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[Federal Register: March 9, 2006 (Volume 71, Number 46)]
[Rules and Regulations]               
[Page 12251-12271]
                 


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Part III

Department of Labor


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Mine Safety and Health Administration

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30 CFR Parts 48, 50, and 75


Emergency Mine Evacuation; Final Rule


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 48, 50, 75

RIN 1219-AB46

 
Emergency Mine Evacuation

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Emergency Temporary Standard; Notice of public hearings; Notice 
of close of comment period.

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SUMMARY: The Mine Safety and Health Administration is issuing an 
emergency temporary standard under section 101(b) of the Federal Mine 
Safety and Health Act of 1977 in response to the grave danger which 
miners are exposed to during underground coal mine accidents and 
subsequent evacuations. The January 2006 mine accidents and fatalities 
demonstrate the need for the Mine Safety and Health Administration to 
take additional action that protects miners from the grave danger that 
they face when they must evacuate a mine after an emergency occurs. 
This emergency temporary standard includes requirements for immediate 
accident notification applicable to all underground and surface mines. 
In addition, this ETS addresses self-contained self-rescuer storage and 
use; evacuation training; and the installation and maintenance of 
lifelines in underground coal mines.

DATES: This emergency temporary standard is effective March 9, 2006. 
The public hearings will be held on April 11, 2006, April 24, 2006, 
April 26, 2006, and April 28, 2006 at the locations listed in the 
Public Hearings section below under SUPPLEMENTARY INFORMATION. If 
individuals or organizations wish to make an oral presentation for the 
record, the Mine Safety and Health Administration (MSHA) is asking that 
you submit your request at least 5 days prior to the hearing dates. The 
comment period will close on May 30, 2006.

ADDRESSES: Comments may be submitted by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 

Follow the instructions for submitting comments.
     E-mail: zzMSHA-Comments@dol.gov. Include the Regulatory 
Information Number (RIN) for this rulemaking (RIN 1219-AB46 in the 
subject line of the message.
     Fax: (202) 693-9441. Include RIN 1219-AB46 in the subject 
line of the fax.
     Mail/Hand Delivery/Courier: Mine Safety and Health 
Administration, Office of Standards, Regulations, and Variances, 1100 
Wilson Blvd., Room 2350, Arlington, Virginia 22209-3939. If hand-
delivered in person or by courier, please stop by the 21st floor first 
to check in with the receptionist before continuing on to the 23rd 
floor.
    Instructions: All submissions must reference the MSHA and RIN 1219-
AB46.
    Docket Access: To access comments electronically, go to http://www.msha.gov/currentcomments.asp.
 All comments received will be posted 

without change at this Web address, including any personal information 
provided. Paper copies of the comments may also be reviewed at the 
Office of Standards, Regulations, and Variances, 1100 Wilson Blvd., 
Room 2350, Arlington, Virginia. MSHA maintains a listserve on the 
Agency's Web site that enables subscribers to receive e-mail 
notification when rulemaking documents are published in the Federal 
Register. To subscribe to the listserve, visit the site at http://www.msha.gov/subscriptions/subscribe.aspx.

    Information Collection Requirements: Comments concerning the 
information collection requirements must be clearly identified as such 
and sent to both the Office of Management and Budget (OMB) and MSHA as 
follows:
    (1) OMB: All comments must be sent by mail addressed to the Office 
of Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Office Building, 725 17th Street, NW., Washington, DC 
20503, Attn: Desk Officer for MSHA; and
    (2) MSHA: Comments must be clearly identified by RIN 1219-AB46 as 
comments on the information collection requirements and transmitted 
either electronically to zzMSHA-Comments@dol.gov, by facsimile to (202) 
693-9441, or by regular mail, hand delivery, or courier to MSHA, Office 
of Standards, Regulations, and Variances, 1100 Wilson Blvd., Room 2350, 
Arlington, Virginia 22209-3939.

FOR FURTHER INFORMATION CONTACT: Robert Stone, Acting Director, Office 
of Standards, Regulations, and Variances, MSHA, 1100 Wilson Boulevard, 
Room 2350, Arlington, Virginia 22209-3939. Mr. Stone can be reached at 
Stone.Robert@dol.gov (Internet E-mail), (202) 693-9445 (voice), or 

(202) 693-9441 (facsimile).

SUPPLEMENTARY INFORMATION: The outline of this notice is as follows:

I. Public Hearings
II. Introduction
III. Basis for the Emergency Temporary Standard
    A. Regulatory Authority
    B. Grave Danger
IV. Discussion of the Emergency Temporary Standard
    A. Background
    B. General Discussion
    C. Section-by-Section Discussion
V. Executive Order 12866
    A. Population-at-Risk
    B. Benefits
    C. Compliance Costs
VI. Feasibility
VII. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VIII. Paperwork Reduction Act of 1995
    A. Summary
    B. Details
IX. Other Regulatory Considerations
X. Emergency Temporary Standard--Regulatory text

I. Public Hearings

    The public hearings will begin at 9 a.m. and end after the last 
scheduled speaker speaks (in any event not later than 5 p.m.) on the 
following dates at the locations indicated:

------------------------------------------------------------------------
             Date                       Location               Phone
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April 11, 2006................  Marriott Town Center,       304-345-6500
                                 200 Lee Street, East
                                 Charleston, WV 25301.
April 24, 2006................  Sheraton Denver West        303-987-2000
                                 Hotel, 360 Union
                                 Boulevard, Lakewood, CO
                                 80228.
April 26, 2006................  Sheraton Suites, 2601       859-268-0060
                                 Richmond Road,
                                 Lexington, KY 40506.
April 28, 2006................  MSHA Conference Room,       202-693-9440
                                 25th Floor, 1100 Wilson
                                 Boulevard, Arlington,
                                 VA 22209.
------------------------------------------------------------------------

    The hearings will begin with an opening statement from MSHA, 
followed by an opportunity for members of the public to make oral 
presentations. You do not have to make a written request to speak. 
Speakers will speak in the order that they sign in. Any unallotted time 
will be made available for persons making same-day requests. At the 
discretion of the presiding official, the time allocated to speakers 
for their presentation may be limited.

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Speakers and other attendees may also present information to the MSHA 
panel for inclusion in the rulemaking record.
    The hearings will be conducted in an informal manner. The hearing 
panel may ask questions of speakers. Although formal rules of evidence 
or cross examination will not apply, the presiding official may 
exercise discretion to ensure the orderly progress of the hearing and 
may exclude irrelevant or unduly repetitious material and questions. A 
verbatim transcript of the proceedings will be prepared and made a part 
of the rulemaking record. Copies of the transcript will be available to 
the public. The transcript will also be available on MSHA's Home Page 
at http://www.msha.gov, under Statutory and Regulatory Information.

    MSHA will accept post-hearing written comments and other 
appropriate data for the record from any interested party, including 
those not presenting oral statements. Written comments will be included 
in the rulemaking record.

II. Introduction

    This emergency temporary standard (ETS) is issued in accordance 
with section 101(b) of the Federal Mine Safety and Health Act of 1977 
(Mine Act), 30 U.S.C. 811. The ETS establishes or revises standards in 
part 48--Training and retraining of miners; part 50--Notification, 
investigation, reports, and records of accidents, injuries, illnesses, 
employment and coal production in mines; part 75--subpart D--
Ventilation, Sec. Sec.  75.380 and 75.381; Emergency Evacuations Sec.  
75.1502--Mine emergency evacuation and firefighting program of 
instruction, and subpart R--Miscellaneous, Sec.  75.1714--Availability 
of approved self-rescue devices; instruction in use and location.
    In accordance with section 101(b)(3) of the Mine Act, this ETS will 
also serve as the Agency's proposed rule. The preamble discusses 
specific provisions that may be included in the final rule and MSHA 
solicits comments on these provisions.

III. Basis for the Emergency Temporary Standard

A. Regulatory Authority

    Section 101(b) of the Mine Act provides that:
    1. The Secretary shall provide, without regard to the requirements 
of chapter 5, title 5, United States Code, for an emergency temporary 
mandatory health or safety standard to take immediate effect upon 
publication in the Federal Register if [s]he determines (A) that miners 
are exposed to grave danger from exposure to substances or agents 
determined to be toxic or physically harmful, or to other hazards, and 
(B) that such emergency standard is necessary to protect miners from 
such danger.
    2. A temporary mandatory health or safety standard shall be 
effective until superseded by a mandatory standard promulgated in 
accordance with the procedures prescribed in paragraph (3) of this 
subsection.
    3. Upon publication of such standard in the Federal Register, the 
Secretary shall commence a proceeding in accordance with section 
101(a), and the standards as published shall also serve as a proposed 
rule for the proceeding. The Secretary shall promulgate a mandatory 
health or safety standard under this paragraph no later than nine 
months after publication of the emergency temporary standard as 
provided in paragraph (2).
    An ETS is an extraordinary measure provided by the Mine Act to 
enable MSHA ``to react quickly to grave dangers that threaten miners 
before those dangers manifest themselves in serious or fatal injuries 
or illnesses.'' S. Rept. 181, 95th Cong., 1st Sess. 23 (1977). 
Additionally, ``* * * once the Secretary has identified a grave danger 
that threatens miners the Committee expects the Secretary to issue an 
emergency temporary standard as quickly as possible, not necessarily 
waiting until [she] can investigate how well that grave danger is being 
managed or controlled in particular mines.'' Senate Report at 24. An 
ETS takes effect upon publication in the Federal Register, and is a 
fully enforceable standard.
    To assure the comprehensive protection of miners, the ETS authority 
applies to all types of grave dangers without qualification. The 
legislative history of the Mine Act emphasizes that ``to exclude any 
kind of grave danger would contradict the basic purpose of emergency 
temporary standards--protecting miners from grave dangers.'' S. Rept. 
181, 95th Cong., 1st Sess., 24 (1977). The ETS authority thus covers 
dangers arising from exposure to toxic or physically harmful substances 
or agents and to ``other hazards.'' It applies to dangers longstanding 
or novel, to dangers that ``result from conditions whose harmful 
potential has just been discovered'' or to which large numbers of 
miners are ``newly exposed.'' Id.
    A record of fatalities or serious injuries is not necessary before 
an ETS can be issued because ``[d]isasters, fatalities, and 
disabilities are the very thing this provision is designed to 
prevent.'' Id. at 23. At the same time, the legislative history of the 
Mine Act is clear that an ETS is not limited to new dangers in the 
mining industry: ``That a danger has gone unremedied should not be a 
bar to issuing an emergency standard. Indeed, if such is the case the 
need for prompt action is that much more pressing.'' Id. at 24.
    When issuing an ETS, MSHA is ``not required to prove the existence 
of grave danger as a matter of record evidence prior to taking 
action.'' Id. The legislative history expressly recognizes ``the need 
to act quickly where, in the judgment of the Secretary, a grave danger 
to miners exists.'' Id. The ETS is a critical statutory tool that MSHA 
can use to take immediate action to prevent the loss of life in the 
mines. MSHA accordingly has employed an ETS previously to order 
``hands-on'' training for miners in the use of self-contained self-
rescue (SCSR) devices, 52 FR 24373 (June 30, 1987), and to order 
certain training and mine evacuation procedures for underground coal 
mines, 67 FR 76658 (December 12, 2002).

B. Grave Danger

    In response to the recent accidents at the Sago Mine on January 2, 
2006 and the Aracoma Alma No. 1 Mine on January 19, 2006, MSHA has 
determined that new accident notification, safety and training 
standards are necessary to further protect miners when a mine accident 
takes place. First, mine operators must immediately notify MSHA within 
15 minutes after determining that an accident has occurred so that the 
coordination of appropriate mine rescue or other emergency response can 
begin as soon as possible. Such immediate notification will enable help 
to arrive sooner at the mine, and protect miners from the grave dangers 
of physical injury and death. Immediate notification of a mine accident 
to MSHA in emergency situations enables the District Manager to 
activate the District's emergency response plan. Each Coal Mine Safety 
and Health District and Metal/Nonmetal Safety and Health District have 
an emergency response plan which provides for MSHA personnel to perform 
specific tasks, including the contacting of additional mine rescue 
teams if needed, issuing a section 103(k) order at the mine, directing 
MSHA inspectors to the mine site and initiating liaison with MSHA 
headquarters in Arlington, Virginia. Mine operators who do not 
immediately notify MSHA of accidents within the 15 minute time period 
increase the possibility of serious physical injury or death to miners 
because assistance may not arrive quickly enough. If the nature of the

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accident is such that additional mine rescue teams are needed (i.e., to 
conduct rescue or recovery operations in irrespirable air), MSHA can 
help in procuring extra mine rescue teams who can provide assistance at 
the accident site.
    Miners working underground when a mine accident occurs must be able 
to rapidly find lifesaving devices and use those devices to help them 
prevent injury, evacuate the mine quickly, and save their lives. Access 
to these devices and techniques for survival (including storage 
locations of supplemental SCSRs and more frequent training in their 
use, lifelines, and proper training in mine evacuations) is essential 
when a miner is underground and a mine fire, explosion, or other type 
of mine emergency happens. Use of these devices along with proper 
training will help miners quickly and safely escape from an accident 
underground, and will help prevent miners from suffering injury and 
death immediately after the occurrence of a mine accident. The current 
lack of available supplemental SCSRs, the lack of training in deploying 
a supplemental SCSR in irrespirable mine atmospheres, and the lack of 
lifelines in both required underground coal mine escapeways present a 
grave danger to miners when a fire, explosion, or other mine emergency 
occurs.
    Miners who do not have access to additional SCSRs for escape and 
training in their deployment, and who do not have lifelines installed 
in the mine escapeways face a serious risk of physical injury and death 
from the hazards listed below.
    Underground coal mines are dynamic work environments where the 
working conditions change rapidly and sometimes without warning. 
Diligent compliance with safety and health standards and safety 
conscious work habits provide a substantial measure of protection 
against the occurrence of mine accidents and emergencies. While MSHA 
has not yet determined the causes of the Sago and Alma mine accidents, 
in the high hazard environment where coal miners work, the danger of a 
fire, explosion, or gas or water inundation is always present. Methane 
gas or coal dust can be ignited by a spark from electrical equipment, 
resulting in an explosion. Fire can break out on mining equipment, and 
can rapidly spread to surrounding coal deposits. Fire may also start 
due to friction points becoming hot on or near conveyor belt systems 
and rollers underground. Caved or mined out areas which contain coal 
and accumulated gas can be the locations for explosions caused by rock 
falls, and in some instances, fires are started by spontaneous 
combustion. Moreover, when active mines are connected into previously 
mined out areas, there is also the risk of exposure to an oxygen 
deficient atmosphere that can cause asphyxiation. Finally, when mining 
near other mined out areas, there can be a risk of water inundation.
    MSHA standards are designed to prevent these types of hazards from 
developing into catastrophic mine accidents. However, the timing and 
severity of mine accidents are unpredictable. When they occur, 
immediate notification of MSHA by the mine operator and additional 
safeguards installed underground will help miners escape safely. MSHA 
intends that miners not required to respond to a mine emergency should 
seek to evacuate areas where accidents have occurred and leave the mine 
as quickly as possible. This intent is consistent with existing 
paragraph (a) of 30 CFR 75.1502. These provisions require, first, that 
the mine operator have procedures for mine emergency evacuations when 
emergencies present an imminent danger to miners due to fire, 
explosion, or gas or water inundation and, second, that miners not 
required for a mine emergency response must evacuate the mine.
    The Secretary has determined that miners are exposed to grave 
danger when a mine accident occurs and the mine operator does not 
immediately, that is, within 15 minutes, notify MSHA about the 
accident. Delay in notification may slow down the arrival of mine 
rescue assistance and the arrival of MSHA personnel who can provide 
assistance at the mine site. The Secretary has further determined that 
miners are exposed to grave danger when a mine accident occurs and 
miners do not have access to supplemental SCSRs for escape; prior 
training, including drills, in deploying these supplemental SCSRs in 
irrespirable atmospheres; and lifelines to guide miners through the 
designated escapeways to escape from the mine. Without these devices 
and training, miners are exposed to grave danger because they are not 
prepared and equipped to take action to safely escape from the mine.

IV. Discussion of the Emergency Temporary Standard

A. Background

    During the month of January 2006, an explosion at the Sago Mine in 
Tallmansville, West Virginia resulted in 12 fatalities, and a fire at 
the conveyor belt drive at the Aracoma Alma Mine No. 1 in Melville, 
West Virginia resulted in two fatalities for a total of 14 deaths of 
miners. While the MSHA accident investigations are not complete and 
accident reports have not been written, MSHA believes that the 
implementation of this ETS will fill a critical need to improve the 
ability of underground coal miners to evacuate a mine after a mine 
emergency occurs.
    Even though the MSHA accident investigation for the Sago mine is 
not yet complete, it is known that one crew successfully evacuated the 
mine. While the members of the second crew that survived the explosion 
donned SCSRs, they did not successfully evacuate the mine. Similarly, 
at the Alma No. 1 Mine, the MSHA accident investigation is not yet 
complete. While all of the twelve miners affected by the fire donned 
SCSRs, only ten of them successfully escaped. Two of the 12 miners in 
the area of the fire did not successfully evacuate the mine. It is not 
yet known what happened to prevent those two miners from evacuating the 
mine with the others. MSHA believes that the requirements implemented 
under this ETS would have provided the deceased miners with the tools 
and training needed for them to have had a better chance of completing 
a successful evacuation.

B. General Discussion

1. Part 48--Training and Retraining of Miners and Section 75.1502--Mine 
Emergency Evacuation and Firefighting Program of Instruction
a. Introduction
    The best technology, equipment, and emergency supplies are of 
little use if they are misused or not used at all. Emergencies can 
incite disorientation and panic. Quality of judgment in how to proceed 
in a given emergency can be decisive for survival. Training is critical 
for instilling the discipline, confidence, and skill necessary to 
successfully escape and survive an emergency. The ETS enhances existing 
training requirements to help ensure that underground coal miners can 
effectively respond and ``know the drill'' to get out of the mine 
alive.
    This ETS modifies various provisions in Sec. Sec.  48.5, 48.6, 
48.8, 48.11, and 75.1502. These modifications provide a more integrated 
training approach so miners will have the skills to evacuate a mine 
during an emergency. This enhanced training approach requires more 
frequent ``hands-on'' training and actual drills in evacuating the 
mine. In this ETS, MSHA requires that all persons, before entering an 
underground mine, have the skills to don and transfer

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all SCSRs used in that mine. This ETS includes a new provision in 
Sec. Sec.  48.5, 48.6, 48.8, and 48.11 to provide the new miner, newly 
hired experienced miner, and visitors with ``hands-on'' training in the 
transferring of self-rescue devices in addition to the required 
``hands-on'' donning training.
    Once a miner starts working in a mine, this ETS requires that the 
actual ``hands-on'' training for donning and transferring of self-
rescue devices becomes part of the actual evacuation drill required in 
Sec.  75.1502. Because miners will now receive ``hands-on'' SCSR 
training at least four times a year as part of the evacuation drill 
required under Sec.  75.1502, they will not be required to receive 
``hands-on'' training as part of their annual refresher training under 
part 48. Also, included in these evacuation drills is the training in 
the location and use of directional lifelines or equivalent devices, 
mine emergency scenarios, and stored SCSRs. This ETS requires the mine 
operator to have the miners walk the escapeways and to physically 
locate the lifelines and stored SCSRs instead of permitting a 
simulation drill. Further, the ETS permits the mine emergency 
evacuation drills in Sec.  75.1502 to satisfy the evacuation practice 
drill requirements in Sec.  75.383.
    Various provisions of Sec. Sec.  48.5--Training of new miners; 
minimum courses of instruction; hours of instruction; 48.6--Experienced 
miner training; 48.8--Annual refresher training of miners; minimum 
courses of instruction; hours of instruction; and 48.11--Hazard 
training are affected by this ETS.
    Since 1980, each miner working in an underground coal mine has been 
required to have access to an SCSR that provides at least one hour of 
oxygen for escape from the mine during an emergency. If an emergency 
arises, many miners may have to escape through long and difficult 
underground travelways containing irrespirable air.
    MSHA has identified problems related to skill degradation in the 
use of SCSRs in mine emergencies (described below in the discussion of 
research and studies). This ETS reflects the Agency's belief that more 
frequent SCSR training is necessary. There is support in the mining 
community for more frequent training to improve the miner's ability to 
properly don the devices and retain these vital skills for longer 
periods of time.
    For instance, MSHA sponsored a Mine Emergency Preparedness 
Conference in January 1995 to provide a forum for members of the mining 
community to share their insights and to help shape the future of mine 
emergency preparedness. Representatives from two major labor unions 
expressed some doubt that, given the existing levels of training, 
miners were prepared to escape with the use of SCSRs and that they were 
already familiar with escape routes. One of the recommendations for 
further action was that SCSR proficiency could be increased by 
integrating SCSR training with evacuation and fire drills.
    To minimize problems and enhance a coal miner's skill in handling 
emergency situations, this ETS includes additional training 
requirements. The new requirements increase the frequency of SCSR 
training from annually to within every 90 days and include hands-on 
training in the donning, use, and transfer of self-rescue devices as 
part of the regular mine emergency drills. These drills also will 
consist of locating the continuous directional lifelines or equivalent 
devices and stored SCSRs. Finally, the ETS will allow a mine operator 
to use the drills required under new paragraph 75.1502(c) to comply 
with the requirements for drills specified in existing Sec.  75.383. In 
addition, the ETS permits the mine emergency evacuation drills in Sec.  
75.1502 to satisfy evacuation practice drill requirements in Sec.  
75.383.
b. Research and Studies
    MSHA has identified a number of research studies that support this 
ETS. In 1990, researchers from the U.S. Bureau of Mines (now the Office 
of Mine Safety and Health Research, National Institute for Occupational 
Safety and Health (NIOSH)) and the University of Kentucky concluded a 
series of studies related to SCSR donning proficiency and use in an 
emergency. They looked at ``the procedures taught during the training, 
the use of any training models; the opportunity to practice donning and 
using the respirator; and on-the-job training.'' The researchers 
dismissed the notion that SCSRs were simple to don. They concluded that 
``companies should adopt a hands-on training protocol that allows them 
to integrate SCSR donning practice into other workplace routines such 
as fire [drills]'' (U.S. Bureau of Mines, 1993).
    Another U.S. Bureau of Mines study reported that a computer 
simulation showed that relative survival odds for different mines can 
vary by as much as 30 percent and that this difference is due to SCSR 
donning proficiency (Kovac, Vaught, and Brnich, 1990).
    MSHA recognizes that with any ``nonroutine'' task, such as donning 
and transferring of self-rescue devices, knowledge and skill diminish 
rapidly. The U.S. Bureau of Mines, in a review of literature related to 
motor skill degradation (1993 BOM Bulletin 695), found that researchers 
are aware of this problem.
    After conducting the series of studies on donning proficiency, the 
U.S. Bureau of Mines and University of Kentucky researchers also 
concluded in 1993 that a better training system for donning SCSRs was 
needed (Vaught, et al., 1993). The ``3+3 donning'' method improved 
donning proficiency, but did not eliminate the problem of skill 
degradation. In a field test for this donning method, almost all of the 
persons who went through the program were able to successfully complete 
the donning procedures. The ``3+3 donning'' method is a method of 
learning how to properly don an SCSR and was developed by MSHA and 
NIOSH. The first ``3'' steps of the method specifically train the user 
to begin the donning routine by concentrating on the breathing zone. 
Those steps include activating the oxygen supply, inserting the 
mouthpiece and affixing the noseclips. The second ``3'' steps involve 
adjustments to the unit's goggles and neck strap, and the miner's 
hardhat.
    These studies further determined the effectiveness of the ``3+3'' 
donning procedures and support a need for more frequent training, such 
as every 90 days. In this study, 88 miners were trained in the ``3+3'' 
method until they could proficiently don the SCSR. A week after 
receiving the training, 32 of these miners were randomly selected to 
test their SCSR donning skills. In this test, most of the miners could 
still put on an SCSR proficiently. After 90 days, another sample group 
was chosen for testing. In 90 days the proficiency rate dropped from 80 
percent to about 30 percent.
    The U.S. Department of Labor Office of Inspector General (OIG) 
recommended that MSHA review the frequency and type of training 
required to ensure that miners will be able to effectively use SCSRs in 
an emergency (OIG, 1999).
    Based on skills degradation research supporting additional self-
rescue device training, the recommendation of the Inspector General, 
and past experience where improved training might have made a 
difference in an escape, MSHA is increasing the frequency of training 
on SCSRs to within every 90 days. The more frequent training, by 
reinforcing skills, should substantially reduce motor-skill 
degradation.
    NIOSH has recently provided a guidance document, Informational

[[Page 12256]]

Circular 9481 (Fire Response Preparedness for Underground Mines) to the 
mining industry identifying training techniques that increase skill 
levels of miners to deal with underground mine fires. An important 
element in developing skills necessary to react to emergencies is 
``hands-on'' training (NIOSH, 2005). This report further identified 
fire drills required at 90-day intervals as an important part of the 
mine emergency plan that helps promote confidence in miners by showing 
them how to handle an emergency situation. Another benefit of the 
drills the report identified is a test of how effective the mine 
emergency plan works.
c. Mine Emergency Incidents
    In addition to the research, several past incidents have 
highlighted problems with self-rescue device training in mine 
emergencies that support the need for an integrated training approach 
for emergencies. A particularly noteworthy example occurred in 1984 
when 27 miners lost their lives in a fire at the Wilberg mine in 
Orangeville, Utah. The final MSHA accident investigation report states 
that, ``No apparent attempt was made by the miners in 5th right panel 
to obtain a SCSR after the first notification of the fire and prior to 
smoke arriving on the section.'' Also, after retrieving their SCSR 
devices, some of the miners carried them for a distance before donning 
them. Had the miners immediately gone to the stored SCSRs when notified 
of the fire and donned the SCSRs, they would have greatly increased 
their ability to escape from the fire and exit the mine.
    The MSHA investigators reviewed each miner's activities after they 
were warned of the fire. The report found ``the actions of the victims 
in obtaining and using self-rescue devices indicate many were not 
sufficiently instructed to be considered adequately trained in the use 
of the self-rescue devices.'' Each of the 27 miners had an FSR (filter 
self-rescuer). Four miners wearing FSRs walked past stored SCSRs in 
their attempt to escape. They died from lack of oxygen. Three other 
miners attempted escape with only an FSR and were overcome by carbon 
monoxide. Six miners first attempted to use their FSRs and then 
switched to their SCSRs. Four apparently died due to improper donning, 
removing the mouthpiece, or switching from the FSR to the SCSR. One 
miner used three SCSRs and almost made it to fresh air; however, he 
removed his SCSR prematurely. The rest of the deceased miners had not 
attempted to use either the FSRs or SCSRs (Huntley, et al., 1984). MSHA 
believes that better training, along with a better location of stored 
SCSRs could have resulted in a different outcome. Improper training of 
donning and transferring from one device to another, as well as the use 
of FSRs in such an environment, contributed to the severity of the 
disaster.
    Based on the findings at Wilberg, MSHA issued an ETS in June 1987. 
The 1987 ETS required that all training in the use of SCSRs include 
complete donning procedures. This training was required for any person 
going underground for the first time and as part of regularly scheduled 
annual refresher training required by part 48.
    In another incident, during the escape from a fire at the Mathies 
Mine in 1990, seven out of 18 miners removed their SCSR mouthpieces in 
order to talk or get more comfortable during the escape. Only seven 
miners donned their SCSRs at the first sign of smoke. One miner took 
his nose clip off during the escape. Another miner claimed that he 
could not get enough oxygen from his SCSR (Kovac, Kravitz, et al., 
1991). If any of these persons had encountered a toxic atmosphere at 
the point when they removed their protection, they might have died.
    Also, in November 1998, during the escape from the Willow Creek 
Mine Fire, the two miners that used SCSRs had difficulty starting the 
oxygen flow of their devices and removed the mouthpieces prior to 
reaching the main fresh airway. If the carbon monoxide in the mine 
atmosphere had been higher, the miners that removed their mouthpieces 
would likely have died. In situations where miners remove the 
mouthpiece prematurely, additional training will increase knowledge for 
continuing to use the self-rescue device until escaping into fresh air 
(Kravitz, 1991).
    The recent Sago and Alma Mine accidents convince MSHA that the 
general situation in underground coal mines is such that additional 
training must be immediately instituted. In any mine accident, if the 
miners wait to see or smell smoke before donning their SCSRs it may be 
too late. In the Sago accident, still under investigation, a miner or 
miners may not have donned an SCSR because, in the absence of smoke, 
they may have believed the air was safe to breathe. Training must 
successfully convey not only how, but also when self-rescue devices 
must be used in emergency situations. Also, the Sago tragedy points to 
the necessity of increased availability of SCSRs so that miners can 
survive in toxic air for more than one hour. As self-rescue devices are 
usually good for one hour, this means that miners must have the skill 
to transfer from one self-rescue device to another.
    Based on incidents during these recent mine emergencies and MSHA's 
experience with other self-rescue device training related problems, 
additional training in donning, using, and transferring self-rescue 
devices is needed to protect miners. MSHA believes that more frequent 
training in donning and using self-rescue devices is needed to 
adequately protect miners. The new and expanded training requirements 
in this ETS increase the donning frequency and emphasize the proper use 
of SCSRs.
    The ETS also enhances the requirements for evacuation drills by 
requiring these drills not be simulations, but must involve physically 
traveling from the working section, or the miner's work station, to the 
surface or the exits at the bottom of the shaft or slope. These drills 
include miners donning and transferring self-rescue devices. MSHA 
requests comment about whether miners should be required to walk the 
escapeway rather than use mechanized transportation during the drills. 
The drills are to take place at intervals of not more than 90 days. 
This more frequent retraining represents a distinct improvement over 
current requirements for annual training.
2. Immediate Notification
    This ETS modifies Sec.  50.10--Immediate notification. Existing 
Sec.  50.10 requires that, if an accident (as defined in paragraph (h) 
of Sec.  50.2) occurs, the operator must immediately contact MSHA. 
While the basic notification requirement in existing Sec.  50.10 is 
straightforward, precisely what constitutes ``immediately contact'' is 
not addressed. The Federal Mine Safety and Health Review Commission 
(Commission) has observed that ``immediately'' is a term of common 
usage but that the application of the current requirement must be 
evaluated on a case-by-case basis. The ETS defines ``immediately'' to 
mean at once without delay and within 15 minutes.
    MSHA was not notified of the Sago Mine accident until approximately 
two hours after the occurrence of the accident. While that delay is 
under investigation and it is unclear whether the delay played any role 
in the fatalities due to the high levels of methane and carbon monoxide 
which prevented immediate entry by rescuers, the lack of timely 
notification of an accident can play a lethal role resulting in grave 
consequences for miners caught underground in a mine emergency. In

[[Page 12257]]

light of the Sago accident, MSHA reviewed the violation and case 
history for Sec.  50.10. There have been a number of cases where 
operators failed to immediately contact MSHA, were cited and ordered to 
pay a penalty after contesting the citations before the Commission.
    Operator notification to MSHA in the event of a mine accident is 
vital to enable the Agency to effectively respond in emergency or 
potentially life threatening situations. Notification alerts the Agency 
so that accident investigations and assistance to trapped or injured 
miners can be initiated. MSHA is particularly concerned that failure to 
immediately notify the Agency of mine emergencies can cost lives by 
delaying rescue services. In defining ``immediately,'' the ETS 
emphasizes the urgency of notification and makes it clear to mine 
operators what is expected of them.
3. Escapeways in Underground Coal Mines
    MSHA has included new provisions, new paragraph (d)(7) under Sec.  
75.380 and new paragraph (c)(5) under Sec.  75.381, that require the 
use of directional lifelines in both the primary and alternate 
escapeways. MSHA believes that this new rule provides greater 
protection than any existing state requirements. A directional lifeline 
is most likely a rope made of durable material, though it could also be 
an equivalent device, such as a pipe or handrail; marked with a 
reflective material every 25 feet; located in such a manner for miners 
to use effectively to escape; and have directional indicators, 
signifying the route of escape, placed at intervals not exceeding 100 
feet. The 1994 Final Report of the Department of Labor's Advisory 
Committee on the Use of Air in the Belt Entry to Ventilate the 
Production (Face) Areas of Underground Coal Mines and Related 
Provisions (Advisory Committee) recommended the installation and 
maintenance of lifelines in all underground coal mines, whether belt 
air was in use at the mine or not.
    The Advisory Committee recommendation specified that lifelines had 
to clearly designate the route of escape. Discussion in the Advisory 
Committee's report suggested the use of directional cones to increase 
the effectiveness of lifelines. MSHA solicited information from the 
public concerning the use and maintainability of lifelines in the belt 
air proposed rule (64 FR 17480). Many commenters, including NIOSH, 
commented that lifelines can improve the likelihood of escape from mine 
fires and suggested that MSHA consider an additional requirement for 
the installation of lifelines in all escapeways, not just alternate 
escapeways in return air courses at mines using belt air. These 
commenters maintained that, due to the lack of visibility, lifelines 
were necessary to escape a smoke-filled atmosphere.
    Overall, the commenters to the belt air rule stated that lifelines 
could be useful in helping miners escape to the surface of the mine 
when smoke-filled atmospheres are present. After further review of the 
petitions for modifications previously granted to allow the use of belt 
air, reviewing the comments on lifelines, and researching state 
regulations regarding lifelines, MSHA agreed with the commenters that 
lifelines can aid in escape during emergency situations, especially in 
instances of reduced visibility due to smoke. In heavy smoke, a miner 
can easily become disoriented and cannot determine the proper direction 
for escape. A directional lifeline gives the miner added safety by 
directing the miner through the smoke-filled entries to safety. As a 
result of the ``belt air'' rulemaking, the Agency included paragraph 
(n) of Sec.  75.380 and required the use of lifelines in alternate 
escapeways located in return air courses in mines using belt air (69 FR 
17480).
    Three states, Kentucky, West Virginia, and Virginia have required 
lifelines in underground coal mines (Ky.Rev.Stat.Ann. Sec.  352.135; 
W.Va. Code Sec.  22A-2-60, paragraph (b); Va. Code Sec.  45.1-161.166, 
paragraph (b)) for many years. These state statutes require the use of 
directional durable lifeline cords; either in the primary or alternate 
escapeway.
4. The Need for Additional Self-Contained Self Rescuers
    MSHA has included new Sec.  75.1714-4 requiring the mine operator 
to provide at least one additional self-contained self rescuer 
(``SCSR'') that provides protection for a period of 1 hour or longer to 
cover the maximum number of persons in an underground coal mine. Since 
1980, each person working in an underground coal mine has been required 
to have immediate access to an SCSR. SCSRs are devices which aid in the 
escape from mine fires, explosions, and other incidents where an 
irrespirable mine atmosphere is present. An SCSR is a closed-circuit 
breathing device that contains an independent supply of oxygen. Because 
SCSRs function in a closed circuit, they enable persons to breathe 
clean air in the presence of hazardous or life-threatening contaminants 
in the mine atmosphere.
    Contaminated air in underground coal mines is usually the result of 
an explosion or mine fire which is an ever-present threat in that 
inherently dangerous environment. For example, in January 2006, the 
explosion at the Sago Mine and the mine fire at the Aracoma Alma No. 1 
Mine filled the atmosphere at both mines with smoke and other 
contaminants. In addition to smoke, the contaminated air at both of 
these mines contained carbon monoxide, methane, carbon dioxide, and 
other products of combustion. This contaminated air may have also 
contained chlorine; hydrogen cyanide; isocyanates; oxides of nitrogen; 
and sulfur. Such contaminants are more complex and potentially more 
harmful than the ordinary combustion products of coal fires. The 
contaminants are the result of a wide variety of materials that are 
usually present in the mine, such as rubber conveyor belts, plastics, 
polyurethane, insulation, combustible liquids including hydraulic fuels 
and lubricants, and cable coverings. Depending on the nature of the 
material exposed to the fire or heat, very complex and toxic 
decomposition products can result. The combination of contaminants can 
be more hazardous than the individual contaminants alone.
    MSHA's records show that 56 underground coal mine fires, with a 
duration greater than 30 minutes, and five explosions have been 
reported to MSHA during the ten-year period from February 1, 1996 to 
February 1, 2006. During that same period explosions resulted in the 
deaths of 31 coal miners, and fires resulted in two deaths. Although 
mine fires that last less than 30 minutes do not have to be reported to 
MSHA, the Agency has anecdotal reports that such fires commonly occur. 
Mine fires, ignitions, and explosions, regardless of duration, can 
present a grave potential hazard to underground coal miners due to the 
thick smoke, toxic atmosphere, and limited visibility that often 
results from these events.
    In addition to reportable coal mine fires, operators have reported 
numerous unplanned ignitions of methane. During the ten-year period 
from February 1, 1996 to February 1, 2006, the coal mining industry 
reported approximately 650 ignitions. Each of these ignitions had the 
potential to result in a mine fire or explosion which would release 
hazardous or life threatening contaminants into the mine atmosphere.
    Potentially explosive methane is naturally present in underground 
coal mines and can ignite when an ignition source is present. 
Combustible dusts, including material brought into a mine,

[[Page 12258]]

can smolder and eventually catch fire when near a source of heat. There 
are numerous ignition sources present underground. For example, belt 
lines, trolley wires, roof falls, diesel powered equipment, battery 
operated equipment, charging stations, and other forms of electrical 
equipment are prevalent underground and can be the source of an 
ignition. In addition, coal can undergo spontaneous combustion and 
burn.
    In 1998, MSHA inspectors conducted a self-rescue device survey at 
each underground coal mine to determine the type and quantity of self-
rescue device protection used in the coal mining industry. As part of 
this survey, the inspectors collected information about escape 
conditions, such as the height of the escapeways and the distance from 
the working sections to the surface or designated safe location. Based 
on the mine height and distance data obtained from this survey, MSHA 
concluded that there were approximately 234 coal mines where it would 
take miners more than one hour to reach the surface. In addition, in 76 
of the 234 coal mines, miners would require more than two hours of 
travel time to reach the surface. Existing Sec.  75.1714 only requires 
that each miner and visitor to an underground coal mine be supplied 
with one SCSR that is adequate to provide protection from contaminated 
air for one hour or longer. The results of MSHA's 1998 survey show that 
there is a need to have SCSR devices, in addition to the single SCSR 
device required by existing Sec.  75.1714, stored in the mine so that 
all miners would have an air supply sufficient to safely exit the mine 
in the event of an accident or emergency.
    While some miners were able to successfully don and escape the mine 
using their SCSR after the explosion at the Sago Mine and the mine fire 
at the Aracoma Alma No. 1, other miners equipped with only one SCSR did 
not safely evacuate the mines, which were filled with thick, smoky, 
contaminated air. An explosion or mine fire creates a thick, smoke-
filled atmosphere in the mine which hampers a miner's ability to 
quickly evacuate because miners may panic or become disoriented. If an 
accident occurs or an emergency arises, such as the recent Sago mine 
explosion or the Alma No. 1 Mine fire, miners may have to escape 
through long and difficult underground travelways containing 
irrespirable air. During an accident or emergency requiring evacuation 
through a hazardous environment, SCSRs are the last line of defense for 
any miner in the mine. If an adequate number of SCSRs is not readily 
available, the chance of survival during an emergency or accident is 
greatly diminished.
    To further assist all miners to evacuate the mine safely, in 
addition to the SCSR that is now required by the existing standards, 
this new section requires the mine operator to provide at least one 
additional SCSR for each person who is underground. The additional SCSR 
will provide protection for a period of one hour or longer to cover the 
maximum number of miners in the mine. Thus, each miner or person 
underground will have the SCSR that is traditionally carried with him 
or her and an additional SCSR device readily accessible. The 
requirement for additional SCSRs will greatly enhance the ability of 
all miners to safely exit from the mine in an accident or emergency. 
Further, all miners not required to respond to the mine emergency will 
be encouraged to evacuate knowing that an additional supply of oxygen 
is available. This result is consistent with MSHA's intent that miners 
not needed to respond to the mine emergency, evacuate the mine as 
quickly as possible. For those mines where the one required SCSR plus 
one additional required SCSR are not adequate to provide enough oxygen 
to all persons for a safe evacuation, the mine operator will provide 
additional SCSRs in the primary and alternate escapeways under an 
``outby SCSR storage plan.''
5. Timeframe for Implementation
    This ETS is effective immediately. However, various new provisions 
will require that the mine operator develop new plans or purchase new 
equipment. This section of the preamble explains the implementation of 
this ETS.
    A new paragraph (p) is added to Sec.  48.3 requiring the mine 
operator to submit a revised training plan under part 48 to the 
appropriate District Manager for approval no later than April 10, 2006. 
The operator must train in accordance with the revised training plan 
within 2 weeks of plan approval. This provision is consistent with the 
new paragraph 75.1502(d) requiring a revised program of instruction.
    The underground coal operator must submit to the District Manager 
for approval a revised training plan for part 48 and a revised program 
of instruction for Sec.  75.1502 to incorporate the ETS-required 
changes by April 10, 2006. Although equipment required by paragraphs 
75.380(d)(7) and 75.381(c)(5), and Sec.  75.1714-4, may not be 
available immediately, any new or revised training plan and program 
must address training for this equipment.
    MSHA will accept as good faith evidence of compliance, purchase 
orders or contracts to buy lifelines or SCSRs. MSHA will work with 
lifeline and SCSR manufacturers to facilitate implementation of these 
ETS requirements and encourage manufacturers to provide realistic 
delivery dates. MSHA expects that mine operators will have purchase 
orders or contracts completed within 30 days of the effective date of 
this ETS. Installation of such equipment must be completed as soon as 
possible after delivery.
    No later than 2 weeks after receiving approval for the part 48 
training plan modification, the operator must train in accordance with 
the newly revised plan.
    The ETS adds new paragraph (d) to Sec.  75.1502 to require each 
underground coal operator, subject to the Emergency Temporary Standard 
effective March 9, 2006, to submit for approval a revised program of 
instruction to the appropriate District Manager no later than April 10, 
2006. Within 2 weeks of program approval the operator must train in 
accordance with the revised program. This change is consistent with the 
requirement for submitting a revised plan under new paragraph (p) of 
Sec.  48.3.
    MSHA acknowledges that there may be a delay in the ability of mine 
operators to train miners on transferring from one SCSR to another SCSR 
since SCSR training units may not be available. Otherwise, MSHA expects 
mine operators to comply with all of the training requirements. For 
instance, SCSR donning can be included with the mine emergency drills 
and the drills themselves can include traveling the primary or 
alternate escapeway, from the working section or the miner's work 
station, to the surface or the exits at the bottom of the shaft or 
slope. Also, miners can be taught the correct actions to take based on 
different mine emergency scenarios which would require the miner to 
immediately don a self-rescue device.

C. Section-by-Section Discussion

1. Part 48--Training and Retraining of Miners
    The ETS makes a number of non-substantive organizational changes to 
clarify existing provisions or to accommodate new or moved provisions. 
These non-substantive changes retain the substantive requirements in 
existing standards. Non-substantive changes to 30 CFR part 48 include:
    Organizational changes to existing paragraphs 48.5(b)(2), 
48.6(b)(12), 48.8(b)(8), and 48.11(a)(4) by adding a separate listing 
for training in donning

[[Page 12259]]

(paragraph i) and new training in transferring self-rescue devices 
(paragraph ii).
    Adding the term ``hands-on'' to the detailed description of Self-
Rescue and Respiratory Devices training in existing Sec. Sec.  48.5, 
48.6, and 48.11, and paragraph 48.8(b)(8). This further clarifies the 
SCSR training requirements and is consistent with the new provision on 
transferring from self-rescue device to self-rescue device.
a. Section 48.3--Training Plans; Time of Submission; Where Filed; 
Information Required; Time for Approval; Method for Disapproval; 
Commencement of Training; Approval of Instructors
    A conforming change is made to existing paragraph (a) to include 
the exception of the new paragraph (p). The language now reads, 
``[e]xcept as provided in paragraphs (o) and (p) of this section, each 
operator of an underground mine shall have an MSHA approved plan 
containing programs for training new miners, training experienced 
miners, training miners for new tasks, annual refresher training, and 
hazard training for miners as follows:''.
    A new paragraph (p) is added to this section requiring the mine 
operator to submit a revised training plan under this part 48. This 
revised plan shall be submitted to the appropriate District Manager for 
approval no later than April 10, 2006. Within 2 weeks of plan approval, 
the operator must train miners in the new training plan requirements. 
This provision is consistent with the new provision for a revised 
program of instruction for paragraph 75.1502(d) with a revised training 
plan.
b. Section 48.5--Training of New Miners; Minimum Courses of 
Instruction; Hours of Instruction and Section 48.6--Experienced Miner 
Training
    This ETS makes identical changes to Sec.  48.5--Training of new 
miners; minimum courses of instruction; hours of instruction, and Sec.  
48.6--Experienced miner training. These changes are necessary to 
conform and align the training requirements in 30 CFR part 48 with the 
emergency evacuation and related requirements being added to 30 CFR 
part 75. These regulatory changes do not reduce protection for miners.
    1. Self-Rescue and Respiratory Devices: Paragraphs 48.5(b)(2) and 
48.6(b)(12).
    Specifically, MSHA is amending paragraphs 48.5(b)(2) and 
48.6(b)(12) by including language that the complete donning of self-
rescue devices must include a requirement for actual ``hands-on'' 
practice in transferring from self-rescue device to self-rescue device. 
This change parallels changes in 30 CFR part 75 requiring all persons 
in an underground coal mine to have at least one additional self-rescue 
device available for escape during a mine emergency. It also ensures 
that new or newly employed experienced coal miners have the skill to 
not only use a self-rescue device, but also to transfer from self-
rescue device to self-rescue device, before they begin work 
underground. They may need this skill if a mine emergency occurs before 
they are able to participate in a mine emergency evacuation drill. This 
added requirement enhances protection for miners. This training is 
critical and it is important that the training models used for the 
donning and transferring exercises are the same type(s) and model(s) of 
self-rescue devices in use at that mine.
    2. Mine map; escapeways; emergency evacuation; barricading: 
Paragraphs 48.5(b)(5) and 48.6(b)(5). 
    This ETS also amends paragraphs 48.5(b)(5) and 48.6(b)(5) by adding 
a reference to the requirements for emergency evacuation plans in 
existing paragraph 75.1502(a) for underground coal mines and Sec.  
57.11053 for underground metal and nonmetal mines. The existing 
requirements for the initial training of miners requires a review of 
the mine map, escapeway systems, and the mine emergency evacuation 
plans in effect at the mine. Referencing the appropriate standards 
allows MSHA to incorporate the added and expanded ETS requirements in 
existing paragraph 75.1502(a), including scenarios and actual practice, 
into the initial training of coal miners without affecting the training 
program for metal and nonmetal miners. This added requirement improves 
protection for miners by requiring scenarios to be developed and used 
in the actual quarterly drills. This will give miners better 
information to prepare them to successfully evacuate the mine. The 
requirements in this ETS only apply to underground coal mines because 
only underground coal mines are required to provide all persons with 
SCSR devices.
    3. Participation in evacuation drills: New paragraphs 48.5(e) and 
48.6(f).
    This ETS also amends Sec.  48.5 and Sec.  48.6 by adding new 
identical paragraphs 48.5(e) and 48.6(f) requiring new or newly 
employed experienced coal miners to participate in the next drill as 
required in existing paragraph 75.383(b) or newly amended paragraph 
75.1502(c), whichever occurs first. This will ensure that newly hired 
miners will be included in the next drill at the mine. MSHA believes 
that regular and frequent participation in the emergency evacuation 
drills will reinforce the miners' knowledge and skill for responding 
appropriately to a mine emergency and lessen the disorientation and 
panic that may cause the miner to make wrong decisions.
    MSHA chooses to require the new or experienced underground coal 
miner's participation in the evacuation drills under the requirements 
in 30 CFR part 75 rather than as part of the initial training under 30 
CFR part 48. Initial miner training is reinforced by the experience of 
traveling the escapeways to the surface or bottom of a shaft or slope, 
and physically locating directional lifelines or equivalent devices and 
stored SCSRs. This added requirement increases protection for miners 
because the frequency of drills is increased from one time per year 
under this part to four times per year under Sec.  75.1502 and ensures 
that miners receive training at the next underground drill.
c. Section 48.8--Annual Refresher Training of Miners; Minimum Courses 
of Instruction; Hours of Instruction
    Underground coal miners will receive refresher training on their 
SCSR skills at least every 90 days because this ETS adds the 
requirement for ``hands-on'' SCSR training during the drills required 
by Sec.  75.1502. For this reason, the requirement for training in 
donning self-rescue devices under existing paragraph 48.8(b)(8) is 
being modified to included transferring from one self-rescue device to 
another device for underground coal miners. New language in this 
section allows underground coal miners to satisfy the requirements of 
new paragraphs 48.8(b)(8)(i) and (ii) by participating in the emergency 
evacuation drills required by Sec.  75.1502. This added requirement 
enhances protection for miners because it increases the frequency of 
training.
d. Section 48.11--Hazard Training
    This ETS adds a new requirement for ``hands-on'' training in 
transferring from self-rescue device to self-rescue device to the 
existing requirement for donning a self-rescue device in paragraph 
(a)(4) of existing Sec.  48.11. It also identifies the donning 
requirement as paragraph (a)(4)(i) and the transfer requirement as 
paragraph (a)(4)(ii). This additional requirement reinforces MSHA's 
belief that all miners and visitors need to know how to transfer from 
one self-rescue device to another. This added requirement enhances 
protection for miners or visitors. The ETS does not change the existing 
requirement that all

[[Page 12260]]

miners and visitors receive training in the donning of all types of 
SCSRs.
2. Part 50--Notification, Investigation, Reports, and Records of 
Accidents, Injuries, Illnesses, Employment, and Coal Production in 
Mines
Section 50.10--Immediate Notification
    The ETS incorporates a definitive standard into Sec.  50.10 of what 
is meant by ``immediately contact.'' The ETS provides that the contact 
is to be done ``at once without delay.'' These terms reflect the 
ordinary meaning of ``immediately'' and are taken from definitions 
found in Webster's Third New International Dictionary (Unabridged)(1986 
ed.) and the Random House Dictionary of the English Language 
(Unabridged)(2d ed. 1987). In discussing the meaning of 
``immediately,'' the Commission has cited these dictionary sources. 
See, e.g., Consolidation Coal Co., 11 FMSHRC 14 1935 at 1938 (October 
31, 1989). The ETS further specifies that the notification must be done 
``within 15 minutes.'' This sets a maximum time within which the 
contact must be made. MSHA believes that 15 minutes is a reasonable 
time to access a telephone or other means of communication and place a 
contact call to the Agency. Fifteen minutes or a quarter of an hour is 
a concept that is easily remembered even in times of stress. To comply 
with the ETS then, an operator must act right away as circumstances 
permit and such action must take place within 15 minutes.
    The 15 minute time period begins when the mine operator determines 
that an accident has occurred. MSHA is aware, however, that there are 
occasions, especially immediately after an explosion or fire, when mine 
communications may be lost and it may take some time to re-establish 
contact and communicate that an accident has occurred. The ETS 
recognizes that such circumstances may occur by providing that when 
communications are lost due to emergency or other unexpected event, the 
operator must notify MSHA at once without delay and within 15 minutes 
of having access to a telephone or other means of communication. It is 
expected that the operator will be diligent in attaining access to a 
telephone or other communication means under such circumstances.
    Under the MSHA system for receiving notification, a call to the 
MSHA district office having jurisdiction over the mine may be forwarded 
to an answering service that gives the mine operator other numbers to 
call to personally reach district officials. Once an official is 
reached, the agency is notified. Alternatively, the MSHA Headquarters 
800 toll-free line has a 24 hour, 7 day per week answering protocol so 
that once the call is placed, the agency is notified.
    MSHA reviewed contest cases concerning Sec.  50.10, and the 
Agency's enforcement experience, to determine why some mine operators 
may not immediately notify the Agency. One reason is that the 
notification is made only after being processed through a chain of 
command at the mine. Another reason is a tendency to try to take care 
of an incident before it becomes a reportable accident. Yet another 
reason may be grounded in the very human propensity to focus 
exclusively on evacuation and mine emergency response in the wake of a 
mine emergency. Taking too much time to determine whether, in fact, an 
accident occurred which would trigger notification to MSHA, is another 
reason. Yet another reason is ignorance of the law. The ETS is intended 
to impress upon mine operators that notification is urgent and must be 
made a priority. Therefore, the ETS enhances protection to miners, and 
certainly does not reduce that protection.
    The ETS does not change the basic interpretation of Sec.  50.10. By 
the terms of the provision, an operator is required to notify MSHA only 
after determining whether an ``accident'' as defined in existing 
paragraph 50.2(h) has occurred. This affords operators a reasonable 
opportunity to investigate an event prior to notifying MSHA. That is, 
mine operators may make reasonable investigative efforts to 
expeditiously reach a determination. In that way an operator is 
responsible for immediately notifying MSHA about those accidents that 
the operator knows or should know about. Thus Sec.  50.10, in the words 
of the Commission, ``[s]hould be carried out in good faith and without 
delay, and in light of the regulation's command of prompt, vigorous 
action.'' It is important that notification be sufficient so that the 
Agency is actually put on notice as to what happened. MSHA invites 
comment on whether Sec.  50.10 should be further amended to require 
that the notification specify the type of accident per existing 
paragraph 50.2(h) and pertinent details.
    As discussed above, immediate notification hinges on the occurrence 
of an ``accident.'' Existing paragraph (h)(6) of Sec.  50.2 defines 
``accident'' to include ``an unplanned mine fire not extinguished 
within 30 minutes of discovery.'' MSHA believes there are situations in 
the mines that involve more than one fire or a smoldering condition at 
a particular place. Each episode of flame or smolder may have been 
extinguished within 30 minutes.
    The Agency is concerned that such events may represent a serious or 
potentially serious hazard, and should be reported as an ``accident'' 
and subject to the immediate notification requirement of Sec.  50.10. 
It was reported in the press that there had been a fire previously at 
the same spot along the beltline at the Aracoma Alma No. 1 Mine and 
that the belt had been ``running hot for days'' before the fire that 
caused the fatalities on January 23, 2006. MSHA is considering revising 
the definition under existing paragraph (h)(6) of Sec.  50.2 in the 
final rule after considering comments submitted about this definition. 
MSHA invites comments on whether a revision, for example, should cover 
all unplanned underground mine fires, or all unplanned underground 
fires of particular types, duration or occurrences at particular 
locales. MSHA solicits comments on whether and how the definition of 
``accident'' in paragraph 50.2(h)(6) should be revised to accurately 
take into account the fire hazards that miners face.
3. Part 75--Mandatory Safety Standards--Underground Coal Mines
a. Section 75.350--Belt Air Course Ventilation
    A conforming change is made to existing paragraph (b) of Sec.  
75.350 by removing paragraph (b)(7) since existing paragraph 75.380(n) 
is also being removed. This change enhances safety protection for 
miners since lifelines will now be required not only in the return 
entries when used as alternate escapeways; but in all primary and 
alternate escapeways.
b. Section 75.380--Escapeways, Bituminous and Lignite Mines and Section 
75.381--Escapeways; Anthracite Mines
    The ETS includes new provisions, paragraph (d)(7) of Sec.  75.380 
and paragraph (c)(5) of Sec.  75.381, that require the use of 
directional lifelines in both the primary and alternate escapeways for 
underground bituminous, lignite, and anthracite coal mines. These 
lifelines will clearly designate the escape route that miners should 
take to evacuate the mine quickly when an accident occurs. These 
requirements replace existing paragraph 75.380(n) (which is removed for 
bituminous and lignite mines) and include a new requirement under Sec.  
75.381 for anthracite mines. Removed paragraph 75.380(n) only applied 
to alternate

[[Page 12261]]

escapeways located in return air courses in mines using belt air under 
the ``belt air rule'' (69 FR 17480). This ETS enhances protection to 
miners because it broadens the requirements for lifelines to both the 
primary and alternate escapeways in every underground coal mine.
    New paragraphs 75.380(d)(7) and 75.381(c)(5) require that each 
escapeway be provided with a continuous directional lifeline or 
equivalent device and further require that it be installed and 
maintained throughout the entire length of the escapeway as defined in 
existing paragraph 75.380(b)(1) or 75.381(b) as applicable; be made of 
durable material; be marked with reflective material every 25 feet; 
located in such a manner for miners to use effectively to escape; be 
equipped with directional indicators showing the route of escape; and 
be attached to and mark the location of stored SCSRs.
    Existing paragraphs 75.380(d)(2) and 75.381(c)(2) provide that each 
escapeway shall be clearly marked to show the route [and direction] of 
travel to the surface. While such markings are beneficial, they are not 
always effective, particularly under some adverse conditions such as 
the presence of thick smoke which significantly reduces visibility. 
MSHA records also indicate that mine operators are frequently cited for 
violating existing paragraphs 75.380(d)(2) and 75.381(c)(2). Failure to 
provide or maintain these markings increases the probability of miners 
becoming disoriented during an attempt to evacuate a mine under adverse 
conditions. When directional lifelines are installed in the escapeways, 
miners will not be solely dependent upon markings in the escapeway to 
show the route and direction of travel to the surface.
    The ETS provisions relating to lifelines are the same for both 
underground bituminous and lignite mines (Sec.  75.380) and anthracite 
mines (Sec.  75.381). Each provision will be discussed as it applies to 
both Sec. Sec.  75.380 and 75.381.
    The first provision, paragraph (d)(7)(i) of Sec.  75.380 and 
paragraph (c)(5)(i) of Sec.  75.381, requires that lifelines be 
installed and maintained in both escapeways leading from the working 
sections or areas where mechanized mining equipment is being installed 
or removed. The lifelines must be continuous to the surface escape 
drift opening, continuous to the escape shaft or slope facilities to 
the surface, or continuous from each working section to the surface, as 
applicable. This provision is based on language that describes 
escapeways in existing paragraphs 75.380(b)(1) and 75.381(b). Requiring 
lifelines in both escapeways will increase the probability of escape in 
the event that either is impassable or unreachable.
    The second provision, paragraph (d)(7)(ii) of Sec.  75.380 and 
paragraph (c)(5)(ii) of Sec.  75.381, requires that lifelines be made 
of a durable material so that they are resistant to damage. This 
provision is based on language in removed paragraph (n)(2) of Sec.  
75.380. Lifelines must be constructed of durable (strong) materials and 
must survive normal mining conditions (e.g., atmospheric conditions 
such as humidity). They must be available in an emergency when miners 
need them to evacuate the mine. In addition, lifelines must also be 
sturdy enough to withstand intense physical use during an evacuation.
    The third provision, paragraph (d)(7)(iii) of Sec.  75.380 and 
paragraph (c)(5)(iii) of Sec.  75.381, requires that the lifelines be 
marked with a reflective material every 25 feet, so that miners can 
locate the lifeline using their cap lamps in low-visibility conditions 
and when smoke is present. This provision is based on language that 
describes lifelines in removed paragraph (n)(3) of Sec.  75.380.
    The fourth provision, paragraph (d)(7)(iv) of Sec.  75.380 and 
paragraph (c)(5)(iv) of Sec.  75.381, provides that lifelines be 
positioned in such manner that miners can use them effectively to 
escape. This provision is based on language that describes lifelines in 
removed paragraph (n)(4) of Sec.  75.380. The proper positioning of the 
lifeline regarding height, accessibility, and location as determined by 
the mining conditions improves the ability of miners to effectively use 
lifelines to escape during emergency situations.
    The fifth provision, paragraph (d)(7)(v) of Sec.  75.380 and 
paragraph (c)(5)(v) of Sec.  75.381, provides that lifelines contain 
directional indicators, signifying the route of escape, placed at 
intervals not to exceed 100 feet. This provision is based on language 
that describes lifelines in removed paragraph (n)(5) of Sec.  75.380. 
These directional indicators are physical objects, such as, but not 
limited to, cones, that provide tactile feedback to a miner attempting 
to escape a dark, smoke-filled environment. During escape when 
visibility is low, the directional indicators will enhance the ability 
of miners to escape by quickly indicating the proper direction of 
travel.
    Currently, some mines place prefabricated directional lifelines in 
escapeways, using cones to show the direction of escape. NIOSH 
publications discuss the design of a particular lifeline construction 
(75-foot cone spacing) and NIOSH recommends installation of double-
cones at obstructions to alert miners of personnel doors, overcasts, 
belt crossings, etc. However, NIOSH did not recommend an interval for 
directional cone spacing. MSHA experience in training miners at the 
Mine Simulation Laboratory in Beaver, West Virginia, indicates that the 
directional cone spacing interval needs to be variable, due to 
variation in conditions found in return entries, including overcasts 
and undercasts and turns. The new standard requires the interval 
spacing will never exceed 100 feet, but may be shorter depending upon 
entry conditions, as determined by the mine operator as mine conditions 
warrant.
    The sixth provision, paragraph (d)(7)(vi) of Sec.  75.380 and 
paragraph (c)(5)(vi) of Sec.  75.381 requires that the lifeline be 
securely attached to, and marked to show the location of, all SCSR 
storage locations in the escapeways. This provision is new and directs 
escaping miners to SCSR storage locations that are required by the new 
provision, paragraph 75.1714-4(c). Miners escaping a mine under adverse 
environmental conditions may need to access additional SCSRs in order 
to successfully evacuate the mine. This requirement, and new paragraph 
75.1714-4(e) that requires a reflective sign to be posted, will enable 
persons to quickly locate additional SCSRs.
    MSHA also requests comments about whether miners should have the 
ability to tether themselves together during escapes through smoke-
filled environments. Mine rescue teams currently use tethers 
(lifelines) to attach to each rescue team member to keep the group 
together when they enter smoke filled environments. What length of 
tether between miners should be required? Should the tether be composed 
of separate sections that clip together to allow any number of miners 
to be attached? How should the tether be attached to the miners' belts, 
or should there be a place other than the miners' belts to attach the 
tether to the miners? Should the tether be constructed of durable and/
or reflective material? Where should the tether be stored on the 
section? Should it be stored with the additional SCSRs in a readily 
accessible and identifiable location, or in a separate location?
c. Section 75.383--Escapeway Maps and Drills
    The ETS removes existing paragraph (c) from Sec.  75.383. Existing 
paragraph 75.383(c) allows the operator to use the

[[Page 12262]]

escapeway practice drills to comply with the requirements of paragraph 
75.1502(c). Because MSHA increased the requirements in the evacuation 
drills in Sec.  75.1502, drills conducted under Sec.  75.383 will no 
longer satisfy paragraph 75.1502(c). A new paragraph, 75.1502(c)(4), 
allows the operator to use drills defined in paragraph 75.1502(c) to 
comply with the requirements of drills specified in Sec.  75.383. This 
change enhances protection to miners because the ETS expands the 
content of the drills under paragraph 75.1502(c) to include donning and 
transferring of self-rescue devices, locating directional lifelines and 
equivalent devices, and physically traveling to the surface or exits of 
the bottom of shafts or slopes.
d. Section 75.1502--Mine Emergency Evacuation and Firefighting Program 
of Instruction
    The ETS makes a number of non-substantive organizational changes to 
clarify existing provisions or to accommodate new or moved provisions. 
The ETS adds paragraph headings and realigns paragraph numbers in Sec.  
75.1502 to make it easier to find and understand specific requirements. 
Existing language in paragraph 75.1502(c) ``which shall be held at 
periods of time so as to ensure that all miners participate in such 
evacuations at intervals of not more than 90 days'' is moved to 
75.1502(c)(1). In addition, the ETS moves existing paragraph 
75.1502(c)(1) to 75.1502(c)(3), and emphasizes the requirement in 
existing 75.1502(c)(1) that the mine operator certify which miners have 
completed the training. This certification includes the names of the 
miners participating in each drill. Also, this ETS adds ``and 
materials'' to the term ``firefighting equipment'' in existing 
paragraph 75.1502(a) to 75.1502(a)(1)(vi) clarifying that materials, 
such as water and rock dust, are also important for fighting fires.
    This ETS modifies existing paragraph (a) of Sec.  75.1502 by adding 
new requirements in the mine emergency evacuation and firefighting 
program. The new provisions do not reduce the protection afforded 
miners because MSHA has enhanced the requirements in the program of 
instruction to assist the miner in handling mine emergencies.
    For organizational purposes, MSHA added eight requirements to 
paragraph 75.1502(a)(1). Three of these paragraphs specify new 
requirements. Five of the paragraphs retain existing provisions: 
(a)(1)(i), (a)(1)(iii), (a)(1)(iv), (a)(1)(v), and (a)(1)(vi).
    New paragraph (a)(1)(ii) of Sec.  75.1502 requires operators to 
develop scenarios for mine emergencies, including fires, explosions, or 
gas or water inundations, and develop best options for evacuation under 
each type of emergency. This requirement further emphasizes that 
operators must include immediate donning of self-rescue devices in 
these scenarios.
    Under new paragraph (a)(1)(vii) operators are required to include 
instruction in locating and using continuous directional lifelines or 
the equivalent. The instruction is added to cover the new requirements 
for lifelines.
    New paragraph (a)(1)(viii) of Sec.  75.1502 requires the operator 
to provide, in the plan, instructions for training in locating and 
using SCSRs. The operator is required to specify the quantity and types 
of self-rescue devices to ensure that appropriate training is provided.
    These changes are necessary to require training in the proper use 
of equipment in mine emergencies, because of the additional 
requirements added to other sections in the ETS.
    Existing paragraph 75.1502(a)(1)(vii) is modified to include 
training in the location and use of continuous directional lifelines or 
equivalent devices. MSHA includes this additional requirement in the 
training program to ensure that miners are properly trained to locate 
and use these additional escape devices. This increases the miners' 
options for escape.
    New paragraph 75.1502(a)(2) is added to require operators to 
designate persons with the appropriate abilities, training, knowledge, 
or experience to provide training and conduct Sec.  75.1502-required 
drills. MSHA experience indicates that effectively trained miners are 
more likely to retain their skills when they are needed during an 
emergency. A key component of effective training is the instructor's 
ability to train and evaluate performance. This is important to ensure 
that the miner is properly trained on donning and transferring of self-
rescue devices.
    Some of the existing language in paragraph 75.1502(a) is moved to 
paragraph 75.1502(a)(3) to require the operator to submit a program of 
instruction, with any revisions, for approval to the District Manager 
of the Coal Mine Safety and Health district in which the mine is 
located. Before implementing any new or revised approved plan 
provision, the operator must instruct miners in the changes.
    New paragraph 75.1502(c)(2) is added to enhance the mine evacuation 
drill to require miners to travel the primary or alternate escapeways 
to the surface or bottom of a shaft or slope. Further, language was 
added to require that the drill be conducted in a different escapeway 
than the previously conducted drill. This requirement is added to 
ensure miners are familiar with all the possible escapeways in the 
event their primary escape route is impassable. This provision 
emphasizes that the existing standard means a practice drill. This 
change ensures miners will engage in a practice drill.
    The ETS adds paragraph (c)(2)(i) of Sec.  75.1502 requiring 
training on directional lifelines or equivalent devices and stored 
SCSRs. This is based on the new ETS requirements for lifelines and 
additional stored SCSRs. This training is included in emergency drills 
to ensure that miners are able to locate and use the lifelines and 
additional SCSRs.
    The provision from paragraph (b)(8) of Sec.  48.8 requiring 
complete donning procedures of SCSRs is added in new paragraph 
(c)(2)(ii) of Sec.  75.1502. Adding this provision into Sec.  75.1502 
increases the frequency of the SCSR training from once per year to at 
least four times per year. A reason for including this training within 
the mine evacuation drill is to provide a more realistic training 
environment. This training, when integrated with the other components 
of the drill, will provide the miner with a complete experience of an 
emergency situation.
    Drills may further provide a more realistic emergency evacuation 
practice. For example, conducting the drill in smoke or using a 
realistic mouthpiece that provides the user with the sensation of 
actually breathing through an SCSR, commonly referred to as 
``expectations'' training, is more realistic than simulation training. 
MSHA is asking for comments and suggestions on alternative realistic 
emergency evacuation practices to ensure that miners are prepared to 
act in an emergency.
    This requirement for a more realistic training drill is supported 
by the research discussed in the PW-SCSR Project Final Report, (Kovac 
and Kravitz, 1991) evaluating the ``3+3'' training method. A total of 
185 miners and MSHA inspectors were trained by U.S. Bureau of Mines 
personnel. The training was provided to the miners on the working 
section, usually a few crosscuts outby the face. Miners were brought 
back from the face one at a time for their training. This approach can 
be used during mine emergency drills to satisfy requirements without 
disrupting other activities at the mine.
    This ETS adds new paragraph (c)(2)(iii) to Sec.  75.1502 to provide 
hands-on training in transferring from one self-rescue device to an 
SCSR. MSHA adds this provision to include training to

[[Page 12263]]

cover new requirements in paragraph 75.1502(c)(2) and Sec.  75.1714-4. 
Miners must be trained on all types of self-rescue devices in use at 
the mine. This training must include experience in transferring from 
one type of self-rescue device to the same type, as well as to all 
other types in use at the mine, as applicable.
    The ETS adds new paragraph (c)(3) to Sec.  75.1502. Existing 
paragraph 75.1502(c)(1) is moved to new paragraph 75.1502(c)(3) and the 
language is amended to emphasize the requirement that mine operators 
certify, by name, all miners who participated in each emergency 
evacuation drills. This provides a record of training for each miner. 
MSHA is soliciting comments on whether such a record of training should 
include additional information, such as a checklist. The checklist 
could be used to itemize the successful completion of each step of the 
training, as outlined in the approved program of instruction.
    The ETS adds new paragraph (c)(4) to Sec.  75.1502 to allow the 
operator to use the mine emergency evacuation drills in this section to 
satisfy the requirement for practice escapeway drills in paragraph 
75.383(b) of this part. See discussion under section-by-section 
discussion on paragraph 75.383(b).
    A new paragraph (d) is added to this section requiring the mine 
operator to submit a revised program of instruction under this part 75. 
This revised program of instruction shall be submitted to the 
appropriate District Manager for approval no later than April 10, 2006. 
Within 2 weeks of plan approval, the operator must train miners in the 
revised requirements. This provision is consistent with the new 
provision for a revised training plan in paragraph 48.3(p).
e. Section 75.1714-2--Self Rescue Devices; Use and Location 
Requirements
    This ETS modifies paragraph (f) of Sec.  75.1714-2 to conform the 
language to changes in Sec.  75.1714-4. The new provision is that a 
sign with the word ``SELF-RESCUER'' or ``SELF-RESCUERS'' must be 
conspicuously posted at each storage place and it must be made of 
reflective material. Direction signs made of a reflective material must 
also be posted leading to each storage place.
    In addition, this ETS modifies paragraph (g)(2) of Sec.  75.1714-2. 
A new phrase, ``made of a reflective material'' has been added in 
reference to the cache (storage location) signs and direction signs. 
The paragraph now reads, ``The one-hour canister shall be available at 
all times to all persons when underground in accordance with a plan 
submitted by the operator of the mine and approved by the District 
Manager. When the one-hour canister is placed in a cache or caches, a 
sign made of a reflective material with the word ``SELF-RESCUERS'' 
shall be conspicuously posted at each cache, and direction signs made 
of a reflective material shall be posted leading to each cache.''
f. Section 75.1714-4--Additional Self-Contained Self-Rescuers
    This ETS includes a new Sec.  75.1714-4 which requires the mine 
operator to provide at least one additional SCSR that will provide 
protection for a period of one hour or longer to cover the maximum 
number of persons in the mine. Thus, each miner or person underground 
will have the self-rescuer device that is traditionally carried with 
him or her and an additional SCSR device readily accessible. If a 
filter self rescuer is used in conjunction with an existing SCSR 
storage plan, a mine operator must comply with the requirement for an 
additional SCSR as described under this new 75.1714-4(a). In addition, 
where persons enter or exit the mine using a mantrip or mobile 
equipment, additional SCSRs must be available on the mantrip or mobile 
equipment portal to portal. Moreover, this provision requires the mine 
operator to submit an outby SCSR storage plan, identifying the 
location, quantity and type of additional SCSRs in the primary and 
alternate escapeways in circumstances where the SCSR devices required 
under the existing standards will not provide sufficient oxygen for all 
persons to safely evacuate the mine. The outby SCSR storage plan must 
also show how the storage location in each escapeway was determined. 
For District Manager approval of the outby storage plan, the District 
Manager may require the mine operator to demonstrate that the location, 
quantity, and type of the additional SCSRs provide adequate protection 
for all persons to safely evacuate the mine.
    Section 75.1714-4 also requires the operator to store all SCSRs 
required under this section in locations that are conspicuous and that 
are readily accessible by each person in the mine. All SCSR devices 
required under this section must be stored according to the 
manufacturer's instructions.
    Section 75.1714-4 further requires a sign with the words ``SELF-
RESCUERS'' to be conspicuously posted at each storage location. The 
sign must be made of reflective material. In addition, direction signs 
that are made of a reflective material must be posted in each entry 
leading to each storage location.
    This ETS enhances protection because it requires additional SCSRs 
to cover the maximum number of persons in every underground coal mine. 
These additional SCSRs in the storage locations will greatly increase 
the ability of all persons to safely evacuate during a mine emergency 
or accident.
    New paragraph 75.1714-4(a) requires that in addition to the 
requirements in Sec. Sec.  75.1714, 75.1714-1, 75.1714-2, and 75.1714-
3, the mine operator shall provide at least one additional SCSR to each 
person who is underground, and which provides protection for a period 
of one hour or longer, to cover the maximum number of persons in the 
mine. This is a new requirement to provide one additional SCSR device 
for each person in the mine. Having at least one additional SCSR device 
per person will double the amount of oxygen that is available to that 
person during any accident or emergency evacuation. MSHA's intent is to 
encourage persons who are not required for a mine emergency response to 
evacuate the mine as quickly as possible. The additional SCSR will aid 
persons who must travel through smoke and toxic gases to safely exit 
the mine. The additional SCSR will likely facilitate evacuation of the 
mine by increasing the person's confidence in the availability of 
oxygen in the smoke-filled mine entries.
    The SCSRs that are required under new paragraph 75.1714-4(a) must 
meet the storage location requirements under new paragraphs 75.1714-
4(d) and (e) discussed below.
    New paragraph 75.1714-4(b) requires that if a mantrip or mobile 
equipment is used to enter or exit the mine, additional SCSRs, each of 
which provides protection for a period of one hour or longer, shall be 
available from portal to portal on the mantrip or mobile equipment. At 
many mines, persons use mantrips or mobile equipment such as scoops, 
ramcars, or pick-up trucks, to enter the mine and travel to and from 
their working section. A mine accident or emergency that requires 
evacuation could occur while crews are traveling to or from their 
working section on mantrips or mobile equipment. If additional SCSRs 
are not available on the mantrips or the mobile equipment, persons may 
not be able to evacuate safely during a mine accident or emergency. 
Requiring that additional SCSRs be available portal to portal to 
persons who are using the mantrip or mobile equipment provides the 
protection of an additional SCSR while

[[Page 12264]]

on the mantrip or mobile equipment during an accident or emergency.
    Mine operators may utilize the additional SCSRs on the mantrip or 
mobile equipment to comply with paragraph 75.1714-4(a) if the mantrip 
stays on the section. If the mantrip leaves the section, operators can 
choose to comply with paragraph 75.1714-4(a) by removing the SCSRs from 
the mantrip and keeping them on the section. That is, SCSRs on the 
mantrip can remain on the section if the mantrip leaves the section for 
other duties. However, at all times any operator and passengers on the 
mantrip or mobile equipment must have an additional SCSR available. 
Additionally, if miners traveling on mantrips or mobile equipment are 
using filter self-rescuers, or SCSRs which provide less than one hour 
of protection, they must be provided with two SCSRs, each of which 
provides protection for a period of one hour or longer, on the mantrip 
or mobile equipment.
    New paragraph 75.1714-4(c) requires that when the SCSR devices 
otherwise required by paragraph 75.1714(a) are not adequate to provide 
enough oxygen for all persons to safely evacuate the mine under the 
mine emergency conditions; the mine operator shall provide additional 
SCSR devices in the primary and alternate escapeways. Under these 
circumstances, the mine operator shall submit an outby SCSR storage 
plan to the appropriate District Manager for approval. The mine 
operator must also include in the outby SCSR storage plan required by 
paragraph 75.1714-4(c) the location(s), quantity, and type of 
additional SCSR devices, each of which provides protection for a period 
of one hour or longer, that are stored in the primary and alternate 
escapeways. The outby SCSR storage plan must also show how the storage 
location in the primary and alternate escapeways was determined. The 
District Manager may require the mine operator to demonstrate that the 
location, quantity, and type of the additional SCSRs provide protection 
to all persons to safely evacuate the mine. The outby SCSR storage plan 
must also be kept current by the mine operator and made available for 
inspection by an authorized representative of the Secretary and by the 
miners' representative.
    The outby SCSR storage plan required by new paragraph 75.1714-4(c) 
gives mine operators flexibility in determining the location, quantity, 
and type of additional SCSRs stored in the primary and alternate 
escapeways. The requirements of this paragraph are performance-
oriented. It allows mine operators to assess the conditions unique to 
their mine and to establish SCSR storage locations based on these 
conditions.
    New paragraph 75.1714-4(c) also allows MSHA to verify, if needed, 
the appropriateness of the storage locations. If the MSHA District 
Manager doubts that all persons underground could reach the additional 
storage locations safely, the District Manager can require the mine 
operator to demonstrate that the storage location provides adequate 
protection to all persons to reach the designated storage location in a 
timely manner and safely evacuate the mine.
    The SCSRs that are required under new paragraph 75.1714-4(c) must 
also meet the storage location requirements under new paragraphs 
75.1714-4(d) and (e) discussed below.
    To assist mine operators in complying with the requirements of new 
paragraph 75.1714-4(c), MSHA is providing one possible method that an 
operator may use in choosing appropriate outby SCSR storage locations. 
MSHA developed a method for selecting locations based on a 1996-1997 
MSHA-NIOSH study (Unpublished document ``The Oxygen Cost of a Mine 
Escape'' (Kovac, Kravitz, Rehak, 1997)). The MSHA-NIOSH study 
demonstrated that it is possible to project, on a mine-by-mine basis, 
the difficulty of the mine escape and how much oxygen would be required 
for such an escape, knowing the body weight and heart rate of the 
escaping person. Accordingly, the method used by this heart rate study 
may also be used to determine the sufficient number and appropriate 
storage locations of additional SCSRs so that persons can safely 
evacuate the mine. A mine operator who wants to use the heart rate 
method to determine the number and storage location of additional SCSRs 
should, however, adhere to the following procedures:
    1. Select the worst-case escape scenario (for example, the furthest 
point of penetration into coal seam and the heaviest person).
    2. Have the person perform an escape drill bare-faced with all the 
person's normal tools and safety equipment (including an SCSR on the 
person's belt) along the designated escapeway. During this escape 
drill, the person's heart-rate should be continuously monitored with 
the person wearing a heart-rate watch.
    3. The person's heart-rate should not exceed the lower of (0.70) x 
(220 minus the person's age) or 135 beats per minute. (135 beats per 
minute is the average heart-rate for the 95th percentile person--by 
weight--performing mantest 4 during MSHA-NIOSH certification tests.) 
Under the formula, the calculated rate for a 65 year old person--95th 
percentile by age--is 109 beats per minute and the calculated rate for 
a 20 year old person is 140 beats per minute. Comparing each calculated 
rate with 135 beats per minute, the lower rate for the 65 year old 
person is the calculated rate of 109 and the lower rate for the 20 year 
old person is 135. Thus, during the simulated escape, if a 65 year old 
person's heart-rate exceeds 109 or a 20 year old person's heart rate 
exceeds 135, the person should slow down or stop until his heart rate 
is in an acceptable range.
    4. After one hour, the distance should be recorded and marked.
    5. The above procedure should be repeated 3 times, and an average 
distance calculated.
    6. The location for the SCSR storage is the average distance 
recorded minus 15 percent (the amount of work added by using an SCSR). 
For example, if the distance traveled is 5,000 feet along the 
escapeway, the SCSR storage should be placed 4,250 feet along the 
escapeway (5,000 feet - 750 feet = 4,250 feet).
    7. If multiple storage locations are required, the above procedure 
should be repeated until the escape is completed to the surface.
    8. In addition to a person's physiological ability to reach the 
storage location within the rated duration of the SCSR, given the 
environmental conditions of the mine and the oxygen provided by the 
SCSR, other factors can come into play. For example, the number of 
persons accessing a storage location can affect the time it takes to 
retrieve and don an SCSR from the storage location. The accessibility 
of the storage location may be affected by its physical configuration.
    To summarize, for purposes of the outby SCSR storage plan, an 
operator may use any reliable method of choosing storage locations 
including the method mentioned above. MSHA solicits comments on the 
above suggested method, and other reliable methods, for determining 
where to locate the additional SCSRs in the mine. In addition, MSHA 
solicits comments on whether a specification standard would be more 
appropriate than the performance-oriented approach provided in this 
ETS. For example, MSHA is considering a requirement that the additional 
SCSRs under new paragraph 75.1714-4(c) be stored in all escapeways at 
intervals of 5,000 feet for mines where the escapeway height is above 
48 inches and 2,500 feet for all other mines. MSHA solicits comments on 
such a specification-oriented standard, including comments on whether 
the specific 5,000 and 2,500

[[Page 12265]]

foot intervals, or some other specific interval, is appropriate.
    MSHA solicits comments on the appropriateness of eliminating filter 
self-rescuers (``FSRs'') from all underground bituminous, lignite, and 
anthracite mines. FSRs were required before SCSRs were available to the 
mining industry. Some current SCSR storage plans allow the use of FSRs 
to reach stored SCSRs. Given that FSRs only provide filter protection 
for carbon monoxide, and due to the fact that FSRs do not produce 
oxygen, MSHA solicits comments on whether underground coal mines should 
only require SCSRs.
    MSHA also solicits comments on the appropriateness of requiring 
mine operators to report the total number of SCSRs in use at each 
underground coal mine, semi-annually, to the MSHA District Manager. 
Along with the total number of SCSRs, MSHA could require the following 
information be reported for each SCSR at each mine: (1) Manufacturer, 
(2) model, (3) date of manufacture, and (4) the serial number. This 
information would be valuable because manufacturers often lose track of 
where their SCSRs are in the mining industry. When a mine shuts down, 
the SCSRs are often sold to another mine. In the past, problems have 
been discovered with all brands of SCSRs. Sometimes these problems are 
related to specific production runs that generate unique serial numbers 
for the SCSRs. Sometimes, the problems affect all the manufactured 
SCSRs from one manufacturer. Having knowledge of where the SCSRs are 
located will benefit persons because MSHA can then expeditiously locate 
the affected SCSRs so that remedial action can be taken.
    New paragraph 75.1714-4(d) provides that all SCSR devices required 
under this section be stored in locations that are conspicuous and that 
are readily accessible by each person in the mine. In addition, new 
paragraph 1714-4(d) provides that all SCSR devices required under this 
section be stored according to manufacturers' instructions. The time 
used to locate an SCSR that is not conspicuously stored could make the 
difference between the success or failure of a safe evacuation. In 
addition, the storage location must be readily accessible so that the 
additional SCSRs can be retrieved in a prompt, timely manner. An 
example of a storage location that is readily accessible is on the 
working face or in locations where mechanized mining equipment is being 
installed and removed. Such a location, however, may not be readily 
accessible to all persons, such as pumpers, outby crews, and examiners. 
MSHA is, therefore, soliciting comments on storage locations that are 
readily accessible to such persons.
    This new requirement will facilitate the successful use of the 
additional SCSRs during a mine accident or emergency. Moreover, 
manufacturers' instructions are required to be included in the approval 
documents for all SCSRs, which are submitted to MSHA and NIOSH under 42 
CFR part 84. The instructions are included with all SCSRs from each 
manufacturer.
    New Sec.  75.1714-4(e) requires that a sign with the words ``SELF-
RESCUERS'' be conspicuously posted at each storage location, be made of 
reflective material, and direction signs made of a reflective material 
be posted in each entry leading to each storage location. The 
requirements are similar to the requirements in existing Sec.  75.1714-
2(f) pertaining to the storage of an SCSR device that is required under 
existing Sec.  75.1714, but that is not carried out of the mine at the 
end of a person's shift. MSHA is adding a requirement that the sign be 
made of reflective material here and under existing Sec.  75.1714-2(f) 
and (g) because escape routes are often filled with thick smoke that 
could obscure any SCSR storage location. Under such circumstances, a 
sign made of a reflective material will provide greater visibility of 
the storage locations to persons who need to exit the mine quickly. 
Moreover, new Sec.  75.380(d)(7)(vi) and Sec.  75.381(c)(5)(vi) require 
that lifelines be attached to, and marked to show these storage 
locations.
    The requirement that a sign under paragraphs 75.1714-2(f) and (g) 
be made of reflective material enhances miner protection because escape 
routes are often filled with thick smoke that could obscure any SCSR 
storage location and a sign made of a reflective material will provide 
greater visibility of the storage locations to persons who need to exit 
the mine quickly.
    MSHA solicits comments on the appropriateness of requiring signs to 
be made of a reflective material and whether there are alternative 
methods available for making storage locations easy to locate when 
conditions in the mine might obscure the storage location.
    The new requirement that a sign be made of a reflective material 
enhances miner safety by making SCSR storage locations easier to locate 
when a person needs to evacuate the mine quickly and the escape route 
is filled with thick smoke obscuring the SCSR storage location.
g. Section 75.1714-5--Map locations of Self-Contained Self-Rescuers
    New Sec.  75.1714-5 requires the mine operator to include the 
storage location(s) of SCSR devices subject to storage plans on the 
Sec.  75.383 mine emergency map and on the Sec.  75.1200 mine map. 
Existing Sec.  75.383 requires escapeway maps to be posted in each 
working section, and in each area where mechanized mining equipment is 
being installed or removed, and at a surface location of the mine where 
miners congregate, such as the mine bulletin board, bathhouse, or 
waiting room. Existing Sec.  75.1203 requires the mine map under Sec.  
75.1200 to be available to miners. Because an escapeway map is posted 
in an obvious location and because a miner has access to the mine map, 
requiring the operator to include the storage location of all SCSRs on 
the escapeway map and mine map helps ensure that persons are aware of 
the storage location of all SCSRs in the mine. In addition, the Sec.  
75.1200 mine map is the basis for all mine rescue attempts.
    Finally, MSHA is considering a requirement that the mine operator 
promptly report to the MSHA District Manager, in writing, all incidents 
where any SCSR, required by this section or existing Sec.  75.1714, is 
used for an accident or emergency and all instances where such SCSR 
device did not function properly. In addition, when any SCSR device has 
not functioned properly, the mine operator would retain the device, for 
at least 90 days, for investigation by MSHA.
    MSHA solicits comments on this reporting requirement because, in 
the past, MSHA did not always learn of problems associated with SCSRs 
in a timely manner. This requirement would help assure that MSHA is 
notified of problems in a timely manner and that the affected SCSRs are 
available for testing and evaluation.

V. Executive Order 12866

    Executive Order (E.O.) 12866 (58 FR 51735) as amended by E.O. 13258 
(Amending Executive Order 12866 on Regulatory Planning and Review (67 
FR 9385)) requires that regulatory agencies assess both the costs and 
benefits of regulations. MSHA has determined that the ETS would not 
have an annual effect of $100 million or more on the economy and that, 
therefore, it is not an economically ``significant regulatory action'' 
pursuant to Sec.  3, paragraph (f) of E.O. 12866.

A. Population-at-Risk

    Using 2004 data, the ETS applies to the 634 underground coal mine 
operators employing 33,490 miners and 3,697 contractor workers who work 
underground in coal mines. Also, using 2004 data, the immediate 
notification

[[Page 12266]]

provisions of the ETS apply to the entire mining industry, encompassing 
all 214,450 miners and 72,739 contract workers who work in the 14,480 
U.S. mines.

B. Benefits

    To estimate benefits, MSHA focused on three accidents where miners' 
lives might have been saved if this rule was implemented. These three 
accidents occurred at the Wilberg Mine in 1984, at the Sago Mine in 
2006, and at the Aracoma Alma 1 Mine, also in 2006. In these 
three accidents, there were, in total, 41 fatalities and one serious 
injury. MSHA believes that this ETS, if in place at the time of these 
accidents, could have saved the lives of most of these victims. One of 
the miners at Sago Mine died in the explosion and would have perished 
even if the ETS had been in force. In quantitative terms, MSHA 
estimates that perhaps 70% to 90% of miners in similar accidents in the 
future could be saved by implementing the ETS, with a mid-range 
estimate of 80%. Multiplying 40 by 80% provides a mid-range estimate of 
32 lives that could be saved. Multiplying 40 by 70% and 90% provides a 
full-range estimate of 28 to 36 lives that could be saved by the ETS.
    January 1, 1983 is the starting point for the accident records in 
MSHA's electronic Teradata database. Starting at January 1, 1983 and 
ending in early February, 2006 is a time span of 23.1 years. Since 
these three accidents occurred over a period of 23.1 years, MSHA 
divides 32 lives saved by 23.1 years to obtain a mid-range estimate of 
1.39 lives saved per year. A similar calculation provides a full-range 
estimate of 1.21 to 1.56 lives saved per year. Using the same method, 
MSHA also calculates a mid-range estimate of 0.035 serious injuries 
prevented per year and a full-range estimate of 0.030 to 0.039 serious 
injuries prevented per year. The actual number of miners' lives saved 
could be much larger.

C. Compliance Costs

    The immediate notification provisions of the ETS, which apply to 
all mines, are definitional and clarify existing requirements. As such, 
MSHA expects that they will impose no additional costs on the mining 
industry.
    MSHA estimates that the ETS will result in total yearly costs for 
underground mine operators and contractors of approximately $18.9 
million, which reflect first-year costs of about $54.7 million. Of the 
yearly costs, $7.9 million will be associated with training 
requirements; $0.5 million will be associated with lifeline 
requirements; and $10.5 million will be associated with additional SCSR 
devices. Disaggregated by mine size, yearly costs will be $1.2 million 
(or about $5,100 per mine) for mine operators with fewer than 20 
employees; $15.6 million (or about $40,100 per mine) for mine operators 
with 20-500 employees; and $2.1 million (or about $256,700 per mine) 
for mine operators with more than 500 employees.

VI. Feasibility

    MSHA has concluded that the requirements of the ETS are 
technologically and economically feasible.
    The ETS is not a technology-forcing standard and does not involve 
activities on the frontiers of scientific knowledge. Many of the 
requirements of the ETS are based on MSHA's current regulations.
    The yearly compliance costs of the ETS (of $18.9 million) are equal 
to 0.2 percent of all revenues (of $11.1 billion in 2004) for all 
underground coal mines. Insofar as the total compliance costs are well 
below one percent of the estimated revenues for all underground coal 
mines, MSHA concludes that the ETS is economically feasible for these 
mines.
    As noted above, the immediate notification provisions of the ETS, 
which apply to the entire mining industry, will impose no additional 
costs. MSHA therefore concludes that these provisions are economically 
feasible for the mining industry.

VII. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980 as amended 
by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 
MSHA has analyzed the impact of the ETS on small businesses. Further, 
MSHA has made a determination with respect to whether or not the Agency 
can certify that the ETS will not have a significant economic impact on 
a substantial number of small entities that are covered by this 
rulemaking. Under the SBREFA amendments to the RFA, MSHA must include 
in the rule a factual basis for this certification. If a rule has a 
significant economic impact on a substantial number of small entities, 
MSHA must develop a regulatory flexibility analysis.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration (SBA) definition for a 
small entity or, after consultation with the SBA Office of Advocacy, 
establish an alternative definition for the mining industry by 
publishing that definition in the Federal Register for notice and 
comment. MSHA has not taken such an action and hence is required to use 
the SBA definition. The SBA defines a small entity in the mining 
industry as an establishment with 500 or fewer employees.
    MSHA has also looked at the impacts of Agency rules on a subset of 
mines with 500 or fewer employees--those with fewer than 20 employees, 
which MSHA and the mining community have traditionally referred to as 
``small mines.'' These small mines differ from larger mines not only in 
the number of employees, but also in economies of scale in material 
produced, in the type and amount of production equipment, and in supply 
inventory. Therefore, their costs of complying with MSHA's rules and 
the impact of the Agency's rules on them will also tend to be 
different. It is for this reason that ``small mines,'' as traditionally 
defined by MSHA as those employing fewer than 20 workers, are of 
special concern to MSHA.
    This analysis complies with the legal requirements of the RFA for 
an analysis of the impacts on ``small entities'' while continuing 
MSHA's traditional definition of ``small mines.'' The Agency concludes 
that it can certify that the ETS will not have a significant economic 
impact on a substantial number of small entities that are covered by 
this rulemaking. MSHA has determined that this is the case both for 
mines affected by this rulemaking with fewer than 20 employees and for 
mines affected by this rulemaking with 500 or fewer employees.

B. Factual Basis for Certification

    MSHA's analysis of impacts on ``small entities'' begins with a 
``screening'' analysis. The screening compares the estimated compliance 
costs of a rule for small entities in the sector affected by the rule 
to the estimated revenues for the affected sector. When estimated 
compliance costs or savings are less than one percent of the estimated 
revenues, the Agency believes it is generally appropriate to conclude 
that there is no significant economic impact on a substantial number of 
small entities. When estimated compliance costs or savings exceed one 
percent of revenues, it tends to indicate that further analysis may be 
warranted.
    Metal/nonmetal and surface coal mines are covered in the ETS only 
by the immediate notification provisions. Since these provisions define 
and clarify existing provisions, they do not impose any costs on mine 
operators and contractors. MSHA therefore concludes

[[Page 12267]]

that the ETS will not have a significant economic impact on a 
substantial number of small entities in these mine sectors.
    For underground coal mines, estimated 2004 production was 
10,375,660 tons for mines that had fewer than 20 employees and 
312,531,849 tons for mines that had 500 or fewer employees. Using the 
2004 price of underground coal of $30.36 per ton, the 2004 underground 
coal revenues are estimated to be approximately $315 million for mines 
employing fewer than 20 employees and $9.5 billion for mines employing 
500 or fewer employees. Thus, the cost of the rule for mines that have 
fewer than 20 employees is 0.4 percent ($1.2 million/$315 million), 
while the cost of the rule for mines that have 500 or fewer employees 
is 0.2 percent ($0.017 billion/$9.5 billion). Using either MSHA's 
traditional definition of a small mine (one having fewer than 20 
employees) or SBA's definition of a small mine (one having 500 or fewer 
employees), compliance costs of the ETS for underground coal mines will 
be substantially less than 1 percent of their estimated revenues.

VIII. Paperwork Reduction Act of 1995

A. Summary

    This emergency rulemaking contains information collection 
requirements that MSHA estimates will result in 17,547 new burden hours 
and approximately $533,601 related burden costs to mine operators and 
contractors in the first year that the rule is in effect. In the second 
year that the rule is in effect, and for every year thereafter, MSHA 
estimates that mine operators and contractors will incur 9,226 new 
burden hours and approximately $525,739 related burden costs. The 
burden is different in the first year because some information 
collection requirements occur only in the first year that the rule is 
in effect; while different burdens occur either every year beginning in 
the first year, or every year beginning in the second year that the 
rule is in effect.
    This ETS contains information collection requirements in the 
following sections: Sec.  48.3--Training plans; time of submission; 
where filed; information required; time for approval; method for 
disapproval; commencement of training; approval of instructors; Sec.  
50.10--Immediate notification; Sec.  75.1502--Mine emergency evacuation 
and firefighting program of instruction; Sec.  75.1714-3--Self-rescue 
devices; inspection, testing, maintenance, repair and recordkeeping; 
Sec.  75.1714-4--Additional self-contained self-rescuers; and Sec.  
75.1714-5--Map locations of self-contained self-rescuers to be codified 
in 30 CFR. Although the new requirement in Sec.  50.10 included in this 
emergency rulemaking creates no additional paperwork burden, MSHA is 
listing the provision here because it continues to require a collection 
of information. The ETS adds to the information collected under 
existing OMB information collections OMB 1219-0007, OMB 1219-0009, OMB 
1219-0044, OMB 1219-0054, and OMB 1219-0073.
    Although paragraph 75.1714-3(e) is an existing provision and is not 
changed by this emergency rulemaking, MSHA is including it in the 
burden estimates above because the use of additional SCSR devices 
mandated by this ETS will increase the burden associated with 
inspection and recordkeeping requirements contained in this existing 
paragraph.
    For a detailed explanation of how the burden hours and related 
costs were determined, see Chapter VII of the Regulatory Economic 
Analysis (REA) associated with this rulemaking. The REA is located on 
MSHA's Web site at http://www.msha.gov/REGSINFO.HTM. A print copy of 
the REA can be obtained from the Office of Standards, Regulations, and 
Variances at MSHA.

B. Details

    The information collection package has been submitted to the Office 
of Management and Budget (OMB) for review under 44 U.S.C. 3504, 
paragraph (h) of the Paperwork Reduction Act of 1995, as amended. A 
copy of the information collection package can be obtained from the 
Department of Labor by electronic mail request to king.darrin@dol.gov 
or by phone request to (202) 693-4129.
    Comments on the provisions in the information collection 
requirements should be sent to both the Office of Information and 
Regulatory Affairs of OMB and to MSHA. Comments sent to OMB should be 
sent to the Attention of the Desk Officer for the Mine Safety and 
Health Administration. Comments sent to MSHA should be sent to the 
Office of Standards, Regulations, and Variances. Addresses for both 
offices can be found in the Addresses section of this preamble. 
Respondents are not required to respond to any collection of 
information unless it displays a current valid OMB control number. MSHA 
will publish a notice in the Federal Register announcing when OMB has 
approved the new information collection requirements.

IX. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act Of 1995

    This ETS does not include any Federal mandate that may result in 
increased expenditures by State, local, or tribal governments; nor will 
it increase private sector expenditures by more than $100 million 
annually; nor will it significantly or uniquely affect small 
governments. Accordingly, the Unfunded Mandates Reform Act of 1995 (2 
U.S.C. 1501 et seq.) requires no further agency action or analysis.

B. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    This ETS will have no affect on family well-being or stability, 
marital commitment, parental rights or authority, or income or poverty 
of families and children. Accordingly, section 654 of the Treasury and 
General Government Appropriations Act of 1999 (5 U.S.C. 601 note) 
requires no further Agency action, analysis, or assessment.

C. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    This ETS does not implement a policy with takings implications. 
Accordingly, E.O. 12630, Governmental Actions and Interference with 
Constitutionally Protected Property Rights, requires no further Agency 
action or analysis.

D. Executive Order 12988: Civil Justice Reform

    This ETS was written to provide a clear legal standard for affected 
conduct and was carefully reviewed to eliminate drafting errors and 
ambiguities, so as to minimize litigation and undue burden on the 
Federal court system. Accordingly, this ETS will meet the applicable 
standards provided in section 3 of E.O. 12988, Civil Justice Reform.

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    This ETS will have no adverse impact on children. Accordingly, E.O. 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks, as amended by E.O. 13229 and 13296, requires no further 
Agency action or analysis.

F. Executive Order 13132: Federalism

    This ETS does not have ``federalism implications'' because it will 
not ``have substantial direct effects on the States,

[[Page 12268]]

on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government.'' Accordingly, E.O. 13132, Federalism, requires 
no further Agency action or analysis.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This ETS does not have ``tribal implications'' because it will not 
``have substantial direct effects on one or more Indian tribes, on the 
relationship between the Federal government and Indian tribes, or on 
the distribution of power and responsibilities between the Federal 
government and Indian tribes.'' Accordingly, E.O. 13175, Consultation 
and Coordination with Indian Tribal Governments, requires no further 
Agency action or analysis.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This ETS has been reviewed for its impact on the supply, 
distribution, and use of energy because it applies to the underground 
mining sector. Insofar as this ETS will result in yearly costs of 
approximately $18.9 million to the underground coal mining industry, 
relative to annual revenues of $11.1 billion in 2004, it is not a 
``significant energy action'' because it is not ``likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy * * * (including a shortfall in supply, price increases, and 
increased use of foreign supplies).'' Accordingly, E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use, requires no further Agency action or analysis.

I. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    This ETS has been thoroughly reviewed to assess and take 
appropriate account of its potential impact on small businesses, small 
governmental jurisdictions, and small organizations. MSHA has 
determined and certified that this ETS does not have a significant 
economic impact on a substantial number of small entities. Accordingly, 
E.O. 13272, Proper Consideration of Small Entities in Agency 
Rulemaking, requires no further Agency action or analysis.

X. Emergency Temporary Standard--Regulatory Text

List of Subjects

30 CFR Part 48

    Education, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 50

    Investigations, Mine safety and health, Reporting and recordkeeping 
requirements.

30 CFR Part 75

    Communications equipment, Electric power, Emergency medical 
services, Explosives, Fire prevention, Mine safety and health.

    Reporting and recordkeeping requirements Signed at Arlington, 
Virginia, this 6th day of March 2006.
David G. Dye,
Acting Assistant Secretary of Labor for Mine Safety and Health.