Federal Register / Vol. 70, No. 180 / Monday, September 19, 2005 / Rules and Regulations 55019 

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. 

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. 

■ For reasons set forth in the preamble, 

we amend Chapter 1 of Title 30 as 

follows: 

■ 1. The authority citation for part 57 

reads as follows: 

Authority: 30 U.S.C. 811. 

§ 57.5060 [Amended] 

■ 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 μg/m3). 

* * * * * 

[FR Doc. 05–18736 Filed 9–15–05; 2:55 pm] 

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