[Federal Register Volume 75, Number 247 (Monday, December 27, 2010)]
[Proposed Rules]
[Pages 81165-81176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32410]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AB75


Examinations of Work Areas in Underground Coal Mines for 
Violations of Mandatory Health or Safety Standards

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule; notice of close of comment period.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to revise its requirements for preshift, supplemental, on-shift, and 
weekly examinations of underground coal mines. The proposed rule would 
require operators to identify violations of mandatory health or safety 
standards. The proposal would also require that the mine operator 
record and correct violations and review with mine examiners (e.g., the 
mine foreman, assistant mine foreman, or other certified persons) on a 
quarterly basis all citations and orders issued in areas where 
preshift, supplemental, on-shift, and weekly examinations are required. 
The proposal would assure that underground coal mine operators find and 
fix violations of mandatory health or safety standards, thereby 
improving health and safety for miners.

DATES: MSHA must receive comments by midnight Eastern Standard Time on 
February 25, 2011.

ADDRESSES: All submissions must reference MSHA and RIN 1219-AB75. 
Comments may be submitted by any of the following methods:
    (1) Federal e-Rulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    (2) Electronic Mail: <a href="/cdn-cgi/l/email-protection#f18b8bbca2b9b0dcb29e9c9c949f8582b1959e9ddf969e87"><span class="__cf_email__" data-cfemail="cdb7b7809e858ce08ea2a0a0a8a3b9be8da9a2a1e3aaa2bb">[email protected]</span></a>. Include ``RIN 1219-
AB75'' in the subject line of the message.
    (3) Facsimile: (202) 693-9441. Include ``RIN 1219-AB75'' in the 
subject line of the message.
    (4) Regular Mail: MSHA, Office of Standards, Regulations, and 
Variances, 1100 Wilson Blvd., Room 2350, Arlington, Virginia 22209-
3939.
    (5) Hand Delivery or Courier: MSHA, Office of Standards, 
Regulations, and Variances, 1100 Wilson Blvd., Room 2350, Arlington, 
Virginia 22209-3939. Sign in at the receptionist's desk on the 21st 
floor.
    Information Collection Requirements: Comments concerning the 
information collection requirements of this proposed rule must be 
clearly identified with ``RIN 1219-AB75'' and sent to both the Office 
of Management and Budget (OMB) and MSHA. Comments to OMB may be sent by 
mail addressed to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, New Executive Office Building, 725 
17th Street, NW., Washington, DC 20503, Attn: Desk Officer for MSHA. 
Comments to MSHA may be transmitted by any of the methods listed above 
in this section.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
<a href="/cdn-cgi/l/email-protection#4132282d3724386f312035332822282001252e2d6f262e37"><span class="__cf_email__" data-cfemail="6c1f05001a0915421c0d181e050f050d2c080300420b031a">[email protected]</span></a> (e-mail), (202) 693-9440 (voice), or (202) 693-
9441 (facsimile).

SUPPLEMENTARY INFORMATION: The outline of this proposal is as follows:

I. Introduction
    A. Availability of Information
    B. Statutory and Regulatory History
II. Background Information
III. Section-by-Section Analysis
    A. Section 75.360 Preshift Examination at Fixed Intervals

[[Page 81166]]

    B. Section 75.361 Supplemental Examination
    C. Section 75.362 On-Shift Examination
    D. Section 75.363 Hazardous Conditions and Violations of 
Mandatory Health or Safety Standards; Posting, Correcting, and 
Recording
    E. Section 75.364 Weekly examination
    F. Rationale for Proposed Changes
IV. Executive Order 12866: Regulatory Planning and Review
    A. Population at Risk
    B. Benefits
    C. Compliance Costs
    D. Net Benefits
V. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
VI. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VII. Paperwork Reduction Act of 1995
    A. Summary
    B. Details
VIII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. Executive Order 13132: Federalism
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health Risks and Safety Risks
    G. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking
IX. References

I. Introduction

A. Availability of Information

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

B. Statutory and Regulatory History

    Sections 303(d)(1), (e), and (f) of the Federal Mine Safety and 
Health Act of 1977 (Mine Act) retained without change the language of 
the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) setting 
forth requirements for pre-shift, on-shift, and weekly examinations. 
The Coal Act required that pre-shift examinations be conducted by 
certified examiners within three hours prior to the next shift. Section 
303(d)(1) of the Mine Act required pre-shift examinations for specified 
hazards and for such other hazards and violations of the mandatory 
health or safety standards, as an authorized representative of the 
Secretary may from time to time require (30 U.S.C. 863(d)(1)). The pre-
shift examination generally addressed evaluating the effectiveness of 
the mine's ventilation system and detecting potential hazards such as 
methane accumulations, water accumulations, and adverse roof 
conditions.
    Section 303(e) required on-shift examinations for hazardous 
conditions (30 U.S.C. 863(e)). Like the preshift examination, the on-
shift examination was included to identify hazards that developed 
during the shift. Generally, the on-shift examination included tests 
for methane and oxygen deficiency, an examination for hazardous 
conditions such as adverse roof conditions, and air measurements at 
specified locations.
    Section 303(f) required weekly examinations for hazardous 
conditions, including compliance with the mandatory health or safety 
standards (30 U.S.C. 863(f)). The weekly examination was directed at 
hazards that developed in remote and less frequently traveled areas of 
the mine such as worked-out areas and bleeder entries (areas that carry 
away methane). For example, methane could accumulate in these areas 
which could result in an explosion if not discovered and corrected.
    On November 20, 1970, MSHA issued a final rule for Preshift 
Examination, On-Shift Examinations for Hazardous Conditions, and Weekly 
Examinations for Hazardous Conditions (30 CFR 75.303, 304, and 305 (35 
FR 17890)). The final rule restated the statutory provisions of the 
Coal Act (as retained in the Mine Act).
    On January 27, 1988 (53 FR 2382), MSHA issued a proposed rule to 
revise the requirements for preshift, on-shift, and weekly examinations 
and add a new requirement for supplemental examinations. After 
evaluating the comments, MSHA issued a final rule on May 15, 1992 (57 
FR 20868). Neither the proposed rule nor the final rule included a 
requirement that mine examiners check for violations of mandatory 
health or safety standards.
    On May 19, 1994, MSHA proposed revisions to the preshift 
examination requirement (59 FR 26356) to require that the examination 
include violations of mandatory health or safety standards that could 
result in a hazardous condition. The preamble to the proposed rule 
stated that by placing the mine operator in a proactive rather than a 
reactive role, the proposal would have the potential to enhance safety 
by identifying a condition before a hazard exists.
    MSHA published a final rule on March 11, 1996 (61 FR 97640). In 
response to comments, the final rule did not include the proposed 
requirement that a preshift examination include examining for 
violations of mandatory health or safety standards, stating the 
Agency's intent to focus the attention of the examiner on critical 
areas so that the examiner could identify conditions that pose a hazard 
to miners.

II. Background Information

    Underground coal mines are dynamic work environments where the 
working conditions change rapidly and without warning. Diligent 
compliance with safety and health standards and safety conscious work 
practices provide a substantial measure of protection against mine 
accidents and emergencies.
    Examinations are the first line of defense for miners working in 
underground coal mines and are necessary to protect miners. At the 
beginning of the shift, miners in an underground coal mine are 
particularly vulnerable to hazards and conditions in the workplace that 
developed during the prior shift; the preshift and supplemental 
examinations are intended to protect them. The proposal would require 
that pre-shift and supplemental examinations include violations of 
mandatory health or safety standards. The existing standard requires 
operators to identify and record hazardous conditions. It further 
requires that a hazardous condition be corrected immediately or the 
area remain posted with a conspicuous danger sign where anyone entering 
the area would pass. Under the proposal, MSHA would continue its 
practice under the existing standard that operators prioritize and 
correct violations based on the seriousness of the hazard.
    Under the proposed standards, MSHA intends that examiners who 
conduct on-shift examinations identify and

[[Page 81167]]

correct hazardous conditions and violations of mandatory health or 
safety standards that arise during the miners' shift. MSHA also intends 
that weekly examiners identify and correct hazardous conditions and 
violations of mandatory health or safety standards during their 
required examinations as well. Therefore, MSHA is proposing that all 
required examinations be conducted in an effective and consistent 
manner to assure that hazardous conditions and violations of mandatory 
health or safety standards are timely identified and corrected.
    Consistent with the Mine Act, the proposal would add a requirement 
that examiners conducting preshift, supplemental, on-shift, and weekly 
examinations identify and correct violations of mandatory health or 
safety standards. Under the proposal, operators would also have to 
record these violations, and the actions taken to correct them.
    The proposal would also add a new requirement that mine operators 
review with mine examiners (e.g. the mine foreman, assistant mine 
foreman, or other certified persons) on a quarterly basis all citations 
and orders issued in areas where preshift, supplemental, on-shift, and 
weekly examinations are required. The proposal would require that 
certified mine examiners conduct more complete and thorough 
examinations, thereby providing a greater level of protection for 
underground coal miners.
    MSHA reviewed accident investigation reports and the Agency's 
enforcement data on underground coal mines and concluded that the 
Agency needed to propose changes to the existing examination 
requirements for underground coal mines. By reviewing records and data 
over a 5-year period, MSHA determined that the same types of violations 
of mandatory health or safety standards are found by MSHA inspectors in 
underground coal mines every year. These repeated violations expose 
miners to unnecessary safety and health risks that should be found and 
corrected. Violations for accumulations of combustible materials, 
ventilation and roof control plans, and maintenance of incombustible 
content of rock dust are the top ten cited safety standards year after 
year. These standards accounted for about 40 percent of the total 
violations at underground coal mines in 2009. Under the proposal, MSHA 
intends that an examiner looking for violations of mandatory health or 
safety standards would identify these types of violations. MSHA data 
reveals that citations are routinely issued for improperly constructed 
airlock doors or improperly maintained ventilation controls. Absent 
other conditions, such as an accumulation of combustible materials and 
a misaligned conveyor belt, an operator might not consider these to be 
hazardous conditions. However, conditions in underground coal mines 
change rapidly--roof that appears adequately supported can quickly 
deteriorate and fall; stoppings can crush out and short-circuit air 
currents; conveyor belts can become misaligned or belt roller bearings 
can fail, resulting in an ignition source; and methane can accumulate 
in areas where it may not have been detected. To assure optimum safety 
of miners, it is imperative that operators find violations of health or 
safety standards, correct them, and record corrective actions taken.
    MSHA does not intend that the proposal would significantly change 
the general scope of examinations under the existing standards. 
Examiners would not be required to perform additional tests, take 
additional measurements, or open and examine equipment or boxes. In 
accordance with the proposed rule, mine examiners would have to note 
violations and record them in the examination records and the operator 
would have to assure they are corrected. The top 10 standards cited by 
MSHA inspectors are the types of violations that well-trained and 
qualified examiners can observe while conducting effective 
examinations.

III. Section-by-Section Analysis

A. Section 75.360 Preshift Examination at Fixed Intervals

    The proposed rule would revise the existing preshift examination 
standard to: (1) Add a requirement for operators to check for 
violations of mandatory health or safety standards; (2) require that 
examinations the District Manager may require in other areas of the 
mine include examining for violations of mandatory health or safety 
standards; and (3) expand the existing recordkeeping requirements to 
include violations of mandatory health or safety standards. The 
proposed rule would make conforming changes to the existing requirement 
that allows pumpers, who are certified persons, to perform the preshift 
examination for themselves. Under the proposal, examinations conducted 
by pumpers would include identifying violations of mandatory health or 
safety standards.

B. Section 75.361 Supplemental Examination

    The proposal would revise the supplemental examination standard to 
require the operator to identify violations of mandatory health or 
safety standards. Under the existing standard, before any person enters 
an area that did not have a preshift examination, a certified person 
must perform a supplemental examination to identify hazardous 
conditions. This proposed change would require that examiners 
conducting supplemental examinations identify hazardous conditions and 
violations of mandatory health or safety standards to provide necessary 
protection for miners.

C. Section 75.362 On-Shift Examination

    The proposal would revise the on-shift examination standard to 
require the operator to identify violations of mandatory health or 
safety standards during any shift when anyone is assigned to work on 
the section and where mechanized mining equipment is being installed or 
removed. The existing standard only requires examinations for hazardous 
conditions.

D. Section 75.363 Hazardous Conditions and Violations of Mandatory 
Health or Safety Standards; Posting, Correcting, and Recording

    The proposal would revise the existing standard for correcting, 
posting, and recording hazardous conditions. The proposal would require 
the operator to correct all violations of mandatory health or safety 
standards found during preshift, supplemental, on-shift, and weekly 
examinations. Under the proposal, operators would have to correct 
violations within a reasonable time. For example, during the preshift 
examination, an operator may determine that it is necessary to purchase 
a piece of equipment to fix a violation and that it may take two days 
to get the equipment. Assuming that the violation does not pose a 
hazard to miners, the two days would generally be considered 
reasonable. The existing standard only requires the operator to correct 
hazardous conditions.
    The proposal would also require that violations of mandatory health 
or safety standards found during the examinations, and the corrective 
actions taken, be recorded. The existing standard only requires a 
record for hazardous conditions.
    The proposal would also add a new provision that would require that 
the operator review with mine examiners (e.g. the mine foreman, 
assistant mine foreman, or other certified persons), on a quarterly 
basis, all citations and orders issued in areas where preshift, 
supplemental, on-shift, and weekly examinations are required. This

[[Page 81168]]

proposed requirement is intended so that operators can reinforce with 
all examiners the types of violations and conditions that they should 
be identifying during their examinations to determine if there are 
systemic problems. The proposal would improve the quality of these 
vital examinations and complement an effective mine safety and health 
management program.

E. Section 75.364 Weekly Examination

    The proposal would revise the weekly examination standard to 
require the weekly examiner to identify violations of mandatory health 
or safety standards. Under the existing rule, the weekly examiner is 
required to examine for hazardous conditions. The proposal includes 
conforming changes to the existing requirements related to correcting 
and recording hazardous conditions to require correcting and recording 
violations of mandatory health or safety standards.

F. Rationale for the Proposed Changes

    The proposed changes to all five standards in this rulemaking 
provide a more protective approach to conducting examinations in 
underground coal mines. The proposal would require mine operators to 
identify, correct, and record violations, and record corrective 
actions. Under the existing standards, operators observe conditions and 
only record and note corrective actions for hazardous conditions. The 
conditions that they do not believe are hazardous do not have to be 
recorded or corrected at the time of the examination.
    MSHA reviewed all of the accident investigation reports involving 
fatalities from 2005 through 2009 where an inadequate examination of 
the underground work area was determined to have contributed to the 
accident. In addition, the agency reviewed citations and orders for 
non-fatal accidents for the same period where an inadequate examination 
of the underground work area contributed to the accident. MSHA 
determined that in 20 of these accidents, although the examiner did not 
identify a hazardous condition, the conditions involved a violation of 
a mandatory health or safety standard. Had the examiner identified 
these violations and corrected the conditions, the accident could have 
been prevented. (The details of MSHA's analysis are presented in the 
discussion of benefits.) These accident reports and citation and order 
narratives are included in the rulemaking docket and can be examined at 
the address listed in the ADDRESSES section of this notice. They may 
also be viewed at http://www.msha.gov or http://www.regulations.gov.
    The proposal would require operators to be more proactive in their 
approaches to mine health and safety, and find and fix hazardous 
conditions and violations of mandatory health or safety standards. As a 
result, conditions that might have been identified only by MSHA 
inspectors would now be found and corrected by the operator. Under the 
existing standards violations may go undetected and uncorrected because 
operators do not believe that they constitute hazardous conditions.
    The proposed rule would require the operator to be more proactive 
in creating a culture of safety at the mine. It would enhance miners' 
safety because violations of health or safety standards would be 
identified and corrected, removing many of the conditions that could 
lead to danger in underground coal mines. MSHA solicits comments on 
other alternatives for assuring that operators examine for violations 
of mandatory health or safety standards, record and correct violations, 
and review violations with examiners.

IV. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (E.O.) 12866 (58 FR 51735), a significant 
regulatory action is subject to review by the Office of Management and 
Budget (OMB) and the requirements contained in the Executive Order. 
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.
    The proposed rule does not have an annual effect of $100 million or 
more on the economy and is not an economically ``significant regulatory 
action'' pursuant to section 3(f) of E.O. 12866. The proposed rule 
raises novel, legal or policy issues and is therefore subject to OMB 
review. MSHA requests comments on all the estimates of costs and 
benefits presented in this proposed rule.
    MSHA has not prepared a separate preliminary regulatory economic 
analysis for this rulemaking. Rather, the analysis is presented below.

A. Population at Risk

    The proposed rule applies to all underground coal mines in the 
United States. There are approximately 424 active underground coal 
mines employing 47,204 miners, excluding office workers. Table 1 
presents the number of underground coal mines and employment.

       Table 1--Underground Coal Mines and Miners, 12 Month Average as of January 2010 by Employment Size
----------------------------------------------------------------------------------------------------------------
                                                                                           Total employment at
                                                                                            underground mines,
                           Mine size                            Number of UG coal mines      excluding office
                                                                                                 workers
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................                       81                    1,179
20-500 Employees..............................................                      331                   29,432
501+ Employees................................................                       12                    9,708
Contractors...................................................  .......................                    6,885
                                                               -------------------------------------------------
    Total.....................................................                      424                   47,204
----------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (March 2010).

    Underground coal mines produced an estimated 332 million short tons 
of coal in 2009. The average price of coal in underground mines in 2008 
was $51.35 per short ton (Department of Energy (DOE), Energy 
Information Administration (EIA), Annual Coal Report 2008, October 
2009, Table 28).

[[Page 81169]]

Table 2 presents coal production and estimated revenues for 2009.

           Table 2--Coal Production in Short Tons and Coal Revenues in 2009 for Underground Coal Mines
----------------------------------------------------------------------------------------------------------------
                                                                    Coal production
                           Mine size                               (millions of short    Coal revenue  (millions
                                                                         tones)                of dollars)
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................                      5.0                    258.6
20-500 Employees..............................................                    236.6                 12,147.7
500+ Employees................................................                     90.3                  4,634.6
                                                               -------------------------------------------------
    Total.....................................................                    331.9                17,0401.1
----------------------------------------------------------------------------------------------------------------

B. Benefits

    One of MSHA's primary goals with this rulemaking is to reduce 
violations of mandatory health or safety standards that occur in 
underground coal mines year after year. These violations ultimately 
lead to accidents, injuries and illnesses. This section presents a 
summary of the potential benefits resulting from proposed changes to 
requirements for preshift, supplemental, on-shift, and weekly 
examinations in underground coal mines. To estimate the potential 
benefits, as stated earlier, MSHA reviewed all 64 fatal accident 
investigation reports from 2005 through 2009. In addition, the agency 
reviewed citations and orders for non-fatal accidents for the same 
period where an inadequate examination of the underground work area 
contributed to the accident.
    Over the five year review period, there were 91 fatalities in 
underground coal mines. Of this total, the investigation reports for 15 
of the fatalities specifically listed violations of the preshift, 
supplemental, on-shift, or weekly examinations as contributing factors 
to the accident. While these fatalities involved hazardous conditions 
and should have been prevented by a proper examination in accordance 
with the existing standards, the mine examiners did not identify the 
conditions as being hazardous prior to the fatal accidents. The 
proposed rule would require the identification and correction of 
violations of mandatory health and safety standards, which involves 
less subjective judgment on the part of mine examiners than determining 
whether conditions are hazardous. After analysis of the 15 fatalities, 
MSHA determined that 9 of them involved violations of mandatory health 
or safety standards and could have been prevented by a proper 
examination in accordance with the proposed rule. Thus, MSHA estimates 
that if the violations of mandatory health or safety standards were 
identified as required by the proposed rule, these 9 fatalities, or 
approximately two fatalities per year (9 fatalities/5 years) could have 
been prevented through necessary corrective actions.
    The fatalities reported above specifically listed violations of the 
preshift, supplemental, on-shift, or weekly examinations as 
contributing factors to the accident. MSHA also examined the fatal 
investigation reports that did not list violations of the preshift, 
supplemental, on-shift or weekly examinations as contributing factors 
to the accident to determine if a violation of any of the top 10 cited 
standards were listed as a contributing cause of the accident. MSHA's 
review included the following 10 health and safety standards that are 
most cited by MSHA inspectors year after year:
    <bullet> Sec.  75.202(a). The roof, face, and ribs of areas where 
persons work or travel shall be supported or otherwise controlled to 
protect persons from hazards related to falls of the roof, face or ribs 
and coal or rock bursts.
    <bullet> Sec.  75.220(a)(1). Each mine operator shall develop and 
follow a roof control plan, approved by the District Manager, that is 
suitable to the prevailing geological conditions, and the mining system 
to be used at the mine. Additional measures shall be taken to protect 
persons if unusual hazards are encountered.
    <bullet> Sec.  75.333(h). All ventilation controls, including 
seals, shall be maintained to serve the purpose for which they were 
built.
    <bullet> Sec.  75.370(a)(1). The operator shall develop and follow 
a ventilation plan approved by the district manager. The plan shall be 
designed to control methane and respirable dust and shall be suitable 
to the conditions and mining system at the mine * * *.
    <bullet> Sec.  75.400. Coal dust, including float coal dust 
deposited on rock-dusted surfaces, loose coal, and other combustible 
materials, shall be cleaned up and not be permitted to accumulate in 
active workings, or on diesel-powered and electric equipment therein.
    <bullet> Sec.  75.403. Where rock dust is required to be applied, 
it shall be distributed upon the top, floor, and sides of all 
underground areas of a coal mine and maintained in such quantities that 
the incombustible content of the combined coal dust, rock dust, and 
other dust shall be not less than 65 per centum * * *.
    <bullet> Sec.  75.1403. Other safeguards adequate, in the judgment 
of an authorized representative of the Secretary, to minimize hazards 
with respect to transportation of men and materials shall be provided.
    <bullet> Sec.  75.1722(a). Gears; sprockets; chains; drive, head, 
tail, and take-up pulleys; flywheels; couplings, shafts; saw blades; 
fan inlets; and similar exposed moving machine parts which may be 
contacted by persons, and which may cause injury to persons shall be 
guarded.
    <bullet> Sec.  75.1725(a). Mobile and stationary machinery and 
equipment shall be maintained in safe operating condition and machinery 
and equipment in unsafe condition shall be removed from service 
immediately.
    <bullet> Sec.  75.1731(a). Damaged rollers, or other damaged belt 
conveyor components, which pose a fire hazard must be immediately 
repaired or replaced. All other damaged rollers, or other damaged belt 
conveyor components, must be repaired or replaced.
    Based upon the Agency's review of these reports, MSHA determined 
that three additional fatalities could have been prevented by the 
proposed rule by identifying violations of mandatory health or safety 
standards and making necessary corrective actions. Thus MSHA estimates 
that the proposed rule could have prevented a total of up to 12 
fatalities (nine where an inadequate examination was listed as a 
contributing factor and three where violations of any of the top 10 
cited standards was listed as a contributing factor), or approximately 
five fatalities every two years. During the five-year review period, 
there were 91 fatalities in underground coal mines. MSHA estimates the 
proposed rule could have prevented 13 percent of those fatalities

[[Page 81170]]

(12/91 fatalities). The fatal investigation reports for all 12 
fatalities are included in the rulemaking docket and can be examined at 
the address listed in the ADDRESSES section of this notice. They may 
also be viewed at http://www.msha.gov or http://www.regulations.gov.
    In addition to reducing the number of fatalities, the proposed rule 
would reduce the number of injuries. To estimate the number of injuries 
that would be prevented for the period 2005 through 2009, MSHA reviewed 
the descriptions of 75 accidents involving 90 non-fatal injuries where 
the citation or order listed some combination of an inadequate 
examination or one of the top 10 cited standards as a contributing 
cause of the accident. MSHA determined that the proposed rule would 
have prevented 32 nonfatal injuries. Thus MSHA estimates that the 
proposed rule would have prevented approximately 13 non-fatal injuries 
every two years (32 non-fatal injuries/5 years).
    MSHA believes that the proposed rule would also reduce respirable 
dust exposures in underground coal mines. According to a recent NIOSH 
report:

    Respirable dust exposure has long been known to be a serious 
health threat to workers in many industries. In coal mining, 
overexposure to respirable coal mine dust can lead to coal workers' 
pneumoconiosis (CWP). CWP is a lung disease that can be disabling 
and fatal in its most severe form. In addition, miners can be 
exposed to high levels of respirable silica dust, which can cause 
silicosis, another disabling and/or fatal lung disease. Once 
contracted, there is no cure for CWP or silicosis. The goal, 
therefore, is to limit worker exposure to respirable dust to prevent 
development of these diseases * * *. The tremendous human and 
financial costs resulting from CWP and silicosis in the U.S. 
underground coal mine workforce are shown by the following 
statistics:
    <bullet> During 1970-2004, CWP was a direct or contributing 
cause of 69,377 deaths of U.S. underground coal mine workers.
    <bullet> During 1980-2005, over $39 billion in CWP benefits were 
paid to underground coal miners and their families.
    <bullet> Recent x-ray surveillance data for 2000-2006 show an 
increase in CWP cases. Nearly 8% of examined underground coal miners 
with 25 or more years of experience were diagnosed with CWP * * *.
    Ventilating air to a * * * mining section, whether blowing or 
exhausting, is the primary means of protecting workers from 
overexposure to respirable dust.'' (NIOSH 2010)

    Mine examinations are critical to ensuring that all of the 
requirements in the mine ventilation plan, including the dust control 
plan, are in place and working. Examiners check section and outby 
ventilation controls and the respirable dust control parameters which 
are key factors in reducing miners' exposure to respirable coal mine 
dust. MSHA believes that the proposal could provide better 
identification and correction of violations of the ventilation 
standards. This could lower miners' exposure to respirable coal mine 
dust, thereby lowering the incidence of black lung and other 
respiratory diseases. However, MSHA is addressing reducing miners' 
exposure to respirable coal mine dust in a separate rulemaking (RIN 
1219-AB64, 75 FR 64412). Due to lack of data, MSHA is unable to 
incrementally quantify the reduced incidence of disease attributable to 
this proposed rule alone. The number of fatalities and injuries that 
may be prevented by this proposed rule may be understated or 
overstated. MSHA requests comments on the Agency's estimate of 
benefits, as well as supporting data.
    Below MSHA provides estimates monetizing the potential benefits of 
the proposed rule for informational purposes only. Under the Mine Act, 
MSHA is not required to use monetized benefits or estimated net 
benefits as the basis for its decision.
    MSHA based its estimates of the monetary values for the benefits 
associated with the proposed rule on relevant literature. To estimate 
the monetary values of these reductions in cases, MSHA performed an 
analysis of the imputed value of fatalities avoided based on a 
willingness-to-pay approach. This approach relies on the theory of 
compensating wage differentials (i.e., the wage premium paid to workers 
to accept the risk associated with various jobs) in the labor market. A 
number of studies have shown a correlation between higher job risk and 
higher wages, suggesting that employees demand monetary compensation in 
return for incurring a greater risk of injury or fatality.
    Viscusi & Aldy (2003) conducted an analysis of studies that use a 
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and found that each fatality 
avoided was valued at approximately $7 million and each lost work-day 
injury was approximately $50,000 in 2000 dollars. Using the GDP 
Deflator (U.S. Bureau of Economic Analysis, 2010), this yields an 
estimate of $8.7 million for each fatality avoided and $62,000 for each 
injury avoided in 2009 dollars. This value of a statistical life (VSL) 
estimate is within the range of the substantial majority of such 
estimates in the literature ($1 million to $10 million per statistical 
life), as discussed in OMB Circular A-4 (OMB, 2003).
    Although MSHA is using the Viscusi & Aldy (2003) study as the basis 
for monetizing the expected benefits of the proposed rule, the Agency 
does so with several reservations, given the methodological 
difficulties involved in estimating the compensating wage differentials 
(see Hintermann, Alberini and Markandya, 2008). Furthermore, these 
estimates pooled across different industries may not capture the unique 
circumstances faced by coal miners. For example, some have suggested 
that VSL models be disaggregated to account for different levels of 
risk, as might occur in coal mining (see Sunstein, 2004). In addition, 
coal miners may have few options of alternative employers and in some 
cases only one employer (near-monopsony or monopsony) that may depress 
wages below those in a more competitive labor market.
    MSHA recognizes that monetizing the VLS is difficult and involves 
uncertainty and imprecision. In the future, MSHA plans to work with 
other agencies to refine the approach taken in this proposed rule.
    Based upon the estimated prevention of 2.4 fatalities and 6.4 lost-
time injuries per year, MSHA estimates that the proposed rule could 
result in monetized benefits of up to $21.3 million per year (2.4 x 
$8.7 million + 6.4 x $62,000).

C. Compliance Costs

                       Table 3--Summary of Annual Costs to Underground Coal Mine Operators
----------------------------------------------------------------------------------------------------------------
                                                                Number of employees
                   Requirement                   ------------------------------------------------     Totals
                                                       1-19           20-500           501+
----------------------------------------------------------------------------------------------------------------
75.360 PreShift Exam............................        $690,000      $8,410,000        $530,000      $9,630,000
75.361 Supplemental Exam........................           3,000          70,000           3,000          76,000
75.362 On-Shift Exam............................         340,000       4,210,000         270,000       4,820,000
75.363(e) Review of Citations and Orders........          24,000         411,000          92,000         557,000

[[Page 81171]]

 
75.364 Weekly Exam..............................          36,000         150,000           5,000         191,000
                                                 ---------------------------------------------------------------
    Totals......................................       1,093,000      13,281,000         900,000      15,274,000
----------------------------------------------------------------------------------------------------------------

    Based on experience, MSHA estimates the preshift and on-shift 
examinations would be conducted by a supervisory certified examiner 
(paid an hourly rate of $84.70, including benefits). The supplemental 
and weekly examinations would be conducted by non-supervisory certified 
examiners (paid an hourly rate of $35.30, including benefits).
Preshift Examination at Fixed Intervals--Proposed Sec.  75.360
    Under existing Sec.  75.360, MSHA estimated that it would take an 
examiner at a typical small mine 2 hours to complete a preshift 
examination and an examiner at a typical large mine 3 hours to complete 
the preshift examination. Proposed Sec.  75.360 would require examiners 
conducting preshift examinations to identify violations of mandatory 
health or safety standards, and record the violations found along with 
the corrective actions taken. Based upon Agency data and experience, 
MSHA estimates that it would take a certified examiner, earning a 
supervisory wage of $84.70 an hour (includes benefits), an additional 
30 minutes (0.5 hrs) per preshift examination to identify violations 
and record them along with the corrective actions taken. MSHA estimates 
that mines with 1-19 employees operate 200 days per year; 20-500 
employees, 300 days per year; and 501+ employees, 350 days per year. 
MSHA also estimates there would be 1 exam per day at mines with 1-19 
employees, 2 exams per day at mines with 20-500 employees, and 3 exams 
per day at mines with 501+ employees.
    This would result in estimated costs of $9.6 million: $686,100 in 
mines with 1-19 employees (81 mines x 1 exam per day x 200 days a year 
x 0.5 hours x $84.70 per hour); $8.4 million in mines with 20-500 
employees (331 mines x 2 exams per day x 300 days a year x 0.5 hours x 
$84.70 per hour); and $533,600 in mines with 501+ employees (12 mines x 
3 exams per day x 350 days a year x 0.5 hours x $84.70 per hour).
Supplemental Examination--Proposed Sec.  75.361
    Under existing Sec.  75.361, MSHA estimated that it would take an 
examiner at a typical mine 0.5 hours to complete a supplemental 
examination. Proposed Sec.  75.361 would require examiners conducting 
supplemental examinations to identify violations of mandatory health or 
safety standards. Based upon Agency data and experience, MSHA estimates 
that it would take a certified examiner, earning a non-supervisory wage 
of $35.30 an hour (includes benefits), an additional 15 minutes (0.25 
hrs.) to identify and record violations of mandatory health or safety 
standards and the corrective actions taken. Supplemental examinations 
are only performed in areas where a preshift examination has not been 
conducted. MSHA estimates that examiners would perform supplemental 
examinations 4 times per year at mines with 1-19 employees and 24 times 
per year at mines with 20-500 employees and 501+ employees.
    This would result in estimated costs of $75,500: $2,900 in mines 
with 1-19 employees (81 mines x 4 exams per mine x 0.25 hours per exam 
x $35.30 per hour); $70,100 in mines with 20-500 employees (331 mines x 
24 exams per mine x 0.25 hours per exam x $35.30 per hour); and $2,500 
in mines with 501 + employees (12 mines x 24 exams per mine x 0.25 
hours per exam x $35.30 per hour).
On-shift Examination--Proposed Sec.  75.362
    Under existing Sec.  75.362, MSHA estimated that it would take an 
examiner at a typical small mine 450 minutes (0.67 hours) to complete 
an on-shift examination and an examiner at a typical large mine 45 
minutes (0.75 hours) to complete the on-shift examination. Proposed 
Sec.  75.362 would require examiners conducting on-shift examinations 
to identify violations of mandatory health or safety standards. Based 
upon Agency data and experience, MSHA estimates that it would take a 
certified examiner, earning a supervisory wage of $84.70 an hour 
(includes benefits), an additional 15 minutes (0.25 hrs.) to identify 
and record violations of mandatory health or safety standards and the 
corrective actions taken. On-shift examinations are performed during 
each working shift. MSHA estimates that there is 1 shift per day at 
mines with 1-19 employees; 2 shifts per day at mines with 20-500 
employees; and 3 shifts per day at mines with 501+ employees. MSHA 
estimates that mines with 1-19 employees operate 200 days per year; 20-
500 employees, 300 days per year; and 501+ employees, 350 days per 
year.
    This would result in estimated costs of $4.8 million: $343,000 in 
mines with 1-19 employees (81 mines x 1 shift per day x 200 days per 
year x 0.25 hours per shift x $84.70 per hour); $4.2 million in mines 
with 20-500 employees (331 mines x 2 shifts per day x 300 days per year 
x 0.25 hours per shift x $84.70 per hour); and $266,800 in mines with 
501 + employees (12 mines x 3 shifts per day x 350 days per year x 0.25 
hours per shift x $84.70 per hour).
Hazardous Conditions and Violations of Mandatory Health or Safety 
Standards; Posting, Correcting and Recording--Proposed Sec.  75.363(b)
    Proposed Sec.  75.363 would require examiners to record violations 
of mandatory health or safety standards and the corrective actions 
taken for supplemental and on-shift examinations. The costs associated 
with this proposed requirement are included in cost estimates for 
proposed Sec. Sec.  75.361 and 75.362 above.
Review of Citations and Orders--Proposed Sec.  75.363(e)
    Proposed Sec.  75.363(e) is a new requirement that would require 
the operator to review with mine examiners (e.g. the mine foreman, 
assistant mine foreman, or other certified persons) on a quarterly 
basis citations and orders issued in areas where preshift, 
supplemental, on-shift, and weekly examinations are required. Based 
upon Agency data and experience, MSHA estimates that 80 percent of 
underground coal mine operators currently discuss violations with 
examiners; therefore, approximately 20 percent (84 agents of the 
operators, 641 examiners for preshift and on-shift examinations, and 
158 examiners for weekly and supplemental examinations) would need to 
review the citations and orders as follows: 16 agents, 49 preshift

[[Page 81172]]

and on-shift examiners, and 16 weekly and supplemental examiners in 
mines with 1-19 employees; 66 agents, 530 preshift and on-shift 
examiners, and 132 weekly and supplemental examiners in mines with 20-
500 employees; and 2 agents, 62 preshift and on-shift examiners, and 10 
weekly and supplemental examiners in mines with 501+ employees. MSHA 
also estimates that these reviews would take 1 hour in mines with 1-19 
employees, 2 hours in mines with 20-500 employees, and 4 hours in mines 
with 501+ employees.
    Examiners on preshift and on-shift exams are supervisors earning an 
hourly wage of $84.70 and examiners on weekly and supplemental exams 
are certified examiners earning an hourly wage of $35.30. MSHA 
estimates the operator's agent conducting the review earns an hourly 
wage of $84.70.
    This would result in estimated costs of $557,000: $24,000 in mines 
with 1-19 employees [((16 agents + 49 examiners) x $84.70) x (4 
meetings x 1 hour)] + [(16 examiners x $35.30) x (4 meetings x 1 
hour)]; $441,000 in mines with 20-500 employees [((66 agents + 530 
examiners) x $84.70) x (4 meetings x 2 hours)] + [(132 examiners x 
35.30) x (4 meetings x 2 hours)]; and $92,000 in mines with 501+ 
employees [((2 agents + 62 examiners) x $84.70) x (4 meetings x 4 
hours)] + [(10 examiners x $35.30) x (4 meetings x 4 hours)].
Weekly Examination--Proposed Sec.  75.364
    Under existing Sec.  75.364, MSHA estimated that it would take an 
examiner at a typical small mine 5.1 hours to complete a weekly 
examination and an examiner at a typical large mine 10.2 hours to 
complete the weekly examination. Proposed Sec.  75.364 would require 
operators to conduct examinations at least every seven days to identify 
violations of mandatory health or safety standards and record the 
corrective actions taken. These examinations mainly take place in 
worked-out areas of the mine where violations of mandatory health or 
safety standards are less likely to occur. Based upon Agency data and 
experience, MSHA estimates that it would take a certified examiner, 
earning a non-supervisory wage of $35.30 an hour (includes benefits), 
an additional 15 minutes (0.25 hrs.) to identify and record violations 
of mandatory health or safety standards and the corrective actions 
taken. MSHA also estimates that, on average, mines operate for 50 weeks 
out of the year.
    This would result in estimated costs of $187,100: $35,700 in mines 
with 1-19 employees (81 mines x 50 weeks x 0.25 hours per week x $35.30 
per hour); $146,100 in mines with 20-500 employees (331 mines x 50 
weeks x 0.25 hours per week x $35.30 per hour); and $5,300 in mines 
with 501+ employees (12 mines x 50 weeks x 0.25 hours per week x $35.30 
per hour).
Corrective Actions
    MSHA's estimates do not include the costs of any corrective actions 
that would be necessary to come into compliance with the underlying 
regulatory requirements. These costs were included in MSHA's estimates 
associated with existing regulations and are not new compliance costs 
resulting from the proposed rule. Rather than waiting for violations to 
be either identified by a MSHA inspector or rise to the level of a 
hazardous condition and be identified by a mine examiner, the proposed 
rule would require mine operators to identify violations of mandatory 
health and safety standards during the mine examinations. This would 
prevent some accidents because mine operators would be required to take 
corrective actions earlier than under the existing standards, i.e., 
before a hazardous condition develops. Although the proposed rule would 
result in operators taking corrective actions sooner, it would not 
increase the costs of the corrective actions. Under MSHA's 
requirements, if cited, operators must correct a violation of a 
mandatory health or safety standard (such as removing coal dust 
accumulations from conveyor belts or maintaining equipment in safe 
operating condition) in order to abate the citation.
    MSHA requests comments on the Agency's estimate of costs, as well 
as supporting data.

V. Feasibility

    MSHA has concluded that the requirements of the proposed rule are 
technologically and economically feasible. The existing regulations 
require mine operators to perform the examinations to identify 
hazardous conditions. The proposed rule would expand the requirement to 
include identifying violations of mandatory health or safety standards.

A. Technological Feasibility

    MSHA concludes that the proposed rule is technologically feasible 
because it would simply require operators to identify, record and 
correct violations of mandatory health or safety standards. There are 
no technology issues raised by the proposed rule.

B. Economic Feasibility

    MSHA concludes that the proposed rule is economically feasible. The 
U.S. underground coal sector produced an estimated 332 million short 
tons of coal in 2009. Multiplying the production by the 2008 price of 
underground coal of $51.35 per short ton yields estimated 2009 
underground coal revenues of approximately $17 billion. MSHA estimated 
the yearly compliance cost of the proposed rule to be $15.3 million, 
which is 0.09 percent of revenues ($15.3 million/$17 billion) for 
underground coal mines. MSHA has traditionally used a revenue screening 
test--whether the yearly compliance costs of a regulation are less than 
1 percent of revenues--to establish presumptively that compliance with 
the regulation is economically feasible for the mining community.

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

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the impact of the proposed rule on small 
businesses. Based on that analysis, MSHA has notified the Chief Counsel 
for Advocacy, Small Business Administration, and made the certification 
under the Regulatory Flexibility Act at 5 U.S.C. 605(b) that the 
proposed rule will not have a significant economic impact on a 
substantial number of small entities. The factual basis for this 
certification is presented below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of the proposed rule on 
small entities, MSHA must use the Small Business Administration (SBA) 
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 taken such an action and hence is 
required to use the SBA definition. The SBA defines a small entity in 
the mining industry as an establishment with 500 or fewer employees.
    In addition to examining small entities as defined by SBA, MSHA has 
also looked at the impact of this proposed rule on underground coal 
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

[[Page 81173]]

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 cost of complying with the proposed rule and 
the impact of the proposed rule on small mines will also be different. 
It is for this reason that small mines are of special concern to MSHA.
    MSHA concludes that it can certify that the proposed rule will not 
have a significant economic impact on a substantial number of small 
entities that are covered by this proposed rule. The Agency has 
determined that this is the case both for mines with fewer than 20 
employees and for mines with 500 or fewer employees.

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 a further 
analysis is required.
    For underground coal mines, the estimated preliminary 2009 
production was approximately 5 million tons for mines that had fewer 
than 20 employees and 242 million tons for mines that had 500 or fewer 
employees. Using the 2008 price of underground coal of $51.35 per short 
ton and total 2009 coal production in short tons, underground coal 
revenues are estimated to be approximately $258.6 million for mines 
employing fewer than 20 employees and $12.4 billion for mines employing 
500 or fewer employees. The annual cost of the proposed rule for mines 
that have fewer than 20 employees is 0.43 percent ($1.1 million/$258.6 
million) of annual revenues, and the annual cost of the proposed rule 
for mines that have 500 or fewer employees is 0.12 percent ($14.4 
million/$12.4 billion) of annual revenues. Using either MSHA's 
traditional definition of a small mine (one having fewer than 20 
employees) or SBA's definition of a small mine (one having 500 or fewer 
employees), the yearly costs for underground coal mines to comply with 
the proposed rule will be less than 1 percent of their estimated 
revenues. Accordingly, MSHA has certified that the proposed rule will 
not have a significant impact on a substantial number of small entities 
that are covered by the proposed rule.

VII. Paperwork Reduction Act of 1995

A. Summary

    This proposed rule contains changes that would affect the burden in 
an existing paperwork package with OMB Control Number 1219-0088. The 
proposed rule also contains a new burden for collection requirements 
which is shown in Table 5. The proposed rule would result in 13,257 
burden hours and related costs of approximately $1 million annually.

                                   Table 5--Summary of Burden Hours and Costs
----------------------------------------------------------------------------------------------------------------
                          Requirement                                 Burden hours                 Cost
----------------------------------------------------------------------------------------------------------------
75.360 PreShift exam..........................................                   11,370                 $963,039
75.363 Record of Hazards......................................                      827                   61,649
75.364 Weekly exam............................................                    1,060                   37,418
                                                               -------------------------------------------------
    Totals....................................................                   13,257                1,062.106
----------------------------------------------------------------------------------------------------------------

Proposed Sec.  75.360--Burden to Make a Record of the Preshift 
Examination
    Proposed Sec.  75.360 would require operators to record any 
violations of mandatory health or safety standards found along with the 
corrective actions taken. MSHA estimates that it would take a certified 
examiner an average of 3 minutes (0.05 hrs.) out of the total time 
needed to perform the examination to record the violations along with 
any corrective actions taken. An examiner conducting a preshift exam 
earns a supervisory wage of $84.70 an hour (includes benefits). MSHA 
estimates that mines with 1-19 employees operate 200 days per year, 
mines with 20-500 employees operate 300 days per year, and mines with 
501+ employees operate 350 days per year. MSHA also estimates there 
will be 1 exam per day at mines with 1-19 employees, 2 exams per day at 
mines with 20-500 employees, and 3 exams per day at mines with 501+ 
employees.
    MSHA's estimates of underground coal operators' annual burden hours 
and related costs are presented below.
Burden Hours
<bullet> 81 mines x 1 exam x 200 days x 0.05 hrs. = 810 hrs.
<bullet> 331 mines x 2 exams x 300 days x 0.05 hrs. = 9,930 hrs.
<bullet> 12 mines x 3 exams x 350 days x 0.05 hrs. = 630 hrs.
    Total Hours = 11,370 hrs.
Burden Costs
<bullet> 11,370 hrs. x $84.70 per hour = $963,039.
Proposed Sec.  75.363--Burden To Make a Record of Violations Found
    Proposed Sec.  75.363 would require operators to record any 
violations of mandatory health or safety standards found on 
supplemental and on-shift examinations and any corrective actions 
taken. The proposed preshift (Sec.  75.360) and weekly (Sec.  75.364) 
examinations have their own recordkeeping requirements. The proposed 
supplemental (Sec.  75.361) and on-shift (Sec.  75.362) standards would 
contain new recordkeeping requirements if a violation of a mandatory 
health or safety standard is found. The recordkeeping for these 
proposed standards would be recorded under proposed Sec.  75.363.
    During FY 2005 through 2009, MSHA inspectors found an annual 
average of 22,062 violations of the top 10 cited standards MSHA 
believes are most likely to be identified on preshift, supplemental, 
on-shift, and weekly examinations (see Section IV.B.). Because 
conditions resulting in these violations can occur and require 
corrective action multiple times during the year (e.g., insufficient 
rock dust), MSHA multiplied the 22,062 violations found by MSHA 
inspectors by a factor of 1.5 to arrive at an estimated 33,093 
violations that could be found by mine examiners. MSHA assumes that 
half of these violations, 16,547 violations, would be identified on the 
preshift and weekly examinations and the other half would be identified 
on supplemental and on-shift examinations.
    Thus, MSHA estimates that the supplemental and on-shift examiners 
would find approximately 39 violations per year per mine (16,547 
violations/424 mines). MSHA estimates that 80 percent

[[Page 81174]]

of these (31 violations) would be found on the on-shift examinations 
and 20 percent (8 violations) would be found on the supplemental 
examinations. MSHA estimates that it would take 3 minutes (0.05 hrs.) 
to record any violations identified and the corrective actions taken. 
Supervisors earning $84.70 an hour perform on-shift exams and certified 
examiners earning $35.30 perform weekly exams.
    MSHA's estimates of underground coal operators' annual burden hours 
and related costs are presented below.
Burden Hours
<bullet> 424 mines x 31 violations x 0.05 hrs. = 657 hrs.
<bullet> 424 mines x 8 violations x 0.05 hrs. = 170 hrs.
    Total Hours = 827 hrs.
Burden Costs
<bullet> 657 hrs. x $84.70 wage rate = $55,648.
<bullet> 170 hrs. x $35.30 wage rate = $6,001.
    Total burden cost = $61,649.
Proposed Sec.  75.364--Burden To Make a Record of the Weekly 
Examinations
    Proposed Sec.  75.364 would require operators to conduct 
examinations every seven days to record violations of mandatory health 
or safety standards found and the corrective actions taken. MSHA 
estimates that it would take a certified examiner 3 minutes (0.05 hrs.) 
out of the total time needed to perform the examinations to record 
violations and any corrective actions taken. An examiner conducting 
these examinations earns a non-supervisory wage of $35.30 an hour 
(includes benefits). MSHA also estimates that, on average, mines 
operate for 50 weeks out of the year.
    MSHA's estimates of underground coal operators' annual burden hours 
and related costs are presented below.
Burden Hours
    <bullet> 424 mines x 50 weeks x 0.05 hrs. = 1,060 hrs.
Burden Costs
    <bullet> 1,060 hrs. x $35.30 wage rate = $37,418

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. The regulated community is not 
required to respond to any collection of information unless it displays 
a current, valid, OMB control number. MSHA displays the OMB control 
numbers for the information collection requirements in its regulations 
in 30 CFR part 3.

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 
in any one year or significantly or uniquely affect small governments. 
Accordingly, the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et 
seq.) requires no further agency action or analysis.

B. Executive Order 13132: Federalism

    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, under E.O. 13132, no further Agency 
action or analysis is required.

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

    Section 654 of the Treasury and General Government Appropriations 
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. This proposed rule impacts only the 
underground coal mine industry. Accordingly, MSHA certifies that this 
proposed rule would not impact family well-being.

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

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

E. Executive Order 12988: Civil Justice Reform

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

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

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

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

    This proposed rule does not have ``tribal implications'' because it 
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, under E.O. 
13175, no further Agency action or analysis is required.

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

    Executive Order 13211 requires agencies to publish a statement of 
energy effects when a rule has a significant energy action that 
adversely affects energy supply, distribution or use. MSHA has reviewed 
this proposed rule for its energy effects because the proposed rule 
applies to the underground coal mining sector. Because this proposed 
rule will result in yearly costs of approximately $15.3 million to the 
underground coal mining industry, relative to annual revenues of $17 
billion in 2009, 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.

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

    MSHA has thoroughly reviewed the proposed rule to assess and take 
appropriate account of its potential

[[Page 81175]]

impact on small businesses, small governmental jurisdictions, and small 
organizations. MSHA has determined and certified that the proposed rule 
does not have a significant economic impact on a substantial number of 
small entities.

IX. References

Hintermann, B., Alberini, A., and Markandya, A. (2010). ``Estimating 
the Value of Safety with Labor Market Data: Are the Results 
Trustworthy?'' Applied Economics, pages 1085-1100. Published 
electronically in July 2008.
Sunstein, C. (2004). ``Valuing Life: A Plea for Disaggregation.'' 
Duke Law Journal, 54 (November 2004): 385-445.
U.S. Bureau of Economic Analysis (2010). ``National Income and 
Product Accounts Table: Table 1.1.9. Implicit Price Deflators for 
Gross Domestic Product'' [Index numbers, 2005 = 100]. Revised May 
27, 2010. http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=13&Freq=Qtr&FirstYear=2006&LastYear=2008
U.S. Department of Health and Human Services, Public Health Service, 
Centers for Disease Control and Prevention, National Institute for 
Occupational Safety and Health (NIOSH 2010), ``Best Practices for 
Dust Control in Coal Mining'', DHHS (NIOSH) Publication No. 2010-
110, Information Circular 9517, Jan 2010:1-76
Viscusi, W. & Aldy, J. (2003) ``The Value of a Statistical Life: A 
Critical Review of Market Estimates Throughout the World'', Journal 
of Risk and Uncertainty, (27:5-76).

List of Subjects in 30 CFR Part 75

    Mine safety and health, Underground coal mines, Ventilation.

    Dated: December 21, 2010.
Joseph A. Main,
Assistant Secretary 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, Chapter I of 
Title 30, part 75 of the Code of Federal Regulations is proposed to be 
amended as follows:

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

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

    Authority: 30 U.S.C. 811, 863.

Subpart D--Ventilation

    2. Paragraphs (a)(2), (b) introductory text, (e), and (g) of Sec.  
75.360 are revised to read as follows:


Sec.  75.360  Preshift examination at fixed intervals.

    (a) * * *
    (2) Preshift examinations of areas where pumpers are scheduled to 
work or travel shall not be required prior to the pumper entering the 
areas if the pumper is a certified person and the pumper conducts an 
examination for hazardous conditions and violations of mandatory health 
or safety standards, tests for methane and oxygen deficiency, and 
determines if the air is moving in its proper direction in the area 
where the pumper works or travels. The examination of the area must be 
completed before the pumper performs any other work. A record of all 
hazardous conditions and violations of mandatory health or safety 
standards found by the pumper shall be made and retained in accordance 
with Sec.  75.363 of this part.
    (b) The person conducting the preshift examination shall examine 
for hazardous conditions and violations of mandatory health or safety 
standards, test for methane and oxygen deficiency, and determine if the 
air is moving in its proper direction at the following locations:
* * * * *
    (e) The district manager may require the certified person to 
examine other areas of the mine or examine for other hazards and 
violations of mandatory health or safety standards during the preshift 
examination.
* * * * *
    (g) Recordkeeping. A record of the results of each preshift 
examination, including a record of hazardous conditions and violations 
of mandatory health or safety standards and their locations found by 
the examiner during each examination and of the results and locations 
of air and methane measurements, shall be made on the surface before 
any persons, other than certified persons conducting examinations 
required by this subpart, enter any underground area of the mine. The 
results of methane tests shall be recorded as the percentage of methane 
measured by the examiner. The record shall be made by the certified 
person who made the examination or by a person designated by the 
operator. If the record is made by someone other than the examiner, the 
examiner shall verify the record by initials and date by or at the end 
of the shift for which the examination was made. A record shall also be 
made by a certified person of the action taken to correct hazardous 
conditions and violations of mandatory health or safety standards found 
during the preshift examination. All preshift and corrective action 
records shall be countersigned by the mine foreman or equivalent mine 
official by the end of the mine foreman's or equivalent mine official's 
next regularly scheduled working shift. The records required by this 
section shall be made in a secure book that is not susceptible to 
alteration or electronically in a computer system so as to be secure 
and not susceptible to alteration.
* * * * *
    3. Paragraph (a) of Sec.  75.361 is revised to read as follows:


Sec.  75.361  Supplemental examination.

    (a) Except for certified persons conducting examinations required 
by this subpart, within 3 hours before anyone enters an area in which a 
preshift examination has not been made for that shift, a certified 
person shall examine the area for hazardous conditions and violations 
of mandatory health or safety standards, determine whether the air is 
traveling in its proper direction and at its normal volume, and test 
for methane and oxygen deficiency.
* * * * *
    4. Paragraphs (a)(1) and (b) of Sec.  75.362 are revised to read as 
follows:


Sec.  75.362  On-shift examination.

    (a)(1) At least once during each shift, or more often if necessary 
for safety, a certified person designated by the operator shall conduct 
an on-shift examination of each section where anyone is assigned to 
work during the shift and any area where mechanized mining equipment is 
being installed or removed during the shift. The certified person shall 
check for hazardous conditions and violations of mandatory health or 
safety standards, test for methane and oxygen deficiency, and determine 
if the air is moving in its proper direction.
* * * * *
    (b) During each shift that coal is produced, a certified person 
shall examine for hazardous conditions and violations of mandatory 
health or safety standards along each belt conveyor haulageway where a 
belt conveyor is operated. This examination may be conducted at the 
same time as the preshift examination of belt conveyors and belt 
conveyor haulageways, if the examination is conducted within 3 hours 
before the oncoming shift.
* * * * *
    5. In Sec.  75.363, new paragraph (e) is added, and the section 
heading and paragraphs (a) and (b) are revised to read as follows:

[[Page 81176]]

Sec.  75.363  Hazardous conditions and violations of mandatory health 
or safety standards; posting, correcting, and recording.

    (a) Any hazardous condition found by the mine foreman or equivalent 
mine official, assistant mine foreman or equivalent mine official, or 
other certified persons designated by the operator for the purposes of 
conducting examinations under this subpart D, shall be posted with a 
conspicuous danger sign where anyone entering the areas would pass. A 
hazardous condition shall be corrected immediately or the area shall 
remain posted until the hazardous condition is corrected. If the 
condition creates an imminent danger, everyone except those persons 
referred to in section 104(c) of the Act shall be withdrawn from the 
area affected to a safe area until the hazardous condition is 
corrected. Only persons designated by the operator to correct or 
evaluate the condition may enter the posted area. Any violation of a 
mandatory health or safety standard found during a preshift 
examination, a supplemental examination, an on-shift examination, or a 
weekly examination shall be corrected.
    (b) A record shall be made of any hazardous condition and any 
violation of a mandatory health or safety standard found. This record 
shall be kept in a book maintained for this purpose on the surface at 
the mine. The record shall be made by the completion of the shift on 
which the hazardous condition or violation of a mandatory health or 
safety standard is found and shall include the nature and location of 
the hazardous condition or violation of the mandatory health or safety 
standard and the corrective action taken. This record shall not be 
required for shifts when no hazardous conditions or violations of 
mandatory health or safety standards are found, or for hazardous 
conditions and violations of mandatory health or safety standards found 
during the preshift or weekly examinations inasmuch as these 
examinations have separate recordkeeping requirements.
* * * * *
    (e) Review of citations and orders. The mine operator shall review 
with mine examiners on a quarterly basis citations and orders issued in 
areas where preshift, supplemental, on-shift, and weekly examinations 
are required.
    6. The introductory text of paragraph (b) and paragraphs (d) and 
(h) of Sec.  75.364 are revised to read as follows:


Sec.  75.364  Weekly examination.

* * * * *
    (b) Hazardous conditions and violations of mandatory health or 
safety standards. At least every 7 days, an examination for hazardous 
conditions and violations of mandatory health or safety standards at 
the following locations shall be made by a certified person designated 
by the operator:
* * * * *
    (d) Hazardous conditions shall be corrected immediately. If the 
condition creates an imminent danger, everyone except those persons 
referred to in section 104(c) of the Act shall be withdrawn from the 
area affected to a safe area until the hazardous condition is 
corrected. Any violation of a mandatory health or safety standard found 
during a weekly examination shall be corrected.
* * * * *
    (h) Recordkeeping. At the completion of any shift during which a 
portion of a weekly examination is conducted, a record of the results 
of each weekly examination, including a record of hazardous conditions 
and violations of mandatory health or safety standards found during 
each examination and their locations, the corrective action taken, and 
the results and location of air and methane measurements, shall be 
made. The results of methane tests shall be recorded as the percentage 
of methane measured by the examiner. The record shall be made by the 
person making the examination or a person designated by the operator. 
If made by a person other than the examiner, the examiner shall verify 
the record by initials and date by or at the end of the shift for which 
the examination was made. The record shall be countersigned by the mine 
foreman or equivalent mine official by the end of the mine foreman's or 
equivalent mine official's next regularly scheduled working shift. The 
records required by this section shall be made in a secure book that is 
not susceptible to alteration or electronically in a computer system so 
as to be secure and not susceptible to alteration.
* * * * *
[FR Doc. 2010-32410 Filed 12-22-10; 11:15 am]
BILLING CODE 4510-43-P


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