[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81165-81176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32410]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 75
RIN 1219-AB75
Examinations of Work Areas in Underground Coal Mines for
Violations of Mandatory Health or Safety Standards
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Proposed rule; notice of close of comment period.
-----------------------------------------------------------------------
SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing
to revise its requirements for preshift, supplemental, on-shift, and
weekly examinations of underground coal mines. The proposed rule would
require operators to identify violations of mandatory health or safety
standards. The proposal would also require that the mine operator
record and correct violations and review with mine examiners (e.g., the
mine foreman, assistant mine foreman, or other certified persons) on a
quarterly basis all citations and orders issued in areas where
preshift, supplemental, on-shift, and weekly examinations are required.
The proposal would assure that underground coal mine operators find and
fix violations of mandatory health or safety standards, thereby
improving health and safety for miners.
DATES: MSHA must receive comments by midnight Eastern Standard Time on
February 25, 2011.
ADDRESSES: All submissions must reference MSHA and RIN 1219-AB75.
Comments may be submitted by any of the following methods:
(1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow
the instructions for submitting comments.
(2) Electronic Mail: [email protected]. Include ``RIN 1219-
AB75'' in the subject line of the message.
(3) Facsimile: (202) 693-9441. Include ``RIN 1219-AB75'' in the
subject line of the message.
(4) Regular Mail: MSHA, Office of Standards, Regulations, and
Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.
(5) Hand Delivery or Courier: MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington,
Virginia 22209-3939. Sign in at the receptionist's desk on the 21st
floor.
Information Collection Requirements: Comments concerning the
information collection requirements of this proposed rule must be
clearly identified with ``RIN 1219-AB75'' and sent to both the Office
of Management and Budget (OMB) and MSHA. Comments to OMB may 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.
Comments to MSHA may be transmitted by any of the methods listed above
in this section.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA, at
[email protected] (e-mail), (202) 693-9440 (voice), or (202) 693-
9441 (facsimile).
SUPPLEMENTARY INFORMATION: The outline of this proposal is as follows:
I. Introduction
A. Availability of Information
B. Statutory and Regulatory History
II. Background Information
III. Section-by-Section Analysis
A. Section 75.360 Preshift Examination at Fixed Intervals
[[Page 81166]]
B. Section 75.361 Supplemental Examination
C. Section 75.362 On-Shift Examination
D. Section 75.363 Hazardous Conditions and Violations of
Mandatory Health or Safety Standards; Posting, Correcting, and
Recording
E. Section 75.364 Weekly examination
F. Rationale for Proposed Changes
IV. Executive Order 12866: Regulatory Planning and Review
A. Population at Risk
B. Benefits
C. Compliance Costs
D. Net Benefits
V. Feasibility
A. Technological Feasibility
B. Economic Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
A. Definition of a Small Mine
B. Factual Basis for Certification
VII. Paperwork Reduction Act of 1995
A. Summary
B. Details
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
B. Executive Order 13132: Federalism
C. The Treasury and General Government Appropriations Act of
1999: Assessment of Federal Regulations and Policies on Families
D. Executive Order 12630: Government Actions and Interference
With Constitutionally Protected Property Rights
E. Executive Order 12988: Civil Justice Reform
F. Executive Order 13045: Protection of Children From
Environmental Health Risks and Safety Risks
G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. Executive Order 13272: Proper Consideration of Small Entities
in Agency Rulemaking
IX. References
I. Introduction
A. Availability of Information
Public Comments: MSHA will post all comments on the Internet
without change, including any personal information provided. Access
comments electronically at http://www.msha.gov/regsinfo.htm. Review
comments in person at the Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign
in at the receptionist's desk on the 21st floor.
E-mail notification: MSHA maintains a list that enables subscribers
to receive e-mail notification when the Agency publishes rulemaking
documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.
B. Statutory and Regulatory History
Sections 303(d)(1), (e), and (f) of the Federal Mine Safety and
Health Act of 1977 (Mine Act) retained without change the language of
the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) setting
forth requirements for pre-shift, on-shift, and weekly examinations.
The Coal Act required that pre-shift examinations be conducted by
certified examiners within three hours prior to the next shift. Section
303(d)(1) of the Mine Act required pre-shift examinations for specified
hazards and for such other hazards and violations of the mandatory
health or safety standards, as an authorized representative of the
Secretary may from time to time require (30 U.S.C. 863(d)(1)). The pre-
shift examination generally addressed evaluating the effectiveness of
the mine's ventilation system and detecting potential hazards such as
methane accumulations, water accumulations, and adverse roof
conditions.
Section 303(e) required on-shift examinations for hazardous
conditions (30 U.S.C. 863(e)). Like the preshift examination, the on-
shift examination was included to identify hazards that developed
during the shift. Generally, the on-shift examination included tests
for methane and oxygen deficiency, an examination for hazardous
conditions such as adverse roof conditions, and air measurements at
specified locations.
Section 303(f) required weekly examinations for hazardous
conditions, including compliance with the mandatory health or safety
standards (30 U.S.C. 863(f)). The weekly examination was directed at
hazards that developed in remote and less frequently traveled areas of
the mine such as worked-out areas and bleeder entries (areas that carry
away methane). For example, methane could accumulate in these areas
which could result in an explosion if not discovered and corrected.
On November 20, 1970, MSHA issued a final rule for Preshift
Examination, On-Shift Examinations for Hazardous Conditions, and Weekly
Examinations for Hazardous Conditions (30 CFR 75.303, 304, and 305 (35
FR 17890)). The final rule restated the statutory provisions of the
Coal Act (as retained in the Mine Act).
On January 27, 1988 (53 FR 2382), MSHA issued a proposed rule to
revise the requirements for preshift, on-shift, and weekly examinations
and add a new requirement for supplemental examinations. After
evaluating the comments, MSHA issued a final rule on May 15, 1992 (57
FR 20868). Neither the proposed rule nor the final rule included a
requirement that mine examiners check for violations of mandatory
health or safety standards.
On May 19, 1994, MSHA proposed revisions to the preshift
examination requirement (59 FR 26356) to require that the examination
include violations of mandatory health or safety standards that could
result in a hazardous condition. The preamble to the proposed rule
stated that by placing the mine operator in a proactive rather than a
reactive role, the proposal would have the potential to enhance safety
by identifying a condition before a hazard exists.
MSHA published a final rule on March 11, 1996 (61 FR 97640). In
response to comments, the final rule did not include the proposed
requirement that a preshift examination include examining for
violations of mandatory health or safety standards, stating the
Agency's intent to focus the attention of the examiner on critical
areas so that the examiner could identify conditions that pose a hazard
to miners.
II. Background Information
Underground coal mines are dynamic work environments where the
working conditions change rapidly and without warning. Diligent
compliance with safety and health standards and safety conscious work
practices provide a substantial measure of protection against mine
accidents and emergencies.
Examinations are the first line of defense for miners working in
underground coal mines and are necessary to protect miners. At the
beginning of the shift, miners in an underground coal mine are
particularly vulnerable to hazards and conditions in the workplace that
developed during the prior shift; the preshift and supplemental
examinations are intended to protect them. The proposal would require
that pre-shift and supplemental examinations include violations of
mandatory health or safety standards. The existing standard requires
operators to identify and record hazardous conditions. It further
requires that a hazardous condition be corrected immediately or the
area remain posted with a conspicuous danger sign where anyone entering
the area would pass. Under the proposal, MSHA would continue its
practice under the existing standard that operators prioritize and
correct violations based on the seriousness of the hazard.
Under the proposed standards, MSHA intends that examiners who
conduct on-shift examinations identify and
[[Page 81167]]
correct hazardous conditions and violations of mandatory health or
safety standards that arise during the miners' shift. MSHA also intends
that weekly examiners identify and correct hazardous conditions and
violations of mandatory health or safety standards during their
required examinations as well. Therefore, MSHA is proposing that all
required examinations be conducted in an effective and consistent
manner to assure that hazardous conditions and violations of mandatory
health or safety standards are timely identified and corrected.
Consistent with the Mine Act, the proposal would add a requirement
that examiners conducting preshift, supplemental, on-shift, and weekly
examinations identify and correct violations of mandatory health or
safety standards. Under the proposal, operators would also have to
record these violations, and the actions taken to correct them.
The proposal would also add a new requirement that mine operators
review with mine examiners (e.g. the mine foreman, assistant mine
foreman, or other certified persons) on a quarterly basis all citations
and orders issued in areas where preshift, supplemental, on-shift, and
weekly examinations are required. The proposal would require that
certified mine examiners conduct more complete and thorough
examinations, thereby providing a greater level of protection for
underground coal miners.
MSHA reviewed accident investigation reports and the Agency's
enforcement data on underground coal mines and concluded that the
Agency needed to propose changes to the existing examination
requirements for underground coal mines. By reviewing records and data
over a 5-year period, MSHA determined that the same types of violations
of mandatory health or safety standards are found by MSHA inspectors in
underground coal mines every year. These repeated violations expose
miners to unnecessary safety and health risks that should be found and
corrected. Violations for accumulations of combustible materials,
ventilation and roof control plans, and maintenance of incombustible
content of rock dust are the top ten cited safety standards year after
year. These standards accounted for about 40 percent of the total
violations at underground coal mines in 2009. Under the proposal, MSHA
intends that an examiner looking for violations of mandatory health or
safety standards would identify these types of violations. MSHA data
reveals that citations are routinely issued for improperly constructed
airlock doors or improperly maintained ventilation controls. Absent
other conditions, such as an accumulation of combustible materials and
a misaligned conveyor belt, an operator might not consider these to be
hazardous conditions. However, conditions in underground coal mines
change rapidly--roof that appears adequately supported can quickly
deteriorate and fall; stoppings can crush out and short-circuit air
currents; conveyor belts can become misaligned or belt roller bearings
can fail, resulting in an ignition source; and methane can accumulate
in areas where it may not have been detected. To assure optimum safety
of miners, it is imperative that operators find violations of health or
safety standards, correct them, and record corrective actions taken.
MSHA does not intend that the proposal would significantly change
the general scope of examinations under the existing standards.
Examiners would not be required to perform additional tests, take
additional measurements, or open and examine equipment or boxes. In
accordance with the proposed rule, mine examiners would have to note
violations and record them in the examination records and the operator
would have to assure they are corrected. The top 10 standards cited by
MSHA inspectors are the types of violations that well-trained and
qualified examiners can observe while conducting effective
examinations.
III. Section-by-Section Analysis
A. Section 75.360 Preshift Examination at Fixed Intervals
The proposed rule would revise the existing preshift examination
standard to: (1) Add a requirement for operators to check for
violations of mandatory health or safety standards; (2) require that
examinations the District Manager may require in other areas of the
mine include examining for violations of mandatory health or safety
standards; and (3) expand the existing recordkeeping requirements to
include violations of mandatory health or safety standards. The
proposed rule would make conforming changes to the existing requirement
that allows pumpers, who are certified persons, to perform the preshift
examination for themselves. Under the proposal, examinations conducted
by pumpers would include identifying violations of mandatory health or
safety standards.
B. Section 75.361 Supplemental Examination
The proposal would revise the supplemental examination standard to
require the operator to identify violations of mandatory health or
safety standards. Under the existing standard, before any person enters
an area that did not have a preshift examination, a certified person
must perform a supplemental examination to identify hazardous
conditions. This proposed change would require that examiners
conducting supplemental examinations identify hazardous conditions and
violations of mandatory health or safety standards to provide necessary
protection for miners.
C. Section 75.362 On-Shift Examination
The proposal would revise the on-shift examination standard to
require the operator to identify violations of mandatory health or
safety standards during any shift when anyone is assigned to work on
the section and where mechanized mining equipment is being installed or
removed. The existing standard only requires examinations for hazardous
conditions.
D. Section 75.363 Hazardous Conditions and Violations of Mandatory
Health or Safety Standards; Posting, Correcting, and Recording
The proposal would revise the existing standard for correcting,
posting, and recording hazardous conditions. The proposal would require
the operator to correct all violations of mandatory health or safety
standards found during preshift, supplemental, on-shift, and weekly
examinations. Under the proposal, operators would have to correct
violations within a reasonable time. For example, during the preshift
examination, an operator may determine that it is necessary to purchase
a piece of equipment to fix a violation and that it may take two days
to get the equipment. Assuming that the violation does not pose a
hazard to miners, the two days would generally be considered
reasonable. The existing standard only requires the operator to correct
hazardous conditions.
The proposal would also require that violations of mandatory health
or safety standards found during the examinations, and the corrective
actions taken, be recorded. The existing standard only requires a
record for hazardous conditions.
The proposal would also add a new provision that would require that
the operator review with mine examiners (e.g. the mine foreman,
assistant mine foreman, or other certified persons), on a quarterly
basis, all citations and orders issued in areas where preshift,
supplemental, on-shift, and weekly examinations are required. This
[[Page 81168]]
proposed requirement is intended so that operators can reinforce with
all examiners the types of violations and conditions that they should
be identifying during their examinations to determine if there are
systemic problems. The proposal would improve the quality of these
vital examinations and complement an effective mine safety and health
management program.
E. Section 75.364 Weekly Examination
The proposal would revise the weekly examination standard to
require the weekly examiner to identify violations of mandatory health
or safety standards. Under the existing rule, the weekly examiner is
required to examine for hazardous conditions. The proposal includes
conforming changes to the existing requirements related to correcting
and recording hazardous conditions to require correcting and recording
violations of mandatory health or safety standards.
F. Rationale for the Proposed Changes
The proposed changes to all five standards in this rulemaking
provide a more protective approach to conducting examinations in
underground coal mines. The proposal would require mine operators to
identify, correct, and record violations, and record corrective
actions. Under the existing standards, operators observe conditions and
only record and note corrective actions for hazardous conditions. The
conditions that they do not believe are hazardous do not have to be
recorded or corrected at the time of the examination.
MSHA reviewed all of the accident investigation reports involving
fatalities from 2005 through 2009 where an inadequate examination of
the underground work area was determined to have contributed to the
accident. In addition, the agency reviewed citations and orders for
non-fatal accidents for the same period where an inadequate examination
of the underground work area contributed to the accident. MSHA
determined that in 20 of these accidents, although the examiner did not
identify a hazardous condition, the conditions involved a violation of
a mandatory health or safety standard. Had the examiner identified
these violations and corrected the conditions, the accident could have
been prevented. (The details of MSHA's analysis are presented in the
discussion of benefits.) These accident reports and citation and order
narratives are included in the rulemaking docket and can be examined at
the address listed in the ADDRESSES section of this notice. They may
also be viewed at http://www.msha.gov or http://www.regulations.gov.
The proposal would require operators to be more proactive in their
approaches to mine health and safety, and find and fix hazardous
conditions and violations of mandatory health or safety standards. As a
result, conditions that might have been identified only by MSHA
inspectors would now be found and corrected by the operator. Under the
existing standards violations may go undetected and uncorrected because
operators do not believe that they constitute hazardous conditions.
The proposed rule would require the operator to be more proactive
in creating a culture of safety at the mine. It would enhance miners'
safety because violations of health or safety standards would be
identified and corrected, removing many of the conditions that could
lead to danger in underground coal mines. MSHA solicits comments on
other alternatives for assuring that operators examine for violations
of mandatory health or safety standards, record and correct violations,
and review violations with examiners.
IV. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (E.O.) 12866 (58 FR 51735), a significant
regulatory action is subject to review by the Office of Management and
Budget (OMB) and the requirements contained in the Executive Order.
Section 3(f) of E.O. 12866 defines a ``significant regulatory action''
as an action that is likely to result in a rule (1) Having an annual
effect on the economy of $100 million or more, or adversely and
materially affecting a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities (also referred to as
``economically significant''); (2) creating serious inconsistency or
otherwise interfering with an action taken or planned by another
agency; (3) materially altering the budgetary impacts of entitlements,
grants, user fees, or loan programs or the rights and obligations of
recipients thereof; or (4) raising novel, legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in this Executive Order.
The proposed rule does not have an annual effect of $100 million or
more on the economy and is not an economically ``significant regulatory
action'' pursuant to section 3(f) of E.O. 12866. The proposed rule
raises novel, legal or policy issues and is therefore subject to OMB
review. MSHA requests comments on all the estimates of costs and
benefits presented in this proposed rule.
MSHA has not prepared a separate preliminary regulatory economic
analysis for this rulemaking. Rather, the analysis is presented below.
A. Population at Risk
The proposed rule applies to all underground coal mines in the
United States. There are approximately 424 active underground coal
mines employing 47,204 miners, excluding office workers. Table 1
presents the number of underground coal mines and employment.
Table 1--Underground Coal Mines and Miners, 12 Month Average as of January 2010 by Employment Size
----------------------------------------------------------------------------------------------------------------
Total employment at
underground mines,
Mine size Number of UG coal mines excluding office
workers
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................ 81 1,179
20-500 Employees.............................................. 331 29,432
501+ Employees................................................ 12 9,708
Contractors................................................... ....................... 6,885
-------------------------------------------------
Total..................................................... 424 47,204
----------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (March 2010).
Underground coal mines produced an estimated 332 million short tons
of coal in 2009. The average price of coal in underground mines in 2008
was $51.35 per short ton (Department of Energy (DOE), Energy
Information Administration (EIA), Annual Coal Report 2008, October
2009, Table 28).
[[Page 81169]]
Table 2 presents coal production and estimated revenues for 2009.
Table 2--Coal Production in Short Tons and Coal Revenues in 2009 for Underground Coal Mines
----------------------------------------------------------------------------------------------------------------
Coal production
Mine size (millions of short Coal revenue (millions
tones) of dollars)
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................ 5.0 258.6
20-500 Employees.............................................. 236.6 12,147.7
500+ Employees................................................ 90.3 4,634.6
-------------------------------------------------
Total..................................................... 331.9 17,0401.1
----------------------------------------------------------------------------------------------------------------
B. Benefits
One of MSHA's primary goals with this rulemaking is to reduce
violations of mandatory health or safety standards that occur in
underground coal mines year after year. These violations ultimately
lead to accidents, injuries and illnesses. This section presents a
summary of the potential benefits resulting from proposed changes to
requirements for preshift, supplemental, on-shift, and weekly
examinations in underground coal mines. To estimate the potential
benefits, as stated earlier, MSHA reviewed all 64 fatal accident
investigation reports from 2005 through 2009. In addition, the agency
reviewed citations and orders for non-fatal accidents for the same
period where an inadequate examination of the underground work area
contributed to the accident.
Over the five year review period, there were 91 fatalities in
underground coal mines. Of this total, the investigation reports for 15
of the fatalities specifically listed violations of the preshift,
supplemental, on-shift, or weekly examinations as contributing factors
to the accident. While these fatalities involved hazardous conditions
and should have been prevented by a proper examination in accordance
with the existing standards, the mine examiners did not identify the
conditions as being hazardous prior to the fatal accidents. The
proposed rule would require the identification and correction of
violations of mandatory health and safety standards, which involves
less subjective judgment on the part of mine examiners than determining
whether conditions are hazardous. After analysis of the 15 fatalities,
MSHA determined that 9 of them involved violations of mandatory health
or safety standards and could have been prevented by a proper
examination in accordance with the proposed rule. Thus, MSHA estimates
that if the violations of mandatory health or safety standards were
identified as required by the proposed rule, these 9 fatalities, or
approximately two fatalities per year (9 fatalities/5 years) could have
been prevented through necessary corrective actions.
The fatalities reported above specifically listed violations of the
preshift, supplemental, on-shift, or weekly examinations as
contributing factors to the accident. MSHA also examined the fatal
investigation reports that did not list violations of the preshift,
supplemental, on-shift or weekly examinations as contributing factors
to the accident to determine if a violation of any of the top 10 cited
standards were listed as a contributing cause of the accident. MSHA's
review included the following 10 health and safety standards that are
most cited by MSHA inspectors year after year:
Sec. 75.202(a). The roof, face, and ribs of areas where
persons work or travel shall be supported or otherwise controlled to
protect persons from hazards related to falls of the roof, face or ribs
and coal or rock bursts.
Sec. 75.220(a)(1). Each mine operator shall develop and
follow a roof control plan, approved by the District Manager, that is
suitable to the prevailing geological conditions, and the mining system
to be used at the mine. Additional measures shall be taken to protect
persons if unusual hazards are encountered.
Sec. 75.333(h). All ventilation controls, including
seals, shall be maintained to serve the purpose for which they were
built.
Sec. 75.370(a)(1). The operator shall develop and follow
a ventilation plan approved by the district manager. The plan shall be
designed to control methane and respirable dust and shall be suitable
to the conditions and mining system at the mine * * *.
Sec. 75.400. Coal dust, including float coal dust
deposited on rock-dusted surfaces, loose coal, and other combustible
materials, shall be cleaned up and not be permitted to accumulate in
active workings, or on diesel-powered and electric equipment therein.
Sec. 75.403. Where rock dust is required to be applied,
it shall be distributed upon the top, floor, and sides of all
underground areas of a coal mine and maintained in such quantities that
the incombustible content of the combined coal dust, rock dust, and
other dust shall be not less than 65 per centum * * *.
Sec. 75.1403. Other safeguards adequate, in the judgment
of an authorized representative of the Secretary, to minimize hazards
with respect to transportation of men and materials shall be provided.
Sec. 75.1722(a). Gears; sprockets; chains; drive, head,
tail, and take-up pulleys; flywheels; couplings, shafts; saw blades;
fan inlets; and similar exposed moving machine parts which may be
contacted by persons, and which may cause injury to persons shall be
guarded.
Sec. 75.1725(a). Mobile and stationary machinery and
equipment shall be maintained in safe operating condition and machinery
and equipment in unsafe condition shall be removed from service
immediately.
Sec. 75.1731(a). Damaged rollers, or other damaged belt
conveyor components, which pose a fire hazard must be immediately
repaired or replaced. All other damaged rollers, or other damaged belt
conveyor components, must be repaired or replaced.
Based upon the Agency's review of these reports, MSHA determined
that three additional fatalities could have been prevented by the
proposed rule by identifying violations of mandatory health or safety
standards and making necessary corrective actions. Thus MSHA estimates
that the proposed rule could have prevented a total of up to 12
fatalities (nine where an inadequate examination was listed as a
contributing factor and three where violations of any of the top 10
cited standards was listed as a contributing factor), or approximately
five fatalities every two years. During the five-year review period,
there were 91 fatalities in underground coal mines. MSHA estimates the
proposed rule could have prevented 13 percent of those fatalities
[[Page 81170]]
(12/91 fatalities). The fatal investigation reports for all 12
fatalities are included in the rulemaking docket and can be examined at
the address listed in the ADDRESSES section of this notice. They may
also be viewed at http://www.msha.gov or http://www.regulations.gov.
In addition to reducing the number of fatalities, the proposed rule
would reduce the number of injuries. To estimate the number of injuries
that would be prevented for the period 2005 through 2009, MSHA reviewed
the descriptions of 75 accidents involving 90 non-fatal injuries where
the citation or order listed some combination of an inadequate
examination or one of the top 10 cited standards as a contributing
cause of the accident. MSHA determined that the proposed rule would
have prevented 32 nonfatal injuries. Thus MSHA estimates that the
proposed rule would have prevented approximately 13 non-fatal injuries
every two years (32 non-fatal injuries/5 years).
MSHA believes that the proposed rule would also reduce respirable
dust exposures in underground coal mines. According to a recent NIOSH
report:
Respirable dust exposure has long been known to be a serious
health threat to workers in many industries. In coal mining,
overexposure to respirable coal mine dust can lead to coal workers'
pneumoconiosis (CWP). CWP is a lung disease that can be disabling
and fatal in its most severe form. In addition, miners can be
exposed to high levels of respirable silica dust, which can cause
silicosis, another disabling and/or fatal lung disease. Once
contracted, there is no cure for CWP or silicosis. The goal,
therefore, is to limit worker exposure to respirable dust to prevent
development of these diseases * * *. The tremendous human and
financial costs resulting from CWP and silicosis in the U.S.
underground coal mine workforce are shown by the following
statistics:
During 1970-2004, CWP was a direct or contributing
cause of 69,377 deaths of U.S. underground coal mine workers.
During 1980-2005, over $39 billion in CWP benefits were
paid to underground coal miners and their families.
Recent x-ray surveillance data for 2000-2006 show an
increase in CWP cases. Nearly 8% of examined underground coal miners
with 25 or more years of experience were diagnosed with CWP * * *.
Ventilating air to a * * * mining section, whether blowing or
exhausting, is the primary means of protecting workers from
overexposure to respirable dust.'' (NIOSH 2010)
Mine examinations are critical to ensuring that all of the
requirements in the mine ventilation plan, including the dust control
plan, are in place and working. Examiners check section and outby
ventilation controls and the respirable dust control parameters which
are key factors in reducing miners' exposure to respirable coal mine
dust. MSHA believes that the proposal could provide better
identification and correction of violations of the ventilation
standards. This could lower miners' exposure to respirable coal mine
dust, thereby lowering the incidence of black lung and other
respiratory diseases. However, MSHA is addressing reducing miners'
exposure to respirable coal mine dust in a separate rulemaking (RIN
1219-AB64, 75 FR 64412). Due to lack of data, MSHA is unable to
incrementally quantify the reduced incidence of disease attributable to
this proposed rule alone. The number of fatalities and injuries that
may be prevented by this proposed rule may be understated or
overstated. MSHA requests comments on the Agency's estimate of
benefits, as well as supporting data.
Below MSHA provides estimates monetizing the potential benefits of
the proposed rule for informational purposes only. Under the Mine Act,
MSHA is not required to use monetized benefits or estimated net
benefits as the basis for its decision.
MSHA based its estimates of the monetary values for the benefits
associated with the proposed rule on relevant literature. To estimate
the monetary values of these reductions in cases, MSHA performed an
analysis of the imputed value of fatalities avoided based on a
willingness-to-pay approach. This approach relies on the theory of
compensating wage differentials (i.e., the wage premium paid to workers
to accept the risk associated with various jobs) in the labor market. A
number of studies have shown a correlation between higher job risk and
higher wages, suggesting that employees demand monetary compensation in
return for incurring a greater risk of injury or fatality.
Viscusi & Aldy (2003) conducted an analysis of studies that use a
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and found that each fatality
avoided was valued at approximately $7 million and each lost work-day
injury was approximately $50,000 in 2000 dollars. Using the GDP
Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an
estimate of $8.7 million for each fatality avoided and $62,000 for each
injury avoided in 2009 dollars. This value of a statistical life (VSL)
estimate is within the range of the substantial majority of such
estimates in the literature ($1 million to $10 million per statistical
life), as discussed in OMB Circular A-4 (OMB, 2003).
Although MSHA is using the Viscusi & Aldy (2003) study as the basis
for monetizing the expected benefits of the proposed rule, the Agency
does so with several reservations, given the methodological
difficulties involved in estimating the compensating wage differentials
(see Hintermann, Alberini and Markandya, 2008). Furthermore, these
estimates pooled across different industries may not capture the unique
circumstances faced by coal miners. For example, some have suggested
that VSL models be disaggregated to account for different levels of
risk, as might occur in coal mining (see Sunstein, 2004). In addition,
coal miners may have few options of alternative employers and in some
cases only one employer (near-monopsony or monopsony) that may depress
wages below those in a more competitive labor market.
MSHA recognizes that monetizing the VLS is difficult and involves
uncertainty and imprecision. In the future, MSHA plans to work with
other agencies to refine the approach taken in this proposed rule.
Based upon the estimated prevention of 2.4 fatalities and 6.4 lost-
time injuries per year, MSHA estimates that the proposed rule could
result in monetized benefits of up to $21.3 million per year (2.4 x
$8.7 million + 6.4 x $62,000).
C. Compliance Costs
Table 3--Summary of Annual Costs to Underground Coal Mine Operators
----------------------------------------------------------------------------------------------------------------
Number of employees
Requirement ------------------------------------------------ Totals
1-19 20-500 501+
----------------------------------------------------------------------------------------------------------------
75.360 PreShift Exam............................ $690,000 $8,410,000 $530,000 $9,630,000
75.361 Supplemental Exam........................ 3,000 70,000 3,000 76,000
75.362 On-Shift Exam............................ 340,000 4,210,000 270,000 4,820,000
75.363(e) Review of Citations and Orders........ 24,000 411,000 92,000 557,000
[[Page 81171]]
75.364 Weekly Exam.............................. 36,000 150,000 5,000 191,000
---------------------------------------------------------------
Totals...................................... 1,093,000 13,281,000 900,000 15,274,000
----------------------------------------------------------------------------------------------------------------
Based on experience, MSHA estimates the preshift and on-shift
examinations would be conducted by a supervisory certified examiner
(paid an hourly rate of $84.70, including benefits). The supplemental
and weekly examinations would be conducted by non-supervisory certified
examiners (paid an hourly rate of $35.30, including benefits).
Preshift Examination at Fixed Intervals--Proposed Sec. 75.360
Under existing Sec. 75.360, MSHA estimated that it would take an
examiner at a typical small mine 2 hours to complete a preshift
examination and an examiner at a typical large mine 3 hours to complete
the preshift examination. Proposed Sec. 75.360 would require examiners
conducting preshift examinations to identify violations of mandatory
health or safety standards, and record the violations found along with
the corrective actions taken. Based upon Agency data and experience,
MSHA estimates that it would take a certified examiner, earning a
supervisory wage of $84.70 an hour (includes benefits), an additional
30 minutes (0.5 hrs) per preshift examination to identify violations
and record them along with the corrective actions taken. MSHA estimates
that mines with 1-19 employees operate 200 days per year; 20-500
employees, 300 days per year; and 501+ employees, 350 days per year.
MSHA also estimates there would be 1 exam per day at mines with 1-19
employees, 2 exams per day at mines with 20-500 employees, and 3 exams
per day at mines with 501+ employees.
This would result in estimated costs of $9.6 million: $686,100 in
mines with 1-19 employees (81 mines x 1 exam per day x 200 days a year
x 0.5 hours x $84.70 per hour); $8.4 million in mines with 20-500
employees (331 mines x 2 exams per day x 300 days a year x 0.5 hours x
$84.70 per hour); and $533,600 in mines with 501+ employees (12 mines x
3 exams per day x 350 days a year x 0.5 hours x $84.70 per hour).
Supplemental Examination--Proposed Sec. 75.361
Under existing Sec. 75.361, MSHA estimated that it would take an
examiner at a typical mine 0.5 hours to complete a supplemental
examination. Proposed Sec. 75.361 would require examiners conducting
supplemental examinations to identify violations of mandatory health or
safety standards. Based upon Agency data and experience, MSHA estimates
that it would take a certified examiner, earning a non-supervisory wage
of $35.30 an hour (includes benefits), an additional 15 minutes (0.25
hrs.) to identify and record violations of mandatory health or safety
standards and the corrective actions taken. Supplemental examinations
are only performed in areas where a preshift examination has not been
conducted. MSHA estimates that examiners would perform supplemental
examinations 4 times per year at mines with 1-19 employees and 24 times
per year at mines with 20-500 employees and 501+ employees.
This would result in estimated costs of $75,500: $2,900 in mines
with 1-19 employees (81 mines x 4 exams per mine x 0.25 hours per exam
x $35.30 per hour); $70,100 in mines with 20-500 employees (331 mines x
24 exams per mine x 0.25 hours per exam x $35.30 per hour); and $2,500
in mines with 501 + employees (12 mines x 24 exams per mine x 0.25
hours per exam x $35.30 per hour).
On-shift Examination--Proposed Sec. 75.362
Under existing Sec. 75.362, MSHA estimated that it would take an
examiner at a typical small mine 450 minutes (0.67 hours) to complete
an on-shift examination and an examiner at a typical large mine 45
minutes (0.75 hours) to complete the on-shift examination. Proposed
Sec. 75.362 would require examiners conducting on-shift examinations
to identify violations of mandatory health or safety standards. Based
upon Agency data and experience, MSHA estimates that it would take a
certified examiner, earning a supervisory wage of $84.70 an hour
(includes benefits), an additional 15 minutes (0.25 hrs.) to identify
and record violations of mandatory health or safety standards and the
corrective actions taken. On-shift examinations are performed during
each working shift. MSHA estimates that there is 1 shift per day at
mines with 1-19 employees; 2 shifts per day at mines with 20-500
employees; and 3 shifts per day at mines with 501+ employees. MSHA
estimates that mines with 1-19 employees operate 200 days per year; 20-
500 employees, 300 days per year; and 501+ employees, 350 days per
year.
This would result in estimated costs of $4.8 million: $343,000 in
mines with 1-19 employees (81 mines x 1 shift per day x 200 days per
year x 0.25 hours per shift x $84.70 per hour); $4.2 million in mines
with 20-500 employees (331 mines x 2 shifts per day x 300 days per year
x 0.25 hours per shift x $84.70 per hour); and $266,800 in mines with
501 + employees (12 mines x 3 shifts per day x 350 days per year x 0.25
hours per shift x $84.70 per hour).
Hazardous Conditions and Violations of Mandatory Health or Safety
Standards; Posting, Correcting and Recording--Proposed Sec. 75.363(b)
Proposed Sec. 75.363 would require examiners to record violations
of mandatory health or safety standards and the corrective actions
taken for supplemental and on-shift examinations. The costs associated
with this proposed requirement are included in cost estimates for
proposed Sec. Sec. 75.361 and 75.362 above.
Review of Citations and Orders--Proposed Sec. 75.363(e)
Proposed Sec. 75.363(e) is a new requirement that would require
the operator to review with mine examiners (e.g. the mine foreman,
assistant mine foreman, or other certified persons) on a quarterly
basis citations and orders issued in areas where preshift,
supplemental, on-shift, and weekly examinations are required. Based
upon Agency data and experience, MSHA estimates that 80 percent of
underground coal mine operators currently discuss violations with
examiners; therefore, approximately 20 percent (84 agents of the
operators, 641 examiners for preshift and on-shift examinations, and
158 examiners for weekly and supplemental examinations) would need to
review the citations and orders as follows: 16 agents, 49 preshift
[[Page 81172]]
and on-shift examiners, and 16 weekly and supplemental examiners in
mines with 1-19 employees; 66 agents, 530 preshift and on-shift
examiners, and 132 weekly and supplemental examiners in mines with 20-
500 employees; and 2 agents, 62 preshift and on-shift examiners, and 10
weekly and supplemental examiners in mines with 501+ employees. MSHA
also estimates that these reviews would take 1 hour in mines with 1-19
employees, 2 hours in mines with 20-500 employees, and 4 hours in mines
with 501+ employees.
Examiners on preshift and on-shift exams are supervisors earning an
hourly wage of $84.70 and examiners on weekly and supplemental exams
are certified examiners earning an hourly wage of $35.30. MSHA
estimates the operator's agent conducting the review earns an hourly
wage of $84.70.
This would result in estimated costs of $557,000: $24,000 in mines
with 1-19 employees [((16 agents + 49 examiners) x $84.70) x (4
meetings x 1 hour)] + [(16 examiners x $35.30) x (4 meetings x 1
hour)]; $441,000 in mines with 20-500 employees [((66 agents + 530
examiners) x $84.70) x (4 meetings x 2 hours)] + [(132 examiners x
35.30) x (4 meetings x 2 hours)]; and $92,000 in mines with 501+
employees [((2 agents + 62 examiners) x $84.70) x (4 meetings x 4
hours)] + [(10 examiners x $35.30) x (4 meetings x 4 hours)].
Weekly Examination--Proposed Sec. 75.364
Under existing Sec. 75.364, MSHA estimated that it would take an
examiner at a typical small mine 5.1 hours to complete a weekly
examination and an examiner at a typical large mine 10.2 hours to
complete the weekly examination. Proposed Sec. 75.364 would require
operators to conduct examinations at least every seven days to identify
violations of mandatory health or safety standards and record the
corrective actions taken. These examinations mainly take place in
worked-out areas of the mine where violations of mandatory health or
safety standards are less likely to occur. Based upon Agency data and
experience, MSHA estimates that it would take a certified examiner,
earning a non-supervisory wage of $35.30 an hour (includes benefits),
an additional 15 minutes (0.25 hrs.) to identify and record violations
of mandatory health or safety standards and the corrective actions
taken. MSHA also estimates that, on average, mines operate for 50 weeks
out of the year.
This would result in estimated costs of $187,100: $35,700 in mines
with 1-19 employees (81 mines x 50 weeks x 0.25 hours per week x $35.30
per hour); $146,100 in mines with 20-500 employees (331 mines x 50
weeks x 0.25 hours per week x $35.30 per hour); and $5,300 in mines
with 501+ employees (12 mines x 50 weeks x 0.25 hours per week x $35.30
per hour).
Corrective Actions
MSHA's estimates do not include the costs of any corrective actions
that would be necessary to come into compliance with the underlying
regulatory requirements. These costs were included in MSHA's estimates
associated with existing regulations and are not new compliance costs
resulting from the proposed rule. Rather than waiting for violations to
be either identified by a MSHA inspector or rise to the level of a
hazardous condition and be identified by a mine examiner, the proposed
rule would require mine operators to identify violations of mandatory
health and safety standards during the mine examinations. This would
prevent some accidents because mine operators would be required to take
corrective actions earlier than under the existing standards, i.e.,
before a hazardous condition develops. Although the proposed rule would
result in operators taking corrective actions sooner, it would not
increase the costs of the corrective actions. Under MSHA's
requirements, if cited, operators must correct a violation of a
mandatory health or safety standard (such as removing coal dust
accumulations from conveyor belts or maintaining equipment in safe
operating condition) in order to abate the citation.
MSHA requests comments on the Agency's estimate of costs, as well
as supporting data.
V. Feasibility
MSHA has concluded that the requirements of the proposed rule are
technologically and economically feasible. The existing regulations
require mine operators to perform the examinations to identify
hazardous conditions. The proposed rule would expand the requirement to
include identifying violations of mandatory health or safety standards.
A. Technological Feasibility
MSHA concludes that the proposed rule is technologically feasible
because it would simply require operators to identify, record and
correct violations of mandatory health or safety standards. There are
no technology issues raised by the proposed rule.
B. Economic Feasibility
MSHA concludes that the proposed rule is economically feasible. The
U.S. underground coal sector produced an estimated 332 million short
tons of coal in 2009. Multiplying the production by the 2008 price of
underground coal of $51.35 per short ton yields estimated 2009
underground coal revenues of approximately $17 billion. MSHA estimated
the yearly compliance cost of the proposed rule to be $15.3 million,
which is 0.09 percent of revenues ($15.3 million/$17 billion) for
underground coal mines. MSHA has traditionally used a revenue screening
test--whether the yearly compliance costs of a regulation are less than
1 percent of revenues--to establish presumptively that compliance with
the regulation is economically feasible for the mining community.
VI. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), MSHA has analyzed the impact of the proposed rule on small
businesses. Based on that analysis, MSHA has notified the Chief Counsel
for Advocacy, Small Business Administration, and made the certification
under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the
proposed rule will not have a significant economic impact on a
substantial number of small entities. The factual basis for this
certification is presented below.
A. Definition of a Small Mine
Under the RFA, in analyzing the impact of the proposed 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.
In addition to examining small entities as defined by SBA, MSHA has
also looked at the impact of this proposed rule on underground coal
mines 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
[[Page 81173]]
number of employees, but also in economies of scale in material
produced, in the type and amount of production equipment, and in supply
inventory. Therefore, the cost of complying with the proposed rule and
the impact of the proposed rule on small mines will also be different.
It is for this reason that small mines are of special concern to MSHA.
MSHA concludes that it can certify that the proposed rule will not
have a significant economic impact on a substantial number of small
entities that are covered by this proposed rule. The Agency has
determined that this is the case both for mines with fewer than 20
employees and for mines with 500 or fewer employees.
B. Factual Basis for Certification
MSHA initially evaluates the impacts on ``small entities'' by
comparing 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 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
exceed one percent of revenues, MSHA investigates whether a further
analysis is required.
For underground coal mines, the estimated preliminary 2009
production was approximately 5 million tons for mines that had fewer
than 20 employees and 242 million tons for mines that had 500 or fewer
employees. Using the 2008 price of underground coal of $51.35 per short
ton and total 2009 coal production in short tons, underground coal
revenues are estimated to be approximately $258.6 million for mines
employing fewer than 20 employees and $12.4 billion for mines employing
500 or fewer employees. The annual cost of the proposed rule for mines
that have fewer than 20 employees is 0.43 percent ($1.1 million/$258.6
million) of annual revenues, and the annual cost of the proposed rule
for mines that have 500 or fewer employees is 0.12 percent ($14.4
million/$12.4 billion) of annual revenues. 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), the yearly costs for underground coal mines to comply with
the proposed rule will be less than 1 percent of their estimated
revenues. Accordingly, MSHA has certified that the proposed rule will
not have a significant impact on a substantial number of small entities
that are covered by the proposed rule.
VII. Paperwork Reduction Act of 1995
A. Summary
This proposed rule contains changes that would affect the burden in
an existing paperwork package with OMB Control Number 1219-0088. The
proposed rule also contains a new burden for collection requirements
which is shown in Table 5. The proposed rule would result in 13,257
burden hours and related costs of approximately $1 million annually.
Table 5--Summary of Burden Hours and Costs
----------------------------------------------------------------------------------------------------------------
Requirement Burden hours Cost
----------------------------------------------------------------------------------------------------------------
75.360 PreShift exam.......................................... 11,370 $963,039
75.363 Record of Hazards...................................... 827 61,649
75.364 Weekly exam............................................ 1,060 37,418
-------------------------------------------------
Totals.................................................... 13,257 1,062.106
----------------------------------------------------------------------------------------------------------------
Proposed Sec. 75.360--Burden to Make a Record of the Preshift
Examination
Proposed Sec. 75.360 would require operators to record any
violations of mandatory health or safety standards found along with the
corrective actions taken. MSHA estimates that it would take a certified
examiner an average of 3 minutes (0.05 hrs.) out of the total time
needed to perform the examination to record the violations along with
any corrective actions taken. An examiner conducting a preshift exam
earns a supervisory wage of $84.70 an hour (includes benefits). MSHA
estimates that mines with 1-19 employees operate 200 days per year,
mines with 20-500 employees operate 300 days per year, and mines with
501+ employees operate 350 days per year. MSHA also estimates there
will be 1 exam per day at mines with 1-19 employees, 2 exams per day at
mines with 20-500 employees, and 3 exams per day at mines with 501+
employees.
MSHA's estimates of underground coal operators' annual burden hours
and related costs are presented below.
Burden Hours
81 mines x 1 exam x 200 days x 0.05 hrs. = 810 hrs.
331 mines x 2 exams x 300 days x 0.05 hrs. = 9,930 hrs.
12 mines x 3 exams x 350 days x 0.05 hrs. = 630 hrs.
Total Hours = 11,370 hrs.
Burden Costs
11,370 hrs. x $84.70 per hour = $963,039.
Proposed Sec. 75.363--Burden To Make a Record of Violations Found
Proposed Sec. 75.363 would require operators to record any
violations of mandatory health or safety standards found on
supplemental and on-shift examinations and any corrective actions
taken. The proposed preshift (Sec. 75.360) and weekly (Sec. 75.364)
examinations have their own recordkeeping requirements. The proposed
supplemental (Sec. 75.361) and on-shift (Sec. 75.362) standards would
contain new recordkeeping requirements if a violation of a mandatory
health or safety standard is found. The recordkeeping for these
proposed standards would be recorded under proposed Sec. 75.363.
During FY 2005 through 2009, MSHA inspectors found an annual
average of 22,062 violations of the top 10 cited standards MSHA
believes are most likely to be identified on preshift, supplemental,
on-shift, and weekly examinations (see Section IV.B.). Because
conditions resulting in these violations can occur and require
corrective action multiple times during the year (e.g., insufficient
rock dust), MSHA multiplied the 22,062 violations found by MSHA
inspectors by a factor of 1.5 to arrive at an estimated 33,093
violations that could be found by mine examiners. MSHA assumes that
half of these violations, 16,547 violations, would be identified on the
preshift and weekly examinations and the other half would be identified
on supplemental and on-shift examinations.
Thus, MSHA estimates that the supplemental and on-shift examiners
would find approximately 39 violations per year per mine (16,547
violations/424 mines). MSHA estimates that 80 percent
[[Page 81174]]
of these (31 violations) would be found on the on-shift examinations
and 20 percent (8 violations) would be found on the supplemental
examinations. MSHA estimates that it would take 3 minutes (0.05 hrs.)
to record any violations identified and the corrective actions taken.
Supervisors earning $84.70 an hour perform on-shift exams and certified
examiners earning $35.30 perform weekly exams.
MSHA's estimates of underground coal operators' annual burden hours
and related costs are presented below.
Burden Hours
424 mines x 31 violations x 0.05 hrs. = 657 hrs.
424 mines x 8 violations x 0.05 hrs. = 170 hrs.
Total Hours = 827 hrs.
Burden Costs
657 hrs. x $84.70 wage rate = $55,648.
170 hrs. x $35.30 wage rate = $6,001.
Total burden cost = $61,649.
Proposed Sec. 75.364--Burden To Make a Record of the Weekly
Examinations
Proposed Sec. 75.364 would require operators to conduct
examinations every seven days to record violations of mandatory health
or safety standards found and the corrective actions taken. MSHA
estimates that it would take a certified examiner 3 minutes (0.05 hrs.)
out of the total time needed to perform the examinations to record
violations and any corrective actions taken. An examiner conducting
these examinations earns a non-supervisory wage of $35.30 an hour
(includes benefits). MSHA also estimates that, on average, mines
operate for 50 weeks out of the year.
MSHA's estimates of underground coal operators' annual burden hours
and related costs are presented below.
Burden Hours
424 mines x 50 weeks x 0.05 hrs. = 1,060 hrs.
Burden Costs
1,060 hrs. x $35.30 wage rate = $37,418
B. Procedural Details
The information collection package for this proposed rule has been
submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the
Paperwork Reduction Act of 1995, as amended.
Comments on the information collection requirements should be sent
to both OMB and MSHA. Addresses for both offices can be found in the
ADDRESSES section of this preamble. The regulated community is not
required to respond to any collection of information unless it displays
a current, valid, OMB control number. MSHA displays the OMB control
numbers for the information collection requirements in its regulations
in 30 CFR part 3.
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
MSHA has reviewed the proposed rule under the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1501 et seq). MSHA has determined that
this proposed rule 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
in any one year or 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. Executive Order 13132: Federalism
This proposed rule does not have ``federalism implications''
because it will not ``have substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Accordingly, under E.O. 13132, no further Agency
action or analysis is required.
C. The Treasury and General Government Appropriations Act of 1999:
Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact
of Agency action on family well-being. MSHA has determined that this
proposed rule will have no effect on family stability or safety,
marital commitment, parental rights and authority, or income or poverty
of families and children. This proposed rule impacts only the
underground coal mine industry. Accordingly, MSHA certifies that this
proposed rule would not impact family well-being.
D. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
This proposed rule does not implement a policy with takings
implications. Accordingly, under E.O. 12630, no further Agency action
or analysis is required.
E. Executive Order 12988: Civil Justice Reform
This proposed rule was written to provide a clear legal standard
for affected conduct and was carefully reviewed to eliminate drafting
errors and ambiguities, so as to minimize litigation and undue burden
on the Federal court system. Accordingly, this proposed rule will meet
the applicable standards provided in section 3 of E.O. 12988, Civil
Justice Reform.
F. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This proposed rule will have no adverse impact on children.
Accordingly, under E.O. 13045, no further Agency action or analysis is
required.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This proposed rule does not have ``tribal implications'' because it
will not ``have substantial direct effects on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal government and Indian tribes.'' Accordingly, under E.O.
13175, no further Agency action or analysis is required.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to publish a statement of
energy effects when a rule has a significant energy action that
adversely affects energy supply, distribution or use. MSHA has reviewed
this proposed rule for its energy effects because the proposed rule
applies to the underground coal mining sector. Because this proposed
rule will result in yearly costs of approximately $15.3 million to the
underground coal mining industry, relative to annual revenues of $17
billion in 2009, MSHA has concluded that 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. Accordingly, under this
analysis, no further Agency action or analysis is required.
I. Executive Order 13272: Proper Consideration of Small Entities in
Agency Rulemaking
MSHA has thoroughly reviewed the proposed rule to assess and take
appropriate account of its potential
[[Page 81175]]
impact on small businesses, small governmental jurisdictions, and small
organizations. MSHA has determined and certified that the proposed rule
does not have a significant economic impact on a substantial number of
small entities.
IX. References
Hintermann, B., Alberini, A., and Markandya, A. (2010). ``Estimating
the Value of Safety with Labor Market Data: Are the Results
Trustworthy?'' Applied Economics, pages 1085-1100. Published
electronically in July 2008.
Sunstein, C. (2004). ``Valuing Life: A Plea for Disaggregation.''
Duke Law Journal, 54 (November 2004): 385-445.
U.S. Bureau of Economic Analysis (2010). ``National Income and
Product Accounts Table: Table 1.1.9. Implicit Price Deflators for
Gross Domestic Product'' [Index numbers, 2005 = 100]. Revised May
27, 2010. http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=13&Freq=Qtr&FirstYear=2006&LastYear=2008
U.S. Department of Health and Human Services, Public Health Service,
Centers for Disease Control and Prevention, National Institute for
Occupational Safety and Health (NIOSH 2010), ``Best Practices for
Dust Control in Coal Mining'', DHHS (NIOSH) Publication No. 2010-
110, Information Circular 9517, Jan 2010:1-76
Viscusi, W. & Aldy, J. (2003) ``The Value of a Statistical Life: A
Critical Review of Market Estimates Throughout the World'', Journal
of Risk and Uncertainty, (27:5-76).
List of Subjects in 30 CFR Part 75
Mine safety and health, Underground coal mines, Ventilation.
Dated: December 21, 2010.
Joseph A. Main,
Assistant Secretary for Mine Safety and Health.
For the reasons set out in the preamble, and under the authority of
the Federal Mine Safety and Health Act of 1977 as amended, Chapter I of
Title 30, part 75 of the Code of Federal Regulations is proposed to be
amended as follows:
PART 75--MANDATORY SAFETY STANDARDS--UNDERGROUND COAL MINES
1. The authority citation for part 75 is revised to read as
follows:
Authority: 30 U.S.C. 811, 863.
Subpart D--Ventilation
2. Paragraphs (a)(2), (b) introductory text, (e), and (g) of Sec.
75.360 are revised to read as follows:
Sec. 75.360 Preshift examination at fixed intervals.
(a) * * *
(2) Preshift examinations of areas where pumpers are scheduled to
work or travel shall not be required prior to the pumper entering the
areas if the pumper is a certified person and the pumper conducts an
examination for hazardous conditions and violations of mandatory health
or safety standards, tests for methane and oxygen deficiency, and
determines if the air is moving in its proper direction in the area
where the pumper works or travels. The examination of the area must be
completed before the pumper performs any other work. A record of all
hazardous conditions and violations of mandatory health or safety
standards found by the pumper shall be made and retained in accordance
with Sec. 75.363 of this part.
(b) The person conducting the preshift examination shall examine
for hazardous conditions and violations of mandatory health or safety
standards, test for methane and oxygen deficiency, and determine if the
air is moving in its proper direction at the following locations:
* * * * *
(e) The district manager may require the certified person to
examine other areas of the mine or examine for other hazards and
violations of mandatory health or safety standards during the preshift
examination.
* * * * *
(g) Recordkeeping. A record of the results of each preshift
examination, including a record of hazardous conditions and violations
of mandatory health or safety standards and their locations found by
the examiner during each examination and of the results and locations
of air and methane measurements, shall be made on the surface before
any persons, other than certified persons conducting examinations
required by this subpart, enter any underground area of the mine. The
results of methane tests shall be recorded as the percentage of methane
measured by the examiner. The record shall be made by the certified
person who made the examination or by a person designated by the
operator. If the record is made by someone other than the examiner, the
examiner shall verify the record by initials and date by or at the end
of the shift for which the examination was made. A record shall also be
made by a certified person of the action taken to correct hazardous
conditions and violations of mandatory health or safety standards found
during the preshift examination. All preshift and corrective action
records shall be countersigned by the mine foreman or equivalent mine
official by the end of the mine foreman's or equivalent mine official's
next regularly scheduled working shift. The records required by this
section shall be made in a secure book that is not susceptible to
alteration or electronically in a computer system so as to be secure
and not susceptible to alteration.
* * * * *
3. Paragraph (a) of Sec. 75.361 is revised to read as follows:
Sec. 75.361 Supplemental examination.
(a) Except for certified persons conducting examinations required
by this subpart, within 3 hours before anyone enters an area in which a
preshift examination has not been made for that shift, a certified
person shall examine the area for hazardous conditions and violations
of mandatory health or safety standards, determine whether the air is
traveling in its proper direction and at its normal volume, and test
for methane and oxygen deficiency.
* * * * *
4. Paragraphs (a)(1) and (b) of Sec. 75.362 are revised to read as
follows:
Sec. 75.362 On-shift examination.
(a)(1) At least once during each shift, or more often if necessary
for safety, a certified person designated by the operator shall conduct
an on-shift examination of each section where anyone is assigned to
work during the shift and any area where mechanized mining equipment is
being installed or removed during the shift. The certified person shall
check for hazardous conditions and violations of mandatory health or
safety standards, test for methane and oxygen deficiency, and determine
if the air is moving in its proper direction.
* * * * *
(b) During each shift that coal is produced, a certified person
shall examine for hazardous conditions and violations of mandatory
health or safety standards along each belt conveyor haulageway where a
belt conveyor is operated. This examination may be conducted at the
same time as the preshift examination of belt conveyors and belt
conveyor haulageways, if the examination is conducted within 3 hours
before the oncoming shift.
* * * * *
5. In Sec. 75.363, new paragraph (e) is added, and the section
heading and paragraphs (a) and (b) are revised to read as follows:
[[Page 81176]]
Sec. 75.363 Hazardous conditions and violations of mandatory health
or safety standards; posting, correcting, and recording.
(a) Any hazardous condition found by the mine foreman or equivalent
mine official, assistant mine foreman or equivalent mine official, or
other certified persons designated by the operator for the purposes of
conducting examinations under this subpart D, shall be posted with a
conspicuous danger sign where anyone entering the areas would pass. A
hazardous condition shall be corrected immediately or the area shall
remain posted until the hazardous condition is corrected. If the
condition creates an imminent danger, everyone except those persons
referred to in section 104(c) of the Act shall be withdrawn from the
area affected to a safe area until the hazardous condition is
corrected. Only persons designated by the operator to correct or
evaluate the condition may enter the posted area. Any violation of a
mandatory health or safety standard found during a preshift
examination, a supplemental examination, an on-shift examination, or a
weekly examination shall be corrected.
(b) A record shall be made of any hazardous condition and any
violation of a mandatory health or safety standard found. This record
shall be kept in a book maintained for this purpose on the surface at
the mine. The record shall be made by the completion of the shift on
which the hazardous condition or violation of a mandatory health or
safety standard is found and shall include the nature and location of
the hazardous condition or violation of the mandatory health or safety
standard and the corrective action taken. This record shall not be
required for shifts when no hazardous conditions or violations of
mandatory health or safety standards are found, or for hazardous
conditions and violations of mandatory health or safety standards found
during the preshift or weekly examinations inasmuch as these
examinations have separate recordkeeping requirements.
* * * * *
(e) Review of citations and orders. The mine operator shall review
with mine examiners on a quarterly basis citations and orders issued in
areas where preshift, supplemental, on-shift, and weekly examinations
are required.
6. The introductory text of paragraph (b) and paragraphs (d) and
(h) of Sec. 75.364 are revised to read as follows:
Sec. 75.364 Weekly examination.
* * * * *
(b) Hazardous conditions and violations of mandatory health or
safety standards. At least every 7 days, an examination for hazardous
conditions and violations of mandatory health or safety standards at
the following locations shall be made by a certified person designated
by the operator:
* * * * *
(d) Hazardous conditions shall be corrected immediately. If the
condition creates an imminent danger, everyone except those persons
referred to in section 104(c) of the Act shall be withdrawn from the
area affected to a safe area until the hazardous condition is
corrected. Any violation of a mandatory health or safety standard found
during a weekly examination shall be corrected.
* * * * *
(h) Recordkeeping. At the completion of any shift during which a
portion of a weekly examination is conducted, a record of the results
of each weekly examination, including a record of hazardous conditions
and violations of mandatory health or safety standards found during
each examination and their locations, the corrective action taken, and
the results and location of air and methane measurements, shall be
made. The results of methane tests shall be recorded as the percentage
of methane measured by the examiner. The record shall be made by the
person making the examination or a person designated by the operator.
If made by a person other than the examiner, the examiner shall verify
the record by initials and date by or at the end of the shift for which
the examination was made. The record shall be countersigned by the mine
foreman or equivalent mine official by the end of the mine foreman's or
equivalent mine official's next regularly scheduled working shift. The
records required by this section shall be made in a secure book that is
not susceptible to alteration or electronically in a computer system so
as to be secure and not susceptible to alteration.
* * * * *
[FR Doc. 2010-32410 Filed 12-22-10; 11:15 am]
BILLING CODE 4510-43-P