Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 81165 

52 13 CFR 121.101 

53 13 CFR 121.201, Sector 22, Utilities & n. 1. 

business.52 The SBA has established a 

size standard for electric utilities, 

stating that a firm is small if, including 

its affiliates, it is primarily engaged in 

the transmission, generation and/or 

distribution of electric energy for sale 

and its total electric output for the 

preceding twelve months did not exceed 

four million megawatt hours.53 The RFA 

is not implicated by this proposed rule 

because the modification discussed 

herein will not have a significant 

economic impact on a substantial 

number of small entities. Moreover, the 

proposed Reliability Standards reflect a 

continuation of existing requirements 

for these reliability entities. 

Accordingly, no regulatory flexibility 

analysis is required. 

VI. Comment Procedures 

59. The Commission invites interested 

persons to submit comments on the 

matters and issues proposed in this 

notice to be adopted, including any 

related matters or alternative proposals 

that commenters may wish to discuss. 

Comments are due February 25, 2011. 

Comments must refer to Docket No. 

RM09–14–000, and must include the 

commenter’s name, the organization 

they represent, if applicable, and their 

address in their comments. 

60. The Commission encourages 

comments to be filed electronically via 

the eFiling link on the Commission’s 

Web site at http://www.ferc.gov. The 

Commission accepts most standard 

word processing formats. Documents 

created electronically using word 

processing software should be filed in 

native applications or print-to-PDF 

format and not in a scanned format. 

Commenters filing electronically do not 

need to make a paper filing. 

61. Commenters unable to file 

comments electronically must mail or 

hand deliver an original copy of their 

comments to: Federal Energy Regulatory 

Commission, Secretary of the 

Commission, 888 First Street, NE., 

Washington, DC 20426. 

62. All comments will be placed in 

the Commission’s public files and may 

be viewed, printed, or downloaded 

remotely as described in the Document 

Availability section below. Commenters 

on this proposal are not required to 

serve copies of their comments on other 

commenters. 

VII. Document Availability 

63. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the Internet through the 

Commission’s Home Page (http:// 

www.ferc.gov) and in the Commission’s 

Public Reference Room during normal 

business hours (8:30 a.m. to 5 p.m. 

Eastern time) at 888 First Street, NE., 

Room 2A, Washington DC 20426. 

64. From the Commission’s Home 

Page on the Internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number excluding the 

last three digits of this document in the 

docket number field. 

65. User assistance is available for 

eLibrary and the Commission’s Web site 

during normal business hours from 

FERC Online Support at 202–502–6652 

(toll free at 1–866–208–3676) or e-mail 

at ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202) 502–8659. E-mail the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

List of Subjects in 18 CFR Part 40 

Electric power, Electric utilities, 

Reporting and recordkeeping 

requirements. 

By direction of the Commission. 

Kimberly D. Bose, 

Secretary. 

[FR Doc. 2010–32357 Filed 12–23–10; 8:45 am] 

BILLING CODE 6717–01–P 

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. 

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: zzMSHAComments@dol.gov. 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 silvey.patricia@dol.gov (email), (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 


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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 


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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, onshift, 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 onshift 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 


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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

Mine size Number of UG coal 

mines 

Total employment at underground 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). 


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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

Mine size Coal production 

(millions of short tones) 

Coal revenue 

(millions 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: 

• § 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. 

• § 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. 

• § 75.333(h). All ventilation controls, 

including seals, shall be maintained to 

serve the purpose for which they were 

built. 

• § 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 * * *. 

• § 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 dieselpowered and electric equipment 

therein. 

• § 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 * * *. 

• § 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. 

• § 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. 

• § 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. 

• § 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 


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(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: 

• During 1970–2004, CWP was a direct or 

contributing cause of 69,377 deaths of U.S. 

underground coal mine workers. 

• During 1980–2005, over $39 billion in 

CWP benefits were paid to underground coal 

miners and their families. 

• 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 lifesaving 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 (nearmonopsony 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 × $8.7 million + 6.4 × $62,000). 

C. Compliance Costs 

TABLE 3—SUMMARY OF ANNUAL COSTS TO UNDERGROUND COAL MINE OPERATORS

Requirement 

Number of employees 

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 


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TABLE 3—SUMMARY OF ANNUAL COSTS TO UNDERGROUND COAL MINE OPERATORS—Continued 

Requirement 

Number of employees 

Totals 

1–19 20–500 501+ 

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 § 75.360 

Under existing § 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 

§ 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 × 1 exam per 

day × 200 days a year × 0.5 hours × 

$84.70 per hour); $8.4 million in mines 

with 20–500 employees (331 mines × 2 

exams per day × 300 days a year × 0.5 

hours × $84.70 per hour); and $533,600 

in mines with 501+ employees (12 

mines × 3 exams per day × 350 days a 

year × 0.5 hours × $84.70 per hour). 

Supplemental Examination—Proposed 

§ 75.361 

Under existing § 75.361, MSHA 

estimated that it would take an 

examiner at a typical mine 0.5 hours to 

complete a supplemental examination. 

Proposed § 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 × 4 exams per 

mine × 0.25 hours per exam × $35.30 

per hour); $70,100 in mines with 20– 

500 employees (331 mines × 24 exams 

per mine × 0.25 hours per exam × 

$35.30 per hour); and $2,500 in mines 

with 501 + employees (12 mines × 24 

exams per mine × 0.25 hours per exam 

× $35.30 per hour). 

On-shift Examination—Proposed 

§ 75.362 

Under existing § 75.362, MSHA 

estimated that it would take an 

examiner at a typical small mine 450 

minutes (0.67 hours) to complete an onshift examination and an examiner at a 

typical large mine 45 minutes (0.75 

hours) to complete the on-shift 

examination. Proposed § 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 × 1 shift per 

day × 200 days per year × 0.25 hours per 

shift × $84.70 per hour); $4.2 million in 

mines with 20–500 employees (331 

mines × 2 shifts per day × 300 days per 

year × 0.25 hours per shift × $84.70 per 

hour); and $266,800 in mines with 501 

+ employees (12 mines × 3 shifts per 

day × 350 days per year × 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 § 75.363(b) 

Proposed § 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 §§ 75.361 

and 75.362 above. 

Review of Citations and Orders— 

Proposed § 75.363(e) 

Proposed § 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 


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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) × $84.70) × (4 meetings × 1 

hour)] + [(16 examiners × $35.30) × (4 

meetings × 1 hour)]; $441,000 in mines 

with 20–500 employees [((66 agents + 

530 examiners) × $84.70) × (4 meetings 

× 2 hours)] + [(132 examiners × 35.30) 

× (4 meetings × 2 hours)]; and $92,000 

in mines with 501+ employees [((2 

agents + 62 examiners) × $84.70) × (4 

meetings × 4 hours)] + [(10 examiners × 

$35.30) × (4 meetings × 4 hours)]. 

Weekly Examination—Proposed 

§ 75.364 

Under existing § 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 § 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 nonsupervisory 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 × 50 weeks 

× 0.25 hours per week × $35.30 per 

hour); $146,100 in mines with 20–500 

employees (331 mines × 50 weeks × 0.25 

hours per week × $35.30 per hour); and 

$5,300 in mines with 501+ employees 

(12 mines × 50 weeks × 0.25 hours per 

week × $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 


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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 § 75.360—Burden to Make a 

Record of the Preshift Examination 

Proposed § 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 

• 81 mines × 1 exam × 200 days × 0.05 

hrs. = 810 hrs. 

• 331 mines × 2 exams × 300 days × 

0.05 hrs. = 9,930 hrs. 

• 12 mines × 3 exams × 350 days × 0.05 

hrs. = 630 hrs. 

Total Hours = 11,370 hrs. 

Burden Costs 

• 11,370 hrs. × $84.70 per hour = 

$963,039. 

Proposed § 75.363—Burden To Make a 

Record of Violations Found 

Proposed § 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 (§ 75.360) 

and weekly (§ 75.364) examinations 

have their own recordkeeping 

requirements. The proposed 

supplemental (§ 75.361) and on-shift 

(§ 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 § 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 


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81174 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 

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 

• 424 mines × 31 violations × 0.05 hrs. 

= 657 hrs. 

• 424 mines × 8 violations × 0.05 hrs. 

= 170 hrs. 

Total Hours = 827 hrs. 

Burden Costs 

• 657 hrs. × $84.70 wage rate = $55,648. 

• 170 hrs. × $35.30 wage rate = $6,001. 

Total burden cost = $61,649. 

Proposed § 75.364—Burden To Make a 

Record of the Weekly Examinations 

Proposed § 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 

• 424 mines × 50 weeks × 0.05 hrs. = 

1,060 hrs. 

Burden Costs 

• 1,060 hrs. × $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 


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Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 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 § 75.360 are revised 

to read as follows: 

§ 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 § 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 § 75.361 is revised 

to read as follows: 

§ 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 § 75.362 

are revised to read as follows: 

§ 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 § 75.363, new paragraph (e) is 

added, and the section heading and 

paragraphs (a) and (b) are revised to 

read as follows: 


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81176 Federal Register / Vol. 75, No. 247 / Monday, December 27, 2010 / Proposed Rules 

§ 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 

§ 75.364 are revised to read as follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2010–1055] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Rainey River, Rainer, MN 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

establish drawbridge operating 

procedures for the Canadian National 

Railway Bridge across the Rainey River 

at Mile 85.0 at Rainer, Minnesota. This 

proposed rule is intended to establish 

standard bridge operating conditions for 

the drawbridge, including dates of 

operation. 

DATES: Comments and related material 

must reach the Coast Guard on or before 

January 26, 2011. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2010–1055 using any one of the 

following methods: 

(1) Federal eRulemaking Portal: 

http://www.regulations.gov. 

(2) Fax: 202–493–2251. 

(3) Mail: Docket Management Facility 

(M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590– 

0001. 

(4) Hand delivery: Same as mail 

address above, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. The telephone number 

is 202–366–9329. 

To avoid duplication, please use only 

one of these four methods. See the 

‘‘Public Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section 

below for instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this proposed 

rule, call or e-mail Mr. Lee D. Soule, 

Bridge Management Specialist, U.S. 

Coast Guard; telephone 216–902–6085, 

e-mail lee.d.soule@uscg.mil, or fax 216– 

902–6088. If you have questions on 

viewing or submitting material to the 

docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: 


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