[Federal Register Volume 76, Number 169 (Wednesday, August 31, 2011)]
[Proposed Rules]
[Pages 54163-54179]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-22125]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AB65


Proximity Detection Systems for Continuous Mining Machines in 
Underground Coal Mines

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule; notice of public hearings.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to require underground coal mine operators to equip continuous mining 
machines (except full-face continuous mining machines) with proximity 
detection systems. Miners working near continuous mining machines face 
pinning, crushing, and striking hazards that have resulted, and 
continue to result, in accidents involving life threatening injuries 
and death. The proposal would strengthen the protections for miners by 
reducing the potential for pinning, crushing, or striking accidents in 
underground coal mines.

DATES: Comment date: All comments must be received or postmarked by 
midnight Eastern Standard Time on November 14, 2011.
    Compliance dates: See proposed compliance dates under the 
SUPPLEMENTARY INFORMATION section.
    Hearing dates: Hearings will be held on October 18, 2011, October 
20, 2011, and October 25, 2011, at the locations listed in the 
SUPPLEMENTARY INFORMATION section of this document.

ADDRESSES: Comments, requests to speak, and informational materials for 
the rulemaking record may be sent to MSHA by any of the following 
methods. Clearly identify all submissions in the subject line of the 
message with ``RIN 1219-AB65''.
     Federal E-Rulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Facsimile: 202-693-9441.
     Mail or Hand Delivery: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, VA 
22209-3939. For hand delivery, sign in at the receptionist's desk on 
the 21st floor.

Information Collection Requirements

    Comments concerning the information collection requirements of this 
proposed rule must be clearly identified with ``RIN 1219-AB65'' and 
sent to both the Office of Management and Budget (OMB) and MSHA. 
Comments to OMB may be sent by mail addressed to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Office Building, 725 17th Street, NW., Washington, DC 
20503, Attn: Desk Officer for MSHA. Comments to MSHA may be transmitted 
by any of the methods listed above in this section.

FOR FURTHER INFORMATION CONTACT: Roslyn B. Fontaine, Acting Director, 
Office of Standards, Regulations, and Variances, MSHA, at 
[email protected] (e-mail), 202-693-9440 (voice), or 202-693-9441 
(facsimile).

SUPPLEMENTARY INFORMATION:

I. Introduction
    A. Availability of Information
    B. Public Hearings
    C. Information Collection Supporting Statement
    D. Proposed Compliance Dates
II. Discussion of Proposed Rule
    A. Background
    B. Section-by-Section Analysis
III. Preliminary Regulatory Economic Analysis
    A. Executive Orders (E.O.) 12866 and 13563
    B. Population at Risk
    C. Benefits
    D. Compliance Costs
    E. Net Benefits
IV. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
V. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VI. Paperwork Reduction Act of 1995
    A. Summary
    B. Procedural Details
VII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. Executive Order 13132: Federalism
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
VIII. References

I. Introduction

A. Availability of Information

    Public Comments: MSHA posts all comments without change, including 
any personal information provided. Access comments electronically on 
http://www.regulations.gov and on http://www.msha.gov/currentcomments.asp. Review comments in person at the Office of 
Standards, Regulations, and Variances, 1100 Wilson Boulevard, Room 
2350, Arlington, Virginia. Sign in at the receptionist's desk on the 
21st floor.
    E-mail notification: MSHA maintains a list that enables subscribers 
to receive e-mail notification when the Agency publishes rulemaking 
documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

B. Public Hearings

    MSHA will hold three public hearings on the proposed rule to 
provide the public with an opportunity to present their views on this 
rulemaking. The public hearings will begin at 9 a.m. MSHA is holding 
the hearings on the following dates at the locations indicated:

[[Page 54164]]



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                 Date                                  Location                            Contact No.
----------------------------------------------------------------------------------------------------------------
October 18, 2011.....................  Embassy Suites, Denver, Downtown/        303-592-1000.
                                        Convention Center, 1420 Stout Street,
                                        Denver, Colorado 80202.
October 20, 2011.....................  Embassy Suites, Charleston, 300 Court    304-347-8700.
                                        St., Charleston, WV 25301.
October 25, 2011.....................  Courtyard Washington, Meadow Lands,      724-222-5620.
                                        1800 Tanger Boulevard, Washington,
                                        Pennsylvania 15301.
----------------------------------------------------------------------------------------------------------------

    The hearings will begin with an opening statement from MSHA, 
followed by an opportunity for members of the public to make oral 
presentations. Persons do not have to make a written request to speak; 
however, persons and organizations wishing to speak are encouraged to 
notify MSHA in advance for scheduling purposes. MSHA requests that 
parties making presentations at the hearings submit them no later than 
five days prior to the hearing. Presentations and accompanying 
documentation will be included in the rulemaking record.
    The hearings will be conducted in an informal manner. Formal rules 
of evidence and cross examination will not apply. The hearing panel may 
ask questions of speakers and speakers may ask questions of the hearing 
panel. Verbatim transcripts of the proceedings will be prepared and 
made a part of the rulemaking record. Copies of the transcripts will be 
available to the public. The transcripts may be viewed at http://www.regulations.gov or http://www.msha.gov/tscripts.htm.

C. Information Collection Supporting Statement

    MSHA posts Information Collection Supporting Statements on http://www.regulations.gov and on MSHA's Web site at http://www.msha.gov/regspwork.htm. A copy of the information collection package is also 
available from the Department of Labor by request to Michel Smyth at 
[email protected] (e-mail) or 202 693 4129 (voice); or from MSHA by 
request to Roslyn Fontaine at [email protected] (e mail) or 202-
693-9440 (voice) or 202-693-9441 (facsimile).

D. Proposed Compliance Dates

    Under the proposed rule, each underground coal mine operator would 
be required to install proximity detection systems on continuous mining 
machines based on the date of manufacture of the machine according to 
the following schedule. MSHA considers the date of manufacture as the 
date identified on the machine or otherwise provided by the 
manufacturer.
    1. By [Date 3 months after the publication date of the final rule] 
for continuous mining machines (except full-face continuous mining 
machines) manufactured after [date of publication of the final rule].
    2. By February 28, 2013 for continuous mining machines (except 
full-face continuous mining machines) manufactured on or before August 
31, 2011.

                 Table 1--Proposed Rule Compliance Dates
------------------------------------------------------------------------
                                                             Date of
        Compliance date              Machine type          manufacture
------------------------------------------------------------------------
3 months after the publication  Continuous Mining       After the
 date of final rule.             Machines (except full-  publication
                                 face continuous         date of final
                                 mining machines).       rule.
18 months after the             Continuous Mining       On or before the
 publication date of final       Machines (except full-  publication
 rule.                           face continuous         date of final
                                 mining machines).       rule.
------------------------------------------------------------------------

II. Discussion of Proposed Rule

A. Background

    This proposed rule is issued under section 101 of the Federal Mine 
Safety and Health Act of 1977 (Mine Act), as amended. The proposed rule 
would require mine operators to install proximity detection systems on 
continuous mining machines in underground coal mines according to a 
phased-in schedule for newly manufactured and existing equipment. It 
would also establish performance and maintenance requirements for 
proximity detection systems and require training for installation and 
maintenance. The proposed requirements would strengthen protections for 
miners by reducing the potential for pinning, crushing, or striking 
fatalities and injuries to miners who work near continuous mining 
machines.
    Miners are exposed to hazards that are a result of working near 
continuous mining machines in the confined space of an underground coal 
mine. Working conditions in underground mines that contribute to these 
hazards may include limited visibility, limited space around mobile 
machines, and uneven and slippery ground conditions which may contain 
debris.
    MSHA has conducted a review of fatal and nonfatal pinning, 
crushing, and striking accidents in underground coal mines involving 
continuous mining machines to identify those that could have been 
prevented by using a proximity detection system. Of the deaths in 
underground coal mines from 1984 through 2010, MSHA estimates that 30 
could have been prevented by installing proximity detection systems on 
continuous mining machines. During this same time period, of all the 
injuries due to pinning, crushing, and striking accidents in 
underground coal mines, approximately 220 could have been prevented 
with proximity detection systems installed on continuous mining 
machines.
    MSHA's analysis of fatalities and non-fatal accidents during the 
1984 through 2010 period indicates that many of these accidents 
occurred in confined areas in underground coal mines where a proximity 
detection system could have warned the miners and stopped the machines 
before the accident. Proximity detection systems are needed because 
training and outreach initiatives alone have not prevented these 
accidents and the systems can provide necessary protections for miners. 
In 2004, MSHA introduced a special initiative to inform underground 
coal mine operators and miners about the dangers of pinning, crushing, 
or striking hazards. MSHA's outreach efforts included webcasts, special 
alerts, videos, bulletins, and inspector-to-miner instruction. Despite 
these efforts, pinning, crushing, and striking accidents still occur. 
There were two fatalities and four injuries in

[[Page 54165]]

2010 where a continuous mining machine pinned, crushed, or struck a 
miner. In 2011, a continuous mining machine operator was fatally 
injured. The preliminary report of the accident states the operator was 
pinned by the machine.
    Proximity detection is a technology that uses electronic sensors to 
detect motion or the location of one object relative to another. 
Proximity detection systems can provide a warning and stop mobile 
machines before a pinning, crushing, or striking accident occurs that 
could result in injury or death to miners.
    In 1998, MSHA evaluated accidents involving remote controlled 
mining machines and determined that proximity detection systems have 
the potential to prevent accidents that occur when the machine operator 
or another miner gets too close to the machine (Dransite, 1998). MSHA 
noted that if changes in work practices or machine design do not 
prevent miners from being placed in unsafe locations, the Agency should 
consider a requirement for proximity detection by means of signal 
detectors with automatic machine shutdown. No MSHA-approved proximity 
detection systems were commercially available for underground mines at 
that time.
    In 2002, following a series of fatal pinning, crushing, and 
striking accidents, MSHA decided to work with the coal mining industry 
to develop a proximity detection system. MSHA evaluated: (1) The Bureau 
of Mines' Hazardous Area Signaling and Ranging Device (HASARD) system; 
(2) the Nautilus, International ``Buddy System''; and (3) the 
International Mining Technologies ``Mine Mate'' system. MSHA selected 
the Nautilus, International ``Buddy System'' for testing because it 
could be adapted to remote controlled continuous mining machines in the 
least amount of time. MSHA first tested the system in July 2003. MSHA, 
a mine operator, a machine manufacturer, and Nautilus, International 
developed performance criteria for field testing the system (MSHA 
Proximity Protection System Specification, October 4, 2004). MSHA 
evaluated the system for permissibility under 30 CFR 18.82 and issued 
an experimental permit on May 30, 2003. After several revisions, the 
Agency field tested the system in March 2006 and determined that it met 
the established performance criteria. While MSHA was testing the 
Nautilus system, another manufacturer developed a similar system, the 
Geosteering TramguardTM System, which MSHA tested in June 
2005 under an experimental permit on a remote controlled continuous 
mining machine. In November 2005, MSHA field tested the Geosteering 
TramguardTM System in accordance with MSHA established 
criteria and it performed successfully.
    MSHA approved the Nautilus, International ``Buddy System'' and the 
Geosteering TramguardTM System in 2006 and a third system, 
the Matrix Design Group M3-1000 Proximity Monitoring System, in 2009, 
under existing regulations for permissibility in 30 CFR part 18. These 
approvals are intended to ensure that the systems will not introduce an 
ignition hazard when operated in potentially explosive atmospheres. 
MSHA's approval regulations under 30 CFR part 18 do not address how 
systems will perform in reducing pinning, crushing, or striking 
hazards.
    The three MSHA-approved proximity detection systems operate using 
electromagnetic technology. The Nautilus, International ``Buddy 
System'' and the Strata Mining Products HazardAvert\TM\ System 
(formerly the Geosteering Tramguard\TM\ System) require a miner to wear 
a component that measures the strength of an electromagnetic field 
generated by antennas strategically located on the machine. A 
microprocessor onboard the machine is interconnected with the machine 
control circuitry and communicates with the miner-wearable component. 
The microprocessor sends a signal to activate a warning or stop machine 
movement when the miner wearing the component is within a prescribed 
distance of the machine.
    The Matrix Design Group (now partnered with Joy Mining Machinery to 
commercialize the system for continuous mining machines) M3-1000 
Proximity Monitoring System operates in a similar manner but generates 
the magnetic field around the miner-wearable component. In this case, 
the machine is equipped with sensors that detect the magnetic field 
around the miner. The sensors are connected to a microprocessor which 
interprets the signals and communicates warning and stop commands to 
the machine. MSHA did not participate in the development of Matrix 
Design Group's proximity detection system for remote controlled 
continuous mining machines because Matrix did not request assistance.
    At least 35 remote controlled continuous mining machines in 
underground coal mines in the United States are equipped with proximity 
detection systems. MSHA monitors the installation and development of 
these systems to maintain up-to-date information on the number of 
proximity detection systems being used and the capabilities of the 
various systems.
    MSHA also evaluated the use of proximity detection systems in 
underground mines in the Republic of South Africa (South Africa). MSHA 
staff traveled to South Africa in April 2010 to observe the performance 
of several proximity detection systems, including the Strata Safety 
Products HazardAvert\TM\ System that was developed in the United 
States. One of the mines visited began testing the Strata system in 
2008 and, at the time of the MSHA visit, had equipped all mobile 
machines on three complete underground coal mine sections with the 
system. The mine is using the proximity detection system on remote 
controlled continuous mining machines, shuttle cars, roof bolting 
machines, feeder breakers, and load-haul-dump machines (scoops). In 
addition to the Strata system, MSHA also observed the Booyco Collision 
Warning System (CWS) being used on continuous mining machines. The 
mining operations, conditions, and machines in underground coal mines 
in South Africa are similar to those in underground coal mines in the 
United States. The South African mines that MSHA visited are room and 
pillar operations with approximately 10-foot high and 22-foot wide 
entries.
    The Strata Safety Products HazardAvert\TM\ System used in South 
Africa is similar to the HazardAvert\TM\ System used in underground 
coal mines in the United States. The HazardAvert\TM\ System for 
continuous mining machines provides two zones. When a miner is within 
the outer zone, an audible and visual signal is activated. When a miner 
is within the inner zone, machine movement is stopped. The miner-
wearable component is incorporated into the cap lamp battery and 
includes a warning buzzer and flashing LED that clips to the hardhat.
    The Booyco system, observed in South Africa, provides warning 
signals to miners and machine operators. It does not stop machine 
movement. There are two zones associated with the Booyco system. When a 
miner enters the outer zone, an audible and visual warning signal is 
provided to the miner working near the machine. When a miner enters the 
inner zone, an audible and visual warning signal is provided to both 
the miner and the machine operator. This system could be modified to 
stop machine movement. The Booyco system is not MSHA-approved and is 
not being used in the United States.
    In 2004, MSHA initiated a safety campaign to raise the mining 
industry's awareness of pinning, crushing, and

[[Page 54166]]

striking hazards associated with remote controlled continuous mining 
machines. This safety campaign was targeted to the underground coal 
mining industry and included webcasts, special alerts, videos, 
bulletins, and inspector-to-miner instruction. There were no fatalities 
associated with continuous mining machines between 2005 and 2007 
indicating the safety campaign may have had a positive impact on fatal 
accidents. However, pinning, crushing, and striking accidents continue 
to occur. Two fatalities in 2010 related to pinning, crushing, or 
striking accidents involving a continuous mining machine could have 
been prevented by using proximity detection systems.
    The Agency published a Request for Information (RFI) on proximity 
detection systems in the Federal Register on February 1, 2010 (75 FR 
5009). The comment period closed on April 2, 2010. MSHA received 
comments from: Mining associations; mining companies; manufacturers; 
and state, Federal, and an international government entity.
    Comments addressed specific questions regarding function, 
application, training, costs, and benefits of proximity detection 
systems to reduce the risk of accidents. Some commenters stated that 
proximity detection systems are beneficial and can prevent pinning, 
crushing, and striking accidents. Commenters stated that conditions in 
the mining environment, including blocked visibility and limited space, 
or simply the lack of sight due to limited light, can cause an accident 
and that the only way to address these hazards is to equip mining 
vehicles with a proximity detection system. A commenter stated that, 
when it comes to safety, engineering barriers are required when the 
behavior of everyone, whether due to the lack of training or taking 
shortcuts, cannot be relied on. Several commenters stated that the 
technology needs further development and testing.
    RFI comments related to specific provisions of the proposed rule 
are addressed in the section-by-section analysis.

B. Section-by-Section Analysis

    The proposed rule would require underground coal mine operators to 
equip continuous mining machines (except full-face continuous mining 
machines) with proximity detection systems over an 18-month phase-in 
period.
1. Section 75.1732(a) Machines Covered
    Proposed Sec.  75.1732(a) would require operators to equip 
continuous mining machines (except full-face continuous mining 
machines) with a proximity detection system in accordance with the 
following dates: 3 months after August 31, 2011 for machines 
manufactured after August 31, 2011; and 18 months after August 31, 2011 
for machines manufactured on or before August 31, 2011.
    A commenter, in response to the RFI, stated that MSHA's approval 
process does not include an evaluation of the system's functional 
readiness to perform in the underground mine environment. This 
commenter indicated that only a handful of mines have operational 
experience with approved systems and that a thorough examination of the 
operational readiness of these systems must be undertaken to address 
safety issues before they are required. Several other commenters stated 
that proximity detection systems have not proven reliable and that more 
testing is needed. One of these commenters stated that establishing a 
set distance from a miner at which a machine would shut down needs 
further analysis due to its potential to force machine operators out of 
previously safe areas into potentially less safe areas in order to 
avoid shutdown.
    In response to the RFI, a proximity detection system manufacturer 
stated that it has experience with proximity detection systems on 
remote controlled continuous mining machines in five coal mines in the 
United States and on machines in mines within South Africa and 
Australia. A representative of a South African mining company that uses 
this system on continuous mining machines stated in its comments that 
the system is very reliable. This South African mining company reported 
that it did not have a single reliability problem over a period of 18 
months. A second proximity detection system manufacturer stated that 
its proximity detection system is installed on many types of 
underground mobile machines in Canada and Australia and that there has 
not been a serious injury or fatality reported on any machine using its 
proximity detection system. A coal mine operator and a third 
manufacturer commented jointly and stated that development of a 
proximity detection system for remote controlled continuous mining 
machines is still in the early stages and it is premature to consider 
rulemaking for other types of mobile underground equipment. However, 
this commenter also stated that applying proximity detection systems to 
all mobile machines should be a ``long-term goal'' that could provide 
safety benefits and that the coal mine operator plans to voluntarily 
equip its entire fleet of remote controlled continuous mining machines 
with proximity detection systems.
    The proposed rule would require underground coal mine operators to 
equip continuous mining machines (except full-face continuous mining 
machines) with proximity detection systems. MSHA has determined that 
continuous mining machines expose miners to dangers when working in 
underground coal mines and that these machines have resulted in 
injuries and fatalities to miners. Of the 70 fatalities resulting from 
pinning, crushing, and striking accidents from 1984 through 2010 in 
underground coal mines, 30 were associated with a continuous mining 
machine. Use of proximity detection systems could have prevented these 
accidents and the fatalities by stopping continuous mining machine 
movement before miners were pinned, crushed, or struck by the machine.
    Proposed Sec.  75.1732(a) would not require underground coal mine 
operators to equip full-face continuous mining machines with a 
proximity detection system. A full-face continuous mining machine 
includes integral roof bolting equipment and develops the full width of 
the mine entry in a single cut, generally without having to change its 
location. Full-face continuous mining machines can be operated remotely 
or by an operator positioned in a compartment on the machine (on-board 
operator). Continuous mining machines that are not full-face machines 
are place-changing continuous mining machines because they must change 
places to cut the full width of an entry.
    A commenter on the RFI stated that current proximity detection 
system designs should only apply to remote controlled continuous mining 
machines that are considered place-changing machines and not full-face 
continuous mining machines. This same commenter indicated that a 
proximity detection system for full-face continuous mining machines 
would require a significantly more complicated design to accommodate 
the miners who operate the roof and rib bolting equipment. Another 
commenter on the RFI stated that an MSHA standard could address all 
continuous mining machines except those with integral/satellite bolters 
(full-face continuous mining machines.)
    After a review of comments, accident data, and Agency experience, 
MSHA is not proposing that proximity detection systems be required for 
full-face continuous mining machines since they present fewer hazards 
to miners. Full-face continuous mining machines involve less frequent 
place-changing and repositioning, resulting in fewer pinning, crushing, 
or striking hazards to

[[Page 54167]]

miners. MSHA is not aware of any fatal or nonfatal accidents involving 
either remote controlled or on-board operated full-face continuous 
mining machines that a proximity detection system could have prevented. 
Also, MSHA does not have experience with proximity detection systems on 
remote controlled or on-board operated full-face continuous mining 
machines.
    Except for full-face continuous mining machines, the proposed rule 
would require proximity detection systems to be installed on both on-
board operated and remote controlled continuous mining machines. Remote 
controlled continuous mining machines account for the greater number of 
fatalities. Operators not in an operator's compartment and miners 
working near the continuous mining machine are at risk from pinning, 
crushing, and striking hazards. More accidents are associated with 
remote controlled continuous mining machines because approximately 97% 
of continuous mining machines are remote controlled and because the 
machine operator is not protected from pinning, crushing, and striking 
accidents by an on-board operator's compartment. However, on-board 
operated continuous mining machines also present a pinning, crushing, 
and striking hazard to miners other than the operator and would be 
required to be equipped with proximity detection systems. On-board 
operated continuous mining machines were involved in 2 of the 30 
fatalities that could have been prevented by use of a proximity 
detection system.
    MSHA solicits comments on how full-face continuous mining machines 
should be addressed. Comments should be specific and include 
alternatives, rationale for suggested alternatives, safety benefits to 
miners, technological and economic feasibility considerations, and 
supporting data.
    The proposed rule would phase in the use of proximity detection 
systems on newly manufactured continuous mining machines and continuous 
mining machines in service on the publication date of the final rule 
over an 18-month period. The phase-in period is based on the 
availability of systems, the time necessary to process approvals for 
proximity detection systems, projected time needed to install systems, 
and MSHA and industry experience.
    The Agency recognizes that it will take time for proximity 
detection system manufacturers, machine manufacturers, and mine 
operators to obtain approval under 30 CFR part 18. It will also take 
time for manufacturers and mine operators to produce and install 
proximity detection systems.
    Several commenters on the RFI recommended that MSHA consider a 
phase-in approach with separate compliance dates addressing new 
equipment, rebuilt equipment, and equipment in service in underground 
mines. One commenter encouraged MSHA to proceed cautiously and to 
provide the time required to assure the development of reliable and 
effective systems. Another commenter stated that most machines will be 
retrofitted with proximity detection systems in a shop or during 
rebuild. A proximity detection system manufacturer stated that a 
proximity detection system can be installed and calibrated on a remote 
controlled continuous mining machine in one midnight shift.
    MSHA has determined that three months would be an appropriate 
amount of time for operators to install proximity detection systems on 
continuous mining machines (except full-face continuous mining 
machines) that are manufactured after [the publication date of the 
final rule].
    In selecting this three-month time frame, MSHA took into 
consideration the time period for the rulemaking, availability of three 
existing MSHA-approved proximity detection systems for continuous 
mining machines, the estimated number of continuous mining machines 
that would be replaced by newly manufactured machines during this 
period, and manufacturers' capacity to produce and install systems for 
these machines. The three-month time period allows mine operators some 
time to inform and train their workforce on proximity detection 
systems.
    The proposed rule would provide an additional 15 months for 
operators to retrofit continuous mining machines, except full-face 
continuous mining machines, that are manufactured on or before the 
publication date of the final rule with proximity detection systems. 
MSHA estimates that there are 1,150 place-changing continuous mining 
machines in underground coal mines. These machines would need to be 
replaced by a new machine with a proximity detection system or 
retrofitted with a proximity detection system. MSHA has determined that 
18 months would provide both operators and manufacturers with enough 
time to retrofit place-changing continuous mining machines manufactured 
on or before the publication date of the final rule with proximity 
detection systems. MSHA recognizes that these machines, which are in 
service when the final rule goes into effect, will need to be taken out 
of service for a period of time. The additional 15 months would allow 
mine operators to schedule the installation during planned rebuilds or 
scheduled maintenance and would allow mine operators some time to 
inform and train their workforce on proximity detection systems.
    Continuous mining machines addressed in this proposal must be 
approved by MSHA as permissible equipment under existing regulations in 
30 CFR part 18 before they can be used in underground coal mines. The 
machine manufacturer or the mine operator can obtain MSHA approval. 
Machine manufacturers with MSHA approvals may submit an application to 
MSHA's Approval and Certification Center (A&CC) to add a proximity 
detection system to their approval. MSHA projects that machine 
manufacturers would submit applications to allow all of their new and 
many of their older models to be equipped with proximity detection 
systems. In instances where the equipment manufacturer is no longer in 
business or chooses not to seek approval, the mine operator has the 
option to apply for a field modification or a district field change to 
equip the machines with a proximity detection system. A mine operator 
can either request a field modification through the A&CC or a field 
change through MSHA's District Offices.
    MSHA permissibility approvals include both evaluation of the 
proximity detection systems and the addition of the systems to MSHA-
approved continuous mining machines. MSHA offers an optional Proximity 
Detection Acceptance (PDA) program which allows a proximity detection 
system manufacturer to obtain MSHA acceptance for a proximity detection 
system (PDA Acceptance Number). This acceptance states that the 
proximity detection system has been evaluated under 30 CFR part 18 and 
is suitable for incorporation on an MSHA-approved machine. It permits 
the manufacturer or owner of a machine to add the proximity detection 
system to a machine by requesting MSHA to add the acceptance number to 
the machine approval. However, a proximity detection system 
manufacturer is not required to obtain a proximity detection system 
acceptance. MSHA could also approve a machine modification submitted by 
a continuous mining machine manufacturer or a field modification 
submitted by a mine operator that includes a complete evaluation of a 
proximity detection system that has not been evaluated under a PDA 
acceptance.
    Based on conversations with manufacturers of the three MSHA-
approved proximity detection systems,

[[Page 54168]]

MSHA estimates that together they can produce approximately 350 units 
per month. MSHA estimates that the manufacturers can increase 
production to about 400 to 600 units per month, if necessary, within 
approximately three to six months. MSHA determined that it would take 
approximately eight months to provide a sufficient number of units to 
equip approximately 1,150 place-changing continuous mining machines 
with proximity detection systems. However, the two phase-in periods are 
based on the time needed for: Providing sufficient numbers of systems; 
installing the systems on newly manufactured and existing machines; 
obtaining necessary MSHA approvals and test systems; and informing and 
training the workforce.
    MSHA solicits comments on the proposed compliance dates. Comments 
should be specific and include alternatives, rationale for suggested 
alternatives, safety benefits to miners, technological and economic 
feasibility considerations, and supporting data.
    As the proximity detection systems are phased in, mine operators 
would be required to provide miners with new task training under 
existing part 48. MSHA intends that mine operators would address safety 
issues that might arise during the phase-in period, such as some 
machines being equipped with proximity detection systems while others 
are not, through existing new task training requirements. In addition, 
MSHA recently introduced a new initiative titled ``Safety Practices 
Around Shuttle Cars and Scoops in Underground Coal Mines.'' This 
outreach program includes training programs and best practices to 
encourage mine operators to train underground coal miners to exercise 
caution when working around mobile machines. Information regarding this 
initiative is available at: http://www.msha.gov/focuson/watchout/watchout.asp.
    In response to the RFI, some commenters stated that miners will 
need task training when machines are equipped with a proximity 
detection system. Miners working near proximity detection systems would 
probably need to engage in different and unfamiliar machine operating 
procedures resulting from new work positions, machine movements, and 
new visual or auditory signals. Existing Sec.  48.7(a) requires that 
miners assigned to new work tasks as mobile equipment operators shall 
not perform new work tasks until training has been completed. In 
addition, Sec.  48.7(c) requires miners assigned a new task not covered 
in Sec.  48.7(a) be instructed in the safety and health aspects and 
safe work procedures of the task prior to performing such task.
    Miners must receive new task and equipment training on the proper 
functioning of a proximity detection system before operating or working 
near a machine equipped with a proximity detection system. New task 
training (which is separate from new miner training under existing 
Sec.  48.5 and annual refresher training under existing Sec.  48.8) 
must occur before miners operate machines equipped with a proximity 
detection system. New task training helps assure that miners have the 
necessary skills to perform new tasks prior to assuming responsibility 
for the tasks. Mine operators should assure that this training include 
hands-on training during supervised non-production activities. The 
hands-on training allows miners to experience how the systems work and 
to locate the appropriate work positions around machines. Based on 
Agency experience, the hands-on training is most effective when 
provided in miners' work locations. As required by existing Sec.  
48.7(a)(3) for new or modified machines and equipment, equipment and 
machine operators shall be instructed in safe operating procedures 
applicable to new or modified machines or equipment to be installed or 
put into operation in the mine, which require new or different 
operating procedures.
    MSHA requests comments on the training of miners who use proximity 
detection systems or work near machines equipped with these systems. 
Comments should address the type of training, frequency of training, 
content of training, and which miners should be trained. Comments 
should be specific and include alternatives, rationale for suggested 
alternatives, safety benefits to miners, technological and economic 
feasibility considerations, and supporting data.
2. Section 75.1732(b) Requirements for Proximity Detection Systems
    Proposed Sec.  75.1732(b) would address requirements for proximity 
detection systems.
    Proposed paragraph (b)(1) would require that a proximity detection 
system cause a machine to stop no closer than three feet from a miner. 
This proposed requirement would prevent pinning, crushing, and striking 
accidents.
    In the RFI, MSHA asked for comments on the size and shape of the 
area around machines that a proximity detection system monitors and how 
systems can be programmed and installed to provide different zones of 
protection depending on machine function. Some commenters stated that 
an effective proximity detection system should cause the machine to 
stop before a miner enters the hazardous area around the machine and a 
warning should be provided before the proximity detection system causes 
the machine to stop.
    Some commenters stated that zone size should be determined using a 
risk assessment considering the speed at which the proximity detection 
system can alert the operator, the reaction time of the operator, and 
the number of people in the working area. Another commenter stated that 
work practices vary among mines so that one specified zone may not work 
for all mines. Another commenter stated that fixed zone sizes are used 
in the commenter's operations because using different zones of 
protection based on equipment function could confuse miners and zone 
sizes should be kept small to avoid nuisance alarms but not so small so 
as to allow a dangerous condition. One commenter stated that 
establishing a set distance from a miner at which a machine would shut 
down needs further analysis due to its potential to force machine 
operators out of previously safe areas into potentially less safe areas 
in order to avoid shutdown.
    NIOSH has performed research on proximity detection systems. NIOSH 
has an Internet Web Page (http://www.cdc.gov/niosh/mining/topics/topicpage58.htm) that provides publications on proximity detection 
systems and technology. The publications address measurement and 
analysis issues related to the work positions of continuous mining 
machine operators, needs and practices of machine operators while 
controlling the machine, and the reasons for needing particular 
operational cues, machine-related injuries in and priorities for safety 
research, and operating speed assessments of underground mining 
equipment. Several other publications on this Web page discuss the 
application of proximity detection systems as engineering controls to 
prevent mining accidents.
    In their comments on the RFI, NIOSH stated that the goal of a 
proximity detection system should be to prevent machine actions or 
situations that injure workers while not placing restrictions on how 
the workers do their jobs. NIOSH also stated that the total time 
required for performing proximity detection system functions, plus a 
safety factor, should be used to define the size of detection zones 
around machines. NIOSH stated that the total time required includes 
these components: (1) Detection of a potential victim; (2)

[[Page 54169]]

decision processing to determine if a collision-avoidance function is 
needed; (3) an initiation of the collision-avoidance function; and (4) 
implementation of the collision-avoidance function. NIOSH stated that 
any rulemaking should be performance-based.
    MSHA's experience with testing and observing proximity detection 
systems indicates that causing a machine to stop no closer than three 
feet from a miner would provide an appropriate distance, or margin of 
safety, between a machine and a miner to prevent pinning, crushing, or 
striking hazards. In addition, MSHA consulted relevant published 
studies. A team of NIOSH researchers evaluated operator interactions 
with continuous mining machines and roof bolting machines. The 
researchers concluded that by maintaining a minimum 910 mm (3 ft) 
distance from the machine, continuous mining machine operators can 
substantially reduce their risk of being struck (Bartels, 2009). MSHA 
believes that this distance includes a margin of safety and is 
necessary to account for varying mining conditions, differences in the 
operating condition of machines, and variations in the positioning of 
miner-wearable components of the proximity detection system in relation 
to machines.
    The proposed three-foot stopping requirement is consistent with 
MSHA's observations of operating proximity detection systems in an 
underground coal mine in South Africa. During MSHA's visit, staff 
observed that the proximity detection systems installed on continuous 
mining machines caused the machine to stop before getting closer than 
three feet from a miner. Prior to the introduction of proximity 
detection systems at their mines, the company's policy was that miners 
must maintain a minimum distance of three feet from all operating 
mobile machines.
    Each of the three proximity detection systems approved for 
underground coal mines in the United States has a miner-wearable 
component. Because the location of the miner-wearable component is the 
point at which the systems measure distance, a part of the miner's body 
may be further from or closer to the machine when the miner-wearable 
component is exactly three feet from a machine. For these systems, MSHA 
intends that the three-foot distance be measured from the surface of 
the machine closest to the miner-wearable component. MSHA intends that 
the machine remain stopped (or will not move) while any miner is three 
feet or closer to the nearest surface of the machine.
    One method a mine operator could use to determine that a proximity 
detection system will cause the machine to stop no closer than three 
feet from a miner is to suspend a miner-wearable component from the 
mine roof, move the machine towards the suspended component, and after 
the machine stops movement, measure the distance between the machine 
and the suspended component to check whether the three-foot distance 
has been met. MSHA recognizes that many factors would be considered 
when determining whether the proximity detection system will cause the 
machine to stop no closer than three feet from a miner. These factors, 
among others, include machine speed, slope of entries, and wet 
roadways.
    MSHA considered proposing a performance-oriented requirement that 
would not specify a specific distance a machine must stop from a miner, 
e.g., ``before contacting a miner.'' MSHA also considered proposing 
other specific stopping distances, e.g., six feet from a miner but 
concluded that longer stopping distances may increase the frequency of 
machine shutdowns while offering little additional benefit to miners. 
MSHA solicits comments on the proposed three-foot stopping distance 
requirement and on other alternatives to this proposed provision. 
Comments should be specific and address how the requirement impacts 
miner safety. Comments should include safety benefits to miners, 
technological and economic feasibility considerations, and supporting 
data.
    MSHA recognizes that there are different points that could be used 
to measure the proposed three-foot distance from a machine to a miner 
when the proximity detection system requires the miner to wear a 
component and solicits comments on the point at which the three-foot 
stopping distance should be measured. Comments should be specific and 
include suggested alternatives, rationale for suggested alternatives, 
safety benefits to miners, technological and economic feasibility 
considerations, and supporting data.
    The proposed rule would require that all machine movement be 
stopped when a miner gets closer than three feet except for the 
continuous mining machine operator when cutting coal or rock. It is 
important to note that the proposed exception would only apply when the 
machine operator is actually cutting coal or rock. Some current 
proximity detection systems on continuous mining machines are installed 
to stop machine tram movement and the conveyor swing function when the 
system is activated while permitting other machine movement, such as 
rotation of the cutter head and movement of the gathering arms. MSHA 
solicits comments on whether all movement should be stopped. Comments 
should be specific and include alternatives, rationale for suggested 
alternatives, safety benefits to miners, technological and economic 
feasibility considerations, and supporting data.
    The three MSHA-approved proximity detection systems have a miner-
wearable component. These systems cannot detect a miner who is not 
wearing the component. The cost estimates for the miner-wearable 
components included in the Preliminary Regulatory Economic Analysis 
(PREA) are based on miners on the working section being equipped with 
these components. MSHA solicits comments on which miners working around 
continuous mining machines should be required to have a miner-wearable 
component. Comments should be specific and include alternatives, 
rationale for suggested alternatives, safety benefits to miners, 
technological and economic feasibility considerations, and supporting 
data.
    Proposed paragraph (b)(1)(i) would provide an exception for a miner 
who is in an on-board operator's compartment. Machines with an on-board 
operator will not function if the proximity detection system prevents 
machine movement when the operator is within three feet of the machine. 
One proximity detection system is currently designed to allow a miner 
to be in an on-board operator's compartment while assuring that miners 
outside the operator's compartment are protected. Proposed paragraph 
(b)(1)(i) would allow machines equipped with a proximity detection 
system to move if a miner occupies the operator's compartment. The 
proposed rule would require that continuous mining machines be stopped 
if any miner not in the operator's compartment is closer than three 
feet.
    Commenters generally stated that machines with an on-board 
operator's compartment should have a proximity detection system that 
allows machines to function when the operator is in the operator's 
compartment. One commenter stated that a proximity detection system can 
include exclusion zones to allow mobile machines to move while a miner 
is in the exclusion zone but still protect other miners.
    Proposed paragraph (b)(1)(ii) would provide an exception for a 
miner who is remotely operating a continuous mining machine while 
cutting coal or rock. In this case, the proximity detection system 
would be required to cause the

[[Page 54170]]

machine to stop before contacting the machine operator. The use of the 
term ``cutting coal or rock'' would not include situations where the 
cutter head is rotating but not removing coal or rock from the face.
    In response to the RFI, one commenter stated that a remote 
controlled continuous mining machine that is tramming presents 
different hazards than one that is cutting coal. This commenter stated 
that the size and shape of the detection zone should be changed based 
on the function of the machine. Some commenters stated that zone sizes 
could depend on machine function (cutting or tramming). Several 
commenters suggested that protection zones should be largest when 
tramming machines and reduced protection zones are needed for certain 
mining operations such as cutting. Another commenter stated that the 
proximity detection system for a remote controlled continuous mining 
machine should keep all personnel at a safe distance from the periphery 
of the machine except for the operator who should be allowed to 
approach the machine at designated locations to perform cutting 
operations, such that if the operator fails to stay in the designated 
locations, the machine will immediately stop.
    MSHA is not aware of a continuous mining machine fatal accident 
that occurred while the machine was cutting coal or rock. In all the 30 
continuous mining machine fatal accidents from 1984 to 2010 which could 
have been prevented by proximity detection systems, the continuous 
mining machine was in the process of being moved (trammed) when the 
accident occurred. In addition, there are certain mining operations 
where the continuous mining machine operators get closer than within 
three feet of the machine in order to properly perform the required 
tasks (e.g., turning crosscuts). In MSHA's experience, when a 
continuous mining machine is cutting coal or rock, the machine moves in 
a slower manner, which reduces the hazard. For these reasons, MSHA 
proposes to allow a continuous mining machine operator to be closer 
than three feet from the machine while cutting coal or rock; however, 
the proximity detection system would be required to stop machine 
movement before contacting the operator. The proximity detection system 
would be required to stop machine movement if a miner who is not 
remotely operating the continuous mining machine gets closer than three 
feet from the machine while the machine is cutting coal or rock. The 
proximity detection systems that MHSA observed in South Africa do not 
allow miners within three feet of a continuous mining machine while 
cutting coal or rock. However, these mines have larger entry dimensions 
than underground coal mines in the United States, which provides more 
room for machine operator positioning.
    Proposed paragraph (b)(2) would require the proximity detection 
system to provide an audible or visual warning signal distinguishable 
from other signals, when the machine is five feet and closer to a 
miner.
    In the RFI, MSHA asked for information on the most effective 
protection that proximity detection systems could provide. In response, 
some commenters stated that a proximity detection system should include 
a warning prior to causing the machine to stop movement. One commenter 
stated that proximity detection systems should include a range of 
escalating alerts depending on the proximity to a hazard.
    Most proximity detection systems alert miners who get within a 
certain distance of a machine, before causing machine movement to stop. 
This provides an added margin of safety and is consistent with most 
standard safety practices. The Agency recognizes that the use of a 
proximity detection system that causes frequent machine stops can 
result in: frustration to miners; miners ignoring warnings; and can 
possibly lead to unsafe work practices. MSHA believes that an 
appropriate warning signal is necessary to optimize miner safety when 
using a proximity detection system.
    Based on MSHA's experience, proximity detection systems in the 
United States provide an audible or visual warning signal when a miner 
is five feet and closer to a machine. The systems on continuous mining 
machines in South Africa provide an audible warning signal when a miner 
is closer than six feet to a machine. However, entries in the United 
States are typically narrower than those observed in South Africa, 
making a five-foot distance more appropriate and minimizing unnecessary 
warning signals. In MSHA's experience, an audible or visual warning 
signal provided when the machine is five feet and closer to a miner 
includes a necessary margin of safety and allows the miner an 
opportunity to be proactive and move away from the machine to avoid 
danger.
    Consistent with proposed paragraph (b)(1)(i), proposed paragraph 
(b)(2)(i) would provide an exception to the warning signal for the 
miner who is in an on-board operator's compartment.
    Consistent with proposed paragraph (b)(1)(ii), proposed paragraph 
(b)(2)(ii) would provide an exception to the warning signal for a miner 
who is remotely operating a continuous mining machine while cutting 
coal or rock. A five-foot warning signal would not improve safety in 
this case because the operator may be closer than five feet to the 
machine for the duration of the activity of cutting coal or rock. Under 
the proposed rule, the proximity detection system would be required to 
provide a warning signal when the machine is closer than five feet from 
miners who are not remotely operating a continuous mining machine while 
the machine is cutting coal or rock.
    Proposed paragraph (b)(3) would require that a proximity detection 
system provide a visual signal on the machine that indicates the system 
is functioning properly.
    Commenters in response to the RFI generally stated that a proximity 
detection system should include system diagnostics and indicate that 
the system is functioning properly. In its comments on the RFI, NIOSH 
stated that each proximity detection system should perform self-
diagnostics to identify software or hardware problems.
    The proposed visual signal would allow miners to readily determine 
that a proximity detection system is functioning properly. MSHA 
believes that a visual signal is preferable to provide feedback to the 
miner because, unlike an audible signal, it could not be obscured by 
surrounding noise. A light-emitting diode (LED) would be an acceptable 
visual signal.
    Proposed paragraph (b)(4) would require that a proximity detection 
system prevent movement of the machine if the system is not functioning 
properly. However, as proposed, a system may allow machine movement so 
that if the system is not functioning properly, the machine can be 
moved if an audible or visual warning signal, distinguishable from 
other signals, is provided during movement. Such movement would be 
permitted only for purposes of relocating the machine from an unsafe 
location for repair.
    Commenters in response to the RFI had different opinions on whether 
a proximity detection system should be permitted to override the 
shutdown feature to allow machine movement in a particular 
circumstance. One commenter stated that a proximity detection system 
must provide a continuous self-check capability so that if the system 
is not functioning properly, the machine cannot be operated; this same 
commenter stated that only an appointed person should

[[Page 54171]]

have the authority to override a proximity detection system. Several 
commenters stated that a proximity detection system should allow for 
temporary deactivation, such as an emergency override, in case a system 
is not functioning properly while a machine is under unsupported roof. 
Another commenter, however, stated that a proximity detection system 
should not have an override feature.
    Proposed paragraph (b)(4) would allow machine movement so that if 
the proximity detection system is not functioning properly and is in an 
unsafe location, the machine can be moved if an audible or visual 
warning signal, distinguishable from other signals, is provided during 
movement. The proposed provision would allow a machine to be moved if 
it is not functioning properly and is in an unsafe location, such as 
under unsupported roof, to protect miners from hazards that could arise 
if the proximity detection system is not functioning properly and is in 
an unsafe location. Overriding the proximity detection system should 
only occur for the time necessary to move the machine to a safe 
location--for example, the time needed to move a continuous mining 
machine from under unsupported roof to an appropriate repair location. 
This movement would be allowed only to relocate the machine for safety 
reasons. The proposed provision to allow the machine to be moved would 
require an audible or visual warning signal, distinguishable from other 
signals, to caution miners when the machine is being moved from an 
unsafe location.
    Proposed paragraph (b)(5) would require that a proximity detection 
system be installed to prevent interference with or from other 
electrical systems.
    Some commenters in response to the RFI stated that interference of 
proximity detection systems with other mine electrical systems is a 
concern. However, manufacturers of the three approved proximity 
detection systems all stated that their systems do not have significant 
interference issues. A commenter stated that electromagnetic 
interference may prevent these systems from providing complete 
protection to miners. Several commenters stated that systems must be 
designed and tested for possible and known sources of interference 
before a requirement for proximity detection is issued. A commenter 
expressed concern that a proximity detection system may detonate 
explosives due to electromagnetic field interference.
    Electrical systems, including proximity detection systems, used in 
the mine can adversely affect the function of other electrical systems. 
The interference results from electromagnetic interference (EMI). There 
have been instances of adverse performance of remote controlled 
systems, atmospheric monitoring systems, and cap lamps when a hand-held 
radio was operated nearby. Electromagnetic output of approved proximity 
detection systems is substantially lower than other mine electrical 
systems such as communication and atmospheric monitoring systems, and 
therefore, the likelihood of encountering interference issues is less.
    The mine operator would be required to evaluate the proximity 
detection system and other electrical systems in the mine and take 
adequate steps to prevent adverse interference. Steps could include 
design considerations such as the addition of filters or providing 
adequate separation between electrical systems. The mine operator would 
also be required to take steps to prevent interference with any 
blasting circuits used in the mine.
    Proposed paragraph (b)(6) would require that a proximity detection 
system be installed and maintained by a person trained in the 
installation and maintenance of the system. The proximity detection 
systems use advanced technology that often must be coordinated with 
machine electronics to ensure the system functions properly. MSHA 
believes this work should be performed by miners who are properly 
trained to understand the operation of the system and the proper 
installation techniques.
    A commenter in response to the RFI stated that maintenance 
personnel and machine operators will need training to assure they 
understand proximity detection system functionality and any maintenance 
requirements. This commenter also stated that proper installation of a 
proximity detection system is critical for reliable performance. 
Another commenter said that a few hours of classroom instruction and 
approximately one hour of underground training for machine operators 
has proven adequate and that maintenance training requires about four 
hours.
    Based on MSHA experience with testing of proximity detection 
systems, proper functioning of a proximity detection system is directly 
related to the quality of the installation and maintenance of the 
systems. Training helps assure that the person performing installation 
and maintenance of a proximity detection system understands the system 
well enough to perform tasks such as replacing and adjusting system 
components, adjusting software, and troubleshooting electrical 
connections.
    Based on MSHA's limited experience with proximity detection systems 
on continuous mining machines in underground coal mines, MSHA 
anticipates that operators would assign miners to perform most 
maintenance activities, but representatives of the manufacturer may 
perform some maintenance. Also, based on Agency experience, operators 
would generally arrange for proximity detection system manufacturers to 
provide appropriate training to miners for installation and 
maintenance. Miners receiving training from manufacturers' 
representatives would, in most cases, provide training for other miners 
who become responsible for installation and maintenance duties at the 
mine. In MSHA's experience, many mines use the train-the-trainer 
concept for installation and maintenance activities related to certain 
mining equipment.
    MSHA solicits comments on this proposed provision. Comments should 
be specific and include alternatives, rationale for suggested 
alternatives, safety benefits to miners, technological and economic 
feasibility considerations, and supporting data.
3. Section 75.1732(c) Examination and Checking
    Proposed Sec.  75.1732(c) would address examination and checking of 
proximity detection systems.
    Proposed paragraph (c)(1) would require that operators designate a 
person who must perform a visual check of machine-mounted components of 
the proximity detection system to verify that components are intact, 
that the system is functioning properly, and take action to correct 
defects: (i) At the beginning of each shift when the machine is to be 
used; (ii) immediately prior to the time the machine is to be operated 
if not in use at the beginning of a shift; or (iii) within one hour of 
a shift change if the shift change occurs without an interruption in 
production.
    Several commenters stated that a proximity detection system should 
be checked at the beginning of each shift to verify it is functioning 
properly. NIOSH commented that the machine operator should have a set 
of procedures to assess the system at the start of each shift.
    A visual check of machine-mounted components of the proximity 
detection system to verify that components are intact would help assure 
that proximity detection systems are functioning properly before 
machines are operated. Some components of a proximity

[[Page 54172]]

detection system may be mounted on the outer surfaces of a machine and 
could be damaged when the machine contacts a rib or heavy material 
falls against the machine. An appropriate check would include a visual 
inspection to identify if machine-mounted components are damaged and 
observing that the system provides a visual signal and that the system 
is functioning properly so that action can be taken to correct defects.
    The proposed visual check would supplement the proposed system 
design requirement in proposed paragraph (b)(4) that would require that 
the proximity detection system prevent movement of the machine if the 
system is not functioning properly. The system may not be able to 
detect all types of damage such as detached field generators which 
could affect proper function. Surface-mounted components can be exposed 
to harsh conditions such as contact with ribs and other machines. The 
proposed visual check would help assure that proximity detection system 
components are oriented correctly and mounted properly on the machine.
    In most cases, MSHA anticipates that the person making the on-shift 
dust control parameter check required under existing Sec.  75.362(a)(2) 
would also make the proposed visual check of the proximity detection 
system on the continuous mining machine. The person making the on-shift 
dust control parameter check inspects the water sprays, bits, and lugs 
on the continuous mining machine and would likely be the designated 
person making the proposed visual check of the machine-mounted 
components of the proximity detection system. MSHA also anticipates 
that both checks would be performed at the same time.
    Proposed paragraph (c)(2) would require that miner-wearable 
components be checked for proper operation at the beginning of each 
shift that the component is to be used and that defects would be 
required to be corrected before the component is used.
    Several commenters on the RFI stated that the miner-wearable 
component should be checked at the beginning of each shift and that 
minimal training is necessary for miners to learn this task.
    The proposed requirement that miner-wearable components be checked 
for proper operation at the beginning of each shift that the component 
is to be used would help assure that the miner is protected before 
getting near a machine. MSHA anticipates that under the proposed rule, 
a miner would visually check the miner-wearable component to see that 
it is not damaged and has sufficient power to work for the duration of 
the shift. MSHA intends that this check would be similar to the check 
that a miner performs of a cap lamp prior to the beginning of a shift. 
Mine operators are required to provide new task training, under part 48 
of 30 CFR, for miners who would be checking the components. If any 
defect is found, the proposal would require it to be corrected before 
using the component. Correcting defects before the component is used is 
intended to assure the system functions properly and helps prevent 
miners' exposure to pinning, crushing, and striking hazards.
    Proposed paragraph (c)(3) would require that the operator designate 
a qualified person under existing Sec.  75.153 Electrical work; 
qualified person, to examine proximity detection systems at least every 
seven days for the requirements in proposed paragraphs (b)(1)-(b)(5) of 
this section. Defects in the proximity detection system would be 
required to be corrected before the machine is returned to service.
    Several commenters stated that a trained (qualified maintenance) 
person should examine the basic functionality of the proximity 
detection system weekly by checking zone sizes, system communication, 
and warning signals. A commenter stated that the proximity detection 
system must be examined at regular maintenance intervals and each time 
there has been a modification to the machines or working environment. 
Another commenter stated that the person evaluating a proximity 
detection system should fully understand what the system is intended to 
do and how electromagnetic field technology operates. This same 
commenter stated that a properly designed proximity detection system 
should not require periodic testing.
    Proximity detection systems are comprised of complex electrical 
components. The requirement under proposed paragraph (c)(3) would help 
assure that the person examining the proximity detection system at 
least every seven days has the knowledge and skills to understand the 
purpose of every component, and the hazards associated with failure of 
the system. The examination in proposed paragraph (c)(3) would be more 
comprehensive than the checks under proposed paragraphs (c)(1) and 
(c)(2) of this section. MSHA anticipates that the proposed examination 
would occur while the machine is not in service. MSHA anticipates the 
examination of machines with a proximity detection system would be 
performed in conjunction with the examination requirements under 
existing Sec.  75.512 Electric equipment; examination, testing and 
maintenance. The examination in proposed paragraph (c)(3), like the 
examination required under existing Sec.  75.512, would assure that the 
electric equipment has not deteriorated into an unsafe condition and 
the equipment operates properly. The designated qualified person would 
examine the proximity detection system for the requirements in proposed 
paragraphs (b)(1) through (b)(5).
    Under the proposal, defects in the proximity detection system would 
be required to be corrected before the machine is returned to service. 
Correcting defects before the machine is returned to service assures 
the system is functioning properly and helps prevent miners' exposures 
to pinning, crushing, and striking hazards.
    MSHA solicits comments on the requirements in proposed paragraph 
(c) of this section. Comments should be specific and include 
alternatives, rationale for suggested alternatives, safety benefits to 
miners, technological and economic feasibility considerations, and 
supporting data.
4. Section 75.1732(d) Certification and Records
    Proposed Sec.  75.1732(d) would address certification and records 
requirements for proximity detection systems.
    Proposed paragraph (d)(1) would require that: (1) The operator make 
a certification at the completion of the check required under proposed 
paragraph (c)(1) of this section; (2) a certified person specified 
under existing Sec.  75.100 certify by initials, date, and time that 
the check was conducted; and (3) defects found as a result of the check 
in (c)(1) of this section, including corrective actions and date of 
corrective action, be recorded. Making records of defects and 
corrective actions provides a history of the defects documented at the 
mine to alert miners, representatives of miners, mine management and 
MSHA of recurring problems. The certification in proposed paragraph 
(c)(1) would assure compliance and miners on the section could confirm 
that the required check was made. In most cases, MSHA anticipates that 
the person making the certification required under existing Sec.  
75.362(g)(2) would also make this certification. MSHA also anticipates 
that the certifications would be performed at the same time.
    Consistent with proposed paragraph (d)(1), proposed paragraph 
(d)(2) would require that defects found as a result of the check in 
(c)(2) of this section, including corrective actions and date of 
corrective action, be recorded. A certification of the check for proper 
operation of miner-wearable

[[Page 54173]]

components that would be required under proposed paragraph (c)(2) is 
not necessary because miners can readily check to confirm that the 
component is working.
    MSHA solicits comments on whether the defects and corrective 
actions in proposed paragraphs (d)(1) and (d)(2) should be recorded. 
Comments are requested on whether the check for the miner-wearable 
component that would be required in proposed paragraph (c)(2) should be 
certified. Comments should be specific and include alternatives, 
rationale for suggested alternatives, safety benefits to miners, 
technological and economic feasibility considerations, and supporting 
data.
    Proposed paragraph (d)(3) would require that: (1) The operator make 
and retain records at the completion of the examination under proposed 
paragraph (c)(3) of this section; (2) the qualified person conducting 
the examination would record and certify by signature and date that the 
examination was conducted; and a description of any defects and 
corrective actions and the date of corrective actions would be 
recorded. Making records of defects and corrective actions would 
provide a history of the defects documented at the mine to alert 
miners, representatives of miners, mine management and MSHA of 
recurring problems. MSHA believes that this proposed certification is 
necessary to assure compliance.
    Proposed paragraph (d)(4) would require that the operator make and 
retain records of the persons trained in the installation and 
maintenance of proximity detection systems under proposed paragraph 
(b)(6) of this section. MSHA believes that this proposed record is 
necessary to assure that there is evidence that persons assigned to 
install and perform maintenance on proximity detection systems have 
been trained. MSHA does not anticipate that mine operators would need 
to make and retain records of training for proximity detection system 
manufacturers' employees who install or perform maintenance on their 
systems.
    Proposed paragraph (d)(5) would require the operator to maintain 
records in a secure book or electronically in a secure computer system 
not susceptible to alteration. The records of checks, examinations, 
repairs, and training required under proposed paragraphs (d)(1)-(d)(4) 
of this section would be required to be in a book designed to prevent 
the insertion of additional pages or the alteration of previously 
entered information in the record. Based on MSHA's experience with 
other safety and health records, the Agency believes that records 
should be maintained so that they cannot be altered. In addition, 
electronic storage of information and access through computers is 
increasingly a common business practice in the mining industry. This 
proposed provision would permit the use of electronically stored 
records provided they are secure, not susceptible to alteration, able 
to capture the information and signatures required, and are accessible 
to the representative of miners and MSHA. MSHA believes that electronic 
records meeting these criteria are practical and as reliable as paper 
records. MSHA also believes that once records are properly completed 
and reviewed, mine management can use them to evaluate whether the same 
conditions or problems, if any, are recurring, and whether corrective 
measures are effective. Care must be taken in the use of electronic 
records to assure that the secure computer system will not allow 
information to be overwritten after being entered.
    Proposed paragraph (d)(6) would require that the operator retain 
records for at least one year and make them available for inspection by 
authorized representatives of the Secretary and representatives of 
miners. This would apply to the records required under proposed 
paragraphs (d)(1)-(d)(4) of this section. MSHA believes that keeping 
records for one year provides a history of the conditions documented at 
the mine to alert miners, representatives of miners, mine management, 
and MSHA of recurring problems.
    MSHA solicits comments on the requirements in proposed paragraph 
(d) of this section. Comments should be specific and include 
alternatives, rationale for suggested alternatives, safety benefits to 
miners, technological and economic feasibility considerations, and 
supporting data.
5. Section 75.1732(e) New Technology
    Proposed Sec.  75.1732(e) would provide that mine operators or 
manufacturers may apply to MSHA for acceptance of a proximity detection 
system that incorporates new technology. It would provide that MSHA may 
accept a proximity detection system if it is as safe as those which 
meet the requirements of this proposed rule.
    NIOSH indicated in its comments on the RFI that it is in the 
process of developing a prototype system that pinpoints the location of 
the operator, or other workers, in the proximity of a remote controlled 
continuous mining machine. By doing so, the system is permitted to make 
decisions, such as disabling specific movements of the machine, while 
allowing the machine to continue to operate.
    Consistent with MSHA's approach to new technology under existing 30 
CFR part 7 Testing by applicant or third party, and existing 30 CFR 
18.20(b), this proposed provision would allow for proximity detection 
systems that include improved technological capability.
    This proposed provision would permit MSHA to consider proximity 
detection technology that may not meet the provisions in this proposal 
but that does meet the Agency's intent for reducing pinning, crushing, 
and striking accidents. For example, if a manufacturer develops a 
technology that can assure at least the same degree of protection as 
would be provided by this proposal, MSHA could consider such a system 
under this proposed provision.
    In order to install a proximity detection system that does not 
conform to the requirements in this proposed rule, a mine operator or 
manufacturer would have to apply to the Chief of the A&CC, 765 
Technology Drive, Triadelphia, West Virginia 26059. The mine operator 
or manufacturer would have to provide the rationale for requesting 
acceptance of a system. The A&CC would evaluate the proximity detection 
system to determine if it is as safe as a system meeting the 
requirements of this proposed rule. The evaluation might include an 
assessment of the technology used; the reliability of the system; the 
ability to stop movement of the machine before pinning, crushing, or 
striking a miner; the capability of providing early warning 
notification before stopping movement; the ability of the system to 
work while protecting multiple miners; and an assessment of the 
system's compatibility with other electrical systems in the mine.
    At the conclusion of the A&CC evaluation, the Center Chief would 
issue a letter to the mine operator or manufacturer stating that the 
system is as safe as a system meeting the requirements of this proposed 
rule or explain why the system was found not acceptable. This letter 
would include any conditions of use that must be maintained to assure 
appropriate safety. Proposed Sec.  75.1732(e) would apply when a mine 
operator wants to use a new technology proximity detection system.
    MSHA solicits comments on this proposed provision. Comments should 
be specific and include alternatives, rationale for suggested 
alternatives, safety benefits to miners, technological and economic 
feasibility considerations, and supporting data.

[[Page 54174]]

III. Preliminary Regulatory Economic Analysis

A. Executive Orders (E.O.) 12866 and 13563

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. To comply with these Executive Orders, MSHA has prepared a 
Preliminary Regulatory Economic Analysis (PREA) for the proposed rule. 
The PREA contains supporting data and explanation for the summary 
materials presented in this preamble, including the covered mining 
industry, costs and benefits, feasibility, small business impacts, and 
paperwork. The PREA can be accessed electronically at http://www.msha.gov/REGSINF5.HTM or http://www.regulations.gov. A copy of the 
PREA can be obtained from MSHA's Office of Standards, Regulations and 
Variances at the address in the ADDRESSES section of this preamble. 
MSHA requests comments on all estimates of costs and benefits presented 
in this preamble and in the PREA, and on the data and assumptions the 
Agency used to develop estimates.
    Under E.O. 12866, a significant regulatory action is one meeting 
any of a number of specified conditions, including the following: 
Having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. MSHA has determined that this proposed rule 
would be a significant regulatory action because it raises novel legal 
and policy issues.

B. Population at Risk

    The proposed rule would apply to all underground coal mines in the 
United States. For the 12 months ending January 2010, there were 424 
underground coal mines employing approximately 47,000 miners and 
contractors (excluding office workers). MSHA estimates that total 2009 
underground coal revenue was $18.5 billion.

C. Benefits

    The proposed rule would significantly improve safety protections 
for underground coal miners by reducing their risk of being crushed, 
pinned, or struck by continuous mining machines.
    MSHA reviewed the Agency's investigation reports for all powered 
haulage and machinery accidents that occurred during the 1984 through 
2010 (27 years) period and determined that the use of proximity 
detection systems could have prevented 30 fatalities (1 per year) and 
220 non-fatal injuries (8 per year) involving pinning, crushing, or 
striking accidents with mobile machines. This count of fatalities and 
injuries from pinning, crushing, or striking accidents excludes 
fatalities and injuries that could not have been prevented by proximity 
detection systems on continuous mining machines such as when a roof or 
rib fall pins a miner against a mobile machine or a mobile machine 
strikes and pushes another machine into a miner. Based on MSHA's 
historical data, MSHA also estimates that approximately two percent of 
the non-fatal injuries would be permanent partial or total disability 
injuries.
    To estimate the monetary values of the reductions in fatalities and 
non-fatal injuries, MSHA performed an analysis of the imputed value of 
injuries and fatalities prevented based on a willingness-to-pay 
approach. This approach relies on the theory of compensating wage 
differentials (e.g., the wage premium paid to workers to accept the 
risk associated with various jobs) in the labor market. A number of 
studies have shown a correlation between higher job risk and higher 
wages, suggesting that employees demand monetary compensation in return 
for incurring a greater risk of injury or fatality.
    Viscusi & Aldy (2003) conducted an analysis of several studies 
(i.e., meta-analysis) that use a willingness-to-pay methodology to 
estimate the imputed value of life-saving programs. This meta-analysis 
found that each fatality prevented was valued at approximately $7 
million and each non-fatal injury was valued at approximately $50,000 
in 2000 dollars. Using the GDP Deflator (U.S. Bureau of Economic 
Analysis, 2010), this yields an estimate in 2009 dollars of $8.7 
million for each fatality prevented and $62,000 for each non-fatal 
injury prevented. MSHA is using the $8.7 million estimate for the value 
of a fatality prevented and $62,000 for each case of a non-fatal injury 
prevented (other than permanent disability). This value of a 
statistical life (VSL) estimate is within the range of the substantial 
majority of such estimates in the literature ($1 million to $10 million 
per statistical life), as discussed in OMB Circular A-4 (OMB, 2003).
    Some of the pinning, crushing, or striking accidents caused 
permanent disability. Given the significant life-changing consequences 
of a permanent partial or total disability, MSHA does not believe that 
using the value estimated for a typical non-fatal injury is 
appropriate. Instead, MSHA based the value of a permanent partial or 
total disability prevented on the work of Magat, Viscusi, and Huber 
(1996), which estimated values for both a non-fatal lymph cancer 
prevented and a non-fatal nerve disease prevented. The Occupational 
Safety and Health Administration (OSHA) used this approach in the Final 
Economic Analysis (FEA) supporting its hexavalent chromium final rule, 
and the Environmental Protection Agency (EPA) used this approach in its 
Stage 2 Disinfectants and Disinfection Byproducts water rule (EPA, 
2003).
    Although permanent partial or total disabilities are neither non-
fatal cancers nor nerve diseases, MSHA believes that they have a 
similar impact on the quality of life and would thus result in similar 
valuations. The Magat, Viscusi & Huber (1996) study estimates the value 
of preventing a non-fatal lymph cancer at 58.3 percent of the value of 
preventing a fatality. Similarly, they estimate the value of preventing 
a non-fatal nerve disease at 40.0 percent of the value of preventing a 
fatality. Of the two diseases valued in this study, MSHA believes that 
a disability resulting from injury more closely resembles the 
consequences of a nerve disease than the consequences of a non-fatal 
cancer. For example, loss of strength, inability to move easily, and 
constant pain are three main consequences of nerve disease that are 
similar to major consequences caused by a disability from a pinning, 
crushing, or striking injury. Accordingly, MSHA estimates the value of 
preventing a permanent disability as approximately equal to the value 
of preventing a nerve disease. MSHA estimates the value of a permanent 
partial or total disability prevented to be $3.5 million ($3.5 million 
= 40 percent of $8.7 million). MSHA solicits comments on its monetized 
value for permanent disability injuries.
    Although MSHA is using the willingness-to-pay approach as the basis 
for monetizing the expected benefits of the proposed rule, the Agency 
does so with several reservations, given the methodological 
difficulties involved in

[[Page 54175]]

estimating the compensating wage differentials (Hintermann, Alberini, 
and Markandya, 2008). Furthermore, these estimates pooled across 
different industries may not capture the unique circumstances faced by 
coal miners. For example, some have suggested that VSL models be 
disaggregated to account for different levels of risk, as might occur 
in coal mining (Sunstein, 2004). In addition, coal miners may have few 
employment options and in some cases only one local employer. These 
near-monopsony or monopsony labor market conditions may depress wages 
below those in a more competitive labor market.
    MSHA recognizes that monetizing the value of a statistical life is 
difficult and involves uncertainty and imprecision. In the future, MSHA 
plans to work with other agencies to refine the approach taken in this 
proposed rule.
    MSHA estimates that the annual benefits from the proposed rule 
would be $1.6 million in the first year, increase to $10.7 million by 
the third year, and remain at $10.7 million every year thereafter (see 
Table 4).
    MSHA developed the estimates in Table 4 by multiplying the number 
of fatalities and non-fatal injuries that would be prevented by the 
proposed rule by the monetized value of each adverse effect [$124,208 
for a non-fatal injury (0.9818 x $62,000 + 0.0182 x $3,480,000) and 
$8.7 million for a fatality].

       Table 4--Monetized Annual Value of Fatalities and Non-Fatal Injuries Prevented by the Proposed Rule
                                                 [2009 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                              Benefit from      Benefit from
                           Year                              preventing non-     preventing       Total benefit
                                                             fatal injuries      fatalities
----------------------------------------------------------------------------------------------------------------
Year 1....................................................          $151,810        $1,450,000        $1,601,810
Year 2....................................................           809,652         7,733,333         8,542,985
Years 3+..................................................         1,012,065         9,666,667        10,678,732
----------------------------------------------------------------------------------------------------------------

    More detailed information about how MSHA estimated benefits is 
available in the Preliminary Regulatory Economic Analysis (PREA) 
supporting this proposed rule. The PREA is available on MSHA's Web 
site, at http://www.msha.gov/REGSINF5.HTM and http://www.regulations.gov.

D. Compliance Costs

    This section presents MSHA's estimates of costs that would be 
incurred by underground coal operators to comply with the proposed 
rule. These costs are based on the assessment by MSHA staff of the most 
likely actions that would be necessary to comply with the proposed 
rule. MSHA estimates that the present value of the capital costs of the 
proposed rule over the 18 month phase-in period discounted at a 7 
percent rate would be $36.3 million.
    The yearly costs would gradually increase from $4.1 million in the 
first year to $8.2 million in the second year and every year 
thereafter, as the requirements are phased in. See Table 5.

           Table 5--Summary Over Three Years of Phased-In Capital Cost, Annualized Capital Cost, Annual Cost, and Yearly Cost of Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                   Annualized one-
                                                                One-time cost of    time cost of     Annual cost of    Yearly cost of
                             Year                                newly phased-in   newly phased-in   newly phased-in     previously      Yearly cost \b\
                                                                       PDS             PDS \a\             PDS          phased-in PDS
--------------------------------------------------------------------------------------------------------------------------------------------------------
Year 1........................................................       $15,934,628        $2,897,443        $1,228,635                $0        $4,126,078
Year 2........................................................        21,793,850         3,094,727           972,001         4,126,078         8,192,806
Years 3+......................................................                 0                 0                 0         8,192,806         8,192,806
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Annualized One-Time Cost is Capital Cost amortized at a 7 percent discount rate.
\b\ Yearly Cost is the sum of Annualized One-Time Cost of Newly Phased-In PDS, Annual Cost of Newly Phased-In PDS, and Yearly Cost of Previously Phased-
  In PDS.

E. Net Benefits

    This section presents a summary of estimated benefits and costs of 
the proposed rule for informational purposes only. Under the Mine Act, 
MSHA is not required to use estimated net benefits as the basis for its 
decision. The estimated yearly costs exceed the estimated yearly 
benefits in the first year, but in the second and subsequent years the 
expected benefits exceed the expected cost. However, MSHA does not 
believe that this presents a complete indication of the net benefits of 
the proposed rule (see Table 6). The Agency anticipates several 
benefits from the proposed rule which were not quantified due to data 
limitations. For example, MSHA anticipates that the proposed rule would 
result in additional savings to mine operators by avoiding the 
production delays typically associated with mine accidents. Pinning, 
crushing, or striking accidents can disrupt production at a mine during 
the time it takes to remove the injured miners, investigate the cause 
of the accident, and clean up the accident site. Such delays can last 
for a shift or more. Factors such as lost production, damaged 
equipment, and other miscellaneous expenses could result in significant 
costs to operators; however, MSHA has not quantified these savings due 
to the imprecision of the data.

[[Page 54176]]



                    Table 6--Cumulated Benefits, Costs, and Net Benefits (Net Costs) by Year
                                                 [2009 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                                                  Net benefits
                           Year                             Yearly benefits    Yearly costs       (net costs)
----------------------------------------------------------------------------------------------------------------
Year 1...................................................        $1,601,810        $4,126,078       ($2,524,269)
Year 2...................................................         8,542,985         8,192,806           350,179
Years 3+.................................................        10,678,732         8,192,806         2,485,926
----------------------------------------------------------------------------------------------------------------

IV. Feasibility

    MSHA has concluded that the requirements of the proposed rule are 
both technologically and economically feasible, and that the 18 month 
phase-in period would facilitate implementation of the proposed rule.

A. Technological Feasibility

    MSHA concludes that the proposed rule is technologically feasible. 
Mine operators are capable of equipping continuous mining machines with 
a proximity detection system in accordance with the compliance dates. 
The technology necessary to perform the proximity detection function 
required by the proposed rule on continuous mining machines already 
exists and is commercially available for underground coal mines.
    MSHA has experience with manufacturers of proximity detection 
systems in the United States and mine operators who have installed 
proximity detection systems on continuous mining machines in 
underground coal mines. MSHA has approved three proximity detection 
systems under existing regulations for permissibility in 30 CFR part 
18, and at least 35 continuous mining machines equipped with proximity 
detection systems are operating in underground coal mines in the United 
States. MSHA has tested and observed proximity detection systems 
providing warning and shutdown activation as expected on continuous 
mining machines in several underground coal mines. MSHA has also 
observed continuous mining machines equipped with proximity detection 
systems in South Africa and reviewed comments on the RFI stating that 
proximity detection systems are used in other countries.
    The process of equipping continuous mining machines with proximity 
detection systems takes time to complete. MSHA would provide operators 
sufficient time to equip these machines and train miners.

B. Economic Feasibility

    MSHA has traditionally used a revenue screening test--whether the 
yearly compliance costs of a regulation are less than 1 percent of 
revenues, or are negative (e.g., provide net cost savings)--to 
establish presumptively that compliance with the regulation is 
economically feasible for the mining industry. Based upon this test, 
MSHA has concluded that the requirements of the proposed rule would be 
economically feasible. For the purpose of this analysis MSHA analyzed 
the impact of the costs in the second year, as this year represents the 
yearly cost after all of the requirements of the proposed rule would be 
in effect.
    The yearly compliance cost to underground coal mine operators 
beginning in the second year would be $8.2 million. This represents 
approximately 0.04 percent of total annual revenue of $18.5 billion 
($8.2 million costs/$18.5 billion revenue) for all underground coal 
mines. Since the estimated compliance cost is below one percent of 
estimated annual revenue, MSHA concludes that compliance with the 
provisions of the proposed rule would be economically feasible for the 
underground coal industry.

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

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the compliance cost impact of the proposed 
rule on small entities. Based on that analysis, MSHA certifies that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities in terms of compliance costs. 
Therefore, the Agency is not required to develop an initial regulatory 
flexibility analysis.
    The factual basis for this certification is presented in full in 
Chapter VII of the PREA and in summary form below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration's (SBA's) definition 
for a small entity, or after consultation with the SBA Office of 
Advocacy, establish an alternative definition for the mining industry 
by publishing that definition in the Federal Register for notice and 
comment. MSHA has not established an alternative definition, and is 
required to use SBA's definition. The SBA defines a small entity in the 
mining industry as an establishment with 500 or fewer employees.
    MSHA has also examined the impact of the proposed rule on mines 
with fewer than 20 employees, which MSHA and the mining community have 
traditionally referred to as ``small mines.'' These small mines differ 
from larger mines not only in the number of employees, but also in 
economies of scale in material produced, in the type and amount of 
production equipment, and in supply inventory. Therefore, their costs 
of complying with MSHA's rules and the impact of the agency's rules on 
them will also tend to be different.
    This analysis complies with the requirements of the RFA for an 
analysis of the impact on ``small entities'' while continuing MSHA's 
traditional definition of ``small mines.''

B. Factual Basis for Certification

    MSHA's analysis of the economic impact on ``small entities'' begins 
with a ``screening'' analysis. The screening compares the estimated 
costs of the proposed rule for small entities to their estimated 
revenues. When estimated costs are less than one percent of estimated 
revenues (for the size categories considered), MSHA believes it is 
generally appropriate to conclude that there is no significant economic 
impact on a substantial number of small entities. If estimated costs 
are equal to or exceed one percent of revenues, further analysis may be 
warranted.
    Revenue for underground coal mines is derived from data on coal 
prices and tonnage. The average open market U.S. sales price of 
underground coal for 2009 was $55.77 per ton. This average price of 
underground coal for 2009 is from the Department of Energy (DOE), 
Energy Information Administration (EIA), Annual Coal Report 2009, 
October 2010, Table 28.
    Total underground coal production in 2009 was approximately 5.2 
million tons for mines with 1-19 employees. Multiplying tons by the 
2009 price per ton, 2009 underground coal revenue

[[Page 54177]]

was $287 million for mines with 1-19 employees. Total underground coal 
production in 2009 was approximately 242 million short tons for mines 
with 1-500 employees. Multiplying tons by the 2009 price per ton, 2009 
underground coal revenue was $13.5 billion for mines with 1-500 
employees. Total underground coal production in 2009 was approximately 
332 million tons. Multiplying tons by the 2009 price per ton, total 
estimated revenue in 2009 for underground coal production was $18.5 
billion.
    For the purpose of this analysis MSHA analyzed the potential impact 
of the costs in the second year, as this year represents the yearly 
cost of the proposed rule after all of the requirements would be in 
effect. The estimated yearly cost of the proposed rule for underground 
coal mines with 1-19 employees is approximately $0.7 million beginning 
in the second year, which represents approximately 0.24 percent of 
annual revenues. MSHA estimates that some mines might experience costs 
somewhat higher than the average per mine in their size category while 
others might experience lower costs.
    When applying SBA's definition of a small mine, the estimated 
yearly cost of the proposed rule for underground coal mines with 1-500 
employees is approximately $7.5 million beginning in the second year, 
which represents approximately 0.06 percent of annual revenue.
    Based on this analysis, MSHA has determined that the proposed rule 
would not have a significant economic impact in terms of compliance 
costs on a substantial number of small underground coal mines. MSHA has 
certified that the proposed rule would not have a significant impact on 
a substantial number of small mining entities, as defined by SBA. MSHA 
has provided, in the PREA accompanying this proposed rule, a complete 
analysis of the proposed cost impact on this category of mines.

VI. Paperwork Reduction Act of 1995

A. Summary

    In the first three years the proposed rule would be in effect, the 
mining community would incur 2,582 annual burden hours with related 
annual burden costs of approximately $99,460, and other annual costs 
related to the information collection package of approximately $18,517.

B. Procedural Details

    The information collection package for this proposed rule has been 
submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the 
Paperwork Reduction Act (PRA) of 1995, as amended. For a detailed 
summary of the burden hours and related costs by provision, see the 
information collection package accompanying this proposed rule. A copy 
of the information collection package can be obtained from http://www.msha.gov/regspwork.htm or http://www.regulations.gov on the day 
following publication of this notice in the Federal Register or from 
the Department of Labor by electronic mail request to Michel Smyth at 
[email protected] (e-mail) or (202) 693-4129 (voice) or Roslyn 
Fontaine at [email protected] or by phone request to (202) 693-
9440 (voice).
    MSHA requests comments to:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the Agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.
    Comments on the information collection requirements should be sent 
to both OMB and MSHA. Addresses for both offices can be found in the 
ADDRESSES section of this preamble. The Department of Labor notes that, 
under the PRA, affected parties do not have to comply with the 
information collection requirements in Sec.  75.1732 until the 
Department of Labor publishes a notice in the Federal Register that 
they have been approved by the Office of Management and Budget (OMB). A 
delayed implementation of information collection requirements would not 
affect the implementation of the underlying substantive requirements.
    The total information collection burden is summarized as follows:
    Title of Collection: Proximity Detection Systems.
    OMB Control Number: 1219-NEW NUMBER.
    Affected Public: Private Sector-Businesses or other for-profits.
    Estimated Number of Respondents: 433 respondents.
    Estimated Number of Responses: 565,613 responses.
    Estimated Annual Burden Hours: 2,582 hours.
    Estimated Annual Cost Related to Burden Hours: $99,460.
    Estimated Other Annual Costs Related to the Information Collection 
Package: $18,517.

VII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
the proposed rule would not include any Federal mandate that may result 
in increased expenditures by State, local, or Tribal governments; nor 
would it increase private sector expenditures by more than $100 million 
in any one year or significantly or uniquely affect small governments. 
Accordingly, the Unfunded Mandates Reform Act of 1995 requires no 
further Agency action or analysis.
    MSHA estimates that the costs of the rule would vary by year, 
because of the different phase-in periods. The cost within each year is 
the sum of one-time costs of newly phased-in proximity detection 
systems and the annual cost of all phased-in systems. MSHA estimates 
the rule would cost approximately: $17.2 million ($15,934,628 + 
$1,228,635) in the first year, $24 million ($21,793,850 + $1,228,635 + 
$972,001) in the second year, and $2.2 million ($1,228,635 + $972,001) 
in each subsequent year. Since the proposed rule would not cost over 
$100 million in any one year, the proposed rule would not be a major 
rule under the Unfunded Mandates Reform Act of 1995.

B. Executive Order 13132: Federalism

    The proposed rule does not have ``federalism implications'' because 
it would not ``have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Accordingly, under E.O. 13132, no further Agency action 
or analysis is required.

C. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations

[[Page 54178]]

Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact 
of Agency action on family well-being. MSHA has determined that the 
proposed rule would have no effect on family stability or safety, 
marital commitment, parental rights and authority, or income or poverty 
of families and children. Accordingly, MSHA certifies that this 
proposed rule would not impact family well-being.

D. Executive Order 12630: Government Actions and Interference With 
Constitutionally Protected Property Rights

    The proposed rule would not implement a policy with takings 
implications. Accordingly, under E.O. 12630, no further Agency action 
or analysis is required.

E. Executive Order 12988: Civil Justice Reform

    The proposed rule was written to provide a clear legal standard for 
affected conduct and was carefully reviewed to eliminate drafting 
errors and ambiguities, so as to minimize litigation and undue burden 
on the Federal court system. Accordingly, the proposed rule would meet 
the applicable standards provided in section 3 of E.O. 12988, Civil 
Justice Reform.

F. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    The proposed rule would have no adverse impact on children. 
Accordingly, under E.O. 13045, no further Agency action or analysis is 
required.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This proposed rule does not have ``Tribal implications'' because it 
would not ``have substantial direct effects on one or more Indian 
Tribes, on the relationship between the Federal government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian Tribes.'' Accordingly, under E.O. 
13175, no further Agency action or analysis is required.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    Executive Order 13211 requires agencies to publish a statement of 
energy effects when a rule has a significant energy action that 
adversely affects energy supply, distribution or use. MSHA has reviewed 
this proposed rule for its energy effects because the proposed rule 
would apply to the underground coal mining sector. Because this 
proposed rule would result in maximum yearly costs of approximately 
$8.2 million to the underground coal mining industry, relative to 
annual revenues of $18.5 billion in 2009, MSHA has concluded that it 
would not be a significant energy action because it is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. Accordingly, under this analysis, no further Agency action 
or analysis is required.

I. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    MSHA has reviewed the proposed rule to assess and take appropriate 
account of its potential impact on small businesses, small governmental 
jurisdictions, and small organizations. MSHA has determined and 
certified that the proposed rule would not have a significant economic 
impact on a substantial number of small entities.

VIII. References

Bartels, J.R., D.H. Ambrose, S.G. Gallagher. ``Analyzing Factors 
Influencing Struck-By Accidents of a Moving Mining Machine by Using 
Motion Capture and DHM Simulations,'' SAE Int J Passeng Cars, 
Electron Electr Syst, 1(1):559-604, April 2009.
Dransite, Jerry, G. Clark, B. Warnock, D. Wease. ``Remotely 
Controlled Mining Machinery Study,'' MSHA Approval and Certification 
Center, August 3, 1998.
Rasche, Tilman. ``Bowtie Analysis of Vehicle Collision Accidents--a 
Case for Proximity Detection and Vehicle Collision Avoidance 
Systems,'' Queensland, Australia: Department of Employment, Economic 
Development and Innovation, 2009.
Ruff, TM. ``Recommendations for evaluating and implementing 
proximity warning systems on surface mining equipment,'' Spokane, 
WA: U.S. Department of Health and Human Services, Centers for 
Disease Control and Prevention, National Institute for Occupational 
Safety and Health, DHHS (NIOSH) Publication No. 2007-146, RI 9672, 
2007.
Schiffbauer, W. H. ``An Active Proximity Warning System for Surface 
and Underground Mining Applications,'' Min Eng, 54(12):40-48, 2002.
U.S. Department of Labor, Mine Safety and Health Administration, 
``Program Policy Manual, Vol. V--Coal Mines, Criteria--Mantrips,'' 
October 2003 (Release V-34), pp. 126 and 127.
U.S. Department of Labor, Mine Safety and Health Administration, 
``Proximity Protection System Specification.'' October 4, 2004.
U.S. Department of Labor, Mine Safety and Health Administration, 
Request for Information. ``Proximity Detection Systems for 
Underground Mines,'' Federal Register, Vol. 75, pg. 2009, February 
1, 2010.
U.S. Department of Labor, Mine Safety and Health Administration. 
``Preliminary Regulatory Economic Analysis for Proximity Detection 
Systems for Continuous Mining Machines in Underground Coal Mines, 
Proposed Rule (RIN 1219-AB65),'' http://www.msha.gov/rea.HTM, 
August, 2011.

List of Subjects in 30 CFR Part 75

    Mine safety and health, Reporting and recordkeeping requirements, 
Underground coal mines.

    Dated: August 25, 2011.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble and under the authority of 
the Federal Mine Safety and Health Act of 1977, as amended, MSHA is 
proposing to amend chapter I of title 30 of the Code of Federal 
Regulations as follows:

PART 75--MANDATORY SAFETY STANDARDS--UNDERGROUND COAL MINES

    1. The authority citation for part 75 continues to read as follows:

    Authority: 30 U.S.C. 811.

    2. Add Sec.  75.1732 to subpart R to read as follows:


Sec.  75.1732  Proximity detection systems.

    Operators shall install proximity detection systems on certain 
mobile machines.
    (a) Machines covered. Operators must equip continuous mining 
machines (except full-face continuous mining machines) with a proximity 
detection system in accordance with the following dates.

[[Page 54179]]



----------------------------------------------------------------------------------------------------------------
            Compliance date                    Machine type                     Date of manufacture
----------------------------------------------------------------------------------------------------------------
November 30, 2011.....................  Continuous Mining          After August 31, 2011.
                                         Machines (except full-
                                         face continuous mining
                                         machines).
February 28, 2013.....................  Continuous Mining          On or before August 31, 2011.
                                         Machines (except full-
                                         face continuous mining
                                         machines).
----------------------------------------------------------------------------------------------------------------

     (b) Requirements for proximity detection systems. A proximity 
detection system must:
    (1) Cause a machine to stop no closer than 3 feet from a miner 
except for a miner who is:
    (i) In the on-board operator's compartment; or
    (ii) Remotely operating a continuous mining machine while cutting 
coal or rock, in which case, the proximity detection system must cause 
the machine to stop before contacting the machine operator.
    (2) Provide an audible or visual warning signal, distinguishable 
from other signals, when the machine is 5 feet and closer to a miner 
except for a miner who is:
    (i) In the on-board operator's compartment; or
    (ii) Remotely operating a continuous mining machine while cutting 
coal or rock.
    (3) Provide a visual signal on the machine that indicates the 
system is functioning properly;
    (4) Prevent movement of the machine if the system is not 
functioning properly. However, a system that is not functioning 
properly may allow machine movement if an audible or visual warning 
signal, distinguishable from other signals, is provided during 
movement. Such movement is permitted only for purposes of relocating 
the machine from an unsafe location for repair;
    (5) Be installed to prevent interference with or from other 
electrical systems; and
    (6) Be installed and maintained by a person trained in the 
installation and maintenance of the system.
    (c) Examination and checking. Operators must:
    (1) Designate a person who must perform a visual check of machine-
mounted components of the proximity detection system to verify that 
components are intact, that the system is functioning properly, and 
take action to correct defects--
    (i) At the beginning of each shift when the machine is to be used;
    (ii) Immediately prior to the time the machine is to be operated if 
not in use at the beginning of a shift; or
    (iii) Within 1 hour of a shift change if the shift change occurs 
without an interruption in production.
    (2) Check for proper operation of miner-wearable components at the 
beginning of each shift that the component is to be used. Defects must 
be corrected before the component is used.
    (3) Designate a qualified person under Sec.  75.153 to examine 
proximity detection systems for the requirements in paragraphs (b)(1) 
through (5) of this section at least every 7 days. Defects in the 
proximity detection system must be corrected before the machine is 
returned to service.
    (d) Certification and records. The operator must make and retain 
certification and records as follows:
    (1) At the completion of the check required under paragraph (c)(1) 
of this section, a certified person under Sec.  75.100 must certify by 
initials, date, and time that the check was conducted. Defects found as 
a result of the check in (c)(1) of this section, including corrective 
actions and date of corrective action, must be recorded.
    (2) Defects found as a result of the check in (c)(2) of this 
section, including corrective actions and date of corrective action, 
must be recorded.
    (3) At the completion of the examination required under paragraph 
(c)(3) of this section, the qualified person must record and certify by 
signature and date that the examination was conducted. Defects, 
including corrective actions and date of corrective action, must be 
recorded.
    (4) Make a record of the persons trained in the installation and 
maintenance of proximity detection systems required under paragraph 
(b)(6) of this section.
    (5) Maintain records in a secure book or electronically in a secure 
computer system not susceptible to alteration.
    (6) Retain records for at least one year and make them available 
for inspection by authorized representatives of the Secretary and 
representatives of miners.
    (e) New technology. Mine operators or manufacturers may apply to 
MSHA for acceptance of a proximity detection system that incorporates 
new technology. MSHA may accept a proximity detection system if it is 
as safe as those which meet the requirements of this section.

[FR Doc. 2011-22125 Filed 8-29-11; 11:15 am]
BILLING CODE 4510-43-P