fax to (202) 693-9441; or (3) by electronic mail to: comments@msha.gov.
FOR FURTHER INFORMATION CONTACT: Marvin W. Nichols, Jr., Director, 
Office of Standards, Regulations and Variances, MSHA; phone: (202) 693-
9440; facsimile: (202) 693-9441; e-mail: nichols-marvin@msha.gov.    You can request a copy of this reopening and extension of comment 
period notice in an alternate format, such as a large print version, an 
electronic file or a file on a disk. This reopening and extension of 
comment period notice is available on MSHA's Internet site, http://www.msha.gov
, at the ``Statutory and Regulatory Information'' icon.

SUPPLEMENTARY INFORMATION:

I. Rulemaking Background

    In 1972, the Secretary of Interior and the Secretary of Health, 
Education, and Welfare issued a joint finding under the Federal Coal 
Mine Safety and Health Act of 1969. The finding concluded that a 
single, full-shift measurement of

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respirable dust would not, after applying valid statistical techniques, 
accurately represent the atmospheric conditions to which the miner is 
continuously exposed (37 FR 3833).
    In 1994, the Secretary of Labor and the Secretary of Health and 
Human Services tentatively concluded that the 1972 joint finding was 
incorrect. Therefore, on February 18, 1994, the Secretary of Labor and 
the Secretary of Health and Human Services published a proposed Joint 
Notice of Finding in the Federal Register (59 FR 8537). That Joint 
Notice proposed to find that a single, full-shift exposure measurement 
will accurately represent the atmospheric conditions with regard to the 
respirable coal mine dust concentration during the shift on which it 
was taken, and to rescind the 1972 finding by the Secretary of the 
Interior and the Secretary of Health, Education and Welfare. Also on 
February 18, 1994, MSHA published in the Federal Register (59 FR 8356) 
a separate notice announcing how MSHA intended to implement its new 
enforcement procedure utilizing single samples, and to solicit public 
comment on this procedure.
    On February 3, 1998, after a notice and comment procedure extending 
over three and one-half years, including three public hearings (in Salt 
Lake City, Utah; Washington, District of Columbia, and Morgantown, West 
Virginia), MSHA and NIOSH published a final Notice of Finding, and MSHA 
published an enforcement policy for the Notice of Finding in the 
Federal Register (63 FR 5664 and 5687, respectively).
    In May 1998, The National Mining Association (NMA) and the Alabama 
Coal Association petitioned the United States Court of Appeals for the 
11th Circuit to review the 1998 Notice of Finding. On September 4, 
1998, the United States Court of Appeals for the 11th Circuit issued a 
decision based on procedural grounds to vacate the Notice of Finding in 
the case of National Mining Association v. Secretary of Labor, (153 
F.3d 1264).
    In response to the 11th Circuit Court's decision, the Department of 
Labor and the Department of Health and Human Services published in the 
Federal Register a Notice of Proposed Rulemaking (NPRM), Determination 
of Concentration of Respirable Coal Mine Dust (65 FR 42068) on July 7, 
2000.
    In that document, the Secretaries proposed a new mandatory health 
standard in 30 CFR part 72 that stated that a single, full-shift 
measurement would accurately represent atmospheric conditions to which 
a miner is exposed during such shift. The proposed rule would rescind 
the 1972 Joint Finding. The record of the 1998 final Joint Finding was 
incorporated into the record for this rulemaking along with new data 
and information. Those items and all additional data and information 
were added to the rulemaking docket and made available to the public. A 
notice of public hearing and close of record was also published in the 
Federal Register (65 FR 42185) on July 7, 2000.
    During August 2000, three public hearings were conducted in 
Morgantown, West Virginia; Prestonsburg, Kentucky; and Salt Lake City, 
Utah. Transcripts of those proceedings were made available to the 
public. The close of the rulemaking record was originally scheduled for 
August 24, 2000. In response to requests from commenters, the comment 
period was extended until September 8, 2000 (65 FR 49215).
    On March 6, 2003 (68 FR 10940), the Secretaries published a notice 
of reopening addressing the July 7, 2000 proposed rule, (65 FR 42068), 
Determination of Concentration of Respirable Coal Mine Dust. The 
Secretaries reopened the rulemaking record to provide interested 
parties an additional opportunity to comment on any issue relevant to 
the July 2000 proposed rule; and to solicit comment on new data and 
information added to the record. The reopening addressed the 
background, MSHA's current enforcement policy, health effects, 
quantitative risk assessment, technological feasibility, economic 
feasibility, compliance costs and benefits, references and supporting 
documentations.
    In May 2003, the Agencies held six public hearings in Washington, 
Pennsylvania; Charleston, West Virginia; Evansville, Indiana; 
Lexington, Kentucky; Birmingham, Alabama; and Grand Junction, Colorado. 
The hearings were attended by over 500 members of the public. In 
response to requests from the mining community the Agencies extended 
the post-hearing comment period from June 4, 2003 to July 3, 2003 (68 
FR 32005, May 29, 2003). This notice reopens the rulemaking record and 
extends the comment period until further notice is published in the 
Federal Register.

II. Reasons for Reopening the Rulemaking Record

    The Agencies decided to reopen the rulemaking record and extend the 
comment period on the proposed rule after careful consideration of 
comments during the May 2003 public hearings concerning the preliminary 
success of in-mine tests on a prototype of the Personal Dust Monitor 
(PDM).
    The rulemaking record and comment period will remain open during 
which time:
    [sbull] The in-mine testing of the pre-production prototype PDMs at 
mines in Pennsylvania, West Virginia, Alabama, and Utah is completed;
    [sbull] NIOSH and MSHA commit $150,000 each for further testing 
contingent upon completion and positive assessment of the in-mine 
testing; and
    [sbull] Information is obtained to assist in controlling and 
monitoring respirable coal mine dust and preventing Black Lung disease.
    For all the reasons stated herein, the rulemaking record and 
comment period for the proposed rule is hereby reopened until further 
notice is published in the Federal Register.
    A notice extending the comment period on the proposed rule 
Verification of Underground Coal Mine Operators' Dust Control Plans and 
Compliance Sampling for Respirable Dust, (68 FR 10784, 68 FR 32005), 
was published in the Federal Register on July 3, 2003.

    Dated: August 6, 2003.
Elaine L. Chao,
Secretary, Department of Labor.
    Dated: August 6, 2003.
Tommy G. Thompson,
Secretary, Department of Health and Human Services.
[FR Doc. 03-20499 Filed 8-7-03; 3:01 pm]

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