28606 Federal Register / Vol. 74, No. 115 / Wednesday, June 17, 2009 / Rules and Regulations 

Commission shall grant a revoked 

parolee credit toward completion of the 

sentence for all time served on parole. 

(2)(A) The Commission shall forfeit 

credit for the period of parole if a 

parolee is convicted of a crime 

committed during a period of parole and 

that is punishable by a term of 

imprisonment of more than one year. 

(B) If the crime is punishable by any 

other term of imprisonment, the 

Commission shall forfeit credit for the 

period of parole unless the Commission 

determines that such forfeiture is not 

necessary to protect the public welfare. 

In making this decision, the 

Commission shall consider the nature 

and circumstances of the violation 

behavior, the history and characteristics 

of the offender, including the offender’s 

supervision history, and other available 

and relevant information. 

(3) If, during the period of parole, a 

parolee intentionally refuses or fails to 

respond to any reasonable request, 

order, summons, or warrant of the 

Commission or any member or agent of 

the Commission, the Commission may 

order that the parolee not receive credit 

for the period of time that the 

Commission determines that the parolee 

failed or refused to respond to such a 

request, order, summons, or warrant. 

(4) The provisions of this paragraph 

shall apply only to any period of parole 

that is being served on or after May 20, 

2009, and shall not apply to any period 

of parole that was revoked before that 

date. 

(e) Notwithstanding paragraphs (a) 

through (d) of this section, prisoners 

committed under the Federal Youth 

Corrections Act shall not be subject to 

forfeiture of time on parole, but shall 

serve uninterrupted sentences from the 

date of conviction except as provided in 

§ 2.10(b) and (c). DC Code 24–406(c) and 

paragraphs (a) through (d) of this section 

are fully applicable to prisoners serving 

sentences under the DC Youth 

Rehabilitation Act. 

* * * * * 

■ 13. Section § 2.208 is revised to read 

as follows: 

§ 2.208 Termination of a term of 

supervised release. 

(a)(1) The Commission may terminate 

a term of supervised release and 

discharge the releasee from supervision 

after the expiration of one year of 

supervised release, if the Commission is 

satisfied that such action is warranted 

by the conduct of the releasee and the 

interest of justice. 

(2) Upon terminating supervision of a 

committed youth offender before the 

sentence expires, the Commission shall 

set aside the committed youth offender’s 

conviction and issue a certificate setting 

aside the conviction instead of a 

certificate of discharge. 

(b) Two years after a prisoner is 

released on supervision, and at least 

annually thereafter, the Commission 

shall review the status of the releasee to 

determine the need for continued 

supervision. The Commission shall also 

conduct a status review whenever the 

supervision officer recommends 

termination of the supervised release 

term. If the term of supervised release 

imposed by the court is two years or 

less, the Commission shall consider 

termination of supervision only if 

recommended by the releasee’s 

supervision officer. 

(c) In calculating the two-year period 

provided in paragraph (b) of this 

section, the Commission shall not 

include any period of release before the 

most recent release, or any period 

served in confinement on any other 

sentence. 

(d) (1) In deciding whether to 

terminate supervised release, the 

Commission shall consider the 

guidelines of this paragraph. The 

guidelines are advisory and the 

Commission may disregard the outcome 

indicated by the guidelines based on 

case specific factors. Termination of 

supervision is indicated if the releasee: 

(A) Has a salient factor score in the 

very good risk category and has 

completed two continuous years of 

supervision free from an incident of 

new criminal behavior or serious release 

violation; or 

(B) Has a salient factor score in a risk 

category other than very good and has 

completed three continuous years of 

supervision free from an incident of 

new criminal behavior or serious release 

violation. 

(2) As used in this paragraph, the term 

‘‘an incident of new criminal behavior 

or serious release violation’’ includes a 

new arrest or report of a release 

violation if supported by substantial 

evidence of guilt, even if no conviction 

or release revocation results. The 

Commission shall not terminate 

supervision of a releasee until it 

determines the disposition of a pending 

criminal charge. 

(3) Case-specific factors that may 

justify a departure either above or below 

the early termination guidelines may 

relate to the current behavior of the 

releasee, or to the releasee’s background 

and criminal history. 

Dated: June 8, 2009. 

Isaac Fulwood, 

Chairman, U.S. Parole Commission. 

[FR Doc. E9–14157 Filed 6–16–09; 8:45 am] 

BILLING CODE 4410–31–M 

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. 

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 § 49.50(a), 

Table 49.50–A, by December 14, 2009, 

and the requirements of § 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 silvey.patricia@dol.gov 

(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 


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Federal Register / Vol. 74, No. 115 / Wednesday, June 17, 2009 / Rules and Regulations 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 § 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 Statesponsored 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 

§ 49.20(b)(1) and (b)(4) to require minesite 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 semiannually. 

In the preamble to the February 8, 

2008 final rule (73 FR 7643), MSHA 

stated its intent to consider Statesponsored 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 Statesponsored 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 


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28608 Federal Register / Vol. 74, No. 115 / Wednesday, June 17, 2009 / Rules and Regulations 

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 Statesponsored 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 firstyear cost of creating and equipping four 

mine rescue stations and 28 mine rescue 

teams is $1,320,000 [4 × ($141,500 + 

$17,000) + (28 × $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 § 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 § 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. 

■ 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 

■ 1. The authority citation for part 49 

continues to read as follows: 

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

■ 2. In § 49.11(b), revise Table 49.11 to 

read as follows: 

§ 49.11 Purpose and scope. 

* * * * * 

(b) * * * 

TABLE 49.11—SUMMARY OF NEW MINER ACT REQUIREMENTS FOR UNDERGROUND COAL MINE OPERATORS AND MINE

RESCUE TEAMS

Requirement 

Type of mine rescue team 

Mine-site Composite Contract Statesponsored 

Team members must participate at least annually in two local mine rescue contests.YES ............................ YES ............................ YES ............................ YES. 

Team members must participate in mine rescue training at each mine covered by the 

mine rescue team. A portion of the training 

must be conducted underground.

Annually at Large 

Mines; Semi-annually at Small Mines.

Semi-annually ............ Quarterly at Large 

Mines; Semi-annually at Small Mines.

Annually at Large 

Mines; Semi-annually at Small Mines. 

Team must be available at the mine within 1 

hour ground travel time from the mine rescue station.

YES ............................ YES ............................ YES ............................ YES. 


dwashington3 on PROD1PC60 with RULES
Federal Register / Vol. 74, No. 115 / Wednesday, June 17, 2009 / Rules and Regulations 28609 

TABLE 49.11—SUMMARY OF NEW MINER ACT REQUIREMENTS FOR UNDERGROUND COAL MINE OPERATORS AND MINE

RESCUE TEAMS—Continued 

Requirement 

Type of mine rescue team 

Mine-site Composite Contract Statesponsored 

Team members must be knowledgeable 

about the operations and ventilation of 

each covered mine.

YES ............................ YES ............................ YES ............................ YES. 

Team must include at least two active employees from each covered large mine and 

at least one active employee from each 

covered small mine.

.................................... YES ............................ ....................................

Team must be comprised of 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.

.................................... .................................... YES ............................

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 

§ 49.20(b). 

■ 3. In § 49.20, revise paragraphs (b)(1) 

and (b)(4) to read as follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket No. USCG–2008–1119] 

RIN 1625–AA11 

Regulated Navigation Area; 

Chesapeake and Delaware Canal, 

Chesapeake City Anchorage Basin, MD 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is 

establishing a permanent regulated 

navigation area (RNA) in certain waters 

of the Chesapeake and Delaware (C & D) 

Canal, within the anchorage basin at 

Chesapeake City, Maryland, to be 

enforced annually, on the last Saturday 

in June, from 12:01 a.m. until 11:59 p.m. 

This RNA is necessary to provide for the 

safety of life, property and the 

environment. This RNA will restrict and 

control the movement of vessels 

throughout the anchorage basin during 

the Town of Chesapeake City’s Canal 

Day event. 

DATES: This rule is effective on June 17, 

2009. 

ADDRESSES: Comments and material 

received from the public, as well as 

documents mentioned in this preamble 

as being available in the docket, are part 

of docket USCG–2008–1119 and are 

available online by going to http:// 

www.regulations.gov, selecting the 

Advanced Docket Search option on the 

right side of the screen, inserting USCG– 

2008–1119 in the Docket ID box, 

pressing Enter, and then clicking on the 

item in the Docket ID column. This 

material is also available for inspection 

or copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Mr. Ronald L. Houck, Sector 

Baltimore Waterways Management 

Division, Coast Guard; telephone 410– 

576–2674, e-mail 

Ronald.L.Houck@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone 202–366– 

9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On March 12, 2009, we published a 

notice of proposed rulemaking (NPRM) 

entitled ‘‘Regulated Navigation Area; 

Chesapeake and Delaware Canal, 

Chesapeake City Anchorage Basin, MD’’ 

in the Federal Register (74 FR 10695). 

We received no comments on the 

proposed rule. No public meeting was 

requested, and none was held. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. Delaying the effective date of 

this rule would be contrary to the public 

interest since immediate action is 

needed to ensure the boating public’s 

safety during the Canal Day festivities 

taking place in June 2009. Congestion 

created by the influx of boats and 

visitors for Canal Day festivities would 

substantially raise the risk of accidental 


dwashington3 on PROD1PC60 with RULES