[Congressional Record Volume 145, Number 76 (Tuesday, May 25, 1999)]
[Senate]
[Pages S5955-S5956]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. ENZI:
  S. 1114. A bill to amend the Federal Mine Safety and Health Act of 
1977 to establish a more cooperative and effective method for 
rulemaking that takes into account the special needs and concerns of 
smaller miners; to the Committee on Health, Education, Labor, and 
Pensions.

[[Page S5956]]

                the small mine advocacy review panel act

  Mr. ENZI. Mr. President, I rise to introduce the Small Mine Advocacy 
Review Panel Act, or ``Small Mine,'' Act of 1999.
  Achieving mine safety starts with cooperation. Cooperation is at the 
heart of the safest workplaces, where employers and employees strive to 
establish open lines of communication on safety, to provide and wear 
the right protective equipment, and to give and follow effective 
training. But cooperation can't stop there. To have safe work sites, 
there must also be an understanding of what safety rules mean, how they 
are to be implemented, and what results should be expected. This is the 
cooperation that should exist between operators and the Mine Safety and 
Health Administration, or MSHA, and it cannot be ignored or 
undervalued.
  The bill I am introducing today inserts a new level of cooperation 
into MSHA's rulemaking. Called the Small Mine Advocacy Review Panel 
Act, or ``Small Mine'' Act, this bill would mandate that MSHA and 
panels of small operators discuss newly proposed rules and their 
potential impact early in the regulatory process. This practice is 
currently employed by OSHA and EPA and has been of great benefit both 
for the smaller employers and the agency because it forces both parties 
to comment and respond in an open forum. I have always believed that 
the simple act of talking about safety actually leads to safety, and I 
embrace any approach that forces those who write the rules and those 
who must comply with them to sit down together and find solutions.
  The Subcommittee on Employment, Safety and Training has a strong 
interest in MSHA's rulemaking procedure as it relates to small 
operators. In addition, I am well aware that the Senate Committee on 
Governmental Affairs shares this interest as it relates to the 
Administrative Procedure Act and the Regulatory Flexibility Act. In 
light of this, as this bill is centered on MSHA's responsiveness to 
smaller operators on matters of safety and health, Chairman Thompson 
has agreed to allow this bill to be referred to the Health, Education, 
Labor and Pensions Committee.
  MSHA has had great success when its rulemakings have been cooperative 
with operators and miners. MSHA's draft Part 46 Training rule was 
developed in collaboration with over fifteen industry representatives, 
the Teamsters, the Boilermakers, and the Laborers Health & Safety Fund 
of North America. By working together, the coalition came up with a 
draft that everyone agreed on and that was completed by MSHA's internal 
deadline. A true rulemaking success story.
  But other MSHA rules, such as MSHA's proposed Noise Rule, have 
abandoned cooperative partnerships with smaller operators and instead 
embraced the old ``big brother'' style of regulation. It is in such 
rulemakings that the Small Miner bill would make a world of difference. 
The Noise Rule would have so severe an impact on smaller mine operators 
that it is seriously questionable whether those who wrote this rule 
have ever actually been to a small mine. The bottom line is that this 
rule prohibits small operators from supplying miners with personal 
protective equipment, such as ear plugs, until after they have tried to 
lower the noise level by buying new and ``quieter'' machines at 
incredible cost, tinkering with old machines, rotating employees around 
to different stations, and implementing all other ``feasible'' 
engineering and administrative controls. All this despite the fact that 
many routinely-used machines can never be made to run as quietly as 
MSHA mandates no matter how much money is spent, and that miners will 
have to be rotated outside their areas of training and expertise.
  This proposed rule is in strict opposition to both MSHA's and OSHA's 
current rules which allow miners to wear ear plugs in the first 
instance. It also totally abandons logic. It's like proposing a rule 
outlawing employees from using steel-toed shoes and instead regulating 
that nothing may ever fall on a worker's foot. It just doesn't make any 
sense.
  By discussing this rule with small operators early in the rulemaking 
process, cooperative approaches could have been flushed out and 
solutions achieved which satisfy both MSHA's regulatory objectives and 
minimize the burden on small operators. As evidenced by this proposed 
rule, it is clearly insufficient to have a one time ``comment period'' 
or even hold public hearings, because the small operator's perspective 
is so noticeably absent from the rulemaking process. It is not enough 
to claim that safety is paramount while simultaneously operating in a 
vacuum to pump out regulations that no one can understand or implement. 
Compliance must be based on an effective working relationship where the 
goals set by the regulators are understood and achievable by the 
industry being regulated. If operators are responsible for complying 
with MSHA's regulations, then there is no excuse for failing to include 
them in the process from Day One. By passing the ``Small Mine'' bill, 
operators and MSHA would be responsible for working together to craft 
rules that will actually improve safety.
  Mr. President. I ask unanimous consent that the bill be printed in 
the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1114

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Small Mine Advocacy Review 
     Panel Act''.

     SEC. 2. PURPOSE.

       The purpose of this Act is to establish a more cooperative 
     and effective method for rulemaking with respect to mandatory 
     health or safety standards that takes into account the 
     special needs and concerns of small mine operators.

     SEC. 3 AMENDMENT TO FEDERAL MINE SAFETY AND HEALTH ACT OF 
                   1997.

       (a) In General.--Section 101(a)(2) of the Federal Mine 
     Safety and Health Act of 1977 (30 U.S.C. 811(a)(2)) is 
     amended by inserting before the last sentence the following: 
     ``The procedures for gathering comments from small entities 
     as described in section 609 of title 5, United States Code, 
     shall apply under this section and small mine operators shall 
     be considered to be small entities for purposes of such 
     section. For purposes of the preceding sentence, the term 
     `small mine operator' has the meaning given the term `small 
     business concern' under section 3 of the Small Business Act 
     (including any rules promulgated by the Small Business 
     Administration) as such term relates to a mining 
     operation.''.
       (b) Conforming Amendment.--Section 609(d) of title 5, 
     United States Code, is amended by striking ``Agency and'' and 
     inserting ``Agency, the Mine Safety and Health Administration 
     and''.
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