Improving and Eliminating Regulations; Calibration and Maintenance Procedures for Coal Mine Respirable Dust Samplers

Federal RegisterSep 3, 1998

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 70, 71, and 90

RIN 1219-AA98

Improving and Eliminating Regulations; Calibration and

Maintenance Procedures for Coal Mine Respirable Dust Samplers

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

ACTION: Proposed rule; technical amendment.

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SUMMARY: MSHA has revised and updated its Informational Report No. 1121

(IR 1121) to include currently approved sampling equipment and to

permit the use of fast-response calibrators having a volumetric tube.

The updated document is Informational Report No. 1240 (IR 1240). This

proposed rule would update the existing incorporation by reference of

IR 1121 in MSHA's coal mine respirable dust standards to reference IR

1240.

DATES: Submit all comments by November 2, 1998.

ADDRESSES: Send comments by mail to Patricia W. Silvey, Director,

Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson

Boulevard, Room 631, Arlington, VA 22203; by facsimile to MSHA, Office

of Standards, Regulations, and Variances at 703-235-5551; or by E-mail

to [email protected]. MSHA encourages commenters sending written

comments by mail or facsimile to also send a computer disk of the

comments. Submit written comments on the information collection

requirements to the Office of Information and Regulatory Affairs,

Office of Management and Budget (OMB), Attention: Desk Officer for

MSHA, 725 17th Street NW., Room 10235, Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director; Office

of Standards, Regulations, and Variances, MSHA; 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Discussion of Proposal

Existing coal mining regulations Secs. 70.204, 71.204, and 90.204

in title 30 of the Code of Federal Regulations (30 CFR) require that

approved respirable dust sampling devices be calibrated in accordance

with MSHA Informational Report No. 1121 (IR 1121) ``Standard

Calibration and Maintenance Procedures for Wet Test Meters and Coal

Mine Respirable Dust Samplers (Supersedes IR 1073).'' These

[[Page 47124]]

regulations state that amendments to IR 1121 will be announced in the

Federal Register. This proposed rule would update the incorporation by

reference of MSHA IR 1121, with the most recent revision ``IR 1240''

entitled, ``Calibration and Maintenance Procedures for Coal Mine

Respirable Dust Samplers.'' This proposed rule, like the existing rule,

contains information collection requirements subject to the Paperwork

Reduction Act of 1995. MSHA has submitted the information collection

request to OMB for approval.

IR 1240 addresses improved technology and describes the standard

procedures currently used by MSHA for calibration of approved personal

samplers and associated equipment and for maintenance of this

equipment. IR 1240 continues to require operators to record calibration

parameters and results. MSHA encourages mine operators who store

records electronically to provide a mechanism which will allow the

continued storage and retrieval of records in the year 2000.

IR 1240 includes the calibration and maintenance procedures for the

newest approved sampling unit for collecting respirable coal mine dust

which uses constant flow technology and a power source which is

different from other approved sampling units. The constant flow

technology permits the calibration of this unit without concern for

flow fluctuations. IR 1240 notifies mine operators, and other

interested parties, that such units are to be maintained as approved to

ensure the accurate collection of respirable coal mine dust samples as

required in 30 CFR 70, 71, and 90.

IR 1240 also permits the use of fast-response calibrators for

calibrating all approved sampling units. It takes only 1 to 2 minutes

per unit to calibrate a sampling unit using this newer technology, as

opposed to 30 minutes using the traditional calibration systems

addressed in IR 1121.

Copies of IR 1240 are available at MSHA, Coal Mine Safety and

Health, Room 816, 4015 Wilson Boulevard, Arlington, VA 22203 and at

each MSHA Coal Mine Safety and Health district and subdistrict office.

II. Paperwork Reduction Act

The collection of information contained in this proposal is subject

to review by OMB under the Paperwork Reduction Act of 1995 (PRA 95).

The title, description, and respondent categories are discussed below

with an estimate of the annual information collection burden.

With respect to the following collection of information, MSHA

invites comments on: (1) whether the proposed collection of information

is necessary for proper performance of MSHA's functions, including

whether the information would have practical utility; (2) the accuracy

of MSHA's estimate of the burden of the proposed collection of

information, including the validity of the methodology and assumptions

used; (3) ways to enhance the quality, utility, and clarity of the

information to be collected; and (4) ways to minimize the burden of the

collection of information on respondents, including through the use of

automated collection techniques, when appropriate, and other forms of

information technology.

Description: Proposed 30 CFR 70.204, 71.204, and 90.204 would

require that approved respirable dust sampling devices be calibrated in

accordance with MSHA Informational Report No. 1240 (IR 1240)

``Calibration and Maintenance Procedures for Coal Mine Respirable Dust

Samplers.'' The calibration procedures for wet test meters and the

bubble tube method which are described in IR 1240 both require data to

be recorded as part of the calibration procedure. These two calibration

methods are rarely used in the mining industry because (1) most mines

that calibrate their own pumps now use instantaneous flow meters for

this purpose; and (2) almost all but the largest underground mines send

their pumps out to be calibrated, rather than calibrating them

themselves.

Description of Respondents: The respondents are mine operators.

MSHA estimates that this information collection requirement affects

about 900 coal mines and that these mines calibrate about 1,850 pumps

per year.

Information Collection Burden: The recording of calibration data is

considered an information collection burden under PRA 95. MSHA

estimates that it takes about 30 minutes to calibrate each pump using

the bubble tube method, including recording calibration-related

information and marking the pump flowmeter; that it takes about 3

minutes (0.05 hour) to calibrate each pump with a fast-response

calibrator and mark the pump flowmeter; and that pump calibration is

done by the mine's technical staff at a cost of about $42 per hour.

Further, MSHA estimates that 897 mines calibrate 1814 pumps with a fast

response calibrator and three mines calibrate 36 pumps using the bubble

tube method of pump calibration. The average time for pump calibration

is 0.059 hour. MSHA anticipates that no mine operators use the wet test

meter method of pump calibration.

The total estimated annual information collection burden for pump

calibration and marking the pump flowmeter is about 109 hours. The

estimated annual cost for this information collection burden is about

$4,580.

MSHA estimates that most mine operators incurred the capital and

start-up costs associated with pump calibration prior to October 1,

1995. For the purpose of this analysis, however, MSHA estimates that

about five new mines per year would purchase a fast-response

calibrator. Fast-response calibrators cost about $900 and have a useful

life of about 10 years. The annualization factor for an equipment life

of 10 years is 0.142. The annual cost for calibrators is about $640.

MSHA estimates that about 2010 mines send about 2040 pumps per year

to an outside contractor for calibration and maintenance. This service

includes pump calibration and marking the flowmeter; certification of

pump calibration; cleaning and checking pump function; replacing worn

or damaged parts; and shipping and handling. MSHA estimates that the

average cost for this service is about $100 per pump. Fast-response

calibrators also would require routine calibration and maintenance each

year at a cost of about $100. The cost for these services is $204,500.

The following chart summarizes MSHA's estimates for compliance with

PRA 95.

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Number of Number of Number of responses Total

Provision respondents Hours per response responses per respondent Annual cost hours

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70.204(a), 71.204(a), 900 0.059 (average)....... 1849 2 (average).......... $204,500 + $639 = $205,139 109

90.204(a).

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[[Page 47125]]

The burden hours and costs associated with pump calibration and marking

the flowmeter do not represent any increase for the mining industry

because mine operators currently are required to perform these

activities.

Under section 3507(o) of PRA 95, the Agency has submitted a copy of

this proposed rule to OMB for its review and approval of this

information collection. Interested persons are requested to send

comments regarding the burden estimates or any other aspect of the

collection of information, including suggestions for reducing the

burden, (1) directly to the Office of Information and Regulatory

Affairs, OMB, Attention: Desk Officer for MSHA; 725 17th Street NW.,

Room 10235; Washington, DC 20503, and (2) to Patricia W. Silvey,

Director; Office of Standards, Regulations, and Variances, MSHA; 4015

Wilson Boulevard, Room 631; Arlington, VA 22203.

III. Executive Order 12866

Executive Order 12866 requires that regulatory agencies assess both

the costs and benefits of regulations. MSHA estimates that the cost

impact of the proposed rule is the same as under the existing rule. The

primary benefit of the proposed rule is that it provides mine operators

alternatives in maintaining and calibrating dust sampling units. It

takes only 1 to 2 minutes per unit to calibrate a sampling unit using

this newer technology, as opposed to 30 minutes using the traditional

calibration systems addressed in IR 1121. MSHA has determined that this

proposed rule does not meet the criteria for a significant regulatory

action and, therefore, has not prepared a separate analysis of costs

and benefits. The analysis contained in this preamble meets MSHA's

responsibilities under Executive Order 12866 and the Regulatory

Flexibility Act.

IV. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires regulatory agencies

to consider a rule's impact on small entities. Under the RFA, MSHA must

use the Small Business Administration (SBA) definition for a small mine

of 500 or fewer employees 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. Although MSHA traditionally has considered small mines to be

those with fewer than 20 employees, MSHA has analyzed the impact of the

proposed rule on mines with 500 or fewer employees for the purposes of

the RFA.

Regulatory Flexibility Certification

In accordance with Sec. 605 of the RFA, MSHA certifies that this

proposed rule would not have a significant economic impact on a

substantial number of small entities. No small governmental

jurisdictions or nonprofit organizations are affected.

Under the Small Business Regulatory Enforcement Fairness Act

(SBREFA) amendments to the RFA, MSHA must include in the proposed rule

a factual basis for this certification. The Agency also must publish

the regulatory flexibility certification in the Federal Register, along

with its factual basis. The Agency believes that this analysis provides

a reasonable basis for the certification in this case.

The Agency has provided a copy of this proposed rule and regulatory

flexibility certification statement to the SBA Office of Advocacy. In

addition, MSHA will mail a copy of the proposed rule, including the

preamble and regulatory flexibility certification statement, to all

affected mines and miners' representatives.

Factual Basis for Certification

MSHA used a qualitative approach in concluding that the proposed

rule would not have a significant economic impact on a substantial

number of small entities. This proposed rule updates the regulations to

incorporate by reference the latest revision of an MSHA informational

report describing the calibration and maintenance procedures for coal

mine respirable dust sampling units. The benefit of updating provisions

is that MSHA regulations would be clearer and reflect advances in

technology. This proposed rule would have no economic impact on the

mining industry. The cost impact on mines employing fewer than 20

miners or those employing 500 or fewer miners would be the same as

under the existing rule.

VI. Unfunded Mandates Reform Act

For purposes of the Unfunded Mandates Reform Act of 1995, as well

as Executive Order 12875, this proposed rule does not include any

Federal mandate that may result in increased expenditures by State,

local, and tribal governments, or by the private sector.

V. Executive Order 13045

In accordance with Executive Order 13045, Protection of Children

from Environmental Health Risks and Safety Risks, MSHA has evaluated

the environmental health and safety risks of the proposed rule on

children. The Agency has determined that the proposed rule would have

no effect on children.

VI. National Environmental Policy Act

The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.

4321 et. seq.) requires each Federal agency to consider the

environmental effects of proposed actions and to prepare an

Environmental Impact Statement on major actions significantly affecting

the quality of the human environment. MSHA has reviewed the proposed

standards in accordance with the requirements of NEPA, the regulations

of the Council on Environmental Policy (40 CFR 1500), and the NEPA

procedures of the Department of Labor (29 CFR 11). As a result of this

review, MSHA has determined that this proposed rule would have no

environmental impact.

List of Subjects in 30 CFR Parts 70, 71, and 90

Coal mines, Incorporation by reference, Scientific equipment, Mine

safety and health.

Dated: August 24, 1998.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.

Accordingly, under the authority of 30 U.S.C. 811 and for the

reasons set out in the preamble, MSHA proposes to amend chapter I,

title 30 of the Code of Federal Regulations as follows:

PART 70--[AMENDED]

1. The authority citation for part 70 continues to read as follows:

Authority: 30 U.S.C. 811, 813(h), 957, 961.

2. The authority citation for subpart C is revised to read as

follows:

Authority: 30 U.S.C. 811, 813(h), 957, 961.

3. Section 70.204 is amended by revising paragraphs (a) and (e) to

read as follows:

Sec. 70.204 Approved sampling devices; maintenance and calibration.

(a) Approved sampling devices shall be maintained as approved under

part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and

calibrated in accordance with MSHA Informational Report IR 1240

``Calibration and Maintenance Procedures for Coal Mine Respirable Dust

Samplers (supersedes IR 1121)'' by a person certified in accordance

with Sec. 70.203 (Certified person; maintenance and calibration).

* * * * *

(e) MSHA Informational Report IR 1240 referenced in paragraph (a)

of this section is incorporated by reference.

[[Page 47126]]

This incorporation by reference was approved by the Director of the

Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

Copies may be inspected or obtained at MSHA, Coal Mine Safety and

Health, 4015 Wilson Boulevard, Room 816, Arlington, VA 22203 and at

each MSHA Coal Mine Safety and Health district and subdistrict office.

Copies may be inspected at the Office of the Federal Register, 800

North Capitol Street NW., Suite 700, Washington, DC.

PART 71--[AMENDED]

4. The authority citation for part 71 continues to read as follows:

Authority: 30 U.S.C. 811, 951, 957, 961.

5. The authority citation for subpart C is revised to read as

follows:

Authority: 30 U.S.C. 811, 951, 957, 961.

6. Section 71.204 is amended by revising paragraphs (a) and (e) to

read as follows:

Sec. 71.204 Approved sampling devices; maintenance and calibration.

(a) Approved sampling devices shall be maintained as approved under

part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and

calibrated in accordance with MSHA Informational Report IR 1240

``Calibration and Maintenance Procedures for Coal Mine Respirable Dust

Samplers (supersedes IR 1121)'' by a person certified in accordance

with Sec. 71.203 (Certified person; maintenance and calibration).

* * * * *

(e) MSHA Informational Report IR 1240 referenced in paragraph (a)

of this section is incorporated by reference. This incorporation by

reference was approved by the Director of the Federal Register in

accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies may be

inspected or obtained at MSHA, Coal Mine Safety and Health, 4015 Wilson

Boulevard, Room 816, Arlington, VA 22203 and at each MSHA Coal Mine

Safety and Health district and subdistrict office. Copies may be

inspected at the Office of the Federal Register, 800 North Capitol

Street NW., Suite 700, Washington, DC.

PART 90--[AMENDED]

7. The authority citation for part 90 continues to read as follows:

Authority: 30 U.S.C. 811, 813(h).

8. The authority citation for subpart C is revised to read as

follows:

Authority: 30 U.S.C. 811, 813(h), 957.

9. Section 90.204 is amended by revising paragraphs (a) and (e) to

read as follows:

Sec. 90.204 Approved sampling devices; maintenance and calibration.

(a) Approved sampling devices shall be maintained as approved under

part 74 (Coal Mine Dust Personal Sampler Units) of this chapter and

calibrated in accordance with MSHA Informational Report IR 1240

``Calibration and Maintenance Procedures for Coal Mine Respirable Dust

Samplers ``(supersedes IR 1121)'' by a person certified in accordance

with Sec. 90.203 (Certified person; maintenance and calibration).