[Federal Register Volume 63, Number 134 (Tuesday, July 14, 1998)]
[Proposed Rules]
[Pages 38066-38071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18687]
[[Page 38065]]
_______________________________________________________________________
Part VI
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
_______________________________________________________________________
30 CFR Part 75
Safety Standards for Underground Coal Mine Ventilation; Proposed Rule
Federal Register / Vol. 63, No. 134 / Tuesday, July 14, 1998 /
Proposed Rules
[[Page 38066]]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 75
RIN 1219-AB10
Safety Standards for Underground Coal Mine Ventilation
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Proposed rule.
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SUMMARY: MSHA is proposing to amend the examination interval for
preshift examinations of underground coal mines by requiring preshift
examinations to be conducted at 8-hour intervals. After MSHA
promulgated a comprehensive revision of its ventilation standards in
March of 1996, the United States Court of Appeals for the District of
Columbia Circuit (Court) reviewed the validity of the rule. On June 17,
1997, the Court issued an order invalidating, on procedural grounds
only, the provision relating to the interval for preshift examinations.
This proposed rule would be essentially the same as the standard that
was promulgated in 1996 and invalidated by the Court on procedural
grounds. The proposed rule would clarify both when a preshift
examination would be required and the length of the shift covered by
the preshift examination.
DATES: Comments must be submitted on or before September 14, 1998.
Submit written comments on the information collection no later than
September 14, 1998.
ADDRESSES: Comments by electronic mail must be clearly identified as
such and sent to this e-mail address: comments@msha.gov. Comments by
fax must be clearly identified as such and sent to: MSHA, Office of
Standards, Regulations, and Variances, 703-235-5551. Send mail comments
to: MSHA, Office of Standards, Regulations, and Variances, 4015 Wilson
Boulevard, Room 631, Arlington, VA 22203-1984. Commenters are
encouraged to submit comments to MSHA on a computer disk along with
their original comments in hard copy. Submit written comments on the
information collection requirement to MSHA at the address above and to
the Office of Information and Regulatory Affairs, Office of Management
and Budget, New Executive Office Bldg., 725 17th St. NW., Rm. 10235,
Washington, DC 20503, Attn: Desk Officer for MSHA.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office
of Standards, Regulations, and Variances, MSHA: 703-235-1910.
SUPPLEMENTARY INFORMATION:
I. Paperwork Reduction Act
This proposed rule contains an information collection which is
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA 95). The title, description,
and respondent description of the information collection are shown
below with an estimate of the annual reporting burden. Included in the
estimate is the time to conduct an additional preshift examination, the
time to make a record, the time to obtain a countersignature from the
mine foreman or equivalent mine official, and the time to file the
form.
With respect to the following collection of information, MSHA
invites comments on: (1) Whether the proposed collection of information
is necessary for proper performance of the functions of the Agency,
including whether the information will have practical utility; (2) the
accuracy of the estimate by MSHA of the burden of the proposed
collection of information, including the validity of the methodology
and assumptions used; (3) ways to enhance the quality, utility, and
clarity of information to be collected; and (4) ways to minimize the
burden of the collection of information on respondents, including
through the use of automated collection techniques, when appropriate,
and other forms of information technology.
Description
Section 75.360(a)(1) would require that a certified person
designated by the operator make a preshift examination within 3 hours
preceding the beginning of any 8-hour interval during which any person
is scheduled to work or travel underground. Presently Sec. 75.360(f)
requires a record of the results of each preshift examination,
including a record of hazardous conditions and their locations found by
the examiner during each examination and of the results and locations
of air and methane measurements. The record must also include a
notation that the hazardous conditions found during the preshift
examination were corrected. This record must 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 mine operator has the option of conducting a portion
of the additional preshift examination concurrently with the on-shift
examination. In this instance, the additional preshift examination
essentially would consist of the examination of outby areas not covered
by an on-shift examination such as travelways, work areas, and
electrical installations. Because large mines generally have longer
outby travelways and more outby work areas and electrical installations
to be examined than small mines, the additional time to perform the
preshift examination would take longer in large mines. MSHA estimates
that it would take an examiner an additional hour to conduct an
additional preshift examination in a large underground coal mine and an
additional 45 minutes in a small underground coal mine. An examiner
would take about 30 minutes to make the record in a large mine and
about 15 minutes in a small mine, and the mine foreman or equivalent
mine official would take about 10 minutes to review and countersign the
record in a large mine and about 5 minutes in a small mine.
Description of Affected Mines
The affected mines are underground coal mines. MSHA estimates that
this provision annually would affect 127 underground coal mines (75
with fewer than 20 employees and 52 with 20 or more employees).
Information Collection Burden
Based on MSHA's traditional definition of ``small mine'' as one
with fewer than 20 employees, the total estimated burden for all
affected mines would be 78,001 hours, and compliance costs associated
with such hours would be $2,182,000. Under MSHA's traditional
definition, total burden to small mines would be 13,000 hours at a cost
of $361,000. Specifically, small mines' burden hours and costs consist
of: 9,000 hours related to conducting the additional preshift
examination at a cost of $243,000; 3,000 hours related to making the
record at a cost of $81,000; and 1,000 hours related to reviewing,
countersigning and filing the record at a cost of $37,000. The total
burden to large mines would be 65,001 hours at a cost of $1,821,000.
Large mines' burden hours and costs consist of: 39,000 hours related to
conducting the preshift examination at a cost of $1,053,000; 19,500
hours related to making the record at a cost of $527,000; and 6,501
hours related to reviewing, countersigning and filing the record at a
cost of $241,000.
Using the SBA definition, when a ``small mine'' is defined as a
mine with 500 or fewer employees, 126 of the 127 affected mines are
considered small. Under this definition, 76,751 of the 78,001 burden
hours are related to small mines. The costs related to the 76,751
burden hours are $2,147,000. Of the
[[Page 38067]]
76,751 burden hours: 47,250 hours are related to conducting the
additional preshift examination at a cost of $1,276,000; 22,125 hours
are related to making a record at a cost of $598,000; and 7,376 hours
are related to reviewing and countersigning the record at a cost of
$273,000. Burden hours to the one large mine affected would be 1,250
hours at a cost of $35,000.
Under Sec. 3507(o) of PRA 95, the Agency has submitted a copy of
this proposed rule to OMB for its review and approval of the
information collection. Interested persons are requested to send
comments regarding these burden estimates or any other aspect of this
information collection, including suggestions for reducing this burden
to: (1) the Office of Information and Regulatory Affairs, OMB, Attn:
Desk Officer for MSHA, New Executive Office Bldg., 725 17th St. NW.,
Rm. 10235, Washington, DC 20503; and (2) Patricia W. Silvey, Director,
Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson
Boulevard, Room 631, Arlington, VA 22203.
II. Background
The preshift examination is a critically important, fundamental
safety practice in the mining industry. It has historically been a
primary means of determining the effectiveness of an underground coal
mine ventilation system, and of detecting hazardous conditions and
practices. The preshift examination has proven to be particularly
effective because it provides a thorough safety check before work
commences underground on the shift for which the examination is
conducted. A preshift examination can detect developing hazards as well
as existing hazards.
The Federal Mine Safety and Health Act of 1977 (Mine Act) contains
interim mandatory safety standards that address preshift examinations.
Interim standard Sec. 303(d)(1) requires that preshift examinations be
conducted ``within 3 hours immediately preceding the beginning of any
shift * * *.'' MSHA adopted this provision as a permanent safety
standard in its regulations for underground coal mines, promulgating it
in 1978 as 30 CFR 75.303(a).
Section 303(d)(2) of the Mine Act is another interim standard that
addresses preshift examinations. It provides that no person, other than
certified persons designated to conduct the examination, is permitted
to enter any underground area, except during any shift, unless a
preshift examination of such area has been made within 8 hours prior to
the person entering the area. Under this provision, miners already
working on a shift for which a preshift has been completed may remain
working underground during the subsequent preshift examination being
conducted for the oncoming shift. In 1978, MSHA adopted this provision
as a permanent safety standard in its regulations for underground coal
mines as 30 CFR 75.303(b).
The general practice in the mining industry at the time the Mine
Act was enacted was for coal miners to work in shifts of 8 hours. Thus,
the effect of the preshift examination requirement was that examiners
conducted preshift examinations every 8 hours. Since 1977, overlapping
work shifts and work shifts of various lengths (novel work shifts) have
become common, making it necessary for MSHA to address this issue in
its 1992 revisions to the ventilation standards for underground coal
mines.
MSHA revised its preshift examination standards as part of a final
rule for ventilation standards and retained the requirement that
preshift examinations are to be conducted ``within 3 hours preceding
the beginning of any shift.'' However, in its preamble discussion to
the 1992 ventilation final rule (57 FR 20893), MSHA interpreted this
language to mean that if the mine used regular shifts that were longer
than 8 hours in length, the preshift examination would apply to the
entire length of the shift. The 1992 revisions continued to allow work
to proceed underground during the preshift examination for the oncoming
shift.
In 1994, the Agency proposed a new preshift examination rule in an
attempt to clarify and standardize the application of certain
provisions of the 1992 preshift examination rule. In the comments
submitted to MSHA during the 1994 rulemaking, a segment of the mining
community expressed concern that because of novel work schedules,
preshift examinations were not being conducted frequently enough to
assure safe working conditions. A second concern expressed was that
conducting preshift examinations at intervals longer than 8 hours would
reduce the protection afforded miners under the Mine Act. A final
concern expressed was that MSHA introduced confusion into the preshift
examination requirements when it interpreted the acceptable intervals
for preshift examinations. Another segment of the public argued that by
the language of Sec. 303(d)(2) Congress tacitly accepted shifts longer
than 8 hours with only one preshift examination required. The same
segment of the public argued that a practice had built up over a period
of time allowing not only longer shifts but also ``excursions'' where
miners work over 8 hours under specific conditions. Finally, commenters
representing both labor and industry recommended that MSHA adopt a rule
requiring preshift examinations for each 8 hour period that miners are
underground.
In response to these comments, the Agency substituted the phrase
``8-hour interval'' for the phrase ``beginning of any shift'' when it
promulgated the 1994 proposed rule as a final rule in 1996. The 1996
standard thus required a preshift examination, ``* * * within 3 hours
preceding the beginning of any 8-hour interval during which any person
is scheduled to work or travel underground * * *''. MSHA also
acknowledged in the preamble to the final rule (61 FR 9791) that, in
accordance with longstanding practice, unplanned short excursions past
the 8-hour period that occur infrequently are accepted without an
additional preshift examination.
In the preamble to the 1996 final rule (61 FR 9791), MSHA discussed
its rationale for adopting an 8-hour preshift examination rule. MSHA
stated that:
* * * MSHA agrees with commenters that evolution within the industry
in shift scheduling has presented a number of questions and
controversies regarding the standard which must be resolved to
assure that proper preshift examinations are conducted within
suitable time frames. Based on comments, the final rule adopts a
modification to clarify and standardize the application of the
preshift examination in recognition of the use of novel shifts while
maintaining the protection of the existing standard. * * *
Underground working schedules of three 8-hour shifts per day
were virtually standard when the previous rule was implemented.
Currently a substantial number of mining operations have work shifts
of more than 8 hours. Other operations stagger or overlap shifts
providing for continuous underground mining activities. Some mines
that operate around the clock schedule persons to begin shifts at
one- or two-hour intervals. In such cases, controversies and
misunderstandings have developed regarding application of the
current standard.
In adopting an 8-hour preshift requirement, the Agency also agreed
(61 FR 9791) with comments suggesting that ``the original legislation
of the Mine Act envisioned that preshift examinations would be
conducted for each 8-hour interval that persons worked underground.''
MSHA reached this conclusion both from the traditional practice at the
time of the legislation and from the language of Sec. 303(d)(2) of the
Mine Act.
On June 17, 1997, the United States Court of Appeals for the
District of
[[Page 38068]]
Columbia Circuit, in National Mining Association v. Mine Safety and
Health Administration and Secretary of Labor (MSHA), 116 F.3d 520,
(D.C. Cir. 1997) issued an order granting a petition for review on the
National Mining Association's challenge of 30 CFR 75.360(a) relating to
preshift examinations. The court acknowledged that the approach used by
MSHA in adopting the 8-hour time interval for the preshift examination
was a reasonable one,1 but invalidated the provision on
procedural grounds due to lack of sufficient notice to the parties in
the rulemaking (supra 116 F.3d 520, 530). The effect of the decision
was to reinstate the portion of the previous regulation that requires a
preshift examination to be conducted prior to the beginning of any
shift. MSHA published a Federal Register document on June 30, 1997 (62
FR 35085) conforming the language of the existing standard to the
Court's order.
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\1\ The Court stated, ``At the least, 30 CFR 75.360(a)(1) is a
reasonable interpretation of open-ended statutory language. * * * We
see no reason why we should not think of 30 CFR 75.360(a)(1) as just
such an `improved mandatory safety standard[]' issued in light of
changed circumstances in the mining industry.'' (116 F.3d 520, 530)
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MSHA continues to believe that it is necessary to address the
issues surrounding the preshift examination interval. The standard must
provide for sufficient protection, be clear in its recommendations, and
be properly implemented to ensure safe working conditions in
underground coal mines. Accordingly, MSHA encourages all parties to
fully express their viewpoints during this rulemaking to assist the
Agency in promulgating a final rule that most appropriately addresses
the safety of our nation's underground coal miners.
III. Discussion
Section 75.360 Preshift Examination at Fixed Intervals
Existing Sec. 75.360(a)(1) of the MSHA ventilation standards
provides
Except as provided in paragraph (a)(2) of this section, a
certified person designated by the operator shall make a preshift
examination within 3 hours preceding the beginning of any shift
during which any person is scheduled to work or travel underground.
No person other than certified examiners may enter or remain in any
underground area unless a preshift examination has been completed
for the shift.
Proposed paragraph (a)(1) would modify the existing language of
Sec. 75.360(a)(1) to require preshift examinations at fixed 8-hour
intervals. It would replace the word ``shift'' with the phrase ``8-hour
interval''. In addition, the proposed rule would add the sentence,
``The operator shall establish the 8-hour intervals of time subject to
the required preshift examinations.''
The Agency believes that, considering the speed at which
underground conditions can change, a reasonable period must be
identified after which another examination is necessary. For example,
methane, an explosive gas naturally occurring in coal mines, commonly
builds up over time, especially in newly mined areas. Methane may also
accumulate in other areas, such as where water accumulation interferes
with mine ventilation. A preshift examination should result in the
detection of this explosive gas and the timely correction of the
condition before it reaches a hazardous level. Also, the roof and ribs
tend to deteriorate over time in outby entries used as travelways and
on the sections of a mine where miners are assigned to work. Roof
pressures and subsequent falls can damage ventilation controls,
resulting in hazardous conditions. Equipment damaged by a roof fall,
including belt haulage systems or trolley wire systems, can lead to
mine fires or explosions. A preshift examination provides a vehicle to
detect these developing hazards.
MSHA has reviewed the history of fatalities that have occurred at
underground coal mines since 1990 to determine if any of the fatalities
occurred more than 8 hours after the start of the shift, and therefore
may have been prevented had the proposed rule been in place. MSHA has
placed in the rulemaking record 32 fatal accident reports of MSHA
investigations conducted since 1990 in which the accident was
identified as occurring more than 8 hours into the shift. At least six
of the reports, representing seven fatalities, address instances where
an additional preshift examination might have identified the hazards
that resulted in the fatalities and allowed an opportunity for
corrective action.2 This is approximately 3 percent of the
total number of fatalities which occurred at underground coal mines
during this time period.
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\2\ The accidents are: Linda Enterprise, Inc., #31-A mine, March
23, 1990, 1 fatality; Waco Limited Partnership No.1, No. 2 mine,
December 18, 1995, 1 fatality; Miller Branch Enterprises, Inc., No.
1 mine, 1 fatality; MAG Inc., Alloy Deep Mine #2, October 2, 1993, 1
fatality; M&D Coal Co., Inc., No. 3 mine, August 15, 1996, 1
fatality; and Day Branch Coal Co., Inc., No. 9 mine, May 11, 1994, 2
fatalities.
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In reviewing these accident reports, MSHA recognizes the difficulty
in determining whether an additional preshift examination would have
prevented a specific fatality from occurring, particularly since prior
examinations had in some cases failed to identify the hazardous
conditions or practices. However, MSHA does not concede that subsequent
examinations will necessarily fail in their purpose simply because one
or more previous examinations may have been inadequate. A preshift
examination conducted at 8-hour intervals would provide an opportunity
for the examiner to identify hazardous conditions or practices that may
have been overlooked in an earlier examination. It should also be noted
that the conditions in a mine may have further deteriorated after 8
hours into the shift, and that the same examiner or a different
examiner conducting the additional preshift examination might have
identified the hazard and caused appropriate actions to be taken to
correct the condition and protect the safety of the miners.
It is not the intent of the Agency that the preshift examination be
a continuous examination without a beginning or an end. Once a preshift
examination has been conducted, an additional preshift examination
would not be necessary during the 8-hour interval covered by the
preshift examination simply because persons start to work after the
beginning of the normal shift start time. Under the proposed rule,
persons could enter or leave the mine, regardless of their shift
schedule, during any established 8-hour period for which a preshift
examination has been conducted. However, another preshift examination
must be completed prior to the beginning of the next 8-hour interval if
any persons, other than examiners, remain in the mine during the next
8-hour interval or are scheduled to enter the mine during the oncoming
interval. For example, if the established time interval for the 8-hour
preshift examination covers the period from 8:00 a.m. to 4:00 p.m., no
one except mine examiners may enter the mine or remain underground
after 4:00 p.m. unless a preshift examination has been conducted for
the 8-hour interval beginning at 4:00 p.m. As with the existing
standard, no person other than examiners may enter any underground area
that is subject to a preshift examination prior to the completion of
the preshift examination for that area. Also, supplemental examinations
continue to be required under Sec. 75.361 before anyone enters areas of
the mine that had not had a preshift examination.
The proposal would require one preshift examination at mines that
operate with only one 8-hour shift per day. If the mine uses regular
shifts that
[[Page 38069]]
are longer than 8 hours in length, the preshift examination would cover
an 8-hour interval. The proposal would require three preshift
examinations where persons are underground for more than 16 hours per
day. For example, at a mine operating two 10-hour shifts per day, the
proposed rule would require three examinations per day. As with the
existing standard, the proposed rule would not require examinations for
designated 8-hour periods when no one enters the mine. Also consistent
with the existing standard, no one, except other designated preshift
examiners, may accompany a preshift examiner during the examination.
MSHA recognizes that the proposed rule may cause some mine
operators to perform additional examinations that are not currently
required. For example, some mines operate single or multiple extended
shifts of up to 14 hours each. Mines that are not currently conducting
preshift examinations at 8-hour intervals during extended shifts would
be impacted by the proposed rule. The proposed rule would require
additional preshift examinations at these mines. During the 1996 MSHA
ventilation rulemaking and subsequent litigation, a segment of the
mining community expressed the view that extended and novel work shifts
are being used more frequently by mine operators and that the time
interval for preshift examinations should not be limited to 8 hours.
The Agency solicits comments on the benefits and hazards associated
with an alternative approach to preshift examinations that would permit
an 8\1/2\, 9, or up to a 10-hour interval for preshift examinations.
The Agency specifically solicits comments on any benefits and hazards
that may be associated with this alternative approach.
Earlier comments suggested that the longstanding MSHA practice of
accepting certain excursions beyond the 8-hour preshift examination
time interval should be continued. MSHA has permitted excursions in the
past when miners are required to stay beyond an 8-hour shift to catch
up on production, perform mechanical repairs, install roof support, or
as a result of a mantrip delay. The Agency solicits comments on:
whether any excursions should be permitted beyond 8 hours without an
additional examination; the maximum length of any such excursion; and
the safety impact of such an excursion.
A commenter has stated that requiring preshift examinations every 8
hours creates overlaps and confusion with State laws, specifically the
laws of West Virginia. While MSHA is not barred from promulgating
otherwise appropriate safety and health standards because they may
result in additional responsibilities for operators, neither does the
Agency desire to impose requirements that are confusing or unduly
burdensome.
A commenter in the 1996 ventilation rulemaking also suggested that
the regulation should stipulate specific times for examinations, such
as 12:00 midnight, 8:00 a.m., and 4:00 p.m. as the beginning of the 8-
hour intervals for which preshift examinations would be required. MSHA
believes there is no safety or health benefit to be gained through
prohibiting operators from adopting other 8-hour intervals, e.g., 10:00
p.m., 6:00 a.m., and 2:00 p.m., to accommodate their individual
operations and the proposed standard would therefore allow operators
the flexibility to establish their own shift schedules. For example, an
operator may elect a starting time of 11:00 a.m. for a weekend project,
provided the preshift examination is conducted within the 3 hours prior
to the beginning of the shift.
As proposed, the preshift examination would be conducted within 3
hours preceding the beginning of any 8-hour interval. For accuracy, the
title of Sec. 75.360 would be changed from ``Preshift examination'' to
``Preshift examination at fixed intervals.'' The text of the proposed
standard and the preamble discussion of the standard would continue to
refer to the examination as the ``preshift examination.'' Because of
the history of the term and the widespread understanding in the
industry of the safety checks required by a preshift examination, MSHA
is proposing to continue the use of the term ``preshift examination''
in the body of the standard and to continue to refer to the examination
as the preshift examination.
IV. Executive Order 12866 and Regulatory Flexibility Act
Executive Order 12866 requires that agencies assess both the costs
and benefits of proposed regulations. MSHA has determined that this
proposed rule does not meet the criteria of a significant regulatory
action and, therefore, has not prepared a separate analysis of costs
and benefits. All of the compliance costs of this proposed rule are
paperwork related costs. Thus, the derivation of the compliance costs
that are summarized in this document are contained in the paperwork
package that was submitted to the Office of Management and Budget.
Copies of the paperwork package are available upon request from MSHA,
Office of Standards, Regulations, and Variances (703-235-1910).
Benefits
A timely preshift examination in underground coal mines is a
primary method of assuring safety to miners. Coal miners rely on the
preshift examination to provide protection and often take it for
granted that an adequate examination has been conducted.
There is a potential for multiple fatalities in an underground coal
mine when explosive quantities of methane exist or when a roof
deteriorates and falls. It is extremely difficult to specifically
quantify safety benefits related to a particular safety factor such as
a preshift examination. Due to the hazardous environment that miners
work in, an unsafe condition or work practice could jeopardize the
well-being of all miners underground.
As discussed earlier, MSHA has identified seven fatalities,
associated with six mining accidents that have occurred since 1990,
which could potentially have been prevented if the requirements of the
proposed rule were followed. This is approximately 3 percent of the
total number of fatalities which occurred at underground coal mines
during this time period.
During this same period of time there were 59,000 injuries for all
underground coal mines. Although the reports of the accidents do not
permit us to make a precise analysis of the causes of all the injuries,
if we were to extrapolate using the same 3 percent that we used for
fatalities the Agency predicts that 1,770 injuries might have been
prevented. MSHA believes that if a preshift examination had been
conducted at the intervals that would be established by the proposed
rule, it is reasonable to expect that the examiners would have
identified at least some of the hazardous conditions or practices
resulting in the injuries and fatalities. MSHA realizes that in some
cases this assumes that the additional preshift examinations would have
identified hazardous conditions or practices that earlier examinations
failed to recognize. However, an additional examination would afford
the mine operator with another opportunity to identify hazards. MSHA
believes that this position is reasonable and that subsequent
examinations could discover hazardous conditions or practices, even
though earlier examinations may have been inadequate. Furthermore, the
requirement that a preshift examination be conducted during every 8-
hour interval is not unreasonable in light of the fact that within such
a time period it is possible that conditions in a mine
[[Page 38070]]
can deteriorate. It was in this spirit that Congress originally enacted
the interim preshift examination standards which envisioned such
examinations occurring for each 8-hour shift.
Therefore, MSHA has found it prudent to take a conservative
approach and propose an 8-hour interval for preshift examinations to
provide adequate protection for miners. This proposed rule should
decrease the occurrence of fatalities, injuries, and accidents in
underground coal mines.
Compliance Costs
MSHA estimates that approximately 127 underground coal mine
operators would need to conduct an additional preshift examination.
Based on a small mine definition of fewer than 20 employees, about 75
of the mines are small mines and 52 are large mines. The mine operator
has the option of conducting a portion of the additional preshift
examination concurrently with the on-shift examination. Therefore, the
compliance costs of the additional preshift examination essentially
consist of the cost of the examination of outby areas not covered by an
on-shift examination, such as travelways, work areas, and electrical
installations.
The proposed rule is estimated to cost about $2,182,000 per year,
of which small mine operators (those with fewer than 20 employees)
would incur about $361,000 per year and large mine operators would
incur $1,821,000 per year.
V. Regulatory Flexibility Act (RFA) and Small Business Regulatory
Enforcement Fairness Act (SBREFA)
The RFA requires regulatory agencies to consider a rule's impact on
small entities. Under the SBREFA amendments to the RFA, MSHA must use
the Small Business Administration (SBA) definition for a small mine of
500 or fewer employees 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 traditionally has considered small mines to be those with
fewer than 20 employees. For the purposes of the RFA and this
certification, MSHA has analyzed the impact of the proposed rule on all
affected mines with 500 or fewer employees, as well as on those with
fewer than 20 employees.
The Agency has provided a copy of this proposed rule and regulatory
flexibility certification statement to the SBA Office of Advocacy. In
addition, MSHA will mail a copy of the proposed rule, including the
preamble and regulatory flexibility certification statement, to all
mine operators and miners' representatives.
Regulatory Flexibility Certification
In accordance with section 605 of the RFA, MSHA certifies that this
proposed rule would not have a significant economic impact on a
substantial number of small entities. No small governmental
jurisdictions or nonprofit organizations are affected.
Under the SBREFA amendments to the RFA, MSHA must include a factual
basis in the proposed rule for this certification. The Agency also must
publish the regulatory flexibility certification in the Federal
Register, along with its factual basis, followed by an opportunity for
comment by the public.
Factual Basis for Certification
The underlying data in Table I shows that the compliance costs of
this proposed rule does not exceed 1 percent of the estimated revenues
of the underground coal mines affected by this proposed rule. When
small underground coal mines affected by this proposed rule are defined
as those that employ fewer than 20 employees, then small mines account
for about $361,000 of the total compliance costs and estimated revenues
of such mines are approximately $50.2 million. Thus compliance costs as
a percent of estimated revenues for the affected mines are 0.72
percent. When small underground coal mines affected by this proposed
rule are defined as those that employ 500 or fewer employees, then
small mines account for $2,147,000 of the total compliance costs and
estimated revenues of such mines are approximately $641,237,000. In
this case compliance costs as a percentage of estimated revenues for
the affected mines are 0.33 percent.
Table I.--Costs and Revenues For Affected Underground Coal Mines
------------------------------------------------------------------------
Estimated
Proposed revenues of Costs as
Section 75.360(a)(1) rule costs affected percent of
(thous.) mines revenues
(thous.)
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Small Mines (<20)................ $361="" $50,200="" 0.72="" small="" mines="" (500)................="" $2,147="" $641,237="" 0.33="" ------------------------------------------------------------------------="" this="" proposed="" rule="" would="" not="" have="" a="" significant="" impact="" on="" a="" substantial="" number="" of="" small="" entities="" that="" are="" affected="" by="" this="" rule.="" vi.="" unfunded="" mandates="" and="" executive="" order="" 12875="" for="" purposes="" of="" the="" unfunded="" mandates="" reform="" act="" of="" 1995,="" as="" well="" as="" e.o.="" 12875,="" this="" proposed="" rule="" does="" not="" include="" any="" federal="" mandate="" that="" may="" result="" in="" increased="" expenditures="" by="" state,="" local,="" and="" tribal="" governments,="" or="" increased="" expenditures="" by="" the="" private="" sector="" of="" more="" than="" $100="" million.="" vii.="" executive="" order="" 13045="" in="" accordance="" with="" executive="" order="" 13045,="" msha="" has="" evaluated="" the="" environmental="" health="" or="" safety="" effect="" of="" the="" proposed="" rule="" on="" children.="" the="" agency="" has="" determined="" that="" the="" proposal="" will="" have="" no="" effect="" on="" children.="" list="" of="" subjects="" in="" 30="" cfr="" part="" 75="" mine="" safety="" and="" health,="" reporting="" and="" recordkeeping="" requirements,="" underground="" coal="" mining,="" ventilation.="" dated:="" july="" 8,="" 1998.="" j.="" davitt="" mcateer,="" assistant="" secretary="" for="" mine="" safety="" and="" health.="" accordingly,="" it="" is="" proposed="" to="" amend="" part="" 75,="" subchapter="" o,="" chapter="" i,="" title="" 30="" of="" the="" code="" of="" federal="" regulations="" as="" follows:="" part="" 75--mandatory="" safety="" standards--underground="" coal="" mines="" 1.="" the="" authority="" citation="" for="" part="" 75="" continues="" to="" read="" as="" follows:="" authority:="" 30="" u.s.c.="" 811.="" [[page="" 38071]]="" 2.="" in="" subpart="" d="" of="" part="" 75,="" in="" sec.="" 75.360,="" revise="" the="" section="" heading="" and="" paragraph="" (a)(1)="" to="" read="" as="" follows:="" sec.="" 75.360="" preshift="" examination="" at="" fixed="" intervals.="" (a)(1)="" except="" as="" provided="" in="" paragraph="" (a)(2)="" of="" this="" section,="" a="" certified="" person="" designated="" by="" the="" operator="" shall="" make="" a="" preshift="" examination="" within="" 3="" hours="" preceding="" the="" beginning="" of="" any="" 8-hour="" interval="" during="" which="" any="" person="" is="" scheduled="" to="" work="" or="" travel="" underground.="" no="" person="" other="" than="" certified="" examiners="" may="" enter="" or="" remain="" in="" any="" underground="" area="" unless="" a="" preshift="" examination="" has="" been="" completed="" for="" the="" established="" 8-hour="" interval.="" the="" operator="" shall="" establish="" 8-hour="" intervals="" of="" time="" subject="" to="" the="" required="" preshift="" examinations.="" *="" *="" *="" *="" *="" [fr="" doc.="" 98-18687="" filed="" 7-13-98;="" 8:45="" am]="" billing="" code="" 4510-43-p="">