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Statement of Need: As a result of the first partial settlement with the litigants, MSHA published two documents in the Federal Register on July 5, 2001. One document delayed the effective date of 57.5066(b) regarding the tagging provisions of the maintenance standard; clarified the effective dates of certain provisions of the final rule; and gave correction amendments. The second document was a proposed rule to clarify 57.5066(b)(1) and (b)(2) of the maintenance standards and to add a new paragraph (b)(3) to 57.5067 regarding the transfer of existing diesel equipment from one underground mine to another underground mine. The final rule on these issues was published February 27, 2002, and became effective March 29, 2002. Also as part of the settlement agreement, MSHA agreed to conduct joint sampling with industry and labor at 31 underground mines to determine existing concentration levels of DPM; assess the performance of the SKC sampler with the NIOSH Analytical Method 5040; assess the feasibility of achieving compliance with the standard's concentration limit at the 31 mines; and, assess the impact of interferences on samples collected in the metal and nonmetal underground mining environment before the limits established in the final rule became effective. Sampling and data analyses have been completed and the final report was issued on January 6, 2003. MSHA also agreed to proposed specific changes to the 2001 DPM final rule. On September 25, 2002, MSHA published an Advance Notice of Proposed Rulemaking (ANPRM) (67 FR 60199). In response to commenters, MSHA intends at this time to propose changes only to the interim DPM standard of 400 micorgrams per cubic meter of air. In a separate rulemaking, the Agency will propose a rule to revise the final concentration limit of 160 micrograms per cubic meter of air pursuant to the DPM settlement agreement. The scope of both rulemakings is limited to the settlement agreement. The current rulemaking addresses the following provisions: 57.5060(a) - Propose to change the existing DPM surrogate from total carbon to elemental carbon; propose that a single personal sample of miner's exposure would be an adequate basis for MSHA compliance determinations; and propose the current hierarchy of controls that MSHA applies in its existing metal and nonmetal exposure based health standards for abating violations. 57.5060(c) - Propose to adapt to the interim limit the existing provision that allows mine operators to apply to the Secretary for additional time to come into compliance with the final concentration limit. MSHA also agreed to propose to include consideration of economic feasibility, and to allow for annual renewals of such special extensions. 57.5060(d) - This existing provision permits miners to engage in certain activities in concentrations exceeding the interim and final limits upon application and approval from the Secretary. MSHA asked commenters if this provision should be removed since the Agency agreed to propose the existing hierarchy of controls. 57.5060(e) - MSHA agreed to propose to remove the existing prohibition on the use of personal protective equipment. 57.5060(f) - MSHA agreed to propose to remove the prohibition on the use of administrative controls. 57.5061(b) - MSHA is proposing to change the reference to total carbon to elemental carbon. 57.5061(c) - MSHA is proposing to delete the references to "area" and "occupational" sampling for compliance. 57.5062 - MSHA agreed to propose revisions to the existing diesel control plan. MSHA also agreed to propose to change the existing DPM surrogate from total carbon to elemental carbon for the final limit that is applicable after January 19, 2006.

Summary of the Legal Basis: Promulgation of these regulations is authorized by sections 101 and 103 of the Federal Mine Safety and Health Act of 1977.

Alternatives: This rulemaking action is a result of the parties' settlement negotiations. This action will not decrease protection for miners.

Anticipated Costs and Benefits: MSHA will develop a preliminary economic analysis to accompany the proposed rule.

Risks: Several epidemiological studies have found that exposure to diesel exhaust presents potential health risk to the miners. These potential adverse health effects range from headaches and nausea to respiratory disease and cancer. In the confined space of the underground mining environment, occupational exposure to diesel exhaust may present a greater hazard due to ventilation limitations and the presence of other airborne contaminants, such as toxic mine dusts or mine gases. We believe that the health evidence forms a reasonable basis for reducing miners' exposure to diesel particulate matter. Proceeding with rulemaking on the provisions discussed above will more effectively reduce miners exposure to DPM.