[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Proposed Rules]
[Pages 36818-36826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13218]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56 and 57
[Docket No. MSHA-2014-0030]
RIN 1219-AB87
Examinations of Working Places in Metal and Nonmetal 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 amend the Agency's standards for the examination of working places
in metal and nonmetal (MNM) mines. The purpose of this proposed rule is
to ensure that mine operators identify and correct conditions that may
adversely affect miners' safety or health. MSHA is proposing to require
that an examination of the working place be conducted before miners
begin work in an area and that the operator notifies miners in the
working place of any conditions found that may adversely affect their
safety or health. MSHA is also proposing that the competent person
conducting the examination sign and date the examination record before
the end of each shift, that the record includes information regarding
adverse conditions found and corrective actions taken, and that
operators make such records available to miners and their
representatives. The proposal would enhance the quality of working
place examinations in MNM mines and help assure that violations of
mandatory health or safety standards are identified and corrected,
thereby improving protections for miners.
DATES: Comments must be received or postmarked by midnight Eastern Time
on September 6, 2016.
Hearing Dates: July 19, 2016, July 21, 2016, July 26, 2016, and
August 4, 2016. The locations are listed in the Public Hearings section
in the SUPPLEMENTARY INFORMATION section of this document. Post-hearing
comments must be received by midnight Eastern Standard Time on
September 6, 2016.
ADDRESSES: Submit comments and informational materials, identified by
RIN 1219-AB87 or Docket No. MSHA-2014-0030, by one of the following
methods:
Federal E-Rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
E-Mail: [email protected].
Mail: MSHA, Office of Standards, Regulations, and
Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia
22202-5452.
Hand Delivery or Courier: 201 12th Street South, Suite
4E401, Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday
through Friday, except Federal holidays. Sign in at the receptionist's
desk on the 4th floor East, Suite 4E401.
Fax: 202-693-9441.
Information Collection Requirements: Comments concerning the
information collection requirements of this proposed rule must be
clearly identified with RIN 1219-AB87 or Docket No. MSHA-2014-0030, and
sent to both MSHA and the Office of Management and Budget (OMB).
Comments to MSHA may be sent by one of the methods in the ADDRESSES
section above. 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.
Instructions: All submissions must include RIN 1219-AB87 or Docket
No. MSHA-2014-0030. Do not include personal information that you do not
want publicly disclosed; MSHA will post all comments without change,
including any personal information provided.
Docket: For access to the docket to read comments received, go to
http://www.regulations.gov or http://www.msha.gov/currentcomments.asp.
To read background documents, go to http://www.regulations.gov. Review
the docket in person at MSHA, Office of Standards, Regulations, and
Variances, 201 12th Street South, Arlington, Virginia, between 9:00
a.m. and 5:00 p.m. EST Monday through Friday, except Federal holidays.
Sign in at the receptionist's desk on the 4th floor East, Suite 4E401.
E-Mail Notification: To subscribe to receive an email notification
when MSHA publishes rules in the Federal Register, go to http://www.msha.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
A. Public Hearings
B. Statutory and Regulatory History
II. Background Information
III. Section-by-Section Analysis
IV. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
V. Feasibility
VI. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
IX. References
I. Introduction
A. Public Hearings
MSHA will hold four public hearings on the proposed rule to provide
the public with an opportunity to present oral statements, written
comments, and other information on this rulemaking. The public hearings
will begin at 9 a.m. and end after the last presenter speaks, and in
any event not later than 5 p.m., on the following dates at the
locations indicated:
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Date Location Contact number
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July 19, 2016................ Homewood Suites by (801) 363-6700
Hilton, Salt Lake
City-Downtown, 423
West 300 South, Salt
Lake City, UT 84101.
[[Page 36819]]
July 21, 2016................ Hyatt Place (412) 321-3000
Pittsburgh--North
Shore, 260 North
Shore Drive,
Pittsburgh, PA 15212.
July 26, 2016................ Mine Safety and (202) 693-9440
Health
Administration
Headquarters, 201
12th Street, South,
Rooms 7W204 & 7W206,
Arlington, VA 22202.
August 4, 2016............... Sheraton Birmingham (205) 324-5000
Hotel, 2101 Richard
Arrington Jr.
Boulevard North,
Birmingham, AL 35203.
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The hearings will begin with an opening statement from MSHA,
followed by an opportunity for members of the public to make oral
presentations. You 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.
Speakers and other attendees may present information to MSHA for
inclusion in the rulemaking record. The hearings will be conducted in
an informal manner. Formal rules of evidence or cross examination will
not apply.
A verbatim transcript of the proceedings will be prepared and made
a part of the rulemaking record. Copies of the transcript will be
available to the public. The transcript may also be viewed on MSHA's
Web site at http://arlweb.msha.gov/currentcomments.asp, under Comments
on Public Rule Making. MSHA will accept post-hearing written comments
and other appropriate information for the record from any interested
party, including those not presenting oral statements.
B. Statutory and Regulatory History
On July 31, 1969, MSHA's predecessor, the Department of the
Interior's Bureau of Mines, published a final rule (34 FR 12503)
addressing health and safety standards for Metal and Nonmetallic Open
Pit Mines; Sand, Gravel, and Crushed Stone Operations; and Metal and
Nonmetallic Underground Mines. These standards were promulgated
pursuant to the 1966 Federal Metal and Nonmetallic Mine Safety Act (MNM
Act). The final rule included some mandatory standards and some
advisory standards. The final rule at Sec. Sec. 55.18-8, 56.18-8, and
57.18-8 set forth an advisory standard stating that each working place
``should be visited by a supervisor or a designated person at least
once each shift and more frequently as necessary to insure that work is
being done in a safe manner.''
The Federal Mine Safety and Health Act of 1977 (Mine Act) amended
the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) to
include MNM mines and repealed the MNM Act. The Mine Act retained the
mandatory standards and regulations promulgated under the Coal Act and
the MNM Act. In addition, section 301(b)(2) of the Mine Act required
the Secretary of Labor to establish an advisory committee to review all
advisory standards under the MNM Act and to either revoke them or make
them mandatory (with or without revision). On August 17, 1979 (44 FR
48490), MSHA revised, renumbered, and made mandatory the Agency's
advisory standards regarding working place examinations. This resulted
in standards, set forth at Sec. Sec. 55.18-2, 56.18-2, and 57.18-2,
that mirrored the language that currently exists at Sec. Sec. 56.18002
and 57.18002.
On January 29, 1985 (50 FR 4048), MSHA combined and recodified the
standards in 30 CFR parts 55 and 56 into a single part 56 that applies
to all surface MNM mines. As a part of this effort, the MNM working
place examination standards were redesignated as 30 CFR 56.18002 and
57.18002. No change was made to the language of the standards.
II. Background Information
Mining continues to be one of the nation's most hazardous
occupations. Mining operations have dynamic work environments where
working conditions can change rapidly and without warning. Under the
Mine Act, mine operators with the assistance of the miners have the
primary responsibility to prevent the existence of unsafe and
unhealthful conditions and practices. Compliance with safety and health
standards and adoption of safe work practices provide a substantial
measure of protection against hazards that cause accidents, injuries,
and fatalities. MSHA has determined that effective accident prevention
strategies include an examination of working places.
Under existing Sec. Sec. 56.18002 and 57.18002, MSHA requires that
a competent person designated by the operator examine each working
place at least once each shift for conditions that may adversely affect
safety or health, that the operator promptly initiate appropriate
action to correct such conditions, and that the operator keep records
for one year that the examinations were conducted. These standards also
require the operator to withdraw persons from an area where conditions
may present an imminent danger, except those persons referred to in
section 104(c) of the Mine Act, until the danger is abated.
The proposal would require that operators promptly notify miners of
any adverse conditions found that may adversely affect safety or
health. It would also require that the examination record include
additional information that MSHA believes would help assure that
adverse conditions are identified and corrected, and that the record be
made available to miners and their representatives so that they can be
made aware of these conditions. MSHA is proposing that the record
include: (1) The locations of all areas examined and a description of
each condition found that could adversely affect the safety or health
of miners; and (2) a description of the corrective action and date the
corrective action was taken. The proposal would also require that the
competent person who conducted the examination sign and date the
examination record before the end of each shift.
MSHA believes that making and maintaining a record of adverse
conditions found and corrective actions taken would help mine operators
and miners and their representatives become more aware of potential
dangers and more proactive in their approach to correcting these issues
before they cause or contribute to an accident, injury, or fatality.
Under this proposed rule, MSHA anticipates that improved communication
at the mine site about adverse conditions and the best practices used
to correct the conditions will encourage awareness and participation at
all levels, fostering a culture of safety and health at the mine.
In developing the proposed rule, MSHA reviewed accident
investigation reports and the Agency's enforcement data from January
2010 through mid-December 2015. During this period, 122 miners were
killed in 110 accidents at MNM mines. MSHA conducted investigations
into each of these 110 fatal accidents and issued 252 citations and
orders for violations of 95 different mandatory safety and health
standards. MSHA's analysis of the accident investigations further
revealed that in
[[Page 36820]]
more than 60 percent of the fatal accidents (67 out of 110), the Agency
had issued at least one citation or order for a violation of a
mandatory safety or health standard identified in MSHA's Rules to Live
By (RTLB) initiative, launched in February 2010. Violations of the 19
MNM RTLB standards represent the conditions or practices that have been
most frequently cited as causing or contributing to fatal accidents.
At this point, MSHA believes that most operators and miners should
be familiar with the RTLB standards. Under the proposal, the additional
communication that would be required by operators (1) notifying miners
of conditions that violate RTLB standards and other adverse conditions
and (2) recording additional information about these conditions in the
examination record should further serve to educate miners, their
representatives, and operators about adverse conditions and encourage
prompt corrective action. In this way, MSHA believes the proposal will
help prevent fatalities and other accidents.
Over the years, MSHA has issued Program Policy Letters (PPL)
regarding working place examinations, including PPL No. P94-IV-5
(1994); PPL No. P96-IV-2 (1996); PPL No. P10-IV-3 (2010); PPL No. P14-
IV-01 (2014); and PPL P15-IV-01 (July 22, 2015). The PPLs are MSHA's
guidance and best practices regarding compliance with the existing
standards. MSHA inspectors, miners, mine operators, trainers, and the
mining community use these PPLs as guidance in determining how best to
comply with MSHA's standards on working place examinations.
As discussed in PPL No. P15-IV-01 and other PPLs, MSHA believes
that, for a record to provide meaningful information, it should contain
the following: (1) The date of the examination; (2) the examiner's
name; and (3) the working places examined. As reflected in the PPLs,
MSHA also believes that, as a best practice, the record should include
a description of the conditions found that adversely affect safety or
health.
Effective working place examinations are a fundamental accident
prevention tool; they allow operators to find and fix adverse
conditions and violations of health and safety standards before they
cause injury or death to miners. MSHA believes that notifying miners of
adverse conditions in their working place allows the miner to take
appropriate precautions until the adverse condition is corrected.
Records alert operators to take prompt corrective action. The following
are recent examples of adverse conditions that existed for more than
one shift prior to causing or contributing to a fatal accident.\1\ MSHA
believes that, had the person making the examination noted these
conditions prior to miners working in an area, had the conditions been
recorded, and had the operator warned miners about these conditions,
the accidents may have been prevented.
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\1\ Examples of accidents cited may be in litigation.
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In March 2011, a contract supervisor was fatally injured when he
was struck by a section of pipe. He was supervising the operation of
joining two ends of pipe using a pipe-fusion machine. The positioning
cylinder was defective and had been removed from the pipe-fusion
machine eight days prior to the accident. Since the positioning
cylinder was removed, the machine could not hold the pipe in place.
MSHA believes that, had a competent person identified and recorded the
adverse condition before miners used the machine, the operator could
have warned miners and removed the machine from service until the
cylinder was repaired and replaced, thus preventing the fatal accident.
In January 2015, a fatal accident occurred at a phosphate rock
mine. A heavy equipment operator was operating an excavator near a
water-filled ditch when the excavator tipped on its side, into the
water, trapping the miner inside the nearly submerged cab. The
equipment operator was rescued from the cab and hospitalized, but died
later that day. Three days prior to the accident, several inches of
rain fell in the area causing the ditch to fill with water and
overflow, making the ditch invisible to persons working in the area.
MSHA believes that had a competent person conducted a workplace
examination before miners started working in the area the hazard would
have been identified; notification to affected miners of the water-
filled ditch would have made them aware of the hazardous condition; and
a record of the hazardous condition would have prompted corrective
action and prevented the fatality.
Another fatal accident in March 2015 involved a haul truck driver
at a sand and gravel mine. The driver was driving on an elevated
roadway on an embankment next to the mine's dredge pond. The roadway,
which was recently established, had no berm as a barrier to the drop-
off as required by MSHA standards. The truck went off the roadway into
the pond. The driver was hospitalized and died two days later. MSHA
believes that the operator should have recognized during a workplace
examination that a berm was not in place along the banks of the
elevated haul road and warned miners before miners started work in that
area. MSHA also believes that a record of this hazard likely would have
prompted corrective action and that these actions would have prevented
the accident that occurred.
From 2013 through 2015, there were 68 fatalities at MNM mines, as
compared with 54 fatalities in the preceding three years (2010-2012).
To reduce fatalities at MNM mines, MSHA has engaged, and continues to
share best practices and training materials with stakeholders in the
MNM industry. The Agency has provided stakeholders with guidance and
compliance assistance materials to help mine operators find and fix
violations of mandatory safety and health standards. These efforts
included stakeholder conferences, online training sessions, and a
``walk and talk'' safety initiative in which MSHA's inspectors and
field staff provided operators and miners information about potentially
hazardous tasks and conditions, as well as best mining practices to
prevent accidents, injuries, and fatalities. These efforts, however,
have not been sufficient to address the increase in fatalities that
began in 2013.
This proposed rule is intended to strengthen MSHA's requirements
for MNM working place examinations to help prevent the kind of
accidents discussed above. MSHA believes that the proposed requirements
that operators examine working places before miners begin work in an
area and notify miners of any adverse conditions that may adversely
affect safety or health would assure that miners and operators are
aware of hazards and take proactive actions to correct hazards. In
addition, the record required under the proposed rule would help assure
that adverse conditions are identified and corrected promptly.
III. Section-by-Section Analysis
This proposed rule would help reduce common causes of accidents,
injuries, and fatalities at MNM mines by enhancing the effectiveness of
working place examinations.
A. Sections 56.18002(a) and 57.18002(a)--Requirements for Conducting
Working Place Examinations
Proposed Sec. Sec. 56.18002(a) and 57.18002(a) would require an
examination of each working place at least once each shift, before work
begins in an area, for conditions that may adversely affect the safety
or health of miners.
[[Page 36821]]
Existing Sec. Sec. 56.2 and 57.2 define the phrase ``working
place'' as: ``any place in or about a mine where work is being
performed.'' In PPL No. P15-IV-01, MSHA clarifies that ``working
place'' applies to all locations at a mine where miners work in the
extraction or milling processes. The Agency further explains that this
includes areas where work is performed on an infrequent basis, such as
areas accessed primarily during periods of maintenance or clean-up, if
miners will be performing work in these areas during the shift. As
discussed in previous guidance, the ``working place'' would not include
roads not directly involved in the mining process, administrative
office buildings, parking lots, lunchrooms, toilet facilities, or
inactive storage areas. Operators would be required to examine
isolated, abandoned, or idle areas of mines or mills only when miners
have to perform work in these areas during the shift.
The existing standards for examinations of working places in MNM
mines in Sec. Sec. 56.18002(a) and 57.18002(a) require that a
competent person designated by the mine operator examine each working
place at least once per shift for conditions that may adversely affect
safety or health and promptly initiate appropriate action to correct
such conditions. While the existing standards permit the examination to
be made at any time during the shift, MSHA is proposing that the
examination start before work begins in an area. MSHA believes that the
proposal is consistent with the remedial intent of the Mine Act and the
existing standards. MSHA also believes that the proposed requirement
that operators conduct an examination of working places before work
begins in an area would provide better protection of miners. MSHA
requests comments on whether the Agency should require that
examinations be conducted within a specified time period, e.g., 2
hours, before miners start work in an area. Please provide specific
rationale for your position, and include the merits for your argument.
Like the existing rule, the proposed rule would require that the
examination be made by a competent person designated by the mine
operator. In PPL No. P15-IV-01, MSHA emphasized that the competent
person designated by the operator to conduct working place examinations
should be able to recognize hazards and adverse conditions that are
expected or known to occur in a specific work area or that are
predictable to someone familiar with the mining industry. MSHA states
in various PPLs that, although a best practice is for a foreman or
other supervisor to conduct the examination in most cases, an
experienced non-supervisory person may also be ``competent.'' The PPLs
emphasized that a competent person designated by the operator under
Sec. Sec. 56.18002(a) and 57.18002(a) must already have the experience
and training to be able to perform the examination and identify safety
and health hazards.
MSHA requests comment on whether the Agency should require that the
competent person conducting a working place examination have a minimum
level of experience or particular training or knowledge to identify
workplace hazards. The Agency requests information on whether a
competent person should have a certain ability, experience, knowledge,
or training that would enable the person to recognize conditions that
could adversely affect safety or health. Please provide the rationale,
including supporting documentation.
Proposed Sec. Sec. 56.18002(a)(1) and 57.18002(a)(1) incorporate
the existing requirements in Sec. Sec. 56.18002(a) and 57.18002(a)
that the mine operator promptly initiate action to correct conditions
that may adversely affect safety or health that are found during the
examination, and would add a new requirement that the operator promptly
notify the miners in any affected areas of any adverse conditions found
during the working place examination. MSHA believes that miners need to
know about adverse conditions in their working place so that they can
take precautions to avoid an accident or injury.
Proposed Sec. Sec. 56.18002(a)(2) and 57.18002(a)(2) are
substantively the same as existing Sec. Sec. 56.18002(c) and
57.18002(c). These provisions would require that, if the competent
person finds conditions that may present an imminent danger, these
conditions must be brought to the immediate attention of the operator.
The operator must immediately withdraw all persons from the affected
area until the danger is abated, except persons referred to in section
104(c) of the Mine Act who are necessary to eliminate the imminent
danger.
Imminent danger is defined in section 3(j) of the Mine Act as the
existence of any condition or practice which could reasonably be
expected to cause death or serious physical harm before such condition
or practice can be abated. From January 2010 through December 2015,
MSHA has issued 1,819 imminent danger orders under section 107(a) of
the Mine Act in MNM mines.
B. Sections 56.18002(b) and 57.18002(b)--Requirements for Records of
Working Place Examinations
MSHA believes that, to be effective, working place examinations
must be timely, made by a competent person, and made in the areas where
miners work. MSHA is proposing that working place examination records
include additional information the Agency believes is necessary to
accomplish the intent of the standards.
The proposed rule would add new requirements addressing the
contents of the examination record. The introductory text to proposed
Sec. Sec. 56.18002(b) and 57.18002(b) would continue to require that a
record of the working place examination be made. The proposed rule
would add the requirement that the competent person who conducted the
examination sign and date the record before the end of the shift for
which the examination was made. Proposed Sec. Sec. 56.18002(b)(1) and
57.18002(b)(1) would require the record to include the locations
examined and a description of any adverse conditions found. MSHA
believes that this proposed requirement for a description of the
adverse conditions found would expedite the correction of these
conditions. Proposed Sec. Sec. 56.18002(b)(2)(i) through (iii) and
57.18002(b)(2)(i) through (iii) are new provisions; they would require
that, if any adverse condition is found, the record must include:
A description of the action taken to correct the adverse
condition,
The date that the corrective action was taken, and
The name of the person who made the record of the
corrective action and the date the corrective action was taken. (MSHA
expects that the person taking the corrective action would make this
record.)
The proposed rule would redesignate the requirement for
recordkeeping in existing Sec. Sec. 56.18002(b) and 57.18002(b) as
proposed Sec. Sec. 56.18002(b)(3) and 57.18002(b)(3). Existing
Sec. Sec. 56.18002(b) and 57.18002(b) require that a record that such
working place examinations were conducted shall be kept by the operator
for a period of one year and shall be made available for review by the
Secretary or his authorized representative. The proposed rule would add
new requirements that the record also be made available to miners and
their representatives and that a copy be provided to the Secretary or
his authorized representative or a miners' representative when they
request a copy. MSHA solicits comments on these proposed requirements.
[[Page 36822]]
C. Request for Comments
Please provide any other data or information that would be useful
to MSHA as the Agency evaluates its proposal related to working place
examinations in MNM mines. Please provide the rationale and sufficient
detail in your comments to enable proper Agency review and
consideration. Where possible, include specific examples to support the
rationale and other relevant information, including past experience,
studies and articles, and standard professional practices. Include any
related cost and benefit data with your submission, and information on
economic and technological feasibility.
Based data reported on MSHA Form 7000-2, 90 percent of MNM mines
employ fewer than 20 miners. In addition, almost all (98 percent) of
MNM mines are surface operations. Over half of all MNM mines are
surface sand and gravel or crushed stone operations that operate
intermittently or seasonally and employ five or fewer miners. For this
reason, MSHA is particularly interested in comments related to the
impact of the proposed rule on small mines, particularly comments and
suggestions on alternatives and best practices that small mines might
use to implement more effective working place examinations.
IV. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
Executive Orders 13563 and 12866 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.
Under Executive Order (E.O.) 12866, the Agency must determine
whether a regulatory action is ``significant'' and subject to review by
the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866
defines a ``significant regulatory action'' as an action that is likely
to result in a rule: (1) Having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients thereof; or (4) raising novel
legal or policy issues arising out of legal mandates, the President's
priorities, or the principles set forth in this Executive Order.
Based on its assessment of the costs and benefits, MSHA has
determined that this proposed rule would not have an annual effect of
$100 million or more on the economy and, therefore, would not be an
economically significant regulatory action pursuant to section 3(f) of
E.O. 12866. MSHA requests comments on all cost and benefit estimates
presented in this preamble and on the data and assumptions the Agency
used to develop estimates.
A. Population at Risk
The proposed rule would apply to all MNM mines in the United
States. In 2014, there were approximately 11,800 MNM mines employing
145,800 miners, excluding office workers, and 75,800 contractors
working at MNM mines.
Table 1 presents the number of MNM mines and employment by mine
size.
Table 1--MNM Mines and Employment in 2014
------------------------------------------------------------------------
Total
employment at
Mine size No. of mines mines,
excluding
office workers
------------------------------------------------------------------------
1-19 Employees.......................... 10,599 52,328
20-500 Employees........................ 1,162 73,253
501+ Employees.......................... 26 20,186
Contractors............................. .............. 75,762
-------------------------------
Total............................... 11,787 221,529
------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2) August 26, 2015.
The U.S. Department of the Interior (DOI) estimated the value of
the U.S. mining industry's MNM output in 2014 to be $77.6 billion.\2\
Table 2 presents the hours worked and revenue produced at MNM mines by
mine size.
---------------------------------------------------------------------------
\2\ Production revenue estimates are from DOI, U.S. Geological
Survey (USGS), Mineral Commodity Summaries 2015, February 2015, page
8.
Table 2--MNM Total Hours and Revenues in 2014
------------------------------------------------------------------------
Total hours Revenue (in
Mine size reported for millions of
year dollars)
------------------------------------------------------------------------
1-19 Employees.......................... 86,704,486 $23,539
20-500 Employees........................ 156,402,789 $42,461
501+ Employees.......................... 42,730,947 $11,600
-------------------------------
[[Page 36823]]
Total............................... 285,838,222 $77,600
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Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA
Form 7000-2) and estimated DOI reported mine revenues for 2014 by mine
size.
B. Benefits
The proposed rule would require additional recordkeeping provisions
to assure that adverse conditions are recorded and corrected. The
proposed rule would provide for more detailed examination records that
include essential information that the operator can use to correct
recognized hazards and protect miners. The proposed provisions to
record the adverse conditions found during the examinations and the
corrective actions taken to mitigate the hazards, and to notify miners
of the adverse conditions that may adversely affect safety or health,
would better achieve the protections intended under the existing
requirements. The additional information recorded in the examination
records would assist MSHA, mine operators, and miners in focusing
efforts on correcting hazardous conditions.
MSHA is unable to quantify the benefits from this proposed
rulemaking, including the proposed provisions that an examination of
the working place be conducted before miners begin work in an area;
that the operator notify miners in the working place of any conditions
found that may adversely affect their safety or health; and that the
examination record include a description of the adverse conditions
found and the corrective actions taken. MSHA anticipates, however, that
there would be benefits from the proposed requirements, such as
expedited correction of adverse conditions, which would be expected to
result in fewer injuries and fatalities. MSHA requests information and
data on the benefits from this proposed rulemaking. Please be specific
to facilitate any benefits quantification that may be possible.
Net benefits under MSHA's current analysis would be negative (zero
quantified benefits minus quantified costs). MSHA also believes that
there would be a financial benefit to MNM mine operators who conduct
working place examinations to find and fix adverse conditions and
violations of health and safety standards before these conditions cause
injury or death. Mine operators who conduct effective working place
examinations could achieve a financial benefit from reduced penalties.
From January 2010 through December 2015, penalties for MNM mine
operators were $152 million for violations of all mandatory safety and
health standards.
C. Compliance Costs
The quantified cost associated with this proposed rule would be the
additional cost for the expanded recordkeeping requirements. Some mine
operators already conduct and record working place examinations that
satisfy the proposed requirements and would have little or no
additional cost. Many adverse conditions found during the working place
examination are corrected immediately before miners have an opportunity
to encounter the condition; therefore, MSHA also believes that the cost
associated with examining areas before miners begin work in that area
and with notifying miners of any adverse conditions would be de
minimis. MSHA requests information and data on the costs of this
proposed rulemaking.
For the purpose of this analysis, MSHA estimates that the competent
person making the record of the examination of working places would
earn $31.14 (including benefits). The wage rate is from U.S. Metal and
Industrial Mineral Mine Salaries, Wages, and Benefits--2012 Survey
Results, InfoMine USA, Inc., 2012. MSHA updated rates from 2012 to 2014
for inflation using a percent change of 3.8 percent derived from the
BLS Employment Cost Index (CIU2010000405000I), total compensation for
private industry workers in construction, extraction, farming, fishing,
and forestry occupations (Index available at http://data.bls.gov/timeseries/CIU2010000405000I).
MSHA also estimates that--
Mines with 1-19 employees operate one shift per day, 300
days per year; and
Mines with 20+ employees operate two shifts per day, 300
days per year.
MSHA recognizes that there are many seasonal and intermittent mines
that would be covered by this proposed rule. MSHA requests information
and data on the Agency's estimates on the number of days per year a
mine operates; the number of working place examinations made each
shift; the number of competent persons required to conduct multiple
examinations during a single shift; the amount of time required to
record the examination and record corrective actions taken; and the
number of shifts per day, by mine size.
Records of Working Place Examinations
The proposed rule would revise existing Sec. Sec. 56.18002(b) and
57.18002(b) by adding requirements that the record of the examination
include the locations of all areas examined and a description of each
adverse condition found, and that the competent person conducting the
examination sign and date this record before the end of the shift for
which the examination was made. Also, if an adverse condition is found,
the record must include a description of the actions taken to correct
the adverse condition, the date that corrective action was taken, and
the name of the person updating the record as well as the date the
record was updated. MSHA expects that the person taking the corrective
action would update the record on completion of the corrective action.
MSHA has no data on the number of corrective actions that would be
recorded under this proposed rule. However, the Agency believes that
the time to record the corrective actions would be minimal at best.
MSHA estimates that it will take a competent person approximately 5
additional minutes to make the record after each examination. MSHA
estimates that the annual cost of making this record for all MNM mines
is approximately $10.1 million:
$8.3 million in mines with 1-19 employees (10,599 mines x
1 exam/day x 300 days/yr x 5 mins x $31.14/hr);
$1.8 million in mines with 20-500 employees (1,162 mines x
2 exams/day x 300 days/yr x 5 mins x $31.14/hr); and
$40,482 in mines with 501+ employees (26 mines x 2 exams/
day x 300 days/yr x 5 mins x $31.14/hr).
Discounting
Discounting is a technique used to apply the economic concept that
the preference for the value of money decreases over time. In this
analysis,
[[Page 36824]]
MSHA provides cost totals at zero, 3, and 7 percent discount rates. The
zero percent discount rate is referred to as the undiscounted rate.
MSHA used the Excel Net Present Value (NPV) function to determine the
present value of costs and computed an annualized cost from the present
value using the Excel PMT function.\3\ The negative value of the PMT
function provides the annualized cost over 10 years at a 3 and 7
percent discount rate.
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\3\ Office of Management and Budget, Office of Information and
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked
Questions, February 7, 2011. [http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf.]
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Summary of Costs
MSHA estimates that the total undiscounted cost of the proposed
rule over a 10-year period would be approximately $101.0 million, $86.2
million at a 3 percent rate, and $70.9 million at a 7 percent rate. The
total undiscounted cost annualized over 10 years would be approximately
$10.1 million per year, $9.8 million per year at a 3 percent rate, and
$9.4 million per year at a 7 percent rate.
V. Feasibility
A. Technological Feasibility
The proposed rule contains recordkeeping requirements; the proposed
rule is not technology-forcing. MSHA concludes that the rule is
technologically feasible.
B. Economic Feasibility
MSHA has traditionally used a revenue screening test--whether the
yearly impacts of a regulation are less than one percent of revenues--
to establish presumptively that the regulation is economically feasible
for the mining community. The proposed rule is projected to cost
approximately $10.1 million per year and the MNM industry has estimated
annual revenues of $77.6 billion, which is less than one percent of
revenues. MSHA concludes that the proposed rule would be economically
feasible for the MNM mining industry.
VI. Regulatory Flexibility Analysis 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 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. The Agency, therefore, is not required to develop an
initial regulatory flexibility analysis. The factual basis for this
certification is presented 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,
therefore, must 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, the impact of
MSHA's rules and the costs of complying with them will also tend to
differ for these small mines. This analysis complies with the
requirements of the RFA for an analysis of the impact on ``small
entities'' using both SBA's definition for small entities in the mining
industry and MSHA's traditional definition.
B. Factual Basis for Certification
MSHA initially evaluates the impacts on small entities by comparing
the estimated compliance costs of a rule for small entities in the
sector affected by the rule to the estimated revenues for the affected
sector. When estimated compliance costs are less than one percent of
the estimated revenues, the Agency believes it is generally appropriate
to conclude that there is no significant economic impact on a
substantial number of small entities. When estimated compliance costs
exceed one percent of revenues, MSHA investigates whether further
analysis is required. MSHA projects that the proposed compliance costs
of $10.1 million for MNM mines with 1 to 500 employees is less than one
percent of the $66 billion revenue of these mines in 2014. Proposed
compliance costs for MNM mines with 1 to 19 employees is $8.3 million,
which is less than one percent of the $23.5 billion revenue of these
mines in 2014.
VII. Paperwork Reduction Act of 1995
A. Summary
This proposed rule contains changes that affect the burden in an
existing paperwork package with OMB Control Number 1219-0089. MSHA
estimates that the proposed rule will result in 324,375 additional
burden hours with an associated additional cost of approximately $10.1
million annually. MSHA requests information and data on the Agency's
estimates used to calculate the additional burden hours in the
information collection package for this proposed rule.
Records of Working Place Examinations
Proposed Sec. Sec. 56.18002(b)(1) and (2) and 57.18002(b)(1) and
(2) would revise the existing provisions in Sec. Sec. 56.18002(b) and
57.18002(b) by requiring competent persons to include in the record of
the examination: (1) The locations of all areas examined, (2) a
description of any adverse condition found, (3) a description of the
actions taken to correct the adverse condition, and (4) the date that
corrective action was taken. The competent person must sign and date
this record before the end of the shift for which the examination was
made. Also, if the record is updated, it must include the date and name
of the person updating the record.
MSHA estimates that a MNM competent person who conducts working
place examinations earns $31.14 an hour (includes benefits, see cost
section above). MSHA estimates that--
Mines with 1-19 employees operate one shift per day, 300
days per year;
Mines with 20-500 employees operate two shifts per day,
300 days per year; and
Mines with 501+ employees operate two shifts per day, 300
days per year.
MSHA's estimates of MNM mine operators' additional annual burden
hours and burden hour costs for examination records are presented
below.
Additional Burden Hours
10,599 mines (with 1-19 employees) x 1 exam x 300 days x 5
min = 264,975 hr
1,162 mines (with 20-500 employees) x 2 exams x 300 days x
5 min = 58,100 hr
26 mines (with >500 employees) x 2 exams x 300 days x 5
min = 1,300 hr
Total Burden Hours = 324,375 hr
Additional Burden Hour Costs
Total Burden Hour Costs = 324,375 hr x $31.14/hr =
$10,101,038
There are no other associated burden hour costs because the
proposed rule
[[Page 36825]]
only adds documentation requirements to a record already required by
existing standards.
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 of 1995, as amended. 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.
VIII. 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
this proposed rule does not include any federal mandate that may result
in increased expenditures by State, local, or tribal governments; nor
will it increase private sector expenditures by more than $100 million
(adjusted for inflation) in any one year or significantly or uniquely
affect small governments. Accordingly, the Unfunded Mandates Reform Act
requires no further Agency action or analysis.
B. 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
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 this
proposed rule will 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.
C. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
Section 5 of Executive Order (E.O.) 12630 requires Federal agencies
to ``identify the takings implications of proposed regulatory actions .
. . .'' MSHA has determined that this proposed rule does not include a
regulatory or policy action with takings implications. Accordingly,
E.O. 12630 requires no further Agency action or analysis.
D. Executive Order 12988: Civil Justice Reform
Section 3 of Executive Order (E.O.) 12988 contains requirements for
Federal agencies promulgating new regulations or reviewing existing
regulations to minimize litigation by eliminating drafting errors and
ambiguity, providing a clear legal standard for affected conduct rather
than a general standard, promoting simplification, and reducing burden.
MSHA has reviewed this proposed rule and has determined that it would
meet the applicable standards provided in E.O. 12988 to minimize
litigation and undue burden on the Federal court system.
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
MSHA has determined that this proposed rule will have no adverse
impact on children. Accordingly, E.O. 13045 requires no further Agency
action or analysis.
F. Executive Order 13132: Federalism
MSHA has determined that this proposed rule does not have
federalism implications because it will 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,
E.O. 13132 requires no further Agency action or analysis.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
MSHA has determined that this proposed rule does not have tribal
implications because it will 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, E.O. 13175 requires no further Agency action or analysis.
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 applies to the metal and nonmetal mining sector. Although this
proposed rule will result in yearly costs of approximately $10.1
million to the metal and nonmetal mining industry, only the impact on
uranium mines is applicable in this case. MSHA data show only three
active uranium mines in 2014. The Energy Information Administration's
annual uranium report for 2014 \4\ shows 4.7 million pounds at an
average price of $39.17, for sales of approximately $185.9 million.
Using average annual costs, the impact to all active uranium mine
operators is less than $4,000. MSHA has concluded that it is not 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.
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\4\ http://www.eia.gov/uranium/production/annual/pdf/dupr.pdf,
page 6.
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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 that the
proposed rule would not have a significant economic impact on a
substantial number of small entities.
IX. References
Salzer, Krista Noyes, survey results compilation ``2012 U.S.
Coal Mines Salaries, Wages, and Benefits--2012, U.S. Metal and
Industrial Mineral Mine Salaries, Wages, and Benefits'', InfoMine
USA, Inc.
U.S. Department of the Interior, U.S. Geological Survey, Mineral
Commodity Summaries 2015, February 2015, page 8.
U.S. Department of Labor, Bureau of Labor Statistics, Employment
Cost Index CIU2010000405000I, total compensation for private
industry workers in construction, extraction, farming, fishing, and
forestry occupations, Index.
U.S. Energy Information Administration, Independent Statistics &
Analysis: Domestic Uranium Production Report 2014, April 2015.
U.S. Office of Management and Budget, Office of Information and
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked
Questions, February 7, 2011.
List of Subjects in 30 CFR Parts 56 and 57
Explosives, Fire prevention, Hazardous substances, Metals, Mine
[[Page 36826]]
safety and health, Reporting and recordkeeping requirements.
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 by the Mine
Improvement and New Emergency Response Act of 2006, MSHA is proposing
to amend chapter I of title 30 of the Code of Federal Regulations as
follows:
PART 56--SAFETY AND HEALTH STANDARDS--SURFACE METAL AND NONMETAL
MINES
0
1. The authority citation for part 56 continues to read as follows:
Authority: 30 U.S.C. 811.
0
2. Revise Sec. 56.18002 to read as follows:
Sec. 56.18002 Examination of working places.
(a) A competent person designated by the operator shall examine
each working place at least once each shift, before miners begin work
in that place, for conditions that may adversely affect safety or
health.
(1) The operator shall promptly notify miners in any affected areas
of any adverse conditions found that may adversely affect safety or
health and promptly initiate appropriate action to correct such
conditions.
(2) Conditions noted by the person conducting the examination that
may present an imminent danger shall be brought to the immediate
attention of the operator who shall withdraw all persons from the area
affected (except persons referred to in section 104(c) of the Federal
Mine Safety and Health Act of 1977) until the danger is abated.
(b) A record of each examination shall be made and the person
conducting the examination shall sign and date the record before the
end of the shift for which the examination was made.
(1) The record shall include the locations of all areas examined
and a description of each condition found that may adversely affect the
safety or health of miners.
(2) The record also shall include:
(i) A description of the corrective action taken,
(ii) The date that the corrective action was taken, and
(iii) The name of the person who made the record of the corrective
action and the date the record of the corrective action was made.
(3) The operator shall maintain the examination records for at
least one year; shall make the records available for inspection by
authorized representatives of the Secretary and the representatives of
miners; and shall provide these representatives a copy on request.
PART 57--SAFETY AND HEALTH STANDARDS--UNDERGROUND METAL AND
NONMETAL MINES
0
3. The authority citation for part 57 continues to read as follows:
Authority: 30 U.S.C. 811.
0
4. Revise Sec. 57.18002 to read as follows:
Sec. 57.18002 Examination of working places.
(a) A competent person designated by the operator shall examine
each working place at least once each shift, before miners begin work
in that place, for conditions that may adversely affect safety or
health.
(1) The operator shall promptly notify miners in any affected areas
of any adverse conditions found that may adversely affect safety or
health and promptly initiate appropriate action to correct such
conditions.
(2) Conditions noted by the person conducting the examination that
may present an imminent danger shall be brought to the immediate
attention of the operator who shall withdraw all persons from the area
affected (except persons referred to in section 104(c) of the Federal
Mine Safety and Health Act of 1977) until the danger is abated.
(b) A record of each examination shall be made and the person
conducting the examination shall sign and date the record before the
end of the shift for which the examination was made.
(1) The record shall include the locations of all areas examined
and a description of each condition found that may adversely affect the
safety or health of miners.
(2) The record also shall include:
(i) A description of the corrective action taken,
(ii) The date that the corrective action was taken, and
(iii) The name of the person who made the record of the corrective
action and the date the record of the corrective action was made.
(3) The operator shall maintain the examination records for at
least one year; shall make the records available for inspection by
authorized representatives of the Secretary and the representatives of
miners; and shall provide these representatives a copy on request.
[FR Doc. 2016-13218 Filed 6-7-16; 8:45 am]
BILLING CODE 4520-43-P