[Federal Register Volume 64, Number 153 (Tuesday, August 10, 1999)]
[Rules and Regulations]
[Pages 43283-43286]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-20409]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 70, 71, and 90
RIN 1219-AA98
Improving and Eliminating Regulations; Calibration and
Maintenance Procedures for Coal Mine Respirable Dust Samplers
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Final rule; technical amendment.
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SUMMARY: We (MSHA) have revised and updated our Informational Report
No. 1121 (IR 1121) to include currently approved sampling equipment and
to permit the use of fast-response calibrators having a volumetric
tube. The updated document is Informational Report No. 1240 (IR 1240)
entitled, ``Calibration and Maintenance Procedures for Coal Mine
Respirable Dust Samplers.'' This final rule updates the existing
incorporation-by-reference of IR 1121 in MSHA's coal mine respirable
dust standards to reference IR 1240.
EFFECTIVE DATE: This regulation is effective October 12, 1999. The
incorporation-by-reference of the publication listed in the rule is
approved by the Director of the Federal Register as of October 12,
1999.
FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director;
Office of Standards, Regulations, and Variances, MSHA; 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Regulatory Background
In response to the Administration's regulatory reinvention
initiative, we conducted a review of existing regulations to identify
obsolete, outdated, redundant, or unnecessary provisions that could be
removed or revised without reducing protection afforded miners. This
final rule is part of our ongoing plan to improve our regulations. It
updates the incorporation-by-reference of IR 1121, with the most recent
revision, IR 1240. IR 1240 allows mine operators to use advanced
technology without reducing protection to miners.
On September 3, 1998, we published a proposed rule in the Federal
Register (63 FR 47123) requesting public comment on our intention to
update the incorporation-by-reference in title 30 of the Code of
Federal Regulations (30 CFR) Secs. 70.204, 71.204, and 90.204. We
allowed 60 days for public comment and received no comments, no
requests for an extension of the comment period, and no requests for a
public hearing.
To increase awareness of this regulatory action, MSHA will mail a
copy of this final rule to all operators and miners' representatives
and will post it and IR 1240 on MSHA's Website at www.msha.gov.
II. Discussion of Final Rule
Existing coal mining regulations Secs. 70.204, 71.204, and 90.204
require that approved respirable dust sampling devices be calibrated in
accordance with MSHA Informational Report No. 1121 (IR 1121) ``Standard
Calibration and Maintenance Procedures for Wet Test Meters and Coal
Mine Respirable Dust Samplers (Supersedes IR 1073).'' These regulations
further state that amendments to IR 1121 will be announced in the
Federal Register. This final rule updates the incorporation-by-
reference of IR 1121, with the most recent revision, IR 1240, which is
entitled ``Calibration and Maintenance Procedures for Coal Mine
Respirable Dust Samplers.''
IR 1240 addresses improved technology and describes the standard
procedures that MSHA currently uses for calibration of approved
personal samplers and associated equipment and for maintenance of this
equipment. IR 1240 continues to require operators to record calibration
parameters and results. MSHA encourages mine operators who store
records electronically to provide a mechanism which will allow the
continued storage and retrieval of records in the year 2000 and
thereafter.
IR 1240 includes the calibration and maintenance procedures for the
newest approved sampling unit for collecting respirable coal mine dust.
This sampling unit uses constant flow technology and a power source
which is different from other approved sampling units. The constant
flow technology permits the calibration of this unit without concern
for flow fluctuations. In addition, IR 1240 cautions mine operators and
other interested parties to maintain such units as approved so as to
ensure the accurate collection of respirable coal mine dust samples. IR
1240 also permits the use of fast-response calibrators for calibrating
all approved sampling units. It takes only 1 to 2 minutes per unit to
calibrate a sampling unit using this newer technology, as opposed to 30
minutes using the traditional calibration systems addressed in IR 1121.
Copies of IR 1240 are available at MSHA, Coal Mine Safety and
Health, Room 816, 4015 Wilson Boulevard, Arlington, VA 22203; at each
MSHA
[[Page 43284]]
Coal Mine Safety and Health district and subdistrict office; and on
MSHA's Home Page at www.msha.gov.
III. Paperwork Reduction Act
This final rule, like the existing rule, contains information
collection requirements subject to the Paperwork Reduction Act of 1995
(PRA 95). MSHA submitted the proposed information collection request to
OMB for its review and approval under Sec. 3507(o) of PRA 95. OMB
reviewed and approved the collection of information under OMB Control
Number 1219-0128. This section contains a description of the
information collection requirement, the respondent categories, and the
annual information collection burden.
Description
Final 30 CFR 70.204, 71.204, and 90.204 require that approved
respirable dust sampling devices be calibrated in accordance with IR
1240 ``Calibration and Maintenance Procedures for Coal Mine Respirable
Dust Samplers.'' Calibration of sampling units requires data to be
recorded as part of the calibration procedure. Most mines that
calibrate their own pumps now use instantaneous flow meters for this
purpose; and almost all but the largest underground mines send their
pumps out to be calibrated, rather than calibrating them themselves.
Respondents
The respondents are mine operators. We estimate that this
information collection requirement affects about 900 coal mines and
that these mines calibrate about 1,850 pumps per year. Further, MSHA
estimates that 897 of these mines calibrate 1814 pumps with a fast
response calibrator; that three mines calibrate 36 pumps using the
bubble tube method of pump calibration; and that no mines use the wet
test meter method of pump calibration.
Information Collection Burden
The recording of calibration data is considered an information
collection burden under PRA 95. MSHA estimates that it takes about 30
minutes (0.5 hour) to calibrate a pump using the bubble tube method,
including recording calibration-related information and marking the
pump flowmeter, and that it takes about 3 minutes (0.05 hour) to
calibrate each pump with a fast-response calibrator and mark the pump
flowmeter. The average time for pump calibration is 0.059 hour. The
mine's technical staff usually does the pump calibration, if it's done
at the mine, at a cost of about $42 per hour.
The total estimated annual information collection burden for pump
calibration and marking the pump flowmeter is about 109 hours with an
associated cost of about $4,580.
We estimate that most mine operators incurred the capital and
start-up costs associated with pump calibration prior to October 1,
1995. Fast-response calibrators cost about $900 and have a useful life
of about 10 years. The annualization factor for an equipment life of 10
years is 0.142. The annualized cost for calibrators, therefore, is
about $128 per calibrator. For the purpose of this analysis, we
estimate that about five new mines per year would purchase a fast-
response calibrator resulting in a total annualized capital cost of
about $640.
We estimate that about 2010 mines send about 2040 pumps per year to
an outside contractor for calibration and maintenance. This service
includes pump calibration and marking the flowmeter; certification of
pump calibration; cleaning and checking pump function; replacing worn
or damaged parts; and shipping and handling. MSHA estimates that the
average cost for this service is about $100 per pump. Fast-response
calibrators also require routine calibration and maintenance each year
at a cost of about $100. The cost for calibration and maintenance of
2040 pumps and five calibrators, therefore, is $204,500.
The following chart summarizes MSHA's estimates for compliance with
PRA 95.
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Number of
Number of Number of responses per Hours per
Provision respondents responses respondent response Total hours
(average) (average)
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Calibration records................................................ 900 1849 2 0.059 109
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Annual cost of 5
Annual cost of new mines
calibration for 5 acquiring fast-
Annual Cost of calibration for 2040 pumps @ $100 ea. fast-response response Total annual cost
calibrators @ $100 calibrators @ $128
ea. ea. annualized
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$204,000............................................ $500 $640 $205,140
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The burden hours and costs associated with pump calibratioin and
marking the flowmeter do not represent any license for the mining
industry because MSHA regulations currently require operators to
perform these activities.
IV. Executive Order 12866
Executive Order 12866 requires that regulatory agencies assess both
the costs and benefits of regulations. We estimate that the cost impact
of the final rule is the same as under the existing rule. The primary
benefit of the final rule is that it provides mine operators
alternatives in maintaining and calibrating dust sampling units. It
takes only 1 to 2 minutes per unit to calibrate a sampling unit using
this newer technology, as opposed to 30 minutes using the traditional
calibration systems addressed in IR 1121. MSHA has determined that this
final rule does not meet the criteria for a significant regulatory
action and, therefore, has not prepared a separate analysis of costs
and benefits. The analysis contained in this preamble meets MSHA's
responsibilities under Executive Order 12866 and the Regulatory
Flexibility Act.
V. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires regulatory agencies
to consider a rule's impact on small entities. Under the RFA, MSHA must
use the Small Business Administration (SBA) definition for a small mine
of 500 or fewer employees or, after consultation with the SBA Office of
Advocacy, establish an alternative definition for the mining industry
by publishing that definition in the Federal Register for notice and
comment. Although MSHA traditionally has considered small mines to be
those with fewer than 20
[[Page 43285]]
employees, MSHA has analyzed the impact of the final rule on mines with
500 or fewer employees for the purposes of the RFA.
Regulatory Flexibility Certification
In accordance with Sec. 605 of the RFA, MSHA certifies that this
final rule will not have a significant economic impact on a substantial
number of small entities. No small governmental jurisdictions or
nonprofit organizations are affected.
Under the Small Business Regulatory Enforcement Fairness Act
(SBREFA) amendments to the RFA, we must include in the final rule a
factual basis for this certification. We also must publish the
regulatory flexibility certification in the Federal Register, along
with its factual basis. We believe that this analysis provides a
reasonable basis for the certification in this case.
We have provided a copy of this final rule and regulatory
flexibility certification statement to the SBA Office of Advocacy. In
addition, we will mail a copy of the final rule, including the preamble
and regulatory flexibility certification statement, to all affected
mines and miners' representatives.
Factual Basis for Certification
We used a qualitative approach in concluding that the final rule
would not have a significant economic impact on a substantial number of
small entities. This final rule updates the regulations to incorporate
by reference the latest revision of an MSHA informational report
describing the calibration and maintenance procedures for coal mine
respirable dust sampling units. The benefit of updating provisions is
that MSHA regulations would be clearer and reflect advances in
technology. This final rule will have no economic impact on the mining
industry. The cost impact on mines employing fewer than 20 miners or
those employing 500 or fewer miners will be the same as under the
existing rule.
VI. Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as Executive Order 12875, this final rule does not include any Federal
mandate that may result in increased expenditures by State, local, and
tribal governments, or by the private sector.
VII. Executive Order 13045
In accordance with Executive Order 13045, Protection of Children
from Environmental Health Risks and Safety Risks, MSHA has evaluated
the environmental health and safety risks of the final rule on
children. The Agency has determined that the final rule would have no
effect on children.
VIII. Executive Order 13084 Consultation and Coordination With
Indian Tribal Governments
The Agency has reviewed this final rule in accordance with
Executive Order 13084, and certifies that the final rule does not
impose substantial direct compliance costs on Indian tribal
governments.
IX. Executive Order 12612 Federalism
Executive Order 12612, regarding federalism, requires that
agencies, to the extent possible, refrain from limiting state policy
options, consult with states prior to taking any actions which would
restrict state policy options, and take such actions only when there is
clear constitutional authority and the presence of a problem of
national scope. Since this rule does not limit state policy options, it
complies with the principles of federalism and with Executive Order
12612.
X. Executive Order 12630 Government Actions and Interference With
Constitutionally Protected Property Rights
This rule is not subject to Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights, because it does not involve implementation of a policy with
takings implications.
XI. Executive Order 12988 Civil Justice Reform
The Agency has reviewed Executive Order 12988, Civil Justice
Reform, and determined that this rulemaking will not unduly burden the
Federal court system. The regulation has been written so as to provide
a clear legal standard for affected conduct, and has been reviewed
carefully to eliminate drafting errors and ambiguities.
XII. National Environmental Policy Act
The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.
4321 et. seq.) requires each Federal agency to consider the
environmental effects of final actions and to prepare an Environmental
Impact Statement on major actions significantly affecting the quality
of the human environment. We have reviewed the final standards in
accordance with the requirements of NEPA, the regulations of the
Council on Environmental Policy (40 CFR 1500), and the NEPA procedures
of the Department of Labor (29 CFR 11). As a result of this review,
MSHA has determined that this final rule will have no environmental
impact.
List of Subjects in 30 CFR Parts 70, 71, and 90
Coal mines, Incorporation by reference, Mine safety and health,
Scientific equipment.
Dated: August 3, 1999.
Marvin W. Nichols, Jr.,
Deputy Assistant Secretary for Mine Safety and Health.
Accordingly, under the authority of 30 U.S.C. 811 and for the
reasons set out in the preamble, MSHA is amending chapter I, title 30
of the Code of Federal Regulations, as follows.
PART 70--[AMENDED]
1. The authority citation for part 70 is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), 957.
2. The authority citation for subpart C continues to read as
follows:
Authority: 30 U.S.C. 811, 813(h), and 957.
3. Section 70.204 is amended by revising paragraphs (a) and (e) to
read as follows:
Sec. 70.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and
calibrated in accordance with MSHA Informational Report IR 1240 (1996)
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust
Samplers (supersedes IR 1121)'' by a person certified in accordance
with Sec. 70.203 (Certified person; maintenance and calibration).
* * * * *
(e) MSHA Informational Report IR 1240 (1996) referenced in
paragraph (a) of this section is incorporated-by-reference. This
incorporation-by-reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained at MSHA, Coal Mine Safety and Health, 4015
Wilson Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal
Mine Safety and Health district and subdistrict office. Copies may be
inspected at the Office of the Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC.
PART 71--[AMENDED]
4. The authority citation for part 71 is revised to read as
follows:
Authority: 30 U.S.C. 811, 951, and 957.
5. The authority citation for subpart C continues to read as
follows:
Authority: 30 U.S.C. 811, 951, 957.
[[Page 43286]]
6. Section 71.204 is amended by revising paragraphs (a) and (e) to
read as follows:
Sec. 71.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and
calibrated in accordance with MSHA Informational Report IR 1240 (1996)
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust
Samplers (supersedes IR 1121)'' by a person certified in accordance
with Sec. 71.203 (Certified person; maintenance and calibration).
* * * * *
(e) MSHA Informational Report IR 1240 (1996) referenced in
paragraph (a) of this section is incorporated-by-reference. This
incorporation-by-reference was approved by the Director of the Federal
Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies
may be inspected or obtained at MSHA, Coal Mine Safety and Health, 4015
Wilson Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal
Mine Safety and Health district and subdistrict office. Copies may be
inspected at the Office of the Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC.
PART 90--[AMENDED]
7. The authority citation for part 90 continues to read as follows:
Authority: 30 U.S.C. 811, 813(h).
8. The authority citation for subpart C is revised to read as
follows:
Authority: 30 U.S.C. 811, 813(h), 957.
9. Section 90.204 is amended by revising paragraphs (a) and (e) to
read as follows:
Sec. 90.204 Approved sampling devices; maintenance and calibration.
(a) Approved sampling devices shall be maintained as approved under
part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and
calibrated in accordance with MSHA Informational Report IR 1240 (1996)
``Calibration and Maintenance Procedures for Coal Mine Respirable Dust
Samplers ``(supersedes IR 1121)'' by a person certified in accordance
with Sec. 90.203 (Certified person; maintenance and calibration).
* * * * *
(e) MSHA Informational Report IR 1240 (1996)referenced in paragraph
(a) of this section is incorporated-by-reference. This incorporation-
by-reference was approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be
inspected or obtained at MSHA, Coal Mine Safety and Health, 4015 Wilson
Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal Mine
Safety and Health district and subdistrict office. Copies may be
inspected at the Office of the Federal Register, 800 North Capitol
Street NW., Suite 700, Washington, DC.
[FR Doc. 99-20409 Filed 8-9-99; 8:45 am]
BILLING CODE 4510-43-P
