Specifications for Medical Examinations of Coal Miners, 45110-45124 [2014-18336]

Agencies

• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 79, Number 149 (Monday, August 4, 2014)]
[Rules and Regulations]
[Pages 45110-45124]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18336]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

42 CFR Part 37

[Docket No. CDC-2014-0011; NIOSH-276]
RIN 0920-AA57


Specifications for Medical Examinations of Coal Miners

AGENCY: Centers for Disease Control and Prevention, HHS.

ACTION: Interim final rule.

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SUMMARY: With this action, the Department of Health and Human Services 
(HHS), in accordance with a final rule recently published by the 
Department of Labor's Mine Safety and

[[Page 45111]]

Health Administration (MSHA), is amending its regulations to establish 
standards for the approval of facilities that conduct spirometry 
examinations and to require that all coal mine operators submit a plan 
for the provision of spirometry and X-ray examinations to all surface 
and underground coal miners.

DATES: This rule is effective on August 4, 2014. Comments must be 
received by October 3, 2014. The incorporation by reference of certain 
publications listed in the rule is approved by the Director of the 
Federal Register as of August 4, 2014.

ADDRESSES: You may submit comments, identified by ``RIN 0920-AA57,'' by 
any of the following methods:
     Internet: Access the Federal e-rulemaking portal at https://www.regulations.gov. Follow the instructions for submitting comments.
     Mail: NIOSH Docket Office, 1090 Tusculum Avenue, MS C-34, 
Cincinnati, OH 45226-1998.
    Instructions: All submissions received must include the agency name 
and docket number or Regulation Identifier Number (RIN) for this 
rulemaking. All relevant comments will be posted without change to 
https://www.regulations.gov including any personal information provided. 
For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: A. Scott Laney, Research 
Epidemiologist, Division of Respiratory Disease Studies, NIOSH, Centers 
for Disease Control and Prevention, 1095 Willowdale Road, MS HG900.2, 
Morgantown, WV 26505-2888; (304) 285-5754 (this is not a toll-free 
number); alaney@cdc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Public Participation
II. Background
    A. History of Coal Workers' Health Surveillance Program
    B. Need for Rulemaking
    C. Statutory Authority
III. Issuance of an Interim Final Rule with Immediate Effective Date
IV. Summary of Interim Final Rule
    A. Subpart--Chest Radiographic Examinations
    B. Subpart--Spirometry Examinations
    C. Subpart--General Requirements
V. Regulatory Assessment Requirements
    A. Executive Orders 12866 and 13563
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
    E. Unfunded Mandates Reform Act of 1995
    F. Executive Order 12988 (Civil Justice)
    G. Executive Order 13132 (Federalism)
    H. Executive Order 13045 (Protection of Children from 
Environmental Health Risks and Safety Risks)
    I. Executive Order 13211 (Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use)
    J. Plain Writing Act of 2010
VI. Interim Final Rule

I. Public Participation

    Interested persons or organizations are invited to participate in 
this rulemaking by submitting written views, arguments, 
recommendations, and data. Comments are invited on any topic related to 
this rulemaking.

II. Background

A. History of Coal Workers' Health Surveillance Program and Statutory 
Authority

    All mining work generates fine particles of dust in the air. Coal 
miners who inhale excessive dust are known to develop a group of 
diseases of the lungs and airways, including silicosis, and Coal 
Workers' Pneumoconiosis (CWP), and the chronic obstructive pulmonary 
disease, including chronic bronchitis and emphysema.\1\ To address such 
threats to the U.S. coal mining workforce, the Coal Mine Health and 
Safety Act was enacted in 1969 (Pub. L. 91-173) and amended by the 
Federal Mine Safety and Health Act of 1977 (Pub. L. 95-164, 30 U.S.C. 
801 et seq.) (Mine Act). The statutes included an enforceable 2 
milligrams per cubic meter limit on respirable dust exposure during 
underground coal mine work (30 U.S.C. 842(b)(2)).\2\ The science 
available at that time indicated that enforcement of this limit would 
greatly reduce the development of CWP, but could not ensure that all 
miners would be protected from developing disabling or lethal disease.
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    \1\ Petsonk EL, Parker JE [2008]. Coal workers' lung diseases 
and silicosis. In: Fishman AP, Elias J, Fishman J, Grippi M, Senior 
R, Pack A eds. Fishman's Pulmonary Diseases and Disorders. 4th ed. 
New York: McGraw-Hill, pp. 967-980.
    \2\ The Mine Safety and Health Administration (MSHA) published a 
final rule lowering the existing exposure limit from 2.0 mg/m\3\ to 
1.5 mg/m\3\ in underground and surface coal mines (79 FR 24814, May 
1, 2014).
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    The National Institute for Occupational Safety and Health (NIOSH) 
Coal Workers' Health Surveillance Program (CWHSP), also authorized by 
the Mine Act, was established to detect CWP and prevent its progression 
in individual miners, while at the same time providing information for 
evaluation of temporal and geographic trends in CWP. The Mine Act 
grants the HHS Secretary general authority to issue regulations as is 
deemed appropriate to carry out provisions of the Act and specifically 
directs that medical examinations for coal miners shall be given in 
accordance with specifications prescribed by the Secretary (30 U.S.C. 
843(a), 957), and grants NIOSH the authority to conduct activities in 
the field of coal mine health on behalf of the Secretary (30 U.S.C. 
951(b)).
    To inform each miner of his or her health status, the Act requires 
that coal mine operators provide each miner who begins work at a coal 
mine for the first time a chest roentgenogram (hereafter chest 
radiograph or X-ray) through an approved facility as soon as possible 
after employment starts. Three years later a miner must be offered a 
second chest radiograph. If this second examination reveals evidence of 
CWP, the miner is entitled to a third chest radiograph 2 years after 
the second. Further, all miners working in a coal mine must be offered 
a chest radiograph approximately every 5 years. All chest radiographs 
are to be given in accordance with specifications prescribed by the 
Secretary of Health and Human Services (30 U.S.C. 843(a)).
    Under NIOSH supervision, a summary report based on the readings of 
the periodic chest radiograph is sent to each participating coal miner, 
who then has the opportunity to take action to reduce further dust 
exposure if early dust-induced lung disease is detected. Miners with 
evidence of CWP have specific rights under 30 CFR Part 90 \3\ to 
transfer to jobs with lower dust levels (see also 42 CFR 37.7). The 
combined results of these radiographic examinations of miners 
(radiographic surveillance) also enable NIOSH to track rates and 
patterns of CWP among the participating miners, to evaluate whether the 
implemented dust controls are effective in controlling CWP.
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    \3\ 30 U.S.C. 843(b).
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B. Need for Rulemaking

    On May 1, 2014, the Mine Safety and Health Administration (MSHA) in 
the Department of Labor published a final rule revising existing health 
and safety standards in 30 CFR Part 72 to improve health protections 
for coal miners, including the expansion of requirements for medical 
surveillance [79 FR 24814]. Section 72.100(a) of the MSHA final

[[Page 45112]]

rule requires that both underground and surface coal mine operators 
provide to each miner chest X-rays and spirometry tests using 
facilities approved by NIOSH, as well as the documentation of 
occupational history and symptom assessment. Section 72.100(c) of the 
rule prescribes an initial examination to be provided no later than 30 
days after a miner begins employment at a coal mine for the first time, 
a follow-up exam no later than 3 years after the first, and another no 
later than 2 years after the second if the second test shows evidence 
of pneumoconiosis or the spirometry test shows evidence of reduced lung 
function. In addition to the mandatory exams, Sec.  72.100(b) requires 
operators to provide each miner with an opportunity to have an X-ray 
and spirometry examination at least every 5 years. Section 72.100(a)(2) 
specifies that test results are to be furnished to the Secretary of 
Health and Human Services, and, at the request of the miner, to the 
miner's designated physician. Section 72.100(d) of the MSHA final rule 
requires each coal mine operator to develop a plan for providing X-
rays, spirometry, symptom assessment, and occupational history and 
submit it to NIOSH for approval; operators must also submit a roster of 
each miner covered by the plan. The MSHA final rule's expansion of that 
agency's medical surveillance requirements causes HHS to amend its 
regulations in 42 CFR Part 37 pertaining to the Coal Workers' Health 
Surveillance Program, thereby expanding the scope of the Program to 
include coal miners who work in surface coal mines and adding 
spirometry testing and symptom assessment for all miners.

C. Statutory Authority

    As discussed above, Sec.  203 of the Mine Act directs the HHS 
Secretary to prescribe time intervals and specifications for the 
provision of chest X-rays, and standards for the reading, 
classification, and submission of the films [30 U.S.C. 843(a)]. The 
Secretary is also authorized to supplement the required X-rays with 
additional tests as deemed necessary to protect the health and safety 
of U.S. coal miners.

III. Issuance of an Interim Final Rule With Immediate Effective Date

    Rulemaking under the Administrative Procedure Act (APA) generally 
requires a public notice and comment period and consideration of the 
submitted comments prior to promulgation of a final rule (5 U.S.C. 
553). However, the APA provides for exceptions to its notice and 
comment procedures when an agency finds that there is good cause for 
dispensing with such procedures on the basis that they are 
impracticable, unnecessary, or contrary to the public interest. In 
accordance with the provisions in 5 U.S.C. 553(b)(3)(B), HHS finds good 
cause to waive the use of prior notice and comment procedures for this 
interim final rule (IFR) and to make this action effective immediately.
    This IFR amends 42 CFR Part 37 to allow coal miners who work in 
surface mines to participate in the CWHSP and to expand the Program to 
include spirometry testing to detect decreased lung function among both 
underground and surface coal miners. HHS has determined that it is 
impracticable to use prior notice and comment procedures for this IFR 
because the effective date of the final rule published by MSHA on May 
1, 2014, requiring that NIOSH establish standards to provide spirometry 
testing, occupational history, and symptom assessment for all 
underground and surface coal miners, is August 1, 2014. NIOSH is 
committed to expanding the existing health surveillance program to 
provide spirometry testing to all coal miners as soon as possible, and 
believes that it would be contrary to the public interest to delay 
those individuals' eligibility for inclusion in the program beyond the 
August 1, 2014 effective date. Thus, HHS is waiving the prior notice 
and comment procedures in the interest of protecting the health of all 
coal miners and allowing them to participate in the CWHSP as soon as 
possible.
    Stakeholders were given opportunities to participate in MSHA's 
proposed rulemaking during seven public hearings held between December 
2010 and February 2011. The public comment period for the proposed rule 
was extended three times since the proposed rule was published on 
October 19, 2010. MSHA received public comments on the provision 
related to NIOSH, 30 CFR 72.100, and summarized them in the preamble to 
the final rule (79 FR 24814, 24927-24929). Commenters were overall 
supportive of the provision, and MSHA was responsive to those comments 
that expressed concern or were critical of the measure.
    Under 5 U.S.C. 553(d)(3), HHS finds good cause to make this IFR 
effective immediately. As stated above, in order to protect the health 
of miners in both underground and surface coal mines, it is necessary 
that HHS act quickly to amend the existing standards in 42 CFR Part 37 
to include surface miners and to establish criteria for the provision 
of spirometry testing. While amendments to Part 37 are effective on the 
date of publication of this IFR, they are interim and will be finalized 
following the receipt of any substantive public comments. (See Section 
I. Public Participation, above.)

IV. Summary of Interim Final Rule

    This interim final rule expands the existing Coal Workers' Health 
Surveillance Program to provide chest radiographic examinations to 
miners who work in surface coal mines and establishes new requirements 
for spirometry testing for all coal miners under existing Part 37 of 42 
CFR--Specifications for Medical Examinations of Underground Coal 
Miners. The title of the Part is amended to read Specifications for 
Medical Examinations of Coal Miners.
    The following is a section-by-section summary which describes and 
explains the amended provisions of Part 37. The public is invited to 
provide comment on any aspect of the interim final rule. The amended 
regulatory text is provided in the last section of this notice.

A. Subpart--Chest Radiographic Examinations

Section 37.1 Scope
    Existing Sec.  37.1 provides the scope of the provisions in 
Subpart--Chest Radiographic Examinations, and is amended to clarify the 
purpose of this subpart. Under this subpart, coal mine operators are 
required to provide X-ray examinations to each current and new coal 
miner, using medical facilities approved by NIOSH according to the 
standards established in this subpart.
Section 37.2 Definitions
    Existing Sec.  37.2 contains definitions for terms that appear 
throughout this subpart and the new Subparts (Subpart--Spirometry 
Examinations and Subpart--General Requirements). In this section, the 
definition of ``miner'' is amended to remove language excluding surface 
coal miners from coverage under this part. ``NIOSH'' is amended to 
update the address of the Division of Respiratory Disease Studies and 
to reflect that programmatic responsibility is expanded to include 
medical examinations other than chest radiographs, and to clarify that 
the program also includes medical surveillance activities. The 
definition of ``operator'' is amended to mirror the definition in the 
Mine Act, and to reflect the inclusion of surface coal miners in the 
medical examination and surveillance program.

[[Page 45113]]

Section 37.3 Chest Radiographs Required for Miners
    Existing Sec.  37.3 requires mine operators to provide miners an 
opportunity to receive a chest radiograph. This section is amended to 
remove the word ``underground'' and remove obsolete dates and examples. 
The section is also amended to specify that evidence of decreased lung 
function demonstrated by a spirometry exam conducted pursuant to Sec.  
37.92(b)(2) may trigger a third chest radiograph.
Section 37.4 Plans for Chest Radiographic Examinations
    Existing Sec.  37.4 requires that mine operators submit to NIOSH a 
plan for chest radiographic examinations, including the beginning and 
ending dates of the 6-month period for voluntary examinations, and the 
name and location of the approved X-ray facility or facilities. A form 
for the documentation of the plan is available on the CWHSP Web site at 
https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html. This section is removed from this 
subpart and moved to new Sec.  37.100; specific amendments are 
discussed below.
Section 37.5 Approval of Plans
    Existing Sec.  37.5 outlines the process undertaken by the 
Secretary of HHS to approve or deny approval of an operator's plan for 
chest radiographs. This section is removed from this subpart and moved 
to new Sec.  37.101; specific amendments are discussed below.
Section 37.6 Chest Radiographic Examinations Conducted by the Secretary
    Existing Sec.  37.6 details the conditions under which the HHS 
Secretary will determine whether to conduct a chest radiographic 
examination. This section is amended to change the section number to 
Sec.  37.4 and to replace outdated text with current terminology.
Section 37.7 Transfer of Affected Miner to Less Dusty Area
    Existing Sec.  37.7 specifies that any miner who exhibits evidence 
of the development of CWP may transfer from his or her position to 
another position in the mine with a lower concentration of respirable 
dust, as compliant with the recently-updated 30 CFR 90.3. This section 
is removed from this subpart and moved to new Sec.  37.102; specific 
amendments are discussed below.
Section 37.8 Radiographic Examination at Miner's Expense
    Existing Sec.  37.8 allows that the miner may pay for an X-ray exam 
himself or herself, and NIOSH will provide the classification and 
report as if the exam was conducted pursuant to a mine operator's plan. 
This section is removed from this subpart and moved to new Sec.  
37.103; specific amendments are discussed below.
Section 37.40 General Provisions
    Existing Sec.  37.40 outlines general provisions for chest X-rays. 
This section is amended to update the terminology.
Section 37.50 Interpreting and Classifying Chest Radiographs--Film
    Existing Sec.  37.50 establishes procedures for the classification 
of film X-rays. It is amended slightly to update terminology.
Section 37.51 Interpreting and Classifying Chest Radiographs--Digital 
Radiography Systems
    Existing Sec.  37.51 establishes procedures for the classification 
of digital X-rays. It is amended slightly to update terminology.
Section 37.52 Proficiency in the Use of Systems for Classifying the 
Pneumoconioses
    Existing Sec.  37.52 establishes the A and B Reader approval 
programs. This section is amended to update terminology.
Section 37.53 Method of Obtaining Definitive Classifications
    Existing Sec.  37.53 establishes that radiographs will be 
independently classified by an A Reader and B Reader, or two B Readers, 
whose classifications must be in agreement as defined in Sec.  
37.53(b); if sufficient agreement is lacking, NIOSH shall obtain a 
third classification. The section is amended to clarify that the 
section addresses radiographic classifications rather than 
interpretations, and to update terminology.
Section 37.60 Submitting Required Chest Radiographs and Miner 
Identification Documents
    Existing Sec.  37.60 establishes the protocol for submitting 
radiographs to NIOSH. This section is amended to update terminology.
Section 37.70 Review of Classifications
    Existing Sec.  37.70(a) establishes that a miner may request that 
NIOSH reevaluate a CWP interpretation that the miner believes is in 
error. The section heading and paragraph (a) are amended to replace the 
words ``interpretation'' and ``interpretations'' with 
``classification'' and ``classifications.'' Paragraph (b) is amended to 
strike an obsolete reference to standards established in 1978.

B. Subpart--Spirometry Examinations

    This subpart is added to Part 37 and establishes standards for 
spirometry testing for all coal miners, working in both underground and 
surface mines. The new MSHA rule reduces permissible exposure and 
increases requirements for dust monitoring, however MSHA acknowledges 
that in spite of these changes, both surface and underground coal 
miners remain exposed to hazardous levels of respirable dust that can 
result in serious and fatal lung diseases. To facilitate early 
detection of lung injury and thereby provide an additional level of 
secondary health protection to miners, MSHA now requires that mine 
operators offer a periodic spirometry examination and symptom 
assessment, to document respiratory symptoms and lung function, in 
addition to the previous requirement for providing chest radiographic 
examinations and obtaining occupational histories.
Section 37.90 Scope
    New Sec.  37.90 provides the scope of the provisions in Subpart--
Spirometry Examinations, and is amended to clarify the purpose of this 
subpart. Under this subpart, coal mine operators are required to 
provide spirometry examinations to each current and new coal miner, 
using medical facilities approved by NIOSH according to the standards 
established in this subpart.
Section 37.91 Definitions
    New Sec.  37.91 defines terms used in this subpart. The following 
new terms are added in this rulemaking: ``ATS,'' ``ERS,'' ``facility,'' 
``FET,'' ``FEV1,'' ``FEV6,'' ``FVC,'' ``PEF,'' and ``spirometry 
examination.''
Section 37.92 Spirometry Examinations Required for Miners
    New Sec.  37.92 requires coal mine operators to provide all miners 
an opportunity to receive a spirometry examination. Paragraph (a) of 
this section specifies the timing and the new content for the miners' 
ongoing voluntary periodic health examination, as required under the 
revised MSHA rule. The examination now includes a respiratory 
assessment and spirometry testing in addition to the previously-
required chest radiograph and occupational history. Underground coal

[[Page 45114]]

mines with previously-existing mine surveillance plans will continue on 
their already-established schedules for offering periodic health 
surveillance. Periodic surveillance schedules for mines that are new to 
health surveillance, primarily surface mines, will be established by 
NIOSH in conjunction with approval of mine plans.
    Paragraph (b) of this section specifies the timing and content of 
the respiratory assessment for newly hired miners. To record and 
provide accurate and timely recognition of important lung functional 
losses that have been documented to occur during the early years of 
mining, an initial test is specified within each new miner's first 30 
days of employment and a second test after three years of work. If an 
accelerated loss of function is recognized after three years, then a 
third test after two additional years is offered to the miner, to 
determine whether the rate of decline has stabilized. These early 
examinations are intended to record any early changes in symptoms and 
spirometry and also provide a more stable baseline for assessing trends 
in lung function over the miner's subsequent career. The mandatory 
examinations specified in paragraph (b) are targeted to miners who 
begin work at a coal mine for the first time. The first spirometry test 
for experienced miners will be provided when they participate in the 
next scheduled voluntary examination (as provided in paragraph (a) of 
this section). For underground coal mines, examinations will be 
provided according to the already-established 5 year cycle. For surface 
mines that are new to surveillance, initial voluntary examinations will 
be provided over the first 5 years after implementation of expanded 
surveillance under the IFR at times established by NIOSH when mine 
plans are approved. This staged approach is necessary to effectively 
manage services to the more than 90,000 existing U.S. coal miners.
    Paragraph (c) explains that NIOSH will notify the miner when he or 
she is due to receive a second or third examination, and clarifies that 
a miner must provide written authorization for NIOSH to notify the coal 
operator of when a third examination is due. However, even if the miner 
does not complete the examination, the availability of the examination 
will constitute operator compliance with the plan. This procedure 
parallels the long established approach to offering third chest 
radiographs to new miners.
    Paragraph (d) states that the availability of spirometry testing 
must be indicated in the operator's plan required by Sec.  37.100.
Section 37.93 Approval of Spirometry Facilities
    New Sec.  37.93 establishes standards by which NIOSH will approve 
facilities that conduct spirometry tests, including ensuring that 
spirometry results are of adequate quality, and specifying programmatic 
approaches to quality assurance and addressing deficiencies. High 
quality spirometry is essential for the test results to provide 
information that can be useful in protecting miners' lung health. 
Professional organizations have recognized that to optimize the utility 
of test results, close attention must be paid to a number of important 
factors. These factors include the type and performance of the testing 
equipment, the specific training and experience of the test providers, 
specific testing procedures, programmatic attention to test quality, 
and the specific approaches to data management and interpretation of 
results. The approval of facilities that are authorized to provide 
spirometry under this subpart provides a mechanism to document the 
specific services offered and the approaches taken by each facility to 
address these important technical factors.
    Paragraph (b) describes the factors considered important in 
assuring quality spirometry testing for miners covered by this program. 
Pursuant to the standards established in the 2005 American Thoracic 
Society (ATS) and European Respiratory Society (ERS) consensus 
statement, Standardisation of Spirometry, which is incorporated by 
reference, testing instruments must be capable of demonstrating 
calibration, accuracy, and freedom from leaks as required on a daily 
basis, and results documented. Spirometers must provide an ongoing 
automatic assessment of test quality during testing, to permit 
immediate feedback to the technologist and miner. Results of each 
miner's tests will be provided to NIOSH within 14 calendar days, which 
will facilitate timely feedback with suggestions for quality 
improvement. NIOSH may periodically conduct audits to evaluate the 
quality of spirometry produced by the facility. Records pertaining to 
the provisions in this section are maintained by NIOSH under CDC/ATSDR 
Privacy Act System of Records Notice 0920-0149, Morbidity Studies in 
Coal Mining, Metal and Non-Metal Mining and General Industry. As 
specified in Sec.  37.96(e), personally identifiable information in the 
possession of NIOSH will be released only with the written consent of 
the miner or, if the miner is deceased, the written consent of the 
miner's next of kin or legal representative.
    Paragraphs (c) and (d) state that if a facility is found to be 
noncompliant with the regulations in this subpart or if a quality 
assurance audit finds the facility to be under-performing, the facility 
will be notified. Facility approvals can be revoked if facilities show 
deficiencies that are not rectified in a timely manner, within 60 days 
of notification.
    Paragraph (e) requires the confidentiality of protected 
information.
Section 37.94 Respiratory Assessment Form
    New Sec.  37.94 requires that a respiratory assessment form must be 
completed for each miner upon examination. The form is required in 
order to provide recording of respiratory symptoms and certain other 
information relevant to miner lung health using a valid, concise, and 
consistent format.
Section 37.95 Specifications for Performing Spirometry Examinations
    New Sec.  37.95 establishes standards for the performance of 
spirometry tests. As discussed in Sec.  37.93, if validated and 
standardized approaches are not taken, there can be no assurance of 
providing accurate and consistent test results.
    Paragraph (a) of this section requires that persons administering 
the spirometry testing demonstrate completion of NIOSH-approved 
spirometry training, and maintain their knowledge by periodically 
completing an approved refresher course. NIOSH approves sponsors to 
provide spirometry training courses. A listing of current courses is 
maintained on the NIOSH Web site (https://www.cdc.gov/niosh). Private 
courses may also be available that are not listed on the NIOSH Web 
site. Stakeholders are encouraged to contact NIOSH if they have 
questions about spirometry training opportunities.
    Paragraph (b) of this section requires that testing performed under 
this subpart utilize equipment complying with standards published in 
the 2005 ATS/ERS Standardisation of Spirometry for size of display, 
precision, and accuracy as verified by an independent testing 
laboratory. Requirements for validation checks are established in the 
ATS Standardization of Spirometry: 1994 Update, which is incorporated 
by reference. These requirements are met by many of the spirometers 
that are currently marketed. Although not required, spirometers may 
also export results electronically if they meet an available industry 
standard for the file specification, or if the data file content,

[[Page 45115]]

format, and approach to the transfer is approved by NIOSH.
    Paragraph (c) of this section specifies certain required procedures 
during performance of testing, including testing procedures delineated 
in the 2005 ATS/ERS Standardisation of Spirometry and the 2010 
Standardisation of Lung Function Testing, authors' replies to readers' 
comments, which are incorporated by reference. If the spirometer model 
does not support an approved approach to exporting data files, then 
certain numerical results must be entered into an electronic Spirometry 
Results Form (Form CDC/NIOSH (M)2.17) and transmitted to NIOSH, 
accompanied by images of the three spirometry flow volume and volume 
time curves reported using a secure internet transfer site.
Section 37.96 Spirometry Interpretations, Reports, and Notifications
    New Sec.  37.96 establishes requirements for the interpretation of 
spirometry test results, as well as specifications for the content, 
deletion, and transmission of test reports. This section also addresses 
the notification of miners of the test results and their 
confidentiality. Paragraph (a) of this section requires qualified 
health care professionals at the facilities to interpret results using 
a standardized approach, described in the 2005 ATS/ERS Interpretative 
Strategies for Lung Function Tests, and the 2014 Official ATS 
Standards: Spirometry in the Occupational Setting, which are 
incorporated by reference.
    Paragraph (b) specifies the content of spirometry test reports and 
the deletion of files and forms associated with the examination. The 
requirement for deletion of these files and forms is included to help 
protect the confidentiality of this personal information.
    Paragraph (c) requires that findings are communicated to the miner 
or the miner's designated physician.
    Paragraphs (d) and (e) of this section further specify the 
responsibilities of approved facilities to assure the confidentiality 
of all personal identifying information associated with testing 
performed under this subpart, to transfer all completed forms and 
spirometry results to NIOSH, and after NIOSH has indicated successful 
receipt of the data, to delete the records, to the extent feasible. 
Requirements for the transmission of spirometry data files are 
specified in the 2005 ATS/ERS Standardisation of Spirometry, which is 
incorporated by reference. NIOSH will send complete reports of 
spirometry examinations to the miner, along with any recommendations 
for follow-up.
Section 37.97 Standards Incorporated by Reference
    New Sec.  37.97 identifies standards incorporated by reference 
throughout this subpart.

C. Subpart--General Requirements

    This new subpart establishes general requirements for all surface 
and underground coal mine operators.
Section 37.100 Coal Mine Operator Plan for Medical Examinations
    New Sec.  37.100 requires that all coal mine operators submit a 
plan for providing miners with X-ray and spirometry exams, occupational 
histories, and respiratory assessment.
    Paragraph (a)(1) of this section specifies that on or after August 
1, 2014, a person becoming a coal mine operator, for example by 
purchasing an existing mine or developing a new mine, or a coal mine 
operator without an approved plan must submit a plan within 60 days 
that provides for chest radiographs and occupational histories.
    Paragraph (a)(2) states that all operators with approved 
examination plans providing only for chest radiographs and occupational 
histories, will be notified by MSHA when they are required to submit an 
amended examination plan that includes spirometry and respiratory 
assessments. Such plans must be submitted to NIOSH within 60 days of 
that MSHA notification. New plans submitted from this time forward will 
provide covered workers with chest radiographs, spirometry tests, 
respiratory assessments, and occupational histories as specified in the 
IFR.
    Paragraph (b) lists the required components of the operator's plan, 
including the identification of the medical facilities that will 
conduct the spirometry and X-ray exams, and the approximate dates and 
times during which the test will be provided. The plan must also 
provide assurances that operators will not solicit medical results or 
findings from miners; will instruct facilities about management of data 
as specified; and that examinations will be made at no charge to the 
miner.
    Paragraph (c) of this section specifies that operators may provide 
for alternate medical testing facilities and personnel.
    Paragraph (d) specifies that a change of operators does not affect 
the existing plan.
    Paragraph (e) specifies that the operator must advise NIOSH of any 
change in its plan and that the change is subject to the same review 
and approval as the original plan.
    Paragraph (f) specifies requirements for notifying employees of 
proposed mine plans or proposed changes to mine plans.
    Paragraph (g) notes requirements for periodic resubmission of 
plans.
Section 37.101 Approval of Plans
    New Sec.  37.101 establishes that the operator's plan will be 
approved by NIOSH if it is found to meet the requirements in this 
subpart. Where an approval is denied, NIOSH will give notice in writing 
to the operator, who may amend the plan.
Section 37.102 Transfer of Affected Miner to Less Dusty Area
    New Sec.  37.102 establishes the evidentiary threshold required for 
a miner who is thought to be developing pneumoconiosis related to coal 
mine dust exposure to request transfer to a less dusty environment in 
the mine.
Section 37.103 Medical Examinations at Miner's Expense
    New Sec.  37.103 states that any miner who wishes to obtain an X-
ray or spirometry exam at his or her own expense may do so. NIOSH will 
provide an interpretation and report as if the results were submitted 
under an operator's plan.

V. Regulatory Assessment Requirements

A. Executive Order 12866 and Executive Order 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility.
    This interim final rule is not being treated as a ``significant'' 
action under E.O. 12866. It amends existing regulations in 42 CFR Part 
37 to add new requirements on mine operators to provide symptom 
assessment and spirometry testing for the surveillance of decreased 
lung function to all coal miners, and to extend existing requirements 
to provide chest X-rays and occupational histories for underground coal 
miners to surface coal mine operators. The amendments to Part 37 
described in this action are made

[[Page 45116]]

pursuant to the MSHA final rule published on May 1, 2014 (79 FR 24814) 
which requires the expansion of the scope and content of current 
respiratory health surveillance, and are part of that agency's efforts 
to reduce lung disease among coal miners. MSHA estimated this expanded 
respiratory health surveillance would result in annualized costs to 
underground mines of $173,500 per year and for surface mines of 
$559,900 per year. The Department of Labor has determined that its rule 
fulfills the requirements of E.O. 12866 for this rule and provides 
estimates of the aggregate cost of benefits and costs of expanding the 
CWHSP administered by NIOSH under its rule (see MSHA's Regulatory 
Economic Analysis at https://www.msha.gov/rea.htm).
    The rule does not interfere with State, local, or tribal 
governments in the exercise of their governmental functions.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., 
requires each agency to consider the potential impact of its 
regulations on small entities including small businesses, small 
governmental units, and small not-for-profit organizations. This rule 
establishes requirements for the provision of chest X-rays and 
spirometry tests to all coal miners, and sets standards for the 
approval of testing facilities and transmission of test data.
    The potential impact on small businesses has been analyzed by MSHA, 
in the Regulatory Economic Analysis published in support of that 
agency's May 1, 2014 final rule (see https://www.msha.gov/REGS/REA/CoalMineDust2010.pdf). This interim final rule does not impose any new 
requirements on small radiographic or spirometry facilities that 
participate in the Coal Workers' Health Surveillance Program 
administered by NIOSH under 42 CFR Part 37. This interim final rule 
will not impose a significant economic burden on small coal mines. 
Accordingly, HHS certifies that this rule will not have a significant 
economic impact on a substantial number of small entities within the 
meaning of the RFA.

C. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., requires an 
agency to invite public comment on, and to obtain OMB approval of, any 
regulation that requires 10 or more people to report information to the 
agency or to keep certain records. This interim final rule continues to 
impose the same information collection requirements as under the 
existing rule, including the submission of the following forms:

 Chest Radiograph Classification Form [CDC/NIOSH (M)2.8]
 Miner Identification Document [CDC/NIOSH (M)2.9]
 Coal Mine Operator's Plan [CDC/NIOSH (M)2.10]
 Radiographic Facility Certification Document [CDC/NIOSH 
(M)2.11(E)]
 Physician Application for Certification [CDC/NIOSH (M)2.12(E)]
 Consent, Release, and History Form [CDC/NIOSH (M)2.6]

    These forms were previously approved by OMB for data collected 
under the National Coal Workers' X-Ray Surveillance Program (CWXSP)--
Federal Mine Safety and Health Act of 1977 (42CFR37) (OMB Control No. 
0920-0020, exp. May 31, 2017), although the addition of surface coal 
miners to the CWHSP increases the burden.
    The expansion of the CWHSP in accordance with this rulemaking will 
result in the participation of additional coal miner operators, coal 
miners, and physicians. The provisions in this interim final rule that 
contain data collection requirements are:
    Section 37.100 Coal mine operator plan for medical examinations. 
Every operator must submit a mine plan (Form CDC/NIOSH (M)2.10 or 
(M)2.18) every 3 to 4 years, providing information on how they plan to 
notify their miners of the opportunity to obtain the chest radiographic 
examination. Completing this form with all requested information 
(including a roster of current employees) is estimated to take 
approximately 30 minutes.
    Section 37.43 Approval of radiographic facilities that use film and 
Section 37.44 Approval of radiographic facilities that use digital 
radiography systems. X-ray facilities seeking NIOSH approval to provide 
miner X-rays under the CWHSP must complete an approval packet, 
including a Radiographic Facility Certification Document (Form CDC/
NIOSH (M)2.11). The forms associated with this approval process require 
approximately 30 minutes for completion. This form has been revised 
since the last OMB approval. A space has been added for the room number 
in which each X-ray unit listed for approval is located. This is needed 
to identify the location of the X-ray unit in hospitals and distinguish 
between units that may be identical except for the serial number. The 
serial number is not readily visible, so this will aid in identifying 
individual X-ray units. No additional burden to the facility is 
anticipated.
    Section 37.20 Miner identification document. Miners who elect to 
participate in the CWHSP must fill out the Miner Identification 
Document (Form CDC/NIOSH (M)2.9) which requires approximately 20 
minutes to complete. This document records demographic and occupational 
history, as well as information required under the regulations from X-
ray facilities in relation to coal miner examinations. In addition to 
completing this form, acquiring the chest image takes approximately 15 
minutes.
    Section 37.50 Interpreting and classifying chest radiographs--film 
and Section 37.51 Interpreting and classifying chest radiographs--
digital radiography systems. NIOSH utilizes a radiographic 
classification system developed by the International Labour Office 
(ILO), in the determination of pneumoconiosis among coal miners. 
Physicians (A and B Readers) fill out the Chest Radiograph 
Classification Form (Form CDC/NIOSH (M)2.8) regarding their 
classification of the X-rays (each X-ray has at least two separate 
classifications). As stated above, this form has been revised since the 
last OMB approval. Based on prior practice it takes the physician 
approximately 3 minutes to complete each form. No additional burden to 
the physician is anticipated.
    Section 37.52 Proficiency in the use of systems for classifying the 
pneumoconiosis. Physicians taking the B Reader Examination are asked to 
complete the Physician Application for Certification (Form CDC/NIOSH 
(M)2.12), which is a registration form that takes approximately 10 
minutes to complete. This form has been revised since the last OMB 
approval. No additional burden to the physician is anticipated.
    Section 37.93 Approval of spirometry facilities. Spirometry 
facilities seeking NIOSH approval to provide spirometry examinations 
under the CWHSP must complete an approval packet, including a 
Spirometry Facility Certification Document (Form CDC/NIOSH (M)2.14). 
The form and gathering supporting documentation associated with this 
approval process requires approximately 30 minutes to complete.
    Section 37.95 Specifications for performing spirometry 
examinations. Clinic personnel are required to complete the Spirometry 
Pre-Test Checklist form (Form CDC/NIOSH (M)2.15) for each miner prior 
to administering the spirometry test. This information is used by the 
clinic personnel to determine if the miner can perform the spirometry 
test safely and

[[Page 45117]]

identify any factors that may affect the spirometry results. Completion 
of the form will take approximately 5 minutes.
    Section 37.96 Spirometry interpretations, reports, and 
notifications. Spirometry facilities that do not submit spirometry 
results using a NIOSH-approved electronic database will submit the 
Spirometry Results Form (Form CDC/NIOSH (M)2.17) for each miner. This 
information allows NIOSH to identify the miner, conduct quality 
assurance audits, and interpret results. It will take approximately 10 
minutes to complete the form.
    Section 37.96 Spirometry interpretations, reports, and 
notifications. Spirometry facilities must submit the Spirometry 
Notification Form (Form CDC/NIOSH (M)2.16) to NIOSH upon completion of 
a spirometry examination. Miners must fill out their mailing address 
for notification of results; this will take approximately 2 minutes. 
The remainder of the information documents that the facility completed 
and transmitted the required components of the spirometry examination. 
Completion of the entire form will require 10 minutes.
    Section 37.94 Respiratory assessment form. The Respiratory 
Assessment Form (Form CDC/NIOSH (M)2.13) is designed to assess 
respiratory symptoms and certain medical conditions and risk factors. 
Completion of the entire form will require 5 minutes.
    Section 37.202 Payment for autopsy. The Pathologist Invoice 
submitted by the pathologist must contain a statement that the 
pathologist is not receiving any other compensation for the autopsy. 
Each participating pathologist may use their individual invoice as long 
as this statement is added. It is estimated that only 5 minutes is 
required for the pathologist to add this statement to the standard 
invoice that they routinely use.
    Section 37.203 Autopsy specifications. The pathologist must submit 
information found at autopsy, slides, blocks of tissue, and a final 
diagnosis indicating presence or absence of pneumoconiosis. The format 
of the autopsy reports are variable depending on the pathologist 
conducting the autopsy. Since an autopsy report is routinely completed 
by a pathologist, the only additional burden is the specific request 
for a clinical abstract of terminal illness and final diagnosis 
relating to pneumoconiosis. Therefore, only 5 minutes of additional 
burden is estimated for the pathologist's report.
    There is no additional recordkeeping burden associated with the 
quality assurance programs referenced in Sec.  37.43 Approval of 
radiographic facilities that use film, Sec.  37.44 Approval of 
radiographic facilities that use digital radiography systems, and Sec.  
37.93 Approval of spirometry facilities, because these provisions 
reflect standard industry practice and do not impose any new 
recordkeeping requirements.
    HHS estimates that the paperwork burden associated with this 
rulemaking will be 16,358 hours.

----------------------------------------------------------------------------------------------------------------
                                                                                         Average
                                                         Number of       Number of       burden/    Total burden
       Type of respondents             Form name        respondents    responses per    response       (hours)
                                                                        respondent       (hours)
----------------------------------------------------------------------------------------------------------------
Coal mine operators.............  Form 2.10 and Form             958               1         30/60           480
                                   2.18.
X-ray facility supervisor.......  Form 2.11.........              40               1         30/60            20
Coal miner......................  Form 2.9..........          10,383               1         20/60         3,461
B Reader physicians.............  Form 2.8..........             200             104          3/60         1,040
Physicians taking B reader        Form 2.12.........              50               1         10/60             8
 examination.
Next-of-kin of deceased miner...  Form 2.6..........               5               1         15/60             1
Spirometry facility employee....  Form 2.13.........          10,383               1          5/60           865
Spirometry facility supervisor..  Form 2.14.........             200               1         30/60           100
Spirometry technician...........  Form 2.15.........          10,383               1          5/60           865
Spirometry facility employee....  Form 2.16.........          10,383               1         10/60         1,730
Spirometry technician...........  Form 2.17.........          10,383               1         10/60         1,730
X-ray--Coal Miners..............  No form required..          10,383               1         15/60         2,596
Spirometry Test--Coal Miners....  No form required..          10,383               1         20/60         3,461
Pathologist--Invoice............  No form required..               5               1          5/60           0.4
Pathologist--Report.............  No form required..               5               1          5/60           0.4
                                                     -----------------------------------------------------------
    Total.......................  ..................  ..............  ..............  ............        16,358
----------------------------------------------------------------------------------------------------------------

D. Small Business Regulatory Enforcement Fairness Act

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.), the Department 
will report the promulgation of this rule to Congress prior to its 
effective date. The report will state that the Department has concluded 
that this rule is not a ``major rule'' because it is not likely to 
result in an annual effect on the economy of $100 million or more.

E. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 
et seq.) directs agencies to assess the effects of Federal regulatory 
actions on State, local, and tribal governments, and the private sector 
``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' For purposes of the 
Unfunded Mandates Reform Act, this rule does not include any Federal 
mandate that may result in increased annual expenditures in excess of 
$100 million by State, local or tribal governments in the aggregate, or 
by the private sector. For 2014, the inflation-adjusted threshold is 
$152 million.

F. Executive Order 12988 (Civil Justice)

    This rule has been drafted and reviewed in accordance with 
Executive Order 12988, ``Civil Justice Reform,'' and will not unduly 
burden the Federal court system. Chest radiograph classifications that 
result in a finding of pneumoconiosis may be an element in claim 
processing and adjudication conducted by DOL's Black Lung Compensation 
Program. This interim final rule affects radiographs submitted to DOL 
for the purpose of reviewing and administering those claims. This rule 
has been reviewed carefully to eliminate drafting errors and 
ambiguities.

[[Page 45118]]

G. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' The rule does not ``have substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''

H. Executive Order 13045 (Protection of Children From Environmental 
Health Risks and Safety Risks)

    In accordance with Executive Order 13045, HHS has evaluated the 
environmental health and safety effects of this rule on children. HHS 
has determined that the rule would have no effect on children.

I. Executive Order 13211 (Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use)

    In accordance with Executive Order 13211, HHS has evaluated the 
effects of this rule on energy supply, distribution or use, and has 
determined that the rule will not have a significant adverse effect.

J. Plain Writing Act of 2010

    Under Public Law 111-274 (October 13, 2010), executive Departments 
and Agencies are required to use plain language in documents that 
explain to the public how to comply with a requirement the Federal 
Government administers or enforces. HHS has attempted to use plain 
language in promulgating the interim final rule consistent with the 
Federal Plain Writing Act guidelines.

VI. Interim Final Rule

List of Subjects in 42 CFR Part 37

    Chronic Obstructive Pulmonary Disease, Coal Workers' 
Pneumoconiosis, Incorporation by reference, Lung diseases, Mine safety 
and health, Occupational safety and health, Part 90 miner, Part 90 
transfer rights, Pneumoconiosis, Respiratory and pulmonary diseases, 
Silicosis, Spirometry, Surface coal mining, Underground coal mining, X-
rays.

Text of the Rule

    For the reasons discussed in the preamble, the Department of Health 
and Human Services amends 42 CFR part 37 as follows:

PART 37--SPECIFICATIONS FOR MEDICAL EXAMINATIONS OF COAL MINERS

0
1. The authority citation for part 37 continues to read as follows:

    Authority:  Sec. 203, 83 Stat. 763 (30 U.S.C. 843), unless 
otherwise noted.

Subpart--Chest Radiographic Examinations

0
2. Revise the heading of the first subpart to read as set forth above.

0
3. Revise Sec.  37.1 to read as follows:


Sec.  37.1  Scope.

    Under this subpart, coal mine operators are required to provide 
radiographic examinations to each current and new coal miner, using 
medical facilities approved by NIOSH in accordance with standards 
established in this subpart.

0
4. Amend Sec.  37.2 by revsing the definitions of ``miner'', ``NIOSH'' 
and ``operator'' to read as follows:


Sec.  37.2  Definitions.

    * * *
    Miner means any individual working in a coal or other mine.
    NIOSH means the National Institute for Occupational Safety and 
Health (NIOSH), located within the Centers for Disease Control and 
Prevention (CDC). Within NIOSH, the Division of Respiratory Disease 
Studies (DRDS), 1095 Willowdale Road, Morgantown, WV 26505, formerly 
called the Appalachian Laboratory for Occupational Safety and Health, 
is the organizational unit that has programmatic responsibility for the 
medical examination and surveillance program.
* * * * *
    Operator means any owner, lessee, or other person who operates, 
controls, or supervises a coal or other mine or any independent 
contractor performing services or construction at such mine.
* * * * *

0
5. Revise Sec.  37.3 to read as follows:


Sec.  37.3  Chest radiographs required for miners.

    (a) Voluntary examinations. Every operator must provide to each 
miner who is employed in or at any of its coal mines and who was 
employed in coal mining prior to December 30, 1969, or who has 
completed the required examinations under Sec.  37.3(b) an opportunity 
for a chest radiograph at no cost to the miner in accordance with this 
subpart:
    (1) NIOSH will notify the operator of each coal mine of a period 
within which the operator may provide examinations to each miner 
employed at its coal mine. The period must begin no sooner than October 
15, 2012, and end no later than a date specified by NIOSH separately 
for each coal mine. Within the period specified by NIOSH for each mine, 
the operator may select a 6-month period within which to provide 
examinations in accordance with a plan approved under Sec.  37.101.
    (2) For all voluntary examinations, NIOSH will notify the operator 
of each coal mine when sufficient time has elapsed since the end of the 
previous 6-month period of examinations. NIOSH will specify to the 
operator of each mine a period within which the operator may provide 
examinations to its miners employed at its coal mine. The period must 
begin no sooner than 3.5 years and end no later than 4.5 years 
subsequent to the ending date of the previous 6-month period specified 
for a coal mine either by the operator on an approved plan or by NIOSH 
if the operator did not submit an approved plan. Within the period 
specified by NIOSH for each mine, the operator may select a 6-month 
period within which to provide examinations in accordance with a plan 
approved under Sec.  37.101.

    Example:  NIOSH finds that examinations were previously provided 
to miners employed at mine Y in a 6-month period from July 1, 2013, 
to December 31, 2013. NIOSH notifies the operator at least 3 months 
before July 1, 2017 (3.5 years after December 31, 2013) that the 
operator may select and designate on its plan the next 6-month 
period within which to offer examinations to its miners employed at 
mine Y. The 6-month period must be scheduled between July 1, 2017, 
and July 1, 2018 (between 3.5 and 4.5 years after December 31, 
2013).

    (3) Within either the next or future period(s) specified by NIOSH 
to the operator for each of its coal mines, the operator of the coal 
mine may select a different 6-month period for each of its mines within 
which to offer examinations. In the event the operator does not submit 
an approved plan, NIOSH will specify a 6-month period to the operator 
within which miners must have the opportunity for examinations.
    (b) Mandatory examinations. Every operator must provide to each 
miner who begins working in or at an underground coal mine for the 
first time after December 30, 1969 or in or at a surface coal mine for 
the first time after August 1, 2014:
    (1) An initial chest radiograph, as soon as possible, but in no 
event later than 30 days after commencement of employment or within 30 
days of approval of a plan to provide chest radiographs. An initial 
chest radiograph

[[Page 45119]]

given to a miner according to former regulations for this subpart prior 
to August 1, 2014 will also be considered as fulfilling this 
requirement.
    (2) A second chest radiograph, in accordance with this subpart, 3 
years following the initial examination if the miner is still engaged 
in coal mining. A second radiograph given to a miner according to 
former regulations under this subpart prior to August 1, 2014 will be 
considered as fulfilling this requirement.
    (3) A third chest radiograph 2 years following the second chest 
radiograph if the miner is still engaged in coal mining and if the 
second radiograph shows evidence of category 1 (1/0, 1/1, 1/2), 
category 2 (2/1, 2/2, 2/3), category 3 (3/2, 3/3, 3/+) simple 
pneumoconioses, or complicated pneumoconioses (ILO Classification) or 
if the second spirometry examination specified in Sec.  37.92(b)(2) 
shows evidence of decreased lung function to the extent specified in 
Sec.  37.92(b)(3).
    (c) Notification. NIOSH will notify the miner when he or she is due 
to receive the second or third mandatory examination under (b) of this 
section. Similarly, NIOSH will notify the coal mine operator when the 
miner is to be given a second examination. The operator will be 
notified concerning a miner's third examination only with the miner's 
written consent, and the notice to the operator must not state the 
medical reason for the examination or that it is the third examination 
in the series. If the miner is notified by NIOSH that the third 
mandatory examination is due and the operator is not so notified, 
availability of the radiographic examination under the NIOSH-approved 
operator's plan will constitute the operator's compliance with the 
requirement to provide a third mandatory examination even if the miner 
refuses to take the examination.
    (d) Availability of chest radiographs. The opportunity for chest 
radiographs to be made available by an operator for purposes of this 
subpart must be provided in accordance with a plan that has been 
submitted and approved in accordance with this subpart.


Sec.  37.4  [Removed]

0
6. Remove Sec.  37.4.


Sec.  37.5  [Removed]

0
7. Remove Sec.  37.5.


Sec.  37.6  [Redesignated as Sec.  37.4]

0
8. Redesignate Sec.  37.6 as Sec.  37.4 and in the section heading and 
in paragraph (a)(1) remove the word ``roentgenographic'' and add in its 
place ``radiographic''.


Sec.  37.7  [Removed]

0
9. Remove Sec.  37.7.


Sec.  37.8  [Removed]

0
10. Remove Sec.  37.8.

0
11. Amend Sec.  37.10 in paragraph (a) by revising the first sentence 
to read as follows:


Sec.  37.10  

    (a) Certain material is incorporated by reference into this 
subpart, Subpart--Chest Radiographic Examinations, with the approval of 
the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR 
part 51. * * *
* * * * *


Sec.  37.40  [Amended]

0
12. Amend Sec.  37.40 in paragraph (b) by removing the word 
``Roentgenographic'' and adding in its place ``Radiographic''.


Sec.  37.50  [Amended]

0
13. Amend Sec.  37.50 in paragraph (a) by removing the phrase 
``Roentgenographic Interpretation'' and adding in its place ``Chest 
Radiograph Classification''.


Sec.  37.51  [Amended]

0
14. Amend Sec.  37.51 in paragraph (b) by removing the phrase 
``Roentgenographic Interpretation'' and adding in its place ``Chest 
Radiograph Classification''.


Sec.  37.52  [Amended]

0
15. Amend Sec.  37.52 in paragraph (a)(2)(i) by removing the phrase 
``Roentgenographic Interpretation'' and adding in its place 
``Radiographic Interpretation''.


Sec.  37.53  [Amended]

0
16. Amend Sec.  37.53 by removing the terms ``interpreted'', 
``interpretation'', and ``interpretations'' and adding in their place 
``classified'', ``classification'', and ``classifications'', 
respectively, wherever they occur, and in paragraph (b) by removing the 
phrase ``Roentgenographic Interpretation'' and adding in its place 
``Chest Radiograph Classification''.


Sec.  37.60  [Amended]

0
17. Amend Sec.  37.60 in the section heading and paragraphs (a) 
introductory text and (a)(1) by removing the phrase ``Roentgenographic 
Interpretation'' and add in its place ``Chest Radiograph 
Classification''.


Sec.  37.70  [Amended]

0
18. Amend Sec.  37.70 in paragraph (a) by removing the terms 
``interpretation'' and ``interpretations'' and adding in their place 
``classification'' and ``classifications'', respectively, wherever they 
occur, and in paragraph (b) by removing the phrase ``made subsequent to 
August 1, 1978,''.
0
19. Add a subpart, titled Spirometry Examinations, after the 
undesignated center heading ``Review and Availability of Records'' to 
read as follows:
Subpart--Spirometry Examinations
Sec.
37.90 Scope.
37.91 Definitions.
37.92 Spirometry examinations required for miners.
37.93 Approval of spirometry facilities.
37.94 Respiratory assessment form.
37.95 Specifications for performing spirometry examinations.
37.96 Spirometry interpretations, reports, and notifications.
37.97 Standards incorporated by reference.


Sec.  37.90  Scope.

    Under this subpart, coal mine operators are required to provide 
spirometry examinations to each current and new coal miner, using 
medical facilities approved by NIOSH in accordance with standards 
established in this subpart.


Sec.  37.91  Definitions.

    Definitions provided in Sec.  37.2 will have the same meaning in 
this subpart. Any term defined in the Federal Mine Safety and Health 
Act of 1977 and not defined in Sec.  37.2 or this section will have the 
meaning given it in the Act. As used in this subpart:
    ATS means American Thoracic Society.
    ERS means European Respiratory Society.
    Facility means a facility or organization licensed to provide 
health care by the State or Territory in which services are provided, 
such as a hospital, a clinic, or other provider that performs 
spirometry examinations.
    FET means forced expiratory time, which is the time from the 
beginning of exhalation (the back-extrapolated ``time zero'') to the 
end of the expiratory maneuver.
    FEV1 means forced expiratory volume in the first second, which is 
the volume of air that can forcibly be blown out in one second, after 
full inspiration.
    FEV6 means forced expiratory volume in the first six seconds, which 
is the volume of air that can forcibly be blown out in six seconds, 
after full inspiration.
    FVC means forced vital capacity, which is the volume of air that 
can forcibly be blown out after full inspiration.
    PEF means peak expiratory flow, which is the maximal airflow during 
a forced expiratory maneuver.
    Spirometry examination means a pulmonary function test that 
measures

[[Page 45120]]

expiratory volume and airflow rates and may determine the presence and 
severity of lung function impairments, if such are present.


Sec.  37.92  Spirometry examinations required for miners.

    (a) Voluntary examinations. Each operator must provide to all 
miners who are employed in or at any of its coal mines the opportunity 
to have a spirometry examination and a respiratory assessment at no 
cost to the miner at least once every 5 years in accordance with this 
subpart. The examinations will be available during a 6-month period 
that begins no less than 3.5 years and not more than 4.5 years from the 
end of the last 6-month period.
    (b) Mandatory examinations. Every operator must provide to each 
miner who begins work in or at a coal mine for the first time on or 
after August 1, 2014, a spirometry examination and respiratory 
assessment at no cost to the miner in accordance with this subpart.
    (1) Initial spirometry examination. An initial spirometry 
examination and respiratory assessment will be provided to all miners 
who begin work in or at a coal mine for the first time on or after 
August 1, 2014 within the first 30 days of their employment or within 
30 days of approval of a plan to provide spirometry examinations.
    (2) Second examination. A follow-up second spirometry examination 
and respiratory assessment will be provided to the miner no later than 
3 years after the initial spirometry examination if the miner is still 
engaged in coal mining.
    (3) Third examination. A third spirometry examination and 
respiratory assessment will be provided no later than 2 years after the 
examinations in paragraphs Sec.  37.3(b)(2) and paragraph (b)(2) of 
this section if the chest radiograph shows evidence of pneumoconiosis 
as defined in Sec.  37.3(b)(3) or if the second spirometry test results 
demonstrate more than a 15 percent decline in the value of percent 
predicted FEV1 since the initial test. Percent predicted FEV1 will be 
calculated according to prediction equations published in Spirometric 
Reference Values from a Sample of the General U.S. Population, American 
Journal of Respiratory and Critical Care Medicine, 159(1):179-187, 
January 1999, (incorporated by reference, see Sec.  37.97). A 
correction factor to Caucasian reference values will be applied when 
testing individuals of Asian descent as specified in the ATS Technical 
Standards: Spirometry in the Occupational Setting, p. 987 (incorporated 
by reference, see Sec.  37.97).
    (c) Notification. NIOSH will notify the miner when he or she is due 
to receive the second or third mandatory examination under (b) of this 
section. Similarly, NIOSH will notify the coal mine operator when the 
miner is to be given a second examination. The operator will be 
notified concerning a miner's third examination only with the miner's 
written consent, and the notice to the operator must not state the 
medical reason for the examination or that it is the third examination 
in the series. If the miner is notified by NIOSH that the third 
mandatory examination is due and the operator is not so notified, 
availability of the spirometry examination under the NIOSH-approved 
operator's plan will constitute the operator's compliance with the 
requirement to provide a third mandatory examination even if the miner 
does not take the examination.
    (d) Availability of spirometry testing. The opportunity for 
spirometry to be available for purposes of this subpart must be 
indicated in an operator's plan that has been submitted and approved in 
accordance with this subpart.


Sec.  37.93  Approval of spirometry facilities.

    (a) Facilities seeking approval to provide the spirometry 
examinations specified under this subpart must have the ability to 
provide spirometry of high technical quality. Thus, NIOSH-approved 
facilities must meet the requirements specified in this subpart for the 
following activities: Training technicians to perform the tests; 
conducting spirometry tests using equipment and procedures that meet 
required specifications; collecting the respiratory assessment form; 
transmitting data to NIOSH; and communicating with miners as required 
for scheduling, testing, and notification of results. Facilities 
seeking approval may apply to NIOSH using the Spirometry Facility 
Certification Document (Form CDC/NIOSH (M)2.14), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html.
    (b) Spirometry quality assurance. A spirometry quality assurance 
program must be in place to minimize the rate of invalid test results. 
This program must include all of the following components:
    (1) Instrument calibration checks. Testing personnel must fully 
comply with the 2005 ATS/ERS Standardisation of Spirometry guidelines 
for instrument calibration check procedures, pp. 322-323, including 
Table 3 (incorporated by reference, see Sec.  37.97). Calibration check 
procedures must include daily (day of testing) leak and volume accuracy 
checks and linearity checks according to the frequency established by 
the 2005 ATS/ERS guidelines. Instrument calibration check records must 
be maintained by the facility and available for inspection.
    (2) Automated maneuver and test session quality checks. The 
spirometer software must automatically perform quality assurance checks 
on expiratory maneuvers during each spirometry testing session. 
Messages must alert the technician to maneuver acceptability errors and 
test session non-repeatability. Each spirometry test session must have 
the goal of obtaining 3 acceptable with 2 repeatable forced expiratory 
maneuvers, as defined by the 2005 ATS/ERS Standardisation of 
Spirometry, p. 325 (incorporated by reference, see Sec.  37.97).
    (3) Ongoing monitoring of test quality. Facilities must submit 
spirometry results to NIOSH within 14 calendar days of testing as 
specified in Sec.  37.95(d) to permit NIOSH to monitor test quality and 
provide a report to the miner. NIOSH may provide feedback to the 
appropriate technician(s) along with suggestions for improvement.
    (4) Quality assurance audits. NIOSH may periodically conduct audits 
to review examinations submitted by approved facilities and assess the 
quality of spirometry provided. Such audits may include a review of all 
spirometry examination data obtained during a specified time period or 
review of spirometry test data collected over time on selected miners.
    (c) Noncompliance. If NIOSH determines that a facility is not 
compliant with the policies and procedures specified in this subpart, 
or determines as the result of a quality assurance audit specified in 
this section that a facility is not performing spirometry examinations 
of adequate quality, the facility will be notified of the deficiency. 
The facility must promptly make appropriate arrangements for the 
deficiency to be rectified.
    (d) Revocation of approval. If a facility fails to rectify 
deficiencies within 60 days of notification, NIOSH approval of the 
facility may be revoked. An approval which has been revoked may be 
reinstated at the discretion of NIOSH after it receives satisfactory 
assurances and evidence that all deficiencies have been corrected and 
that effective controls have been instituted by the facility to prevent 
a recurrence.
    (e) Maintenance of records. In conducting medical examinations 
pursuant to this part, physicians and radiographic facilities must 
maintain the results and analyses of these

[[Page 45121]]

examinations (including any hard copies or digital files containing 
individual data, interpretations, classifications, and images) in a 
manner consistent with applicable statutes and regulations governing 
the treatment of individually identifiable health information, 
including, as applicable, the HIPAA Privacy and Security Rules (45 CFR 
part 160 and 45 CFR part 164, subparts A, C, and E).


Sec.  37.94  Respiratory assessment form.

    As part of the spirometry examination and concurrent with it, 
personnel at the facility must complete a Respiratory Assessment form 
(Form CDC/NIOSH (M)2.13), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, for the miner.


Sec.  37.95  Specifications for performing spirometry examinations.

    (a) Persons administering the spirometry examination. Each person 
administering spirometry examinations must successfully complete a 
NIOSH-approved spirometry training course and maintain a valid 
certificate by periodically completing NIOSH-approved spirometry 
refresher training courses, identified on the NIOSH Web site at https://www.cdc.gov/niosh/;. A copy of the certificate of completion from a 
NIOSH-approved spirometry training or refresher course, with validation 
dates printed on the document, must be available for inspection. NIOSH 
will assign each person administering spirometry examinations a unique 
identification number, which must be entered into the spirometry system 
computer whenever instrument quality assurance or miner testing is done 
or on the Spirometry Results form (Form CDC/NIOSH (M)2.17), available 
at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html.
    (b) Spirometer specifications. Spirometry testing equipment must 
meet the 2005 ATS/ERS Standardisation of Spirometry specifications for 
spirometer accuracy and precision and real-time display size and 
content, pp. 331-333, including Table 2 on p. 322 and Table 6 on p. 332 
(incorporated by reference, see Sec.  37.97). Facilities must make 
available for inspection written verification from a third-party 
testing laboratory (not the manufacturer or distributor) that the model 
of spirometer being used has successfully passed its validation checks 
as required by the Standardization of Spirometry; 1994 Update protocol, 
Appendix B pp. 1126-1134, including Table C1 (incorporated by 
reference, see Sec.  37.97). Facilities may request such documentation 
from spirometer manufacturers. For each forced expiratory maneuver 
submitted for a miner under this part, the spirometry data file must 
retain a record of the parameters defined in the 2005 ATS/ERS 
Standardisation of Spirometry, p. 335 including Table 8 (incorporated 
by reference, see Sec.  37.97). Spirometers that provide electronic 
transfer of spirometry data results files must use the format, content, 
and data structure specified by the 2005 ATS/ERS Standardisation of 
Spirometry, p. 335, or a procedure for data transfer that is approved 
by NIOSH.
    (c) Spirometry examination procedures. Administration of spirometry 
examinations must include the following:
    (1) Pre-test checklist. A short Spirometry Pre-Test Checklist (Form 
CDC/NIOSH (M) 2.15), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, must be 
administered prior to each spirometry examination to identify possible 
contraindications to testing, or factors that might affect results.
    (2) Respiratory assessment. A standardized Respiratory Assessment 
form (Form CDC/NIOSH (M)2.13), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, must be 
completed at the initial spirometry examination and repeated at each 
spirometry examination.
    (3) Collection of anthropometric and demographic information. The 
miner's standing height must be measured in stocking feet using a 
stadiometer (or equivalent device) each time the miner has a spirometry 
test. The miner's weight must also be measured (in stocking feet). The 
miner's birth date, race, and ethnicity must also be recorded. These 
data will be entered into the spirometry system computer and 
transmitted with the spirometry data file. For facilities with 
spirometers that do not permit electronic transfer of data files as 
specified in Sec.  37.96(d), the Spirometry Results form (Form CDC/
NIOSH (M) 2.17), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, will be completed 
for each miner tested, and will report the numerical results of the 
highest and second highest results for the FVC and FEV1 and the highest 
PEF from at least three maximal, acceptable expiratory maneuvers (also 
called trials), as well as the FEV6 derived from those maneuvers 
reported.
    (4) Examination. The spirometry examination will be conducted in 
accordance with test procedures defined in the 2005 ATS/ERS 
Standardisation of Spirometry, pp. 323-326, and the Standardisation of 
Lung Function Testing, Replies to Readers, pp. 1496-1498 (both 
incorporated by reference, see Sec.  37.97).
    (i) The technician must be able to view real-time testing display 
screens as specified in the 2005 ATS/ERS Standardisation of Spirometry, 
p. 322 (incorporated by reference, see Sec.  37.97).
    (ii) A miner will be tested in the standing position, but may be 
seated if he or she experiences lightheadedness or other signs or 
symptoms that raise a safety concern relating to the standing position 
during the spirometry test.
    (d) Submission of test results. NIOSH-approved facilities must 
submit results of spirometry examinations electronically with content 
as specified in Sec.  37.96(b), pre-test screening checklists, and 
standardized respiratory assessments within 14 calendar days of testing 
a miner.
    (e) Records retention. On-site records of the results will include 
spirometry examination reports and retention of all spirometry 
examinations, pre-test checklists, and standardized respiratory 
assessment results in electronic or printed format until notification 
to delete or render the information inaccessible, as described in Sec.  
37.100(b)(6)(ii), is received from NIOSH.


Sec.  37.96  Spirometry interpretations, reports, and notifications.

    (a) Interpretation of spirometry examinations. Interpretations will 
be carried out by physicians or other qualified health care 
professionals with expertise in spirometry who have all required 
licensure and privileges to provide this service in their State or 
Territory. Interpretations must be carried out using procedures and 
criteria consistent with recommendations in the ATS Technical 
Standards: Spirometry in the Occupational Setting, pp. 987-990, and the 
ATS/ERS Interpretative Strategies for Lung Function Tests, p. 950, p. 
956 including Table 5, and p. 957 including Table 6 (both incorporated 
by reference, see Sec.  37.97).
    (b) Spirometry test reports at the facilities. (1) Spirometry test 
reports must contain, at a minimum, the miner's age, height, gender, 
race, and weight, numerical values (FVC, FEV6, FEV1, FEV1/FVC, FEV1/
FEV6, FET, and PEF) and volume-time and flow-volume spirograms for all 
recorded expiratory maneuvers, normal reference value set used, the 
predicted, percent predicted and lower limit of normal values, miner

[[Page 45122]]

position during testing (standing or sitting), dates of test and last 
calibration check, ambient temperature and barometric pressure (volume 
spirometers), and the technician's unique identification number.
    (2) NIOSH will notify the submitting facility when to permanently 
delete or, if this is not technologically feasible for the spirometry 
system used, render permanently inaccessible all files and forms 
associated with a miner's spirometry examination from its electronic 
and physical files.
    (c) Notifying miners of spirometry examination results. (1) 
Findings must be communicated to the miner or, if requested by the 
miner, to the miner's designated physician. The health care 
professional at the NIOSH-approved facility must inform the miner if 
the spirometry examination shows abnormal results or if the respiratory 
assessment suggests he or she may benefit from the medical follow-up or 
a smoking cessation intervention.
    (2) NIOSH will notify the miner of his or her spirometry 
examination results and the results of a comparison between current and 
previously submitted spirometry examinations and will advise the miner 
to contact a health care professional as appropriate based on the 
results.
    (d) Submission of results. Each facility must submit spirometry 
results and completed forms to NIOSH within 14 days after a miner has 
received an examination under this subpart. If specified under a 
facility's approval, it must submit spirometry results and the 
completed Respiratory Assessment Form (Form CDC/NIOSH (M)2.13) and 
Spirometry Notification Form (Form CDC/NIOSH (M)2.16), available at 
https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, via electronic transmission. 
Facilities must utilize a secure internet data transfer site specified 
by NIOSH. The transmitted spirometry data files must include a variable 
length record providing all parameters in the format, content, and data 
structure described by the 2005 ATS/ERS Standardisation of Spirometry, 
p. 335 including Table 8 (incorporated by reference, see Sec.  37.97), 
or an alternate data file that is approved by NIOSH. If electronic 
transmission of spirometry results is not possible, for example if a 
facility's spirometer does not provide an approved electronic transfer 
of spirometry files, then the miner's Spirometry Results Form (Form 
CDC/NIOSH (M)2.17), available at https://www.cdc.gov/niosh/topics/surveillance/ords/CoalWorkersHealthSurvProgram.html, must be completed 
and submitted accompanied by image files documenting the flow-volume 
and volume time curves for each trial reported on the Results Form. 
Such facilities must also send a completed Respiratory Assessment Form 
(Form CDC/NIOSH (M)2.13) and Spirometry Notification Form (Form CDC/
NIOSH (M)2.16). Data submission to NIOSH by such a facility must be 
carried out as specified in the facility's approval.
    (e) Confidentiality of spirometry examinations. Individual medical 
information and spirometry results are considered protected health 
information under HIPAA and may only be released as specified by HIPAA 
or to NIOSH as specified in Sec. Sec.  37.93 and 37.96 of this subpart. 
Personally identifiable information in the possession of NIOSH will be 
released only with the written consent of the miner or, if the miner is 
deceased, the written consent of the miner's next of kin or legal 
representative. To provide on-site back-up and assure complete data 
transfer, facilities will retain the forms and results (in electronic 
or paper format) from a miner's examination until instruction has been 
received from NIOSH to delete the associated files and forms or, if 
this is not technologically feasible, render the data permanently 
inaccessible.


Sec.  37.97  Standards incorporated by reference.

    (a) Certain material is incorporated by reference into this 
subpart, Subpart--Spirometry Examinations, with the approval of the 
Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 
51. To enforce any edition other than that specified in this section, 
NIOSH must publish notice of change in the Federal Register and the 
material must be available to the public. All approved material is 
available for inspection at NIOSH, Division of Respiratory Disease 
Studies, 1095 Willowdale Road, Morgantown, WV 26505. To arrange for an 
inspection at NIOSH, call 304-285-5749. Copies are also available for 
inspection at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030 or go to https://www.archives.gov/federal_register/code_of_federal_regulations/ibv_locations.html.
    (b) American Journal of Respiratory and Critical Care Medicine, 
American Thoracic Society (ATS), 25 Broadway, 18th Floor, New York, NY 
10004. Phone: (800) 635-7181, extension 8065. Email: 
Hope.Robinson@sheridan.com. https://www.atsjournals.org/action/showHome:
    (1) Standardization of Spirometry; 1994 Update. Official Statement 
of the ATS, adopted November 11, 1994. American Journal of Respiratory 
and Critical Care Medicine 152(3):1107-1136, September 1995, into Sec.  
37.95(b). This ATS Official Statement is also available at https://www.thoracic.org/statements/resources/archive/201.pdf.
    (2) Official American Thoracic Society Technical Standards: 
Spirometry in the Occupational Setting (``ATS Technical Standards: 
Spirometry in the Occupational Setting''). Redlich CA, Tarlo SM, 
Hankinson JL, Townsend MC, Eschenbacher WL, Von Essen SG, Sigsgaard T, 
and Weissman DN. American Journal of Respiratory and Critical Care 
Medicine 189(8):983-994, April 15, 2014, into Sec. Sec.  37.92(b) and 
37.96(a).
    (3) Spirometric Reference Values from a Sample of the General U.S. 
Population. Hankinson JL, Odencrantz JR, Fedan KB. American Journal of 
Respiratory and Critical Care Medicine, 159(1):179-187, January 1999, 
into Sec.  37.92(b).
    (c) European Respiratory Journal, 442 Glossop Road, Sheffield, S10 
2PX, UK. Phone: 44 114 267 28 60; Fax: 44 114 266 50 64. Email: 
info@ersj.org.uk. https://erj.ersjournals.com/.
    (1) Standardisation of Spirometry (``2005 ATS/ERS Standardisation 
of Spirometry''). ATS/ERS Task Force: Standardization of Lung Function 
Testing. Miller MR, Hankinson J, Brusasco V, Burgos F, Casaburi R, 
Coates A, Crapo R, Enright P, van der Grinten CPM, Gustafsson P, Jensen 
R, Johnson DC, MacIntyre N, McKay R, Navajas D, Pedersen OF, Pellegrino 
R, Viegi G, and Wanger J. European Respiratory Journal 26(2):319-338, 
August 2005, into Sec. Sec.  37.93(b); 37.95(b) and (c); and 37.96(d). 
The ATS/ERS Standardisation of Spirometry is also available on the ATS 
Web site at https://foundation.thoracic.org/statements/resources/pft/PFT2.pdf.
    (2) Interpretative Strategies for Lung Function Tests (``ATS/ERS 
Interpretative Strategies for Lung Function Tests''). ATS/ERS Task 
Force: Standardisation of Lung Function Testing. Pellegrino R, Viegi G, 
Brusasco V, Crapo RO, Burgos F, Casaburi R, Coates A, van der Grinten 
CPM, Gustafsson P, Hankinson J, Jensen R, Johnson DC, MacIntyre N, 
McKay R, Miller MR, Navajas D, Pedersen OF, and Wanger J. European 
Respiratory Journal 26(5):948-968, November 2005, into Sec.  37.96(a). 
The ATS/ERS Standardisation of Lung Function Testing is also available 
on the ATS Web site at https://www.thoracic.org/statements/resources/pft/pft5.pdf.

[[Page 45123]]

    (3) Standardisation of Lung Function Testing, the Authors' Replies 
to Readers' Comments (``Standardisation of Lung Function Testing, 
Replies to Readers''). Miller MR, Hankinson J, Brusasco V, Burgos F, 
Casaburi R, Coates A, Enright P, van der Grinten C, Gustafsson P, 
Jensen R, MacIntyre N, McKay RT, Pedersen OF, Pellegrino R, Viegi G, 
and Wanger J. European Respiratory Journal 36(6):1496-1498, December 
2010, into Sec.  37.95(c). The Standardisation of Lung Function 
Testing, Replies to Readers is also available on the ATS Web site at 
https://www.thoracic.org/statements/resources/pft/clarification-12-2010.pdf.
0
20. Add a subpart, titled General Requirements, after Subpart--
Spirometry Examinations to read as follows:
Subpart--General Requirements
Sec.
37.100 Coal mine operator plan for medical examinations.
37.101 Approval of plans.
37.102 Transfer of affected miner to less dusty area.
37.103 Medical examination at miner's expense.


Sec.  37.100  Coal mine operator plan for medical examinations.

    (a) Each coal mine operator must submit and receive NIOSH approval 
of a plan for the provision of chest radiographs, occupational 
histories, spirometry examinations, and respiratory assessments of 
miners, using the appropriate forms provided by NIOSH.
    (1) During the transition from August 1, 2014 until the time when 
spirometry facilities are approved by NIOSH, any person becoming a coal 
mine operator on or after August 1, 2014, or any coal mine operator 
without an approved plan as of that date must submit a plan within 60 
days that provides for chest radiographs and occupational histories.
    (2) Coal mine operators with previously approved plans for only 
chest radiographs and occupational histories, or with plans developed 
pursuant to paragraph (a)(1) of this section, will be notified by MSHA 
when the plans must be amended to include spirometry examinations and 
respiratory assessments. Amendments must be submitted to NIOSH within 
60 days of MSHA's notification.
    (b) The coal mine operator's plan must include:
    (1) The name, address, and telephone number of the operator(s) 
submitting the plan;
    (2) The name, MSHA identification number for respirable dust 
measurements, and address of the mine included in the plan;
    (3) The proposed beginning and ending date of the 6-month period(s) 
for voluntary radiography and spirometry examinations (see Sec.  
37.3(a) and Sec.  37.92(a)), the estimated number of miners to be given 
or offered examinations during the 6-month period under the plan, and a 
roster specifying the names and current home mailing addresses of each 
miner covered by the plan;
    (4) The name and location of the approved X-ray and spirometry 
facility or facilities, and the approximate date(s) and time(s) of day 
during which the radiographs and spirometry tests will be given to 
miners to enable a determination of whether the examinations will be 
conducted at a convenient time and place;
    (5) If a mobile medical examination facility is proposed to provide 
some or all of the surveillance tests specified in paragraph Sec.  
37.100(a), the plan shall provide that each miner be given adequate 
notice of the opportunity to have the examination and that no miner 
shall have to wait for an examination more than 1 hour before or after 
his or her work shift. In addition, the plan shall include:
    (i) The number of change houses at the mine.
    (ii) One or more alternate non-mobile approved medical examination 
facilities for the reexamination of miners and for the mandatory 
examination of miners when necessary [see Sec. Sec.  37.3(b) and 
37.92(b)], or an assurance that the mobile facility will return to the 
location(s) specified in the plan as frequently as necessary to provide 
for medical surveillance examinations in accordance with these 
regulations.
    (iii) The name and location of each change house at which 
examinations will be given. For mines with more than one change house, 
the examinations shall be given at each change house or at a change 
house located at a convenient place for each miner.
    (6) Assurances that:
    (i) The operator will not solicit a physician's spirometric, 
radiographic or other findings concerning any miner employed by the 
operator,
    (ii) Instructions have been given to the person(s) giving the 
examinations that duplicate spirograms or copies of spirograms 
(including copies of electronic files) and radiographs or copies of 
radiographs (including, for digital radiographs, copies of electronic 
files) will not be made, and to the extent that it is technically 
feasible all related electronic files must be permanently deleted from 
the facility records or rendered permanently inaccessible following the 
confirmed transfer of such data to NIOSH, and that (except as may be 
necessary for the purpose of this part) the physician's spirometric, 
radiographic and other findings, as well as the occupational history 
and respiratory assessment information obtained from a miner will not 
be disclosed in a manner that would permit identification of the 
individual with their information, and
    (iii) The spirometry and radiographic examinations will be made at 
no charge to the miner.
    (c) Operators may provide for alternate spirometry or radiography 
facilities in plans submitted for approval.
    (d) The change of operators of any mine operating under a plan 
approved pursuant to Sec.  37.101(a) shall not affect the plan of the 
operator which has transferred responsibility for the mine. Every plan 
shall be subject to revision in accordance with paragraph (e) of this 
section.
    (e) The operator must advise NIOSH of any change in its plan. Each 
change in an approved plan is subject to the same review and approval 
as the originally approved plan.
    (f) The operator must promptly display in a visible location on the 
bulletin board at the mine its proposed plan or proposed change in plan 
when it is submitted to NIOSH. The proposed plan or change in plan must 
remain posted in a visible location on the bulletin board until NIOSH 
either grants or denies approval of it at which time the approved plan 
or denial of approval must be permanently posted. In the case of an 
operator who does not have a bulletin board, such as an operator that 
is a contractor, the operator must otherwise notify its employees of 
the examination arrangements. Upon request, the contractor must show 
NIOSH written evidence that its employees have been notified.
    (g) Upon notification from NIOSH that sufficient time has elapsed 
since the previous period of examinations, the operator will resubmit 
its plan for each of its coal mines to NIOSH for approval for the next 
period of examinations (see Sec. Sec.  37.3(a)(2) and 37.92(a)). The 
plan must include the proposed beginning and ending dates of the next 
period of examinations and all information required by paragraph (b) of 
this section.


Sec.  37.101  Approval of plans.

    (a) If, after review of any plan submitted pursuant to this 
subpart, NIOSH determines that the action to be taken under the plan by 
the operator meets the specifications of this subpart and will 
effectively achieve its purpose, NIOSH will approve the plan and notify

[[Page 45124]]

the operator submitting the plan of the approval. Approval may be 
conditioned upon such terms as the Secretary deems necessary to carry 
out the purpose of Sec.  203 of the Act.
    (b) Where NIOSH has reason to believe that it will deny approval of 
a plan NIOSH will, prior to the denial, give notice in writing to the 
operator(s) of an opportunity to amend the plan. The notice must 
specify the ground(s) upon which approval is proposed to be denied.
    (c) If a plan is denied approval, NIOSH will advise the operator(s) 
in writing of the reasons for the denial.


Sec.  37.102  Transfer of affected miner to less dusty area.

    (a) Any miner who, in the judgment of NIOSH, has evidence of the 
development of pneumoconiosis, must be afforded the option of 
transferring from his or her position to another position in an area of 
the mine where the concentration of respirable dust in the mine 
atmosphere is in compliance with the MSHA requirements in Part 90 of 
title 30, Code of Federal Regulations. A classification of one or more 
of the miner's chest radiographs as showing category 1 (1/0, 1/1, 1/2), 
category 2 (2/1, 2/2, 2/3), or category 3 (3/2, 3/3, 3/+) simple 
pneumoconioses, or complicated pneumoconiosis (ILO Classification) will 
be accepted as such evidence. NIOSH will, at its discretion, also 
accept other medical examinations provided to NIOSH for review, such as 
computed tomography scans of the chest or lung biopsies, as evidence of 
the development of pneumoconiosis.
    (b) Any transfer under this section shall be in accordance with the 
procedures specified in 30 CFR part 90.


Sec.  37.103  Medical examination at miner's expense.

    Any miner who wishes to obtain a medical examination at the miner's 
own expense at an approved spirometry or radiography facility and to 
have the complete examination submitted to NIOSH may do so, provided 
that the examination is made no sooner than 6 months after the most 
recent examination of the miner submitted to NIOSH. NIOSH will provide 
interpretation and radiographic classification and reporting of the 
results of examinations made at the miner's expense in the same manner 
as if they were submitted under an operator's plan. Any change in the 
miner's transfer rights under the Act that may result from this 
examination will be subject to the terms of Sec.  37.102.

    Dated: July 30, 2014.
Sylvia M. Burwell,
Secretary.
[FR Doc. 2014-18336 Filed 8-1-14; 8:45 am]
BILLING CODE 4162-18-P