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###### Department of Labor

###### Mine Safety and Health Administration

          - 30 CFR Part 74
          - RIN 1219-AB61

# AGENCY:

Mine Safety and Health Administration, Labor.

# ACTION:

Proposed rule; notice of public hearing; re-opening of comment period.

# SUMMARY:

The Mine Safety and Health Administration (MSHA) and the National Institute for Occupational Safety and Health (NIOSH) will hold a public hearing on the proposed rule to revise existing requirements to approve sampling devices that monitor miner exposure to respirable coal mine dust. The proposal would establish criteria for the approval of a new type of technology, the “continuous personal dust monitor” (CPDM), which would be worn by the miner and would report exposure to dust levels continuously during the shift. In addition, the proposal would update application requirements for the existing “coal mine dust personal sampler unit” (CMDPSU) to reflect improvements in this sampler over the past 15 years. This rulemaking is limited to approval requirements and does not address requirements concerning how sampling devices must be used to determine compliance, e.g., who, when, and how often to sample. Those requirements are addressed in existing 30 CFR parts 70, 71, and 90. MSHA is also clarifying its intent that the text in proposed § 74.7(f)(2) be accordance with the specific test defined in IEC 61000-4-6.

# DATES:

All post-hearing comments must be received by midnight Eastern Daylight Saving Time (EDST) on August 14, 2009.

                        MSHA and NIOSH will hold a public hearing on July 8, 2009. The                         **SUPPLEMENTARY INFORMATION**                         section of this notice includes details of the hearing.                    

# ADDRESSES:

Post-hearing comments must be identified with “RIN 1219-AB61” and may be submitted to MSHA by any of the following methods:

                        (1)                         *Federal e-Rulemaking Portal: http://www.regulations.gov.*                         Follow the instructions for submitting comments.                    

                        (2)                         *Electronic mail: zzMSHA-Comments@dol.gov.*                         Include “RIN 1219-AB61” in the subject line of the message.                    

                        (3)                         *Facsimile:*                         202-693-9441. Include “RIN 1219-AB61” 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 22209-3939. Sign in at the receptionist's desk on the 21st floor.                    

                        Post-hearing comments can be accessed electronically at                         *http://www.msha.gov*                         under the “                        *Rules and Regs”*                         link. MSHA will post all comments on the Internet without change, including any personal information provided.                    

Post-hearing 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.

# FOR FURTHER INFORMATION CONTACT:

                        Patricia W. Silvey, at                         *silvey.patricia@dol.gov*                         (e-mail), 202-693-9440 (voice), or 202-693-9441 (facsimile).                    

# SUPPLEMENTARY INFORMATION:

## I. Background 

Existing 30 CFR part 74 specifies requirements by which MSHA and NIOSH jointly approve the design, construction, performance, and manufacturing quality of the CMDPSU. These regulatory requirements, which were issued in 1972, are design specific and do not permit the approval of any other sampling device of a different design. The CMDPSU is currently the only personal dust monitor design that is approved for collecting respirable dust samples in coal mines.

                    MSHA and NIOSH recognize that the ability to directly measure in real time the amount of respirable coal mine dust to which a miner is exposed offers the best solution for protecting miners from disabling occupational lung disease. Therefore, on January 16, 2009, MSHA and NIOSH issued a proposed rule (74 FR 2915) that would revise requirements in 30 CFR part 74 for the approval of coal mine personal dust sampling devices. The proposed rule would establish performance-based and other requirements for approval of the new personal monitoring device, the CPDM. The CPDM is capable of continuously monitoring and displaying dust concentration measurements during the shift and providing end of shift summary measurements. The performance-based approach in the proposed rule would allow for continued innovation in CPDM designs to accommodate improvements or                           ( print page 27264)                        alternative designs in technology that may be introduced in the future.                

## II. Comments Received on the Proposed Rule

### a. Section 74.7(d) 

                    Proposed § 74.7(d) (                    *dust concentration range*) would require that the CPDM provide accurate measurements of respirable coal mine dust concentrations for an end-of-shift average measurement within the range of 10% to two times the permissible exposure limit (PEL) for respirable coal mine dust.                

A commenter asked if the requirement would remain the same, i.e., 10% to two times the reduced PEL, if a dust sample contains more than 5% quartz? The commenter also asked if MSHA reduces the PEL for respirable dust or for quartz dust in the future, would this requirement remain the same, i.e., 10% to two times the new PEL?

###  b. Section 74.7(f) 

                    Proposed § 74.7(f)(2) (                    *electromagnetic interference*) would require that the CPDM meet standards for the control of and protection from electromagnetic interference established by the American National Standards Institute (ANSI), the Federal Communications Commission (FCC), and the International Electrotechnical Commission (IEC). To address immunity and susceptibility, the proposed standard would require that persons must proceed in accordance with IEC 61000-4 and -6 (Electromagnetic compatibility—Part 4-6: Testing and measurement techniques—Immunity to conducted disturbances, induced by radio-frequency fields).                

A commenter stated that as written the standard is confusing as to the depth of testing required. This commenter asked if the intent of the standard was to test against the entire section of 61000-4 through 61000-6, or only sections 61000-4 and 61000-6, or the specific test defined in 61000-4-6?

MSHA inadvertently cited the IEC reference in the proposed standard as IEC 61000-4 and 61000-6. The proposed standard should have been phrased as follows: “persons must proceed in accordance with IEC 61000-4-6 (Electromagnetic compatibility—Part 4-6: Testing and measurement techniques—Immunity to conducted disturbances, induced by radio-frequency fields).” In response to the commenter's question, the Agency is clarifying its intent that the proposed test be in accordance with the specific test defined in IEC 61000-4-6.

### c. Section 74.7(h) 

                    Proposed § 74.7(h)(1) and (2) (                    *reporting of monitoring results*) would require—                
    - Adequate legibility or audibility of monitoring results;
    - Computer (i.e., digital) recording of results in a form compatible with widely available computer technology; and
    - Reporting of results as cumulative mass concentration in units of mass per volume of air, i.e., milligrams per cubic meter (mg/m 3                     ).                

It would also require a digital display that is illuminated and provides a minimum character height of 6 millimeters.

A commenter stated that, except for provisions for the size of characters and end of shift results, there is nothing in this proposed rule that provides for results for shorter time periods (from minutes to hours). This commenter stated that an instrument that provides only the end of shift results would not be acceptable. Additionally, whatever number the instrument displays should not be truncated and, instead, should be rounded as is the customary practice in most other applications. This commenter suggested that the information displayed on the CPDM be the same as described in NIOSH Publication RI 9669.

### d. Section 74.7(i) 

                    Proposed § 74.7(i) (                    *power requirements*) would require that the power source for the CPDM have sufficient capacity to enable continuous sampling for 12 hours in a coal mine dust atmosphere of two times the PEL. It also would require that a CPDM powered by a rechargeable battery be recharged using the standard power supplies in mines (110 VAC).                

A commenter supported the proposed requirement that the CPDM be powered continuously for 12 hours since miners work shifts longer than 8 hours. However, this commenter also suggested that CPDMs be capable of operating for a minimum of 16 hours to accommodate full work shifts, up to 16 hours. This commenter further suggested that, if this is not feasible, it should be required in two years.

### e. Section 74.7(m) 

                    Proposed § 74.7(m) (                    *tampering safeguards or indicators*) would specify performance requirements that would help assure that CPDMs are designed to prevent intentional tampering and limit inadvertent altering of monitoring results. It would require that the CPDM have a safeguard or indicator that either prevents altering the measuring or reporting function of the device or indicates if these functions have been altered.                

A commenter supported the proposed requirement; however, the commenter doubted that such safeguards could prevent tampering altogether. This commenter suggested that MSHA have other methods to prevent and detect tampering and to prosecute those who perpetuate such fraud.

### f.  Section 74.10(a) 

                    Proposed § 74.10(a) (                    *operating instructions and maintenance and service life plan*) is new and would require the manufacturer to include operating instructions and a maintenance and service life plan with each new CPDM sold. Under the proposal, operating instructions would have to be clearly written.                

A commenter suggested that the proposal provide more specific and objective criteria, and that operating instructions be written so that anybody in the industry can, after reading them, operate the CPDM.

## III. Public Hearing 

MSHA and NIOSH will hold a public hearing on the proposed rule. The public hearing will begin at 9 a.m. EDST. The hearing will be held on July 8, 2009, at the Mine Safety and Health Administration, 1100 Wilson Boulevard, 25th Floor Conference Room, Arlington, Virginia.

The hearing will begin with opening statements from MSHA and NIOSH, followed by an opportunity for members of the public to make oral presentations to the hearing panel. Persons and organizations are encouraged to submit requests to speak at the hearing at least 5 days prior to the hearing date. Requests to speak may be made by telephone, facsimile, or mail.

Any unallocated time at the end of the hearing will be made available to persons making same-day requests to speak. Same-day requestors will speak in the order that they sign in at the hearing. Speakers and other attendees may also present information to the MSHA panel for inclusion in the rulemaking record.

                    The hearing will be conducted in an informal manner. Formal rules of evidence and cross-examination will not apply. The hearing panel may ask questions of the speakers. Speakers may ask questions of the hearing panel. MSHA will make a transcript of the hearing, post it on the Internet at                     *http://www.msha.gov,*                     and include it in the rulemaking record.                          ( print page 27265)    

MSHA will accept written post-hearing comments and data for the record from any interested party, including those not presenting oral statements, until midnight EDST on August 14, 2009.

Dated: June 3, 2009.

Michael A. Davis,

Deputy Assistant Secretary for Operations, Mine Safety and Health.

[FR Doc. E9-13585 Filed 6-8-09; 8:45 am]

BILLING CODE 4510-43-P