[Federal Register Volume 82, Number 175 (Tuesday, September 12, 2017)]
[Proposed Rules]
[Pages 42757-42765]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19381]


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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, limited reopening of the rulemaking record; 
notice of public hearings; close of comment period.

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SUMMARY: The Mine Safety and Health Administration (MSHA) proposes to 
amend the Agency's final rule on examinations of working places in 
metal and nonmetal mines that was published in January 2017. The 
proposed changes would require that an examination of the working place 
be conducted before work begins or as miners begin work in that place, 
and that the examination record include descriptions of adverse 
conditions that are not corrected promptly and the dates of corrective 
action for these conditions. The proposed rule would provide mine 
operators additional flexibility in managing their safety and health 
programs and reduce regulatory burdens without reducing the protections 
afforded miners.

DATES: MSHA is reopening the comment period to solicit comments on 
limited changes to the final rule published on January 23, 2017 (82 FR 
7695), effective May 23, 2017, and delayed on May 22, 2017 (82 FR 
23139), until October 2, 2017 (82 FR 23139).
    Comment date: Comments must be received or postmarked by midnight 
Eastern Standard Time (EST) on November 13, 2017.
    Hearing dates: October 24, 2017, October 26, 2017, October 31, 
2017, and November 2, 2017. The locations are listed in the Public 
Hearings section in the SUPPLEMENTARY INFORMATION section of this 
document.

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: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Email: [email protected].
     Mail: MSHA, Office of Standards, Regulations, and 
Variances, 201 12th

[[Page 42758]]

Street South, Suite 4E401, Arlington, Virginia 22202-5452.
     Hand Delivery or Courier: 201 12th Street South, Suite 
4E401, Arlington, Virginia, between 9 a.m. and 5 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, or via email 
[email protected].
    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 
https://www.regulations.gov or https://www.msha.gov/currentcomments.asp. To read background documents, go to https://www.regulations.gov. Review the docket in person at MSHA, Office of 
Standards, Regulations, and Variances, 201 12th Street South, 
Arlington, Virginia, between 9 a.m. and 5 p.m. Monday through Friday, 
except Federal holidays. Sign in at the receptionist's desk on the 4th 
floor East, Suite 4E401.
    Email Notification: To subscribe to receive email notification when 
MSHA publishes rulemaking documents in the Federal Register, go to 
https://www.msha.gov/subscriptions.

FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
[email protected] (email), 202-693-9440 (voice), or 202-693-
9441 (fax). These are not toll-free numbers.

SUPPLEMENTARY INFORMATION: 

I. Background

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:

----------------------------------------------------------------------------------------------------------------
                       Date/time                                       Location                    Contact No.
----------------------------------------------------------------------------------------------------------------
October 24, 2017, 9 a.m...............................  Mine Safety and Health Administration     (202) 693-9440
                                                         Headquarters, 201 12th Street South,
                                                         7 West Conference Rooms, Arlington,
                                                         VA.
October 26, 2017, 9 a.m...............................  75 South West Temple, Salt Lake City,     (801) 531-0800
                                                         UT 84101.
October 31, 2017, 9 a.m...............................  Sheraton Birmingham Hotel, 2101           (205) 324-5000
                                                         Richard Arrington Jr. Boulevard
                                                         North, Birmingham, AL 35203.
November 2, 2017, 9 a.m...............................  Wyndham Pittsburgh University Center,     (412) 682-6200
                                                         100 Lytton Ave., Pittsburgh, PA 15213.
----------------------------------------------------------------------------------------------------------------

    The hearings will begin with an opening statement from MSHA, 
followed by an opportunity for members of the public to make oral 
presentations. 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 https://arlweb.msha.gov/currentcomments.asp, under Comments 
on Public Rule Making.

B. Regulatory History

    On January 23, 2017, MSHA published a final rule, Examinations of 
Working Places in Metal and Nonmetal Mines (``2017 rule'') in the 
Federal Register (FR) amending the Agency's standards for the 
examination of working places in metal and nonmetal mines. 82 FR 7680. 
The 2017 rule was scheduled to become effective on May 23, 2017. On 
March 27, 2017, MSHA published a proposed rule to delay the effective 
date of the 2017 rule to July 24, 2017. 82 FR 15173. On May 22, 2017, 
MSHA published a final rule delaying the effective date of the 2017 
rule until October 2, 2017. 82 FR 23139. Elsewhere in this issue of the 
Federal Register, MSHA is publishing a document taking comments on 
delaying the effective date of the final rule.

II. Discussion of Issues

A. Introduction

    Effective working place examinations are a fundamental accident 
prevention tool used by operators of metal and nonmetal (MNM) mines; 
they allow operators to find and fix adverse conditions and violations 
of health and safety standards before they cause injury or death to 
miners.
    After further review of the rulemaking record, MSHA is considering 
limited changes to the 2017 rule to address: (1) When working place 
examinations must begin, and (2) the adverse conditions and related 
corrective actions that must be included in the working place 
examinations record. Specifically, MSHA is proposing to amend the 
introductory text of Sec. Sec.  56.18002(a) and 57.18002(a) in the 2017 
rule on when examinations must begin, and the record requirements in 
paragraphs (b) and (c); MSHA is not proposing to modify paragraphs 
(a)(1) and (2) regarding miner notification and corrective action 
requirements. Further, MSHA is not proposing to change the record 
retention requirements or the record availability requirements included 
in the 2017 rule.
    The Agency believes that the proposed changes would be as 
protective as the existing rules. Also, the proposal would reduce the 
regulatory burden on mine operators compared to requirements in the 
2017 rule and would be consistent with the Administration's initiatives 
to reduce and control regulatory costs.

B. Before Work Begins or as Miners Begin Work

    The standards for examinations of working places in MNM mines at 30 
CFR 56.18002 and 57.18002 were promulgated in 1979 and are the 
standards currently in effect. The currently effective standards permit 
the examination to be made at any time during the shift. Sections 
56.18002(a) and 57.18002(a) require a competent person designated by 
the mine operator to examine each working place at least once each 
shift for conditions that may

[[Page 42759]]

adversely affect safety or health. In addition, Sec. Sec.  56.18002(a) 
and 57.18002(a) require the operator to promptly initiate appropriate 
action to correct such conditions.
    On January 23, 2017, MSHA published a final rule (82 FR 7680) that 
amended Sec. Sec.  56.18002(a) and 57.18002(a) to require that the 
examination be conducted before miners begin work in that place so that 
conditions that may adversely affect miners' safety and health are 
identified before miners are exposed to those conditions and corrective 
action is promptly initiated.
    MSHA is now proposing to modify the introductory text of Sec. Sec.  
56.18002(a) and 57.18002(a) in the 2017 rule to require the competent 
person to examine each working place at least once each shift before 
work begins or as miners begin work in that place for conditions that 
may adversely affect safety or health. This proposed change to 
Sec. Sec.  56.18002(a) and 57.18002(a) would allow the competent person 
to conduct the examination before work begins or as miners begin their 
work in a place. To provide mine operators flexibility on scheduling 
working place examinations, MSHA's proposed change would allow miners 
to enter a working place at the same time that the competent person 
conducts the examination. As in the 2017 rule, MSHA's proposal would 
not require a specific time frame for the examination to be conducted. 
However, MSHA intends that the examination should be conducted in a 
time frame sufficient to assure any adverse conditions would be 
identified before miners are exposed. Under the proposal, the competent 
person would identify adverse conditions that can be corrected 
promptly, and promptly notify miners of those that cannot be corrected 
before miners are exposed. In that way, miners could avoid and not be 
exposed to those adverse conditions. The operator would still be 
responsible for correcting those conditions that can be corrected 
promptly. MSHA recognizes that mining is dynamic, conditions are always 
changing, and adverse conditions need to be identified and addressed 
throughout the shift, not just at the beginning. If adverse conditions 
are identified, miners should be notified before being exposed, or as 
soon as possible after work begins if the condition is discovered while 
they are working in an area.
    MSHA believes this proposed change would be more protective than 
the standards in effect, which allow the examination to be made at any 
time during the shift. Also, under this proposal, since MSHA expects 
adverse conditions would be identified before miners are potentially 
exposed to them, the proposal is as protective as the 2017 rule.
    Furthermore, in the 2017 rule, MSHA acknowledged that for mines 
with consecutive shifts or those that operate on a 24-hour, 365-day 
basis, it may be appropriate to conduct the examination for the next 
shift at the end of the previous shift. 82 FR 7683. The proposed change 
would continue to permit mine operators to conduct an examination on 
the previous shift. However, as MSHA stated in the 2017 rule, because 
conditions at mines can change, operators should examine at a time 
sufficiently close to the start of the next shift to minimize potential 
exposure to conditions that may adversely affect miners' safety or 
health.

C. Record of Adverse Conditions

    The currently effective standards at Sec. Sec.  56.18002(b) and 
57.18002(b) require, in part, that mine operators make a record that 
the working place examinations were conducted.
    Under the 2017 rule, Sec. Sec.  56.18002(b) and 57.18002(b) require 
operators to make a record of the working place examination and 
include, among other information, a description of each condition found 
that may adversely affect the safety or health of miners. In the 
preamble to the 2017 rule, MSHA noted that the record must include a 
description of adverse conditions that are corrected immediately. 82 FR 
7686. The preamble explained that recording all adverse conditions, 
even those that are corrected immediately, would be useful in 
identifying trends and areas that could benefit from an increased 
safety emphasis.
    However, MSHA recognizes that it is the mine operator who is 
responsible for design of the mine's safety program and that having a 
recording exception for conditions that are corrected promptly would 
provide operators with increased incentives to correct these conditions 
promptly, which may improve miner safety and health. For this reason, 
MSHA is considering modifying Sec. Sec.  56.18002(b) and 57.18002(b) to 
require that the examination record include only those adverse 
conditions that are not corrected promptly.
    MSHA also is considering a conforming change to modify Sec. Sec.  
56.18002(c) and 57.18002(c) of the 2017 rule, which requires the 
examination record to include, or be supplemented to include, the date 
of corrective action when any condition that may adversely affect 
safety or health is corrected. To be consistent with MSHA's proposed 
change to Sec. Sec.  56.18002(b) and 57.18002(b), MSHA would require in 
Sec. Sec.  56.18002(c) and 57.18002(c) that the record include, or be 
supplemented to include, the date of corrective action for an adverse 
condition that is not promptly corrected.
    MSHA's proposal is based on the recognition that, consistent with 
industry best practices, prudent operators routinely correct many 
adverse conditions as the competent person is making the examination or 
as soon as possible after the completion of the examination, and that 
the corrective action may be taken either by the competent person or 
someone else. The Agency believes that the primary concern should be 
with respect to those adverse conditions that are not corrected 
promptly because they may expose miners to conditions that may 
potentially cause an accident, injury, or fatality. Consistent with the 
explanation in the preamble to the 2017 rule, MSHA interprets 
``promptly'' to mean before miners are potentially exposed to adverse 
conditions.
    Also, the proposed change to Sec. Sec.  56.18002(b) and 57.18002(b) 
would be consistent with MSHA's miner notification provisions under the 
2017 rule at Sec. Sec.  56.18002(a)(1) and 57.18002(a)(1). Those 
provisions require mine operators to promptly notify miners in affected 
areas of any conditions found that may adversely affect their safety or 
health. In the preamble to the 2017 rule, MSHA reiterated that, if an 
adverse condition is corrected before miners begin work, notification 
to miners in affected areas is not required because there are no miners 
that would be affected by the adverse condition. Similarly, under 
proposed paragraph (b), adverse conditions that are corrected promptly 
no longer present a danger to miners and a description of the adverse 
condition would not be required as part of the examination record under 
this proposed rule. MSHA believes that this change to Sec. Sec.  
56.18002(b) and 57.18002(b) may improve safety over the existing 
standards by encouraging mine operators to correct adverse conditions 
as they are found before they potentially cause an accident, injury, or 
fatality.
    Overall, MSHA believes that the proposed rule would be more 
protective of miners than the existing standards under Sec. Sec.  
56.18002 and 57.18002. The proposed rule encourages early 
identification and prompt correction of adverse conditions to protect 
miners. If corrected promptly, adverse conditions would not be required 
to be documented in the record. However, adverse conditions that are 
not

[[Page 42760]]

corrected promptly would be required to be documented in the record. An 
examination record with a description of these uncorrected adverse 
conditions and their dates of correction would permit mine operators to 
focus on conditions that need the most attention and on best practices 
to correct these conditions.

III. Request for Comments

    MSHA is soliciting comments only on the limited changes being 
proposed: (1) Working place examinations may begin as miners begin 
work, and (2) adverse conditions that are not corrected promptly and 
dates of their corrective action must be included in the working place 
examinations record. The Agency requests that commenters be as specific 
as possible and include any alternatives, existing practices and 
experiences, detailed rationales, supporting documentation, and 
benefits to miners. Comments will assist the Agency in considering 
changes to the 2017 rule and whether changes would reduce regulatory 
burdens on mine operators without reducing the protections afforded 
miners.

IV. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review; and Executive 
Order 13771: Reducing Regulation and Controlling Regulatory Costs

    Executive Orders (E.O.) 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). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
E.O. 13771 directs agencies to reduce regulation and control regulatory 
costs by eliminating at least two existing regulations for each new 
regulation, and that the cost of planned regulations be prudently 
managed and controlled through a budgeting process. This proposed rule 
is expected to be an EO 13771 deregulatory action. As discussed in this 
section, MSHA estimates that this proposed rule would result in annual 
cost savings of $27.6 million.\1\
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    \1\ Except where noted, the analysis presents all dollar values 
using 2016 dollars.
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    Under E.O. 12866, it must be determined whether a regulatory action 
is ``significant'' and subject to review by 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 E.O.
    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. This proposed rule would make changes to 
provisions that created costs in the 2017 rule, as described in the 
following sections.

A. Compliance Cost Baseline

    MSHA estimated that the 2017 rule will result in $34.5 million in 
annual costs for the MNM industry. The Agency estimated that the total 
undiscounted cost of the final rule over 10 years will be $345.1 
million; at a 3 percent discount rate, $294.4 million; and at a 7 
percent discount rate, $242.4 million. In the final rule, MSHA 
estimated costs associated with conducting an examination before work 
begins, the additional time to make a record, and providing miners' 
representatives a copy of the record.
    In this proposed rule, MSHA estimates the costs of changes to the 
2017 rule that include: (1) An examination of a working place as miners 
begin work in that place, and (2) the time used to make a record only 
of adverse conditions that are not corrected promptly and the dates of 
corrective action for these conditions. For purposes of calculating the 
costs attributable to this proposed rule, MSHA updated the number of 
mines and used calendar year 2016 wage and employment data. MSHA also 
applied 2016 wage and employment data to the 2017 rule to establish a 
baseline to calculate cost savings.

B. Affected Employees and Revenue Estimates

    The proposed rule would apply to all MNM mines in the United 
States. The baseline for costs and net benefits include costs 
identified in the preamble to the 2017 rule. The changes include 
updates to the 2016 data on wages, number of mines, and employment. 
Changes to the baseline that would exist without this proposed rule are 
not attributable to this proposal. The updates are included for 
purposes of calculating the cost savings attributable to this proposed 
rule.
    In 2016, there were approximately 11,624 MNM mines employing 
140,631 miners, excluding office workers, and 69,004 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 2016
------------------------------------------------------------------------
                                                              Total
                                                          employment  at
               Mine size                Number of mines       mines,
                                                            excluding
                                                          office workers
------------------------------------------------------------------------
1-19 Employees........................           10,428           52,703
20-500 Employees......................            1,174           71,257
501+ Employees........................               22           16,671
Contractors...........................  ...............           69,004
                                       ---------------------------------

[[Page 42761]]

 
    Total.............................           11,624          209,635
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Source: MSHA MSIS Data (reported on MSHA Form 7000-2) June 6, 2017.

    The U.S. Department of the Interior (DOI) estimated the value of 
the U.S. mining industry's MNM output in 2016 to be $74.6 billion.\2\ 
Table 2 presents the hours worked and revenue produced at MNM mines by 
mine size.
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    \2\ Revenue estimates are from DOI, U.S. Geological Survey 
(USGS), Mineral Commodity Summaries 2017, January 2017, page 9.

              Table 2--MNM Total Hours and Revenues in 2016
------------------------------------------------------------------------
                                          Total hours      Revenue  (in
               Mine size                 reported  for     millions  of
                                              year           dollars)
------------------------------------------------------------------------
1-19 Employees........................       89,901,269          $22,294
20-500 Employees......................      153,459,578           40,920
501+ Employees........................       35,396,747           11,390
                                       ---------------------------------
    Total.............................      278,757,594           74,604
------------------------------------------------------------------------
Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA
  Form 7000-2) and estimated DOI reported mine revenues for 2016. MSHA
  distributed the totals to mine size using employment and hours data.

C. Benefits

    The proposed rule would modify the 2017 rule's requirements in 
Sec. Sec.  56.18002(a) and 57.18002(a) that require the examination be 
conducted before miners begin work in that place. MSHA is proposing to 
modify these provisions to require the examination be conducted before 
work begins or as miners begin work in that place. This proposed change 
would reduce the cost of the 2017 rule. MSHA is also proposing to 
modify the 2017 rule's requirements in Sec. Sec.  56.18001(b) and 
57.18002(b) that the examination record include each adverse condition 
found. MSHA is proposing to modify these provisions to require that the 
examination record include only those adverse conditions that are not 
corrected promptly.
    MSHA believes these changes to the 2017 rule would not reduce the 
protections afforded miners; therefore, benefits would remain 
unchanged, which were unquantified in the 2017 rule, since MSHA was 
unable to separate the benefits of the new requirements under the 2017 
rule from those benefits attributable to conducting a workplace 
examination under the existing standard. Thus, net benefits for this 
proposed rule would be positive due to the cost savings.

D. Compliance Costs

    The costs of this proposed rule are associated with conducting 
examinations of a working place as miners begin work in that place. In 
the preamble to the 2017 rule, MSHA concluded that MNM mine operators 
will use a variety of scheduling methods to conduct an examination of a 
working place before miners begin work (82 FR 7690). For the 2017 rule, 
MSHA estimated that it will cost approximately $26.9 million for mine 
operators examine each working place before miners begin work.
    For the 2017 rule estimate, MSHA assumed that operators might use 
overtime, use different people to backfill for the time shifted to the 
examination, or experience rescheduling costs to comply with the final 
rule. The examination was already required prior to the 2017 rule and 
therefore not an additional cost for either the 2017 rule or this 
proposed rule. Under this proposed rule, mine operators would not be 
required to make the 2017 rule changes to the examination timing that 
were estimated to add $26.9 million for overtime, backfill, and 
rescheduling. The proposed change in the examination timing would allow 
mine operators to avoid the additional $26.9 million and therefore 
create a cost savings. MSHA requests comment on this estimate. MSHA 
updated the cost estimate for the number of mines and labor costs which 
results in an estimated annual cost savings of $27.6 million.
    The 2017 rule also amended the standards currently in effect by 
specifying the contents of the examination record, which included a 
requirement that a record include a description of each adverse 
condition found. Under this proposed rule, MSHA would modify the 
required contents of the examination record by requiring a description 
of each adverse condition that is not corrected promptly. MSHA assumes 
that the cost related to the proposed change to the recordkeeping 
requirements would be de minimis. MSHA seeks comment on the Agency's 
assumption and solicits information and data on the number of instances 
adverse conditions are promptly corrected and on average how much time 
would be saved by not requiring these corrected conditions to be 
included in the record.
    MSHA updated the number of mines and applied 2016 wage and 
employment data to the 2017 rule to establish a baseline to calculate 
cost savings. MSHA estimates that the competent person making the 
record of the examination of working places would earn $35.28 per hour 
(including benefits). In addition, the estimated wage rate of a 
clerical worker who makes a copy of the record is $24.44 per hour 
(including benefits). The wage rates are from the Bureau of Labor

[[Page 42762]]

Statistics (BLS), Occupation Employment Statistics (OES) May 2016 
survey.\3 4\ Updating the 2017 rule's costs results in a new 
examination cost base of $27.6 million annually or approximately a $0.7 
million increase. MSHA also restates the 2017 rule estimates that--
---------------------------------------------------------------------------

    \3\ OES data are available at http://www.bls.gov/oes/tables.htm 
or at http://www.bls.gov/oes/oes_ques.htm. The employment-weighted 
mean wage rates are for Extraction Workers (Standard Occupational 
Classification code, SOC, 47-500) and General Office Clerks 
(Standard Occupational Classification code, SOC, 43-9061) for Metal 
Ore Mining (NAICS 212200) and Nonmetallic Mineral Mining and 
Quarrying (NAICS 212300). The OES wages represent the average for 
the entire industry and are used nationally for many federal 
estimates and programs. As with any average, there are always 
examples of higher and lower values, but the national average is the 
appropriate value for a rule that regulates an entire industry.
    \4\ The wage rate without benefits was increased for a benefit-
scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for 
Employee Compensation access by menu http://www.bls.gov/data/ or 
directly with http://data.bls.gov/timeseries/CIU2010000405000I. The 
data series CIU201000040500I, Private Industry Total benefits for 
Construction, extraction, farming, fishing, and forestry 
occupations, is divided by 100 to convert to a decimal value. MSHA 
used the latest 4-quarter moving average 2016 Qtr. 1--2016 Qtr. 4 to 
determine that 32.5 percent of total loaded wages are benefits. The 
scaling factor is a detailed calculation, but may be approximated 
with the formula and values 1 + (benefit percentage/(1-benefit 
percentage)) = 1 + (0.325/(1-0.325)) = 1.48. Additionally, wage 
inflation is applied. Wage inflation is the change in Series ID: 
CIS2020000405000I; Seasonally adjusted; Series Title: Wages and 
salaries for Private industry workers in Construction, extraction, 
farming, fishing, and forestry occupations, Index. (Qtr. 4 2016/Qtr. 
2 2016 = 126.7/125.5 = 1.01).
---------------------------------------------------------------------------

     Mines with 1-19 employees operate 1.1 shift per day, 169 
days per year;
     Mines with 20-500 employees operate 1.8 shifts per day, 
285 days per year; and
     Mines with 500+ employees operate 2.2 shifts per day, 322 
days per year.
Overhead Costs
    MSHA notes that the Agency did not include an overhead labor cost 
in the economic analysis for this proposed rule. It is important to 
note that there is not one broadly accepted overhead rate and that the 
use of overhead to estimate the marginal costs of labor raises a number 
of issues that should be addressed before applying overhead costs to 
analyze the costs of any specific regulation. There are several 
approaches to look at the cost elements that fit the definition of 
overhead and there are a range of overhead estimates currently used 
within the federal government--for example, the Environmental 
Protection Agency has used 17 percent,\5\ and the Employee Benefits 
Security Administration has used 132 percent on average.\6\ Some 
overhead costs, such as advertising and marketing, may be more closely 
correlated with output rather than with labor. Other overhead costs 
vary with the number of new employees. For example, rent or payroll 
processing costs may change little with the addition of 1 employee in a 
500-employee firm, but those costs may change substantially with the 
addition of 100 employees. If an employer is able to rearrange current 
employees' duties to implement a rule, then the marginal share of 
overhead costs such as rent, insurance, and major office equipment 
(e.g., computers, printers, copiers) would be very difficult to measure 
with accuracy (e.g., computer use costs associated with 2 hours for 
rule familiarization by an existing employee). For this proposed rule, 
comparability is also a problem. The January 2017 rule is not in effect 
and therefore additional overhead costs have not been incurred and are 
unlikely to be incurred in the short term. Guidance on implementing 
Executive Order 13371 \7\ also provides general guidance that applies 
in this situation:
---------------------------------------------------------------------------

    \5\ U.S. Environmental Protection Agency, ``Wage Rates for 
Economic Analyses of the Toxics Release Inventory Program,'' June 
10, 2002.
    \6\ For a further example of overhead cost estimates, please see 
the Employee Benefits Security Administration's guidance at https://www.dol.gov/sites/default/files/ebsa/laws-and-regulations/rules-and-regulations/technical-appendices/labor-cost-inputs-used-in-ebsa-opr-ria-and-pra-burden-calculations-august-2016.pdf.
    \7\ Memorandum: Implementing Executive Order 13771, Titled 
``Reducing Regulation and Controlling Regulatory Costs, M-17-21'', 
April 5, 2017, Question 21, https://www.whitehouse.gov/the-press-office/2017/04/05/memorandum-implementing-executive-order-13771-titled-reducing-regulation.

    For E.O. 13771 deregulatory actions that revise or repeal 
recently issued rules, agencies generally should not estimate cost 
savings that exceed the costs previously projected for the relevant 
requirements, unless credible new evidence show that costs were 
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previously underestimated.

    If MSHA had included an overhead rate when estimating the marginal 
cost of labor, without further analyzing an appropriate quantitative 
adjustment, and adopted for these purposes an overhead rate of 17 
percent on base wages, the overhead costs would increase cost savings 
from $27.6 million to $32.3 million at all discount rates. This 
increase in savings of $4.7 million is the same 17 percent overhead 
rate as all rule costs are labor costs and therefore change in direct 
proportion to the rates selected.
    MSHA will continue to study overhead costs to ensure regulatory 
costs are appropriately attributed without double counting or showing 
savings for concepts not previously considered as costs.
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, 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.\8\ The negative 
value of the PMT function provides the annualized cost over 10 years at 
a 3 and 7 percent discount rate using the function's end of period 
option.
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    \8\ Office of Management and Budget, Office of Information and 
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked 
Questions, February 7, 2011.
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Summary of Cost Savings
    The following table shows the published 2017 rule costs, changes 
due to updating the base, and the resulting proposed rule cost savings 
(cost reductions have a negative sign and are a cost savings).

                          Table 3--Undiscounted Costs, Changes, and Regulatory Savings
                                           [Annual values, $ millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                    Total  (may
                                                                  Recordkeeping     Examination   not sum due to
                                                                                      timing         rounding)
----------------------------------------------------------------------------------------------------------------
Costs as published in 2017 rule (published using 2015 dollars)              7.64           26.88           34.51
Changes due to updated 2016 baseline data.....................              0.24            0.72            0.95
Total 2016 baseline...........................................              7.88           27.60           35.47

[[Page 42763]]

 
Regulatory savings of proposed rule (change from updated base,              0.00          -27.60          -27.60
 negative values = cost savings)..............................
----------------------------------------------------------------------------------------------------------------

    MSHA estimates that the total undiscounted costs of the proposed 
rule over a 10-year period would be approximately -$276 million, -
$235.4 million at a 3 percent rate, and -$193.8 million at a 7 percent 
rate. Negative cost values are cost savings that result in a positive 
net benefit. The same annual cost savings occurs in each of the 10 
years so the cost annualized over 10 years would be approximately -
$27.60 million for all discount rates.

V. Feasibility

A. Technological Feasibility

    The proposed rule contains recordkeeping requirements and is not 
technology-forcing. MSHA concludes that the proposed rule would be 
technologically feasible.

B. Economic Feasibility

    MSHA established the economic feasibility of the 2017 rule using 
its traditional revenue screening test--whether the yearly impacts of a 
regulation are less than one percent of revenues--to establish 
presumptively that the 2017 rule was economically feasible for the 
mining community. This proposed rule creates a cost (savings) of -$27.6 
million annually compared to the 2017 rule. Although the associated 
revenues decreased slightly from the 2017 rule estimate of $77.6 
billion in 2015 to approximately $74.6 billion for 2016, the costs 
retained from the 2017 rule of approximately $7.9 million per year 
remains well less than one percent of revenues and the net decrease in 
costs is even more supportive of the Agency's conclusion. 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 and 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 but requested comments in Section 
IV. of this preamble.
    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. MSHA presents the factual 
basis for this certification 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. On February 26, 2016, SBA's 
revised size standards became effective. SBA updated the small business 
thresholds for mining by establishing a number of different levels. 
MSHA used the new SBA standards for the screening analysis of the final 
rule.
    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 this threshold analysis shows estimated compliance costs 
have been less than one percent of the estimated revenues, the Agency 
has concluded that it is generally appropriate to conclude that there 
is no significant adverse economic impact on a substantial number of 
small entities.
    Additionally, there is the possibility that a rule might have a 
positive economic impact. To properly apply MSHA's traditional criteria 
and consider the positive impact case, MSHA is adjusting its 
traditional threshold analysis criteria to consider the absolute value 
of one percent rather than only the adverse case. This slight change 
means when the absolute value of the estimated compliance costs exceed 
one percent of revenues, MSHA investigates whether further analysis is 
required. For small entities impacted by this proposed rule, MSHA 
estimates the revenue at $63.2 billion and costs at -$30.3 million. As 
a percentage, the absolute value of the impact is less than 0.05 
percent; therefore, using the threshold analysis, MSHA concludes no 
further analysis is required and concludes the proposed rule would not 
have a significant impact on a substantial number of small entities. 
MSHA requests comments on this conclusion.

VII. Paperwork Reduction Act of 1995

    The proposed changes due to this rulemaking are unlikely to change 
the number of collections or respondents in the currently approved 
collection 1219-0089. The minor recordkeeping change may reduce the 
burden very slightly but MSHA concludes that any small decrease in the 
time needed to make the record may not be measurable. MSHA requested 
comments on this issue in Section IV. of this preamble but is not

[[Page 42764]]

requesting any change to the approved collection at this time.

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 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 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 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.

F. 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.

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

    E.O. 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. In its 2017 rule, MSHA 
reviewed the rule for its energy effects. The impact on uranium mines 
is applicable in this case. MSHA data show only two active uranium 
mines in 2016. Because this proposed rule would have a net cost 
savings, 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.

List of Subjects in 30 CFR Parts 56 and 57

    Metals, Mine safety and health, Reporting and recordkeeping 
requirements.

Wayne D. Palmer,
Acting 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 
amended by the final rule published on January 23, 2017 (82 FR 7695), 
effective May 23, 2017, and delayed on May 22, 2017 (82 FR 23139), 
until October 2, 2017 (82 FR 23139), 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. In Sec.  56.18002, revise paragraph (a) introductory text, the 
second sentence of paragraph (b), and paragraph (c) 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 work begins or as 
miners begin work in that place for conditions that may adversely 
affect safety or health.
* * * * *
    (b) * * * The record shall contain the name of the person 
conducting the examination; date of the examination; location of all 
areas examined; and description of each condition found that may 
adversely affect the safety or health of miners and is not corrected 
promptly.
    (c) When a condition that may adversely affect safety or health is 
not corrected promptly, the examination record shall include, or be 
supplemented to include, the date of the corrective action.
* * * * *

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. In Sec.  57.18002, revise paragraph (a) introductory text, the 
second sentence of paragraph (b), and paragraph (c) 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 work begins or as 
miners begin work in that place for conditions that may adversely 
affect safety or health.
* * * * *
    (b) * * * The record shall contain the name of the person 
conducting the

[[Page 42765]]

examination; date of the examination; location of all areas examined; 
and description of each condition found that may adversely affect the 
safety or health of miners and is not corrected promptly.
    (c) When a condition that may adversely affect safety or health is 
not corrected promptly, the examination record shall include, or be 
supplemented to include, the date of the corrective action.
* * * * *
[FR Doc. 2017-19381 Filed 9-11-17; 8:45 am]
 BILLING CODE 4520-43-P