[Federal Register Volume 74, Number 115 (Wednesday, June 17, 2009)]
[Rules and Regulations]
[Pages 28606-28609]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14128]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 49

RIN 1219-AB66


Mine Rescue Teams

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

ACTION: Final rule.

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SUMMARY: This final rule revises MSHA's existing standards for mine 
rescue teams for underground coal mines. On February 10, 2009, the 
United States Court of Appeals for the District of Columbia Circuit 
(Court) held that MSHA's Mine Rescue Teams rule, issued on February 8, 
2008, is inconsistent with Section 4 of the Mine Improvement and New 
Emergency Response (MINER) Act in three respects. This final rule 
revises those portions of the existing rule in accordance with the 
MINER Act, consistent with the Court's decision.

DATES: Effective Date: June 17, 2009.
    Compliance Dates: Each underground coal mine operator affected by 
the changes in this final rule shall comply with the requirements of 
Sec.  49.50(a), Table 49.50-A, by December 14, 2009, and the 
requirements of Sec.  49.50(a), Table 49.50-B, by June 17, 2010.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
<a href="/cdn-cgi/l/email-protection#97e4fefbe1f2eeb9e7f6e3e5fef4fef6d7f3f8fbb9f0f8e1"><span class="__cf_email__" data-cfemail="95e6fcf9e3f0ecbbe5f4e1e7fcf6fcf4d5f1faf9bbf2fae3">[email protected]</span></a> (Internet e-mail), 202-693-9440 (voice), or 
202-693-9441 (facsimile).

SUPPLEMENTARY INFORMATION:

I. Final Rule

    The Administrative Procedure Act (APA) requires that rulemakings be 
published in the Federal Register and requires generally that agencies 
provide an opportunity for public comment. However, notice and an 
opportunity for public comment are not required when the agency ``for 
good cause finds'' that notice and comment ``are impracticable, 
unnecessary, or contrary to the public interest.'' 5 U.S.C. 553(b)(B).
    The Court stated in its decision that the MINER Act does not allow 
MSHA to exercise any discretion with respect to the issues in the 
Court's order. As a result, MSHA finds that there is ``good cause'' 
under 5 U.S.C. 553(b)(B) of the APA to issue this final rule without 
prior public notice and comment. Further, in accordance with the 
Court's decision, MSHA has determined that there is ``good cause'' to 
except this action from the 30-day delayed effective

[[Page 28607]]

date requirement under 5 U.S.C. 553(d)(3) of the APA. The final rule is 
effective on June 17, 2009.

II. Rulemaking Background

    On February 8, 2008 (73 FR 7636), MSHA published a final rule that 
revised the Agency's existing requirements for mine rescue teams for 
underground coal mines. The final rule implemented Section 4 of the 
MINER Act and established new requirements to improve overall mine 
rescue capability, to improve mine emergency response time and mine 
rescue team effectiveness, and to increase the quantity and quality of 
mine rescue team training.
    On April 4, 2008, the United Mine Workers of America (UMWA) 
challenged the final rule in the U.S. Court of Appeals for the District 
of Columbia Circuit (Court). On February 10, 2009, the Court issued its 
decision and held that MSHA's final rule is inconsistent with the MINER 
Act in three respects. Int'l Union, United Mine Workers of Am. v. Dep't 
of Labor, 554 F.3d 150 (D.C. Cir. 2009). The Court vacated the final 
rule insofar as it allows--
    (1) Mine-site and state-sponsored teams to train at small mines 
annually rather than semi-annually;
    (2) State employees who are members of State-sponsored teams to 
substitute certain job duties for participation in one of the two 
annually required mine rescue contests; and
    (3) State employees who are members of State-sponsored teams to 
participate in mine rescue contests by serving as judges. (Note: The 
Agency's intent with respect to this item is included in the preamble 
to the 2008 final rule, and is not included in the regulatory text.)
    The Court held that the two provisions of the rule, and MSHA's 
conclusion in the preamble with respect to team members serving as 
judges, contradict the plain language of the MINER Act.

III. Analysis

    This final rule revises the existing rule in accordance with the 
MINER Act, consistent with the Court's decision. MSHA has determined 
that 165 mine operators (156 small and 9 large mines) in the State of 
Kentucky will be impacted by the changes in this final rule.
    The final rule revises Sec.  49.11(b) by modifying the table at the 
end of this section to require that mine-site teams and State-sponsored 
teams must participate in mine rescue training at each mine covered by 
the mine rescue team at least annually at large mines and at least 
semi-annually at small mines. The final rule also modifies the note at 
the end of the table by deleting the language allowing members of 
State-sponsored teams to substitute their regular job experience for 50 
percent of the statutorily required mine rescue contests and mine-site 
training.
    For mine-site and State-sponsored mine rescue teams, the final rule 
revises Sec.  49.20(b)(1) and (b)(4) to require mine-site training 
semi-annually, as opposed to at least annually under the existing rule, 
at small mines.
    In addition, under this final rule, team members of State-sponsored 
teams who are full-time state employees whose primary duties include 
(1) inspecting underground mines for compliance with State safety laws 
or (2) training mine rescue teams or (3) other similar duties that 
would enhance their mine rescue knowledge must participate in two mine 
rescue contests annually and train at the covered small mine at least 
semi-annually.
    In the preamble to the February 8, 2008 final rule (73 FR 7643), 
MSHA stated its intent to consider State-sponsored teams, whose members 
are full-time State employees, as participating in a local mine rescue 
contest when performing duties as contest judges or officials. The 
Court found MSHA's conclusion that one can participate in a mine rescue 
contest by judging to be at odds with the statutory language. In this 
final rule, MSHA rescinds the Agency's intent, as stated in the 
preamble to the 2008 final rule. Under this final rule, all members of 
State-sponsored teams who are full-time State employees must 
participate in two local mine rescue contests, regardless of whether 
they also perform duties as a contest judge or official.

IV. Implementation Schedule

    MSHA anticipates that underground coal mine operators in Kentucky 
may experience practical difficulties in meeting the requirements in 
the final rule, if those requirements were effective upon publication. 
Based on Agency experience and data and information from Kentucky 
representatives, MSHA projects that it will take approximately 6 months 
for mines in Kentucky affected by this final rule to establish new 
teams, establish mine rescue stations, and conduct initial training. 
MSHA also projects that it will take one year for these mine rescue 
teams to complete all required training, including mine rescue 
contests. The final rule, therefore, includes a 6-month period for 
operators to establish new teams, establish mine rescue stations, and 
conduct initial training; and a one-year period for teams to complete 
all required training, including mine rescue contests.

V. Regulatory Economic Analysis

    Executive Order (E.O.) 12866 requires that regulatory agencies 
assess both the costs and benefits of regulations. To comply with E.O. 
12866, MSHA prepared a Regulatory Economic Analysis (REA) for the 2008 
final rule. The REA is located on MSHA's Web site at http://www.msha.gov/regsinfo.htm. A copy of the REA can be obtained from 
MSHA's Office of Standards, Regulations, and Variances, 1100 Wilson 
Boulevard, Room 2350, Arlington, Virginia 22209-3939.
    Based on the analysis presented below, MSHA has determined that a 
complete revision of the REA is not necessary for this rulemaking. The 
profile of the underground coal industry, and the anticipated costs and 
benefits of the final rule generally remain unchanged. Although MSHA's 
feasibility determination is generally the same, the Agency has 
determined that this final rule may present some economic and practical 
considerations for underground coal mine operators in Kentucky. These 
considerations, discussed more fully below, will prevent underground 
coal mine operators in the state of Kentucky from relying on State-
sponsored mine rescue teams and require them to establish additional 
composite and contract mine rescue teams.
    MSHA has determined that 165 mine operators (156 small mines and 9 
large mines) in the State of Kentucky will be impacted by the changes 
in this final rule. Kentucky is the only State that employs full-time 
State employees on their State-sponsored mine rescue teams. Kentucky 
currently has 12 State-sponsored mine rescue teams and operates six 
mine rescue stations. Each team member currently trains once per year 
in each covered mine and participates in one mine rescue contest each 
year. In order to meet the requirements of the MINER Act and this final 
rule, each rescue team member would have to participate in an 
additional mine rescue contest each year and train in each covered 
small mine an additional time each year.
    Representatives from Kentucky and the State's mining association 
have indicated that they do not have the resources to have their State 
teams train in the 156 small underground coal mines an additional time 
each year. According to the representatives, the Kentucky mine rescue 
teams cannot train at each covered small mine twice

[[Page 28608]]

each year and perform the required mine inspections and other duties.
    If the Kentucky State-sponsored mine rescue teams do not provide 
mine rescue coverage in accordance with the final rule, the Kentucky 
mine operators will have to find other means of coverage. The 156 small 
mines in Kentucky currently use the State-sponsored mine rescue teams 
for mine rescue coverage. Nine of the 74 large Kentucky mines currently 
have one mine rescue team and use the Kentucky State-sponsored mine 
rescue teams as the second team. Like the existing rule, this final 
rule requires that each mine have two certified mine rescue teams. MSHA 
estimates that these 165 mine operators will establish a combination of 
28 composite and contract teams to meet the requirements of this final 
rule. In addition, MSHA estimates that the mine operators will 
establish four mine rescue stations.
    Based on data presented in the 2008 REA, MSHA estimated an initial 
cost of $141,500 to establish each mine rescue station (see Table IV-3; 
all table numbers refer to the 2008 REA) and additional yearly costs of 
$17,000 per station for land use and equipment maintenance, supplies, 
inspection, testing, and corrective action (see Tables IV-3 and IV-4). 
In addition, MSHA estimates that it will cost $24,500 per team for 
annual training and contests (see Tables IV-6 through 11 and the 
related discussions). The estimated first-year cost of creating and 
equipping four mine rescue stations and 28 mine rescue teams is 
$1,320,000 [4 x ($141,500 + $17,000) + (28 x $24,500)]. Based on a 7 
percent discount rate and the useful life estimates presented in the 
2008 REA, the estimated yearly cost for these mines is $794,000.
    In 2007, 68.8 million tons of coal were mined by the underground 
mines in Kentucky. At an average price of $43.80 for a ton of 
underground coal, this represented $3.0 billion in revenue. MSHA 
estimates that the annual revenue of the 156 small mines and 9 large 
mines impacted by the final rule is $728.2 million. The $794,000 yearly 
cost represents about 0.11 percent of the revenue of these Kentucky 
mines. MSHA concludes that the final rule is economically feasible for 
these mines.
    MSHA anticipates that underground coal mine operators in Kentucky 
may experience practical difficulties in meeting the requirements in 
the final rule, if those requirements were effective upon publication. 
Based on Agency experience and data and information from Kentucky 
representatives, MSHA projects that it will take approximately 6 months 
for the mines in Kentucky affected by this final rule to establish new 
teams, establish mine rescue stations, and conduct initial training. 
MSHA also projects that it will take one year for these mine rescue 
teams to complete all required training, including mine rescue 
contests. The final rule, therefore, includes a 6-month period for 
operators to establish new teams, establish mine rescue stations, and 
conduct initial training; and a one-year period for teams to complete 
all required training, including mine rescue contests.

VI. Paperwork Reduction Act of 1995

    This final rule revises MSHA's existing standards for mine rescue 
teams for underground coal mines. These changes in the Mine Rescue 
Teams regulation affect the paperwork collection burden hours and 
associated cost. MSHA estimates that this final rule will necessitate 
the formation of four additional mine rescue stations, requiring 48 
additional breathing apparatus, and 28 additional mine rescue teams, 
requiring training for 168 additional mine rescue team members, 
resulting in an increase of 216 responses and 163 burden hours.
    Under Sec.  49.16, certification of inspection and testing of 48 
additional breathing apparatus, as well as a record of any corrective 
action taken, would result in an increase of 129.6 paperwork burden 
hours and $4,103 annual burden cost. Under Sec.  49.18, a record of 
training for 168 new mine rescue team members would result in an 
increase of 33.6 paperwork burden hours and $2,398 annual burden cost.
    The Office of Management and Budget (OMB) has approved these 
requirements under OMB control number 1219-0144.

List of Subjects in 30 CFR Part 49

    Education and training, Mine safety and health, Reporting and 
recordkeeping requirements.

Michael A. Davis,
Deputy Assistant Secretary for Operations, Mine Safety and Health.


0
For the reasons set out in the preamble, and under the authority of the 
Federal Mine Safety and Health Act of 1977 as amended by the Mine 
Improvement and New Emergency Response Act of 2006, MSHA amends chapter 
I of title 30 of the Code of Federal Regulations as follows:

PART 49--MINE RESCUE TEAMS

0
1. The authority citation for part 49 continues to read as follows:

    Authority:  30 U.S.C. 811, 825(e).


0
2. In Sec.  49.11(b), revise Table 49.11 to read as follows:


Sec.  49.11   Purpose and scope.

* * * * *
    (b) * * *

  Table 49.11--Summary of New Miner Act Requirements for Underground Coal Mine Operators and Mine Rescue Teams
----------------------------------------------------------------------------------------------------------------
                                                             Type of mine rescue team
           Requirement           -------------------------------------------------------------------------------
                                       Mine-site           Composite           Contract        State- sponsored
----------------------------------------------------------------------------------------------------------------
Team members must participate at  YES...............  YES...............  YES...............  YES.
 least annually in two local
 mine rescue contests.
----------------------------------------------------------------------------------------------------------------
Team members must participate in  Annually at Large   Semi-annually.....  Quarterly at Large  Annually at Large
 mine rescue training at each      Mines; Semi-                            Mines; Semi-        Mines; Semi-
 mine covered by the mine rescue   annually at Small                       annually at Small   annually at Small
 team. A portion of the training   Mines.                                  Mines.              Mines.
 must be conducted underground.
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Team must be available at the     YES...............  YES...............  YES...............  YES.
 mine within 1 hour ground
 travel time from the mine
 rescue station.
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[[Page 28609]]

 
Team members must be              YES...............  YES...............  YES...............  YES.
 knowledgeable about the
 operations and ventilation of
 each covered mine.
----------------------------------------------------------------------------------------------------------------
Team must include at least two    ..................  YES...............  ..................  ..................
 active employees from each
 covered large mine and at least
 one active employee from each
 covered small mine.
----------------------------------------------------------------------------------------------------------------
Team must be comprised of         ..................  ..................  YES...............  ..................
 persons with a minimum of 3
 years underground coal mine
 experience that shall have
 occurred within the 10-year
 period preceding their
 employment on the contract mine
 rescue team.
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All mine operators must provide for two certified mine rescue teams. Large mine operators shall provide one team
 that is either an individual mine-site mine rescue team or a composite team.
----------------------------------------------------------------------------------------------------------------
 Team members of State-sponsored teams who are full-time State employees whose primary job duties include (1)
  inspecting underground mines for compliance with State safety laws or (2) training mine rescue teams or (3)
  other similar duties that would enhance their mine rescue knowledge may substitute their regular job
  experience for 50 percent of the training requirements for non-State employee mine rescue team members, except
  these team members must participate in two local mine rescue contests and train at the covered mine in
  accordance with Sec.   49.20(b).


0
3. In Sec.  49.20, revise paragraphs (b)(1) and (b)(4) to read as 
follows:


Sec.  49.20   Requirements for all coal mines.

* * * * *
    (b) * * *
    (1) Mine-site team. Members who work at the mine and participate in 
mine rescue training at the mine at least annually at large mines and 
at least semi-annually at small mines.
* * * * *
    (4) State-sponsored team. Members who are state employees and 
participate in mine rescue training at each covered mine at least 
annually at large mines and at least semi-annually at small mines.
* * * * *
[FR Doc. E9-14128 Filed 6-16-09; 8:45 am]
BILLING CODE 4510-43-P


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