[Senate Report 106-227]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 426
106th Congress                                                   Report
                                 SENATE
 1st Session                                                    106-227

======================================================================



 
                  SMALL MINE ADVOCACY REVIEW PANEL ACT

                                _______
                                

                January 7, 2000.--Ordered to be printed

 Filed under authority of the order of the Senate of November 19, 1999

                                _______
                                

   Mr. Jeffords, from the Committee on Health, Education, Labor, and 
                   Pensions, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 1114]

     [Including cost estimates of the Congressional Budget Office]

    The Committee on Health, Education, Labor, and Pensions, to 
which was referred the bill (S. 1114) to amend the Federal Mine 
Safety and Health Act of 1977 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, having considered 
the same, reports favorably thereon without amendment and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Introduction.....................................................2
 II. Purpose..........................................................3
III. Legislative history and committee action.........................4
 IV. Committee views..................................................5
  V. Bill summary.....................................................8
 VI. Application of law to the legislative branch.....................9
VII. Regulatory impact statement......................................9
VIII.Cost estimate....................................................9

 IX. Additional views................................................11
  X. Minority views..................................................12
 XI. Changes in existing law.........................................26

                            I. Introduction

    Achieving mine safety begins with cooperation. Cooperation 
between the Mine Safety and Health Administration (MSHA), mine 
companies and miners is the heart of safe workplaces. It 
establishes open lines of communication on occupational safety, 
reinforces the need for proper personal protective equipment 
and illustrates the importance of effective training. 
Cooperation, however, cannot end there. To obtain safe 
workplaces, there must also be an understanding of what safety 
rules mean, how they are to be implemented and what results 
should be expected. To further ensure the well-being of our 
nation's miners, this additional layer of cooperation should 
exist between MSHA and mine companies on each and every 
rulemaking process.
    MSHA is the government agency responsible for regulating 
the occupational safety laws for all of American's mines. In 
addition, the Mine Safety and Health Act of 1977 requires MSHA 
to develop, promulgate and revise, as may be appropriate, 
improved mandatory health or safety standards for the 
protection of life and prevention of injuries in mines.\1\ 
Beyond a short, one-time comment period or even public 
hearings, the cooperation that is required must evidence a 
commitment to partnership at every stage from commencement of 
rulemaking to enforcement. The committee does not believe it is 
enough to claim that safety is paramount while simultaneously 
rules are promulgated that no one can comprehend or legally 
implement. Compliance must be based on an effective working 
relationship where the objectives set by the regulators are 
understood and attainable by the mine companies responsible for 
the safety of their employees.
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    \1\ Mine Safety and Health Act, 30 U.S.C. Sec. 811(a) (1977).
---------------------------------------------------------------------------
    If mine companies are truly responsible for complying with 
MSHA's regulations, there is no reason for excluding their 
participation from day one of the rulemaking process. The 
committee acknowledges that MSHA has had great success when its 
rulemakings have involved cooperation between operators and 
miners. MSHA's draft Part 46 training rule, for instance, was 
developed in collaboration with over 15 industry 
representatives, the Teamsters, the Boilermakers, and the 
Laborers Health and Safety Fund of North America.\2\ Working 
together from the start, the coalition was able to agree on a 
draft that was completed by MSHA's internal deadline--a true 
rulemaking success. Such success stories should be applicable 
to all of MSHA's rulemaking processes. There is no explanation 
for why each rulemaking can not boast such cooperation by its 
stakeholders. For this reason, the Small Mine Advocacy Review 
Panel Act (S. 1114) was introduced. This incremental bill would 
apply the existing small business advocacy review panel 
process, as set forth in the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), to MSHA's rulemaking 
process.\3\
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    \2\ Increasing MSHA and Small Mine Cooperation, Hearing on S. 1114 
before the Senate Subcommittee on Employment, Safety and Training, 
106th Congress, 1st Session (1999) [hereinafter Senate Hearing 106-166] 
(statement of Senator Michael B. Enzi, Chairman of the Senate 
Subcommittee on Employment, Safety and Training), at 2.
    \3\ Small Business Regulatory Enforcement Fairness act, 5 U.S.C. 
Sec. 609(b) (1996).
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    By statutorily favoring cooperation and partnership, MSHA 
would formally solicit the comments and concerns of small mine 
companies at the beginning of the process, rather thanattempt 
to remedy such concerns, during late stages of the proposed rule's 
comment period--ensuring that small mine companies' unique workplace 
concerns are effectively remedied. It is the committee's intention that 
S. 1114 help shorten the current period of time it takes for an MSHA 
rule to be completed. The committee recognizes and respects the 
delicate relationship between MSHA, mine companies and miners. Based on 
the history of this relationship, S. 1114 was not written to overhaul 
MSHA's rulemaking process, but incrementally improve it for the benefit 
of mine safety and health.

                              II. Purpose

    In 1996, SBREFA was enacted to help guarantee that small 
business entities receive fair treatment from federal agencies 
during their respective rulemaking processes. SBREFA amended 
the Regulatory Flexibility Act to require the Environmental 
Protection Agency (EPA) and the Occupational Safety and Health 
Administration (OSHA) to convene a small business advocacy 
review panel for the purpose of receiving advice and comments 
from small entities during rulemaking.\4\ Each covered agency 
must convene a panel of federal employees, representing the 
Office of Information and Regulatory Affairs within the Office 
of Management and Budget, the Chief Counsel of Advocacy of the 
Small Business Administration, small business representatives 
and the covered agency promulgating the regulation. The law 
requires the covered agencies to convene a panel prior to 
publishing an initial regulatory flexibility analysis for a 
proposed rule that would have a significant economic impact on 
a substantial number of small entities.
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    \4\ U.S.C. Sec. 244(b).
---------------------------------------------------------------------------
    Since SBREFA's enactment, EPA and OSHA have convened panels 
for 17 rules--three at OSHA and 14 at EPA.\5\ The agencies have 
gained valuable information and appreciation for panelists 
invited to comment on the draft regulations and preliminary 
economic analysis. According to Jere Glover, Chief Counsel of 
Advocacy for the U.S. Small Business Administration (SBA), the 
SBA continues to find that agencies are more likely to minimize 
the burden on small entities while meeting their regulatory 
objectives if they involve small businesses and the Office of 
Advocacy early in the rulemaking process. In addition, the 
SBREFA panel process leads to promulgation of rules that often 
achieve the agency's goals, avoid unnecessary regulation burden 
on small business, without showing favoritism towards small 
business.\6\
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    \5\ Senate Hearing 106-166 (letter from Jere Glover, Chief Counsel 
of Advocacy, Small Business Administration, to Michael B. Enzi, 
Chairman, U.S. Senate Subcommittee on Employment, Safety and Training, 
May 21, 1999), at 69.
    \6\ Ibid.
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    The purpose of the panel process is to minimize the adverse 
impacts and increase the benefits to small businesses affected 
by the agency's actions. Consequently, the true proof of each 
panel's effectiveness in reducing the regulatory burden on 
small entities is not known until the agency issues the 
proposed and final rules.\7\ It is through this formal process 
that small businesses know with certainty that their unique 
concerns have been heard by the respective regulatory agency.
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    \7\Senate Hearing 106-166 (statement of Senator Kit Bond, Chairman, 
U.S. Senate Small Business Committee), at 4.
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    The committee believes that enactment of S. 1114 would 
formally open doors between MSHA and small mine companies. The 
simple act of talking about safety will lead to safer 
workplaces. SBREFA panels are a valuable tool for addressing 
concerns and will ensure that MSHA's final rules fulfill their 
intent--enhancing safety and health for our nation's miners. 
Evidence shows that early comment from small business entities 
has benefited EPA and OSHA rulemakings. It is time that this 
process be extended to MSHA.

             III. Legislative History and Committee Action

    On May 25, 1999, Senator Enzi introduced S. 1114, the Small 
Mine Advocacy Review Panel Act.
    On May 26, 1999, the Senate Subcommittee on Employment, 
Safety and Training held a hearing on the Small Mine Advocacy 
Review Panel Act, S. 1114, entitled, ``Increasing MSHA and 
Small Mine Cooperation'' (S. Hrg. 106-166). The following 
individuals provided testimony:

The Honorable J. Davitt McAteer, Assistant Secretary of Labor 
        for the Mine Safety and Health Administration, 
        Washington, DC
Tom Thorson, Owner of Black Hills Bentonite, Mills, WY
Steve Minshall, CIH, CSP, Corporate Health and Safety Manger of 
        Ash Grove Cement Industry, Overland Park, KS
Joe Main, Administrator of the Department of Occupational 
        Safety and Health for the United Mine Workers of 
        America, Washington, DC
Bruce Watzman, Vice-President of Safety and Health for the 
        National Mining Association, Washington, DC
Kim Snyder, President, Eastern Industries, Inc., Center Valley, 
        PA

    On November 3, 1999, the Senate Committee on Health, 
Education, Labor and Pensions met in Executive Session to 
consider Senate bill 1114, the Small Mine Advocacy Review Panel 
Act. The committee voted on the following amendment:
    Senator Wellstone offered an amendment that would: replace 
SBREFA panel requirements with miner and local community panel 
participation; limit participation to small mine companies with 
19 employees or less; and prohibit representatives of trade 
associations from panel participation. The amendment failed on 
a voice vote.
    The committee then voted (11-7) to report the bill, as 
amended, on a rollcall vote:
        YEAS                          NAYS
Gregg                               Kennedy
Frist                               Dodd
DeWine                              Harkin
Enzi                                Mikulski
Hutchinson                          Wellstone
Collins                             Murray
Brownback                           Reed
Hagel
Sessions
Bingaman
Jeffords

                          IV. Committee Views

    Since 1996, SBREFA panels have been a required rulemaking 
procedure at EPA and OSHA. According to SBA, this requirement 
has provided small business entities the formal ability to 
improve the regulatory culture in both agencies.\8\ MSHA, 
sister-agency to OSHA, has the sole responsibility for 
regulating the safety and health of our nation's mines. It's 
mission mirrors OSHA's in both intent and administrative 
procedure. It is the mine company that is primarily responsible 
for ensuring that the workplace is in regular compliance with 
the law. Moreover, MSHA's objective centers on safeguarding the 
interests of miners. It is these two reasons that small mine 
companies, the majority of our nation's mines, should be 
formally included in MSHA's rulemaking process.
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    \8\ Senate Hearing 106-166 (letter from Jere Glover, Chief Counsel 
of Advocacy, Small Business Administration, to Michael B. Enzi, 
Chairman, U.S. Senate Subcommittee on Employment, Safety and Training, 
May 21, 1999), at 69.
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    Two of MSHA's rules in particular would have benefited from 
the requirements of S. 1114: the Noise rule and the Diesel 
Particulate Matter rule. While the committee believes that MSHA 
is wholly justified in attempting to improve the safety and 
health conditions for miners as they relate to noise and diesel 
exposure, the SBA states that both of these final rules have 
raised concerns by small mine operators which could have been 
addressed at the pre-proposal state. In the case of noise 
exposure, small business comments repeatedly requested that 
MSHA's proposed rule permit the use of personal protective 
equipment prior to seeking engineering and administrative 
solutions--along the same lines as current OSHA standards.\9\ 
In terms of the proposed rule on diesel particulate matter, 
questions of sound science, statutory jurisdiction, and 
economical and technical feasibility were also shared with 
MSHA.\10\ According to the SBA, if small business advocacy 
review panels had been convened for both of these two 
proposals, current opposition and concerns could most likely 
have been lessened or eliminated.\11\
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    \9\ Letter and comments of the American Portland Cement Alliance 
(APCA) to Ms. Silvey, Mine Safety and Health Administration Office of 
Standards, Regulations and Variances (February 23, 1998), at 1.
    \10\ Senate Hearing 106-166 (letter from Senator Michael B. Enzi, 
Chairman, Senate Subcommittee on Employment, Safety and Training to J. 
Davitt McAteer, Assistant Secretary of Labor for MSHA, June 24, 1999), 
at 1.
    \11\ Id at 70.
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Amending S. 1114

    During the November 3, 1999, Executive Session, one 
amendment, by Senator Wellstone, was offered to S. 1114. The 
amendment would have changed the bill so that existing SBREFA 
panel requirements for small business participation would be 
replaced by miner and local community participation. Miners and 
local communities are not excluded from participating in the 
rulemaking process during the public comment period. Employee 
representation is at the heart of MSHA's responsibility. The 
premise of SBREFA and S. 1114 is simply to strike a balance 
where small business concerns could be given formal, fair 
consideration. In addition, the Wellstone amendment called for 
``equal participation'' for miners and local communities. MSHA 
enforcement, however, overwhelmingly applies to mine companies 
and the amendment did nothing to address this disparity.
    Secondly, the Wellstone amendment would have reduced SBA's 
current definition of small business entities--500 employees or 
less--to 19 employees or less. The committee notes that MSHA's 
definition of small business is 20 employees or less.\12\ 
Senator Wellstone claimed that SBA's current definition of 500 
would apply to over 99 percent of the nation's mining 
industry.\13\ If reduced to 19 employees or less, Senator 
Wellstone stated that over 90 percent of small businesses would 
meet this new definition. The committee believes that this new 
estimate is based on mine sites, not small businesses as a 
whole, and that SBA's current definition of small business 
includes all of the company's employees, not just those at a 
particular mine site. S. 1114 was written to be consistent with 
SBREFA requirements and that the vast majority of small 
business concerns should be formally illustrated by the 
advocacy review panel process.
---------------------------------------------------------------------------
    \12\ Senate Hearing 106-166 (statement of Senator Paul Wellstone), 
at 8.
    \13\ Ibid.
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    Finally, the Wellstone amendment would have required that 
the panels ``shall not include representatives of trade 
associations.'' To be clear, the committee points out that 
lobbyists or trade association employees do not serve on SBREFA 
panels. What is concerning to the committee however, is that 
the term ``representative'' is not defined. The committee 
believes that the language could prohibit a legitimate small 
business from participating on the panel simply because it 
happens to be a member of a trade association. In addition, the 
committee notes that the amendment did not exclude 
representatives of labor organizations.

MSHA's concerns

    On May 26, 1999, the Senate Subcommittee on Employment 
Safety and Training heard testimony from J. Davitt McAteer, 
Assistant Secretary of Labor for MSHA, on S. 1114. According to 
Mr. McAteer's response to Senator Jefford's questioning, MSHA 
endorsed Senator Enzi's proposal, but was afraid that the 
agency would have to disagree, not with the purpose andnot the 
goal, but in the process and how MSHA gets there.\14\ The following 
testimony addresses Mr. McAteer's answer:
---------------------------------------------------------------------------
    \14\ Senate Hearing 106-166 (McAteer response to Chairman Jeffords' 
question), at 22.

          Senator Hutchinson. I noticed that in responding to 
        Senator Jeffords as to your position on the Enzi 
        proposal, you said you opposed formalizing the process, 
        and, if I recall correctly and my notes are accurate, 
        you said, and I paraphrase that it would be more 
        difficult to get out where the small operators are.
          Are there other reasons why you oppose Senator Enzi's 
        proposal?
          Mr. McAteer. Senator, we support the notion, the 
        idea, of involving small operators, and we have made 
        great strides to do it. We think in fact that our 
        process can be more successful than the proposed 
        advisory----
          Senator Hutchinson. And your process involves what?
          Mr. McAteer. We do two things. First, we do pre-
        proposal meetings and public meetings on a number of 
        regulations. Second, we put out the regulation to each 
        mine operator, and we invite them to come to our 
        meetings, and more to the point----
          Senator Hutchinson. Is there anything in the Enzi 
        proposal that would preclude you from continuing to do 
        that?
          Mr. McAteer. No, there is not.\15\
---------------------------------------------------------------------------
    \15\ Id at 29 and 30.
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Organized labor's concerns

    On November 2, 1999, the AFLO-CIO wrote Chairman Jeffords 
in opposition to S. 1114.\16\ First, the letter stated that S. 
1114's definition of small business--the same as that used by 
SBA--included all mining employers with 500 or fewer employees. 
Moreover, this definition covered more than 95 percent of all 
the nation's miners.\17\ The committee agrees with this 
statement, which was also stated repeatedly by members of the 
committees and reflected in S. 1114 hearing testimony. The fact 
that over 95 percent of mine companies meet S. 1114's and SBA 
definition of small business is the reason this committee seeks 
to apply the SBREFA panel process at MSHA. If the panel's 
concerns represent the vast majority of mine companies, the 
more reason for enacting S. 1114 so that they are formally made 
part of MSHA's rulemaking process.
---------------------------------------------------------------------------
    \16\ Letter from Peggy Taylor, Director, Department of Legislation, 
AFL-CIO, to Chairman James Jeffords, Chairman, Senate Committee on 
Health, Education, Labor and Pensions (November 2, 1999). A complete 
copy of the Taylor letter is appended at the conclusion of the 
Committee Views.
    \17\ Id at 1.
---------------------------------------------------------------------------
    Second, the letter stated that the industry groups have 
used the review procedures not as a means to address concerns 
of small business, but rather as a platform in their campaigns 
to delay or block needed safety and health rules, such as 
OSHA's ergonomics standard.\18\ The committee has no evidence 
showing that the promulgation of any rule has been delayed or 
blocked due to a SBREFA panel. In fact, the panel must report 
on its comments and findings no later than 60 days after the 
date an agency convenes the panel process.\19\ The committee 
does not believe that 60 days or less of comment would delay or 
block any rulemaking process. Since the panel process occurs 
prior to the issuance of a proposed rule, the committee agrees 
with the SBA that S. 1114 would help lessen or eliminate future 
opposition and concerns about MSHA's rules. In addition, the 
committee notes that OSHA's general intention of promulgating 
an ergonomics standard and opposition to past drafts of such a 
standard existed prior to SBREFA's enactment.
---------------------------------------------------------------------------
    \18\ Ibid.
    \19\ 5 U.S.C. Sec. 244(b)(5).
---------------------------------------------------------------------------
    Finally, the letter suggests that S. 1114's process 
contradicts MSHA's current rulemaking procedures. The United 
Mine Workers of America (UMW) shared similar concerns in a 
letter to Senator Enzi on November 2, 1999.\20\ These concerns 
are similar to those raised by Assistant Secretary McAteer and 
answered in the previous section entitled ``MSHA's Concerns.'' 
The committee believes that union opposition to S. 1114 lacks 
merit and is based solely on partisan grounds--not on the 
safety and health concerns of our nation's miners. The 
committee appreciates receiving the UMW's comments on S. 1114 
in writing prior to any further consideration of this bill. 
Although Mr. Main's written testimony on behalf of UMW at the 
May 26, 1999 hearing provided a thorough review of fraudulent 
coal dust sampling and exposure to diesel fumes, chemicals and 
noise, neither his oral or written testimony at the hearing 
discussed the UMW's position on S. 1114.\21\
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    \20\ Letter from Cecil Roberts, International President, UMW, to 
Senator Mike Enzi, Chairman, Senate Subcommittee on Employment, Safety 
and Training (November 2, 1999). A complete copy of the Roberts letter 
is appended at the conclusion of the Committee Views.
    \21\ Senate Hearing 106-166 (Oral and written statement of Joe 
Main, Administrator of the Department of Occupational Safety and Health 
for the United Mine Workers of American, Washington, DC), at 38 to 46.
---------------------------------------------------------------------------

Conclusion

    S. 1114 is bipartisan, common sense legislation that 
reflects the simple requirement of SBREFA and reaffirms 
Congress' commitment to address small business concerns about 
regulatory and paperwork burdens objectively during the 
development of rules. The committee notes that SBREFA was also 
a bipartisan bill when considered by Congress four years ago. 
In addition, the Senate Small Business Committee this year 
unanimously approved legislation that would expand SBREFA 
panels to the Internal Revenue Service (IRS). The process that 
would apply to the IRS would be no different than that required 
by S. 1114 to MSHA.

                            V. Bill Summary

    S. 1114 would 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 companies that engage in mining. The bill 
would amend the Mine Safety and Health act of 1977 and SBREFA 
to include MSHA as a covered agency required to establish a 
small business advocacy review panel prior to publication of an 
initial regulatory flexibility analysis.
    As required by SBREFA, MSHA would notify the Chief Counsel 
for Advocacy of the Small Business Administration and provide 
information on the potential impacts of the proposed rule on 
small entities and the type of small entities that might be 
affected. No later than 15 days after the date of receipt of 
this information, the Chief Counsel must identify individuals 
representative of affected small entities for the purpose of 
obtaining advice and recommendations about the potential 
impacts of the proposed rule. MSHA would then convene a review 
panel consisting wholly of full time federal employees of the 
office within the agency responsible for carrying out the 
proposed rule, the Office of Information and Regulatory Affairs 
within the Office of Management and Budget, and the Chief 
Counsel. The panel would then review any material the agency 
has prepared, including any draft proposed rule, collect advice 
and recommendations of each individual small entity 
representative identified by the agency after consultation with 
the Chief Counsel. No later than 60 days after the date MSHA 
convenes a review panel, the review panel would report on the 
comments of the small entity representatives and its findings, 
provided that such report shall be made public as part of the 
rulemaking record.\22\
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    \22\ 5 U.S.C. Sec. 244.
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              VI. Application of Law to Legislative Branch

    Section 102(b)(3) of Public Law 104-1, the Congressional 
Accountability Act (CAA), requires a description of the 
application of this bill to the legislative branch. S. 1114 
would amend the Mine Safety and Health Act of 1977 and the 
Small Business Regulatory Enforcement Fairness Act of 1996, 
requiring MSHA to establish small business advocacy review 
panels prior to publication of an initial regulatory 
flexibility analysis. This requirement only pertains to MSHA 
and would not apply to the legislative branch.

                    VII. Regulatory Impact Statement

    The committee has determined that there will be only a 
negative increase in the regulatory burden of paperwork as a 
result of this legislation.

                          VIII. Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, November 30, 1999.
Hon. James M. Jeffords,
Chairman, Committee on Health, Education, Labor, and Pensions, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1114, the Small Mine 
Advocacy Review Panel Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Charles 
Betley.
            Sincerely,
                                         Robert A. Sunshine
                                    (For Dan L. Crippen, Director).
    Enclosure.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

S. 1114--Small Mine Advocacy Review Panel Act

    CBO estimates that implementing S. 1114 would cost about $1 
million per year during the 2001-2004 period, assuming 
appropriation of the necessary amounts. The bill would not 
affect direct spending or receipts; therefore, pay-as-you-go 
procedures would not apply. The bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act and would not affect the budgets 
of state, local, or tribal governments.
    Under the Small Business Regulatory Enforcement Fairness 
Act of 1996 (SBREFA), before publishing regulations, the 
Environmental Protection Agency (EPA) and the Occupational 
Safety and Health Administration (OSHA) must convene panels to 
analyze the potential impact of those regulations on small 
businesses. Panels consist of employees of the agency proposing 
the regulation, the Small Business Administration (SBA), and 
the Office of Management and Budget (OMB). Panels collect 
advice from representatives of the small businesses that would 
be affected and submit a report to the agency proposing the 
regulation.
    S. 1114 would amend SBREFA to require the Mine Safety and 
Health Administration (MSHA) to follow the same procedures for 
convening small business advisory panels as EPA and OSHA before 
issuing regulations. Based on the number of regulations issued 
by MSHA in recent years, CBO assumes the bill would apply to 
about six proposed regulations each year. Based on the 
experience of EPA and OSHA, and assuming enactment by October 
1, 2000, CBO estimates that implementing S. 1114 would cost 
MSHA about $1 million in fiscal year 2001 and each subsequent 
year. In addition, CBO estimates that participating in 
additional panel reviews with MSHA would cost OMB and SBA less 
than $500,000 a year.
    The CBO staff contact for this estimate is Charles Betley. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

             IX. ADDITIONAL VIEWS OF SENATOR JEFF BINGAMAN

    As a co-sponsor of S. 1114, the Small Mine Advocacy Review 
Panel Act of 1999, I am pleased that the Committee reported the 
bill and look forward to working with my colleagues to bring it 
to the floor of the Senate. I would especially like to commend 
my colleague, Senator Enzi for his work on the measure.
    I believe that S. 1114 builds on efforts Congress has made 
over the past few years to bring small businesses into the 
process by which federal regulations are made and implemented. 
Already, the Small Business Administration conducts small 
business review panels in conjunction with OSHA and EPA and it 
is my understanding that these panels have been helpful to 
those agencies in understanding, and taking into consideration, 
the special concerns of small businesses. It is my hope that 
passage of S. 1114 will provide a similar opportunity for MSHA 
and small mine operators in my state.
    At the mark up of S. 1114, one of the main concerns raised 
was the 500 employee threshold for what is considered a ``small 
mine''. While I support S. 1114, I believe that a reasonable 
agreement on the definition of a ``small mine'' can be reached 
and look forward to working with Senator Enzi and others to 
address that concern.

                                                     Jeff Bingaman.

                           X. MINORITY VIEWS

                              introduction

    S. 1114 would require the Mine Safety and Health 
Administration (MSHA) to convene industry-dominated advocacy 
panels before proposing regulations to protect the safety and 
health of miners. The Minority believes there are many 
instances in which the special needs and circumstances of small 
businesses need to be addressed in the regulatory process.\1\ 
However, S. 1114 would do nothing to improve the representation 
of smaller mines, as opposed to larger mines, in MSHA 
rulemaking. In fact, existing procedures for the involvement of 
small mine operators in MSHA rulemaking are superior to those 
mandated by S. 1114. The most significant impact of S. 1114 
would be to give added weight in MSHA's rulemaking to the 
interests of mine operators--large and small--over those of 
miners, thus reversing the Mine Act's statutory presumption in 
favor of miner safety and health.\2\ The procedures mandated by 
S. 1114 would be inappropriate for the mining industry, 
duplicative, counterproductive, bureaucratic, centralized, 
wasteful, dilatory, and detrimental to the safety and health of 
American miners. For these reasons, the U.S. Department of 
Labor, the United Mineworkers of America,\3\ the AFL-CIO,\4\ 
and the undersigned members of the Minority all oppose S. 1114.
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    \1\ In fact, members of the Minority, including Employment, Safety, 
and Training Subcommittee Chairman Wellstone, have supported the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), as well as the 
recent addition of the Internal Revenue Service to the list of agencies 
required to convene SBREFA panels.
    \2\ The Federal Mine Safety and Health Act of 1977, 30 U.S.C. 
Sec. 801 et seq. (1977).
    \3\ See Letter from Cecil E. Roberts, United Mineworkers of 
America, to members of the U.S. Senate (November 2, 1999). A complete 
copy of the UMW letter is appended at the conclusion of the Minority 
Views.
    \4\ See Letter from Peggy Taylor, AFL-CIO Director of Legislation, 
to Chairman Jeffords (November 2, 1999). A complete copy of the AFL-CIO 
letter is appended at the conclusion of the Minority Views.
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s. 1114 would do nothing to improve the representation of smaller mines 
                           in msha rulemaking

    Smaller mine operators are better represented under 
existing MSHA rulemaking procedures than they would be under S. 
1114. Because of limited resources, S. 1114 would force MSHA to 
replace a balanced and decentralized rulemaking process that 
effectively involves smaller mine operators from the outset 
with a centralized, bureaucratic procedure dominated by larger 
mines and Washington trade associations representing the entire 
industry.
MSHA already involves small mines in the rulemaking process
    The Majority argues that S. 1114 would ``formally open 
doors between MSHA and small mine companies''; that there is 
not reason for excluding [small mine operators'] participation 
from day one of the rulemaking process''; and that under S. 
1114 ``MSHA would formally solicit the comments and concerns of 
small mine companies at the beginning of the process, rather 
than attempt to remedy such concerns during late stages of the 
proposed rule's comment period.'' However, the doors between 
MSHA and small mine companies are already open, small mine 
operators are not excluded from MSHA's rulemaking process, and 
their comments and concerns are already formally solicited as 
the beginning of the process.
    MSHA already involves smaller mines in the rulemaking 
process before issuing proposals. Secretary Herman writes, 
``MSHA is in a unique position to seek advice and input from 
the mining industry well before the rulemakinig process 
formally begins, and continues to involve all members of the 
mining community throughout the rulemaking process.'' \5\ MSHA 
holds forums in mining communities around the country to 
solicit public input, and it notifies every mine operator 
directly of every meeting. MSHA also notifies every mine 
operator directly of every forthcoming regulation. Assistant 
Secretary McAteer's testimony before the Employment, Safety, 
and Training Subcommittee on May 26, 1999 addressed these 
procedures in detail.\6\
---------------------------------------------------------------------------
    \5\ Letter from Labor Secretary Alexis Herman to Chairman Jeffords 
(November 2, 1999) hereinafter referred to as the Herman Letter), at 1-
2.
    \6\ Hearing on Increasing MSHA and Small Mine Cooperation, 106th 
Congress, 1st Session (May 26 1999) (hereinafter cited as MSHA 
Hearing), at 79-81, 212-213.
---------------------------------------------------------------------------

MSHA has a close relationship with small mines

    While the special concerns and needs of small businesses in 
other industries may be neglected by regulating agencies, it 
cannot be argued that small mines are neglected by MSHA. 
Because virtually the entire mining industry consists of 
relatively small mines,\7\ and because there are so few mine 
operators in the United States, MSHA has a very close 
relationship with small mine operators. Secretary Herman writes 
that the Mine Act
---------------------------------------------------------------------------
    \7\ See discussion, infra.

        provides MSHA with a unique set of responsibilities. 
        These include conducting a minimum number of annual 
        inspections at all mines, investigating all fatalities 
        and other serious accidents, and collecting data 
        relating to accidents, injuries, and illnesses that 
        occur in the mining industry. As a result, MSHA has 
        specific knowledge of the safety and health hazards 
        miners face on a daily basis, and is uniquely 
        positioned to interact on safety and health matters, 
        including its rulemaking activities, with every mine 
        operator in the Nation [emphasis in original]. \8\
---------------------------------------------------------------------------
    \8\ Herman Letter, at 1-2.

    MSHA regulates only 14,000 mines. It is therefore able to 
inspect every underground mine four times a year, and every 
surface mine twice a year. Between January and November 1999, 
MSHA sent more than 70 separate mailings to every mine operator 
in the country. These mailings included copies of proposed 
regulations, announcements of public meetings, announcements of 
workshops, requests for information in advance of rulemaking, 
``Fatal Alert Bulletins,'' notices about injury trends and 
injury prevention, and copies of new publications. In 1999, 
MSHA mailed more than 3.5 million pieces of printed material to 
the mining community, in response to 40,000 requests.
    The Majority justifies the procedures mandated by S. 1114 
by analogy to SBREFA panels convened by the Occupation Safety 
and Health Administration (OSHA). The Majority writes that MSHA 
is OSHA's ``sister-agency'' and its mission mirrors OSHA in 
both intent and administrative procedure.'' However, the 
Majority is overlooking significant differences between the two 
agencies. OSHA regulates 6 million workplaces, compared to 
14,000 mining operations regulated by MSHA. MSHA has a much 
closer relationship, and much more frequent contact, with small 
mines than OSHA could possibly maintain with 6 million work 
sites. Unlike OSHA, MSHA is therefore able to involve small 
mine operators at the very beginning stages of the rulemaking 
process.

S. 1114 would duplicate existing procedures and drain MSHA resources

    S. 1114's duplicate and unnecessary procedures would likely 
replace current MSHA procedures because they would drain MSHA's 
scarce resources. Secretary Herman writes,

          S. 1114 also has resource implications for MSHA. MSHA 
        uses enforcement, technical support, and education and 
        training staff to encourage the mining community's 
        participation in its safety and health activities, 
        including rulemaking. This approach works efficiently 
        because these staff members are at mine sites, 
        interacting with miners and mine operators virtually on 
        a daily basis. The formal panels required by S. 1114, 
        however, would require MSHA to devote specific 
        personnel to prepare materials, convene and participate 
        in panels, prepare reports, and develop findings on the 
        issues raised during the formal panel process.\9\
---------------------------------------------------------------------------
    \9\ Ibid., at 2.

In response to the Majority's questions following the 
Subcommittee's May 26 hearing, MSHA added, ``extending the 
[SBREFA] panels to MSHA would require the Agency to divert its 
limited resources from current consultation practices to a 
formalized process without adding appreciablebenefits.'' \10\
---------------------------------------------------------------------------
    \10\ MSHA Hearing, at 81.
---------------------------------------------------------------------------
    It would be extremely regrettable if S. 1114 forced MSHA to 
forego its current procedures providing for public involvement 
in the rulemaking process. MSHA's existing procedures are in 
every respect superior to the procedures established under S. 
1114.

S. 1114 would disadvantage smaller mines

    Substituting SBREFA-like panels for current MSHA procedures 
would actually disadvantage smaller mines. Currently, small 
mine operators are able to participate in MSHA forums in their 
own communities. Yet realistically, only a small number of 
operators would likely participate in S. 1114's advocacy 
panels. These would undoubtedly be larger operators, since 
virtually the entire industry would qualify as small businesses 
under S. 1114.\11\ Secretary Herman writes,
---------------------------------------------------------------------------
    \11\ See discussion, infra.

        the formal panels could have representation from mines 
        employing 400-500 workers as well as those employing 
        fewer than 20 workers. Given the disparity in resources 
        between small and large mines, we are very concerned 
        that the formal panels would be dominated by the larger 
        operations. In our view, S. 1114 could actually result 
        in diminished opportunity for meaningful participation 
        in MSHA's rulemaking activities by operators of small 
        mines.\12\
---------------------------------------------------------------------------
    \12\ Herman Letter, at 2.

    Moreover, MSHA has expressed its concern that S. 1114 would 
allow Washington trade associations, rather than small mine 
operators, to wield disproportionate influence in the 
rulemaking process. In response to the Majority's questions 
following the May 26 Subcommittee hearing, MSHA wrote, ``We are 
concerned that convening special panels could result in 
addressing the issues of concern to a select group, often 
represented by associations and other groups, which could be 
less fair to mine operators and miners than the mechanisms MSHA 
currently uses.'' \13\ It added that ``MSHA's current 
rulemaking process does not restrict access to select 
`representatives' of a small business panel, whose interests 
and perspectives may not generally coincide with those of each 
and every small business operator. * * * The attached letters, 
which are on the SBA's web site, confirm the role that 
Washington associations play in this process.'' \14\
---------------------------------------------------------------------------
    \13\ MSHA Hearing, at 81.
    \14\ Ibid., at 80-81.
---------------------------------------------------------------------------
    Senator Wellstone offered an amendment that would have 
excluded ``representatives of trade associations'' from 
participation in S. 1114's advocacy panels. The Wellstone 
amendment was defeated by voice vote.

  S. 1114 Would Give Disproportionate Weight to the Interests of Mine 
        Operators--Large and Small--Over the Interests of Miners

    While S. 1114 would do nothing to improve the 
representation of smaller mine operators in MSHA's rulemaking 
process, it would give priority to the interests of mine 
operators over those of miners. This would constitute an 
entirely inappropriate reversal of the statutory presumption of 
the Mine Act, and could lead to regulatory delays that would 
adversely affect miner safety and health.

S. 1114 would apply to virtually all mines, not just smaller mines

    While the Majority claims that S. 1114 establishes special 
procedures for small businesses, its procedures would apply to 
almost all mine operators, effectively regardless of size. In a 
letter to Chairman Jeffords dated November 2, 1999, Secretary 
of Labor Alexis Herman writes,

        The Small Business Administration defines a small mine 
        as one employing 500 or fewer workers. Under this 
        definition, more than 99 percent of the Nation's mines 
        are ``small'' and eligible to participate in the formal 
        panels.\15\
---------------------------------------------------------------------------
    \15\ Herman Letter, at 2.

In fact, only 40 of the 14,000 mines regulated by MSHA employ 
more than 500 workers. All other mine operators in the country 
would be eligible to participate in S. 1114's ``small 
business'' panels. S. 1114's advocacy panels would therefore 
represent virtually the entire mining industry, not just 
smaller-sized mines.
    This is true regardless of whether the precise percentage 
of small mine operators with fewer than 500 employees is 99 
percent or 95 percent. The Majority disputes the higher figure, 
but concedes that ``over 95 percent of mine companies meet S. 
1114's and SBA's definition of small business.'' Even assuming 
the Majority's lower figure, S. 1114's advocacy panels would 
represent the interests of virtually the entire mining 
industry, not merely smaller-sized mines.
    In any event, the appropriate figure is 99 percent. S. 1114 
gives the term ``small mine operator'' the same ``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.'' The Majority contends that ``the SBA's current 
definition of small business includes all of a company's 
employees, not just those at a particular mine site.'' This 
distinction accounts for the discrepancy between the 95 and 99 
percent figures.
    However, since enactment of the Regulatory Flexibility Act 
in 1980, NSHA's Reg Flex analyses have always been based on the 
number of employees within an establishment--not the number of 
employees within a taxpaying unit or parent company. The SBA 
has never rejected or challenged MSHA's analyses on this basis. 
In fact, the SBA Office of Advocacy has written that MSHA 
``complied with RFA by certifying the rule based on this proper 
definition.'' \16\
---------------------------------------------------------------------------
    \16\ Letter on Proposed Rule for Occupational Noise Exposure from 
Jere W. Glover, Chief Counsel for Advocacy, U.S. Small Business 
Administration, to J. Davitt McAteer (November 19, 1996) (see SBA 
website).
---------------------------------------------------------------------------

S. 1114 reverses the Mine Act's presumption of the priority of miner 
        safety and health

    The Majority concedes that S. 1114 would give over 95 
percent of the mining industry preferential consideration in 
MSHA rulemaking, but argues that this is appropriate because 
mining companies are almost all small businesses and are the 
ones most affected by MSHA regulations. The Majority goes so 
far as to argue against ``equal participation'' of miners in S. 
1114's panels because ``MSHA enforcement * * * overwhelmingly 
applies to mine companies.'' \17\ In effect, the Majority is 
arguing for a reversal of the statutory presumption of the Mine 
Act for the priority of miner safety and health.
---------------------------------------------------------------------------
    \17\ The Majority also writes, ``The fact that over 95 percent of 
mine companies meet S. 1114's and SBA's definition of small business is 
the reason this committee seeks to apply the SBREFA panel process at 
MSHA. If the panel's concerns represent the vast majority of mine 
companies, the more reason for enacting S. 1114 so that they are 
formally made part of MSHA's rulemaking process.''
---------------------------------------------------------------------------
    The Mine Act clearly establishes such a presumption. The 
Mine Act's very first finding is that ``the first priority and 
concern of all in the coals or other mining industry must be 
the health and safety of its most precious resource--the 
miner.'' As for the mine operators, the Mine Act gives them 
``primary responsibility'' for preventing unsafe and unhealthy 
conditions.\18\ Given this statutory presumption, it would be 
untenable to argue that the interests of mine operators should 
be given priority or preferential consideration in MSHA's 
rulemaking process. Yet this is precisely what S. 1114 does. 
The fact that 99 percent of mine operators meet the SBA 
definition of ``small business'' does not make it any more 
acceptable to give the mining industry priority consideration 
over miners and affected communities.
---------------------------------------------------------------------------
    \18\ 30 U.S.C. Sec. 801(a), (e) (1977).
---------------------------------------------------------------------------

S. 1114 would give mine operators preferential treatment

    S. 1114 would upset MSHA's delicate balance between the 
interests of miners, mine operators, and mining communities. 
MSHA currently solicits input on forthcoming regulations 
through public meetings in mining communities, outside of 
Washington, D.C., at which all interested parties are invited 
to attend. Under these procedures, it is difficult for any one 
party to exert undue influence over the regulatory process. S. 
1114, by contrast, would give mine operators--large and small--
preferential treatment in the consideration and review of 
proposed regulations, without any participation of miners or 
affected communities in its advocacy panels. Yet MSHA has 
stated that S. 1114 would not produce any information not 
currently obtained through existing procedures.
    To restore some measure of balance to S. 1114's rulemaking 
process, Senator Wellstone offered an amendment that would have 
ensured ``equal participation of mine workers and members of 
affected local communities'' in its advocacy panels. Absent 
this improvement, S. 1114 would exclude miners and affected 
communities from initial consideration of MSHA rules, thereby 
skewing the rulemaking process in favor of mine operators--the 
largest among them as well as the smallest. The Wellstone 
amendment was defeated by voice vote.

Mining is an extremely dangerous industry

    The reason why the Mine Act carries a presumption in favor 
of miner safety and health is that mining is one of the most 
dangerous industries in the country. As Joseph A. Main of the 
United Mineworkers of America testified at the Subcommittee's 
May 26 hearing, the mining industry has the highest fatality 
rate in the country.\19\ This is also why the Mine Act imposes 
strict liability on mine operators.
---------------------------------------------------------------------------
    \19\ Testimony of Joseph A. Main, Administrator, Department of 
Occupational Safety and Health, United Mineworkers of America, MSHA 
Hearing, at 42. Nevertheless, the Mine Act has achieved dramatic 
success in reducing worker injuries and fatalities over the past 20 
years. See Testimony of Assistant Secretary Davitt McAteer, MSHA 
Hearing, at 12-13.
---------------------------------------------------------------------------
    One reason why coal mining, in particular, is so dangerous 
is the widespread overexposure of miners to coal dust. In 1998, 
an expose by the Louisville Courier-Journal detailed pervasive 
violation of the Mine Act by coal mine operators.\20\ As 
Senator Wellstone stated at the May 26 Subcommittee hearing, 
``The Courier-Journal found that four out of five of this 
country's underground coal mine operators had submitted [coal 
dust] test samples that were statistically impossible. At 48 
percent of the mines, over 15 percent of test samples showed 
impossibly low levels. Several mine officials admitted the 
fraud was deliberate.'' \21\ Widespread cheating on coal dust 
samples has also been evidenced by 117 guilty pleas or 
convictions for violations of the Mine Act since the early 
1990s.\22\
---------------------------------------------------------------------------
    \20\ See ``Dust, Deception, and Death,'' Louisville Courier-Journal 
(April 19-May 3, 1998). See also Testimony of Assistant Secretary of 
Labor Davitt McAteer, MSHA Hearing, at 26-29.
    \21\ Opening Statement of Senator Paul Wellstone, MSHA Hearing, at 
7.
    \22\ MSHA Hearing, at 184-199.
---------------------------------------------------------------------------
    Incidentally, smaller mines are especially hazardous to the 
health and safety of miners. MSHA statistics reveal that 
smaller mines and non-union mines both have higher-than-average 
rates of fatalities and injuries.\23\ Based on its analysis of 
24,380 federal coal dust records and other sources, the 
Louisville Courier-Journal concluded that small non-union mines 
generally pay lower wages and cheat more often on coal-dust 
testing.\24\
---------------------------------------------------------------------------
    \23\ MSHA Hearing, at 92-95, 170.
    \24\ ``Black Lung, Cheating Worse at Small, Non-Union Mines,'' 
Louisville Courier-Journal (April 21, 1998).
---------------------------------------------------------------------------

Miners need speedier rulemaking, not additional delay

    Miners need speedier promulgation of regulations to protect 
their health and safety, not more delays resulting from S. 
1114. In response to Majority questions following the May 26 
hearing, MSHA wrote that ``adding this (advocacy panel) 
requirement to the rulemaking process could delay safety and 
health rules that would protect miners from serious injuries 
and illnesses.'' \25\
---------------------------------------------------------------------------
    \25\ MSHA Hearing, at 79. Similarly, Secretary Herman writes, 
``Resources devoted to the formal panels would not be available for 
other issues, thus possibly delaying new or enhanced safety and health 
protections for the men and women working in the Nation's mines.'' 
Herman Letter, at 2.
---------------------------------------------------------------------------
    The mining industry has already succeeded in delaying much-
needed regulation for years, including regulations necessary to 
stop rampant cheating on coal dust sampling that results in the 
deaths of thousands of coal miners every year.\26\ S. 1114 
would constitute an additional opportunity for delay of this 
and other critical safety and health protections.
---------------------------------------------------------------------------
    \26\ See MSHA Hearing, at 88-90.
---------------------------------------------------------------------------
    Several MSHA regulations opposed by the mining industry 
have been inexcusably delayed. As Subcommittee Chairman 
Wellstone noted at the May 26 hearing, ``the noise rule 
originated with the Bush Administration. The diesel particulate 
matter regulation was first proposed in the Reagan 
Administration. Single-shift sampling should have been 
implemented years ago.'' \27\
---------------------------------------------------------------------------
    \27\ Ibid., at 8.
---------------------------------------------------------------------------
    The single-shift sampling rule is of particular 
significance.\28\ This rule has already been delayed far too 
long due to the delaying tactics of mine operators. The single-
shift rule is necessary for MSHA to take coal dust testing out 
of the hands of mine operators, an initiative supported by 
industry and miners alike. This takeovers is critically 
important for MSHA to put a stop to rampant and widespread 
violation of the Mine Act.
---------------------------------------------------------------------------
    \28\ Ibid., at 176-183.
---------------------------------------------------------------------------

                   the administration opposes s. 1114

    The Majority incorrectly claims that ``MSHA endorsed 
Senator Enzi's proposal.'' On the contrary, MSHA unequivocally 
opposes S. 1114. In his testimony before the Subcommittee 
Assistant Secretary McAteer said, ``We support the notion, the 
idea, of involving small operators,'' but he argued that 
current MSHA existing procedures achieve this goal more 
effectively than the procedures established by S. 1114.
    MSHA has made known its opposition to S. 1114 on multiple 
occasions: in Assistant Secretary McAteer's testimony before 
the Subcommittee, in responses to the Majority's follow-up 
questions, and in Secretary Herman's letter. In Secretary 
Herman's letter to Chairman Jeffords dated November 2, 1999, 
she wrote,

          MSHA has long-standing mechanisms and approaches that 
        effectively involve all segments of the mining 
        community in its rulemaking activities. In our view, 
        requiring formal panels would not add any appreciable 
        benefits beyond MSHA's current efforts to involve small 
        businesses in rulemaking, and could delay safety and 
        health rules necessary to protect miners' safety and 
        health. Consequently, the Administration opposes S. 
        1114.

In response to the Majority's questions following the May 26 
Subcommittee hearing, MSHA wrote, ``the Administration opposes 
extending the [SBREFA] panels to MSHA.'' \29\ In fact, 
immediately following the exchange from the May 26 hearing 
excerpted by the Majority, Assistant Secretary McAteer said, 
``We think that the proposed advocacy panels do not achieve the 
results but simply add another layer of bureaucracy and another 
layer of Washington associations being part of the process.'' 
\30\
---------------------------------------------------------------------------
    \29\ MSHA Hearing, at 79,213.
    \30\ McAteer Testimony, at 30.
---------------------------------------------------------------------------

                          democratic amendment

    Senator Wellstone offered an amendment that would have 
significantly improved S. 1114. The Wellstone amendment 
provided for ``equal participation of mine workers and members 
of affected local communities at every stage of the process,'' 
including S. 1114's advocacy panels. The Wellstone amendment 
expanded participation in S. 1114's panels because it is very 
hard to justify excluding miners and affected communities when 
99 percent of mine operators would be eligible for participate.
    The Wellstone amendment also changed the definition of 
``small entities'' in S. 1114, reducing the employees threshold 
from 500 to fewer than 20. The Wellstone amendment thus made S. 
1114 conform to MSHA's traditional definition of small mine 
operators.\31\ Even under the more restrictive definition in 
the Wellstone amendment, more than 80 percent of all mine 
operators would be eligible to participate in S. 1114's 
advocacy panels.\32\
---------------------------------------------------------------------------
    \31\ The Majority ``notes that MSHA's definition of small business 
is 20 employees or less,'' while the Wellstone amendment would have 
limited eligibility for participation in SBREFA panels to small 
businesses with 19 employees or less. Actually, the Wellstone amendment 
was consistent with MSHA's definition of small mines. ``MSHA and the 
mining industry have traditionally defined a small mine as one 
employing fewer than 20 workers.'' Herman letter, at 2 [emphasis 
added]. See also MSHA Hearing, at 212; Opening Statement of Senator 
Paul Wellstone, ibid., at 8.
    \32\ There are 14,000 mining operations in the United States. Of 
those 14,000, approximately 11,100--or 80 percent--have 20 or fewer 
miners.
---------------------------------------------------------------------------
    The Majority mischaracterizes the content and import of the 
Wellstone amendment. The Majority writes, ``The amendment would 
have changed the bill so that existing SBREFA panel 
requirements for small business participation would be replaced 
by local community participation.'' On the contrary, the 
Wellstone amendment would have supplemented, not replaced, 
``small business'' participation in S. 1114's advocacy panels. 
The Majority also claims that ``miners and local communities 
are not excluded from participating in the rulemaking 
process.'' But they are excluded from participating in S. 
1114's advocacy panels.
    The Wellstone amendment was defeated on a voice vote.

                               Conclusion

    S. 1114 is ill-conceived, inappropriate, and unnecessary 
legislation. It would do nothing to improve the representation 
of smaller mines in MSHA's rulemaking procedures. As compared 
to existing MSHA procedures, it would actually disadvantage 
smaller mines. The fact that 99 percent of mine operators would 
meet S. 1114's definition of ``small business concern'' makes 
it clear that the primary effect of S. 1114 would be to give 
preferential treatment to the interests of mine operators over 
those of miners. This reversal of the Mine Act's presumption of 
a priority for miner safety and health is entirely 
inappropriate. S. 1114 would replace MSHA's current 
decentralized and balanced procedures with duplicative, 
wasteful, bureaucratic, and unbalanced procedures rigged in the 
interest of mine operators. For these reasons, we oppose S. 
1114.

                                   Edward M. Kennedy.
                                   Tom Harkin.
                                   Paul Wellstone.
                                   Jack Reed.
                                   Chris J. Dodd.
                                   Barbara A. Mikulski.
                                   Patty Murray.
    Enclosures.

                            United Mine Workers of America,
                                  Washington, DC, November 2, 1999.
    Dear Senator: I am urging you to oppose Senate Bill 1114 
(S. 1114)--a proposal that would amend Section 101(a)(2) of the 
Federal Mine Safety and Health Act to give mine operators an 
unfair advantage in making health and safety rules that protect 
miners.
    S. 1114 is nothing more than special-interest legislation 
for big business. It would give operators a special right to 
challenge health and safety regulations put in place to protect 
miners from job-related illness, injury or death. The bill 
creates a mechanism that gives operators the opportunity to 
change proposed regulations before miners are allowed any 
input.
    S. 1114 would further bog down an already painfully slow 
process in which miners get sick and die waiting for regulatory 
protection. Perhaps most appalling, S. 1114 is relief for an 
industry notorious for killing its workers. Defiance and 
disregard for health and safety regulations on the part of mine 
operators and owners has killed more miners than workers in any 
other industry in the country.
    If enacted, S. 1114 would be a terrible blow to miners. 
Below is a brief outline of why you should fight this proposed 
legislation.

                                S. 1114

    Creates special rights for operators at the expense of 
miners' health and safety. S. 1114 would require the Mine 
Safety and Health Administration (MSHA) to obtain advice and 
recommendations from representatives of mining operators that 
would be affected by any proposed rule under MSHA's 
consideration. A special panel of representatives from the 
Small Business Administration (SBA), the Office of Management 
andBudget and MSHA would then file a report based on the their 
review of each operator's recommendations.
    Only operators, not miners, would be given this early 
chance for input into the process. As a result, reports and 
recommendations on proposed health and safety rules would 
reflect the needs and interests of operators, not miners. S. 
1114 would given the industry a protected opportunity to get 
involved and undercut the regulatory process before miners even 
get a look at proposals concerning their health and safety. S. 
1114 changes to process of promulgating mining health and 
safety regulations--supposedly democratic--to give operators an 
unfair advantage.
    MSHA currently provides direct notice and holds public 
forums on proposed rules to get input from the entire mining 
industry. Any amendment giving operators more input should give 
workers the same opportunity.
    Proclaims to cover only small mines, which actually make up 
99% of the U.S. mining industry. Proponents of this legislation 
say that it will apply to small mines--implying that it would 
effect only a few operations and a small number of miners. But 
S. 1114 defines ``small mine operators'' as does the SBA as: 
operations that employ up to 500 workers. MSHA statistics show 
that approximately 99% of operating mines fit that description. 
S. 1114 is really an attempt to give operators more control 
over a regulatory process that costs them money and miners 
their lives.
    Would make mining even more dangerous for workers. Since 
1900, more than 104,000 coal miners have tragically lost their 
lives in coal mining accidents and over 100,000 have died from 
the suffocating disease of pneumoconiosis, or black lung. In 
the past 10 years, nearly 1,000 miners were killed and nearly 
2.5 million more were injured or became ill while working. And 
black lung continues to kill. The latest federal studies show 
that more than 1,500 miners--one every six hours--die each year 
from the disease. If these numbers seem high, they are.
    Last year, 80 miners (coal, metal and nonmetal) died on the 
job; 11,500 more were injured. A 1998 Centers for Disease 
Control Study found that--from 1980 through 1994--the mining 
industry had the most occupational deaths than any other 
industry in the nation. The death rate per 100,000 workers in 
mining was 30.5, while the next closest industries were 
agriculture, forestry and fishing at 20.5.
    These grim numbers are a result of an already hamstrung 
process. Regulations to protect miners from coal dust, diesel 
fumes, chemicals, noise and other health and safety threats 
already take 10 to 20 years to be finalized. For example, a 
rule requiring operators to notify miners before bringing 
dangerous chemicals into the workplace has been ``under 
development'' for about 12 years--during which miners have been 
dying from exposure to toxic chemicals.
    Rules that would give mines protection from exposure to 
unhealthy levels of coal dust and the cancer-causing diesel 
exhaust spewed out by diesel machinery are also caught in the 
regulatory maze. Miners need a faster and more efficient 
process when it comes to health and safety regulations, not one 
that forces them to work longer without potentially life-saving 
protections.
    Gives regulatory relief to those who least need it. 
Research shows that small-mine operators have dismal compliance 
records and show blatant disregard for the health and safety of 
the workers in their employ. A 1998 investigation of mines in 
Kentucky by the Louisville Courier-Journal showed that 
operators of small mines consistently ignored regulations 
protecting miners from coal dust and blatantly cheated in the 
dust-sampling process--further undermining a health and safety 
protection. This snap-shot of violations perpetrated by 
Kentucky mine operators and owners is, sadly, played out around 
the country--in the past 10 years, mine operators have been 
cited 1.3 million times for ignoring health and safety 
regulations.
    For the reasons I've outlined here, I ask that you oppose 
S. 1114.
            Sincerely,
                                                  Cecil E. Roberts.
                                ------                                

                   American Federation of Labor and
                      Congress of Industrial Organizations,
                                  Washington, DC, November 2, 1999.
Hon. James M. Jeffords,
Chairman, Committee on Health, Education, Labor & Pensions, Dirksen 
        Office Building, Washington, DC.
    Dear Mr. Chairman: On November 3, 1999, the Senate 
Committee on Health, Education, Labor and Pensions is scheduled 
to mark-up S. 1114, the Small Mine Advocacy Review Panel Act. 
S. 1114 is an unnecessary measure that would give mining 
corporations new special rights in the regulatory process at 
the expense of miners' safety and health. The AFL-CIO urges you 
to oppose this legislation.
    S. 1114 proposes to amend the Federal Mine Safety and 
Health Act of 1977 to make MSHA rules subject to the regulatory 
review procedures under the Small Business Regulatory 
Enforcement Act (SBREFA). Under these procedures 
representatives of mining companies are given a special 
opportunity to review and provide input on draft agency rules 
and regulatory analyses before a proposed rule is issued, 
before all other parties have a change to be heard. The SBREFA 
regulatory process only allows input from mine operators. 
Miners and other interested parties are not permitted to 
participate. The only issues required to be addressed are the 
impacts of the rule on so-called ``small'' business, not the 
safety and health concerns of miners.
    Contrary to the claims of supporters, S. 1114 is not a 
small business bill. The bill's definition of small business--
that used by the SBA--includes all mining employers with 500 or 
fewer employees. This definition covers more than 95% of all 
the nation's mines.
    Experience under the existing SBREFA law shows that 
industry groups have used the review procedures not as a means 
to address concerns of small business, but rather as a platform 
in their campaigns to delay or block needed safety and health 
rules, such as OSHA's ergonomics standard.
    MSHA's current rulemaking procedures provide extensive 
opportunities for input on safety and health regulations. 
Public forums are held on issues where the agency is 
considering regulatory authority and public hearing when rules 
are formally proposed. Unlike S. 1114, the current procedures 
provide equal opportunity for all interested parties--miners, 
mine operators and members of the public--to be heard.
    Over the past century more than 100,000 miners have lost 
their lives in mining accidents, hundreds of thousands have 
suffered disabling disease or early death from black lung. 
While progress has been made, today the mining industry remains 
as one of the most dangerous industries in this country with 
high rates of fatalities and injuries. Regulations to protect 
miners need to be strengthened and issued faster, not weakened 
and delayed.
    The Congress should support a fair, democratic regulatory 
process where all parties have equal rights. The AFL-CIO urges 
you to oppose S. 1114.
            Sincerely,
                                              Peggy Taylor,
                               Director, Department of Legislation.
                                ------                                

                                        Secretary of Labor,
                                  Washington, DC, November 2, 1999.
Hon. James M. Jeffords,
Chairman, Committee on Health, Education, Labor and Pensions, U.S. 
        Senate, Washington, DC.
    Dear Chairman Jeffords: This letter presents the views of 
the Department of Labor on S. 1114, the ``Small Mine Advocacy 
Review Panel Act.'' This bill would amend Section 609(d) of 
Title 5 of the United States Code to include the Mine Safety 
and Health Administration (MSHA) in the list of agencies 
required to convene a panel to obtain advice and 
recommendations on the potential impacts of proposed rules on 
small entities. Currently, the Occupational Safety and Health 
Administration and the Environmental Protection Agency are 
required to convene such panels.
    We appreciate the desire to ensure that operators of small 
mines are given adequate opportunity to voice their needs and 
concerns in the rulemaking process. However, MSHA has long-
standing mechanisms and approaches that effectively involve all 
segments of the mining community in its rulemaking activities. 
In our view, requiring formal panels would not add any 
appreciable benefits beyond MSHA's current efforts to involve 
small businesses in rulemaking, and could delay safety and 
health rules necessary to protect miners' safety and health. 
Consequently, the Administration opposes S. 1114.
    MSHA is responsible for protecting the safety and health of 
the more than 350,000 men and women working in the Nation's 
mines. To address the inherently hazardous nature of the mining 
environment, and to ensure that the men and women working in 
the mines do not suffer occupationally related injuries or 
illnesses, MSHA's authorizing statute, the Federal Mine Safety 
and Health Act of 1977 (Mine Act) provides MSHA with a unique 
set of responsibilities. These include conducting a minimum 
number of annual inspections at all mines, investigating all 
fatalities and other serious accidents, and collecting data 
relating to accidents, injuries, and illnesses that occur in 
the mining industry. As a result, MSHA has specific knowledge 
of the safety and health hazards miners face on a daily basis, 
and is uniquely positioned to interact on safety and health 
matters, including its rulemaking activities, with every mine 
operator in the Nation.
    Currently, MSHA uses a variety of mechanisms--ranging from 
formal advisory committees to ``best practices'' workshops--to 
address safety and health issues in the mining industry. In 
addition, MSHA is in a unique position to seek advice and input 
from the mining industry well before the rulemaking process 
formally begins, and continues to involve all members of the 
mining community throughout the rulemaking process.
    S. 1114, on the other hand, would require MSHA to use a 
formal panel process to obtain the views of small businesses. 
MSHA and the mining industry have traditionally defined a small 
mine as one employing fewer than 20 workers. However, the Small 
Business Administration defines a small mine as one employing 
500 or fewer workers. Under this definition, more than 99 
percent of the Nation's mines are ``small'' and eligible to 
participate in the formal panels. Consequently, the formal 
panels could have representation from mines employing 400-500 
workers, as well as those employing fewer than 20 workers. 
Given the disparity in resources between small and large mines, 
we are very concerned that the formal panels would be dominated 
by the larger operations. In our view, S. 1114 could actually 
result in diminished opportunity for meaningful participation 
in MSHA's rulemaking activities by operators of small mines.
    S. 1114 also has resource implications for MSHA. MSHA uses 
enforcement, technical support, and education and training 
staff to encourage the mining community's participation in its 
safety and health activities, including rulemaking. This 
approach works efficiently because these staff members are at 
mine sites, interacting with miners and mine operators 
virtually on a daily basis. The formal panels required by S. 
1114, however, would require MSHA to devote specific personnel 
to prepare materials, convene and participate in panels, 
prepare reports, and develop findings on the issues raised 
during the formal panel process. Resources devoted to the 
formal panels would not be available for other issues, thus 
possibly delaying new or enhanced safety and health protections 
for the men and women working in the Nation's mines.
    The Office of Management and Budget advises that there is 
no objection to the transmittal of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                                  Alexis M. Herman.

                      XI. Changes in Existing Law

    In compliance with rule XXVI paragraph 12 of the Standing 
Rules of the Senate, the following provides a print of the 
statute or the part or section thereof to be amended or 
replaced (existing law proposed to be omitted is enclosed in 
black brackets, new matter is printed in italic, existing law 
in which no change is proposed is shown in roman):

               FEDERAL MINE SAFETY AND HEALTH ACT OF 1977

           *       *       *       *       *       *       *


                         SUBCHAPTER I--GENERAL

SEC. 811. MANDATORY SAFETY AND HEALTH STANDARDS (A) DEVELOPMENT, 
                    PROMULGATION, AND REVISION

           *       *       *       *       *       *       *


    (2) The Secretary shall publish a proposed rule 
promulgating, modifying, or revoking a mandatory health or 
safety standard in the Federal Register. If the Secretary 
determines that a rule should be proposed and in connection 
therewith has appointed an advisory committee as provided by 
paragraph (1), the Secretary shall publish a proposed rule, or 
the reasons for his determination not to publish such rule, 
within 60 days following the submission of the advisory 
committee's recommendation or the expiration of the period of 
time prescribed by the Secretary in such submission. In either 
event, the Secretary shall afford interested persons a period 
of 30 days after any such publication to submit written data or 
comments on the proposed rule. Such comment period may be 
extended by the Secretary upon a finding of good cause, which 
the Secretary shall publish in the Federal Register. 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 
mineoperator'' 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. Publication shall 
include the text of such rules proposed in their entirely, a 
comparative text of the proposed changes in existing rules, and 
shall include a comprehensive index to the rules, cross-
referenced by subject matter.

                      TITLE 5--UNITED STATES CODE

           *       *       *       *       *       *       *


SEC. 609. PROCEDURES FOR GATHERING COMMENTS

    (a) * * *

           *       *       *       *       *       *       *

    (d) For purpose of this section the term ``covered agency'' 
means the Environmental Protection [Agency and] Agency, the 
Mine Safety and Health Administration and the Occupational 
Safety and Health Administration of the Department of Labor.

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