Mine Rescue Teams, 7636-7655 [08-551]

Download as PDF 7636 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Parts 49 and 75 RIN 1219–AB53 Mine Rescue Teams Mine Safety and Health Administration (MSHA), Labor. ACTION: Final rule. AGENCY: jlentini on PROD1PC65 with RULES2 SUMMARY: The final rule revises MSHA’s existing standards for mine rescue teams for underground coal mines. This final rule implements Section 4 of the Mine Improvement and New Emergency Response (MINER) Act of 2006 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. DATES: Effective date: February 8, 2008. Compliance dates: Each mine operator shall comply with the following sections by the dates listed below. 1. § 49.12(h) by May 8, 2008. 2. § 49.12(f) and § 75.1501(a)(2) by August 8, 2008. 3. § 49.40 by November 10, 2008. 4. §§ 49.18(b), 49.20(a), 49.20(b), 49.30, and 49.50 by February 9, 2009. 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. Technical Amendments to Existing Standards B. Subpart B—Mine Rescue Teams for Underground Coal Mines; Amendments to Existing Requirements C. Subpart B—Mine Rescue Teams for Underground Coal Mines; Additional MINER Act Provisions IV. Regulatory Economic Analysis A. Executive Order 12866 B. Population at Risk C. 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 VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 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 implements Section 4 of the Mine Improvement and New Emergency Response (MINER) Act of 2006. MSHA’s objective, consistent with the MINER Act, is to develop a final rule that fosters an environment that results in more preparation for mine rescue and mine emergency response. The final rule, like the proposal, retains all existing standards as subpart A applicable to underground metal and nonmetal mines. The MINER Act is not applicable to metal and nonmetal mines. The final rule creates a new, separate, subpart B containing existing standards and MINER Act provisions for underground coal mines. MSHA developed this final rule based on the provisions of the MINER Act, Agency data and experience, testimony at the public hearings, and the comments on the proposed rule. MSHA is providing delayed compliance dates for some sections to give mine operators the time needed to comply with the stated requirements. 1. By May 8, 2008, each mine operator must send the District Manager a statement describing the mine’s method of providing mine rescue coverage in accordance with § 49.12(h). 2. By August 8, 2008— • Each mine must have a mine rescue station located no more than 1 hour ground travel time from the mine in accordance with § 49.12(f). If equipment is not readily available, the operator must have purchase orders for the required equipment. • The mine operator must have a responsible person knowledgeable about mine emergency response, who has completed the course of instruction in PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 mine emergency response prescribed by MSHA in accordance with § 75.1501(a)(2). 3. By November 10, 2008, each operator of a large mine must have either an individual mine-site team or a composite team as one of the mine’s certified mine rescue teams in accordance with § 49.40. 4. By February 9, 2009— • Mine rescue team members must have completed 96 hours of annual training, including participation in two local mine rescue contests and training at each covered mine in accordance with § 49.18(b). • Each mine operator shall make available two certified mine rescue teams whose members are familiar with the operations of the mine and have participated in two local mine rescue contests in accordance with § 49.20(a). • Each team providing coverage to a mine must be knowledgeable about the operations and ventilation of the mine in accordance with §§ 49.20(b) and 49.30. • Each mine operator must certify to the District Manager that each team designated to provide mine rescue coverage to the mine meets the requirements for certification in accordance with § 49.50. 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 in underground coal and metal and nonmetal mines (45 FR 47002, July 11, 1980). Part 49 contains requirements addressing the three essential elements of effective mine rescue teams: (1) Ready availability; (2) proper equipment; and (3) basic levels of skills and training. After several underground coal mine disasters in 2006, Congress passed and the President signed the Mine Improvement and New Emergency Response (MINER) Act of 2006, which became effective on June 15, 2006. The goal of the MINER Act is ‘‘to improve the safety of mines and mining.’’ Section 4 of the MINER Act requires that the Secretary issue regulations for mine rescue teams by December 2007. Because the mine rescue team provisions contained in section 4 of the MINER Act apply only to underground coal mines, the final rule affects those mines and the mine rescue teams that cover them. MSHA published the proposed rule for Mine Rescue Teams in the Federal Register on September 6, 2007 (72 FR 51320). The Agency held four public E:\FR\FM\08FER2.SGM 08FER2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations 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 from November 9, 2007, to November 16, 2007. This action allowed commenters sufficient time to review the posted transcripts and submit comments. III. Section-by-Section Analysis MSHA developed this final rule based on the provisions of the MINER Act, Agency experience, testimony at the public hearings, and the comments on the proposed rule. A. Technical Amendments to Existing Standards This final rule makes no substantive change to requirements for mine rescue teams at underground metal and nonmetal mines; however, it makes the following non-substantive organizational changes to 30 CFR part 49. • The final rule adds a heading designating the existing standards as Subpart A—Mine Rescue Teams for Underground Metal and Nonmetal Mines; but makes no changes to §§ 49.1 through 49.9. • The final rule deletes § 49.10 Effective date, which is obsolete. B. Subpart B Subpart B contains all the standards applicable to mine rescue teams for underground coal mines. The final rule revises existing standards to implement the provisions and achieve the goals of the MINER Act, and to address the unique conditions present in anthracite coal mines. The final rule also revises existing § 75.1501(a) in 30 CFR part 75 to implement a MINER Act requirement. Subpart B contains the following five new standards: § 49.20 Requirements for all coal mines. § 49.30 Requirements for small coal mines. § 49.40 Requirements for large coal mines. § 49.50 Certification of coal mine rescue teams. § 49.60 Requirements for a local mine rescue contest. jlentini on PROD1PC65 with RULES2 1. New Subpart B and the Reorganization of Part 49 The final rule, like the proposal, retains all existing standards as subpart A applicable to underground metal and nonmetal mines and creates a new, separate, subpart B containing existing VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 standards and the MINER Act provisions for underground coal mines. In the proposal, MSHA requested comments on the re-organization of 30 CFR part 49. Commenters supported the re-organization and thought that it was beneficial in eliminating confusion. A commenter expressed concern regarding use of separate standards for different industries and urged MSHA to be cautious of this approach. MSHA’s approach in the final rule is consistent with the Agency’s longstanding practice of having separate standards for different industries. MSHA also requested comments on whether the proposal would result in different approaches to providing mine rescue services and, if so, what those approaches would be. Commenters expressed a variety of concerns, most related to team composition and training at each covered mine. 2. Section 49.11 Purpose and Scope The final rule, like the proposal, adds the phrase, ‘‘as amended by the Mine Improvement and New Emergency Response Act of 2006,’’ to update § 49.11 Purpose and scope. This change is a technical amendment. The final rule also designates the existing provision as paragraph (a) and adds a new paragraph (b). Paragraph (b) contains Table 49.11, which provides mine operators a summary of new MINER Act requirements. As noted following the table, state employees, whose primary job duties include (1) inspecting underground mines for compliance with state safety laws, (2) training mine rescue teams, or (3) other similar duties that would enhance their mine rescue knowledge, can substitute their regular job experience for 50 percent of the annual training requirements, including mine rescue contests and mine-site training. MSHA requested comments on allowing State employees on mine rescue teams to substitute their job experience for 50 percent of the annual training requirements. Most commenters agreed that job duties can substitute for some of the required training. One commenter suggested that job experience should substitute for all training requirements. Some commenters stated that all mine rescue team members should be allowed to substitute job experience for training requirements. Several commenters stated that individual job duties should not be allowed to substitute for any mine rescue team training for any mine rescue team members. State employees on mine rescue teams involved in full-time inspection and mine rescue training activities have PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 7637 developed an expertise that will enhance mine rescue team emergency response capabilities. They are dedicated professionals who are familiar with mines they cover and knowledgeable about mine rescue and other areas of mine safety and health training. On a daily basis, they are exposed to a variety of mining environments, complex conditions, different problems, and new issues. This affords them a broad perspective into the safety and health objectives pertaining to mine rescue and mine rescue training. MSHA recognizes the knowledge and experience state employees on mine rescue teams gain in the performance of their jobs. MSHA agrees with the commenters supporting the note to Table 49.11. Under the final rule, fulltime state employees on mine rescue teams must complete at least 48 hours of refresher training annually, including participation in at least one local mine rescue contest and training at each covered mine at least once every year. 3. Section 49.12 Rescue Teams Availability of Mine (a) § 49.12(b) Alternative Composition Requirements for Mine Rescue Teams for Anthracite Coal Mines The final rule, like the proposal, includes requirements for mine rescue teams serving underground anthracite coal mines with no electrical equipment at the working section. The final rule is derived from petitions for modification, which MSHA has historically granted under section 101(c) of the Mine Act, because mining methods and conditions in underground anthracite coal mines are unique. For these mines, MSHA requires mine rescue teams to be comprised of three members each and one alternate team member to serve both teams. In support of these petitions, anthracite mine operators cited the following: • Most anthracite mines are not highly mechanized. Production and maintenance work is done largely by hand, using simple hand tools and equipment. Anthracite mines may have no underground electric power or may have power only at the bottom of the hoist slope. • Typically, extraction occurs in a single face or production area. Many anthracite mines are developed only short distances underground, rarely more than several thousand feet. • Anthracite seams dip steeply and are often near vertical. Openings are narrow and constricted. Access between levels is by means of hardwood ladders E:\FR\FM\08FER2.SGM 08FER2 7638 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations through small, steeply pitched openings. • The hoist bucket, used to transport personnel, typically can accommodate no more than four persons. • Rock dusting is not required because of the extremely low combustibility of anthracite coal, caused by its low volatile content. • The average underground anthracite mine employs four miners. • In the past 20 years, no more than one mine rescue team has been needed in the anthracite region for rescue and recovery activities. Further, no more than three rescue team members have entered a working place at the same time during such activities. In accordance with section 101(c) of the Mine Act, MSHA investigated each petition of § 49.2(b) from these small, underground anthracite coal mines and made the following finding: jlentini on PROD1PC65 with RULES2 Considering this confirmation and the narrow width and constricted openings, the limited capacity of hoist conveyances, the pitched seam, the short travel distance from the slope bottom to the working face, and the low combustibility of anthracite coal, petitioner’s alternative method of two mine rescue teams with three members each is as safe as maintaining two teams of five members. As such, it achieves the result of the standard to ensure the availability of mine rescue capability for purposes of emergency rescue and recovery. On the basis of the petitions and the findings of its investigations, MSHA granted 22 petitions for modification of § 49.2(b) that allow anthracite coal mines to operate under the approved alternate method. Currently, 10 underground anthracite coal mines operate under this approved alternative method. Most anthracite mines are small (average 5 employees) and could not have their own mine site teams, are located in the same geographical area, and belong to an association called ‘‘Anthracite Underground Rescue’’ (AUGR). AUGR and the Pennsylvania Bureau of Mine Safety (Bureau) have an agreement for mine rescue training. AUGR provides qualified miners to be trained in mine rescue and the State provides a mine rescue station, equipment, and a trainer. These teams cover all the anthracite mines. Commenters supported this provision. One commenter stated that the proposed alternative does not benefit two small anthracite mines that have electrical face equipment and they can not realistically start their own company teams. This commenter urged MSHA to consider these teams as composite, but not require team members from each covered mine. The final rule does not VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 expand the proposed provision to underground anthracite coal mines with electrical equipment at the face or working section. This final provision is consistent with MSHA’s action on existing petitions for modification. (b) § 49.12(c) Alternative Experience Requirement for Members of Contract Mine Rescue Teams The final rule, like the proposal and consistent with the MINER Act, requires that members of contract mine rescue teams have ‘‘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.’’ The final rule retains the existing provision that requires mine rescue team members to have been employed in an underground mine for at least 1 year within the past 5 years. MSHA received no comments on this provision. One commenter objected to allowing a surface employee who regularly works underground to claim such time to meet the experience requirement. The final rule retains this existing provision; the proposal did not address it. Another commenter asked that MSHA clarify what it means to work underground ‘‘regularly.’’ For the purpose of this provision, MSHA considers ‘‘regularly works’’ to mean that the member has recurring job duties at each mine, exposing the member to the mine’s underground operations, conditions, and environment. For example, this may include surveyors, engineers, safety personnel, electricians, and maintenance and service personnel. Several commenters requested that MSHA waive this requirement for current mine rescue team members who are employed on the surface. Like the proposal, the final rule waives the underground experience requirement for those miners on a mine rescue team on February 8, 2008. 4. § 49.12(f) Available Within 1 Hour Ground Travel Time From the Mine Rescue Station The final rule, like the proposal, includes the MINER Act requirement that no mine served by a mine rescue team shall be located more than 1 hour ground travel time from the mine rescue station with which the rescue team is associated. This provision will assure that a team will arrive at the mine more quickly in case of a mine emergency. MSHA received numerous comments on this proposal. Commenters questioned whether this provision would improve safety in an actual emergency. Commenters noted that there have been no instances where a PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 team’s arrival delayed a rescue operation and stated that the provision is not justified. Several commenters indicated that the proposal is infeasible for some western coal mines, which are geographically isolated. Likewise, some commenters indicated that rugged terrain in Central Appalachia hinders ground travel, making compliance difficult. A few commenters stated that the proposal will cause the relocation of stations further from some mine sites, disrupt current team coverage, and may result in mine closures. Many commenters indicated that a sufficient number of volunteers may not be available to form additional teams needed for new mine rescue stations. Commenters stated that the establishment of new and relocation of existing rescue stations is an unnecessary, burdensome expense, with no benefit to mine safety. Commenters suggested that MSHA grandfather existing mine rescue stations and current coverage arrangements. Commenters also suggested that MSHA allow the District Manager to grant waivers of the 1 hour ground travel time for existing teams and stations, but only up to 2 hours. Commenters also asked MSHA to consider alternatives, including the use of air transportation and emergency escorts. One commenter did not believe the 1hour provision would cause undue hardship. One commenter stated that more rescue stations would likely be created, resulting in teams getting to the mines sooner. Consistent with the MINER Act, the final rule includes the 1-hour requirement. 5. Section 49.13 Alternative Mine Rescue Capability for Small and Remote Mines The final rule, like the proposal, retains the existing provision for alternative capability for small and remote mines. It requires that the operator’s application include the total underground employment of any mines within 1 hour of the operator’s mine, to be consistent with the 1-hour requirement of the MINER Act. It also requires that the operator include the location of the mine rescue station serving the mine. Commenters suggested alternatives that the District Manager should consider for small and remote mines. Other commenters stated that this provision should not be used to allow remote operations with large numbers of miners to circumvent the MINER Act requirement for two teams. For clarification, MSHA notes that this provision, which was in the existing standard, requires a mine to be both E:\FR\FM\08FER2.SGM 08FER2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations small and remote before it can file an application. 6. Section 49.14 [Reserved] The final rule, like the proposal, does not include this provision in subpart B because it is not applicable to underground coal mines. MSHA received no comments on this proposal. jlentini on PROD1PC65 with RULES2 7. Section 49.15(a) Mine Rescue Station The final rule, like the proposal, removes the exception related to alternative compliance. The final rule makes no change from the proposal. This final rule is consistent with the goals of the MINER Act. MSHA received no comments on this proposal. 8. Section 49.16(a) Alternative Equipment Requirement for Anthracite Mines The final rule, like the proposal, adds a provision to address underground anthracite coal mines that have no electrical equipment at the face or working section. Through the petition for modification (PFM) process, MSHA allows mine rescue teams for underground anthracite coal mines, which have no electrical equipment at the face or working section, to have three members for each team and one alternate to serve both teams. These operators have submitted petitions for modification to allow the mine rescue station to maintain eight self-contained oxygen breathing apparatus and eight cap lamps and a charging station, rather than twelve of each as required by the existing standard. On the basis of these petitions and the findings of its investigation, MSHA granted 17 petitions for modification of § 49.6(a)(1) and (5) that allow each mine rescue station for anthracite coal mines to have eight self-contained oxygen breathing apparatus, eight cap lamps, and a charging rack, as the approved alternative method. Currently, 10 underground anthracite coal mines operate under this approved alternative method. The final rule requires that mine rescue stations covering anthracite coal mines that 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, consistent with the action taken in existing petitions for modification. For three-person teams and one alternate, this would mean seven self-contained oxygen breathing apparatus and seven cap lamps. Under the final rule, equipment required per team, such as gas detectors, may not be reduced. No commenters objected to VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 this provision, so long as it is consistent with the provisions in the petitions for modification. 9. Section 49.17 Physical requirements for Mine Rescue Team Like the proposed rule, the final rule maintains the existing physical requirements for mine rescue teams. Commenters suggested that MSHA modify the rule to allow the use of corrective glasses in determining distant visual acuity. Although MSHA considered this suggestion, it is beyond the scope of the rulemaking. 10. Section 49.18 Training for Mine Rescue Teams The final rule, like the proposed rule, retains the existing requirements. In the final rule, MSHA has removed obsolete language in § 49.18(a) related to waiver of initial training. All existing teams meet the initial training requirement, making it unnecessary to waive. Like the proposal, the final rule adds paragraph (b)(6), which requires all mine rescue team members, at least once during each 12-month period, to participate in training that includes wearing mine rescue apparatus while in smoke, simulated smoke, or an equivalent environment. Commenters agreed that training in smoke afforded teams skills that would be useful in an actual mine emergency and that several mine rescue teams already perform this training. Although some mine operators or training facilities use actual smoke, operators can use a nontoxic theatrical smoke, which is harmless. For the purposes of this provision, an equivalent environment could include training with glasses or face shields that reduce vision and simulate smoke. This requirement assures that mine rescue team members train in realistic conditions. The final rule increases the 40-hour annual refresher training requirement to 96 hours from 64 hours in the proposed rule. This training must be provided at least 8 hours every 2 months. This increase is in response to comments and is consistent with the goals and objectives of the MINER Act and the recommendations of the Mine Safety Technology and Training Commission (Commission). Some commenters supported the existing requirement of 40 hours of annual training. These commenters generally were concerned that small mines do not have the resources to allow training during work hours and that an increase in this training could affect the mine rescue teams’ ability to attract volunteers. Other commenters suggested 48 hours of annual training was appropriate. They PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 7639 suggested 8 hours of training every 2 months, for a total of 48 hours. They indicated that the increased training time may conflict with mine-site duties, which might preclude experienced miners from participating on rescue teams. Other commenters were not opposed to the proposed 64 hour training requirement. Several noted that their teams’ annual training currently exceeds 64 hours. These commenters noted that the content and quality of this training is more important than the total number of training hours. They requested more flexibility in scheduling training, stating that some mine rescue training occurs irregularly, depending on weather conditions and contest schedules. Other commenters recommended that the annual training requirement be increased to a minimum of 96 hours, given at 8 hours each month. In support of this recommendation, they cited the Commission’s report on Improving Mine Safety Technology and Training: Establishing U.S. Global Leadership (2006). The Commission, composed of members from a cross-section of the mining community, industry, labor, academia, government, including mine rescue practitioners, recommended a minimum of 96 hours of annual training, at 8 hours each month. One commenter also stated that participating in mine rescue contests should not be considered as part of this 96 hours of annual training. Based upon the comments, the Commission’s report, and Agency data and experience, in the final rule MSHA has increased the amount of annual training to 96 hours. In making this decision, MSHA determined that additional annual refresher training is necessary to fully address all of the training requirements in the MINER Act. MSHA also agrees with commenters’ suggestions and the Commission’s report that additional training is necessary to adequately prepare for mine rescue team service. In addition, based on the Commission’s recommendations and MSHA’s experience, MSHA anticipates that this additional training will provide an incremental increase in safety for underground coal miners. Therefore, the final rule increases training from the proposed 64 to 96 hours. In addition to existing requirements, the MINER Act requires that team members be familiar with operations of covered mines, have knowledge of the operation and ventilation of covered mines, and train at covered mines. Also, teams under paragraph (b)(6) need to train in smoke, simulated smoke, or an equivalent environment once annually. E:\FR\FM\08FER2.SGM 08FER2 jlentini on PROD1PC65 with RULES2 7640 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations In order to further improve their skills, teams may also participate in Mine Emergency Response Development (MERD) exercises or other practical simulation exercises, such as a fire or explosion drills. This type of training further enhances teams’ skills in interacting with a command center. Recommended training could also include: first responder training, communications, mine gases, gas detectors, new technology, heat stress, and hazard training unique to the covered mines. In addition, skills training may include building temporary stoppings and seals, using a foam generator underground, and using an air lock to rescue survivors. This additional training will enhance teams’ skills and abilities. The MINER Act also requires mine rescue team members to participate in two local mine rescue contests each year. The final rule will allow up to 16 hours of credit for participation in the two required mine rescue contests. Some commenters objected to including mine rescue contests as a part of the annual training requirement, while others favored such a requirement. Commenters stated that mine rescue contests are designed to increase rescue team skill levels and to facilitate interaction between various rescue teams. MSHA agrees. MSHA believes that mine rescue contests serve a vital role in achieving the purpose of the MINER Act to improve the safety of mines and mining. Historically, they have served to assure that mine rescue teams are well-trained and capable of responding to mine emergencies. Under existing Agency policy, MSHA allows up to 8 hours credit for mine rescue contests toward the annual training requirement. In recognition of the critical need for the team to travel efficiently from the mine rescue station to the covered mine, under the final rule, travel time can be counted toward fulfilling the 96 hour requirement. While the final rule increases the total amount of annual refresher training, it retains the requirement that the training occur at least 8 hours every 2 months. Taking into consideration comments that mine rescue training occurs irregularly, depending on weather conditions and contest schedules, MSHA decided not to reduce the flexibility of scheduling training. Based on MSHA data and experience, 8 hours of training every 2 months is necessary to avoid skills degradation. As the Commission’s report states, The nation’s mine rescue capability rests more heavily on training than on any other aspect of the mine emergency response system. Especially since emergency incidents VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 are relatively rare, the predominant way teams keep their skills sharp, and develop cohesion, enthusiasm, and trust, is through training. The final rule, like the proposed rule and the existing standard, requires that the training courses be conducted by instructors who have been employed in an underground mine and have had a minimum of 1 year experience as a mine rescue team member or mine rescue instructor within the past 5 years. A commenter suggested that MSHA allow experienced underground miners to become instructors even though they do not have 1 year experience as a mine rescue team member. MSHA has not included this suggestion in the final rule to assure that mine rescue team members are instructed by persons with practical mine rescue experience. Mine rescue team instructors who have received MSHA approval prior to the effective date of the final rule would not have to meet this requirement. C. Subpart B—Mine Rescue Teams for Underground Coal Mines; Additional MINER Act Provisions 1. Section 75.1501(a) Person Knowledgeable in Mine Emergency Response The final rule, like the proposal, requires that the responsible person be trained annually in a course of instruction in mine emergency response. This provision implements the MINER Act requirement that the operator have a person employed on each shift who is knowledgeable in mine emergency response. The final rule requires that the responsible person be trained in a course prescribed by MSHA’s office of Educational Policy and Development. The majority of commenters expressed concern that the proposal placed too much responsibility on one person. Some of these commenters thought that the proposal required the responsible person to conduct the activities listed in the proposal, rather than to be trained in those activities. Other commenters expressed concern that the proposal contained excessive training requirements and that the training areas listed were not sufficiently described. One commenter indicated that MSHA must establish and require a standard minimum curriculum along with recommended times for each topic. In response to comments, MSHA has clarified the final rule to require that the responsible person be trained in a course which includes topics listed in the rule. The rule does not establish any new duties for the responsible person. PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Further, in response to comments, the course for the responsible person will be based on a curriculum prescribed by MSHA and placed on the Agency’s Web site. MSHA is developing this course in mine emergency response to assure consistent and comprehensive training. Commenters further requested that the final rule include a recommended duration of time for this training. In light of the fact that MSHA is developing the curriculum for this course, MSHA does not believe that it is either necessary or appropriate to specify a duration for this training. Consistent with other MSHA training requirements, the final rule, like the proposal, requires that the operator certify by signature and date after each responsible person has completed the training and that the certification be kept at the mine for 1 year. MSHA received no comments on this aspect of the proposal. 2. Section 49.20 Requirements for All Coal Mines The final rule addresses MINER Act provisions that are the same for all underground coal mine rescue teams, regardless of the size of the operation. It requires the operator to make available two certified mine rescue teams whose members are familiar with the operations of each coal mine covered by the mine rescue team, participate annually in two local mine rescue contests, and train at the covered mines. a. Section 49.20(a)(1) Familiarity With Operations of Covered Mines This final rule, like the proposal, requires two certified mine rescue teams whose members are familiar with the operations of the mine and participate at least annually in two local mine rescue contests. One commenter stated that while MSHA’s understanding of ‘‘familiarity’’ is acceptable for the knowledge a miner would posses in order to safely perform job duties, it does not adequately describe the level of knowledge a mine rescue team member should posses in order to carry out rescue and recovery duties. Commenters indicated that familiarity with the covered mine was necessary but did not agree with the frequency of training at the covered mine. The final rule adopts the MINER Act requirement of ‘‘familiarity’’ with the operation of the coal mine. Under the final rule, MSHA considers ‘‘familiarity’’ with the operations of the covered mine as first-hand experience of the underground mining conditions and operations at a particular mine. Team members who do not work at the E:\FR\FM\08FER2.SGM 08FER2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations jlentini on PROD1PC65 with RULES2 covered mine become familiar with its operations by participating in mine rescue training at the mine. Training at the mine may include: Identifying the designated escapeways, intakes, returns, the ventilation system, locations and types of fire fighting equipment, the communication system, mine-wide monitoring system, and the type of transportation equipment used at the mine. Also, team members need to be familiar with the location of stored SCSRs, lifelines, breathable air, hardened rooms, and other emergency response equipment or supplies. MSHA recognizes that the amount of time required to familiarize teams with a particular mine will vary, depending on mining conditions. For example, teams may need more time to become familiar with complex mines and newer team members may require more time to achieve this familiarity. For this reason, MSHA is not requiring a minimum amount of time for mine rescue team training underground at each covered mine. MSHA expects the operator to effectively evaluate each team member to determine the amount of training necessary for that person to become familiar with operations at the covered mine. MSHA expects that a portion of each required training session at the mine be conducted in the mine. b. § 49.20(a)(2) Participation in Two Local Mine Rescue Contests Like the proposal, the final rule includes the MINER Act requirement that mine rescue team members participate in two local mine rescue contests annually. Commenters expressed concern with the criteria for, and quality of, mine rescue contests. They were concerned about the availability of acceptable contests. MSHA addresses commenters’ concerns with criteria for mine rescue contests in the discussion of § 49.60, which addresses requirements for a local mine rescue contest. Mine rescue contests are designed to sharpen skills and test the knowledge of team members who would be called on to respond to a mine emergency. Historically, mine rescue contests have provided individuals with practical, hands-on experience and are one of the most effective forms of training. Some team members who are regular participants in contests have been called on in recent years to perform actual mine rescue and recovery work. They have done so successfully and training exercises, such as mine rescue contests, were essential to maintaining a wellprepared team. A commenter stated that participation in two back-to-back contests is VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 counterproductive because the teams need time to analyze and discuss in depth their performance during the contest. Contest judges evaluate teams and provide a written evaluation and score after each contest. Contest judges will evaluate each team and judge if the team demonstrates acceptable skills to be certified. A copy of the judge’s evaluation will be submitted to the District Manager. MSHA expects that teams learn from constructive feedback and their experiences during contests. In response to this comment, MSHA has changed the proposed criteria for a local mine rescue contest in the final rule to clarify that a contest consists of one or more problems on one or more days with a determined winner. c. § 49.20(b) Requirements for Types of Mine Rescue Teams The final rule, like the proposal, provides for four types of mine rescue teams, consistent with the MINER Act. In response to comments, MSHA has included clarifying changes in the final rule. Commenters generally expressed concern that the description of teams in the MINER Act did not adequately encompass the variety of arrangements for mine rescue service or the composition of mine rescue teams that are currently available to the mining community. Commenters indicated that this provision would disrupt existing mine rescue service, which would be contrary to the goals of the MINER Act. They cautioned that the proposal could result in: Disbanding experienced mine rescue teams; replacing experienced team members with inexperienced ones; inability to attract volunteers to join mine rescue teams; mines losing current coverage arrangements, and possibly mine closures. Commenters objected to the differences in training requirements for large and small mines. In particular, commenters expressed concern that the training differences between types of teams were illogical, requiring mine-site and state-sponsored teams to train more often at each covered small mine than at each covered large mine. Other commenters stated that mine size and complexity should determine the frequency of training at the covered mine, not the type of team. Commenters objected to the proposed requirement that composite teams from small mines need to include two miners from each covered mine. They were concerned about the ability of small mines to generate two volunteers due to their employment. They indicated that small mines are less likely to be able to spare a miner to perform mine rescue PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 7641 training or service. A commenter, however, indicated that small mines should be required to have two team members on composite teams. Several commenters suggested allowing a company team, composed of miners who work for an operator of multiple mines, to be considered a mine-site team so they would not need to have two team members from each covered mine. Commenters also expressed concern that requiring two members from each covered mine may result in teams with too many members, creating logistical training problems and excessive costs. With regard to state-sponsored teams, several commenters suggested that teams composed of non-state employees who use mine rescue equipment and stations provided by the state be considered a state-sponsored or composite team instead of a contract team. Some commenters stated that State-sponsored composite team members should be considered state employees to get credit for the time in training at the mine in which they work. In response to commenters’ concerns that the proposal did not effectively encourage the creation of new mine site teams, the final rule requires mine-site teams to train annually at each covered small mine. MSHA expects this change to encourage more mine-site teams. The final rule also requires state-sponsored teams to train annually instead of semiannually at each covered small mine. Additionally, at small mines only, the final rule allows composite teams to have one member from each covered small mine. Also in response to comments, for the purpose of mine rescue team membership, a member employed by an operator of multiple mines is considered to be an employee of each mine at which the member regularly works. In this section, MSHA considers ‘‘regularly works’’ to mean that the member has recurring job duties at each mine, exposing the member to the mine’s underground operations, ventilation, conditions, and environment. For example, these employees may include surveyors, engineers, safety personnel, electricians, and maintenance and service personnel. One commenter questioned the use of ‘‘a’’ covered mine in the proposal, believing that MSHA meant ‘‘each’’ covered mine. In response to this comment, the final rule includes the term ‘‘each’’ covered mine. d. Knowledge of Operations and Ventilation at the Covered Mine The final rule, like the proposal, requires members of mine rescue teams to have knowledge of the operations and E:\FR\FM\08FER2.SGM 08FER2 7642 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations ventilation at each covered mine. Generally, this would require each team to review the mine’s ventilation maps, roof or ground control methods, emergency response plan, transportation, and communication system. e. Mine Rescue Team Training at Each Covered Mine The final rule, like the proposal, requires that members of mine rescue teams must participate in training at each covered mine, consistent with the MINER Act, MSHA interprets the intent of the MINER Act to require that at least a portion of the training at each covered mine must be conducted underground. Commenters objected to the requirement that teams train at each covered mine. They stated that this training is impractical, overly burdensome, unnecessary, and may negatively affect the ability to attract new team members. In particular, commenters indicated that travel and training time is excessive for contract teams. Several commenters suggested that, to alleviate this burden, team members be allowed to rotate training at each covered mine so that each team member trains at each covered mine at least annually. Some commenters suggested that only two members of each team be required to train at each covered mine and they would brief the team. A commenter suggested that, if the team does not complete training at each covered mine, the team should not be used as a first responder. Under the final rule, the number of training sessions required at the covered mine depends on the mine size and type of mine rescue team. The following chart illustrates the required number of training sessions at each covered mine. TABLE 1.—FREQUENCY OF TRAINING FOR MINE RESCUE TEAM MEMBERS AT EACH COVERED UNDERGROUND COAL MINE EACH YEAR Mine size Type of team Large (more than 36) Mine Site .................................................................................................. Composite ................................................................................................ Contract .................................................................................................... State-sponsored ....................................................................................... jlentini on PROD1PC65 with RULES2 In response to comments, the final rule includes § 49.20(d) to clarify that a portion of the training at each covered mine must be conducted underground. f. Integration of Mine Rescue Team Training Requirements The two new categories of training for mine rescue team members, participation in mine rescue contests and participation in training at the covered mines, complement the existing training. The final rule retains existing requirements for training sessions underground every 6 months; and the wearing of breathing apparatus for a minimum of 2 hours every 2 months. MSHA expects operators to integrate the new requirements, including mine rescue training at the covered mines, with the existing requirements. g. Section 49.20(c) Employee of Multiple Mines The final rule adds this paragraph in response to comments. Commenters requested that the Agency clarify, for mine rescue team purposes only, the employment status of an employee who works at multiple mines for a single operator. For the purpose of mine rescue team membership, this new provision allows a team member employed by an operator of multiple mines to be considered an employee of each mine at which the member regularly works. In this section, MSHA considers ‘‘regularly works’’ to mean that the member has recurring job duties at each mine, exposing the member to the mine’s VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 1 2 4 1 (annually) ................................... (semi-annually) .......................... (quarterly) ................................... (annually) ................................... underground operations, conditions, and environment. For example, this may include surveyors, engineers, safety personnel, electricians, and maintenance and service personnel. 3. Section 49.30 Requirements for Small Coal Mines The final rule, like the proposal, requires that members of mine rescue teams covering a small mine know the operations and ventilation of the mine. In response to comments, MSHA clarifies that small coal mines applies to mines with 36 or fewer underground employees. Commenters asked MSHA to clarify how the Agency would determine employment for purposes of the rule. MSHA recognizes that a small mine’s employment may fluctuate from time to time. MSHA expects operators to use data reported to MSHA for the quarterly employment and coal production report required in § 50.30 to determine the number of underground employees working at a mine. 4. Section 49.40 Requirements for Large Coal Mines The final rule, like the proposal, requires that the mine operator of a large mine designate either an individual mine-site team or a composite team as one of the two mine rescue teams, consistent with the MINER Act. The second mine rescue team can be a minesite, composite, contract, or Statesponsored team. MSHA clarifies that large coal mines applies to mines that PO 00000 Frm 00008 Fmt 4701 Small (36 or fewer) Sfmt 4700 1 2 2 1 (annually). (semi-annually). (semi-annually). (annually). have more than 36 underground employees. MSHA recognizes that a large mine’s employment may fluctuate from time to time. MSHA expects operators to use the data reported to MSHA for the quarterly employment and coal production report required in § 50.30 to determine the number of underground employees working at a mine. 5. Section 49.50 Rescue Teams Certification of Mine The final rule establishes criteria to certify the qualifications of mine rescue teams, consistent with the MINER Act. a. § 49.50(a) Certification Criteria The final rule, like the proposal, requires that a mine operator certify that each of the mine’s two designated mine rescue teams meet the requirements of this subpart. The certification criteria include a certification statement, equipment and training requirements, and the frequency of certification. As in the proposed rule, to be certified, the mine rescue team must be available when miners are underground and within 1 hour ground travel time from the mine rescue station to the mine; team members must be physically fit, experienced working in an underground mine, and properly trained; and the mine rescue station must be adequately equipped. The criteria for these qualifications are contained in the final rule. E:\FR\FM\08FER2.SGM 08FER2 jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations A commenter asked MSHA to clarify whether a mine rescue team member may complete an annual certification statement. Like the proposal, the final rule does not address who completes the annual certification statement. To comply with this requirement, the mine operator must certify and submit the annual certification statement to the District Manager. One commenter objected to operator certification of mine rescue teams because it does not provide for an objective review of a team’s abilities. This commenter also expressed concern about MSHA’s ‘‘lifetime certification’’ of mine rescue instructors and suggested that MSHA require instructors to demonstrate routinely their skill and understanding of mine rescue. The final rule provides that a local mine rescue contest is training that provides an objective evaluation of demonstrated mine rescue team skills. MSHA considers the evaluations of team performance at the two required local mine rescue contests to be an objective test and evaluation of a mine rescue team’s abilities. In response to comments, MSHA has added a requirement in the certification table that judges must certify the results of the two local contests. This will serve to provide further evidence of an objective evaluation of a team’s abilities. The final rule requires that contest judges complete annual training for mine rescue contest judges. As required by the final rule, a local mine rescue contest must use the National Mine Rescue Contest rules, or other rules recognized by MSHA. Contest judges receive comprehensive training on contest rules. At each contest, each mine rescue team has a problem. In general, judges use the following criteria to evaluate team performance: (1) Communication with team members; (2) Time taken to solve problem; (3) Accuracy of markings, e.g. on maps; (4) Team effectiveness in solving problem; (5) Team effectiveness in handling first responder activities, e.g. first-aid; and (6) Team’s use of technology, e.g. testing for methane and other gasses. Teams receive discounts for mistakes, and an overall score. Periodically, MSHA will monitor mine rescue team instructor activities. When a judge finds that a team does not meet minimum skills, MSHA will audit the training and notify the District Manager. Based on this audit, MSHA may revoke the instructor’s approval. For further ease of understanding, MSHA divided the proposed Table on Certification into two tables in the final rule. Table 49.50–A lists the initial criteria to certify the qualifications of VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 mine rescue teams. Table 49.50–B lists the annual criteria to maintain mine rescue team certification. New teams will have to meet these requirements. In response to comments, this final rule includes an optional certification form that operators may use to assist them in complying with this section. This optional form is attached as an appendix to this rule. The form is posted on MSHA’s Web site. MSHA will accept certification statements in all formats, both electronic and paper. (b) § 49.50(b) District Manager Notification The final rule includes a new requirement that an operator must notify the District Manager within 60 days of any change in team membership. Commenters stated that the membership of each team is subject to change and questioned the impact of changes on team certification. MSHA clarifies that a team does not automatically lose its certification when a team replaces a member. Under the final rule, the operator has 60 days in which to notify the District Manager of any change so that MSHA can assure continued compliance. 6. Section49.60 Requirements for a Local Mine Rescue Contest The final rule, like the proposal, includes criteria for a local mine rescue contest. It also requires that, when requested, the mine operator must provide information to the District Manager concerning each designated team’s schedule of participation in upcoming local mine rescue contests. Paragraph (a) of this section in the final rule requires that a local mine rescue contest is: conducted in the United States; uses MSHA recognized rules; has a minimum of 3 teams; and has one or more problems conducted on one or more days with a determined winner. With respect to the requirement that contests use MSHA-recognized rules, commenters stated that all contests should use MSHA National Contest rules; others indicated that contests should concentrate on the practical aspects of mine rescue and not focus on compliance with rules. Some said the contest rules may be too restrictive. Like the proposal, the final rule does not require contest organizers to use the National Mine Rescue Contest Rules; it allows other rules recognized by MSHA. Commenters wanted MSHA to clarify the term ‘‘participate,’’ as used in the proposal. As is existing practice, MSHA recognizes a team as participating when the team is present and competes. Also, in response to comments, MSHA will PO 00000 Frm 00009 Fmt 4701 Sfmt 4700 7643 consider State-sponsored teams, whose members are full-time state employees, as participating in a local mine rescue contest when performing duties as contest judges or officials. One commenter supported the proposed requirement stating that this would allow companies to put on their own mine rescue contests and have intra-company training. Another commenter questioned whether permitting competitions with as few as three participating teams is adequate. As stated in the proposal, MSHA intends that requiring a minimum of three teams for a local mine rescue contest will encourage more contests among teams in close geographic proximity. Therefore, the final rule requires a minimum of three competing teams in a local mine rescue contest. Commenters indicated that participation in a mine rescue contest is an opportunity to demonstrate the results of training. Teams spend a lot of time preparing for contests. As stated in the proposal, teams must prepare to compete as if the contest were an actual mine emergency. MSHA agrees that preparation for a contest is a vital component of team training, along with the interaction with other teams and the evaluation provided by judges. Competing while being timed, observed, and judged creates a stressful environment that provides an effective forum for evaluating and testing the team’s level of knowledge and skill under simulated mine emergency conditions. The ability to make effective decisions quickly, while under stress and wearing breathing apparatus, is a vital skill for each mine rescue team member to develop. Most commenters agreed that, in order for judges to administer the mine rescue contest fairly and provide appropriate and meaningful evaluations, judges should have a strong background in mine rescue. In addition, most commenters agreed that there should be prescribed areas of annual training for contest judges, but did not want a minimum required amount of time. Some stated that judges’ training on the rules should address changes in the rules only. MSHA disagrees because training should always be comprehensive. This strengthens existing skills and knowledge and accommodates new judges. Some commenters indicated that persons with knowledge of mine rescue principles and practices and experienced in mine rescue should be allowed to serve as judges for local contests. Some said that only MSHA or State personnel should judge contests. A few commenters stated that judges should have actual mine E:\FR\FM\08FER2.SGM 08FER2 7644 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations rescue experience, preferably experience in an actual emergency. MSHA believes that the annual rules training is sufficient to adequately train judges. Paragraph (b) of this section in the final rule clarifies that a local mine rescue contest provides an objective evaluation of demonstrated mine rescue team skills. A number of commenters indicated that there are other simulated mine rescue team exercises that also enhance mine rescue skills and provide an evaluation of the team’s performance. A few commenters expressed concern that MSHA proposed other simulated mine rescue team exercises as a substitute for a local mine rescue contest. A local mine rescue contest provides an objective evaluation of demonstrated mine rescue team skills. In response to these comments, the final rule clarifies that a MERD exercise or practical simulation exercise, such as a fire or explosion response exercise, can be a local mine rescue contest for purposes of this provision. MSHA recognizes that the benefit of preparing for a contest is as valuable as competing. Some commenters said that scheduling issues may preclude some mines from participating in two local mine rescue contests and that additional opportunities to participate in other types of simulated mine rescue exercises allows teams to satisfy this requirement. Two commenters stated that MSHA cannot allow substitution of other training for participation in local mine rescue contests because the MINER Act mandates that teams must participate at least annually in two local mine rescue contests. As stated previously, MSHA considers that participation in simulated mine rescue team exercises, where the members wear breathing apparatus, demonstrate mine rescue team skills, and receive an evaluation of team performance fosters an environment conducive to increased preparation for mine rescue and mine emergency response. As stated in the preamble to the proposed rule, MSHA considers actual underground participation in a rescue or recovery operation as a substitute for participation in a local mine rescue contest. The final rule requires mine operators to notify the appropriate District Manager, on request, when and where their designated teams plan to participate in mine rescue contests. This notice allows MSHA time to prepare for attending the contest and to provide assistance as necessary. This notice also allows MSHA to verify that the contest meets the requirements of this final rule. IV. Regulatory Economic Analysis A. Executive Order 12866 Executive Order (E.O.) 12866 as amended by E.O. 13258 (Amending Executive Order 12866 on Regulatory Planning and Review) requires that regulatory agencies assess both the costs and benefits of regulations. To comply with E.O. 12866, MSHA has prepared a Regulatory Economic Analysis (REA) for the final rule. The REA contains supporting data and explanation for the summary materials presented in this preamble, including the covered mining industry, costs and benefits, feasibility, small business impacts, and paperwork. The REA is located on MSHA’s Web site at https://www.msha.gov/ REGSINFO.HTM. A copy of the REA can be obtained from MSHA’s Office of Standards, Regulations, and Variances at the address in the ADDRESSES section of this preamble. Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of significant regulatory actions. Under the Executive Order, a ‘‘significant regulatory action’’ is one meeting any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. Based on the REA, 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 Executive Order 12866 because it raises novel legal or policy issues. B. Population at Risk The rule applies to 653 underground coal mines covering 42,597 miners and 8,250 (non-office) contractors. Table 2 shows summary data for underground coal mines. TABLE 2.—SUMMARY DATA FOR UNDERGROUND COAL MINES Number of mines Mine size a 1–19 ......................................................... 20–500 ..................................................... >500 ......................................................... All Mines .................................................. a Size Total number of miners b 220 420 13 653 Number of employees underground b Annual revenue (billions) 1,952 29,742 6,503 38,197 $0.3 10.3 3.1 13.7 2,255 32,852 7,490 42,597 Annual cost (millions) $1.1 3.4 0.2 4.8 Cost per mine $5,200 8,200 13,400 7,400 based on total mine employment. not include 1,188 office workers or 8,250 (non-office) contractor employees, 4,096 of which work underground. b Does jlentini on PROD1PC65 with RULES2 C. Costs Table 3 shows a summary of the total yearly cost of this rule for mine operators. MSHA estimates that the rule will result in total yearly costs for the underground coal mining industry of VerDate Aug<31>2005 19:09 Feb 07, 2008 Jkt 214001 approximately $4.8 million. Disaggregated by mine size, yearly costs will be $1.1 million (or approximately $5,200 per mine) for mine operators with fewer than 20 employees; $3.4 million (or about $8,200 per mine) for PO 00000 Frm 00010 Fmt 4701 Sfmt 4700 mine operators with 20–500 employees; and $0.2 million (or about $13,400 per mine) for mine operators with more than 500 employees. All cost estimates are presented in 2006 dollars. E:\FR\FM\08FER2.SGM 08FER2 7645 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations TABLE 3.—SUMMARY OF TOTAL YEARLY COST OF THE RULE FOR UNDERGROUND COAL MINE OPERATORS Mine size Total yearly cost Section 1–19 20–500 501+ One Hour from Mine Rescue Station to Mine a ............................................... Mine Rescue Team Training b ......................................................................... Mine Rescue Contests c .................................................................................. Certification of Mine Rescue Teams d ............................................................. Responsible Person Training & Certification e ................................................. $559,407 379,967 91,915 8,161 95,047 $292,982 2,225,222 552,810 15,580 362,906 $7,000 119,768 30,037 482 16,849 $859,390 2,724,956 674,762 24,223 474,803 Total .......................................................................................................... 1,134,497 3,449,500 174,137 4,758,134 For purposes of the mine rescue team final rule, MSHA has broken down total compliance costs for mines with 1–36 employees and mines with 37 or more employees. Of the $4.8 million total yearly cost of the final rule, underground coal mines with 1–36 employees will incur costs of approximately $2.0 million per year and underground coal mines with 37 or more employees will incur costs of approximately $2.8 million per year. In addition, the final rule will impose costs on State-sponsored mine rescue teams. As shown in Table 4, the total yearly cost of the final rule for Statesponsored mine rescue teams will be about $66,000. Of this, $57,000 will be for training and $8,000 will be for participation in one local mine rescue contests. TABLE 4.—SUMMARY OF TOTAL YEARLY COST OF THE FINAL RULE FOR STATE MINE RESCUE TEAMS Mine size Total yearly cost Section 1–19 20–500 501+ $24,905 6,466 $31,869 8,486 $708 159 $57,482 15,111 Total .......................................................................................................... jlentini on PROD1PC65 with RULES2 Mine Rescue Team Training a ......................................................................... Mine Rescue Contests b .................................................................................. 31,371 40,355 867 72,593 These cost estimates reflect the new requirements in the final rule that no mine served by a mine rescue team be more that one hour ground travel time from the mine rescue station with which the rescue team is associated. The costs are also related to final rule requirements that each mine rescue team, except for qualified State teams, participate in at least two local mine rescue contests annually and that teams train at the mines serviced by the team. To fully address all of the training requirements in the MINER Act, mine rescue team members must have at least 96 hours of refresher training annually, which can include travel time from the mine rescue station to the covered mine and up to 16 hours of participation in mine rescue contests. MSHA estimates that the additional cost attributable to training, relative to the proposed rule, is approximately $600,000. Also, the final rule requires that all underground coal mine operators certify that each of the mine’s designated rescue teams meet the requirements of § 49.50, that the operator have a person employed on each shift who is knowledgeable in mine emergency response, and that the responsible person be trained in a course prescribed by MSHA’s Office of Educational Policy and Development. These cost estimates are based on a number of assumptions, informed by VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 public comments on the proposed rule, that MSHA made with respect to anticipated industry and State responses to the final rule: (1) 28 mine rescue stations will be added to the 92 stations currently serving underground coal mines and 5 mine rescue stations will be relocated; (2) an additional 68 mine rescue teams will be formed; and (3) none of the existing 145 mine rescue teams will disband. In addition, although MSHA is aware that the requirements in the final rule may cause States to increase the number of Statesponsored mine rescue teams and stations, the Agency assumed no change in the existing level of these services in response to the final rule. MSHA also made various changes to its cost estimates in response to public comments on the proposed rule. These changes are discussed in detail in the REA. D. Benefits The purpose of this rule is to enhance the availability and effectiveness of mine rescue teams in the event of an emergency situation at an underground coal 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. In such a situation, the timely arrival of a properly-trained mine PO 00000 Frm 00011 Fmt 4701 Sfmt 4700 rescue team can sometimes mean the difference between life and death. In most instances, other types of rescue units, e.g., a rescue squad from the local fire department, are unlikely to have the specialized training and equipment to respond effectively to an emergency due to the hazardous nature of the underground coal mine environment. A good mine rescue team will have knowledge and familiarity with the mine layout, including the designated escapeways, intakes, returns, locations and types of fire fighting equipment, the communication system, mine-wide monitoring system, the type of transportation equipment used at the mine, the location of stored SCSRs, lifelines, breathable air, hardened rooms, and other emergency response equipment or supplies; know the mine’s roof conditions and ventilation system; and have an established working relationship with mine management and among the team members. These factors provide for more efficient decisionmaking during an emergency and increased confidence in the personnel who implement these decisions. MSHA has qualitatively determined that the final rule will make coal mine rescue teams better able to respond to emergencies when a quick response by rescue teams is vital to miners. The final E:\FR\FM\08FER2.SGM 08FER2 jlentini on PROD1PC65 with RULES2 7646 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations rule will improve overall mine rescue service in three areas: • It will improve mine emergency response time by requiring that mine rescue team members be available at the mine within 1 hour ground travel time from the mine rescue station. • It will increase the quality and effectiveness of training by requiring team members to be familiar with the covered mines’ operations, participate in training at the covered mines, and participate in two local mine rescue contests. A portion of the training must be conducted underground. This training will enhance the team’s knowledge of the underground environment and provide firsthand experience of the underground mining conditions. • It will strengthen the requirements for knowledge and experience of mine rescue team members by requiring them to have knowledge of the operations and ventilation of the covered mines and by requiring contract team members to have at least 3 years underground coal mine experience within the 10-year period preceding their employment on the contract team. The final rule will also increase awareness of the mine operator by requiring the operator to provide two certified mine rescue teams and to have a responsible person knowledgeable in mine emergency response on each shift. The final rule includes criteria for certifying mine rescue teams and clarifies training requirements for the knowledgeable person. Team members employed at a mine must be knowledgeable in mine gases, ventilation, first aid, and other health and safety subjects as they apply generally and at the covered mine. Their level of mine rescue training, combined with their everyday presence during the normal work cycle, provides an added measure of safety for each worker at the mine. The final rule increases the 40-hour annual refresher training requirement to 96 hours from 64 hours in the proposed rule. This additional annual refresher training is necessary to fully address all of the training requirements in the MINER Act and the recommendations of the Mine Safety Training and Technology Commission. It will allow teams to adequately prepare for mine rescue team service. The additional training enhances teams’ skills in interacting with a command center. The additional training could include: first responder training, communications, mine gases, gas detectors, new technology, heat stress, and hazard training unique to the covered mines. Additional skills training may include VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 building temporary stoppings and seals, using a foam generator underground, and using an air lock to rescue survivors. Based on the Commission’s recommendations and MSHA’s experience, this additional training will enhance teams’ skills and abilities. In addition, MSHA anticipates that the additional hours of training will provide an incremental increase in safety for underground coal miners. The final rule also requires mine rescue team members to participate in two local mine rescue contests each year. Mine rescue contests serve a vital role in achieving the purpose of the MINER Act to improve the safety of mines and mining. Historically, they have served to assure that mine rescue teams are well-trained and capable of responding to mine emergencies. They provide a practical forum to objectively evaluate a team’s skills and abilities. The final rule will allow up to 16 hours of credit for participation in the two required mine rescue contests. V. Feasibility MSHA has concluded that the requirements of the final rule are technologically and economically feasible. A. Technological Feasibility This final rule is not a technologyforcing standard and does not involve new scientific knowledge. The requirements of the rule involve training and purchase of equipment and a requirement that the mine rescue station be located closer, within 1 hour (rather than 2 hours) ground travel time to the covered mines. MSHA estimates that this requirement will necessitate additional mine rescue stations and mine rescue teams. MSHA has concluded that the final rule is technologically feasible. B. Economic Feasibility The total cost of the final rule is approximately $4.8 million annually for all underground coal mine operators. These compliance costs are under one percent of the yearly revenues of $13.7 billion for these underground coal mine operators. MSHA concludes that the final rule is economically feasible. VI. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act Pursuant to 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 Council for Advocacy, PO 00000 Frm 00012 Fmt 4701 Sfmt 4700 Small Business Administration (SBA), and made the certification under the Regulatory Flexibility Act at 5 U.S.C. 605(b) 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 in full in Chapter V of the REA and in summary form below. A. Definition of a Small Mine Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration’s (SBA’s) 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 established an alternate definition and 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 impact of this rule on underground coal 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. Therefore, the cost of complying with MSHA’s final rule and the impact of the final rule on small mines will also be different. In addition, MSHA has examined the cost of compliance for underground coal mines with 36 or fewer employees, consistent with the requirements of the MINER Act. The detailed factual basis below also shows the economic impact on underground coal mines with 36 or fewer employees. B. Factual Basis for Certification MSHA initially evaluates the economic impact of a rule on ‘‘small entities’’ by comparing the estimated costs of the rule for small entities to their estimated revenues. When estimated costs are less than one percent of estimated revenues 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. If the estimated costs are equal to or exceed one percent of revenues, MSHA will investigate whether a further analysis is required. For this final rule, MSHA has determined that the estimated costs are less than one percent of the estimated revenues. Therefore, MSHA certifies that this final E:\FR\FM\08FER2.SGM 08FER2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations rule does not have a significant economic impact on a substantial number of small entities. Coal mining revenues are derived from data on the price of coal and total coal production. Total underground coal production in 2006 was 359 million tons. The price of underground coal in 2006 was $38.28 per ton.1 Thus, based on the total amount of coal production and the cost of coal per ton, the total estimated revenue in 2006 for underground coal production was $13.7 billion. Using the same approach, the estimated 2006 underground coal revenue by employment size category is approximately $0.3 billion for 220 mines with 1–19 employees, $1.4 billion for 399 mines with 1–36 employees, and $10.6 billion for 640 mines with 1–500 employees. The final rule results in an average yearly cost per underground coal mine of $5,157 for mines with 1–19 employees; $4,908 for mines with 1–36 employees; and $7,162 for mines with 1–500 employees. The average yearly cost per mine for all underground coal mines is $7,287. When dividing the yearly compliance costs by the annual revenues in each mine size category, the cost of the rule for underground coal mines is 0.38% of revenues for mines with 1–19 employees, 0.14% of revenues for mines with 1–36 employees, and 0.04% of revenues for mines with 1–500 employees. The cost as a percentage of revenues for all underground coal mines will be approximately 0.03%. When applying MSHA’s and SBA’s definition of small entities, the annual cost of the final rule for small mines is substantially less than one percent of their estimated annual revenues. MSHA has certified that the final rule does not have a significant economic impact on a substantial number of small entities that are covered by the final rule. jlentini on PROD1PC65 with RULES2 VII. Paperwork Reduction Act of 1995 A. Summary The mine rescue team final rule retains the existing paperwork burden requirements and imposes several new paperwork burden requirements. Final § 49.16 requires certification of inspection and testing of breathing apparatus, as well as a record of any corrective action taken for breathing apparatus. Final § 49.18 requires preparation of training materials for new mine rescue team members and a record of each new mine rescue team member’s training. The Office of Management and 1 U.S. Dept. of Energy, Energy Information Administration, ‘‘Annual Coal Report 2006,’’ Table 28, October 2007. VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 Budget (OMB) has approved these requirements, which are in existing §§ 49.6 and 49.8, under OMB control number 1219–0078. Final § 49.50 contains a new annual paperwork requirement for mine operators to certify that each designated mine rescue team meets the requirements of this part. Final § 75.1501 also requires mine operators to certify that each responsible person has completed the required mine emergency response training. Overall, the underground coal industry will incur approximately 1,387 paperwork burden hours annually with associated paperwork burden costs of approximately $61,587. MSHA estimates that the final rule will require additional mine rescue teams and equipment. Existing standards require information collection for mine rescue teams and equipment. MSHA will add the information collection burden for additional teams and equipment to that approved under existing Office of Management and Budget (OMB) control number 1219– 0078. For a detailed explanation of how the burden hours and related costs were calculated, see the Paperwork Section of the Regulatory Economic Analysis (REA) accompanying this final rule. The REA is posted on MSHA’s Web site at https://www.msha.gov/REGSINFO.HTM. A copy of the REA can be obtained from MSHA’s Office of Standards, Regulations, and Variances at the address provided in the ADDRESSES section of this preamble. B. Procedural Details The information collection package was submitted to OMB with the proposed rule for review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction Act of 1995, as amended. A copy of the information collection package can be obtained from the Department of Labor by electronic mail request to king.darrin@dol.gov or by phone request to 202–693–4129. Since the proposed rule was published, MSHA has not received any substantive comments on the paperwork collection. 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 result in increased PO 00000 Frm 00013 Fmt 4701 Sfmt 4700 7647 expenditures by State, local, or tribal governments, however, because it places new requirements on underground coal mine operators in providing and training mine rescue teams. These changes will not directly affect States or their relationships with the national government; however, some States sponsor mine rescue teams. B. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of agency actions on family well-being. MSHA has determined that this final rule will have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this final rule will not impact family well-being. C. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights This final rule will not implement a policy with takings implications. Accordingly, E.O. 12630 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. E. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks This final rule will have no adverse impact on children. Accordingly, E.O. 13045 requires no further Agency action or analysis. F. Executive Order 13132: Federalism Executive Order (E.O.) 13132 requires MSHA to develop an accountability 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 E:\FR\FM\08FER2.SGM 08FER2 7648 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations responsibilities among the various levels of government.’’ The final rule places new requirements on underground coal mine operators in providing and training mine rescue teams. 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 mine rescue teams. G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments This final rule does not have ‘‘tribal implications,’’ because it will 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 requires no further Agency action or analysis. H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use Executive Order 13211 requires agencies to publish a statement of energy effect when a rule has a significant energy action that adversely affects energy supply, distribution, or use. MSHA has reviewed the final rule for its impact on the supply, distribution, and use of energy because it applies to the underground coal mining industry. Because this final rule results in yearly costs of approximately $4.8 million to the underground coal mining industry, relative to annual revenues of $13.1 billion in 2006, 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. Accordingly, E.O. 13211 requires no further Agency action. § 49.10 I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking MSHA has thoroughly 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. I I List of Subjects in 30 CFR Parts 49 and 75 Education and training, Mine safety and health, Reporting and recordkeeping requirements. Dated: February 1, 2008. Richard E. Stickler, Acting Assistant Secretary for 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. I PART 49—MINE RESCUE TEAMS 1. The authority citation for part 49 is revised to read as follows: I Authority: 30 U.S.C. 811, 825(e). Subpart A—Mine Rescue Teams for Underground Metal and Nonmetal Mines 2. Add a new subpart A with the heading as shown above consisting of existing §§ 49.1 through 49.9. I [Removed] 3. Remove § 49.10. 4. Add new subpart B to read as follows: Subpart B—Mine Rescue Teams for Underground Coal Mines Sec. 49.11 Purpose and scope. 49.12 Availability of mine rescue teams. 49.13 Alternative mine rescue capability for small and remote mines. 49.14 Reserved. 49.15 Mine rescue station. 49.16 Equipment and maintenance requirements. 49.17 Physical requirements for mine rescue team. 49.18 Training for mine rescue teams. 49.19 Mine emergency notification plan. 49.20 Requirements for all coal mines. 49.30 Requirements for small coal mines. 49.40 Requirements for large coal mines. 49.50 Certification of coal mine rescue teams. 49.60 Requirements for a local mine rescue contest. Appendix to Subpart B—Optional Form for Certifying Mine Rescue Teams Subpart B—Mine Rescue Teams for Underground Coal Mines § 49.11 Purpose and scope. (a) This subpart implements the provisions of section 115(e) of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response (MINER) Act of 2006. Every operator of an underground coal mine shall assure the availability of mine rescue capability for purposes of emergency rescue and recovery. (b) The following Table 49.11 summarizes the new requirements for mine rescue teams contained in section 4 of the MINER Act. TABLE 49.11.—SUMMARY OF NEW MINER ACT REQUIREMENTS FOR UNDERGROUND COAL MINE OPERATORS AND MINE RESCUE TEAMS Type of mine rescue team Requirement Composite Contract Team members must participate at least annually in two local mine rescue contests. 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. jlentini on PROD1PC65 with RULES2 Mine-site YES ..................... YES ..................... YES ..................... YES. Annually .............. Semi-annually ..... Annually. Team must be available at the mine within 1 hour ground travel time from the mine rescue station. Team members must be knowledgeable about the operations and ventilation of each covered mine. 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 ..................... YES ..................... Quarterly at Large Mines; Semiannually at Small Mines. YES ..................... YES ..................... YES ..................... YES ..................... YES. ............................. YES ..................... ......................... VerDate Aug<31>2005 19:09 Feb 07, 2008 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4700 E:\FR\FM\08FER2.SGM 08FER2 State-sponsored * YES. Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations 7649 TABLE 49.11.—SUMMARY OF NEW MINER ACT REQUIREMENTS FOR UNDERGROUND COAL MINE OPERATORS AND MINE RESCUE TEAMS—Continued Type of mine rescue team Requirement Mine-site 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. 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. Composite Contract ............................. ............................. State-sponsored * YES ..................... * Note: 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 (annual training which includes mine rescue contests and mine-site training) for non-State employee mine rescue team members. jlentini on PROD1PC65 with RULES2 § 49.12 Availability of mine rescue teams. (a) Except where alternative compliance is permitted for small and remote mines (§ 49.13), every operator of an underground mine shall: (1) Establish at least two mine rescue teams which are available at all times when miners are underground; or (2) Enter into an arrangement for mine rescue services which assures that at least two mine rescue teams are available at all times when miners are underground. (b) Each mine rescue team shall consist of five members and one alternate who are fully qualified, trained, and equipped for providing emergency mine rescue service. Mine rescue teams for anthracite coal mines, which have no electrical equipment at the face or working section, shall consist of at least three members per team and one alternate that may be shared between both teams. (c) To be considered for membership on a mine rescue team, each person must have been employed in an underground mine for a minimum of 1 year within the past 5 years, except that members of contract mine rescue teams shall have 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. For the purpose of mine rescue work only, miners who are employed on the surface but work regularly underground shall meet the experience requirement. The underground experience requirement is waived for those miners on a mine rescue team on February 8, 2008. (d) Each operator shall arrange, in advance, ground transportation for rescue teams and equipment to the mine or mines served. (e) The required rescue capability shall be present at all existing underground mines, upon initial VerDate Aug<31>2005 19:09 Feb 07, 2008 Jkt 214001 excavation of a new underground mine entrance, or the re-opening of an existing underground mine. (f) No mine served by a mine rescue team shall be located more than 1 hour ground travel time from the mine rescue station with which the rescue team is associated. (g) As used in this subpart, mine rescue teams shall be considered available where teams are capable of presenting themselves at the mine site(s) within a reasonable time after notification of an occurrence which might require their services. Rescue team members will be considered available even though performing regular work duties or in an off-duty capacity. The requirement that mine rescue teams be available shall not apply when teams are participating in mine rescue contests or providing services to another mine. (h) Each operator of an underground mine who provides rescue teams under this section shall send the District Manager a statement describing the mine’s method of compliance with this subpart. The statement shall disclose whether the operator has independently provided mine rescue teams or entered into an agreement for the services of mine rescue teams. The name of the provider and the location of the services shall be included in the statement. A copy of the statement shall be posted at the mine for the miners’ information. Where a miners’ representative has been designated, the operator shall also provide the representative with a copy of the statement. § 49.13 Alternative mine rescue capability for small and remote mines. (a) If an underground mine is small and remote, an operator may provide for an alternative mine rescue capability consistent with statutory requirements. For the purposes of this subpart only, PO 00000 Frm 00015 Fmt 4701 Sfmt 4700 consideration for small and remote shall be given where the total underground employment of the operator’s mine and any surrounding mine(s) within 1 hour ground travel time of the operator’s mine is less than 36. (b) An application for alternative mine rescue capability shall be submitted to the District Manager for the district in which the mine is located for review and approval. (c) Each application for an alternative mine rescue capability shall contain: (1) The number of miners employed underground at the mine on each shift; (2) The location of the designated mine rescue station serving the mine; (3) The total underground employment of mines within 1 hour ground travel time of the operator’s mine; (4) The operator’s mine fire, ground, and roof control history; (5) The operator’s established escape and evacuation plan; (6) A statement by the operator evaluating the usefulness of additional refuge chambers to supplement those which may exist; (7) A statement by the operator as to the number of miners willing to serve on a mine rescue team; (8) The operator’s alternative plan for assuring that a suitable mine rescue capability is provided at all times when miners are underground; and (9) Other relevant information about the operator’s mine which may be requested by the District Manager. (d) A copy of the operator’s application shall be posted at the mine. Where a miners’ representative has been designated, the operator shall also provide the representative with a copy of the application. (e) In determining whether to approve an application for alternative compliance, the District Manager shall consider: E:\FR\FM\08FER2.SGM 08FER2 7650 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations (1) The individual circumstances of the small and remote mine; (2) Comments submitted by, or on behalf of, any affected miner; and (3) Whether the alternative mine rescue plan provides a suitable rescue capability at the operator’s mine. (f) Where alternative compliance is approved by MSHA, the operator shall adopt the alternative plan and post a copy of the approved plan (with appropriate MSHA mine emergency telephone numbers) at the mine for the miners’ information. Where a miners’ representative has been designated, the operator shall also provide the representative with a copy of the approved plan. (g) The operator shall notify the District Manager of any changed condition or factor materially affecting information submitted in the application for alternative mine rescue capability. (h)(1) An approved plan for alternative mine rescue capability shall be subject to revocation or modification for cause by MSHA, where it is determined that a condition or factor has changed which would materially alter the operator’s mine rescue capability. If such action is contemplated, the operator will be notified, and given an opportunity to be heard before the appropriate District Manager. (2) If an application for alternative compliance is denied or revoked, the District Manager shall provide the reason for such denial or revocation in writing to the operator. The operator may appeal this decision in writing to the Administrator for Coal Mine Safety and Health. [Reserved] § 49.15 jlentini on PROD1PC65 with RULES2 § 49.14 Mine rescue station. (a) Every operator of an underground mine shall designate, in advance, the location of the mine rescue station serving the mine. (b) Mine rescue stations are to provide a centralized storage location for rescue equipment. This centralized storage location may be either at the mine site, affiliated mines, or a separate mine rescue structure. (c) Mine rescue stations shall provide a proper storage environment to assure equipment readiness for immediate use. (d) Authorized representatives of the Secretary shall have the right of entry to inspect any designated mine rescue station. § 49.16 Equipment and maintenance requirements. (a) Each mine rescue station shall be provided with at least the following VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 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 oxygen breathing apparatus, each with a minimum of 2 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, oxygen generating or carbon dioxide absorbent chemicals, as applicable to the supplied breathing apparatus and sufficient to sustain each team for 6 hours while using the breathing apparatus during rescue operations; (3) One extra oxygen bottle (fully charged) for every six self-contained compressed oxygen 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) Two gas detectors appropriate for each type of gas which may be encountered at the mines served; (7) Two oxygen indicators or two flame safety lamps; (8) One portable mine rescue communication system (approved under part 23 of this chapter) or a soundpowered communication system. The wires or cable to the communication system shall be of sufficient tensile strength to be used as a manual communication system. These communication systems shall be at least 1,000 feet in length; and (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 assure readiness for immediate use. 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. 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. 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. PO 00000 Frm 00016 Fmt 4701 Sfmt 4700 § 49.17 Physical requirements for mine rescue team. (a) Each member of a mine rescue team shall be examined annually by a physician who shall certify that each person is physically fit to perform mine rescue and recovery work for prolonged periods under strenuous conditions. The first such physical examination shall be completed within 60 days prior to scheduled initial training. A team member requiring corrective eyeglasses will not be disqualified provided the eyeglasses can be worn securely within an approved facepiece. (b) In determining whether a miner is physically capable of performing mine rescue duties, the physician shall take the following conditions into consideration: (1) Seizure disorder; (2) Perforated eardrum; (3) Hearing loss without a hearing aid greater than 40 decibels at 400, 1000, and 2000 Hz; (4) Repeated blood pressure (controlled or uncontrolled by medication) reading which exceeds 160 systolic, or 100 diastolic, or which is less than 105 systolic, or 60 diastolic; (5) Distant visual acuity (without glasses) less than 20/50 Snellen scale in one eye, and 20/70 in the other; (6) Heart disease; (7) Hernia; (8) Absence of a limb or hand; or (9) Any other condition which the examining physician determines is relevant to the question of whether the miner is fit for rescue team service. (c) The operator shall have MSHA Form 5000–3 (available at https:// www.msha.gov) certifying medical fitness completed and signed by the examining physician for each member of a mine rescue team. These forms shall be kept on file at the mine rescue station for a period of 1 year. § 49.18 Training for mine rescue teams. (a) Prior to serving on a mine rescue team each member shall complete, at a minimum, an initial 20-hour course of instruction as prescribed by MSHA’s Office of Educational Policy and Development, in the use, care, and maintenance of the type of breathing apparatus which will be used by the mine rescue team. (b) Upon completion of the initial training, all team members shall receive at least 96 hours of refresher training annually, which shall include participation in local mine rescue contests and training at the covered mine. Training shall be given at least 8 hours every 2 months and shall consist of: (1) Sessions underground at least once each 6 months; E:\FR\FM\08FER2.SGM 08FER2 7651 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations (2) The wearing and use of the breathing apparatus by team members for a period of at least 2 hours while under oxygen every 2 months; (3) Where applicable, the use, care, capabilities, and limitations of auxiliary mine rescue equipment, or a different breathing apparatus; (4) Advanced mine rescue training and procedures, as prescribed by MSHA’s Office of Educational Policy and Development; (5) Mine map training and ventilation procedures; and (6) The wearing of mine rescue apparatus while in smoke, simulated smoke, or an equivalent environment at least once during each 12-month period. (c) A mine rescue team member will be ineligible to serve on a team if more than 8 hours of training is missed during 1 year, unless additional training is received to make up for the time missed. (d) The training courses required by this section shall be conducted by instructors who have been employed in an underground mine and have had a minimum of 1 year experience as a mine rescue team member or a mine rescue instructor within the past 5 years, and who have received MSHA approval through: (1) Completion of an MSHA or State approved instructor’s training course and the program of instruction in the subject matter to be taught. (2) Designation by the District Manager as approved instructors to teach specific courses, based on their qualifications and teaching experience outlined above. Previously approved instructors need not be re-designated to teach the approved courses as long as they have taught those courses within the 24 months prior to the effective date of this part. (e) The District Manager may revoke an instructor’s approval for good cause. A written statement revoking the approval together with reasons for revocation shall be provided the instructor. The affected instructor may appeal the decision of the District Manager by writing to the Administrator for Coal Safety and Health. The Administrator shall issue a decision on the appeal. (f) Upon request from the District Manager, the operator shall provide information concerning the schedule of upcoming training. (g) A record of training of each team member shall be on file at the mine rescue station for a period of 1 year. § 49.19 Mine emergency notification plan. (a) Each underground mine shall have a mine rescue notification plan outlining the procedures to follow in notifying the mine rescue teams when there is an emergency that requires their services. (b) A copy of the mine rescue notification plan shall be posted at the mine for the miners’ information. Where a miners’ representative has been designated, the operator shall also provide the representative with a copy of the plan. § 49.20 Requirements for all coal mines. (a) The operator of each underground coal mine shall make available two certified mine rescue teams whose members— (1) Are familiar with the operations of the mine, and (2) Participate at least annually in two local mine rescue contests. (b) Team members shall meet the following: (1) Mine-site team. Members who work at the mine and participate in mine rescue training at the mine at least annually. (2) Composite team. A mine rescue team that covers multiple mines and whose members— (i) Include at least two members from each covered large mine and at least one member from each covered small mine, (ii) Are knowledgeable about the operations and ventilation of each covered underground coal mine, and (iii) Participate in mine rescue training at each covered mine at least semi-annually. (3) Contract team. A mine rescue team that is provided by an arrangement with another coal mine or with a third party and whose members— (i) Are knowledgeable about the operations and ventilation of each covered underground coal mine, and (ii) Participate in mine rescue training at each covered large mine at least quarterly and at each covered small mine at least semi-annually. (4) State-sponsored team. Members who are State employees and participate in mine rescue training at each covered mine at least annually. (c) For the purpose of mine rescue team membership, a member employed by an operator of multiple mines is considered to be an employee of each mine at which the member regularly works. (d) For the purpose of mine rescue team training at each covered mine, a portion of the training must be conducted underground. § 49.30 mines. Requirements for small coal At mines with 36 or fewer underground employees, mine rescue team members shall be knowledgeable about the operations and ventilation of each covered mine. § 49.40 Requirements for large coal mines. At mines with more than 36 underground employees, one of the two certified mine rescue teams shall be an individual mine-site team or a composite team. § 49.50 teams. Certification of coal mine rescue (a) For each mine rescue team designated to provide mine rescue coverage at an underground coal mine, the mine operator shall send the District Manager an annual statement certifying that each team meets the requirements of this subpart as listed in the following Table 49.50–A and Table 49.50–B. (b) The operator shall notify the District Manager within 60 days of any change in team membership. TABLE 49.50–A.—INITIAL CRITERIA TO CERTIFY THE QUALIFICATIONS OF MINE RESCUE TEAMS Criteria (30 CFR) jlentini on PROD1PC65 with RULES2 Qualification (1) (2) (3) (4) (5) (6) (7) Team is available at all times when miners are underground .............................................................................................. Except where alternative compliance is permitted, team has five members and one alternate .......................................... Members have experience working in an underground coal mine ....................................................................................... Team is available within 1-hour ground travel time from the mine rescue station to the mine ........................................... Appropriate mine rescue equipment is provided, inspected, tested, and maintained .......................................................... Members are physically fit ..................................................................................................................................................... Members have completed initial training ............................................................................................................................... VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4700 E:\FR\FM\08FER2.SGM 08FER2 49.12(a); 49.12(g) 49.12(b) 49.12(c) 49.12(f) 49.16 49.17 49.18(a) 7652 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations TABLE 49.50–B.—ANNUAL CRITERIA TO MAINTAIN MINE RESCUE TEAM CERTIFICATION Criteria (30 CFR) Qualification (1) (2) (3) (4) Members Members Members Members are properly trained annually ................................................................................................................................. are familiar with the operations of each covered mine ......................................................................................... participate in at least two local mine rescue contests annually. Judges certify results ....................................... participate in mine rescue training at each covered mine .................................................................................... (5) Members are knowledgeable about the operations and ventilation of each covered mine ................................................. § 49.60 Requirements for a local mine rescue contest. jlentini on PROD1PC65 with RULES2 (a) A local mine rescue contest is one that— (1) Is conducted in the United States; (2) Uses MSHA-recognized rules; (3) Has a minimum of three mine rescue teams competing; (4) Has one or more problems conducted on one or more days with a determined winner; (5) Includes team members who— (i) Have the necessary equipment to participate in a simulated mine rescue team exercise, VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 (ii) Participate in a simulated mine rescue team exercise while being timed and observed by trained judges who evaluate the performance of each team and provide written feedback, and (iii) Wear oxygen breathing apparatus while participating in a simulated mine rescue team exercise; and (6) Includes contest judges who have completed annual training for mine rescue contest judges. (b) A local mine rescue contest is training that provides an objective evaluation of demonstrated mine rescue team skills and can be a Mine Emergency Response Development PO 00000 Frm 00018 Fmt 4701 Sfmt 4700 49.18(b) 49.20(a)(1) 49.20(a)(2) 49.20(b)(1); 49.20(b)(2)(iii); 49.20(b)(3)(ii); 49.20(b)(4) 49.20(b)(2)(ii); 49.20(b)(3)(i); 49.30 (MERD) exercise or a practical simulation exercise, such as a fire or explosion drill, where the team participates in simulated mine rescue team exercises and wears breathing apparatus. (c) Upon request from the District Manager, the operator shall provide information concerning each designated team’s schedule of participation in upcoming local mine rescue contests. Appendix to Subpart B—Optional Form for Certifying Mine Rescue Teams BILLING CODE 4510–43–P E:\FR\FM\08FER2.SGM 08FER2 VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4725 E:\FR\FM\08FER2.SGM 08FER2 7653 ER08FE08.000</GPH> jlentini on PROD1PC65 with RULES2 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations VerDate Aug<31>2005 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations 18:18 Feb 07, 2008 Jkt 214001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4725 E:\FR\FM\08FER2.SGM 08FER2 ER08FE08.001</GPH> jlentini on PROD1PC65 with RULES2 7654 Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules and Regulations PART 75—[AMENDED] 5. The authority citation for part 75 continues to read as follows: I Authority: 30 U.S.C. 811. 6. Amend § 75.1501 by revising paragraph (a) to read as follows: I § 75.1501 Emergency evacuations. jlentini on PROD1PC65 with RULES2 (a) For each shift that miners work underground, there shall be in attendance a responsible person designated by the mine operator to take charge during mine emergencies involving a fire, explosion, or gas or water inundation. (1) The responsible person shall have current knowledge of the assigned location and expected movements of miners underground, the operation of the mine ventilation system, the VerDate Aug<31>2005 18:18 Feb 07, 2008 Jkt 214001 location of the mine escapeways, the mine communications system, any mine monitoring system if used, locations of firefighting equipment, the mine’s Emergency Response Plan, the Mine Rescue Notification Plan, and the Mine Emergency Evacuation and Firefighting Program of Instruction. (2) The responsible person shall be trained annually in a course of instruction in mine emergency response, as prescribed by MSHA’s Office of Educational Policy and Development. The course will include topics such as the following: (i) Organizing a command center; (ii) Coordinating firefighting personnel; (iii) Deploying firefighting equipment; (iv) Coordinating mine rescue personnel; PO 00000 Frm 00021 Fmt 4701 Sfmt 4700 7655 (v) Establishing fresh air base; (vi) Deploying mine rescue teams; (vii) Providing for mine gas sampling and analysis; (viii) Establishing security; (ix) Initiating an emergency mine evacuation; (x) Contacting emergency personnel; and (xi) Communicating appropriate information related to the emergency. (3) The operator shall certify by signature and date after each responsible person has completed the training and keep the certification at the mine for 1 year. * * * * * [FR Doc. 08–551 Filed 2–5–08; 2:40 pm] BILLING CODE 4510–43–C E:\FR\FM\08FER2.SGM 08FER2

Agencies

[Federal Register Volume 73, Number 27 (Friday, February 8, 2008)]
[Rules and Regulations]
[Pages 7636-7655]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-551]



[[Page 7635]]

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Part II





Department of Labor





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Mine Safety and Health Administration



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30 CFR Parts 49 and 75



Mine Rescue Teams; Final Rule

Federal Register / Vol. 73, No. 27 / Friday, February 8, 2008 / Rules 
and Regulations

[[Page 7636]]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 49 and 75

RIN 1219-AB53


Mine Rescue Teams

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

ACTION: Final rule.

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SUMMARY: The final rule revises MSHA's existing standards for mine 
rescue teams for underground coal mines. This final rule implements 
Section 4 of the Mine Improvement and New Emergency Response (MINER) 
Act of 2006 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.

DATES: Effective date: February 8, 2008.
    Compliance dates: Each mine operator shall comply with the 
following sections by the dates listed below.
    1. Sec.  49.12(h) by May 8, 2008.
    2. Sec.  49.12(f) and Sec.  75.1501(a)(2) by August 8, 2008.
    3. Sec.  49.40 by November 10, 2008.
    4. Sec. Sec.  49.18(b), 49.20(a), 49.20(b), 49.30, and 49.50 by 
February 9, 2009.

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. Technical Amendments to Existing Standards
    B. Subpart B--Mine Rescue Teams for Underground Coal Mines; 
Amendments to Existing Requirements
    C. Subpart B--Mine Rescue Teams for Underground Coal Mines; 
Additional MINER Act Provisions
IV. Regulatory Economic Analysis
    A. Executive Order 12866
    B. Population at Risk
    C. 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 implements Section 4 of the Mine Improvement and 
New Emergency Response (MINER) Act of 2006. MSHA's objective, 
consistent with the MINER Act, is to develop a final rule that fosters 
an environment that results in more preparation for mine rescue and 
mine emergency response. The final rule, like the proposal, retains all 
existing standards as subpart A applicable to underground metal and 
nonmetal mines. The MINER Act is not applicable to metal and nonmetal 
mines. The final rule creates a new, separate, subpart B containing 
existing standards and MINER Act provisions for underground coal mines. 
MSHA developed this final rule based on the provisions of the MINER 
Act, Agency data and experience, testimony at the public hearings, and 
the comments on the proposed rule.
    MSHA is providing delayed compliance dates for some sections to 
give mine operators the time needed to comply with the stated 
requirements.
    1. By May 8, 2008, each mine operator must send the District 
Manager a statement describing the mine's method of providing mine 
rescue coverage in accordance with Sec.  49.12(h).
    2. By August 8, 2008--
     Each mine must have a mine rescue station located no more 
than 1 hour ground travel time from the mine in accordance with Sec.  
49.12(f). If equipment is not readily available, the operator must have 
purchase orders for the required equipment.
     The mine operator must have a responsible person 
knowledgeable about mine emergency response, who has completed the 
course of instruction in mine emergency response prescribed by MSHA in 
accordance with Sec.  75.1501(a)(2).
    3. By November 10, 2008, each operator of a large mine must have 
either an individual mine-site team or a composite team as one of the 
mine's certified mine rescue teams in accordance with Sec.  49.40.
    4. By February 9, 2009--
     Mine rescue team members must have completed 96 hours of 
annual training, including participation in two local mine rescue 
contests and training at each covered mine in accordance with Sec.  
49.18(b).
     Each mine operator shall make available two certified mine 
rescue teams whose members are familiar with the operations of the mine 
and have participated in two local mine rescue contests in accordance 
with Sec.  49.20(a).
     Each team providing coverage to a mine must be 
knowledgeable about the operations and ventilation of the mine in 
accordance with Sec. Sec.  49.20(b) and 49.30.
     Each mine operator must certify to the District Manager 
that each team designated to provide mine rescue coverage to the mine 
meets the requirements for certification in accordance with Sec.  
49.50.

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 in underground coal and metal and nonmetal mines 
(45 FR 47002, July 11, 1980). Part 49 contains requirements addressing 
the three essential elements of effective mine rescue teams: (1) Ready 
availability; (2) proper equipment; and (3) basic levels of skills and 
training.
    After several underground coal mine disasters in 2006, Congress 
passed and the President signed the Mine Improvement and New Emergency 
Response (MINER) Act of 2006, which became effective on June 15, 2006. 
The goal of the MINER Act is ``to improve the safety of mines and 
mining.'' Section 4 of the MINER Act requires that the Secretary issue 
regulations for mine rescue teams by December 2007. Because the mine 
rescue team provisions contained in section 4 of the MINER Act apply 
only to underground coal mines, the final rule affects those mines and 
the mine rescue teams that cover them.
    MSHA published the proposed rule for Mine Rescue Teams in the 
Federal Register on September 6, 2007 (72 FR 51320). The Agency held 
four public

[[Page 7637]]

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 from 
November 9, 2007, to November 16, 2007. This action allowed commenters 
sufficient time to review the posted transcripts and submit comments.

III. Section-by-Section Analysis

    MSHA developed this final rule based on the provisions of the MINER 
Act, Agency experience, testimony at the public hearings, and the 
comments on the proposed rule.

A. Technical Amendments to Existing Standards

    This final rule makes no substantive change to requirements for 
mine rescue teams at underground metal and nonmetal mines; however, it 
makes the following non-substantive organizational changes to 30 CFR 
part 49.
     The final rule adds a heading designating the existing 
standards as Subpart A--Mine Rescue Teams for Underground Metal and 
Nonmetal Mines; but makes no changes to Sec. Sec.  49.1 through 49.9.
     The final rule deletes Sec.  49.10 Effective date, which 
is obsolete.

B. Subpart B

    Subpart B contains all the standards applicable to mine rescue 
teams for underground coal mines. The final rule revises existing 
standards to implement the provisions and achieve the goals of the 
MINER Act, and to address the unique conditions present in anthracite 
coal mines. The final rule also revises existing Sec.  75.1501(a) in 30 
CFR part 75 to implement a MINER Act requirement.
    Subpart B contains the following five new standards:
    Sec.  49.20 Requirements for all coal mines.
    Sec.  49.30 Requirements for small coal mines.
    Sec.  49.40 Requirements for large coal mines.
    Sec.  49.50 Certification of coal mine rescue teams.
    Sec.  49.60 Requirements for a local mine rescue contest.
1. New Subpart B and the Reorganization of Part 49
    The final rule, like the proposal, retains all existing standards 
as subpart A applicable to underground metal and nonmetal mines and 
creates a new, separate, subpart B containing existing standards and 
the MINER Act provisions for underground coal mines. In the proposal, 
MSHA requested comments on the re-organization of 30 CFR part 49. 
Commenters supported the re-organization and thought that it was 
beneficial in eliminating confusion. A commenter expressed concern 
regarding use of separate standards for different industries and urged 
MSHA to be cautious of this approach. MSHA's approach in the final rule 
is consistent with the Agency's longstanding practice of having 
separate standards for different industries.
    MSHA also requested comments on whether the proposal would result 
in different approaches to providing mine rescue services and, if so, 
what those approaches would be. Commenters expressed a variety of 
concerns, most related to team composition and training at each covered 
mine.
2. Section 49.11 Purpose and Scope
    The final rule, like the proposal, adds the phrase, ``as amended by 
the Mine Improvement and New Emergency Response Act of 2006,'' to 
update Sec.  49.11 Purpose and scope. This change is a technical 
amendment. The final rule also designates the existing provision as 
paragraph (a) and adds a new paragraph (b). Paragraph (b) contains 
Table 49.11, which provides mine operators a summary of new MINER Act 
requirements. As noted following the table, state employees, whose 
primary job duties include (1) inspecting underground mines for 
compliance with state safety laws, (2) training mine rescue teams, or 
(3) other similar duties that would enhance their mine rescue 
knowledge, can substitute their regular job experience for 50 percent 
of the annual training requirements, including mine rescue contests and 
mine-site training.
    MSHA requested comments on allowing State employees on mine rescue 
teams to substitute their job experience for 50 percent of the annual 
training requirements. Most commenters agreed that job duties can 
substitute for some of the required training. One commenter suggested 
that job experience should substitute for all training requirements. 
Some commenters stated that all mine rescue team members should be 
allowed to substitute job experience for training requirements. Several 
commenters stated that individual job duties should not be allowed to 
substitute for any mine rescue team training for any mine rescue team 
members.
    State employees on mine rescue teams involved in full-time 
inspection and mine rescue training activities have developed an 
expertise that will enhance mine rescue team emergency response 
capabilities. They are dedicated professionals who are familiar with 
mines they cover and knowledgeable about mine rescue and other areas of 
mine safety and health training. On a daily basis, they are exposed to 
a variety of mining environments, complex conditions, different 
problems, and new issues. This affords them a broad perspective into 
the safety and health objectives pertaining to mine rescue and mine 
rescue training.
    MSHA recognizes the knowledge and experience state employees on 
mine rescue teams gain in the performance of their jobs. MSHA agrees 
with the commenters supporting the note to Table 49.11. Under the final 
rule, full-time state employees on mine rescue teams must complete at 
least 48 hours of refresher training annually, including participation 
in at least one local mine rescue contest and training at each covered 
mine at least once every year.
3. Section 49.12 Availability of Mine Rescue Teams
(a) Sec.  49.12(b) Alternative Composition Requirements for Mine Rescue 
Teams for Anthracite Coal Mines
    The final rule, like the proposal, includes requirements for mine 
rescue teams serving underground anthracite coal mines with no 
electrical equipment at the working section. The final rule is derived 
from petitions for modification, which MSHA has historically granted 
under section 101(c) of the Mine Act, because mining methods and 
conditions in underground anthracite coal mines are unique. For these 
mines, MSHA requires mine rescue teams to be comprised of three members 
each and one alternate team member to serve both teams.
    In support of these petitions, anthracite mine operators cited the 
following:
     Most anthracite mines are not highly mechanized. 
Production and maintenance work is done largely by hand, using simple 
hand tools and equipment. Anthracite mines may have no underground 
electric power or may have power only at the bottom of the hoist slope.
     Typically, extraction occurs in a single face or 
production area. Many anthracite mines are developed only short 
distances underground, rarely more than several thousand feet.
     Anthracite seams dip steeply and are often near vertical. 
Openings are narrow and constricted. Access between levels is by means 
of hardwood ladders

[[Page 7638]]

through small, steeply pitched openings.
     The hoist bucket, used to transport personnel, typically 
can accommodate no more than four persons.
     Rock dusting is not required because of the extremely low 
combustibility of anthracite coal, caused by its low volatile content.
     The average underground anthracite mine employs four 
miners.
     In the past 20 years, no more than one mine rescue team 
has been needed in the anthracite region for rescue and recovery 
activities. Further, no more than three rescue team members have 
entered a working place at the same time during such activities.
    In accordance with section 101(c) of the Mine Act, MSHA 
investigated each petition of Sec.  49.2(b) from these small, 
underground anthracite coal mines and made the following finding:

    Considering this confirmation and the narrow width and 
constricted openings, the limited capacity of hoist conveyances, the 
pitched seam, the short travel distance from the slope bottom to the 
working face, and the low combustibility of anthracite coal, 
petitioner's alternative method of two mine rescue teams with three 
members each is as safe as maintaining two teams of five members. As 
such, it achieves the result of the standard to ensure the 
availability of mine rescue capability for purposes of emergency 
rescue and recovery.

    On the basis of the petitions and the findings of its 
investigations, MSHA granted 22 petitions for modification of Sec.  
49.2(b) that allow anthracite coal mines to operate under the approved 
alternate method. Currently, 10 underground anthracite coal mines 
operate under this approved alternative method.
    Most anthracite mines are small (average 5 employees) and could not 
have their own mine site teams, are located in the same geographical 
area, and belong to an association called ``Anthracite Underground 
Rescue'' (AUGR). AUGR and the Pennsylvania Bureau of Mine Safety 
(Bureau) have an agreement for mine rescue training. AUGR provides 
qualified miners to be trained in mine rescue and the State provides a 
mine rescue station, equipment, and a trainer. These teams cover all 
the anthracite mines.
    Commenters supported this provision. One commenter stated that the 
proposed alternative does not benefit two small anthracite mines that 
have electrical face equipment and they can not realistically start 
their own company teams. This commenter urged MSHA to consider these 
teams as composite, but not require team members from each covered 
mine. The final rule does not expand the proposed provision to 
underground anthracite coal mines with electrical equipment at the face 
or working section. This final provision is consistent with MSHA's 
action on existing petitions for modification.
(b) Sec.  49.12(c) Alternative Experience Requirement for Members of 
Contract Mine Rescue Teams
    The final rule, like the proposal and consistent with the MINER 
Act, requires that members of contract mine rescue teams have ``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.'' The final rule retains the existing 
provision that requires mine rescue team members to have been employed 
in an underground mine for at least 1 year within the past 5 years. 
MSHA received no comments on this provision.
    One commenter objected to allowing a surface employee who regularly 
works underground to claim such time to meet the experience 
requirement. The final rule retains this existing provision; the 
proposal did not address it.
    Another commenter asked that MSHA clarify what it means to work 
underground ``regularly.'' For the purpose of this provision, MSHA 
considers ``regularly works'' to mean that the member has recurring job 
duties at each mine, exposing the member to the mine's underground 
operations, conditions, and environment. For example, this may include 
surveyors, engineers, safety personnel, electricians, and maintenance 
and service personnel.
    Several commenters requested that MSHA waive this requirement for 
current mine rescue team members who are employed on the surface. Like 
the proposal, the final rule waives the underground experience 
requirement for those miners on a mine rescue team on February 8, 2008.
4. Sec.  49.12(f) Available Within 1 Hour Ground Travel Time From the 
Mine Rescue Station
    The final rule, like the proposal, includes the MINER Act 
requirement that no mine served by a mine rescue team shall be located 
more than 1 hour ground travel time from the mine rescue station with 
which the rescue team is associated. This provision will assure that a 
team will arrive at the mine more quickly in case of a mine emergency.
    MSHA received numerous comments on this proposal. Commenters 
questioned whether this provision would improve safety in an actual 
emergency. Commenters noted that there have been no instances where a 
team's arrival delayed a rescue operation and stated that the provision 
is not justified. Several commenters indicated that the proposal is 
infeasible for some western coal mines, which are geographically 
isolated. Likewise, some commenters indicated that rugged terrain in 
Central Appalachia hinders ground travel, making compliance difficult. 
A few commenters stated that the proposal will cause the relocation of 
stations further from some mine sites, disrupt current team coverage, 
and may result in mine closures. Many commenters indicated that a 
sufficient number of volunteers may not be available to form additional 
teams needed for new mine rescue stations. Commenters stated that the 
establishment of new and relocation of existing rescue stations is an 
unnecessary, burdensome expense, with no benefit to mine safety.
    Commenters suggested that MSHA grandfather existing mine rescue 
stations and current coverage arrangements. Commenters also suggested 
that MSHA allow the District Manager to grant waivers of the 1 hour 
ground travel time for existing teams and stations, but only up to 2 
hours. Commenters also asked MSHA to consider alternatives, including 
the use of air transportation and emergency escorts.
    One commenter did not believe the 1-hour provision would cause 
undue hardship. One commenter stated that more rescue stations would 
likely be created, resulting in teams getting to the mines sooner. 
Consistent with the MINER Act, the final rule includes the 1-hour 
requirement.
5. Section 49.13 Alternative Mine Rescue Capability for Small and 
Remote Mines
    The final rule, like the proposal, retains the existing provision 
for alternative capability for small and remote mines. It requires that 
the operator's application include the total underground employment of 
any mines within 1 hour of the operator's mine, to be consistent with 
the 1-hour requirement of the MINER Act. It also requires that the 
operator include the location of the mine rescue station serving the 
mine. Commenters suggested alternatives that the District Manager 
should consider for small and remote mines. Other commenters stated 
that this provision should not be used to allow remote operations with 
large numbers of miners to circumvent the MINER Act requirement for two 
teams. For clarification, MSHA notes that this provision, which was in 
the existing standard, requires a mine to be both

[[Page 7639]]

small and remote before it can file an application.
6. Section 49.14 [Reserved]
    The final rule, like the proposal, does not include this provision 
in subpart B because it is not applicable to underground coal mines. 
MSHA received no comments on this proposal.
7. Section 49.15(a) Mine Rescue Station
    The final rule, like the proposal, removes the exception related to 
alternative compliance. The final rule makes no change from the 
proposal. This final rule is consistent with the goals of the MINER 
Act. MSHA received no comments on this proposal.
8. Section 49.16(a) Alternative Equipment Requirement for Anthracite 
Mines
    The final rule, like the proposal, adds a provision to address 
underground anthracite coal mines that have no electrical equipment at 
the face or working section. Through the petition for modification 
(PFM) process, MSHA allows mine rescue teams for underground anthracite 
coal mines, which have no electrical equipment at the face or working 
section, to have three members for each team and one alternate to serve 
both teams. These operators have submitted petitions for modification 
to allow the mine rescue station to maintain eight self-contained 
oxygen breathing apparatus and eight cap lamps and a charging station, 
rather than twelve of each as required by the existing standard.
    On the basis of these petitions and the findings of its 
investigation, MSHA granted 17 petitions for modification of Sec.  
49.6(a)(1) and (5) that allow each mine rescue station for anthracite 
coal mines to have eight self-contained oxygen breathing apparatus, 
eight cap lamps, and a charging rack, as the approved alternative 
method. Currently, 10 underground anthracite coal mines operate under 
this approved alternative method.
    The final rule requires that mine rescue stations covering 
anthracite coal mines that 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, consistent with the action 
taken in existing petitions for modification. For three-person teams 
and one alternate, this would mean seven self-contained oxygen 
breathing apparatus and seven cap lamps. Under the final rule, 
equipment required per team, such as gas detectors, may not be reduced. 
No commenters objected to this provision, so long as it is consistent 
with the provisions in the petitions for modification.
9. Section 49.17 Physical requirements for Mine Rescue Team
    Like the proposed rule, the final rule maintains the existing 
physical requirements for mine rescue teams. Commenters suggested that 
MSHA modify the rule to allow the use of corrective glasses in 
determining distant visual acuity. Although MSHA considered this 
suggestion, it is beyond the scope of the rulemaking.
10. Section 49.18 Training for Mine Rescue Teams
    The final rule, like the proposed rule, retains the existing 
requirements. In the final rule, MSHA has removed obsolete language in 
Sec.  49.18(a) related to waiver of initial training. All existing 
teams meet the initial training requirement, making it unnecessary to 
waive.
    Like the proposal, the final rule adds paragraph (b)(6), which 
requires all mine rescue team members, at least once during each 12-
month period, to participate in training that includes wearing mine 
rescue apparatus while in smoke, simulated smoke, or an equivalent 
environment. Commenters agreed that training in smoke afforded teams 
skills that would be useful in an actual mine emergency and that 
several mine rescue teams already perform this training. Although some 
mine operators or training facilities use actual smoke, operators can 
use a nontoxic theatrical smoke, which is harmless. For the purposes of 
this provision, an equivalent environment could include training with 
glasses or face shields that reduce vision and simulate smoke. This 
requirement assures that mine rescue team members train in realistic 
conditions.
    The final rule increases the 40-hour annual refresher training 
requirement to 96 hours from 64 hours in the proposed rule. This 
training must be provided at least 8 hours every 2 months. This 
increase is in response to comments and is consistent with the goals 
and objectives of the MINER Act and the recommendations of the Mine 
Safety Technology and Training Commission (Commission). Some commenters 
supported the existing requirement of 40 hours of annual training. 
These commenters generally were concerned that small mines do not have 
the resources to allow training during work hours and that an increase 
in this training could affect the mine rescue teams' ability to attract 
volunteers. Other commenters suggested 48 hours of annual training was 
appropriate. They suggested 8 hours of training every 2 months, for a 
total of 48 hours. They indicated that the increased training time may 
conflict with mine-site duties, which might preclude experienced miners 
from participating on rescue teams.
    Other commenters were not opposed to the proposed 64 hour training 
requirement. Several noted that their teams' annual training currently 
exceeds 64 hours. These commenters noted that the content and quality 
of this training is more important than the total number of training 
hours. They requested more flexibility in scheduling training, stating 
that some mine rescue training occurs irregularly, depending on weather 
conditions and contest schedules.
    Other commenters recommended that the annual training requirement 
be increased to a minimum of 96 hours, given at 8 hours each month. In 
support of this recommendation, they cited the Commission's report on 
Improving Mine Safety Technology and Training: Establishing U.S. Global 
Leadership (2006). The Commission, composed of members from a cross-
section of the mining community, industry, labor, academia, government, 
including mine rescue practitioners, recommended a minimum of 96 hours 
of annual training, at 8 hours each month. One commenter also stated 
that participating in mine rescue contests should not be considered as 
part of this 96 hours of annual training.
    Based upon the comments, the Commission's report, and Agency data 
and experience, in the final rule MSHA has increased the amount of 
annual training to 96 hours. In making this decision, MSHA determined 
that additional annual refresher training is necessary to fully address 
all of the training requirements in the MINER Act. MSHA also agrees 
with commenters' suggestions and the Commission's report that 
additional training is necessary to adequately prepare for mine rescue 
team service. In addition, based on the Commission's recommendations 
and MSHA's experience, MSHA anticipates that this additional training 
will provide an incremental increase in safety for underground coal 
miners. Therefore, the final rule increases training from the proposed 
64 to 96 hours.
    In addition to existing requirements, the MINER Act requires that 
team members be familiar with operations of covered mines, have 
knowledge of the operation and ventilation of covered mines, and train 
at covered mines. Also, teams under paragraph (b)(6) need to train in 
smoke, simulated smoke, or an equivalent environment once annually.

[[Page 7640]]

In order to further improve their skills, teams may also participate in 
Mine Emergency Response Development (MERD) exercises or other practical 
simulation exercises, such as a fire or explosion drills. This type of 
training further enhances teams' skills in interacting with a command 
center. Recommended training could also include: first responder 
training, communications, mine gases, gas detectors, new technology, 
heat stress, and hazard training unique to the covered mines. In 
addition, skills training may include building temporary stoppings and 
seals, using a foam generator underground, and using an air lock to 
rescue survivors. This additional training will enhance teams' skills 
and abilities.
    The MINER Act also requires mine rescue team members to participate 
in two local mine rescue contests each year. The final rule will allow 
up to 16 hours of credit for participation in the two required mine 
rescue contests. Some commenters objected to including mine rescue 
contests as a part of the annual training requirement, while others 
favored such a requirement. Commenters stated that mine rescue contests 
are designed to increase rescue team skill levels and to facilitate 
interaction between various rescue teams. MSHA agrees. MSHA believes 
that mine rescue contests serve a vital role in achieving the purpose 
of the MINER Act to improve the safety of mines and mining. 
Historically, they have served to assure that mine rescue teams are 
well-trained and capable of responding to mine emergencies. Under 
existing Agency policy, MSHA allows up to 8 hours credit for mine 
rescue contests toward the annual training requirement. In recognition 
of the critical need for the team to travel efficiently from the mine 
rescue station to the covered mine, under the final rule, travel time 
can be counted toward fulfilling the 96 hour requirement.
    While the final rule increases the total amount of annual refresher 
training, it retains the requirement that the training occur at least 8 
hours every 2 months. Taking into consideration comments that mine 
rescue training occurs irregularly, depending on weather conditions and 
contest schedules, MSHA decided not to reduce the flexibility of 
scheduling training. Based on MSHA data and experience, 8 hours of 
training every 2 months is necessary to avoid skills degradation. As 
the Commission's report states,

    The nation's mine rescue capability rests more heavily on 
training than on any other aspect of the mine emergency response 
system. Especially since emergency incidents are relatively rare, 
the predominant way teams keep their skills sharp, and develop 
cohesion, enthusiasm, and trust, is through training.

    The final rule, like the proposed rule and the existing standard, 
requires that the training courses be conducted by instructors who have 
been employed in an underground mine and have had a minimum of 1 year 
experience as a mine rescue team member or mine rescue instructor 
within the past 5 years. A commenter suggested that MSHA allow 
experienced underground miners to become instructors even though they 
do not have 1 year experience as a mine rescue team member. MSHA has 
not included this suggestion in the final rule to assure that mine 
rescue team members are instructed by persons with practical mine 
rescue experience. Mine rescue team instructors who have received MSHA 
approval prior to the effective date of the final rule would not have 
to meet this requirement.

C. Subpart B--Mine Rescue Teams for Underground Coal Mines; Additional 
MINER Act Provisions

1. Section 75.1501(a) Person Knowledgeable in Mine Emergency Response
    The final rule, like the proposal, requires that the responsible 
person be trained annually in a course of instruction in mine emergency 
response. This provision implements the MINER Act requirement that the 
operator have a person employed on each shift who is knowledgeable in 
mine emergency response. The final rule requires that the responsible 
person be trained in a course prescribed by MSHA's office of 
Educational Policy and Development.
    The majority of commenters expressed concern that the proposal 
placed too much responsibility on one person. Some of these commenters 
thought that the proposal required the responsible person to conduct 
the activities listed in the proposal, rather than to be trained in 
those activities. Other commenters expressed concern that the proposal 
contained excessive training requirements and that the training areas 
listed were not sufficiently described. One commenter indicated that 
MSHA must establish and require a standard minimum curriculum along 
with recommended times for each topic.
    In response to comments, MSHA has clarified the final rule to 
require that the responsible person be trained in a course which 
includes topics listed in the rule. The rule does not establish any new 
duties for the responsible person. Further, in response to comments, 
the course for the responsible person will be based on a curriculum 
prescribed by MSHA and placed on the Agency's Web site. MSHA is 
developing this course in mine emergency response to assure consistent 
and comprehensive training. Commenters further requested that the final 
rule include a recommended duration of time for this training. In light 
of the fact that MSHA is developing the curriculum for this course, 
MSHA does not believe that it is either necessary or appropriate to 
specify a duration for this training.
    Consistent with other MSHA training requirements, the final rule, 
like the proposal, requires that the operator certify by signature and 
date after each responsible person has completed the training and that 
the certification be kept at the mine for 1 year. MSHA received no 
comments on this aspect of the proposal.
2. Section 49.20 Requirements for All Coal Mines
    The final rule addresses MINER Act provisions that are the same for 
all underground coal mine rescue teams, regardless of the size of the 
operation. It requires the operator to make available two certified 
mine rescue teams whose members are familiar with the operations of 
each coal mine covered by the mine rescue team, participate annually in 
two local mine rescue contests, and train at the covered mines.
a. Section 49.20(a)(1) Familiarity With Operations of Covered Mines
    This final rule, like the proposal, requires two certified mine 
rescue teams whose members are familiar with the operations of the mine 
and participate at least annually in two local mine rescue contests. 
One commenter stated that while MSHA's understanding of ``familiarity'' 
is acceptable for the knowledge a miner would posses in order to safely 
perform job duties, it does not adequately describe the level of 
knowledge a mine rescue team member should posses in order to carry out 
rescue and recovery duties. Commenters indicated that familiarity with 
the covered mine was necessary but did not agree with the frequency of 
training at the covered mine.
    The final rule adopts the MINER Act requirement of ``familiarity'' 
with the operation of the coal mine. Under the final rule, MSHA 
considers ``familiarity'' with the operations of the covered mine as 
first-hand experience of the underground mining conditions and 
operations at a particular mine. Team members who do not work at the

[[Page 7641]]

covered mine become familiar with its operations by participating in 
mine rescue training at the mine. Training at the mine may include: 
Identifying the designated escapeways, intakes, returns, the 
ventilation system, locations and types of fire fighting equipment, the 
communication system, mine-wide monitoring system, and the type of 
transportation equipment used at the mine. Also, team members need to 
be familiar with the location of stored SCSRs, lifelines, breathable 
air, hardened rooms, and other emergency response equipment or 
supplies.
    MSHA recognizes that the amount of time required to familiarize 
teams with a particular mine will vary, depending on mining conditions. 
For example, teams may need more time to become familiar with complex 
mines and newer team members may require more time to achieve this 
familiarity. For this reason, MSHA is not requiring a minimum amount of 
time for mine rescue team training underground at each covered mine. 
MSHA expects the operator to effectively evaluate each team member to 
determine the amount of training necessary for that person to become 
familiar with operations at the covered mine. MSHA expects that a 
portion of each required training session at the mine be conducted in 
the mine.
b. Sec.  49.20(a)(2) Participation in Two Local Mine Rescue Contests
    Like the proposal, the final rule includes the MINER Act 
requirement that mine rescue team members participate in two local mine 
rescue contests annually.
    Commenters expressed concern with the criteria for, and quality of, 
mine rescue contests. They were concerned about the availability of 
acceptable contests. MSHA addresses commenters' concerns with criteria 
for mine rescue contests in the discussion of Sec.  49.60, which 
addresses requirements for a local mine rescue contest.
    Mine rescue contests are designed to sharpen skills and test the 
knowledge of team members who would be called on to respond to a mine 
emergency. Historically, mine rescue contests have provided individuals 
with practical, hands-on experience and are one of the most effective 
forms of training. Some team members who are regular participants in 
contests have been called on in recent years to perform actual mine 
rescue and recovery work. They have done so successfully and training 
exercises, such as mine rescue contests, were essential to maintaining 
a well-prepared team.
    A commenter stated that participation in two back-to-back contests 
is counterproductive because the teams need time to analyze and discuss 
in depth their performance during the contest. Contest judges evaluate 
teams and provide a written evaluation and score after each contest. 
Contest judges will evaluate each team and judge if the team 
demonstrates acceptable skills to be certified. A copy of the judge's 
evaluation will be submitted to the District Manager. MSHA expects that 
teams learn from constructive feedback and their experiences during 
contests. In response to this comment, MSHA has changed the proposed 
criteria for a local mine rescue contest in the final rule to clarify 
that a contest consists of one or more problems on one or more days 
with a determined winner.
c. Sec.  49.20(b) Requirements for Types of Mine Rescue Teams
    The final rule, like the proposal, provides for four types of mine 
rescue teams, consistent with the MINER Act. In response to comments, 
MSHA has included clarifying changes in the final rule.
    Commenters generally expressed concern that the description of 
teams in the MINER Act did not adequately encompass the variety of 
arrangements for mine rescue service or the composition of mine rescue 
teams that are currently available to the mining community. Commenters 
indicated that this provision would disrupt existing mine rescue 
service, which would be contrary to the goals of the MINER Act. They 
cautioned that the proposal could result in: Disbanding experienced 
mine rescue teams; replacing experienced team members with 
inexperienced ones; inability to attract volunteers to join mine rescue 
teams; mines losing current coverage arrangements, and possibly mine 
closures.
    Commenters objected to the differences in training requirements for 
large and small mines. In particular, commenters expressed concern that 
the training differences between types of teams were illogical, 
requiring mine-site and state-sponsored teams to train more often at 
each covered small mine than at each covered large mine. Other 
commenters stated that mine size and complexity should determine the 
frequency of training at the covered mine, not the type of team.
    Commenters objected to the proposed requirement that composite 
teams from small mines need to include two miners from each covered 
mine. They were concerned about the ability of small mines to generate 
two volunteers due to their employment. They indicated that small mines 
are less likely to be able to spare a miner to perform mine rescue 
training or service. A commenter, however, indicated that small mines 
should be required to have two team members on composite teams.
    Several commenters suggested allowing a company team, composed of 
miners who work for an operator of multiple mines, to be considered a 
mine-site team so they would not need to have two team members from 
each covered mine. Commenters also expressed concern that requiring two 
members from each covered mine may result in teams with too many 
members, creating logistical training problems and excessive costs.
    With regard to state-sponsored teams, several commenters suggested 
that teams composed of non-state employees who use mine rescue 
equipment and stations provided by the state be considered a state-
sponsored or composite team instead of a contract team. Some commenters 
stated that State-sponsored composite team members should be considered 
state employees to get credit for the time in training at the mine in 
which they work.
    In response to commenters' concerns that the proposal did not 
effectively encourage the creation of new mine site teams, the final 
rule requires mine-site teams to train annually at each covered small 
mine. MSHA expects this change to encourage more mine-site teams. The 
final rule also requires state-sponsored teams to train annually 
instead of semi-annually at each covered small mine. Additionally, at 
small mines only, the final rule allows composite teams to have one 
member from each covered small mine. Also in response to comments, for 
the purpose of mine rescue team membership, a member employed by an 
operator of multiple mines is considered to be an employee of each mine 
at which the member regularly works. In this section, MSHA considers 
``regularly works'' to mean that the member has recurring job duties at 
each mine, exposing the member to the mine's underground operations, 
ventilation, conditions, and environment. For example, these employees 
may include surveyors, engineers, safety personnel, electricians, and 
maintenance and service personnel.
    One commenter questioned the use of ``a'' covered mine in the 
proposal, believing that MSHA meant ``each'' covered mine. In response 
to this comment, the final rule includes the term ``each'' covered 
mine.
d. Knowledge of Operations and Ventilation at the Covered Mine
    The final rule, like the proposal, requires members of mine rescue 
teams to have knowledge of the operations and

[[Page 7642]]

ventilation at each covered mine. Generally, this would require each 
team to review the mine's ventilation maps, roof or ground control 
methods, emergency response plan, transportation, and communication 
system.
e. Mine Rescue Team Training at Each Covered Mine
    The final rule, like the proposal, requires that members of mine 
rescue teams must participate in training at each covered mine, 
consistent with the MINER Act, MSHA interprets the intent of the MINER 
Act to require that at least a portion of the training at each covered 
mine must be conducted underground.
    Commenters objected to the requirement that teams train at each 
covered mine. They stated that this training is impractical, overly 
burdensome, unnecessary, and may negatively affect the ability to 
attract new team members. In particular, commenters indicated that 
travel and training time is excessive for contract teams. Several 
commenters suggested that, to alleviate this burden, team members be 
allowed to rotate training at each covered mine so that each team 
member trains at each covered mine at least annually. Some commenters 
suggested that only two members of each team be required to train at 
each covered mine and they would brief the team. A commenter suggested 
that, if the team does not complete training at each covered mine, the 
team should not be used as a first responder.
    Under the final rule, the number of training sessions required at 
the covered mine depends on the mine size and type of mine rescue team. 
The following chart illustrates the required number of training 
sessions at each covered mine.

  Table 1.--Frequency of Training for Mine Rescue Team Members at Each Covered Underground Coal Mine Each Year
----------------------------------------------------------------------------------------------------------------
                                                                              Mine size
                   Type of team                    -------------------------------------------------------------
                                                         Large (more than 36)           Small (36 or fewer)
----------------------------------------------------------------------------------------------------------------
Mine Site.........................................   1 (annually)................   1 (annually).
Composite.........................................   2 (semi-annually)...........   2 (semi-annually).
Contract..........................................   4 (quarterly)...............   2 (semi-annually).
State-sponsored...................................   1 (annually)................   1 (annually).
----------------------------------------------------------------------------------------------------------------

    In response to comments, the final rule includes Sec.  49.20(d) to 
clarify that a portion of the training at each covered mine must be 
conducted underground.
    f. Integration of Mine Rescue Team Training Requirements
    The two new categories of training for mine rescue team members, 
participation in mine rescue contests and participation in training at 
the covered mines, complement the existing training. The final rule 
retains existing requirements for training sessions underground every 6 
months; and the wearing of breathing apparatus for a minimum of 2 hours 
every 2 months. MSHA expects operators to integrate the new 
requirements, including mine rescue training at the covered mines, with 
the existing requirements.
g. Section 49.20(c) Employee of Multiple Mines
    The final rule adds this paragraph in response to comments. 
Commenters requested that the Agency clarify, for mine rescue team 
purposes only, the employment status of an employee who works at 
multiple mines for a single operator. For the purpose of mine rescue 
team membership, this new provision allows a team member employed by an 
operator of multiple mines to be considered an employee of each mine at 
which the member regularly works. In this section, MSHA considers 
``regularly works'' to mean that the member has recurring job duties at 
each mine, exposing the member to the mine's underground operations, 
conditions, and environment. For example, this may include surveyors, 
engineers, safety personnel, electricians, and maintenance and service 
personnel.
3. Section 49.30 Requirements for Small Coal Mines
    The final rule, like the proposal, requires that members of mine 
rescue teams covering a small mine know the operations and ventilation 
of the mine. In response to comments, MSHA clarifies that small coal 
mines applies to mines with 36 or fewer underground employees. 
Commenters asked MSHA to clarify how the Agency would determine 
employment for purposes of the rule. MSHA recognizes that a small 
mine's employment may fluctuate from time to time. MSHA expects 
operators to use data reported to MSHA for the quarterly employment and 
coal production report required in Sec.  50.30 to determine the number 
of underground employees working at a mine.
4. Section 49.40 Requirements for Large Coal Mines
    The final rule, like the proposal, requires that the mine operator 
of a large mine designate either an individual mine-site team or a 
composite team as one of the two mine rescue teams, consistent with the 
MINER Act. The second mine rescue team can be a mine-site, composite, 
contract, or State-sponsored team. MSHA clarifies that large coal mines 
applies to mines that have more than 36 underground employees. MSHA 
recognizes that a large mine's employment may fluctuate from time to 
time. MSHA expects operators to use the data reported to MSHA for the 
quarterly employment and coal production report required in Sec.  50.30 
to determine the number of underground employees working at a mine.
5. Section 49.50 Certification of Mine Rescue Teams
    The final rule establishes criteria to certify the qualifications 
of mine rescue teams, consistent with the MINER Act.
a. Sec.  49.50(a) Certification Criteria
    The final rule, like the proposal, requires that a mine operator 
certify that each of the mine's two designated mine rescue teams meet 
the requirements of this subpart. The certification criteria include a 
certification statement, equipment and training requirements, and the 
frequency of certification. As in the proposed rule, to be certified, 
the mine rescue team must be available when miners are underground and 
within 1 hour ground travel time from the mine rescue station to the 
mine; team members must be physically fit, experienced working in an 
underground mine, and properly trained; and the mine rescue station 
must be adequately equipped. The criteria for these qualifications are 
contained in the final rule.

[[Page 7643]]

    A commenter asked MSHA to clarify whether a mine rescue team member 
may complete an annual certification statement. Like the proposal, the 
final rule does not address who completes the annual certification 
statement. To comply with this requirement, the mine operator must 
certify and submit the annual certification statement to the District 
Manager.
    One commenter objected to operator certification of mine rescue 
teams because it does not provide for an objective review of a team's 
abilities. This commenter also expressed concern about MSHA's 
``lifetime certification'' of mine rescue instructors and suggested 
that MSHA require instructors to demonstrate routinely their skill and 
understanding of mine rescue. The final rule provides that a local mine 
rescue contest is training that provides an objective evaluation of 
demonstrated mine rescue team skills. MSHA considers the evaluations of 
team performance at the two required local mine rescue contests to be 
an objective test and evaluation of a mine rescue team's abilities.
    In response to comments, MSHA has added a requirement in the 
certification table that judges must certify the results of the two 
local contests. This will serve to provide further evidence of an 
objective evaluation of a team's abilities. The final rule requires 
that contest judges complete annual training for mine rescue contest 
judges. As required by the final rule, a local mine rescue contest must 
use the National Mine Rescue Contest rules, or other rules recognized 
by MSHA. Contest judges receive comprehensive training on contest 
rules. At each contest, each mine rescue team has a problem. In 
general, judges use the following criteria to evaluate team 
performance: (1) Communication with team members; (2) Time taken to 
solve problem; (3) Accuracy of markings, e.g. on maps; (4) Team 
effectiveness in solving problem; (5) Team effectiveness in handling 
first responder activities, e.g. first-aid; and (6) Team's use of 
technology, e.g. testing for methane and other gasses. Teams receive 
discounts for mistakes, and an overall score. Periodically, MSHA will 
monitor mine rescue team instructor activities. When a judge finds that 
a team does not meet minimum skills, MSHA will audit the training and 
notify the District Manager. Based on this audit, MSHA may revoke the 
instructor's approval.
    For further ease of understanding, MSHA divided the proposed Table 
on Certification into two tables in the final rule. Table 49.50-A lists 
the initial criteria to certify the qualifications of mine rescue 
teams. Table 49.50-B lists the annual criteria to maintain mine rescue 
team certification. New teams will have to meet these requirements.
    In response to comments, this final rule includes an optional 
certification form that operators may use to assist them in complying 
with this section. This optional form is attached as an appendix to 
this rule. The form is posted on MSHA's Web site. MSHA will accept 
certification statements in all formats, both electronic and paper.
(b) Sec.  49.50(b) District Manager Notification
    The final rule includes a new requirement that an operator must 
notify the District Manager within 60 days of any change in team 
membership. Commenters stated that the membership of each team is 
subject to change and questioned the impact of changes on team 
certification. MSHA clarifies that a team does not automatically lose 
its certification when a team replaces a member. Under the final rule, 
the operator has 60 days in which to notify the District Manager of any 
change so that MSHA can assure continued compliance.
6. Section49.60 Requirements for a Local Mine Rescue Contest
    The final rule, like the proposal, includes criteria for a local 
mine rescue contest. It also requires that, when requested, the mine 
operator must provide information to the District Manager concerning 
each designated team's schedule of participation in upcoming local mine 
rescue contests.
    Paragraph (a) of this section in the final rule requires that a 
local mine rescue contest is: conducted in the United States; uses MSHA 
recognized rules; has a minimum of 3 teams; and has one or more 
problems conducted on one or more days with a determined winner.
    With respect to the requirement that contests use MSHA-recognized 
rules, commenters stated that all contests should use MSHA National 
Contest rules; others indicated that contests should concentrate on the 
practical aspects of mine rescue and not focus on compliance with 
rules. Some said the contest rules may be too restrictive. Like the 
proposal, the final rule does not require contest organizers to use the 
National Mine Rescue Contest Rules; it allows other rules recognized by 
MSHA.
    Commenters wanted MSHA to clarify the term ``participate,'' as used 
in the proposal. As is existing practice, MSHA recognizes a team as 
participating when the team is present and competes. Also, in response 
to comments, MSHA will consider State-sponsored teams, whose members 
are full-time state employees, as participating in a local mine rescue 
contest when performing duties as contest judges or officials.
    One commenter supported the proposed requirement stating that this 
would allow companies to put on their own mine rescue contests and have 
intra-company training. Another commenter questioned whether permitting 
competitions with as few as three participating teams is adequate. As 
stated in the proposal, MSHA intends that requiring a minimum of three 
teams for a local mine rescue contest will encourage more contests 
among teams in close geographic proximity. Therefore, the final rule 
requires a minimum of three competing teams in a local mine rescue 
contest.
    Commenters indicated that participation in a mine rescue contest is 
an opportunity to demonstrate the results of training. Teams spend a 
lot of time preparing for contests. As stated in the proposal, teams 
must prepare to compete as if the contest were an actual mine 
emergency. MSHA agrees that preparation for a contest is a vital 
component of team training, along with the interaction with other teams 
and the evaluation provided by judges. Competing while being timed, 
observed, and judged creates a stressful environment that provides an 
effective forum for evaluating and testing the team's level of 
knowledge and skill under simulated mine emergency conditions. The 
ability to make effective decisions quickly, while under stress and 
wearing breathing apparatus, is a vital skill for each mine rescue team 
member to develop.
    Most commenters agreed that, in order for judges to administer the 
mine rescue contest fairly and provide appropriate and meaningful 
evaluations, judges should have a strong background in mine rescue. In 
addition, most commenters agreed that there should be prescribed areas 
of annual training for contest judges, but did not want a minimum 
required amount of time. Some stated that judges' training on the rules 
should address changes in the rules only. MSHA disagrees because 
training should always be comprehensive. This strengthens existing 
skills and knowledge and accommodates new judges. Some commenters 
indicated that persons with knowledge of mine rescue principles and 
practices and experienced in mine rescue should be allowed to serve as 
judges for local contests. Some said that only MSHA or State personnel 
should judge contests. A few commenters stated that judges should have 
actual mine

[[Page 7644]]

rescue experience, preferably experience in an actual emergency. MSHA 
believes that the annual rules training is sufficient to adequately 
train judges.
    Paragraph (b) of this section in the final rule clarifies that a 
local mine rescue contest provides an objective evaluation of 
demonstrated mine rescue team skills. A number of commenters indicated 
that there are other simulated mine rescue team exercises that also 
enhance mine rescue skills and provide an evaluation of the team's 
performance. A few commenters expressed concern that MSHA proposed 
other simulated mine rescue team exercises as a substitute for a local 
mine rescue contest. A local mine rescue contest provides an objective 
evaluation of demonstrated mine rescue team skills. In response to 
these comments, the final rule clarifies that a MERD exercise or 
practical simulation exercise, such as a fire or explosion response 
exercise, can be a local mine rescue contest for purposes of this 
provision. MSHA recognizes that the benefit of preparing for a contest 
is as valuable as competing.
    Some commenters said that scheduling issues may preclude some mines 
from participating in two local mine rescue contests and that 
additional opportunities to participate in other types of simulated 
mine rescue exercises allows teams to satisfy this requirement.
    Two commenters stated that MSHA cannot allow substitution of other 
training for participation in local mine rescue contests because the 
MINER Act mandates that teams must participate at least annually in two 
local mine rescue contests. As stated previously, MSHA considers that 
participation in simulated mine rescue team exercises, where the 
members wear breathing apparatus, demonstrate mine rescue team skills, 
and receive an evaluation of team performance fosters an environment 
conducive to increased preparation for mine rescue and mine emergency 
response.
    As stated in the preamble to the proposed rule, MSHA considers 
actual underground participation in a rescue or recovery operation as a 
substitute for participation in a local mine rescue contest.
    The final rule requires mine operators to notify the appropriate 
District Manager, on request, when and where their designated teams 
plan to participate in mine rescue contests. This notice allows MSHA 
time to prepare for attending the contest and to provide assistance as 
necessary. This notice also allows MSHA to verify that the contest 
meets the requirements of this final rule.

IV. Regulatory Economic Analysis

A. Executive Order 12866

    Executive Order (E.O.) 12866 as amended by E.O. 13258 (Amending 
Executive Order 12866 on Regulatory Planning and Review) requires that 
regulatory agencies assess both the costs and benefits of regulations. 
To comply with E.O. 12866, MSHA has prepared a Regulatory Economic 
Analysis (REA) for the final rule. The REA contains supporting data and 
explanation for the summary materials presented in this preamble, 
including the covered mining industry, costs and benefits, feasibility, 
small business impacts, and paperwork. The REA is located on MSHA's Web 
site at https://www.msha.gov/REGSINFO.HTM. A copy of the REA can be 
obtained from MSHA's Office of Standards, Regulations, and Variances at 
the address in the ADDRESSES section of this preamble.
    Executive Order 12866 requires that regulatory agencies assess both 
the costs and benefits of significant regulatory actions. Under the 
Executive Order, a ``significant regulatory action'' is one meeting any 
of a number of specified conditions, including the following: Having an 
annual effect on the economy of $100 million or more, creating a 
serious inconsistency or interfering with an action of another, 
materially altering the budgetary impact of entitlements or the rights 
of entitlement recipients, or raising novel legal or policy issues. 
Based on the REA, 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 Executive Order 
12866 because it raises novel legal or policy issues.

B. Population at Risk

    The rule applies to 653 underground coal mines covering 42,597 
miners and 8,250 (non-office) contractors. Table 2 shows summary data 
for underground coal mines.

                                                    Table 2.--Summary Data for Underground Coal Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                             Number of
                                                             Number of     Total number      employees    Annual revenue    Annual cost
                      Mine size \a\                            mines       of miners \b\    underground     (billions)      (millions)     Cost per mine
                                                                                                \b\
--------------------------------------------------------------------------------------------------------------------------------------------------------
1-19....................................................             220           2,255           1,952            $0.3            $1.1          $5,200
20-500..................................................             420          32,852          29,742            10.3             3.4           8,200
>500....................................................              13           7,490           6,503             3.1             0.2          13,400
All Mines...............................................             653          42,597          38,197            13.7             4.8          7,400
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Size based on total mine employment.
\b\ Does not include 1,188 office workers or 8,250 (non-office) contractor employees, 4,096 of which work underground.

C. Costs

    Table 3 shows a summary of the total yearly cost of this rule for 
mine operators. MSHA estimates that