64412 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

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. 

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: zzMSHAcomments@dol.gov. 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 zzMSHAComments@dol.gov, 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 

Silvey.Patricia@dol.gov (Internet Email), (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 


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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 nonmalignant 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/m3) (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/m3) (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/m3 of air (30 CFR 

§ 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 §§ 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 § 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. 

§ 842(f)). 

Section 202(f) of the Mine Act is taken 

essentially verbatim from § 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 § 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 § 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 


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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 § 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 (§ 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 

(§§ 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 (§ 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 § 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 


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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 precommercial 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: 

• Other limits for the respirable dust 

standard; 

• 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; 

• Shorter and longer implementation 

dates for the proposed exposure limits 

and proposed use of CPDMs; 

• Alternatives to calculating sampling 

of extended work shifts; 

• Different production levels 

associated with the proposed definition 

of ‘‘normal production shift’’; and 

• 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 


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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 fourdigit identification number assigned by 

MSHA. The proposal would be 

consistent with the existing practice of 

identifying DAs and would incorporate 

language from existing § 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/m3), 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 MREequivalent 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 endof-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 § 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/m3

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 MREequivalent 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 m3/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 § 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: 


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Equivalent concentration mg m accumulated dust mg / 3 ( ) = × ( 1 38 . )

×

⎛

⎝

⎜ ⎞

⎠

⎟×

t airflow rate

t

480

where airflow rate = 0.002 m3/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/m3 [1.38 MRE 

conversion factor × 1.5 mg/(540 min × 

0.002 m3/min)]. Under the proposed 

definition, this quantity would be 

multiplied by 540/480, yielding an 

equivalent concentration of 2.16 mg/m3. 

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/m3 (8 hours × 2.0 

mg/m3) as measured by the MRE 

instrument. The proposed definition of 

equivalent concentration would 

continue this same 16 mg-hr/m3 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/m3 or over 9 hours at an 

average of 1.92 mg/m3. In either case, 

the MRE equivalent exposure 

measurement for the sampled shift is 

17.3 mg-hr/m3, which exceeds the 2.0 

mg/m3 standard for an 8-hour shift (i.e., 

16 mg-hr/m3). 

Using an approved gravimetric 

sampler, the standard for respirable 

quartz dust (i.e., 0.1 mg/m3) 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: 

1 38 0 08 720

480

0 115 3

3 . .

/min

× . /

×

× = mg

m mg m720 min 0.002

 min

 min

This is the same value as would be 

obtained if 0.08 mg of quartz dust were 

accumulated on an 8-hour shift. 

1 38 0 08 0 115 3

3 . .

/min

× . /

× = mgm mg m480 min 0.002

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 

§ 70.207(f)(1) and (f)(2) and make 

revisions. Like the existing standard, 

MSHA would assign each MMU a fourdigit 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 § 70.207(e) would be 

redesignated as proposed § 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 


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64418 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

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 ‘‘nondesignated 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 (SiO2) 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 § 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 


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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/m3), 

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/m3 as reported by the CPDM (i.e., 

the average exposure over the shift), by 

8 hours to obtain the total daily 

exposure (concentration × hours = 

exposure, expressed as mg-hr/m3). 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/m3, the following data are obtained: 

Day Shift length 

(hrs) 

End-of-shift equivalent concentration 

reported 

Daily accumulated 

exposure 

Sun ................................................... 10 1.5 mg/m3 ................................................... 12 mg-hr/m3 (1.5 mg/m3 × 8 hrs). 

Mon ................................................... 10 1.5 mg/m3 ................................................... 12 mg-hr/m3. 

Tue .................................................... 10 1.5 mg/m3 ................................................... 12 mg-hr/m3. 

Wed .................................................. 10 1.5 mg/m3 ................................................... 12 mg-hr/m3. 

Thur .................................................. 10 1.5 mg/m3 ................................................... 12 mg-hr/m3. 

WAE .......................................... ........................ ..................................................................... = 60 mg-hr/m3. 

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/m3), 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/m3, the WPAE 

would be 60 mg-hr/m3 (40 hours × 1.5 

mg/m3). 

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/m3 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/m3 of air to 1.0 

mg/m3. 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 phasein 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/m3

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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
64420 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

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/m3 as a timeweighted 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/m3 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/ 

m3, 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 longterm average dust concentrations would 

be below 0.5 mg/m3 if miners’ daily 

exposures were kept below the REL of 

1 mg/m3 (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/m3 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/m3

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/m3 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/ 

m3 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 § 70.207 and in Appendix A of 

the preamble. 

While the proposed 1.0 mg/m3

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 §§ 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/m3, to 0.5 mg/m3 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/m3 to 0.5 mg/m3 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/m3 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. 


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1See equation above. 

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/m3 (100 

μg/m3) 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/m3 (100 μg mg/m3), based on a 

2.0 mg/m3 respirable dust standard. 

One commenter on the CPDM RFI 

stated that controlling respirable dust 

containing silica to the current 2.0 mg/ 

m3 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 μg/ 

mg3. 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 

§ 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 μg, 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

Weight gain

(Flowrate)(Time)(.001) (2.0 liter/min) (48

= 25 μg

0 minutes)(.001 liter/m3 )

× = 1 38 36 . / 3 μg m

(approximately 36 μg/m3) would be well 

below the standard of 100 μg/m3. 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 § 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 

§ 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 


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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 stateof-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, § 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, 


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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 § 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 §§ 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 

§ 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 § 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 


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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 preand 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 postexposure 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 preweighed by the manufacturer and postweighed by MSHA. To ensure the 

precision and accuracy of the preweight 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 § 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 


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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 § 70.203 Certified 

Person; Maintenance and Calibration 

Proposed §§ 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 §§ 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 § 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 

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Proposed § 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 §§ 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 §§ 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 §§ 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 §§ 70.202 and 70.203 would 

delete existing §§ 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 § 70.204 to conform to the 

Agency’s existing policy for the 

CMDPSU. 

Proposed § 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 

§ 70.204(a) would address the use of the 

CPDM and require that operators who 

use this device maintain it in 


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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 § 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 § 70.204(b) would retain the 

existing § 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 § 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 § 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 § 70.204(c) is derived from 

existing § 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 § 70.204(d)(1) through (d)(5) as 

§ 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 § 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 

§ 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 

§ 70.204(e). 

G. Section 70.205 Approved Sampling 

Devices; Operation; Air Flowrate 

Proposed § 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 § 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 § 70.205(b) and (c), which 

would be redesignated as paragraphs 

(b)(1) and (b)(2). Proposed § 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 

§ 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 § 70.205(b)(2) would retain 

the requirement in existing § 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 


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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 § 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 § 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 § 70.206, discussed below. 

H. Section 70.206 CPDM Performance 

Plan 

Proposed § 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 § 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 § 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 § 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 § 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 § 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 


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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 § 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 § 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 § 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. Preoperational 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 preoperational 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 § 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 endof-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 § 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 


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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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 


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proposed provision is consistent with 

other MSHA plan requirements. 

Proposed § 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 § 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 § 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 § 70.208 which would apply 

to operators who use CPDMs. 

Proposed § 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 

§ 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 § 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 § 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 § 70.207(b), redesignated 

from existing § 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 § 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 

§ 70.101. 

Proposed § 70.207(c) is new and 

would require that when the applicable 

dust standard is changed in accordance 

with proposed § 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 

§ 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 § 70.207(c)(1) is derived 

from existing § 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 § 70.207(b) and Agency policy. 

Proposed § 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 

§ 70.207(c)(2) would assure that miners 

who need to be on a reduced standard 

are adequately protected. 

Proposed § 70.207(d) would revise 

existing § 70.207(d) by deleting the 

existing provision requiring that any 

sample greater than 2.5 mg/m3 be used 

when normal production is not 

achieved. In its place, the proposal 

would require that, if any sample 


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exceeds the applicable standard by 0.1 

mg/m3, 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/m3 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/ 

m3. 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 § 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, fullshift measurements is addressed 

elsewhere in this preamble under 

proposed § 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 > 

0.1 mg/m3. 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 § 70.207(c) as § 70.207(f). 

Proposed § 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) ‘‘§ 70.100(a) 

(Respirable dust standards) or § 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 

‘‘§ 70.201(d)’’ with ‘‘paragraph (g).’’ 

The proposed rule would revise and 

redesignate existing § 70.201(d) as 

proposed § 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 § 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 § 70.300. Proposed 

paragraphs (g)(2) and (g)(3) are derived 

from existing § 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 § 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 § 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 § 72.700; (2) take corrective 


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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 § 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 § 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 § 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 § 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 § 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 


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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 § 70.208(c) is new and 

would require that when the respirable 

dust standard is changed in accordance 

with § 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 

§ 70.207(c). The rationale for proposed 

§ 70.208(c) is the same as that for 

proposed § 70.207(c), discussed 

elsewhere in the preamble. 

Proposed § 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 

§ 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 § 70.208(d) is the 

same as that for proposed § 70.207(e), 

which is discussed elsewhere in the 

preamble. 

Proposed § 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 § 70.2 definitions. 

For example, suppose a CPDM reported 

an equivalent concentration of 1.46 mg/ 

m3 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/m3 × 8 

hours or 11.68 mg-hr/m3. 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/m3; Tuesday—12.51 mg-hr/ 

m3; Wednesday—10.75 mg-hr/m3; 

Thursday—9.68 mg-hr/m3; Friday— 

12.00 mg-hr/m3; Saturday—10.75 mghr/m3, adding together the daily 

accumulated exposures yields a WAE of 

67.37 mg-hr/m3. 

To continue, if the applicable 

standard in the MMU is 1.5 mg/m3, this 

quantity would be multiplied by 40 

hours, yielding a WPAE of 60 mg-hr/m3

for the DO. Since the WAE for the DO 

is 67.37 mg-hr/m3, it would exceed the 

WPAE of 60 mg-hr/m3. 

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/m3 as a TWA concentration for 

up to 10 hr/day during a 40-hour work 

week. 

Proposed § 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 § 72.700. The 

proposal is consistent with existing 

§ 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 


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approval process associated with the 

mine ventilation plan under existing 

§ 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 § 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 § 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 § 70.208(g)(1) 

and (g)(2) are identical to proposed 

§ 70.208(f)(1) and (f)(2) and would 

require the operator to make respirators 

available to affected miners and 

implement corrective actions. 

Proposed § 70.208(g)(3), like proposed 

§ 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 § 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-ofshift 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 


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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 § 70.209 is derived from 

existing § 70.208 and would address 

sampling of designated areas (DAs). It 

would revise existing § 70.208 when 

operators use a CMDPSU and add new 

requirements when operators use a 

CPDM. 

Proposed § 70.209 would apply 

initially to all DAs, but according to 

§ 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 § 70.209 

would continue to apply to outby areas 

identified as DAs by the operator under 

proposed § 75.371(t). 

Proposed § 70.209(a) would revise 

existing § 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 § 70.208(c) that five 

additional samples must be collected to 

make a compliance determination. 

Proposed § 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 § 70.209(b), (b)(1), and (b)(2) 

would apply when the respirable dust 

standard has been changed under 

proposed § 70.101 due to the presence 

of quartz. 

Proposed § 70.209(b) is new and 

would require that when the applicable 

dust standard is changed in accordance 

with proposed § 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 § 70.207(c), which is 

discussed elsewhere in the preamble. 

The rationale for proposed § 70.209(b) is 

the same as that for proposed 

§ 70.207(c), discussed elsewhere in the 

preamble. 

Proposed § 70.209(b)(1) is derived 

from existing § 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 

§ 70.209(b)(1) is consistent with Agency 

policy, existing § 70.208(b), and 

proposed § 70.207(c)(1), which is 

discussed elsewhere in the preamble. 

Proposed § 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 

§ 70.209(b)(2) is consistent with 

proposed § 70.207(c)(2). The rationale 

for proposed § 70.209(b)(2) is the same 

as that for proposed § 70.207(c)(2), 

which is discussed elsewhere in the 

preamble. 

Proposed § 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 § 70.209(c) is consistent with 

proposed § 70.207(e), and other 

proposed provisions in parts 71 and 90. 

The rationale for proposed § 70.209(c) is 

the same as that for proposed 

§ 70.207(e), which is discussed 

elsewhere in the preamble. 

Proposed § 70.209(d) would revise 

existing § 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 § 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 § 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 § 70.209(e) is 

consistent with proposed § 70.207(g). 

The rationale for proposed § 70.209(e) is 

identical to that for proposed 

§ 70.207(g), which is discussed 

elsewhere in the preamble. 

Proposed § 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 § 70.209(f) and its 

rationale are identical to proposed 

§ 70.207(h), which is discussed 

elsewhere in the preamble. 

Proposed § 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) 


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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 

§ 70.209(g)(1) and (g)(2) would require 

the operator to make respirators 

available to affected miners and 

implement corrective actions. Proposed 

§ 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 § 75.363. Proposed 

§ 70.209(g)(3)(i)–(g)(3)(v) specify the 

information to include in the record. 

Proposed § 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 endof-shift equivalent concentration on the 

mine bulletin board. Proposed 

§ 70.209(g) and its rationale are identical 

to proposed § 70.208(g), which is 

discussed elsewhere in the preamble. 

The proposed rule would make other 

minor changes to existing § 70.208. 

Existing § 70.208(e) would be deleted 

because § 75.371 addresses where DA 

samples are collected. The proposed 

rule would redesignate without change 

existing § 70.208(f), which addresses 

revocation of operators’ mine 

ventilation plans, as proposed 

§ 70.209(h). 

L. Section 70.210 Respirable Dust 

Samples; Transmission by Operator 

Proposed § 70.210, redesignated from 

existing § 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 personalidentifiable 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 § 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 § 70.211, redesignated from 

existing § 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 § 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 


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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 § 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 § 70.212, redesignated from 

existing § 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 § 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 fourdigit 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 nonsubstantive 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/m3 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/m3 of air to 1.0 

mg/m3. MSHA solicits comment on the 

proposed phase-in periods and requests 

that a detailed rationale accompany any 

comment or recommendation that is 

submitted. 

Proposed § 71.100(a) through (d) are 

identical to proposed § 70.100(a)(1) 

through (a)(4) and the rationale is 


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discussed elsewhere in the preamble 

related to proposed § 70.100(a)(1) 

through (a)(4). 

C. Section 71.101 Respirable Dust 

Standard When Quartz is Present 

Proposed § 71.101 would be identical 

to proposed § 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 § 71.201. 

Proposed paragraph (a) would make a 

nonsubstantive change to existing 

§ 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 

§ 71.201(b) is consistent with proposed 

§ 70.201(e); however, the language in 

proposed § 71.201(b) would be tailored 

to apply to DWPs. The rationale for the 

proposed provision is the same as that 

in proposed § 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 

§ 71.201(b)(1) is the same as proposed 

§ 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 

§ 70.201(e)(2). The rationale for 

proposed § 71.201(b)(1) and (b)(2) is 

discussed elsewhere in the preamble 

related to proposed § 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 § 71.201(c)(1) through (c)(4) 

are identical to proposed § 70.201(f)(1) 

through (f)(4) and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 70.201(f). 

The proposed rule would revise and 

move existing § 71.201(d) to proposed 

§ 71.207(k), which would apply to 

operators who use a CMDPSU or a 

CPDM for sampling DWPs. Proposed 

§ 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 § 71.201(g) is the same as 

proposed § 70.201(j) and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 70.201(j). In 

addition, proposed paragraphs (g)(1)– 

(5), which are identical to proposed 

§ 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 

§ 71.201(h) is the same as proposed 

§ 70.201(k) and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 70.201(k). 

E. Section 71.202 Certified Person; 

Sampling and § 71.203 Certified 

Person; Maintenance and Calibration 

Proposed §§ 71.202 and 71.203 would 

be identical to proposed §§ 70.202 and 

70.203, discussed elsewhere in this 

preamble. 

F. Section 71.204 Approved Sampling 

Devices; Maintenance and Calibration 

Proposed § 71.204 would be identical 

to proposed § 70.204, discussed 

elsewhere in this preamble. 

G. Section 71.205 Approved Sampling 

Devices; Operation; Air Flowrate 

Proposed § 71.205 would be identical 

to proposed § 70.205 with one 

exception. The last sentence of 

proposed §§ 70.205(b)(1) is not included 

in proposed § 71.205 since it applies to 

underground areas of anthracite coal 

mines. The rationale for proposed 

§ 71.205 is the same as that for proposed 

§ 70.205, which is discussed elsewhere 

in the preamble. 

H. Section 71.206 CPDM Performance 

Plan 

Proposed § 71.206 would be identical 

to proposed § 70.206, discussed 

elsewhere in this preamble, with one 

exception. Proposed § 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 


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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 § 71.207 is derived from 

existing § 71.208 and would address 

sampling of designated work positions 

(DWPs) when using a CMDPSU or 

CPDM. 

Proposed § 71.207(a) would revise 

existing § 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 

§ 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 71.207(d), redesignated 

from existing § 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 § 70.205(b)(2) and Agency 

policy. 

Proposed § 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/m3

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/ 

m3, 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 § 70.207(d). The 

rationale for proposed § 71.207(d) is the 

same as for proposed § 70.207(d), which 

is discussed elsewhere in the preamble. 

Proposed § 71.207(e), redesignated 

from existing § 71.208(g), would include 

a minor, nonsubstantive change. 

Proposed § 71.207(f), redesignated 

from existing § 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/m3 and MSHA samples taken for a 

work position at a surface mine show 

respirable dust concentrations of 0.8 

and 1.0 mg/m3. Both samples exceed 

0.75 mg/m3, 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 


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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 § 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/m3, which is 50% of the existing 

standard. 

Proposed § 71.207(f) would also revise 

existing § 71.208(e) and provide that if 

the respirable dust standard is reduced 

in accordance with proposed § 71.101 to 

a level below the respirable dust 

standard under proposed § 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/m3 to 1.2 mg/m3

and one or more MSHA samples for the 

position exceed 1.2 mg/m3, 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 § 71.207(g), redesignated 

from existing § 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 § 71.207(h), (h)(1), and 

(h)(2) would apply when the respirable 

dust standard has been changed under 

proposed § 71.101 due to the presence 

of quartz. 

Proposed § 71.207(h) is new and 

would require that when the applicable 

dust standard is changed in accordance 

with proposed § 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 § 70.207(c), which is 

discussed elsewhere in the preamble. 

Proposed § 71.207(h)(1) is derived 

from existing § 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 § 71.207(h)(1) is also 

consistent with Agency policy and 

proposed § 70.207(c)(1), which is 

discussed elsewhere in the preamble. 

Proposed § 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 § 71.207(h)(2) would afford 

additional protection for miners who 

need to be on a reduced standard. 

Proposed § 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 § 71.207(i) is consistent with 

proposed § 70.207(e), which would 

apply when CMDPSUs are used, and 

§ 70.208(d), which would apply when 

CPDMs are used. The rationale for the 

proposed provision is the same as that 

for proposed §§ 70.207(e) and 70.208(d), 

which are discussed elsewhere in the 

preamble. 

Proposed § 71.207(j), redesignated 

from existing § 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 § 71.201(d) as 

proposed § 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 

§ 72.700. The proposal is consistent 

with existing § 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 § 71.207(k)(1) is 

consistent with proposed § 70.207(g)(1). 

The rationale for proposed 

§ 71.207(k)(1) is the same as that for 

proposed § 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 

§ 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 


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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 § 70.208(f)(4) 

which would apply when operators use 

a CPDM. 

MSHA believes that proposed 

§ 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 § 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 

§ 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 §§ 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 § 71.208(c) as proposed 

§ 71.207(m). Proposed § 71.207(m) 

would remain essentially the same as 

existing § 71.208(c), with minor 

changes. Like the existing standard, 

proposed § 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 § 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 § 71.207(n) is derived from 

existing § 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-ofshift 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 §§ 70.208(g)(4), 70.209(g)(4), 

and 90.209(f)(4). 

J. Section 71.208 Respirable Dust 

Samples; Transmission by Operator 

Proposed § 71.208, redesignated from 

existing § 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 

§ 71.208(c) is similar to proposed 

§ 70.210(c), and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 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 

§ 71.208(f) is similar to proposed 

§ 70.210(f), and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 70.210(f). 

K. Section 71.209 Respirable Dust 

Samples; Report to Operator; Posting 

Proposed § 71.209, redesignated from 

existing § 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 § 71.209 

would include non-substantive changes 

in paragraphs (a)(2) through (a)(4), 

revise paragraph (b), and add a new 


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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 § 71.208(a)). Since proposed 

§ 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 

§ 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 § 71.210, redesignated from 

existing § 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 § 71.210(c) is identical to 

proposed § 70.212(c), and the rationale 

is discussed elsewhere in the preamble 

related to proposed § 70.212(c). 

M. Section 71.300 Respirable Dust 

Control Plan; Filing Requirements 

Proposed § 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 § 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 § 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 § 71.100 (Respirable dust 

standard) or § 71.101 (Respirable dust 

standard when quartz is present)’’ with 

‘‘As required by § 71.207(l).’’ Proposed 

§ 71.207(l) is discussed elsewhere in the 

preamble. Proposed § 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 § 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 § 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 § 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 § 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’ 


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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 § 71.300(a)(4) would require 

that, when requested, the District 

Manager must provide operators with a 

copy of the miners’ representatives’ 

comments. Proposed § 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 § 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 

§ 71.300(b)(3) and (b)(4). 

N. Section 71.301 Respirable Dust 

Control Plan; Approval by District 

Manager and Posting 

Proposed § 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 § 71.301(a)(1) and 71.301(b), 

and proposing to add a new 

§ 71.301(d)(1) through 71.301(d)(3). No 

changes are proposed for existing 

§ 71.301(a)(2), (c), and (e). 

For consistency and clarification, 

proposed § 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 § 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 § 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 § 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 

§ 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 § 71.301(d)(3), derived from 

existing § 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 § 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 xray 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 


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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 NIOSHapproved 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 followup 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 § 72.700 would revise and 

redesignate existing § 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 § 72.700(a) would revise 

and redesignate existing § 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 


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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 § 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 § 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 § 72.700(a) would retain the 

existing requirement under § 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 

§ 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 § 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 § 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 § 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 § 72.700(c) would also 

require operators to provide training 

records to an authorized representative 


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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 § 72.701, redesignated from 

existing § 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 § 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 

§ 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, fullshift 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 fullshift 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 


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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 shortterm 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 ±30 percent of 

the true concentration, compared to ±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 


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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 § 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 machinemounted 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 § 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 § 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 § 75.332 and the proposed 

MMU definition, discussed elsewhere in 

the preamble related to proposed § 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/m3. 

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/m3 to 0.5 

mg/m3 on [date 6 months after the 

effective date of the final rule]. The 

proposed lower limit of 0.5 mg/m3 is 

50% of the proposed 1.0 mg/m3

respirable dust standard in proposed 

§ 70.100(a)(4), and is consistent with 

proposed §§ 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/m3 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/m3. Proposed paragraph (b)(3)(ii) 

would replace ‘‘1.0 mg/m3’’ 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/m3 to 0.5 

mg/m3 after a six-month phase-in 

period. 

D. Section 75.362 On-shift 

Examinations 

Proposed § 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 


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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 § 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 ongoing 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 

§ 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 § 75.362. The 

Committee explained that the results of 

the on-shift examinations were 


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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 § 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 

§ 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 § 75.371(t) would include a 

nonsubstantive change to replace a 

parenthetical reference to existing 

§ 70.208 with proposed § 70.209, 

because § 70.208 has been redesignated 

as § 70.209 in the proposed rule. 

30 CFR Part 90 

A. Section 90.1 Scope 

Proposed § 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 

§ 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/ 

m3 to 0.5 mg/m3, in proposed § 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 § 70.2. 

Part 90 Miner 

The proposed rule would amend the 

existing definition of part 90 miner to 


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state it applies to a miner employed at 

‘‘a coal mine.’’ This proposed revision 

would conform with proposed § 90.3, 

which extends part 90 protections to 

surface miners. Proposed § 90.3 is 

discussed elsewhere in the preamble. 

The proposal would also make a 

conforming change to replace ‘‘1.0 mg/ 

m3’’ with ‘‘the applicable standard.’’ The 

change would reflect that the respirable 

dust standard would change from 1.0 

mg/m3 to 0.5 mg/m3 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 § 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 § 90.1, proposed § 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 § 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/m3

to 0.5 mg/m3 after a six-month phase-in 

period. 

The proposal would make conforming 

changes to proposed § 90.3(d) and (e) to 

extend the part 90 transfer option to 

surface coal miners. 

D. Section 90.100 Respirable Dust 

Standard 

Proposed § 90.100 would reduce the 

respirable dust standard from 1.0 mg/m3

to 0.5 mg/m3 for part 90 miners on [date 

six months after the effective date of the 

final rule]. The proposed lower limit of 

0.5 mg/m3 is 50% of the proposed 1.0 

mg/m3 respirable dust standard in 

proposed § 70.100(a)(4) and 71.100(d), 

and consistent with § 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/m3, 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 

§ 90.101 is identical to proposed 

§ 70.101, discussed elsewhere in this 

preamble, however, the language in 

proposed § 90.101(b) has been tailored 

to apply to part 90 miners. 

F. Section 90.102 Transfer; Notice 

The proposed rule would revise 

existing § 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 § 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 § 90.103(c) is new and 

would provide that the existing 

provisions in §§ 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 


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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 § 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 § 90.103(c) as proposed 

§ 90.103(d); existing § 90.103(d) as 

proposed § 90.103(e); existing 

§ 90.103(e) as proposed § 90.103(f); and 

existing § 90.103(f) as proposed 

§ 90.103(g.) No other changes are 

proposed for these provisions. 

H. Section 90.104 Waiver of Rights; 

Re-exercise of Option 

Proposed § 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 § 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 § 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, § 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 § 90.201(a) is 

consistent with proposed § 70.201(a); 

however, the language in proposed 

§ 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 § 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 

§ 90.201(b) is consistent with proposed 

§ 70.201(e); however, the language in 

proposed § 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 § 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 

§ 90.201(b)(1) is the same as proposed 

§ 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 13thhour of operation. Proposed paragraph 

(b)(2) is the same as proposed 

§ 70.201(e)(2). The rationale for 

proposed § 90.201(b)(1) and (b)(2) is 

discussed elsewhere in the preamble 

related to proposed § 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 § 90.201(d)(1) through (d)(4) 

are identical to proposed § 70.201(f)(1) 

through (f)(4) and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 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 § 90.201(d) to proposed 

§ 90.208(e), which would apply to 

operators who use a CMDPSU for 

sampling the work environment of part 

90 miners. Proposed § 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 § 90.201(h) is the 

same as proposed § 70.201(j) and the 

rationale is discussed elsewhere in the 

preamble related to proposed 

§ 70.201(j). In addition, proposed (h)(1)– 

(5), which are identical to proposed 

§ 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 


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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 § 90.201(i) is 

the same as proposed § 70.201(k), except 

tailored for part 90 miners, and the 

rationale is discussed elsewhere in the 

preamble related to proposed 

§ 70.201(k). 

J. Section 90.202 Certified Person; 

Sampling and § 90.203 Certified 

Person; Maintenance and Calibration 

Proposed §§ 90.202 and 90.203 would 

be identical to proposed §§ 70.202 and 

70.203, discussed elsewhere in this 

preamble. 

K. Section 90.204 Approved Sampling 

Devices; Maintenance and Calibration 

Proposed § 90.204 would be identical 

to proposed § 70.204, discussed 

elsewhere in this preamble. 

L. Section 90.205 Approved Sampling 

Devices; Operation; Air Flowrate 

Proposed § 90.205 would be identical 

to proposed § 70.205, discussed 

elsewhere in this preamble. 

M. Section 90.206 CPDM Performance 

Plan 

Proposed § 90.206 would be identical 

to proposed § 70.206, discussed 

elsewhere in this preamble, with a few 

exceptions. Proposed § 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 §§ 70.206(a)(1)–(a)(2) and 

(a)(4) and 71.206(a)(1)–(a)(2) and (a)(4), 

proposed § 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 § 90.206 

does not include requirements in 

proposed §§ 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 

§§ 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 § 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 § 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 

§ 90.101 (Respirable dust standard when 

quartz is present).’’ This proposed 

revision reflects that the respirable dust 

standard would change from 1.0 mg/m3

to 0.5 mg/m3 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 § 90.208 would revise the 

existing sampling requirements for part 

90 miners. The proposal would change 

the title to distinguish it from proposed 

§ 90.209, which would apply to 

operators who use a CPDM to sample 

part 90 miners. 

Proposed § 90.208(a) would revise 

existing § 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 § 90.2 

related to definitions. The proposed 

change to include representative 

samples would offer greater protection 

for miners. 

Proposed § 90.208(b), (b)(1), and (b)(2) 

would apply when the respirable dust 

standard under § 90.101 has been 

changed due to the presence of quartz. 

Proposed § 90.208(b) is new and would 

require that when the applicable dust 

standard is changed in accordance with 

proposed § 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 § 90.208(b)(1) is derived from 

existing § 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 § 90.208(b), (b)(1), 

and (b)(2) are consistent with proposed 

§ 70.207(c), (c)(1), and (c)(2). The 

rationale for proposed § 90.208(b), 

(b)(1), and (b)(2) is the same as that for 

§ 70.207(c), (c)(1), and (c)(2), which is 

discussed elsewhere in the preamble. 

Proposed § 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 § 90.208(c) is 


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consistent with proposed § 70.207(e). A 

discussion on the proposed use of ECVs 

and rationale is addressed elsewhere in 

the preamble under proposed 

§ 70.207(e). 

The proposed rule would redesignate 

existing § 90.208(c) as proposed 

§ 90.208(d). Proposed § 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 § 90.208(d) is consistent 

with proposed § 70.207(f). The rationale 

is the same as that for proposed 

§ 70.207(f) discussed elsewhere in the 

preamble. The proposal would make 

conforming, nonsubstantive revisions to 

the existing standard. Proposed 

§ 90.208(d) would replace ‘‘§ 90.100 

(Respirable dust standard) or § 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 

‘‘§ 90.201(d)’’ with ‘‘paragraph (e)’’ since 

proposed § 90.208(e) would address the 

operators’ requirements to abate 

violations of the respirable dust 

standard for part 90 miners. 

Proposed § 90.208(e), derived from 

existing § 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 

§ 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 § 90.102 and then sample the 

affected miner in accordance with 

proposed § 90.207(a). Proposed 

§ 90.208(e)(1) and (e)(2)(i) are consistent 

with proposed §§ 70.207(g)(1)–(g)(3) and 

70.209(e)(1)–(e)(3). The rationale for 

proposed § 90.208(e)(1) and (e)(2)(i) is 

identical to that in proposed § 70.207(g), 

which discussed elsewhere in this 

preamble. Proposed § 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 § 90.208(f), derived from 

existing § 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 

§ 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 §§ 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 § 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 § 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 § 75.363. This proposed 

provision and its rationale are identical 

to proposed § 70.207(i). 

P. Section 90.209 Compliance 

Sampling; Procedures for Sampling 

With CPDMs 

Proposed § 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 § 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 § 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 § 90.209(b) would require 

that when the applicable dust standard 

is changed in accordance with proposed 

§ 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 

§ 90.209(b) is identical to proposed 

§ 90.208(b) and consistent with 

proposed §§ 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 § 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 § 90.209(c) is consistent 

with proposed §§ 70.207(e) and 

70.208(d). As discussed elsewhere in 

the preamble under proposed 

§§ 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 § 90.209(c) is the 

same as that in proposed § 70.207(e), 

which is discussed elsewhere in the 

preamble. 


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Proposed § 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 § 90.2 definitions. 

For example, suppose a CPDM reported 

an equivalent concentration of 1.0 mg/ 

m3 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/m3 × 8 hours or 8.00 mg-hr/m3. 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/m3; Tuesday— 

6.32 mg-hr/m3; Wednesday—7.84 mghr/m3; Thursday—6.80 mg-hr/m3; 

Friday—5.69 mg-hr/m3; Saturday—4.16 

mg-hr/m3, adding together the daily 

accumulated exposures yields a WAE of 

38.81 mg-hr/m3. 

To continue, if the applicable 

standard for the part 90 miner is 1 mg/ 

m3, this quantity would be multiplied 

by 40 hours, yielding a WPAE of 40 mghr/m3 for the part 90 miner. Since the 

WAE for the part 90 miner is 38.81 mghr/m3, it would not exceed the WPAE of 

40 mg-hr/m3. 

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/m3 as a TWA 

concentration for up to 10 hr/day during 

a 40-hour work week. Proposed 

§ 90.209(d) and its rationale are 

identical to proposed § 70.208(e), which 

is discussed elsewhere in the preamble. 

Proposed § 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 § 90.209(e) is consistent with 

proposed § 70.208(f); however, the 

language in proposed § 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 

§ 72.700. The proposal is consistent 

with existing § 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 §§ 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 § 90.300 to the District 

Manager for approval within 3 days of 

determining that the applicable 

standard has been exceeded. The 

rationale for proposed § 90.209(e)(3) is 

the same as that in proposed 

§ 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 

§ 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 § 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 § 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 § 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-ofshift 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 § 90.209(e)(5) is the same as 

that for proposed § 70.208(f)(5), which is 

discussed elsewhere in the preamble. 

Proposed paragraph (e)(6) would 

require the operator to comply with 

proposed §§ 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 

§ 90.102(c) notice requirements and 

proposed § 90.207(a) sampling 

requirements. 

Proposed § 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 

§ 90.209(f)(1) through (f)(4), like 

proposed § 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 


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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 § 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 § 90.209(e)(1) and (e)(2) and 

proposed § 70.208(g)(1) and (g)(2). The 

rationale for this part 90 provision is the 

same as that for proposed § 70.208(g)(1) 

and (2), which is discussed elsewhere in 

the preamble. 

Proposed § 90.209(f)(3), like proposed 

§ 90.209(e)(5) and proposed 

§ 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 § 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 

§ 90.209(f)(4) is the same as that for 

proposed § 90.209(e)(4). 

Q. Section 90.210 Respirable Dust 

Samples; Transmission by Operator 

Proposed § 90.210, redesignated from 

existing § 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 

§ 90.210(c) is identical to proposed 

§ 70.210(c), and the rationale is 

discussed elsewhere in the preamble 

related to proposed § 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 § 90.210(f) is 

identical to proposed § 70.210(f), and 

the rationale is discussed elsewhere in 

the preamble related to proposed 

§ 70.210(f). 

R. Section 90.211 Respirable Dust 

Samples; Report to Operator 

Proposed § 90.211, redesignated from 

existing § 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-ofshift 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 

§ 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 


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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 § 90.210(b). 

S. Section 90.212 Status Change 

Reports 

Proposed § 90.212(a), redesignated 

from existing § 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 § 90.300 would address 

requirements for filing a dust control 

plan for a part 90 miner. MSHA is 

proposing to revise § 90.300(a) and 

90.300(b)(2) and (b)(3); no changes are 

proposed for § 90.300(b)(1) or (b)(4). 

Proposed § 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 § 90.300(a). 

MSHA’s rationale for proposing this 

change is the same as for proposed 

§ 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 § 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 

§ 90.100 or § 90.101. Instead proposed 

§ 90.300(a) would require the plan to be 

submitted ‘‘As required by § 90.208(f) 

and § 90.209(e)(3).’’ Both referenced 

sections, § 90.208(f) and § 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 § 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 § 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 § 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 § 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 § 90.301(a)(1) and 

(b) would be identical to proposed 

§ 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, 


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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, subbituminous 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 (μm) in 

diameter (note: 1 μm = [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 μm in 

diameter but most respirable particles 

(68 FR 10784) are approximately 1–2 μm 

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, hairlike 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 a1-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 (FeS2), a 

common iron compound found in some 


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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., scarproducing) 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

Study Population studied Exposure measure 

Reported effects 

LLF RS CB A COPD E CWP PMF NMRD 

Althouse et al., 1998* U.S. ....................... Tenure .................. .......... .......... .......... .......... .......... .......... √ √ ..........

Altin et al., 2004 .......... Turkey ................... Tenure .................. .......... √ .......... .......... .......... .......... √ .......... ..........

Antao et al., 2005* ...... U.S. ....................... N/A ........................ .......... .......... .......... .......... .......... .......... √ √ ..........

Antao et al., 2006 ....... U.S. ....................... Tenure & Job ........ √ √ √ .......... .......... .......... √ √ ..........

Attfield et al., 2004 ...... U.S. ....................... N/A ........................ .......... .......... .......... .......... .......... .......... √ .......... ..........

Attfield et al., 2007+ .... Various ................. N/A ........................ √ .......... √ .......... √ √ √ √ ..........

Attfield and Petsonk, 

2007*.

U.S. ....................... Tenure .................. .......... .......... .......... .......... .......... .......... √ √ ..........

Attfield and Kuempel, 

2008*.

U.S. ....................... Region & CDE ...... .......... .......... √ .......... .......... √ √ √ √ 

Attfield et al., 2009* .... U.S. ....................... # Miners/Region & 

Tenure.

.......... .......... .......... .......... .......... .......... √ .......... ..........

Beeckman et al., 2001* U.S. ....................... N/A ........................ √ √ √ √ √ √ .......... .......... ..........

Bourgkard et al., 1998 France .................. CDE ...................... √ √ √ .......... .......... .......... √ .......... ..........

Coggon and NewmanTaylor, 1998+.Review .................. ............................... √ √ √ .......... √ √ √ .......... ..........

Cohen et al., 2008+ .... U.S. ....................... N/A ........................ √ .......... √ .......... √ √ √ √ ..........

Cowie et al., 1999 ....... Britain ................... CDE ...................... √ √ √ .......... .......... .......... .......... .......... ..........

Green et al., 1998a* ... U.S. ....................... Tenure .................. .......... .......... .......... .......... .......... √ √ √ ..........

Green et al., 1998b* ... U.S. ....................... Tenure .................. .......... .......... .......... .......... .......... √ √ √ ..........

Henneberger and 

Attfield, 1997*.

U.S. ....................... CDE ...................... √ √ √ .......... .......... .......... .......... .......... ..........

Hurley et al., 2002 ...... Britain ................... CDE (N/A) ............ .......... √ √ .......... .......... .......... √ √ ..........

Kuempel et al., 1997* U.S. ....................... RDC & CDE & 

Tenure.

√ .......... .......... .......... √ √ √ √ ..........

Kuempel et al., 2009a* U.S. ....................... CDE ...................... √ .......... .......... .......... .......... √ .......... .......... ..........

Kuempel et al., 2009b* U.S. ....................... CDE & Tenure ...... .......... .......... .......... .......... .......... √ √ √ ..........

Lin et al., 2001 ............ Taiwan .................. Tenure .................. √ √ √ .......... √ .......... √ .......... ..........

Love et al., 1997 ......... Britain ................... RDC ...................... √ .......... √ √ .......... .......... √ .......... ..........

MacCalman and Miller, 

2009.

Britain ................... Tenure .................. .......... .......... √ .......... √ √ √ √ √ 

Meijers et al., 1997 ..... Dutch .................... Tenure .................. √ √ .......... .......... √ .......... √ √ √ 

Miller et al., 1997 ........ Britain ................... CDE ...................... .......... .......... √ .......... .......... .......... √ √ ..........

Miller et al., 2007 ........ Britain ................... CDE ...................... .......... .......... √ .......... √ √ √ √ √ 

Naidoo et al., 2004 ..... S. Africa ................ CDE ...................... √ √ √ .......... .......... .......... √ .......... ..........

Naidoo et al., 2005 ..... S. Africa ................ CDE ...................... √ 

Naidoo et al., 2006 ..... S. Africa ................ CDE ...................... √ √ √ .......... .......... .......... .......... .......... ..........

Page and Organiscak, 

2000.

U.S. ....................... N/A ........................ .......... .......... .......... .......... .......... .......... √ √ ..........

Peng et al., 2005 [abstract].China .................... RDC ...................... √ .......... .......... .......... .......... .......... .......... .......... ..........

Pon et al., 2003* ......... U.S. ....................... Tenure .................. .......... .......... .......... .......... .......... .......... √ √ ..........

Ross and Murray, 

2004+.

Various ................. N/A ........................ √ √ √ .......... .......... √ √ .......... ..........

Scarsbrick and Quinlan, 2002.Britain ................... N/A ........................ .......... .......... .......... .......... .......... .......... √ .......... ..........


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TABLE V–1—RESPIRABLE COAL MINE DUST EPIDEMIOLOGICAL STUDIES, REPORTED EFFECTS FROM 1997 TO PRESENT— 

Continued 

Study Population studied Exposure measure 

Reported effects 

LLF RS CB A COPD E CWP PMF NMRD 

Smith and Leggat, 

2006.

Australia ................ N/A ........................ .......... .......... .......... .......... .......... .......... √ .......... ..........

Soutar et al., 2004+ .... Britain ................... RDC & CDE ......... √ .......... .......... .......... .......... .......... √ √ ..........

Wang et al., 1997 ....... China .................... Tenure .................. √ .......... .......... .......... .......... √ .......... .......... ..........

Wang et al., 2005 ....... China .................... T & RDC ............... √ .......... .......... .......... .......... .......... .......... .......... ..........

Wang et al., 2007 ....... China .................... RDC ...................... √ √ √ .......... .......... .......... .......... .......... ..........

Wang ML et al., 1999 U.S. ....................... Tenure .................. √ .......... .......... .......... .......... .......... .......... .......... ..........

Wang X et al., 1999 .... China .................... Tenure .................. √ √ √ .......... .......... √ √ .......... ..........

Yeoh and Yang, 2002 Taiwan .................. Tenure .................. √ .......... .......... .......... √ .......... .......... √ ..........

* 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 dustrelated 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— 

• The Coal Workers’ X-ray 

Surveillance Program (CWXSP), 

• The Miners’ Choice Program (MCP), 

and 

• 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/ 

m3 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 


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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 healthbased 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 noncontract 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 


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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 followup. 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: 

• 77% macules; 

• 39% nodules (macules develop into 

nodules); 

• 23% silicosis; 

• 8% progressive massive fibrosis 

(PMF); and 

• 80% emphysema. 

The prevalence of all types of lesions 

has declined over the years. At the 

beginning of the autopsy survey in the 


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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/m3

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/m3. 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 


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measured with a spirometer. The 

specific parameter is the Forced 

Expiratory Volume in one second 

(FEV1). 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 

FEV1 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/m3. The FEV1 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 FEV1 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 FEV1. 

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 FEV1 of current miners 

declined by 1.1 ml/mg-year/m3 and for 

former miners, at 2.2 ml/mg-year/m3. 

This study found that 2.7% of current 

miners and 5.7% of former miners had 

FEV1 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 FEV1 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 FEV1 and 

breathlessness and then between FEV1

and cumulative exposure to dust among 

relevant other factors (age, height, and 

smoking). The decline in FEV1 due to 

dust was estimated to be between 0.5 

and 0.6 ml per gram-hour/m3. (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 xrays, performed pulmonary function 

tests (FEV1, FVC, and DLCO), and 

assessed their smoking habits. DLCO

(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 FEV1/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 exposureresponse 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 


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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 FEV1) 

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 FEV1 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 FEV1

and a miner with reduced FEV1 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 FEV1 and symptoms of bronchitis 

among newly hired Chinese miners 

exposed to high levels of respirable dust 

(average 8.9 mg/m3). 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 

FEV1 (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 

FEV1 in miners exposed to coal mine 

dust is 0.76 ml/gram-hour/m3. (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/m3 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/m3 dust 

exposure. The authors also estimated 

the prevalence of chronic bronchitis at 

age 58 would be 4.0% per 100 gramhour/m3 of dust exposure. These miners 

averaged over 35 years of tenure in 

mining and a cumulative dust exposure 

of 132 gram-hour/m3 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 longterm health effects associated with rapid 

decline in FEV1. They selected cases 

with accelerated loss in FEV1 and 

compared them to miners matched on 

age, height, smoking habits and initial 

FEV1. (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 packyears of smoking. 

Compared to miners who did not have 

accelerated decline in FEV1, smoking 

and nonsmoking miners who 

experienced accelerated declines in 

FEV1 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 FEV1

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 


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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 FEV1. 

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, 

FEV1 less than 80% and FEV1 less than 

65% of predicted normal values. The 

cohort average cumulative coal dust 

exposure was 87 mg-year/m3 and the 

cohort average cigarette smoking was 42 

pack-years. Study results indicate that 

the odds ratio of developing emphysema 

associated with FEV1 less than 80% was 

2.30 (95% CL: 1.46–3.64) at the cohort 

average cumulative coal dust exposure 

of 87 mg/m3·yr and 1.95 (1.39–2.79) at 

the cohort average smoking level. For 

emphysema associated with FEV1 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 FEV1 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 clinicallyrelevant 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 nonminers 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 nonminer 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 FEV1 and 

FEV1/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 FEV1/ 

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, fullshift 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/m3. 

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/m3)) through 

medium (20.11–72.77 mg-yr/m3) to high 


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(72.78 to 258.70 mg-yr/m3) levels. 

Miners diagnosed with an average CWP 

profusion of greater than 1/0 had 

significantly more cumulative dust 

exposure of 115 mg.years/m3 as 

compared to miners without CWP who 

had dust exposure of 57.72 mg-yr/m3. 

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 FEV1.

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 (FEV1), 

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 clinicallyimportant deficit in pulmonary function 

was associated, on average, with a 0.993 

liter FEV1 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 FEV1 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/m3. 

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 


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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/m3. 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 nonwhite 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
64470 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 64471 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 

DERIVATION TABLE—Continued 

Proposed section Existing section 

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 


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DISTRIBUTION TABLE

Existing section Proposed section 

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 

DISTRIBUTION TABLE

Existing section Proposed section 

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) 

DISTRIBUTION TABLE

Existing section Proposed section 

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 


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DISTRIBUTION TABLE

Existing section Proposed section 

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/m3 for most miners 

(0.5 mg/m3 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/m3 to 1.0 mg/m3 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 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
64474 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

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/m3 to 1.0 mg/m3 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/m3 to 1.0 mg/m3 and basing determinations of noncompliance on single samples] 

CWP 1+ CWP 2+ PMF Severe 

emphysema 

Deaths from 

NMRD 

Number of Cases Prevented Over a 45-Year Work Life .... 1,301 985 641 556 106 

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/m3 to 1.0 mg/m3, two changes to the sampling strategy and the revised definition of normal production shift] 

CWP 1+ CWP 2+ PMF Severe 

emphysema 

Deaths from 

NMRD 

Number of Cases Prevented Over a 45-Year Work Life .... 1,606 1,216 791 687 131 

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 lifesaving 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 nonfatal 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 


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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 (nearmonopsony 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] 

CWP 1+ CWP 2+ PMF Severe 

emphysema 

Deaths from 

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 

1Estimate 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. 

• 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. 

• 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] 

Distribution 

assumptions 

7% Discount rate, 

45 years 

2 provisions 4 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/m3 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 


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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] 

Distribution 

assumptions 2 provisions 4 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 


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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 fullshift 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 phasein 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 


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2U.S. DOE, EIA, ‘‘Annual Coal Report 2009,’’ 

Table 28, October 2009. 

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

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. § 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: 

• Evaluate whether the proposed 

collection of information is necessary 

for the proper performance of the 

functions of the agency, including 


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whether the information will have 

practical utility; 

• 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; 

• Enhance the quality, utility, and 

clarity of the information to be 

collected; and 

• 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 § 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/m3

would not, according to Table 70–1, 

indicate noncompliance with sufficient 

confidence to warrant a citation if the 

applicable standard S = 2.0 mg/m3. 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/m3 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/ 

m3, then a valid measurement of 1.65 

mg/m3 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 Xi represent the 

8-hour MRE dust concentration 

measurement obtained from the ith

sample. The quantity being measured is 

the true, single-shift average dust 

concentration at the ith sampling 

location and is denoted by μi. Because 

of potential measurement errors, μi can 

never be known with complete 

certainty. A ‘‘sample,’’ ‘‘measurement,’’ 

or ‘‘observation’’ always refers to an 

instance of Xi rather than μi. 

The overall measurement error 

associated with an individual 

measurement is the difference between 

the measurement (Xi) and the quantity 

being measured (μi). Therefore, this 

error can be represented as 

ei = Xi¥μi. 

Equivalently, any measurement can 

be regarded as the true concentration in 

the atmosphere sampled, with a 

measurement error added on: 

Xi = μi + ei

For two different measurements (X1

and X2), it follows that X1 may differ 

from X2 not only because of the 

combined effects of e1 and e2, but also 

because μ1 differs from μ2. 

The probability distribution of Xi

around μi depends only on the 

probability distribution of ei and should 

not be confused with the statistical 

distribution of μi, which arises from 

spatial and/or temporal variability in 

dust concentration. This variability [i.e., 

among μi 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 μi. 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 (ei) 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 ei 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 eighthour sample. Since the eight-hour 

period can be subdivided into an 

arbitrarily large number of sub-intervals, 

and some fraction of ei is associated 

with each sub-interval, ei can be 

represented as comprising the sum of an 

arbitrarily large number of sub-interval 


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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 

μi, 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 ei is equally likely to be 

positive or negative and, on average, 

equal to zero. 

Therefore, each ei is assumed to be 

normally distributed, with a mean value 

of zero and a degree of variability 

represented by its standard deviation: 

o ́i = ii × CVtotal. 

Since Xi = μi + ei, it follows that for 

a given value of μi, Xi is normally 

distributed with expected value equal to 

μi and standard deviation equal to si. 

CVtotal, is the coefficient of variation in 

measurements corresponding to a given 

value of μi. CVtotal 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 μi ≤ S. Max{μi} denotes the 

maximum dust concentration, among all 

of the sampling locations within an 

MMU. Therefore, if Max{μi} ≤ 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 

H0,) 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 

(H0) is that max{μi} ≤ S. In other areas, 

where only one, full-shift measurement 

is made, the null hypothesis is simply 

that μi ≤ S. 

The test consists of evaluating the 

likelihood of measurements under the 

assumption that H0 is true. Since Xi = 

μi + ei, Xi (or max{Xi} 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 Xi exceeds S, the less likely it is 

that this would be due to measurement 

error alone. If, under H0, this probability 

is less than five percent, then H0 can be 

rejected at a 95-percent confidence level 

and a citation is warranted. For an 

MMU, rejecting H0 (and therefore 

issuing a citation) is equivalent to 

determining that μi > 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: 

CV CV mg m

mg m

total CTV

i

£ = ×

⎛

⎝

⎜

⎜

⎞

⎠

⎟

⎟ + +

0 14 100 5 5 3

2

2 2 .

/

% ( %) ( %) / 3

μ

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, 

CVtotal is in fact less than CVECV at all 

dust concentrations (μi). 

The situation in which measurement 

error is most likely to cause an 

erroneous noncompliance 

determination is the hypothetical case 

of μi = 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 H0—the 

standard deviation is identical for all 

measurement errors. Therefore, the 

value of s used in constructing the ECV 

tables is the product of S and CVECV

evaluated for a dust concentration equal 

to S: 

o’ = ⋅ ⎛

⎝

⎜ ⎞

⎠

⎟ S + +

0 14 05 05

2

2 2 . (. ) (. ) S

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·s 

is five percent under H0 when CVtotal = 

CVECV. The tabled ECV corresponding 

to S is derived by raising the critical 

value c up to the next exact multiple of 

0.01 mg/m3. 

For example, at a dust concentration 

(μi) just meeting the applicable dust 

standard of S = 2 mg/m3, CVECV is 9.95 

percent. Therefore, the calculated value 

of c is 2.326 and the ECV is 2.33 mg/ 

m3. 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 μi < 

S for any I. Furthermore, to the extent 

that CVtotal is actually less than CVECV, 

s is actually less than S·CVECV. 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 H0 can be rejected at 

confidence level of at least 95-percent. 

Since rejection of H0 implies that μi > 

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 ei will be 

large enough to force Xi ≥ ECV when μi

≤ S is greater than the probability when 

only a single comparison is made. For 

example (still assuming S = 2 mg/m3), 

if CVtotal is actually 6.6%, then the 

standard deviation of ei is 6.6% of 2.0 

mg/m3, or 0.132 mg/m3, when μi = S. 

Using properties of the normal 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2EP19OC10.003</MATH> EP19OC10.004</MATH>
64484 Federal Register / Vol. 75, No. 201 / Tuesday, October 19, 2010 / Proposed Rules 

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 CVtotal, 

also sometimes called relative standard 

deviation (RSD). CVtotal 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 × CVtotal) 

CVtotal 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 

CVtotal = 7.8 percent, the calculated 

value of EF is 1.128. If, for example, the 

sampled occupation is on a 1.5-mg/m3

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/m3 [1.5 × 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/m3. 

Therefore, the ECV corresponding to the 

applicable standard of 1.5 mg/m3 is 1.70 

mg/m3. 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: 

§ 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 § 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: 

§ 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. 


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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/m3), 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 MREequivalent 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 endof-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 § 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 

(SiO2) 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/m3, accumulated by an 

occupation during a work week (Sunday 

thru Saturday), determined by 

multiplying the daily individual end-ofshift 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/m3, 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. 

§ 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/m3). 

(2) 1.7 mg/m3 as of [date 6 months 

after the effective date of the final rule]. 

(3) 1.5 mg/m3 as of [date 12 months 

after the effective date of the final rule]. 

(4) 1.0 mg/m3 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/m3. 

(2) 0.5 mg/m3 as of [date 6 months 

after the effective date of the final rule]. 

§ 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/m3 (100 micrograms per cubic meter 

or μg/m3) as measured with an approved 

sampling device and in terms of an 

equivalent concentration. 

(b) When the concentration of 

respirable quartz dust exceeds 100 μg/ 

m3, 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 

§ 70.100(a). 

Example: Assume the sampled MMU or DA 

is on a 1.0-mg/m3 dust standard. Suppose a 

valid respirable dust sample with an 

equivalent concentration of 1.0 mg/m3

contains 12.3% of quartz dust, which 

corresponds to a quartz concentration of 123 

μg/m3. 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/ 

m3 (10/12.3% = 0.8 mg/m3). 

5. Subpart C is revised to read as 

follows: 


jlentini on DSKJ8SOYB1PROD with PROPOSALS2
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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. 

§ 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. 

§ 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 

§ 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. 

§ 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. 


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§ 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-byreference. This incorporation-byreference 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. 

§ 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. 

§ 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; 


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(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. 

§ 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 § 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/m3 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 § 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 


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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 § 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 

§ 75.363 of this chapter. 

TABLE 70–1—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CMDPSU EQUIVALENT

CONCENTRATION MEASUREMENTS

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

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 

§ 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 § 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 § 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 § 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 § 72.700 of this 

chapter; 

(2) Implement corrective actions to 

assure compliance with the applicable 

standard on the next and subsequent 

production shifts; 


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(3) Record the reported excessive dust 

condition as part of and in the same 

manner as the records for hazardous 

conditions required by § 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

Applicable Standard 

(mg/m3) 

ECV 

(mg/m3) 

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. 

§ 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 § 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 § 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 § 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 § 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 


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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. 

§ 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. 

§ 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. 

§ 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. 

§§ 70.300 and 70.305 [Redesignated as 

§§ 72.700 and 72.701] 

6. Sections 70.300 and 70.305 are 

redesignated as §§ 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: 


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§ 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: 

§ 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/m3), 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 MREequivalent 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 endof-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 

(SiO2) 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. 

§ 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/m3). 

(b) 1.7 mg/m3 as of [date 6 months 

after the effective date of the final rule]. 

(c) 1.5 mg/m3 as of [date 12 months 

after the effective date of the final rule]. 

(d) 1.0 mg/m3 as of [date 24 months 

after the effective date of the final rule]. 

§ 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/m3 (100 micrograms per cubic meter 

or μg/m3) as measured with an approved 

sampling device and in terms of an 

equivalent concentration. 

(b) When the concentration of 

respirable quartz dust exceeds 100 μg/ 

m3, 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 

§ 71.100(a) of this section. 

Example: Assume the sampled DWP is on 

a 2.0-mg/m3 dust standard. Suppose a valid 

representative dust sample with an 

equivalent concentration of 1.0 mg/ 

m3contains 16.7% of quartz dust, which 

corresponds to a quartz concentration of 167 

μg/m3. 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/ 

m3 (10/16.7% = 0.6 mg/m3). 

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. 


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§ 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 § 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. 

§ 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 

§ 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. 

§ 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. 

§ 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 


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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-byreference. This incorporation-byreference 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. 

§ 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. 

§ 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. 


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§ 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 § 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/m3 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 § 71.101 is below the 

respirable dust standard under § 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 § 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

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

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

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

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 § 72.700 of this 

chapter; 

(2) Submit to the District Manager for 

approval proposed corrective actions to 


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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 § 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. 

§ 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. 

§ 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. 

§ 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. 


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(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. 

§ 71.300 Respirable dust control plan; 

filing requirements. 

(a) As required by § 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. 

§ 71.301 Respirable dust control plan; 

approval by District Manager and posting. 

(a) The District Manager will approve 

respirable dust control plans on a mineby-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 

§ 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 

§ 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 

§ 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 § 72.100(a) 


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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 § 72.100(a). 

15. Add § 72.700 to subpart E of part 

72 to read as follows: 

§ 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 § 72.701 to subpart E of part 

72 to read as follows: 

§ 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 § 72.800 to subpart E of part 

72 to read as follows: 

§ 72.800 Single, full-shift measurement of 

respirable coal mine dust. 

The Secretary may use a single, fullshift 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 § 75.325 by revising 

paragraph (a)(2) to read as follows: 

§ 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 § 75.332 by revising 

paragraph (a)(1) to read as follows: 

§ 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 § 75.350 by revising 

paragraph (b)(3)(i) and (ii) to read as 

follows: 

§ 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/m3

(B) 0.5 mg/m3 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 § 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 § 75.362 by revising 

paragraphs (a)(2) and (g)(2) and adding 

paragraphs (g)(3) and (g)(4) to read as 

follows: 

§ 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 


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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 § 75.371 by revising 

paragraphs (f), (j) and (t) to read as 

follows: 

§ 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 § 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 § 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: 

§ 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 § 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 § 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: 

§ 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/m3), 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 MREequivalent 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 endof-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 § 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 § 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 

(SiO2) as measured by: 

(1) MSHA Analytical Method P–7: 

Infrared Determination of Quartz in 

Respirable Coal Mine Dust; or 


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(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/m3, 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-ofshift 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/m3, 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: 

§ 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. 

§ 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/m3). 

(b) 0.5 mg/m3 as of [date 6 months 

after the effective date of the final rule]. 

§ 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/m3 (100 micrograms per cubic meter 

or μg/m3) 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 μg/m3 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/m3 dust standard. Suppose a valid 

respirable dust sample with an equivalent 

concentration of 0.5 mg/m3 contains 25.6% 

of quartz dust, which corresponds to a quartz 

concentration of 128 μg/m3. 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/m3 (10/25.6% = 0.4 

mg/m3). 

§ 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 


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District Manager written notice before 

any transfer of a part 90 miner. This 

notice shall include the scheduled date 

of the transfer. 

§ 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 § 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 § 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 

§ 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. 

§ 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 §§ 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 § 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 

§ 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. 

§ 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 


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(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. 

§ 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 

§ 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. 

§ 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. 

§ 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-byreference. This incorporation-byreference 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/ 


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federal_register/ 

code_of_federal_regulations/ 

ibr_locations.html. 

§ 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. 

§ 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 

§§ 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. 

§ 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 § 90.100; 

(2) Receipt of notification from MSHA 

that any respirable dust sample taken in 

accordance with § 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. 

§ 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 § 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 § 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 


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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 § 90.102 and 

then sample the affected miner in 

accordance with § 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 § 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 § 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 

§ 75.363 of this chapter. 

TABLE 90–1—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE-SHIFT CMDPSU EQUIVALENT

CONCENTRATION MEASUREMENTS

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

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 

§ 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 § 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 § 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 

§ 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 § 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 § 90.102(c) and then 

sample the affected miner in accordance 

with § 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 § 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 § 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

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

1.0 ................................................. 1.13 

0.9 ................................................. 1.02 

0.8 ................................................. 0.91 


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TABLE 90–2—EXCESSIVE CONCENTRATION VALUES (ECV) BASED ON SINGLE–SHIFT CPDM EQUIVALENT

CONCENTRATION MEASUREMENTS— 

Continued 

Applicable standard 

(mg/m3) 

ECV 

(mg/m3) 

0.7 ................................................. 0.80 

0.6 ................................................. 0.68 

0.5 ................................................. 0.57 

0.4 ................................................. 0.46 

0.3 ................................................. 0.34 

0.2 ................................................. 0.23 

§ 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. 

§ 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 endof-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. 

§ 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. 

§ 90.300 Respirable dust control plan; 

filing requirements. 

(a) As required by § 90.208(f) and 

§ 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; 


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(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. 

§ 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 mineby-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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