05-12813. Underground Coal Mine Ventilation-Safety Standards for the Use of a Belt Entry as an Intake Air Course To Ventilate Working Sections and Areas Where Mechanized Mining Equipment Is Being Installed or Removed

AGENCY:

Mine Safety and Health Administration, Labor.

ACTION:

Final rule; conforming to the Court's opinion.

SUMMARY:

On April 2, 2004, the Mine Safety and Health Administration published a final rule revising underground coal mine ventilation standards to allow the use of air traveling in the belt entry to ventilate working sections or areas where mechanized mining equipment is being installed or removed. The International Union, United Mine Workers of America and Jim Walter Resources, Inc. challenged the rule. On May 24, 2005, the U.S. Court of Appeals for the District of Columbia Circuit issued an opinion denying the Union's petition for review and granting the petition of Jim Walter Resources, Inc. Jim Walter Resources, Inc.'s petition challenged the Secretary of Labor's promulgation of 30 Code of Federal Regulations section 75.350(a)(2), which, under certain circumstances, set a velocity cap of 500 feet per minute in the belt entry of underground coal mines. This document provides notice of, and effectuates, the Court's opinion to vacate paragraph (a)(2) of section 75.350 and remand the matter to the Secretary of Labor.

DATES:

Effective June 29, 2005.

FOR FURTHER INFORMATION CONTACT:

Rebecca J. Smith, Acting Director, Office of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-3939. Ms. Smith can be reached at [e-mail] (Internet e-mail), [phone] (voice), or [phone] (facsimile). The document is also available on the Internet at http://www.msha.gov/​regsinfo.htm. We maintain a listserve on our Web site that enables subscribers to receive e-mail notification when we publish rulemaking documents in the Federal Register. To subscribe to the listserve, visit our site at http://www.msha.gov/​subscriptions/​subscribe.aspx.

SUPPLEMENTARY INFORMATION:

On April 2, 2004, the Mine Safety and Health Administration (MSHA) published a final rule (69 FR 17480) revising underground coal mine ventilation standards to allow the use of air traveling in the belt entry (belt air) to ventilate working sections or to areas where mechanized mining equipment is being installed or removed. In response to the belt air rule's publication, the International Union, United Mine Workers of America (“the Union”) and Jim Walter Resources, Inc. (“JWR”) filed petitions with the Court of Appeals for the DC Circuit challenging the rule on separate grounds. The court consolidated both petitions and issued a decision, International Union, United Mine Workers of America v. Mine Safety and Health Administration, 407 F.3d 1250 (DC Cir. 2005). The Court denied the Union's petition for review. In the petition of JWR, the coal mining company challenged the Secretary's promulgation of 30 Code of Federal Regulations (CFR) 75.350(a)(2), which states that “[t]he maximum air velocity in the belt entry must be no greater than 500 feet per minute unless otherwise approved in the mine ventilation plan.” JWR contended that the 500 feet per minute velocity cap referenced in the section was invalid because the Secretary failed to comply with the notice-and-comment requirements of section 101(a) of the Federal Mine Safety and Health Act of 1977, 30 United States Code (U.S.C.) 811(a), and the Administrative Procedure Act, 5 U.S.C. 553(b).

The Court of Appeals granted JWR's petition; vacated paragraph (a)(2) of § 75.350(a)(2); and remanded the matter to the Secretary of Labor. In compliance with the Court's opinion the provision is removed from 30 CFR and the remaining provision is renumbered.

List of Subjects in 30 CFR Part 75

• Mandatory safety standards
• Mine safety and health
• Underground coal mines
• Ventilation

Dated: June 23, 2005.

David G. Dye,

Deputy 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—MANDATORY SAFETY STANDARDS—UNDERGROUND COAL MINES

1. The authority citation for part 75 continues to read as follows:

Authority: 30 U.S.C 811.

2. Amend § 75.350 by removing paragraph (a)(2) and redesignating paragraph (a)(3) as the new (a)(2).