[Federal Register Volume 64, Number 60 (Tuesday, March 30, 1999)]
[Proposed Rules]
[Pages 15144-15148]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7683]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, 77, and 120

RIN 1219-AA47


Hazard Communication

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: This document concerns the factual basis for our (MSHA's) 
certification that the proposed rule on hazard communication (hazcom 
proposal) for the mining industry would have no significant impact on 
small businesses; a preliminary determination that the hazcom proposal 
would not significantly or adversely impact the environment; the health 
of children; or State, local, and tribal governments; and an updated 
analysis of the information collection and paperwork burden under the 
Paperwork Reduction Act of 1995 (PRA 95). We are reopening the 
rulemaking record for the limited purpose of receiving comments on 
these items.

DATES: We must receive your comments by June 1, 1999.

ADDRESSES: You may use mail, facsimile (fax), or electronic mail to 
send your comments to MSHA. Clearly identify comments as such and send 
them--
    (1) By mail to Carol J. Jones, Acting Director, Office of 
Standards, Regulations, and Variances, MSHA, 4015 Wilson Boulevard, 
Room 631, Arlington, VA 22203;
    (2) By fax to MSHA, Office of Standards, Regulations, and 
Variances, 703-235-5551; or
    (3) By electronic mail to [email protected].
    In addition, send your comments on the information collection 
requirements to the Office of Information and Regulatory Affairs, OMB, 
Attention: Desk Officer for MSHA, 725 17th Street NW., Room 10235, 
Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 2, 1987, the United Mine Workers of America (UMWA) and 
the United Steelworkers of America (USWA) jointly petitioned MSHA to 
adapt the Occupational Safety and Health Administration's (OSHA's) 
Hazard Communication Standard (HCS) to both coal and metal/nonmetal (M/
NM) mines and to propose it for the mining industry. They based their 
petition on the need for miners to be better informed about the 
chemical hazards in their workplace.
    In response to this petition, we published an advance notice of 
proposed rulemaking (ANPRM) on hazard communication for the mining 
industry on March 30, 1988 (53 FR 10256); published the hazcom proposal 
on November 2, 1990 (55 FR 46400); and held three public hearings in 
1991. The record closed on January 31, 1992.
    The hazcom proposal would require an operator to develop and 
implement a hazcom program which includes--
    (1) Evaluating the hazards of chemicals present at the mine and 
maintaining a list of those determined to be hazardous;
    (2) Labeling containers of hazardous chemicals;
    (3) Preparing or obtaining material safety data sheets (MSDS's) for 
each hazardous chemical;
    (4) Training miners; and
    (5) Providing access to the written materials.
    An effective hazcom program increases both awareness and knowledge 
of the hazards of chemicals in the workplace. Awareness and knowledge 
of chemical hazards present in the workplace increase the likelihood 
that a miner will take appropriate precautions when working with or 
around chemicals. We believe that the use of these precautions will 
help reduce the incidence of chemically-related, occupational injuries 
and illnesses among miners.
    Our hazcom proposal would integrate our existing labeling 
requirements into a new, comprehensive, hazcom program. We based the 
hazcom proposal on comments received in response to the ANPRM, as well 
as on our experience in the mining industry. We also considered 
relevant standards of other Federal agencies, including OSHA's 
experience with its HCS, and applicable legislation. MSHA's hazcom 
proposal is generally consistent with OSHA's HCS.
    Although we are preparing the final rule, we first need to address 
several regulatory mandates, some of which were not in existence when 
we

[[Page 15145]]

published our hazcom proposal in 1990. These statutory mandates and 
Executive Orders require us to evaluate the impact of a regulatory 
action on small mines; State, local, and tribal governments; and the 
environment.
    We recognize that the mining industry has changed since 1990 when 
we developed the Preliminary Regulatory Impact Analysis (PRIA) and 
published the hazcom proposal. Most of the changes, however, would 
decrease the total impact of the hazcom proposal on the mining 
industry. For example, the number of mines and miners has decreased 
while the number of independent contractors has increased. We believe 
that this change would decrease the impact of the hazcom proposal 
because fewer mines and miners generally mean fewer total compliance 
costs.
    Additionally, independent contractors are more likely to have a 
hazcom program because they are more likely to work in operations under 
OSHA jurisdiction, as well as in mines under MSHA jurisdiction. 
Similarly, some mine operators already have a hazcom program as company 
policy, because the parent company also has operations in industries 
subject to OSHA's HCS, or the mine is located in a State with an 
individual State right-to-know law. We believe that these existing 
hazcom programs decrease the economic impact of MSHA's hazcom proposal 
on the mining industry.
    Another change that affects the hazard communication environment is 
increased public awareness due to the length of time that the OSHA HCS 
has been in effect. There is an abundance of hazard communication 
information, supplies, training, and training aids readily available to 
the public off-the-shelf or through the Internet.

II. Specific Issues

A. Regulatory Flexibility Act and Small Business Regulatory Enforcement 
Fairness Act

    The Regulatory Flexibility Act (RFA) requires a regulatory agency 
to evaluate each proposed rule and to consider alternatives so as to 
minimize the rule's impact on small entities (businesses and local 
governments). In the preamble to our hazcom proposal, we certified that 
the hazcom proposal would not have a significant economic impact on a 
substantial number of small mining operations. The preamble also 
included a full discussion of our preliminary conclusions about 
regulatory alternatives and invited the public to comment. The preamble 
and PRIA, however, did not use the Small Business Administration's 
(SBA's) definition of a small entity. Under the RFA, we must use SBA's 
definition of a small entity in determining a rule's economic impact 
unless, after consultation with SBA and an opportunity for public 
comment, we establish another definition and publish the definition in 
the Federal Register. For the mining industry, SBA defines ``small'' as 
a business with 500 or fewer employees. To ensure that we comply with 
the RFA requirements, this notice informs you of the hazcom proposal's 
impact on ``small'' mines, using the SBA definition of a small entity, 
and provides you with an opportunity to comment.
    In 1996, Congress enacted the Small Business Regulatory Enforcement 
Fairness Act (SBREFA) amending the RFA. SBREFA requires a regulatory 
agency to include in the preamble to a rule the factual basis for that 
agency's certification that the rule has no significant impact on a 
substantial number of small entities. The agency then must publish the 
factual basis in the Federal Register, followed by an opportunity for 
public comment. Although SBREFA did not exist when we published the 
hazcom proposal, we are now publishing the factual basis for our 
previous certification that the hazcom proposal poses ``no significant 
impact,'' to give you an opportunity to comment on it.
Factual Basis for Certification of ``No Significant Impact''
    At the time we published the hazcom proposal, we defined a small 
mine to be one that employed fewer than 20 miners. To determine the 
costs for mines with 500 or fewer employees, we applied the same basic 
methodology that we had used in the PRIA to estimate the costs for 
mines with fewer than 20 employees. We used 1997 closeout data for 
numbers of mines and miners and current data for the cost of materials 
and labor.
    Table I indicates the number of operations with 500 or fewer 
employees and the total number of employees at these operations. We 
substituted these figures for those that we had used in the original 
1990 PRIA to estimate the impact on operations with fewer than 20 
employees. We estimate that the annual cost of complying with the 1990 
hazcom proposal for operations with 500 or fewer employees would be 
about $5.54 million annually: $1.20 million for coal operations and 
$4.34 million for M/NM operations.

                                 Table I.--Annual Compliance Costs by Mine Size*
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                                    No. of mines              No. of miners           Annual compliance cost
   Mine size (employment)    -----------------------------------------------------------------------------------
                                  Coal         M/NM         Coal         M/NM          Coal            M/NM
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Small (1-500)...............        6,558       14,306      112,864      178,303      $1,197,241      $4,344,381
Large (>500)................           11           35        6,179       28,190          32,033         195,775
All Operations..............        6,569       14,341      119,043      206,493       1,229,274       4,540,156
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*Includes independent contractors and their employees.

    Whether these compliance costs impose a ``significant'' impact on 
small entities depends on their effect on the profits, market share, 
and financial viability of small mines. To address these issues, we had 
to determine whether compliance with the hazcom proposal would place 
small mines at a significant competitive disadvantage relative to large 
mines or impose a significant cost burden on small mines.
    The first step in this determination is to establish whether 
compliance with the hazcom proposal would impose substantial capital or 
first-year, start-up costs on small mines. Because financing is 
typically more difficult or more expensive to obtain for small mines 
than for large mines, initial costs may impose a greater burden on 
small mines than on large mines. The hazcom proposal, however, does not 
require engineering controls or other items requiring substantial 
initial capital expenditure that would place small mines at a 
competitive disadvantage relative to large mines.
    The initial costs associated with the hazcom proposal are those 
necessary to develop and implement a hazard communication program. 
Based on our updated estimate of this cost on mines employing 500 or 
fewer employees, we

[[Page 15146]]

projected that the first-year, start-up costs would be about $900 to 
$1,200 per operation. Because this cost is less than one percent of the 
revenue for these mines, we believe that the hazcom proposal would not 
impose substantial capital or first-year, start-up costs on small 
mines.
    The second step in this determination is to establish whether there 
are significant economies of scale in compliance that would place small 
mines at a competitive disadvantage relative to large mines. In the 
PRIA, we investigated economies of scale by calculating whether 
compliance costs are proportional to mine employment. As shown in Table 
II, the annual compliance cost per miner would be about $11 for small 
coal mines, $5 for large coal mines, $24 for small M/NM mines, and $7 
for large M/NM mines. These compliance costs would be about twice as 
great per miner for small coal mines than for large coal mines and over 
three times greater per miner for small M/NM mines than for large M/NM 
mines. Although we believe that this difference may be significant, it 
is unlikely to provide strategic leverage because, as shown in Table 
II, both small coal mines and small M/NM mines generate over 95 percent 
of the revenues in their respective markets. Furthermore, as shown in 
Table II, total compliance costs would be about 18 times larger, on 
average, for a large coal mine than for a small coal mine and about 22 
times larger, on average, for a large M/NM mine than for a small M/NM 
mine.

                               Table II.--Compliance Cost per Miner and per Mine*
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                                     Average compliance cost   Average compliance cost     Total revenues  (in
                                            per miner                 per mine                  millions)
      Mine size (employment)       -----------------------------------------------------------------------------
                                        Coal         M/NM         Coal         M/NM         Coal         M/NM
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Small (1-500).....................          $11          $24         $183         $304      $18,680      $22,370
Large (>500)......................            5            7        2,912        5,594        1,980        2,630
All Operations....................           10           22          187          317       20,660       25,000
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*Includes independent contractors and their employees.

    The third step in this determination is to establish whether the 
compliance costs impose a significant burden on small mines in absolute 
terms. For this purpose, we examined compliance costs relative to 
revenues per small mine (or, equivalently, for all small mines). As 
shown in Table III, compliance costs represent only about 0.006 percent 
of the value of coal mine production and only about 0.019 percent of 
the value of M/NM mine production. Because the cost of the rule as a 
percentage of revenue would be considerably less than one percent, we 
believe that this result, in conjunction with the previous analysis, 
provides a reasonable basis for the certification of ``no significant 
impact'' in this case.

                                Table III.--Compliance Costs Compared to Revenue*
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                                                    Revenue per
  Small mines (employing 1-500)    Average cost        mine         Total cost     Total revenue   Cost as % of
                                     per mine       (millions)      (millions)      (millions)        revenue
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Coal............................            $183          $2.848          $1.197         $18,680           0.006
M/NM............................             304           1.564           4.344          22,370           0.019
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*Includes independent contractors and their employees.

B. Paperwork Reduction Act

    When we published our hazcom proposal, the information collection 
and paperwork requirements were not an information collection burden 
under the 1980 Paperwork Reduction Act (PRA 80) because they were 
third-party disclosures. On August 29, 1995, the Office of Management 
and Budget (OMB) published a final rule in the Federal Register (60 FR 
44978) implementing the new Paperwork Reduction Act of 1995 (PRA 95). 
These OMB rules expanded the definition of ``information'' to clarify 
that PRA 95 also covered Agency rules that required businesses or 
individuals to maintain information for the benefit of a third-party or 
the public, rather than the government. The requirements for 
information collection and dissemination in the hazcom proposal are now 
an information collection burden because of the expanded definition of 
``information'' under PRA 95.
    The collection of information contained in the hazcom proposal is 
subject to review by OMB under PRA 95. We will submit the proposed 
paperwork package to OMB for its review and approval under section 
3507(o) of PRA 95. We describe the respondents and information 
collection requirements below with an estimate of the annual 
information collection burden. This estimate includes the time to 
inventory chemicals, determine the hazards of chemicals present, 
prepare or obtain labels or MSDS's as necessary, prepare training 
materials and train miners, and provide copies of written materials.
    We further invite comment on--
    (1) Whether this collection of information is necessary to protect 
miners;
    (2) The accuracy of our estimate of the burden, including the 
validity of our methodology and assumptions;
    (3) Ways to enhance the quality, usefulness, and clarity of the 
information; and
    (4) Ways to minimize the burden on respondents, including the use 
of automated collection techniques, when appropriate, and other forms 
of information technology.
    Description of requirements: The hazcom proposal is primarily an 
information collection and dissemination rule. The information 
collection and paperwork burden encompasses each section of this 
proposed part. These requirements are summarized in Table IV below.

[[Page 15147]]



       Table IV.--Description of Information Collection Provisions
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          Provision                  Information collection burden
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Written Hazard Communication   Preparation, administration, and annual
 Program.                       review determine hazardous chemicals
                                distribute written program when
                                requested.
Training Program.............  Develop or obtain training courses and
                                materials conduct initial training for
                                miners administer re: training miners
                                about changing hazards.
Material Safety Data Sheets..  Develop for hazardous chemicals produced
                                maintain availability and accuracy
                                distribute to miners and reps,
                                employers, and customers.
Labeling Containers..........  Prepare for chemicals produced maintain
                                legibility and accuracy provide
                                information to customers.
Trade Secrets................  Provide confidential information when
                                needed.
------------------------------------------------------------------------

    Description of respondents: The respondents are operators, 
including independent contractors. We estimate that this provision 
affects those operators who do not already have a hazcom program at 
their mines. For the purpose of the hazcom proposal, we estimated that 
5 percent of small mines and 10 percent of large mines voluntarily have 
implemented all of the requirements in MSHA's hazcom proposal. In 
addition, some mines have implemented all or part of the requirements 
contained in the hazcom proposal to comply with State hazard 
communication or right-to-know laws.
    The percentage of mines complying with these State laws varies 
depending on the type of mine and the specific provision. For example, 
some mines may keep MSDS's and label containers, but do not have a 
written program or conduct hazcom training for miners. Also, we assumed 
that all independent contractors conduct some work at locations under 
OSHA jurisdiction and would have an existing hazcom program. The 
contractor's hazcom program, however, may need modification for a 
particular mine. The magnitude of the burden for any individual mine 
operator or independent contractor, therefore, will vary greatly by the 
size, type, and location of the operation.
    Information Collection Burden: The burden of the hazcom proposal is 
greater initially, when developing and implementing the program. 
Subsequent years, the burden is primarily for maintaining and 
administering the program. Because this hazcom proposal would not 
require any capital expenditures, we did not annualize these initial 
costs. The total estimated first-year, start-up information collection 
burden for the hazcom proposal is about 789,500 hours ($20.3 million 
labor cost) plus an associated cost of about $3,757,000. The total 
estimated annually recurring information collection burden for the 
second year and each year thereafter is about 230,700 hours ($5.2 
million labor cost) plus an associated annual cost of about $578,000. 
Table V and Table VI summarize MSHA's estimate, by provision, of the 
information collection burden on the mining industry for the first year 
and annually thereafter.

                               Table V.--First-Year Information Collection Burden*
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                                                               Number of
                                    Number of    Number of     responses    Hours per                 Associated
            Provision              respondents   responses        per        response   Total hours    costs**
                                                              respondent
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Written Program..................       17,042       24,365           1.4         3.76       91,595     $397,748
Training.........................       20,910       57,775           2.8         4.54      262,229    2,718,403
Hazard Determination and MSDS's..       20,910    1,441,459          69           0.23      334,216      578,095
Labels...........................       20,910      596,042          29           0.17      100,919       63,093
Trade Secrets....................          147          147           1.0         4.00          586            0
                                  ------------------------------------------------------------------------------
    Total........................       20,910    2,119,787         101           0.37      789,544    3,757,339
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* Discrepancies due to rounding.
** The cost associated with the information collection is for material, supplies, and copying expenses; it does
  not include the labor cost for the burden hours.


                                Table VI.--Annual Information Collection Burden*
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                                                               Number of
                                    Number of    Number of     responses    Hours per                 Associated
            Provision              respondents   responses        per        response   Total hours    costs**
                                                              respondent
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Written Program..................        4,364        4,364           1.0         3.79       16,544      $38,573
Training.........................        4,440       11,113           2.5         4.61       51,282        7,502
Hazard Determination and MSDS's..       20,910      952,722          46           0.13      125,517      339,631
Labels...........................        2,267       60,693          27           0.61       36,768      192,257
Trade Secrets....................          147          147           1.0         4.00          586            0
                                  ------------------------------------------------------------------------------
Total............................       20,910    1,029,038          49           0.22      230,697      577,963
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* Discrepancies due to rounding.
** The cost associated with the information collection is for material, supplies, and copying expenses; it does
  not include the labor cost for the burden hours.


[[Page 15148]]

C. Environmental Assessment

    The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.) requires each Federal agency to consider the 
environmental effects of certain proposed actions. It requires further 
that these agencies prepare an Environmental Impact Statement for major 
actions significantly affecting the quality of the human environment. 
We have reviewed the hazcom proposal in accordance with the 
requirements of NEPA, the regulations of the Council on Environmental 
Quality (40 CFR part 1500), and the Department of Labor's NEPA 
regulations (29 CFR part 11). As a result of this review, we determined 
that this hazcom proposal would have no significant environmental 
impact.

D. Protection of Children From Environmental Health Risks and Safety 
Risks

    In accordance with Executive Order 13045, we have evaluated the 
hazcom proposal for any potential environmental health and safety 
effects on children and have determined that it would have no adverse 
effects on children.

E. Consultation and Coordination With Indian Tribal Governments

    In accordance with Executive Order 13084, we certify that the 
hazcom proposal would not impose substantial direct compliance costs on 
Indian tribal governments. We provided the public, including Indian 
tribal governments which operate mines, the opportunity to comment on 
the hazcom proposal and to participate in the public hearings.

F. Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires Federal agencies 
to consider the impact of proposed actions on State, local, and tribal 
governments. The hazcom proposal would impact about 200 sand and gravel 
or crushed stone operations that are run by State, local, or tribal 
governments. We have determined that the hazcom proposal does not 
include any Federal mandate that may result in increased expenditures 
by State, local, or tribal governments of more than $100 million in the 
aggregate, or increased expenditures by the private sector of more than 
$100 million. Moreover, we have determined that the hazcom proposal 
does not significantly or uniquely affect small governments.

III. Request for Comments

    Since we published our hazcom proposal in 1990, Congress has passed 
several legislative mandates and the President has issued several 
Executive Orders affecting the promulgation of regulations. In 
addition, we did not address a mandate that existed in 1990. With this 
in mind, we are reopening the rulemaking record for a limited time to 
provide the public an opportunity to comment on the hazcom proposal's 
economic and environmental impact and paperwork burden. Allowing time 
for additional public comments will not delay the promulgation of the 
final rule.
    I encourage all interested parties to take advantage of this 
opportunity to provide information and express your concerns on the 
specific issues discussed here. If not responding by electronic mail, 
we would appreciate receiving your comments on a computer disk along 
with the original hard copy. Contact us with any questions about 
format.
    You can obtain a copy of our hazcom proposal or PRIA by contacting 
us at the address or telephone number provided at the beginning of this 
notice.

    Dated: March 23, 1999.
Marvin W. Nichols, Jr.,
Deputy Assistant Secretary for Mine Safety and Health.
[FR Doc. 99-7683 Filed 3-29-99; 8:45 am]
BILLING CODE 4510-43-P