[Federal Register: September 15, 2008 (Volume 73, Number 179)]
[Rules and Regulations]
[Page 53116-53124]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15se08-5]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 49
RIN 1219-AB56
Mine Rescue Team Equipment
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Final rule.
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SUMMARY: The final rule amends MSHA's existing standards addressing
mine rescue team equipment at mine rescue stations serving underground
coal and metal and nonmetal mines. It updates the existing standards to
reflect advances in mine rescue team equipment technology to increase
safety and improve the effectiveness of mine rescue teams.
DATES: This final rule is effective on November 14, 2008.
[[Page 53117]]
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:
Outline of the Preamble
I. Introduction
II. Statutory and Rulemaking Background
III. Section-By-Section Analysis
A. Subpart A--Mine Rescue Teams for Underground Metal and
Nonmetal Mines
B. Subpart B--Mine Rescue Teams for Underground Coal Mines
IV. Regulatory Economic Analysis
A. Executive Order 12866
B. Population at Risk
C. Compliance Costs
D. Benefits
V. Feasibility
A. Technological Feasibility
B. Economic Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
A. Definition of a Small Mine
B. Factual Basis for Certification
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
B. The Treasury and General Government Appropriations Act of
1999: Assessment of Federal Regulations and Policies on Families
C. Executive Order 12630: Government Actions and Interference
with Constitutionally Protected Property Rights
D. Executive Order 12988: Civil Justice Reform
E. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. Executive Order 13272: Proper Consideration of Small Entities
in Agency Rulemaking
I. Introduction
This final rule updates MSHA's existing mine rescue team equipment
standards for teams serving underground metal and nonmetal mines (part
49, subpart A, Sec. 49.6) and underground coal mines (part 49, subpart
B, Sec. 49.16). MSHA developed this final rule from existing
standards, Agency experience, and comments and testimony during the
rulemaking. It is critical that mine rescue team members be provided
with the latest in protective equipment so they can safely and
effectively carry out their mission. These changes will increase safety
and improve the effectiveness of mine rescue teams in responding to
mine emergencies.
II. Statutory and Rulemaking Background
In accordance with section 115(e) of the Federal Mine Safety and
Health Act of 1977 (Mine Act), MSHA issued standards in 30 CFR part 49
for mine rescue teams at underground coal and metal and nonmetal mines
(45 FR 47002; July 11, 1980). On September 6, 2007, MSHA published the
proposed rule for Mine Rescue Team Equipment (72 FR 51338) to update
mine rescue team equipment standards for underground coal and metal and
nonmetal mines. MSHA held four public hearings on October 23, 2007, in
Salt Lake City, Utah; on October 25, 2007, in Lexington, Kentucky; on
October 30, 2007, in Charleston, West Virginia; and on November 1,
2007, in Birmingham, Alabama. In response to a request from the public,
MSHA extended the comment period for the proposed rule from November 9,
2007, to November 16, 2007, to allow additional time for public review
of transcripts.
III. Section-by-Section Analysis
On February 8, 2008, MSHA published a final rule for Mine Rescue
Teams (73 FR 7636) making certain non-substantive organizational
changes to 30 CFR part 49 and designating existing standards for
underground metal and nonmetal mines as Subpart A--Mine Rescue Teams
for Underground Metal and Nonmetal Mines, and existing standards for
underground coal mines as Subpart B--Mine Rescue Teams for Underground
Coal Mines.
MSHA requested comment on whether an oxygen resuscitator should be
provided for use by mine rescue teams. A commenter stated that it was
important to include resuscitators as standard mine rescue equipment
and that one of his company's self-contained breathing apparatus
(SCBAs) can be used as a resuscitator. However, other commenters
emphasized that states have different requirements as to who may
administer oxygen and that to use the oxygen resuscitator safely,
personnel must have considerable training and retraining. When
questioned by the MSHA panel concerning requirements of one particular
state, the commenter stated that his state had specific requirements
for use of emergency medical service systems and suggested that MSHA
review the state's Web site.
Standard mine rescue practice is to have a spare oxygen breathing
apparatus available for trapped miners during search and rescue
operations. In consideration of the differing state requirements, MSHA
has decided not to require oxygen resuscitators in this final rule for
these medical devices. Under the final rule, mine rescue teams could
use oxygen resuscitators provided they are used in accordance with
relevant state requirements and team members are properly trained. The
mine operator and mine rescue team should determine whether it is
appropriate to use an oxygen resuscitator.
A. Subpart A--Mine Rescue Teams for Underground Metal and Nonmetal
Mines
Section 49.6 Equipment and Maintenance Requirements
1. Sec. 49.6(a)(1)
The final rule, like the proposal, requires mine rescue stations to
be equipped with 12 self-contained breathing apparatus (SCBAs), each
having a 4-hour capacity rather than a 2-hour capacity. It updates the
existing rule to reflect current industry practice. The higher capacity
SCBAs provide for greater team effectiveness and provide a greater
measure of safety and health for miners. The final rule also continues
to require that the mine rescue station have any equipment necessary
for testing the breathing apparatus and that the apparatus be approved
by MSHA and NIOSH under 42 CFR part 84 subpart H. The final rule also
contains non-substantive word changes. MSHA received no comments on
this proposal.
2. Sec. 49.6(a)(2)
The final rule, like the proposal, requires that mine rescue
stations maintain supplies of liquid air, liquid oxygen, pressurized
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent
chemicals, as applicable to the supplied breathing apparatus and
sufficient to sustain each team for 8 hours while using the breathing
apparatus during rescue operations. MSHA received no comments on this
proposal.
3. Sec. 49.6(a)(3)
The final rule, like the proposal, requires mine rescue stations to
be equipped with two extra, fully-charged oxygen bottles for every six
SCBAs at the station. MSHA received a comment stating that the existing
standard, which required one extra fully-charged oxygen bottle, was
adequate. MSHA continues to believe that two extra oxygen bottles for
every six SCBAs will assure an additional reserve of a critical safety
component for mine rescue teams
[[Page 53118]]
during time-sensitive underground rescue or recovery operations.
4. Sec. 49.6(a)(4), (a)(5), and (a)(9)
The final rule, like the proposal, addresses requirements for
oxygen pumps, cap lamps, and spare parts and tools for repairing
breathing apparatus and communication systems. MSHA received no
comments on this proposal.
5. Sec. 49.6(a)(6)
The final rule, like the proposal, requires mine rescue stations to
be equipped with four gas detectors appropriate for each gas that may
be encountered at the mines served. In addition, like the proposal,
detectors must be capable of measuring specific concentrations of
methane, oxygen, and carbon dioxide. Like the proposal, the final rule
leaves the decision as to the type of detector to be used to the mine
operator.
Commenters stated that it was unnecessary to require mine rescue
stations serving non-gassy metal and nonmetal mines to have detectors
to measure methane. Mine rescue teams serving metal and nonmetal mines
generally would need gas detectors capable of measuring oxygen and
carbon monoxide.
Underground metal and nonmetal mines classified under Sec.
57.22003 as I-B, I-C, II-B, IV, V-B, and VI are commonly referred to as
``non-gassy'' mines. Existing Sec. 57.22003 provides overall
parameters and testing procedures for categorizing underground metal
and nonmetal mines. Under the final rule, mine rescue stations that
service these mines, with no methane in explosive concentrations, would
not need detectors to measure methane.
Underground metal and nonmetal mines classified in accordance with
Sec. 57.22003 as I-A, II-A, III, and V-A are capable of producing
methane gas in explosive concentrations and are commonly referred to as
``gassy'' mines. Currently, eight underground M/NM mines, classified
under Sec. 57.22003 as II-A, III, and V-A, are ``gassy'' mines. There
are no active underground M/NM mines currently classified as I-A.
Existing regulations in 30 CFR part 57 subpart T for these four
categories of M/NM ``gassy'' mines require underground equipment to be
approved, examinations for methane to be conducted at specified
intervals, and the use of MSHA-approved monitoring or remote sensing
devices. Mine rescue stations serving these mines must have detectors
that measure methane in the concentration range specified in the final
rule.
Some commenters stated that the existing requirement for mine
rescue stations to have two detectors per station seemed sufficient.
One commenter stated that the reason given in the proposal by MSHA that
detectors require time to recharge and be calibrated does not take into
account all brands of detectors. The commenter stated that Dra[euml]ger
detectors have replaceable alkaline batteries that could easily last
the four hours teams might need to spend underground in rescue and/or
recovery activities. However, the typical shift for a mine rescue team
during underground search and rescue or recovery operations is eight
hours, some of which is under oxygen. Shifts can last beyond eight
hours under special circumstances (e.g., availability of
transportation, type of work required, and availability of change-out
teams). Gas detectors used underground by mine rescue teams are cycled
through work shifts. After detectors have been used, they need to be
cleaned, recharged, and sometimes recalibrated, so they can be used for
the next shift. Mine rescue teams cannot go underground without the
required gas-measuring instrumentation and, in time-sensitive
emergencies, cannot wait for instruments to be recharged, cleaned, or
recalibrated. Having four detectors, two per team, will allow teams to
continue their rescue/recovery activities without having to be delayed.
This requirement will also provide the team with a backup device
underground in the event of an equipment failure.
Like the proposal, the final rule requires that detectors must be
able to measure methane concentrations from 0 percent to 100 percent of
volume and oxygen from 0 percent to at least 20 percent of volume. In
response to comments, the final rule requires that detectors measure
carbon monoxide from 0 ppm to at least 9,999 ppm. The proposal required
that the detector measure to at least 10,000 ppm. A commenter stated
that a multi-gas detector that measures carbon monoxide from 0 ppm to
at least 9,999 ppm will soon be available and will be smaller and
easier to carry than current versions, and that MSHA should permit this
detector to be used. The final rule requires detectors to 9,999 ppm
since this is essentially equivalent to 10,000 ppm.
Some commenters stated their preference to continue the
longstanding practice of using electronic oxygen and carbon monoxide
testers in conjunction with a bellows pump gas tube tester. One
commenter asked whether the proposed rule would prohibit the bellows
pump detector. Under the proposal, MSHA did not intend to prohibit the
bellows pump with gas tube detectors. However, if used, they must be
capable of measuring the required gases within the ranges specified in
the final rule. MSHA encourages the use of electronic gas detectors.
These types of detectors are more accurate than gas tube-type
detectors, and are available in the ranges required by the final rule.
6. Sec. 49.6(a)(7) Reserved
The final rule, like the proposal, deletes the existing provision
which required mine rescue stations to be provided with two oxygen
indicators or flame safety lamps, since this equipment is
technologically obsolete. MSHA received no comments on this proposal.
7. Sec. 49.6(a)(8)
The final rule, like the proposal, makes organizational changes to
the existing standard on communication systems. MSHA received no
comment on this proposal.
8. Sec. 49.6(b)
The final rule, like the proposal, requires that mine rescue team
equipment be maintained to ensure readiness for immediate use. The
final rule renumbers existing provisions, but makes no substantive
changes. MSHA received no comments on this proposal.
B. Subpart B--Mine Rescue Teams for Underground Coal Mines
Section 49.16 Equipment and Maintenance Requirements
1. Sec. 49.16(a)
The final rule, like the proposal, requires mine rescue stations to
be equipped with certain equipment. It allows mine rescue stations
serving certain underground anthracite coal mines to have the type and
amount of equipment that would be appropriate for the number of their
mine rescue team members.
As a result of granted petitions for modification, mine rescue
teams for underground anthracite coal mines that have no electrical
equipment at the face or working section are composed of three members
with one alternate to serve both teams. Given these smaller teams,
anthracite operators submitted petitions for modification requesting
that their mine rescue stations be allowed to maintain eight SCBAs,
eight cap lamps, and a charging station, rather than 12 of each as
required by existing Sec. Sec. 49.6(a)(1) and (a)(5). MSHA
investigated each petition and made the following finding:
[[Page 53119]]
MSHA's investigation found that reducing the quantity of
equipment required to be purchased and maintained at the anthracite
mine rescue station to a quantity consistent with the requirements
of granted modifications currently in effect, which allow anthracite
mines to be covered by two mine rescue teams of three members each
and an alternate, will provide the same measure of protection to the
miners.
On the basis of those investigations, MSHA granted these petitions
for modification of existing Sec. Sec. 49.6(a)(1) and (a)(5).
Currently, 11 underground anthracite coal mines operate under this
approved alternative method. The reduced number of SCBAs and cap lamps
would provide sufficient equipment for teams serving these anthracite
coal mines. MSHA received no comments on this proposal.
2. Sec. 49.16(a)(1)
The final rule, like the proposal, requires mine rescue stations to
be equipped with 12 SCBAs, each with a minimum 4-hour capacity, rather
than a 2-hour capacity. It updates the existing rule to reflect current
industry practice. The higher capacity SCBAs provide for greater team
effectiveness and provide a greater measure of safety and health for
miners. The final rule also continues to require that the mine rescue
station have any equipment necessary for testing the breathing
apparatus and that the apparatus be approved by MSHA and NIOSH under 42
CFR part 84 subpart H. The final rule also contains non-substantive
word changes. MSHA received no comments on this proposal.
3. Sec. 49.16(a)(2)
The final rule, like the proposal, requires that mine rescue
stations maintain supplies of liquid air, liquid oxygen, pressurized
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent
chemicals, as applicable to the supplied breathing apparatus and
sufficient to sustain each team for eight hours while using the
breathing apparatus during rescue operations. MSHA received no comments
on this proposal.
4. Sec. 49.16(a)(3)
The final rule, like the proposal, requires mine rescue stations to
be equipped with two extra, fully-charged, oxygen bottles for every six
SCBAs at the station. The existing standard required one extra, fully-
charged, oxygen bottle for every six SCBAs.
MSHA received a comment stating that the existing standard, which
required one extra fully charged oxygen bottle, was adequate. MSHA
continues to believe that two extra oxygen bottles for every six SCBAs
will assure an additional reserve of a critical safety component for
mine rescue teams during time-sensitive underground rescue or recovery
operations.
5. Sec. Sec. 49.16(a)(4), (a)(5), and (a)(9)
The final rule, like the proposal, addresses requirements for
oxygen pumps, cap lamps, and spare parts and tools for repairing
breathing apparatus and communication systems. MSHA received no comment
on this proposal.
6. Sec. 49.16(a)(6)
The final rule, like the proposal, requires mine rescue stations to
be equipped with four gas detectors appropriate for each gas that may
be encountered at the mines served. In addition, like the proposal,
detectors must be capable of measuring specific concentrations of
methane, oxygen, and carbon dioxide. Like the proposal, the final rule
leaves the decision as to the type of detector to be used to the mine
operator.
Some commenters stated that the existing requirement for mine
rescue stations to have two detectors per station seemed sufficient.
One commenter stated that the reason given in the proposal by MSHA that
detectors require time to recharge and be calibrated does not take into
account all brands of detectors. The commenter stated Dra[euml]ger
detectors have replaceable alkaline batteries that could easily last
the four hours teams might need to spend underground in rescue and/or
recovery activities. However, the typical shift for a mine rescue team
during underground search and rescue or recovery operations is eight
hours, some of which is under oxygen. Shifts can last beyond eight
hours under special circumstances (e.g., availability of
transportation, type of work required, and availability of change-out
teams). Gas detectors used underground by mine rescue teams are cycled
through work shifts. After detectors have been used, they need to be
cleaned, recharged, and sometimes re-calibrated, so they can be used
for the next shift. Mine rescue teams cannot go underground without the
required gas-measuring instrumentation and, in time-sensitive
emergencies, cannot wait for instruments to be recharged, cleaned, or
recalibrated. Having four detectors, two per team, will allow teams to
continue their rescue/recovery activities without having to be delayed.
This requirement will also provide the team with a backup device
underground in the event of an equipment failure.
Like the proposal, the final rule requires that detectors must be
able to measure methane concentrations from 0 percent to 100 percent of
volume and oxygen from 0 percent to at least 20 percent of volume. In
response to comments, the final rule requires that detectors measure
carbon monoxide from 0 ppm to at least 9,999 ppm. The proposal required
that the detector measure to at least 10,000 ppm. A commenter stated
that multi-gas detectors that measure carbon monoxide from 0 ppm to at
least 9,999 ppm will soon be available, and will be smaller and easier
to carry than current versions, and that MSHA should permit this
detector to be used. The final rule requires detectors to 9,999 ppm
since this is essentially equivalent to 10,000 ppm.
Some commenters stated their preference to continue the
longstanding practice of using electronic oxygen and carbon monoxide
testers in conjunction with a bellows pump gas tube tester. One
commenter asked whether the proposed rule would prohibit the bellows
pump detector. Under the proposal, MSHA did not intend to prohibit the
bellows pump with gas tube detectors. However, if these devices are
used, they must be capable of measuring the required gases within the
ranges specified in the final rule. MSHA encourages the use of
electronic gas detectors. These types of detectors are more accurate
than gas tube-type detectors, and are available in the ranges required
by the final rule.
7. Sec. 49.16(a)(7) Reserved
The final rule, like the proposal, deletes the existing provision
that mine rescue stations be provided with two oxygen indicators or
flame safety lamps since this equipment is technologically obsolete.
MSHA received no comment on this proposal.
8. Sec. 49.16(a)(8)
The final rule, like the proposal, requires that mine rescue team
equipment include a communication system. One commenter suggested that
MSHA allow handheld permissible radios to satisfy the requirement. In
support of this suggestion, the commenter stated that these radios are
the best technology, and have been used by the commenter exclusively in
mine emergencies and underground training for the past five years. Mine
rescue teams may use a wireless communication system or a wired system
provided the system is approved under Part 23 of this title.
9. Sec. 49.16(b)
The final rule, like the proposal, requires that mine rescue team
equipment be maintained to ensure
[[Page 53120]]
readiness for immediate use. MSHA received no comments on this
proposal.
IV. Regulatory Economic Analysis
A. Executive Order 12866
Executive Order (E.O.) 12866 (58 FR 51735), as amended by E.O.
13258 (67 FR 9385), requires that regulatory agencies assess both the
costs and benefits of regulations. E.O. 12866 classifies a rule as a
significant regulatory action requiring review by the Office of
Management and Budget if, among other things, it has an annual effect
on the economy of $100 million or more; creates a serious inconsistency
or interferes with an action of another agency; materially alters the
budgetary impact of entitlements or the rights of entitlement
recipients; or raises novel legal or policy issues. MSHA has determined
that the final rule does not have an annual effect of $100 million or
more on the economy and that, therefore, it is not an economically
``significant regulatory action'' pursuant to section 3(f) of E.O.
12866. MSHA, however, has concluded that the final rule is ``otherwise
significant'' under E.O. 12866 because it raises novel legal or policy
issues.
B. Population at Risk
Based on data for 2007, the final rule applies to 613 underground
coal mines and 233 underground metal and nonmetal mines with miners
working underground. It covers 42,176 coal miners, 15,223 metal and
nonmetal miners, and 8,139 coal and metal and nonmetal (non-office)
contractors working underground in these mines.
C. Compliance Costs
MSHA estimates that the total yearly cost of the final rule is
approximately $812,000. MSHA estimates that the costs are allocated as
follows: approximately $452,000 for coal operators, approximately
$250,000 for metal and nonmetal operators, and approximately $110,000
for State and local governments. Government-owned mine rescue stations
serving underground coal mines include 20 State, one county, and two
public colleges. Government-owned mine rescue stations serving
underground metal and nonmetal mines include one Federal and 13 State.
Some of the mine rescue stations serving underground coal mines also
serve underground metal and nonmetal mines.
Final Sec. 49.16(a) requires that mine rescue stations serving
underground anthracite coal mines, which have no electrical equipment
at the face or working section, have at least the amount of equipment
appropriate for the number of mine rescue team members. These
anthracite coal mines typically have fewer mine rescue team members.
This standard allows mine rescue stations associated with mine rescue
teams having a reduced number of members to maintain fewer SCBAs, cap
lamps, and charging racks than required under Sec. Sec. 49.16(a)(1)
and (a)(5) for other coal mine rescue stations. Because granted
petitions for modification already permit these anthracite coal mines
to have equipment appropriate for the number of mine rescue team
members, MSHA estimates that, for anthracite mines, there will be no
change in costs for this provision.
Final Sec. Sec. 49.6(a)(1) and 49.16(a)(1) require that mine
rescue stations serving underground metal and nonmetal and coal mines
be equipped with 12 SCBAs, each with a minimum 4-hour capacity, and
associated testing equipment. Because MSHA has determined that all mine
rescue stations serving metal and nonmetal and coal mines are already
equipped with MSHA and NIOSH approved 4-hour SCBAs and associated
testing equipment, the Agency estimates that there are no costs
associated with this requirement.
Final Sec. Sec. 49.6(a)(2) and 49.16(a)(2) require that mine
rescue stations serving underground coal and metal and nonmetal mines
increase their supply of liquid air, liquid oxygen, pressurized oxygen,
or oxygen generating chemicals and carbon dioxide absorbent chemicals
from six hours to eight hours for each team. Based on MSHA's knowledge
and experience, these supplies are purchased in bulk, and the final
rule would only cause mine operators to restock these supplies slightly
more frequently. MSHA estimates that the associated cost would be
negligible. Under the final rule, mine operators must stock an extra
two hours of liquid oxygen, pressurized oxygen, or oxygen generating
chemicals and carbon dioxide absorbent chemicals; they do not have to
use them in training.
Final Sec. Sec. 49.6(a)(3) and 49.16(a)(3) require that two
additional fully-charged oxygen bottles be provided for every six self-
contained breathing apparatus. The existing standard required one
extra, fully-charged oxygen bottle for every six self-contained
breathing apparatus. To meet the final requirements, MSHA estimates
that one additional oxygen bottle will have to be purchased for each
mine rescue station. MSHA estimates that the cost for one oxygen bottle
is $1,615, to which MSHA has applied an annualization factor of 0.11 to
reflect a 7 percent discount rate applied over 15 years. The resulting
annualized cost is $178 for each mine rescue station. There are 92
existing mine rescue stations serving underground coal mines and a
total of 65 mine rescue stations serving metal and nonmetal mines. In
the Agency's final rule for Mine Rescue Teams (73 FR 7635, February 8,
2008), MSHA estimated that the underground coal mining industry will
need to create 28 additional stations, for a total of 120 mine rescue
stations. MSHA estimates that the yearly cost of this final requirement
is $11,570 for mine rescue stations serving underground metal and
nonmetal mines, and $21,360 for mine rescue stations serving
underground coal mines.
Final Sec. Sec. 49.6(a)(6) and 49.16(a)(6) require mine rescue
stations serving underground metal and nonmetal mines and underground
coal mines to have four gas detectors appropriate for each type of gas
that may be encountered at the mines served. Gas detectors must measure
concentrations of methane from 0.0 percent to 100 percent of volume,
oxygen from 0.0 percent to at least 20 percent of volume, and carbon
monoxide from 0.0 parts per million to at least 9,999 parts per
million. Oxygen is present in all underground metal and nonmetal mines,
and carbon monoxide can be found in the vast majority of underground
metal and nonmetal mines. Other gases can also be found in underground
metal and nonmetal mines. Methane, oxygen, and carbon monoxide and
other gases can be found in underground coal mines.
To estimate the incremental costs for gas detectors under this
final rule, MSHA compared the cost for gas detectors under the final
rule to the baseline cost for gas detectors under the existing rule.
Either single-gas or multi-gas detectors may be used under the existing
and final rules, but for costing purposes MSHA assumed that multi-gas
detectors are being and will be used. In addition, in response to
comments, MSHA increased costs from the proposal to cover maintenance
and calibration.
Under the existing rule, each mine rescue station is required to
have two gas detectors appropriate for each type of gas that may be
encountered at the mines served. Mine rescue stations currently have
multi-gas detectors that comply with the existing rule, and these
detectors would have to be replaced over time. MSHA assumed a
replacement cost of $2,000 for each multi-gas detector required under
the existing rule. MSHA also assumed that the existing calibration kit
for each mine rescue station would not need to be replaced. MSHA
estimates that the
[[Page 53121]]
essential accessories for a multi-gas detector include a charging
module, a battery pack, a protective case, and a remote sampling pump
at a cost of $862. The total estimated baseline cost for for a multi-
gas detector and essential accessories is $2,862. These baseline costs
are subject to an annualization factor of 0.244 to reflect a 7 percent
discount rate and a service life of 5 years. MSHA further assumed that
replacement of a multi-gas detector and essential accessories under the
existing rule would have occurred in approximately three years.
Therefore, these baseline costs were discounted by three years using a
7 percent discount rate. The estimated annualized cost for the
replacement of a multi-gas detector and essential accessories is $569.
In addition, MSHA estimated a baseline cost of $712 for annual
maintenance and calibration for each multi-gas detector. MSHA assumed
that annual maintenance and calibration would have continued each
following year and, therefore, annual maintenance baseline costs were
discounted by one year using a 7 percent discount rate. The discounted
baseline cost for annual maintenance and calibration for a multi-gas
detector is estimated to be $666.
The total estimated yearly baseline cost to replace a multi-gas
detector and essential accessories and to maintain and calibrate the
multi-gas detector under the existing rule is $1,235 a year. Because
each mine rescue station is required to have two gas detectors under
the existing rule, the total baseline cost for two multi-gas detectors
is $2,470 for each mine rescue station.
Under the final rule, MSHA estimates that all mine rescue stations
will be equipped with four multi-gas detectors appropriate for each
type of gas that may be encountered at the mines served. MSHA also
estimates that all mine rescue stations will be equipped with essential
accessories for each multi-gas detector and that each mine will be
equipped with one calibration kit. In response to comments, MSHA
increased the cost for each multi-gas detector from $2,000 under the
proposal to $3,000 under this final rule. MSHA estimates that the cost
of essential accessories for a multi-gas detector is $862 and that a
calibration kit costs approximately $268. The estimated cost for four
multi-gas detectors, four essential accessories, and one calibration
kit is $15,716. These costs are all subject to an annualization factor
of 0.244 to reflect a 7 percent discount rate and a service life of 5
years. The annualized cost to purchase the four multi-gas detectors,
four essential accessories, and one calibration kit under this final
rule is $3,835 for each mine rescue station. In addition, MSHA
estimates that the annual maintenance and calibration cost for a multi-
gas detector is approximately $712, for a total of $2,848 for four
multi-gas detectors. The total estimated yearly cost to purchase four
multi-gas detectors, four essential accessories, and a calibration kit,
and to maintain and calibrate the four multi-gas detectors is $6,683.
MSHA estimates that the incremental yearly cost of the gas
detectors is $4,213 ($6,683 minus the baseline cost of $2,470) for each
mine rescue station, and a total of $273,845 for the 65 mine rescue
stations serving underground metal and nonmetal mines, and $505,580 for
the 120 mine rescue stations serving underground coal mines.
MSHA has not associated any costs with the existing requirements
for mine rescue stations to be equipped with either two oxygen
indicators or two flame safety lamps, since they reflect obsolete
technology. MSHA believes that most mine operators have already
replaced flame safety lamps and oxygen indicators with new, more
accurate technologically advanced devices.
Table I summarizes the estimated total cost of this rule. In
response to comments, MSHA has estimated separate costs for mine rescue
stations serving underground coal mines and underground metal and
nonmetal mines of $526,920 and $285,415, respectively.
Table I--Estimated Total Yearly Cost of the Final Rule
----------------------------------------------------------------------------------------------------------------
Annualized
Annualized cost incremental cost
Number of mine per mine rescue per mine rescue
Mine size rescue stations station for one station for gas Total yearly cost
oxygen bottle detectors under
final rule
----------------------------------------------------------------------------------------------------------------
Mine Rescue Stations Serving Underground Coal Mines
----------------------------------------------------------------------------------------------------------------
1-19................................ 19 $178 $4,213 $83,429
20-500.............................. 71 178 4,213 311,761
501+................................ 13 178 4,213 57,083
Government.......................... 17 178 4,213 74,647
------------------- ------------------
Total........................... 120 ................. ................. 526,920
----------------------------------------------------------------------------------------------------------------
Mine Rescue Stations Serving Underground Metal and Non-Metal Mines
----------------------------------------------------------------------------------------------------------------
1-19................................ 2 $178 $4,213 $8,782
20-500.............................. 50 178 4,213 219,550
501+................................ 5 178 4,213 21,955
Government.......................... 8 178 4,213 35,128
------------------- ------------------
Total........................... 65 ................. ................. 285,415
----------------------------------------------------------------------------------------------------------------
D. Benefits
The requirements in this rule will improve and enhance equipment
for mine rescue teams who must respond, for rescue and recovery, to an
emergency at an underground mine. Mine operators often rely on mine
rescue teams to save miners during an underground emergency, such as an
explosion, fire, roof fall, or water inundation. Mine rescue team
members often put themselves in danger to save miners injured or
trapped underground as the result of these events, and to recover
miners who can't be rescued. To help them to conduct mine rescue and
recovery activities safely and effectively, mine rescue teams must be
provided
[[Page 53122]]
with up-to-date mine rescue equipment. In an emergency, a properly
equipped mine rescue team could mean the difference between life and
death.
V. Feasibility
MSHA has concluded that the requirements of the final rule are
technologically and economically feasible.
A. Technological Feasibility
This final rule is technologically feasible because all mine rescue
team equipment required in this rule is available and in use in many
underground mines.
B. Economic Feasibility
Due to a total cost of approximately $812,000 for this rule, MSHA
concludes that the rule is economically feasible.
VI. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
In accordance with the Regulatory Flexibility Act (RFA) of 1980 as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), MSHA analyzed the impact of the final rule on small entities.
Based on that analysis, MSHA notified the Chief Counsel for Advocacy,
Small Business Administration (SBA), and made the certification under
section 605(b) of the Regulatory Flexibility Act that the final rule
does not have a significant economic impact on a substantial number of
small entities. The factual basis for this certification is presented
below.
A. Definition of a Small Mine
Under the RFA, in analyzing the impact of a rule on small entities,
MSHA must use the SBA 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 taken such an
action and, thus, is required to use the SBA definition. The SBA
defines a small entity in the mining industry as an establishment with
500 or fewer employees.
MSHA has also examined the impacts of this rule on underground coal
and metal and nonmetal mines with fewer than 20 employees, which MSHA
has 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.
B. Factual Basis for Certification
MSHA initially evaluates the economic impact of a rule on ``small
entities'' by comparing the estimated cost of the rule for small
entities to their estimated revenue. When the estimated cost is less
than one percent of estimated revenue for the size categories
considered, MSHA believes it is generally appropriate to conclude that
there is not a significant economic impact on a substantial number of
small entities. Due to the costs of this final rule, MSHA certifies
that it does not have a significant economic impact on a substantial
number of small entities.
VII. Paperwork Reduction Act of 1995
The final rule, like the existing rule, requires certification of
inspection, testing, and any corrective action taken for breathing
apparatus. MSHA estimates that any additional paperwork burden due to
the requirements in the final rule is de minimis and, therefore, has
not included an additional paperwork burden.
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
MSHA has reviewed the final rule under the Unfunded Mandates Reform
Act of 1995 (2 U.S.C. 1501 et seq.). The final rule will not increase
private sector expenditures by more than $100 million annually; nor
will it significantly or uniquely affect small governments. The final
rule may increase expenditures minimally by State, local, or tribal
governments, because it requires certain new equipment for mine rescue
stations. These changes will not directly affect States or their
relationships with the national government; however, some States
sponsor or equip mine rescue stations.
B. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
This final rule will have no affect on family well-being or
stability, marital commitment, parental rights or authority, or income
or poverty of families and children. Accordingly, Section 654 of the
Treasury and General Government Appropriations Act of 1999 (5 U.S.C.
601 note) requires no further Agency action, analysis, or assessment.
C. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
This final rule would not implement a policy with takings
implications. Accordingly, E.O. 12630, Governmental Actions and
Interference with Constitutionally Protected Property Rights, requires
no further Agency action or analysis.
D. Executive Order 12988: Civil Justice Reform
This final 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, this final rule meets the
applicable standards provided in section 3 of E.O. 12988, Civil Justice
Reform.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This final rule would have no adverse impact on children.
Accordingly, E.O. 13045, Protection of Children from Environmental
Health Risks and Safety Risks, as amended by E.O. 13229 and 13296,
requires no further Agency action or analysis.
F. Executive Order 13132: Federalism
Executive Order (E.O.) 13132 requires MSHA to develop an
accountable process to ensure a meaningful and timely input by State
and local officials in the development of regulatory policies that have
``federalism implications.'' Policies that have federalism implications
are defined as having ``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.'' The final rule places new equipment requirements on
mine operators and States that provide mine rescue stations. These
changes will not directly affect States or their relationships with the
federal government. Although the final rule does not directly affect
States, some States sponsor or equip mine rescue stations.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This final rule would not have ``tribal implications'' because it
does 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, E.O. 13175,
Consultation and Coordination with Indian Tribal
[[Page 53123]]
Governments, requires no further Agency action or analysis.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This final rule has been reviewed for its impact on the supply,
distribution, and use of energy because it applies to the underground
coal mining sector. Insofar as this final rule results in yearly costs
of approximately $0.5 million to the underground coal mining industry,
relative to annual revenues of $14.1 billion in 2007, it is not a
``significant energy action'' because it will not be ``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, E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use, requires no further Agency action or analysis.
I. Executive Order 13272: Proper Consideration of Small Entities in
Agency Rulemaking
MSHA has reviewed the final 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 final rule does not have a significant economic
impact on a substantial number of small entities.
List of Subjects in 30 CFR Part 49
Coal mines, Emergency equipment and maintenance, Emergency response
services, Metal mines, Mine safety and health, Nonmetal mines,
Underground mining.
Dated: September 9, 2008.
Richard E. Stickler,
Acting Assistant Secretary for 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 is amending
chapter I of title 30 of the Code of Federal Regulations as follows:
PART 49--MINE RESCUE TEAMS
0
1. The authority for part 49 continues to read as follows:
Authority: 30 U.S.C. 811, 825(e), 957.
0
2. Revise Sec. 49.6 to read as follows:
Sec. 49.6 Equipment and maintenance requirements.
(a) Each mine rescue station shall be provided with at least the
following equipment:
(1) Twelve self-contained breathing apparatus, each with a minimum
of 4 hours capacity (approved by MSHA and NIOSH under 42 CFR Part 84,
Subpart H), and any necessary equipment for testing such breathing
apparatus;
(2) A portable supply of liquid air, liquid oxygen, pressurized
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent
chemicals, applicable to the supplied breathing apparatus and
sufficient to sustain each team for eight hours while using the
breathing apparatus during rescue operations.
(3) Two extra, fully-charged oxygen bottles for every six self-
contained breathing apparatus;
(4) One oxygen pump or a cascading system, compatible with the
supplied breathing apparatus;
(5) Twelve permissible cap lamps and a charging rack;
(6) Four gas detectors appropriate for each type of gas that may be
encountered at the mines served. Gas detectors must measure
concentrations of methane from 0.0 percent to 100 percent of volume,
oxygen from 0.0 percent to at least 20 percent of volume, and carbon
monoxide from 0.0 parts per million to at least 9,999 parts per
million.
(7) [Reserved].
(8) One portable mine rescue communication system (approved under
part 23 of this title) or a sound-powered communication system.
(i) The wires or cable to the communication system shall be of
sufficient tensile strength to be used as a manual communication
system.
(ii) These communication systems shall be at least 1,000 feet in
length.
(9) Necessary spare parts and tools for repairing the breathing
apparatus and communication system.
(b) Mine rescue apparatus and equipment shall be maintained in a
manner that will ensure readiness for immediate use.
(1) A person trained in the use and care of breathing apparatus
shall inspect and test the apparatus at intervals not exceeding 30 days
and shall certify by signature and date that the inspections and tests
were done.
(2) When the inspection indicates that a corrective action is
necessary, the corrective action shall be made and the person shall
record the corrective action taken.
(3) The certification and the record of corrective action shall be
maintained at the mine rescue station for a period of one year and made
available on request to an authorized representative of the Secretary.
0
3. Revise Sec. 49.16 to read as follows:
Sec. 49.16 Equipment and maintenance requirements.
(a) Each mine rescue station shall be provided with at least the
following equipment. Mine rescue stations serving underground
anthracite coal mines, which have no electrical equipment at the face
or working section, shall have at least the amount of equipment
appropriate for the number of mine rescue team members.
(1) Twelve self-contained breathing apparatus, each with a minimum
of 4 hours capacity (approved by MSHA and NIOSH under 42 CFR part 84,
subpart H), and any necessary equipment for testing such breathing
apparatus.
(2) A portable supply of liquid air, liquid oxygen, pressurized
oxygen, or oxygen generating chemicals, and carbon dioxide absorbent
chemicals, as applicable to the supplied breathing apparatus and
sufficient to sustain each team for 8 hours while using the breathing
apparatus during rescue operations.
(3) Two extra, fully-charged oxygen bottles for every six self-
contained breathing apparatus.
(4) One oxygen pump or a cascading system, compatible with the
supplied breathing apparatus.
(5) Twelve permissible cap lamps and a charging rack.
(6) Four gas detectors appropriate for each type of gas that may be
encountered at the mines served. Gas detectors must measure
concentrations of methane from 0.0 percent to 100 percent of volume,
oxygen from 0.0 percent to at least 20 percent of volume, and carbon
monoxide from 0.0 parts per million to at least 9,999 parts per
million.
(7) [Reserved].
(8) One portable mine rescue communication system (approved under
part 23 of this title) or a sound-powered communication system.
(i) The wires or cable to the communication system shall be of
sufficient tensile strength to be used as a manual communication
system.
(ii) These communication systems shall be at least 1,000 feet in
length.
(9) Necessary spare parts and tools for repairing the breathing
apparatus and communication system.
(b) Mine rescue apparatus and equipment shall be maintained in a
manner that will ensure readiness for immediate use.
(1) A person trained in the use and care of breathing apparatus
shall inspect
[[Page 53124]]
and test the apparatus at intervals not exceeding 30 days and shall
certify by signature and date that the inspections and tests were done.
(2) When the inspection indicates that a corrective action is
necessary, the corrective action shall be made and the person shall
record the corrective action taken.
(3) The certification and the record of corrective action shall be
maintained at the mine rescue station for a period of 1 year and made
available on request to an authorized representative of the Secretary.
[FR Doc. E8-21449 Filed 9-12-08; 8:45 am]
BILLING CODE 4510-43-P