Federal Register ument Proposed Rule by alicejenny


									                            Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules                                         67681

        Stakeholders can locate and                           auditorium. The subject of the public                 DATES:The proposed rule published on
      download the TSD Chapter 8 as well as                   hearing is proposed regulations under                 August 29, 1989 (54 FR 35760) is
      the newly posted supplemental                           section 179 of the Internal Revenue                   withdrawn as of November 19, 2004.
      Appendix 8E on the Distribution                         Code. The public comment period for
                                                                                                                    FOR FURTHER INFORMATION CONTACT:
      Transformers ANOPR TSD page: http://                    these regulations expired on November
                                                                                                                    Marvin W. Nichols, Jr., Director, Office
      www.eere.energy.gov/buildings/                          2, 2004. Outlines of oral testimony was
                                                                                                                    of Standards, Regulations, and
      appliance_standards/commercial/                         due on November 9, 2004.
                                                                 The notice of proposed rulemaking                  Variances, MSHA, 1100 Wilson
      dist_trans_tsd_061404.html.                                                                                   Boulevard, Room 2313, Arlington,
                                                              and notice of public hearing, instructed
      FOR FURTHER INFORMATION CONTACT:   Sam                                                                        Virginia 22209–3939,
                                                              those interested in testifying at the
      Johnson, Project Manager, Energy                                                                              Nichols.Marvin@dol.gov, (202) 693–
                                                              public hearing to submit an outline of
      Conservation Standards for Distribution                                                                       9440 (telephone), or (202) 693–9441
                                                              the topics to be addressed. As of
      Transformers; Docket No. EE–RM/STD–                                                                           (facsimile). This document is available
                                                              Monday, November 15, 2004, no one
      00–550; U.S. Department of Energy,                                                                            in alternative formats, such as large
                                                              has requested to speak. Therefore, the
      Office of Building Technologies, EE–2J,                 public hearing scheduled for November                 print and electronic format, and can be
      1000 Independence Avenue, SW.,                          30, 2004, is cancelled.                               accessed on MSHA’s Internet site,
      Washington, DC 20585–0121; (202) 586–                                                                         http://www.msha.gov, at the ‘‘Statutory
      0854. E-mail: Sam.Johnson@ee.doe.gov.                   Cynthia E. Grigsby,                                   and Regulatory Information’’ link.
        Thomas B. DePriest, Esq.; U.S.                        Acting Chief, Publications and Regulations
                                                                                                                    SUPPLEMENTARY INFORMATION:
      Department of Energy, Office of General                 Branch, Legal Processing Division, Associate
      Counsel, GC–72, 1000 Independence                       Chief Counsel, (Procedure and                         A. Rulemaking Background
      Avenue, SW., Washington, DC 20585–                      Administration).
      0121; (202) 586–9507. E-mail:                           [FR Doc. 04–25650 Filed 11–18–04; 8:45 am]               On August 29, 1989, MSHA proposed
      Thomas.DePriest@hq.doe.gov.                             BILLING CODE 4830–01–P                                a rule, 54 FR 35760, that would have,
                                                                                                                    among other things, established
        Issued in Washington, DC on November 8,                                                                     permissible exposure limits (PELs) for
                                                              DEPARTMENT OF LABOR                                   substances that the Agency believed
      David K. Garman,                                                                                              might adversely affect the health of
      Assistant Secretary, Office of Energy                   Mine Safety and Health Administration                 miners; required control of exposure to
      Efficiency and Renewable Energy.                                                                              such substances; prescribed methods
      [FR Doc. 04–25609 Filed 11–18–04; 8:45 am]              30 CFR Parts 56, 57, 58, 70, 71, 72, 75               and frequency of monitoring to evaluate
      BILLING CODE 6450–01–P                                  and 90                                                exposure; and revised requirements for
                                                                                                                    respiratory protection programs for
                                                              RIN 1219–AA48
                                                                                                                    metal and nonmetal mines and
      DEPARTMENT OF THE TREASURY                              Air Quality, Chemical Substances, and                 established similar requirements for
                                                              Respiratory Protection Standards                      coal mines. 54 FR 35760, 35761 (August
      Internal Revenue Service                                                                                      29, 1989). Additionally, the proposed
                                                              AGENCY: Mine Safety and Health                        rule included provisions addressing
      26 CFR Part 1                                           Administration (MSHA), Labor.                         carcinogens, asbestos construction
      [REG–152549–03]                                         ACTION: Withdrawal of proposed rule.                  work, dangerous atmospheres, medical
                                                                                                                    surveillance, prohibited areas for food
      RIN 1545–BC69                                           SUMMARY: The Mine Safety and Health
                                                                                                                    and beverages, and abrasive blasting and
                                                              Administration (MSHA) is withdrawing
      Section 179 Elections; Hearing                                                                                drill dust control. Of the more than 600
                                                              the remaining phases of its 1989 ‘‘Air
      Cancellation                                                                                                  chemical substances for which MSHA
                                                              Quality, Chemical Substances, and
                                                                                                                    sought to establish PELs, 165 of those
                                                              Respiratory Protection’’ proposed rule,
      AGENCY:  Internal Revenue Service (IRS),                                                                      substances would have been regulated
                                                              and is providing further explanation of
                                                                                                    for the first time. Because of the scope
                                                              its September 26, 2002, Federal Register
      ACTION: Cancellation of notice of public 
              document regarding withdrawal of the                  and complexity of the Air Quality rule,
      hearing on proposed rulemaking. 
                       proposed rule. MSHA’s 2002 decision to                MSHA divided the rulemaking
                                                              withdraw the remaining phases of the                  provisions into three groups or
      SUMMARY: This document provides                                                                               ‘‘phases.’’ The Agency set separate
      notice of cancellation of public hearing                proposed rule was based on adverse
                                                              case law, a change in Agency priorities,              comment periods for each of the three
      relating to the election to expense the                                                                       groups and announced that it would
      cost of property subject to section 179.                and the staleness of the rulemaking
                                                              record. Although the September 26,                    hold three sets of public hearings, with
      DATES: The public hearing originally                                                                          each set addressing one group of the
                                                              2002, document was intended to
      scheduled for November 30, 2004, at 10                  withdraw the rule as of that date, the                proposed rule’s provisions.
      a.m., is cancelled.                                     U.S. Court of Appeals for the District of                The first group of provisions included
      FOR FURTHER INFORMATION CONTACT:                        Columbia Circuit found that the                       abrasive blasting and drill dust control;
      Robin R. Jones of the Publications and                  document provided inadequate                          dangerous atmospheres; exposure
      Regulations Branch, Legal Processing                    explanation of the Agency’s decision to               monitoring; prohibited areas for food
      Division at (202) 622–7180 (not a toll-                 terminate the rulemaking. The court                   and beverages; and PELs for nitrogen
      free number).                                           ordered MSHA to either proceed with                   dioxide, nitric oxide, carbon monoxide,
      SUPPLEMENTARY INFORMATION: A notice                     the Air Quality rulemaking or give a                  and sulfur dioxide. Two public hearings
      of proposed rulemaking and notice of                    reasoned account of its decision not to               were held for this group of provisions,
      public hearing that appeared in the                     do so. This document provides a                       the first on June 4, 1990, in Denver,
      Federal Register on Wednesday, August                   reasoned account of MSHA’s decision to                Colorado, and the second on June 7,
      4, 2004 (69 FR 47043), announced that                   terminate the rulemaking and to                       1990, in Coraopolis, Pennsylvania. The
      a public hearing was scheduled for                      withdraw the remaining phases of the                  comment period for this group of
      November 30, 2004, at 10 a.m., in the                   Air Quality rule.                                     provisions closed on March 2, 1990.

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      67682                 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules

         The second group of provisions                       Int’l Union, UMWA v. MSHA, 358 F.3d                   shall be based upon research,
      included carcinogens; asbestos                          40 (D.C. Cir. 2004). The Court remanded               demonstrations, experiments, and such other
      construction work; means of controlling                 the matter to MSHA and ordered that                   information as may be appropriate. In
                                                                                                                    addition to the attainment of the highest
      exposure to hazardous substances;                       the Agency ‘‘either proceed with the Air              degree of health and safety protection for the
      respiratory protection; and medical                     Quality rulemaking or give a reasoned                 miner, other considerations shall be the latest
      surveillance. Two public hearings were                  account of its decision not to do so.’’ Id.           available scientific data in the field, the
      held on this group of provisions, the                   at 45. This notice provides further                   feasibility of the standards, and experience
      first on October 12, 1990, in                           explanation of the Agency’s 2002                      gained under this and other health and safety
      Washington, DC and the second on                        decision to withdraw the proposed rule.               laws. Whenever practicable, the mandatory
      October 19, 1990, in San Francisco,                     The notice also withdraws the                         health or safety standard promulgated shall
      California. The comment period for the                                                                        be expressed in terms of objective criteria
                                                              remaining phases of the Air Quality
                                                                                                                    and of the performance desired.
      second group of provisions closed on                    proposed rule and provides MSHA’s
      June 29, 1990.                                          continuing rationale for doing so.                      Accordingly, the Mine Act imposes a
         The third and final group of                            This notice discusses the reasons for              threshold that the Agency must satisfy
      provisions included all permissible                     withdrawal of the proposed rule in                    in promulgating mandatory health
      exposure limits other than nitrogen                     relation to two distinct periods of time.             standards. Specifically, MSHA must
      dioxide, nitric oxide, carbon monoxide,                 Section B of this notice, ‘‘Reasons for               ensure that it establishes standards
      and sulfur dioxide. Two public hearings                 the 2002 Decision to Withdraw the                     based on the best available evidence,
      were held on these PELs, the first on                   Proposed Rule,’’ discusses the reasons                including a consideration of the latest
      March 19, 1991, in Denver, Colorado,                    underlying MSHA’s September 2002                      available scientific data; it must ensure
      and the second on March 26–27, 1991,                    decision to withdraw the Air Quality                  that a significant risk of ‘‘material
      in Washington, DC. The comment                          proposed rule. Section C of this notice,              impairment’’ of health or functional
      period for this group of provisions                     ‘‘Continuing Reasons for the                          capacity will ensue if it fails to act (i.e.,
      closed on December 14, 1990. Following                  Withdrawal of the Proposed Rule,’’                    the existing exposure limit poses a
      the public hearings, the rulemaking                     discusses the reasons that continue to                significant risk of material impairment
      record remained open until August 30,                   support MSHA’s decision to withdraw                   or functional capacity); and it must
      1991, to permit interested persons to                   the proposed rule. The reasons set forth              ensure that the standard is both
      submit additional statements, data, and                 in Section C relate to the period of time             economically and technologically
      information on any provision of the                     following publication of the September                feasible. 30 U.S.C. 811(a)(6)(A).
      proposed rule.                                          2002 notice.                                          2. Effect of the Eleventh Circuit’s
         In 1994, MSHA adopted one
                                                              B. Reasons for the 2002 Decision To                   Decision Vacating OSHA’s Air
      provision of the proposed rule as a final
                                                              Withdraw the Proposed Rule                            Contaminants Standard
      rule. ‘‘Air Quality: Health Standards for
      Abrasive Blasting and Drill Dust                           MSHA’s decision to withdraw the                       In AFL–CIO, the U.S. Court of Appeals
      Control,’’ 59 FR 8318 (February 18,                     remaining phases of its Air Quality                   for the Eleventh Circuit vacated the
      1994). For the reasons set forth in this                                                                      Occupational Safety and Health
                                                              rulemaking in September 2002 was
      document, the amount of additional                                                                            Administration’s (OSHA’s) final
                                                              premised on three reasons:
      work performed on the remainder of the                     • The adverse effect of AFL–CIO et al.             omnibus Air Contaminants standard, 54
      proposed rule between 1994 and 2002                                                                           FR 2332 (January 19, 1989), in which
                                                              v. OSHA, 965 F.2d 962 (11th Cir. 1992),
      was somewhat limited.                                      • Changes in the Agency’s priorities,              OSHA sought to establish PELs for 428
         In September 2002, MSHA decided to                   and                                                   toxic substances. Although AFL–CIO
      withdraw the remainder of its Air                          • The staleness of the rulemaking                  was decided under the Occupational
      Quality proposed rule from the                          record.                                               Safety and Health Act of 1970 (OSH
      Regulatory Agenda. 67 FR 60611                             Though the foregoing reasons                       Act), 29 U.S.C. 651 et seq., a statute with
      (September 26, 2002). By way of                         represent the specific grounds upon                   rulemaking provisions that differ in
      explanation, the Agency said that its                   which the decision was made, the limits               some ways from those of the Mine Act,
      decision to withdraw the proposed rule                  of the Agency’s resources were an                     the major holding of the Eleventh
      ‘‘was the result of changes in Agency                   inherent element of those reasons and                 Circuit’s decision appears on its face to
      priorities and the possible adverse effect              necessarily contributed to MSHA’s                     apply to both OSHA and MSHA: that
      * * * of the decision in AFL–CIO et al.                 decision.                                             the Agency must make specific findings
      v. OSHA,’’ 965 F.2d 962 (11th Cir.                                                                            for each substance and each proposed
      1992), in which the U.S. Court of                       1. MSHA’s Statutory Responsibility                    PEL. The similarities between the Air
      Appeals for the Eleventh Circuit                           The Federal Mine Safety and Health                 Quality and Air Contaminants
      invalidated an OSHA rule that set new                   Act of 1977 (Mine Act), 30 U.S.C. 801                 standards, and the Agencies’ statutory
      PELs for 428 toxic substances. MSHA                     et seq., sets forth MSHA’s statutory                  provisions, each weighed heavily in
      also noted that it had been ‘‘more than                 responsibility when promulgating                      favor of MSHA assuming a regulatory
      13 years since the proposal was                         mandatory standards dealing with toxic                approach that was consistent with the
      published and more than 12 years since                  materials or harmful physical agents.                 holding of AFL–CIO.
      the comments were received.’’ 67 FR at                  Section 101(a)(6)(A) of the Mine Act, 30                 Like OSHA’s Air Contaminants
      60611.                                                  U.S.C. 811(a)(6)(A), states that the                  standard, MSHA’s Air Quality proposed
         The United Mine Workers of America                   Secretary of Labor:                                   rule was intended to be a ‘‘generic
      (UMWA) petitioned the U.S. Court of                                                                           rulemaking’’ in which the Agency
      Appeals for the District of Columbia                    shall set standards which most adequately             would set exposure limits for hundreds
                                                              assure on the basis of the best available
      Circuit for review of the Agency’s                                                                            of substances in a single rulemaking.
                                                              evidence that no miner will suffer material
      decision to withdraw its proposed Air                   impairment of health or functional capacity
                                                                                                                    Unlike the OSHA Air Contaminants
      Quality rule. The Court concluded that                  even if such miner has regular exposure to            standard, however, MSHA’s Air Quality
      the Agency’s action was arbitrary and                   the hazards dealt with by such standard for           rule included proposed standards on
      capricious because it failed to provide                 the period of his working life. Development           eight substantive components in
      an adequate explanation for its decision.               of mandatory standards under this subsection          addition to the hundreds of proposed

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                            Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules                                            67683

      PELs. The eight additional components                   the principal means of protection—                    Contaminants rule in that it did not
      that the Air Quality proposed rule                      removal of the contaminant.                           demonstrate the existence of common
      addressed were: (1) Revision of existing                   MSHA’s Air Quality proposed rule                   characteristics between, or impose
      standards on means of control of                        included some 200 (approximately                      common requirements on, the hundreds
      harmful airborne substances in mines;                   50%) more PELs than did OSHA’s Air                    of substances listed in the PEL table.
      (2) control of dust generated by abrasive               Contaminants standard, as well as the                 Under the AFL–CIO holding, MSHA’s
      blasting and drilling; (3) exposure                     eight substantive components listed                   Air Quality rule could be categorized by
      monitoring by mine operators; (4)                       above, which OSHA’s standard did not                  a reviewing court as nothing more than
      hazards posed by dangerous                              include. Accordingly, the scope and                   an amalgamation of 600+ unrelated
      atmospheres, including areas                            complexity of the Air Quality proposal                substance exposure limits.
      underground, silos, vats, tanks, and                    was significantly more comprehensive                     AFL–CIO also held that the OSH Act
      other confined spaces; (5) carcinogens;                 and ambitious than was OSHA’s already                 does not permit OSHA to regulate any
      (6) asbestos construction work at mines;                groundbreaking approach to addressing                 risk that it chooses. Id. at 973. Rather,
      (7) medical surveillance of miners                      potential chemical hazards that may be                the Agency may only regulate those
      exposed to carcinogens; and (8) a                       found or introduced in the workplace.                 risks that present a ‘‘significant’’ risk of
      respiratory protection program.                            As discussed in more detail in this                material health impairment. Ibid. Thus,
         Although OSHA also has standards                     section, the AFL–CIO holdings                         the court held that for each substance
      addressing many of the above                            effectively gave MSHA two choices:                    OSHA seeks to regulate, the Agency
      components, it did not attempt to                       either ignore the decision and accept the             must present individual findings that ‘‘a
      promulgate those standards as part of its               likely risk that a final rule would be                significant risk of material health
      Air Contaminants rule. 29 CFR 1910.94                   vacated, or try to comply with AFL–CIO                impairment exists at the current levels
      (abrasive blasting); 29 CFR 1910.134                    and tie up all of the Agency’s resources              of exposure to the toxic substance in
      (respiratory protection); 29 CFR                        for years to come. Neither of these                   question,’’ id., and that the proposed
      1910.146 (confined space); 29 CFR                       options was suitable to MSHA, so the                  PEL would ‘‘prevent material
      1926.1101 (asbestos construction work);                 Agency decided to withdraw the                        impairment of health.’’ Ibid. Finally, the
      and 29 CFR part 1990 (carcinogens                       proposed rule, a reasonable course of                 Eleventh Circuit held that ‘‘OSHA has a
      policy). OSHA specifically noted in the                 action in light of the case.1                         responsibility to quantify or explain, at
      preamble to its final Air Contaminants                     The AFL–CIO court held that ‘‘the PEL              least to some reasonable degree, the risk
      rule that:                                              for each substance must be able to stand              posed by each toxic substance
                                                              independently, i.e., that each PEL must               regulated.’’ Id. at 975 (emphasis in
         The final regulation is limited to
                                                              be supported by substantial evidence in               original). Although the preamble to
      consideration of revising the PELs.
                                                              the record considered as a whole and                  OSHA’s Air Contaminants rule
      There is no consideration of the
                                                              accompanied by adequate explanation.’’                individually discussed each of the 428
      ancillary requirements which are
                                                              965 F.2d at 972. The court continued by               toxic substances for which PELs were
      typically developed as part of
                                                              stating that ‘‘OSHA may not, by using                 established, the court ultimately found
      individual substance rulemaking but                                                                           that those discussions, and mere
      were not included in the original                       such multi-substance rulemaking,
                                                              ignore the requirements of the OSH                    conclusory statements regarding risk
      § 1910.1000 standard. OSHA has                                                                                reduction, fell short of the statutorily
      published ANPRs for Exposure                            Act.’’ Ibid. Though generic rulemaking
                                                              is permissible, the court noted that                  required risk assessment that the
      Monitoring (53 FR 32591–32595), and                                                                           Agency was required to perform. Id. at
      Medical Surveillance (53 FR 32595–                      generic rulemakings are required to
                                                              demonstrate the existence of something                975–976.
      32598), and is developing a proposal                                                                             The holding of AFL–CIO presented
      covering revision to the respirator                     ‘‘common to or characteristic of a whole
                                                              group or class.’’ Id. at 971 (quoting                 MSHA with challenges it had not
      provisions of the OSHA Standards.                                                                             contemplated at the time the Agency
      OSHA has issued a final rule expanding                  Webster’s Third New International
                                                              Dictionary 945 (1966)). The court was                 proposed the Air Quality rule. Of the
      the Hazard Communication Standard.                                                                            more than 600 substances for which
                                                              not persuaded that OSHA’s Air
         While medical surveillance, exposure                                                                       MSHA sought to establish PELs, it
                                                              Contaminants standard represented
      monitoring and other industrial hygiene                                                                       individually discussed only about two
                                                              generic rulemaking because the rule did
      practices are important, OSHA is not in                                                                       dozen. See 54 FR 35760, 35767–35770
                                                              not address substances with common
      a position to develop these requirements                                                                      (August 29, 1989). Of the two dozen or
                                                              characteristics or impose common
      while at the same time developing PELs                                                                        so substances that were discussed
                                                              requirements on classes of substances.
      for several hundred substances. OSHA                                                                          individually, the Agency did not
                                                              Instead, the court deemed the standard
      has determined that lowering exposures                                                                        present evidence that it believed the
                                                              to be nothing more than ‘‘an
      through the development of reduced                                                                            substances might pose a significant risk
                                                              amalgamation of 428 unrelated
      PELs is of higher priority because it is                                                                      of material impairment of health or
                                                              substance exposure limits.’’ Id. at 972.
      more effective in reducing occupational                                                                       functional capacity, findings it would be
                                                                 MSHA’s Air Quality proposed rule
      diseases and material impairment of                                                                           required to make in order to finalize the
                                                              was comparable to OSHA’s Air
      health. These ancillary requirements                                                                          rule. At the time the Air Quality rule
      will be addressed as priorities dictate.                  1 MSHA notes that even absent the holdings of       was proposed, MSHA had not
      54 FR at 2335. MSHA has similarly                       AFL–CIO, promulgation of a final Air Quality rule     determined that each of the substances
      recognized a hierarchy of controls in                   would have been extremely costly in terms of          in the proposed rule was found on mine
      promulgating its rules such that miners’                available resources. At the time that the Agency      property, much less that those
                                                              proposed the rule and for some time thereafter,
      exposure to harmful airborne                            MSHA believed those costs to be manageable. In
                                                                                                                    substances were found at levels
      contaminants is controlled principally                  retrospect, MSHA realizes that it did not fully       sufficient to cause significant risk to
      by removal or dilution of the                           appreciate the resources needed to promulgate a       miners. In this regard, the Air Quality
      contaminant, with such ancillary                        rule as comprehensive and complex as the Air          preamble stated that ‘‘[s]ome
                                                              Quality rule. The demanding requirements imposed
      protections as personal protective                      by the holdings of AFL–CIO, however,
                                                                                                                    commenters objected and favored listing
      equipment, industrial hygiene practices                 exponentially increased the demand on its             only substances found on mining
      and medical transfer used to augment                    resources.                                            property and which present a risk of a

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      67684                 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules

      material impairment of health or                        authorizes the Agency to regulate those               independent evaluation of whether each
      functional capacity. This proposed rule                 risks which present a risk of material                TLV would be an appropriate PEL.
      includes those substances which the                     impairment of health or functional                    MSHA could not have adopted the
      Agency has reason to believe, based                     capacity. Because MSHA could not have                 ACGIH’s TLVs wholesale without an
      upon the Agency’s knowledge thus far,                   reasonably promulgated a final rule                   independent assessment of the evidence
      could pose this type of health risk if                  which made a determination that each                  supporting a PEL consistent with each
      found on mine property.’’ Id. at 35765                  substance the Agency sought to regulate               TLV. This is particularly true because
      (emphases added). The preamble further                  presented a significant risk of material              TLVs are established based exclusively
      stated that although ‘‘the majority of                  impairment of health or functional                    on health considerations. ACGIH’s
      substances in the ‘TLV Booklet’ 2 do                   capacity at the existing PEL, the PELs                establishment of any given TLV does
      not naturally occur in mining, they may                 would not have been able to ‘‘stand                   not account for such considerations as
      be brought on mine property in the                      independently,’’ as was required by                   economic or technological feasibility,
      course of day-to-day operations. For this               AFL–CIO. In other words, if MSHA had                  both of which MSHA is statutorily
      reason, MSHA is proposing to include                    engaged in separate rulemakings for                   required to consider in establishing its
      most of the TLV list in a table of                     each of the 600+ substances, it would                 exposure standards. Therefore, an
      permissible exposure limits.’’ Id. at                   have been obligated to, among other                   independent assessment of each of the
      35766 (emphasis added.)                                 things, estimate or quantify the risk                 600-odd substances would have to be
         In fact, MSHA summarized                             posed by exposure to the substance at                 made regardless of the TLV
      commenters’ general dissatisfaction                     the existing PEL and explain why such                 recommendations made by AGGIH. The
      with the sufficiency of the evidence the                exposure presented a significant risk of              AFL–CIO court specifically addressed
      Agency provided in proposing the rule                   material impairment to health or                      this issue and found that although
      by stating:                                             functional capacity. Under the logic of               OSHA could rely on the ACGIH’s
         Commenters generally criticized the                  AFL–CIO, MSHA is required to make the                 recommendations, the Agency was not
      Agency for limiting its discussion of                   same findings and explanations in its                 relieved of its responsibility to make
      specific substances on the PEL table to                 omnibus rulemakings. A persuasive                     ‘‘detailed findings, with adequate
      less than two dozen of the several                      argument could be made that like                      explanations, for all statutory criteria.’’
      hundred substances listed. They                         OSHA, MSHA ‘‘is not entitled to take                  965 F.2d at 984. Ultimately, MSHA
      requested that MSHA give a rationale                    short-cuts with statutory requirements                bears the burden of proving that it has
      for each substance in the proposed rule,                simply because it chose to combine                    met its statutory obligation, and as such,
      evidence that all are present in the                    multiple substances in a single                       it must be prepared to set forth the
      mining environment, and how these                       rulemaking.’’ 965 F.2d at 975.                        analysis used in its determination that
      chemicals are used. For those                              Under AFL–CIO, MSHA could not                      a given PEL is based on the best
      substances for which the Agency                         have finalized the Air Quality rule in                available and latest scientific evidence,
      proposed to lower the PEL, commenters                   the form in which it was proposed                     id., and that the chosen PEL is
      generally wanted MSHA to: Prove that                    without an unanticipated and enormous                 economically and technologically
      the present PEL presents a significant                  expenditure of Agency resources.                      feasible.
      risk to miners; quantify the extent of the              Providing a quantitative risk assessment
                                                              for each of the more than 600 substances                 In 2002, when MSHA made the
      risk; prove that risk represents a                                                                            decision to withdraw the Air Quality
      ‘‘material impairment of health;’’ and                  would have been a lengthy, complex,
                                                              and costly process requiring MSHA to                  proposed rule, it recognized that the
      prove that any change in the standard is                                                                      unfavorable holding of AFL–CIO did not
      economically and technologically                        conduct a significant amount of
                                                              additional scientific work. In fact,                  compel the Agency to withdraw the
      capable of being achieved.                                                                                    rule. Nonetheless, AFL–CIO left MSHA
         These commenters also requested that                 MSHA’s completion of rulemaking on
                                                              even one substance would have                         with two equally unappealing
      MSHA discuss epidemiological data
                                                              required a significant commitment of                  alternatives: ignore the decision and risk
      establishing that these substances are
                                                              Agency resources. The Agency’s failure                that a final rule would be vacated, or
      present in concentrations that cause a
                                                              to promulgate the Air Quality rule in                 comply with the holdings of the
      material impairment of health or
                                                              accordance with AFL–CIO, however,                     decision and encumber the Agency’s
      functional capacity to miners. They also
                                                              would have left MSHA vulnerable to a                  resources for the foreseeable future.
      requested MSHA to provide evidence on
                                                              potentially formidable legal challenge to             MSHA recognized that had it ignored
      the feasibility of controlling these
                                                              the rule.                                             the AFL–CIO court decision, a circuit
      substances with either engineering or
                                                                 The UMWA suggested in Int’l Union,                 other than the Eleventh Circuit may
      administrative controls. 56 FR 8168,
                                                              UMWA that the availability of                         have been disinclined to follow the
      8169 (February 27, 1991).
                                                              information recommending exposure                     holding in that case. Nevertheless,
         Like OSHA, MSHA is not statutorily
                                                              limits—namely Threshold Limit Values                  MSHA also knew that it could have
      authorized to regulate any risk it
      chooses; rather, section 101(a)(6)(A) of                (TLVs—adopted by the American                        been, and likely would have been,
                                                              Conference of Governmental Industrial                 challenged in the U.S. Court of Appeals
      the Mine Act, 30 U.S.C. 811(a)(6)(A),
                                                              Hygienists (ACGIH might enable                       for the Eleventh Circuit, and that
         2 TLV is the acronym for Threshold Limit Value.     MSHA to complete the Air Quality                      litigation in that circuit would very
      Threshold Limit Values are exposure guidelines          rulemaking despite the AFL–CIO                        likely have proven fatal to the Air
      recommended by the American Conference of               decision. In fact, the availability of                Quality rule unless MSHA made
      Governmental Industrial Hygienists (ACGIH). The        information related to ACGIH’s TLVs                   substance-specific assessments for each
      ACGIH’s Web site, http://www.acgih.org/TLV,
      describes Threshold Limit Values as being
                                                              would not necessarily have made the                   of the 600+ PELs. There are numerous
      ‘‘designed for use by industrial hygienists in          task of promulgating the Air Quality                  mine operators in the Eleventh Circuit
      making decisions regarding safe levels of exposure      standard much less complex or arduous.                and MSHA has had to defend its actions
      to various chemical substances and physical agents      While current TLVs would provide                      in that circuit on previous occasions.
      found in the workplace.’’ MSHA’s existing air
      quality standards incorporate by reference the
                                                              MSHA with a basis for assessing                       See Nat’l Mining Ass’n, Alabama Coal
      ACGIH’s 1972 (coal) and 1973 (metal and nonmetal)       potential PELs, the Agency would still                Ass’n v. U.S. Department of Labor, 153
      Threshold Limit Values.                                 have been required to make an                         F.3d 1264 (11th Cir. 1998). Even if

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                            Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules                                         67685

      MSHA was not challenged in the                          OSHA’s Air Contaminants rule than it                  ‘‘In the event the Secretary determines
      Eleventh Circuit, the Agency could have                 does the EPA rulemaking adding                        that a proposed mandatory health or
      been challenged in a circuit that would                 chemicals to the TRI list. The                        safety standard should not be
      have been persuaded by the reasoning                    requirements imposed on owners of                     promulgated,’’ she must ‘‘publish h[er]
      in AFL–CIO. Thus, while AFL–CIO did                     facilities covered by section 11023 of                reasons for h[er] determination.’’ 30
      not compel the Agency to terminate the                  EPCRA are more akin to the                            U.S.C. 811(a)(4)(C). Int’l Union, UMWA,
      Air Quality rulemaking, it compelled                    requirements imposed on mine                          358 F.3d at 43.
      MSHA to take into account the AFL–CIO                   operators and employers by MSHA’s                        MSHA sets and changes its
      holding and to make a decision about                    and OSHA’s Hazard Communication                       rulemaking priorities based, in part, on
      the fate of the rulemaking accordingly.                 standards than the proposed Air Quality               the resources available to it. Based on
      MSHA’s decision to withdraw the Air                     standards. In that regard, the relevant               the reasoning of the 1992 AFL–CIO
      Quality proposed rule simply                            EPCRA section requires dissemination                  decision, the Agency ultimately
      acknowledged that after the Eleventh                    of information only, not compliance                   concluded that promulgation of even a
      Circuit’s decision, it would be difficult               with substantive exposure limits. The                 significant portion of the Air Quality
      and expensive to finalize and defend                    Air Quality proposed rule, unlike the                 standard would have consumed all of
      broad omnibus health rulemakings                        TRI list and MSHA’s Hazard                            the Agency’s rulemaking resources.
      covering multiple substances. The                       Communication rule, included                          Prior to the demanding requirements
      Agency’s decision also reflected its                    provisions requiring use of engineering               imposed by the AFL–CIO decision,
      belief that the inordinate resources that               and administrative controls to limit                  MSHA believed that the resources
      would have been required to craft a                     exposure to the substance, exposure                   necessary to promulgate the Air Quality
      judicially sustainable final rule would                 monitoring, medical surveillance and                  rule were manageable. However, the
      not have been a prudent use of Agency                   transfer, and the use of personal                     resources required to complete the
      resources.                                              protective equipment. Promulgation of                 standard in a manner that would
         In Int’l Union, UMWA, the UMWA                       comprehensive health rules, such as the               withstand judicial scrutiny following
      mentioned that another federal agency                   Air Quality rule, requires a degree of                AFL–CIO were unanticipated at the time
      had successfully promulgated a rule                     scientific evidence and feasibility                   that the rule was proposed.
      updating a list of toxic chemicals in a                 analysis that is not generally associated                Even a phased approach to
      single rulemaking, implying that MSHA                   with notification or informational                    promulgating the more than 600 PELs,
      should be encouraged despite the                        standards. For this reason, the TRI list              and the seven substantive components
      holdings of AFL–CIO. In Troy                            addressed in Troy and MSHA’s Air                      of the rule that remained following
      Corporation v. Browner, 120 F.3d 277                    Quality rule are not substantively                    promulgation of the abrasive blasting
      (D.C. Cir. 1997), the U.S. Court of                     similar enough to make Troy the most                  and drill dust control rule, would have
      Appeals for the District of Columbia                    appropriate case for comparison. Given                exhausted MSHA’s rulemaking
      Circuit upheld an Environmental                         the foregoing, MSHA believes that the                 resources. This would have required
      Protection Agency (EPA) rule adding                     grounds for comparing its Air Quality                 MSHA to ignore or neglect many of its
      286 chemicals to its Toxic Release                      rulemaking to the EPA rulemaking at                   other regulatory responsibilities for the
      Inventory (TRI) pursuant to the                         issue in Troy are unsound. MSHA’s                     foreseeable future. In retrospect, MSHA
      Emergency Planning and Community                        rulemaking provisions and the content                 realized that even a phased approach to
      Right-To-Know Act of 1986 (EPCRA), 42                   of its Air Quality proposed rule more                 promulgating the Air Quality rule
      U.S.C. 11001 et seq. MSHA believes that                 closely resemble those of the OSH Act                 would have overwhelmed the Agency,
      Troy is distinguishable on at least two                 and the Air Contaminants rulemaking,                  particularly in light of its other
      significant bases, thus making it less                  thereby making AFL–CIO a more                         rulemaking objectives. MSHA initially
      pertinent to MSHA’s Air Quality                         germane case than Troy.                               grouped the rulemaking provisions
      rulemaking than AFL–CIO. First, and                                                                           simply to facilitate more orderly and
      most importantly, the rulemaking                        3. Changes in Agency Priorities                       organized public comment, and to more
      provisions of the Mine Act more closely                    Given the additional burden of                     easily focus the discussions at the
      resemble those of the OSH Act than                      following the Eleventh Circuit’s                      public hearings. The fact that MSHA
      those of the EPCRA. The statutory                       requirements to finalize the Air Quality              divided the rulemaking provisions into
      threshold that EPA must satisfy in order                rule, MSHA believed that promulgating                 three distinct groups should not have
      to include a chemical on the TRI list is                the rule would detrimentally affect its               suggested that the Agency could more
      much lower than MSHA’s and OSHA’s                       other ongoing rulemakings.                            easily promulgate judicially sustainable
      statutory threshold for establishing PELs               Consequently, the Agency reassessed its               components of the rule than it could
      for toxic materials and harmful physical                rulemaking priorities, and ultimately                 promulgate a judicially sustainable rule
      agents. The Troy court held that EPCRA                  decided to withdraw the Air Quality                   at once in its entirety. Whether MSHA
      does not obligate the EPA to                            proposed rule. The Mine Act provides                  promulgated the rule as divided, or in
      demonstrate any ‘‘likelihood of contact                 the Secretary of Labor broad discretion               its entirety, AFL–CIO demanded that
      between humans and the chemical.’’                      to set and change rulemaking priorities               MSHA make the same scientifically
      120 F.3d at 285–286. Conversely,                        as she deems appropriate. Specifically,               difficult and exacting findings.
      MSHA’s and OSHA’s rulemaking                            section 101(a) of the Mine Act provides                  For several years following AFL–CIO
      provisions require the agencies to                      the Secretary the discretion to ‘‘develop,            and the 1994 promulgation of the
      demonstrate, among other things, that                   promulgate, and revise as may be                      abrasive blasting and drill dust control
      the agent or contaminant at issue poses                 appropriate improved mandatory health                 rule, MSHA continued to work on
      a significant risk of ‘‘material                        or safety standards for the protection of             various provisions of the Air Quality
      impairment of health or functional                      life and prevention of injuries in coal or            rule. MSHA anticipated publishing new
      capacity,’’ an exceedingly more                         other mines.’’ 30 U.S.C. 811(a).                      proposed rules for several of the
      demanding threshold than that of the                    Likewise, the Mine Act provides the                   provisions contained in the Air Quality
      EPCRA.                                                  Secretary with the authority to                       rule, such as those addressing
         Second, the substance of the Air                     ‘‘promulgate, modify, or revoke’’ a                   carcinogens and respiratory protection.
      Quality rule more closely resembles                     proposed rule. 30 U.S.C. 811(a)(4)(A).                The Agency performed work

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      accordingly. Ultimately, however,                       agendas promoted the notion that                      with a federal agency-wide initiative
      because of the changes in MSHA’s                        MSHA could advance scores of                          intended to maintain sound regulatory
      priorities, the Agency was not able to                  complicated rulemakings concurrently.                 practice. Memorandum from Andrew H.
      develop drafts for either component. By                 This, however, was never the case and                 Card, Jr., Assistant to the President and
      2002, the Agency realized the enormity                  is not the case now. For example,                     Chief of Staff, to Heads and Acting
      and breadth of the rule, and the                        MSHA health standards were, and still                 Heads of Executive Departments and
      resources that it would have had to                     are, developed by ‘‘committees’’ of                   Agencies, January 20, 2001 (66 FR 7702
      devote to finalize any one provision. For               employees consisting of scientists,                   (January 24, 2001)). The concurring
      example, the abrasive blasting and drill                economists, industrial hygienists,                    opinion in Int’l Union v. Chao, 361 F.3d
      dust control provision of the rule was                  technical support staff, enforcement/                 249 (3d Cir. 2004), candidly addressed
      only one of eight contained in the first                field personnel with expertise in the                 this phenomenon by noting that ‘‘there
      group of provisions, and it took nearly                 given area, regulatory specialist, and                is nothing obscure, and nothing suspect
      five years to complete. As compared to                  lawyers. Safety standards were (and still             about regulatory policy changes
      the other provisions, promulgation of                   are) developed similarly, requiring                   coincident with changes in
      the abrasive blasting and drill dust                    many of the same people who worked                    administration.’’ Id. at 256. As the
      control standard was less complicated                   on health standards. Thus, the number                 concurring opinion observed, each
      than many of the other provisions                       of MSHA employees who were, and are,                  administration embraces its own
      would have been. Because the Agency                     available to work on a rulemaking                     priority-setting process and regulatory
      determined that even a phased approach                  project at any given time is limited.                 philosophy such that items considered
      to promulgating the remainder of the                    Because there were limited numbers of                 priority by one administration may not
      Air Quality rule was infeasible, it                     these personnel, an Air Quality                       be so by another administration. Id.
      decided to withdraw the rule and                        rulemaking could not have been                        Though MSHA has only withdrawn one
      pursue other, more narrowly focused                     developed without transferring                        other proposed rule from its regulatory
      and achievable priorities.                              personnel from other rulemakings that                 agenda, Requirements for Approval of
         The Regulatory Flexibility Act, 5                    the Secretary had determined were                     Flame-Resistant Conveyor Belts, 67 FR
      U.S.C. 601–612, and Executive Order                     priorities. At the very least, economists,            46431 (July 15, 2002), the Agency
      12866, 58 FR 51735 (September 30,                       regulatory specialists, and lawyers                   routinely removes pre-proposal
      1993), require semiannual publication                   would have been required to transfer                  rulemakings from the Agenda. See, e.g.,
      in the Federal Register of an agenda of                 from other projects, and some field                   Bloodborne Pathogens, Department of
      regulations. The Regulatory Flexibility                 personnel would have been required to                 Labor Unified Agenda, 60 FR 23567
      Act requires the Department of Labor to                 put aside their enforcement duties while              (May 8, 1995); Roof Bolting Machines,
      publish a regulatory agenda in October                  assisting with rulemaking. Despite the                Department of Labor Unified Agenda, 65
      and April of each year, listing all of the              fact that Agency resources were directed              FR 23056 (April 24, 2000).
      regulations that the Department expects                 to other, higher priority rulemaking                     In the 13 years between proposal of
      to propose or promulgate that are likely                projects, previous Administrations                    the Air Quality rule in August 1989 and
      to have a ‘‘significant economic impact                 continued to list the Air Quality rule on             the September 2002 withdrawal notice,
      on a substantial number of small                        the Department’s regulatory agenda as                 MSHA promulgated approximately 50
      entities.’’ 5 U.S.C. 602. In addition to a              an ongoing rulemaking.                                final rules. The rules were of varying
      summary of the nature of such                                                                                 complexity. Though the majority of
      regulations, the Regulatory Flexibility                    As stated above, the extensive                     these rules were safety standards,
      Act also requires the Department to                     regulatory agendas of the past were not               several of the standards MSHA
      include the objectives and the legal                    only unrealistic, but fueled                          promulgated during that period either
      basis for the issuance of the rule, and an              misconceptions about the ability of the               directly or indirectly addressed some of
      approximate schedule for completing                     Department’s agencies to                              the health hazards which the Air
      action on the rule. Id. Executive Order                 simultaneously develop or further vast                Quality rule sought to prevent. In any
      12866 supplements the above                             numbers of concurrent rulemakings.                    event, the rules listed below consumed
      obligations and, in substance, requires                 Recognizing that this established                     much of the Agency’s rulemaking
      agencies to publish an agenda listing all               practice was outdated and that it                     resources and constituted the Agency’s
      the regulations it expects to have under                undermined the basic function of the                  highest rulemaking priorities as
      active consideration for promulgation,                  Agenda, the Secretary introduced a new                determined by the Secretary for the
      proposal, or review during the coming                   approach to the regulatory agenda,                    period in question.
      1-year period. Executive Order 12866                    limiting it to ‘‘only those rules for which              In 1994, MSHA promulgated the
      also requires each agency, as part of the               [agencies] could complete the next step               abrasive blasting and drill dust control
      regulatory agenda, to prepare a                         in the regulatory process within a 12­                provisions of the proposed Air Quality
      regulatory plan of the most important                   month period.’’ BNA Daily Labor Report                rule. 59 FR 8318 (February 18, 1994).
      ‘‘significant’’ regulatory actions that the             April 22, 2002 (quoting Deputy                        These standards remain effective in
      agency reasonably expects to issue in                   Secretary of Labor Cameron Findlay).                  spite of the withdrawal of the remaining
      proposed or final form in that fiscal year              Consequently, a number of regulations                 phases of the proposed Air Quality rule.
      or thereafter. In essence, the regulatory               were removed from the Department’s                    The abrasive blasting and drill dust
      plan sets forth an agency’s highest                     Agenda. In the fall of 2000, for example,             control standards are applicable to all
      priority regulatory actions. The Air                    the Department’s regulatory agenda                    metal, nonmetal, and coal mines. 30
      Quality rule has not been included on                   contained some 145 rulemaking                         CFR 58.610, 58.620, 72.610, 72.620,
      MSHA’s regulatory plan since 1994 and                   projects. By comparison, the fall 2003                72.630.
      was not a priority in recent years.                     Agenda contained 79 rules, and the                       In 1996, MSHA issued final ‘‘Safety
         The regulatory agendas of previous                   spring 2004 Agenda contained 81                       Standards for Underground Coal Mine
      Administrations were seldom limited to                  rulemakings. The Secretary’s review and               Ventilation.’’ 48 FR 9764 (March 11,
      only those agenda items that the Agency                 reprioritization of each agency’s Agenda              1996). As noted in the preamble to the
      could realistically complete within a                   items was not an occurrence unique to                 ventilation standard, ‘‘the primary
      reasonable time. These voluminous                       the Department; rather, it was consistent             function of a mine ventilation system is

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                            Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules                                           67687

      twofold, to remove hazardous gases                      were not exposed to levels of CO and                  hazards of diesel particulate matter
      such as methane, and to provide miners                  NO2 that would have exceeded the                      exposure (30 CFR 72.510). Most of the
      with an [sic] respirable environment in                 standards proposed by the Air Quality                 provisions of the final coal diesel
      areas where they are required to work or                rule.                                                 particulate matter rule became effective
      travel.’’ Id. at 9775. Moreover, the                      Nonetheless, in March 1997, the                     in March 2001. Three provisions,
      preamble to the ventilation final rule                  UMWA petitioned the U.S. Court of                     however, were subject to later effective
      states in regard to air quantity, ‘‘[i]t is             Appeals for the District of Columbia                  dates, two of which have already
      essential for miners’ health and safety                 Circuit for a writ of mandamus                        passed. The final provision will become
      that each working face be ventilated by                 compelling MSHA to issue standards                    effective in January 2005.
      sufficient quantity of air to dilute,                   governing emissions in diesel exhaust.                   Like the coal diesel particulate matter
      render harmless, and carry away                         In re United Mine Workers of America                  rule, the final metal/nonmetal diesel
      flammable and harmful dusts and gases                   Int’l Union, 190 F.3d 545 (D.C. Cir.                  particulate matter rule was published on
      produced during mining.’’ Id. at 9780.                  1999). Specifically, the UMWA sought                  January 19, 2001. 66 FR 5706. The final
      Maintaining adequate ventilation in                     regulation of two components of diesel                rule established new health standards
      underground coal mines helps to ensure                  exhaust: gases and particulate matter.                for underground metal and nonmetal
      that miners are not exposed to                          Following negotiations between MSHA                   miners by requiring use of approved
      accumulations of hazardous gases and                    and the UMWA, the parties were able to                equipment and low sulfur fuel, and by
      dusts. MSHA’s ventilation standard                      dispose of the particulate matter portion             setting interim and final concentration
      established a mandatory oxygen content                  of the petition, as discussed in further              limits for diesel particulate matter in the
      of 19.5% by volume in bleeder entries,                  detail in the paragraph below, leaving                underground mining environment.
      and in areas where persons work or                      before the court only the portion of the              Several parties, including mine
      travel. 30 CFR 75.321. Sections 58/                     petition dealing with regulation of                   operators and industry associations,
      72.300 of the Air Quality proposal,                     exhaust gases. In this regard, the UMWA               filed petitions for review of the final
      entitled ‘‘Dangerous Atmospheres,’’                     wanted final standards lowering the                   rule, and the United Steelworkers of
      proposed an equivalent mandatory                        PELs for CO and NO2. With the prospect                America intervened. The petitions were
      oxygen content by volume for all work                   of court-ordered rulemaking impending,                consolidated and are pending in the
      areas. 54 FR at 35817, 35840 (August 29,                MSHA and the UMWA were able to                        U.S. Court of Appeals for the District of
      1989). During the period from August                    settle the matter so as to avoid                      Columbia Circuit. AngloGold (Jerritt
      1989 to September 2002, MSHA also                       hindrance of Agency action on diesel                  Canyon) Corp. et al. v. U.S. Department
      promulgated final standards for ‘‘Diesel                particulate matter and respirable coal                of Labor, Nos. 01–1046, 01–1124, 01–
      Powered Equipment.’’ 61 FR 55412                        mine dust, both of which the UMWA                     1146 (D.C. Cir. filed Jan. 29, 2001).
      (October 25, 1996). The diesel                          asserted were of higher priority than                 Pursuant to a first partial settlement
      equipment rule requires monitoring and                  diesel exhaust gases. Id. at 553.                     agreement reached in response to legal
      control of gaseous diesel emissions—                    Consequently, the parties ultimately                  challenges to the 2001 metal/nonmetal
      specifically, carbon monoxide (CO) and                  agreed to dismiss the case and to                     diesel particulate matter rule, MSHA
      nitrogen dioxide (NO2)—so that miners                   address the UMWA’s concerns about                     amended portions of the final rule on
      are protected from exposure to harmful                  gaseous emissions by establishing a                   February 27, 2002 (67 FR 9180). The
      levels of gaseous contaminants. 30 CFR                  diesel exhaust monitoring protocol.                   revisions addressed the evidence and
      70.1900. In addition, the diesel                        These procedures were incorporated                    tagging provisions of the Maintenance
                                                              into the Agency’s directives system and               standard, as well as the definition of
      equipment rule limits miners’ exposure
                                                              are carried out by coal mine health                   ‘‘introduced’’ in the Engine standard.
      to harmful diesel exhaust contaminants
                                                              inspectors during inspections. Coal                   On August 14, 2003 (68 FR 48668),
      by requiring Agency approval of most
                                                              Mine Health Inspection Procedures                     pursuant to a second partial settlement
      diesel engines (30 CFR part 7);
                                                              Handbook, Chapter 5 ‘‘Diesel Exhaust                  agreement, MSHA initiated additional
      minimum ventilating air quantities in
                                                              Gas Monitoring,’’ PH89–V–1(14)                        rulemaking to further amend the final
      areas where diesel equipment is
                                                              (December 2000).                                      rule. These revisions would revise the
      operated (30 CFR 75.325); the use of                      As mentioned above, the UMWA also                   interim concentration limit; designate
      low-sulfur fuel (30 CFR 75.1901); and                   sought regulation of diesel particulate               elemental carbon as the surrogate for
      the use of clean-burning engines (30                    matter through its mandamus petition.                 measuring diesel particulate matter for
      CFR part 7).                                            During the pendency of the suit, MSHA                 the interim limit; apply MSHA’s
         The Air Quality rule proposed                        published a proposed rule for the                     longstanding hierarchy of controls used
      lowering the PELs for many of the gases                 regulation of diesel particulate matter,              for other exposure-based health
      found in diesel exhaust, including CO                   63 FR 17492 (April 9, 1998), and the                  standards, including engineering and
      and NO2. Because the proposed Air                       court dismissed this portion of the                   administrative controls supplemented
      Quality rule was to lower these PELs,                   UMWA’s petition as moot.                              by respiratory protection, but
      the diesel equipment rule did not do so.                Consequently, the coal and metal/                     prohibiting rotation of miners; and
      Despite the fact that the CO and NO2                    nonmetal diesel particulate matter rules              revise the requirements for the diesel
      PELs were not reduced, the diesel                       became priority rulemakings in the                    particulate matter control plan. The
      equipment rule provides coal miners                     years between the Air Quality proposed                legal challenge has been stayed pending
      with a degree of protection from diesel                 rule and the September 2002                           completion of additional rulemaking
      exhaust gases by reducing emissions of                  withdrawal notice.                                    actions.
      those gases, and thereby coal miners’                     The final coal diesel particulate                      MSHA’s final ‘‘Occupational
      exposure to them. It should also be                     matter rule, 66 FR 5526 (January 19,                  Exposure to Noise’’ rule, 64 FR 49548
      noted that following publication of the                 2001), requires mine operators to restrict            (September 13, 1999) was another
      diesel equipment final rule in 1996,                    diesel particulate matter emissions from              rulemaking that MSHA determined was
      MSHA surveyed 23 of 26 mines using                      certain pieces of equipment to                        a priority and to which the Agency
      diesel equipment in underground coal                    prescribed levels (30 CFR 72.500 to                   committed considerable rulemaking
      mines, collecting over 500 samples.                     72.502), and requires underground coal                resources. Once promulgated, the Noise
      MSHA determined that coal miners                        mine operators to train miners about the              rule replaced standards that provided

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      67688                 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules

      inadequate protection of miners’ hearing                Quality proposed rule are subject to the              decision to further review the safety
      and were more than 20 years old. MSHA                   HazCom requirements.                                  factors associated with the use of belt air
      estimated that under its previous noise                    On December 12, 2002, pursuant to its              to ventilate working places.
      rule, 13.4% of the mining population in                 authority derived from § 101(b)(1) of the                On April 2, 2004, MSHA published
      the United States would have developed                  Mine Act, 30 U.S.C. 811(b)(1), MSHA                   final safety standards, ‘‘Underground
      a material hearing impairment during                    issued an emergency temporary                         Coal Mine Ventilation—Safety
      their working lifetime. MSHA                            standard (ETS) addressing underground                 Standards for the Use of a Belt Entry as
      concluded that approximately 13,000                     coal mine emergency evacuations, 67 FR                an Intake Air Course to Ventilate
      coal miners and 24,000 metal and                        76658. Section 101(b)(1) of the Mine Act              Working Sections and Areas Where
      nonmetal miners would have                              authorizes the Secretary to issue                     Mechanized Mining Equipment is Being
      experienced noise-induced hearing loss                  emergency temporary health or safety                  Installed or Removed’’ (‘‘belt air’’ rule)
      under the prior standard, and that those                standards without regard to the                       (69 FR 17480). Prior to the effective date
      miners would substantially benefit from                 mandates of the Administrative                        of the belt air rule, mine operators were
      the final rule’s effect of improving                    Procedure Act, 5 U.S.C. 553, when she                 required to obtain a petition for
      miners’ health and lessening the                        determines that ‘‘miners are exposed to               modification (30 CFR part 44) of various
      personal and social hardships resulting                 grave danger from exposure to                         safety standards before they were
      from noise-induced hearing loss. As will                substances or agents determined to be                 allowed to use intake air passing
      be explained in further detail in this                  toxic or physically harmful, or to other              through the belt air course to ventilate
      notice, MSHA continues to commit                        hazards, and * * * that such emergency                designated locations where miners
      resources to the implementation of this                 standard is necessary to protect miners               work. In effect, the belt air rule
      rule.                                                   from such danger.’’ 30 U.S.C. 811(b)(1).              incorporates the bulk of the safety
         On March 11, 2002, MSHA published                    Emergency temporary standards become                  requirements found in the most recently
      safety standards for ‘‘Electric Motor-                  effective immediately upon publication                granted petitions for modification so
      Driven Mine Equipment and                               in the Federal Register, 30 U.S.C.                    that mine operators will no longer need
      Accessories and High-Voltage Longwall                   811(b)(1), and must be superseded by a                to seek a mine-specific petition for
      Equipment Standards for Underground                     mandatory health or safety standard no                modification before using belt air in
      Coal Mines.’’ 67 FR 10972. The final                    later than nine months after publication              sections of their mine with three or
      high-voltage longwall rule allows mine                  of the emergency standard. 30 U.S.C.                  more entries. By retaining these safety
                                                              811(b)(3). The issuance of an emergency               requirements in the rule, miners’ safety
      operators to use high-voltage longwall
                                                              standard is an extraordinary measure                  will be preserved.
      systems without having to obtain a
                                                              provided for by the Mine Act, but one                    Though the above standards do not
      mine-specific petition for modification                                                                       address all of the hazards that the Air
                                                              which MSHA employs when it
      from MSHA. MSHA considered this rule                                                                          Quality rule was intended to address,
                                                              determines that such a standard is
      a priority because the Agency                                                                                 MSHA has promulgated several rules in
                                                              necessary to prevent grave dangers from
      concluded that high-voltage longwalls                                                                         the recent past that directly or indirectly
                                                              ‘‘manifest[ing] themselves in serious or
      could be used safely, provided that                                                                           assist in reducing miners’ exposure to
                                                              fatal injuries or illnesses.’’ S. Rept. 181,
      certain conditions were met. The high-                                                                        airborne contaminants. Such rules
                                                              95th Cong., 1st Sess. 23 (1977).
      voltage longwall rule accounted for new                    Following several fatal and non-fatal              include those addressing diesel
      and improved longwall technology, and                   coal mine emergencies, MSHA                           particulate matter, hazard
      established increased protection from                   determined that miners were exposed to                communication, and diesel equipment.
      electrical hazards, while reducing the                  grave danger when they remained                       MSHA has also addressed diesel
      paperwork requirements associated with                  underground or re-entered affected mine               exhaust gases, which was proposed as
      petitions for modification.                             areas during mine emergencies                         part of the Air Quality rulemaking,
         During the period in question, MSHA                  presenting an imminent danger due to                  through detailed procedures in its
      also devoted considerable resources to                  fire, explosion, or gas or water                      Inspection Procedures Handbook. The
      its ‘‘Hazard Communication’’ (HazCom)                   inundation. MSHA concluded that it                    measure of protection provided to
      rule, 67 FR 42314 (June 21, 2002).                      was imperative to immediately address                 miners from these rules was not
      Similar to the Toxic Release Inventory                  proper training and emergency                         available at the time that the Air Quality
      list that was at issue in Troy                          evacuation procedures by way of an                    rule was proposed. In addition, these
      Corporation v. Browner, 120 F.3d 277                    ETS. As required by the Mine Act,                     standards focused on discrete health
      (D.C. Cir. 1997), MSHA’s HazCom rule                    MSHA had to replace the ETS with final                and safety hazards and reflected an
      is an information dissemination rule                    safety standards within nine months of                incremental approach to regulating
      that does not contain provisions that                   the ETS’s publication. Hence, MSHA                    mine safety and health that appears
      require use of engineering and                          published its final ‘‘Emergency                       preferable in light of AFL–CIO. After the
      administrative controls to limit                        Evacuations’’ rule on September 9, 2003               Eleventh Circuit’s decision, MSHA
      exposure to chemicals, exposure                         (68 FR 53037). As with the rules                      made a reasonable and reasoned
      monitoring, medical surveillance and                    mentioned in the preceding paragraphs,                decision to direct its resources to
      transfer, or the use of personal                        MSHA deemed these rulemakings to be                   rulemakings that could be, and were,
      protective equipment. However, the                      priorities and devoted rulemaking                     successfully completed. The decision to
      HazCom rule requires mine operators to                  resources accordingly.                                reprioritize the Air Quality rule was
      evaluate the hazards of chemicals they                     The most recently published final rule             entirely appropriate and reflects the
      produce or use and provide information                  which represented an MSHA                             Secretary’s authority to reassess and
      to miners concerning chemical hazards;                  rulemaking priority during the years in               reorder priorities as necessary and as
      label containers of hazardous chemicals;                question is the ‘‘belt air’’ rule. The belt           appropriate.
      provide access to material safety data                  air rule was originally proposed as part
      sheets; and train miners about                          of MSHA’s rulemaking on ventilation of                4. Staleness of Rulemaking Record
      hazardous chemicals to which they                       underground coal mines, but ultimately                   In addition to changes in MSHA’s
      might be exposed. Chemicals for which                   developed as an independent                           rulemaking priorities, the 2002 decision
      MSHA proposed PELs under the Air                        rulemaking following the Secretary’s                  to withdraw the Air Quality proposed

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      rule was also premised on the staleness                 initiate rulemaking on ‘‘Measuring and                   Additional rulemaking priorities
      of the rulemaking record. As the D.C.                   Controlling Asbestos Exposure.’’ 67 FR                which will consume significant agency
      Circuit observed, the staleness of the                  15134. The Agency also held six public                resources are the respirable coal mine
      record is not a distinct reason for                     meetings between April 2002 and June                  dust rules. MSHA’s proposed rule for
      withdrawing the Air Quality proposed                    2002 to allow for early participation in              the ‘‘Determination of Concentration of
      rule. Int’l Union, UMWA v. U.S.                         the rulemaking process by interested                  Respirable Coal Mine Dust’’ (Single
      Department of Labor, 358 F.3d 40, 44                    parties. The importance of such a                     Sample) would determine that the
      (February 20, 2004). However, staleness                 rulemaking is highlighted in the                      average concentration of respirable dust
      of the record is a critical concern in                  Department of Labor’s Office of                       to which each miner in the active
      determining the level of resources                      Inspector General’s (OIG)                             workings of a coal mine is exposed can
      MSHA must be prepared to commit to                      recommendations to MSHA to reduce                     be accurately measured over a single
      the project to make it a priority, to the               the risk of incidents similar to those that           shift. 65 FR 42068 (July 7, 2000). The
      certain exclusion of all other rulemaking               took place in Libby, Montana.                         related ‘‘Verification of Underground
      priorities. At the time of publication of               ‘‘Evaluation of MSHA’s Handling of                    Coal Mine Operators’’ Dust Control
      the September 2002 withdrawal notice,                   Inspections at the W.R. Grace &                       Plans and Compliance Sampling for
      it had been more than 13 years since the                Company Mine in Libby, Montana.’’                     Respirable Dust’’ (Plan Verification)
      rule’s proposal, and some 12 years since                USDOL Office of the Inspector General,                would require mine operators to verify
      comments had been received. In                          Office of Analysis, Complaints and                    and periodically monitor, through
      accordance with the mandates of the                     Evaluations, Report No. 2E–06–620–                    sampling, the effectiveness of the dust
      Mine Act, however, MSHA is to                           0002 (March 22, 2001). MSHA’s Air                     control parameters for each mechanized
      consider the latest available scientific                Quality proposed rule recognized the                  mining unit (MMU) specified in the
      data when promulgating mandatory                        importance of controlling asbestos                    mine ventilation plan. 65 FR 42122 (July
      standards dealing with toxic materials                  exposure, and proposed a PEL                          7, 2000). The Plan Verification proposed
      or harmful physical agents. Since the                   consistent with then-current levels                   rule would significantly improve
      Air Quality rule was proposed in 1989,                  promulgated by OSHA in its Air                        miners’ health protection by ensuring
      significant new scientific information                  Contaminants standard. In 1994, OSHA                  that ventilation plans were verifiable
      relating to many of the proposed                        promulgated a revised substance-                      and implemented, thereby limiting the
      provisions had developed. Thus, MSHA                    specific asbestos standard that lowered               exposure of individual miners to
      would have had to essentially start the                 the PEL to an eight-hour time-weighted                respirable coal mine dust. In
      rulemaking process from the beginning,                  average limit of 0.1 fiber per cubic                  combination, these rules would
      and evaluate the significance of the risk               centimeter (f/cc) and lowered the short-              comprise MSHA’s revised program to
      of material impairment of health, and all               term exposure limit to 1.0 f/cc as                    meet the Mine Act’s § 202(b)(2)
      of the feasibility issues, on the latest                averaged over a sampling period of 30                 requirement that miners’ exposure to
      available information.                                  minutes. 59 FR 40964 (August 10, 1994).               respirable coal mine dust be maintained
                                                              In the wake of the illnesses and fatalities           at or below the applicable standard on
      C. Continuing Reasons for the                                                                                 each shift. 30 U.S.C. 842(b)(2).
                                                              in Libby, Montana, MSHA’s practice has
      Withdrawal of the Proposed Rule                                                                                  Because of the significant public
                                                              been to encourage mine operators to
      1. Changes in Agency Priorities                         comply with the current OSHA PEL, as                  reaction and comment to these
                                                                                                                    proposals, and while waiting for the
         As discussed previously, MSHA’s                      MSHA’s metal/nonmetal and coal
                                                                                                                    availability of a Personal Dust Monitor,
      rulemaking priorities in the years                      asbestos exposure standards are some
                                                                                                                    MSHA has indefinitely extended the
      following the promulgation of the                       20-fold higher than OSHA’s. MSHA
                                                                                                                    comment period for these rules. Plan
      abrasive blasting and drill dust control                Program Information Bulletin No. P–
                                                                                                                    Verification, 68 FR 39881 (July 3, 2003);
      standards made it impossible for the                    0003, ‘‘Potential Exposure to Airborne
                                                                                                                    Single Sample, 68 FR 47886 (August 12,
      Agency to complete the Air Quality                      Asbestos on Mining Properties’’ (March
                                                                                                                    2003). MSHA is awaiting the National
      rulemaking. Moreover, since publication                 2, 2000). For all of the above reasons,
                                                                                                                    Institute for Occupational Safety and
      of the September 2002 Air Quality                       MSHA feels strongly that promulgating
                                                                                                                    Health’s (NIOSH’s) development and
      withdrawal notice, MSHA’s rulemaking                    an asbestos standard must remain one of
                                                                                                                    evaluation of a Personal Dust Monitor,
      priorities have not permitted it to re­                 the Agency’s top rulemaking priorities.
                                                                                                                    which MSHA believes could be effective
      propose the rule. The Agency expects                       As discussed elsewhere in this                     in helping to provide a real-time read­
      that its rulemaking resources will be                   document in further detail, MSHA is in                out of dust exposure, thus helping to
      consumed by other priority rulemakings                  the process of finalizing the metal/                  prevent the development of black lung
      such that it will not be able to                        nonmetal diesel particulate matter rule               disease in miners. In-mine testing and
      promulgate the Air Quality rule for the                 pursuant to the litigation in AngloGold               evaluation of the devices has begun and
      foreseeable future. The Department of                   (Jerritt Canyon) Corp. et al., supra, and             will most likely continue into 2005.
      Labor’s 2003–2004 regulatory plan, 68                   is devoting significant resources to this                Although not listed in the
      FR 72520 (December 22, 2003),                           Agency priority. As MSHA is currently                 Department’s Regulatory Plan, the
      identifies three high priority initiatives              doing with the coal diesel particulate                Secretary has identified several other
      for MSHA, noting that items listed in                   matter rule, MSHA anticipates                         rulemakings for development that
      the regulatory plan are those ‘‘issues                  providing training to both its                        ‘‘advance the Department’s goals’’ and
      most clearly needing regulatory                         inspectorate and stakeholders,                        are consistent with each agency’s
      attention.’’ Ibid. For MSHA, the                        providing compliance assistance, and                  ‘‘available resources.’’ Department of
      Secretary has identified asbestos, metal/               engaging in other efforts following the               Labor Unified Agenda, 68 FR 73196
      nonmetal diesel particulate matter, and                 promulgation of revisions to the final                (December 22, 2003). For MSHA, these
      the two coal mine dust rules as priority                rule in order to ensure its smooth                    rules, enumerated in the Department’s
      rulemakings. Ibid.                                      implementation. MSHA’s                                most recent Agenda, include
         On March 29, 2002, MSHA published                    implementation initiatives will require a             rulemakings on high voltage continuous
      an advanced notice of proposed                          considerable commitment of Agency                     mining machines, id. at 73213, shaft and
      rulemaking declaring its intent to                      resources and personnel.                              slope construction worker training,

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      67690                 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules

      ibid., and electrical product approval,                 the Wabash Mine in Keensburg, Illinois;               enforce the rule. Like the Noise
      id. at 73214.                                           and the January 22, 2003, fatalities at               implementation efforts, MSHA
         On July 16, 2004, 69 FR 42812 (July                  the McElroy Mine in Marshall County,                  anticipates that implementation of the
      16, 2004) MSHA published a proposed                     West Virginia.                                        coal diesel particulate matter rule will
      rule, ‘‘High-Voltage Continuous Mining                     Finally, MSHA has determined that                  require a considerable commitment of
      Machines,’’ that would establish design                 updating its regulations on electrical                Agency resources and personnel for the
      requirements for approval of high-                      product approval is a priority. Part 18 of            foreseeable future.
      voltage continuous mining machines                      30 CFR, entitled ‘‘Electric Motor-Driven                 It should also be noted that MSHA is
      operating in face areas of underground                  Mine Equipment and Accessories,’’ sets                publishing a Request for Information on
      mines. The proposed rule would also                     forth the requirements to obtain MSHA                 respirable crystalline silica to determine
      establish new mandatory electrical                      approval of electrically operated                     an appropriate course of action in
      safety standards for the installation, use,             machines and accessories intended for                 response to respirable crystalline silica
      and maintenance of high-voltage                         use in underground mines, as well as                  exposures. A new respirable crystalline
      continuous mining machines used in                      other related matters, such as approval               silica standard was also proposed as
      underground coal mines. These                           procedures, certification of components,              part of the Air Quality rule. Thus, while
      provisions would enable mines to                        and acceptance of flame-resistant hoses               a comprehensive Air Quality
      utilize high-voltage continuous mining                  and conveyor belts. Aside from minor                  rulemaking will no longer be pursued
      machines with enhanced safety                           modifications, Part 18 has remained                   by MSHA, significant elements of the
      protection from fire, explosion, and                    unchanged since its promulgation in                   proposed rule continue to be addressed
      shock hazards. Existing 30 CFR 75.1002,                 1968 under the Federal Coal Mine                      in incremental, more manageable
      Installation of electric equipment and                  Safety Act of 1952. MSHA’s update of                  portions by individual rulemakings.
      conductors; permissibility, does not                    these outdated regulations will improve               MSHA will continue to review
      permit the use of high-voltage                          the efficiency of the approval process,               information related to individual
      continuous mining machines in certain                   recognize new technology, and add                     substances to determine whether there
      areas of the mine. Currently, mine                      quality assurance provisions.                         is evidence of significant risk. If so,
      operators must petition MSHA for a                         MSHA expects that the above                        MSHA will evaluate whether to engage
      modification of the standard, pursuant                  rulemakings will consume the majority                 in a substance-specific rulemaking.
      to section 101(c) of the Mine Act, 30                   of its rulemaking resources for the
                                                              foreseeable future. In addition to the                2. Impact of Resuming the Air Quality
      U.S.C. 811(c), prior to using high-
                                                              resources that will be required to                    Rulemaking
      voltage continuous mining machines.
      From January 1997 to October 2003,                      promulgate the foregoing priority                        The impact of resuming the Air
      MSHA granted 38 petitions for the use                   rulemakings, however, MSHA is                         Quality rulemaking would be
      of high-voltage continuous mining                       expending resources to facilitate                     detrimental to MSHA’s currently
      machines. Others are currently being                    implementation of its new final rules.                designated priority rulemakings. The
      processed. MSHA is confident that                       For example, MSHA’s implementation                    resources that would be required to
      promulgation of this rule will improve                  of the Occupational Exposure to Noise                 resume the Air Quality rulemaking
      miners’ safety while eliminating the                    rule is consuming a fair amount of the                would be enormous and would come at
      need to proceed through the often                       Agency’s resources, including many of                 the expense of the rulemakings cited in
      burdensome administrative process                       the same personnel who would be                       the preceding pages. MSHA’s toxic
      associated with granting a petition to                  required to assist in completion of an                substance and harmful physical agent
      permit the use of high-voltage                          Air Quality standard. In an effort to                 rulemakings have historically been
      continuous mining machines. MSHA is                     improve understanding of and                          resource-intensive and protracted, even
      currently holding public hearings on                    compliance with the Noise rule, MSHA                  when not laden with the legal
      this proposed rule and, as with the other               has conducted numerous stakeholder                    uncertainties that encumber the Air
      rulemakings discussed above, MSHA                       meetings, developed new compliance                    Quality rulemaking. Because MSHA is
      anticipates a considerable amount of                    assistance documents, updated existing                required to present evidence that the
      resources will be committed to                          compliance assistance documents, and                  existing PEL for each substance or
      promulgating the high-voltage                           conducted training of some of its                     contaminant exposes miners to a
      continuous mining machine standards.                    inspectorate. MSHA is in the process of               significant risk of material impairment
         On July 16, 2004, 69 FR 42842,                       providing stakeholder training,                       of health or functional capacity,
      following a record of fatalities                        additional training to its inspectorate,              developing a judicially sustainable final
      attributable to the lack of training                    updating its procedural guides, and                   rule would be a very lengthy and
      received by shaft and slope construction                evaluating new noise technologies.                    complex endeavor. The scientists that
      workers, MSHA published a proposed                      MSHA will continue to allocate                        would be required to gather, review and
      rule entitled ‘‘Training Standard for                   resources to implement the Noise rule                 analyze the immense amount of
      Shaft and Slope Construction Workers                    until it is confident that mine operators             scientific data would have to be
      at Underground Mines’’ that would                       have received sufficient compliance                   reassigned from other health
      remove existing language which                          assistance, miners understand their                   rulemakings. The Agency has also lost
      exempts shaft and slope construction                    rights, and MSHA inspectors have                      a considerable degree of institutional
      workers from the requirement to receive                 received the necessary training to                    knowledge relating to the proposed rule
      Part 48 training. Under the proposal,                   properly enforce the standard.                        due to retirement. As stated elsewhere
      shaft and slope construction workers                       With the January 19, 2001,                         in this document, MSHA employs a
      would be treated like extraction and                    promulgation of the coal diesel                       limited number of staff assigned
      production miners in that they would be                 particulate matter rule, MSHA is taking               exclusively to rulemaking activities, and
      required to receive Part 48 training. This              efforts similar to those described in the             it is nearly impossible for these
      rule will help eliminate fatalities such                preceding paragraph to ensure that its                employees to advance simultaneously
      as the October 4, 1991, fatality at the                 stakeholders understand the coal diesel               on numerous complex rulemaking
      Gary No. 50 Mine in Pineville, West                     particulate matter rule, and MSHA                     fronts. Many of the same employees,
      Virginia; the May 17, 1996, fatality at                 inspectorate are trained to properly                  including MSHA’s economists,

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                            Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules                                         67691

      technical support specialists, standard                 and mine operators about the health                   was a suggested process for doing so.
      and regulation drafting personnel, and                  risks associated with exposure to                     The parties also discussed the
      lawyers are required in both health and                 asbestos exceeding the 0.1 f/cc limit.                appropriate role of NIOSH’s
      safety rulemakings, and the orderly                     MSHA continues to encourage miners                    recommended exposure levels (RELs)
      implementation of new rules. These                      and mine operators to take                            versus the appropriate role of the
      employees are also engaged in assisting                 precautionary measures to avoid                       ACGIH’s TLVs. Although the UMWA
      in the day-to-day functioning of the                    asbestos exposure.                                    did not have a specific proposal for
      Agency by undertaking such tasks as                        MSHA has posted valuable                           addressing the outstanding issues
      replying to incoming correspondence                     information addressing asbestos hazards               related to Air Quality, MSHA and the
      and aiding field personnel in                           in the mining industry on its Web site,               UMWA agreed to exchange information
      appropriately carrying out the mandates                 including links to numerous outside                   and to further explore and deliberate
      of the Mine Act. Thus, rulemaking on                    resources. This information can be                    options available to the Agency to
      even one substance or component                         accessed at MSHA’s source page for                    address those outstanding issues.
      proposed in the Air Quality rule would                  asbestos, http://www.msha.gov/
                                                              asbestos/asbestos.htm.                                D. Conclusion
      require reassignment of personnel and
      resources, thus delaying completion of                     Consistent with its Occupational                      In summary, the Mine Act grants the
      other rules and impeding                                Illness and Injury Prevention Program,                Secretary of Labor exclusive authority to
      implementation of new rules.                            MSHA’s Web site also contains                         determine that a proposed rule should
                                                              information related to the prevention of              be withdrawn, so long as she publishes
      3. Use of a Non-Regulatory Approach                     various other health and safety illnesses             reasons for her decision not to
         At the present time, MSHA is using                   and injuries. For example, MSHA’s Web                 promulgate the rule. With the
      non-regulatory approaches to address                    site includes health alerts that address              September 2002 publication of a
      the hazards miners may encounter from                   substances or topics proposed in the Air              withdrawal notice, the Secretary
      contact with the substances or                          Quality rule. These alerts include:                   identified three specific reasons for her
      contaminants that would have been                       Working with Mercury; Silica Exposure                 determination that the Air Quality
      regulated by the Air Quality rule. MSHA                 of Underground Coal Miners; Silica                    rulemaking should not continue: the
      continues to introduce and promote                      Exposure of Surface Coal Miners;                      effect of AFL–CIO, changes in Agency
      educational and outreach campaigns to                   Working in Confined Spaces; and                       priorities, and the staleness of the
      inform stakeholders about health and                    Welding Fumes Sampling. Topic-                        rulemaking record. Each of these
      safety issues of which they should be                   specific health documents include                     reasons was necessarily connected to
      aware. One such notable educational                     Arsenic; Effects of Blasting on Air                   the enormous commitment of resources
      campaign is the Agency’s initiative to                  Quality; Carbon Monoxide; Hazardous                   that resumption of the rulemaking
      alert miners and mine operators about                   Chemicals at Work; and Respiratory                    would require. The AFL–CIO holding
      the hazards associated with asbestos                    Protection. MSHA also posts on its Web                illustrates that MSHA would have had
      exposure. In January 2000, MSHA                         site ‘‘best practices’’ developed by                  to expend a substantial amount of
      initiated comprehensive compliance                      volunteer teams of stakeholders. Best                 resources to ensure that a final rule
      assistance related to asbestos exposure.                practices are intended to provide                     would not result in MSHA’s
      This compliance assistance included                     practical, effective solutions to health              susceptibility to a formidable, vigorous,
      activities such as training MSHA                        and safety risks that might be found in               and possibly successful legal challenge.
      inspectors to recognize naturally                       the mining environment. Recent best                   With respect to the Agency’s change in
      occurring asbestos and to sample where                  practice recommendations address                      priorities, the Mine Act affords the
      it is suspected; assisting in the                       ‘‘Reducing Silica Exposure’’ and                      Secretary broad authority to set and
      development of clean-up and                             ‘‘Underground Air Quality.’’ These                    order her rulemaking priorities. The
      monitoring procedures; discussing                       documents can be accessed through                     Secretary properly exercised that
      hazards of asbestos exposure with                       MSHA’s Web site, http://                              discretion by determining not to
      miners and the mine operator; providing                 www.msha.gov.                                         proceed with the Air Quality
      mine operators with names of                               Given the current circumstances,                   rulemaking, particularly in light of the
      accredited laboratories that perform                    MSHA believes that a non-regulatory                   resources that would be consumed by
      asbestos analysis; assisting in the                     approach is the most appropriate                      such a rulemaking.
      implementation of a respiratory                         manner to address the hazards                            MSHA has also identified several
      protection program; and instructing in                  addressed in the Air Quality proposed                 reasons why it continues to devote its
      recognition and avoidance of asbestos.                  rule. MSHA will continue to assess the                resources to current rulemaking
         In addition to the asbestos compliance               risks posed by the contaminants                       priorities, and the determination that a
      assistance activities, MSHA maintains a                 included in the Air Quality proposed                  non-regulatory approach is reasonable
      practice of informing mine operators by                 rule, and will ascertain whether                      in light of existing circumstances. For
      written communication when an MSHA                      rulemaking for any individual                         the reasons stated, the Secretary has
      asbestos sample taken at their facility is              contaminant is appropriate.                           concluded that other rulemakings, most
      found to be over the OSHA PEL of 0.1                                                                          notably the metal/nonmetal diesel
      fiber per cubic centimeter (f/cc).                      4. Meeting With the UMWA                              particulate matter, respirable coal mine
      Another current MSHA practice is to                        On May 5, 2004, at the request of the              dust, and asbestos rules, constitute
      encourage mine operators to comply                      UMWA, MSHA and the Union met to                       MSHA’s highest priorities and that the
      with the OSHA asbestos PEL. MSHA                        discuss issues concerning Air Quality.                Agency’s resources should be focused
      Program Information Bulletin No. P–                     The parties generally discussed whether               accordingly. The progress of MSHA’s
      0003, ‘‘Potential Exposure to Airborne                  there was a need for MSHA to more                     higher priority rulemakings would be
      Asbestos on Mining Properties’’ (March                  regularly assess and update toxic                     stymied by the tremendous quantity of
      2, 2000). Though MSHA has no                            substances standards. In this regard, the             resources that would be redirected
      authority to enforce the OSHA 0.1 f/cc                  parties discussed the Agency’s                        toward an Air Quality rulemaking.
      PEL, the Agency continues to take a                     capability of doing so, the resources that               Although there are potentially
      proactive approach to educating miners                  would be involved, and whether there                  thousands of health and safety risks that

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      67692                 Federal Register / Vol. 69, No. 223 / Friday, November 19, 2004 / Proposed Rules

      MSHA could regulate, it must focus its          would reduce the workload for both                            for approval on or after the effective
      resources on risks that are significant,        agencies and NARA, allowing both to                           date of the final rule will be considered
      that the Agency has deemed to be the            focus resources on critical records                           media neutral (i.e., the dispositions will
      highest priorities, and that the Secretary      management needs.                                             apply to the recordkeeping copies of the
      has found to be appropriate. If data or         DATES: Comments are due by January                            described files in all media) unless the
      information provides evidence of a              18, 2005.                                                     schedule identifies a specific medium
      significant risk that MSHA has not              ADDRESSES: NARA invites interested
                                                                                                                    for a specific series. This policy is
      addressed, the Agency will evaluate             persons to submit comments on this                            reflected in the proposed change to 36
      whether rulemaking should be initiated          proposed rule. Please include ‘‘Attn:                         CFR 1228.24(b). NARA also proposes to
      for the individual substance or agent.          RIN 3095–AB43’’ and your name and                             modify 36 CFR 1228.24(b) and
      This document does not preclude any             mailing address in your comments.                             1228.28(b) to make it clear that agencies
      Agency action that the Secretary may            Comments may be submitted by any of                           still must identify special media records
      find appropriate in the future.                 the following methods:                                        (e.g., still pictures, motion pictures and
         For the reasons stated herein, with the         • Federal eRulemaking Portal: http://                      videos, maps, aerial photography, etc.)
      exception of provisions published at 59         www.regulations.gov. Follow the                               when they submit schedules.
      FR 8318 (February 18, 1994), the                                                                                 (2) Require agencies to notify NARA
                                                      instructions for submitting comments.
      proposed rule is withdrawn.                                                                                   within 45 days when converting records
                                                         • E-mail: Send comments to
                                                                                                                    systems containing permanent records
         Signed at Arlington, Virginia, this 15th day comments@nara.gov. If you do not
                                                                                                                    from hard-copy format to electronic
      of November, 2004.                              receive a confirmation that we have
                                                                                                                    medium, including special media
      David D. Lauriski,                              received your e-mail message, contact
                                                                                                                    records. As part of the notification,
      Assistant Secretary for Mine Safety and         Nancy Allard at 301–837–1477.
                                                                                                                    agencies would provide information
      Health.                                            • Fax: Submit comments by facsimile
                                                                                                                    about the format(s) and volume of
      [FR Doc. 04–25678 Filed 11–18–04; 8:45 am]      transmission to 301–837–0319.
                                                                                                                    records in the electronic system,
      BILLING CODE 4510–43–P
                                                         • Mail: Send comments to                                      (3) Authorize agencies to apply
                                                      Regulations Comments Desk (NPOL),                             existing previously approved agency
                                                      Room 4100, Policy and                                         records schedules that cover hard-copy
      NATIONAL ARCHIVES AND RECORDS Communications Staff, National                                                  temporary records to those records
      ADMINISTRATION                                  Archives and Records Administration,                          when they are created electronically, if
                                                      8601 Adelphi Road, College Park, MD                           all of the following conditions are met:
      36 CFR Part 1228                                20740–6001.                                                      • The content and function of the
                                                         • Hand Delivery or Courier: Deliver                        records has not changed (i.e., the
      RIN 3095–AB43                                   comments to 8601 Adelphi Road,                                electronic records do not contain
                                                      College Park, MD.                                             information that is substantially
      Federal Records Management; Media
      Neutral Records Schedules                       FOR FURTHER INFORMATION CONTACT:                              different from the information included
                                                      Nancy Allard at 301–837–1477 or fax                           in the hard-copy series, the electronic
      AGENCY: National Archives and Records 
 301–837–0319.                                                         records are used for the same purpose
      Administration (NARA).
                         SUPPLEMENTARY INFORMATION:                                    as the hard-copy records, the underlying
      ACTION: Proposed rule.
                                                                                       business processes and the regulations
                                                                                                                    or other authorities from which records
      SUMMARY: NARA proposes to amend its                Increasingly, agencies are automating                      stem remain the same, etc.)
      regulations relating to scheduling              their business processes in order to                             • The records relate to program
      Federal records to make existing                better meet their business needs. In                          matters and are scheduled for disposal
      approved records schedules and future           many instances, the hard-copy records                         less than 20 years after cut-off, or relate
      records schedules applicable to bodies          that new electronic systems replace are                       to administrative (housekeeping)
      of records regardless of the medium in          covered by a NARA-approved records                            matters, and
      which the records are created and               schedule. Agencies currently are                                 • The records are not covered by one
      maintained. Both the agency (in                 required to submit a Standard Form (SF)                       or more exclusions in the proposed
      submitting the schedule) and NARA (in 115, Request for Records Disposition                                    § 1228.31(a)(3).
      approving the schedule) would be able           Authority, to obtain a new disposition                           This authorization will apply to the
      to specify that certain disposition             authority when previously scheduled                           vast majority of agencies’ records series.
      authorities are valid only for the current hard-copy records are now being created                            NARA estimates that more than 90
      media/format of the records. Although           and maintained electronically. The only                       percent of agency series have retention
      agencies currently are permitted to             exceptions to this policy have been                           periods of less than 20 years.
      submit ‘‘media-neutral’’ records                when the agency’s approved schedule is                           (4) Require agencies to submit a new
      schedules, most existing records                media neutral or the records are covered                      SF 115 to obtain disposition authority
      schedules were developed for hard-copy by the General Records Schedules or by                                 for electronic versions of previously
      (usually paper) recordkeeping systems           an agency-specific schedule that relates                      scheduled hard-copy temporary records
      and do not state that they apply to             to administrative or housekeeping                             with a retention period of 20 years or
      records in other formats. Therefore,            matters.                                                      longer after cut-off. We estimate that
      agencies have been required to submit                                                                         less than ten percent of an agency’s
      new schedules when they convert from            Proposed Regulatory Changes                                   record series would be subject to this
      a hard-copy system of records to an                As part of our Records Management                          requirement. (If such records are already
      automated (electronic) system,                  Initiatives, we have re-examined this                         covered by a media neutral schedule
      including special media records (such           policy and determined that changes                            item or conversion to electronic form
      as still pictures, aerial photography,          should be made to the regulations. This                       was approved in the current schedule,
      maps, charts, drawings, motion picture          proposed rule would:                                          this requirement does not apply.) As
      film, analog videotape, and analog                 (1) Establish NARA policy that new                         described later in this SUPPLEMENTARY
      sound recordings). This proposed rule           records schedules submitted to NARA                           INFORMATION, NARA expects that the

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