[Federal Register Volume 59, Number 34 (Friday, February 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-3592]
[[Page Unknown]]
[Federal Register: February 18, 1994]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Disease Control and Prevention
Mine Shift Atmospheric Conditions; Respirable Dust Sample
AGENCIES: Mine Safety and Health Administration, Labor, National
Institute for Occupational Safety and Health, Centers for Disease
Control and Prevention, HHS.
ACTION: Notice.
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SUMMARY: This notice announces that the Secretary of Labor and the
Secretary of Health and Human Services1 (the Secretaries) find
that the average concentration of respirable dust to which each miner
in the active workings of a coal mine is exposed can be measured over a
single shift in accordance with section 202(f)(2) of the Federal Mine
Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 801 et seq. Based
on this finding, the Secretaries propose to rescind the notice of
finding which was published on July 17, 1971, and affirmed on February
23, 1972. This finding is governed by the provisions of section 101 of
the Mine Act. This notice should be read in conjunction with the notice
published separately by the Mine Safety and Health Administration
(MSHA) today elsewhere in the Federal Register.
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\1\This notice is signed by the Assistant Secretary for Mine
Safety and Health, and the Director, National Institute for
Occupational Safety and Health under authority delegated to them by
the Secretary of Labor and the Secretary of Health and Human
Services.
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DATES: Written comments must be submitted on or before April 19, 1994.
ADDRESSES: Send written comments to the Mine Safety and Health
Administration, Office of Standards, Regulations, and Variances, room
631, Ballston Tower No. 3, 4015 Wilson Boulevard, Arlington, Virginia
22203.
FOR FURTHER INFORMATION CONTACT: Ronald J. Schell, Chief, Division of
Health, Coal Mine Safety and Health, Mine Safety and Health
Administration, 4015 Wilson Boulevard, Arlington, Virginia 22203, (703)
235-1358.
SUPPLEMENTARY INFORMATION: In accordance with section 202(f)(2) and
under section 101 of the Mine Act, this notice is published jointly by
the Secretaries of the Departments of Labor and Health and Human
Services.
Statutory Framework
Section 202(b) of the Mine Act requires that:
Each operator shall continuously maintain the average
concentration of respirable dust in the mine atmosphere during each
shift to which each miner in the active workings of such mine is
exposed at or below 2.0 milligrams of respirable dust per cubic
meter of air.
Section 202(f) of the Mine Act provides that:
* * * the term average concentration means a determination which
accurately represents the atmospheric conditions with regard to
respirable dust to which each miner in the active workings of a mine
is exposed (1) as measured during an 18 month period following the
date of enactment of this Act, over a number of continuous
productions shifts to be determined by the Secretary and the
Secretary of Health, Education and Welfare, and (2) as measured
thereafter, over a single shift only, unless the Secretary of Labor
and the Secretary of Health, Education and Welfare find, in
accordance with the provisions of Section 101 of the Act, that such
single-shift measurement will not, after applying valid statistical
techniques to such measurement, accurately represent such
atmospheric conditions during such shift.
The plain meaning of the statutory requirements show clear
Congressional intent that the atmospheric conditions to which miners
are exposed be maintained at or below the applicable standard during
any single working shift. (The use of the term ``applicable standard''
recognizes that some mines have respirable dust in the mine atmosphere
of the active workings that contains more than five percent quartz, and
that, under the regulations of the Mine Safety and Health
Administration at 30 CFR 70.101, 71.101 and 90.101, the applicable
standard for respirable dust in those mines may be reduced because of
the quartz content). This intent is also clearly reflected in the
legislative history of the Coal Mine Health and Safety Act of 1969
(Coal Act). The Senate Committee in its Report noted that the dust
level should ``not exceed the specified standard during any shift''
(emphasis added). Senate Report No. 91-411, 91st congress, 1st Sess.,
p. 20. The Report also specified that:
It is the Committee's intention that the average dust level at
any job, for any miner, in any active working place during each and
every shift, shall be no greater that the standard. Since some mine
operations involve a varying pace of activity, the dust level could
significantly differ from one shift to another. It is expressly
noted, therefore, that the bill does not allow multiple shift
averaging.
However, the final version of the bill was amended by a joint House
and Senate conference committee which mandated an 18 month period for
the determination of ``average concentration'' over a number of
continuous production shifts, and thereafter as measured over a single
shift unless a specific finding was made pursuant to section 202(f) of
the Coal Act that such measurements were not reliable. Thus, the
statutory language clearly indicates that the use of multiple-shift
averaging was not the preferred method of determining the average
concentration. The National Institute for Occupational Safety and
Health (NIOSH) and MSHA have jointly developed the finding set forth
below.
Finding
The Secretaries find that a single full-shift measurement, after
applying valid statistical techniques to such measurement accounting
for the precision of the analytical and sampling method, will
accurately represent the atmospheric conditions with regard to the
respirable dust concentration during the shift in which it was taken.
Rescission of the 1971 Notice
Based on the preceding joint finding, the Secretaries propose to
rescind the July 17, 1971, notice of finding (36 FR 13286) by their
predecessors under the authority which is now section 202(f)(2) of the
Mine Act. The 1971 Finding concluded that ``[a] single shift
measurement of respirable dust would not, after applying valid
statistical techniques to such measurement, accurately represent the
atmospheric conditions to which the miner is continuously exposed.''
The finding did not address the average dust concentration during the
shift the sample was taken. Comments were received and considered, and
on February 23, 1972, the finding was affirmed by the then Secretaries
of the Interior and of Health, Education, and Welfare (37 FR 3833). The
Secretaries now propose to rescind the 1971 finding by superseding it
with the new finding contained in this notice.
Comments
MSHA and NIOSH specifically request that interested persons submit
comments concerning this notice to the address listed above. Written
comments submitted on or before April 19, 1994 will be considered
before issuing a final finding.
Dated: February 1, 1994.
Edward C. Hugler,
Acting Assistant Secretary for Mine Safety and Health.
Dated: February 1, 1994.
Richard A. Lemen,
Acting Director, National Institute for Occupational Safety and Health.
[FR Doc. 94-3592 Filed 2-17-94; 8:45 am]
BILLING CODE 4510-43-M
