[Federal Register Volume 75, Number 201 (Tuesday, October 19, 2010)]
[Proposed Rules]
[Pages 64412-64506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25249]



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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 70, 71, 72, et al.



Lowering Miners' Exposure to Respirable Coal Mine Dust, Including 
Continuous Personal Dust Monitors; Proposed Rule

Federal Register / Vol. 75 , No. 201 / Tuesday, October 19, 2010 / 
Proposed Rules

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 70, 71, 72, 75, and 90

RIN 1219-AB64


Lowering Miners' Exposure to Respirable Coal Mine Dust, Including 
Continuous Personal Dust Monitors

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) proposes to 
lower miners' exposure to respirable coal mine dust by revising the 
Agency's existing standards on miners' occupational exposure to 
respirable coal mine dust. The major provisions of the proposal would 
lower the existing exposure limit; provide for full-shift sampling; 
redefine the term ``normal production shift; '' and add reexamination 
and decertification requirements for persons certified to sample, and 
maintain and calibrate sampling devices. In addition, the proposed rule 
would provide for single shift compliance sampling under the mine 
operator and MSHA's inspector sampling programs, and would establish 
sampling requirements for use of the Continuous Personal Dust Monitor 
(CPDM) and expanded requirements for medical surveillance.
    The proposed rule would significantly improve health protections 
for this Nation's coal miners by reducing their occupational exposure 
to respirable coal mine dust and lowering the risk that they will 
suffer material impairment of health or functional capacity over their 
working lives.

DATES: All comments must be received by midnight Eastern Standard Time 
on February 28, 2011.

ADDRESSES: Comments must be clearly identified with ``RIN 1219-AB64'' 
and may be sent by any of the following methods:
    (1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Electronic mail: <a href="/cdn-cgi/l/email-protection#2a50506779626b07494547474f445e596a4e4546044d455c"><span class="__cf_email__" data-cfemail="a0dadaedf3e8e18dc3cfcdcdc5ced4d3e0c4cfcc8ec7cfd6">[email protected]</span></a>. Include ``RIN 1219-
AB64'' in the subject line of the message.
    (3) Facsimile: 202-693-9441. Include ``RIN 1219-AB64'' in the 
subject line of the message.
    (4) Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
    (5) Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350, 
Arlington, Virginia. Sign in at the receptionist's desk on the 21st 
floor.
    Information Collection Requirements: Comments concerning the 
information collection requirements of this proposed rule must be 
clearly identified with ``RIN 1219-AB64'' and sent to both the Office 
of Management and Budget (OMB) and MSHA. Comments to OMB may be sent by 
mail addressed to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, New Executive Office Building, 725 
17th Street, NW., Washington, DC 20503, Attn: Desk Officer for MSHA. 
Comments to MSHA may be transmitted either electronically to zzMSHA-
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="95d6faf8f8f0fbe1e6d5f1faf9bbf2fae3">[email protected]</a>, by facsimile to (202) 693-9441, or by regular mail, 
hand delivery, or courier to MSHA, Office of Standards, Regulations, 
and Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, 
Room 2350, Arlington, Virginia 22209-3939. Ms. Silvey can be reached at 
<a href="/cdn-cgi/l/email-protection#481b21243e2d316618293c3a212b2129082c2724662f273e"><span class="__cf_email__" data-cfemail="24774d4852415d0a744550564d474d4564404b480a434b52">[email protected]</span></a> (Internet E-mail), (202) 693-9440 (voice), or 
(202) 693-9441 (facsimile).

SUPPLEMENTARY INFORMATION:

Availability of Information

    MSHA will post all comments on the Internet without change, 
including any personal information provided. Comments can be accessed 
electronically at http://www.msha.gov/regsinfo.htm. Comments may also 
be reviewed at the Office of Standards, Regulations, and Variances, 
1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign in at the 
receptionist's desk on the 21st floor.
    MSHA maintains a list that enables subscribers to receive e-mail 
notification when rulemaking documents are published in the Federal 
Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

Table of Contents

I. Introduction
II. Background Information
    A. Interim Mandatory Standards Under the Mine Act
    B. MSHA's Existing Respirable Dust Standards
    C. 1995 NIOSH Criteria Document and 1996 Dust Advisory Committee 
Report
    D. 2000 and 2003 Plan Verification Proposed Rules
    E. 2000 Single Sample Proposed Rule
    F. Continuous Personal Dust Monitor
III. Section-by-Section Discussion
IV. Health Effects
V. Quantitative Risk Assessment
VI. Derivation and Distribution Table
VII. Executive Order 12866
    A. Population at Risk
    B. Benefits
    C. Compliance Costs
    D. Net Benefits
VIII. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
IX. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
X. Paperwork Reduction Act of 1995
    A. Summary
    B. Procedural Details
XI. Other Regulatory Considerations
    A. National Environmental Policy Act (NEPA)
    B. The Unfunded Mandates Reform Act of 1995
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    G. Executive Order 13132: Federalism
    H. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    J. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking
XII. References
XIII. Appendix A--Excessive Concentration Values

I. Introduction

    This proposed rule promotes the Secretary of Labor's vision of 
``Good Jobs For Everyone.'' It also supports the Department of Labor's 
(DOL's) goal of securing safe and healthy workplaces, particularly for 
vulnerable workers in high-risk industries, such as mining, by reducing 
workplace deaths and improving the health of coal miners.
    This proposed rule is an important element in MSHA's Comprehensive 
Initiative to ``End Black Lung--Act Now!'' MSHA launched this important 
initiative in December 2009 and it includes four components: 
rulemaking, enhanced enforcement, collaborative outreach, and education 
and training. The initiative will reduce, and ultimately eliminate, 
disabling occupational lung disease in coal mines.
    This proposal provides the public with the opportunity to comment 
on the

[[Page 64413]]

Agency's comprehensive and integrated regulatory approach to reduce and 
eliminate continued risks to miners from exposure to respirable coal 
mine dust. Throughout the preamble, the terms ``respirable coal mine 
dust,'' ``coal mine dust,'' and ``respirable dust'' are used 
interchangeably. This proposal combines the following rulemaking 
actions: (1) ``Occupational Exposure to Coal Mine Dust (Lowering 
Exposure);'' (2) ``Verification of Underground Coal Mine Operators' 
Dust Control Plans and Compliance Sampling for Respirable Dust'' (Plan 
Verification) (65 FR 42122, July 7, 2000, and 68 FR 10784, March 6, 
2003); (3) ``Determination of Concentration of Respirable Coal Mine 
Dust'' (Single Sample) (65 FR 42068, July 7, 2000, and 68 FR 10940 
March 6, 2003); and (4) ``Respirable Coal Mine Dust: Continuous 
Personal Dust Monitor (CPDM)'' (74 FR 52708, October 14, 2009). MSHA is 
withdrawing Plan Verification and Single Sample as separate rulemaking 
actions.
    Exposure to respirable coal mine dust can cause lung diseases 
including coal workers' pneumoconiosis (CWP), emphysema, silicosis, and 
chronic bronchitis, known collectively as ``black lung.'' These 
diseases are debilitating, incurable, and can result in disability, and 
premature death. While considerable progress has been made in reducing 
the respirable coal mine dust levels, miners continue to develop black 
lung. Based on recent data from the National Institute for Occupational 
Safety and Health (NIOSH), the prevalence rate of black lung is 
increasing in our nation's coal miners; even younger miners are showing 
evidence of advanced and seriously debilitating lung disease. Black 
lung is a preventable disease.
    Several provisions in the proposed rule, including lowering the 
respirable dust standard, basing noncompliance determinations on single 
shift sampling, sampling of extended work shifts to account for 
occupational exposures greater than 8 hours per shift, and changing the 
definition of normal production shift, would singularly lower coal 
miners' exposure to respirable dust. For example, MSHA's quantitative 
risk assessment (QRA) estimates the reduction in health risks when two 
provisions of the proposed rule are implemented--the proposed 
respirable dust limit and single shift sampling. The QRA shows that 
these two proposed provisions would significantly reduce the risks of 
CWP, severe emphysema, and death from non-malignant respiratory disease 
(NMRD). For instance, at underground mines, the QRA projects over a 45-
year occupational lifetime from 1-105 fewer cases of pneumoconiosis per 
thousand exposed truck drivers, and 50 fewer cases of severe emphysema 
and 15 fewer deaths due to NMRD per thousand exposed cutting machine 
operators (see the QRA discussion in Section V of this preamble).
    The other provisions in the proposed rule would further reduce 
health risks to miners. Cumulatively, the proposed provisions would 
reduce the continued risks that coal miners face from exposure to 
respirable coal mine dust and would further protect them from the 
debilitating effects of occupational respiratory disease.

II. Background Information

A. Interim Mandatory Standards Under the Mine Act

    Section 202 of the Federal Mine Safety and Health Act of 1977 (Mine 
Act) established interim mandatory standards for respirable dust that 
remain in effect until superseded by improved permanent mandatory 
standards promulgated by the Secretary under Section 101. Section 
202(b)(2) required each underground coal mine operator to continuously 
maintain the average concentration of respirable dust in the mine 
atmosphere during each shift to which each miner in the active workings 
is exposed at or below 2.0 milligrams of respirable dust per cubic 
meter of air (i.e., 2.0 mg/m<SUP>3</SUP>) (emphasis added). Section 205 
required that when coal mine dust contains more than five percent 
quartz (i.e., silica), the respirable coal mine dust standard must be 
reduced according to a formula prescribed by NIOSH.

B. MSHA's Existing Respirable Dust Standards

    MSHA's existing respirable dust standards, promulgated on April 8, 
1980, implemented Section 202(b) of the Mine Act (45 FR 23990, April 8, 
1980). The standards require coal mine operators to continuously 
maintain the average concentration of respirable dust to which each 
miner is exposed during each shift at or below 2.0 milligrams per cubic 
meter of air (2.0 mg/m<SUP>3</SUP>) (30 CFR 70.100 (underground coal 
mines), 71.100 (surface coal mines and surface areas of underground 
coal mines)). Miners who have evidence of pneumoconiosis and are 
employed at underground coal mines or surface work areas of underground 
coal mines have the option to work in areas where average respirable 
dust concentrations do not exceed 1.0 mg/m<SUP>3</SUP> of air (30 CFR 
Sec.  90.100, ``part 90 miners''). There is no separate standard for 
respirable silica; rather, where the total respirable coal mine dust 
contains more than five percent quartz, the respirable coal mine dust 
standard is computed by dividing the percentage of quartz into the 
number ten (30 CFR Sec. Sec.  70.101 (underground coal mines), 71.101 
(surface coal mines and surface areas of underground coal mines), and 
90.101 (part 90 miners)).
    The term ``average concentration'' in MSHA's existing standards 
tracks the language of the Mine Act and is defined in Sec.  202(f) of 
the Mine Act as follows:

    [T]he 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 the 18 month period following 
December 30, 1969, over a number of continuous production shifts to 
be determined by the Secretary [of Labor; Originally, the Secretary 
of the Interior] and the Secretary of Health and Human Services 
[originally, the Secretary of Health, Education, and Welfare (HEW)], 
and (2) as measured thereafter, over a single shift only, unless the 
Secretary [of Labor] and the Secretary of Health and Human Services 
find, in accordance with the provisions of section 811 of this 
title, that such single shift measurement will not, after applying 
valid statistical techniques to such measurement, accurately 
represent such atmospheric conditions during such shift (30 U.S.C. 
Sec.  842(f)).

    Section 202(f) of the Mine Act is taken essentially verbatim from 
Sec.  202(f) of the Federal Coal Mine Health and Safety Act of 1969 
(Coal Act). In 1972, acting pursuant to the Coal Act, the Secretaries 
of the Interior and HEW made the joint finding referred to in Sec.  
202(f), concluding that ``single shift measurement of respirable dust 
will not, after applying valid statistical techniques to such 
measurement, accurately represent the atmospheric conditions to which 
the miner is continuously exposed'' (Notice of Finding That a Single 
Shift Measurement of Respirable Dust Will Not Accurately Represent 
Atmospheric Conditions During Such Shift, 37 FR 3833 (February 23, 
1972) (1972 Joint Finding)). Under Sec.  301(b)(1) and (c)(2) of the 
Mine Act, all standards, decisions, determinations, and regulations 
issued under the Coal Act remain in effect under the Mine Act until 
modified or set aside.
    Under MSHA's existing standards, mine operators are required to 
collect bimonthly respirable dust samples and submit them to MSHA for 
analysis to determine compliance with applicable respirable dust 
standards (compliance samples). If compliance samples do not meet the 
requirements of the applicable dust standard, MSHA issues a citation

[[Page 64414]]

for a violation of the standard and the operator is required to take 
corrective action to lower the respirable dust concentration to meet 
the standard. Further, the operator must collect additional respirable 
dust samples during the time established in the citation for abatement 
of the hazard or violation (abatement sampling).
    Underground coal mine operators collect and submit two types of 
samples during bimonthly sampling periods: (1) ``designated 
occupation'' (DO) samples taken for the occupations exposed to the 
greatest concentrations of respirable dust in each mechanized mining 
unit (DOs are specified in Sec.  70.207); and (2) ``designated area'' 
(DA) samples collected at locations appropriate to best measure 
concentrations of respirable dust associated with dust generation 
sources in the active working of the mine (Sec.  70.208). The 
operator's approved ventilation system and methane and dust control 
plan, required in existing 30 CFR part 75, must show the specific 
locations in the mine designated for taking the DA samples. In 
addition, mine operators take respirable dust samples for part 90 
miners (Sec. Sec.  90.207 and 90.208).
    Similarly, for surface work areas of underground mines and for 
surface mines, mine operators are required to collect bimonthly samples 
from ``designated work positions'' (DWPs), which are designated by the 
District Manager (Sec.  71.208).
    Compliance determinations are based on the average concentration of 
respirable dust measured by five valid respirable dust samples taken by 
the operator during five consecutive normal production shifts or five 
normal production shifts worked on consecutive days (multiple-shift 
samples). Compliance determinations are also based on the average of 
multiple measurements taken by the MSHA inspector over a single shift 
(multiple, single-shift samples) or on the average of multiple 
measurements obtained for the same occupation on successive days 
(multiple-shift samples).
    In 1991, MSHA began a spot inspection program (SIP). Under the SIP, 
if the average of multiple occupation measurements taken by the MSHA 
inspector on an MMU during any one-day inspection (multiple, single-
shift samples) did not exceed the applicable respirable dust standard, 
the MSHA inspector would review the result of each individual full-
shift sample (single, full-shift sample). If any single, full-shift 
sample exceeded the applicable standard by an amount specified by MSHA, 
a citation would be issued for noncompliance, requiring the mine 
operator to take immediate corrective action to lower the average dust 
concentration in the mine atmosphere in order to protect miners. In 
November 1991, MSHA extended the single, full-shift sampling method to 
all mining types, not just MMUs.
    In Keystone Coal, 16 FMSHRC 6 (Jan. 4, 1994), the Federal Mine 
Safety and Health Review Commission (Commission) vacated three 
citations that were based on single, full-shift samples taken by MSHA 
inspectors under the SIP. MSHA contended that the 1972 Joint Finding 
did not preclude the SIP because the Joint Finding pertained to 
operator sampling, while the SIP involved MSHA sampling only. The 
Commission rejected that argument and concluded that MSHA policy could 
only be altered if the requirements of the Mine Act and the 
Administrative Procedure Act (5 U.S.C. 551 et seq.) were met. (i.e., 
notice and comment rulemaking procedures). As a result of the decision, 
MSHA terminated the SIP.
    In Secretary of Labor v. Excel Mining LLC, 334 F.3d 1 (D.C. Cir. 
2003), the Secretary interpreted Sec.  202(f) of the Mine Act and the 
1972 Joint Finding to bar MSHA's use of a single, full-shift sample to 
calculate average dust concentration for enforcement purposes because, 
after applying valid statistical techniques, those samples would not 
accurately represent the atmospheric conditions to which the miner is 
continuously exposed. However, the Secretary further took the position 
that the statute and Joint Finding did not bar the Agency from making 
compliance determinations based on an average of multiple samples taken 
over a single shift (``multiple, single-shift samples''). The Court 
found the Secretary's interpretation was reasonable.

C. 1995 NIOSH Criteria Document and 1996 Dust Advisory Committee Report

    On November 7, 1995, NIOSH submitted to the Secretary a criteria 
document recommending reduced standards for respirable coal mine dust 
and silica exposure. On April 25, 1996, MSHA published a Federal 
Register notice stating that it had decided to respond to the NIOSH 
criteria document by developing a proposed rule ``derived from the 
recommendations'' in the NIOSH Criteria Document (61 FR 18308, April 
25, 1996). The NIOSH Criteria Document can be accessed electronically 
at http://www.cdc.gov/niosh/95-106.html. MSHA further stated that, 
although it would begin ``the background work necessary to develop such 
a rule,'' it would defer development of the rule until it received a 
report from the Secretary of Labor's Advisory Committee on the 
Elimination of Pneumoconiosis Among Coal Mine Workers (Dust Advisory 
Committee), which the Secretary had established on January 31, 1995, 
and to which MSHA had referred the NIOSH criteria document.
    On November 14, 1996, the Dust Advisory Committee submitted its 
report to the Secretary. The Dust Advisory Committee Report can be 
accessed electronically at http://www.msha.gov/S&HINFO/BlackLung/1996Dust%20AdvisoryReport.pdf. The report contained 20 wide-ranging 
principal recommendations, subdivided into approximately 100 action 
items, aimed at eliminating coal miners' pneumoconiosis and silicosis 
(62 FR 3717, January 24, 1997). The report recommended that MSHA 
consider lowering the level of allowable exposure to coal mine dust, 
with any reduction accompanied by a phase-in period to allow allocation 
of sufficient resources to the compliance effort.

D. 2000 and 2003 Plan Verification Proposed Rules

    On July 7, 2000, MSHA published the Plan Verification proposed 
rule. The proposal would require underground mine operators to have a 
verified mine ventilation plan, with MSHA collecting samples to verify 
the adequacy of dust control parameters specified in the ventilation 
plan to maintain respirable dust standards (``verification sampling'').
    In response to comments urging MSHA to withdraw the proposal, MSHA 
published a new proposed rule on March 6, 2003, (68 FR 10784), which 
would require mine operators to have a ``verified'' mine ventilation 
plan and conduct verification sampling on each mechanized mining unit 
(MMU). Under the proposal, mine operators would demonstrate the 
adequacy of dust control parameters specified in the ventilation plan 
to maintain the concentration of respirable coal mine dust and quartz 
dust at or below applicable dust standards. In addition, the mine 
operators' existing bimonthly respirable dust sampling program for each 
MMU and DA would be eliminated and MSHA would assume responsibility for 
compliance and abatement sampling in underground coal mines.
    The 2003 proposal would also provide for the use of CPDMs once the 
CPDM was verified as reliable under mining conditions and commercially 
available.
    Public hearings were held in May 2003. The closing date for the 
comment period for the Plan Verification proposed rule was extended 
indefinitely to obtain information concerning

[[Page 64415]]

CPDMs being tested by NIOSH (68 FR 39881, July 3, 2003).
    The following provisions from the 2003 Plan Verification proposal 
have been revised and integrated into this proposed rule: (1) Use of 
the CPDM in monitoring respirable dust exposures; (2) recording the 
amount of material produced by each MMU during each production shift 
and retaining the record; (3) sampling for respirable dust during the 
entire time that a miner works to account for shifts longer than 8 
hours (hr); (4) requiring that dust control parameters in the mine's 
ventilation plan be revised when respirable dust overexposures are 
indicated; and (5) including threshold values that would be used to 
determine violations based on single sample measurements. With issuance 
of this proposed rule, MSHA is no longer accepting comments on the 2003 
Plan Verification proposed rule. Comments on provisions of the 2003 
Plan Verification proposal that are integrated in this proposal are 
addressed in the section-by-section analysis of this preamble.

E. 2000 Single Sample Proposed Rule

    On July 7, 2000, MSHA and NIOSH jointly published a proposed rule 
on Determination of Concentration of Respirable Coal Mine Dust (Single 
Sample) (65 FR 42068). The proposal would have rescinded the 1972 Joint 
Notice and established that a single, full-shift measurement of 
respirable coal mine dust may be used to determine the average 
concentration on a shift if that measurement accurately represents 
atmospheric conditions to which a miner is exposed during such shift.
    MSHA proposed the 2000 Single Sample rule following National Mining 
Association (NMA) et al. v. Secretary of Labor, et al., 153 F.3d 1264 
(11th Cir. 1998). In this case, the Court of Appeals for the 11th 
Circuit (Court) reviewed the 1998 Final Joint Notice of Finding issued 
by MSHA and NIOSH. The 1998 Final Joint Finding, issued on February 3, 
1998, concluded that the 1972 Joint Finding was incorrect and stated 
that the average respirable dust concentration to which a miner is 
exposed can be accurately measured over a single shift (63 FR 5664). 
The Court vacated the 1998 Joint Finding and found that MSHA was 
required by section 101(a)(6)(A) of the Mine Act to demonstrate that 
the single full-shift measurement adequately assures that no miner will 
suffer a material impairment of health, on the basis of the best 
available evidence; uses the latest available scientific data in the 
field; is technologically and economically feasible; and is based on 
experience gained under the Mine Act and other health and safety laws 
(153 F.3d 1268-1269).
    On March 6, 2003, MSHA and NIOSH reopened the rulemaking record to 
allow further comment on the 1998 Final Finding and to solicit comment 
on new data and information added to the record (68 FR 10940). In May 
2003, public hearings on the 2000 single sample proposal were held 
jointly with the 2003 plan verification proposal. The comment period 
for the single sample proposal was extended indefinitely in order to 
obtain information on CPDMs being tested by NIOSH (68 FR 47886, August 
12, 2003). The single sample proposal is a part of this proposed rule.

F. Continuous Personal Dust Monitors (CPDM)

    On April 6, 2010, 75 FR 17512, MSHA and NIOSH published a final 
rule revising approval requirements under 30 CFR part 74 for the 
existing coal mine dust personal samplers. It also establishes new 
approval requirements for the new CPDM.
    The CPDM is new technology that provides a direct measurement of 
respirable dust in the miner's work atmosphere on a real-time basis. In 
September 2006, NIOSH published the results of a collaborative study 
designed to verify the performance of the pre-commercial CPDM in 
laboratory and underground coal mine environments. According to the 
NIOSH Report of Investigations 9669, ``Laboratory and Field Performance 
of a Continuously Measuring Personal Respirable Dust Monitor,'' 
(Volkwein, JC et al., 2006), the CPDM is accurate, precise, and durable 
under harsh mining conditions in providing continuous exposure 
information previously not available to coal miners and coal mine 
operators.
    On October 14, 2009, MSHA published a Request for Information (RFI) 
on potential applications of CPDM technology to monitor and control 
miners' exposure to respirable coal mine dust during a working shift 
(74 FR 52708). The comment period closed on December 14, 2009.

III. Section-by-Section Discussion

Discussion of Alternatives

    The proposed rule presents a comprehensive integrated approach for 
lowering miners' exposure to respirable coal mine dust. The proposal 
combines the following regulatory actions: Lowering miners' coal mine 
dust exposure; single shift sampling to determine noncompliance; plan 
verification (normal production shift and full shift sampling); and the 
use of the CPDM. In developing the proposed rule, MSHA considered a 
number of alternatives, ranging from addressing each rulemaking 
separately to combining a number of them. For example, MSHA considered 
lowering the exposure limit separately; and lowering the exposure limit 
in conjunction with single shift sampling. MSHA also considered 
implementation of CPDMs as a separate, later rulemaking. However, the 
Secretary of Labor considers ending black lung disease as one of the 
Department's highest regulatory priorities and strongly believes that 
the proposed integrated regulatory approach represents the most 
effective strategy for reducing miners' exposure to respirable dust. 
The proposed integrated approach would allow miners and operators to 
review and respond to the most effective provisions for addressing 
black lung at one time. The proposal allows both the mining community 
and MSHA to address improvements to end black lung comprehensively. 
Improvements include: regulations, enforcement procedures, compliance 
tools, and information technology systems and support related to coal 
mine dust sampling.
    MSHA also considered various alternatives to key provisions in the 
proposal. For example, MSHA considered:
    <bullet> Other limits for the respirable dust standard;
    <bullet> The occupations, miners, and areas that operators should 
sample and sampling frequency. MSHA considered options that would 
sample more miners more frequently, but rejected these due to estimated 
projected benefits;
    <bullet> Shorter and longer implementation dates for the proposed 
exposure limits and proposed use of CPDMs;
    <bullet> Alternatives to calculating sampling of extended work 
shifts;
    <bullet> Different production levels associated with the proposed 
definition of ``normal production shift''; and
    <bullet> Whether taking single shift samples to determine 
noncompliance with the proposed exposure limit should apply only to 
MSHA inspector samples, or to both operator and MSHA samples.
    The Agency believes that the integrated approach in the proposed 
rule would achieve an effective and balanced regulatory program 
consistent with MSHA's Comprehensive Black Lung Initiative to lower 
coal miners' exposure to respirable coal mine dust and end lung 
disease. The Agency believes that a more compartmentalized approach 
would lessen the impact of the benefits to be achieved by this

[[Page 64416]]

important initiative and would not adequately reduce the risk of 
serious lung disease from coal mine dust exposure. The Agency solicits 
comment on which provisions in the proposal would be more effective if 
implemented. Commenters are requested to submit other alternatives, 
including detailed rationale and supporting documentation.

30 CFR Part 70

A. Section 70.2 Definitions
Approved Sampling Device
    This new definition, approved sampling device, would mean a 
sampling device approved by the Secretary and the Secretary of Health 
and Human Services under 30 CFR part 74 (Coal Mine Dust Sampling 
Devices). The proposed definition would clarify that whenever a 
sampling device is used by operators to comply with the requirements of 
part 70, the device must be approved for use in coal mines under part 
74.
Coal Mine Dust Personal Sampler Unit (CMDPSU)
    This new definition, coal mine dust personal sampler unit (CMDPSU), 
would mean a personal sampling device that is approved under 30 CFR 
part 74, subpart B. The definition is necessary to distinguish between 
the two types of coal mine dust monitoring technology approved under 
part 74 and to clarify the applicability of the proposed rule to each 
approved sampling device. The existing gravimetric sampling device used 
by operators would be considered a CMDPSU under this proposed 
definition.
Continuous Personal Dust Monitor (CPDM)
    This new definition, continuous personal dust monitor (CPDM), would 
mean a personal sampling device approved under part 74, subpart C. The 
definition is necessary to distinguish between the two types of coal 
mine dust monitoring technology approved under part 74 and to clarify 
the applicability of proposed rule provisions to each approved sampling 
device.
Designated Area (DA)
    The proposal would retain the existing requirement that a DA is an 
area of the mine identified by the operator in the mine ventilation 
plan, and approved by the District Manager. It would make a non-
substantive change to the existing definition to clarify that the DA 
would be identified by a four-digit identification number assigned by 
MSHA. The proposal would be consistent with the existing practice of 
identifying DAs and would incorporate language from existing Sec.  
70.208(e).
Equivalent Concentration
    This new definition, equivalent concentration, would mean the 
concentration of respirable coal mine dust expressed in milligrams per 
cubic meter of air (mg/m\3\), determined by dividing the weight of dust 
in milligrams collected on the filter of an approved sampling device by 
the volume of air in cubic meters passing through the collection filter 
(sampling time in minutes times the sampling airflow rate in cubic 
meters per minute), and then converting this concentration to an 
equivalent 8-hour exposure as measured by the Mining Research 
Establishment (MRE) instrument. When the approved sampling device is:
    (1) The CMDPSU, the equivalent concentration is determined by first 
multiplying the concentration of respirable coal mine dust by the MRE 
conversion factor prescribed by the Secretary and then normalizing this 
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling 
time in minutes if longer than 8 hours.
    (2) The CPDM, the device shall be programmed to directly report the 
end-of-shift equivalent concentration as an MRE 8-hour equivalent 
concentration.
    (3) Either the CMDPSU or CPDM and the sampled work shift is less 
than 8 hours, the value of t used for normalizing the MRE-equivalent 
concentration to an 8-hour exposure measurement shall be 480 minutes.
    This proposed definition is derived from existing Sec.  70.206 
which provides a formula to convert measured concentrations of 
respirable dust to an equivalent concentration as measured with an MRE 
instrument. MSHA has approved two sampling devices under 30 CFR part 74 
for measuring the concentration of respirable coal mine dust--the 
CMDPSU and the CPDM. Under the proposed definition, dust concentration 
measurements from a CMDPSU would continue to be converted to MRE 
equivalent concentrations. Dust concentration measurements from a CPDM 
would be converted to CMDPSU equivalent concentrations because NIOSH 
researchers have determined that measurements of respirable dust 
concentrations using the CMDPSU and the CPDM are comparable (Page, S., 
et al., 2008).
    The proposed definition would address work shifts in coal mines, 
which frequently exceed 8 hours. A miner working for 10 hours at an 
average concentration of 2.0 mg/m\3\ would be exposed to more 
respirable coal mine dust than a miner working for 8 hours at the same 
average concentration. To provide effective protection to miners 
working longer than 8 hours, the proposal would require that dust 
concentration measurements for these shifts be converted to an 8-hour 
equivalent concentration as measured by the MRE instrument. The 
proposal is consistent with generally accepted industrial hygiene 
practices that adjust worker exposures to account for all time worked, 
recognizing that an extended work shift results in a shorter time to 
recover before the next exposure.
    Under the proposed rule, converting a respirable dust concentration 
measured by an approved sampling device to an equivalent concentration 
would be accomplished as follows:
    First, for all sampled shifts, the measured concentration would be 
multiplied by a constant factor prescribed specifically for the 
approved sampling device by the Secretary to convert the concentration 
to an MRE-equivalent concentration (conversion factor). Since 1980, 
measurements of respirable coal mine dust using the approved cyclone-
based gravimetric devices (i.e., the CMDPSU) operating at a flow rate 
of 2.0 liters per minute (i.e., 0.002 m\3\/min) were multiplied by the 
conversion factor of 1.38 prescribed for that device. Under the 
proposal, MSHA would continue to apply the conversion factor of 1.38 
for the CMDPSU. Application of this factor would compensate for the 
difference in dust collection characteristics and make the measurements 
equivalent to those of an MRE instrument. As explained in the preamble 
discussion related to Sec.  70.201, the MRE conversion factor for the 
CPDM is 1.05.
    Second, if the sampled shift is longer than 8 hours, the MRE 
equivalent concentration would be multiplied by t/480, where ``t'' is 
the sampling time for the longer sampled shift (> 480) in minutes, to 
make it equivalent in dosage to the concentration as measured by an MRE 
instrument on an 8-hour work shift. The formula for an equivalent 
concentration is:

[[Page 64417]]

[GRAPHIC] [TIFF OMITTED] TP19OC2.016

where airflow rate = 0.002 m\3\/min. The product of ``t'' and the 
airflow rate is the total volume of air from which dust is accumulated 
on the filter.
    For example, a DO sample is collected with a CMDPSU over a 9-hour 
(540 min) shift and the amount of dust accumulated during the shift is 
1.5 mg. The MRE equivalent concentration would be 1.92 mg/m\3\ [1.38 
MRE conversion factor x 1.5 mg/(540 min x 0.002 m\3\/min)]. Under the 
proposed definition, this quantity would be multiplied by 540/480, 
yielding an equivalent concentration of 2.16 mg/m\3\. This adjustment 
allows MSHA to compare the full-shift measurement to the applicable 
respirable dust standard.
    Since the existing standard was based on the assumption that 
exposure occurs over an 8-hour shift, the 8-hour exposure corresponds 
to a daily accumulated amount of respirable coal mine dust of 16 mg-hr/
m\3\ (8 hours x 2.0 mg/m\3\) as measured by the MRE instrument. The 
proposed definition of equivalent concentration would continue this 
same 16 mg-hr/m\3\ daily limit, regardless of the length of the working 
shift being sampled. In the previous example of the 9-hour shift with a 
dust accumulation of 1.5 mg, the amount of dust accumulated during the 
sampled working shift is the same whether over 8 hours at an average of 
2.16 mg/m\3\ or over 9 hours at an average of 1.92 mg/m\3\. In either 
case, the MRE equivalent exposure measurement for the sampled shift is 
17.3 mg-hr/m\3\, which exceeds the 2.0 mg/m\3\ standard for an 8-hour 
shift (i.e., 16 mg-hr/m\3\).
    Using an approved gravimetric sampler, the standard for respirable 
quartz dust (i.e., 0.1 mg/m\3\) will be exceeded when the total amount 
of quartz dust on a filter during the work shift exceeds 0.07 mg, 
regardless of the shift's length. For example, if 0.08 mg of quartz 
dust were accumulated over the course of a 12-hour shift, the 
equivalent concentration of respirable quartz dust would be calculated 
as:
[GRAPHIC] [TIFF OMITTED] TP19OC10.000

This is the same value as would be obtained if 0.08 mg of quartz dust 
were accumulated on an 8-hour shift.
[GRAPHIC] [TIFF OMITTED] TP19OC10.001

    For the CPDM, MSHA believes the manufacturer can make modifications 
to the CPDM firmware so that the device will automatically report the 
concentration measurements as MRE equivalent concentrations. After the 
certified person programs the CPDM for the length of the full shift of 
the occupation, work position, or DA being sampled, the CPDM would be 
capable of providing the 8-hour equivalent concentration. The CPDM's 
end-of-shift readout would provide the equivalent concentration.
    The proposed definition of equivalent concentration is necessary to 
protect miners who work nontraditional or extended shifts from 
unnecessary health risks.
Mechanized Mining Unit (MMU)
    The proposed definition of mechanized mining unit (MMU) would 
incorporate existing requirements in Sec.  70.207(f)(1) and (f)(2) and 
make revisions. Like the existing standard, MSHA would assign each MMU 
a four-digit identification number which remains with the MMU. When two 
sets of mining equipment are used in a series of working places within 
the same working section and only one production crew is employed, the 
two sets of equipment will be identified as a single MMU.
    The proposal would revise the definition to require that each set 
of mining equipment be identified as a separate MMU if two sets of 
mining equipment are used in a series of working places in the same 
working section and two production crews are employed. This would be a 
change from the existing standard which requires that the MMUs must be 
``simultaneously engaged in the production of material'' within the 
same working section in order to be identified as separate MMUs. MSHA 
believes the change is necessary because miners can be exposed to 
respirable dust and quartz when there is no simultaneous production of 
material. The proposal would protect the health of miners on the 
working section.
    The proposal would also make a conforming change in a reference 
since existing Sec.  70.207(e) would be redesignated as proposed Sec.  
70.207(b).
Normal Production Shift
    The proposed definition of normal production shift would revise the 
existing definition to mean (1) a production shift during which the 
amount of material produced by an MMU is at least equal to the average 
production recorded for the most recent 30 production shifts or (2) if 
fewer than 30 shifts of production data are available, a production 
shift during which the amount of material produced by an MMU is at 
least equal to the average production recorded by the operator for all 
of the MMU's production shifts.
    In its 1995 Criteria Document, NIOSH recommended that, consistent 
with standard industrial hygiene practice (which requires exposure 
measurements be collected during typical work shifts), for a production 
shift to be considered a ``normal production shift,'' it must produce 
at least 80% of the average production over the last 30 production 
shifts. NIOSH stated that the definition of a normal production shift 
should be similar to or more stringent than that

[[Page 64418]]

used when seeking approval of the dust control plan. NIOSH further 
stated that a production-level threshold should ensure that exposure 
conditions are comparable between sampled and unsampled shifts.
    The Dust Advisory Committee recommended that respirable dust 
samples be taken when production is sufficiently close to normal 
production, which it stated should be defined as 90% of the average 
production of the last 30 production shifts.
    MSHA believes that when an MMU has operated for at least 30 
production shifts, a normal production shift should represent at least 
the average production of those shifts. MSHA's existing practice is to 
use 30 production shifts as a benchmark for establishing an MMU's 
typical output. MSHA believes that 30 production shifts provide 
sufficient historical data to give a reliable representation of an 
MMU's typical production. MSHA also believes that using a production 
level equal to at least the average production of the most recent 30 
production shifts as the production level for sampling would ensure 
that samples are representative of the dust levels to which miners are 
actually exposed. The proposal would assure that production during 
sampling is representative of normal mining conditions.
    Under the proposal, when an MMU has operated for fewer than 30 
production shifts, the average production of all production shifts 
would be considered to determine a ``normal production shift.'' MSHA 
believes it is essential to use records from all of an MMU's production 
shifts when it has operated for fewer than 30 shifts because this would 
result in a more reliable determination of the shift's production and a 
miner's exposure.
    Under existing practice, if an operator encounters unique mining 
conditions, such as when the coal seam narrows due to a rock intrusion 
running through the coal bed, MSHA allows the operator to submit any 
relevant information to the District Manager so that average production 
levels for sampling can be adjusted. Under the proposal, MSHA would 
continue this practice.
    The level of coal production has a significant impact on dust 
generation. As production increases, the amount of respirable coal mine 
dust generated also increases. Under the existing definition of 
``normal production shift,'' MSHA intended to accommodate fluctuations 
in mining cycles; however, MSHA believes that the existing definition 
of at least 50% of average production for the last 5 valid samples 
results in sampling during shifts that are not representative of 
typical conditions. If an operator's bimonthly dust samples are taken 
when production is substantially below average production, the sample 
results will underestimate miners' typical dust exposure. The 1992 Coal 
Mine Respirable Dust Task Group (U.S. Department of Labor, MSHA, 1992) 
acknowledged that the procedure for defining a normal production shift 
for sampling purposes was inadequate and that the sampling program was 
susceptible to intentionally reduced production during sampling 
periods.
    MSHA believes that the proposed definition of ``normal production 
shift'' would significantly improve miners' health by requiring 
operators' samples to be collected during shifts that are more 
representative of typical conditions at the mine. The Agency solicits 
comment on the approach taken in the proposed rule. Please be specific 
in your comments and include the rationale for suggested alternatives.
Other Designated Occupation (ODO)
    The proposal would add a new definition for other designated 
occupation (ODO). Under the proposal, the ODO would be defined as 
another occupation on a mechanized mining unit that is designated by 
the District Manager for sampling. Each ODO would be identified by a 
four-digit identification number assigned by MSHA.
    MSHA designates high risk occupations to be sampled by operators. 
These ``designated occupations'' (DOs) are those based on Agency data 
and experience that are exposed to the highest respirable dust 
concentrations in the MMU. However, MSHA's sampling data reveal that 
limiting sampling to the DO may not adequately protect other miners in 
the MMU. For this reason, MSHA identifies additional underground 
occupations, other than the DOs, that also present a risk for excessive 
dust exposure. Under MSHA's existing practice, these other occupations 
are identified as ``non-designated occupations,'' but would be referred 
to as ODOs under the proposal. MSHA would continue its existing 
practice of using historical sampling data on the MMU, as well as 
evaluating the mining system, in order to identify ODOs.
Quartz
    The proposal would revise the existing definition of quartz to mean 
crystalline silicon dioxide (SiO<INF>2</INF>) as measured by:
    (1) MSHA Analytical Method P-7: Infrared Determination of Quartz in 
Respirable Coal Mine Dust; or
    (2) Any method approved by MSHA as providing a measurement of 
quartz equivalent to that obtained by MSHA Analytical Method P-7.
    The proposed definition would provide notice to interested parties 
of the analytical procedure that MSHA uses to measure quartz in coal 
mine dust. It would also provide notice to certified laboratories that 
may want to perform quartz analyses using the same procedure.
    The definition of ``quartz'' would be expanded to provide MSHA the 
flexibility to accommodate new, improved technology for analyzing 
quartz once it is demonstrated to provide quartz measurements that are 
equivalent to the existing analytical method.
Representative Samples
    The proposal would add a new definition for representative samples. 
Representative samples would be defined as respirable dust samples that 
reflect typical dust concentration levels and normal mining activity in 
the active workings during which the amount of material produced is 
equivalent to a normal production shift. The term ``normal production 
shift'' is discussed elsewhere in the preamble related to proposed 
Sec.  70.2.
    MSHA intends that, under the proposal, samples would be 
representative if taken when miners are in positions and physical 
locations performing tasks that they usually perform on non-sampling 
days. To be considered representative samples, operators should also 
sample when mining activities, such as production methods, reflect 
usual operations on non-sampling days (e.g., when approved cut 
sequences are followed, and the sequence of mining includes the turning 
of multiple crosscuts).
    The proposed definition would ensure that operators conduct dust 
sampling when working conditions are representative of working 
conditions during periods of non-sampling; this would avoid introducing 
bias into sampling. To provide optimum protection for miners' health, 
sampling must accurately represent miners' dust exposures. This would 
allow operators and MSHA to effectively evaluate the performance of 
dust controls and the adequacy and effectiveness of operators' approved 
plans.
Weekly Accumulated Exposure (WAE)
    The proposal would add a new definition, weekly accumulated

[[Page 64419]]

exposure (WAE), which would apply when operators use a CPDM. Under the 
proposal, weekly accumulated exposure (WAE) would be defined as the 
total exposure to respirable coal mine dust, expressed in milligram-
hour (mg-hr) per cubic meter of air (mg-hr/m\3\), accumulated by an 
occupation during a work week (Sunday thru Saturday). The proposed 
definition includes the calculation for determining the WAE.
    The WAE would be calculated by first multiplying each daily end-of-
shift equivalent concentration, expressed as mg/m\3\ as reported by the 
CPDM (i.e., the average exposure over the shift), by 8 hours to obtain 
the total daily exposure (concentration x hours = exposure, expressed 
as mg-hr/m\3\). The daily end-of-shift equivalent concentration would 
be the respirable dust concentration for the sampled entity expressed 
as an 8-hour equivalent, even when the shift length exceeds 8 hours 
(see proposed definition of equivalent concentration). Since the daily 
end-of-shift equivalent concentration is an 8-hour equivalent, it would 
be multiplied by 8 hours to obtain the total daily exposure, regardless 
of actual shift length.
    The second step in calculating the WAE would be to total the daily 
exposures of the occupation sampled for the work week. The result would 
be the accumulated exposure for the work week. For example: Miner ``A'' 
works Sunday-Thursday, 10 hours each day. Assuming the applicable 
standard is 1.5 mg/m\3\, the following data are obtained:

----------------------------------------------------------------------------------------------------------------
                                           Shift length     End-of-shift equivalent        Daily accumulated
                   Day                         (hrs)        concentration  reported            exposure
----------------------------------------------------------------------------------------------------------------
Sun.....................................              10  1.5 mg/m\3\...............  12 mg-hr/m\3\ (1.5 mg/m\3\
                                                                                       x 8 hrs).
Mon.....................................              10  1.5 mg/m\3\...............  12 mg-hr/m\3\.
Tue.....................................              10  1.5 mg/m\3\...............  12 mg-hr/m\3\.
Wed.....................................              10  1.5 mg/m\3\...............  12 mg-hr/m\3\.
Thur....................................              10  1.5 mg/m\3\...............  12 mg-hr/m\3\.
                                                                                     ---------------------------
    WAE.................................  ..............  ..........................  = 60 mg-hr/m\3\.
----------------------------------------------------------------------------------------------------------------

    MSHA believes that determining the WAE for an occupation in the 
manner proposed would cause mine operators to closely monitor the daily 
accumulated exposure of each occupation sampled during the week. If the 
accumulated exposure approaches the weekly permissible accumulated 
exposure (WPAE), defined below, when additional shifts remain to be 
worked, it would indicate that the average equivalent concentration is 
getting close to exceeding the applicable standard. The operator may 
then need to take action to avoid overexposing the miners assigned to 
that occupation.
Weekly Permissible Accumulated Exposure (WPAE)
    The proposal would add a new definition, weekly permissible 
accumulated exposure (WPAE), which would apply when operators use a 
CPDM. WPAE would be defined as the maximum amount of accumulated 
exposure to respirable coal mine dust, expressed in mg-hr per cubic 
meter of air (mg-hr/m\3\), permitted for an occupation during a 40-hr 
work week (Sunday thru Saturday). The WPAE would be determined by 
multiplying the applicable respirable dust standard by 40 hours. For 
example, if the applicable standard were 1.5 mg/m\3\, the WPAE would be 
60 mg-hr/m\3\ (40 hours x 1.5 mg/m\3\).
    MSHA believes that the proposed WPAE definition would enable mine 
operators to effectively compare a miner's weekly accumulated exposure 
(WAE), defined previously, with the WPAE to evaluate compliance with 
the applicable standard at the completion of the work week.
B. Section 70.100 Respirable Dust Standards
    The proposed rule would, over a phase-in period, lower the 
concentration limit for respirable coal mine dust in coal mines.
    Proposed paragraph (a)(1) would retain the existing requirement 
that mine operators continuously maintain the average concentration of 
respirable dust in the mine atmosphere during each shift to which each 
miner in the active workings of each mine is exposed at or below 2.0 
mg/m\3\ of respirable dust.
    Proposed paragraphs (a)(2) through (a)(4) are new and would require 
mine operators to lower dust levels, over a 24-month phase-in period, 
from the existing level of 2.0 mg/m\3\ of air to 1.0 mg/m\3\. MSHA and 
mine operator data indicate that, under the existing sampling program, 
the majority of miners' exposures are at or below the limits in the 
proposed rule. These data reflect sampling and measurement requirements 
under MSHA's existing standard. MSHA anticipates that the cumulative 
effects of the major changes in the proposal, i.e., lowering the 
respirable dust standard, single shift sampling, full shift sampling, 
and the definition of ``normal production shift'', would result in 
higher exposures than those under the existing program. MSHA 
anticipates that most mines would have to implement additional controls 
and work practices to reduce dust levels to those expected under the 
proposal (see Section VIII, Feasibility, in the preamble). In a small 
number of cases, MSHA expects that operators may have to initially: (1) 
Limit production; (2) reconfigure major ventilation sources, e.g., 
install a new shaft; or (3) install major ventilation controls. MSHA 
anticipates that, over time, these operators would be able to meet the 
proposed exposure limits. MSHA believes that with the proposed phase-in 
of exposure limits, all coal mines, regardless of their size and type 
of mining system, would have sufficient time to either upgrade existing 
controls or to install additional measures to meet the proposed 
requirements.
    MSHA is proposing a 24-month phase-in period to allow the mining 
community the opportunity to identify, develop and implement feasible 
engineering controls; train miners and mine management in new 
technology and control measures; and to improve their overall dust 
control program. The phase-in period is consistent with the Dust 
Advisory Committee's recommendation. MSHA believes that the phase-in 
period would provide an appropriate amount of time for mine operators 
to feasibly come into compliance with the new proposed limit. MSHA 
specifically requests comment on the phase-in period. Please be 
specific in your comments and include the rationale for suggested 
alternatives.
    MSHA is proposing a 1.0 mg/m\3\ standard as a time-weighted average 
for an 8-hour shift based on the best available evidence that shows 
this level would significantly reduce miners' risks of material 
impairment of health or

[[Page 64420]]

functional capacity. Section 101(a)(1) of the Mine Act requires that 
the Secretary take certain action when a recommendation to issue a 
rule, accompanied by a Criteria Document, is received from NIOSH. The 
Secretary must refer the recommendation to an advisory committee, or 
publish the recommendation as a proposed rule, or publish in the 
Federal Register the determination and reasons not to do so.
    In 1995, NIOSH published and submitted to MSHA a Criteria Document 
on Occupational Exposure to Respirable Coal Mine Dust. Consistent with 
the Mine Act, the Secretary referred the NIOSH Criteria Document to an 
advisory committee (Dust Advisory Committee). This proposal is 
consistent with recommendations of the NIOSH Criteria Document and the 
Dust Advisory Committee.
    In its Criteria Document, NIOSH recommended respirable dust 
exposures be limited to 1 mg/m\3\ as a time-weighted average (TWA) 
concentration for up to 10 hours per day during a 40-hour work week as 
measured according to existing MSHA methods. This recommended exposure 
level (REL) was based on exposure-response studies of U.S. coal miners 
participating in the National Study of Coal Workers' Pneumoconiosis 
(NSCWP) and sampling data collected by the Bureau of Mines from 1969-
1971 and MSHA from 1985-88. NIOSH used an average concentration of 0.5 
mg/m\3\ of respirable dust in its disease risk estimates because, at 
that time, it constituted the lower range of the exposure data. NIOSH 
determined that extrapolations beyond the range of the existing 
exposure data would have carried considerable uncertainty. NIOSH found 
that, at a mean concentration of 0.5 mg/m\3\, the excess risk of 
morbidity from progressive massive fibrosis at age 65 exceeded 1/1,000 
for all durations of exposure and coal ranks evaluated, including 15 
years of exposure to medium/low-rank coal, believed to be least toxic. 
NIOSH expected that long-term average dust concentrations would be 
below 0.5 mg/m\3\ if miners' daily exposures were kept below the REL of 
1 mg/m\3\ (NIOSH 1995).
    MSHA's QRA used respirable dust exposure data collected from 2004 
through 2008 and published quantitative studies on coal workers' 
morbidity from black lung (Attfield and Seixas, 1995) and mortality 
from nonmalignant respiratory diseases (Attfield and Kuempel (2008)) 
and severe emphysema (Kuempel et al., 2009(a)) to estimate excess 
disease risks in U.S. miners. The QRA estimated disease risks after 45 
years of full-shift occupational exposure at observed exposure levels 
under the existing standard. The QRA results indicate that, in every 
exposure category, exposure under the existing standards places miners 
at a significant risk of material impairment of health. In addition, 
MSHA found that average dust concentrations exceed the proposed 
exposure limit of 1.0 mg/m\3\ at a number of work locations in every 
occupational category. The percentage of work locations that would 
exceed the proposed exposure limit of 1.0 mg/m\3\ ranges from less than 
1 percent for a few surface occupations to more than 70 percent for 
miners working on the longwall tailgate. The percentages are generally 
greater for underground occupations than for surface occupations. A 
statistically significant percentage of surface work locations 
(generally cleaning plant operations and surface drilling) have average 
dust concentrations exceeding the proposed exposure limit. For part 90 
miners, the average dust concentration exceeds 0.5 mg/m\3\ at more than 
20 percent of the work locations (see Section V of this preamble for a 
more detailed discussion of the QRA).
    In 1996, the Dust Advisory Committee also recognized that 
overexposure to respirable coal mine dust remained a problem and 
recommended unanimously that MSHA consider lowering the allowable level 
of exposure to coal mine dust. The Committee reviewed MSHA monitoring 
data and scientific studies provided by NIOSH, including its 1995 
Criteria Document. The Committee concluded that ``there is substantial 
evidence that either a significant number of miners are currently being 
exposed to coal mine dust at levels well in excess of 2.0 mg/m\3\ or 
that the current exposure limit for coal mine dust is insufficiently 
protective.''
    NIOSH also recommended that for single, full-shift samples used to 
determine noncompliance, MSHA should make no upward adjustment to 
account for measurement uncertainty. The Dust Advisory Committee made 
the same recommendation, but it was not supported by all of the 
Committee members. The proposed rule does not adopt this 
recommendation; a more detailed discussion on adjusting the exposure 
limit to account for measurement uncertainty is included in the 
section-by-section analysis for proposed Sec.  70.207 and in Appendix A 
of the preamble.
    While the proposed 1.0 mg/m\3\ standard would significantly reduce 
the risk of impairment, disease, and premature death, MSHA's QRA 
reveals some remaining risk at the proposed limit. However, MSHA 
believes that other provisions of the proposal (e.g., changes in the 
definition of normal production shift, and sampling for a full shift) 
would reduce this risk. The impact of these other provisions was not 
considered in the QRA.
    Proposed Sec. Sec.  70.100(b)(2), 75.350(b)(3)(i)(B) and 90.100(b) 
would revise the existing requirements that operators must maintain the 
concentration of respirable dust at or below 1.0 mg/m\3\, to 0.5 mg/
m\3\ of air, for intake air courses, belt air courses, and for part 90 
miners to conform to the proposed lower limit. MSHA is proposing a 
phase-in period of six months for operators to meet this lower level. 
MSHA has included these conforming changes in the proposal in 
recognition of the Agency's longstanding regulatory history and policy 
with respect to areas of the mine and part 90 miners where dust 
presents additional health risks. MSHA is proposing a six-month phase-
in because, based on Agency data for these areas of the mine and part 
90 miners, MSHA believes this phase-in period would provide an 
appropriate amount of time for mine operators to feasibly come into 
compliance with the new proposed limits. MSHA solicits comment on the 
proposed phase-in periods for lowering the respirable dust limits from 
1.0 mg/m\3\ to 0.5 mg/m\3\ for intake air courses, belt air courses, 
and part 90 miners. Please include a detailed rationale with any 
comment or recommendation that is submitted.
    As presented in the Preliminary Regulatory Economic Analysis (PREA) 
and summarized later in this preamble, MSHA has determined that this 
proposed standard is feasible, both technologically and economically. 
Dust exposures at most mine operations average less than 1.0 mg/m\3\ 
under existing MSHA and operator sampling and measurement programs. 
MSHA anticipates that proposed changes to the existing program 
initially would cause an increase in operations where dust 
concentrations would exceed the proposed exposure limits. As discussed 
in the PREA, however, there are various engineering control methods and 
work practices that operators can use to meet the proposed standards. 
Since most methods of reducing exposure to respirable dust already 
exist and have been demonstrated to be both technologically and 
economically feasible and effective, MSHA believes that the two year 
phase-in period is sufficient time for mine operators to reduce 
respirable dust exposures to an acceptable level.

[[Page 64421]]

C. Section 70.101 Respirable Dust Standard When Quartz Is Present
    The proposed rule would revise the standard for respirable dust 
when quartz is present in coal mines. Overexposure to respirable coal 
mine dust containing quartz has been associated with some miners 
developing silicosis and black lung, irreversible but preventable lung 
diseases, which ultimately may be fatal.
    Proposed paragraph (a) is new and would establish a separate 
standard for respirable quartz. It would require operators to 
continuously maintain the average concentration of respirable quartz 
dust at or below 0.1 mg/m\3\ (100 [micro]g/m\3\) during each shift.
    The existing standard limits miners' exposure to respirable quartz 
by reducing the applicable respirable dust standard (or limit) based on 
a formula that was prescribed by the Department of Health, Education 
and Welfare (now DHHS). The formula, which applies when the respirable 
coal mine dust contains more than 5.0 percent quartz, is 10 divided by 
the concentration of quartz, expressed as a percentage. The formula 
results in a continuous reduction in the respirable dust standard as 
the quartz content in respirable dust in the mine atmosphere increases 
over 5 percent (i.e., the higher the percentage of quartz, the lower 
the respirable dust standard). Application of the formula was designed 
to limit a miner's exposure to respirable quartz to 0.1 mg/m\3\ (100 
[micro]g mg/m\3\), based on a 2.0 mg/m\3\ respirable dust standard.
    One commenter on the CPDM RFI stated that controlling respirable 
dust containing silica to the current 2.0 mg/m\3\ standard does not 
provide adequate protection for miners because of the greater lung 
toxicity of crystalline silica. MSHA is not establishing a new quartz 
limit in this rulemaking. MSHA will separately address a respirable 
crystalline silica standard for mining. (See the April 26, 2010 
Regulatory Agenda entry at http://www.msha.gov/regsinfo.htm.
    Proposed paragraph (b) would retain the existing requirement to 
limit a miner's exposure to respirable quartz by establishing a reduced 
respirable dust standard. To be consistent with paragraph (a), 
paragraph (b) would apply when the concentration of respirable quartz 
dust exceeds 100 [micro]g/mg\3\. Under the existing standard, if 
analysis of an MSHA inspector respirable dust sample contains more than 
5 percent quartz, then a reduced respirable dust standard is calculated 
and the operator is notified of the reduced standard. Under the 
proposal, the formula could not be used to establish a dust standard 
greater than the dust standard under proposed Sec.  70.100(a).
    A commenter on the CPDM RFI recommended gravimetric sampling for 
longer time periods or over multiple shifts to assure an adequate 
amount of total dust content is achieved to analyze for quartz. MSHA 
believes, that with the current analytical procedure (NIOSH Method P-7, 
infrared analysis), it is not necessary to sample for longer than an 8-
hour shift. The limit of quantification of Method P-7 is 25 [micro]g, 
which is the lowest amount of quartz that can be identified and 
quantitatively measured with accuracy and precision. If this mass is 
accumulated on a filter during an 8-hour shift with the sampler 
operating at 2.0 liters per minute, the concentration of quartz \1\
---------------------------------------------------------------------------

    \1\ See equation above.
    [GRAPHIC] [TIFF OMITTED] TP19OC10.002
    
(approximately 36 [micro]g/m\3\) would be well below the standard of 
100 [micro]g/m\3\. If there is too little quartz to analyze, exposure 
is well below the standard.
D. Section 70.201 Sampling; General and Technical Requirements
    The proposed rule would revise the operator sampling requirements 
in existing Sec.  70.201 and would phase-in the use of CPDMs to take 
respirable dust samples of the Designated Occupation (DO) and Other 
Designated Occupations (ODO), a new term defined in proposed Sec.  
70.2. MSHA is also proposing that operators take samples, with either a 
CMDPSU or CPDM, of DAs that are not associated with an MMU.
    Under the existing standard, coal mine operators and MSHA use 
approved CMDPSUs to determine the concentration of respirable dust in 
the coal mine atmosphere. The CMDPSU samples the mine atmosphere by 
drawing mine air through a filter cassette that collects respirable 
coal mine dust. At the end of a full shift or 8 hours, whichever time 
is less, the cassette is sent to MSHA for processing. Each cassette is 
weighed under controlled conditions to determine the average 
concentration of respirable coal mine dust to which the affected miners 
were exposed. The existing process results in a delay between the time 
a sample is taken and when results are available to mine operators, 
miners, and MSHA.
    The CPDM is a respirable dust sampler and gravimetric analysis 
device incorporated into the miner's cap lamp battery case as a single 
package located on the belt. The new cap lamp battery case contains all 
the components, including two separate batteries, to enable the dust 
monitor and cap lamp to operate independently. Air from a miner's work 
environment enters the sampling device through an inlet located 
adjacent to the lens of the cap light on the miner's hard hat and flows 
via a flexible tube that runs parallel to the lamp cord to the belt-
mounted device. The air stream is first coursed through a Higgins-
Dewell (HD) cyclone at a flow rate of 2.2 L/min to separate the non-
respirable dust, so that only airborne particles that could penetrate 
to the lung will be analyzed by the device. From there, the air stream 
flows through: (1) A heater to remove excess moisture; (2) a 14-mm 
diameter glass fiber filter where the particles are collected; (3) a 
flow rate sensor; and (4) a computer-controlled pump.
    The CPDM is designed to operate continuously for up to 12 hours. 
The display on the device continuously shows: (1) The respirable dust 
concentration calculated at distinct 30-minute intervals; (2) the 
average respirable dust exposure from the beginning of the shift; and 
(3) the percent of exposure limit. Through the display, both the miners 
wearing the device and the mine operator are aware of respirable dust 
exposures. This information can be used to validate whether dust 
control parameters are working as intended to assure that miners are 
not exposed to excessive concentrations of respirable coal mine dust.
    The CPDM is capable of being used in a shift mode, in which the 
device is programmed by certified persons to operate for specific shift 
lengths (e.g., 8, 10, 12 hours) to monitor a Designated Occupation or 
other sampling entity's exposure, or in an engineering mode for

[[Page 64422]]

shorter-term evaluations. If the device is operated in an engineering 
mode, the certified person would operate it for short periods of time 
within the shift to record respirable dust levels during specific 
mining activities or at specific dust-generation sources in the mine. 
The display has various screens that show the: (1) Time of day; (2) 
elapsed time since beginning of the shift; (3) total amount of 
respirable dust accumulated on the filter since the start of sampling, 
which is stored in an internal memory for analysis; (4) dust 
concentrations; (5) operational parameters including flow rate, filter 
pressure, temperature, etc.; and (6) a bar graph of the average 
respirable dust concentration during the entire sampling period. On the 
bar graph, each bar represents the average concentration value for each 
previous 30-minute interval, with a new bar added to the graph every 30 
minutes. This, along with other information, is stored in the CPDM and 
can be accessed and downloaded with a personal computer at the end of 
the shift for analysis and recordkeeping.
    MSHA and NIOSH published the part 74 final rule on April 6, 2010 
(75 FR 17512) that revised the approval requirements for the CMDPSU and 
established new approval requirements for the CPDM. The new CPDM 
approval requirements establish a science-based, feasible baseline for 
the performance of the new CPDM technology based on published NIOSH 
research (Volkwein, JC, et al., 2006, and Volkwein, JC et al., 2004). 
The final rule reflects current evaluation methods for assessment of 
direct-reading monitors. These methods have been summarized and issued 
as general guidelines by NIOSH in ``Components for the Evaluation of 
Direct-Reading Monitors for Gases and Vapors,'' (Kennedy, ER, et al., 
1995). The requirements also reflect the state-of-the-art technology of 
the CPDM prototype.
    NIOSH requires all applicants for CPDM sampling device approvals to 
use the NIOSH testing procedure ``Continuous Personal Dust Monitor 
Accuracy Testing'' to evaluate the accuracy, reliability, precision, 
and bias of a CPDM. The procedure is available at the NIOSH Web site: 
http://www.cdc.gov/niosh/mining. The procedure requires that testing be 
performed under diverse environmental conditions and that test results 
be submitted, in writing, to NIOSH. The protocol assures that all CPDMs 
are evaluated consistently. As stated in the preamble to the part 74 
final rule, NIOSH will provide assistance to applicants, as necessary, 
to make the arrangement of such testing feasible.
    NIOSH researchers (Page, S et al. 2008) determined that 
measurements of respirable dust concentrations using the CPDM and 
CMDPSU are comparable. The MRE was used as the basis for the existing 
coal mine respirable dust standards and had been designed specifically 
to match the United Kingdom British Medical Research Council (BMRC) 
criterion. The CMDPSU is used with a 1.38 multiplier to convert 
readings to the BMRC criterion.
    In order to compare CPDM measurements with those of the CMDPSU, 
NIOSH conducted field research. Researchers used a stratified random 
sampling design that incorporated a proportionate allocation strategy 
to select a sample of MMUs representative of all U.S. underground coal 
mines. A sample of 180 MMUs was chosen, representing approximately 20% 
of the MMUs in production at the time the sample was selected 
(September 2004). Dust concentrations were monitored concurrently by 
both CMDPSUs and CPDMs for a full shift. A total of 129 valid CPDM/
CMDPSU dust sample sets were obtained. A weighted linear regression 
analysis of this database shows that, in comparison with the CMDPSU, 
the CPDM requires a mass equivalency conversion multiplier of 1.05 [95% 
Confidence Interval (1.03 to 1.08)] to produce a concentration that is 
an MRE equivalent concentration similar to the CMDPSU. This research 
shows that the two types of sampling units are very comparable due to 
this linear relationship.
    The Dust Advisory Committee unanimously recommended that CPDM 
technology, when verified, be broadly used along with other sampling 
methods for evaluation of dust control at all MMUs and other high risk 
locations. The Committee further recommended that once verified as 
reliable, MSHA should use CPDM data for assessing operator compliance 
in controlling miner exposures and should consider use of CPDM data in 
compliance determinations.
    MSHA published a request for information on October 14, 2009 (74 FR 
52708) on the use of the CPDM as a sampling device to measure a miner's 
exposure to respirable coal mine dust. All commenters generally agreed 
that the required use of a CPDM would enhance the protection of miners' 
health.
    Under the proposed rule, Sec.  70.201(a) would require the operator 
to use the CMDPSU to take respirable dust samples of the DO in each MMU 
until replaced by the CPDM. On [date 12 months after the effective date 
of the final rule], operators must replace the CMDPSU with the CPDM to 
sample the DO in each MMU, unless notified by the Secretary. The 
operator would be allowed, however, to start using the CPDM anytime 
during the 12-month phase-in period.
    Proposed paragraph (b), which is new, would require that DAs 
associated with an MMU be sampled with an approved CMDPSU until 
replaced by a CPDM. Under the existing standard, DAs associated with an 
MMU are sampled with an approved CMDPSU. Proposed paragraph (b) would 
also require that on [date 18 months after effective date of the final 
rule], DAs associated with an MMU would be redesignated as ODOs. The 
proposal would require existing DAs associated with an MMU to be 
designated as ODOs because the CPDM would be used to measure respirable 
dust exposure of occupations on an MMU rather than areas associated 
with an MMU. The proposal would help assure that the sample reflects an 
accurate measurement of the occupation monitored.
    To provide comparable protection for ODOs as for DOs, proposed 
paragraph (c) would require that the CPDM be used to sample ODOs after 
a proposed phase-in period of 18 months, unless notified by the 
Secretary.
    The proposed rule would require, over an 18-month period, a phase-
in of the use of CPDMs so that manufacturers have enough time to 
produce the necessary quantity of units and that MSHA and operators 
have enough time to train necessary personnel in the use and care of 
the device. The Agency recognizes that availability of the device may 
present logistical and other issues at the time the final rule becomes 
effective. The Agency intends to address the issue of availability in 
two ways. First, the proposal would require the use of the CPDM to 
sample (1) the DO in each MMU, and (2) each ODO, within a 12-month and 
18-month period, respectively, unless notified by the Secretary. If 
MSHA determines that there will be logistical and feasibility issues 
surrounding the availability of CPDMs by the time the final rule 
becomes effective, the Agency will, through publication in the Federal 
Register, notify the public of the Agency's plans including any other 
action as necessary. Second, assuming no logistical or feasibility 
issues concerning the availability of CPDMs, and depending upon 
manufacturer projections, if CPDMs are not available in sufficient 
quantities, MSHA will accept, as good faith evidence of compliance with 
the final rule, a valid,

[[Page 64423]]

bona fide, written purchase order with a firm delivery date for the 
CPDMs.
    For CPDM implementation, MSHA considered requiring: All coal mines 
to begin using them on the effective date of the final rule; different 
phase-in periods at underground coal mines based on the type of mining 
operations and mining heights (e.g., longwall; continuous miner 
operations subject to reduced standards due to quartz and with mining 
heights that exceed 40 inches; or mining operations with mining heights 
that are 40 inches or less); and different phase-in periods for 
specific geographic regions (represented by Coal Mine Safety and Health 
Districts) where MSHA is aware of higher quartz concentrations in coal 
mine dust, higher respirable coal mine dust levels, and higher 
prevalence of CWP among working underground coal miners. After 
reviewing the options, MSHA believes that it would not be practical or 
feasible to adopt implementation dates based on the methods of mining 
or mine locations, or to require use of CPDMs in all mines on the 
effective date of the final rule. Instead, the proposed rule would 
require operators to begin using CPDMS to sample certain underground 
occupations after a 12- or 18-month phase-in period. The Agency 
requests comments on the proposed phase-in of the use of CPDMs, 
including the time period, and the Agency's intent with respect to 
availability of CPDMs. Please be specific in your comments and include 
the rationale for suggested alternatives.
    The proposed rule would move existing Sec.  70.201(d), which 
requires that operators, during the time for abatement of a dust 
citation, take corrective action to lower dust concentrations and then 
take additional dust samples. These requirements would be moved to 
proposed Sec. Sec.  70.207 and 70.209, which address sampling when 
using a CMDPSU.
    Proposed paragraph (d) would permit the operator to continue to use 
approved CMDPSUs or CPDMs to sample respirable coal mine dust in each 
DA that is not associated with an MMU (i.e., an outby DA). MSHA is 
allowing operators to continue to use the CMDPSU because these samples 
are area samples and CPDMs are designed for a person to wear. MSHA does 
not believe that requiring the CPDM to be used to sample DAs is the 
best use of the device. The Agency believes that the CMDPSU and reports 
of sample results will provide the information needed to evaluate the 
dust controls used in the DA and to ensure miners working in these 
areas are protected.
    Proposed paragraph (e), redesignated from existing paragraph (b), 
would retain the requirement that sampling devices be worn or carried 
directly to and from the MMU or DA to be sampled, and be operated 
portal to portal. It would also revise the existing standard and 
require that sampling devices remain with the occupation or DA being 
sampled and must be operational during the entire shift, even when the 
shift exceeds 8 hours (extended shift). This would include the time 
spent in the MMU or DA and while traveling to and from the MMU or DA 
being sampled. Under existing Sec.  70.201(b), sampling devices must 
operate only up to 8 hours. Under the 2003 plan verification proposal, 
sampling devices collecting MMU verification samples and quarterly 
samples would have to be operational only during the period spent in 
the MMU. Proposed Sec.  70.201(e) would account for all the time that a 
miner works and is exposed to respirable coal dust.
    Some commenters in response to the 2003 proposed rule stated that 
all sampling, whether for compliance or verification purposes, should 
be conducted full-shift and portal-to-portal in order to obtain an 
accurate measurement of the concentration of respirable dust to which a 
miner is exposed. These commenters believed that a full-shift would 
have to account for the entire time a miner is underground to get a 
miner's true exposure. One commenter explained that many miners ride 
mantrips onto the section, some for as long as an hour, during which 
time the miners are exposed to dust. The commenter further stated that 
the exposure obtained during a miner's transportation to the section 
should be accounted for.
    The proposed change related to extended work shifts is consistent 
with the Dust Advisory Committee report. Although not unanimous, the 
Committee recommended that exposure limits should be adjusted for 
extended work shifts. In support of this recommendation, the Committee 
reviewed exposure data and stated that the data showed that work in 
excess of 8 hours per day is now common in the mining industry. The 
Committee further stated that the data were consistent with miners' 
reports to the Committee. In its discussion on extended shifts, the 
Committee addressed increased health risks to miners and stated that 
exposures longer than 8 hours per day result in greater respirable dust 
deposition, with a shorter period of dust clearance from the lungs 
prior to the next exposure.
    As further support for the proposal, the Coal Mine Respirable Dust 
Task Group concluded that current regulations limiting the duration of 
sampling to 8 hours do not provide for adequate assessment of 
respirable dust exposure during nontraditional shifts of more than 8 
hours. (U.S. Department of Labor, MSHA, 1992). Also, MSHA conducted a 
survey in August 2002 that found 48 percent of producing MMUs operated 
at least a 9-hour shift.
    Working extended shifts increases exposure, resulting in increased 
health risks to miners, both in terms of incidence and severity. The 
proposal with respect to extended shifts is consistent with generally 
accepted industrial hygiene principles today, which take into 
consideration all of the time a worker is exposed to an airborne 
contaminant, even if it exceeds 8 hours a day.
    Under the proposal, the sampling device must remain with the 
occupation or DA being sampled during the entire shift to ensure that 
respirable dust concentration levels are continuously being monitored. 
If a miner in an occupation being sampled changes from one occupation 
to another during the production shift, the sampling device must remain 
with the occupation designated for sampling. For example, if using a 
CPDM to sample a DO (continuous mining machine operator) on a 
continuous mining section and the duties of the machine operator are 
divided equally between Miner 1 and Miner 2, the dust sampler must be 
worn for half the shift by Miner 1 and the other half by Miner 2, while 
each is operating the continuous mining machine. Similarly, under the 
proposal, a dust sampler must remain at the DA during the entire shift. 
Once sampling results are available, mine operators and MSHA would 
analyze the data to determine if adjustments need to be made (e.g. re-
designating DOs or modifying dust control parameters).
    Proposed paragraph (e)(1) is new and would address work shifts 
longer than 12 hours. It would require that when using a CMPDSU and the 
work shift to be sampled is longer than 12 hours, the operator would 
have to switch-out the unit's sampling pump prior to the 13th hour of 
operation. MSHA notes that the manufacturer of the CMDPSU states in its 
instructional manual that the typical battery-pack service life varies 
from a minimum of 8 hours to a maximum of 11.5 hours. However, MSHA is 
aware that the testing parameters are more rigorous than the actual 
conditions in the mine. The pumps are tested in extreme levels of coal 
dust which cause large amounts of dust to accumulate on

[[Page 64424]]

the filter. This leads to high back pressure, requiring the pump to 
work harder, and resulting in a shorter battery life. With the use of 
proper dust controls, the pump will not have to work as hard, thereby 
prolonging the battery life. To address shifts greater than 12 hours, 
the Agency is proposing to require that the unit be switched-out prior 
to the 13th hour to prevent disruption in operation and to provide 
continued protection for miners.
    Paragraph (e)(2) is new and would add a similar requirement to 
address work shifts longer than 12 hours for operators who use CPDMs. 
It would require that the operator switch-out the CPDM with a fully 
charged device prior to the 13th hour of operation, if the work shift 
to be sampled is longer than 12 hours. NIOSH's Report of 
Investigations, 9669, Laboratory and Field Performance of a 
Continuously Measuring Personal Respirable Dust Monitor suggests that 
12 hours of battery power be provided to the CPDM. Consistent with 
NIOSH's report, the Agency is proposing to require that the CPDM be 
switched-out prior to the 13th hour to prevent disruption in operation 
and to provide continued protection for miners. The Agency requests 
comments on an appropriate time that operators should switch out the 
CMDPSU's sampling pump or the CPDM when working longer than 12 hours. 
Please be specific in your comments and include rationale for your 
suggestions.
    Proposed paragraphs (f)(1) through (f)(4), are derived from the 
2003 plan verification proposal and, if using a CMDPSU, would require: 
the mine operator to use one control filter for each shift of sampling; 
each control filter to have the same pre-weight date (noted on the dust 
data card) as the filters used for sampling; each control filter to 
remain plugged at all times; each control filter to be exposed to the 
same time, temperature, and handling conditions as the filter used for 
sampling, and that each control filter be kept together with the 
exposed samples after sampling.
    Consistent with accepted industrial hygiene principles and 
practice, proposed paragraph (f) would require the operator to use 
control filters when sampling. A control filter is an unexposed filter 
of the same design as the filter used for sampling and is pre- and 
post-weighed on the same day as the filter used for sampling. MSHA 
first began using control filters in its enforcement program in May 
1998 and continues this practice today. The Agency's intent is to 
improve measurement accuracy by eliminating the effect of differences 
in pre- and post-exposure laboratory conditions, or changes introduced 
during storage and handling of the filter cassettes. Under the proposed 
rule, MSHA would extend the program in effect since July 2007, which 
allows operators to use control filters in the optional quartz sampling 
program, to the entire sampling program. The control filter would be 
used for all operator sampling to adjust the resulting weight gain 
obtained on each exposed filter by subtracting any change in the weight 
of the control filter from the change in weight of each exposed filter. 
This is especially important since the filter cassettes to be used by 
operators would be pre- weighed by the manufacturer and post-weighed by 
MSHA. To ensure the precision and accuracy of the pre-weight of filters 
currently used by MSHA, and proposed to be used by operators, MSHA 
audits the daily production of filter cassettes. The program conforms 
to ANSI/ASQ Z1.4-2008, ``Sampling Procedures and Tables for Inspection 
by Attributes'', which defines the criteria currently used to monitor 
the quality of the operator bimonthly sampling program.
    Since the control filter would be used to adjust the resulting 
weight gain obtained on each exposed filter cassette, the control 
filter must have the same pre-weight date as the filter cassette to be 
used for sampling on the same shift. The pre-weight date is noted on 
the dust data card. To prevent exposure to the mine environment, the 
plugs attached to the inlet and outlet side of the cassette must not be 
removed. Also, it is important that the control filter be exposed to 
the same time, temperature, and handling conditions as the ones that 
are used for sampling, i.e., carry the control filter in a shirt or 
coverall pocket while underground. While the control filter can be 
carried by any miner assigned to the MMU being sampled, it would be 
preferable if that miner performed the job of the DO. Finally, the 
control filter cassette must be kept together with the exposed samples 
after sampling and should be treated in the same manner as the exposed 
filters prior to being transmitted to MSHA. Failure to follow these 
proposed instructions would be cause for voiding the sampling results.
    Proposed paragraph (g) is new and would require the operator to 
make a record showing the length of each production shift for each MMU, 
to retain the records for at least six months and make them available 
for inspection by authorized representatives of the Secretary and the 
miners' representative or submitted to the District Manager when 
requested in writing. Under the proposed rule, mine operators would 
need to know the length of the production shift to determine the 
equivalent concentration of respirable dust in the mine atmosphere. 
MSHA would use these records to verify that operators are accurately 
recording the actual production shift lengths so that miners are not 
being overexposed.
    Proposed paragraph (h), redesignated from paragraph (c), would be 
revised to require that, upon request from the District Manager, the 
operator would submit the date and time any respirable dust sampling 
would begin and submit that information to the District Manager at 
least 48 hours prior to scheduled sampling. MSHA has included the 
proposed 48-hour notification requirement in the proposal to provide 
the Agency the opportunity to observe and monitor operator sampling to 
ensure that both operating conditions and sampling requirements are 
met.
    Proposed paragraph (i) is new and would require, for purposes of 
establishing a normal production shift as defined under proposed Sec.  
70.2, the operator to record the amount of material produced (run-of-
mine, i.e., coal and rock) by each MMU during each shift used to 
establish the average production for the most recent 30 production 
shifts or for all the production shifts if fewer than 30 shifts of 
production data are available. The operator would also be required to 
retain production records for at least six months and make the records 
available for inspection by authorized representatives of the Secretary 
and the miners' representative.
    The Dust Advisory Committee recommended that MSHA should require 
the mine operator to maintain the appropriate records. MSHA currently 
relies on information provided by the operator to determine at what 
production level the mine ventilation plan should be evaluated. No 
production records are required for each MMU. Although operators must 
submit production data on a quarterly basis, the data are compiled for 
the entire mine. In addition, quarterly reports provide information on 
the amount of clean coal produced, which is much lower than the tonnage 
of total material produced, and is not useful for establishing what 
constitutes a ``normal production shift'' for each MMU for sampling 
purposes. Under the proposed rule, MSHA would use the record under 
proposed paragraph (i) to establish a normal production level to 
evaluate.
    Proposed paragraph (j) is new and would require mine operators 
using CPDMs to provide training to all miners expected to wear one. 
This would

[[Page 64425]]

include miners who perform the duties of the DO or ODO, occupations 
determined by results of respirable dust samples to have the greatest 
respirable dust concentration. Mine operators may also choose to use 
the CPDM to address outby DA sampling.
    Proposed paragraph (j) would require that a miner receive initial 
training prior to being required to wear a CPDM, and receive retraining 
every 12 months. Based on MSHA's experience, training would be most 
effective when provided close to the time when the miner is expected to 
wear the CPDM. Proposed paragraphs (j)(1) through (j)(5) would require 
that the miner be instructed on: The basic features of the CPDM and its 
capabilities; how to set-up the CPDM for compliance sampling; the 
various types of numerical displays on the CPDM readout and how to 
access that information; how to start and stop a short-term sample run 
during compliance sampling; and the importance of continuously 
monitoring dust concentrations and properly wearing the CPDM.
    The CPDM is an important new technology that continuously measures 
miners' exposure to respirable coal mine dust, in real time. The 
proposed training requirements would assure that miners who must wear 
the CPDM understand not only how the device works, but also the data 
displayed on the CPDM, which continuously displays the concentration of 
respirable dust in their work environment. The miner can use the 
displayed information to inform a responsible mine official of 
excessive dust levels and any concerns of being overexposed to 
respirable dust. MSHA believes it is vital that miners be properly 
trained on the operation of CPDMs to assure the integrity and 
credibility of the sampling process. For the sampling program to be 
effective, miners must understand the proper use of the CPDM, and its 
operation and information displayed. Well informed miners are more 
likely to make the most of the capabilities of the new CPDM technology.
    Some commenters on the 2009 CPDM RFI supported CPDM training that 
would be separate from part 48 training. Other commenters maintained 
that CPDM training should occur before initial usage and be included 
thereafter with part 48 refresher training. MSHA considered whether 
training on the operation and use of the CPDM could be adequately 
covered under part 48 training, considering the other subjects that 
part 48 is required to address. MSHA believes that it is impracticable 
to include the proposed comprehensive training on CPDMs within the 
prescribed time limits under part 48. Under the proposal, the time for 
CPDM training would be required to be in addition to that required 
under part 48. However, operators may choose to provide CPDM training 
separately from training under 40 CFR part 48, or may provide CPDM 
training on days that part 48 training is held as long as additional 
time is designated to assure that training on the CPDM required under 
the proposed rule is sufficient.
    Some commenters suggested that MSHA provide hands-on training to 
small groups in 8-hour sessions to all underground miners. It is the 
responsibility of mine operators to provide required training. MSHA 
would encourage operators to develop training materials using available 
instructional materials (e.g., videos) or operating manuals from the 
manufacturers.
    Proposed paragraph (k) is new and would require mine operators to 
maintain a record of training at the mine site for two years following 
completion of training. MSHA believes it is important to retain these 
records to verify that the required training has been provided. 
Proposed paragraph (k) would also permit a mine operator to maintain 
the record at another location as long as the record could be 
immediately accessed electronically from the mine site. Finally, 
proposed paragraph (k) would require that upon request by an authorized 
representative of the Secretary, Secretary of HHS, or miners' 
representative, the mine operator must promptly provide access to any 
such training record.
E. Section 70.202 Certified Person; Sampling and Sec.  70.203 Certified 
Person; Maintenance and Calibration
    Proposed Sec. Sec.  70.202 and 70.203 would revise requirements for 
certified persons who perform dust sampling and who maintain and 
calibrate sampling equipment. The proposal would add a new requirement 
for decertification of certified persons who do not properly perform 
their duties or who fail to pass the MSHA examination required to 
maintain certification.
    Proposed Sec. Sec.  70.202(b) and 70.203(b) would retain the 
existing requirement that candidates for certification pass an MSHA 
examination to demonstrate competency in respirable dust sampling 
procedures or in maintenance and calibration procedures, as 
appropriate. To ensure consistent administration of the certification 
process, however, the proposal would add a new requirement that 
candidates complete an MSHA course of instruction prior to 
certification. The existing requirement that candidates pass an MSHA 
examination would not be changed and the examination would be given at 
the end of the course. MSHA believes the proposed new requirement that 
candidates complete an MSHA course would permit instructors to 
personally engage and converse with candidates to ensure that they have 
a comprehensive understanding of sampling or maintenance and 
calibration procedures. MSHA also believes that the proposed course 
requirement would strengthen the overall certification process. The 
proposed requirement is consistent with the recommendation of the 1992 
Coal Mine Respirable Dust Task Group.
    Several commenters on the CPDM RFI recommended that the 
certification requirements for both sampling and maintenance and 
calibration procedures be revised to account for technological 
differences between CMDPSUs and CPDMs. Though not explicitly reflected 
in the language of this proposed section, the mandatory course of 
instruction and competency examination that a person would be required 
to pass prior to becoming certified for sampling with or maintaining 
and calibrating a CPDM would be tailored to apply to the device. MSHA 
recognizes that, due to the technological differences between the 
instruments, a person's competency to sample with or maintain and 
calibrate a CPDM can only be demonstrated by standards that are 
specific to the device. Thus, a person who is certified to sample with 
or maintain and calibrate a CMDPSU would not be certified to sample 
with or maintain and calibrate a CPDM until completing the CPDM course 
of instruction and passing the examination demonstrating proficiency in 
CPDM sampling or maintenance and calibration procedures.
    Proposed Sec.  70.202(b) would clarify the Agency's existing 
practice that only persons who are specifically certified in dust 
sampling procedures be permitted to collect respirable dust samples and 
handle approved sampling devices when being used in sampling. This 
requirement would ensure that only trained persons, whose familiarity 
with proper sampling procedures has been evaluated, are allowed to 
collect dust samples. Dust samples must be collected effectively, and 
in accordance with proper procedures, to assure quality and validity of 
the sample. Accuracy and quality of dust sample results can be 
significantly affected by the procedures used during the collection 
process. MSHA believes that only persons certified in dust sampling 
procedures should be allowed to perform this important responsibility.

[[Page 64426]]

    Proposed Sec.  70.203(b) would clarify the Agency's existing 
practice that only persons who are certified in maintenance and 
calibration procedures be permitted to perform maintenance and 
calibration work on approved sampling devices. The proposal is 
consistent with a comment received on the CPDM RFI that only persons 
specifically trained in maintenance procedures should be permitted to 
perform maintenance on CPDMs. However, like the existing policy, the 
proposal would allow persons who are only certified in sampling 
procedures to perform maintenance of an approved device's sampling head 
assembly. MSHA's experience is that maintenance of the head assembly 
does not require a person to open, handle, disassemble, or reassemble 
the sampling device's internal components. Additionally, maintenance of 
a sampling device's head assembly would not affect the electrical 
components or other intrinsic safety features that must be maintained 
for the device to retain its approval. For these reasons, MSHA believes 
that sampling device head assemblies can continue to be maintained by 
persons who only hold a sampling certification without compromising the 
device's ability to perform as approved under part 74.
    Proposed Sec. Sec.  70.202(c) and 70.203(c) are new and would 
require persons certified in dust sampling procedures or maintenance 
and calibration procedures to pass the MSHA examination demonstrating 
competency in sampling procedures or maintenance and calibration 
procedures every three years. MSHA believes that it is absolutely 
critical that persons who are designated to perform dust sampling and 
maintenance and calibration of dust sampling equipment maintain the 
necessary competency to do so. Therefore, the new proposed requirement 
would ensure that once persons are certified, they take the necessary 
action to maintain their knowledge, skills, and abilities. Existing 
standards do not require certified persons to be re-examined at regular 
intervals to maintain a valid certification. MSHA believes that 
certifying persons for life can result in diminished aptitude or 
proficiency in skills in an area where regular changes in technology, 
procedures, and types of equipment and materials can reasonably be 
expected to affect a person's competence to perform required tasks. 
During Section 202 spot inspections conducted in 2009, MSHA personnel 
routinely observed certified persons using improper procedures for dust 
collection and handling of sampling devices, and for maintaining and 
calibrating approved sampling devices. Further inquiry of these 
certified persons revealed that a number of them were no longer 
familiar with basic procedures. MSHA believes that it is fundamental 
that the components of the dust sampling program be performed 
effectively to assure the integrity of the program, and periodic re-
examination to maintain certification would advance this end.
    The Dust Advisory Committee recommended unanimously that MSHA 
require annual update training for persons certified for dust sampling. 
The recommendation explained that annual refresher training would keep 
persons up to date with sampling methods and regulations, and maintain 
their expertise. MSHA agrees with the Dust Advisory Committee to the 
extent that it recommended a requirement that certified persons should 
be required to periodically demonstrate or reaffirm their competency in 
sampling procedures. MSHA believes that the proposed requirement would 
ensure that certified persons do not allow their knowledge, skills and 
abilities to lapse.
    Before deciding to propose the requirement that certified persons 
be recertified through examination every three years, MSHA considered 
alternatives, such as yearly and biennial recertification. However, the 
Agency believes that recertification every three years would ensure 
that certified persons remain proficient in proper procedures and 
reduce the administrative burden that would be placed on operators and 
certified persons by a more frequent recertification requirement. 
Requiring persons to be reexamined at regular intervals as a condition 
of maintaining a valid certification would ensure certified persons 
have a minimum threshold of proficiency at all times, as familiarity 
with proper procedures is integral to protecting the health of miners. 
It is important to note that the proposal would not require certified 
persons to take the MSHA course of instruction every three years as a 
condition of re-certification. While MSHA believes that it is essential 
for persons who are seeking initial certification to complete classroom 
training prior to taking the competency examination and becoming 
certified, MSHA does not believe that the same requirement is necessary 
for persons seeking recertification. Persons seeking recertification 
will have had the benefit of actual, hands-on experience in either 
sampling or maintenance and calibration procedures, and MSHA believes 
that their competency would be adequately evaluated by whether they 
pass or fail the examination. For this reason, proposed Sec. Sec.  
70.202(c) and 70.203(c) would not require persons seeking 
recertification to retake the course of instruction prior to taking the 
competency examination every three years. MSHA solicits comment on the 
proposal that reexamination occur at three-year intervals, including 
the rationale for any suggestions.
    Proposed Sec. Sec.  70.202(d) and 70.203(d) would provide that MSHA 
may revoke a person's certification for failing to pass the MSHA 
examination or failing to properly carry out required sampling 
procedures or maintenance and calibration procedures, as appropriate. 
The proposal is consistent with the Dust Advisory Committee's unanimous 
recommendation that MSHA consider a retraining and/or decertification 
requirement if certified persons do not perform their duties properly. 
MSHA believes that the Agency's ability to revoke certifications is 
critical to preserving the integrity, reliability, and accuracy of the 
dust program, as well as maintaining miners' confidence and support in 
the program. MSHA's current certification procedures and procedures 
regarding appeals of revocation are addressed in Program Policy Letter 
(PPL) No. P09-V-08 (August 12, 2009).
    Proposed Sec. Sec.  70.202 and 70.203 would delete existing 
Sec. Sec.  70.202(c) and 70.203(c), which permit MSHA to temporarily 
certify a person to collect respirable dust samples or to maintain and 
calibrate approved sampling devices if the person has received specific 
instruction from an authorized representative of the Secretary. The 
existing temporary certification provisions would be deleted because 
the process has been unused. It has been MSHA's experience that people 
seek permanent certification instead of temporary certification. In 
fact, since the provision permitting temporary certification was 
implemented, nobody has been temporarily certified.
F. Section 70.204 Approved Sampling Devices; Maintenance and 
Calibration
    The proposed rule would revise existing Sec.  70.204 to conform to 
the Agency's existing policy for the CMDPSU.
    Proposed Sec.  70.204(a) would retain the existing requirement that 
sampling devices be maintained as approved under 30 CFR part 74 and 
calibrated in accordance with MSHA Informational Report IR 1240 (1996). 
Proposed Sec.  70.204(a) would address the use of the CPDM and require 
that operators who use this device maintain it in

[[Page 64427]]

accordance with the manufacturer's recommendations. The CPDM is a new 
sampling device and this new proposed requirement would ensure that the 
CPDM would perform as designed.
    To assure proper operation of the sampling device and integrity of 
the samples, proposed Sec.  70.204(a) would also clarify that pump unit 
maintenance on approved samplers could only be done by persons 
certified in maintenance and calibration. Under the proposal, persons 
certified only in sampling could not perform maintenance or calibration 
work on pump units of approved sampling devices. MSHA's experience is 
that maintenance and calibration of the pump unit requires a person to 
open, handle, disassemble, or reassemble the sampling device's internal 
components. Additionally, maintenance of the pump unit could affect the 
electrical components or other intrinsic safety features that must be 
maintained for the device to retain its approval. MSHA believes that 
only persons trained and certified in maintenance and calibration 
procedures are competent and knowledgeable enough to properly perform 
pump unit maintenance. This requirement would assure that the device's 
ability to perform as approved under part 74 is not compromised.
    Proposed Sec.  70.204(b) would retain the existing Sec.  70.204(b) 
requirement that sampling devices be calibrated at a flowrate of 2.0 
liters of air per minute, or at a different flowrate prescribed by the 
Secretary or Secretary of HHS. The proposal revises the existing 
requirement to allow calibration of sampling devices at a different 
flowrate, if recommended by the manufacturer. Proposed Sec.  70.204(b) 
also would retain the existing requirement that calibration be done 
before the samplers are put into service, but would delete the existing 
requirement that they must be calibrated at intervals 200 hours or less 
after being placed into service. Instead, the proposed rule would 
require sampling devices to be calibrated at time intervals prescribed 
by the Secretary or Secretary of HHS or recommended by the 
manufacturer. These changes would permit the introduction of new 
sampling technologies that may have different calibration requirements. 
It would also allow the Secretary to establish a different calibration 
requirement or calibration schedule when necessary to address problems 
associated with a particular sampling unit.
    Existing Sec.  70.204(c), which addresses calibration marks on the 
flowmeter, would be deleted because it no longer applies to approved 
sampling devices. The CMDPSU has a constant-flow design with a digital 
flow indicator and no longer uses a rotometer to indicate the flowrate. 
Also, the CPDM has no external flowrate indicator; instead, it is 
monitored by its own internal microprocessor.
    Proposed Sec.  70.204(c) is derived from existing Sec.  70.204(d) 
and existing MSHA policy and would address testing and examination 
requirements when using a CMDPSU to conduct sampling. The proposed rule 
would require that the CMDPSU be examined and tested by a person 
certified in sampling or in maintenance and calibration within 3 hours 
before the start of the shift on which it will be used to assure that 
it is clean and in proper working condition. The existing standard 
requires that this examination and testing occur ``immediately'' before 
the sampling shift, and the proposal clarifies immediately to reflect 
MSHA's policy on its interpretation of ``immediately.'' MSHA believes 
that clarifying a 3-hour timeframe provides operators transparency 
regarding their responsibilities for testing and examining sampling 
devices, flexibility, and assurance that the sampling devices work 
effectively during the next shift.
    MSHA proposes to redesignate existing Sec.  70.204(d)(1) through 
(d)(5) as Sec.  70.204(c)(1) through (c)(5). In addition, the order of 
the paragraphs would be changed to reflect the order in which the 
examination and testing requirements must be performed. MSHA also 
proposes to add clarifying changes, which would incorporate existing 
MSHA policy, to describe more completely the procedures to be used for 
the required examinations and testing. The proposed changes include: 
(c)(1) Examining the interior of the connector barrel, vortex finder, 
cyclone body and grit pot; (c)(2) examining for scratch marks on the 
inner surface of the cyclone where the air flow is directed by the 
vortex finder into the cyclone body; (c)(3) examining the external hose 
connecting the pump unit to the sampling head assembly; (c)(4) 
examining the clamping and positioning of CMDPSU components to assure 
they are airtight; and (c)(5) assuring that a fully assembled and 
examined sampling head assembly is attached to the pump inlet with the 
pump unit running when the battery voltage is tested. MSHA experience 
indicates these proposed clarifications are necessary to assist 
operators in correctly performing the required examinations and testing 
to assure the accuracy of respirable dust samples and that devices 
operate as approved.
    Proposed Sec.  70.204(d) is new and would require that when CPDMS 
are used, a person certified in sampling or in maintenance and 
calibration follow the examination, testing, and set-up procedures 
contained in the approved CPDM Performance Plan (proposed Sec.  
70.206). This proposed requirement would ensure that CPDM procedures 
have been approved by the District Manager and that the device operates 
properly.
    No changes are being proposed to Sec.  70.204(e).
G. Section 70.205 Approved Sampling Devices; Operation; Air Flowrate
    Proposed Sec.  70.205, which addresses the operation and air 
flowrate of approved sampling devices, would revise the existing 
standard to include the use of CPDMs and to conform to Agency policy.
    Proposed Sec.  70.205(a) would retain the existing requirement that 
approved sampling devices be operated at the flowrate of 2.0 liters of 
air per minute or at a different flowrate prescribed by the Secretary 
or Secretary of HHS. It would revise the existing requirement to allow 
the operator to use a different flowrate recommended by the 
manufacturer. MSHA believes that this proposed revision would ensure 
that approved sampling devices would perform properly and as designed.
    For clarity and simplification, MSHA is proposing non-substantive 
changes to existing Sec.  70.205(b) and (c), which would be 
redesignated as paragraphs (b)(1) and (b)(2). Proposed Sec.  70.205(b) 
would clarify that it would apply to operators when using a CMDPSU and 
would retain the requirement that a person certified in sampling must 
examine each approved sampling device at least twice during each 
sampling shift to assure it is placed in the proper location, operating 
properly, and at the proper flowrate.
    Proposed paragraph (b)(1) would retain the existing requirement 
that the first examination must be made during the second hour after 
sampling devices are put into operation. It would also include the 
provision in existing Sec.  70.205(d) to clarify that the examination 
is not required if the sampling device is being operated in a breast or 
chamber of an anthracite coal mine where the full box mining method is 
used.
    Proposed Sec.  70.205(b)(2) would retain the requirement in 
existing Sec.  70.205(c) that the second examination be made during the 
last hour that sampling devices are operated and, if a proper flowrate 
was not maintained, the dust data card transmitted to MSHA must

[[Page 64428]]

include a notation to that effect. This proposal would include a new 
requirement that the certified person must place the notation regarding 
the improper flowrate on the back side of the dust data card. MSHA 
experience indicates that operators do not always put the notation on 
the card in a conspicuous location, which increases the likelihood that 
this important information can be overlooked. The proposed revision is 
consistent with existing Agency policy.
    Proposed paragraph (b)(2) would also require that other events 
occurring during the collection of respirable dust samples that may 
affect the validity of the sample, such as dropping the sampling head 
assembly on the mine floor or into water, must be noted on the back-
side of the dust data card. This proposed requirement would provide an 
opportunity for the operator to inform MSHA of conditions that may 
affect the sample's validity.
    A commenter to the 2003 proposed rule stated that the requirement 
that certified persons make second hour and last hour examinations of 
sampling devices is obsolete and should be changed. MSHA believes that 
the proposed examinations of each CMDPSU are crucial to assure that the 
sampling device is operating properly, in the proper location, and at 
the proper flowrate. Also, any corrective actions taken as a result of 
the examinations would increase sampling accuracy.
    A commenter to the 2009 CPDM RFI stated that the examinations 
required under existing Sec.  70.205 would not be compatible with the 
CPDM because (1) Checks do not necessarily need to be done within 3 
hours prior to sampling since the CPDM can be programmed ahead of the 
shift; (2) the flow rate exam during the second and last hour are 
unnecessary because the flow rate is not displayed on the CPDM; and (3) 
sensors record and log failures in the CPDM data files. The Agency 
agrees and proposes a new requirement for the CPDM. Proposed Sec.  
70.205(c) would require that the certified person examine the CPDM 
during the shift as specified in the approved CPDM Performance Plan to 
ensure that the CPDM is operating properly at the proper flowrate. The 
CPDM Performance Plan requirements are in proposed Sec.  70.206, 
discussed below.
H. Section 70.206 CPDM Performance Plan
    Proposed Sec.  70.206 is new and would require operators who use 
CPDMs to develop and submit for approval a CPDM Performance Plan (Plan) 
prior to using the devices. The proposal specifies the information that 
would be required in the Plan and would establish Plan approval 
procedures.
    Proposed Sec.  70.206(a) would require that operators have an 
approved Plan to ensure that no miner working on an MMU is exposed to 
respirable dust concentrations in excess of the applicable standard. 
The proposal would require operators to develop a proposed Plan and 
submit it to the District Manager for approval. Under the proposal, 
operators could not implement a Plan until it has been approved by the 
District Manager.
    The proposed requirement for a Plan is based on MSHA's longstanding 
regulatory history of requiring approved plans to address safety and 
health conditions that are unique to a mine. Plans are an essential 
component of an effective safety and health program and allow operators 
the needed flexibility to address unique conditions at their mine. The 
proposal would ensure that distinct mine procedures, mining cycles, 
conditions, and experiences can be addressed on a mine-by-mine basis. 
The CPDM Performance Plan would be a separate plan and not part of an 
operator's ventilation or methane and dust control plan.
    Proposed Sec.  70.206(a)(1), like the existing ventilation plan 
requirements, would require operators to notify the representative of 
miners at least 5 days prior to submitting a proposed CPDM Performance 
Plan, or any proposed revision to the Plan, to the District Manager for 
approval. At the time of this notification, the proposal would also 
require operators to provide a copy of the Plan to the representative 
of miners, if the miners' representative so requests. Consistent with 
the Mine Act and MSHA's existing standards, MSHA believes that input 
from miners on proposed Plan provisions is important, as they are 
generally in the best position to determine the effect of the 
provisions, if implemented. Additionally, the Agency believes that more 
effective Plans can be developed when mine operators and 
representatives of miners have meaningful involvement in the process. 
The proposal would allow the miners' representative sufficient time to 
become familiar with proposed Plan provisions and, when necessary, to 
discuss and resolve any issues with the operator. The proposed 
requirement that miners' representatives be provided with a copy of the 
proposed Plan upon request is consistent with existing ventilation plan 
requirements and would allow miners' representatives to meaningfully 
participate in the Plan approval process.
    Proposed Sec.  70.206(a)(2) would require the operator to make 
available for inspection by the miners' representative a copy of the 
proposed Plan and any proposed revisions which have been submitted for 
approval to the District Manager. This proposed provision would ensure 
that once the operator has submitted the proposed Plan or revision to 
the District Manager for approval, the miners' representative would 
also have the opportunity to inspect the documents. This proposal is 
consistent with requirements for approval of the ventilation plan and 
would facilitate miners' representatives' ongoing involvement in the 
Plan approval process.
    Proposed Sec.  70.206(a)(3) would require a copy of the proposed 
Plan and any proposed revision that has been submitted for approval to 
be posted on the mine bulletin board at the time of submittal. The 
proposed Plan or revision would be required to remain posted on the 
bulletin board until approved, withdrawn, or denied. The proposed 
posting requirement is consistent with existing ventilation plan 
requirements and would ensure that each miner is aware of the 
provisions in the proposed Plan, or any revisions to the Plan. It would 
provide these miners with the opportunity to review and consider the 
proposed Plan or revision, and offer comments, recommendations or 
concerns during the approval process. This proposed provision is 
consistent with the statutory and existing regulatory framework that 
provides for miners to have a meaningful role in matters affecting 
their safety and health, such as the CPDM Performance Plan.
    Proposed Sec.  70.206(a)(4) would address procedures for miners' 
representatives to provide comments on the Plan to the District 
Manager. It would permit the representative of miners, following 
receipt of a proposed Plan or proposed revision, to submit timely, 
written comments to the District Manager for consideration during the 
review process. The proposal would also require the District Manager to 
provide a copy of the representative of miners' comments to the 
operator upon the operator's request. Consistent with existing 
ventilation plan requirements, the proposal would require miners' 
representatives to submit their comments in a ``timely'' manner in 
order to be considered by the District Manager. Accordingly, while 
miners' representatives would be permitted a reasonable period within 
which to review the operator's submittal and forward their comments to 
the District Manager, the proposal would not allow

[[Page 64429]]

them an indefinite or unreasonable period within which to do so. Like 
the existing standards and consistent with the statutory framework, the 
proposal would provide miners' representatives a reasonable amount of 
time in which to review a proposed CPDM Plan or revision, and submit 
their comments to the District Manager to facilitate development of an 
appropriate Plan. Although the proposal does not define timely, under 
the proposal, MSHA would balance the need for timely review, evaluation 
and approval of a Plan, with all parties' need for meaningful 
participation in the approval process.
    The proposed requirement that District Managers provide operators, 
upon request, with a copy of comments submitted by the miners' 
representative would ensure that operators are aware of miners' and 
their representatives' position with respect to a proposed Plan or 
revision. MSHA believes that the proposed procedures for approval of a 
Plan, including input by miners and their representatives and 
information to the mine operator, would provide a reasonable approach 
to information sharing between operators and representatives of miners.
    Proposed Sec.  70.206(b) would include the information that would 
be required in CPDM Performance Plans and the names or titles of the 
responsible mine officials who would be designated by the operator to 
perform the tasks required by this proposed provision. The proposal 
would ensure that each Plan contains sufficient information necessary 
for: the operator to have an effective Plan; MSHA to approve the Plan; 
and for MSHA to verify the responsible mine officials designated by the 
operators to properly implement the provisions of the Plan in this 
section. The proposed requirement that operators identify the mine 
official who would be responsible for each required task would permit 
the mine official to be designated by title or name, so long as MSHA 
and miners are able to readily discern who that official is. For 
example, if the operator designates the ``safety supervisor'' as the 
official responsible for electronically transmitting certified sampling 
data files to MSHA at the end of each week, the proposed Plan would be 
considered acceptable by MSHA if the operator employed only one 
individual with the title of ``safety supervisor.'' Conversely, if the 
operator designates the ``section foreman'' as the person responsible 
for taking on-shift action to ensure that sampled occupations will 
remain in compliance at the end of the shift, but has more than one 
section foreman, the designation would not be acceptable. The operator 
would have to include the titles or names of the designated mine 
official responsible for performing the tasks required by each of the 
eight proposed provisions, as well as any other tasks, if required by 
the District Manager.
    Proposed Sec.  70.206(b)(1) would require the Plan to include the 
occupations designated by MSHA in each MMU that would be sampled using 
a CPDM, along with a 9-digit identification number in the following 
sequence: (i) The first four digits would identify the MMU being 
sampled; (ii) the next three digits would identify the sampled 
occupation; (iii) the eighth digit would identify the particular shift 
being sampled (e.g., 1st, 2nd or 3rd); and (iv) the final digit would 
identify the particular work crew that the wearer of the sampling 
device is assigned to at mines employing multiple crews to work the 
same shift on different days during the same calendar week (e.g., 1st 
crew, 2nd crew, etc.). The proposed unique 9-digit identifying number 
would ensure that sampling results are properly attributed to the 
occupation and crew from which they were taken. MSHA has included this 
requirement in the proposal because it is critical that the Agency be 
able to correlate each sample result to the occupation and crew from 
which it was obtained. This information would allow the Agency to 
determine whether the weekly permissible accumulated exposure has been 
met. The distinction between crews is essential where operators employ 
several crews, each of which works the same shift but on different days 
of the week. It is vital for MSHA, operators and miners to know 
exposures of the sampled designated occupations so that timely 
corrective action can be taken, as necessary.
    Proposed Sec.  70.206(b)(2) would require the Plan to include pre-
operational examinations, testing and set-up procedures to verify the 
operational readiness of the CPDM before each sampling shift. These 
proposed tasks would have to be performed by a person certified in 
sampling procedures. This proposed provision is consistent with a 
comment received on the CPDM RFI that favored operators being held 
responsible for ensuring the operational readiness of their CPDMs. The 
proposal would require the operator to establish examination, testing, 
and set-up procedures that would assure that the device is ready to be 
used and will function properly during the shift. Pre-operational 
exams, testing and set-up procedures are critical to the proper use of 
the CPDM, as they would ensure that the approved device is working 
correctly and that results from the device are reliable. These 
procedures should be based upon the manufacturer's recommendations, as 
appropriate. Set-up procedures should include programming the CPDM with 
the shift length and the applicable dust standard for that MMU. 
Additionally, set-up procedures should include placing a filter in the 
device. The pre-operational examination should ensure that the CPDM is 
ready to be used for the shift. The designated mine official should 
also calculate the weekly permissible accumulated exposure. MSHA 
solicits comment on this proposed provision and requests that a 
detailed rationale accompany any comment or recommendation that is 
submitted.
    Proposed Sec.  70.206(b)(3) would require the Plan to include 
procedures that address downloading end-of-shift sampling information; 
and validation, certification and posting of reported results. The 
responsible mine official designated to perform these tasks would be 
required to be certified in sampling procedures. The proposal would 
require that the Plan specify how the operator would ensure that all of 
the recorded CPDM data would be downloaded at the end of each shift. 
Because the operator would be required to post specific end-of-shift 
information on the mine bulletin board, the downloaded data should 
include: the location within the mine from which the sample was taken; 
the respirable dust concentration; the occupation code, where 
applicable; the shift length; and any information related to a voided 
sample. With respect to the proposed requirements that the designated 
mine official validate and certify the reported results, the Plan 
should specify the means by which the official would determine that the 
reported results appear reasonable and accurate in light of 
considerations such as shift length, the location from which the sample 
was taken, the sampled occupation, etc. The proposal would require that 
the Plan include posting procedures and information describing how the 
official would ensure the posting of the reported results. MSHA 
solicits comment on this proposed Plan provision, and requests that a 
detailed rationale accompany any comment or recommendation that is 
submitted.
    Proposed Sec.  70.206(b)(4) would require the Plan to include 
procedures for weekly electronic transmittals of certified sampling 
data files to MSHA including the responsible mine official designated 
to perform the weekly electronic data transmittals. If operators choose 
to use other services, such as a contractor, to transmit weekly data to

[[Page 64430]]

MSHA, the Plan would have to include that information to ensure the 
integrity of data. Additionally, the Plan should specify how the 
operator would ensure that weekly data would be electronically 
transmitted to MSHA. MSHA solicits comment on this proposed Plan 
provision, and requests that a detailed rationale accompany any comment 
or recommendation that is submitted.
    Proposed Sec.  70.206(b)(5) would require the routine daily and 
other required scheduled maintenance procedures to be included in the 
Plan. With regard to the routine daily maintenance procedures, the Plan 
should include the steps the mine official would take to prepare the 
units for daily usage, which may include cleaning the CPDM's inlet 
tubing and cyclone in order to keep it free of dust and dirt (e.g., by 
spraying with compressed air), changing the filters, and recharging the 
batteries. Proper daily maintenance of the CPDM, such as cleaning the 
inlet tubing and cyclone, ensures that the device is ready for the 
sampling shift and that it provides consistent operation. Routine daily 
maintenance procedures should be based on the manufacturer's 
recommendations. With regard to ``other required scheduled 
maintenance,'' the Plan would include scheduled monthly and annual 
maintenance, as well as any other task that requires the CPDM case or 
unit connections to be broken. These tasks, which require exposing the 
internal components of or disassembling the unit, have the potential to 
compromise the intrinsic safety features of the CPDM. MSHA solicits 
comment on this proposed Plan provision, and requests that a detailed 
rationale accompany any comment or recommendation that is submitted.
    One commenter to MSHA's CPDM RFI recommended that MSHA assume 
responsibility for all non-routine maintenance of operators' CPDM 
units, while operators assume responsibility for routine maintenance of 
the units. Proposed Sec.  70.206(b)(5), however, would require 
operators to include all CPDM maintenance procedures, whether routine 
or other than routine. The Agency believes that operators are in the 
best position to maintain equipment, tools and instruments that they 
use to comply with the Mine Act and related standards. Under the 
existing dust standards, operators are responsible for ensuring that 
their CMDPSUs are properly maintained, and MSHA believes continued 
application of this practice is sound.
    Proposed Sec.  70.206(b)(6) would require the Plan to specify 
procedures or methods for verifying the calibration of each CPDM. The 
Plan should specify how frequently the CPDM would be calibrated in 
order to ensure the validity of each device's measurements and the 
continued reliability of the information reported by the instrument. In 
determining calibration frequency, the operator should follow the 
manufacturer's recommendations; however, the District Manager may 
require more frequent calibrations should circumstances warrant, such 
as, prolonged exposure to extreme temperatures, repeated sampling 
results that are unable to be validated, intense vibration or shock, or 
improper handling by someone not certified in maintenance and 
calibration procedures. MSHA solicits comment on this proposed 
provision, and requests that a detailed rationale accompany any comment 
or recommendation that is submitted.
    One commenter to the CPDM RFI recommended that MSHA assume 
responsibility for calibrating and maintaining each mine operator's 
CPDM units. The proposal does not reflect this suggestion. As discussed 
previously, MSHA believes that each operator is in the best position to 
ensure that its tools, equipment, dust sampling devices, etc., are in 
proper working order. Under MSHA's existing standards, operators are 
responsible for ensuring regular calibration of their CMDPSUs, and 
maintenance of the units as necessary. MSHA believes that operators 
should have the same responsibility with respect to CPDM calibration 
and maintenance.
    Proposed Sec.  70.206(b)(7) would require the Plan to specify the 
frequency with which the dust concentration is to be monitored by the 
designated mine official during the shift. The Plan should specify 
reasonable monitoring intervals based on considerations such as the 
occupation being monitored, geologic conditions, the location in the 
mine from which the sample is being taken, production levels, past 
exposure levels, and similarity to current conditions, and mine 
experience. MSHA solicits comment on this proposed provision, and 
requests that a detailed rationale accompany any comment or 
recommendation that is submitted.
    Proposed Sec.  70.206(b)(8) would require the Plan to include the 
types of actions permitted to be taken by the responsible mine official 
during the shift to ensure that the environment of the occupation being 
sampled remains in compliance at the end of the shift. Specific actions 
to be taken would depend upon the particular circumstances in the mine. 
For example, the Plan could contain actions such as checking the 
approved dust plan parameters, determining whether the water sprays are 
functioning properly and, if so, whether the water pressure is 
appropriate; examining the number of scrubber sprays; examining the 
amount of air delivered to the section; or inspecting the length of 
bits. Permitted actions should ensure that environmental and 
engineering controls that have already been installed are functioning 
so as to provide optimum protection. MSHA solicits comment on this 
proposed provision, and requests that a detailed rationale accompany 
any comment or recommendation that is submitted.
    Proposed Sec.  70.206(b)(9) would require the Plan to include any 
other information required by the District Manager. Consistent with 
MSHA's other existing standards that require plans, the proposal would 
provide District Managers the authority to require added plan content 
in order to accommodate special circumstances. For example, a District 
Manager may require added Plan content to address repeated 
overexposures to respirable dust, CPDM units that are not properly 
cleaned under an operator's existing Plan procedures, or CPDMs that 
have repeatedly reported errors. MSHA believes that plans must be 
tailored to fit each mine's needs, and the flexibility provided in this 
proposed provision would ensure that variations between mines are 
accounted for in a mine's approved Plan. MSHA solicits comment on this 
proposed provision, and requests that a detailed rationale accompany 
any comment or recommendation that is submitted.
    Proposed Sec.  70.206(c)(1) would require the approved CPDM 
Performance Plan and any revisions to be provided upon request to the 
representative of miners by the operator following notification of 
approval. The proposal would ensure that miners' representatives are 
aware and knowledgeable of any approved Plan or Plan revision. MSHA 
believes that providing the representative of miners with a copy of the 
approved Plan and revisions facilitates the information exchange that 
the Agency believes furthers the health protections of miners. This 
proposed provision is consistent with other MSHA plan requirements.
    Proposed Sec.  70.206(c)(2) would require the approved Plan and any 
revisions to be made available for inspection by the representative of 
miners. The proposal would ensure that the representative of miners 
could examine or look over the approved Plan or revisions so that 
miners and their representatives fully understand the provisions in the 
Plan and how the Plan affects them. The

[[Page 64431]]

proposed provision is consistent with other MSHA plan requirements.
    Proposed Sec.  70.206(c)(3) would require the approved Plan and any 
revisions to be posted on the mine bulletin board within 1 working day 
following notification of approval, and to remain posted for the period 
that the Plan is in effect. The proposal would help to assure that 
miners and their representatives are aware of the provisions of the 
approved Plan in a timely manner. The proposed provision is consistent 
with other MSHA plan requirements.
    Proposed Sec.  70.206(d) would allow the District Manager to 
require an operator to revise an approved Plan if the District Manager 
determines that the plan is inadequate to protect miners from exposures 
to excessive concentrations of respirable coal mine dust. MSHA believes 
that District Managers must have the authority to require Plan 
revisions when it is determined that the minimum Plan provisions would 
not reliably and consistently protect miners from excessive dust. All 
mines, whether surface or underground, present a dynamic work 
environment. MSHA's experience has demonstrated that such working 
environments often require Plan revisions to account for conditions or 
circumstances that might not have been present at the time the Plan was 
approved. Similarly, even absent changing mine conditions, 
implementation of an approved plan might reveal that variables assumed 
during the Plan approval process, perform differently during actual 
mining activities, resulting in inadequate protection of miners. For 
this reason, MSHA believes it is critical that District Managers have 
the ability to require Plan revisions. It is the Agency's intent that, 
prior to requiring an operator to revise an approved Plan, the District 
Manager would consider relevant inspection information, including any 
dust citations that have been issued and corrective action taken to 
lower respirable dust concentrations. However, under the proposal, 
District Managers would not be required to wait until a miner has been 
exposed to excessive dust prior to determining that a Plan is 
inadequate and a revision warranted, provided there is a reasonable 
basis to make such determination. For example, a District Manager may 
require plan revisions to address CPDM units that are not properly 
cleaned under an operator's existing Plan procedures, or CPDMs that 
have repeatedly reported errors. Failure to include the required 
revisions into a Plan would provide just cause for MSHA to revoke the 
existing Plan. MSHA believes that such instances of refusal to 
incorporate required revisions into a Plan will rarely, if ever, occur. 
Consistent with MSHA's other standards that require approved mine 
plans, operating without an approved Plan would be a violation of MSHA 
standards. MSHA solicits comment on this proposed provision, and 
requests that a detailed rationale accompany any comment or 
recommendation that is submitted.
I. Section 70.207 Sampling of Mechanized Mining Units; Requirements 
When Using a CMDPSU
    Proposed Sec.  70.207 would revise the existing bimonthly sampling 
requirements when using CMDPSUs on MMUs. The proposal would change the 
title to distinguish this section from proposed Sec.  70.208 which 
would apply to operators who use CPDMs.
    Proposed Sec.  70.207(a) would replace the existing term 
``respirable dust samples'' with the new term ``representative 
samples.'' The term representative samples is discussed elsewhere in 
this preamble in proposed Sec.  70.2 related to definitions. The 
proposed change to include representative samples would offer greater 
protection for miners since it would assure that samples taken by the 
operator would reflect typical dust concentrations and conditions at 
the mine during normal mining activity.
    As in existing Sec.  70.207(a), the proposed rule would require 
that DOs be sampled on ``consecutive normal production shifts or normal 
production shifts each of which is worked on consecutive days.'' 
Proposed Sec.  70.2 would, however, revise the definition for ``normal 
production shift,'' discussed elsewhere in the preamble. Under the 
proposal, bimonthly sampling periods would remain the same as in the 
existing standard.
    Proposed Sec.  70.207(b), redesignated from existing Sec.  
70.207(e), would substantively remain unchanged. Proposed (b)(1) 
through (b)(10), which identify the DOs that will require sampling and 
the location of sampling, would remain the same.
    Proposed Sec.  70.207(c), (c)(1), and (c)(2) would apply when the 
respirable dust standard has been changed due to the presence of quartz 
under proposed Sec.  70.101.
    Proposed Sec.  70.207(c) is new and would require that when the 
applicable dust standard is changed in accordance with proposed Sec.  
70.101 (Respirable dust standard when quartz is present), the new 
applicable standard would be effective on the first production shift 
following the operator's receipt of notification of the change from 
MSHA. The proposal would protect miners by ensuring prompt 
implementation of the reduced standard when high concentrations of 
quartz are present. For example, during the day shift on Monday, the 
operator receives notification from MSHA that the respirable dust 
standard for the DO, the cutting machine operator, will be reduced in 
accordance with proposed Sec.  70.101 due to a high quartz measurement. 
Proposed paragraph (c) would require the reduced standard to become 
effective on the next production shift, which could be the evening 
shift on Monday or the midnight shift on Tuesday morning or the day 
shift on Tuesday. The proposed provision is consistent with Agency 
policy and would provide increased health protection for miners.
    Proposed Sec.  70.207(c)(1) is derived from existing Sec.  
70.207(b). Under the proposal, if all samples from the most recent 
bimonthly sampling period do not exceed the new applicable standard, 
the operator would begin sampling in the affected MMU on the first 
production shift during the next bimonthly period following 
notification from MSHA of the change in the applicable standard. 
Proposed paragraph (c)(1) is consistent with existing Sec.  70.207(b) 
and Agency policy.
    Proposed Sec.  70.207(c)(2) is new and would require that if any 
sample from the most recent bimonthly sampling period exceeds the new 
applicable standard (reduced due to the presence of quartz), the 
operator must make necessary adjustments to the dust control parameters 
in the mine ventilation plan within three days, and then collect 
samples from the affected MMU on consecutive normal production shifts 
until five valid representative samples are collected. The samples 
collected would then be treated as normal bimonthly samples. MSHA 
believes that operators should take prompt actions to reduce the dust 
levels when the new applicable standard is exceeded and that three days 
is a reasonable amount of time to do so. The additional samples would 
allow operators to make a timely determination whether the dust 
controls are working effectively. Proposed Sec.  70.207(c)(2) would 
assure that miners who need to be on a reduced standard are adequately 
protected.
    Proposed Sec.  70.207(d) would revise existing Sec.  70.207(d) by 
deleting the existing provision requiring that any sample greater than 
2.5 mg/m<SUP>3</SUP> be used when normal production is not achieved. In 
its place, the proposal would require that, if any sample

[[Page 64432]]

exceeds the applicable standard by 0.1 mg/m<SUP>3</SUP>, regardless of 
production, the sample would be used to determine the average 
concentration for that MMU. Voiding samples that indicate miners were 
exposed to a concentration of respirable dust in excess of the 
applicable standard does not provide miners the intended health 
protection. For example, an MMU is on a reduced standard of 0.5 mg/
m<SUP>3</SUP> due to the presence of quartz. A sample taken on the MMU 
when a normal production shift was not achieved shows the respirable 
dust concentration is 2.3 mg/m<SUP>3</SUP>. Under the existing 
standard, that sample would not be used to determine the average 
concentration for the MMU. However, MSHA believes that any sample that 
exceeds the applicable standard while production is less than normal 
should be used to determine the respirable dust concentration of the 
MMU since operating at a higher production would likely increase 
miners' respirable dust exposure.
    Proposed Sec.  70.207(e) is new and would require that if an 
operator uses a CMDPSU, no valid single-shift sample equivalent 
concentration measurement shall meet or exceed the Excessive 
Concentration Value (ECV) that corresponds to the applicable standard. 
The ECVs are listed in Table 70-1. A full discussion of the use of 
single, full-shift measurements is addressed elsewhere in this preamble 
under proposed Sec.  72.800. The ECVs were calculated to ensure that, 
if an ECV is met or exceeded, MSHA can determine noncompliance with the 
applicable dust standard with at least 95-percent confidence.
    The NIOSH Criteria Document recommended that MSHA should make no 
upward adjustment in exposure limits to account for measurement 
uncertainty for single, full-shift samples used to determine 
noncompliance. The Dust Advisory Committee made the same 
recommendation; however, it was not unanimous. One commenter on the 
CPDM RFI stated that MSHA should issue a citation when any full-shift 
sample exceeds the exposure limit by <ls-thn-eq> 0.1 mg/m<SUP>3</SUP>. 
The commenter also stated that the Agency should not apply the 95% 
confidence level adjustment since it gives benefit of the doubt to the 
operator at the expense of miners' health. In developing the proposal, 
MSHA considered an alternative that would have established 
noncompliance whenever any single-shift measurement exceeded the 
applicable dust standard by any amount. However, the Secretary must 
show, to a certain level of confidence, that there has been an 
overexposure before issuing a citation. The proposed rule is consistent 
with generally accepted industrial hygiene principles for health 
standards that include an error factor in determining noncompliance to 
account for measurement uncertainty. The proposal, however, would 
require that the operator take corrective action when the standard is 
exceeded by any amount. In this situation, the proposed rule would 
require that the operator: (1) Make respiratory equipment available to 
affected miners; (2) take corrective action to lower the dust level so 
that it does not reach the ECV level; and (3) record the corrective 
actions. This proposed requirement is generally consistent with NIOSH's 
recommendation and commenters' suggestion that the Agency make no 
upward adjustment to the standard, in that it would require the 
operator to take actions or receive a citation for not doing so.
    Each proposed ECV was calculated to ensure that citations would be 
issued only when a single sample measurement demonstrates, with at 
least 95-percent confidence, that the applicable dust standard has been 
exceeded. MSHA believes that the proposed ECVs provide a sufficient 
degree of confidence in establishing noncompliance and basing 
noncompliance determinations on the proposed ECVs would provide miners 
increased health protection. A more detailed discussion on the 
derivation of the ECV values is included in Appendix A of the preamble.
    The proposed rule would redesignate existing Sec.  70.207(c) as 
Sec.  70.207(f). Proposed Sec.  70.207(f) would continue to require 
that upon issuance of a citation for a violation of the applicable 
standard involving a DO on an MMU, bimonthly sampling, and requirements 
when the respirable dust standard is changed due to quartz, would not 
apply to that MMU until the violation is abated. The proposal would 
replace (1) ``Sec.  70.100(a) (Respirable dust standards) or Sec.  
70.101 (Respirable dust standard when quartz is present)'' with ``the 
applicable standard'' to be consistent with other proposed part 70, 71, 
and 90 provisions; and (2) ``that unit'' with ``that MMU'' for 
clarification. The proposal would also make two nonsubstantive, 
conforming changes to replace references to paragraphs that have been 
redesignated. It would replace ``(b)'' with ``(c)(2),'' and ``Sec.  
70.201(d)'' with ``paragraph (g).''
    The proposed rule would revise and redesignate existing Sec.  
70.201(d) as proposed Sec.  70.207(g). It would require the operator to 
take actions, listed in paragraphs (g)(1) through (g)(3), during the 
time for abatement fixed in a citation for violation of the applicable 
standard. Proposed (g)(1) would require the operator to make approved 
respirators available to affected miners in accordance with proposed 
Sec.  72.700. Proposed (g)(2) would require the operator to submit to 
the District Manager for approval proposed corrective actions to lower 
the concentration of respirable dust to within the applicable standard. 
Proposed (g)(3) would require that, upon approval by the District 
Manager, the operator implement the proposed corrective actions and 
then sample the affected occupation in the MMU on each normal 
production shift until five valid representative samples are taken. 
Proposed paragraph (g)(1) is consistent with existing Sec.  70.300. 
Proposed paragraphs (g)(2) and (g)(3) are derived from existing Sec.  
70.201 and are consistent with generally accepted occupational 
industrial hygiene principles. MSHA believes that if a citation is 
issued for a violation of the applicable standard, the operator must 
take action to protect miners, including making respiratory protection 
available, evaluating dust control measures, and implementing new 
measures, as necessary, to reduce miners' risks of dust exposure. 
Proposed paragraph (g) would assure that effective proposed corrective 
actions are reviewed by the District Manager and implemented by the 
operator in a timely manner.
    Proposed Sec.  70.207(h) is new and would establish that a citation 
for violation of the applicable standard will be terminated by MSHA 
when: (1) The equivalent concentration of each of the five valid 
operator abatement samples is at or below the applicable standard; (2) 
the operator submits revised dust control parameters as part of the 
mine ventilation plan applicable to the MMU; and (3) the District 
Manager approves the revised dust control parameters. The proposal also 
requires that the revised dust control parameters must reflect the 
control measures used to abate the violation. MSHA believes that when 
there is a violation of the applicable standard, the proposed provision 
would assure that the revised dust control parameters are appropriate 
and demonstrate that they effectively reduce concentrations of 
respirable dust on the MMU.
    Proposed Sec.  70.207(i) is new and would require that when the 
equivalent concentration of one or more valid samples collected by the 
operator under this section exceeds the applicable standard but is less 
than the ECV in Table 70-1, the operator must: (1) Make approved 
respirators available to affected miners in accordance with proposed 
Sec.  72.700; (2) take corrective

[[Page 64433]]

action to lower the respirable dust concentration to or below the 
applicable standard; and (3) record the corrective actions taken in the 
same manner as the records for hazardous conditions required by 
existing Sec.  75.363. MSHA believes these proposed requirements are 
necessary to prevent miners' overexposure to respirable dust and would 
provide improved protection for miners. Proposed paragraph (i)(1) is 
consistent with existing Sec.  70.300. MSHA believes that operators 
must take action to lower respirable dust concentrations to or below 
the applicable standard as would be required by proposed paragraph 
(i)(2) to assure that concentrations do not reach ECV levels, or a 
state of noncompliance. MSHA believes that the record required to be 
made under proposed (i)(3) would allow the Agency and mine operators to 
review the corrective actions taken and assist in determining whether 
the dust control parameters in the approved ventilation plan are 
adequate.
J. Section 70.208 Sampling of Mechanized Mining Units; Requirements 
When Using a CPDM
    Proposed Sec.  70.208 is new and would provide requirements on 
operator sampling of mechanized mining units when using a CPDM. It 
addresses: Occupations that must be sampled; frequency of sampling; 
actions to be taken when any end-of-shift concentration exceeds the 
applicable standard; actions to be taken when overexposures occur; and 
interim use of supplementary controls when all feasible engineering or 
environmental controls have been used.
    Proposed Sec.  70.208(a)(1) would require mine operators who use 
CPDMs to sample the DO in each MMU during each production shift, seven 
days per week (Sunday through Saturday), 52 weeks per year. The 
proposal would maintain MSHA's longstanding practice to require 
operators to sample the DO on each MMU because the DO is the occupation 
having the highest risk of dust exposure based on past MSHA sampling. 
The Agency considered, but rejected, retaining the operator's existing 
bimonthly sampling program, because MSHA believes that sampling DOs on 
every production shift, 7 days per week, 52 weeks per year is the most 
effective method of sampling to reduce miners' exposure to respirable 
coal mine dust. Both operators and miners would continually be aware of 
the dust conditions in the working environment and the effectiveness of 
dust controls. The proposal is consistent with comments on MSHA's RFI 
on CPDMs. Commenters supported CPDM sampling on DOs during all 
scheduled production shifts during the week. One commenter stated that 
the real-time sampling aspects of the CPDM provide the opportunity for 
more frequent sampling than is currently done.
    Proposed paragraph (a)(2) would require mine operators using CPDMs 
to sample ODOs specified in paragraphs (b)(1) through (b)(10) of this 
section in each MMU during each production shift for 14 consecutive 
days during each quarterly period. The proposal would establish the 
quarterly periods as: (1) January 1-March 31; (2) April 1-June 30; (3) 
July 1-September 30; and (4) October 1-December 31. ODOs to be sampled 
would be identified by the MSHA District Manager (DM), specified in the 
mine ventilation plan, and addressed in the CPDM Performance Plan. ODOs 
identified by the DM would be based on MSHA's historical sampling data 
on the MMU; sampling of ODOs, such as shuttle car operators on MMUs 
using blowing face ventilation, would be required because MSHA's data 
show that sampling only the DOs does not always adequately protect 
other miners in the MMU. In addition, sampling on each production shift 
for 14 consecutive days during the specified quarter would provide 
samples that are representative of typical normal mining activities 
during the production shifts. MSHA believes that under normal mining 
conditions, the MMU should be able to complete multiple mining cycles 
in 14 days. Sampling during the 14-day period would provide results of 
respirable dust concentrations in the ODO's work environment and allow 
MSHA to evaluate the effectiveness of the dust controls being used.
    The Agency solicits comment on which occupations should be sampled 
and the frequency that sampling should occur. Please be specific in 
your comments and include a detailed rationale.
    Some commenters on the CPDM RFI stated that MSHA should be 
responsible for the purchase of all CPDMs and all sampling for purposes 
of determining compliance with respirable dust standards. The Dust 
Advisory Committee recommended that MSHA should take full 
responsibility for compliance sampling at the number and frequency 
levels required of both operators and MSHA to ensure reliability of the 
program. The Committee also stated that MSHA should explore possible 
means to secure adequate funding for this effort without adversely 
impacting the remainder of the Agency's resources and responsibilities. 
To achieve this end, the Committee recommended that resource 
constraints should be overcome by mine operator funding for the 
incremental compliance sampling, including implementation of an 
operator fee program. The proposed rule does not include these 
suggestions and recommendations. Under existing standards and 
consistent with the Mine Act, mine operators are responsible for 
providing safe and healthful mines. Toward that end, they are 
responsible for ensuring that hazards from respirable coal mine dust 
are minimized or eliminated from the miners' work environment. 
Operators are responsible for compliance sampling, including purchase 
of approved sampling devices. MSHA believes that this is a reasonable 
statutory requirement and sound regulatory principle that must be 
maintained. Consistent with the existing operator sampling program, 
MSHA believes that operators have primary responsibility and are in the 
best position to provide miners with safe and healthy working 
conditions. Part of that responsibility includes sampling the working 
environment to assure that miners do not suffer material impairment of 
health or functional capacity from exposure to respirable dust.
    Proposed Sec.  70.208(b) would require that the CPDM must be worn 
by the miner assigned to perform the duties of the DO or ODO specified 
in paragraphs (b)(1) through (b)(10) for each type of MMU or specified 
by the DM for each type of MMU. The proposal would ensure accurate 
sampling by requiring the CPDM to remain on the miner performing the 
duties of the DO or ODO. If that miner's duties change during the 
shift, the CPDM must remain with the miner performing the duties of the 
DO or the ODO.
    Proposed paragraphs (b)(1) through (b)(10) would identify the DOs 
that would be sampled under paragraph (a)(1) and the ODOs specified by 
the DM that would be sampled under (a)(2) for each specified MMU.
    Paragraph (b)(1) would provide that on a conventional section using 
a cutting machine, the DO on the MMU would be the cutting machine 
operator.
    Paragraph (b)(2) would provide that on a conventional section 
shooting off the solid, the DO on the MMU would be the loading machine 
operator.
    Paragraph (b)(3) would provide that on a continuous mining section 
other than auger-type, the DO on the MMU would be the continuous mining 
machine operator or mobile bridge operator when using continuous 
haulage. The ODOs for this type of MMU would be the roof bolter 
operator who works nearest the working face on

[[Page 64434]]

the return air side of the continuous mining machine and the shuttle 
car operators on MMUs using blowing face ventilation. The DO would be 
sampled under paragraph (a)(1) and the ODOs would be sampled under 
paragraph (a)(2).
    Paragraph (b)(4) would provide that on a continuous mining section 
using auger-type machines, the DO on the MMU would be the jacksetter 
working nearest the working face on the return air side of the 
continuous mining machine.
    Paragraph (b)(5) would provide that on a scoop section using a 
cutting machine, the DO on the MMU would be the cutting machine 
operator.
    Paragraph (b)(6) would provide that on a scoop section, shooting 
off the solid, the DO on the MMU would be the coal drill operator.
    Paragraph (b)(7) would provide that on a longwall section, the DO 
on the MMU would be the longwall operator working on the tailgate side 
of the longwall mining machine sampled under paragraph (a)(1). The ODOs 
of the jack setters working nearest to the return side of the longwall 
working face, and the mechanics working on the longwall working face 
would be sampled under paragraph (a)(2).
    Paragraph (b)(8) would provide that on a loading section with a 
cutting machine, the DO on the MMU would be the cutting machine 
operator.
    Paragraph (b)(9) would provide that on a hand loading section 
shooting off the solid, the DO on the MMU would be the hand loader 
exposed to the greatest dust concentration.
    Paragraph (b)(10) would provide that on an anthracite mine section, 
the DO on the MMU would be the hand loader exposed to the greatest dust 
concentration.
    The Agency requests comments on the proposed locations for the use 
of CPDMs. Please be specific in your comments and include rationale for 
suggested alternatives.
    Proposed Sec.  70.208(c) is new and would require that when the 
respirable dust standard is changed in accordance with Sec.  70.101 
(Respirable dust standard when quartz is present), the new applicable 
standard would be effective on the first production shift following the 
operator's receipt of notification of such change from MSHA. The 
proposed provision is consistent with Agency policy and identical to 
proposed Sec.  70.207(c). The rationale for proposed Sec.  70.208(c) is 
the same as that for proposed Sec.  70.207(c), discussed elsewhere in 
the preamble.
    Proposed Sec.  70.208(d) would require that no valid end-of-shift 
equivalent concentration meet or exceed the ECV that corresponds to the 
applicable standard. The ECVs are listed in Table 70-2. As discussed 
elsewhere in the preamble related to proposed Sec.  70.207(e), each ECV 
is calculated to ensure that citations are issued only when a single 
sample measurement demonstrates, with at least 95-percent confidence, 
that the applicable dust standard has been exceeded. The rationale for 
proposed Sec.  70.208(d) is the same as that for proposed Sec.  
70.207(e), which is discussed elsewhere in the preamble.
    Proposed Sec.  70.208(e) would require that no weekly accumulated 
exposure (WAE) shall exceed the weekly permissible accumulated exposure 
(WPAE). The proposed terms ``weekly accumulated exposure'' and ``weekly 
permissible accumulated exposure'' are new and discussed elsewhere in 
the preamble under the Sec.  70.2 definitions. For example, suppose a 
CPDM reported an equivalent concentration of 1.46 mg/m\3\ for a miner 
who worked nine hours on Monday in the DO. Under the proposed 
definition of WAE, this quantity would be multiplied by 8 hours, 
yielding an accumulated exposure on Monday of 1.46 mg/m\3\ x 8 hours or 
11.68 mg-hr/m\3\. If the particular miner worked the rest of the week, 
including Saturday, the exposure accumulated during each of the other 
five shifts would be determined in the same manner. If the daily 
exposures accumulated by the DO for the week were recorded as follows: 
Monday--11.68 mg-hr/m\3\; Tuesday--12.51 mg-hr/m\3\; Wednesday--10.75 
mg-hr/m\3\; Thursday--9.68 mg-hr/m\3\; Friday--12.00 mg-hr/m\3\; 
Saturday--10.75 mg-hr/m\3\, adding together the daily accumulated 
exposures yields a WAE of 67.37 mg-hr/m\3\.
    To continue, if the applicable standard in the MMU is 1.5 mg/m\3\, 
this quantity would be multiplied by 40 hours, yielding a WPAE of 60 
mg-hr/m\3\ for the DO. Since the WAE for the DO is 67.37 mg-hr/m\3\, it 
would exceed the WPAE of 60 mg-hr/m\3\.
    Proposed paragraph (e) would assure that miner's respirable dust 
exposure for the work week would be limited to a calculated weekly 
permissible accumulated exposure for an equivalent 40-hour work week. 
This proposed paragraph is consistent with the NIOSH Criteria Document 
which recommended that respirable coal mine dust be limited to 1 mg/
m\3\ as a TWA concentration for up to 10 hr/day during a 40-hour work 
week.
    Proposed Sec.  70.208(f)(1) through (f)(5) would require the 
operator to take actions when any valid end-of-shift equivalent 
concentration meets or exceeds the ECV that corresponds to the 
applicable standard in Table 70-2, or a weekly accumulated exposure 
(WAE) exceeds the weekly permissible accumulated exposure (WPAE). The 
action would include making respirators available to affected miners, 
implementing corrective actions, submitting corrective measures to the 
DM for approval, recording the reported excessive dust conditions, and 
reviewing the adequacy of the approved CPDM Performance Plan. The 
proposal would ensure that operators take prompt actions to protect 
miners, evaluate their dust control measures, and implement new 
measures, as necessary, to reduce miners' excessive respirable dust 
exposure.
    Paragraph (f)(1) would require the operator to make approved 
respirators available to the affected miners in accordance with 
proposed Sec.  72.700. The proposal is consistent with existing Sec.  
70.300 which requires the operator to make respiratory equipment 
available to all persons exposed to excessive concentrations of 
respirable dust.
    Paragraph (f)(2) would require the operator to implement corrective 
actions to assure compliance with the applicable standard on the next 
and subsequent production shifts. Corrective actions would include, for 
example, engineering or environmental controls that control the level 
of respirable dust by (1) reducing dust generation at the source with 
the dust controls on the machine; (2) suppressing dust with water 
sprays, wetting agents, foams or water infusion; (3) using ventilation 
to dilute dust; (4) capturing dust with machine-mounted dust 
collectors; or (5) diverting dust being generated by the mining process 
with shearer clearer or passive barriers. MSHA believes that the 
proposal would protect miners' health because the operator would be 
required to review the dust control parameters, determine what factors 
may have contributed to the overexposures, and immediately take 
corrective actions starting on the next production shift. Commenters on 
the RFI on CPDMs supported taking corrective actions to correct 
overexposures when operators are using a CPDM.
    Paragraph (f)(3) would require the operator to submit the 
corrective actions implemented to lower the concentration of respirable 
dust to within the applicable standard as a proposed change to the 
approved ventilation plan to the District Manager for approval within 3 
days of determining that the applicable standard was exceeded. The 
District Manager would address the operator's submission through the

[[Page 64435]]

approval process associated with the mine ventilation plan under 
existing Sec.  75.370. The District Manager's review would assure that 
control measures in the plan would maintain respirable dust 
concentrations at or below the applicable standard so that 
concentrations would not approach the citable ECV levels. It would also 
assure improved protection for miners.
    Paragraph (f)(4) would require the operator to review the adequacy 
of the approved CPDM Performance Plan. If any CPDM Performance Plan 
revisions are needed, it would require the operator to submit proposed 
revisions to the District Manager for approval within 7 calendar days 
following posting of the applicable end-of-shift equivalent 
concentration or the weekly accumulated exposure on the mine bulletin 
board. MSHA believes that if an end-of-shift respirable dust 
concentration meets or exceeds an applicable ECV in Table 70-2, or a 
weekly accumulated exposure exceeds the weekly permissible accumulated 
exposure, the operator should be required to review the CPDM 
Performance Plan to determine whether revisions are necessary to 
prevent miners from being overexposed in the future. In addition, MSHA 
believes a 7-calendar day period is a reasonable amount of time for the 
operator to review and submit CPDM plan revisions for approval.
    Paragraph (f)(5) would require the operator to record the reported 
excessive dust condition as part of and in the same manner as the 
records for hazardous conditions required by existing Sec.  75.363. The 
proposal would require the record to include the following information: 
(i) Date of sampling; (ii) length of the sampled shift; (iii) location 
within the mine and the occupation where the sample was collected; (iv) 
the end-of-shift equivalent concentration, or weekly accumulated 
exposure and weekly permissible accumulated exposure; and (v) 
corrective action taken to reduce the concentration of respirable coal 
mine dust to or below the applicable standard. The record would provide 
necessary and useful information for operators, miners, and MSHA to be 
able to evaluate dust exposures, controls, and conditions in order to 
determine when and where corrective actions are necessary, and whether 
such conditions are recurring. In addition, this information would be 
critical to MSHA when requiring necessary changes to the operator's 
approved ventilation plan to ensure that suitable controls are in place 
to protect miners on each shift. Some commenters on the RFI on CPDMs 
supported recording of sampling results and corrective actions taken.
    Proposed Sec.  70.208(g) would require the operator to take 
actions, listed in paragraphs (g)(1) through (g)(4), before production 
begins on the next shift when a valid end-of-shift equivalent 
concentration exceeds the applicable standard but is less than the ECV 
that corresponds to the applicable standard in Table 70-2. Proposed 
Sec.  70.208(g)(1) and (g)(2) are identical to proposed Sec.  
70.208(f)(1) and (f)(2) and would require the operator to make 
respirators available to affected miners and implement corrective 
actions.
    Proposed Sec.  70.208(g)(3), like proposed Sec.  70.208(f)(5), 
would require the operator to record the reported excessive dust 
condition as part of and in the same manner as the records for 
hazardous conditions required by existing Sec.  75.363. Proposed 
paragraphs (g)(3)(i) through (g)(3)(iii), and (g)(3)(v), which specify 
information to include in the record, are identical to proposed 
paragraphs (f)(5)(i) through (f)(5)(iii), and (f)(5)(v). Proposed 
paragraph (g)(3)(iv) requires the record to include end-of-shift 
concentrations because paragraph (g) addresses only end-of-shift 
concentration measurements.
    Proposed paragraph (g)(4), like proposed paragraph (f)(4), would 
require the operator to review the adequacy of the approved CPDM 
Performance Plan. It would also require the operator to submit to the 
District Manager for approval any plan revisions to their CPDM 
Performance Plan within 7 calendar days following posting of the end-
of-shift equivalent concentration on the mine bulletin board. The 
rationale for this proposed provision is the same as for proposed 
paragraph (f)(4).
    Proposed paragraph (h) would provide that for the 24-month period 
following the effective date of the final rule, if an operator is 
unable to maintain compliance with the applicable standard for an MMU 
and the operator determines that all feasible engineering or 
environmental controls are being used on the MMU, the operator may 
request through the District Manager that the Administrator for Coal 
Mine Safety and Health approve, for a period not to exceed 6 months, 
the use of supplementary controls, including worker rotation, in 
conjunction with monitoring miners' exposures with CPDMs to reduce 
affected miners' dust exposure. When making such request, the operator 
would have to provide a report that: (1) Evaluates the specific 
situation in the MMU; (2) outlines all controls that will be used 
during this time period to prevent miners from being exposed to 
concentrations exceeding the applicable standard; (3) addresses the 
actions that will be taken to reduce miners' exposures through the use 
of engineering and environmental controls; and (4) establishes the time 
line for the implementation of the engineering and environmental 
controls. MSHA believes that the report submitted by the operator 
should be made by a knowledgeable mine employee such as an industrial 
hygienist, safety and health engineer, or other person with experience 
in respirable dust control. The District Manager would address the 
request through the approval process associated with the mine 
ventilation plan.
    Engineering controls, also known as environmental controls, are the 
most protective means of controlling dust generation at the source. To 
control respirable dust, MSHA requires engineering or environmental 
controls as the primary means of controlling respirable dust. This is 
consistent with the Mine Act and generally accepted industrial hygiene 
principles. Used in the mining environment, engineering controls work 
to reduce dust generation at the source, or suppress, dilute, divert, 
or capture the generated dust. Unlike administrative controls, well-
designed engineering controls or environmental controls provide 
consistent and reliable protection to all workers because the controls 
are not dependent on individual human performance, supervision, or 
intervention to function as intended. However, the proposal would allow 
limited short-term use of measures to supplement engineering or 
environmental controls to accommodate operators that may have 
difficulty meeting the applicable standards by the compliance dates 
that would be established by the final rule.
    Any approved use of supplementary controls would only be in effect 
for a period not to exceed 6 months. MSHA believes that a 6-month 
period is a reasonable time within which supplementary controls may be 
used. If approved, supplementary controls would be permitted until 
other feasible engineering or environmental controls are implemented or 
MSHA determines that the supplementary controls are no longer 
necessary. In addition, if an operator cannot meet the applicable 
standard after the 6-month period, the operator may make another 
request to use supplementary controls; however, the use of 
supplementary controls would not be permitted beyond the 24 months 
following the effective date of the final rule. MSHA believes that the 
24-month period allows operators sufficient time to implement 
engineering or environmental controls

[[Page 64436]]

to control respirable dust in the active workings of the mine 
atmosphere. MSHA specifically requests comments on the Agency's 
proposed approach to the use of supplementary controls, including any 
suggested alternatives, with supporting rationale.
K. Section 70.209 Sampling of Designated Areas
    Proposed Sec.  70.209 is derived from existing Sec.  70.208 and 
would address sampling of designated areas (DAs). It would revise 
existing Sec.  70.208 when operators use a CMDPSU and add new 
requirements when operators use a CPDM.
    Proposed Sec.  70.209 would apply initially to all DAs, but 
according to Sec.  70.201(b), after [date 18 months after the effective 
date of the final rule] or upon implementation of the use of CPDMs, DAs 
associated with an MMU would be redesignated as ODOs and would no 
longer be subject to the proposed sampling provisions of this section. 
However, proposed Sec.  70.209 would continue to apply to outby areas 
identified as DAs by the operator under proposed Sec.  75.371(t).
    Proposed Sec.  70.209(a) would revise existing Sec.  70.208(a) and 
require operators, who are using CMDPSUs or CPDMs, to sample each DA 
for five consecutive shifts every calendar quarter. The quarterly 
periods would be: (1) January 1-March 31; (2) April 1-June 30; (3) July 
1-September 30; and (4) October 1-December 31.
    Under the existing standard, operators are required to take one 
sample during the sampling period, with the potential under existing 
Sec.  70.208(c) that five additional samples must be collected to make 
a compliance determination. Proposed Sec.  70.209 would revise the 
existing standard to require the operator to take five DA samples on 
consecutive production shifts during the sampling period. One commenter 
on the CPDM RFI recommended less frequent CPDM sampling in outby areas, 
stating that historic sampling results indicate that exposure in outby 
areas is far lower than where coal is extracted. MSHA believes that, 
under the proposal, requiring operators to take five samples in a short 
period of time, such as consecutive production shifts, provides a 
better representation of the mining cycle and whether dust controls are 
effective in protecting miners who work in these areas. Since the five 
DA samples would provide a more accurate portrayal of mining activities 
and dust conditions, MSHA also believes it is reasonable to reduce the 
sampling period frequency from bimonthly to a quarterly basis.
    Proposed Sec.  70.209(b), (b)(1), and (b)(2) would apply when the 
respirable dust standard has been changed under proposed Sec.  70.101 
due to the presence of quartz.
    Proposed Sec.  70.209(b) is new and would require that when the 
applicable dust standard is changed in accordance with proposed Sec.  
70.101 (Respirable dust standard when quartz is present), the new 
applicable standard would be effective on the first production shift 
following the operator's receipt of notification of the change from 
MSHA. The proposal would provide increased health protection for miners 
by ensuring prompt implementation of the new applicable standard when 
quartz is present. The proposed provision is consistent with Agency 
policy and proposed Sec.  70.207(c), which is discussed elsewhere in 
the preamble. The rationale for proposed Sec.  70.209(b) is the same as 
that for proposed Sec.  70.207(c), discussed elsewhere in the preamble.
    Proposed Sec.  70.209(b)(1) is derived from existing Sec.  
70.208(b). Under the proposal, if all samples from a DA taken during 
the most recent quarterly sampling period do not exceed the new 
applicable standard, the operator would begin sampling of the DA on the 
first production shift during the next quarterly period following 
notification from MSHA of the change in the applicable standard. 
Proposed Sec.  70.209(b)(1) is consistent with Agency policy, existing 
Sec.  70.208(b), and proposed Sec.  70.207(c)(1), which is discussed 
elsewhere in the preamble.
    Proposed Sec.  70.209(b)(2) is new and would require that if any 
sample from the most recent quarterly sampling period exceeds the new 
applicable standard (reduced due to the presence of quartz), the 
operator must make necessary adjustments to the dust control parameters 
within three days, and then collect samples from the affected DA on 
consecutive shifts until five valid representative samples are 
collected. The samples would be treated as normal quarterly samples. 
Proposed Sec.  70.209(b)(2) is consistent with proposed Sec.  
70.207(c)(2). The rationale for proposed Sec.  70.209(b)(2) is the same 
as that for proposed Sec.  70.207(c)(2), which is discussed elsewhere 
in the preamble.
    Proposed Sec.  70.209(c) is new and would require that no valid 
single-shift equivalent concentration shall meet or exceed the ECV that 
corresponds to the applicable standard. Tables 70-1 and 70-2 list ECVs 
for operators using CMDPSUs or CPDMs, respectively. Proposed Sec.  
70.209(c) is consistent with proposed Sec.  70.207(e), and other 
proposed provisions in parts 71 and 90. The rationale for proposed 
Sec.  70.209(c) is the same as that for proposed Sec.  70.207(e), which 
is discussed elsewhere in the preamble.
    Proposed Sec.  70.209(d) would revise existing Sec.  70.208(d) and 
would require that upon issuance of a citation for a violation of the 
applicable standard, paragraph (a) (quarterly sampling) and (b)(2) 
(sampling when a respirable dust standard is changed due to quartz) 
would not apply to the DA until the violation is abated in accordance 
with proposed paragraph (e). Except for minor and conforming changes, 
the proposal would be essentially the same as the existing standard.
    Proposed Sec.  70.209(e) is new and would require the operator to 
take actions, listed in paragraphs (e)(1) through (e)(3), during the 
time for abatement fixed in a citation for violation of the applicable 
standard. Proposed (e)(1) would require the operator to make approved 
respirators available to affected miners in accordance with proposed 
Sec.  72.700. Proposed (e)(2) would require the operator to submit to 
the District Manager for approval proposed corrective actions to lower 
the concentration of respirable dust to within the applicable standard. 
Proposed (e)(3) would require that, upon approval by the District 
Manager, the operator implement the proposed corrective actions and 
then sample the affected DA on each production shift until five valid 
representative samples are taken. Proposed Sec.  70.209(e) is 
consistent with proposed Sec.  70.207(g). The rationale for proposed 
Sec.  70.209(e) is identical to that for proposed Sec.  70.207(g), 
which is discussed elsewhere in the preamble.
    Proposed Sec.  70.209(f) is new and would establish that a citation 
for violation of the applicable standard will be terminated by MSHA 
when: (1) The equivalent concentration of each of the five valid 
operator abatement samples is at or below the applicable standard; (2) 
the operator submits revised dust control parameters as part of the 
mine ventilation plan applicable to the DA; and (3) the District 
Manager approves the revised dust control parameters. The proposal also 
requires that the revised dust control parameters must reflect the 
control measures used to abate the violation. Proposed Sec.  70.209(f) 
and its rationale are identical to proposed Sec.  70.207(h), which is 
discussed elsewhere in the preamble.
    Proposed Sec.  70.209(g) would apply to operators who use CPDMs to 
sample DAs. It would require that operators take actions listed in 
paragraphs (g)(1)

[[Page 64437]]

through (g)(4), if a valid end-of-shift equivalent concentration 
exceeds the applicable standard but is less than the ECV that 
corresponds to the applicable standard in Table 70-2. Proposed Sec.  
70.209(g)(1) and (g)(2) would require the operator to make respirators 
available to affected miners and implement corrective actions. Proposed 
Sec.  70.209(g)(3) would require the operator to record the reported 
excessive dust condition as part of and in the same manner as the 
records for hazardous conditions required by existing Sec.  75.363. 
Proposed Sec.  70.209(g)(3)(i)-(g)(3)(v) specify the information to 
include in the record. Proposed Sec.  70.209(g)(4) would require the 
operator to review the adequacy of the approved CPDM Performance Plan. 
It would also require the operator to submit to the District Manager 
for approval any plan revisions to the CPDM Performance Plan within 7 
calendar days after posting of the end-of-shift equivalent 
concentration on the mine bulletin board. Proposed Sec.  70.209(g) and 
its rationale are identical to proposed Sec.  70.208(g), which is 
discussed elsewhere in the preamble.
    The proposed rule would make other minor changes to existing Sec.  
70.208. Existing Sec.  70.208(e) would be deleted because Sec.  75.371 
addresses where DA samples are collected. The proposed rule would 
redesignate without change existing Sec.  70.208(f), which addresses 
revocation of operators' mine ventilation plans, as proposed Sec.  
70.209(h).
L. Section 70.210 Respirable Dust Samples; Transmission by Operator
    Proposed Sec.  70.210, redesignated from existing Sec.  70.209, 
would revise requirements for the operator to transmit respirable dust 
sampling information collected by either a CMDPSU or CPDM. It would 
revise paragraphs (a) and (c) and add a new paragraph (f); paragraphs 
(b), (d) and (e) would remain the same.
    Proposed paragraph (a) would make a non-substantive change to 
clarify that it only applies to operators' transmission of samples 
collected with a CMDPSU.
    Proposed paragraph (c) would retain the existing requirement that 
only persons certified in sampling complete the dust data card provided 
by the manufacturer of the filter cassette. It would be revised to 
require that each dust data card be signed by the certified person who 
actually performed the sampling shift examinations. For example, under 
the proposal, the certified person who performs required sampling shift 
examinations would be responsible for signing the dust data card and 
verifying the proper flow rate, or noting on the back-side of the card 
that the proper flowrate was not maintained. Since the certified person 
who conducted the examination is the most knowledgeable of the 
conditions surrounding the examination, MSHA would require that person 
to sign the dust data card.
    Consistent with MSHA's existing policy, the proposal would also 
require that the person's signature on the data card include that 
person's MSHA Individual Identification Number (MIIN). Since July 1, 
2008, MSHA has required that the certified person section of the dust 
data card include the MIIN, a unique identifier, for the certified 
person, instead of the social security number. To assure privacy and to 
comport with Federal requirements related to safeguarding personal-
identifiable information, MSHA has eliminated use of social security 
numbers on its documents.
    Proposed paragraph (f) is new and would apply when operators use 
CPDMs to sample. It would require that, within 12 hours after the end 
of the last sampling shift of the work week, a designated mine official 
must validate, certify, and transmit electronically to MSHA all daily 
sample and error data file information collected during the previous 
calendar week (Sunday through Saturday) and stored in the CPDM. It 
would also require the operator to maintain all CPDM data files 
transmitted to MSHA for at least 12 months.
    Some commenters to the CPDM RFI stated that MSHA should be 
responsible for downloading all CPDM sampling data. MSHA has not 
included this suggestion in the proposal. Under the proposal, mine 
operators would download end-of-shift sampling information for weekly 
transmission to MSHA. Operators have the primary responsibility for 
providing miners with safe and healthy working conditions. Part of that 
responsibility includes sampling the working environment to assure that 
miners do not suffer material impairment of health or functional 
capacity from exposure to respirable dust. Data are stored in the CPDM 
memory for about 20 shifts. Operators, who would be in possession of 
CPDMs, would be in the best position to prevent data loss and to 
download and transmit CPDM data to MSHA in a timely manner.
    Some commenters to the CPDM RFI suggested various timeframes for 
operators' CPDM data transmission to MSHA, ranging from every shift, to 
every week, to at least once a month. MSHA believes that transmitting 
data every shift would be burdensome on operators and the Agency, with 
negligible potential benefit. Similarly, MSHA believes that monthly 
transmission is too infrequent, given the CPDM's limited memory 
capacity noted in the previous discussion. The proposal reflects a 
balance between MSHA's need for the data and a reasonable transmission 
schedule and would require weekly transmission of daily sampling and 
error data file information from the CPDM. The Agency solicits comment 
on an appropriate timetable for operators' transmission of CPDM data to 
MSHA. Please be specific in your comments and include rationale for 
your suggestions.
    Some commenters on the CPDM RFI recommended that the CPDM sampling 
data downloaded to MSHA should be incapable of alteration (i.e., read-
only). Proposed Sec.  70.210(f) would require that sampling data stored 
in the CPDM be sent to the MSHA internet portal. To be approved under 
MSHA's new part 74 final rule (75 FR 17512), the CPDM must be designed 
to prevent intentional tampering or inadvertent altering of monitoring 
results. The part 74 final rule requires that the CPDM have a safeguard 
or indicator which either prevents altering the measuring or reporting 
functions of the device or indicates if these functions have been 
altered.
M. Section 70.211 Respirable Dust Samples; Report to Operator; Posting
    Proposed Sec.  70.211, redesignated from existing Sec.  70.210, 
would address data contained in MSHA's report of respirable dust 
samples provided to operators. It would also address requirements for 
the operators' posting of sampling data. Proposed Sec.  70.211 would 
include non-substantive changes in paragraphs (a)(2) through (a)(4), 
and add a new paragraph (c). The other provisions would remain the 
same.
    Proposed paragraph (a)(2) would replace the language ``mechanized 
mining unit or designated area'' with ``locations'' to assure that all 
areas where samples are taken in the mine would be included (i.e., DOs, 
ODOs, and DAs).
    Proposed paragraphs (a)(3) and (a)(4) would include conforming 
changes by adding that the concentration of respirable dust be 
expressed ``as an equivalent concentration.'' The changes are 
consistent with other proposed provisions that specify that the 
concentration of respirable coal mine dust is converted to and 
expressed as an 8-hour equivalent concentration.
    Proposed paragraph (c) is new and would apply to operators who use 
a CPDM. It would require the designated

[[Page 64438]]

mine official to validate, certify, and post certain sampling 
information on the mine bulletin board. Proposed paragraph (c)(1) would 
require the designated mine official to post the daily end-of-shift 
sampling results within 1 hour after the end of the sampling shift. The 
daily posting must include the: Mine identification number; location in 
the mine from which samples were taken; respirable dust concentration 
expressed as an equivalent concentration for each valid sample; total 
amount of exposure accumulated by the sampled occupation during the 
shift; occupation code, where applicable; reason for voiding any 
sample; and shift length. This information, similar to that required 
under existing Sec.  70.210, would provide miners with sampling and 
exposure information for the shift. Under the proposal, the District 
Manager could require any other information, such as the person 
responsible for sampling during the shift and unique mining activities 
(e.g., retreat mining, and cutting overcast).
    Proposed paragraph (c)(2) would require the designated mine 
official to post the weekly accumulated exposure (WAE) and the weekly 
permissible accumulated exposure (WPAE) for each occupation and for 
each crew within two hours after the end of the last sampling shift of 
a work week (Sunday through Saturday). If an operator employs multiple 
crews on a single MMU, the proposal would require that the WAE and WPAE 
for each crew be posted. Posting the WAE and WPAE would provide miners 
with the total amount of coal mine dust accumulated during the work 
week, as well as the maximum amount of accumulated exposure to coal 
mine dust permitted to be received during a normal work week. Posting 
these data would assure that miners are informed of their weekly 
exposure levels so that they can take a proactive role in their health 
protection.
    Proposed paragraph (c)(3) would require the information to be 
posted for at least 15 calendar days. In response to the CPDM RFI, some 
commenters suggested that the information be posted for 31 days. One 
commenter stated that the information should be available to any 
interested party, should be posted for 31 days and available thereafter 
on request. Some commenters stated that MSHA should develop a standard 
format for reporting data. Since the CPDM would generate daily and 
weekly reports, the Agency believes that 15 days is an adequate amount 
of time to assure that all affected miners would be informed of their 
daily and weekly exposure levels. MSHA is concerned that requiring 
daily and weekly reports to be posted for 31 days would cause the mine 
bulletin board to become cluttered, making it difficult for miners to 
sort through the data. The Agency requests comment on an appropriate 
amount of time for posting and a standard format for reporting data. 
Please be specific in your comments and include rationale for your 
suggestions.
N. Section 70.212 Status Change Reports
    Proposed Sec.  70.212, redesignated from existing Sec.  70.220, 
would revise paragraph (a) and add a new paragraph (c). Paragraph (b) 
would remain the same.
    Proposed paragraph (a) would provide operators the option of 
reporting to MSHA changes in operational status of the mine, MMU, or DA 
electronically instead of in writing.
    Proposed paragraph (c) is new and would require the designated mine 
official to report status changes that affect the operational readiness 
of any CPDM within 24 hours after the status change has occurred. 
Examples could include a malfunction or breakdown of a CPDM that is 
needed for sampling, or failure to have a spare CPDM available for 
required sampling. Since MSHA would rely on data provided by the CPDM 
to evaluate dust controls and to assure that miners are not exposed to 
excessive levels of respirable coal mine dust, the Agency would need to 
be informed of any circumstances that would affect the operational 
readiness of CPDMs.

30 CFR Part 71

A. Section 71.2 Definitions
    The proposed definitions, approved sampling device, CMDPSU, CPDM, 
equivalent concentration, and quartz, are the same as proposed part 70 
definitions discussed elsewhere in the preamble related to proposed 
Sec.  70.2.
Designated Work Position (DWP)
    The proposal would revise the existing definition of designated 
work position (DWP) to mean a work position at a surface area of a coal 
mine required to be sampled under this standard. Consistent with Agency 
policy, the proposed definition would require that the DWP designation 
consist of a four-digit surface area number assigned by MSHA 
identifying the specific physical portion of a surface coal mine or 
surface area of an underground mine that is affected, and a three-digit 
MSHA coal mining occupation code describing the location to which a 
miner is assigned in the performance of his or her regular duties.
Representative Samples
    The proposal would add a new definition for representative samples. 
It would be defined as respirable dust samples that reflect typical 
dust concentration levels in the working environment of the DWP when 
the miner is performing normal duties.
    MSHA would consider that ``typical dust concentration levels'' are 
present during sampling if they approximate and are characteristic of 
the DWP's dust concentration levels during periods of non-sampling. 
Under the proposed rule, samples must be taken while the DWP is engaged 
in normal work duties.
    The proposed definition would be added to ensure that operators 
conduct dust sampling when working conditions accurately represent 
miners' dust exposures. This would allow operators and MSHA to more 
effectively evaluate the performance of dust controls and the adequacy 
and effectiveness of operators' approved plans.
Work Position
    The proposal would make a non-substantive change by adding the term 
``three-digit'' to the existing definition of work position. The 
proposal is consistent with the Agency's practice of identifying the 
specific position being sampled. The proposed change would ensure that 
MSHA can properly correlate each dust sample with the work location, 
position and shift from which it was obtained.
B. Section 71.100 Respirable Dust Standards
    The proposed rule would, over a phase-in period, lower the 
concentration limit for respirable coal mine dust for surface coal 
mines and for surface work areas of underground coal mines.
    Proposed paragraph (a) would retain the existing requirement that 
mine operators continuously maintain the average concentration of 
respirable dust in the mine atmosphere during each shift to which each 
miner in the active workings of each mine is exposed at or below 2.0 
mg/m\3\ of respirable dust.
    Proposed paragraphs (b) through (d) are new and would require mine 
operators to lower dust levels, over a 24-month phase-in period, from 
the existing level of 2.0 mg/m\3\ of air to 1.0 mg/m\3\. MSHA solicits 
comment on the proposed phase-in periods and requests that a detailed 
rationale accompany any comment or recommendation that is submitted.
    Proposed Sec.  71.100(a) through (d) are identical to proposed 
Sec.  70.100(a)(1) through (a)(4) and the rationale is

[[Page 64439]]

discussed elsewhere in the preamble related to proposed Sec.  
70.100(a)(1) through (a)(4).
C. Section 71.101 Respirable Dust Standard When Quartz is Present
    Proposed Sec.  71.101 would be identical to proposed Sec.  70.101, 
discussed elsewhere in this preamble.
D. Section 71.201 Sampling; General and Technical Requirements
    The proposed rule would revise operator sampling requirements in 
existing Sec.  71.201.
    Proposed paragraph (a) would make a nonsubstantive change to 
existing Sec.  71.201(a) to clarify that the respirable dust samples 
taken in the active workings be ``representative samples''. The term 
``representative samples'' is discussed elsewhere in the preamble 
related to definitions.
    Proposed paragraph (b) would retain the existing requirement that 
sampling devices be worn or carried directly to and from the DWP to be 
sampled. It would revise the existing standard to require that sampling 
devices remain with the DWP and be operational during the entire shift, 
even when the shift exceeds 8 hours (extended shift). This would 
include the time spent in the DWP and while traveling to and from the 
DWP being sampled. Proposed Sec.  71.201(b) is consistent with proposed 
Sec.  70.201(e); however, the language in proposed Sec.  71.201(b) 
would be tailored to apply to DWPs. The rationale for the proposed 
provision is the same as that in proposed Sec.  70.201(e), which is 
discussed elsewhere in the preamble.
    Proposed paragraph (b)(1) is new and would address work shifts 
longer than 12 hours. It would require that when using a CMPDSU and the 
work shift to be sampled is longer than 12 hours, the operator would 
have to switch-out the unit's sampling pump prior to the 13th hour of 
operation. Proposed Sec.  71.201(b)(1) is the same as proposed Sec.  
70.201(e)(1).
    Proposed paragraph (b)(2) is new and would add a similar 
requirement to address work shifts longer than 12 hours when operators 
use CPDMs. It would require the operator to switch-out the CPDM with a 
fully charged device prior to the 13th-hour of operation. Proposed 
paragraph (b)(2) is the same as proposed Sec.  70.201(e)(2). The 
rationale for proposed Sec.  71.201(b)(1) and (b)(2) is discussed 
elsewhere in the preamble related to proposed Sec.  70.201(e)(1) and 
(e)(2).
    Proposed paragraphs (c)(1) through (c)(4) are new and would 
require: The mine operator to use one control filter for each shift of 
sampling when a CMDPSU is used; each control filter to have the same 
pre-weight date (noted on the dust data card) as the filters used for 
sampling; each control filter to remain plugged at all times; each 
control filter to be exposed to the same time, temperature, and 
handling conditions as the filter used for sampling; and that each 
control filter be kept together with the exposed samples after 
sampling. Proposed Sec.  71.201(c)(1) through (c)(4) are identical to 
proposed Sec.  70.201(f)(1) through (f)(4) and the rationale is 
discussed elsewhere in the preamble related to proposed Sec.  
70.201(f).
    The proposed rule would revise and move existing Sec.  71.201(d) to 
proposed Sec.  71.207(k), which would apply to operators who use a 
CMDPSU or a CPDM for sampling DWPs. Proposed Sec.  71.207(k) is 
discussed elsewhere in the preamble.
    Proposed paragraph (d) is new and would require the operator to 
make a record showing the length of each normal work shift for each 
DWP, retain the records for at least six months, and make them 
available for inspection by authorized representatives of the Secretary 
and the miners' representative. Mine operators would need to know the 
length of the normal work shift to determine the equivalent 
concentration. MSHA would use these records to verify that operators 
are accurately recording the normal work shift lengths so that miners 
are not being overexposed.
    Proposed paragraph (e), redesignated from existing paragraph (c), 
would be revised to require that, upon request from the District 
Manager, the operator would submit the date and time any respirable 
dust sampling would begin. This information would have to be submitted 
to the District Manager at least 48 hours prior to scheduled sampling. 
The proposed 48-hour notification requirement would provide the Agency 
the opportunity to observe and monitor operator sampling, which would 
ensure that both operating conditions and sampling requirements are 
met.
    Proposed paragraphs (f)(1) through (f)(2), redesignated from 
existing (e)(1) and (e)(2), retain the existing requirements.
    Proposed paragraph (g) is new and would require mine operators 
using CPDMs to provide training to all miners expected to wear one. 
This would include each highwall drill operator, bulldozer operators, 
and other work positions determined by results of respirable dust 
samples to have the greatest respirable dust concentration. Proposed 
Sec.  71.201(g) is the same as proposed Sec.  70.201(j) and the 
rationale is discussed elsewhere in the preamble related to proposed 
Sec.  70.201(j). In addition, proposed paragraphs (g)(1)-(5), which are 
identical to proposed Sec.  70.201(j)(1)-(5), would establish the CPDM 
training that would be required. The rationale, discussed elsewhere in 
the preamble, is the same for both.
    Proposed paragraph (h) is new and would require mine operators to 
maintain a record of training at the mine site for two years following 
completion of training. MSHA believes it is important to retain these 
records to verify that the required training has been provided. 
Proposed paragraph (h) would also permit a mine operator to maintain 
the record at another location as long as the record could be 
immediately accessed electronically from the mine site. Finally, 
proposed paragraph (h) would require that upon request by an authorized 
representative of the Secretary, Secretary of HHS, or miners' 
representative, the mine operator must promptly provide access to any 
such training record. Proposed Sec.  71.201(h) is the same as proposed 
Sec.  70.201(k) and the rationale is discussed elsewhere in the 
preamble related to proposed Sec.  70.201(k).
E. Section 71.202 Certified Person; Sampling and Sec.  71.203 Certified 
Person; Maintenance and Calibration
    Proposed Sec. Sec.  71.202 and 71.203 would be identical to 
proposed Sec. Sec.  70.202 and 70.203, discussed elsewhere in this 
preamble.
F. Section 71.204 Approved Sampling Devices; Maintenance and 
Calibration
    Proposed Sec.  71.204 would be identical to proposed Sec.  70.204, 
discussed elsewhere in this preamble.
G. Section 71.205 Approved Sampling Devices; Operation; Air Flowrate
    Proposed Sec.  71.205 would be identical to proposed Sec.  70.205 
with one exception. The last sentence of proposed Sec. Sec.  
70.205(b)(1) is not included in proposed Sec.  71.205 since it applies 
to underground areas of anthracite coal mines. The rationale for 
proposed Sec.  71.205 is the same as that for proposed Sec.  70.205, 
which is discussed elsewhere in the preamble.
H. Section 71.206 CPDM Performance Plan
    Proposed Sec.  71.206 would be identical to proposed Sec.  70.206, 
discussed elsewhere in this preamble, with one exception. Proposed 
Sec.  71.206(b)(1) would require the Plan to include the designated 
work positions (DWPs) that would be sampled, and each DWP would be 
required to be identified by a

[[Page 64440]]

unique 9-digit number. Though the 9-digit identification number would 
be determined similarly to the identification number that would be 
required for each MMU occupation in underground mines, it would be 
modified to account for the operation of surface mines.
I. Section 71.207 Sampling of Designated Work Positions
    Proposed Sec.  71.207 is derived from existing Sec.  71.208 and 
would address sampling of designated work positions (DWPs) when using a 
CMDPSU or CPDM.
    Proposed Sec.  71.207(a) would revise existing Sec.  71.208(a) and 
require operators, who are using CMDPSUs or CPDMs, to take one sample 
every calendar quarter from the working environment of each DWP. The 
quarterly periods would be: (1) January 1-March 31; (2) April 1-June 
30; (3) July 1-September 30; and (4) October 1-December 31. Like the 
existing rule, the proposal would require that one valid sample be 
taken from each DWP. It would require that each sample be a 
``representative sample,'' and would no longer include the term 
``respirable dust sample.'' The term representative sample is new and 
is discussed elsewhere in this preamble in proposed Sec.  71.2 related 
to definitions. The proposed change to include a representative sample 
would offer greater protection for miners since it would provide a more 
accurate portrayal of miners' respirable dust exposure. The proposed 
rule would reduce the existing DWP sampling frequency from bimonthly to 
quarterly. However, as discussed below for proposed paragraph (b), the 
proposal would require operators to sample an increased number of DWPs, 
which are associated with higher dust concentrations, at a frequency to 
assure that all miners in those positions are protected.
    Proposed Sec.  71.207(b) is new and would require operators to 
collect DWP samples at designated locations to measure respirable dust 
generation sources in the active workings. The proposal would require 
that DWP samples be collected from the following positions: each 
highwall drill operator (MSHA occupation code 384); bulldozer operators 
(MSHA occupation code 368); and other work positions designated by the 
District Manager for sampling in accordance with proposed Sec.  
71.207(f). The proposal would require that each highwall drill operator 
be sampled since historical sampling data and MSHA experience indicate 
that these positions have the greatest potential of being overexposed 
to respirable quartz and respirable coal mine dust. Bulldozer operators 
would be DWPs since they have similar risks and need additional 
protection. Under circumstances specified in proposed Sec.  71.207(c), 
discussed below, some bulldozer operators could be exempt from sampling 
requirements. Also, the District Manager could designate other work 
positions for sampling in accordance with proposed Sec.  71.207(f) 
discussed below. MSHA believes that the proposed rule would provide 
improved health protection for miners in work positions that have 
increased risks of overexposure to respirable dust and quartz.
    Proposed Sec.  71.207(c) is new and would require operators with 
multiple work positions specified in paragraphs (b)(2) (bulldozer 
operators) and (b)(3) (other work positions) to sample the DWP exposed 
to the greatest respirable dust concentration in each work position 
performing the same activity or task at the same location and exposed 
to the same dust generation source. MSHA recognizes that some bulldozer 
operator positions, or other work positions designated by the District 
Manager, may have variable respirable dust exposure. In those cases, 
the proposal would require the operator to sample only the DWP exposed 
to the greatest respirable dust concentration. For example, if two 
bulldozer operators push overburden at the same location, the operator 
would sample the bulldozer operator exposed to the greatest 
concentration of respirable dust. MSHA believes this would assure that 
other miners performing similar tasks at the same location are 
protected from excessive dust exposure. Also, if some bulldozer 
operators push overburden and others perform reclamation work, the mine 
operator would be required to sample one bulldozer operator pushing 
overburden and one bulldozer operator performing reclamation work. MSHA 
would not accept a respirable dust sample for the designated bulldozer 
operator performing reclamation work as a representative sample of the 
working environment for all bulldozer operators.
    Proposed Sec.  71.207(c) would also require operators to provide 
the District Manager with a list identifying the specific bulldozer 
operator positions and other work positions under proposed Sec.  
71.207(b)(2) and (b)(3) that will be sampled. The proposed timeframes 
for submitting the lists would be: (1) Active mines--by [date 60 days 
after publication of final rule]; (2) New mines--30 calendar days of 
mine opening; or (3) Changes in operational status that increase or 
reduce the number of active DWPs--within 7 calendar days. The proposed 
rule would require the lists be submitted to the District Manager to 
assure that the appropriate DWPs are identified for sampling. MSHA 
believes that the proposal would provide operators with sufficient time 
to identify and submit to the Agency the lists of DWPs to be sampled.
    Proposed Sec.  71.207(d), redesignated from existing Sec.  
71.208(h), would retain the requirement that DWP samples be taken on a 
normal work shift and that when a normal work shift is not achieved, 
the dust data card transmitted to MSHA must include a notation to that 
effect. The proposal would include a new requirement that certified 
persons must place the notation on the back side of the dust data card. 
MSHA experience indicates that operators do not always put the notation 
on the card in a conspicuous location, which increases the likelihood 
that this important information can be overlooked. The proposed 
revision is consistent with proposed Sec.  70.205(b)(2) and Agency 
policy.
    Proposed Sec.  71.207(d) would continue to allow MSHA to void a DWP 
sample if a normal work shift is not achieved. It would delete the 
existing requirement that any sample greater than 2.5 mg/m\3\ be used 
when a normal work shift is not achieved. Instead, the proposal would 
require that, if any sample exceeds the applicable standard by at least 
0.1 mg/m\3\, regardless of whether or not a normal work shift was 
achieved, the sample would be used to determine compliance with the 
applicable standard. The proposed provision is similar to proposed 
Sec.  70.207(d). The rationale for proposed Sec.  71.207(d) is the same 
as for proposed Sec.  70.207(d), which is discussed elsewhere in the 
preamble.
    Proposed Sec.  71.207(e), redesignated from existing Sec.  
71.208(g), would include a minor, nonsubstantive change.
    Proposed Sec.  71.207(f), redesignated from existing Sec.  
71.208(e), would allow the District Manager to designate additional 
work positions for sampling where a concentration of respirable dust 
exceeding 50 percent of the applicable standard has been measured by 
one or more MSHA samples. Example: Suppose the applicable standard is 
1.5 mg/m\3\ and MSHA samples taken for a work position at a surface 
mine show respirable dust concentrations of 0.8 and 1.0 mg/m\3\. Both 
samples exceed 0.75 mg/m\3\, which is 50% of the applicable standard. 
Since the sampling results are at levels of concern, it is reasonable 
for the District Manager to designate the position as a DWP. The

[[Page 64441]]

proposal would assure the work environments of miners in these 
positions are sampled so that operators can determine if dust controls 
are adequate and that miners are sufficiently protected. The proposal 
is consistent with existing Sec.  71.208(e) which requires District 
Managers to designate for sampling each work position where the average 
concentration of respirable dust exceeds 1.0 mg/m\3\, which is 50% of 
the existing standard.
    Proposed Sec.  71.207(f) would also revise existing Sec.  71.208(e) 
and provide that if the respirable dust standard is reduced in 
accordance with proposed Sec.  71.101 to a level below the respirable 
dust standard under proposed Sec.  71.100 (reduced standard due to 
quartz), the District Manager may designate additional work positions 
for sampling where the respirable dust concentration from one or more 
MSHA samples exceeds the new (reduced) applicable standard. For 
example: If based on samples from a work position, the respirable dust 
standard is reduced due to quartz from 1.5 mg/m\3\ to 1.2 mg/m\3\ and 
one or more MSHA samples for the position exceed 1.2 mg/m\3\, the 
proposal would allow the District Manager to designate the work 
position as a DWP. The proposal would improve miners' health and assure 
that operators would be required to routinely sample work positions 
that have increased health risks due to respirable quartz.
    Proposed Sec.  71.207(g), redesignated from existing Sec.  
71.208(f) would provide that, upon finding that the operator is able to 
maintain continuing compliance with the applicable standard, the 
District Manager may withdraw a DWP designated for sampling under 
proposed paragraph (f) from sampling. Under the existing standard, the 
District Manager must withdraw the designation of a work position for 
sampling when such a finding is made. In both the existing and proposed 
rules, the District Manager's finding is based on the results of MSHA 
and operator samples taken during at least a one-year period. MSHA 
believes that requiring the withdrawal of the work position from 
sampling does not protect miners who are assigned duties that have 
temporarily kept them from high dust exposures since assigned duties in 
surface work positions, including truck drivers and front end loaders, 
can change. Under the proposal, the District Manager would have 
discretion to evaluate the potential duties of the DWP, and mining 
conditions, to determine whether the DWP should be withdrawn from 
sampling requirements.
    Proposed Sec.  71.207(h), (h)(1), and (h)(2) would apply when the 
respirable dust standard has been changed under proposed Sec.  71.101 
due to the presence of quartz.
    Proposed Sec.  71.207(h) is new and would require that when the 
applicable dust standard is changed in accordance with proposed Sec.  
71.101 (Respirable dust standard when quartz is present), the new 
applicable standard would be effective on the first normal work shift 
following the operator's receipt of notification of the change from 
MSHA. The proposal would provide increased health protection for miners 
by ensuring prompt implementation of the new applicable standard when 
quartz is present. The proposed revision is consistent with Agency 
policy and proposed Sec.  70.207(c), which is discussed elsewhere in 
the preamble.
    Proposed Sec.  71.207(h)(1) is derived from existing Sec.  
71.208(b). Under the proposal, if all samples for the DWP from the most 
recent quarterly sampling period do not exceed the new applicable 
standard, the operator would begin sampling of the DWP on the first 
normal work shift during the next quarterly period following 
notification from MSHA of the change in the applicable standard. 
Proposed Sec.  71.207(h)(1) is also consistent with Agency policy and 
proposed Sec.  70.207(c)(1), which is discussed elsewhere in the 
preamble.
    Proposed Sec.  71.207(h)(2) is new and would require that if any 
sample from the most recent quarterly sampling period exceeds the new 
applicable standard (reduced due to the presence of quartz), the 
operator must make necessary adjustments to the dust control parameters 
within three days, and then collect a sample from the affected DWP on a 
normal work shift. The sample would be treated as a normal quarterly 
sample. MSHA believes that operators should take prompt actions to 
reduce the dust levels when the new applicable standard is exceeded and 
that three days is a reasonable amount of time to do so. Under the 
proposed rule, the additional sample would allow operators to make a 
timely determination as to whether dust controls are working 
effectively. Proposed Sec.  71.207(h)(2) would afford additional 
protection for miners who need to be on a reduced standard.
    Proposed Sec.  71.207(i) is new and would require that no valid 
single-shift equivalent concentration shall meet or exceed the ECV that 
corresponds to the applicable standard. Tables 71-1 and 71-2 list ECVs 
for operators using CMDPSUs or CPDMs, respectively. Proposed Sec.  
71.207(i) is consistent with proposed Sec.  70.207(e), which would 
apply when CMDPSUs are used, and Sec.  70.208(d), which would apply 
when CPDMs are used. The rationale for the proposed provision is the 
same as that for proposed Sec. Sec.  70.207(e) and 70.208(d), which are 
discussed elsewhere in the preamble.
    Proposed Sec.  71.207(j), redesignated from existing Sec.  
71.208(d), would require that upon issuance of a citation for a 
violation of the applicable standard, paragraphs (a) (quarterly 
sampling) and (h)(2) (sampling when a respirable dust standard is 
changed due to quartz) would not apply to the DWP until the violation 
is abated in accordance with proposed paragraph (k). Except for minor, 
nonsubstantive changes, the proposal would be essentially the same as 
the existing standard. The proposal would also make conforming changes 
to replace references to paragraphs that have been redesignated.
    The proposed rule would redesignate and revise existing Sec.  
71.201(d) as proposed Sec.  71.207(k), and would require operators to 
take actions, listed in proposed paragraphs (k)(1) through (k)(4), 
during the time for abatement fixed in a citation for violation of the 
applicable standard.
    Proposed paragraph (k)(1) would require operators to make approved 
respirators available to the affected miners in accordance with 
proposed Sec.  72.700. The proposal is consistent with existing Sec.  
70.300, which requires operators to make respiratory equipment 
available to all persons exposed to respirable dust concentrations 
exceeding levels required to be maintained. Proposed Sec.  71.207(k)(1) 
is consistent with proposed Sec.  70.207(g)(1). The rationale for 
proposed Sec.  71.207(k)(1) is the same as that for proposed Sec.  
70.207(g)(1), which is discussed elsewhere in the preamble.
    Proposed paragraph (k)(2) would require operators to submit to the 
District Manager for approval proposed corrective actions to lower the 
concentration of respirable dust to within the applicable standard. 
Proposed paragraph (k)(3) would require that, upon approval by the 
District Manager, operators must implement corrective actions and then 
sample the affected DWP on each normal work shift until five valid 
representative samples are taken. Proposed paragraphs (k)(2) and (k)(3) 
are derived from existing Sec.  71.201(d) and are consistent with 
generally accepted occupational industrial hygiene principles. MSHA 
believes that if a citation is issued for a violation of the applicable 
standard, operators must take action to protect miners, including 
making respiratory protection available, evaluating dust

[[Page 64442]]

control measures, and implementing new measures, as necessary, to 
reduce miners' risks of dust exposure.
    Proposed paragraph (k)(4) would require operators to review the 
adequacy of the approved CPDM Performance Plan. If any CPDM Performance 
Plan revisions are needed, it would require operators to submit 
proposed revisions to the District Manager for approval within 7 
calendar days following posting of the applicable end-of-shift 
equivalent concentration on the mine bulletin board. MSHA believes that 
when the respirable dust concentration meets or exceeds an applicable 
ECV, the operator should be required to review the CPDM Performance 
Plan to determine whether revisions are necessary to prevent miners 
from being overexposed in the future. In addition, MSHA believes a 7-
calendar day period is a reasonable amount of time for the operator to 
review and submit CPDM plan revisions for approval. This proposed 
provision is consistent with proposed Sec.  70.208(f)(4) which would 
apply when operators use a CPDM.
    MSHA believes that proposed Sec.  71.207(k)(2)-(4) would assure 
that effective proposed corrective actions are reviewed by the District 
Manager and implemented by operators in a timely manner.
    Proposed Sec.  71.207(l) is new. It would allow MSHA to terminate a 
violation of the applicable standard when: (1) The equivalent 
concentration of each of the five valid operator abatement samples is 
at or below the applicable standard; and (2) within 15 calendar days 
after receipt of MSHA's sampling results, the operator submits to the 
District Manager for approval a proposed dust control plan applicable 
to the DWP, or proposed changes to the approved dust control plan, as 
prescribed in proposed Sec.  71.300. The proposal also would require 
that proposed plan parameters or proposed changes reflect the control 
measures used to abate the violation. The proposed provision is 
consistent with proposed Sec. Sec.  70.207(h), 70.209(f), and 
90.208(f). MSHA believes that 15 calendar days is a reasonable amount 
of time for the operator to prepare and submit a dust control plan or 
changes to that plan. The proposal would assure that dust control 
parameters in the approved dust control plan for the DWP are 
appropriate and demonstrate that they effectively reduce concentrations 
of respirable dust.
    The proposed rule would redesignate existing Sec.  71.208(c) as 
proposed Sec.  71.207(m). Proposed Sec.  71.207(m) would remain 
essentially the same as existing Sec.  71.208(c), with minor changes. 
Like the existing standard, proposed Sec.  71.207(m) would apply to 
operators who use a CMDPSU to meet DWP sampling requirements. If MSHA 
notifies the operator that a valid representative sample taken from a 
DWP exceeds the applicable standard but is less than the ECV that 
corresponds to the applicable standard in Table 71-1, the operator 
would be required, within 15 calendar days of notification, to sample 
the DWP until five valid representative samples are collected. The term 
``representative sample'' is new and discussed elsewhere in the 
preamble related to definitions in proposed Sec.  71.2. Also, the 
proposal would require that operators begin sampling on the first 
normal work shift following receipt of MSHA's notification and that 
samples be evaluated to determine compliance with the applicable 
standard for the sampling period.
    Proposed Sec.  71.207(n) is derived from existing Sec.  71.208(c) 
and would apply to operators who use a CPDM to meet the DWP quarterly 
sampling requirements under proposed paragraph (a). Proposed paragraph 
(n)(1) is similar to proposed paragraph (m). It would require the 
operator to sample the DWP until five valid representative samples are 
collected when a valid end-of-shift equivalent concentration exceeds 
the applicable standard but is less than the ECV that corresponds to 
the applicable standard in Table 71-2. Sampling would be required to 
begin on the first normal work shift after the operator determines that 
the applicable standard is exceeded and the samples would be evaluated 
to determine compliance with the applicable standard for the sampling 
period. The rationale for sampling under proposed paragraph (n)(1) is 
the same as that for proposed paragraph (m).
    Proposed paragraph (n)(2) is new and would require the operator to 
review the adequacy of the approved CPDM Performance Plan. If any CPDM 
Performance Plan revisions are needed, it would require the operator to 
submit proposed revisions to the District Manager for approval within 7 
calendar days following posting of the end-of-shift equivalent 
concentration on the mine bulletin board. MSHA believes that if an end-
of-shift respirable dust concentration meets or exceeds an applicable 
ECV, the operator should be required to review the CPDM Performance 
Plan to determine whether revisions are necessary to prevent miners 
from being overexposed in the future. A 7-calendar day period is a 
reasonable amount of time for the operator to review and submit CPDM 
plan revisions for approval. This proposed provision is consistent with 
proposed Sec. Sec.  70.208(g)(4), 70.209(g)(4), and 90.209(f)(4).
J. Section 71.208 Respirable Dust Samples; Transmission by Operator
    Proposed Sec.  71.208, redesignated from existing Sec.  71.209, 
would revise requirements for the operator to transmit respirable dust 
sampling information collected by either a CMDPSU or CPDM. It would 
revise paragraphs (a) and (c) and add a new paragraph (f); paragraphs 
(b), (d), and (e) would remain the same.
    Proposed paragraph (a) would make a non-substantive change to 
clarify that it only applies to operators' transmission of samples 
collected with a CMDPSU.
    Proposed paragraph (c) would retain the existing requirement that 
only persons certified in sampling complete the dust data card provided 
by the manufacturer of the filter cassette. It would be revised to 
require that each dust data card be signed by the certified person who 
actually performed the sampling shift examinations. Consistent with 
MSHA's existing policy, the proposal would also require that the 
person's signature on the data card include that person's MSHA 
Individual Identification Number (MIIN). Proposed Sec.  71.208(c) is 
similar to proposed Sec.  70.210(c), and the rationale is discussed 
elsewhere in the preamble related to proposed Sec.  70.210(c).
    Proposed paragraph (f) is new and would apply when operators use 
CPDMs to sample. It would require that, within 12 hours after the end 
of the last sampling shift for a DWP, a designated mine official must 
validate, certify, and transmit electronically to MSHA all sample and 
error data file information collected during the previous shifts and 
stored in the CPDM. It would also require the operator to maintain all 
CPDM data files transmitted to MSHA for at least 12 months. Proposed 
Sec.  71.208(f) is similar to proposed Sec.  70.210(f), and the 
rationale is discussed elsewhere in the preamble related to proposed 
Sec.  70.210(f).
K. Section 71.209 Respirable Dust Samples; Report to Operator; Posting
    Proposed Sec.  71.209, redesignated from existing Sec.  71.210, 
would address data contained in MSHA's report of respirable dust 
samples provided to operators. It would also address requirements for 
the operators' posting of sampling data. Proposed Sec.  71.209 would 
include non-substantive changes in paragraphs (a)(2) through (a)(4), 
revise paragraph (b), and add a new

[[Page 64443]]

paragraph (c). Paragraph (a)(1) would remain the same.
    Proposed paragraph (a)(2) would replace ``designated work 
position'' with ``DWP.'' Proposed paragraph (a)(3) would make a 
conforming change by adding that the concentration of respirable dust 
be expressed ``as an equivalent concentration.'' The change is 
consistent with other proposed provisions that specify that the 
concentration of respirable coal mine dust is converted to and 
expressed as an 8-hour equivalent concentration, even when the total 
time worked is greater than 8 hours.
    Existing paragraph (a)(4) would be deleted because the average 
concentration of respirable dust would be based on a valid single-shift 
sample under the proposed rule.
    Existing paragraph (a)(5) would be redesignated as proposed 
paragraph (a)(4) and would retain the existing requirement that reasons 
for voiding samples be posted.
    Proposed paragraph (b) would be revised to require operators to 
post sampling data for at least 46 days on the mine bulletin board. 
Existing regulations under parts 70 and 71 require operators to post 
sampling data for 50 percent of the specified sampling period (e.g., 31 
days is 50 percent of the bimonthly sampling period specified in 
existing Sec.  71.208(a)). Since proposed Sec.  71.207 would require 
operators to take DWP samples every calendar quarter, posting the 
sampling data for 46 days, which is approximately 50 percent of a 
quarterly sampling period, would be consistent with existing posting 
requirements.
    Proposed paragraph (c) is new and would apply to operators who use 
a CPDM. It would require the designated mine official to validate, 
certify, and post certain sampling information on the mine bulletin 
board. Proposed paragraph (c)(1) would require the designated mine 
official to post the daily end-of-shift sampling results within 1 hour 
after the end of the sampling shift. The daily posting must include 
the: mine identification number; DWP at the mine from which samples 
were taken; respirable dust concentration expressed as an equivalent 
concentration for each valid sample; reason for voiding any sample; and 
shift length. This information, similar to that required under existing 
Sec.  71.210, would provide miners with sampling and exposure 
information for the shift. Under the proposal, the District Manager 
could require any other information, such as activities being performed 
(hauling rock or hauling dust), physical conditions (rainy or dry) and 
the location sampled on the mine site (in the pit or on the mountain 
top).
    Proposed paragraph (c)(2) would require the information to be 
posted for at least 46 calendar days. Proposed paragraph (c)(2) is 
identical to proposed paragraph (b) of this section, and the rationale 
is discussed earlier in this section of the preamble. The Agency 
requests comment on an appropriate amount of time for posting and a 
standard format for reporting data. Please be specific in your comments 
and include the rationale for your suggestions.
L. Section 71.210--Status Change Reports
    Proposed Sec.  71.210, redesignated from existing Sec.  71.220, 
would revise paragraph (a) and add a new paragraph (c). Paragraph (b) 
would remain the same. Proposed paragraph (a) would provide operators 
the option of reporting to MSHA changes in operational status of the 
mine or DWP electronically instead of in writing. Proposed paragraph 
(c) would require the designated mine official to report status changes 
that affect the operational readiness of any CPDM within 24 hours after 
the status change has occurred. Proposed Sec.  71.210(c) is identical 
to proposed Sec.  70.212(c), and the rationale is discussed elsewhere 
in the preamble related to proposed Sec.  70.212(c).
M. Section 71.300 Respirable Dust Control Plan; Filing Requirements
    Proposed Sec.  71.300 would revise existing requirements for 
operators who must file a dust control plan when they receive a 
citation for a DWP sample.
    Proposed Sec.  71.300(a) would require the operator to submit a 
dust control plan applicable to the DWP identified in the citation and 
that the plan be adequate to continuously maintain respirable dust 
within the applicable standard at the DWP. For clarification and 
consistency, the proposal would replace the term ``work position'' in 
existing Sec.  71.300(a) with the term ``DWP.'' The proposal would also 
replace language in the existing standard that requires the plan to be 
submitted ``Within 15 calendar days after the termination date of a 
citation for violation of Sec.  71.100 (Respirable dust standard) or 
Sec.  71.101 (Respirable dust standard when quartz is present)'' with 
``As required by Sec.  71.207(l).'' Proposed Sec.  71.207(l) is 
discussed elsewhere in the preamble. Proposed Sec.  71.300(a) would 
also replace the phrase ``permissible concentration at the surface work 
position identified in the citation'' with the phrase ``applicable 
standard at the DWP.'' This is a nonsubstantive change and reflects 
MSHA's intent under the proposed rule that dust control measures 
identified in the respirable dust control plan must be sufficient to 
maintain dust levels at or below the applicable standard so that 
concentrations do not get to citable ECV levels. This would assure 
increased protections for miners.
    Proposed Sec.  71.300(a)(1) is new and would require operators to 
notify the representative of miners at least 5 days prior to submitting 
a proposed respirable dust control plan, or proposed revisions to an 
existing plan, to the District Manager for approval. The proposal would 
also require that, if requested, operators must provide a copy to the 
representative of miners at the time of the 5-day notification. This 
provision is consistent with procedures for submitting plans in other 
MSHA standards. MSHA experience reveals that input from miners on 
proposed dust provisions is important. The proposal would allow 
sufficient time for the miners' representative to become familiar with 
the proposed plan or revisions and to discuss and resolve any issues 
prior to submission to the District Manager for approval.
    Proposed Sec.  71.300(a)(2) is new and would require the operator 
to make available for inspection by the miners' representative a copy 
of the proposed respirable dust control plan and any proposed revisions 
that have been submitted for approval to the District Manager. This 
would ensure that the miners' representative would have access to 
copies of proposed plan documents for review.
    Proposed Sec.  71.300(a)(3) is new and would require a copy of the 
proposed respirable dust control plan, and a copy of any proposed 
revision, submitted to the District Manager for approval to be posted 
on the mine bulletin board at the time of submittal. The proposed dust 
control plan or proposed revision would be required to remain posted on 
the bulletin board until approved, withdrawn, or denied. The proposed 
posting requirement would ensure that miners are made aware of the 
content of the proposed plan.
    Proposed Sec.  71.300(a)(4) is new and would permit the 
representative of miners, following receipt of a proposed dust control 
plan or proposed revision, to submit timely, written comments to the 
District Manager for consideration during the review process. To 
receive consideration by the District Manager, the miners' 
representative would have to submit comments to the District Manager in 
a ``timely'' manner. Under the proposal, MSHA would construe ``timely'' 
to mean that miners'

[[Page 64444]]

representatives must submit comments within a reasonable time after 
they receive a copy of proposed plan provisions so the District Manager 
would have sufficient time to consider them in the review process.
    Proposed Sec.  71.300(a)(4) would require that, when requested, the 
District Manager must provide operators with a copy of the miners' 
representatives' comments. Proposed Sec.  71.300(a)(2) and (a)(4) would 
ensure that all parties to the dust control plan process are aware of 
each others' positions on potential issues.
    Proposed Sec.  71.300(b)(1) and (b)(2) would include nonsubstantive 
changes and replace ``designated work position'' with ``DWP'' for 
consistency with other part 71 proposed provisions. No changes are 
proposed for existing Sec.  71.300(b)(3) and (b)(4).
N. Section 71.301 Respirable Dust Control Plan; Approval by District 
Manager and Posting
    Proposed Sec.  71.301 would continue to address the criteria MSHA 
would use to approve, on a mine-by-mine basis, the dust control plan. 
MSHA is proposing revisions to Sec.  71.301(a)(1) and 71.301(b), and 
proposing to add a new Sec.  71.301(d)(1) through 71.301(d)(3). No 
changes are proposed for existing Sec.  71.301(a)(2), (c), and (e).
    For consistency and clarification, proposed Sec.  71.301(a)(1) 
would provide that, in approving respirable dust control plans, the 
District Manager would consider whether the respirable dust control 
measures would likely maintain ``concentrations of respirable coal mine 
dust at or below the applicable standard.'' Under the existing 
standard, the District Manager considers whether the dust control 
measures would likely maintain ``compliance with the respirable dust 
standard.'' The proposed language would clarify that the District 
Manager's review would assure that control measures in the plan would 
likely maintain respirable dust concentrations at or below the 
applicable standard so that concentrations do not get to citable ECV 
levels. This would assure improved protection for miners.
    Proposed Sec.  71.301(b) would revise the existing standard to 
permit MSHA to take respirable dust samples to determine whether 
control measures in the operator's plan effectively maintain 
``concentrations of respirable coal mine dust at or below the 
applicable standard.'' MSHA's rationale for this proposal is the same 
as that described above for proposed Sec.  71.301(a)(1). The proposed 
language would clarify that the operator's dust control measures must 
control dust to levels at or below the applicable respirable dust 
standard, which would ensure that concentrations do not get to citable 
ECV levels. This would assure improved protection for miners.
    Proposed Sec.  71.301(d)(1) is new and would require that, upon 
request and following notification of approval, the operator must 
provide the approved respirable dust control plan to the miners' 
representative. Proposed Sec.  71.301(d)(2) is also new and would 
require the operator to make available the approved respirable dust 
control plan for inspection by the representative of miners. The 
proposed provisions are consistent with procedures for plan approval in 
other MSHA standards. They would ensure that the miners' representative 
would have timely access to the approved plan or plan revisions 
following notification of approval. They reflect MSHA's recognition 
that miners and their representatives play an important role in the 
plan approval process and need to be kept aware of the contents of the 
approved plan.
    Proposed Sec.  71.301(d)(3), derived from existing Sec.  71.301(d), 
is new and would require the operator to post the respirable dust 
control plan on the mine bulletin board within 1 working day following 
notification of approval, and keep it posted for the period that the 
plan is in effect. The proposal would assure that miners, as well as 
their representatives, are aware of approved respirable dust control 
plan provisions. The Agency believes that allowing operators one full 
working day to post the plan is reasonable and would provide effective 
protection for miners.

30 CFR Part 72

A. Section 72.100 Periodic Examinations
    Proposed Sec.  72.100 is new and would add periodic spirometry, 
occupational history, and symptom assessment to the chest radiographic 
examinations already required to be offered to underground coal miners. 
It would extend the opportunity for those examinations to surface 
miners.
    Proposed paragraph (a) would require mine operators to provide 
periodic examinations that include chest x-rays, spirometry, symptom 
assessment, and occupational history at no cost to the miner. Under 
NIOSH's existing Coal Workers' Health Surveillance Program (42 CFR part 
37), ``Specifications for Medical Examinations of Underground Coal 
Miners,'' underground coal mine operators are required to provide to 
underground coal miners and miners at surface areas of underground coal 
mines the opportunity for periodic evaluation with chest x-rays. 
Proposed paragraph (a) would extend chest x-ray examinations to coal 
miners at surface mines and implement a new requirement for spirometry 
examinations, symptom assessment, and occupational history for all coal 
miners. This proposal is consistent with recommendations of the Dust 
Advisory Committee and the NIOSH Criteria Document. The Dust Advisory 
Committee unanimously recommended that spirometry and questionnaire 
data be collected periodically and that medical testing be extended to 
surface coal miners. NIOSH recommended that the Coal Workers' X-Ray 
Surveillance Program be extended to include spirometry examinations, 
respiratory symptom and occupational history questionnaires, and 
surface coal miners.
    MSHA is proposing a requirement for a spirometry examination 
because it is the most practical screening tool to detect reduced lung 
function in miners, which is the common evidence of Chronic Obstructive 
Pulmonary Disease (COPD). A requirement for a spirometry examination 
also complements the chest x-ray program by detecting effects, other 
than pneumoconiosis, of dust on the lung. The chest x-ray cannot detect 
COPD.
    Miners at surface mines would be included in medical monitoring 
because they are also at risk of developing pneumoconiosis and COPD as 
a result of exposure to respirable coal mine dust. Some occupations at 
surface mines (e.g., drill operators, bulldozer operators, and truck 
drivers) experience high exposure to silica and there are many former 
underground miners among surface miners with chest x-ray films that 
show pneumoconiosis. MSHA believes that this proposed requirement would 
provide improved health protection for all coal miners.
    MSHA's proposal to extend chest x-ray examinations and implement a 
new requirement for spirometry would enable early detection of 
pneumoconiosis and COPD, respectively, both of which are irreversible 
and, for miners subject to continued overexposure, progressive. In the 
absence of medical monitoring and early intervention, a miner may 
continue to be overexposed, allowing the disease to progress so that 
the miner may suffer material impairment of health or functional 
capacity. For miners at surface mines, the proposal would allow them to 
have knowledge of the existence of pneumoconiosis so that they could 
exercise their rights to transfer to a less dusty job under proposed 30 
CFR part 90. For all coal

[[Page 64445]]

miners, the proposed requirement for spirometry examinations would 
allow them to have knowledge of an abnormal decline in lung function, 
which would enable them to be proactive in their approach to their 
health.
    Proposed paragraph (a)(1) would require mine operators to use 
NIOSH-approved facilities to conduct the examinations. Initial approval 
of facilities and subsequent renewals of approvals will be dependent 
upon meeting requirements specified by NIOSH. Approved facilities 
would: provide standardized methods for evaluating miners' health; have 
the necessary equipment and expertise for conducting tests, 
interpreting results, informing miners, and maintaining confidentiality 
of miners' health records; and be in locations that are accessible to 
miners.
    Proposed paragraph (b) would require mine operators to provide 
miners the opportunity to have examinations specified in paragraph (a) 
at least every 5 years. Both pneumoconiosis and COPD develop slowly. It 
is unusual, for example, for a miner to have a positive chest x-ray 
less than ten years from first exposure to respirable coal mine dust. 
If a miner has a positive chest x-ray, it is important to intervene as 
promptly as possible for maximum health protection. An interval of 5 
years or less between each miner's serial spirometry examinations 
should provide reasonable opportunity to assure detection of important 
declines in a miner's lung function due to dust exposure.
    Early symptoms of pneumoconiosis or COPD may not appear to be 
important to miners so they might not be likely to seek medical 
assistance without regulatory intervention. More pronounced symptoms 
occur only after diseases become more advanced. The proposed 
requirement for periodic examinations is necessary for early detection 
of disease and early intervention to prevent progression of disease.
    The proposal would also require mine operators to make examinations 
available during a 6-month period that begins no less than 3.5 years 
and not more than 4.5 years from the end of the last 6-month period. 
For example: If an operator provided examinations to miners during a 6-
month period of July 1, 2009 to December 31, 2009, the operator would 
be notified by NIOSH by April 1, 2013, 3 months prior to July 1, 2013, 
to schedule the next 6-month period within which to offer miners the 
examinations. This proposed schedule is designed to give mine operators 
and approved facilities some flexibility in scheduling examinations and 
is consistent with the timeframes established in NIOSH's existing 
program.
    Proposed paragraph (c) would require mine operators to provide the 
examinations specified in paragraph (a) to miners, who begin work at a 
coal mine for the first time (i.e., the miner has never worked in any 
coal mine), when they are initially hired. Proposed paragraph (c)(1) 
would require that these initial examinations be made available no 
later than 30 days after beginning employment. Initial examinations 
would be mandatory for the miner. MSHA believes that examinations 
provided in close proximity to when miners are first hired and first 
exposed to respirable coal mine dust are necessary in order to 
establish an accurate baseline of the miner's health. The Agency 
solicits comment on an appropriate time for operators to make initial 
examinations available to miners. Please be specific in your comments 
and include rationale for your suggestions.
    Proposed paragraph (c)(2), like the existing standard for chest x-
rays, would require follow-up examinations to be provided within 3 
years of the initial examinations. A 3-year rather than a 5-year 
interval at the start of the miner's career could provide necessary 
information for evaluating the results of spirometry tests. Several 
researchers noted that the decline in lung function due to dust is non-
linear, sometimes with much of the decline coming early in the miner's 
career, often in less than three years. (Attfield & Hodous, 1992; 
Seixas NS, et al., 1993). The Agency solicits comment on an appropriate 
time for operators to provide follow-up examinations to miners. Please 
be specific in your comments and include rationale for your 
suggestions.
    Proposed paragraph (c)(3) would require the operator to provide 
follow-up examinations within 2 years, if the second chest x-ray (after 
the initial examination) shows evidence of pneumoconiosis or if the 
second spirometry examination shows evidence of reduced lung function. 
When this chest x-ray or spirometry examination indicates the presence 
of disease, more frequent testing would be necessary to detect and 
prevent further progression. There are some individuals who adversely 
respond to dust exposure relatively quickly and it is important to 
identify those individuals early.
    Proposed paragraph (d), like the existing standard for chest x-
rays, would require each mine operator to develop a plan for providing 
the medical examinations specified in paragraph (a) and to submit the 
plan to NIOSH for approval. The proposed requirement for a plan is 
essential to assure that mine operators provide the examinations within 
the established timeframes and at an approved facility. The proposed 
requirement for medical examinations would allow for early detection 
and treatment and, to be effective, it should be part of a 
comprehensive program designed to prevent further progression of early 
respiratory disease. The proposed requirement for submitted plans to 
include a roster specifying the name and current address of each miner 
covered by the plan would provide NIOSH with the ability to assure 
adequate notification of the availability of medical examinations to 
covered coal miners. NIOSH has required that such rosters be provided 
since the early 1990s, so this requirement would not create an 
additional burden for mine operators.
    Proposed paragraph (e), like the existing standard for chest x-
rays, would require each mine operator to post the approved plan for 
providing periodic examinations specified in paragraph (a) on the mine 
bulletin board and to keep it posted at all times. Posting the approved 
plan on the mine bulletin board can help to improve miners' awareness 
of the plan, and its purpose and provisions.
B. Section 72.700 Respiratory Equipment; Respirable Dust
    Proposed Sec.  72.700 would revise and redesignate existing Sec.  
70.300 to apply to all coal mines, whether surface or underground. The 
proposal would also add new training and record retention requirements 
related to respiratory equipment.
    Proposed Sec.  72.700(a) would revise and redesignate existing 
Sec.  70.300 and would require operators to make NIOSH-approved 
respiratory equipment available to all persons as required by parts 70, 
71 and 90. The proposal would revise the existing requirement and 
expand it to ensure that, as required under parts 70, 71, and 90, 
operators make respiratory equipment available to all persons, 
regardless of whether the person is at a surface mine, the surface area 
of an underground mine, or an underground mine. The existing standard 
does not cover persons at surface mines and surface areas of 
underground mines, nor miners subject to the part 90 requirements. 
Respirable dust is found not only in underground mining environments, 
but also at surface installations. Respirators can play an important 
role as an interim measure to reduce miners' exposure to respirable 
dust for short periods of time during which engineering and

[[Page 64446]]

environmental controls are being implemented. This interim protection 
is available for underground miners. MSHA believes that the existing 
protections afforded to underground miners should be extended to cover 
persons at surface mines, surface work areas of underground mines, and 
miners who are subject to the part 90 requirements.
    Proposed Sec.  72.700(a) would also require operators to maintain 
an adequate supply of respiratory equipment in order to make 
respirators available as required by the section. The existing 
requirement under Sec.  70.300 provides that operators must maintain a 
supply of respiratory equipment adequate to deal with occurrences of 
concentrations of respirable dust in the mine atmosphere in excess of 
the levels required to be maintained under part 70. The proposal would 
expand the existing standard's scope of coverage to include parts 71 
and 90. The Agency believes that operators should maintain an adequate 
supply of respiratory equipment so that any person, whether at a 
surface mine, the surface area of an underground mine, or an 
underground mine, as well as miners subject to the part 90 
requirements, may avail themselves of the protections provided by 
respirators if they choose to do so.
    Proposed Sec.  72.700(a) would retain the existing requirement 
under Sec.  70.300 that requires operators to use environmental control 
measures as the primary means of regulating respirable dust in the 
active workings. Consistent with the Mine Act, the proposal would 
prohibit the substitution of respirators for environmental control 
measures. Under existing practice and policy, engineering controls are 
the primary method used to control exposure to respirable dust. Section 
202(h) of the Mine Act expressly prohibits the use of respirators as a 
substitute for environmental control measures in the active workings of 
a mine. The proposal is also consistent with the Dust Advisory 
Committee members' unanimous recommendation that respiratory equipment 
should not be permitted to replace environmental control measures, but 
should continue to be provided to miners until environmental controls 
are implemented that are capable of maintaining respirable dust levels 
within the applicable standard. The importance of using environmental 
controls was not only recognized by the Dust Advisory Committee, but 
also by NIOSH. NIOSH's 1995 Criteria Document recommends that 
engineering controls continue to be relied on as the primary means of 
protecting coal miners from respirable dust. Although MSHA received 
comments in 2000 and 2003 that operators should be allowed to use 
respiratory equipment in lieu of environmental and engineering controls 
to achieve compliance, proposed Sec.  72.700(a) would retain the 
existing requirement that environmental controls be used as the primary 
means of complying with applicable dust standards. MSHA experience 
indicates that even when respirators are made available, miners may not 
use them because they can be uncomfortable and impractical to wear 
while performing work duties. In some cases, a miner may not be able to 
use a respirator due to health issues. General industrial hygiene 
principles recognize that engineering and environmental controls 
provide more consistent and reliable protection.
    Proposed Sec.  72.700(b) is new and would require training to be 
provided to all miners to whom respiratory protection must be made 
available under the proposal. It would require an operator to provide 
training prior to the affected miner's next scheduled work shift, 
unless the miner received training within the previous 12 months on the 
types of respirators that the operator makes available. The required 
training would include instruction on the types of respirators made 
available by the operator as well as instruction in the proper fitting, 
care, use and limitations of the respirators. The proposed training 
requirements are consistent with the recommendations made in the 1995 
NIOSH Dust Criteria Document.
    The proposed training requirements ensure that persons are 
adequately informed about the respirators that are available to them. 
In addition, the effectiveness of a respirator depends on the 
respirator wearer receiving proper training on use, fit, and care. 
Initial training would provide miners who must have respirators made 
available to them with general information about each type of 
respirator, as well as the proper care, fit, use and limitations of the 
equipment. Retraining under the proposal would be required only if the 
miner was not trained within the previous 12 months on the specific 
types of respirators made available. When required, retraining would 
reinforce the information and concepts provided in initial training. It 
would also serve to remind persons of the specific technical and 
functional limitations of the respiratory equipment available for use 
at the mine. As with each of MSHA's training standards, the Agency 
believes that providing proper instruction to miners serves to help 
them internalize information necessary to achieve optimum health 
protection from respirators, thereby reinforcing their commitment to 
helping to reduce health and safety risks to which they may be exposed.
    The proposed training requirements would be performance-oriented 
and would allow for training to be tailored to each mine's individual 
circumstances and needs. For example, operators could develop a 
training module that not only includes the training topics required by 
proposed Sec.  72.700(b), but also includes additional course content. 
Similarly, operators could choose to emphasize certain topics more than 
others based on the skills and knowledge assessment of their miners.
    MSHA did not include the proposed training requirements under part 
48 because part 48 already requires a considerable number of health and 
safety topics in which miners must receive training in a specified 
amount of time. For this reason, the proposal would require that this 
training be in addition to that required under part 48. MSHA believes 
requiring respirator training to be provided in a time period in 
addition to that required under part 48 would allow miners to receive 
adequate instruction on use of respirators in a comprehensive and 
focused manner. Although the time of training must be in addition to 
that required under part 48, operators may integrate this training into 
their part 48 training schedule. MSHA specifically solicits comments on 
the Agency's proposed approach to respirator training, including 
supporting rationale for suggested alternatives.
    Proposed Sec.  72.700(c) is new and would require operators to keep 
a record of the training provided under this provision. It would also 
require operators to maintain these records for at least two years 
following completion of the training, and would permit operators to 
store training records elsewhere if the records are immediately 
accessible from the mine site by electronic transmission, e.g., by fax 
or computer.
    The proposed two-year retention period provides MSHA with 
sufficient time within which the Agency can verify that miners have 
received the required training, while not being unduly burdensome on 
operators. MSHA solicits comment on the proposed record retention 
period. In addition, the proposal would allow for the convenience and 
efficiency of storing records at a central location, and accommodates 
the trend towards electronic record-keeping.
    Proposed Sec.  72.700(c) would also require operators to provide 
training records to an authorized representative

[[Page 64447]]

of the Secretary of Labor, Secretary of HHS, or miners' representative 
upon the request of such persons. This proposed requirement would be 
consistent with MSHA's other training standards.
C. Section 72.701 Respiratory Equipment; Gas, Dusts, Fumes, or Mists
    Proposed Sec.  72.701, redesignated from existing Sec.  70.305, 
would expand the scope of the existing standard to all coal mines, 
whether underground or surface. The existing standard applies to 
underground coal mines and does not cover miners who work at surface 
mines or surface areas of underground coal mines. Gases, dusts, fumes 
and mists that may be detrimental to miners' health can be found at 
surface facilities as well as in underground mining environments. 
Respirators can play an important role in reducing miners' exposure to 
these gases, dusts, fumes and mists, and MSHA believes that the 
protections currently afforded to underground miners should extend to 
miners who work at surface facilities.
D. Section 72.800 Single, Full-shift Measurement of Respirable Coal 
Mine Dust
    Proposed Sec.  72.800 is new and would allow the use of either 
single, full-shift samples collected by either the Agency or operator 
to determine noncompliance with the respirable coal mine dust 
standards. MSHA believes that the proposed use of single, full-shift 
samples collected by the Agency or operator to determine noncompliance 
would eliminate an important source of sampling bias due to averaging 
[for a detailed description of this issue, see Appendix A of the 2000 
single sample proposed rule (65 FR 42108, July 7, 2000).] Available at 
http://www.msha.gov/regsinfo.htm.
    Under MSHA's existing standards and procedures, measurements made 
at the dustiest occupational locations or during the dustiest shifts 
sampled can be diluted by averaging them with measurements made under 
less dusty conditions. This practice has frequently resulted in MSHA 
not being able to require operators to take corrective actions to 
protect miners from the hazard of excessive respirable dust exposure. 
The existing regulatory framework based on averaging does not provide 
miners with an adequate level of protection from overexposure to 
respirable coal mine dust.
    As was noted in the background section, in 1972, acting pursuant to 
the Coal Act, the Secretaries of the Interior and HEW made the joint 
finding in Sec.  202(f), concluding that ``single shift measurement of 
respirable dust will not, after applying valid statistical techniques 
to such measurement, accurately represent the atmospheric conditions to 
which the miner is continuously exposed'' (Notice of Finding That a 
Single Shift Measurement of Respirable Dust Will Not Accurately 
Represent Atmospheric Conditions During Such Shift, 37 FR 3833 
(February 23, 1972) (1972 Joint Finding)).
    The proposed single sample provision is based on MSHA's experience, 
review of section 202(f) of the Mine Act, significant improvements in 
sampling technology, updated data, and comments and testimony on 
previous notices and proposals addressing the accuracy of single, full-
shift sample measurements. This proposed rule would rescind the 1972 
Joint Finding.
    The proposed rule would allow the Agency to base determinations of 
noncompliance on single full-shift samples collected by the Agency or 
operator. The proposal is consistent with recommendations contained in 
both the 1995 NIOSH Criteria Document and the 1996 Dust Advisory 
Committee report. In the Criteria Document, NIOSH recommended the use 
of single, full-shift samples to compare worker exposures with its 
recommended exposure limit (REL) and concluded that this action is 
consistent with Section 202(f) of the Act. The Dust Advisory Committee 
recommended that MSHA change its compliance sampling program to allow 
the use of single full-shift samples for determining compliance; seven 
of nine Committee members affirmed this recommendation.
    Sampling and analytical technology have progressed since the time 
the 1972 Joint Finding was issued. In 1995, NIOSH published an accuracy 
criterion that could be used to evaluate sampling and analytical 
methods for airborne contaminants (Kennedy et al. 1995). The accuracy 
criterion is that sampling and analytical methods need to produce 
results that fall within 25% of the true value 95 times out of 100. 
Various factors were included in the determination, such as the 
analytical recovery from the sampler, sampler capacity, storage 
stability of samples, and the effect of environmental factors on 
sampling results. NIOSH also included evaluation criteria for the 
experiments and details for the calculation of bias, precision, and 
accuracy. In 1996, the Secretary and Secretary of HHS proposed to apply 
this accuracy criterion (61 FR 10012) to determine whether a single, 
full-shift measurement of respirable coal mine dust would ``accurately 
represent'' the full-shift atmospheric dust concentration at the 
sampling location. They proposed this because the term ``accurately 
represent,'' as used in section 202(f) of the Mine Act (30 U.S.C. 
842(f)) in connection with a single shift measurement was not defined. 
Application of the NIOSH Accuracy Criterion to respirable coal dust 
sampling would require that measurements come within 25 percent of the 
corresponding true dust concentration at least 95 percent of the time.
    The NIOSH Accuracy Criterion, widely recognized and accepted, has 
been the standard used by occupational health professionals to validate 
sampling and analytical methods for over 15 years. It is important that 
sampling and analytical methods generate reliable measurements of 
exposure for contaminants at or near the standard. Development of 
methods that meet the NIOSH Accuracy Criterion is critically important 
in order to produce reliable sampling and analytical methods.
    OSHA frequently uses a similar accuracy criterion when issuing new 
or revised single substance standards. For example, OSHA's benzene 
standard provides: ``[m]onitoring shall be accurate, to a confidence 
level of 95 percent, to within plus or minus 25 percent for airborne 
concentrations of benzene'' (29 CFR 1910.1028(e)(6)). Similar wording 
can be found in the OSHA sampling and analytical methods for arsenic 
(29 CFR 1910.1018(e)(6)), lead (29 CFR 1910.1025(d)(9)), 1,2-dibromo-3-
chloropropane (29 CFR 1910.1044(f)(6)), ethylene oxide (29 CFR 
1910.1047(d)(6)), and formaldehyde (29 CFR 1910.1048(d)(5)).
    For purposes of section 202(f) of the Mine Act (30 U.S.C. 842(f)), 
MSHA would consider a single, full-shift measurement to ``accurately 
represent'' atmospheric conditions at the sampling location, if the 
sampling and analytical method used meets the NIOSH Accuracy Criterion. 
Because MSHA would restrict the measurement objective to an individual 
shift and sampling location, the Agency has determined that 
environmental variability beyond what occurs at the sampling location 
on a single shift is not relevant to assessing measurement accuracy.
    As previously noted in this preamble, the Secretary and the 
Secretary of HHS jointly published a Federal Register notice in July 
2000 proposing (1) to rescind the 1972 Joint Notice of Finding and (2) 
a new mandatory standard stating a single, full-shift respirable dust 
measurement would accurately represent atmospheric conditions to

[[Page 64448]]

which a miner is exposed during such shift. In March 2003, the 
rulemaking record was reopened and the comment period was extended, and 
in August 2003, the comment period was extended indefinitely. Since the 
2000 single sample proposal has been integrated into this proposed 
rule, the rulemaking records of the 2000 and 2003 single sample notices 
are incorporated into the rulemaking record for this proposal. The 
following discussion addresses comments made to 2000 and 2003 single 
sample notices.
    Some commenters suggested that the dust concentration that should 
be measured is dust concentration averaged over a period greater than a 
single shift because Congress intended that the measurement objective 
be a long-term average. Specifically, some of these commenters stated 
that because coal dust exposure is related to chronic health effects, 
the exposure limit should be applied to dust concentrations averaged 
over a miner's lifetime. These commenters identified the measurement 
objective as being the dust concentration averaged over a long, but 
unspecified, term and stated that a single, full-shift measurement 
cannot accurately estimate this long-term average.
    However, Section 202(b) of the Mine Act (30 U.S.C. 842(b)), 
explicitly requires that the average dust concentration be continuously 
maintained at or below the applicable standard during each shift. In 
Consolidation Coal Company v. Secretary of Labor 8 FMSHRC 890 (1986), 
aff'd 824 F.2d 1071 (DC Cir. 1987), the Federal Mine Safety and Health 
Review Commission found that each episode of a miner's overexposure to 
respirable dust significantly and substantially contributes to the 
health hazard of contracting chronic bronchitis or coal workers' 
pneumoconiosis, diseases of a fairly serious nature. Exposures during a 
single shift play a critical role in protecting miners' health, not 
just long term average exposures.
    Commenters also stated that dust concentrations can vary during a 
shift due to changing conditions such as the height and slope of the 
seam. Also, dust concentrations are not uniform and may vary due to 
unpredictable, infrequent events, such as a ``face blowout'' (a violent 
expulsion of coal together with large quantities of coal dust or 
methane gas) or high winds at a surface mine. Commenters submitted 
evidence that dust concentrations can vary significantly near the 
mining face, and that these variations may extend into areas where 
miners are located. As a result, according to these commenters, the 
average dust concentration over a full shift is not identical at every 
point within a miner's work area.
    MSHA recognizes that dust concentrations in the mine environment 
can vary from location to location, even within a small area near a 
miner. As mentioned earlier, the Mine Act does not specify the area 
that the measurement is supposed to represent; the sampler unit may be 
placed in any location reasonably calculated to determine excessive 
exposure to respirable dust. Commenters presented no evidence to 
demonstrate that short-term high exposures can overload a dust sampling 
filter or cause the sampling device to malfunction. The approved 
samplers are designed to measure the atmospheric conditions at a 
specific sampling location over a full shift.
    Some commenters suggested that local factors such as dusty clothing 
could cause concentrations in the immediate vicinity of the sampler 
unit to be unrepresentative of a larger area. Commenters presented no 
evidence to demonstrate that dusty clothing can have a significant 
impact on sampling results obtained over a full shift. Moreover, 
respirable coal mine dust represents a hazard to the miner regardless 
of the source.
    Several commenters suggested that the measurement objective should 
be a miner's ``true exposure'' or what the miner actually inhales. MSHA 
does not intend to use a single, full-shift measurement to estimate any 
miner's ``true exposure,'' because no sampling device can exactly 
duplicate the particle inhalation and deposition characteristics of a 
miner at any work rate (these characteristics change with work rate), 
or at the various work rates occurring over the course of a shift. 
Limiting the respirable dust concentration at every location miners 
work or travel would ensure reduced exposures that would result in 
reduced health risks.
    Some commenters suggested that MSHA continue to average at least 
five separate measurements prior to making a noncompliance 
determination. They stated that abandoning this practice would reduce 
the accuracy of noncompliance determinations. Several of these 
commenters maintained that the average of dust measurements obtained at 
the same occupational location on different shifts more accurately 
represents dust exposure to a miner than a single, full-shift 
measurement. They stated that not averaging measurements would reduce 
accuracy to unacceptable levels. Other commenters agreed with MSHA and 
NIOSH that the averaging of multiple samples can dilute and mask 
specific instances of overexposure. Some of these commenters stated 
that averaging not only distorts the estimate of dust concentration 
applicable to individual shifts, but also biases the estimate of 
exposure levels over a longer term. In addition, some commenters 
objected to MSHA's current policy of issuing citations only when the 
average of five dust samples exceeds the applicable dust standard. They 
noted that the averaging methodology used during MSHA sampling creates 
the potential to underestimate the exposure at one occupation, such as 
the DO, by diluting its measurement with the exposure measurements of 
other occupations, such as the non-designated occupations.
    Consistent with NIOSH and the Dust Advisory Committee, MSHA 
believes that averaging multiple measurements can mask individual 
overexposures by diluting a high measurement at one location, or on one 
shift, with a lower concentration taken at another location, or on 
another shift. The Agency's existing regulatory framework of averaging 
measurements does not ensure that the concentration of respirable dust 
is maintained at or below the applicable standard during each shift, 
which is inconsistent with the statutory requirement that operators 
continuously maintain the average respirable dust exposure of each 
individual miner on each shift at or below the applicable respirable 
dust standard.
    Some commenters stated that the NIOSH Accuracy Criterion did not 
conform to international standards adopted by the European Committee 
for Standardization (CEN) (European Standard No. EN 482, 1994). The 
current edition of this standard was updated in 2006. The NIOSH 
Accuracy Criterion not only conforms to the CEN criterion but is, in 
fact, more stringent than the CEN criterion. The CEN criterion requires 
that 95 percent of the measurements fall within <plus-minus>30 percent 
of the true concentration, compared to <plus-minus>25 percent under the 
NIOSH criterion. Also, EN 482 (2006) imposes no control over inaccuracy 
in the measurement of sampling and analytical accuracy itself. Any 
sampling and analytical method that meets the NIOSH Accuracy Criterion 
will also meet or exceed the CEN criterion in European Standard No. EN 
482 (2006).
    Some commenters suggested that method accuracy should be determined 
under actual mining conditions rather than in a laboratory or in a 
controlled environment. Although the NIOSH Accuracy Criterion does not 
require field testing, it recognizes that field

[[Page 64449]]

testing ``does provide further test of the method.'' To avoid confusing 
real differences in dust concentration with measurement errors when 
testing is done in the field, ``precautions may have to be taken to 
ensure that all samplers are exposed to the same concentrations'' 
(Kennedy et al. 1995). Similarly, the CEN criterion for method accuracy 
specifies that testing of a procedure shall be carried out under 
laboratory conditions (European Standard No. EN 482, 2006).
    One commenter opposed the application of the NIOSH Accuracy 
Criterion since the commenter believed it ignores environmental 
variability. MSHA proposes to restrict the measurement objective to an 
individual shift and sampling location. Therefore, environmental 
variability beyond what occurs at the sampling location on a single 
shift would not be relevant to assessing measurement accuracy.
    MSHA has concluded that sufficient data exist for determining the 
uncertainty associated with a single, full-shift measurement; rigorous 
requirements are in place, as specified by existing standards, to 
ensure the validity of a respirable coal mine dust sample; and valid 
statistical techniques were used to determine that MSHA's improved dust 
sampling and analytical method meets the NIOSH Accuracy Criterion. In 
accordance with section 202(f) (30 U.S.C. 842(f)) and section 101 (30 
U.S.C. 811) of the Mine Act, MSHA proposes to rescind the 1972 joint 
notice of finding.

30 CFR Part 75

A. Section 75.325 Air Quantity
    The proposed rule would revise existing Sec.  75.325(a)(2) by 
adding a new requirement that when the operator measures the quantity 
of air reaching the working face (production area or area where coal is 
extracted) and a blowing face ventilation system is used, the operator 
must take the air measurement with any machine-mounted dust collector 
system turned off.
    MSHA existing standards for underground coal mines require adequate 
quantities of air in the working face to dilute, render harmless, and 
carry away flammable, explosive, noxious and harmful gases, dusts, 
smoke, and fumes. Therefore, before mining begins in a working face, 
operators are required to measure the amount of air coming into that 
area.
    To ensure that the working face is ventilated with the amount of 
air required by the approved ventilation plan, existing Sec.  75.325 
specifies where the air quantity measurement at the face must be taken. 
Under the existing standard, operators using blowing ventilation in the 
working face are measuring the air quantity in that area after the 
continuous mining machine is moved into the area and the dust collector 
system on the machine is turned on. MSHA believes that this practice is 
not providing an accurate measurement of the air coming into the 
working face. When the dust collector system is turned on, it acts as a 
vacuum, pulling air from behind the line curtain, which results in a 
higher air quantity reading in the working face than the actual 
quantity of air reaching the area. The dust collector systems are 
supplemental control devices used primarily to assist in filtering and 
directing the dust through the systems and then exhausting clean air 
out the back of the systems. Maintaining the required quantity of air 
in the working face areas ensures that the dust collector systems 
operate efficiently. More importantly, it is essential to protecting 
miners' health.
    Therefore, the proposed rule would require operators who use dust 
collector systems in conjunction with blowing face ventilation systems 
to determine the air quantity with the dust collector turned off. This 
proposed provision would assure that the operator gets a more accurate 
air quantity reading and therefore would provide better protection for 
the miners.
B. Section 75.332 Working Sections and Working Places
    Proposed Sec.  75.332(a)(1) would revise the existing standard to 
require that ``each MMU'' on each working section be ventilated by a 
separate split of air directed by overcasts, undercasts, or other 
permanent ventilation controls. It would retain the requirement that a 
separate split of air must ventilate each area where mechanized mining 
equipment is being installed or removed.
    MSHA is proposing this change to address the situation where 
operators operate two sets of mechanized mining equipment on a working 
section ventilated by a single split of intake air, and mining 
activities from the upwind set of equipment expose miners working 
downwind to respirable dust and quartz. MSHA believes that, together, 
proposed Sec.  75.332 and the proposed MMU definition, discussed 
elsewhere in the preamble related to proposed Sec.  70.2, would improve 
miners' health by reducing their exposure to respirable dust.
C. Section 75.350 Belt Air Course Ventilation
    The proposed rule would redesignate existing paragraph (b)(3)(i) as 
paragraphs (b)(3)(i)(A) and (b)(3)(i)(B). Proposed paragraph 
(b)(3)(i)(A) would retain the existing requirement that operators limit 
the average concentration of respirable dust in the belt air course, 
when used as a section intake airway, to 1.0 mg/m\3\.
    Proposed paragraph (b)(3)(i)(B) would reduce the respirable dust 
standard in a belt air course, when used as a section intake airway, 
from 1.0 mg/m\3\ to 0.5 mg/m\3\ on [date 6 months after the effective 
date of the final rule]. The proposed lower limit of 0.5 mg/m\3\ is 50% 
of the proposed 1.0 mg/m\3\ respirable dust standard in proposed Sec.  
70.100(a)(4), and is consistent with proposed Sec. Sec.  70.100(b)(2) 
and 90.100(b). MSHA has included this conforming change in recognition 
of the Agency's regulatory history and policy with respect to areas of 
the mine where dust presents additional health risks. MSHA solicits 
comment on the proposed phase-in period for lowering the respirable 
dust limit and requests that a detailed rationale accompany any comment 
or recommendation that is submitted.
    MSHA believes that when belt air is used as a source of intake air, 
the dust concentration in the belt air must be at or below 0.5 mg/m\3\ 
to ensure that relatively clean air is used to ventilate the face.
    MSHA is proposing a conforming change to existing paragraph 
(b)(3)(ii) which requires that the average concentration of respirable 
dust in the belt entry must be at or below the lowest applicable 
respirable dust standard on that section when miners on a working 
section are on a reduced standard below 1.0 mg/m\3\. Proposed paragraph 
(b)(3)(ii) would replace ``1.0 mg/m\3\'' with ``that specified in 
75.350(b)(3)(i).'' The proposed revision would recognize that the belt 
air respirable dust standard would change from 1.0 mg/m\3\ to 0.5 mg/
m\3\ after a six-month phase-in period.
D. Section 75.362 On-shift Examinations
    Proposed Sec.  75.362(a)(2) would add a new requirement that the 
person conducting the on-shift examination must record the results and 
corrective actions taken to assure compliance with respirable dust 
control parameters in the approved mine ventilation plan. The proposal 
focuses attention on the need for properly functioning dust controls 
and would greatly improve the level of

[[Page 64450]]

health protection for underground coal miners. A record of the results 
of all dust control parameters and any corrective action taken would 
assist the Agency and operators in evaluating dust control parameters 
and assist in determining whether the parameters specified in the mine 
ventilation plan continue to be effective in controlling respirable 
dust. Proposed paragraph (a)(2) is consistent with the Dust Advisory 
Committee's unanimous recommendation that operators should record the 
results of on-shift examinations.
    Proposed Sec.  75.362(a)(2) would also add a new requirement that 
the on-shift examination of dust control parameters include specific 
measurements like roof bolter dust collector vacuum levels, scrubber 
air flow rate, and work practices required in the mine ventilation 
plan. Conducting examinations of these dust control measures and 
recording the results offers additional protection for miners because 
the information would provide early warning of deteriorating dust 
controls, allowing corrective action to be taken before dust controls 
fail to protect miners from excessive dust levels. This proposed 
revision would also assist operators in evaluating whether they are 
meeting the requirements of the approved dust control parameters in the 
ventilation plan so that they can effectively determine whether the 
parameters are sufficient to control miners' respirable dust exposure.
    Proposed paragraph (a)(2) is consistent with the Dust Advisory 
Committee's unanimous recommendation that MSHA should examine all 
recorded operational data and information on miner exposure and dust 
control measures as part of the on-going and six-month review of the 
ventilation plan in order to evaluate the continued effectiveness of 
the plan. With the new proposed requirements, MSHA will be able to 
review and evaluate additional information on dust control measures as 
part of the Agency's review of the ventilation plan.
    The proposed rule would revise Sec.  75.362(g)(2) by renumbering 
and adding new paragraphs (g)(2)(i)-(ii), (3), and (4). Proposed 
paragraph (g)(2) would make non-substantive changes to existing 
paragraph (g)(2) and would retain the existing requirement that the 
certified person directing the on-shift examination assure compliance 
with the respirable dust control parameters specified in the approved 
mine ventilation plan. Proposed paragraph (g)(2)(i) is new and would 
include requirements from existing paragraph (g)(2) that the certified 
person must certify by initials, date, and time that the on-shift 
examination was conducted and would include a new requirement that the 
certification be placed on a board maintained at the section load-out 
or similar location showing that the examination was made prior to 
resuming production. The certification requirements would provide 
assurance that the examinations were made. Posting of the certification 
on a board at the section load-out or similar location would permit 
miners on the section to confirm easily that the required examination 
was made in a timely manner.
    Proposed paragraph (g)(2)(ii) is new and would require that the 
certified person directing the examination verify, by initials and 
date, the record of the examination results no later than the end of 
the shift. Under new proposed paragraph (g)(3), this record of 
examination results would be required to be countersigned by the mine 
foreman or equivalent mine official by the end of the foreman's or mine 
official's next regularly scheduled work shift.
    The proposal would require that the on-shift examination record 
contain (1) The results of the examination to assure compliance with 
the ventilation plan; (2) verification by the certified person of the 
record of the results of the examination; and (3) countersigning of the 
record by the mine foreman or equivalent mine official.
    MSHA has added the proposed new requirement that the certified 
person directing the on-shift examination verify the examination 
results and that the mine foreman or equivalent mine official 
countersign the record to assure that a qualified official evaluates 
the effectiveness of the dust control parameters and that a 
knowledgeable supervisory official receives the necessary notification 
of the on-shift examination results. MSHA believes that the proposed 
requirement would ensure that a person with authority is informed and 
can implement any necessary changes to dust control parameters to 
maintain compliance with applicable respirable dust standards.
    Proposed paragraph (g)(3) would also add a new requirement that the 
on-shift examination record must be made in a secure book that is not 
susceptible to alteration, or recorded electronically in a secure 
computer system that is not susceptible to alteration. MSHA believes 
that a record of the results of the examination of all dust control 
parameters and corrective actions would provide a history of the 
conditions documented at the mine and would alert miners and mine 
management to recurring problems, to conditions that need to be 
corrected and to those corrective actions taken. The proposal would 
allow records to be kept in the traditional manner in a secure book, 
and it would accommodate new technology by allowing the record to be 
kept electronically in a secure manner. Based on MSHA's longstanding 
history with other safety and health records, the Agency believes that 
records should be maintained so that they cannot be altered. In 
addition, electronic storage of information and accessing it through 
computers is increasingly a common business practice in the mining 
industry. The proposal would permit the use of electronically stored 
records provided they are secure, not susceptible to alteration, able 
to capture the information and signatures required, and are accessible 
to the representative of the coal miners and MSHA. MSHA believes that 
electronic records meeting these criteria are practical and as reliable 
as traditional records. MSHA also believes that once records are 
properly completed and reviewed, mine management can use them to 
evaluate whether dust control parameters are adequate or need 
appropriate adjustments; whether the same conditions or problems, if 
any, are recurring; and whether corrective measures are effective.
    Proposed paragraph (g)(3) is consistent with the Dust Advisory 
Committee's unanimous recommendation that operators should conduct 
periodic reviews of the adequacy of the dust control parameters 
stipulated in the mine ventilation plan and make modifications 
necessary to achieve and maintain compliance with the applicable dust 
standard.
    Proposed paragraph (g)(4) is new and would require that the records 
be retained at a surface location at the mine for at least 1 year and 
be made available for inspection by authorized representatives of the 
Secretary and the representatives of miners. This proposed requirement 
is consistent with recordkeeping provisions in other MSHA standards and 
would assure that examination results are maintained for a period of 
time to allow for MSHA's evaluation during several inspections and are 
accessible to the representative of the miners.
    Proposed paragraph (g)(4) is consistent with the Dust Advisory 
Committee's unanimous recommendation that recordkeeping be required as 
a part of on-shift examinations under Sec.  75.362. The Committee 
explained that the results of the on-shift examinations were

[[Page 64451]]

informative and should be recorded and shared with workers who have 
been properly trained concerning their interpretation and importance. 
Furthermore, the Committee unanimously recommended that MSHA 
inspections should include: A review of recorded parameter data; dust 
control measures observed in operation; and input from miners regarding 
whether the dust controls and coal production are representative of 
usual operations.
E. Section 75.371 Mine Ventilation Plan: Contents
    Proposed Sec.  75.371(f), (j) and (t) would revise the information 
that operators would be required to provide in mine ventilation plans.
    Proposed paragraph (f) would add a new requirement to include the 
minimum quantity of air that would be delivered to the working section 
for each mechanized mining unit. It would also add a new requirement 
that the description of each different dust suppression system used on 
equipment on each working section be identified by make and model. The 
proposed rule would add new requirements in paragraphs (f)(1) through 
(f)(4) to include in plans the following information related to each 
section: (1) The number, types, location, orientation, operating 
pressure, and flow rate of operating water sprays; (2) the maximum 
distance that ventilation control devices will be installed from each 
working face when mining or installing roof bolts in entries and 
crosscuts; (3) procedures for maintaining the roof bolter dust 
collection system, if used, in approved condition; and (4) recommended 
best work practices for equipment operators to minimize dust exposure.
    Proposed paragraph (j) would be revised to add a new requirement 
that the type and size of dust collector screens used and a description 
of the procedures to be followed in properly maintaining dust 
collectors used on equipment be included in the ventilation plan.
    The proposed revisions are consistent with the 1992 Report of the 
Coal Mine Respirable Dust Task Group, which identified insufficient 
detail and specificity as a major factor that can adversely affect the 
quality of dust control plans. Proposed paragraphs (f)(1) through 
(f)(3) are also consistent with the recommendations of a recent 
targeted enforcement initiative conducted by MSHA's Respirable Dust 
Emphasis Teams, which focused on miners' exposures to respirable coal 
mine dust at selected underground coal mines as part of the Agency's 
Comprehensive Initiative to End Black Lung--Act Now! MSHA determined 
that due to ambiguities in ventilation plans, miners had trouble 
determining the types of dust controls to use and how to evaluate their 
effectiveness. After reviewing results from this initiative, MSHA 
stated that operators should include in their plans: The type of water 
sprays and water volume at the minimum pressure to be used; orifice 
size; spray pattern; location where each type of spray will be used; 
and minimum number of sprays that will be maintained. Recommendations 
also included the location of curtains where roof bolting is being 
performed since the distance from the face is important in the 
effectiveness of ventilation. Guidance was provided to mine operators 
on the proper maintenance of roof bolter dust collectors.
    In the 2003 plan verification proposed rule, MSHA proposed 
revisions to Sec.  75.371 to require operators to include any specific 
work practices used to minimize the dust exposure of individual miners, 
along with information on the location of the roof bolter during the 
mining cycle for each continuous miner section, and the cut sequence 
for each longwall mining section in the ventilation plan. Some 
commenters on the proposal stated that more dust control parameters and 
information should be contained in plans. In response to comments and 
consistent with the Agency's findings in its ongoing Dust Emphasis 
Program, the proposal would require that ventilation plans include more 
information and specificity on dust suppression systems used and best 
work practices used by equipment operators to minimize dust exposure. 
The additional information that MSHA proposes to include in the 
ventilation plan would allow both operators and MSHA to observe and 
measure specific dust control parameters to better evaluate the 
effectiveness of the dust control systems. This would result in greater 
protection to miners from hazards of respirable dust. In addition, if a 
respirable dust standard were exceeded, the operator and MSHA would be 
in a better position to determine why (e.g., whether the plan was not 
followed or it was inadequate).
    Another commenter on the 2003 plan verification proposal stated 
that operators must have flexibility to adjust ventilation and water 
pressure in order to meet the specific conditions of the mine.
    MSHA does not intend to limit the operator's ability to make 
appropriate adjustments to mine ventilation and dust suppression 
systems for MMUs. MSHA recognizes that ventilation and dust suppression 
systems necessary to control respirable dust must be based on the 
conditions of the mine.
    Proposed Sec.  75.371(t) would include a nonsubstantive change to 
replace a parenthetical reference to existing Sec.  70.208 with 
proposed Sec.  70.209, because Sec.  70.208 has been redesignated as 
Sec.  70.209 in the proposed rule.

30 CFR Part 90

A. Section 90.1 Scope
    Proposed Sec.  90.1 would be revised to include surface coal miners 
and to make a conforming change. The proposal would extend to all coal 
miners who have evidence of the development of pneumoconiosis the 
option to work in an area of a mine where the average concentration of 
respirable dust in the mine atmosphere during each shift is 
continuously maintained at or below the applicable standard. Surface 
coal miners are at risk of developing pneumoconiosis as a result of 
exposure to respirable coal mine dust. Chest x-ray examinations enable 
early detection of pneumoconiosis, which is irreversible and, if 
exposure continues, progressive. In the absence of medical monitoring 
and intervention, a miner may continue to be exposed, allowing the 
disease to progress so that the miner may suffer material impairment of 
health or functional capacity.
    The proposal would also make a conforming change that would revise 
the existing standard to require mine operators to continuously 
maintain the average concentration of respirable dust to which the part 
90 miner would be exposed at or below ``the applicable standard'' as 
specified in proposed Sec.  90.100. The proposed language, ``the 
applicable standard,'' would replace the existing language, ``1.0 
milligrams per cubic meter of air.'' This conforming change would be 
necessary because the Agency is proposing to phase in a lower 
respirable dust standard, from 1.0 mg/m\3\ to 0.5 mg/m\3\, in proposed 
Sec.  90.100 on [date six months after the effective date of the final 
rule].
B. Section 90.2 Definitions
    The proposed definitions of approved sampling device, CMDPSU, CPDM, 
equivalent concentration, MMU, quartz, weekly accumulated exposure, and 
weekly permissible accumulated exposure, are the same as proposed part 
70 definitions discussed elsewhere in the preamble related to proposed 
Sec.  70.2.
Part 90 Miner
    The proposed rule would amend the existing definition of part 90 
miner to

[[Page 64452]]

state it applies to a miner employed at ``a coal mine.'' This proposed 
revision would conform with proposed Sec.  90.3, which extends part 90 
protections to surface miners. Proposed Sec.  90.3 is discussed 
elsewhere in the preamble.
    The proposal would also make a conforming change to replace ``1.0 
mg/m\3\'' with ``the applicable standard.'' The change would reflect 
that the respirable dust standard would change from 1.0 mg/m\3\ to 0.5 
mg/m\3\ after a six-month phase-in period. Other minor nonsubstantive 
changes would be made.
Representative Samples
    The proposal would add a new definition for representative samples. 
It would be defined as respirable dust samples that reflect typical 
dust concentration levels in the working environment of the part 90 
miner when the miner is performing normal work duties.
    MSHA would consider that ``typical dust concentration levels'' are 
present during sampling if they approximate and are characteristic of 
the part 90 miner's dust concentration levels during periods of non-
sampling. Under the proposed rule, samples must be taken while the part 
90 miner is engaged in normal work duties, as that term is defined in 
existing Sec.  90.2. Samples taken when the part 90 miner performs an 
atypical task, or other activity that does not mirror duties performed 
on a routine day-to-day basis in the part 90 miner's job classification 
at the mine would not be considered representative samples for the part 
90 miner.
    The proposed definition would be added to ensure that operators 
conduct dust sampling when working conditions accurately represent 
miners' dust exposures. This would allow operators and MSHA to more 
effectively evaluate the performance of dust controls and the adequacy 
and effectiveness of operators' approved plans.
C. Section 90.3 Part 90 Option; Notice of Eligibility; Exercise of 
Option
    For the same reason stated in proposed Sec.  90.1, proposed Sec.  
90.3(a) would be revised to extend to surface coal miners the option to 
work in an area of a mine where the average concentration of respirable 
dust in the mine atmosphere during each shift is continuously 
maintained at or below ``the applicable standard'' as specified in 
proposed Sec.  90.100, which is discussed elsewhere in the preamble. 
The proposal would also include a conforming change. The proposed 
language, ``the applicable standard,'' would replace the existing 
language, ``1.0 milligrams per cubic meter of air'' to reflect that the 
respirable dust standard would change from 1.0 mg/m\3\ to 0.5 mg/m\3\ 
after a six-month phase-in period.
    The proposal would make conforming changes to proposed Sec.  
90.3(d) and (e) to extend the part 90 transfer option to surface coal 
miners.
D. Section 90.100 Respirable Dust Standard
    Proposed Sec.  90.100 would reduce the respirable dust standard 
from 1.0 mg/m\3\ to 0.5 mg/m\3\ for part 90 miners on [date six months 
after the effective date of the final rule]. The proposed lower limit 
of 0.5 mg/m\3\ is 50% of the proposed 1.0 mg/m\3\ respirable dust 
standard in proposed Sec.  70.100(a)(4) and 71.100(d), and consistent 
with Sec.  70.100(b)(2). MSHA has included this conforming change to 
prevent the progression of pneumoconiosis. Miners with evidence of 
pneumoconiosis have a higher risk of advancing to a more serious 
condition than do other miners if they continue to be exposed to dust 
(Antao, VC et al., 2005; Lee, HS et al., 2001; Castranova, V and 
Vallyathan, V, 2000; Heppleston, AG, 1988; Ashford, JR, et al., 1965). 
MSHA's QRA shows that, at a standard of 1.0 mg/m\3\, there is a 
residual risk to miners. Reducing the concentration limit for part 90 
miners continues the Agency's regulatory program for providing 
necessary protection for these miners. MSHA solicits comment on the 
proposed phase-in period for lowering the respirable dust limit and 
requests that a detailed rationale accompany any comment or 
recommendation that is submitted.
E. Section 90.101 Respirable Dust Standard When Quartz is Present
    The proposed rule would revise the respirable dust standard for 
part 90 miners when quartz is present in coal mines. The rationale for 
revising Sec.  90.101 is identical to proposed Sec.  70.101, discussed 
elsewhere in this preamble, however, the language in proposed Sec.  
90.101(b) has been tailored to apply to part 90 miners.
F. Section 90.102 Transfer; Notice
    The proposed rule would revise existing Sec.  90.102(a) to include 
an exception to the part 90 miner transfer requirements. Under the 
existing standard, an operator must transfer the miner to an existing 
position at the same coal mine on the same shift or shift rotation on 
which the miner was employed immediately before the transfer. Under the 
proposed rule, transfer requirements would not apply when a part 90 
miner is working in an area that meets the applicable part 90 
respirable dust standard, but circumstances such as reductions in 
workforce or changes in operational methods require a change in the 
miner's job or shift assignment. The proposed exception would 
accommodate the need for operators to reassign part 90 miners when 
unforeseen circumstances and unexpected mine conditions arise. MSHA 
believes that the proposed exception provides operators some necessary 
flexibility with respect to the assignment of a part 90 miner. The 
proposed rule would retain the provision that the operator may transfer 
a part 90 miner to a different coal mine, a newly-created position, or 
a position on a different shift or shift rotation if the miner agrees 
in writing to the transfer. Proposed Sec.  90.102(a) is consistent with 
the Agency's policy and is identical to the 2003 proposed Plan 
Verification rule. The Agency received no comments specific to these 
provisions.
G. Section 90.103 Compensation
    Proposed Sec.  90.103(c) is new and would provide that the existing 
provisions in Sec. Sec.  90.103(a) and (b), concerning compensation for 
a part 90 miner, do not apply when a part 90 miner initiates and 
accepts a change in work assignment for reasons of job preference. This 
proposed provision is consistent with MSHA's longstanding policy of not 
applying the part 90 miner compensation provisions under circumstances 
where, once a miner has been placed in a position that complies with 
the provisions in part 90, the part 90 miner on his own initiative 
applies for and accepts another job in a work area with an average 
respirable dust concentration at or below the applicable part 90 
respirable dust standard.
    The proposal is also consistent with Section 101(a)(7) of the Mine 
Act which provides for compensation at the same rate of pay for miners 
transferred as a result of exposure to respirable dust, but not as a 
result of a miner-initiated transfer based on job preference. As an 
example: A miner exercised the part 90 option when the miner's job paid 
$20 per hour. If the operator keeps the part 90 miner in the same work 
position because compliance with the applicable part 90 respirable dust 
standard is maintained, or if the operator transfers the miner to a new 
work position to achieve compliance with part 90, the miner cannot be 
paid less than $20 per hour--the amount paid immediately before 
exercising the option. However, once the operator has placed the miner 
in a position that complies with the provisions of part 90, if the 
miner prefers a different job and initiates and accepts a job change 
that only pays $17

[[Page 64453]]

per hour, the miner would receive $17 per hour in the new position.
    Under the proposal, a miner-initiated job change to a position that 
is at or below the part 90 respirable dust standard would not 
constitute a waiver of part 90 rights. In the new job, the miner would 
retain part 90 status and all other requirements of part 90 continue in 
effect, including the operator's obligations to continuously maintain 
the part 90 respirable dust standard and to give MSHA notice whenever 
the miner's work assignment changes or lasts longer than one shift. 
Proposed Sec.  90.103(c) is identical to the 2003 proposal on Plan 
Verification. The Agency did not receive any comments specific to these 
provisions.
    The proposed rule would redesignate: existing Sec.  90.103(c) as 
proposed Sec.  90.103(d); existing Sec.  90.103(d) as proposed Sec.  
90.103(e); existing Sec.  90.103(e) as proposed Sec.  90.103(f); and 
existing Sec.  90.103(f) as proposed Sec.  90.103(g.) No other changes 
are proposed for these provisions.
H. Section 90.104 Waiver of Rights; Re-exercise of Option
    Proposed Sec.  90.104(a)(2) and (a)(3) would revise the existing 
requirements to include conforming changes to part 90 on the respirable 
dust standard and respirable dust standard when quartz is present. 
Proposed paragraphs (a)(2) and (a)(3) would replace both the ``1.0 
milligrams per cubic meter of air'' and ``the respirable dust standard 
established by Sec.  90.101 (Respirable dust standard when quartz is 
present)'' with the term ``applicable standard.'' MSHA proposed 
identical revisions in 2003 under the proposed rule on Plan 
Verification and received no comments on the proposal.
I. Section 90.201 Sampling; General and Technical Requirements
    The proposed rule would revise operator sampling requirements in 
existing Sec.  90.201 and would phase in the use of CPDMs to collect 
respirable dust samples in the working environment of each part 90 
miner.
    Under the proposed rule, Sec.  90.201(a) would require the operator 
to use the CMDPSU to take respirable dust samples in the working 
environment of each part 90 miner until replaced by the CPDM. On [date 
12 months after the effective date of the final rule], operators would 
be required to replace the CMDPSU with the CPDM to sample part 90 
miners, unless notified by the Secretary. The operator would be allowed 
to start using the CPDM anytime during the 12-month phase-in period. 
Proposed Sec.  90.201(a) is consistent with proposed Sec.  70.201(a); 
however, the language in proposed Sec.  90.201(a) would be tailored to 
apply to part 90 miners. The rationale for the proposed provision is 
the same as that in proposed Sec.  70.201(a), which is discussed 
elsewhere in the preamble.
    Proposed paragraph (b) would retain the existing requirement that 
sampling devices be worn or carried directly to and from each part 90 
miner's position. It would revise the existing standard to require that 
a CPDM be worn at all times if it is used for sampling. It would also 
revise the existing standard to require that sampling devices be 
operated portal to portal, and be operational during the part 90 
miner's entire shift, even when the shift exceeds 8 hours (extended 
shift). This would include the time spent performing normal work duties 
and while traveling to and from the assigned work location. Proposed 
Sec.  90.201(b) is consistent with proposed Sec.  70.201(e); however, 
the language in proposed Sec.  90.201(b) would be tailored to apply to 
part 90 miners. The rationale for the proposed provision is the same as 
that in proposed Sec.  70.201(e), which is discussed elsewhere in the 
preamble.
    Proposed paragraph (b)(1) is new and would address work shifts 
longer than 12 hours. It would require that when using a CMPDSU and the 
work shift to be sampled is longer than 12 hours, the operator would 
have to switch-out the unit's sampling pump prior to the 13th hour of 
operation. Proposed Sec.  90.201(b)(1) is the same as proposed Sec.  
70.201(e)(1). Proposed paragraph (b)(2) is new and would add a similar 
requirement to address work shifts longer than 12 hours when operators 
use CPDMs. It would require the operator to switch-out the CPDM with a 
fully charged device prior to the 13th-hour of operation. Proposed 
paragraph (b)(2) is the same as proposed Sec.  70.201(e)(2). The 
rationale for proposed Sec.  90.201(b)(1) and (b)(2) is discussed 
elsewhere in the preamble related to proposed Sec.  70.201(e)(1) and 
(e)(2).
    Proposed paragraphs (c)(1) through (c)(3), redesignated from 
existing (f)(1) through (f)(3) retain the existing requirements.
    Proposed paragraphs (d)(1) through (d)(4) are new and would 
require: the mine operator to use one control filter for each shift of 
sampling when a CMDPSU is used; each control filter to have the same 
pre-weight date (noted on the dust data card) as the filters used for 
sampling; each control filter to remain plugged at all times; each 
control filter to be exposed to the same time, temperature, and 
handling conditions as the filter used for sampling, and that each 
control filter be kept together with the exposed samples after 
sampling. Proposed Sec.  90.201(d)(1) through (d)(4) are identical to 
proposed Sec.  70.201(f)(1) through (f)(4) and the rationale is 
discussed elsewhere in the preamble related to proposed Sec.  
70.201(f).
    Proposed paragraph (e) would make a minor revision to the existing 
standard to clarify that it would apply when a CMDPSU is used to take 
respirable dust samples.
    The proposed rule would revise and move existing Sec.  90.201(d) to 
proposed Sec.  90.208(e), which would apply to operators who use a 
CMDPSU for sampling the work environment of part 90 miners. Proposed 
Sec.  90.208(e) is discussed elsewhere in the preamble.
    Proposed paragraph (f) is new and would require the operator to 
make a record showing the length of each shift for each part 90 miner, 
retain the records for at least six months, and make them available for 
inspection by authorized representatives of the Secretary or submitted 
to the District Manager when requested in writing. Operators would need 
to know the length of the work shift to determine the equivalent 
concentration. MSHA would use these records to verify that operators 
are accurately recording the normal work shift lengths so that miners 
are not being overexposed.
    Proposed paragraph (g), redesignated from existing paragraph (c), 
would be revised to require that, upon request from the District 
Manager, the operator would submit the date and time any respirable 
dust sampling would begin. This information would have to be submitted 
to the District Manager at least 48 hours prior to scheduled sampling. 
The proposed 48-hour notification requirement would provide the Agency 
the opportunity to observe and monitor operator sampling which would 
ensure that both operating conditions and sampling requirements are 
met.
    Proposed paragraph (h) is new and would require mine operators 
using CPDMs to provide training to all part 90 miners. Proposed Sec.  
90.201(h) is the same as proposed Sec.  70.201(j) and the rationale is 
discussed elsewhere in the preamble related to proposed Sec.  
70.201(j). In addition, proposed (h)(1)-(5), which are identical to 
proposed Sec.  70.201(j)(1)-(5), would establish the CPDM training that 
would be required. The rationale, discussed elsewhere in the preamble, 
is the same for both.
    Proposed paragraph (i) is new and would require mine operators to 
maintain a record of training at the mine site for two years following 
completion of training. MSHA believes it is important to retain these 
records to

[[Page 64454]]

verify that the required training has been provided. Proposed paragraph 
(i) would also permit a mine operator to maintain the record at another 
location as long as the record could be immediately accessed 
electronically from the mine site. Finally, proposed paragraph (i) 
would require that upon request by an authorized representative of the 
Secretary or Secretary of HHS, the mine operator would be required to 
promptly provide access to any such training record. Proposed Sec.  
90.201(i) is the same as proposed Sec.  70.201(k), except tailored for 
part 90 miners, and the rationale is discussed elsewhere in the 
preamble related to proposed Sec.  70.201(k).
J. Section 90.202 Certified Person; Sampling and Sec.  90.203 Certified 
Person; Maintenance and Calibration
    Proposed Sec. Sec.  90.202 and 90.203 would be identical to 
proposed Sec. Sec.  70.202 and 70.203, discussed elsewhere in this 
preamble.
K. Section 90.204 Approved Sampling Devices; Maintenance and 
Calibration
    Proposed Sec.  90.204 would be identical to proposed Sec.  70.204, 
discussed elsewhere in this preamble.
L. Section 90.205 Approved Sampling Devices; Operation; Air Flowrate
    Proposed Sec.  90.205 would be identical to proposed Sec.  70.205, 
discussed elsewhere in this preamble.
M. Section 90.206 CPDM Performance Plan
    Proposed Sec.  90.206 would be identical to proposed Sec.  70.206, 
discussed elsewhere in this preamble, with a few exceptions. Proposed 
Sec.  90.206(c)(1) would require the CPDM Performance Plan to include 
the specific part 90 miner who will be sampled, identified by the 
unique 8-digit MSHA Individual Identification Number (MIIN) obtained 
from the Agency.
    Also, unlike Sec. Sec.  70.206(a)(1)-(a)(2) and (a)(4) and 
71.206(a)(1)-(a)(2) and (a)(4), proposed Sec.  90.206(a) would not 
include requirements that miners' representatives be notified of 
proposed Plans or plan revisions for any part 90 miner, be given copies 
of plans or plan revisions for affected part 90 miners, or be allowed 
to submit comments on such plans or revisions to the District Manager. 
Similarly, proposed Sec.  90.206 does not include requirements in 
proposed Sec. Sec.  70.206(a)(3) and (c)(3), and 71.206(a)(3) and 
(c)(3), that would require proposed and approved Plans or revisions to 
be posted on the mine bulletin board. Instead, proposed Sec. Sec.  
90.206(d) would require a copy of the approved Plan for the part 90 
miner or revisions be provided to the affected part 90 miner. It would 
also prohibit the posting of the approved Plan or revisions on the mine 
bulletin board. MSHA believes that the proposed provisions and proposed 
prohibition against posting approved Plans or revisions on the bulletin 
board are consistent with existing requirements and would help to 
prevent the unwarranted disclosure of a part 90 miner's identity.
N. Section 90.207 Exercise of Option or Transfer Sampling
    Proposed Sec.  90.207 would remain essentially unchanged from the 
existing standard since only nonsubstantive changes are proposed.
    The proposal would change the title to distinguish it from 
compliance sampling under proposed Sec.  90.208.
    The proposed language in paragraph (a)(2), ``the applicable 
standard,'' would replace the existing language, ``1.0 milligrams per 
cubic meter of air or the respirable dust standard established by Sec.  
90.101 (Respirable dust standard when quartz is present).'' This 
proposed revision reflects that the respirable dust standard would 
change from 1.0 mg/m\3\ to 0.5 mg/m\3\ on [date 6 months after the 
effective date of the final rule] and that a reduced standard could 
apply due to the presence of quartz.
    Other minor editorial changes would be made.
O. Section 90.208 Compliance Sampling; Procedures for Sampling With 
CMDPSUs
    Proposed Sec.  90.208 would revise the existing sampling 
requirements for part 90 miners. The proposal would change the title to 
distinguish it from proposed Sec.  90.209, which would apply to 
operators who use a CPDM to sample part 90 miners.
    Proposed Sec.  90.208(a) would revise existing Sec.  90.208 and 
require operators who use CMDPSUs to take five valid representative 
samples during each quarterly period from the environment of the part 
90 miner while performing normal work duties. The quarterly periods 
would be: (1) January 1-March 31; (2) April 1-June 30; (3) July 1-
September 30; and (4) October 1-December 31. The proposal would also 
require that the samples be collected on consecutive work days. The 
proposed rule would replace the bimonthly sampling period under the 
existing standard with a quarterly sampling period. Also, the proposal 
would increase sampling from one sample during a bimonthly period under 
the existing standard to five samples collected on consecutive work 
days during a quarterly period. Sampling part 90 miners during five 
consecutive work days on a quarterly basis would provide a better 
representation of typical dust conditions to which part 90 miners are 
exposed and, therefore, would provide greater protection for miners.
    In addition, proposed paragraph (a) would require that the samples 
be ``representative samples'' and would no longer include the term 
``respirable dust samples.'' The term representative samples is new and 
is discussed elsewhere in the preamble in Sec.  90.2 related to 
definitions. The proposed change to include representative samples 
would offer greater protection for miners.
    Proposed Sec.  90.208(b), (b)(1), and (b)(2) would apply when the 
respirable dust standard under Sec.  90.101 has been changed due to the 
presence of quartz. Proposed Sec.  90.208(b) is new and would require 
that when the applicable dust standard is changed in accordance with 
proposed Sec.  90.101 (Respirable dust standard when quartz is 
present), the new applicable standard would be effective on the first 
shift on which the part 90 miner is performing normal work duties 
following receipt of the notification of such change from MSHA. 
Proposed Sec.  90.208(b)(1) is derived from existing Sec.  90.208(b). 
Under the proposal, if all samples from the most recent quarterly 
sampling period do not exceed the new applicable standard, the operator 
would begin sampling of the part 90 miner on the first shift on which 
the miner is performing normal work duties during the next quarterly 
period following notification from MSHA of the change in the applicable 
standard. Proposed paragraph (b)(2) is new and would require that if 
any sample from the most recent quarterly sampling period exceeds the 
new applicable standard, the operator must make necessary adjustments 
to the dust control parameters within three days and collect samples 
from the affected part 90 miner on consecutive work days until five 
valid representative samples are collected. The collected samples would 
be treated as normal quarterly samples. Proposed Sec.  90.208(b), 
(b)(1), and (b)(2) are consistent with proposed Sec.  70.207(c), 
(c)(1), and (c)(2). The rationale for proposed Sec.  90.208(b), (b)(1), 
and (b)(2) is the same as that for Sec.  70.207(c), (c)(1), and (c)(2), 
which is discussed elsewhere in the preamble.
    Proposed Sec.  90.208(c) is new and would require that no valid 
single-shift equivalent concentration shall meet or exceed the ECV that 
corresponds to the applicable standard. The ECVs are listed in Table 
90-1. Proposed Sec.  90.208(c) is

[[Page 64455]]

consistent with proposed Sec.  70.207(e). A discussion on the proposed 
use of ECVs and rationale is addressed elsewhere in the preamble under 
proposed Sec.  70.207(e).
    The proposed rule would redesignate existing Sec.  90.208(c) as 
proposed Sec.  90.208(d). Proposed Sec.  90.208(d) would require that 
upon issuance of a citation for a violation of the applicable standard, 
paragraphs (a) (quarterly sampling) and (b)(2) (sampling when a 
respirable dust standard is changed due to quartz) would not apply to 
the part 90 miner until the violation is abated in accordance with 
proposed paragraph (e). Proposed Sec.  90.208(d) is consistent with 
proposed Sec.  70.207(f). The rationale is the same as that for 
proposed Sec.  70.207(f) discussed elsewhere in the preamble. The 
proposal would make conforming, nonsubstantive revisions to the 
existing standard. Proposed Sec.  90.208(d) would replace ``Sec.  
90.100 (Respirable dust standard) or Sec.  90.101 (Respirable dust 
standard when quartz is present)'' with ``the applicable standard'' to 
be consistent with other proposed part 70, 71, and 90 provisions. The 
proposal would also replace ``Sec.  90.201(d)'' with ``paragraph (e)'' 
since proposed Sec.  90.208(e) would address the operators' 
requirements to abate violations of the respirable dust standard for 
part 90 miners.
    Proposed Sec.  90.208(e), derived from existing Sec.  90.201(d), 
would require the operator to take the following actions during the 
time for abatement fixed in a citation for violation of the applicable 
standard. Proposed paragraph (e)(1) would require the operator to make 
respirators available to the affected part 90 miner in accordance with 
proposed Sec.  72.700. Proposed paragraph (e)(2) would require the 
operator to submit, to the District Manager for approval, proposed 
corrective actions to lower the concentration of respirable dust to 
within the applicable standard. If the corrective action involves 
reducing the respirable dust levels in the work environment of the part 
90 miner, proposed paragraph (e)(2) would require the operator to 
implement the proposed corrective actions after receipt of approval by 
the District Manager, and then sample the affected part 90 miner until 
five valid representative samples are taken.
    If the corrective action taken by the operator involves 
transferring the part 90 miner to another work position in the mine to 
meet the applicable standard, proposed paragraph (e)(2)(ii) would 
require the operator to comply with proposed Sec.  90.102 and then 
sample the affected miner in accordance with proposed Sec.  90.207(a). 
Proposed Sec.  90.208(e)(1) and (e)(2)(i) are consistent with proposed 
Sec. Sec.  70.207(g)(1)-(g)(3) and 70.209(e)(1)-(e)(3). The rationale 
for proposed Sec.  90.208(e)(1) and (e)(2)(i) is identical to that in 
proposed Sec.  70.207(g), which discussed elsewhere in this preamble. 
Proposed Sec.  90.208(e)(2)(ii) would clarify that other part 90 
requirements apply when the applicable standard for a part 90 miner is 
exceeded and the operator transfers a part 90 miner to meet the 
standard.
    Proposed Sec.  90.208(f), derived from existing Sec.  90.300(a), is 
new and would establish that a citation for violation of an applicable 
standard will be terminated by MSHA when: (1) the equivalent 
concentration of each of the five valid operator abatement samples is 
at or below the applicable standard; and (2) the operator submits a 
proposed dust control plan for the part 90 miner or proposed changes to 
the approved dust control plan as prescribed in proposed Sec.  90.300 
to the District Manager for approval within 15 calendar days after 
sampling results are received from MSHA indicating the concentration 
has been reduced to or below the applicable standard. The proposal also 
requires that the revised parameters must reflect the control measures 
used to maintain the concentration of respirable dust to or below the 
applicable standard. The proposed provision is consistent with proposed 
Sec. Sec.  70.207(h) and 71.207(l). MSHA believes that this proposal 
would assure that dust control parameters in the approved dust control 
plan for that part 90 miner are appropriate and demonstrate that they 
effectively reduce the miner's respirable dust exposure.
    Proposed Sec.  90.208(g) is new and would require that when the 
equivalent concentration of one or more valid samples collected by the 
operator under this section exceeds the applicable standard but is less 
than the ECV that corresponds to the applicable standard in Table 90-1, 
the operator would be required to: (1) Make approved respirators 
available to affected miners in accordance with proposed Sec.  72.700; 
(2) take corrective action to lower the respirable dust concentration 
to or below the applicable standard; and (3) record the corrective 
actions taken in the same manner as the records for hazardous 
conditions required by existing Sec.  75.363. This proposed provision 
and its rationale are identical to proposed Sec.  70.207(i).
P. Section 90.209 Compliance Sampling; Procedures for Sampling With 
CPDMs
    Proposed Sec.  90.209 is new and would provide requirements on 
sampling the working environment of part 90 miners when using a CPDM. 
It addresses: frequency of sampling; actions to be taken when any end-
of-shift concentration exceeds the applicable standard; actions to be 
taken when overexposures occur; and requirements when transferring a 
part 90 miner as part of the operator's corrective actions.
    Proposed Sec.  90.209(a) would require operators who use CPDMs to 
sample the working environment of the part 90 miner during each shift, 
7 days per week (Sunday through Saturday), 52 weeks per year. The 
proposal is consistent with proposed Sec.  70.208(a)(1). MSHA believes 
that continuous monitoring of part 90 miners on every shift during the 
year is the most effective method of reducing their exposure to 
respirable coal mine dust and preventing any further progression of 
black lung disease. Both operators and part 90 miners would be aware 
continually of the dust conditions in the working environment and the 
effectiveness of dust controls.
    Proposed Sec.  90.209(b) would require that when the applicable 
dust standard is changed in accordance with proposed Sec.  90.101 
(Respirable dust standard when quartz is present), the new applicable 
standard would become effective on the first shift that the part 90 
miner is performing normal work duties following receipt of the 
notification of the change from MSHA. Proposed Sec.  90.209(b) is 
identical to proposed Sec.  90.208(b) and consistent with proposed 
Sec. Sec.  70.207(c) and 70.208(c). The proposal would protect part 90 
miners by ensuring prompt implementation of the reduced standard when 
there is high quartz exposure. The proposed provision is consistent 
with Agency policy and would provide increased health protection for 
part 90 miners.
    Proposed Sec.  90.209(c) would require that for operators who use a 
CPDM, no valid end-of-shift equivalent concentration shall meet or 
exceed the ECV that corresponds to the applicable standard. The ECVs 
are listed in Table 90-2. Proposed Sec.  90.209(c) is consistent with 
proposed Sec. Sec.  70.207(e) and 70.208(d). As discussed elsewhere in 
the preamble under proposed Sec. Sec.  70.207(e) and 70.208(d), and in 
Appendix A, ECVs are calculated to ensure that citations are issued 
only when a single sample measurement demonstrates, with at least 95-
percent confidence, that the applicable dust standard has been 
exceeded. The rationale for proposed Sec.  90.209(c) is the same as 
that in proposed Sec.  70.207(e), which is discussed elsewhere in the 
preamble.

[[Page 64456]]

    Proposed Sec.  90.209(d) would require that no weekly accumulated 
exposure (WAE) shall exceed the weekly permissible accumulated exposure 
(WPAE). The proposed terms ``weekly accumulated exposure'' and ``weekly 
permissible accumulated exposure'' are new and discussed elsewhere in 
the preamble under the Sec.  90.2 definitions. For example, suppose a 
CPDM reported an equivalent concentration of 1.0 mg/m\3\ for a part 90 
miner who worked nine hours on Monday. Under the proposed definition of 
WAE, this quantity would be multiplied by 8 hours, yielding an 
accumulated exposure on Monday of 1.0 mg/m\3\ x 8 hours or 8.00 mg-hr/
m\3\. If the part 90 miner worked the rest of the week, including 
Saturday, the exposure accumulated during each of the other five shifts 
would be determined in the same manner. If the daily exposures 
accumulated by the part 90 miner for the week were recorded as follows: 
Monday--8.00 mg-hr/m\3\; Tuesday--6.32 mg-hr/m\3\; Wednesday--7.84 mg-
hr/m\3\; Thursday--6.80 mg-hr/m\3\; Friday--5.69 mg-hr/m\3\; Saturday--
4.16 mg-hr/m\3\, adding together the daily accumulated exposures yields 
a WAE of 38.81 mg-hr/m\3\.
    To continue, if the applicable standard for the part 90 miner is 1 
mg/m\3\, this quantity would be multiplied by 40 hours, yielding a WPAE 
of 40 mg-hr/m\3\ for the part 90 miner. Since the WAE for the part 90 
miner is 38.81 mg-hr/m\3\, it would not exceed the WPAE of 40 mg-hr/
m\3\.
    Proposed paragraph (d) would assure that the part 90 miner's 
respirable dust exposure for the work week would be limited to a 
calculated weekly permissible accumulated exposure for an equivalent 
40-hour work week. This proposed paragraph is consistent with the NIOSH 
Criteria Document, which recommended that respirable coal mine dust be 
limited to 1 mg/m\3\ as a TWA concentration for up to 10 hr/day during 
a 40-hour work week. Proposed Sec.  90.209(d) and its rationale are 
identical to proposed Sec.  70.208(e), which is discussed elsewhere in 
the preamble.
    Proposed Sec.  90.209(e) would require the operator to take 
actions, listed in proposed paragraphs (e)(1) through (e)(6), when a 
valid end-of-shift equivalent concentration meets or exceeds the ECV 
that corresponds to the applicable standard in Table 90-2, or a weekly 
accumulated exposure exceeds the weekly permissible accumulated 
exposure. The operator would be required to take the actions before the 
part 90 miner's next work shift begins. Proposed Sec.  90.209(e) is 
consistent with proposed Sec.  70.208(f); however, the language in 
proposed Sec.  90.209(e) is tailored to apply to part 90 miners.
    Proposed paragraph (e)(1) would require operators to make approved 
respirators available to affected part 90 miners in accordance with 
proposed Sec.  72.700. The proposal is consistent with existing Sec.  
70.300, which requires the operator to make respiratory equipment 
available to all persons exposed to excessive concentrations of 
respirable dust. The rationale for this proposed provision is the same 
as that for proposed Sec. Sec.  70.207(i)(1) and 70.208(f)(1) discussed 
elsewhere in the preamble.
    Proposed paragraph (e)(2) would require the operator to implement 
corrective actions to assure compliance with the applicable standard on 
the next and subsequent work shifts. Corrective actions would include, 
for example, engineering or environmental controls that reduce the 
level of respirable dust, or transferring the part 90 miner to another 
position at the mine that is at or below the applicable standard. MSHA 
believes that the proposal would improve protections for part 90 
miners, since the operator would need to determine factors that may 
have contributed to the overexposure and take corrective actions 
beginning on the part 90 miner's next work shift.
    Under proposed paragraph (e)(3), if the corrective actions involve 
implementing dust control measures to lower the miner's respirable dust 
to within the applicable standard, the operator must submit the 
corrective actions as a proposed dust control plan, or proposed changes 
to an approved plan, for the part 90 miner. The proposal would require 
that the plan or plan changes be submitted as required in proposed 
Sec.  90.300 to the District Manager for approval within 3 days of 
determining that the applicable standard has been exceeded. The 
rationale for proposed Sec.  90.209(e)(3) is the same as that in 
proposed Sec.  70.208(f)(3), which is discussed elsewhere in the 
preamble.
    Proposed paragraph (e)(4) would require the operator to review the 
adequacy of the approved CPDM Performance Plan in relation to the part 
90 miner. It would require the operator to submit any plan revisions, 
if needed, to the District Manager for approval. Plan revisions would 
be required to be submitted within 7 calendar days after the operator 
provides the end-of-shift equivalent concentration to the part 90 
miner. Under the proposed rule, for example, if the applicable standard 
is exceeded, the operator would review the adequacy of the CPDM 
Performance Plan for the affected part 90 miner to assure that 
sufficient actions are required to prevent respirable dust 
concentrations from exceeding citable ECV levels and expose the miner 
to excessive dust. The proposed provision is consistent with proposed 
Sec.  70.208(f)(4). MSHA believes that requiring the operator to review 
the CPDM plan would assist the operator in monitoring part 90 miners' 
exposure to respirable coal mine dust and in verifying the adequacy of 
the dust control parameters. In addition, like proposed Sec.  
70.208(f)(4), MSHA believes a 7-calendar day period is a reasonable 
amount of time for the operator to review and submit CPDM plan 
revisions for approval.
    Proposed paragraph (e)(5), which is identical to proposed Sec.  
70.208(f)(5), would require the operator to record the reported 
excessive dust condition as part of and in the same manner as the 
records for hazardous conditions required by existing Sec.  75.363. The 
proposal would require the record to include the following information: 
(i) Date of sampling; (ii) length of the sampled shift; (iii) location 
within the mine and the occupation where the sample was collected; (iv) 
the end-of-shift equivalent concentration, or weekly accumulated 
exposure and the weekly permissible accumulated exposure; and (v) 
corrective action taken to reduce the concentration of respirable coal 
mine dust to or below the applicable standard. The rationale for 
proposed Sec.  90.209(e)(5) is the same as that for proposed Sec.  
70.208(f)(5), which is discussed elsewhere in the preamble.
    Proposed paragraph (e)(6) would require the operator to comply with 
proposed Sec. Sec.  90.102(c) and 90.207(a) when an operator transfers 
a part 90 miner to meet the applicable standard. MSHA believes that 
transferring a part 90 miner is an acceptable method to meet the 
applicable standard and protect the miner's health as long as the 
operator complies with proposed Sec.  90.102(c) notice requirements and 
proposed Sec.  90.207(a) sampling requirements.
    Proposed Sec.  90.209(f) would require the operator to take 
actions, listed in proposed paragraphs (f)(1) through (f)(4), when any 
valid end-of-shift equivalent concentration exceeds the applicable 
standard but is less than the ECV that corresponds to the applicable 
standard in Table 90-2. Proposed Sec.  90.209(f)(1) through (f)(4), 
like proposed Sec.  70.208(g)(1) through (g)(4), would require the 
operator to make respirators available, implement corrective actions, 
record the reported excessive dust conditions, and review the adequacy 
of the CPDM Performance

[[Page 64457]]

Plan. MSHA believes that corrective action taken when the applicable 
standard is exceeded would assure that respirable dust concentrations 
do not get to citable ECV levels and the part 90 miner's exposure to 
excessive dust is minimized.
    Proposed Sec.  90.209(f)(1) and (f)(2) would require the operator 
to make approved respirators available to the affected part 90 miners 
and implement corrective actions. MSHA believes these proposed 
requirements are necessary to prevent miners' overexposure to 
respirable dust and would provide improved protection for miners. The 
proposed provisions are consistent with proposed Sec.  90.209(e)(1) and 
(e)(2) and proposed Sec.  70.208(g)(1) and (g)(2). The rationale for 
this part 90 provision is the same as that for proposed Sec.  
70.208(g)(1) and (2), which is discussed elsewhere in the preamble.
    Proposed Sec.  90.209(f)(3), like proposed Sec.  90.209(e)(5) and 
proposed Sec.  70.208(g)(3), would require the operator to record the 
reported excessive dust condition as part of and in the same manner as 
the records for hazardous conditions required by existing Sec.  75.363. 
The proposal would require the record to include the following 
information: (i) Date of sampling; (ii) length of the sampled shift; 
(iii) location within the mine and the occupation where the sample was 
collected; (iv) the end-of-shift equivalent concentration; and (v) 
corrective action taken to reduce the concentration of respirable coal 
mine dust to or below the applicable standard. Like other similar 
proposed part 70 and 90 provisions, the record would provide useful 
information for operators, miners, and MSHA to evaluate dust exposures, 
whether such conditions are recurring, and the effectiveness of the 
dust controls being used.
    Proposed paragraph (f)(4) would require the operator to review the 
adequacy of the approved CPDM Performance Plan applicable to part 90 
miners. It would require the operator to submit any plan revisions, if 
needed, to the District Manager for approval. Plan revisions would be 
required to be submitted within 7 calendar days after the operator 
provides the end-of-shift equivalent concentration to the part 90 
miner. This proposed provision is consistent with proposed paragraph 
(e)(4). The rationale for proposed Sec.  90.209(f)(4) is the same as 
that for proposed Sec.  90.209(e)(4).
Q. Section 90.210 Respirable Dust Samples; Transmission by Operator
    Proposed Sec.  90.210, redesignated from existing Sec.  90.209, 
would revise requirements for the operator to transmit sampling 
information collected by either a CMDPSU or CPDM. It would revise 
paragraphs (a) and (c) and add a new paragraph (f); paragraphs (b), (d) 
and (e) would remain the same.
    Proposed paragraph (a) would make a non-substantive change to 
clarify that it only applies to operators' transmission of samples 
collected with a CMDPSU.
    Proposed paragraph (c) would retain the existing requirement that 
only persons certified in sampling complete the dust data card provided 
by the manufacturer of the filter cassette. It would be revised to 
require that each dust data card be signed by the certified person who 
actually performed the sampling shift examinations. Consistent with 
MSHA's existing policy, the proposal would also require that the 
person's signature on the data card include that person's MSHA 
Individual Identification Number (MIIN). Proposed Sec.  90.210(c) is 
identical to proposed Sec.  70.210(c), and the rationale is discussed 
elsewhere in the preamble related to proposed Sec.  70.210(c).
    Proposed paragraph (f) is new and would apply when operators use 
CPDMs to sample. It would require that, within 12 hours after the end 
of the last sampling shift of the work week, a designated mine official 
must validate, certify, and transmit electronically to MSHA all daily 
sample and error data file information collected during the previous 
calendar week (Sunday through Saturday) and stored in the CPDM. It 
would also require the operator to maintain all CPDM data files 
transmitted to MSHA for at least 12 months. Proposed Sec.  90.210(f) is 
identical to proposed Sec.  70.210(f), and the rationale is discussed 
elsewhere in the preamble related to proposed Sec.  70.210(f).
R. Section 90.211 Respirable Dust Samples; Report to Operator
    Proposed Sec.  90.211, redesignated from existing Sec.  90.210, 
would address data contained in MSHA's report of respirable dust 
samples provided to operators. It would also address requirements for 
the operators' report provided to each part 90 miner. Proposed 
paragraphs (a)(1), (a)(5), (a)(6), and (b) would remain the same.
    Proposed paragraph (a) would include minor editorial changes. 
Proposed paragraph (a)(2) would replace the language ``mechanized 
mining unit'' with ``locations'' to assure that all areas where part 90 
miners work would be included.
    Proposed paragraphs (a)(3) and (a)(4) would include conforming 
changes by adding that the concentration of respirable dust be 
expressed ``as an equivalent concentration.'' The changes are 
consistent with other proposed provisions that specify that the 
concentration of respirable coal mine dust is converted to and 
expressed as an 8-hour equivalent concentration.
    Proposed paragraph (a)(7) would revise the existing requirement to 
specify that MSHA's report will contain the part 90 miner's MSHA 
Individual Identification Number (MIIN) instead of a social security 
number. To assure privacy and to comport with Federal requirements 
related to safeguarding personal-identifiable information, MSHA has 
eliminated the use of social security numbers on its documents.
    Proposed paragraph (c) is new and would apply to operators who use 
a CPDM. It would require the designated mine official to validate, 
certify, and provide certain sampling information to each part 90 
miner. Proposed paragraph (c)(1) would require the designated mine 
official to provide each part 90 miner with a report of the daily end-
of-shift sampling results within 1 hour of the part 90 miner's next 
work shift. The daily report must include the: mine identification 
number; location in the mine from which samples were taken; respirable 
dust concentration expressed as an equivalent concentration for each 
valid sample; total amount of exposure accumulated by the part 90 
miner; occupation code; reason for voiding any sample; the part 90 
miner's MIIN; and the shift length. This information, similar to that 
required under existing Sec.  90.210 would provide miners with sampling 
and exposure information for the shift. Under the proposal, the 
District Manager could require any other information, such as the 
duties performed during the shift (i.e., shoveling the belt or building 
stoppings), or the special purpose for sampling (certifying the part 90 
miner in a new occupation or evaluating a new work location).
    Proposed paragraph (c)(2) would require the designated mine 
official to provide to the part 90 miner the weekly accumulated 
exposure (WAE) and the weekly permissible accumulated exposure (WPAE) 
within 1 hour after the start of the part 90 miner's next work shift of 
a new work week (Sunday through Saturday). Providing part 90 miners 
with a copy of the WAE and WPAE would inform them of the total amount 
of coal mine dust exposure accumulated during the work week, as

[[Page 64458]]

well as the maximum amount of accumulated exposure to coal mine dust 
permitted to be received during a normal work week. Providing these 
data would assure that part 90 miners are informed of their weekly 
exposure levels so that they can take a proactive role in their health 
protection.
    Proposed paragraph (d) is new and would not allow the operator to 
post part 90 sampling data on the mine bulletin board. This proposal is 
consistent with existing Sec.  90.210(b).
S. Section 90.212 Status Change Reports
    Proposed Sec.  90.212(a), redesignated from existing Sec.  90.220, 
would provide operators the option of reporting to MSHA changes in the 
status of a part 90 miner electronically instead of in writing.
    Proposed paragraph (b) is new and would require the designated mine 
official to report status changes that affect the operational readiness 
of any CPDM within 24 hours after the status change has occurred. 
Examples could include a malfunction or breakdown of a CPDM that is 
needed for sampling, or failure to have a spare CPDM available for 
required sampling. Since MSHA would rely on data provided by the CPDM 
to evaluate dust controls and to assure that miners are not exposed to 
excessive levels of respirable coal mine dust, the Agency would need to 
be informed of any circumstances that would affect the operational 
readiness of CPDMs.
T. Section 90.300 Respirable Dust Control Plan; Filing Requirements
    Proposed Sec.  90.300 would address requirements for filing a dust 
control plan for a part 90 miner. MSHA is proposing to revise Sec.  
90.300(a) and 90.300(b)(2) and (b)(3); no changes are proposed for 
Sec.  90.300(b)(1) or (b)(4).
    Proposed Sec.  90.300(a) would require that the operator submit a 
written respirable dust control plan to the District Manager for a part 
90 miner identified in a citation and that the plan be adequate to 
continuously maintain respirable dust within the applicable standard 
for the part 90 miner. The proposed change ``applicable standard'' 
would replace ``permissible concentration'' in existing Sec.  
90.300(a). MSHA's rationale for proposing this change is the same as 
for proposed Sec.  71.300(a), i.e., to reflect the Agency's intent that 
the dust control plan must be sufficient to maintain dust levels at or 
below the applicable standard to ensure that respirable dust 
concentrations do not get to ECV levels. This would assure improved 
protection for miners.
    The proposed rule would delete language in existing Sec.  90.300(a) 
that requires submission of a respirable dust control plan for the part 
90 miner within 15 calendar days after termination of a citation for 
violation of Sec.  90.100 or Sec.  90.101. Instead proposed Sec.  
90.300(a) would require the plan to be submitted ``As required by Sec.  
90.208(f) and Sec.  90.209(e)(3).'' Both referenced sections, Sec.  
90.208(f) and Sec.  90.209(e)(3), are discussed elsewhere in the 
preamble and specify the timeframes for operators to submit a 
respirable dust control plan, or proposed changes to an approved plan, 
when a CMDPSU or a CPDM is used.
    Proposed Sec.  90.300(b) would address the information that must be 
included in the dust control plan for a part 90 miner and would remain 
essentially unchanged from the existing requirements. Proposed Sec.  
90.300(b)(2) would revise the existing standard to require the dust 
control plan to include the name and MSHA Individual Identification 
Number (MIIN) of the part 90 miner instead of the part 90 miner's 
social security number as required by the existing standard. To assure 
privacy and to comport with Federal requirements related to 
safeguarding personal identifiable information, MSHA has eliminated the 
use of social security numbers on it documents. This requirement is 
consistent with MSHA's Program Policy Letter No. P08-III-1 (April 21, 
2008). Proposed Sec.  90.300(b)(3) would require the dust control plan 
include a detailed description of the specific respirable dust control 
measures used to continuously maintain concentrations of respirable 
coal mine dust at or below the applicable standard. The proposal would 
revise the existing standard, which requires a detailed description of 
control measures used to ``abate violations'' of the respirable dust 
standard. The proposed revision would clarify that the dust control 
measures must be sufficient to continuously maintain dust levels at or 
below the applicable standard and not overexpose part 90 miners. The 
proposal would improve the health protections of part 90 miners.
U. Section 90.301 Respirable Dust Control Plan; Approval by District 
Manager; Copy to Part 90 Miner
    Proposed Sec.  90.301 would address the criteria MSHA would use to 
approve the dust control plan, as well as require operators' compliance 
with plan provisions. Proposed Sec.  90.301(a)(1) and (b) would be 
identical to proposed Sec.  70.301, discussed elsewhere in this 
preamble. MSHA is not proposing revisions to paragraphs (a)(2), and (c) 
through (e).

IV. Health Effects

A. Introduction

    This section summarizes the health effects from occupational 
exposure to respirable coal mine dust. MSHA discussed health effects in 
its Notice of Proposed Rulemaking (NPRM) on Plan Verification, which 
was published on March 6, 2003 (68 FR 10784). The literature referenced 
in that document pre-dated 1999. This section discusses the more recent 
literature dating from 1997 to mid-2009 with occasional references to 
earlier papers.
    Pulmonary disease in miners chronically exposed to coal mine dust 
consists of interstitial and obstructive diseases. Miners develop Coal 
Workers' Pneumoconiosis (CWP) or chronic obstructive pulmonary disease 
(COPD). There are no specific treatments to cure pneumoconiosis or 
COPD. These chronic effects may progress even after miners are no 
longer exposed to coal dust resulting in increased disability and 
death. Other complications may follow, such as pulmonary and cardiac 
failure, that result in total disability and premature death.
    Reduction of coal mine dust exposure is the only effective way to 
prevent either CWP or COPD. Screening and surveillance programs detect 
trends and clusters of disease occurrences and allow secondary 
preventive intervention to slow the rate of progression in individual 
miners. Data from screening and surveillance programs provide estimates 
of the prevalence of occupational respiratory disease among working 
coal miners.
    At the existing standard of 2.0 mg/m \3\, cases of CWP and COPD 
continue to occur. In recent years, the prevalence of CWP has increased 
among experienced miners, and in some cases, CWP has progressed rapidly 
to PMF. The persistence of disease requires that additional action be 
taken to reduce coal mine dust exposures. The proposed requirements 
would result in a further reduction in occupational pulmonary disease, 
disability, and premature mortality in coal miners.

B. Hazard Identification

1. Agent: Coal Mine Dust
    Coal may be classified on the basis of its type, grade, and rank. 
The type of coal is based on the plant material (e.g., lignin, 
cellulose) from which it originated. The grade of coal refers to its 
chemical purity. Although coal is largely carbon, it may also contain 
other elements such as hydrogen, oxygen,

[[Page 64459]]

nitrogen, and sulfur. Coal rank reflects the stage the coal has reached 
on the coalification path (i.e., the processes involved in the 
historical transformation of plants to form peat, lignite, sub-
bituminous coal, bituminous coal, and anthracite). High rank ``hard'' 
coal refers to coal with a higher carbon content (e.g., 90-95%) than 
``soft'' coal (e.g., 65-75%). In addition to hardness, coal rank refers 
to its fixed carbon content, down to 65%, and then by its heating value 
and amount of volatile matter. The most commonly described coal ranks 
include lignite (low rank), bituminous coal (medium rank), and 
anthracite (high rank) (68 FR 10784). The inorganic components of coal 
include phyllosilicates, quartz, carbonates, and sulfates. Coal 
deposits also contain metals, mostly iron and aluminum and trace 
amounts of arsenic, nickel, zinc, cadmium, cobalt, mercury, beryllium, 
and copper (Huang et al., 2005). The relative toxicity of coal 
increases with its rank.
2. Physical State: Respirable Coal Mine Dust
    Dusts are solid particles suspended in the air. Coal dust may be 
freshly generated or may be re-suspended from surfaces on which it is 
deposited in mines. Dust particles have an irregular shape and a wide 
range of sizes. Coal mine dust may be inhaled by miners, and some of 
the smaller respirable particles are deposited, some are cleared, and 
the remainder is retained in their lungs where it can initiate or 
advance the disease process.
    Coal mine dust particles are insoluble in water which is important 
biologically and physiologically. Soluble dusts can be absorbed into 
the blood stream but insoluble dusts may remain in the lungs for 
prolonged periods of time resulting in a variety of cellular responses 
that could lead to pulmonary disease (68 FR 10784).
3. Biological Action: Respirable Coal Mine Dust
    Coal mine dust has a particle size distribution that typically 
ranges between 1 and 100 micrometers ([micro]m) in diameter (note: 1 
[micro]m = [\1/1,000,000\] meter). The size of the coal particles 
determines how deeply into the respiratory tract they penetrate (ACGIH, 
1999; AIHA, 1997). Dusts that are small enough to penetrate to the 
alveolar region are called respirable dusts. They range in size up to 
10 or even 20 [mu]m in diameter but most respirable particles (68 FR 
10784) are approximately 1-2 [micro]m in diameter.
    Because dust in this size range is responsible for disease, it is 
the fraction that is measured in the mine environment. The particles 
collected with an approved sampling device in accordance with 30 CFR 
part 74 (Coal Mine Dust Sampling Devices) approximate that portion of 
the dust which may be deposited in the lungs (68 FR 10784, 75 FR 
17512).
    Respirable dust particles are deposited but, as part of the lung's 
defense mechanism, most particles are cleared. Within the upper 
airways, hair-like projections called cilia line the airways and are 
covered by a thin layer of mucus. Cilia create waves to carry particles 
toward the throat where they are swallowed, coughed up and spat out, or 
sneezed out. This mechanism removes particles quickly, within hours or 
days. In the deepest region of the lower airways, the alveolar region, 
particles are cleared by pulmonary macrophages. These cells engulf and 
carry particles to the ciliated airways or may remove them by way of 
the blood or lymphatic system or by storing them in the spaces between 
cells. This process, unlike the movement of the cilia, is much slower 
and can take months or years. Thus, some particles may remain in the 
alveolar region for a very long time and some are retained permanently. 
Either alveolar clearance or ciliated clearance can be altered by 
disease progression. It is the retention of coal mine dust in the 
alveolar region that is the starting point for the coal macule (a 
combination of coal dust and macrophages) and CWP (Kuempel et al. 
2001a, 2001b; Hatch and Gross, 1964; Oberdorster, 1995).
4. Mechanism of Action: Respirable Coal Mine Dust
    The literature includes various mechanisms of damage, inflammation, 
and lung scarring that explain the development and progression of 
pulmonary disease induced by the inhalation and retention of coal mine 
dust. These include direct cell destruction (i.e., cytotoxicity), 
activation of oxidant production by alveolar macrophages, and 
stimulation of inflammatory and fibrogenic factors (Attfield et al., 
2007).
a. Cytotoxicity
    Coal mine dust exposure can cause direct cell membrane damage, as 
indicated by hemolysis of red blood cells, lactate dehydrogenase 
released from alveolar macrophages, and lipid peroxidation. Researchers 
concluded that some coal dust-related toxicity could be related to 
trace metal contaminants in the coal dust. For example, water leachate 
of Pennsylvania coal is reportedly more potent in inhibiting in vitro 
mammalian cell growth than Utah coal leachate. This potency difference 
is, in part, related to the nickel content of these coal samples. There 
are other studies that support bioavailable iron (BAI) as another 
pathway through which oxidative injury is initiated in lung tissue. 
Huang et al. (2005) found that iron present in coal can become 
bioavailable by pyrite oxidation, which produces ferrous sulfate and 
sulfuric acid. In different deposits of coal, calcite content could 
neutralize the available acid and inhibit iron's bioavailability. This 
could partially explain the different toxicity of coals seen not only 
in the United States, but also in Europe and Asia (Huang et al., 2005; 
Zhang and Huang, 2005; Zhang et al., 2002; McCunney et al., 2009).
    Cell destruction is also related, in part, to the generation of 
free radicals. Free radicals are highly reactive molecules or sub-
atomic particles that are created, for example, by crushing coal or 
other rocks (Cohen et al., 2008). Anthracite coal generates more free 
radicals than bituminous coal when fractured. This difference in 
potency is reflected in the higher prevalence of CWP among anthracite 
miners (Attfield et al., 2007).
    Oxidative free radicals contribute to the development and 
progression of pulmonary disease by at least three mechanisms. First, 
oxidants react with a variety of pulmonary proteins. Second, these 
oxidized proteins contribute to the inactivation of naturally occurring 
chemicals such as [alpha]<INF>1</INF>-antitrypsin, which is important 
in the development of emphysema. Third, oxidants promote inflammation 
and may be important in the development of asthma (Luppi and Hiemstra, 
2007; De Andrade et al., 2005).
b. Activation of Reactive Oxidant Species
    Coal dust increases the production of reactive oxygen and nitrogen 
species in the alveolar macrophages of miners exposed to coal dust. 
Coal miners with CWP show evidence of such species but this activity 
does not occur in asymptomatic coal miners. The magnitude of reactive 
species was directly related to the severity of CWP (Attfield et al., 
2007).
c. Stimulation of Inflammatory and Fibrogenic Factors
    Coal miners with CWP suffered inflammatory injury to their lungs 
but similar effects were not found in asymptomatic coal miners. Cohen 
et al. (2006) found that pyrite (FeS<INF>2</INF>), a common iron 
compound found in some

[[Page 64460]]

coal dust, can generate reactive oxygen species. This may be one way 
that the inflammation associated with CWP development begins. Such an 
effect was found in coal miners with simple CWP but not in a control 
group (Altin et al. 2004). Higher rank coals also have a higher 
electrostatic charge when broken during mining. This higher charge on 
the coal particles leads to an increased degree of agglomeration of 
submicron coal dust particles. These particles enhance respiratory 
deposition and toxicity due to their higher lung deposition 
efficiencies than uncharged particles. These characteristics may 
contribute to the increased incidence of CWP observed in high-rank coal 
regions (Page and Organiscak 2000).
    Coal dust toxicity may be increased by modern mining practices that 
shear the coal, creating more freshly broken coal dust. A greater 
number of free radicals is contained on the exposed surface of freshly 
created dust (Cohen et al. 2008). Coal dust exposure has also been 
associated with elevated production of fibrogenic (i.e., scar-
producing) factors. Evidence indicates that production of these 
fibrogenic factors is directly related to disease severity.

C. Health Effects

    Epidemiological studies have consistently demonstrated the serious 
health effects of exposure to high levels of respirable coal mine dust 
(i.e., above 2.0 mg/m3) over a working lifetime. Table V-1 lists 
epidemiological studies published since 1997. The results of these 
studies will be discussed on the basis of the type of observed health 
effect. These studies show that the lung is the major target organ in 
which toxic effects occur from inhalation of respirable coal mine dust. 
Numerous studies of miners have been conducted in the U.S., as well as 
in a number of other coal-producing countries (e.g., England, France, 
Poland, Germany, Turkey, South Africa, China, and Taiwan). Recent U.S. 
studies were conducted using data from the National Study of Coal 
Workers' Pneumoconiosis (NSCWP) surveys, and have provided extensive 
data on miners' health. The results of these studies demonstrate that 
miners are at increased risk of multiple, concurrent respiratory 
ailments, including asthma, COPD, and CWP.

                           Table V-1--Respirable Coal Mine Dust Epidemiological Studies, Reported Effects From 1997 to Present
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                         Reported effects
             Study               Population studied   Exposure measure  --------------------------------------------------------------------------------
                                                                           LLF       RS       CB       A       COPD      E       CWP      PMF      NMRD
--------------------------------------------------------------------------------------------------------------------------------------------------------
Althouse et al., 1998*.........  U.S...............  Tenure............  .......  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Altin et al., 2004.............  Turkey............  Tenure............  .......  [radic]  .......  .......  .......  .......  [radic]  .......  .......
Antao et al., 2005*............  U.S...............  N/A...............  .......  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Antao et al., 2006.............  U.S...............  Tenure & Job......  [radic]  [radic]  [radic]  .......  .......  .......  [radic]  [radic]  .......
Attfield et al., 2004..........  U.S...............  N/A...............  .......  .......  .......  .......  .......  .......  [radic]  .......  .......
Attfield et al., 2007+.........  Various...........  N/A...............  [radic]  .......  [radic]  .......  [radic]  [radic]  [radic]  [radic]  .......
Attfield and Petsonk, 2007*....  U.S...............  Tenure............  .......  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Attfield and Kuempel, 2008*....  U.S...............  Region & CDE......  .......  .......  [radic]  .......  .......  [radic]  [radic]  [radic]  [radic]
Attfield et al., 2009*.........  U.S...............  <greek-i> Miners/   .......  .......  .......  .......  .......  .......  [radic]  .......  .......
                                                      Region & Tenure.
Beeckman et al., 2001*.........  U.S...............  N/A...............  [radic]  [radic]  [radic]  [radic]  [radic]  [radic]  .......  .......  .......
Bourgkard et al., 1998.........  France............  CDE...............  [radic]  [radic]  [radic]  .......  .......  .......  [radic]  .......  .......
Coggon and Newman-Taylor, 1998+  Review............  ..................  [radic]  [radic]  [radic]  .......  [radic]  [radic]  [radic]  .......  .......
Cohen et al., 2008+............  U.S...............  N/A...............  [radic]  .......  [radic]  .......  [radic]  [radic]  [radic]  [radic]  .......
Cowie et al., 1999.............  Britain...........  CDE...............  [radic]  [radic]  [radic]  .......  .......  .......  .......  .......  .......
Green et al., 1998a*...........  U.S...............  Tenure............  .......  .......  .......  .......  .......  [radic]  [radic]  [radic]  .......
Green et al., 1998b*...........  U.S...............  Tenure............  .......  .......  .......  .......  .......  [radic]  [radic]  [radic]  .......
Henneberger and Attfield, 1997*  U.S...............  CDE...............  [radic]  [radic]  [radic]  .......  .......  .......  .......  .......  .......
Hurley et al., 2002............  Britain...........  CDE (N/A).........  .......  [radic]  [radic]  .......  .......  .......  [radic]  [radic]  .......
Kuempel et al., 1997*..........  U.S...............  RDC & CDE & Tenure  [radic]  .......  .......  .......  [radic]  [radic]  [radic]  [radic]  .......
Kuempel et al., 2009a*.........  U.S...............  CDE...............  [radic]  .......  .......  .......  .......  [radic]  .......  .......  .......
Kuempel et al., 2009b*.........  U.S...............  CDE & Tenure......  .......  .......  .......  .......  .......  [radic]  [radic]  [radic]  .......
Lin et al., 2001...............  Taiwan............  Tenure............  [radic]  [radic]  [radic]  .......  [radic]  .......  [radic]  .......  .......
Love et al., 1997..............  Britain...........  RDC...............  [radic]  .......  [radic]  [radic]  .......  .......  [radic]  .......  .......
MacCalman and Miller, 2009.....  Britain...........  Tenure............  .......  .......  [radic]  .......  [radic]  [radic]  [radic]  [radic]  [radic]
Meijers et al., 1997...........  Dutch.............  Tenure............  [radic]  [radic]  .......  .......  [radic]  .......  [radic]  [radic]  [radic]
Miller et al., 1997............  Britain...........  CDE...............  .......  .......  [radic]  .......  .......  .......  [radic]  [radic]  .......
Miller et al., 2007............  Britain...........  CDE...............  .......  .......  [radic]  .......  [radic]  [radic]  [radic]  [radic]  [radic]
Naidoo et al., 2004............  S. Africa.........  CDE...............  [radic]  [radic]  [radic]  .......  .......  .......  [radic]  .......  .......
Naidoo et al., 2005............  S. Africa.........  CDE...............  [radic]
Naidoo et al., 2006............  S. Africa.........  CDE...............  [radic]  [radic]  [radic]  .......  .......  .......  .......  .......  .......
Page and Organiscak, 2000......  U.S...............  N/A...............  .......  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Peng et al., 2005 [abstract]...  China.............  RDC...............  [radic]  .......  .......  .......  .......  .......  .......  .......  .......
Pon et al., 2003*..............  U.S...............  Tenure............  .......  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Ross and Murray, 2004+.........  Various...........  N/A...............  [radic]  [radic]  [radic]  .......  .......  [radic]  [radic]  .......  .......
Scarsbrick and Quinlan, 2002...  Britain...........  N/A...............  .......  .......  .......  .......  .......  .......  [radic]  .......  .......

[[Page 64461]]

 
Smith and Leggat, 2006.........  Australia.........  N/A...............  .......  .......  .......  .......  .......  .......  [radic]  .......  .......
Soutar et al., 2004+...........  Britain...........  RDC & CDE.........  [radic]  .......  .......  .......  .......  .......  [radic]  [radic]  .......
Wang et al., 1997..............  China.............  Tenure............  [radic]  .......  .......  .......  .......  [radic]  .......  .......  .......
Wang et al., 2005..............  China.............  T & RDC...........  [radic]  .......  .......  .......  .......  .......  .......  .......  .......
Wang et al., 2007..............  China.............  RDC...............  [radic]  [radic]  [radic]  .......  .......  .......  .......  .......  .......
Wang ML et al., 1999...........  U.S...............  Tenure............  [radic]  .......  .......  .......  .......  .......  .......  .......  .......
Wang X et al., 1999............  China.............  Tenure............  [radic]  [radic]  [radic]  .......  .......  [radic]  [radic]  .......  .......
Yeoh and Yang, 2002............  Taiwan............  Tenure............  [radic]  .......  .......  .......  [radic]  .......  .......  [radic]  .......
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Studies of U.S. Miners Participating in the National Study of Coal Workers' Pneumoconiosis (NSCWP) or Nationwide Coal Workers Autopsy Study (NCWAS).
+ Review.
A: Asthma. N/A: Not Applicable.
CB: Chronic Bronchitis. NMRD: Non-Malignant Respiratory Disease.
CDE: Cumulative Dust Exposure. PMF: Progressive massive fibrosis.
COPD: Chronic obstructive pulmonary disease. RDC: Respirable Dust Concentrations.
CWP: Coal workers' pneumoconiosis. RS: Respiratory symptoms, such as cough or phlegm.
E: Emphysema. T&RDC: Total and Respirable Dust Concentrations.

1. Estimates of Morbidity and Mortality
a. Morbidity (Prevalence of Disease)
    Routine screening leading to timely intervention affords the 
opportunity to prevent further development or progression of 
occupational pulmonary disease among miners still exposed to coal dust. 
Surveillance programs exist in both the United States and Great 
Britain. These data show that coal dust-related diseases among miners 
still exist at unacceptable levels. These data sources and studies are 
described below.
    (1) Data Sources: American Pneumoconiosis Surveillance
    There are three surveillance programs in the United States that 
track the prevalence of coal-related disease. These are--
    <bullet> The Coal Workers' X-ray Surveillance Program (CWXSP),
    <bullet> The Miners' Choice Program (MCP), and
    <bullet> The Enhanced Coal Workers' Health Surveillance Program 
(ECWHSP).
    The CWXSP is an occupational health program established by the Coal 
Mine Health and Safety Act of 1969 (Coal Act) and administered by the 
National Institute for Occupational Safety and Health (NIOSH) pursuant 
to 42 CFR part 37. The program screens underground coal miners for 
pneumoconiosis. Since implementation of the Coal Act in 1970, coal mine 
operators have been required to pay for chest radiographs of all 
underground coal miners at the time of hire and again 3 years later. 
Coal mine operators are also required to provide miners with the 
opportunity for additional x-rays at a NIOSH-approved facility every 5 
years at no cost to the miners for the remainder of their mining 
careers (Attfield and Petsonk, 2007).
    The initial medical survey under this program was conducted between 
1969 and 1971. It included posterior-anterior and lateral chest x-rays 
and a questionnaire that collected information on symptoms, 
demographics, smoking and work history, work tenure, and specific jobs 
in the mine. The chest films were read by physicians certified by NIOSH 
as proficient in use of the International Labour Office (ILO) 
classification system for radiographs of the pneumoconioses. Each film 
was read by at least two readers who used a consensus approach to reach 
a final determination for each film. The CWXSP defines CWP as small 
opacity profusion category of at least 1/0 or large opacities (i.e., 
larger than one centimeter in diameter). Miners with evidence of CWP 
are offered the option to work in an area of the mine with a respirable 
coal mine dust level of 1 mg/m\3\ or less and have personal dust 
exposures monitored at frequent intervals (NIOSH, 2008).
    In 1996, the Secretary of Labor's Advisory Committee on the 
Elimination of Pneumoconiosis Among Coal Workers (Advisory Committee) 
recommended that monitoring for pneumoconiosis be expanded to include 
surface coal miners and independent contractors. The Advisory Committee 
also recommended incentives to increase underground coal miners' 
participation. In response to the Advisory Committee recommendation, 
MSHA and NIOSH implemented the Miners' Choice Health Screening Program 
(MCP) in October 1999 in an attempt to reach not only surface miners 
but also additional underground miners. Through the MCP, MSHA paid for 
the miners' x-rays that were taken at any certified medical facility. 
MSHA communicated the results of the testing to the individual miners. 
The MCP and the CWXSP identified cases of CWP and PMF.
    The MCP x-rays were processed using the same procedures and 
criteria used in the CWXSP in accordance with the requirements of 42 
CFR part 37. The participants were miners from 586 surface coal mines 
and 444 underground coal mines and included eight active surface coal 
mining communities in Pennsylvania, Kentucky, and West Virginia, as 
well as Poteau, Oklahoma, and Gillette, Wyoming. A ninth group included 
underground miners in Kentucky. The process was designed to encourage 
miners' participation by providing for a greater degree of anonymity 
than may be available under the CWXSP. The program ended in October 
2002 and more than 19,500 active coal miners from 20 states voluntarily 
participated (Pon et al., 2003; 68 FR 10784).
    NIOSH in cooperation with MSHA initiated the ECWHSP in March 2006 
to increase participation by providing additional respiratory health 
evaluations to coal miners using a mobile medical examination unit to 
bring the medical exams to the miners in the field. NIOSH and MSHA 
hoped that this program would provide early detection of dust-related 
pulmonary disease and target additional areas for prevention. 
Standardized questionnaires, pulmonary function testing, and chest x-
rays are administered following the protocol of

[[Page 64462]]

the CWXSP (Antao et al., 2006; Attfield and Petsonk, 2007).
    The National Center for Health Statistics (NCHS) collects 
population data on the prevalence of asthma and COPD (including chronic 
bronchitis) in the National Health Interview Survey (NHIS). Another 
survey used to assess the health status of the population is the 
National Health and Nutrition Examination Survey (NHANES). Findings 
from these surveys are used to determine the prevalence of major 
diseases, including pneumoconiosis, and their risk factors in the 
general population (NIOSH, 2008). Approximately 30% of American miners 
have participated in these surveys, resulting in a large database.
(2) Data Sources: British Pneumoconiosis Surveillance
    British health surveillance started in the 1950s with the 
Pneumoconiosis Field Research (PFR) program. In addition, radiographic 
assessment was conducted by the Periodic X-ray (PXR) Scheme of the 
British National Coal Board, and medical investigations were conducted 
by the Pneumoconiosis Research Unit (PRU) of the Medical Research 
Council.
    The United Kingdom National Joint Pneumoconiosis Committee 
recommended to the National Coal Board that it establish the 
Pneumoconiosis Field Research (PFR) program in the early 1950s. This 
recommendation was based on research indicating that over 36,000 coal 
miners were disabled by pneumoconiosis between the years 1931 and 1949. 
The purpose of the PFR program was to conduct field research to 
determine the kinds and quantities of dust that cause pneumoconiosis 
and to establish health-based exposure levels to reduce the development 
of disease in miners. In addition, the PXR Scheme of the British 
National Coal Board took x-rays and the Pneumoconiosis Research Unit 
(PRU) of the Medical Research Council conducted medical investigations. 
There have been at least 10 rounds of health surveys conducted under 
the PFR program between 1959 and 2000. Voluntary health surveys were 
conducted every five years and included chest radiographs, pulmonary 
function tests, and questionnaires on respiratory symptoms and smoking 
habits. Initially, response rates were generally above 90%.
    Concurrent with the health surveys, a separate industrial hygiene 
(IH) assessment was conducted as part of the PFR program that 
quantified typical concentrations of respirable dust and quartz for a 
variety of occupations within the mines. These exposure measurements 
were linked to data from payroll systems on the times worked by each 
miner in the same occupations. This IH assessment work produced 
individual and period-specific estimates of exposure to respirable dust 
and quartz. The number of mines included in the surveys has fluctuated 
from 24 representative British collieries (coal mines) in the early 
1950s to between 10 and 15 collieries in more recent years. Since the 
PXR does not follow a defined cohort of miners, results may not be 
representative of the mining population in Britain (MacCalman and 
Miller, 2009; Attfield and Kuempel, 2003; Scarisbrick and Quinlan, 
2002). In cohort studies subjects are selected based on their exposure 
status, in this case, coal dust. The complete cohort should be followed 
over time to track disease development.
(3) Estimates of Prevalence in Active American Coal Miners
    Studies conducted by NIOSH and MSHA estimated the prevalence of 
pneumoconiosis in current coal miners using data collected between 
October 1, 1995, and September 30, 2002, from the CWXSP and MCP 
surveillance programs (Pon et al., 2003; Antao et al., 2005; Cohen et 
al., 2008). A total of 35,983 readable chest films from 31,179 contract 
and non-contract miners at 1,439 mines in 23 states were evaluated. The 
prevalence of CWP in this population was 2.8% (n = 862 cases), and the 
prevalence of PMF was 0.2% (n = 62 cases).
    The prevalence of CWP among non-contract employees at surface 
mines, non-contract employees at underground mines, and contract miners 
was 1.9%, 3.2%, and 3.0%, respectively. The prevalence of CWP and PMF 
in underground non-contract miners from 16 states ranged from 0.0% to 
9.6%, and 0.0% to 0.6%, respectively. Miners that worked at larger 
mines (greater than 50 employees) had a lower prevalence of 
pneumoconiosis than those from smaller mines (2.0% versus 5.6% for CWP, 
and 0.1% versus 0.5% for PMF, respectively).
    As expected, the prevalence of CWP and PMF increased with age and 
the length of time worked in coal mining. Information about the length 
of time worked in coal mining was available for 28,253 miners (18,388 
underground miners and 9,793 surface miners).
    In a broader examination of the data, NIOSH reported the number of 
cases of CWP category 1/0+ for five year intervals from 1970 through 
2004 (NIOSH, 2008). The range of cases (and their percentages) were 
11,847 cases in 1970 (11.2% of all miners examined). This number 
dropped to 601 cases (3.6%) in the 2000 to 2004 time period. The 
estimate for the 2 years of 2005 and 2006 is 270 cases (3.3%). The 
prevalence rate increases as tenure in mining increases, from 0.7% for 
miners with 0 to 4 years in mining to 9.9% for miners with 30 or more 
years in mining.
    NIOSH researchers further examined these data to determine if 
disease progression could be determined in the 783 underground coal 
miners who had at least two radiographs available for review (Antao et 
al., 2005). NIOSH determined that 277 (35.4%) of these miners presented 
evidence of rapidly progressive CWP and 41 (14.8%) of these miners 
presented evidence of PMF. Eight cases showed progression of one 
subcategory over 5 years, 156 cases had progression equivalent to two 
or three subcategories over a 5-year period, and 72 cases had 
progression the equivalent of more than three subcategories over a 5-
year period.
    Rounded opacities were the primary shape/size in 73% of the rapidly 
progressive cases compared to 50% in the non-rapidly progressive cases. 
Overall, the miners with rapidly progressive CWP were somewhat younger 
(mean age 48) than the remaining miners evaluated (mean age 51), but 
were similar in mean work tenure (27 to 28 years). Miners with rapidly 
progressive cases were more likely to have worked in smaller mines than 
in larger mines. These miners also reported longer mean tenure in jobs 
involving work at the face of the mine (19 years), compared to miners 
without rapid progression (17 years). These particular cases occurred 
in miners from eastern Kentucky and western Virginia (Antao et al., 
2005).
    Clusters of newly identified cases of advanced pneumoconiosis were 
surveyed in 2006 by ECWSHP teams that visited two counties in Virginia 
(Antao et al., 2006) and in eastern Kentucky and southwestern Virginia 
(Attfield and Petsonk, 2007). In March and May 2006, 328 underground 
coal miners employed in Lee and Wise counties in Virginia were 
examined, representing 31% of the estimated 1,055 underground miners in 
those counties. The mean age of examined miners was 47 years, and their 
mean tenure working in underground coal mines was 23 years. A total of 
216 (66%) had worked at the coal face for more than 20 years; and 30 
(9%) had radiographic evidence of pneumoconiosis (i.e., category 1/0 or 
higher profusion of small opacities). Of these, 11 miners had advanced 
cases, including five with large opacities consistent with PMF and six 
with coalescence of small opacities on a

[[Page 64463]]

background profusion of category 2. Among the 11 miners with advanced 
cases, the mean age was 51 years (range: 39-62 years), the mean tenure 
in underground coal mines was 31 years (range: 17-43 years), and the 
mean number of years working at the coal face was 29 years (range: 17-
33 years). All 11 advanced cases met the radiographic criteria for 
rapidly progressive CWP. All reported at least one respiratory symptom 
(i.e., productive cough, wheeze, or shortness of breath), the most 
common being shortness of breath (dyspnea). Four of the nine who 
underwent lung function testing had abnormal results (Antao et al., 
2006).
    In a separate ECWSHP survey in 2006, pneumoconiosis rates were 
determined for 26 sites in seven counties in eastern Kentucky and 
southwestern Virginia. A total of 975 (20%) of the 4,897 active 
underground miners in the counties participated; 37 (4%) of those 
tested had advanced pneumoconiosis. Many of these miners had worked 
underground for many years without medical follow-up. Medical records 
indicated that all 37 miners with advanced disease had worked 
underground for at least 10 years without a chest x-ray; 22 (59%) had 
worked for at least 20 years and two others had worked for more than 30 
years (Attfield and Petsonk, 2007).
(4) Estimates of Prevalence in Active British Coal Miners
    Published PXR results include data for miners and, where 
appropriate, separate reports for contractors. A summary of the 
prevalence of pneumoconiosis in a given time frame illustrates the 
decrease in the size of the British coal mining industry over the last 
40 years. Pneumoconiosis prevalence decreased from 12% (56,000 cases) 
in the years 1959 through 1963, to 0.2% (13 cases, all category 1) in 
the years 1994 through 1997. The prevalence in the years 1998 through 
2000, however, rose to 0.8% (35 cases) and included nine cases of 
category 2 CWP or greater. The incidence of new cases diagnosed on 
second examination among those miners x-rayed on two occasions in the 
ninth round of the PXR was 1.4 per 1,000 (all category 1). In the years 
1998 through 2000, it rose to 6.9 per 1,000 (a total of 32 cases, 23 
category 1 and nine category 2 CWP or greater). A similar increasing 
trend in CWP prevalence is apparent in British miners as in U.S. 
miners. At the beginning of the British tracking scheme (1959 through 
1963), CWP prevalence was 12%; it had dropped to 0.2% in 1997. But 
surveillance from 1998 to 2000 shows an increase to 0.8%. The authors 
speculated that reasons behind the increase may include longer working 
hours, the increased average age of miners, and changes in mining 
practices (Scarisbrick and Quinlan, 2002).
b. Mortality (Disease That Results in Death)
    The mortality experience of U.S. and British coal miners has been 
studied by using either autopsy studies or death certificate data. 
These data sources and studies are described below.
(1) Data Sources: American Miners
    Two autopsy study populations have been used by researchers 
studying the effects of coal mine dust exposure on mining populations. 
The first was a study group that consists of 616 underground coal 
miners autopsied at the Beckley Southern Appalachian Regional Hospital, 
Beckley, West Virginia from 1957 through 1973. All cases had at least 
one year of underground bituminous coal mining experience in various 
mines within a 100 mile radius of Beckley. The following information 
was collected at time of death: Age at death, smoking history, 
underground coal mining tenure, and cause of death. A control autopsy 
group was comprised of 106 non-miners: 56 cases from the same hospital 
who died during the same period as the coal miners and a series of 
Medical Examiner autopsies of 50 men at the University of Vermont from 
1972 through 1978. All autopsy and demographic data were collected and 
processed in a similar manner. At autopsy, whole left lungs were 
removed, inflated, and preserved and tissue blocks were taken for 
histologic examination from representative areas of the right and left 
lungs (Vallyathan et al., 1997; Kuempel et al., 2009a and b).
    The second autopsy group is the U.S. nationwide autopsy program 
(National Study of Coal Workers' Pneumoconiosis) for underground coal 
miners. This program was initiated in 1969 as part of the Coal Act and 
implemented in 1972 under section 411(c) (Black Lung benefit claims). 
Research has been published on approximately 6,580 autopsy cases from 
27 states through 1996. For each case, information was obtained by 
means of a questionnaire completed by the next of kin on age, years of 
underground mining tenure, primary job within the mine, smoking 
history, and state where the questionnaire was completed. A pathology 
report and a minimum of three blocks and slides of lung tissues were 
submitted. The population autopsied represented approximately 12% of 
all deceased miners (Green et al., 1998b).
(2) Data Sources: British Miners
    Study of mortality within the PFR cohort began in 1970 and has 
compared the mortality experience of the first survey dating from the 
1950s with that expected on the basis of general population rates 
(Miller et al., 1997 and 2007; MacCalman and Miller, 2009). There were 
a series of six PFR surveys beginning in 1954 and ending in 1978. In 
the first survey, 24 collieries were included in the study. In the 
remaining rounds of the survey, 10 collieries were studied. Surveys 
were used in the first round to estimate exposure; whereas in 
subsequent rounds actual dust measurements were provided (Miller et 
al., 2007). The mortality experience of 18,000 of the initial 31,000 
men in the first round was followed over time. Most of the deep mines 
in Britain closed around 1980. The cohort's vital status is still being 
tracked; though exposure estimates are the same as those reported in 
Miller et al. (1997). Mortality of the mining population is compared to 
that of a reference population, controlled for region, age, and year-
specific rates. The number of observed deaths in the cohort is compared 
to that in the comparison population and a standard mortality ratio 
(SMR) is calculated. If the ratio is over 100, than the death 
experience of the cohort is elevated above that of the comparison 
group. If the ratio is less than 100, then there were fewer deaths from 
a specific cause in the cohort than in the comparison population. 
Statistical techniques are applied to determine if the specific-cause 
of death SMRs are statistically significant, usually at a 95% 
confidence level.
(3) Estimates of Mortality in American Coal Miners
    Green et al. (1998b) researched the prevalence of the various 
pathological types of CWP that occurred in deceased miners by 
evaluating lung specimens collected as part of the NCWAS during 1972 to 
1996. The researchers examined lung specimens from 4,115 randomly 
selected cases from 27 states. In this autopsy survey, the authors 
determined that the overall frequencies of CWP lesions were:
    <bullet> 77% macules;
    <bullet> 39% nodules (macules develop into nodules);
    <bullet> 23% silicosis;
    <bullet> 8% progressive massive fibrosis (PMF); and
    <bullet> 80% emphysema.
    The prevalence of all types of lesions has declined over the years. 
At the beginning of the autopsy survey in the

[[Page 64464]]

1970s, miners had died who worked in the industry in the 1940s. Their 
prevalence of nodular CWP at death was 53%. Autopsies of miners who had 
begun working in the industry since 1970 (under the existing 2 mg/m\3\ 
standard) had a 17% prevalence of nodular CWP at death. The results of 
this autopsy study indicate that as dust exposure was reduced in U.S. 
mines the prevalence of CWP also was reduced. Attfield et al. (2004) 
examined mortality from pneumoconiosis using National Center of Health 
Statistics data from 1968 through 2000. They found that overall age-
adjusted death rates for CWP dropped 36% from the 1968-1981 time period 
to the 1982-2000 time period.
    From 1990 to 1999, a large majority of CWP deaths were associated 
with employment in the coal mining industry, for which proportionate 
CWP mortality was more than 50 times higher than that of all 
occupations combined. A review of death certificates for the years 1968 
through 2005 shows that CWP mortality has been declining rapidly in the 
anthracite coal region of Pennsylvania, reflecting the reduction in 
coal mining in this region over the last 30 years. In the much larger 
bituminous coal mining regions, deaths from CWP have declined over time 
but may be increasing among younger miners (Attfield et al., 2009). 
Nationally, CWP deaths among U.S. residents age 15 and over continue to 
decline, from well over 2,500 deaths annually in the early 1980s to 
well below 1,000 in the early 2000s. CWP deaths accounted for over one-
third of pneumoconiosis deaths during the 10-year period from 1995 to 
2004; and seven counties (two in Virginia, one in Pennsylvania, one in 
Kentucky, and three in West Virginia) had age-adjusted CWP death rates 
that exceeded the national rate by more than 100-fold (NIOSH, 2008).
    In order to determine mortality rates for a cohort of 9,078 working 
coal miners who participated in the initial round of the CWXSP 
surveillance survey from 1969 to 1971, NIOSH researchers conducted a 
study that reviewed the 23-year mortality experience of the cohort and 
analyzed the mortality data through 1993. The final analysis included 
the mortality experience of 8,899 miners (Attfield and Keumpel, 2008). 
The vital status of these miners was determined using various sources. 
Death certificates were obtained from the appropriate State Department 
of Vital Statistics to collect cause of death information, including 
underlying and contributing causes of death. Exposure data from the 
CWXSP were cross-referenced on the decedents. Cumulative dust exposure 
estimates were determined based on tenure in mining and estimates of 
dust concentrations for given occupations.
    This group of miners experienced increased mortality from 
nonmalignant respiratory diseases (NMRD), pneumoconiosis, and other 
respiratory diseases. Mortality was significantly associated with coal 
rank in decreasing order of anthracite, east Appalachia, west 
Appalachia, and the West. A significant trend in NMRD mortality was 
seen with increasing severity of pneumoconiosis after controlling for 
age, coal rank region, and smoking. Coal dust exposure was also 
significantly related to NMRD mortality independent of pneumoconiosis. 
There was also a statistically significant trend in mortality from NMRD 
with increasing dust exposure and with increasing radiographic category 
of simple or complicated CWP. It is important to note that miners with 
minimal CWP had significantly elevated levels of NMRD mortality despite 
the fact that their mean cumulative dust exposure was less than would 
be expected after a 40-year working life at the existing limit of 2 mg/
m\3\. Smoking had a significant impact on the mortality experience of 
these miners. However, it did not appear to be a confounding factor in 
the current findings for NMRD mortality because the prevalence of 
smoking did not vary systematically with mortality among miners across 
the pneumoconiosis or cumulative dust exposure groups (Attfield and 
Keumpel, 2008).
    A large proportion of miners in every coal mining state die due to 
CWP. NIOSH (2008) reported the proportionate mortality ratio (PMR), 
adjusted for age, sex, and race, for the years 1990 to 1999 for 
specific coal mining occupations. The PMR is the observed number of 
deaths divided by the expected number of deaths. A PMR greater than 1.0 
indicates more deaths associated with CWP in a specific coal mining 
occupation than expected. Over all, the age-adjusted PMR for the coal 
mining industry due to CWP is estimated to be 53.2. For individual 
occupations the estimates were as follows:

------------------------------------------------------------------------
                           Occupation                              PMR
------------------------------------------------------------------------
Mining machine operators.......................................     51.7
Supervisors in extractive occupations..........................     14.4
Mining engineers...............................................      6.0
Mining occupations not elsewhere classified....................      4.5
Miscellaneous material moving equipment operators..............      2.3
Locomotive operating occupations...............................      2.0
------------------------------------------------------------------------

These data indicate that coal miners in production jobs have higher 
proportionate mortality from CWP (NIOSH, 2008).
(4) Estimates of Mortality in British Coal Miners
    Data show that mortality risks due to NMRD (including COPD, chronic 
bronchitis, and emphysema) and severe pneumoconiosis have increased 
over time. Analyses have also shown exposure-response relationships for 
risks of various respiratory causes of death with increasing exposure 
to dust, but little evidence of increased cancer risks from dust or 
quartz exposures (MacCalman and Miller, 2009). Miller et al. (1997) 
reported that between the second phase of the PFR (November 1957 to 
June 1963) through December 1992 the number of deaths in the British 
cohort of 23,789 men was 7,002 (29.4%). Of theses deaths, 1,272 (18.2%) 
were from respiratory disease: 436 (6.2%) from chronic bronchitis, 56 
(4.4%) from other bronchitis, 203 (16%) from pneumoconiosis (including 
seven silico-tuberculosis deaths), and 584 (8.3%) from other 
respiratory causes.
    Miller et al. (2007) updated this analysis by including 14 more 
years of follow-up and covering mortality through 2006. The number of 
deaths in the British cohort of 17,820 men was 10,698 (60.0%) from all 
causes. Deaths from respiratory diseases were 1,966 (11.0%) from NMRD, 
849 (4.8%) from COPD, 500 (2.8%) from chronic bronchitis, 70 (0.4%) 
from emphysema, and 288 (1.6%) from all pneumoconioses (including 222 
(1.2%) from CWP and 10 (0.1%) from silicosis). Significantly elevated 
cause-specific mortality was determined for NMRD, COPD, chronic 
bronchitis, and emphysema when the cohort mortality was compared to 
that of an external reference group. There was not a pneumoconiosis-
specific mortality in the comparison group. There was less than 
expected mortality from tuberculosis (TB), all cancer, lung cancer, and 
cardiovascular disease, including acute pulmonary heart disease. Miller 
et al. (2007) observed elevated, but not statistically significant, 
mortality for all causes and ischemic heart disease. Miners also had 
significantly elevated deaths from stomach cancer with 323 deaths 
(1.8%).
2. Chronic Obstructive Pulmonary Disease (COPD)
a. Pulmonary Function
    The feature common to obstructive pulmonary diseases is obstructed 
ventilation. This physiological defect is

[[Page 64465]]

measured with a spirometer. The specific parameter is the Forced 
Expiratory Volume in one second (FEV<INF>1</INF>). This is a measure of 
the amount of air a person can forcibly exhale in one second. If it is 
less than a predicted value by 80% or by 65%, it indicates impairment 
or serious impairment. The FEV<INF>1</INF> varies with a person's age, 
height, gender, and ethnicity. Formulas based on surveys of normal 
healthy adults provide formulas for predicting a ``normal'' value. It 
is a simple and inexpensive test to perform and was used in many 
surveys and studies, as discussed below.
    Peng et al. (2005) and Wang ML et al. (2005) compared pulmonary 
function in young miners exposed to coal dust with younger students at 
a mining technical school over a 3-year period. On average, respirable 
dust concentrations exceeded MSHA's exposure limit for respirable coal 
mine dust of 2 mg/m\3\. The FEV<INF>1</INF> of the miners showed a 
significant clinical, though non-linear, decline compared to the 
controls. Smoking aggravated the effect of dust exposure.
    Chinese coal miners with clinically important depressed 
FEV<INF>1</INF> were compared to other miners with stable pulmonary 
function (controls). (Wang ML et al., 1999) Miners with impaired 
function (cases) were more likely to work as a roof bolter, on a 
longwall section, and at the face. They were also more likely to have 
been exposed to explosive blasting and to water stored for dust 
control. Miners in the control group were more likely to have reported 
using respiratory protection than cases. On longwall sections, nearly 
twice as many of the controls used respiratory protection than had the 
miners with decreased FEV<INF>1</INF>.
    Naidoo et al., (2005) compared lung function of former and current 
coal miners in South Africa. Cumulative coal dust exposure estimates 
were derived from historical data maintained by coal companies. The 
FEV<INF>1</INF> of current miners declined by 1.1 ml/mg-year/m\3\ and 
for former miners, at 2.2 ml/mg-year/m\3\. This study found that 2.7% 
of current miners and 5.7% of former miners had FEV<INF>1</INF> levels 
less than 65% predicted (the conventional threshold level for 
determining significant impairment). Ex-miners had a lower average 
percent predicted pulmonary function than current miners for each 
cumulative exposure category. Past history of TB contributed to 21% and 
14% declines in percent predicted FEV<INF>1</INF> and FVC, 
respectively. This study confirmed that cross sectional studies of 
working miners can underestimate the prevalence of disease because of a 
healthy worker or survivor effect. This implies that estimates of the 
effects of dust on pulmonary function based on surveys limited to 
active miners are likely underestimates of the true effect. Miners with 
greater loss of pulmonary function tend to drop out of the mining 
workforce.
    The study of British miners by Cowie et al. (2006) was prompted by 
the need to study clinically important deficits in pulmonary function 
in relation to dust exposure in a population of miners that was 
sufficiently large and representative and whose prior dust exposure was 
well characterized. This need arose following the recognition that 
exposure to coal mine dust could impair pulmonary function 
independently of pneumoconiosis. The aim was to support setting dust 
standards to prevent functional disability among British miners. This 
investigation was based on data from more than 7000 miners who 
participated in the fifth round of the PFR in the late 1970s. In 
practical terms, the aim of this analysis was to evaluate the 
association between cumulative dust exposure and functional disability 
(i.e., breathlessness).
    The investigators first evaluated the relationship between 
FEV<INF>1</INF> and breathlessness and then between FEV<INF>1</INF> and 
cumulative exposure to dust among relevant other factors (age, height, 
and smoking). The decline in FEV<INF>1</INF> due to dust was estimated 
to be between 0.5 and 0.6 ml per gram-hour/m\3\. (This finding is not 
directly applicable to miners in the U.S. because of differences in 
dust sampling methods.) An exposure-response relationship between dust 
exposure and reduced pulmonary function was determined.
    Wang et al. (1997) compared pulmonary function in underground coal 
miners with that of factory workers in Chongqing, China. They took 
chest x-rays, performed pulmonary function tests (FEV<INF>1</INF>, FVC, 
and DL<INF>CO</INF>), and assessed their smoking habits. 
DL<INF>CO</INF> (diffusion of carbon monoxide) is an indicator of gas 
exchange in the lung. Exposure was measured by the miners' occupational 
histories. The results of the study indicated that pulmonary function 
was associated with job tenure (and, indirectly, because of exposure to 
dust) and independently of simple CWP. Pulmonary function was further 
decreased when simple CWP was present. This study did not provide 
exposure measurements and there was no consideration of exposure-
response relationships.
    Bourgkard et al. (1998) studied French coal miners with CWP 
(Categories 0/1 and 1/0) who were employed in underground and surface 
mines over a 4-year period. They examined the prognostic role of 
cumulative dust exposure, smoking, respiratory symptoms, lung CT scans, 
and pulmonary function indices progression to simple CWP category 1/1 
or higher. At the first medical examination, miners with wheezing and 
lower ratio of FEV<INF>1</INF>/FVC were more likely to progress to 
category 1/1 or higher. Thus, this study suggested that such pulmonary 
function changes for miners with Category 0/1 or 1/0 may indicate an 
increased risk of progressing to a higher category of simple CWP and 
therefore should be monitored closely.
    Collectively, these studies from the United States, Great Britain, 
France, China, and South Africa show that cumulative exposure to 
respirable dust results in loss of pulmonary function. These studies 
illustrate an exposure-response relationship between coal dust and loss 
of pulmonary function that is non-linear, with a higher rate of decline 
early in the miner's exposure. Investigations by Naidoo et al. (2005) 
also suggest that cross-sectional studies of working miners may 
underestimate the effects of dust on pulmonary function because they 
are studies of ``healthy workers.'' This obstructive impairment is 
likely associated with COPD, such as chronic bronchitis or emphysema 
(Cohen et al., 2008) and may be an indicator of risk of developing CWP. 
Minimal recovery of pulmonary function is possible if exposure is 
reduced. Effects are independent of CWP and of smoking. Miners with CWP 
typically have worse pulmonary function than miners without CWP and the 
combined effects of smoking and exposure to dust appear to be additive 
(Cohen et al., 2008).
b. Chronic Bronchitis
    Chronic bronchitis develops slowly, by small increments, and, by 
definition, ``exists'' when it reaches a certain stage. It is defined 
as the presence of a productive cough for most days of a week, at least 
three months of a year for at least two consecutive years. Emphysema is 
destruction of lung architecture in the alveolar region resulting in 
airways obstruction and impaired gas exchange. Asthma is a reactive 
condition of the airways that is triggered by any of several allergens 
or other factors. Asthma, chronic bronchitis, and emphysema, have been 
studied in mining populations (Henneberger and Attfield, 1997; Naidoo 
et al., 2006; Wang et al., 1997 and 2007; Coggon and Taylor, 1998; 
Beeckman et al., 2001; Ross and Murray, 2004; Kuempel et al., 2009a and 
b; Boschetto et al., 2006; Green et al., 1998b). As

[[Page 64466]]

indicated by these studies, the exposure of miners to respirable coal 
mine dust places them at increased risk of developing obstructive 
pulmonary diseases. Furthermore, these diseases may occur in miners 
with or without CWP or PMF and independent of smoking history.
    COPD is characterized by airflow limitations (usually as reduced 
FEV<INF>1</INF>) that are not fully reversible. This limitation in 
airflow is both progressive and associated with abnormal inflammatory 
response of lung tissue to noxious agents, such as coal dust. As in 
simple CWP or PMF, a miner with COPD may have a variety of respiratory 
symptoms (e.g., shortness of breath, cough, sputum or phlegm 
production, and wheezing) and may be at increased risk of acquiring 
infections (Boschetto et al., 2006). COPD is associated with increased 
premature mortality (Hansen et al., 1999; Meijers et al., 1997), 
especially in association with pneumoconiosis (Attfield and Keumpel, 
2008). The occurrence of chronic bronchitis and of decreased 
FEV<INF>1</INF> is closely related, but one does not always occur with 
the other. A miner with bronchitis, especially in early stages, will 
not necessarily have reduced FEV<INF>1</INF> and a miner with reduced 
FEV<INF>1</INF> may have any of several conditions (e.g., asthma, 
emphysema, or an infection), bronchitis among them. There have been 
many studies evaluating this relationship.
    Henneberger and Attfield (1997) evaluated data from pulmonary 
function tests and standardized health questionnaires of 1,866 male 
miners who were either in the first round of NSCWP testing in 1969-1971 
or the second round in 1972-1975. These miners were followed-up in the 
fourth round (1985-88). A common finding in their study was an increase 
in respiratory symptoms, such as chronic bronchitis, shortness of 
breath, and wheezing. These symptoms were associated with cumulative 
dust exposure.
    An international team of researchers studied respirable coal dust 
exposure and respiratory symptoms in former and current South African 
coal miners (Naidoo et al. 2006). Ex-miners had significantly more 
respiratory symptoms--cough and phlegm production, wheezing, 
breathlessness when dressing--than current miners. The authors 
attributed this difference to the ``healthy worker effect'' as noted by 
Naidoo (above). Smoking and past tuberculosis history were associated 
with wheezing and breathlessness when walking or dressing.
    Wang et al. (2007) investigated the relationship between early 
rapid decline in FEV<INF>1</INF> and symptoms of bronchitis among newly 
hired Chinese miners exposed to high levels of respirable dust (average 
8.9 mg/m\3\). In a three year study, symptoms of bronchitis were 
elevated after 11 months. After 24 months, the miners who developed 
symptoms of bronchitis and who smoked had lost significantly more 
FEV<INF>1</INF> (235 ml v 96 ml) than miners without symptoms and who 
did not smoke. In both groups, loss of pulmonary function was early and 
rapid with some recovery after two years.
    In a review of chronic obstructive pulmonary disease occurring in 
coal miners, Coggon and Newman-Taylor (1998) and Newman-Taylor and 
Coggon (1999) summarized the evidence that the best estimate of the 
average loss of FEV<INF>1</INF> in miners exposed to coal mine dust is 
0.76 ml/gram-hour/m\3\. (This rate is not applicable to miners in the 
U.S. because of differences in measuring dust concentration.) This loss 
is independent of the development of chronic bronchitis, and is in 
addition to the effect of smoking. The British PFR studies indicate an 
increase in the prevalence of severe loss of pulmonary function and 
mortality from COPD in miners heavily exposed to coal dust. Miller et 
al. (1997) reported 20% increased risk of chronic bronchitis in the 
British mining cohort, compared to the disease occurrence in the 
general population.
    Using PFR data, Hurley et al. (2002) calculated estimates of dust-
related disease in British coal miners at exposure levels common in the 
late 1980s, and related the impairment of pulmonary function and the 
development of chronic bronchitis in these coal miners to their 
cumulative dust exposure. Estimates of disease were calculated based on 
the results of a random sample of 895 miners who worked at 10 mines. 
Their average dust exposure was 200 gram-hour/m\3\ and their average 
age was 49. The authors estimated that by the age of 58, 5.8% of these 
men would report breathlessness for every 100 gram-hour/m\3\ dust 
exposure. The authors also estimated the prevalence of chronic 
bronchitis at age 58 would be 4.0% per 100 gram-hour/m\3\ of dust 
exposure. These miners averaged over 35 years of tenure in mining and a 
cumulative dust exposure of 132 gram-hour/m\3\ respirable dust 
exposure.
    Beeckman et al. (2001) studied U.S. coal miners who had 
participated in the NSCWP surveys after 1976. The purpose of this study 
was to determine the long-term health effects associated with rapid 
decline in FEV<INF>1</INF>. They selected cases with accelerated loss 
in FEV<INF>1</INF> and compared them to miners matched on age, height, 
smoking habits and initial FEV<INF>1</INF>. (Accelerated decline was > 
60 ml per year compared to the matched referent miner.) These miners 
presented multiple adverse respiratory symptoms related to their dust 
exposure. Surveys were completed by the miners or, if the miner had 
died, by his or her next of kin. The survey collected information on 
occupational, health, and smoking history. The follow-up period for 
this cohort of miners was between 10 and 18 years. Researchers found 
that accelerated loss of pulmonary function was associated with dust 
exposure. There were no significant differences between the two mining 
groups in relation to age, height, weight, or pack-years of smoking.
    Compared to miners who did not have accelerated decline in 
FEV<INF>1</INF>, smoking and nonsmoking miners who experienced 
accelerated declines in FEV<INF>1</INF> subsequently developed more 
frequent respiratory symptoms of cough, phlegm production, grades II 
and III dyspnea, and wheezing. They also reported more frequent chest 
illnesses (chronic bronchitis and self-reported asthma and emphysema). 
A larger proportion of this group of miners left mining before 
retirement due to their chest illnesses. They were twice as likely to 
die due to cardiovascular or nonmalignant respiratory disease and three 
times as likely to die due to COPD as were their colleagues with more 
stable pulmonary function. Beeckman et al. concluded that rapid decline 
in FEV<INF>1</INF> among miners was associated with increased morbidity 
and mortality and could be used to facilitate early intervention to 
preserve pulmonary function.
c. Emphysema
    Emphysema is the destruction of the normal structure of the lung 
and results in impaired gas exchange and airways obstruction. There are 
three main morphological types of pulmonary emphysema: centriacinar, 
panacinar, and paraseptal. Centriacinar (centrilobular) emphysema 
occurs when focal dilations occur around respiratory bronchioles. These 
dilations occur throughout the upper parts of the lung among normal 
lung tissue. The other main form of emphysema is panacinar (panlobular) 
where tissue loss and damage occurs in the terminal bronchioles and is 
more likely to affect the lower half of the lungs. Another form of 
emphysema that is less common is paraseptal (scar) emphysema where 
bullae occur on the lung edges. If these

[[Page 64467]]

bullae rupture, a pneumothorax (collapsed lung) could result. These 
types (and sub-types) can only be identified at autopsy. In the living 
miner, one cannot easily identify these types and the diagnosis is made 
on clinical findings, one of which is reduced FEV<INF>1</INF>.
    Autopsy studies have determined that centriacinar emphysema in coal 
miners is associated with the amount of dust retained in lung tissue at 
the time of death (lung burden), with measured dust exposures, 
associated with CWP, and with years worked underground.
    The objective of a study by Kuempel et al. (2009a) was to determine 
whether lifetime exposure to cumulative respirable coal mine dust 
resulted in clinically important emphysema. This group reviewed the 
medical records and questionnaire responses of 616 coal miners and 106 
non-miners autopsied during 1957 to 1978. Clinically relevant emphysema 
was defined at two levels, FEV<INF>1</INF> less than 80% and 
FEV<INF>1</INF> less than 65% of predicted normal values. The cohort 
average cumulative coal dust exposure was 87 mg-year/m\3\ and the 
cohort average cigarette smoking was 42 pack-years. Study results 
indicate that the odds ratio of developing emphysema associated with 
FEV<INF>1</INF> less than 80% was 2.30 (95% CL: 1.46-3.64) at the 
cohort average cumulative coal dust exposure of 87 mg/m\3\[middot]yr 
and 1.95 (1.39-2.79) at the cohort average smoking level. For emphysema 
associated with FEV<INF>1</INF> less than 65% of predicted, the 
respective odds ratios were 2.39 (1.51-3.83) for dust exposure and 1.52 
(1.10-2.13) for smoking. The odds ratios for developing clinically-
relevant emphysema (i.e., associated with FEV<INF>1</INF> less than 80% 
or less than 65%) for cumulative coal dust exposure (2.30 or 2.39, 
respectively) were elevated, though not significantly different than 
the odds ratios for cigarette smoking (1.95 or 1.52, respectively) at 
the cohort mean values. Never-smoking coal miners had a significant 
risk of developing clinically-relevant severe emphysema. Thus exposure 
to coal mine dust and smoking were each predictors of clinically 
relevant emphysema. Effects appear to be additive.
    Green et al. (1998a) and Kuempel et al. (2009b) further analyzed 
the autopsy data from 722 coal miners and non-miners in the U.S. 
described above. Green et al. studied the different types of emphysema 
and various factors, such as lung dust burden, associated with its 
occurrence; while Kuempel et al. determined the independent effects of 
smoking and dust exposure on the different grades of emphysema. Green 
et al. found that the severity of emphysema was associated with time 
worked in mining, level of pneumoconiosis, and the lung burden of coal 
dust. Centriacinar emphysema (including focal emphysema) was the 
predominant form associated with coal mine dust exposure but that 
almost all forms of emphysema were associated with coal mining. Senile 
emphysema was more commonly found in the non-miner controls. As 
expected, smoking was also associated with all types of emphysema in 
this study population. Kuempel et al. found that emphysema severity was 
significantly elevated in coal miners compared with non-miners 
regardless of smoking history. Cumulative exposure to respirable coal 
mine dust or coal dust lung burden significantly predicted emphysema 
severity in models that controlled for smoking, age at death, and race. 
Both Green et al. (1998a) and Kuempel et al. (2009b) determined that 
smoking and coal dust exposure had an additive effect on the occurrence 
of emphysema in this cohort.
3. Coal Workers Pneumoconiosis (CWP)
a. Simple Coal Workers' Pneumoconiosis (Simple CWP)
    In a study of miners who participated in round six (1990-1995) of 
the CWXSP, Althouse et al. (1998) found an average prevalence rate of 
2.2% for simple CWP category 1 among the 8,210 miners who reported 
beginning work in underground coal mines in 1973 or later. Miners who 
reported other prior dusty work were excluded from the analysis. The 
Althouse et al. (1998) study did not include estimates of exposure 
concentration, but the prevalence rates were shown to increase with 
tenure in mining (up to 22 years).
    Wang et al. (1999b) studied a mining population in China (described 
above). On average, miners with CWP worked over 22 years underground 
while those without CWP worked 15 years underground. Miners with CWP 
had significant reductions in pulmonary function parameters, and 
diffusing capacity for carbon monoxide after adjustment of smoking and 
working underground. Miners with CWP had significantly more respiratory 
symptoms, including emphysema, than miners without CWP after adjustment 
for age, smoking, and years working underground. Simple CWP was found 
to be an independent contributor to pulmonary function and to increased 
risk of respiratory symptoms. Reduction of FVC and diffusing capacity 
are thought to reflect CWP-related interstitial fibrosis. Miners that 
developed chronic bronchitis and emphysema had reductions in 
FEV<INF>1</INF> and FEV<INF>1</INF>/FVC. These pulmonary effects were 
associated with years of coal mine dust exposure.
    Bourgkard et al. (1998), described above, conducted a study of 
French underground coal miners between 1990 and 1994. Miners in the 
case group had significantly higher mean profusion scores 
(micronodules, nodules, and other lung abnormalities) as determined by 
CT scans. They also had significantly more wheezing and dyspnea than 
either of the control groups. Miners with CWP also had significantly 
lower pulmonary function test results including FEV<INF>1</INF>/FVC, 
MMEF (maximal mid-expiratory flow), and FEF 25% (maximal forced 
expiratory flow at 25% of vital capacity). This study found a 
significant association between cumulative dust exposure and worsening 
chest x-ray (i.e., increase in reader-designated category signifying 
progression of simple CWP). In addition, they found that miners with 
pneumoconiosis, wheezing, decreased pulmonary function, and high 
cumulative dust exposure at the first medical examination were those 
most likely to show worsening on their chest x-rays four years later.
    Love et al. (1997) reported on occupational exposures and the 
health of British opencast (i.e., surface or strip) coal miners. They 
studied a group of approximately 1,200 miners who were employed at 
sites in England, Scotland, and Wales. The mean age of the men was 41 
years; many had worked in the mining industry since the 1970s. To 
determine dust exposure levels, full-shift personal samples were 
collected. Most were respirable dust samples which were collected using 
Casella cyclones according to the procedures described by the British 
Health and Safety Executive. Thus, exposure determinations would be 
comparable to exposure determinations obtained in U.S. surface coal 
mines since both measure respirable dust according to the British 
Medical Research Council criteria. These investigators found a doubling 
in the relative risk of developing profusion of simple CWP category 0/1 
for every 10 years of work in the dustiest jobs in surface mines. These 
coal dust exposures were under 1 mg/m\3\.
    Naidoo et al. (2004) in the initial analysis of the data collected 
on South African coal miners (see above) reported a significant trend 
in the development of pneumoconiosis in current miners as cumulative 
dust exposures increased from low (0.62-20.10 milligram-year per cubic 
meter of air (mg-yr/m\3\)) through medium (20.11-72.77 mg-yr/m\3\) to 
high

[[Page 64468]]

(72.78 to 258.70 mg-yr/m\3\) levels. Miners diagnosed with an average 
CWP profusion of greater than 1/0 had significantly more cumulative 
dust exposure of 115 mg.years/m\3\ as compared to miners without CWP 
who had dust exposure of 57.72 mg-yr/m\3\. The authors reported that 
miners with CWP profusion of greater than 1/0 also had lower mean 
percent predicted pulmonary function.
    Lin et al. (2001) studied 227 former and current miners who showed 
evidence of CWP on x-ray. These miners were evaluated at two medical 
clinics in Taiwan from June 1998 to February 2000 for the effect of CWP 
on respiratory function. Each subject received a medical examination 
and included a self-administered questionnaire to collect demographic, 
occupational, and health history. Subjects were classified according to 
their CWP radiological category (0-3) and the presence (52.9%) or 
absence (47.1%) of airway obstruction, defined as having a normal FVC 
and FEV<INF>1.</INF> These two groups were similar in regard to age, 
body size, and cumulative exposure to coal dust and smoking. There was 
significant progression of functional pulmonary impairment in men with 
category 2 or 3 CWP, in both the obstructed as well as unobstructed 
group.
    Smith and Leggat (2006) studied pneumoconiosis mortality in 
Australian coal miners by examining 24 years of national mortality data 
(1979-2002). These researchers found that 6% of these cases died due to 
CWP. The prevalence was about 0.5 CWP deaths/million population in 
1979-1981. Prevalence increased during the period 1988-1990 to about 
0.7 CWP deaths/million population. It declined to about 0.4 CWP deaths/
million during the 1994-1996 time period. It remained at this level 
through 2002.
b. Rapidly Progressive CWP and Progressive Massive Fibrosis (PMF)
    PMF is associated with decreased pulmonary function and increased 
premature mortality. It is also associated with increases in 
respiratory symptoms such as chest tightness, cough, and shortness of 
breath. Miners with PMF also are at increased risk of acquiring 
infections and pulmonary tuberculosis. Finally, miners with PMF are at 
an increased risk of right-side heart failure (i.e., cor pulmonale) (68 
FR 10784).
    Researchers determined that cases of rapidly progressive CWP are 
sentinel health events. These cases indicate inadequate prevention 
measures in specific regions. As reported above, Antao et al. (2005) 
identified a total of 886 cases of CWP among 29,521 miners examined 
from 1996 to 2002 in the CWXSP. CWP progression was evaluated in 783 of 
these miners; 277 (35.4%) were cases of rapidly progressive CWP, 
including 41 with PMF. The miners with rapidly progressive CWP were 
younger than miners without rapid progression, worked in smaller mines, 
and reported longer mean tenure in jobs involving work at the face of 
the mine. Many of these cases of rapidly progressive CWP developed in 
miners from eastern Kentucky and western Virginia.
    In a review, Soutar et al. 2004, reported on exposure-response 
relationships that have been derived using the PFR data for category 2 
CWP, PMF, chronic bronchitis (breathlessness), clinically important 
deficits of pulmonary function (FEV<INF>1</INF>), and category II 
silicosis. Risks for CWP and PMF are based on over 50,000 observations 
collected over 25 years. Pulmonary function results are based on a 
study of 7,000 miners. A threefold increase in the odds of a 
clinically-important deficit in pulmonary function was associated, on 
average, with a 0.993 liter FEV<INF>1</INF> deficit from predicted at 
the same average exposure level. Reductions in dust levels to protect 
against pneumoconiosis would protect similarly exposed miners from this 
significant pulmonary functional deficit.
    Yeoh and Yang (2002) studied PMF in current and ex-coal miners from 
October 1998 to February 2000 who were medically examined at clinics in 
Taiwan. Miners were between 45 and 76 years of age and had between 2 
and 42 years dust exposure in coal mines. A non-mining control 
population of healthy male Taiwanese over the age of 40 was selected. 
Data from 86 miners with PMF and the controls were included in the 
final analysis. These miners had worked as rock drillers (n = 65), face 
workers (n = 17), and general laborers (n = 4). Average duration of 
work underground was 28.6 years. Miners were shorter, weighed less, but 
smoked more than the controls. These miners had significantly reduced 
pulmonary function as compared to healthy controls. Miners were 
diagnosed as having either PMF Category A (n = 45), PMF Category B (n = 
32), or PMF Category C (n = 9). Pulmonary function testing indicated 
that 51 of these miners presented with an obstructive pulmonary 
disorder, while 17 presented with a restrictive disorder, 11 had a 
mixed functional abnormality, and 7 had normal lung function. Smoking 
and nonsmoking miners had comparable reductions in FEV<INF>1</INF> and 
FVC measurements. Smokers also showed a higher degree of airway 
obstruction. Similar restrictive, obstructive, or mixed patterns of 
respiratory impairments have been observed in American coal miners 
(Cohen et al. 2008).
    Kuempel et al. (1997) estimated excess (exposure-attributable) 
prevalence of simple CWP and PMF (i.e., number of cases of disease 
present in a population at a specified time, divided by the number of 
persons in the population at that specified time). PMF excess risk 
point estimates ranged from 1/1,000 to 167/1,000 among miners exposed 
at the existing MSHA standard for respirable coal mine dust. These 
estimates were based upon dust exposure that occurred over a miner's 
working lifetime (e.g., 8 hours per day, 5 days a week, 50 weeks per 
year, over a period of 45 years). Actual occupational lifetime exposure 
may be more, due to extended work shifts and work weeks. The point 
estimates of PMF presented by Kuempel et al. (1997) were related to 
coal rank, where higher estimates (e.g., 167/1,000) were obtained for 
high-rank coal (anthracite coal) and somewhat lower estimates were 
obtained for medium/low rank bituminous coal (e.g., 21/1,000). Within 
each coal rank, the estimates of simple CWP cases were at least twice 
as high as those for PMF (e.g., 167/1,000 PMF vs. 380/1,000 simple 
CWP).
    In summary, studies confirm that the risk of PMF increases with 
increasing category of simple CWP. The risk of PMF increases with 
increasing cumulative exposure, regardless of the initial category of 
simple CWP. This indicates that reducing dust exposures is a more 
effective means of reducing the risk of PMF than reliance on detection 
of simple CWP.

D. Conclusion

    The premature morbidity and mortality related to pulmonary disease 
in coal miners affect not only the miners and their families, but also 
the companies they work for and the communities they live in. The 
serious nature of one of these diseases, pneumoconiosis, was stated in 
the Coal Act as part of the justification for lowering the coal dust 
standard to 2 mg/m\3\.
    The extent of knowledge on how coal dust causes adverse pulmonary 
effects has evolved greatly in the 31 years since the Coal Act was 
signed into law. Though exposures have been reduced, this review of the 
literature indicates that miners are still suffering unacceptable 
levels of disease. Under the existing standards, miners are still at 
increased risk of developing adverse effects such as pulmonary function

[[Page 64469]]

deficits, obstructive and restrictive diseases including chronic 
bronchitis, COPD, emphysema, and simple CWP and PMF from a working 
lifetime exposure to respirable coal mine dust.
    The knowledge and methods for preventing these occupationally-
related diseases is known. The proposed rule would lower the 
concentration limit and include other important provisions necessary to 
reduce miners' exposure. Medical monitoring methods, such as pulmonary 
function testing, can be used to detect reductions in pulmonary 
function over time before CWP develops. Such affected miners can be 
protected from further deterioration by common industrial hygiene 
practices such as engineering controls and respiratory protection.

V. Quantitative Risk Assessment

    Below is a summary of the quantitative risk assessment (QRA) 
prepared for this rulemaking. The QRA has been peer reviewed by 
independent scientific experts at NIOSH and OSHA. The full text of the 
QRA and the peer reviewers' reports can be accessed electronically at 
http://www.msha.gov/regs/QRA/CoalDust2010.pdf.
    The QRA addresses three questions related to MSHA's proposed 
respirable coal mine dust rule: (1) Whether potential health effects 
associated with existing exposure conditions constitute material 
impairments to a miner's health or functional capacity; (2) whether 
existing exposure conditions and compliance approaches place miners at 
a significant risk of incurring any of these material impairments; and 
(3) whether the proposed rule has the potential to substantially reduce 
those risks.
    After summarizing respirable coal mine dust (RCMD) measurements for 
miners in various occupational categories, Part 1 of the QRA shows that 
exposures at existing levels are associated with coal workers 
pneumoconiosis (CWP), chronic obstructive pulmonary disease (COPD) 
including severe emphysema, and death due to non-malignant respiratory 
disease (NMRD). All of these outcomes constitute material impairments 
to a miner's health or functional capacity.
    Part 2 of the QRA analyzes and quantifies the excess risk of 
miners' incurring CWP or COPD, or dying due to NMRD, after 45 years of 
full-shift occupational exposure at levels currently observed in 
various exposure categories. Miners having different occupations and 
working at different locations face significantly different levels of 
RCMD exposure. In every exposure category, including clusters of 
occupational environments showing the lowest average dust 
concentrations, current exposure conditions place miners at a 
significant risk of incurring each of the material impairments 
considered.
    Part 3 of the QRA projects the risk of material impairments after 
the proposed exposure limit is applied to each shift. Although 
significant risks would remain in every exposure category, the proposed 
rule would substantially reduce the risks of CWP, severe emphysema, and 
NMRD mortality attributable to RCMD exposures. The proposed rule is 
projected to have a greater impact on risk for underground miners than 
for surface miners. Surveillance and exposure data have been collected 
on U.S. underground coal miners for over 40 years; there are few 
comparable studies on surface coal miners. The QRA shows that surface 
work locations exceed the proposed exposure limit on relatively few 
individual shifts and that the proposed rule is projected to have 
relatively little impact for surface workers who are exposed to average 
concentrations below 0.5 mg/m\3\. However, the data also show that 
certain surface occupations are exposed to concentrations of respirable 
dust exceeding the proposed exposure limit.
    Table 28 of the QRA contains the projected reduction in these risks 
for each occupational category. For progressive massive fibrosis (PMF, 
the most severe stage of CWP considered), projected improvements for 
underground workers at age 73 range from a reduction of 4 excess cases 
per thousand loading machine operators to a reduction of 75 excess 
cases per thousand cutting machine operators. For severe emphysema at 
age 73, the range of projected improvements for underground workers 
runs from a reduction of 3 cases per thousand white loading machine 
operators to a reduction of 50 cases per thousand non-white cutting 
machine operators. Again for underground workers, the range of 
projected improvements in the risk of death due to NMRD by age 85 is 
projected to run from 1 excess case per thousand loading machine 
operators to 15 excess cases per thousand cutting machine operators. 
For surface workers, reductions are projected of up to 3 excess cases 
of PMF per thousand cleaning plant operators and utility men, 8 excess 
cases of severe emphysema per thousand non-white cleaning plant 
operators and utility men, and 3 excess cases of NMRD mortality by age 
85 per thousand laborers.
    The proposed rule would adjust dust concentration limits downward 
to compensate for exposure hours in excess of 8 hours per shift, change 
the definition of normal production shift, and require the use of 
CPDMs. These proposed provisions would further reduce remaining risk 
for such miners and result in improvements that would be greater than 
those shown in Table 28. For a complete discussion of the benefits of 
the proposed rule, see Chapter III of the PREA.

VI. Derivation and Distribution Table

Derivation Table

    The following derivation table lists: (1) Each section number of 
the proposed rule and (2) the section number of the existing standard 
from which it is derived.

                            Derivation Table
------------------------------------------------------------------------
             Proposed section                     Existing section
------------------------------------------------------------------------
70........................................  70
70.1......................................  70.1
70.2......................................  70.2, 70.206, 70.207(f), new
70.100....................................  70.100
70.100(a).................................  70.100(a), new
70.100(b).................................  70.100(b), new
70.101....................................  70.101
70.101(a).................................  70.101, new
70.101(b).................................  70.101, new
70.201....................................  70.201
70.201(a).................................  70.201(a), new
70.201(b).................................  new
70.201(c).................................  new
70.201(d).................................  new
70.201(e).................................  70.201(b), new
70.201(e)(1)..............................  new
70.201(e)(2)..............................  new
70.201(f).................................  new
70.201(g).................................  new
70.201(h).................................  70.201(c), new
70.201(i).................................  new
70.201(j).................................  new
70.201(k).................................  new
70.202....................................  70.202
70.202(a).................................  70.202(a)
70.202(b).................................  70.202(b), new
70.202(c).................................  new
70.202(d).................................  new
70.203....................................  70.203
70.203(a).................................  70.203(a)
70.203(b).................................  70.203(b), new
70.203(c).................................  new
70.203(d).................................  new
70.204....................................  70.204
70.204(a).................................  70.204(a), new
70.204(b).................................  70.204(b), new
70.204(c).................................  70.204(d), new
70.204(c)(1)..............................  70.204(d)(2), new
70.204(c)(2)..............................  70.204(d)(3), new
70.204(c)(3)..............................  70.204(d)(4), new
70.204(c)(4)..............................  70.204(d)(5), new
70.204(c)(5)..............................  70.204(d)(1), new
70.204(d).................................  new
70.204(e).................................  70.204(e)
70.205....................................  70.205
70.205(a).................................  70.205(a), new

[[Page 64470]]

 
70.205(b).................................  70.205(b)
70.205(b)(1)..............................  70.205(b), 70.205(d)
70.205(b)(2)..............................  70.205(c), new
70.205(c).................................  new
70.206....................................  new
70.207....................................  70.207, new
70.207(a).................................  70.207(a), new
70.207(b).................................  70.207(e)
70.207(b)(1)..............................  70.207(e)(1)
70.207(b)(2)..............................  70.207(e)(2)
70.207(b)(3)..............................  70.207(e)(3)
70.207(b)(4)..............................  70.207(e)(4)
70.207(b)(5)..............................  70.207(e)(5)
70.207(b)(6)..............................  70.207(e)(6)
70.207(b)(7)..............................  70.207(e)(7)
70.207(b)(8)..............................  70.207(e)(8)
70.207(b)(9)..............................  70.207(e)(9)
70.207(b)(10).............................  70.207(e)(10)
70.207(c).................................  new
70.207(c)(1)..............................  70.207(b), new
70.207(c)(2)..............................  new
70.207(d).................................  70.207(d), new
70.207(e).................................  new
70.207(f).................................  70.207(c)
70.207(g).................................  70.201(d), new
70.207(g)(1)..............................  70.300, new
70.207(g)(2)..............................  new
70.207(g)(3)..............................  70.201(d), new
70.207(h).................................  new
70.207(i).................................  new
70.207(i)(1)..............................  new (70.300)
70.207(i)(2)..............................  new
70.207(i)(3)..............................  new
70.208....................................  new
70.208(a).................................  70.207(a), new
70.208(a)(1)..............................  70.207(a), new
70.208(a)(2)..............................  70.207(a), new
70.208(b).................................  70.207(e), new
70.208(b)(1)..............................  70.207(e)(1), new
70.208(b)(2)..............................  70.207(e)(2), new
70.208(b)(3)..............................  70.207(e)(3), new
70.208(b)(4)..............................  70.207(e)(4), new
70.208(b)(5)..............................  70.207(e)(5), new
70.208(b)(6)..............................  70.207(e)(6), new
70.208(b)(7)..............................  70.207(e)(7), new
70.208(b)(8)..............................  70.207(e)(8), new
70.208(b)(9)..............................  70.207(e)(9), new
70.208(b)(10).............................  70.207(e)(10), new
70.208(c).................................  new
70.208(d).................................  new
70.208(e).................................  new
70.208(f).................................  70.201(d), new
70.208(f)(1)..............................  70.300, new
70.208(f)(2)..............................  70.201(d), new
70.208(f)(3)..............................  new
70.208(f)(4)..............................  new
70.208(f)(5)..............................  new
70.208(g).................................  new
70.208(g)(1)..............................  new (70.300)
70.208(g)(2)..............................  new
70.208(g)(3)..............................  new
70.208(g)(4)..............................  new
70.208(h).................................  new
70.209....................................  70.208, new
70.209(a).................................  70.208(a), new
70.209(b).................................  new
70.209(b)(1)..............................  70.208(b), new
70.209(b)(2)..............................  new
70.209(c).................................  new
70.209(d).................................  70.208(d)
70.209(e).................................  70.201(d),new
70.209(e)(1)..............................  70.300, new
70.209(e)(2)..............................  new
70.209(e)(3)..............................  70.201(d),new
70.209(f).................................  new
70.209(g).................................  new
70.209(g)(1)..............................  70.300, new
70.209(g)(2)..............................  new
70.209(g)(3)..............................  new
70.209(g)(4)..............................  new
70.209(h).................................  70.208(f)
70.210....................................  70.209
70.210(a).................................  70.209(a)
70.210(b).................................  70.209(b)
70.210(c).................................  70.209(c), new
70.210(d).................................  70.209(d)
70.210(e).................................  70.209(e)
70.210(f).................................  new
70.211....................................  70.210
70.211(a).................................  70.210(a)
70.211(a)(1)..............................  70.210(a)(1)
70.211(a)(2)..............................  70.210(a)(2), new
70.211(a)(3)..............................  70.210(a)(3), new
70.211(a)(4)..............................  70.210(a)(4), new
70.211(a)(5)..............................  70.210(a)(5)
70.211(a)(6)..............................  70.210(a)(6)
70.211(b).................................  70.210(b)
70.211(c).................................  new
70.211(c)(1)..............................  new
70.211(c)(1)(i)...........................  new (70.210(a)(1))
70.211(c)(1)(ii)..........................  new (70.210(a)(2))
70.211(c)(1)(iii).........................  new (70.210(a)(3))
70.211(c)(1)(iv)..........................  new
70.211(c)(1)(v)...........................  new (70.210(a)(5))
70.211(c)(1)(vi)..........................  new (70.210(a)(6))
70.211(c)(1)(vii).........................  new
70.211(c)(1)(viii)........................  new
70.211(c)(2)..............................  new
70.211(c)(3)..............................  70.210(b), new
70.212....................................  70.220
70.212(a).................................  70.220(a), new
70.212(b).................................  70.220(b)
70.212(c).................................  new
71........................................  71
71.1......................................  71.1
71.2......................................  71.2, 71.206, new
71.100....................................  71.100
71.100(a).................................  71.100
71.100(b).................................  new
71.100(c).................................  new
71.100(d).................................  new
71.101....................................  71.101
71.101(a).................................  71.101, new
71.101(b).................................  71.101, new
71.201....................................  71.201
71.201(a).................................  71.201(a), new
71.201(b).................................  71.201(b), new
71.201(b)(1)..............................  new
71.201(b)(2)..............................  new
71.201(c).................................  new
71.201(d).................................  new
71.201(e).................................  71.201(c), new
71.201(f).................................  71.201(e)
71.201(g).................................  new
71.201(h).................................  new
71.202....................................  71.202
71.202(a).................................  71.202(a)
71.202(b).................................  71.202(b), new
71.202(c).................................  new
71.202(d).................................  new
71.203....................................  71.203
71.203(a).................................  71.203(a)
71.203(b).................................  71.203(b), new
71.203(c).................................  new
71.203(d).................................  new
71.204....................................  71.204
71.204(a).................................  71.204(a), new
71.204(b).................................  71.204(b), new
71.204(c).................................  71.204(d), new
71.204(c)(1)..............................  71.204(d)(2), new
71.204(c)(2)..............................  71.204(d)(3), new
71.204(c)(3)..............................  71.204(d)(4), new
71.204(c)(4)..............................  71.204(d)(5), new
71.204(c)(5)..............................  71.204(d)(1), new
71.204(d).................................  new
71.204(e).................................  71.204(e)
71.205....................................  71.205
71.205(a).................................  71.205(a), new
71.205(b).................................  71.205(b), new
71.205(b)(1)..............................  71.205(b)
71.205(b)(2)..............................  71.205(c)
71.205(c).................................  new
71.206....................................  new
71.207....................................  71.208, new
71.207(a).................................  71.208(a), new
71.207(b).................................  new
71.207(c).................................  new
71.207(d).................................  71.208(h), new
71.207(e).................................  71.208(g)
71.207(f).................................  71.208(e), new
71.207(g).................................  71.208(f), new
71.207(h).................................  new
71.207(h)(1)..............................  71.208(b), new
71.207(h)(2)..............................  new
71.207(i).................................  new
71.207(j).................................  71.208(d)
71.207(k).................................  71.201(d), new
71.207(k)(1)..............................  new (70.300)
71.207(k)(2)..............................  new
71.207(k)(3)..............................  71.201(d), new
71.207(l).................................  71.300, new
71.207(m).................................  71.208(c), new
71.207(n).................................  71.208(c), new
71.207(n)(1)..............................  71.208(c), new
71.207(n)(2)..............................  new
71.208....................................  71.209
71.208(a).................................  71.209(a)
71.208(b).................................  71.209(b)
71.208(c).................................  71.209(c), new
71.208(d).................................  71.209(d)
71.208(e).................................  71.209(e)
71.208(f).................................  new
71.209....................................  71.210
71.209(a).................................  71.210(a)
71.209(a)(1)..............................  71.210(a)(1)
71.209(a)(2)..............................  71.210(a)(2)
71.209(a)(3)..............................  71.210(a)(3), new
71.209(a)(4)..............................  71.210(a)(5)
71.209(b).................................  71.210(b), new
71.209(c).................................  new
71.209(c)(1)(i)...........................  new (71.210(a)(1))
71.209(c)(1)(ii)..........................  new (71.210(a)(2))
71.209(c)(1)(iii).........................  new (71.210(a)(3))
71.209(c)(1)(iv)..........................  new (71.210(a)(5))
71.209(c)(1)(v)...........................  new
71.209(c)(1)(vi)..........................  new
71.209(c)(2)..............................  new (71.210(b))
71.210....................................  71.220
71.210(a).................................  71.220(a), new
71.210(b).................................  71.220(b)
71.210(c).................................  new
71.300....................................  71.300
71.300(a).................................  71.300(a), new
71.300(a)(1)..............................  new
71.300(a)(2)..............................  new
71.300(a)(3)..............................  new

[[Page 64471]]

 
71.300(a)(4)..............................  new
71.300(b).................................  71.300(b)
71.301....................................  71.301
71.301(a).................................  71.301(a)
71.301(a)(1)..............................  71.301(a)(1), new
71.301(a)(2)..............................  71.301(a)(2)
71.301(b).................................  71.301(b), new
71.301(c).................................  71.301(c)
71.301(d).................................  new
71.301(d)(1)..............................  new
71.301(d)(2)..............................  new
71.301(d)(3)..............................  71.301(d), new
71.301(e).................................  71.301(e)
72.100....................................  new
72.700....................................  new (70.300)
72.700(a).................................  new (70.300)
72.700(b).................................  new
72.700(c).................................  new
72.701....................................  new (70.305)
72.800....................................  new
75.325(a)(2)..............................  75.325(a)(2), new
75.332(a)(1)..............................  75.332(a)(1), new
75.350(b)(3)(i)...........................  75.350(b)(3)(i)
75.350(b)(3)(i)(A)........................  75.350(b)(3)(i)
75.350(b)(3)(i)(B)........................  75.350(b)(3)(i), new
75.350(b)(3)(ii)..........................  75.350(b)(3)(ii), new
75.362(a)(2)..............................  75.362(a)(2), new
75.362(g)(2)..............................  75.362(g)(2), new
75.362(g)(2)(i)...........................  75.362(g)(2), new
75.362(g)(2)(ii)..........................  new
75.362(g)(3)..............................  new
75.362(g)(4)..............................  new
75.371(f).................................  75.371(f), new
75.371(f)(1)..............................  new
75.371(f)(2)..............................  new
75.371(f)(3)..............................  new
75.371(f)(4)..............................  new
75.371(j).................................  75.371(j), new
75.371(t).................................  75.371(t)
90........................................  90
90.1......................................  90.1, new
90.2......................................  90.2, 90.206, new
90.3......................................  90.3
90.3(a)...................................  90.3(a), new
90.3(b)...................................  90.3(b)
90.3(c)...................................  90.3(c)
90.3(d)...................................  90.3(d), new
90.3(e)...................................  90.3(e), new
90.3(f)...................................  90.3(f)
90.100....................................  90.100
90.100(a).................................  90.100
90.100(b).................................  new
90.101....................................  90.101
90.101(a).................................  90.101, new
90.101(b).................................  90.101, new
90.102....................................  90.102
90.102(a).................................  90.102(a), new
90.102(b).................................  90.102(b)
90.102(c).................................  90.102(c)
90.103....................................  90.103
90.103(a).................................  90.103(a)
90.103(b).................................  90.103(b)
90.103(c).................................  new
90.103(d).................................  90.103(c)
90.103(e).................................  90.103(d)
90.103(f).................................  90.103(e)
90.103(g).................................  90.103(f)
90.104....................................  90.104
90.104(a).................................  90.104(a)
90.104(a)(1)..............................  90.104(a)(1)
90.104(a)(2)..............................  90.104(a)(2), new
90.104(a)(3)..............................  90.104(a)(3), new
90.104(b).................................  90.104(b)
90.104(c).................................  90.104(c)
90.201....................................  90.201, new
90.201(a).................................  90.201(a), new
90.201(b).................................  90.201(b), new
90.201(b)(1)..............................   new
90.201(b)(2)..............................  new
90.201(c).................................  90.201(f)
90.201(c)(1)..............................  90.201(f)(1)
90.201(c)(2)..............................  90.201(f)(2)
90.201(c)(3)..............................  90.201(f)(3)
90.201(d).................................  new
90.201(e).................................  90.201(e)
90.201(f).................................  new
90.201(g).................................  90.201(c), new
90.201(h).................................  new
90.201(i).................................  new
90.202....................................  90.202
90.202(a).................................  90.202(a)
90.202(b).................................  90.202(b), new
90.202(c).................................  new
90.202 (d)................................  new
90.203....................................  90.203
90.203(a).................................  90.203(a)
90.203(b).................................  90.203(b), new
90.203(c).................................  new
90.203(d).................................  new
90.204....................................  90.204
90.204(a).................................  90.204(a), new
90.204(b).................................  90.204(b), new
90.204(c).................................  90.204(d), new
90.204(c)(1)..............................  90.204(d)(2), new
90.204(c)(2)..............................  90.204(d)(3), new
90.204(c)(3)..............................  90.204(d)(4), new
90.204(c)(4)..............................  90.204(d)(5), new
90.204(c)(5)..............................  90.204(d)(1), new
90.204(d).................................  new
90.204(e).................................  90.204(e)
90.205....................................  90.205
90.205(a).................................  90.205(a), new
90.205(b).................................  90.205(b)
90.205(b)(1)..............................  90.205(b), 90.205(d)
90.205(b)(2)..............................  90.205(c), new
90.205(c).................................  new
90.206....................................  new
90.207....................................  90.207, new
90.207(a).................................  90.207(a)
90.207(a)(1)..............................  90.207(a)(1)
90.207(a)(2)..............................  90.207(a)(2), new
90.207(a)(3)..............................  90.207(a)(3)
90.208....................................  90.208, new
90.208(a).................................  90.208(a), new
90.208(b).................................  new
90.208(b)(1)..............................  90.208(b), new
90.208(b)(2)..............................  new
90.208(c).................................  new
90.208(d).................................  90.208(c)
90.208(e).................................  90.201(d), new
90.208(e)(1)..............................  new (70.300)
90.208(e)(2)..............................  new
90.208(e)(2)(i)...........................  90.201(d), new
90.208(e)(2)(ii)..........................  new
90.208(f).................................  new
90.208(g).................................  new
90.208(g)(1)..............................  new (70.300)
90.208(g)(2)..............................  new
90.208(g)(3)..............................  new
90.209....................................  new
90.209(a).................................  new
90.209(b).................................  new
90.209(c).................................  new
90.209(d).................................  new
90.209(e).................................  90.201(d), new
90.209(e)(1)..............................  new (70.300)
90.209(e)(2)..............................  90.201(d), new
90.209(e)(3)..............................  90.300(a), new
90.209(e)(4)..............................  new
90.209(e)(5)..............................  new
90.209(e)(6)..............................  new
90.209(f).................................  new
90.210....................................  90.209
90.210(a).................................  90.209(a)
90.210(b).................................  90.209(b)
90.210(c).................................  90.209(c), new
90.210(d).................................  90.209(d)
90.210(e).................................  90.209(e)
90.210(f).................................  new
90.211....................................  90.210
90.211(a).................................  90.210(a)
90.211(a)(1)..............................  90.210(a)(1)
90.211(a)(2)..............................  90.210(a)(2), new
90.211(a)(3)..............................  90.210(a)(3), new
90.211(a)(4)..............................  90.210(a)(4), new
90.211(a)(5)..............................  90.210(a)(5)
90.211(a)(6)..............................  90.210(a)(6)
90.211(a)(7)..............................  90.210(a)(7), new
90.211(b).................................  90.210(b)
90.211(c).................................  new
90.211(c)(1)..............................  new
90.211(c(1)(i))...........................  90.210(a)(1)
90.211(c)(1)(ii)..........................  90.210(a)(2), new
90.211(c)(1)(iii).........................  90.210(a)(3), new
90.211(c)(1)(iv)..........................  new
90.211(c)(1)(v)...........................  90.210(a)(5)
90.211(c)(1)(vi)..........................  90.210(a)(6)
90.211(c)(1)(vii).........................  90.210(a)(7), new
90.211(c)(1)(viii)........................   new
90.211(c)(1)(ix)..........................  new
90.211(c)(2)..............................  new
90.211(d).................................  90.210(b), new
90.212....................................  90.220
90.212(a).................................  90.220 new
90.212(b).................................  new
90.300....................................  90.300
90.300(a).................................  90.300(a), new
90.300(b).................................  90.300(b)
90.300(b)(1)..............................  90.300(b)(1)
90.300(b)(2)..............................  90.300(b)(2), new
90.300(b)(3)..............................  90.300(b)(3), new
90.300(b)(4)..............................  90.300(b)(4)
90.301....................................  90.301
90.301(a).................................  90.301(a)
90.301(a)(1)..............................  90.301(a)(1), new
90.301(a)(2)..............................  90.301(a)(2)
90.301(b).................................  90.301(b), new
90.301(c).................................  90.301(c)
90.301(d).................................  90.301(d)
90.301(e).................................  90.301(e)
------------------------------------------------------------------------

Distribution Table

    The following distribution table lists each section number of the 
existing standard and status of that section number in the proposed 
rule.

                            Distribution Table
------------------------------------------------------------------------
             Existing section                     Proposed section
------------------------------------------------------------------------
70.1......................................  70.1
70.2......................................  70.2 (revised)
70.100....................................  70.100

[[Page 64472]]

 
70.100(a).................................  70.100(a)(1)-(a)(4)
                                             (revised)
70.100(b).................................  70.100(b)(1)-(b)(2)
                                             (revised)
70.101....................................  70.101(a)-(b) (revised)
70.201....................................  70.201 (revised)
70.201(a).................................  70.201(a) (revised)
70.201(b).................................  70.201(e) (revised)
70.201(c).................................  70.201(h) (revised)
70.201(d).................................  70.207(g) (revised),
                                             70.208(f) (revised)
70.202....................................  70.202
70.202(a).................................  70.202(a)
70.202(b).................................  70.202(b) (revised)
70.202(c).................................  Removed
70.203....................................  70.203
70.203(a).................................  70.203(a)
70.203(b).................................  70.203(b) (revised)
70.203(c).................................  Removed
70.204....................................  70.204
70.204(a).................................  70.204(a) (revised)
70.204(b).................................  70.204(b) (revised)
70.204(c).................................  Removed
70.204(d).................................  70.204(c) (revised)
70.204(d)(1)..............................  70.204(c)(5) (revised)
70.204(d)(2)..............................  70.204(c)(1) (revised)
70.204(d)(3)..............................  70.204(c)(2) (revised)
70.204(d)(4)..............................  70.204(c)(3) (revised
70.204(d)(5)..............................  70.204(c)(4) (revised)
70.204(e).................................  70.204(e)
70.205....................................  70.205
70.205(a).................................  70.205(a) (revised)
70.205(b).................................  70.205(b), (b)(1) (revised)
70.205(c).................................  70.205(b)(2) (revised)
70.205(d).................................  70.205(b)(1)
70.206....................................  70.2 (revised)
70.207....................................  70.207 (revised)
70.207(a).................................  70.207(a) (revised)
70.207(b).................................  70.207(c)(1) (revised)
70.207(c).................................  70.207(f) (revised)
70.207(d).................................  70.207(d) (revised)
70.207(e).................................  70.207(b) (revised)
70.207(e)(1)..............................  70.207(b)(1)
70.207(e)(2)..............................  70.207(b)(2)
70.207(e)(3)..............................  70.207(b)(3)
70.207(e)(4)..............................  70.207(b)(4)
70.207(e)(5)..............................  70.207(b)(5)
70.207(e)(6)..............................  70.207(b)(6)
70.207(e)(7)..............................  70.207(b)(7)
70.207(e)(8)..............................  70.207(b)(8)
70.207(e)(9)..............................  70.207(b)(9)
70.207(e)(10).............................  70.207(b)(10)
70.207(f).................................  70.2 (revised) (Mechanized
                                             mining unit)
70.208....................................  70.209 (revised)
70.208(a).................................  70.209(a) (revised)
70.208(b).................................  70.209(b)(1) (revised)
70.208(c).................................  70.209(b)(2) (revised)
70.208(d).................................  70.209(d) (revised)
70.208(e).................................  70.2 (revised) (Designated
                                             area)
70.208(f).................................  70.209(h)
70.209....................................  70.210
70.209(a).................................  70.210(a)
70.209(b).................................  70.210(b)
70.209(c).................................  70.210(c) (revised)
70.209(d).................................  70.210(d)
70.209(e).................................  70.210(e)
70.210....................................  70.211
70.210(a).................................  70.211(a) (revised)
70.210(a)(1)..............................  70.211(a)(1)
70.210(a)(2)..............................  70.211(a)(2) (revised)
70.210(a)(3)..............................  70.211(a)(3) (revised)
70.210(a)(4)..............................  70.211(a)(4) (revised)
70.210(a)(5)..............................  70.211(a)(5)
70.210(a)(6)..............................  70.211(a)(6)
70.210(b).................................  70.211(b)
70.220....................................  70.212
70.220(a).................................  70.212(a) (revised)
70.220(b).................................  70.212(b)
70.300....................................  72.700 (revised)
70.305....................................  72.701
71.1......................................  71.1
71.2......................................  71.2 (revised)
71.100....................................  71.100
71.101....................................  71.101 (revised)
71.201....................................  71.201 (revised)
71.201(a).................................  71.201(a) (revised)
71.201(b).................................  71.201(b) (revised)
71.201(c).................................  71.201(e) (revised)
71.201(d).................................  71.201(k) (revised)
71.201(e).................................  71.201(f) (revised)
71.202....................................  71.202
71.202(a).................................  71.201(a)
71.202(b).................................  71.202(b) (revised)
71.202(c).................................  Removed
71.203....................................  71.203
71.203(a).................................  71.203(a)
71.203(b).................................  71.203(b) (revised)
71.203(c).................................  Removed
71.204....................................  71.204
71.204(a).................................  71.204(a) (revised)
71.204(b).................................  71.204(b) (revised)
71.204(c).................................  Removed
71.204(d).................................  71.204(c) (revised)
71.204(d)(1)..............................  71.204(c)(5) (revised)
71.204(d)(2)..............................  71.204(c)(1) (revised)
71.204(d)(3)..............................  71.204(c)(2) (revised)
71.204(d)(4)..............................  71.204(c)(3) (revised)
71.204(d)(5)..............................  71.204(c)(4) (revised)
71.204(e).................................  71.204(e)
71.205....................................  71.205
71.205(a).................................  71.205(a) (revised)
71.205(b).................................  71.205(b), 71.205(b)(1)
                                             (revised)
71.205(c).................................  71.205(b)(2) (revised)
71.206....................................  71.2 (revised)
71.208....................................  71.207 (revised)
71.208(a).................................  71.207(a) (revised)
71.208(b).................................  71.207(h)(1)
71.208(c).................................  71.207(m)
71.208(d).................................  71.207(j)
71.208(e).................................  71.207(f) (revised)
71.208(f).................................  71.207(g) (revised)
71.208(g).................................  71.207(e)
71.208(h).................................  71.207(d)
71.209....................................  71.208
71.209(a).................................  71.208(a)
71.209(b).................................  71.208(b)
71.209(c).................................  71.208(c) (revised)
71.209(d).................................  71.208(d)
71.209(e).................................  71.208(e)
71.210....................................  71.209
71.210(a).................................  71.209(a) (revised)
71.210(a)(1)..............................  71.209(a)(1)
71.210(a)(2)..............................  71.209(a)(2)
71.210(a)(3)..............................  71.209(a)(3) (revised)
71.210(a)(4)..............................  Removed
71.210(a)(5)..............................  71.209(a)(4)
71.210(b).................................  71.209(b) (revised)
71.220....................................  71.210
71.220(a).................................  71.210(a) (revised)
71.220(b).................................  71.210(b)
71.300....................................  71.300
71.300(a).................................  71.300(a) (revised)
71.300(b).................................  71.300(b)
71.301....................................  71.301
71.301(a).................................  71.301(a)
71.301(a)(1)..............................  71.301(a)(1) (revised)
71.301(a)(2)..............................  71.301(a)(2)
71.301(b).................................  71.301(b) (revised)
71.301(c).................................  71.301(c)
71.301(d).................................  71.301(d) (revised)
71.301(e).................................  71.301(e)
75.325(a)(2)..............................  75.325(a)(2) (revised)
75.332(a)(1)..............................  75.332(a)(1) (revised)
75.350(b)(3)(i)...........................  75.350(b)(3)(i) (revised)
75.350(b)(3)(ii)..........................  75.350(b)(3)(ii) (revised)
75.362(a)(2)..............................  75.362(a)(2) (revised)
75.362(g)(2)..............................  75.362(g)(2) (revised)
75.371(f).................................  75.371(f) (revised)
75.371(j).................................  75.371(j) (revised)
75.371(t).................................  75.371(t) (revised)
90.1......................................  90.1 (revised)
90.2......................................  90.2 (revised)
90.3......................................  90.3
90.3(a)...................................  90.3(a) (revised)
90.3(b)...................................  90.3(b)
90.3(c)...................................  90.3(c)
90.3(d)...................................  90.3(d) (revised)
90.3(e)...................................  90.3(e) (revised)
90.3(f)...................................  90.3(f)
90.100....................................  90.100 (revised)
90.101....................................  90.101 (revised)
90.102(a).................................  90.102(a) (revised)
90.102(b).................................  90.102(b)
90.102(c).................................  90.102(c)
90.103(a).................................  90.103(a)
90.103(b).................................  90.103(b)
90.103(c).................................  90.103(d)
90.103(d).................................  90.103(e)
90.103(e).................................  90.103(f)
90.103(f).................................  90.103(g)
90.104....................................  90.104
90.104(a).................................  90.104(a)
90.104(a)(1)..............................  90.104(a)(1)
90.104(a)(2)..............................  90.104(a)(2) (revised)
90.104(a)(3)..............................  90.104(a)(3) (revised)
90.104(b).................................  90.104(b)
90.104(c).................................  90.104(c)
90.201....................................  90.201 (revised)
90.201(a).................................  90.201(a) (revised)
90.201(b).................................  90.201(b) (revised)
90.201(c).................................  90.201(g) (revised)
90.201(d).................................  90.208(e) (revised),
                                             90.209(e) (revised)
90.201(e).................................  90.201(e)
90.201(f).................................  90.201(c)
90.201(f)(1)..............................  90.201(c)(1)
90.201(f)(2)..............................  90.201(c)(2)
90.201(f)(3)..............................  90.201(c)(3)
90.202....................................  90.202
90.202(a).................................  90.202(a)
90.202(b).................................  90.202(b) (revised)
90.202(c).................................  Removed
90.203....................................  90.203
90.203(a).................................  90.203(a)
90.203(b).................................  90.203(b) (revised)
90.203(c).................................  Removed
90.204....................................  90.204

[[Page 64473]]

 
90.204(a).................................  90.204(a) (revised)
90.204(b).................................  90.204(b) (revised)
90.204(c).................................  Removed
90.204(d).................................  90.204(c) (revised)
90.204(d)(1)..............................  90.204(c)(5) (revised)
90.204(d)(2)..............................  90.204(c)(1) (revised)
90.204(d)(3)..............................  90.204(c)(2) (revised)
90.204(d)(4)..............................  90.204(c)(3) (revised)
90.204(d)(5)..............................  90.204(c)(4) (revised)
90.204(e).................................  90.204(e)
90.205....................................  90.205
90.205(a).................................  90.205(a) (revised)
90.205(b).................................  90.205(b), (b)(1) (revised)
90.205(c).................................  90.205(b)(2) (revised)
90.205(d).................................  90.205(b)(1)
90.206....................................  90.2 (revised)
90.207....................................  90.207 (revised)
90.207(a).................................  90.207(a)
90.207(a)(1)..............................  90.207(a)(1)
90.207(a)(2)..............................  90.207(a)(2) (revised)
90.207(a)(3)..............................  90.207(a)(3)
90.208....................................  90.208 (revised)
90.208(a).................................  90.208(a) (revised)
90.208(b).................................  90.208(b)(1) (revised)
90.208(c).................................  90.208(d) (revised)
90.209....................................  90.210
90.209(a).................................  90.210(a)
90.209(b).................................  90.210(b)
90.209(c).................................  90.210(c) (revised)
90.209(d).................................  90.210(d)
90.209(e).................................  90.210(e)
90.210....................................  90.211
90.210(a).................................  90.211(a) (revised)
90.210(a)(1)..............................  90.211(a)(1)
90.210(a)(2)..............................  90.211(a)(2) (revised)
90.210(a)(3)..............................  90.211(a)(3) (revised)
90.210(a)(4)..............................  90.211(a)(4) (revised)
90.210(a)(5)..............................  90.211(a)(5)
90.210(a)(6)..............................  90.211(a)(6)
90.210(a)(7)..............................  90.211(a)(7) (revised)
90.210(b).................................  90.211(b)
90.220....................................  90.212, 90.212(a) (revised)
90.300....................................  90.300
90.300(a).................................  90.300(a) (revised)
90.300(b).................................  90.300(b)
90.300(b)(1)..............................  90.300(b)(1)
90.300(b)(2)..............................  90.300(b)(2) (revised)
90.300(b)(3)..............................  90.300(b)(3) (revised)
90.300(b)(4)..............................  90.300(b)(4)
90.301....................................  90.301
90.301(a).................................  90.301(a)
90.301(a)(1)..............................  90.301(a)(1) (revised)
90.301(a)(2)..............................  90.301(a)(2)
90.301(b).................................  90.301(b) (revised)
90.301(c).................................  90.301(c)
90.301(d).................................  90.301(d)
90.301(e).................................  90.301(e)
------------------------------------------------------------------------

VII. Executive Order 12866

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of regulations. To comply with E.O. 
12866, MSHA has prepared a Preliminary Regulatory Economic Analysis 
(PREA) for this proposed rule. The PREA contains supporting data and 
explanation for the summary materials presented in this preamble, 
including the covered mining industry, costs and benefits, feasibility, 
small business impacts, and paperwork. The PREA can be accessed 
electronically at http://www.msha.gov/rea.htm. A copy of the PREA can 
be obtained from MSHA's Office of Standards, Regulations and Variances 
at the address in the ADDRESSES section of this preamble. MSHA requests 
comments on all estimates of costs and benefits presented in this 
preamble and in the PREA, and on the data and assumptions the Agency 
used to develop estimates.
    Under E.O. 12866, a significant regulatory action is one meeting 
any of a number of specified conditions, including the following: 
Having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. Based on the PREA, MSHA has determined that 
this proposed rule would not have an annual effect of $100 million or 
more in terms of compliance costs to the economy and therefore it is 
not an economically significant regulatory cost action pursuant to 
section 3(f) of Executive Order 12866. However, benefit effects of the 
proposed rule are likely to exceed $100 million and would be 
economically significant in terms of benefits.

A. Population at Risk

    The proposed rule would apply to all underground and surface coal 
mines in the United States. For 12 months ending January 2010, there 
was an average of 424 active underground coal mines employing 
approximately 40,300 miners (excluding office workers) and 1,123 active 
surface coal mines employing approximately 32,300 miners (excluding 
office workers).

B. Benefits

    This section includes a summary of the health risks under the 
existing standard; estimated health risks under the proposed rule; and 
the estimated benefits resulting from proposed changes. The primary 
benefit of the proposed rule is the reduction of occupational lung 
disease among coal miners by improving the existing program to control 
respirable coal mine dust and quartz, and reducing miners' exposure to 
these hazards.
    Three documents that examined the program to control respirable 
coal mine dust in U.S. mines were MSHA's Respirable Dust Task Group 
Report, the National Institute for Occupational Safety and Health's 
(NIOSH) Criteria Document on Occupational Exposure to Respirable Coal 
Mine Dust, and the Report of the Secretary of Labor's Advisory 
Committee on the Elimination of Pneumoconiosis Among Coal Mine Workers. 
While recognizing that significant progress had been made to reduce 
respirable coal mine dust levels in coal mines, these documents 
concluded that there are existing practices in the dust program that 
should be changed to provide miners with increased health protection. 
This proposed rule would address many of the recommendations made in 
those documents. The primary benefit of the proposed rule is the 
reduction of occupational lung disease (e.g., coal workers' 
pneumoconiosis (CWP), progressive massive fibrosis (PMF), silicosis, 
and chronic obstructive pulmonary disease (COPD)) among coal miners. 
This reduction results from improving the existing program to control 
respirable coal mine dust and quartz, and reducing miners' exposure to 
these hazards. These adverse health effects are considered collectively 
to be non-malignant (non-cancerous) respiratory diseases (NMRD).
    MSHA based its estimate of benefits on the 2010 Quantitative Risk 
Assessment (QRA) developed specifically to support this proposed rule. 
The 2010 QRA focuses on the effects of the proposed lowering of the 
standard to 1.0 mg/m\3\ for most miners (0.5 mg/m\3\ for part 90 
miners) and the proposed use of single shift samples to determine 
noncompliance.
    To estimate the benefits of the proposed rule, the QRA compared the 
risks for two hypothetical cohorts of miners with the same occupation/
coal rank distribution. The cohort designed to characterize risks to 
current workforce was assigned 45-year lifetime exposures based on 
current monitoring data. The comparison cohort was assigned 45-year 
lifetime exposures designed to represent risks associated with two 
provisions of the proposed rule (i.e., lowering the limit from 2.0 mg/
m\3\ to 1.0 mg/m\3\ and basing determinations of noncompliance on 
single samples rather than the average of 5 samples). Since the two 
cohorts being compared are independent, it is important to note two 
important caveats: (1) No benefits were projected for slowing or 
stopping the progression of disease among the population that has 
experienced current (or historical) exposures during their working 
lifetime; and (2) due to the latency between exposure and disease, 
especially for such endpoints as severe emphysema, a

[[Page 64474]]

large portion of the benefits estimated by this analysis would not be 
expected to accrue for many years into the future.
    Based upon this analysis, MSHA estimates that over a 45-year 
working lifetime, two provisions of the proposed rule (i.e., lowering 
the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\ and basing determinations of 
noncompliance on single samples rather than the average of 5 samples) 
would result in the prevention of the adverse health effects shown in 
Table VII-1.

   Table VII-1--Estimated Number of Adverse Health Effects Prevented Over 45 Years From Two Provisions of the
                                                  Proposed Rule
    [Lowering the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\ and basing determinations of noncompliance on single
                                                    samples]
----------------------------------------------------------------------------------------------------------------
                                                                                      Severe        Deaths from
                                      CWP 1+          CWP 2+            PMF          emphysema         NMRD
----------------------------------------------------------------------------------------------------------------
Number of Cases Prevented Over a           1,301             985             641             556             106
 45-Year Work Life..............
----------------------------------------------------------------------------------------------------------------

    MSHA projects that there would be additional reductions in cases of 
CWP, PMF, severe emphysema, and NMRD resulting from other proposed 
changes. If the proposed requirement for full-shift sampling and the 
proposed definition of normal production shift had been in effect in 
2009, the amount of dust on the samples would have been higher because 
of the longer time and the higher levels of production. Lowering 
exposures from these higher levels to the levels being proposed would 
result in additional benefits beyond those associated with the actual 
recorded sampling results. MSHA used additional data from the 
feasibility assessment to extrapolate the further impact of these two 
provisions.

   Table VII-2--Estimated Number of Adverse Health Effects Prevented From Four Provisions of the Proposed Rule
    [Lowering the limit from 2.0 mg/m\3\ to 1.0 mg/m\3\, two changes to the sampling strategy and the revised
                                     definition of normal production shift]
----------------------------------------------------------------------------------------------------------------
                                                                                      Severe        Deaths from
                                      CWP 1+          CWP 2+            PMF          emphysema         NMRD
----------------------------------------------------------------------------------------------------------------
Number of Cases Prevented Over a           1,606           1,216             791             687             131
 45[dash]Year Work Life.........
----------------------------------------------------------------------------------------------------------------

    MSHA did not quantify the benefits associated with several 
provisions of the proposed rule (e.g., sampling the designated 
occupations (DOs) and Part 90 miners on every production shift using 
the CPDM, periodic examinations, expanding the Part 90 option to 
surface miners). MSHA also projects that there would be reductions in 
cases of other adverse health effects that result from exposure to 
respirable coal mine dust, such as silicosis and chronic bronchitis, 
which the Agency has not quantified.
    More detailed information about how MSHA estimated benefits is 
available in the Preliminary Regulatory Economic Analysis (PREA) 
supporting this proposed rule. Both the PREA and the 2010 QRA are 
available on MSHA's Web site, at http://www.msha.gov/rea.htm and http://www.msha.gov/regs/QRA/CoalDust2010.pdf, respectively.
    To estimate the monetary values of the reductions in cases of CWP 
1+, CWP 2+, PMF, severe emphysema and deaths from NMRD, MSHA performed 
an analysis of the imputed value of illnesses and fatalities avoided 
based on a willingness-to-pay approach. This approach relies on the 
theory of compensating wage differentials (i.e., the wage premium paid 
to workers to accept the risk associated with various jobs) in the 
labor market. A number of studies have shown a correlation between 
higher job risk and higher wages, suggesting that employees demand 
monetary compensation in return for incurring a greater risk of illness 
or fatality.
    Viscusi & Aldy (2003) conducted an analysis of studies that use a 
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and found that each fatality 
avoided was valued at approximately $7 million and each lost work-day 
injury was approximately $50,000 in 2000 dollars. Using the GDP 
Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an 
estimate of $8.7 million for each fatality avoided and $62,000 for each 
injury avoided in 2009 dollars. MSHA is using the $8.7 million estimate 
for the value of a death prevented and $62,000 for each case of CWP 1+ 
or CWP 2+ prevented. This value of a statistical life (VSL) estimate is 
within the range of the substantial majority of such estimates in the 
literature ($1 million to $10 million per statistical life), as 
discussed in OMB Circular A-4 (OMB, 2003).
    Given the disabling consequences of PMF and severe emphysema, MSHA 
does not believe that limiting the value to the estimate for lost 
workday injuries is appropriate. Instead, MSHA based the value of a 
case of PMF and severe emphysema prevented on the work of Magat, 
Viscusi & Huber (1996), which estimated the value of a non-fatal cancer 
avoided. The Occupational Safety and Health Administration (OSHA) used 
this approach in the Final Economic Analysis (FEA) supporting its 
hexavalent chromium final rule, and Environmental Protection Agency 
(EPA) used this approach in its Stage 2 Disinfectants and Disinfection 
Byproducts water rule (EPA, 2003). Although PMF and severe emphysema 
are not non-fatal cancers, MSHA believes that they have a similar 
impact on the quality of life and would thus result in similar 
valuations. Based on Magat, Viscusi & Huber (1996), EPA valued the 
prevention of a case of non-fatal cancer at 58.3 percent of the value 
of a fatal cancer avoided. MSHA estimates the value of a case of PMF or 
severe emphysema prevented to be $5.1 million ($5.1 million = 58.3 
percent of $8.7 million).
    Although MSHA is using the willingness-to-pay approach as the basis 
for monetizing the expected benefits of the proposed rule, the Agency 
does so with several reservations, given the methodological 
difficulties involved in estimating the compensating wage differentials 
(see Hintermann, Alberini and Markandya, 2008). Furthermore, these 
estimates pooled across different industries may not capture the unique

[[Page 64475]]

circumstances faced by coal miners. For example, some have suggested 
that VSL models be disaggregated to account for different levels of 
risk, as might occur in coal mining (see Sunstein, 2004). In addition, 
coal miners may have few options of alternative employers and in some 
cases only one employer (near-monopsony or monopsony) that may depress 
wages below those in a more competitive labor market.
    MSHA developed the estimates in Table VII-3 by multiplying the 
number of adverse health effects in Tables VII-1 and VII-2 by the 
monetized value of each adverse health effect.

                           Table VII-3--Estimated Value of Adverse Health Effects Prevented Over a 45-Years \1\ Work Lifetime
                                                               [Millions of 2009 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Severe        Deaths from
                                                              CWP 1+          CWP 2+            PMF          emphysema         NMRD            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                Benefits Based Upon Table VII-1 (i.e., Based on 2010 QRA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underground and Part 90 Miners..........................              66              51           2,815           2,198             653           5,783
Surface Miners..........................................              14              10             454             638             270           1,386
                                                         -----------------------------------------------------------------------------------------------
    Total...............................................              80              61           3,269           2,836             923           7,169
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Benefits Based Upon Table VII-2 (i.e. Includes Additional Provisions Extrapolated From 2010 QRA Results)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Underground and Part 90 Miners..........................              82              63           3,467           2,707             804           7,123
Surface Miners..........................................              18              12             567             797             337           1,731
    Total...............................................             100              75           4,034           3,504           1,141           8,854
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\Estimate is for a cohort of workers who begin working in mines after the proposed changes are in place.

    The monetized benefits in Table VII-3 cover a 45-year period. When 
estimating the annual benefits, it is necessary to take the timing into 
account of when the health benefits accrue. However, it is quite 
difficult to gauge the timing of reductions in chronic diseases that 
may not develop until years after initial exposure and whose 
progression may not be instantly stopped even if exposure were 
completely eliminated. MSHA did not have the data necessary to project 
the timing of CWP and related diseases. Furthermore, MSHA does not have 
data on the historical exposures of the current workforce of coal 
miners; they have already been exposed to various levels of respirable 
coal mine dust and some lung damage has invariably already been done. 
In the absence of this data and the information on the latency and 
cessation lags, MSHA estimated the monetized benefits under two 
alternative assumptions to illustrate some of the uncertainty in its 
estimates.
    <bullet> First, MSHA made the assumption that benefits begin 
immediately and that annual benefits equal lifetime benefits divided by 
45 years. This assumption is equivalent to assuming that the benefits 
begin to accrue in the first year after the provisions are put into 
effect, which MSHA admits is highly unrealistic.
    <bullet> Second, MSHA assumed that no benefits would occur for the 
first 10 years and that the annualized benefit for each of the next 35 
years would be equal to the projected benefits divided by 35 years.
    The impact of each of these assumptions is calculated using a 7 
percent discount rate, consistent with OMB's Circular A-4.

                    Table VII-4--Annualized Benefits
                       [Millions of 2009 dollars]
------------------------------------------------------------------------
                                                  7% Discount rate,  45
                                                          years
           Distribution  assumptions           -------------------------
                                                     2            4
                                                 provisions   provisions
------------------------------------------------------------------------
                      Immediate, evenly distributed
------------------------------------------------------------------------
Underground/Part 90...........................       $128.5       $158.3
Surface.......................................         30.8         38.5
                                               -------------------------
  Total.......................................        159.3        196.8
------------------------------------------------------------------------
                   10-year latency, evenly distributed
------------------------------------------------------------------------
Underground/Part 90...........................         79.9         98.5
Surface.......................................         19.2         24.0
                                               -------------------------
  Total.......................................         99.1        122.4
------------------------------------------------------------------------

    The analysis numbers presented in Table VII-4 might be viewed as 
incomplete estimates because they do not include the potential impacts 
of other provisions of the proposed rule. In addition, MSHA's estimates 
are based on a series of simplifying assumptions. The impact of these 
assumptions on the total benefits depends on the degree of the mismatch 
between the assumption and reality. Unfortunately, MSHA does not have 
the data to quantify this uncertainty. However, the impact of 
assumptions about the timing of the benefits probably has the most 
significant impact on the estimated monetized benefits.

C. Compliance Costs

    This section presents MSHA's estimates of costs that would be 
incurred by underground and surface coal operators to comply with the 
proposed coal mine dust rule. These costs are based on the assessment 
of MSHA staff of the most likely actions that would be necessary to 
comply with the proposed rule. MSHA acknowledges that in rare 
instances, after taking these projected actions, some mine operators 
may need to take additional measures to comply. In order to illustrate 
the full range of possible compliance costs, this section also includes 
a discussion of three potential situations where some operators could 
incur additional costs. All three of the following situations are in 
underground coal mines: (1) Longwall mines that have two entries; (2) 
mines that have multiple MMUs on a single split of air; and (3) mines 
operating under reduced respirable coal dust standards below 1.0 mg/
m\3\ due to the presence of quartz.
    MSHA presents two values for the engineering and work practice 
estimates and the total cost estimates for underground coal mines. The 
lower value represents MSHA's most likely estimate. The higher value 
includes additional costs for those rare instances where some operators 
after taking these actions may encounter implementation issues as they 
attempt to comply with the proposed requirements and need to take 
additional measures to comply with the proposed standard.
    MSHA estimates that the first year cost of the proposed rule would 
be approximately $72.4 to $93.2 million

[[Page 64476]]

and the annualized cost of the proposed rule would be approximately 
$40.4 to $44.5 million.
    The estimated first year costs of the proposed rule for underground 
coal mine operators would be approximately $63.6 to $84.4 million. 
Costs associated with the proposed requirement to use CPDMs ($51.5 
million) and upgrading and maintaining existing engineering controls 
and work practices ($12.6 to $33.4 million) represent the most 
significant first year costs for underground coal operators.
    The first year costs of the proposed rule for surface coal mine 
operators would be approximately $8.8 million. The proposed expansion 
of the part 90 transfer option to surface miners represents the most 
significant first year cost for surface operators.
    MSHA estimates that at a 7% discount rate, the annualized costs of 
the proposed rule for underground coal mine operators would be 
approximately $35.6 to 39.7 million. Costs associated with the proposed 
requirement to use CPDMs ($24.8 million) and upgrading and maintaining 
existing engineering controls and work practices ($5.1 to 9.1 million) 
represent the most significant annualized costs for underground coal 
operators.
    MSHA estimates that at a 7% discount rate, the annualized costs of 
the proposed rule for surface coal operators would be approximately 
$4.8 million. Costs associated with the proposed expansion of the part 
90 transfer option to surface miners ($1.9 million) represent 40 
percent of the total annualized costs for surface operators.

D. Net Benefits

    This section presents a summary of estimated benefits and costs of 
the proposed rule for informational purposes only. Under the Mine Act, 
MSHA is not required to use estimated net benefits as the basis for its 
decision. MSHA's estimates suggest, however, that net benefits are 
positive, with (1) economically significant estimated annualized 
benefits ranging from $99 to $197 million and (2) estimated annualized 
costs ranging from $40 to $44 million. The estimates of costs and 
benefits are only roughly comparable due to both limitations in the 
data and different underlying assumptions.
    The annualized dollar value of the benefits MSHA estimated range 
from (1) a low of $99 million per year for only two provisions of the 
proposed rule and an assumption of a 10 year latency period at a 
discount rate of 7% to (2) a high of $197 million per year for four of 
the provisions of the proposed rule and an assumption of no latency. 
These estimates are both incomplete and highly uncertain because they 
do not include the potential impacts of other provisions of the 
proposed rule and because MSHA does not have the data necessary to 
either (a) calculate benefits to those with historical exposures and 
pre-existing conditions or (b) estimate how long into the future it 
will be until the benefits of this proposal might begin to accrue. With 
respect to the latter, the comparison of benefits streams from assuming 
no latency to assuming a ten year latency highlights the degree of 
uncertainty. While an estimate of no latency is unrealistic, so are the 
implicit assumptions that there would be no benefits from the 
provisions that were not included in the analysis and no benefits would 
accrue to those with significant historical exposures. Thus, these 
estimates encompass a significant amount of uncertainty. MSHA requests 
comments on methods to both improve the comprehensiveness of the 
benefits estimates and better characterize timing of the stream of 
benefits.

            Table VII-5--Annualized Benefits 7% Discount Rate
                       [Millions of 2009 dollars]
------------------------------------------------------------------------
                                                     2            4
           Distribution  assumptions             provisions   provisions
------------------------------------------------------------------------
                      Immediate, evenly distributed
------------------------------------------------------------------------
Underground/Part 90...........................       $128.5       $158.3
Surface.......................................         30.8         38.5
                                               -------------------------
    Total.....................................        159.3        196.8
------------------------------------------------------------------------
                   10-year latency, evenly distributed
------------------------------------------------------------------------
Underground/Part 90...........................         79.9         98.5
Surface.......................................         19.2         24.0
    Total.....................................         99.1        122.4
------------------------------------------------------------------------

    The annualized costs MSHA estimated range from $40.4 to $44.5 
million. The lower value represents MSHA's most likely estimate. The 
higher value includes additional costs for those rare instances where 
some operators of underground mines may encounter implementation issues 
as they attempt to comply with the proposed requirements and may need 
to take additional measures to comply with the proposed standard. MSHA 
requests comments on the cost estimates and solicits information on 
data sources to better characterize the cost range.

                         Table VII-6--Annualized Costs of Proposed Rule 7% Discount Rate
                                            [Millions of 2009 dollars]
----------------------------------------------------------------------------------------------------------------
                                                       1-19           20-500           501 +          Totals
----------------------------------------------------------------------------------------------------------------
                                           Most Likely Estimated Costs
----------------------------------------------------------------------------------------------------------------
Underground Operators...........................            $1.6           $29.6           $35.6
Surface Operators...............................             1.1             3.3             0.4             4.8
    Total.......................................             2.7            32.9             4.8            40.4
----------------------------------------------------------------------------------------------------------------
                      Most Likely Estimated Costs plus Additional Costs for Rare Situations
----------------------------------------------------------------------------------------------------------------
Underground Operators...........................             1.6            32.5             5.6            39.7
Surface Operators...............................             1.1             3.3             0.4             4.8
    Total.......................................             2.7            35.8             6.0            44.5
----------------------------------------------------------------------------------------------------------------

    The range of benefits and costs estimated by MSHA do not correspond 
to the same assumptions: The benefit range corresponds to assumptions 
about latency periods while the cost range corresponds to assumptions 
about whether some mines may incur additional costs. Thus, the 
probability that the benefits will be at the high end of the benefit 
distribution is entirely independent of the probability that the costs 
will be at the high end of the cost distribution. A comparison of 
benefits and costs, therefore, encompasses a broad range of independent 
assumptions.

VIII. Feasibility

    Although MSHA has concluded that the requirements of the proposed 
rule would be both technologically and

[[Page 64477]]

economically feasible, MSHA has included a phase-in period for two of 
the major provisions to facilitate implementation of the proposal. The 
Agency's actions are discussed in more detail below.

A. Technological Feasibility

    Based on both Agency and mine operator data, MSHA believes that 
this proposed rule is technologically feasible. Data show that not only 
are mine operators keeping miners' exposures at or below the levels 
required under the existing standards, but dust exposures at most 
operations average less than 1.0 mg/m3. Based on these data, the 
majority of miners' exposures are at or below the limits in the 
proposed rule. MSHA understands that these data reflect measurements 
under the existing sampling program and that requirements under the 
proposed rule (e.g., use of single full-shift samples to determine 
noncompliance, change in the definition of normal production shift) 
would result in higher measured exposures compared to the existing 
sampling program. However, existing engineering controls including 
ventilation, sprays, and environmentally controlled cabs along with 
changes in work practices can be used to further reduce dust levels.
    To facilitate operator implementation of the requirements in the 
proposed rule related to the lower exposure limits, MSHA has included a 
24-month phase-in period to allow mine operators time to come into 
compliance. During this phase-in period, MSHA will work with the mining 
industry to help them identify, develop, and implement feasible 
engineering controls, and train miners and supervisors in new 
technology.
    The proposal would require implementation of new and improved dust 
monitoring technology, the CPDM. The proposal would require the 
operator to use the CPDM to sample certain underground occupations and 
part 90 miners. To facilitate implementation of use of CPDMs, MSHA has 
proposed a 12- and 18-month phase-in period, unless otherwise notified 
by the Secretary. MSHA believes that the proposed phase-in periods 
would allow manufacturers enough time to produce the necessary quantity 
of CPDMs and MSHA and operators enough time to train necessary 
personnel in the use and care of the device. The Agency recognizes that 
availability of the device may present logistical and other issues at 
the time the final rule becomes effective. The Agency intends to 
address the issue of availability in two ways. First, the proposal 
would require the use of the CPDM to sample (1) the Designated 
Occupation in each MMU and Part 90 miners, and (2) each Other 
Designated Occupation, within a 12-month and 18-month period, 
respectively, unless notified by the Secretary. If, during the phase-in 
periods, MSHA determines that there will be logistical and feasibility 
issues surrounding the availability of CPDMs by the time the final rule 
becomes effective, the Agency will, through publication in the Federal 
Register, notify the public of the Agency's plans. Second, assuming no 
logistical or feasibility issues concerning the availability of CPDMs, 
and depending on manufacturer projections, if CPDMs are not available 
in sufficient quantities, MSHA will accept, as good faith evidence of 
compliance with the final rule, a valid, bona fide, written purchase 
order with a firm delivery date for the CPDMs.
    The Agency has specifically included in the preamble discussion a 
request for comment on the proposed phase-in periods of the two 
proposed provisions: (1) Lowering the respirable dust limits; and (2) 
requiring use of CPDMs. Specifically, on phase-in periods related to 
CPDMs, the Agency requests that comments address the time period and 
the Agency's intent with respect to availability of CPDMs. The Agency 
asks that commenters be specific in their comments, and include 
rationale for suggested alternatives.

B. Economic Feasibility

    MSHA has traditionally used a revenue screening test--whether the 
annualized compliance costs of a regulation are less than 1 percent of 
revenues, or are negative (i.e., provide net cost savings)--to 
establish presumptively that compliance with the regulation is 
economically feasible for the mining industry. Based upon this test, 
MSHA has concluded that the requirements of the proposed rule are 
economically feasible. The annualized compliance costs of the proposed 
rule to underground coal mine operators are $35.6 to 39.7 million, 
which are approximately 0.2 percent of total annual revenue of $17 
billion ($39.7 million/$17 billion) for all underground coal mines. The 
annualized compliance cost of the proposed rule to surface coal mine 
operators is $4.8 million, which is approximately 0.03 percent of total 
annual revenue of $16.6 billion ($5.3 million/$16.6 billion) for all 
surface coal mines. Since the estimated compliance costs for both 
underground and surface coal mines are below one percent of their 
estimated annual revenue, MSHA concludes that compliance with the 
provisions of the proposed rule would be economically feasible for the 
coal industry.

IX. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the compliance cost impact of the proposed 
rule on small entities. Based on that analysis, MSHA has determined and 
certifies that the proposed rule would not have a significant economic 
impact on a substantial number of small entities in terms of compliance 
costs. Therefore, the Agency is not required to develop an initial 
regulatory flexibility analysis.
    The factual basis for this certification is presented in full in 
Chapter V of the PREA and in summary form below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration's (SBA's) definition 
for a small entity, 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. MSHA has not established an alternative definition, and is 
required to use SBA's definition. The SBA defines a small entity in the 
mining industry as an establishment with 500 or fewer employees.
    MSHA has also examined the impact of the proposed rule on mines 
with fewer than 20 employees, which MSHA and the mining community have 
traditionally referred to as ``small mines.'' These small mines differ 
from larger mines not only in the number of employees, but also in 
economies of scale in material produced, in the type and amount of 
production equipment, and in supply inventory. Therefore, their costs 
of complying with MSHA's rules and the impact of the agency's rules on 
them will also tend to be different. This analysis complies with the 
requirements of the RFA for an analysis of the impact on ``small 
entities'' while continuing MSHA's traditional definition of ``small 
mines.''

B. Factual Basis for Certification

    MSHA's analysis of the economic impact on ``small entities'' begins 
with a ``screening'' analysis. The screening compares their estimated 
costs of the proposed rule for small entities to the estimated 
revenues. When estimated costs are less than one percent of

[[Page 64478]]

estimated revenues (for the size categories considered), MSHA believes 
it is generally appropriate to conclude that there is no significant 
economic impact on a substantial number of small entities. If estimated 
costs are equal to or exceed one percent of revenues, further analysis 
may be warranted.
    Revenue for underground and surface coal mines is derived from data 
on coal prices and tonnage. The 2008 price of coal was $51.35 per short 
ton for underground coal and $22.35 per short ton for surface coal.\2\
---------------------------------------------------------------------------

    \2\ U.S. DOE, EIA, ``Annual Coal Report 2009,'' Table 28, 
October 2009.
---------------------------------------------------------------------------

    Total underground coal production in 2009 was approximately 5 
million short tons for mines with 1-19 employees. Multiplying tons by 
the 2008 price per ton, 2009 underground coal revenue was $259 million 
for mines with 1-19 employees. Total underground coal production in 
2009 was approximately 242 million short tons for mines with 1-500 
employees. Multiplying tons by the 2008 price per ton, 2009 underground 
coal revenue was $12.4 billion for mines with 1-500 employees. Total 
underground coal production in 2009 was approximately 332 million tons. 
Multiplying tons by the 2008 price per short ton, total estimated 
revenue in 2009 for underground coal production was $17.0 billion.
    The estimated annualized cost of the proposed rule for underground 
coal mines with 1-19 employees is approximately $1.6 million, or 
approximately $20,000 per mine. This is equal to approximately 0.63 
percent of annual revenues. MSHA estimates that some mines might 
experience costs somewhat higher than the average per mine in their 
size category while others might experience lower costs.
    When applying SBA's definition of a small mine, the estimated 
annualized cost of the proposed rule for underground coal mines with 1-
500 employees is approximately $34.1 million, or approximately $82,800 
per mine. This is equal to approximately 0.28 percent of annual 
revenue.
    Based on this analysis, MSHA has determined that the proposed rule 
will not have a significant economic impact in terms of compliance 
costs on a substantial number of small underground coal mines.
    Total surface coal production in 2009 was approximately 19.7 
million short tons for mines with 1-19 employees. Multiplying tons by 
the 2008 price per ton, 2009 surface coal revenue was $441 million for 
mines with 1-19 employees. Total surface coal production in 2009 was 
approximately 495 million short tons for mines with 1-500 employees. 
Multiplying tons by the 2008 price per ton, 2009 surface coal revenue 
was $11.1 billion for mines with 1-500 employees. Total surface coal 
production in 2009 was approximately 743 million short tons. 
Multiplying tons by the 2008 price per ton, total estimated revenue in 
2009 for surface coal production was $16.6 billion.
    The estimated annualized cost of the proposed rule for surface coal 
mines with 1-19 employees is approximately $1.1 million, or 
approximately $1,800 per mine. This is equal to approximately 0.25 
percent of annual revenues. MSHA estimates that some mines might 
experience costs somewhat higher than the average per mine in their 
size category while others might experience lower costs.
    When applying SBA's definition of a small mine, the estimated 
annualized cost of the proposed rule for surface coal mines with 1-500 
employees is approximately $4.4 million, or approximately $4,000 per 
mine. This is equal to approximately 0.04 percent of annual revenue.
    Based on this analysis, MSHA has determined that the proposed rule 
will not have a significant economic impact in terms of compliance 
costs on a substantial number of small surface coal mines. Since the 
annualized costs of the proposed rule are less than one percent of 
annual revenue for both small underground and surface coal mines, as 
defined by SBA, MSHA has certified that the proposed rule would not 
have a significant impact on a substantial number of small mining 
entities, as defined by SBA. However, MSHA has provided, in the PREA 
accompanying this rule, a complete analysis of the cost impact on this 
category of mines.

X. Paperwork Reduction Act of 1995

A. Summary

    This proposed rule contains changes that would affect the burden in 
existing paperwork packages with OMB Control Numbers 1219-0011, 1219-
0048, and 1219-0088. The proposed rule also contains new burden for 
collection requirements that are listed in Table X-1. This proposed 
rule would result in 120,864 burden hours and related costs of 
approximately $10.2 million in the first year the rule is in effect. In 
the second year the rule is in effect, the proposed rule would result 
in 156,103 burden hours and related costs of approximately $13.4 
million. In the third year the rule is in effect, the proposed rule 
would result in 162,267 burden hours and related costs of approximately 
$14 million.

  Table X-1--New Burden for Information Collection Requirements in the
                              Proposed Rule
------------------------------------------------------------------------
            30 CFR Part                       Proposed sections
------------------------------------------------------------------------
Part 70...........................  70.201(g), (i), (k).
                                    70.206(a), (a)(1), (a)(3), (c),
                                     (c)(1), (c)(3), (d).
                                    70.207(c)(2), (g)(2), (h), (i)(3).
                                    70.208(f)(3), (f)(4), (f)(5),
                                     (g)(3), (g)(4), (h).
                                    70.209(b)(2), (e)(2), (f), (g)(3),
                                     (g)(4).
                                    70.210(c), (f).
                                    70.211(b), (c).
                                    70.212(c).
Part 71...........................  71.201(d), (h).
                                    71.206(a), (a)(1), (a)(3), (c)(1),
                                     (c)(3), (d).
                                    71.207(c), (k)(2), (k)(4), (l),
                                     (n)(2).
                                    71.208(c), (f).
                                    71.209(b), (c).
                                    71.210(c).
                                    71.300(a), (a)(1), (a)(3).
                                    71.301(d)(1), (d)(3).
Part 72...........................  72.100(d), (e).
                                    72.700(c).
Part 75...........................  75.362(a)(2), (g)(2)(ii), (g)(3),
                                     (g)(4).
Part 90...........................  90.201(f), (i).
                                    90.206(a), (b), (d), (e).
                                    90.208(e)(2), (f), (g)(3).
                                    90.209(e)(3), (e)(4), (e)(5),
                                     (f)(3), (f)(4).
                                    90.210(c), (f).
                                    90.211(b), (c).
                                    90.212(b).
                                    90.300(a).
                                    90.301(d).
------------------------------------------------------------------------

    For a detailed summary of the burden hours and related costs by 
provision, see the Preliminary Regulatory Economic Analysis (PREA) 
accompanying this proposed rule. The PREA is posted on MSHA's Web site 
at http://www.msha.gov/rea.HTM. A paper copy of the PREA can be 
obtained from MSHA's Office of Standards, Regulations, and Variances at 
the address provided in the ADDRESSES section of this preamble.

B. Procedural Details

    The information collection package for this proposed rule has been 
submitted to OMB for review under 44 U.S.C. Sec.  3504, paragraph (h) 
of the Paperwork Reduction Act of 1995, as amended. A copy of the 
information collection package can be obtained from the Department of 
Labor by electronic mail request to Michel Smyth or by phone request to 
(202) 693-4129.
    MSHA requests comments to:
    <bullet> Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including

[[Page 64479]]

whether the information will have practical utility;
    <bullet> Evaluate the accuracy of the Agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
    <bullet> Enhance the quality, utility, and clarity of the 
information to be collected; and
    <bullet> Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Comments on the information collection requirements should be sent 
to both OMB and MSHA. Addresses for both offices can be found in the 
ADDRESSES section of this preamble. The regulated community is not 
required to respond to any collection of information unless it displays 
a current, valid, OMB control number. MSHA displays the OMB control 
numbers for the information collection requirements in its regulations 
in 30 CFR part 3.

XI. Other Regulatory Considerations

A. National Environmental Policy Act (NEPA)

    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 environment. MSHA has reviewed the proposed standard in 
accordance with NEPA requirements, the regulation of the Council on 
Environmental Quality (40 CFR part 1500), and the Department of Labor's 
NEPA procedures (29 CFR part 11). As a result of this review, MSHA has 
preliminarily determined that this proposed rule will have no 
significant environmental impact.

B. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
this proposed rule does not include any federal mandate that may result 
in increased expenditures by State, local, or tribal governments; nor 
will it increase private sector expenditures by more than $100 million 
in any one year or significantly or uniquely affect small governments. 
Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 
seq.) requires no further Agency action or analysis.

C. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (5 U.S.C. 601) requires agencies to assess the impact of 
Agency action on family well-being. MSHA has determined that the 
proposed rule will have no effect on family stability or safety, 
marital commitment, parental rights and authority, or income or poverty 
of families and children. The proposed rule impacts the coal mine 
industry. Accordingly, MSHA certifies that the proposed rule will not 
impact family well-being.

D. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    This proposed rule does not implement a policy with takings 
implications. Accordingly, under E.O. 12630, no further Agency action 
or analysis is required.

E. Executive Order 12988: Civil Justice Reform

    The proposed rule was written to provide a clear legal standard for 
affected conduct and was carefully reviewed to eliminate drafting 
errors and ambiguities, so as to minimize litigation and undue burden 
on the Federal court system. Accordingly, the proposed rule will meet 
the applicable standards provided in Sec.  3 of E.O. 12988, Civil 
Justice Reform.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The proposed rule will have no adverse impact on children. 
Accordingly, under E.O. 13045, no further Agency action or analysis is 
required.

G. Executive Order 13132: Federalism

    The proposed rule does not have ``federalism implications'' because 
it will not ``have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Accordingly, under E.O. 13132, no further Agency action 
or analysis is required.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    The proposed rule does not have ``tribal implications'' because it 
will not ``have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.'' Accordingly, under E.O. 
13175, no further Agency action or analysis is required.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to publish a statement of 
energy effects when a rule has a significant energy action that 
adversely affects energy supply, distribution or use. The proposed rule 
has been reviewed for its impact on the supply, distribution, and use 
of energy because it applies to the coal mining industry. Insofar as 
the proposed rule would result in annualized compliance costs of $35.6 
to 39.7 million for the underground coal industry relative to annual 
revenues of $17 billion in 2009 and annualized compliance costs of $4.8 
million for surface coal industry relative to annual revenue of $16.6 
billion in 2009, it is not a ``significant energy action'' because it 
is not ``likely to have a significant adverse effect on the supply, 
distribution, or use of energy * * * (including a shortfall in supply, 
price increases, and increased use of foreign supplies).'' Accordingly, 
Executive Order 13211 requires no further Agency action or analysis.

J. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    MSHA has thoroughly reviewed the proposed rule to assess and take 
appropriate account of its potential impact on small businesses, small 
governmental jurisdictions, and small organizations. MSHA has 
determined and certified that the proposed rule will not have a 
significant economic impact on a substantial number of small entities.

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XIII. Appendix A--Excessive Concentration Values

    The Excessive Concentration Value (ECV) tables ensure that 
noncompliance is cited only when there is a 95-percent level of 
confidence that the applicable respirable dust standard has actually 
been exceeded. A single-shift measurement of respirable coal mine dust 
that does not exceed the applicable ECV value does not necessarily 
imply probable compliance with the applicable dust standard (S), let 
alone compliance at a 95-percent confidence level. For example, using a 
CMDPSU, a single-shift measurement of 2.14 mg/m\3\ would not, according 
to Table 70-1, indicate noncompliance with sufficient confidence to 
warrant a citation if the applicable standard S = 2.0 mg/m\3\. This 
does not imply that the mine atmosphere was in compliance on the shift 
and at the location sampled. On the contrary, unless contradictory 
evidence was available, this measurement would indicate that the MMU 
was probably out of compliance. However, because there is a small 
chance that the measurement exceeded the respirable dust standard only 
because of measurement error, a citation would not be issued. 
Additional measurements would be necessary to verify the adequacy of 
control measures. Similarly, a single-shift measurement of 1.92 mg/m\3\ 
would not warrant issuance of a citation; but, because of possible 
measurement error, neither would it warrant concluding that the mine 
atmosphere sampled was in compliance.
    Furthermore, even if a single-shift measurement were to 
demonstrate, at a high confidence level, that the mine atmosphere was 
in compliance at the sampling location on a given shift, additional 
measurements would be required to demonstrate compliance on each shift. 
For example, if S = 2.0 mg/m\3\, then a valid measurement of 1.65 mg/
m\3\ would demonstrate compliance on the particular shift and at the 
particular location sampled. It would not, however, demonstrate 
compliance on other shifts or at other locations.

I. Derivation of Tables 70-1, 71-1, and 90-1

    To understand how the ECVs are derived and justified, one must 
distinguish between variability due to measurement error and 
variability due to actual differences in dust concentration. 
Variability observed among individual measurements obtained at 
different locations (or at different times) combines both: Dust 
concentration measurements vary partly because of measurement error and 
partly because of differences in the dust concentration being measured. 
The distinction between measurement error and variation in the true 
dust concentration can more easily be explained by first defining some 
notational abbreviations.
    Dust samples are collected in the same MMU or other mine area on a 
particular shift. Since it is necessary to distinguish between 
different samples in the same MMU, let X<INF>i</INF> represent the 8-
hour MRE dust concentration measurement obtained from the 
i<SUP>th</SUP> sample. The quantity being measured is the true, single-
shift average dust concentration at the i<SUP>th</SUP> sampling 
location and is denoted by [mu]<INF>i</INF>. Because of potential 
measurement errors, [mu]<INF>i</INF> can never be known with complete 
certainty. A ``sample,'' ``measurement,'' or ``observation'' always 
refers to an instance of X<INF>i</INF> rather than [mu]<INF>i</INF>.
    The overall measurement error associated with an individual 
measurement is the difference between the measurement (X<INF>i</INF>) 
and the quantity being measured ([mu]<INF>i</INF>). Therefore, this 
error can be represented as

[egr]<INF>i</INF> = X<INF>i</INF>-[mu]<INF>i</INF>.

    Equivalently, any measurement can be regarded as the true 
concentration in the atmosphere sampled, with a measurement error added 
on:

X<INF>i</INF> = [mu]<INF>i</INF> + [egr]<INF>i</INF>

    For two different measurements (X<INF>1</INF> and X<INF>2</INF>), 
it follows that X<INF>1</INF> may differ from X<INF>2</INF> not only 
because of the combined effects of [egr]<INF>1</INF> and 
[egr]<INF>2</INF>, but also because [mu]<INF>1</INF> differs from 
[mu]<INF>2</INF>.
    The probability distribution of X<INF>i</INF> around 
[mu]<INF>i</INF> depends only on the probability distribution of 
[egr]<INF>i</INF> and should not be confused with the statistical 
distribution of [mu]<INF>i</INF>, which arises from spatial and/or 
temporal variability in dust concentration. This variability [i.e., 
among [mu]<INF>i</INF> for different values of I] is not associated 
with inadequacies of the measurement system, but real variation in 
exposures due to the fact that contaminant generation rates vary in 
time and contaminants are heterogeneously distributed in workplace air.
    Since noncompliance determinations are made relative to individual 
sampling locations on individual shifts, derivation of the tables 
require no assumptions or inferences about the spatial or temporal 
pattern of atmospheric dust concentrations--i.e., the statistical 
distribution of [mu]<INF>i</INF>. MSHA is not evaluating dust 
concentrations averaged across the various sampling locations. 
Therefore, the degree and pattern of variability observed among 
different measurements obtained during MSHA sampling are not used in 
establishing any ECV. Instead, the ECV for each applicable dust 
standard (S) is based entirely on the distribution of measurement 
errors ([egr]<INF>i</INF>) expected for the maximum dust concentration 
in compliance with that standard--i.e., a concentration equal to S 
itself.
    If control filters are used to eliminate potential biases, then 
each [egr]<INF>i</INF> arises from a combination of four weighing 
errors (pre- and post-exposure for both the control and exposed filter 
capsule) and a continuous summation of instantaneous measurement errors 
accumulated over the course of an eight-hour sample. Since the eight-
hour period can be subdivided into an arbitrarily large number of sub-
intervals, and some fraction of [egr]<INF>i</INF> is associated with 
each sub-interval, [egr]<INF>i</INF> can be represented as comprising 
the sum of an arbitrarily large number of sub-interval

[[Page 64483]]

errors. By the Central Limit Theorem, such a summation tends to be 
normally distributed, regardless of the distribution of sub-interval 
errors. This does not depend on the distribution of [mu]<INF>i</INF>, 
which is generally represented as being lognormal.
    Any systematic error or bias in the weighing process attributable 
to the laboratory is mathematically canceled out by subtraction. Any 
bias that may be associated with day-to-day changes in laboratory 
conditions or introduced during storage and handling of the filter 
capsules is also mathematically canceled out. Elimination of the 
sources of systematic errors identified above, together with the fact 
that the concentration of respirable dust is defined by section 202(e) 
of the Mine Act to mean the average concentration of respirable dust 
measured by an approved sampler unit, indicates that the measurements 
are unbiased. This means that [egr]<INF>i</INF> is equally likely to be 
positive or negative and, on average, equal to zero.
    Therefore, each [egr]<INF>i</INF> is assumed to be normally 
distributed, with a mean value of zero and a degree of variability 
represented by its standard deviation:

[oacute]i = ii x  CVtotal.

    Since X<INF>i</INF> = [mu]<INF>i</INF> + [egr]<INF>i</INF>, it 
follows that for a given value of [mu]<INF>i</INF>, X<INF>i</INF> is 
normally distributed with expected value equal to [mu]<INF>i</INF> and 
standard deviation equal to [sigma]<INF>i</INF>. CV<INF>total</INF>, is 
the coefficient of variation in measurements corresponding to a given 
value of [mu]<INF>i</INF>. CV<INF>total</INF> relates entirely to 
variability due to measurement errors and not at all to variability in 
actual dust concentrations.
    The proposed procedure for citing noncompliance based on Tables 70-
1, 71-1, and 90-1 consists of formally testing a presumption of 
compliance at every location sampled. Compliance with the applicable 
dust standard at the ith sampling location is expressed by the relation 
[mu]<INF>i</INF> <= S. Max{[mu]<INF>i</INF>{time}  denotes the maximum 
dust concentration, among all of the sampling locations within an MMU. 
Therefore, if Max{[mu]<INF>i</INF>{time}  <= S, none of the sampling 
devices in the MMU were exposed to excessive dust concentration. Since 
the burden of proof is on MSHA to demonstrate noncompliance, the 
hypothesis being tested (called the null hypothesis, or H<INF>0</INF>,) 
is that the concentration at every location sampled is in compliance 
with the applicable dust standard. It follows that for an MMU, the null 
hypothesis (H<INF>0</INF>) is that max{[mu]<INF>i</INF>{time}  <= S. In 
other areas, where only one, full-shift measurement is made, the null 
hypothesis is simply that [mu]<INF>i</INF> <= S.
    The test consists of evaluating the likelihood of measurements 
under the assumption that H<INF>0</INF> is true. Since X<INF>i</INF> = 
[mu]<INF>i</INF> + [egr]<INF>i</INF>, X<INF>i</INF> (or 
max{X<INF>i</INF>{time}  in the case of an MMU) can exceed S even under 
that assumption. However, based on the normal distribution of 
measurement errors, it is possible to calculate the probability that a 
measurement error would be large enough to account for the 
measurement's exceeding the standard. The greater the amount by which 
X<INF>i</INF> exceeds S, the less likely it is that this would be due 
to measurement error alone. If, under H<INF>0</INF>, this probability 
is less than five percent, then H<INF>0</INF> can be rejected at a 95-
percent confidence level and a citation is warranted. For an MMU, 
rejecting H<INF>0</INF> (and therefore issuing a citation) is 
equivalent to determining that [mu]<INF>i</INF> > S for at least one 
value of I.
    Each ECV listed was calculated to ensure that citations will be 
issued at a confidence level of at least 95 percent. As described in 
MSHA's February 1994 notice, Coal Mine Respirable Dust Standard 
Noncompliance Determinations (59 FR 8356, February 18, 1994) and 
explained further by Kogut (Kogut, J, 1994) the tabled ECV 
corresponding to each S was calculated on the assumption that, at each 
sampling location:
[GRAPHIC] [TIFF OMITTED] TP19OC10.003

    The July 2000 MSHA and NIOSH proposed joint finding, 
``Determination of Concentration of Respirable Coal Mine Dust'' (65 FR 
42068, July 7, 2000), determined that for valid measurements made with 
an approved sampler unit, CV<INF>total</INF> is in fact less than 
CV<INF>ECV</INF> at all dust concentrations ([mu]<INF>i</INF>).
    The situation in which measurement error is most likely to cause an 
erroneous noncompliance determination is the hypothetical case of 
[mu]<INF>i</INF> = S for either a single-shift sample measurement or 
for all of the measurements made in the same MMU. In that borderline 
situation--i.e., the worst case consistent with H<INF>0</INF>--the 
standard deviation is identical for all measurement errors. Therefore, 
the value of [sigma] used in constructing the ECV tables is the product 
of S and CV<INF>ECV</INF> evaluated for a dust concentration equal to 
S:
[GRAPHIC] [TIFF OMITTED] TP19OC10.004

    Assuming a normal distribution of measurement errors as explained 
above, it follows that the probability a single measurement would equal 
or exceed the critical value

c = S + 1.64[sdot][sigma]

is five percent under H<INF>0</INF> when CV<INF>total</INF> = 
CV<INF>ECV</INF>. The tabled ECV corresponding to S is derived by 
raising the critical value c up to the next exact multiple of 0.01 mg/
m\3\.
    For example, at a dust concentration ([mu]<INF>i</INF>) just 
meeting the applicable dust standard of S = 2 mg/m\3\, CV<INF>ECV</INF> 
is 9.95 percent. Therefore, the calculated value of c is 2.326 and the 
ECV is 2.33 mg/m\3\. Any valid single-shift measurement at or above 
this ECV is unlikely to be this large simply because of measurement 
error. Therefore, any such measurement should result in a noncompliance 
citation.
    The probability that a measurement exceeds the ECV is even smaller 
if [mu]<INF>i</INF> < S for any I. Furthermore, to the extent that 
CV<INF>total</INF> is actually less than CV<INF>ECV</INF>, [sigma] is 
actually less than S[sdot]CV<INF>ECV</INF>. This results in a lower 
probability that the critical value would be exceeded under the null 
hypothesis. Consequently, if any single-shift measurement equals or 
exceeds c, then H<INF>0</INF> can be rejected at confidence level of at 
least 95-percent. Since rejection of H<INF>0</INF> implies that 
[mu]<INF>i</INF> > S for at least one value of I, this should result in 
a noncompliance citation.
    It should be noted that when each of several measurements is 
separately compared to the ECV table, the probability that at least one 
[egr]<INF>i</INF> will be large enough to force X<INF>i</INF> >= ECV 
when [mu]<INF>i</INF> <= S is greater than the probability when only a 
single comparison is made. For example (still assuming S = 2 mg/m\3\), 
if CV<INF>total</INF> is actually 6.6%, then the standard deviation of 
[egr]<INF>i</INF> is 6.6% of 2.0 mg/m\3\, or 0.132 mg/m\3\, when 
[mu]<INF>i</INF> = S. Using properties of the normal

[[Page 64484]]

distribution, the probability that any single measurement would exceed 
the ECV in this borderline situation is calculated to be 0.0062. 
However, the probability that at least one of five such measurements 
results in a citation is 1-(0.9938)\5\ = 3.1 percent. Therefore, the 
confidence level at which a citation can be issued, based on the 
maximum of five measurements made in the same MMU on a given shift, is 
97%.
    The constant 1.64 used in calculating the ECV is a 1-tailed 95-
percent confidence coefficient and is derived from the standard normal 
probability distribution. Since the purpose of the ECV tables is to 
provide criteria for determining that the true dust concentration 
strictly exceeds the applicable dust standard and such a determination 
can occur only when a single-shift measurement is sufficiently high, 
there is exactly zero probability of erroneously citing noncompliance 
when a measurement falls below the lower confidence limit. 
Consequently, the total probability of erroneously citing noncompliance 
equals the probability that a standard normal random variable exceeds 
1.64, which is 5 percent.

II. Derivation of Tables 70-2, 71-2, and 90-2

    The same statistical theory underlying the derivation of the ECVs 
in Tables 70-1, 71-1, and 90-1 applies in constructing the values 
listed in Tables 70-2, 71-2, and 90-2. This discussion explains the 
derivation of the listed ECVs in Tables 70-2, 71-2, and 90-2.
    The initial step in the derivation process involves addressing 
uncertainty due to potential measurement errors. Such errors reflect 
the imprecision inherent in any measurement system and cause individual 
concentration measurements to deviate above or below the true 
concentration value in the mine atmosphere sampled by a random but 
statistically quantifiable amount. Measurement imprecision is 
quantified by the total coefficient of variation for overall 
measurement error, or CV<INF>total</INF>, also sometimes called 
relative standard deviation (RSD). CV<INF>total</INF> is defined as the 
ratio of the standard deviation of measurement errors to the true value 
of whatever quantity is being measured. It is normally expressed either 
as a fraction (e.g., 0.1) or as a percent (e.g., 10.5 percent) of the 
true value. MSHA will address uncertainty due to measurement error by 
applying a margin of error before issuing a citation for exceeding the 
applicable standard. This margin of error is designed to ensure that a 
violation of the applicable standard is cited only when a single, full-
shift 8-hour MRE equivalent concentration measurement demonstrates 
noncompliance with at least 95-percent confidence. To achieve this 95-
percent confidence level, the applicable margin of error must be 
constructed by applying an error factor appropriate for the measurement 
being considered. The error factor is calculated as:

EF = 1 + (1.645 x CV<INF>total</INF>)

    CV<INF>total</INF> corresponding to the CPDM has been estimated as 
7.8 percent based on in-mine studies and is documented by Volkwein et 
al. (2006). It relates entirely to variability due to measurement 
errors and not at all to variability in actual dust concentrations. 
Therefore, when CV<INF>total</INF> = 7.8 percent, the calculated value 
of EF is 1.128. If, for example, the sampled occupation is on a 1.5-mg/
m\3\ standard, the operator would be in violation of the applicable 
standard if a single, full-shift 8-hour MRE equivalent concentration 
measurement times the EF exceeds 1.692 mg/m\3\ [1.5 x 1.128]. The ECV 
corresponding to each applicable standard is derived by simply raising 
the calculated ECV to the next exact multiple of 0.01 mg/m\3\. 
Therefore, the ECV corresponding to the applicable standard of 1.5 mg/
m\3\ is 1.70 mg/m\3\. Since it is unlikely that any valid end-of shift 
8-hour MRE equivalent concentration is this large simply because of 
measurement error, such a measurement would result in a citation for 
violation of the applicable standard. The same procedures were followed 
in calculating ECVs corresponding to other applicable standards.

List of Subjects

30 CFR Part 70

    Coal, Mine safety and health, Reporting and recordkeeping 
requirements, Respirable dust, Underground coal mines.

30 CFR Part 71

    Coal, Mine safety and health, Reporting and recordkeeping 
requirements, Surface coal mines, Underground coal mines.

30 CFR Part 72

    Coal, Health standards, Mine safety and health, Training, 
Underground mines.

30 CFR Part 75

    Coal, Mine safety and health, Reporting and recordkeeping 
requirements, Underground coal mines, Ventilation.

30 CFR Part 90

    Coal, Mine safety and health.

    Dated: October 1, 2010.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.
    For the reasons discussed in the preamble, the Mine Safety and 
Health Administration is proposing to amend 30 CFR parts 70, 71, 72, 75 
and 90 as follows:

PART 70--MANDATORY HEALTH STANDARDS FOR UNDERGROUND COAL MINES

    1. The authority citation for part 70 is revised to read as 
follows:

    Authority:  30 U.S.C. 811, 813(h), and 957.

    2. Section 70.1 is revised to read as follows:


Sec.  70.1  Scope.

    This part 70 sets forth mandatory health standards for each 
underground coal mine subject to the Federal Mine Safety and Health Act 
of 1977, as amended.
    3. Amend Sec.  70.2 by:
    a. Removing the alphabetical paragraph designations and arranging 
existing definitions in alphabetical order;
    b. Adding definitions for ``Approved sampling device,'' ``Coal mine 
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust 
monitor (CPDM),'' ``Equivalent concentration,'' ``Other designated 
occupation (ODO),'' ``Representative samples,'' ``Weekly accumulated 
exposure (WAE),'' and ``Weekly permissible accumulated exposure 
(WPAE);'' and
    c. Revising definitions for ``Act,'' ``Designated area (DA),'' 
``Mechanized mining unit (MMU),'' ``Normal production shift,'' and 
``Quartz.''
    The additions and revisions are revised to read as follows:


Sec.  70.2  Definitions.

    Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
    Approved sampling device. A sampling device approved by the 
Secretary and Secretary of Health and Human Services (HHS) under part 
74 of this title.
* * * * *
    Coal mine dust personal sampler unit (CMDPSU). A personal sampling 
device approved under part 74, subpart B, of this title.
    Continuous personal dust monitor (CPDM). A personal sampling device 
approved under part 74, subpart C of this title.

[[Page 64485]]

    Designated area (DA). An area of a mine identified by the operator 
in the mine ventilation plan, approved by the District Manager, and 
identified by a four-digit identification number assigned by MSHA.
* * * * *
    Equivalent concentration. The concentration of respirable coal mine 
dust expressed in milligrams per cubic meter of air (mg/m\3\), 
determined by dividing the weight of dust in milligrams collected on 
the filter of an approved sampling device by the volume of air in cubic 
meters passing through the collection filter (sampling time in minutes 
times the sampling airflow rate in cubic meters per minute), and then 
converting this concentration to an equivalent 8-hour exposure as 
measured by the Mining Research Establishment (MRE) instrument. When 
the approved sampling device is:
    (1) The CMDPSU, the equivalent concentration is determined by first 
multiplying the concentration of respirable coal mine dust by the MRE 
conversion factor prescribed by the Secretary and then normalizing this 
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling 
time in minutes if longer than 8 hours.
    (2) The CPDM, the device shall be programmed to directly report the 
end-of-shift equivalent concentration as an MRE 8-hour equivalent 
concentration.
    (3) Either the CMDPSU or CPDM and the sampled work shift is less 
than 8 hours, the value of t used for normalizing the MRE-equivalent 
concentration to an 8-hour exposure measurement shall be 480 minutes.
    Mechanized mining unit (MMU). A unit of mining equipment including 
hand loading equipment used for the production of material; or a 
specialized unit which uses mining equipment other than specified in 
Sec.  70.207(b). Each MMU is assigned a four-digit identification 
number by MSHA, which is retained by the MMU. However, when:
    (1) Two sets of mining equipment are used in a series of working 
places within the same working section and only one production crew is 
employed, the two sets of equipment are identified as a single MMU.
    (2) Two or more sets of mining equipment are used in a series of 
working places within the same working section and two or more 
production crews are employed, each set of mining equipment shall be 
identified as a separate MMU.
* * * * *
    Normal production shift. A production shift during which the amount 
of material produced by an MMU is at least equal to the average 
production recorded by the operator for the most recent 30 production 
shifts or for all production shifts if fewer than 30 shifts of 
production data are available.
    Other designated occupation (ODO). Other occupation on a mechanized 
mining unit that is designated for sampling in addition to the 
Designated Occupation. Each ODO will be identified by a four-digit 
identification number assigned by MSHA.
* * * * *
    Quartz. Crystalline silicon dioxide (SiO<INF>2</INF>) as measured 
by:
    (1) MSHA Analytical Method P-7: Infrared Determination of Quartz in 
Respirable Coal Mine Dust; or
    (2) Any method approved by MSHA as providing a measurement of 
quartz equivalent to that obtained by MSHA Analytical Method P-7.
* * * * *
    Representative samples. Respirable dust samples that reflect 
typical dust concentration levels and normal mining activity in the 
active workings during which the amount of material produced is 
equivalent to a normal production shift.
* * * * *
    Weekly accumulated exposure (WAE). The total amount of exposure to 
respirable coal mine dust, expressed in mg-hr/m\3\, accumulated by an 
occupation during a work week (Sunday thru Saturday), determined by 
multiplying the daily individual end-of-shift equivalent concentration 
measurements by 8 hours, which yields the total amount of exposure 
accumulated over the course of the particular shift sampled, and then 
adding together all of the daily accumulated exposures.
    Weekly permissible accumulated exposure (WPAE). The maximum amount 
of accumulated exposure to respirable coal mine dust, expressed in mg-
hr/m\3\, permitted to be received by an occupation during a 40-hour 
work week (Sunday thru Saturday), determined by multiplying the 
applicable standard by 40 hours.
    4. Subpart B is revised to read as follows:

Subpart B--Dust Standards

Sec.
70.100 Respirable dust standards.
70.101 Respirable dust standard when quartz is present.


Sec.  70.100  Respirable dust standards.

    (a) 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 each mine is 
exposed, as measured with an approved sampling device and in terms of 
an equivalent concentration, at or below:
    (1) 2.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
    (2) 1.7 mg/m\3\ as of [date 6 months after the effective date of 
the final rule].
    (3) 1.5 mg/m\3\ as of [date 12 months after the effective date of 
the final rule].
    (4) 1.0 mg/m\3\ as of [date 24 months after the effective date of 
the final rule].
    (b) Each operator shall continuously maintain the average 
concentration of respirable dust within 200 feet outby the working 
faces of each section in the intake airways as measured with an 
approved sampling device and in terms of an equivalent concentration at 
or below:
    (1) 1.0 mg/m\3\.
    (2) 0.5 mg/m\3\ as of [date 6 months after the effective date of 
the final rule].


Sec.  70.101  Respirable dust standard when quartz is present.

    (a) Each operator shall continuously maintain the average 
concentration of respirable quartz dust in the mine atmosphere during 
each shift to which each miner in the active workings of each mine is 
exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or 
[micro]g/m\3\) as measured with an approved sampling device and in 
terms of an equivalent concentration.
    (b) When the concentration of respirable quartz dust exceeds 100 
[micro]g/m\3\, the 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 is exposed as measured 
with an approved sampling device and in terms of an equivalent 
concentration at or below the applicable dust standard. The applicable 
dust standard is computed by dividing the percent of quartz into the 
number 10. The application of this formula shall not result in an 
applicable dust standard that exceeds the standard established by Sec.  
70.100(a).

    Example: Assume the sampled MMU or DA is on a 1.0-mg/m\3\ dust 
standard. Suppose a valid respirable dust sample with an equivalent 
concentration of 1.0 mg/m\3\ contains 12.3% of quartz dust, which 
corresponds to a quartz concentration of 123 [micro]g/m\3\. 
Therefore, the average concentration of respirable dust in the mine 
atmosphere associated with that MMU or DA shall be maintained on 
each shift at or below 0.8 mg/m\3\ (10/12.3% = 0.8 mg/m\3\).

    5. Subpart C is revised to read as follows:

[[Page 64486]]

Subpart C-Sampling Procedures

Sec.
70.201 Sampling; general and technical requirements.
70.202 Certified person; sampling.
70.203 Certified person; maintenance and calibration.
70.204 Approved sampling devices; maintenance and calibration.
70.205 Approved sampling devices; operation; air flowrate.
70.206 CPDM Performance Plan.
70.207 Sampling of mechanized mining units; requirements when using 
a CMDPSU.
70.208 Sampling of mechanized mining units; requirements when using 
a CPDM.
70.209 Sampling of designated areas.
70.210 Respirable dust samples; transmission by operator.
70.211 Respirable dust samples; report to operator; posting.
70.212 Status change reports.


Sec.  70.201  Sampling; general and technical requirements.

    (a) Approved coal mine dust personal sampler units (CMDPSU) shall 
be used to take samples of the concentration of respirable coal mine 
dust for the designated occupation (DO) in each MMU as required by this 
part until replaced by continuous personal dust monitors (CPDM). After 
[date 12 months after the effective date of the final rule], only 
approved CPDMs shall be used to sample DOs in each MMU unless notified 
by the Secretary.
    (b) Approved CMDPSUs shall be used to take samples of the 
concentration of respirable coal mine dust in each designated area (DA) 
associated with an MMU as required by this part until replaced by 
CPDMs. After [date 18 months after the effective date of the final 
rule] or upon implementation of the use of CPDMs, DAs associated with 
an MMU will be redesignated as Other Designated Occupations (ODO).
    (c) After [date 18 months after the effective date of the final 
rule], only approved CPDMs shall be used to take samples of the 
concentration of respirable coal mine dust for each ODO as required by 
this part unless notified by the Secretary.
    (d) Approved CMDPSUs or CPDMs shall be used to take samples of the 
concentration of respirable coal mine dust in each DA that is not 
associated with an MMU as required by this part.
    (e) Sampling devices shall be worn or carried directly to and from 
the MMU or DA to be sampled and shall be operated portal-to-portal. 
Sampling devices shall remain with the occupation or DA being sampled 
and shall be operational during the entire shift, which includes the 
total time spent in the MMU or DA and while travelling to and from the 
mining section or area being sampled. If the work shift to be sampled 
is longer than 12 hours and the sampling device is:
    (1) A CMDPSU, the operator shall switch-out the unit's sampling 
pump prior to the 13th-hour of operation.
    (2) A CPDM, the operator shall switch-out the CPDM with a fully 
charged device prior to the 13th-hour of operation.
    (f) If using a CMDPSU, one control filter shall be used for each 
shift of sampling. Each control filter shall:
    (1) Have the same pre-weight date (noted on the dust data card) as 
the filters used for sampling;
    (2) Remain plugged at all times;
    (3) Be exposed to the same time, temperature, and handling 
conditions as the filters used for sampling;
    (4) Be kept with the exposed samples after sampling.
    (g) Records showing the length of each production shift for each 
MMU shall be made and retained for at least six months and shall be 
made available for inspection by authorized representatives of the 
Secretary and the representative of miners, and submitted to the 
District Manager when requested in writing.
    (h) Upon request from the District Manager, the operator shall 
submit the date and time any respirable dust sampling required by this 
part will begin. This information shall be submitted at least 48 hours 
prior to scheduled sampling.
    (i) To establish a normal production shift, the operator shall 
record the amount of run-of-mine material produced by each MMU during 
each shift to determine the average production for the most recent 30 
production shifts or for all production shifts if fewer than 30 shifts 
of production data are available. Production records shall be retained 
for at least six months and shall be made available for inspection by 
authorized representatives of the Secretary and the representative of 
miners.
    (j) Operators using CPDMs shall provide training to all miners 
expected to wear a CPDM. The training shall be completed prior to a 
miner being required to wear a CPDM and then every 12 months 
thereafter. The training shall include:
    (1) Explaining the basic features and capabilities of the CPDM;
    (2) How to set-up the CPDM for compliance sampling.
    (3) A discussion of the various types of information displayed by 
the CPDM and how to access that information;
    (4) How to start and stop a short-term sample run during compliance 
sampling; and
    (5) The importance of continuously monitoring dust concentrations 
and properly wearing the CPDM.
    (k) An operator shall keep a record of the CPDM training at the 
mine site for two years after completion of the training. An operator 
may keep the record elsewhere if the record is immediately accessible 
from the mine site by electronic transmission. Upon request from an 
authorized representative of the Secretary, Secretary of HHS, or 
representative of miners, the operator shall promptly provide access to 
any such training records.


Sec.  70.202  Certified person; sampling.

    (a) The respirable dust sampling required by this part shall be 
performed by a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in sampling procedures. Persons not certified in sampling, 
and those certified only in maintenance and calibration procedures in 
accordance with Sec.  70.203(b), are not permitted to collect 
respirable dust samples required by this part or handle approved 
sampling devices when being used in sampling.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in sampling procedures every three 
years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required sampling 
procedures.


Sec.  70.203  Certified person; maintenance and calibration.

    (a) Approved sampling devices shall be maintained and calibrated by 
a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in maintenance and calibration procedures for approved 
sampling devices. If using a CMDPSU, necessary maintenance of the 
sampling head assembly can be performed by persons certified in 
sampling or in maintenance and calibration.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in maintenance and calibration 
procedures every three years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required maintenance 
and calibration procedures.

[[Page 64487]]

Sec.  70.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 of this title and calibrated in accordance with MSHA 
Informational Report IR 1240 (1996) ``Calibration and Maintenance 
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance 
with the manufacturer's recommendations if using a CPDM. Only persons 
certified in maintenance and calibration can perform maintenance work 
on the pump unit of approved sampling devices.
    (b) Sampling devices shall be calibrated at the flowrate of 2.0 
liters of air per minute (L/min), or at a different flowrate 
recommended by the manufacturer or prescribed by the Secretary or 
Secretary of HHS for the particular device, before they are put into 
service and, thereafter, at time intervals recommended by the 
manufacturer or prescribed by the Secretary or Secretary of HHS.
    (c) If using a CMDPSU, sampling devices shall be examined and 
tested by a person certified in sampling or in maintenance and 
calibration within 3 hours before the start of the shift on which the 
approved sampling devices will be used to collect respirable dust 
samples. This is to assure that the sampling devices are clean and in 
proper working condition. This examination and testing shall include 
the following:
    (1) Examination of all components of the cyclone assembly to assure 
that they are clean and free of dust and dirt. This includes examining 
the interior of the connector barrel (located between the cassette 
assembly and vortex finder), vortex finder, cyclone body and grit pot;
    (2) Examination of the inner surface of the cyclone body to assure 
that it is free of scoring or scratch marks on the inner surface of the 
cyclone where the air flow is directed by the vortex finder into the 
cyclone body;
    (3) Examination of the external hose connecting the pump unit to 
the sampling head assembly to assure that it is clean and free of 
leaks; and
    (4) Examination of the clamping and positioning of the cyclone 
body, vortex finder and cassette to assure that they are rigid, in 
alignment, firmly in contact and airtight.
    (5) Testing the voltage of each battery while under actual load to 
assure the battery is fully charged. This requires that a fully 
assembled and examined sampling head assembly be attached to the pump 
inlet with the pump unit running when the voltage check is made. The 
voltage for nickel cadmium cell batteries shall not be lower than the 
product of the number of cells in the battery multiplied by 1.25. The 
voltage for other than nickel cadmium cell batteries shall not be lower 
than the product of the number of cells in the battery multiplied by 
the manufacturer's nominal voltage per cell value.
    (d) If using a CPDM, the certified person in sampling or in 
maintenance and calibration shall follow the examination, testing and 
set-up procedures contained in the approved CPDM Performance Plan.
    (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, 1100 
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each 
MSHA Coal Mine Safety and Health district office. Copies may be 
inspected at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.


Sec.  70.205  Approved sampling devices; operation; air flowrate.

    (a) Approved sampling devices shall be operated at the flowrate of 
2.0 L/min, or at a different flowrate recommended by the manufacturer 
or prescribed by the Secretary or Secretary of HHS.
    (b) If using a CMDPSU, each approved sampling device shall be 
examined each shift by a person certified in sampling during:
    (1) The second hour after being put into operation to assure it is 
in the proper location, operating properly and at the proper flowrate. 
If the proper flowrate is not maintained, necessary adjustments shall 
be made by the certified person. This examination is not required if 
the sampling device is being operated in a breast or chamber of an 
anthracite coal mine where the full box mining method is used.
    (2) The last hour of operation to assure that the sampling device 
is operating properly and at the proper flowrate. If the proper 
flowrate is not maintained, the respirable dust sample shall be 
transmitted to MSHA with a notation by the certified person on the back 
side of the dust data card stating that the proper flowrate was not 
maintained. Other events occurring during the collection of respirable 
dust samples that may affect the validity of the sample, such as 
dropping of the sampling head assembly onto the mine floor, shall be 
noted on the back side of the dust data card.
    (c) If using a CPDM, the certified person shall examine the 
sampling device during the shift in accordance with the procedures 
contained in the approved CPDM Performance Plan.


Sec.  70.206  CPDM Performance Plan.

    (a) If using a CPDM, the operator shall have an approved CPDM 
Performance Plan to ensure that no miner working on an MMU shall be 
exposed to concentrations of respirable coal mine dust in excess of the 
applicable standard. The operator shall develop a proposed CPDM 
Performance Plan and submit it to the District Manager. The proposed 
CPDM Performance Plan shall not be implemented until approved by the 
District Manager.
    (1) The mine operator shall notify the representative of miners at 
least 5 days prior to submission of a proposed CPDM Performance Plan 
and any proposed revision to a CPDM Performance Plan. If requested, the 
mine operator shall provide a copy to the representative of miners at 
the time of notification;
    (2) A copy of the proposed CPDM Performance Plan, and a copy of any 
proposed revision, submitted for approval shall be made available for 
inspection by the representative of miners; and
    (3) A copy of the proposed CPDM Performance Plan, and a copy of any 
proposed revision, submitted for approval shall be posted on the mine 
bulletin board at the time of submittal. The proposed plan or proposed 
revision shall remain posted until it is approved, withdrawn, or 
denied.
    (4) Following receipt of the proposed plan or proposed revision, 
the representative of miners may submit timely comments to the District 
Manager, in writing, for consideration during the review process. A 
copy of these comments shall also be provided to the operator by the 
District Manager upon request.
    (b) The approved CPDM Performance Plan shall include the names or 
titles of the responsible mine officials who are designated by the 
operator and the following information:
    (1) The occupations in each MMU that will be sampled using a CPDM. 
Each sampled occupation shall be assigned a 9-digit identification 
number as follows:
    (i) The first four digits identify the MMU being sampled;
    (ii) The next three digits identify the sampled occupation;

[[Page 64488]]

    (iii) The eighth digit identifies the particular shift being 
sampled (e.g., 1st, 2nd or 3rd); and
    (iv) The final digit identifies the particular work crew that the 
wearer of the sampling device is assigned to at mines employing 
multiple crews to work the same shift on different days during the same 
calendar week (e.g., 1st crew, 2nd crew, etc.).
    (2) The pre-operational examinations, testing and set-up procedures 
to verify the operational readiness of the sampling device before each 
sampling shift;
    (3) Procedures that address downloading of end-of-shift sampling 
information, and validation, certification and posting of reported 
results;
    (4) Procedures for weekly transmittals of certified sampling data 
files electronically to MSHA;
    (5) The routine daily and other required scheduled maintenance 
procedures;
    (6) Procedures or methods for verifying the calibration of each 
CPDM; and
    (7) The frequency with which dust concentrations being reported by 
the CPDM shall be monitored by the designated mine official during the 
shift;
    (8) The types of actions permitted to be taken during the shift to 
ensure the environment of the occupation being sampled remains in 
compliance at the end of the shift.
    (9) Any other information required by the District Manager.
    (c) The approved CPDM Performance Plan and any revisions shall be:
    (1) Provided upon request to the representative of miners by the 
operator following notification of approval;
    (2) Made available for inspection by the representative of miners; 
and
    (3) Posted on the mine bulletin board within 1 working day 
following notification of approval, and shall remain posted for the 
period that the plan is in effect.
    (d) The District Manager may require an approved CPDM Performance 
Plan to be revised if the District Manager determines that the plan is 
inadequate to protect miners from exposure to concentrations of 
respirable dust in excess of the applicable standard.


Sec.  70.207  Sampling of mechanized mining units; requirements when 
using a CMDPSU.

    (a) Each operator shall take five valid representative samples from 
the designated occupation (DO) in each MMU during each bimonthly 
period. DO samples shall be collected on consecutive normal production 
shifts or normal production shifts each of which is worked on 
consecutive days. The bimonthly periods are:

January 1-February 28 (29)
March 1-April 30
May 1-June 30
July 1-August 31
September 1-October 31
November 1-December 31.

    (b) Unless otherwise directed by the District Manager, the DO 
samples shall be taken by placing the approved sampling device as 
specified in paragraphs (b)(1) through (b)(10) of this section.
    (1) Conventional section using cutting machine. On the cutting 
machine operator or on the cutting machine within 36 inches inby the 
normal working position;
    (2) Conventional section shooting off the solid. On the loading 
machine operator or on the loading machine within 36 inches inby the 
normal working position;
    (3) Continuous mining section other than auger-type. On the 
continuous mining machine operator or on the continuous mining machine 
within 36 inches inby the normal working position;
    (4) Continuous mining machine; auger-type. On the jacksetter who 
works nearest the working face on the return air side of the continuous 
mining machine or at a location that represents the maximum 
concentration of dust to which the miner is exposed;
    (5) Scoop section using cutting machine. On the cutting machine 
operator or on the cutting machine within 36 inches inby the normal 
working position;
    (6) Scoop section, shooting off the solid. On the coal drill 
operator or on the coal drill within 36 inches inby the normal working 
position;
    (7) Longwall section. On the miner who works nearest the return air 
side of the longwall working face or along the working face on the 
return side within 48 inches of the corner;
    (8) Hand loading section with a cutting machine. On the cutting 
machine operator or on the cutting machine within 36 inches inby the 
normal working position;
    (9) Hand loading section shooting off the solid. On the hand loader 
exposed to the greatest dust concentration or at a location that 
represents the maximum concentration of dust to which the miner is 
exposed;
    (10) Anthracite mine sections. On the hand loader exposed to the 
greatest dust concentration or at a location that represents the 
maximum concentration of dust to which the miner is exposed.
    (c) When the respirable dust standard is changed in accordance with 
Sec.  70.101, the new applicable standard shall become effective on the 
first production shift following receipt of the notification of such 
change from MSHA.
    (1) If all samples from the most recent bimonthly sampling period 
do not exceed the new applicable standard, respirable dust sampling of 
the MMU shall begin on the first production shift during the next 
bimonthly period following receipt of such change from MSHA.
    (2) If any sample from the most recent bimonthly sampling period 
exceeds the new applicable standard, the operator shall make necessary 
adjustments to the dust control parameters in the mine ventilation plan 
within three days and then collect samples from the affected MMU on 
consecutive normal production shifts until five valid representative 
samples are collected. The samples collected will be treated as normal 
bimonthly samples under this part.
    (d) If a normal production shift is not achieved, the DO sample for 
that shift may be voided by MSHA. However, any sample, regardless of 
production, that exceeds the applicable standard by at least 0.1 mg/
m\3\ shall be used to determine the average concentration for that MMU.
    (e) No valid single-shift equivalent concentration shall meet or 
exceed the excessive concentration value (ECV) that corresponds to the 
applicable standard in Table 70-1.
    (f) Upon issuance of a citation for a violation of the applicable 
standard involving a DO in an MMU, paragraphs (a) and (c)(2) of this 
section shall not apply to that MMU until the violation is abated in 
accordance with paragraph (g) of this section.
    (g) During the time for abatement fixed in a citation for violation 
of the applicable standard, the operator shall take the following 
actions:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Submit to the District Manager for approval proposed corrective 
actions to lower the concentration of respirable dust to within the 
applicable standard; and
    (3) Upon approval by the District Manager, implement the proposed 
corrective actions and then sample the environment of the affected 
occupation in the MMU in the citation on each normal production shift 
until five valid representative samples are taken.
    (h) A citation for violation of the applicable standard shall be 
terminated

[[Page 64489]]

by MSHA when the equivalent concentration of each of the five valid 
operator abatement samples is at or below the applicable standard, the 
operator has submitted to the District Manager revised dust control 
parameters as part of the mine ventilation plan applicable to the MMU 
in the citation, and such changes have been approved by the District 
Manager. The revised parameters shall reflect the control measures used 
to abate the violation.
    (i) When the equivalent concentration of one or more valid samples 
collected by the operator under this section exceeds the applicable 
standard but is less than the applicable ECV in Table 70-1, the 
operator shall:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Take corrective action to lower the concentration of respirable 
dust to or below the applicable standard.
    (3) Record the corrective actions taken in the same manner as the 
records for hazardous conditions required by Sec.  75.363 of this 
chapter.

 Table 70-1--Excessive Concentration Values (ECV) Based on Single-Shift
              CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                                ECV (mg/
                Applicable standard (mg/m\3\)                    m\3\)
------------------------------------------------------------------------
2.0..........................................................       2.33
1.9..........................................................       2.22
1.8..........................................................       2.12
1.7..........................................................       2.01
1.6..........................................................       1.90
1.5..........................................................       1.79
1.4..........................................................       1.69
1.3..........................................................       1.59
1.2..........................................................       1.47
1.1..........................................................       1.37
1.0..........................................................       1.26
0.9..........................................................       1.16
0.8..........................................................       1.05
0.7..........................................................       0.95
0.6..........................................................       0.85
0.5..........................................................       0.74
0.4..........................................................       0.65
0.3..........................................................       0.54
0.2..........................................................       0.44
------------------------------------------------------------------------

Sec.  70.208  Sampling of mechanized mining units; requirements when 
using a CPDM.

    (a) Each operator shall sample:
    (1) The designated occupation (DO) in each MMU during each 
production shift, seven days per week (Sunday through Saturday), 52 
weeks per year; and
    (2) The Other Designated Occupations (ODO) specified in paragraphs 
(b)(1) through (b)(10) of this section in each MMU during each 
production shift for 14 consecutive days during each quarterly period. 
The quarterly periods are:

January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31.

    (b) Unless otherwise directed by the District Manager, the CPDM 
shall be worn by the miner assigned to perform the duties of the DO and 
ODOs specified in paragraphs (b)(1) through (b)(10) or by the District 
Manager for each type of MMU.
    (1) Conventional section using cutting machine. DO--The cutting 
machine operator;
    (2) Conventional section shooting off the solid. DO--The loading 
machine operator;
    (3) Continuous mining section other than auger-type. DO--The 
continuous mining machine operator or mobile bridge operator when using 
continuous haulage; ODOs--The roof bolter operator who works nearest 
the working face on the return air side of the continuous mining 
machine; and the shuttle car operators on MMUs using blowing face 
ventilation;
    (4) Continuous mining section using auger-type machine. DO--The 
jacksetter who works nearest the working face on the return air side of 
the continuous mining machine;
    (5) Scoop section using cutting machine. DO--The cutting machine 
operator;
    (6) Scoop section, shooting off the solid. DO--The coal drill 
operator;
    (7) Longwall section. DO--The longwall operator working on the 
tailgate side of the longwall mining machine; ODOs--The jacksetter who 
works nearest the return air side of the longwall working face; and on 
the mechanic;
    (8) Hand loading section with a cutting machine. DO--The cutting 
machine operator;
    (9) Hand loading section shooting off the solid. DO--The hand 
loader exposed to the greatest dust concentration; and
    (10) Anthracite mine sections. DO--The hand loader exposed to the 
greatest dust concentration.
    (c) When the respirable dust standard is changed in accordance with 
Sec.  70.101, the new applicable standard shall become effective on the 
first production shift following receipt of notification of such change 
from MSHA.
    (d) No valid end-of-shift equivalent concentration shall meet or 
exceed the excessive concentration value (ECV) that corresponds to the 
applicable standard in Table 70-2.
    (e) No weekly accumulated exposure shall exceed the weekly 
permissible accumulated exposure.
    (f) When a valid end-of-shift equivalent concentration meets or 
exceeds the applicable ECV in Table 70-2, or a weekly accumulated 
exposure exceeds the weekly permissible accumulated exposure, the 
operator shall take the following actions before production begins on 
the next shift:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Implement corrective actions to assure compliance with the 
applicable standard on the next and other subsequent production shifts;
    (3) Submit to the District Manager for approval, within 3 days of 
determining that the applicable standard was exceeded, the corrective 
actions implemented to lower the concentration of respirable dust to 
within the applicable standard as a proposed change to the approved 
ventilation plan;
    (4) Review the adequacy of the approved CPDM Performance Plan. 
Within 7 calendar days following posting of the end-of-shift equivalent 
concentration or weekly accumulated exposure on the mine bulletin 
board, the operator shall submit any plan revisions to the District 
Manager for approval; and
    (5) Record the reported excessive dust condition as part of and in 
the same manner as the records for hazardous conditions required by 
Sec.  75.363 of this chapter. The record shall include:
    (i) Dates of sampling;
    (ii) Lengths of sampled shifts;
    (iii) Locations within the mine and the occupation where samples 
were collected;
    (iv) The end-of-shift equivalent concentration or weekly 
accumulated exposure and weekly permissible accumulated exposure; and
    (v) Corrective actions taken to reduce the concentration of 
respirable coal mine dust to or below the applicable standard.
    (g) When a valid end-of-shift equivalent concentration exceeds the 
applicable standard but is less than the applicable ECV in Table 70-2, 
the operator shall take the following actions:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Implement corrective actions to assure compliance with the 
applicable standard on the next and subsequent production shifts;

[[Page 64490]]

    (3) Record the reported excessive dust condition as part of and in 
the same manner as the records for hazardous conditions required by 
Sec.  75.363 of this chapter. The record shall include:
    (i) Date of sampling;
    (ii) Length of the sampled shift;
    (iii) Location within the mine and the occupation where the sample 
was collected;
    (iv) The end-of-shift equivalent concentration; and
    (v) Corrective action taken to reduce the concentration of 
respirable coal mine dust to or below the applicable standard; and
    (4) Review the adequacy of the approved CPDM Performance Plan. The 
operator shall submit to the District Manager for approval any plan 
revisions within 7 calendar days following posting of the end-of-shift 
equivalent concentration on the mine bulletin board.

 Table 70-2--Excessive Concentration Values (ECV) Based on Single-Shift
               CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                                ECV (mg/
                Applicable Standard (mg/m\3\)                    m\3\)
------------------------------------------------------------------------
2.0..........................................................       2.26
1.9..........................................................       2.15
1.8..........................................................       2.04
1.7..........................................................       1.92
1.6..........................................................       1.81
1.5..........................................................       1.70
1.4..........................................................       1.59
1.3..........................................................       1.47
1.2..........................................................       1.36
1.1..........................................................       1.25
1.0..........................................................       1.13
0.9..........................................................       1.02
0.8..........................................................       0.91
0.7..........................................................       0.80
0.6..........................................................       0.68
0.5..........................................................       0.57
0.4..........................................................       0.46
0.3..........................................................       0.34
0.2..........................................................       0.23
------------------------------------------------------------------------

    (h) During the period of [effective date of rule] through 
[effective date plus 24 months], if an operator is unable to maintain 
compliance with the applicable standard for an MMU and has determined 
that all feasible engineering or environmental controls are being used 
on the MMU, the operator may request through the District Manager that 
the Administrator for Coal Mine Safety and Health approve the use of 
supplementary controls for a period not to exceed 6 months, including 
worker rotation, in conjunction with monitoring miners' exposures with 
CPDMs to reduce affected miners' dust exposures. The operator shall 
provide a report that evaluates the specific situation in the MMU, 
outlines all controls that will be used during this time period to 
prevent miners from being exposed to concentrations exceeding the 
applicable standard, addresses the actions that will be taken to reduce 
miners' exposures through the use of engineering and environmental 
controls, and establishes the time line for the implementation of the 
engineering and environmental controls. The District Manager will 
address this request through the approval process associated with the 
mine ventilation plan.


Sec.  70.209  Sampling of designated areas.

    (a) The operator shall sample each DA for five consecutive 
production shifts every calendar quarter using a CMDPSU or CPDM. The 
quarterly periods are:

January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31

    (b) When the respirable dust standard is changed in accordance with 
Sec.  70.101, the new applicable standard shall become effective on the 
first production shift following receipt of the notification of such 
change from MSHA.
    (1) If all samples from the most recent quarterly sampling period 
do not exceed the new applicable standard, respirable dust sampling of 
the DA shall begin on the first production shift during the next 
quarterly period following receipt of such change from MSHA.
    (2) If any sample from the most recent quarterly sampling period 
exceeds the new applicable standard, the operator shall make necessary 
adjustments to the dust control parameters in the mine ventilation plan 
within three days and then collect samples from the affected DA on 
consecutive shifts until five valid representative samples are 
collected. The samples collected will be treated as normal quarterly 
samples under this part.
    (c) If using a CMDPSU, no valid single-shift sample equivalent 
concentration shall meet or exceed the ECV that corresponds to the 
applicable standard in Table 70-1; or if using a CPDM, no valid end-of-
shift equivalent concentration shall meet or exceed the applicable ECV 
in Table 70-2.
    (d) Upon issuance of a citation for a violation of the applicable 
standard, paragraphs (a) and (b)(2) of this section shall not apply to 
that DA until the violation is abated in accordance with paragraph (e) 
of this section.
    (e) During the time for abatement fixed in a citation for violation 
of the applicable standard, the operator shall take the following 
actions:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Submit to the District Manager for approval proposed corrective 
actions to lower the concentration of respirable dust to within the 
applicable standard; and
    (3) Upon approval by the District Manager, implement the proposed 
corrective actions and then sample the affected DA on each production 
shift until five valid representative samples are taken.
    (f) A citation for violation of the applicable standard shall be 
terminated by MSHA when the equivalent concentration of each of the 
five valid operator abatement samples is at or below the applicable 
standard, the operator has submitted to the District Manager revised 
dust control parameters as part of the mine ventilation plan applicable 
to the DA in the citation, and such changes have been approved by the 
District Manager. The revised parameters shall reflect the control 
measures used to abate the violation.
    (g) If an operator uses a CPDM to meet the requirements in 
paragraph (a) of this section and a valid end-of-shift equivalent 
concentration exceeds the applicable standard but is less than the 
applicable ECV in Table 70-2, the operator shall take the following 
actions:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Implement corrective actions to assure compliance with the 
applicable standard on the next and other subsequent production shifts; 
and
    (3) Record the reported excessive dust condition as part of and in 
the same manner as the records for hazardous conditions required by 
Sec.  75.363 of this chapter. The record shall include:
    (i) Date of sampling;
    (ii) Length of the sampled shift;
    (iii) Location within the mine and the occupation where the sample 
was collected;
    (iv) The end-of-shift equivalent concentration; and
    (v) Corrective action implemented to reduce the concentration of 
respirable coal mine dust to or below the applicable standard; and
    (4) Review the adequacy of the approved CPDM Performance Plan. The 
operator shall submit to the District Manager for approval any plan 
revisions within 7 calendar days following posting of the end-of-shift 
equivalent

[[Page 64491]]

concentration on the mine bulletin board.
    (h) MSHA approval of the operator's ventilation system and methane 
and dust control plan may be revoked based on samples taken by MSHA or 
in accordance with this part 70.


Sec.  70.210  Respirable dust samples; transmission by operator.

    (a) If using a CMDPSU, the operator shall transmit within 24 hours 
after the end of the sampling shift all samples collected to fulfill 
the requirements of this part in containers provided by the 
manufacturer of the filter cassette to: Respirable Dust Processing 
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans 
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
    (b) The operator shall not open or tamper with the seal of any 
filter cassette or alter the weight of any filter cassette before or 
after it is used to fulfill the requirements of this part.
    (c) A person certified in sampling shall properly complete the dust 
data card that is provided by the manufacturer for each filter 
cassette. The card shall have an identification number identical to 
that on the cassette used to take the sample and be submitted to MSHA 
with the sample. Each card shall be signed by the certified person who 
actually performed the required examinations during the sampling shift 
and shall include that person's MSHA Individual Identification Number 
(MIIN). Respirable dust samples with data cards not properly completed 
shall be voided by MSHA.
    (d) All respirable dust samples collected by the operator shall be 
considered taken to fulfill the sampling requirements of part 70, 71 or 
90 of this title, unless the sample has been identified in writing by 
the operator to the District Manager, prior to the intended sampling 
shift, as a sample to be used for purposes other than required by part 
70, 71 or 90 of this title.
    (e) Respirable dust samples received by MSHA in excess of those 
required by this part shall be considered invalid samples.
    (f) If using a CPDM, the designated mine official shall validate, 
certify and transmit electronically to MSHA within 12 hours after the 
end of the last sampling shift of the work week all daily sample and 
error data file information collected during the previous calendar week 
(Sunday through Saturday) and stored in the CPDM. All CPDM data files 
transmitted to MSHA shall be maintained by the operator for at least 12 
months.


Sec.  70.211  Respirable dust samples; report to operator; posting.

    (a) MSHA shall provide the operator a report with the following 
data on respirable dust samples submitted in accordance with this part:
    (1) The mine identification number;
    (2) The locations within the mine from which the samples were 
taken;
    (3) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample;
    (4) The average concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for all 
valid samples;
    (5) The occupation code, where applicable;
    (6) The reason for voiding any sample.
    (b) Upon receipt, the operator shall post this data for at least 31 
days on the mine bulletin board.
    (c) If using a CPDM, the designated mine official shall validate, 
certify and post on the mine bulletin board:
    (1) Within 1 hour after the end of the sampling shift, the daily 
end-of-shift sampling results for each monitored occupation and DA, if 
applicable. The daily posting shall include:
    (i) The mine identification number;
    (ii) The locations within the mine from which the samples were 
taken;
    (iii) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample;
    (iv) The total amount of exposure accumulated by the sampled 
occupation during the shift;
    (v) The occupation code, where applicable;
    (vi) The reason for voiding any sample;
    (vii) The shift length; and
    (viii) Any other information required by the District Manager.
    (2) Within 2 hours after the end of the last sampling shift of the 
work week (Sunday through Saturday), the weekly accumulated exposure 
(WAE) and the weekly permissible accumulated exposure (WPAE) for each 
occupation sampled in an MMU. If the mine employs multiple crews at an 
MMU to work the same shift but on different days during the same 
calendar week, the operator shall post the WAE and WPAE for each crew 
that was assigned to the occupation being monitored.
    (3) This information shall be posted for at least 15 calendar days.


Sec.  70.212  Status change reports.

    (a) If there is a change in operational status that affects the 
respirable dust sampling requirements of this part, the operator shall 
report the change in operational status of the mine, mechanized mining 
unit, or designated area to the MSHA District Office or to any other 
MSHA office designated by the District Manager. Status changes shall be 
reported in writing or electronically within 3 working days after the 
status change has occurred.
    (b) Each specific operational status is defined as follows:
    (1) Underground mine:
    (i) Producing--has at least one MMU unit producing material.
    (ii) Nonproducing--no material is being produced.
    (iii) Abandoned--the work of all miners has been terminated and 
production activity has ceased.
    (2) MMU:
    (i) Producing--producing material from a working section.
    (ii) Nonproducing--temporarily ceased production of material.
    (iii) Abandoned--permanently ceased production of material.
    (3) DA:
    (i) Producing--activity is occurring.
    (ii) Nonproducing--activity has ceased.
    (iii) Abandoned--the dust generating source has been withdrawn and 
activity has ceased.
    (c) Status changes affecting the operational readiness of any CPDM 
shall be reported by the designated mine official to the MSHA District 
Office or to any other MSHA office designated by the District Manager 
within 24 hours after the status change has occurred. Status changes 
shall be reported in writing or electronically.


Sec. Sec.  70.300 and 70.305  [Redesignated as Sec. Sec.  72.700 and 
72.701]

    6. Sections 70.300 and 70.305 are redesignated as Sec. Sec.  72.700 
and 72.701 respectively.

Subpart D--[Reserved]

    7. Subpart D heading removed and subpart reserved.

PART 71--MANDATORY HEALTH STANDARDS FOR SURFACE COAL MINES AND 
SURFACE WORK AREAS OF UNDERGROUND COAL MINES

    8. The authority citation for part 71 is revised to read as 
follows:

    Authority:  30 U.S.C. 811, 813(h), and 957.

    9. Section 71.1 is revised to read as follows:

[[Page 64492]]

Sec.  71.1  Scope.

    This part 71 sets forth mandatory health standards for each surface 
coal mine and for the surface work areas of each underground coal mine 
subject to the Federal Mine Safety and Health Act of 1977, as amended.
    9. Section 71.2 is amended by:
    a. Removing the alphabetical paragraph designations and arranging 
existing definitions in alphabetical order;
    b. Adding definitions for ``Approved sampling device,'' ``Coal mine 
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust 
monitor (CPDM),'' ``Equivalent concentration,'' and ``Representative 
samples;''
    c. Revising definitions for ``Act,'' ``Designated work position 
(DWP),'' ``Quartz,'' and ``Work position.''
    The additions and revisions are revised to read as follows:


Sec.  71.2  Definitions.

    Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
    Approved sampling device. A sampling device approved by the 
Secretary and Secretary of Health and Human Services (HHS) under part 
74 of this title.
* * * * *
    Coal mine dust personal sampler unit (CMDPSU). A personal sampling 
device approved under part 74, subpart B, of this title.
* * * * *
    Continuous personal dust monitor (CPDM). A personal sampling device 
approved under part 74, subpart C, of this title.
    Designated work position (DWP). A work position at a surface area 
of a coal mine required to be sampled by this part. The DWP designation 
consists of a four-digit surface area number assigned by MSHA 
identifying the specific physical portion of a surface coal mine or 
surface area of an underground mine that is affected, and a three-digit 
MSHA coal mining occupation code describing the location to which a 
miner is assigned in the performance of his or her regular duties.
* * * * *
    Equivalent concentration. The concentration of respirable coal mine 
dust expressed in milligrams per cubic meter of air (mg/m\3\), 
determined by dividing the weight of dust in milligrams collected on 
the filter of an approved sampling device by the volume of air in cubic 
meters passing through the collection filter (sampling time in minutes 
times the sampling airflow rate in cubic meters per minute), and then 
converting this concentration to an equivalent 8-hour exposure as 
measured by the Mining Research Establishment (MRE) instrument. When 
the approved sampling device is:
    (1) The CMDPSU, the equivalent concentration is determined by first 
multiplying the concentration of respirable coal mine dust by the MRE 
conversion factor prescribed by the Secretary and then normalizing this 
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling 
time in minutes if longer than 8 hours.
    (2) The CPDM, the device shall be programmed to directly report the 
end-of-shift equivalent concentration as an MRE 8-hour equivalent 
concentration.
    (3) Either the CMDPSU or CPDM and the sampled work shift is less 
than 8 hours, the value of t used for normalizing the MRE-equivalent 
concentration to an 8-hour exposure measurement shall be 480 minutes.
* * * * *
    Quartz. Crystalline silicon dioxide (SiO<INF>2</INF>) as measured 
by:
    (1) MSHA Analytical Method P-7: Infrared Determination of Quartz in 
Respirable Coal Mine Dust; or
    (2) Any method approved by MSHA as providing a measurement of 
quartz equivalent to that obtained by MSHA Analytical Method P-7.
    Representative samples. Respirable dust samples that reflect 
typical dust concentration levels in the working environment of the DWP 
when performing normal duties.
* * * * *
    Work position. An occupation identified by an MSHA three-digit code 
number describing a location to which a miner is assigned in the 
performance of his or her normal duties.
    10. Subpart B is revised to read as follows:

Subpart B--Dust Standards

Sec.
71.100 Respirable dust standard.
71.101 Respirable dust standard when quartz is present.


Sec.  71.100  Respirable dust standard.

    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 each mine is exposed, as measured 
with an approved sampling device and in terms of an equivalent 
concentration, at or below:
    (a) 2.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
    (b) 1.7 mg/m\3\ as of [date 6 months after the effective date of 
the final rule].
    (c) 1.5 mg/m\3\ as of [date 12 months after the effective date of 
the final rule].
    (d) 1.0 mg/m\3\ as of [date 24 months after the effective date of 
the final rule].


Sec.  71.101  Respirable dust standard when quartz is present.

    (a) Each operator shall continuously maintain the average 
concentration of respirable quartz dust in the mine atmosphere during 
each shift to which each miner in the active workings of each mine is 
exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or 
[micro]g/m\3\) as measured with an approved sampling device and in 
terms of an equivalent concentration.
    (b) When the concentration of respirable quartz dust exceeds 100 
[micro]g/m\3\, the 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 is exposed as measured 
with an approved sampling device and in terms of an equivalent 
concentration at or below the applicable standard. The applicable 
standard is computed by dividing the percent of quartz into the number 
10. The application of this formula shall not result in the applicable 
standard that exceeds the standard established by Sec.  71.100(a) of 
this section.

    Example: Assume the sampled DWP is on a 2.0-mg/m\3\ dust 
standard. Suppose a valid representative dust sample with an 
equivalent concentration of 1.0 mg/m\3\contains 16.7% of quartz 
dust, which corresponds to a quartz concentration of 167 [micro]g/
m\3\. Therefore, the average concentration of respirable dust in the 
mine atmosphere associated with that DWP shall be maintained on each 
shift at or below 0.6 mg/m\3\ (10/16.7% = 0.6 mg/m\3\).

    11. Subpart C is revised to read as follows:

Subpart C--Sampling Procedures

Sec.
71.201 Sampling; general and technical requirements.
71.202 Certified person; sampling.
71.203 Certified person; maintenance and calibration.
71.204 Approved sampling devices; maintenance and calibration.
71.205 Approved sampling devices; operation; air flowrate.
71.206 CPDM Performance Plan.
71.207 Sampling of designated work positions.
71.208 Respirable dust samples; transmission by operator.
71.209 Respirable dust samples; report to operator; posting.
71.210 Status change reports.


[[Page 64493]]




Sec.  71.201  Sampling; general and technical requirements.

    (a) Each operator shall take representative samples of the 
concentration of respirable dust in the active workings of the mine as 
required by this part with an approved sampling device.
    (b) Sampling devices shall be worn or carried directly to and from 
the DWP to be sampled. Sampling devices shall remain with the DWP and 
shall be operational during the entire shift, which includes the total 
time spent in the DWP and while travelling to and from the DWP being 
sampled. If the work shift to be sampled is longer than 12 hours and 
the sampling device is:
    (1) A CMDPSU, the operator shall switch-out the unit's sampling 
pump prior to the 13th-hour of operation.
    (2) A CPDM, the operator shall switch-out the CPDM with a fully 
charged device prior to the 13th-hour of operation.
    (c) If using a CMDPSU, one control filter shall be used for each 
shift of sampling. Each control filter shall:
    (1) Have the same pre-weight date (noted on the dust data card) as 
the ones used for sampling;
    (2) Remain plugged at all times;
    (3) Be exposed to the same time, temperature, and handling 
conditions as the ones used for sampling; and
    (4) Be kept with the exposed samples after sampling.
    (d) Records showing the length of each normal work shift for each 
DWP shall be made and retained at least six months and shall be made 
available for inspection by authorized representatives of the Secretary 
and the representative of miners or submitted to the District Manager 
when requested in writing.
    (e) Upon request from the District Manager, the operator shall 
submit the date and time any respirable dust sampling required by this 
part will begin. This information shall be submitted at least 48 hours 
prior to scheduled sampling.
    (f) Upon written request by the operator, the District Manager may 
waive the rain restriction for a normal work shift as defined in Sec.  
71.2 for a period not to exceed two months, if the District Manager 
determines that:
    (1) The operator will not have reasonable opportunity to complete 
the respirable dust sampling required by this part without the waiver 
because of the frequency of rain; and
    (2) The operator did not have reasonable opportunity to complete 
the respirable dust sampling required by this part prior to requesting 
the waiver.
    (g) Operators using CPDMs shall provide training to all miners 
expected to wear the CPDM. The training shall be completed prior to a 
miner being required to wear the CPDM and then every 12 months 
thereafter. The training shall include:
    (1) Explaining the basic features and capabilities of the CPDM;
    (2) How to set-up the CPDM for compliance sampling;
    (3) A discussion of the various types of information displayed by 
the CPDM and how to access that information;
    (4) How to start and stop a short-term sample run during compliance 
sampling; and
    (5) The importance of continuously monitoring dust concentrations 
and properly wearing the CPDM.
    (h) An operator shall keep a record of the CPDM training at the 
mine site for two years after completion of the training. An operator 
may keep the record elsewhere if the record is immediately accessible 
from the mine site by electronic transmission. Upon request from an 
authorized representative of the Secretary, Secretary of HHS, or 
representative of miners, the operator shall promptly provide access to 
any such training records.


Sec.  71.202  Certified person; sampling.

    (a) The respirable dust sampling required by this part shall be 
performed by a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in sampling procedures. Persons not certified in sampling, 
and those certified only in maintenance and calibration procedures in 
accordance with Sec.  71.203(b), are not permitted to collect 
respirable dust samples required by this part or handle approved 
sampling devices when being used in sampling.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in sampling procedures every three 
years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required sampling 
procedures.


Sec.  71.203  Certified person; maintenance and calibration.

    (a) Approved sampling devices shall be maintained and calibrated by 
a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in maintenance and calibration procedures for approved 
sampling devices. If using a CMDPSU, necessary maintenance of the 
sampling head assembly can be performed by persons certified in 
sampling or maintenance and calibration.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in maintenance and calibration 
procedures every three years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required maintenance 
and calibration procedures.


Sec.  71.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 of this chapter and calibrated in accordance with MSHA 
Informational Report IR 1240 (1996) ``Calibration and Maintenance 
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance 
with the manufacturer's recommendations if using a CPDM. Only persons 
certified in maintenance and calibration can perform maintenance work 
on the pump unit of approved sampling devices.
    (b) Approved sampling devices shall be calibrated at the flowrate 
of 2.0 liters of air per minute (L/min), or at a different flowrate 
recommended by the manufacturer or prescribed by the Secretary or 
Secretary of HHS for the particular device, before they are put into 
service and, thereafter, at time intervals recommended by the 
manufacturer or prescribed by the Secretary or Secretary of HHS.
    (c) If using a CMDPSU, sampling devices shall be examined and 
tested by a person certified in sampling or in maintenance and 
calibration within 3 hours before the start of the shift on which the 
approved sampling devices will be used to collect respirable dust 
samples. This is to assure that the sampling devices are clean and in 
proper working condition. This examination and testing shall include 
the following:
    (1) Examination of all components of the cyclone assembly to assure 
that they are clean and free of dust and dirt. This includes examining 
the interior of the connector barrel (located between the cassette 
assembly and vortex finder), vortex finder, cyclone body and grit pot;
    (2) Examination of the inner surface of the cyclone body to assure 
that it is free of scoring or scratch marks on the inner surface of the 
cyclone where the air flow is directed by the vortex finder into the 
cyclone body;
    (3) Examination of the external hose connecting the pump unit to 
the

[[Page 64494]]

sampling head assembly to assure that it is clean and free of leaks; 
and
    (4) Examination of the clamping and positioning of the cyclone 
body, vortex finder and cassette to assure that they are rigid, in 
alignment, firmly in contact and airtight.
    (5) Testing the voltage of each battery while under actual load to 
assure the battery is fully charged. This requires that a fully 
assembled and examined sampling head assembly be attached to the pump 
inlet with the pump unit running when the voltage check is made. The 
voltage for nickel cadmium cell batteries shall not be lower than the 
product of the number of cells in the battery multiplied by 1.25. The 
voltage for other than nickel cadmium cell batteries shall not be lower 
than the product of the number of cells in the battery multiplied by 
the manufacturer's nominal voltage per cell value.
    (d) If using a CPDM, the certified person in sampling or in 
maintenance and calibration shall follow the examination, testing and 
set-up procedures contained in the approved CPDM Performance Plan.
    (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, 1100 
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each 
MSHA Coal Mine Safety and Health district office. Copies may be 
inspected at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.


Sec.  71.205  Approved sampling devices; operation; air flowrate.

    (a) Approved sampling devices shall be operated at the flowrate of 
2.0 L/min, or at a different flowrate recommended by the manufacturer 
or prescribed by the Secretary or Secretary of HHS.
    (b) If using a CMDPSU, each sampling device shall be examined each 
shift by a person certified in sampling during:
    (1) The second hour after being put into operation to assure it is 
in the proper location, operating properly and at the proper flowrate. 
If the proper flowrate is not maintained, necessary adjustments shall 
be made by the certified person.
    (2) The last hour of operation to assure that it is operating 
properly and at the proper flowrate. If the proper flowrate is not 
maintained, the respirable dust sample shall be transmitted to MSHA 
with a notation by the certified person on the back-side of the dust 
data card stating that the proper flowrate was not maintained. Other 
events occurring during the collection of respirable dust samples that 
may affect the validity of the sample, such as dropping of the sampling 
head assembly onto the mine floor, shall be noted on the back-side of 
the dust data card.
    (c) If using a CPDM, the certified person shall examine the 
sampling device during the shift in accordance with the procedures 
contained in the approved CPDM Performance Plan.


Sec.  71.206  CPDM Performance Plan.

    (a) If using a CPDM, the operator shall have an approved CPDM 
Performance Plan to ensure that the regular duties of the DWP shall not 
expose miners to concentrations of respirable coal mine dust in excess 
of the applicable standard. The operator shall develop a proposed CPDM 
Performance Plan and submit it to the District Manager. The proposed 
CPDM Performance Plan shall not be implemented until approved by the 
District Manager.
    (1) The mine operator shall notify the representative of miners at 
least 5 days prior to submission of a proposed CPDM Performance Plan 
and any proposed revision to a CPDM Performance Plan. If requested, the 
mine operator shall provide a copy to the representative of miners at 
the time of notification;
    (2) A copy of the proposed CPDM Performance Plan, and a copy of any 
proposed revision, submitted for approval shall be made available for 
inspection by the representative of miners; and
    (3) A copy of the proposed CPDM Performance Plan and a copy of any 
proposed revision submitted for approval shall be posted on the mine 
bulletin board at the time of submittal. The proposed plan or proposed 
revision shall remain posted until it is approved, withdrawn, or 
denied.
    (4) Following receipt of the proposed plan or proposed revision, 
the representative of miners may submit timely comments to the District 
Manager, in writing, for consideration during the review process. A 
copy of these comments shall also be provided to the operator by the 
District Manager upon request.
    (b) The approved CPDM Performance Plan shall include the names or 
titles of the responsible mine officials designated by the operator and 
the following information:
    (1) The DWPs that will be sampled using a CPDM. Each DWP shall be 
assigned a 9-digit identification number as follows:
    (i) The first four digits identify the surface work area of the 
mine;
    (ii) The next three digits identify the sampled work position or 
occupation;
    (iii) The eighth digit identifies the particular shift being 
sampled (e.g., 1st, 2nd or 3rd); and
    (iv) The final digit identifies the particular miner assigned to 
that DWP if the mine employs other miners that perform similar duties 
in the rest of the mine.
    (2) The pre-operational examinations, testing and set-up procedures 
to verify the operational readiness of the sampling device before each 
sampling shift;
    (3) Procedures that address downloading of end-of-shift sampling 
information, and validation, certification and posting of reported 
results;
    (4) Procedures for weekly transmittals of certified sampling data 
files electronically to MSHA;
    (5) The routine daily and other required scheduled maintenance 
procedures;
    (6) Procedures or methods for verifying the calibration of each 
CPDM; and
    (7) The frequency with which dust concentrations being reported by 
the CPDM shall be monitored by the designated mine official during the 
shift;
    (8) The types of actions permitted to be taken during the shift to 
ensure the environment of the occupation being sampled remains in 
compliance at the end of the shift.
    (9) Any other information required by the District Manager.
    (c) The approved CPDM Performance Plan and any revisions shall be:
    (1) Provided upon request to the representative of miners by the 
operator following notification of approval;
    (2) Made available for inspection by the representative of miners; 
and
    (3) Posted on the mine bulletin board within 1 working day 
following notification of approval, and shall remain posted for the 
period that the plan is in effect.
    (d) The District Manager may require an approved CPDM Performance 
Plan to be revised if the District Manager determines that the plan is 
inadequate to protect miners from exposure to concentrations of 
respirable dust in excess of the applicable standard.

[[Page 64495]]

Sec.  71.207  Sampling of designated work positions.

    (a) Each operator shall take one valid representative sample from 
each DWP every calendar quarter. The quarterly periods are:

January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31

    (b) Designated work position samples shall be collected at 
locations to measure respirable dust generation sources in the active 
workings. The work positions at each mine where DWP samples shall be 
collected include:
    (1) Each highwall drill operator (MSHA occupation code 384);
    (2) Bulldozer operators (MSHA occupation code 368); and
    (3) Other work positions designated by the District Manager for 
sampling in accordance with Sec.  71.207(f).
    (c) Operators with multiple work positions specified in paragraph 
(b)(2) and (b)(3) of this section shall sample the DWP exposed to the 
greatest respirable dust concentration in each work position performing 
the same activity or task at the same location at the mine and exposed 
to the same dust generation source. Each operator shall provide the 
District Manager with a list identifying the specific work positions 
where DWP samples will be collected for:
    (1) Active mines--by [date 60 days after date of publication of 
final rule];
    (2) New mines--Within 30 calendar days of mine opening; or
    (3) Change in operational status that increases or reduces the 
number of active DWPs--within 7 calendar days of the change in status.
    (d) Each DWP sample shall be taken on a normal work shift. If a 
normal work shift is not achieved, the respirable dust sample shall be 
transmitted to MSHA with a notation by the certified person on the 
back-side of the dust data card stating that the sample was not taken 
on a normal work shift. When a normal work shift is not achieved, the 
sample for that shift may be voided by MSHA. However, any sample, 
regardless of whether a normal work shift was achieved, that exceeds 
the applicable standard by at least 0.1 mg/m\3\ shall be used to 
determine compliance with this part.
    (e) Unless otherwise directed by the District Manager, DWP samples 
shall be taken by placing the sampling device as follows:
    (1) Equipment operator: On the equipment operator or on the 
equipment within 36 inches of the operator's normal working position;
    (2) Non-equipment operators: On the miner assigned to the DWP or at 
a location that represents the maximum concentration of dust to which 
the miner is exposed.
    (f) The District Manager may designate for sampling under this 
section additional work positions at a surface coal mine and at a 
surface work area of an underground coal mine where a concentration of 
respirable dust exceeding 50 percent of the applicable standard has 
been measured by one or more MSHA samples. Where the applicable 
standard established in accordance with Sec.  71.101 is below the 
respirable dust standard under Sec.  71.100, the District Manager may 
designate for sampling additional work positions where a concentration 
of respirable dust exceeding the applicable standard has been measured 
by one or more MSHA samples.
    (g) The District Manager may withdraw from sampling any DWP 
designated for sampling under paragraph (f) of this section upon 
finding that the operator is able to maintain continuing compliance 
with the applicable standard. This finding shall be based on the 
results of MSHA and operator samples taken during at least a one-year 
period.
    (h) When the respirable dust standard is changed in accordance with 
Sec.  71.101, the new applicable standard shall become effective on the 
first normal work shift following receipt of the notification of such 
change from MSHA.
    (1) If all samples from the most recent quarterly sampling period 
do not exceed the new applicable standard, respirable dust sampling of 
the DWP shall begin on the first normal work shift during the next 
quarterly period following receipt of such change from MSHA.
    (2) If any sample from the most recent quarterly sampling period 
exceeds the new applicable standard, the operator shall make necessary 
adjustments to the dust control parameters within three days and then 
collect a sample from the affected DWP on a normal work shift. The 
sample collected will be treated as a normal quarterly sample under 
this part.
    (i) If using a CMDPSU, no valid single-shift concentration shall 
meet or exceed the excessive concentration value (ECV) that corresponds 
to the applicable standard in Table 71-1; or, if using a CPDM, no valid 
end-of-shift equivalent concentration shall meet or exceed the 
applicable ECV in Table 71-2.

 Table 71-1--Excessive Concentration Values (ECV) Based on Single-Shift
              CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                               ECV  (mg/
                Applicable standard  (mg/m\3\)                   m\3\)
------------------------------------------------------------------------
2.0..........................................................       2.33
1.9..........................................................       2.22
1.8..........................................................       2.12
1.7..........................................................       2.01
1.6..........................................................       1.90
1.5..........................................................       1.79
1.4..........................................................       1.69
1.3..........................................................       1.59
1.2..........................................................       1.47
1.1..........................................................       1.37
1.0..........................................................       1.26
0.9..........................................................       1.16
0.8..........................................................       1.05
0.7..........................................................       0.95
0.6..........................................................       0.85
0.5..........................................................       0.74
0.4..........................................................       0.65
0.3..........................................................       0.54
0.2..........................................................       0.44
------------------------------------------------------------------------


 Table 71-2--Excessive Concentration Values (ECV) Based on Single-Shift
               CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                               ECV  (mg/
                Applicable standard  (mg/m\3\)                   m\3\)
------------------------------------------------------------------------
2.0..........................................................       2.26
1.9..........................................................       2.15
1.8..........................................................       2.04
1.7..........................................................       1.92
1.6..........................................................       1.81
1.5..........................................................       1.70
1.4..........................................................       1.59
1.3..........................................................       1.47
1.2..........................................................       1.36
1.1..........................................................       1.25
1.0..........................................................       1.13
0.9..........................................................       1.02
0.8..........................................................       0.91
0.7..........................................................       0.80
0.6..........................................................       0.68
0.5..........................................................       0.57
0.4..........................................................       0.46
0.3..........................................................       0.34
0.2..........................................................       0.23
------------------------------------------------------------------------

    (j) Upon issuance of a citation for a violation of the applicable 
standard, paragraphs (a) and (h)(2) of this section shall not apply to 
that DWP until the violation is abated in accordance with paragraph (k) 
of this section.
    (k) During the time for abatement fixed in a citation for violation 
of the applicable standard, the operator shall take the following 
actions:
    (1) Make approved respiratory equipment available to affected 
miners in accordance with Sec.  72.700 of this chapter;
    (2) Submit to the District Manager for approval proposed corrective 
actions to

[[Page 64496]]

lower the concentration of respirable dust to within the applicable 
standard; and
    (3) Upon approval by the District Manager, implement the proposed 
corrective actions and then sample the affected DWP on each normal work 
shift until five valid representative samples are taken.
    (4) If using a CPDM to meet the requirements of paragraph (a) of 
this section, review the adequacy of the approved CPDM Performance 
Plan. The operator shall submit any plan revisions to the District 
Manager for approval within 7 calendar days following posting of the 
end-of-shift equivalent concentration on the mine bulletin board.
    (l) A citation for violation of the applicable standard shall be 
terminated by MSHA when the equivalent concentration of each of the 
five valid operator abatement samples is at or below the applicable 
standard and, within 15 calendar days after receipt of sampling results 
from MSHA, the operator has submitted to the District Manager for 
approval a proposed dust control plan applicable to the DWP in the 
citation or notice or proposed changes to the approved dust control 
plan as prescribed in Sec.  71.300. The proposed plan parameters or 
proposed changes shall reflect the control measures used to abate the 
violation.
    (m) Upon notification from MSHA that any valid representative 
sample taken with a CMDPSU from a DWP to meet the requirements of 
paragraph (a) of this section exceeds the applicable standard but is 
below the applicable ECV in Table 71-1, the operator shall, within 15 
calendar days of notification, sample that DWP each normal work shift 
until five valid representative samples are taken. The operator shall 
begin sampling on the first normal work shift following receipt of 
notification. These samples will be evaluated to determine compliance 
with the applicable standard for this sampling period.
    (n) If using a CPDM to meet the requirements in paragraph (a) of 
this section and a valid end-of-shift equivalent concentration exceeds 
the applicable standard but is less than the applicable ECV in Table 
71-2, the operator shall:
    (1) On the first normal work shift after determining that the 
applicable standard was exceeded, sample that DWP each normal work 
shift until five valid representative samples are taken. These samples 
will be evaluated to determine compliance with the applicable standard 
for this sampling period; and
    (2) Review the adequacy of the approved CPDM Performance Plan. The 
operator shall submit any plan revisions to the District Manager for 
approval within 7 calendar days following posting of the end-of-shift 
equivalent concentration on the mine bulletin board.


Sec.  71.208  Respirable dust samples; transmission by operator.

    (a) If using a CMDPSU, the operator shall transmit within 24 hours 
after the end of the sampling shift all samples collected to fulfill 
the requirements of this part in containers provided by the 
manufacturer of the filter cassette to: Respirable Dust Processing 
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans 
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
    (b) The operator shall not open or tamper with the seal of any 
filter cassette or alter the weight of any filter cassette before or 
after it is used to fulfill the requirements of this part.
    (c) A person certified in sampling shall properly complete the dust 
data card that is provided by the manufacturer for each filter 
cassette. The card shall have an identification number identical to 
that on the cassette used to take the sample and be submitted to MSHA 
with the sample. Each card shall be signed by the certified person who 
actually performed the required two examinations during the sampling 
shift and shall include that person's MSHA Individual Identification 
Number (MIIN). Respirable dust samples with data cards not properly 
completed shall be voided by MSHA.
    (d) All respirable dust samples collected by the operator shall be 
considered taken to fulfill the sampling requirements of part 70, 71 or 
90 of this title, unless the sample has been identified in writing by 
the operator to the District Manager, prior to the intended sampling 
shift, as a sample to be used for purposes other than required by part 
70, 71 or 90 of this title.
    (e) Respirable dust samples received by MSHA in excess of those 
required by this part shall be considered invalid samples.
    (f) If using a CPDM, the designated mine official shall validate, 
certify and transmit electronically to MSHA within 12 hours after the 
end of the last sampling shift for a DWP all sample and error data file 
information collected during the previous shifts and stored in the 
CPDM. All CPDM data files transmitted to MSHA shall be maintained by 
the operator for at least 12 months.


Sec.  71.209  Respirable dust samples; report to operator; posting.

    (a) MSHA shall provide the operator a report with the following 
data on respirable dust samples submitted in accordance with this part:
    (1) The mine identification number;
    (2) The DWP at the mine from which the samples were taken;
    (3) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample; and
    (4) The reason for voiding any sample.
    (b) Upon receipt, the operator shall post this data for at least 46 
days on the mine bulletin board.
    (c) If using a CPDM, the designated mine official shall validate, 
certify and post on the mine bulletin board:
    (1) Within 1 hour after the end of the sampling shift, the daily 
end-of-shift sampling results for each DWP. The daily posting shall 
include:
    (i) The mine identification number;
    (ii) The DWP at the mine from which the samples were taken;
    (iii) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample;
    (iv) The reason for voiding any sample;
    (v) The shift length; and
    (vi) Any other information required by the District Manager.
    (2) This information shall be posted at least 46 calendar days.


Sec.  71.210  Status change reports.

    (a) If there is a change in operational status that affects the 
respirable dust sampling requirements of this part, the operator shall 
report the change in operational status of the mine or DWP to the MSHA 
District Office or to any other MSHA office designated by the District 
Manager. Status changes shall be reported in writing or electronically 
within 3 working days after the status change has occurred.
    (b) Each specific operational status is defined as follows:
    (1) Underground mine:
    (i) Producing--has at least one mechanized mining unit producing 
material.
    (ii) Nonproducing--no material is being produced.
    (iii) Abandoned--the work of all miners has been terminated and 
production activity has ceased.
    (2) Surface mine:
    (i) Producing--normal activity is occurring and coal is being 
produced or processed or other material or equipment is being handled 
or moved.

[[Page 64497]]

    (ii) Nonproducing--normal activity is not occurring and coal is not 
being produced or processed, and other material or equipment is not 
being handled or moved.
    (iii) Abandoned--the work of all miners has been terminated and all 
activity has ceased.
    (3) DWP:
    (i) Producing--normal activity is occurring.
    (ii) Nonproducing--normal activity is not occurring.
    (iii) Abandoned--the dust generating source has been withdrawn and 
activity has ceased.
    (c) Status changes affecting the operational readiness of any CPDM 
shall be reported by the designated mine official to the MSHA District 
Office or to any other MSHA office designated by the District Manager 
within 24 hours after the status change has occurred. Status changes 
shall be reported in writing or electronically.
    12. Subpart D is revised to read as follows:

Subpart D-Respirable Dust Control Plans

Sec.
71.300 Respirable dust control plan; filing requirements.
71.301 Respirable dust control plan; approval by District Manager 
and posting.


Sec.  71.300  Respirable dust control plan; filing requirements.

    (a) As required by Sec.  71.207(l), the operator shall submit to 
the District Manager for approval a written respirable dust control 
plan applicable to the DWP identified in the citation. The respirable 
dust control plan and revisions thereof shall be suitable to the 
conditions and the mining system of the coal mine and shall be adequate 
to continuously maintain respirable dust within the applicable standard 
at the DWP.
    (1) The mine operator shall notify the representative of miners at 
least 5 days prior to submission of a respirable dust control plan and 
any revision to a dust control plan. If requested, the mine operator 
shall provide a copy to the representative of miners at the time of 
notification;
    (2) A copy of the proposed respirable dust control plan, and a copy 
of any proposed revision, submitted for approval shall be made 
available for inspection by the representative of miners; and
    (3) A copy of the proposed respirable dust control plan, and a copy 
of any proposed revision, submitted for approval shall be posted on the 
mine bulletin board at the time of submittal. The proposed plan or 
proposed revision shall remain posted until it is approved, withdrawn, 
or denied.
    (4) Following receipt of the proposed plan or proposed revision, 
the representative of miners may submit timely comments to the District 
Manager, in writing, for consideration during the review process. Upon 
request, a copy of these comments shall be provided to the operator by 
the District Manager.
    (b) Each respirable dust control plan shall include at least the 
following:
    (1) The mine identification number and DWP number assigned by MSHA, 
the operator's name, mine name, mine address, and mine telephone number 
and the name, address, and telephone number of the principal officer in 
charge of health and safety at the mine;
    (2) The specific DWP at the mine to which the plan applies;
    (3) A detailed description of the specific respirable dust control 
measures used to abate the violation of the respirable dust standard; 
and
    (4) A detailed description of how each of the respirable dust 
control measures described in response to paragraph (b)(3) of this 
section will continue to be used by the operator, including at least 
the specific time, place and manner the control measures will be used.


Sec.  71.301  Respirable dust control plan; approval by District 
Manager and posting.

    (a) The District Manager will approve respirable dust control plans 
on a mine-by-mine basis. When approving respirable dust control plans, 
the District Manager shall consider whether:
    (1) The respirable dust control measures would be likely to 
maintain concentrations of respirable coal mine dust at or below the 
applicable standard; and
    (2) The operator's compliance with all provisions of the respirable 
dust control plan could be objectively ascertained by MSHA.
    (b) MSHA may take respirable dust samples to determine whether the 
respirable dust control measures in the operator's plan effectively 
maintain concentrations of respirable coal mine dust at or below the 
applicable standard.
    (c) The operator shall comply with all provisions of each 
respirable dust control plan upon notice from MSHA that the respirable 
dust control plan is approved.
    (d) The approved respirable dust control plan and any revisions 
shall be:
    (1) Provided upon request to the representative of miners by the 
operator following notification of approval;
    (2) Made available for inspection by the representative of miners; 
and
    (3) Posted on the mine bulletin board within 1 working day 
following notification of approval, and shall remain posted for the 
period that the plan is in effect.
    (e) The operator may review respirable dust control plans and 
submit proposed revisions to such plans to the District Manager for 
approval.

PART 72--[AMENDED]

    13. The authority citation for part 72 is revised to read as 
follows:

    Authority:  30 U.S.C. 811, 813(h), and 957.

    14. Subpart B is added to part 72 to read as follows:

Subpart B-Medical Surveillance


Sec.  72.100  Periodic examinations.

    (a) Each operator of a coal mine shall provide to each miner 
periodic examinations including chest x-rays, spirometry, symptom 
assessment, and occupational history at a frequency specified in this 
section and at no cost to the miner.
    (1) Each operator shall use facilities approved by the National 
Institute for Occupational Safety and Health (NIOSH) to provide 
examinations specified in paragraph (a) of this section.
    (b) Voluntary examinations. Each operator shall provide the 
opportunity to have the examinations specified in Sec.  72.100(a) at 
least every 5 years to all miners employed at a coal mine. The 
examinations shall be available during a 6-month period that begins no 
less than 3.5 years and not more than 4.5 years from the end of the 
last 6-month period.
    (c) Mandatory examinations. For each miner who begins work at a 
coal mine for the first time, the operator shall provide examinations 
specified in Sec.  72.100(a) as follows:
    (1) An initial examination no later than 30 days after beginning 
employment;
    (2) A follow-up examination no later than 3 years after the initial 
examination in paragraph (c)(1) of this section; and
    (3) A follow-up examination no later than 2 years after the 
examinations in paragraph (c)(2) of this section if the chest x-ray 
shows evidence of pneumoconiosis or the spirometry examination 
indicates evidence of decreased lung function. For this purpose, 
evidential criteria will be defined by NIOSH.
    (d) Each mine operator shall develop and submit for approval to 
NIOSH a plan for providing miners with the examinations specified in 
Sec.  72.100(a)

[[Page 64498]]

and a roster specifying the name and current address of each miner 
covered by the plan.
    (e) Each mine operator shall post on the mine bulletin board at all 
times the approved plan for providing the examinations specified in 
Sec.  72.100(a).
    15. Add Sec.  72.700 to subpart E of part 72 to read as follows:


Sec.  72.700  Respiratory equipment; respirable dust.

    (a) Respiratory equipment approved by NIOSH under 42 CFR part 84 
shall be made available to all persons as required under parts 70, 71, 
and 90 of this chapter. Use of respirators shall not be substituted for 
environmental control measures in the active workings. Each operator 
shall maintain an adequate supply of respiratory equipment.
    (b) When required to make respirators available, the operator shall 
provide training prior to the miner's next scheduled work shift, unless 
the miner received training within the previous 12 months on the types 
of respirators made available. The training shall include: the care, 
fit, use, and limitations of each type of respirator.
    (c) An operator shall keep a record of the training at the mine 
site for two years after completion of the training. An operator may 
keep the record elsewhere if the record is immediately accessible from 
the mine site by electronic transmission. Upon request from an 
authorized representative of the Secretary, Secretary of HHS, or 
representative of miners, the operator shall promptly provide access to 
any such training records.
    16. Add Sec.  72.701 to subpart E of part 72 to read as follows:


Sec.  72.701  Respiratory equipment; gas, dusts, fumes, or mists.

    Respiratory equipment approved by NIOSH under 42 CFR part 84 shall 
be provided to persons exposed for short periods to inhalation hazards 
from gas, dusts, fumes, or mists. When the exposure is for prolonged 
periods, other measures to protect such persons or to reduce the hazard 
shall be taken.
    17. Add Sec.  72.800 to subpart E of part 72 to read as follows:


Sec.  72.800  Single, full-shift measurement of respirable coal mine 
dust.

    The Secretary may use a single, full-shift measurement of 
respirable coal mine dust to determine average concentration on a shift 
if that measurement accurately represents atmospheric conditions to 
which a miner is exposed during such shift.

PART 75--MANDATORY SAFETY STANDARDS--UNDERGROUND COAL MINES

    18. The authority citation for part 75 is revised to read as 
follows:

    Authority:  30 U.S.C. 811, 813(h), and 957.
    19. Amend Sec.  75.325 by revising paragraph (a)(2) to read as 
follows:


Sec.  75.325  Air quantity.

    (a) * * *
    (2) The quantity of air reaching the working face shall be 
determined at or near the face end of the line curtain, ventilation 
tubing, or other ventilation control device. If the curtain, tubing, or 
device extends beyond the last row of permanent roof supports, the 
quantity of air reaching the working face shall be determined behind 
the line curtain or in the ventilation tubing at or near the last row 
of permanent supports. When machine mounted dust collectors are used in 
conjunction with blowing face ventilation systems, the quantity of air 
reaching the working face shall be determined with the dust collector 
turned off.
* * * * *
    20. Amend Sec.  75.332 by revising paragraph (a)(1) to read as 
follows:


Sec.  75.332  Working sections and working places.

    (a)(1) Each MMU on each working section and each area where 
mechanized mining equipment is being installed or removed, shall be 
ventilated by a separate split of intake air directed by overcasts, 
undercasts or other permanent ventilation controls.
* * * * *
    21. Amend Sec.  75.350 by revising paragraph (b)(3)(i) and (ii) to 
read as follows:


Sec.  75.350  Belt air course ventilation.

* * * * *
    (b) * * *
    (3)(i) The average concentration of respirable dust in the belt air 
course, when used as a section intake air course, shall be maintained 
at or below:
    (A) 1.0 mg/m\3\
    (B) 0.5 mg/m\3\ as of [date 6 months after the effective date of 
the final rule].
    (ii) Where miners on the working section are on a reduced standard 
below that specified in Sec.  75.350(b)(3)(i), the average 
concentration of respirable dust in the belt entry must be at or below 
the lowest applicable standard on that section.
* * * * *
    22. Amend Sec.  75.362 by revising paragraphs (a)(2) and (g)(2) and 
adding paragraphs (g)(3) and (g)(4) to read as follows:


Sec.  75.362  On-shift examinations.

    (a) * * *
    (2) A person designated by the operator shall conduct an 
examination and record the results and the corrective actions taken to 
assure compliance with the respirable dust control parameters specified 
in the approved mine ventilation plan. In those instances when a shift 
change is accomplished without an interruption in production on a 
section, the examination shall be made anytime within 1 hour of the 
shift change. In those instances when there is an interruption in 
production during the shift change, the examination shall be made 
before production begins on a section. Deficiencies in dust controls 
shall be corrected before production begins or resumes. The examination 
shall include: air quantities and velocities; water pressures and flow 
rates; excessive leakage in the water delivery system; water spray 
numbers and orientations; section ventilation and control device 
placement and any other dust suppression measures; specific 
measurements like roof bolter dust collector vacuum levels and scrubber 
air flow rate; and work practices required by the ventilation plan. 
Measurements of the air velocity and quantity, water pressure and flow 
rates are not required if continuous monitoring of these controls is 
used and indicates that the dust controls are functioning properly.
* * * * *
    (g)(2) The certified person directing the on-shift examination to 
assure compliance with the respirable dust control parameters specified 
in the approved mine ventilation plan shall:
    (i) Certify by initials, date, and time on a board maintained at 
the section load-out or similar location showing that the examination 
was made prior to resuming production; and
    (ii) Verify, by initials and date, the record of the results of the 
examination required under paragraph (a)(2) of this section to assure 
compliance with the respirable dust control parameters specified in the 
mine ventilation plan. The verification shall be made no later than the 
end of the shift for which the examination was made.
    (3) The mine foreman or equivalent mine official shall countersign 
each examination record required under paragraph (a)(2) of this section 
after it is verified by the certified person under paragraph (g)(2)(ii) 
of this section, and no later than the end of the mine foreman's or 
equivalent mine official's next regularly scheduled working shift. The 
record shall be made in a secure book that is not susceptible to 
alteration or electronically in a computer system

[[Page 64499]]

so as to be secure and not susceptible to alteration.
    (4) Records shall be retained at a surface location at the mine for 
at least 1 year and shall be made available for inspection by 
authorized representatives of the Secretary and the representative of 
miners.
    23. Amend Sec.  75.371 by revising paragraphs (f), (j) and (t) to 
read as follows:


Sec.  75.371  Mine ventilation plan; contents.

* * * * *
    (f) Section and face ventilation systems used and the minimum 
quantity of air that will be delivered to the working section for each 
mechanized mining unit, including drawings illustrating how each system 
is used, and a description of each different dust suppression system 
used on equipment, identified by make and model, on each working 
section, including:
    (1) The number, types, location, orientation, operating pressure, 
and flow rate of operating water sprays;
    (2) The maximum distance that ventilation control devices will be 
installed from each working face when mining or installing roof bolts 
in entries and crosscuts;
    (3) Procedures for maintaining the roof bolter dust collection 
system in approved condition; and
    (4) Recommended best work practices for equipment operators to 
minimize dust exposure.
* * * * *
    (j) The operating volume of machine mounted dust collectors or 
diffuser fans, if used (see Sec.  75.325(a)(3)), including the type and 
size of dust collector screen used, and a description of the procedures 
to maintain dust collectors used on equipment.
* * * * *
    (t) The locations where samples for ``designated areas'' will be 
collected, including the specific location of each sampling device, and 
the respirable dust control measures used at the dust generating 
sources for these locations (see Sec.  70.209 of this chapter).
* * * * *

PART 90--MANDATORY HEALTH STANDARDS FOR COAL MINERS WHO HAVE 
EVIDENCE OF THE DEVELOPMENT OF PNEUMOCONIOSIS

    24. The authority citation for part 90 is revised to read as 
follows:

    Authority:  30 U.S.C. 811, 813(h) and 957.
    25. Section 90.1 is revised to read as follows:


Sec.  90.1  Scope.

    This part 90 establishes the option of miners who are employed at 
coal mines and who have evidence of the development of pneumoconiosis 
to work in an area of a mine where the average concentration of 
respirable dust in the mine atmosphere during each shift is 
continuously maintained at or below the applicable standard as 
specified in Sec.  90.100. The rule sets forth procedures for miners to 
exercise this option, and establishes the right of miners to retain 
their regular rate of pay and receive wage increases. The rule also 
sets forth the operator's obligations, including respirable dust 
sampling for part 90 miners. This part 90 is promulgated pursuant to 
section 101 of the Act and supersedes section 203(b) of the Federal 
Mine Safety and Health Act of 1977, as amended.
    26. Amend Sec.  90.2 by:
    a. Adding definitions for ``Approved sampling device,'' ``Coal mine 
dust personal sampler unit (CMDPSU),'' ``Continuous personal dust 
monitor (CPDM),'' ``Equivalent concentration,'' ``Representative 
samples,'' ``Weekly accumulated exposure (WAE),'' and ``Weekly 
permissible accumulated exposure (WPAE);'' and
    b. Revising definitions for ``Act,'' ``Mechanized mining unit 
(MMU),'' and ``Part 90 Miner.''
    The additions and revisions are revised to read as follows:


Sec.  90.2  Definitions.

    Act. The Federal Mine Safety and Health Act of 1977, Public Law 91-
173, as amended by Public Law 95-164 and Public Law 109-236.
* * * * *
    Approved sampling device. A sampling device approved by the 
Secretary and Secretary for Health and Human Services (HHS) under part 
74 of this title.
* * * * *
    Coal mine dust personal sampler unit (CMDPSU). A personal sampling 
device approved under part 74, subpart B, of this title.
* * * * *
    Continuous personal dust monitor (CPDM). A personal sampling device 
approved under part 74, subpart C, of this title.
* * * * *
    Equivalent concentration. The concentration of respirable coal mine 
dust expressed in milligrams per cubic meter of air (mg/m\3\), 
determined by dividing the weight of dust in milligrams collected on 
the filter of an approved sampling device by the volume of air in cubic 
meters passing through the collection filter (sampling time in minutes 
times the sampling airflow rate in cubic meters per minute), and then 
converting this concentration to an equivalent 8-hour exposure as 
measured by the Mining Research Establishment (MRE) instrument. When 
the approved sampling device is:
    (1) The CMDPSU, the equivalent concentration is determined by first 
multiplying the concentration of respirable coal mine dust by the MRE 
conversion factor prescribed by the Secretary and then normalizing this 
quantity to an 8-hour exposure measurement by multiplying the MRE-
equivalent concentration by the factor t/480, where t is the sampling 
time in minutes if longer than 8 hours.
    (2) The CPDM, the device shall be programmed to directly report the 
end-of-shift equivalent concentration as an MRE 8-hour equivalent 
concentration.
    (3) Either the CMDPSU or CPDM and the sampled work shift is less 
than 8 hours, the value of t used for normalizing the MRE-equivalent 
concentration to an 8-hour exposure measurement shall be 480 minutes.
    Mechanized mining unit (MMU). A unit of mining equipment including 
hand loading equipment used for the production of material; or a 
specialized unit which uses mining equipment other than specified in 
Sec.  70.207(b) of this chapter. Each MMU is assigned a four-digit 
identification number by MSHA, which is retained by the MMU. However, 
when:
    (1) Two sets of mining equipment are used in a series of working 
places within the same working section and only one production crew is 
employed, the two sets of equipment are identified as a single MMU.
    (2) Two or more sets of mining equipment are used in a series of 
working places within the same working section and two or more 
production crews are employed, each set of mining equipment shall be 
identified as a separate MMU.
* * * * *
    Part 90 miner. A miner employed at a coal mine who has exercised 
the option under the old section 203(b) program, or under Sec.  90.3 of 
this part to work in an area of a mine where the average concentration 
of respirable dust in the mine atmosphere during each shift to which 
that miner is exposed is continuously maintained at or below the 
applicable standard, and who has not waived these rights.
    Quartz. Crystalline silicon dioxide (SiO<INF>2</INF>) as measured 
by:
    (1) MSHA Analytical Method P-7: Infrared Determination of Quartz in 
Respirable Coal Mine Dust; or

[[Page 64500]]

    (2) Any method approved by MSHA as providing a measurement of 
quartz equivalent to that obtained by MSHA Analytical Method P-7.
    Representative samples. Respirable dust samples that reflect 
typical dust concentration levels in the working environment of the 
part 90 miner when performing normal work duties.
* * * * *
    Weekly accumulated exposure (WAE). The total amount of exposure to 
respirable coal mine dust, expressed in mg-hr/m\3\, accumulated by a 
part 90 miner when performing normal work duties during a work week 
(Sunday through Saturday), determined by multiplying the daily 
individual end-of-shift equivalent concentration measurements by 8 
hours, which yields the total amount of exposure accumulated over the 
course of the particular shift sampled, and then adding together all of 
the daily accumulated exposures.
    Weekly permissible accumulated exposure (WPAE). The maximum amount 
of accumulated exposure to respirable coal mine dust, expressed in mg-
hr/m\3\, permitted to be received by a part 90 miner when performing 
normal work duties during a 40-hour work week (Sunday through 
Saturday), determined by multiplying the applicable standard by 40 
hours.
    27. Section 90.3 is revised to read as follows:


Sec.  90.3  Part 90 option; notice of eligibility; exercise of option.

    (a) Any miner employed at a coal mine who, in the judgment of the 
Secretary of HHS, has evidence of the development of pneumoconiosis 
based on a chest X-ray, read and classified in the manner prescribed by 
the Secretary of HHS, or based on other medical examinations shall be 
afforded the option to work in an area of a mine where the average 
concentration of respirable dust in the mine atmosphere during each 
shift to which that miner is exposed is continuously maintained at or 
below the applicable standard. Each of these miners shall be notified 
in writing of eligibility to exercise the option.
    (b) Any miner who is a section 203(b) miner on January 31, 1981, 
shall be a part 90 miner on February 1, 1981, entitled to full rights 
under this part to retention of pay rate, future actual wage increases, 
and future work assignment, shift and respirable dust protection.
    (c) Any part 90 miner who is transferred to a position at the same 
or another coal mine shall remain a part 90 miner entitled to full 
rights under this part at the new work assignment.
    (d) The option to work in a low dust area of the mine may be 
exercised for the first time by any miner employed at a coal mine who 
was eligible for the option under the old section 203(b) program, or is 
eligible for the option under this part by signing and dating the 
Exercise of Option Form and mailing the form to the Chief, Division of 
Health, Coal Mine Safety and Health, MSHA, 1100 Wilson Boulevard, 
Arlington, Virginia 22209.
    (e) The option to work in a low dust area of the mine may be re-
exercised by any miner employed at a coal mine who exercised the option 
under the old section 203(b) program, or exercised the option under 
this part by sending a written request to the Chief, Division of 
Health, Coal Mine Safety and Health, MSHA, 1100 Wilson Boulevard, 
Arlington, Virginia 22209. The request should include the name and 
address of the mine and operator where the miner is employed.
    (f) No operator shall require from a miner a copy of the medical 
information received from the Secretary or Secretary of HHS.
    28. Subpart B is revised to read as follows:

Subpart B--Dust Standards, Rights of Part 90 Miners

Sec.
90.100 Respirable dust standard.
90.101 Respirable dust standard when quartz is present.
90.102 Transfer; notice.
90.103 Compensation.
90.104 Waiver of rights; re-exercise of option.


Sec.  90.100  Respirable dust standard.

    After the 20th calendar day following receipt of notification from 
MSHA that a part 90 miner is employed at the mine, the operator shall 
continuously maintain the average concentration of respirable dust in 
the mine atmosphere during each shift to which the part 90 miner in the 
active workings of the mine is exposed, as measured with an approved 
sampling device and in terms of an equivalent concentration, at or 
below:
    (a) 1.0 milligrams of respirable dust per cubic meter of air (mg/
m\3\).
    (b) 0.5 mg/m\3\ as of [date 6 months after the effective date of 
the final rule].


Sec.  90.101  Respirable dust standard when quartz is present.

    (a) Each operator shall continuously maintain the average 
concentration of respirable quartz dust in the mine atmosphere during 
each shift to which a part 90 miner in the active workings of each mine 
is exposed at or below 0.1 mg/m\3\ (100 micrograms per cubic meter or 
[micro]g/m\3\) as measured with an approved sampling device and in 
terms of an equivalent concentration.
    (b) When the mine atmosphere of the active workings where the part 
90 miner performs his or her normal work duties exceeds 100 [micro]g/
m\3\ of respirable quartz dust, the operator shall continuously 
maintain the average concentration of respirable dust in the mine 
atmosphere during each shift to which a part 90 miner is exposed as 
measured with an approved sampling device and in terms of an equivalent 
concentration at or below the applicable standard. The applicable 
standard is computed by dividing the percent of quartz into the number 
10. The application of this formula shall not result in an applicable 
standard that exceeds the standards specified in 90.100.

    Example: Assume the part 90 miner is on a 0.5-mg/m\3\ dust 
standard. Suppose a valid respirable dust sample with an equivalent 
concentration of 0.5 mg/m\3\ contains 25.6% of quartz dust, which 
corresponds to a quartz concentration of 128 [mu]g/m\3\. Therefore, 
the average concentration of respirable dust in the mine atmosphere 
associated with that part 90 miner shall be maintained on each shift 
at or below 0.4 mg/m\3\ (10/25.6% = 0.4 mg/m\3\).


Sec.  90.102  Transfer; notice.

    (a) Whenever a part 90 miner is transferred in order to meet the 
applicable standard, the operator shall transfer the miner to an 
existing position at the same coal mine on the same shift or shift 
rotation on which the miner was employed immediately before the 
transfer. The operator may transfer a part 90 miner to a different coal 
mine, a newly-created position or a position on a different shift or 
shift rotation if the miner agrees in writing to the transfer. The 
requirements of this paragraph do not apply when the respirable dust 
concentration in a part 90 miner's work position complies with the 
applicable standard but circumstances, such as reductions in workforce 
or changes in operational status, require a change in the miner's job 
or shift assignment.
    (b) On or before the 20th calendar day following receipt of 
notification from MSHA that a part 90 miner is employed at the mine, 
the operator shall give the District Manager written notice of the 
occupation and, if applicable, the MMU unit to which the part 90 miner 
shall be assigned on the 21st calendar day following receipt of the 
notification from MSHA.
    (c) After the 20th calendar day following receipt of notification 
from MSHA that a part 90 miner is employed at the mine, the operator 
shall give the

[[Page 64501]]

District Manager written notice before any transfer of a part 90 miner. 
This notice shall include the scheduled date of the transfer.


Sec.  90.103  Compensation.

    (a) The operator shall compensate each part 90 miner at not less 
than the regular rate of pay received by that miner immediately before 
exercising the option under Sec.  90.3.
    (b) Whenever a part 90 miner is transferred, the operator shall 
compensate the miner at not less than the regular rate of pay received 
by that miner immediately before the transfer.
    (c) Once a miner has been placed in a position in compliance with 
the provisions of part 90, paragraphs (a) and (b) of this section do 
not apply when the part 90 miner initiates and accepts a change in work 
assignment for reasons of job preference.
    (d) The operator shall compensate each miner who is a section 
203(b) miner on January 31, 1981, at not less than the regular rate of 
pay that the miner is required to receive under section 203(b) of the 
Act immediately before the effective date of this part.
    (e) In addition to the compensation required to be paid under 
paragraphs (a), (b) and (d) of this section, the operator shall pay 
each part 90 miner the actual wage increases that accrue to the 
classification to which the miner is assigned.
    (f) If a miner is temporarily employed in an occupation other than 
his or her regular work classification for two months or more before 
exercising the option under Sec.  90.3, the miner's regular rate of pay 
for purposes of paragraph (a) and (b) of this section is the higher of 
the temporary or regular rates of pay. If the temporary assignment is 
for less than two months, the operator may pay the part 90 miner at his 
or her regular work classification rate regardless of the temporary 
wage rate.
    (g) If a part 90 miner is transferred, and the Secretary 
subsequently notifies the miner that notice of the miner's eligibility 
to exercise the part 90 option was incorrect, the operator shall retain 
the affected miner in the current position to which the miner is 
assigned and continue to pay the affected miner the applicable rate of 
pay provided in paragraphs (a), (b), (d) and (e) of this section, 
until:
    (1) The affected miner and operator agree in writing to a position 
with pay at not less than the regular rate of pay for that occupation; 
or
    (2) A position is available at the same coal mine in both the same 
occupation and on the same shift on which the miner was employed 
immediately before exercising the option under Sec.  90.3 or under the 
old section 203(b) program.
    (i) When such a position is available, the operator shall offer the 
available position in writing to the affected miner with pay at not 
less than the regular rate of pay for that occupation.
    (ii) If the affected miner accepts the available position in 
writing, the operator shall implement the miner's reassignment upon 
notice of the miner's acceptance. If the miner does not accept the 
available position in writing, the miner may be reassigned and 
protections under part 90 shall not apply. Failure by the miner to act 
on the written offer of the available position within 15 days after 
notice of the offer is received from the operator shall operate as an 
election not to accept the available position.


Sec.  90.104  Waiver of rights; re-exercise of option.

    (a) A part 90 miner may waive his or her rights and be removed from 
MSHA's active list of miners who have rights under part 90 by:
    (1) Giving written notification to the Chief, Division of Health, 
Coal Mine Safety and Health, MSHA, that the miner waives all rights 
under this part;
    (2) Applying for and accepting a position in an area of a mine 
which the miner knows has an average respirable dust concentration 
exceeding the applicable standard; or
    (3) Refusing to accept another position offered by the operator at 
the same coal mine that meets the requirements of Sec. Sec.  90.100, 
90.101 and 90.102(a) after dust sampling shows that the present 
position exceeds the applicable standard.
    (b) If rights under part 90 are waived, the miner gives up all 
rights under part 90 until the miner re-exercises the option in 
accordance with Sec.  90.3(e) (Part 90 option; notice of eligibility; 
exercise of option).
    (c) If rights under part 90 are waived, the miner may re-exercise 
the option under this part in accordance with Sec.  90.3(e) (Part 90 
option; notice of eligibility; exercise of option) at any time.
    29. Subpart C is revised to read as follows:

Subpart C--Sampling Procedures

Sec.
90.201 Sampling; general and technical requirements.
90.202 Certified person; sampling.
90.203 Certified person; maintenance and calibration.
90.204 Approved sampling devices; maintenance and calibration.
90.205 Approved sampling devices; operation; air flowrate.
90.206 CPDM Performance Plan.
90.207 Exercise of option or transfer sampling.
90.208 Compliance sampling; procedures for sampling with CMDPSUs.
90.209 Compliance sampling; procedures for sampling with CPDMs.
90.210 Respirable dust samples: transmission by operator.
90.211 Respirable dust samples; report to operator.
90.212 Status change reports.


Sec.  90.201  Sampling; general and technical requirements.

    (a) CMDPSUs shall be used to take samples of the concentration of 
respirable coal mine dust in the working environment of each part 90 
miner as required by this part until replaced by CPDMs. After [date 12 
months after the effective date of the final rule], only approved CPDMs 
shall be used to sample part 90 miners unless notified by the 
Secretary.
    (b) If using CMDPSUs, the sampling device shall be worn or carried 
to and from each part 90 miner. If using CPDMs, the sampling device 
shall be worn by the part 90 miner at all times. Approved sampling 
devices shall be operated portal to portal and shall be operational 
during the part 90 miner's entire shift, which includes the time spent 
performing normal work duties and while travelling to and from the 
assigned work location. If the work shift to be sampled is longer than 
12 hours and the sampling device is:
    (1) A CMDPSU, the operator shall switch-out the unit's sampling 
pump prior to the 13th-hour of operation.
    (2) A CPDM, the operator shall switch-out the CPDM with a fully 
charged device prior to the 13th-hour of operation.
    (c) Unless otherwise directed by the District Manager, the 
respirable dust samples required under this part using a CMDPSU shall 
be taken by placing the sampling device as follows:
    (1) On the part 90 miner;
    (2) On the piece of equipment which the part 90 miner operates 
within 36 inches of the normal working position; or
    (3) At a location that represents the maximum concentration of dust 
to which the part 90 miner is exposed.
    (d) If using a CMDPSU, one control filter shall be used for each 
shift of sampling. Each control filter shall:
    (1) Have the same pre-weight date (noted on the dust data card) as 
the filter used for sampling;
    (2) Remain plugged at all times;
    (3) Be exposed to the same time, temperature, and handling 
conditions as the filter used for sampling; and

[[Page 64502]]

    (4) Be kept with the exposed samples after sampling.
    (e) The respirable dust samples required by this part and taken 
with a CMDPSU shall be collected while the part 90 miner is performing 
normal work duties.
    (f) Records showing the length of each shift for each part 90 miner 
shall be made and retained for at least six months, and shall be made 
available for inspection by authorized representatives of the Secretary 
and submitted to the District Manager when requested in writing.
    (g) Upon request from the District Manager, the operator shall 
submit the date and time any respirable dust sampling required by this 
part will begin. This information shall be submitted at least 48 hours 
prior to scheduled sampling.
    (h) Operators using CPDMs shall provide training to all part 90 
miners. The training shall be completed prior to a part 90 miner being 
required to wear the CPDM and then every 12 months thereafter. The 
training shall include:
    (1) Explaining the basic features and capabilities of the CPDM;
    (2) How to set-up the CPDM for compliance sampling;
    (3) A discussion of the various types of information displayed by 
the CPDM and how to access that information;
    (4) How to start and stop a short-term sample run during compliance 
sampling; and
    (5) The importance of continuously monitoring dust concentrations 
and properly wearing the CPDM.
    (i) An operator shall keep a record of the CPDM training at the 
mine site for two years after completion of the training. An operator 
may keep the record elsewhere if the record is immediately accessible 
from the mine site by electronic transmission. Upon request from an 
authorized representative of the Secretary or Secretary of HHS, the 
operator shall promptly provide access to any such training records.


Sec.  90.202  Certified person; sampling.

    (a) The respirable dust sampling required by this part shall be 
performed by a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in sampling procedures. Persons not certified in sampling 
and those certified only in maintenance and calibration procedures in 
accordance with Sec.  90.203(b) are not permitted to collect respirable 
dust samples required by this part or handle approved sampling devices 
when being used in sampling.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in sampling procedures every three 
years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required sampling 
procedures.


Sec.  90.203  Certified person; maintenance and calibration.

    (a) Approved sampling devices shall be maintained and calibrated by 
a certified person.
    (b) To be certified, a person shall complete the applicable MSHA 
course of instruction and pass the MSHA examination demonstrating 
competency in maintenance and calibration procedures for approved 
sampling devices. If using a CMDPSU, necessary maintenance of the 
sampling head assembly can be performed by persons certified in 
sampling or in maintenance and calibration.
    (c) To maintain certification, a person must pass the MSHA 
examination demonstrating competency in maintenance and calibration 
procedures every three years.
    (d) MSHA may revoke a person's certification for failing to pass 
the MSHA examination or to properly carry out the required maintenance 
and calibration procedures.


Sec.  90.204  Approved sampling devices; maintenance and calibration.

    (a) Approved sampling devices shall be maintained as approved under 
part 74 of this title and calibrated in accordance with MSHA 
Informational Report IR 1240 (1996) ``Calibration and Maintenance 
Procedures for Coal Mine Respirable Dust Samplers'' or in accordance 
with the manufacturer's recommendations if using a CPDM. Only persons 
certified in maintenance and calibration can perform maintenance on the 
pump unit of approved sampling devices.
    (b) Approved sampling devices shall be calibrated at the flowrate 
of 2.0 liters of air per minute (L/min), or at a different flowrate 
recommended by the manufacturer or prescribed by the Secretary or 
Secretary of HHS for the particular device, before they are put into 
service and, thereafter, at time intervals recommended by the 
manufacturer or prescribed by the Secretary or Secretary of HHS.
    (c) If using a CMDPSU, sampling devices shall be examined and 
tested by a person certified in sampling or in maintenance and 
calibration within 3 hours before the start of the shift on which the 
approved sampling devices will be used to collect respirable dust 
samples. This is to assure that the sampling devices are clean and in 
proper working condition. This examination and testing shall include 
the following:
    (1) Examination of all components of the cyclone assembly to assure 
that they are clean and free of dust and dirt. This includes examining 
the interior of the connector barrel (located between the cassette 
assembly and vortex finder), vortex finder, cyclone body and grit pot;
    (2) Examination of the inner surface of the cyclone body to assure 
that it is free of scoring or scratch marks on the inner surface of the 
cyclone where the air flow is directed by the vortex finder into the 
cyclone body;
    (3) Examination of the external hose connecting the pump unit to 
the sampling head assembly to assure that it is clean and free of 
leaks; and
    (4) Examination of the clamping and positioning of the cyclone 
body, vortex finder and cassette to assure that they are rigid, in 
alignment, firmly in contact and airtight.
    (5) Testing the voltage of each battery while under actual load to 
assure the battery is fully charged. This requires that a fully 
assembled and examined sampling head assembly be attached to the pump 
inlet with the pump unit running when the voltage check is made. The 
voltage for nickel cadmium cell batteries shall not be lower than the 
product of the number of cells in the battery multiplied by 1.25. The 
voltage for other than nickel cadmium cell batteries shall not be lower 
than the product of the number of cells in the battery multiplied by 
the manufacturer's nominal voltage per cell value.
    (d) If using a CPDM, the certified person in sampling or in 
maintenance and calibration shall follow the examination, testing and 
set-up procedures contained in the approved CPDM Performance Plan.
    (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, 1100 
Wilson Blvd., Room 2424, Arlington, Virginia 22209-3939 and at each 
MSHA Coal Mine Safety and Health district office. Copies may be 
inspected at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/

[[Page 64503]]

federal--register/code--of--federal--regulations/ibr--locations.html.


Sec.  90.205  Approved sampling devices; operation; air flowrate.

    (a) Approved sampling devices shall be operated at the flowrate of 
2.0 L/min, or at a different flowrate recommended by the manufacturer 
or prescribed by the Secretary or Secretary of HHS.
    (b) Except as provided in paragraph (c) of this section, each 
approved sampling device shall be examined each shift by a person 
certified in sampling during:
    (1) The second hour after being put into operation to assure it is 
in the proper location, operating properly and at the proper flowrate. 
If the proper flowrate is not maintained, necessary adjustments shall 
be made by the certified person. This examination is not required if 
the sampling device is being operated in a breast or chamber of an 
anthracite coal mine where the full box mining method is used.
    (2) The last hour of operation to assure that the sampling device 
is operating properly and at the proper flowrate. If the proper 
flowrate is not maintained, the respirable dust sample shall be 
transmitted to MSHA with a notation by the certified person on the 
back-side of the dust data card stating that the proper flowrate was 
not maintained. Other events occurring during the collection of 
respirable dust samples that may affect the validity of the sample, 
such as dropping of the sampling head assembly onto the mine floor, 
shall be noted on the back-side of the dust data card.
    (c) If using a CPDM, the certified person shall examine the 
sampling device during the shift in accordance with the procedures 
contained in the approved CPDM Performance Plan to assure sampling 
devices are operating properly.


Sec.  90.206  CPDM Performance Plan.

    (a) If using a CPDM, the operator shall have a CPDM Performance 
Plan approved by the District Manager to ensure that no part 90 miner 
is exposed to concentrations of respirable coal mine dust in excess of 
the applicable standard when performing normal work duties. An operator 
shall not implement a proposed CPDM Performance Plan until approved by 
the District Manager.
    (b) The proposed CPDM Performance Plan and any proposed revision to 
the plan shall be submitted in writing to the District Manager, and 
shall be reviewed and approved in accordance with Sec. Sec.  90.300 and 
90.301 of this chapter.
    (c) The approved CPDM Performance Plan shall include the names or 
titles of the responsible mine officials designated by the operator and 
the following information:
    (1) The specific part 90 miner who will be sampled, identified by 
the miner's unique 8-digit MSHA Individual Identification Number 
(MIIN).
    (2) The pre-operational examinations, testing and set-up procedures 
to verify the operational readiness of the sampling device before each 
sampling shift;
    (3) Procedures that address downloading of end-of-shift sampling 
information, and validation and certification of reported results;
    (4) Procedures for weekly transmittals of certified sampling data 
files electronically to MSHA;
    (5) The routine daily and other required scheduled maintenance 
procedures;
    (6) Procedures or methods for verifying the calibration of each 
CPDM; and
    (7) The frequency with which dust concentrations being reported by 
the CPDM shall be monitored by the designated mine official during the 
shift;
    (8) The types of actions permitted to be taken during the shift to 
ensure the environment of the occupation being sampled remains in 
compliance at the end of the shift.
    (9) Any other information required by the District Manager.
    (d) A copy of the approved CPDM Performance Plan and any revisions 
pertaining to a part 90 miner shall be provided to the affected part 90 
miner. The operator shall not post a copy of the plan or any revisions 
on the mine bulletin board.
    (e) The District Manager may require an approved CPDM Performance 
Plan to be revised if the District Manager determines that the plan is 
inadequate to protect the part 90 miner from exposure to concentrations 
of respirable dust in excess of the applicable standard.


Sec.  90.207  Exercise of option or transfer sampling.

    (a) The operator shall take five valid respirable dust samples for 
each part 90 miner within 15 calendar days after:
    (1) The 20-day period specified for each part 90 miner in Sec.  
90.100;
    (2) Receipt of notification from MSHA that any respirable dust 
sample taken in accordance with Sec.  90.208 exceeds the applicable 
standard.
    (3) Implementing any transfer after the 20th calendar day following 
receipt of notification from MSHA that a part 90 miner is employed at 
the mine.


Sec.  90.208  Compliance sampling; procedures for sampling with 
CMDPSUs.

    (a) Each operator shall take five valid representative samples 
every calendar quarter from the environment of the part 90 miner while 
performing normal work duties. Part 90 miner samples shall be collected 
on consecutive work days. The quarterly periods are:

January 1-March 31
April 1-June 30
July 1-September 30
October 1-December 31

    (b) When the respirable dust standard is changed in accordance with 
Sec.  90.101, the new applicable standard shall become effective on the 
first shift on which the part 90 miner is performing normal work duties 
following receipt of notification of such change from MSHA.
    (1) If all samples from the most recent quarterly sampling period 
do not exceed the new applicable standard, respirable dust sampling of 
the part 90 miner shall begin on the first shift on which the miner is 
performing normal work duties during the next quarterly period 
following notification of such change.
    (2) If any sample from the most recent quarterly sampling period 
exceeds the new applicable standard, the operator shall make necessary 
adjustments to the dust control parameters within three days and then 
collect samples from the affected part 90 miner on consecutive work 
days until five valid representative samples are collected. The samples 
collected will be treated as normal quarterly samples under this part.
    (c) No valid single-shift equivalent concentration shall meet or 
exceed the excessive concentration value (ECV) that corresponds to the 
applicable standard in Table 90-1.
    (d) Upon issuance of a citation for a violation of the applicable 
standard, paragraphs (a) and (b)(2) of this section shall not apply to 
that part 90 miner until the violation is abated in accordance with 
paragraph (e) of this section.
    (e) During the time for abatement fixed in a citation for violation 
of the applicable standard, the operator shall take the following 
actions:
    (1) Make approved respiratory equipment available to the affected 
part 90 miner in accordance with Sec.  72.700 of this chapter;
    (2) Submit to the District Manager for approval proposed corrective 
actions to lower the concentration of respirable dust to within the 
applicable standard. If the corrective action involves:
    (i) Reducing the respirable dust levels in the work environment of 
the part 90

[[Page 64504]]

miner identified in the citation, the operator shall implement the 
proposed corrective actions following receipt of approval by the 
District Manager and then sample the affected miner until five valid 
representative samples are taken.
    (ii) Transferring the part 90 miner to another work position at the 
mine to meet the applicable standard, the operator shall comply with 
Sec.  90.102 and then sample the affected miner in accordance with 
Sec.  90.207(a).
    (f) A citation for violation of the applicable standard shall be 
terminated by MSHA when the equivalent concentration of each of the 
five valid operator abatement samples is at or below the applicable 
standard and, within 15 calendar days after receipt of sampling results 
from MSHA indicating the concentration has been reduced to or below the 
applicable standard, the operator has submitted to the District Manager 
for approval a proposed dust control plan for that part 90 miner or 
proposed changes to the approved dust control plan as prescribed in 
Sec.  90.300. The revised parameters shall reflect the control measures 
used to maintain the concentration of respirable dust to or below the 
applicable standard.
    (g) When the equivalent concentration of one or more valid samples 
collected by the operator under this section exceeds the applicable 
standard but is less than the applicable ECV in Table 90-1, the 
operator shall:
    (1) Make approved respiratory equipment available to the affected 
part 90 miner in accordance with Sec.  72.700 of this chapter;
    (2) Take corrective action to lower the concentration of respirable 
dust to or below the applicable standard.
    (3) Record the corrective actions taken in the same manner as the 
records for hazardous conditions required by Sec.  75.363 of this 
chapter.

 Table 90-1--Excessive Concentration Values (ECV) Based on Single-Shift
              CMDPSU Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                                ECV (mg/
                Applicable standard (mg/m\3\)                    m\3\)
------------------------------------------------------------------------
1.0..........................................................       1.26
0.9..........................................................       1.16
0.8..........................................................       1.05
0.7..........................................................       0.95
0.6..........................................................       0.85
0.5..........................................................       0.74
0.4..........................................................       0.65
0.3..........................................................       0.54
0.2..........................................................       0.44
------------------------------------------------------------------------

Sec.  90.209  Compliance sampling; procedures for sampling with CPDMs.

    (a) Each operator shall sample the working environment of the part 
90 miner during each shift, seven days per week (Sunday through 
Saturday), if applicable, 52 weeks per year.
    (b) When the respirable dust standard is changed in accordance with 
Sec.  90.101, the new applicable standard shall become effective on the 
first shift on which the part 90 miner is performing normal work duties 
following receipt of notification of such change from MSHA.
    (c) No valid end-of-shift equivalent concentration shall meet or 
exceed the excessive concentration value (ECV) that corresponds to the 
applicable standard in Table 90-2.
    (d) No weekly accumulated exposure shall exceed the weekly 
permissible accumulated exposure.
    (e) When a valid end-of-shift equivalent concentration meets or 
exceeds the applicable ECV or a weekly accumulated exposure exceeds the 
weekly permissible accumulated exposure, the operator shall take the 
following actions before the part 90 miner's next work shift:
    (1) Make approved respiratory equipment available to affected part 
90 miners in accordance with Sec.  72.700 of this chapter;
    (2) Implement corrective actions to assure compliance with the 
applicable standard on the next and other subsequent work shifts;
    (3) If the corrective actions implemented to lower the 
concentration of respirable dust to within the applicable standard 
involve implementation of dust control measures, the operator shall 
submit to the District Manager for approval, within 3 days of 
determining that the applicable standard has been exceeded, the 
corrective actions as a proposed dust control plan for the part 90 
miner or proposed changes to the approved part 90 dust control plan as 
prescribed in Sec.  90.300;
    (4) Review the adequacy of the approved CPDM Performance Plan 
applicable to the part 90 miner. The operator shall submit any plan 
revisions to the District Manager for approval within 7 calendar days 
after the operator provides the end-of-shift equivalent concentration 
or the weekly accumulated exposure to the affected part 90 miner; and
    (5) Record the reported excessive dust condition as part of and in 
the same manner as the records for hazardous conditions required by 
Sec.  75.363 of this chapter. The record shall include:
    (i) Dates of sampling;
    (ii) Lengths of sampled shifts;
    (iii) Locations within the mine and the occupation where samples 
were collected;
    (iv) The end-of-shift equivalent concentration or weekly 
accumulated exposure and the weekly permissible accumulated exposure; 
and
    (v) Corrective actions taken to reduce the concentration of 
respirable coal mine dust to or below the applicable standard.
    (6) If the corrective action involves transferring the part 90 
miner to another position at the mine to meet the applicable standard, 
the operator shall comply with Sec.  90.102(c) and then sample the 
affected miner in accordance with Sec.  90.207(a).
    (f) When any valid end-of-shift equivalent concentration exceeds 
the applicable standard but is less than the applicable ECV in Table 
90-2, the operator shall take the following actions:
    (1) Make approved respiratory equipment available to affected part 
90 miners in accordance with Sec.  72.700 of this chapter;
    (2) Implement corrective actions to assure compliance with the 
applicable standard on the next and other subsequent work shifts; and
    (3) Record the reported excessive dust condition as part of and in 
the same manner as the records for hazardous conditions required by 
Sec.  75.363 of this chapter. The record shall include:
    (i) Date of sampling;
    (ii) Length of the sampled shift;
    (iii) Location within the mine and the occupation where the sample 
was collected;
    (iv) The end-of-shift equivalent concentration; and
    (v) Corrective action taken to reduce the concentration of 
respirable coal mine dust to or below the applicable standard; and
    (4) Review the adequacy of the approved CPDM Performance Plan 
applicable to part 90 miners. The operator shall submit any plan 
revisions to the District Manager for approval within 7 calendar days 
after the operator provides the end-of-shift equivalent concentration 
to the affected part 90 miner.

 Table 90-2--Excessive Concentration Values (ECV) Based on Single-Shift
               CPDM Equivalent Concentration Measurements
------------------------------------------------------------------------
                                                                ECV (mg/
                Applicable standard (mg/m\3\)                    m\3\)
------------------------------------------------------------------------
1.0..........................................................       1.13
0.9..........................................................       1.02
0.8..........................................................       0.91

[[Page 64505]]

 
0.7..........................................................       0.80
0.6..........................................................       0.68
0.5..........................................................       0.57
0.4..........................................................       0.46
0.3..........................................................       0.34
0.2..........................................................       0.23
------------------------------------------------------------------------

Sec.  90.210  Respirable dust samples; transmission by operator.

    (a) If using a CMDPSU, the operator shall transmit within 24 hours 
after the end of the sampling shift all samples collected to fulfill 
the requirements of this part in containers provided by the 
manufacturer of the filter cassette to: Respirable Dust Processing 
Laboratory, Pittsburgh Safety and Health Technology Center, Cochrans 
Mill Road, Building 38, P.O. Box 18179, Pittsburgh, Pennsylvania 15236-
0179, or to any other address designated by the District Manager.
    (b) The operator shall not open or tamper with the seal of any 
filter cassette or alter the weight of any filter cassette before or 
after it is used to fulfill the requirements of this part.
    (c) A person certified in sampling shall properly complete the dust 
data card that is provided by the manufacturer for each filter 
cassette. The card shall have an identification number identical to 
that on the cassette used to take the sample and be submitted to MSHA 
with the sample. Each card shall be signed by the certified person who 
actually performed the required examinations during the sampling shift 
and shall include that person's MSHA Individual Identification Number 
(MIIN). Respirable dust samples with data cards not properly completed 
shall be voided by MSHA.
    (d) All respirable dust samples collected by the operator shall be 
considered taken to fulfill the sampling requirements of part 70, 71 or 
90 of this title, unless the sample has been identified in writing by 
the operator to the District Manager, prior to the intended sampling 
shift, as a sample to be used for purposes other than required by part 
70, 71 or 90 of this title.
    (e) Respirable dust samples received by MSHA in excess of those 
required by this part shall be considered invalid samples.
    (f) If using a CPDM, the designated mine official shall validate, 
certify and transmit electronically to MSHA within 12 hours after the 
end of the last sampling shift of the work week all daily sample and 
error data file information collected during the previous calendar week 
(Sunday through Saturday) and stored in the CPDM. All CPDM data files 
transmitted to MSHA shall be maintained by the operator for at least 12 
months.


Sec.  90.211  Respirable dust samples; report to operator.

    (a) MSHA shall provide the operator a report with the following 
data on respirable dust samples submitted in accordance with this part:
    (1) The mine identification number;
    (2) The locations within the mine from which the samples were 
taken;
    (3) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample;
    (4) The average concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for all 
valid samples;
    (5) The occupation code;
    (6) The reason for voiding any sample; and
    (7) The part 90 miner's MSHA Individual Identification Number 
(MIIN).
    (b) Upon receipt, the operator shall provide a copy of this report 
to the part 90 miner. The operator shall not post the original or a 
copy of this report on the mine bulletin board.
    (c) If using a CPDM, the designated mine official shall validate, 
certify and provide to each part 90 miner:
    (1) Within the first hour of the part 90 miner's next work shift, 
the daily end-of-shift sampling results applicable to that part 90 
miner. The daily report shall include:
    (i) The mine identification number;
    (ii) The location within the mine from which the samples were 
taken;
    (iii) The concentration of respirable dust, expressed as an 
equivalent concentration in milligrams per cubic meter of air, for each 
valid sample;
    (iv) The total amount of exposure accumulated by the part 90 miner;
    (v) The occupation code;
    (vi) The reason for voiding any sample;
    (vii) The part 90 miner's MSHA Individual Identification Number 
(MIIN).
    (viii) The shift length; and
    (ix) Any other information required by the District Manager.
    (2) Within 1 hour after the start of the part 90 miner's next work 
shift of a new work week (Sunday through Saturday), the weekly 
accumulated exposure and the weekly permissible accumulated exposure 
applicable to that part 90 miner.
    (d) The operator shall not post data on respirable dust samples for 
part 90 miners on the mine bulletin board.


Sec.  90.212  Status change reports.

    (a) If there is a change in the status of a part 90 miner (such as 
entering a terminated, injured or ill status, or returning to work), 
the operator shall report the change in the status of the part 90 miner 
to the MSHA District Office or to any other MSHA office designated by 
the District Manager. Status changes shall be reported in writing or by 
electronic means within 3 working days after the status change has 
occurred.
    (b) Status changes affecting the operational readiness of any CPDM 
shall be reported by the designated mine official to the MSHA District 
Office or to any other MSHA office designated by the District Manager 
within 24 hours after the status change has occurred. Status changes 
shall be reported in writing or electronically.
    30. Subpart D is revised to read as follows:

Subpart D--Respirable Dust Control Plans

Sec.
90.300 Respirable dust control plan; filing requirements.
90.301 Respirable dust control plan; approval by District Manager; 
copy to part 90 miner.


Sec.  90.300  Respirable dust control plan; filing requirements.

    (a) As required by Sec.  90.208(f) and Sec.  90.209(e)(3), the 
operator shall submit to the District Manager for approval a written 
respirable dust control plan for the part 90 miner in the position 
identified in the citation. The respirable dust control plan and 
revisions thereof shall be suitable to the conditions and the mining 
system of the coal mine and shall be adequate to continuously maintain 
respirable dust within the applicable standard for that part 90 miner.
    (b) Each respirable dust control plan shall include at least the 
following:
    (1) The mine identification number assigned by MSHA, the operator's 
name, mine name, mine address, and mine telephone number and the name, 
address and telephone number of the principal officer in charge of 
health and safety at the mine;
    (2) The name and MSHA Individual Identification Number of the part 
90 miner and the position at the mine to which the plan applies;

[[Page 64506]]

    (3) A detailed description of the specific respirable dust control 
measures used to continuously maintain concentrations of respirable 
coal mine dust at or below the applicable standard; and
    (4) A detailed description of how each of the respirable dust 
control measures described in response to paragraph (b)(3) of this 
section will continue to be used by the operator, including at least 
the specific time, place and manner the control measures will be used.


Sec.  90.301  Respirable dust control plan; approval by District 
Manager; copy to part 90 miner.

    (a) The District Manager will approve respirable dust control plans 
on a mine-by-mine basis. When approving respirable dust control plans, 
the District Manager shall consider whether:
    (1) The respirable dust control measures would be likely to 
maintain concentrations of respirable coal mine dust at or below the 
applicable standard; and
    (2) The operator's compliance with all provisions of the respirable 
dust control plan could be objectively ascertained by MSHA.
    (b) MSHA may take respirable dust samples to determine whether the 
respirable dust control measures in the operator's plan effectively 
maintain concentrations of respirable coal mine dust at or below the 
applicable standard.
    (c) The operator shall comply with all provisions of each 
respirable dust control plan upon notice from MSHA that the respirable 
dust control plan is approved.
    (d) The operator shall provide a copy of the current respirable 
dust control plan required under this part to the part 90 miner. The 
operator shall not post the original or a copy of the plan on the mine 
bulletin board.
    (e) The operator may review respirable dust control plans and 
submit proposed revisions to such plans to the District Manager for 
approval.

[FR Doc. 2010-25249 Filed 10-14-10; 8:45 am]
BILLING CODE 4510-43-P


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