[Federal Register Volume 70, Number 180 (Monday, September 19, 2005)]
[Rules and Regulations]
[Page 55019]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-18736]



Federal Register / Vol. 70, No. 180 / Monday, September 19, 2005 / 
Rules and Regulations

[[Page 55019]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 57

RIN 1219-AB11


Diesel Particulate Matter Exposure of Underground Metal and 
Nonmetal Miners

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Final rule; delay of applicability date.

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SUMMARY: At the initiation of the United Steel, Paper and Forestry, 
Rubber, Manufacturing, Energy, Allied Industrial and Service Workers 
International Union (USW) and the National Stone, Sand and Gravel 
Association (NSSGA), and with the concurrence of other interested 
parties, we (the Mine Safety and Health Administration) are delaying 
the applicability date of 30 CFR 57.5060(b) addressing ``Diesel 
Particulate Matter Exposure of Underground Metal and Nonmetal Miners 
(DPM)'' published in the Federal Register on January 19, 2001 (66 FR 
5706) from January 20, 2006 to May 20, 2006, to provide sufficient time 
to complete the September 7, 2005 proposal to amend the 2001 DPM rule. 
Section 57.5060(b) is also being revised to reflect this new 
applicability date.
    By a separate document published in today's Federal Register we are 
extending the period for comments on the proposed rule published on 
September 7, 2005 (70 FR 53280) and rescheduling the public hearings on 
the proposed rule from September 26, 28, and 30, 2005 to January 5, 9, 
11, and 13, 2006. The comment period on that rulemaking will close on 
January 27, 2006. We find these actions necessary to provide sufficient 
time and an orderly process for affected parties to comment on that 
proposed rule.

DATES: This final rule is effective September 19, 2005. The 
applicability date for 30 CFR 57.5060(b) has been delayed from January 
20, 2006 to May 20, 2006.

SUPPLEMENTARY INFORMATION:

I. Background

    In January 2001, we published a final rule that, among other 
things, established interim and final limits for diesel particulate 
matter exposure of underground metal and nonmetal miners (66 FR 5706). 
Industry groups challenged the rule in the United States Court of 
Appeals for the District of Columbia Circuit, and the USW's predecessor 
union intervened to defend it. The Court of Appeals has held the 
challenges in abeyance while the parties attempted to resolve their 
differences through settlement. In a July 2002 settlement, we agreed to 
propose revisions to the interim and final DPM limits (67 FR 47296, 
47297).
    In June 2005, we published a final rule that, among other things, 
revises the interim DPM limit (70 FR 32868). The USW and six industry 
petitioners challenged that rule in the United States Court of Appeals 
for the District of Columbia Circuit. The Court has consolidated the 
USW's challenge with three of the industry challenges. We asked the 
Court to consolidate all challenges to the June 2005 rule. The MARG 
Diesel Litigation Coalition has asked the Court to consolidate the 
challenges to the June 2005 rule with challenges to the January 2001 
rule that established the final DPM limit in 30 CFR 57.5060(b).
    On September 7, 2005, we proposed a rule to phase in the final DPM 
limit because we are concerned that there may be feasibility issues for 
some mines to meet that limit by January 20, 2006. Accordingly, we 
proposed a five-year phase-in period and noted our intent to initiate a 
separate rulemaking to convert the final DPM limit from a total carbon 
limit to an elemental carbon limit. We set hearing dates and a deadline 
for receiving comments on the September 7, 2005 proposed rule with the 
expectation that we would complete the rulemaking to phase in the final 
DPM limit before January 20, 2006.
    After publication of the September 7, 2005 proposed rule, we 
received a request from the USW for more time to comment on the 
proposed rule. The USW explained that Hurricane Katrina had placed 
demands on their resources that will prevent them from participating 
effectively in the rulemaking under the current schedule for hearings 
and comments. We recognize the USW's need to devote resources to 
respond to the aftermath of Hurricane Katrina and the impact that would 
have on their participation under the current timetable. Accordingly, 
in a separate document in today's Federal Register we are extending the 
deadline for receiving comments until January 27, 2006, and 
rescheduling the public hearings to January 5, 9, 11, and 13, 2006. We 
also received a request from the NSSGA for an extension of the comment 
period.
    These extensions, however, will prevent us from reviewing the 
comments, drafting a final rule, and obtaining necessary clearances 
before January 20, 2006. Accordingly, and due to the requests from the 
USW's, and the NSSGA, we have determined that it is necessary to delay 
the effective date of 30 CFR 57.5060(b) from January 20, 2006 to May 
20, 2006. We find that it is in the public interest to provide this 
delay in light of our concerns over the feasibility issues and industry 
compliance with 30 CFR 57.5060(b) and the request of the USW and the 
NSSGA, and with the concurrence of other interested parties for the 
extension of the comment period of the September 7, 2005 proposed rule. 
These considerations lead us to conclude that, to the extent notice and 
comment is required, providing for such notice and comment before 
issuing this delay would be impracticable and contrary to the public 
interest. Accordingly, we find good cause pursuant to 5 U.S.C. 
553(b)(3)(B), to delay the effective date of 30 CFR 57.5060(b) without 
notice and comment. Nothing in this delay notice alters the proposed 
phase-in implementation dates in our September 7, 2005 proposed rule.

List of Subjects in 30 CFR Part 57

    Diesel particulate matter, Metal and nonmetal, Mine safety and 
health, Underground miners.

    Dated: September 15, 2005.
David G. Dye,
Deputy Assistant Secretary of Labor for Mine Safety and Health.


0
For reasons set forth in the preamble, we amend Chapter 1 of Title 30 
as follows:
0
1. The authority citation for part 57 reads as follows:

    Authority: 30 U.S.C. 811.


Sec.  57.5060  [Amended]

0
2. Section 57.5060 is amended by revising paragraph (b) to read as 
follows:
* * * * *
    (b) After May 19, 2006, any mine operator covered by this part must 
limit the concentration of diesel particulate matter to which miners 
are exposed in underground areas of a mine by restricting the average 
eight-hour equivalent full shift airborne concentration of total 
carbon, where miners normally work or travel, to 160 micrograms per 
cubic meter of air (160TC [mu]g/m\3\).
* * * * *
[FR Doc. 05-18736 Filed 9-15-05; 2:55 pm]
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