[Federal Register Volume 64, Number 160 (Thursday, August 19, 1999)]
[Rules and Regulations]
[Pages 45165-45170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21448]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 75
RIN 1219-AB10
Safety Standard for Preshift Examinations in Underground Coal
Mines
AGENCY: Mine Safety and Health Administration, (MSHA) Labor.
ACTION: Final rule.
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SUMMARY: We (MSHA) are amending the examination interval for preshift
examinations of underground coal mines by requiring that mine operators
conduct preshift examinations at 8-hour intervals. The rule clarifies
when a preshift examination is required and the length of the shift
covered by the preshift examination.
EFFECTIVE DATES: This final rule is effective on October 18, 1999.
Submit all written comments on the information collection burden no
later than October 18, 1999.
FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director;
Office of Standards, Regulations, and Variances; telephone 703/235-
1910; fax 703/235-5551.
SUPPLEMENTARY INFORMATION:
I. Background
The preshift examination is the mine operator's fundamental tool
for assessing the overall safety condition of the mine. During the
preshift examination, which includes all areas where miners are
scheduled to work or travel during the shift, the examiner focuses on
discovering both existing and developing hazards, such as methane
accumulation, bad roof and water accumulation, and determining the
effectiveness of the mine ventilation system. The examination has
proven to be particularly effective in the discovery and correction of
hazardous conditions and practices before they lead to injuries or
fatalities. Because conditions in the underground mining environment
can change rapidly, recurring examinations are necessary to assure
safety of the miners underground. A timely preshift examination assures
the safety of the environment on a routine basis.
The Federal Mine Safety and Health Act of 1977 (Mine Act) contains
interim mandatory safety standards that address preshift examinations.
The interim standards in the Mine Act that relate to preshift
examinations, Secs. 303(d)(1) and 303(d)(2), appear as interim
mandatory safety standards in the Federal Coal Mine Health and Safety
Act of 1969. In 1970, the Bureau of Mines of the United States
Department of the Interior, a predecessor of the Mine Safety and Health
Administration at that time, adopted these interim standards as safety
standards in Title 30 of the Code of Federal Regulations (CFR). Interim
standard Sec. 75.303(d)(1) required that preshift examinations be
conducted ``[w]ithin three hours immediately preceding the beginning of
any shift.'' We adopted this provision as a mandatory safety standard
in our regulations for underground coal mines, promulgating it in 1978
as former 30 CFR 75.303(a).
Section 303(d)(2) of the Mine Act, the other interim standard
addressing preshift examinations, provided 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 where a preshift examination 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 mandatory safety standard in its regulations for
underground coal mines as former 30 CFR Sec. 75.303(b).
At the time the Mine Act was enacted, coal miners worked in shifts
of 8 hours as a general practice. The effect of the preshift
examination requirement in this environment was for examiners to
conduct preshift examinations every 8 hours. Since the Mine Act was
enacted, overlapping work shifts and work shifts of various lengths
(novel work shifts) have become common, making it necessary for MSHA to
address the frequency of preshift examinations. Currently, a number of
mines work shifts of up to 12 hours in length.
In 1992, we revised our preshift examination requirements as part
of our final rule for ventilation standards. We retained the
requirement that preshift examinations must be conducted ``within 3
hours preceding the beginning of any shift.'' However, in our preamble
discussion to the 1992 final ventilation rule, we interpreted this
language to mean that if the mine used regular shifts longer than 8
hours, the preshift examination applied to the entire length of the
shift (57 FR 20893).
In 1994, we proposed a new preshift examination rule in an attempt
to clarify and standardize the application of certain provisions of the
1992 preshift examination rule (59 FR 26356). In the comments submitted
to us 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 commenter expressed concern that conducting
preshift examinations at intervals longer than 8 hours would reduce the
protection afforded miners under the Mine Act. The commenter also
stated that MSHA introduced confusion into the preshift examination
requirements in interpreting the acceptable intervals for preshift
examinations.
Another segment of the public argued that the language of
Sec. 303(d)(2) of the Mine Act indicates that Congress tacitly accepted
shifts longer than 8 hours with only one preshift examination required.
The same segment of the public argued that we allowed a practice to
evolve over a period of time which permitted not only longer shifts but
also ``excursions'' over 8 hours under specific conditions. During
these so-called excursions, miners would remain underground for short
periods to handle unplanned situations that developed during the shift.
As an example, an excursion might be used to perform mechanical repairs
or install roof support. Finally, commenters representing both labor
and industry recommended that we adopt a final rule requiring preshift
examinations for each 8-hour period that miners are underground.
When we promulgated the 1994 proposed rule as a final rule in 1996,
(61 FR 9764) we addressed the comments and revised the existing
standard. We substituted the phrase ``8-hour interval'' for the phrase
``beginning of any shift.'' The 1996 rule required a preshift
examination, ``* * * within 3 hours preceding the beginning of any 8-
hour interval during which any person is
[[Page 45166]]
scheduled to work or travel underground. * * *'' We also acknowledged
in the preamble to the final rule that, in accordance with longstanding
practice, unplanned short excursions past the 8-hour period that occur
infrequently are accepted without an additional preshift examination
(61 FR 9791).
In the preamble to the 1996 final rule, we discussed our rationale
for adopting an 8-hour preshift examination rule. We stated that:
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. . . . 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. (61 FR
9791).
In adopting an 8-hour preshift examination requirement, we agreed
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'' (61 FR 9791). We
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 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), acknowledged that the approach used by MSHA
in adopting the 8-hour interval for the preshift examination was a
reasonable one. The Court stated, ``At the least, 30 CFR
Sec. 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 Sec. 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). However, the Court invalidated the
provision on the procedural ground that we failed to provide sufficient
notice to the parties in the rulemaking that we were contemplating
requiring a preshift examination every 8 hours. The effect of the
decision was to reinstate the portion of the previous standard that
requires a preshift examination to be conducted prior to the beginning
of any shift. We published a Federal Register notice on June 30, 1997
(62 FR 35085) conforming the language of the existing standard to the
Court's order.
On July 14, 1998, in response to the Court's National Mining
Association decision, we published a proposed rule addressing the
existing preshift examination requirements (63 FR 38066). Instead of
requiring a preshift examination at the beginning of each shift, the
Agency proposed that a preshift examination be conducted at 8-hour
intervals. Specifically, we proposed:
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. (63 FR 38071).
In the preamble to the proposed rule, we stated, ``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'' (63 FR 38068).
II. Discussion of Sec. 75.360(a)(1)
The final rule modifies existing Sec. 75.360(a)(1) to require
preshift examinations at fixed 8-hour intervals. The final rule is
substantively identical to the proposed rule. The word ``shall'' is
changed to ``must'' in the final rule in accordance with the style
advocated by the President's Memorandum on Plain Language. Existing
Sec. 75.360(a)(1) 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.
The rule replaces the word ``shift'' with the phrase ``8-hour
interval''. In addition, the rule adds the sentence, ``The operator
must establish the 8-hour intervals of time subject to the required
preshift examinations.'' The final rule advances the overall safety at
underground coal mines and does not reduce the protection afforded by
the existing standard.
Considering the speed at which underground conditions can change,
preshift examinations are necessary after a reasonable but defined
period of time. As an 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, if
present, and the timely correction of the condition before it reaches a
hazardous level. Also, the roof and ribs tend to deteriorate over time
throughout the mine, including 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 mechanism
to detect these developing hazards.
We have 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. We placed
in the rulemaking record 32 fatal accident reports of MSHA
investigations conducted since 1990. In each report the accident was
identified as occurring more than 8 hours into the shift. At least 6 of
the reports, representing 7 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. The accidents are: Linda Enterprise, Inc.,
31-A mine, March 23, 1990, 1 fatality; Miller
Branch Enterprises, Inc., No. 1 mine, December 4, 1991, 1 fatality;
M.A.G. Incorporated, Alloy Deep Mine 2, October 2, 1993, 1
fatality; Day Branch Coal Co., Inc., No. 9 mine, May 11, 1994, 2
fatalities; Waco Limited
[[Page 45167]]
Partnership No. 1, No. 2 mine, December 18, 1995, 1 fatality; and M&D
Coal Co., Inc., No. 3 mine, August 15, 1996, 1 fatality. We note that
the rule being finalized was in effect between June 1996 and July 1997.
However, the rule was not being followed at the M&D No. 3 mine at the
time of the August 15, 1996, accident.
The final rule applies to all underground coal mines, including
those that operate with only one 8-hour shift per day. If the mine uses
regular shifts that are longer than 8 hours in length, the preshift
examination would cover an 8-hour interval; an additional examination
is required for over 8 hours. The rule requires three preshift
examinations where persons are underground for more than 16 hours per
day. As an example, at a mine operating two 10-hour shifts per day, the
final rule requires three examinations per day. As with the existing
standard, the final rule does 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 preshift examiners during an examination before miners
reenter the mine.
Once a preshift examination has been conducted, an additional
preshift examination is not 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
final rule persons can 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. 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 have not had a preshift examination. In accordance with prior
practice, miners already working on a shift for which a preshift
examination has been completed may remain working underground during
the subsequent preshift examination being conducted for the oncoming
shift.
We recognize that the final rule may cause some of the mine
operators to perform additional examinations that are not currently
required. As an example, some small mines operate 1 shift per day. Many
of these mines plan to work 8 hours at the face. Allowing for travel
time and lunch, the mines may work a single 8\1/2\ or 9 hour shift on a
regular basis. Under the final rule, 2 preshift examinations are
required.
In the preamble to the proposed rule, we encouraged all parties to
express their views fully on the proposal and submit comments on the
proposed preshift examination rule. Also, we specifically solicited
comments in a number of areas, such as whether excursions should be
permitted, and the safety benefits gained by requiring a mine that
operates a single 8\1/2\ or 9 hour shift per day to conduct 2 preshift
examinations.
We received comments from a total of 4 commenters: 2 mining
associations, 1 mining company, and 1 labor organization. One commenter
advocated MSHA's approach of conducting a preshift examination at 8-
hour intervals, stating that Congress intended preshift examinations to
be conducted at 8-hour intervals, that it is essential that the
requirements for preshift examinations be clear and unambiguous, and
that the issue of the frequency of preshift examinations is vitally
important for safety and health. This commenter opposed any excursions
beyond the 8-hour interval except for life threatening situations. The
other 3 commenters stated that we must be more flexible in our approach
to determining preshift examination intervals. Two commenters stated
that mine plans should incorporate preshift examination requirements
specific to each mine. Three commenters pointed out that because of
State laws, there are instances where additional and unnecessary
preshift examinations are required. These commenters favored a preshift
examination that covered an entire shift, regardless of its duration.
Two of the commenters pointed out that technological advances, such as
mine-wide monitoring systems used in some mines, have made mines safer
than they were at the time Congress passed the Mine Act. Two commenters
stated that many examinations occur during a shift. Consequently, these
commenters felt that preshift examinations that lasted the duration of
the shift, whether 8, 10, or 12 hours, should be acceptable in mines
using technological advances such as mine-wide monitoring systems.
We have carefully considered each of the comments and have
determined that, with minor non-substantive changes, it is appropriate
to adopt and publish the proposed rule as the final rule. The Agency
has concluded that, considering the speed at which the underground
conditions can change, there must be a defined, reasonable period after
which another examination is necessary. The history of fatalities at
underground mines since 1990 demonstrates that as many as 7 lives could
have been saved if the 8 hour interval rule had been in place. As one
commenter stated, repeating language from the preamble to the proposed
rule:
[t]he 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 mining operation, 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 preshift examination at 8-hour intervals is a clear and easily
understood requirement that has an historical basis in legislative
history. We are not persuaded by commenters that, due to technological
improvements in modern mining as well as the training that modern
miners receive, there is a need to deviate from the frequency of
preshift examinations envisioned by Congress. The fact that mines may
be somewhat safer today than they were in the past does not change the
fact that the hazards still exist. Miners and operators must be
vigilant in dealing with methane accumulation, roof and rib
deterioration and water accumulation, as well as other hazards.
Progress in safety due to modern mining and monitoring systems has not
lessened the need for preshift examinations at 8-hour intervals, which
we believe will result in increased miner safety. As we have noted
previously, we have identified 7 fatalities that might have been
prevented if preshift examinations had occurred at 8-hour intervals.
Technological advances that enhance safety, such as atmospheric
monitoring systems, should supplement the proper use of preshift
examinations rather than change the frequency of the examination.
Through a longstanding practice, we have permitted excursions
beyond the normal scheduled shift for preshift examinations. In this
final rule, we will permit miners to stay on the section or in the work
area for up to an additional 15 minutes beyond an 8-hour shift to
conclude the mining cycle at an appropriate point, perform mechanical
repairs, install roof support, or as a
[[Page 45168]]
result of a mantrip delay. We will continue to interpret the final rule
to allow such excursions. One commenter addressed this issue. The
commenter to the proposed rule objected to any excursion except for
life-threatening situations. The commenter added that, to prevent
abuse, if other excursions are permitted, the rule should be specific
in defining the circumstances under which excursions are permitted. We
agree with the commenter that an excursion for a life-threatening
situation does not require an additional preshift examination. We also
believe that there are good reasons for excursions for other
circumstances: a machinery breakdown which requires miners to walk from
the mine, or a roof control problem requiring immediate attention
before the miners leave the mine. Some flexibility is appropriate to
account for unanticipated circumstances. We continue to believe that
short excursions of up to 15 minutes should be permitted. Also, an
infrequent excursion of up to 30 minutes is acceptable under an
unanticipated circumstance such as a mechanical breakdown. While, by
their nature, these infrequent excursions are unpredictable, we expect
that excursions would be necessary on the average of no more than once
a week.
Two commenters recommended that the rule should provide enough
flexibility to improve safety and provide a better utilization of
resources. The commenters gave an example of an operator who has
established 3-hour intervals spaced 8 hours apart to preshift examine
the face areas of the mine. According to these commenters, the same
operator at the same mine should be able to examine belts, travelways,
and other areas during another, different series of 3-hour intervals
spaced 8 hours apart. We agree that this is an acceptable flexible
approach that does not diminish safety. The final rule permits this
approach. However, we note that after an idle period, a full preshift
examination must be completed before miners reenter the area.
We received 2 comments which suggested that the mine ventilation
plan could be used to provide for flexibility in scheduling preshift
examinations, particularly in cases where an inconsistency might exist
with State requirements for examinations. These commenters favored a
preshift examination that covered an entire shift regardless of its
duration. We believe that a uniform requirement for an examination
every 8 hours best serves the purposes of miner safety and health. Use
of the plan approval process to essentially adopt a longer preshift
examination interval would not be appropriate.
A commenter pointed out that the Pennsylvania Bituminous Coal Mine
Act requires a preshift examination in a gassy mine within the 3 hours
immediately preceding the beginning of a coal-producing shift. The
commenter stated that there are currently 2 mines in Pennsylvania that
work 2 shifts of 12 hours, and these only on weekends. Considering the
interaction of the MSHA and the Pennsylvania rules, these mines and
possibly several others in Pennsylvania, may be required to conduct 4
preshift examinations instead of the 3 examinations otherwise conducted
during a 24 hour period. We believe that the requirement for preshift
examinations at 8 hour intervals is appropriate and do not believe that
the hazardous environment in underground coal mines allows for an
exemption in this case. In addition, the history of fatalities that
have occurred since 1990 in shifts longer than 8 hours does not support
a preshift examination at 12 hour intervals.
Another commenter stated that the proposed preshift requirement
would adversely impact safety by requiring the section foreman,
supervising a production crew, to examine outby areas during production
shifts in excess of 8 hours. The safety of the production crew at the
face would be unmonitored during this time. This situation might arise
in a 1-shift mine with a single certified person onsite. We agree that
in this circumstance, having the foreman on the section and available
to supervise the production crew provides a safety benefit. However, we
also believe that an examination of outby areas is necessary to assure
that any hazardous conditions are identified and corrected in a timely
manner. When an additional preshift examination is necessary, the on-
section portion of the examination can be conducted concurrently with
the on-shift examination. Any certified person designated by the
operator may conduct the examination of the outby areas and a vehicle
can be used to expedite the examination and to minimize any absence
from the section. Also, in such a circumstance, we will accept an
examination of outby areas by the certified person during egress from
the mine where the examiner travels ahead of the crew, examining while
traveling. If a hazard is encountered, the examiner must be able to
stop the crew before they reach the hazard. This approach preserves the
certified person's presence on the section during the work period and
provides for the outby portion of the examination before miners travel
through the area. We note that this is only applicable before an idle
period. If a crew is scheduled to enter the area, a preshift
examination must be completed before the next 8-hour interval begins.
For accuracy, we are changing the title of Sec. 75.360 from
``Preshift examination'' to ``Preshift examination at fixed
intervals.'' The text of the final rule and the preamble discussion of
the standard 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, we are continuing to use the term ``preshift
examination'' in the body of the standard and to refer to the
examination as the preshift examination.
III. Paperwork Reduction Act
This final rule contains an information collection requirement
which is subject to review by the Office of Management and Budget (OMB)
under the Paperwork Reduction Act of 1995 (PRA 95). It is identical to
the information collection requirement in our proposed rule. We did not
receive any comments on the proposed information collection
requirement. OMB has approved the information collection requirement
and assigned to it OMB control number 1219-0125. The approval
expiration date is October 31, 2001.
IV. Executive Order 12866 Regulatory Planning and Review
Executive Order (EO) 12866 requires that agencies assess both the
costs and benefits of intended regulations. We have determined that
this rule would not have an annual effect of $100 million or more on
the economy and, therefore, that this rulemaking is not a significant
regulatory action for purposes of this EO. Although the final rule
applies to all underground coal mines, it will cause 127 underground
coal mines to incur compliance costs (or approximately 13 percent of
all underground coal mines). Of the 127 mines, 75 are small mines
(mines with fewer than 20 employees), and 52 are large mines (mines
with 20 or more employees). The total estimated annual compliance cost
of the final rule is $2,218,731. Small and large underground coal mines
will have annual compliance costs of $377,192 and $1,841,539,
respectively.
The total 1997 revenues for the underground coal mine industry are
estimated to be about $7.6 billion. The final rule's estimated annual
cost is less than 0.03 percent of annual estimated
[[Page 45169]]
revenues for all mines (all underground coal mines) which are covered
by the rule. We do not expect this rule to have a significant economic
impact on the underground coal mining industry.
V. Regulatory Flexibility Act and Small Business Regulatory
Enforcement Fairness Act (SBREFA)
Under SBREFA, in analyzing the impact of a final 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. We have not taken such an action and, therefore,
are required to use the SBA definition. MSHA traditionally has
considered small mines to be those with fewer than 20 employees. The
SBA defines a small mining entity as an establishment with 500 or fewer
employees (13 CFR 121.201). Almost all underground coal mines fall into
this category. For these small underground coal mines, as defined by
SBA, we conducted a screening analysis by comparing their estimated
cost of complying with the final rule to their estimated revenues. When
estimated compliance costs are less than 1 percent of estimated
revenues, we believe 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 1 percent of estimated
revenues, it tends to indicate that further analysis may be warranted.
We estimate compliance costs for small underground coal mines covered
under this rule (using the SBA definition) to be $2,182,721 and their
revenues to be approximately $6.916 billion (as shown on Table 1).
Therefore, the costs of complying with the final rule for small
underground coal mines are approximately 0.03 percent of their
estimated revenues.
With respect to this final rule, 126 of the 127 underground coal
mines that will incur compliance costs fall under SBA's definition.
When the 126 underground coal mines that are immediately affected by
this rule are separately considered, the costs of complying with the
final rule for such mines are 0.3 percent of their revenues (as shown
on Table 2).
In either case, the rule's costs as a percentage of estimated
revenues are well below the 1 percent level. Accordingly, we certify
that the final rule will not have a significant impact on a substantial
number of small entities (mines with 500 or fewer employees).
Table 1.--Estimated Revenues of Underground Coal Mines Covered by the Rule
----------------------------------------------------------------------------------------------------------------
Average Total estimated
Mine size (employees) Number of mines production per revenues (in
a mine (tons) a millions) b
----------------------------------------------------------------------------------------------------------------
500........................................... 959 398,221 $6,916
> 500..................................................... 9 4,196,324 684
-----------------------------------------------------
Total................................................. 968 ................ 7,600
----------------------------------------------------------------------------------------------------------------
a Sources: Based on MSHA's database and MSHA's CM441 Coal Report 1997 cycle 1997/184.
b Total revenues = n x t x p, where n is the number of mines in that size class; t is the average tons of coal
produced annually by a mine in that size class; and p is the price per ton of coal. The 1997 price per ton of
coal was $18.11 (Source: DOE/EIA Annual Energy Review, p. 203).
Table 2.--Estimated Revenues for Underground Coal Mines Affected by the Rule
----------------------------------------------------------------------------------------------------------------
Average Total estimated
Mine size (employees) Number of mines production per revenues (in
a mine (tons) a millions) b
----------------------------------------------------------------------------------------------------------------
< 20.....................................................="" 75="" 33,304="" $45=""> 20 & < 500............................................="" 51="" 689,881="" 637="" -----------------------------------------------------="" total.................................................="" 126="" ................="" 682="" ----------------------------------------------------------------------------------------------------------------="">a Based on MSHA's CM441 Coal Report 1997 cycle 1997/184.
b Total revenues n x t x p, where n is the number of mines in that size class; t is the average tons of coal
produced annually by a mine in that size class; and p is the price per ton of coal. The 1997 price per ton of
Coal was $18.11 (Source: DOE/EIA Annual Energy Review, p. 203).
VI. Executive Order 12875 Enhancing the Intergovernmental
Partnership; and the Unfunded Mandates Reform Act of 1975
Executive Order (EO) 12875 requires executive agencies and
departments to reduce unfunded mandates on State, local, and tribal
governments; to consult with these governments prior to promulgation of
any unfunded mandate; and to develop a process that permits meaningful
and timely input by State, local, and tribal governments in the
development of regulatory proposals containing a significant unfunded
mandate. EO 12875 also requires executive agencies and departments to
increase flexibility for State, local, and tribal governments to obtain
a waiver from Federal statutory or regulatory requirements.
We offered governments an opportunity to provide meaningful and
timely input, at the proposed rule stage, through the promulgation of
the proposal for notice and comment. No state, local government or
tribal government commented or requested a waiver of regulatory
requirements.
Much of the Unfunded Mandates Reform Act of 1995 is designed to
assist the Congress in determining whether its actions will impose
costly new mandates on State, local, and tribal governments. It also
includes requirements to assist Federal agencies to make this same
determination with respect to regulatory actions.
We have determined that, for purposes of Sec. 202 of the Unfunded
Mandates Reform Act of 1995, this final rule does not include any
Federal mandate that may result in increased expenditures by State,
local, or tribal governments in the aggregate of more than $100
million, or increased expenditures by the private sector of more than
$100 million. Moreover, we have determined that for purposes of
Sec. 203 of that Act, this final rule does not significantly or
uniquely affect these entities.
[[Page 45170]]
We have prepared an estimate of the cost of the rule in our
submission to OMB for approval of the information collection
requirements in the rule. We will furnish a copy of this estimate to
you upon request. A summary of the cost is contained in the preamble to
this rule.
VII. Executive Order 13045 Protection of Children from
Environmental Health Risks and Safety Risks
In accordance with Executive Order 13045, we have evaluated the
environmental health or safety effect of the rule on children. We have
determined that the rule will have no effect on children.
VIII. Executive Order 13084 Consultation and Coordination with
Indian Tribal Governments
We certify that the final rule does not impose substantial direct
compliance costs on Indian tribal governments. Further, we provided the
public, including Indian tribal governments which operated mines, the
opportunity to comment during the proposed rule's comment period. No
Indian tribal government applied for a waiver or commented on the
proposal.
IX. Executive Order 12612 Federalism
Executive Order 12612 requires that agencies, to the extent
possible, refrain from limiting state policy options, consult with
states prior to taking any action which would restrict state policy
options, and take such actions only when there is a clear
constitutional authority and the presence of a problem of a national
scope. Since this rule does not limit state policy options, it complies
with the principles of federalism and with Executive Order 12612.
X. Executive Order 12630 Government Actions and Interference with
Constitutionally Protected Property Rights
This rule is not subject to Executive Order 12630 because it does
not involve implementation of a policy with taking implications.
XI. Executive Order 12988 Civil Justice Reform
The Agency has reviewed Executive Order 12988 and determined that
this rulemaking will not unduly burden the Federal court system. The
regulation has been written to so as to provide a clear legal standard
for affected conduct, and has been reviewed carefully to eliminate
drafting errors and ambiguities.
List of Subjects
30 CFR Part 75
Mine safety and health, underground coal mining, ventilation.
Dated: August 11, 1999.
Marvin W. Nichols Jr.,
Deputy Assistant Secretary for Mine Safety and Health.
Accordingly, 30 CFR, chapter I, is amended 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.
2. In subpart D of Part 75, the section heading of Sec. 75.360 and
paragraph (a)(1) are revised 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 must 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 must
establish 8-hour intervals of time subject to the required preshift
examinations.
* * * * *
[FR Doc. 99-21448 Filed 8-18-99; 8:45 am]
BILLING CODE 4510-43-P
