```

[Federal Register Volume 77, Number 67 (Friday, April 6, 2012)]
[Rules and Regulations]
[Pages 20700-20716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-8328]

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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: Final rule.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is revising 
its requirements for preshift, supplemental, on-shift, and weekly 
examinations of underground coal mines to require operators to identify 
violations of health or safety standards related to ventilation, 
methane, roof control, combustible materials, rock dust, other 
safeguards, and guarding, as listed in the final rule. Violations of 
these standards create unsafe conditions for underground coal miners. 
The final rule also requires that the mine operator record and correct 
violations of the nine safety and health standards found during these 
examinations. It also requires that the operator review with mine 
examiners on a quarterly basis all citations and orders issued in areas 
where preshift, supplemental, on-shift, and weekly examinations are 
required. The final rule will increase the identification and 
correction of unsafe conditions in mines earlier, and improve 
protection for miners in underground coal mines.

DATES: Effective date: August 6, 2012.

FOR FURTHER INFORMATION CONTACT: George F. Triebsch, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
[email protected] (email), (202) 693-9440 (voice), or (202) 693-
9441 (facsimile).

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Executive Summary
II. Introduction
    A. Statutory and Regulatory History
    B. Background Information
III. General Discussion of Final Rule
IV. Section-by-Section Analysis
    A. Sec.  75.360 Preshift Examination at Fixed Intervals
    B. Sec.  75.361 Supplemental Examination
    C. Sec.  75.362 On-Shift Examination
    D. Sec.  75.363 Hazardous Conditions and Violations of Mandatory 
Health or Safety Standards; Posting, Correcting, and Recording
    E. Sec.  75.364 Weekly Examination
V. Executive Orders 12866 and 13563: Regulatory Planning and Review
    A. Population at Risk
    B. Benefits
    C. Compliance Costs
VI. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
VII. Regulatory Flexibility Act and Small Business Regulatory 
Enforcement Fairness Act
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VIII. Paperwork Reduction Act of 1995
    A. Summary
    B. Details
IX. 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
X. References

I. Executive Summary

A. Purpose of the Regulatory Action

    Effective preshift, supplemental, on-shift, and weekly examinations 
are the first line of defense to protect miners working in underground 
coal mines. After analyzing the Agency's accident reports and 
enforcement data for underground coal mines covering a 5-year period, 
MSHA determined that the same types of violations of health or safety 
standards are found by MSHA inspectors in underground coal mines every 
year and that these violations present some of the most unsafe 
conditions for coal miners. These repeated violations expose miners to 
unnecessary safety and health risks that should be found and corrected 
by mine operators. The final rule will increase the identification and 
correction of unsafe conditions in mines earlier, removing many of the 
conditions that could lead to danger, and improve protection for miners 
in underground coal mines.
    Section 303 of the Federal Mine Safety and Health Act of 1977 (Mine 
Act), which retained without change the

[[Page 20701]]

language of the Federal Coal Mine Health and Safety Act of 1969, 
requires preshift [section 303(d)(1)], on-shift [section 303(e)], and 
weekly [section 303(f)] mine examinations for hazardous conditions; and 
preshift and weekly examinations for compliance with health or safety 
standards. The final rule is consistent with the provisions in the Mine 
Act that require examinations for compliance with health or safety 
standards in addition to hazardous conditions.

B. Summary of Major Provisions

    The final rule revises MSHA's requirements for preshift, 
supplemental, on-shift, and weekly examinations of underground coal 
mines to require operators to identify and correct violations of nine 
health or safety standards related to ventilation, methane, roof 
control, combustible materials, rock dust, other safeguards, and 
guarding, in addition to hazardous conditions. These nine standards are 
consistent with MSHA's ``Rules to Live By'' initiatives started in 2010 
to prevent fatalities in mining. Violations of these nine standards 
represent the conditions or practices that, if uncorrected, present the 
greatest unsafe conditions and the most serious risks to miners. It is 
important to remind operators that if examiners observe other 
violations, they remain obligated, as they are under the existing 
standards, to address these violations. The final rule requires mine 
operators to record the actions taken to correct these violations.
    The final rule, like the proposal, adds a new provision that 
requires the operator to review with mine examiners, on a quarterly 
basis, all citations and orders issued in areas where preshift, 
supplemental, on-shift, and weekly examinations are required. The 
questions and discussions that arise during the quarterly reviews will 
educate and enhance the skills and knowledge of the operators and the 
examiners to identify hazards and violations, resulting in continual 
improvement in the quality of mine examinations, the safety and health 
conditions in the mines, and protection for miners.

C. Costs and Benefits

    MSHA estimates that the rulemaking will result in approximately 
$17.0 million in yearly costs for the underground coal mining industry. 
MSHA estimates that the monetized benefit to underground coal mine 
operators, in reduced fatalities and injuries, is approximately $21.3 
million yearly, resulting in a net benefit of approximately $4.3 
million yearly. MSHA estimates that, on average, the final rule will 
prevent approximately 2.4 fatalities and 6.4 lost-time injuries per 
year.

II. Introduction

A. Statutory and Regulatory History

    Sections 303(d)(1), (e), and (f) of the Federal Mine Safety and 
Health Act of 1977 (Mine Act), which retained without change the 
language of the Federal Coal Mine Health and Safety Act of 1969 (Coal 
Act), set requirements for preshift, on-shift, and weekly examinations.
    Section 303(d)(1) of the Mine Act requires that certified examiners 
conduct preshift examinations within 3 hours prior to the next shift. 
The preshift examinations are for specified hazards and for such other 
hazards and violations of the 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 purpose of the preshift examination 
is to identify and correct hazards and unsafe conditions, such as 
methane accumulations, water accumulations, and adverse roof 
conditions, before other miners travel underground to work their shift.
    Section 303(e) of the Mine Act requires on-shift examinations for 
hazardous conditions (30 U.S.C. 863(e)). The purpose of the on-shift 
examination is to identify and correct hazards that develop during the 
shift.
    Section 303(f) of the Mine Act requires weekly examinations for 
hazardous conditions and for compliance with health or safety standards 
(30 U.S.C. 863(f)). The purpose of the weekly examination is to 
identify and correct hazards and violations of standards that develop 
in remote and less frequently traveled areas of the mine, such as 
worked-out areas and bleeder entries that carry away methane. Methane 
accumulations in these areas could result in an explosion if they are 
not discovered and removed from the mine.
    On November 20, 1970, MSHA issued a final rule for preshift, on-
shift, and weekly examinations for hazardous conditions (35 FR 17890). 
The final rule restated the statutory provisions of the Coal Act, which 
were 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 health or 
safety standards.
    On May 19, 1994, MSHA proposed revisions to the preshift 
examination standard (59 FR 26356) to require that examiners look for 
violations of health or safety standards that could result in a 
hazardous condition. The proposal had the potential to enhance safety 
by placing the mine operator in a proactive rather than a reactive role 
in finding and fixing conditions before hazards develop. After 
evaluating the comments, MSHA issued 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 health or safety standards. In the preamble to the 1996 
final rule, MSHA stated its intent that examiners focus their attention 
on critical areas and the identification of conditions that pose a 
hazard to miners.
    After reviewing accident investigation reports from nonfatal 
accidents from 2005 through 2009, MSHA identified a direct link between 
violations of nine standards and accidents that resulted in injuries 
and fatalities. During that 5-year period, MSHA found that the accident 
reports for 12 fatalities and 32 nonfatal injuries listed violations of 
one or more of the nine standards addressed by the final rule as 
contributing factors. The data shows that when left uncorrected these 
violations can create hazardous conditions and lead to accidents 
resulting in injuries and fatalities. Based on the data and the 
Agency's experience, MSHA determined that only focusing on hazardous 
conditions would not provide effective safety for miners. MSHA 
concluded that because the violations of the nine standards in the 
final rule repeatedly contributed to accidents, fatalities and 
injuries, the final rule would provide the greatest protection for 
underground coal miners.
    On December 27, 2010 (75 FR 81165), MSHA issued a proposed rule 
that would have required underground coal mine operators to identify 
violations of health or safety standards during preshift, supplemental, 
on-shift, and weekly examinations. The proposal would also have 
required that mine operators record and correct violations and review 
with mine examiners, on a quarterly basis, all citations and orders 
issued in areas where these examinations are conducted. The Agency 
received comments on the proposed rule and held five public hearings in 
June and July 2011. These hearings were held in Denver, Colorado;

[[Page 20702]]

Charleston, West Virginia; Birmingham, Alabama; Arlington, Virginia; 
and Hazard, Kentucky. The comment period closed on August 1, 2011.

B. 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 an effective measure of protection against unsafe and 
hazardous conditions that lead to accidents and emergencies in 
underground coal mines.
    Effective examinations are the first line of defense to protect 
miners working in underground coal mines. At the beginning of the 
shift, miners in an underground coal mine are particularly vulnerable 
to hazards and dangerous conditions in the workplace that developed 
during the prior shift; the preshift and supplemental examinations are 
intended to protect miners from such hazards and dangerous conditions. 
This final rule revises MSHA's existing standards to require that 
operators examine for violations of health or safety standards in 
addition to hazardous conditions; it provides more effective 
underground coal mine examinations and increased safety and health 
protection for miners.
    In developing the final rule, MSHA reviewed accident investigation 
reports, the Agency's enforcement data for underground coal mines 
covering a 5-year period, and the public comments received in response 
to the proposal. After analyzing the accident reports and enforcement 
data, MSHA determined that the same types of violations of 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 by mine 
operators. MSHA's review found that the most frequently cited standards 
accounted for about 50 percent of the total violations at underground 
coal mines in 2009 and that these violations present some of the most 
unsafe conditions in underground coal mines.
    These violations include the following safety and health 
conditions: Accumulations of combustible materials; violations of 
ventilation and roof control plans; insufficient incombustible content 
of rock dust; improperly constructed airlock doors; or improperly 
maintained ventilation controls. Absent other conditions, such as a 
misaligned conveyor belt, an operator might not consider these to be 
hazardous conditions. However, conditions in underground coal mines 
change rapidly--a 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.
    The final rule identifies violations of nine standards, which if 
left uncorrected, pose the greatest risk to miners' safety. Because the 
existence of these violations poses the greatest risk to miners, the 
mine operator is required to identify and correct them. Violations of 
the nine standards in the final rule can, individually or together, 
quickly lead to hazardous conditions, and ultimately to disastrous 
consequences. They represent the types of violations identified in 
MSHA's ``Rules to Live By'' initiatives, as well as some of the 
contributory violations in the Accident Investigation Report of the 
Upper Big Branch Mine disaster.
    An accumulation of fine coal dust (fuel) in an underground air 
course, for example, contains sufficient oxygen for ignition and is 
lacking only a heat source to present an immediate fire hazard. In this 
situation, operators must remove the fuel source (fine coal dust) from 
the mine because an electrical arc or improperly maintained conveyor 
belt roller could provide the heat source and start a fire. Compliance 
with the health or safety standards (e.g., for accumulations of 
combustible materials and maintenance of belt conveyors), in this 
instance, would provide two measures of safety--removing the fuel and 
heat source that could cause a fire.

III. General Discussion of Final Rule

    Consistent with the Mine Act, this final rule revises MSHA's 
examination standards for underground coal mines to include a 
requirement that examiners conducting preshift, supplemental, on-shift, 
and weekly examinations identify not only hazardous conditions, but 
also violations of nine health or safety standards. In response to 
comments, MSHA has included those standards that represent nine of the 
most frequently cited violations by MSHA inspectors and are consistent 
with MSHA's Rules to Live By initiatives. These standards address 
unsafe conditions and hazards in underground coal mines that present 
dangers to miners. The final rule requires that mine examiners 
identify, record, and correct hazards and violations of these nine 
standards. It is important to remind operators that if examiners 
observe other violations, they remain obligated, as they are under the 
existing standards, to address these violations.
    Many commenters opposed the proposed rule expressing concern that 
examinations for violations of all safety and health standards would 
diminish safety by distracting mine examiners from looking for the more 
serious hazardous conditions. These commenters noted that in previous 
rulemakings, after considering this same issue, MSHA decided against 
including this provision in the final rules. In support of their 
position, several commenters pointed to a statement in the preamble of 
MSHA's 1992 final rule in which the Agency stated that--

* * * the final rule does not include a provision authorizing 
expansion of the preshift examination to include an examination for 
violations of mandatory standards. Most `hazards' are violations of 
mandatory standards. (57 FR 20894, May 15, 1992)

    Commenters supporting the proposed requirement to examine for all 
violations stated that the proposal addresses a deficiency in the 
existing standard. They noted that, under the existing standard, a mine 
examiner might not record and correct an obvious violation of a health 
or safety standard because the examiner does not believe the violation 
to be a hazardous condition. MSHA inspection experience indicates that, 
if the violation is not recorded, operators often fail to correct the 
violations until they are cited by an MSHA inspector.
    In response to commenters who stated that the proposed rule would 
distract examiners from more serious conditions and those who stated 
that examiners would overlook obvious violations, the final rule 
specifies the health or safety standards that must be included in 
preshift, supplemental, on-shift, and weekly examinations. These 
standards represent conditions or practices that, if uncorrected, could 
present the most unsafe conditions and serious risks to miners in 
underground coal mines. MSHA has identified violations of these 
standards as contributing to numerous fatalities occurring between 2000 
and 2009, and most were emphasized in MSHA's Rules to Live By 
initiative started in 2010 to prevent fatalities in mining.
    Under the final rule, examiners must examine for hazardous 
conditions and violations of the following nine standards:

    Sec. Sec.  75.202(a) and 75.220(a)(1)--roof support and the mine 
roof control plan;
    Sec. Sec.  75.333(h) and 75.370(a)(1)--maintenance of 
ventilation controls and the mine ventilation plan;

[[Page 20703]]

    Sec. Sec.  75.400 and 75.403--accumulations of combustible 
materials and application of rock dust;
    Sec.  75.1403--other safeguards, limited to maintenance of 
travelways along belt conveyors, off track haulage roadways, track 
haulage, track switches, and other components for haulage;
    Sec.  75.1722(a)--guarding moving machine parts; and
    Sec.  75.1731(a)--maintenance of belt conveyor components.

    These standards represent the conditions or practices that, if 
uncorrected, would present the greatest unsafe conditions and the most 
serious risks to miners in underground coal mines. In addition, based 
on MSHA data and experience, these also represent violations that are 
frequently found by MSHA inspectors year after year.
    Violations of standards included in the final rule are the types of 
violations that well-trained and qualified examiners can observe while 
conducting effective examinations. Under the existing standards, 
violations of these standards may have gone undetected and uncorrected 
where operators did not believe that they were hazardous conditions. 
The final rule will provide for a more effective approach to safety and 
health and add a necessary margin of safety in a particularly dangerous 
work environment. It will also result in more effective and consistent 
examinations which assure that hazardous conditions and violations of 
the standards in the final rule will be timely identified and 
corrected. The final rule will continue to reflect MSHA's intent under 
the existing standards that operators prioritize and correct violations 
based on the seriousness of the hazard.
    The final rule requires operators to be more proactive in their 
approach to mine health and safety and to find and fix violations of 
health or safety standards in the final rule before they become 
hazardous. As a result, conditions that might have been identified only 
by MSHA inspectors will now be found and corrected by the operator, and 
a culture of safety will be fostered at the mine. The final rule will 
also promote this culture of safety by requiring operators to review 
with mine examiners, on a quarterly basis, citations and orders issued 
in areas where preshift, supplemental, on-shift, and weekly 
examinations are required. The final rule will enhance miners' safety 
because violations of health or safety standards that present the 
greatest risks will be identified and corrected, removing many of the 
conditions that could lead to danger in underground coal mines.

IV. Section-by-Section Analysis

A. Sec.  75.360 Preshift Examination at Fixed Intervals

    The final rule revises the existing preshift examination standard 
to require operators to check for hazardous conditions and violations 
of nine health or safety standards in the rule. These standards 
represent areas which present unsafe conditions for miners where MSHA 
continues to find violations of safety and health standards. Consistent 
with the Mine Act, the final rule also provides that the District 
Manager may require examinations in other areas of the mine for 
hazardous conditions and for violations of safety or health standards, 
based on, for example, the violation history of the mine. Like the 
proposal, the final rule also requires operators to record hazards and 
all violations, along with the actions taken to correct them.
    Some commenters were concerned that the proposed rule did not 
specify which standards in part 75 the mine examiners would be expected 
to identify and correct. They noted that while MSHA indicated that the 
proposed rule was intended to assure that violations of MSHA's most 
frequently cited standards were identified, the proposed rule language 
did not list those standards.
    Several commenters suggested that MSHA include in the final rule 
language the violations of specific standards that examiners are 
expected to identify. Other commenters suggested that, if the proposal 
went forward, MSHA could limit the violations that examiners would look 
for to those covered by the Rules to Live By categories or conditions 
that are significant and substantial (S&S) violations. The nine 
standards specified in the rule are consistent with the standards 
identified in MSHA's Rules to Live By initiatives and derived from the 
ten most frequently cited standards discussed in the proposed rule and 
further analyzed in the preliminary regulatory economic analysis.
    A number of commenters stated that there is not enough time 
allotted for preshift examinations to examine for all violations of the 
MSHA standards in 30 CFR part 75. Some commenters were concerned that, 
without allotting additional time for preshift examinations or limiting 
the list of standards they would be required to address, mine operators 
would be required to hire additional examiners. Some commenters 
indicated that mine examiners would need much more training to identify 
violations of all MSHA standards in part 75.
    Commenters who supported the proposal stated that the rule 
addresses a deficiency in the existing standard because a mine examiner 
might not record and correct an obvious violation of a health or safety 
standard as the examiner might not believe the violation to be a 
hazardous condition. Other commenters were concerned that the proposal 
could place mine examiners in a difficult position. They noted that 
examiners could be disciplined or fired for missing some violations 
during their examinations even while they may be disciplined for 
finding many minor technical violations.
    Commenters also stated that based on the proposed rule, a mine 
could get cited twice for the same violation--one citation for the 
violation of a health or safety standard and another citation for an 
inadequate examination. Under the existing regulation, operators must 
conduct required examinations and take required actions to comply with 
specific standards. The final rule does not change this existing 
requirement and enforcement practice.
    Generally, at the beginning of an inspection, an inspector will 
review an operator's examination records. As is the case under the 
existing standard, recording a violation does not automatically result 
in a citation.
    In the final rule, MSHA responds to commenters' concerns by 
including the requirement that operators conducting preshift 
examinations examine for violations of nine standards. Operators are, 
therefore, put on notice as to the specific violations that examiners 
must look for in their examinations. In this way, operators can better 
focus on conditions and practices that represent higher risks to miners 
in the time allotted for the preshift examination. Consistent with the 
Mine Act, under the final rule, operators remain responsible for all 
violations; responsible operators should have policies in place to find 
and fix all violations and record them.
    As stated in the proposed rule, the final rule will require that 
operators conduct more thorough examinations of underground coal mines. 
By requiring examinations for violations of health or safety standards 
in the final rule, miners will be better protected because mine 
operators will correct unsafe conditions before they result in 
hazardous conditions. Mine operators must identify hazards and 
violations of the nine standards, and record these and violations of 
other health or safety standards found during their examination in the 
examination records; the operator must assure that they are corrected. 
Under the final rule, however, operators are not required to

[[Page 20704]]

have examiners perform additional tests, take additional measurements, 
or open and examine equipment or boxes.
    The mine operator is required by Sec.  75.220(a)(1) to develop and 
follow a roof control plan and by Sec.  75.370(a)(1) to develop and 
follow a mine ventilation plan approved by the District Manager. These 
plans are mine-specific and can sometimes be comprehensive and complex. 
MSHA expects that the operator will assure that the examiner should 
have broad knowledge of these plans.
    Unlike the proposal, the final rule does not require operators to 
have examiners to look for violations of Sec.  75.1725(a) related to 
mobile and stationary machinery and equipment (one of the most 
frequently cited standards). Many commenters opposed inclusion of this 
standard stating that it would require examiners to check 
permissibility, brakes, and electrical components. They stated that 
such tasks are beyond an examiner's knowledge and skills and that such 
tasks would consume most of the time allotted to conduct preshift 
examinations. In addition, they pointed out that other standards 
require the examination of mobile and stationary machinery and 
equipment and that adding a similar requirement to the preshift 
examination would be duplicative and unnecessary. Although Sec.  
75.1725(a) was part of the Rules to Live By I, available on MSHA's Web 
site at http://www.msha.gov/focuson/RulestoLiveBy/RulestoLiveByI.asp, 
the types of accidents in which the standard was cited would likely not 
have required a preshift, supplemental, on-shift, or weekly examination 
of the equipment involved.
    In response to comments, the final rule does not include Sec.  
75.1725(a). MSHA's existing standards address the examination and 
maintenance of mobile and stationary machinery and equipment; this will 
provide necessary protection for miners.
    Commenters who supported requiring operators to identify all 
violations stated that this would relieve examiners of the burden of 
determining whether a health or safety violation is hazardous at the 
time it is discovered, so that miners will be better protected. They 
added that the proposal would allow operators to learn about such 
conditions at an earlier time and abate the violations before they ever 
become hazardous. They stated that a requirement to identify and record 
all violations of health and safety standards instead of only those 
violations believed to be hazardous would simplify the examiner's task 
and make it more straightforward.
    In response to these comments, the final rule requires operators to 
look for violations of nine safety or health standards which MSHA 
believes present unsafe conditions and risks to miners. Operators who 
examine for hazardous conditions and violations of the health or safety 
standards in the final rule will provide a safer workplace for their 
miners.
    Some commenters were concerned that mine examiners would not be 
trained to recognize violations of all MSHA standards. Commenters 
stated that mine examiners are trained by state agencies, not MSHA, and 
none of the states require examinations to identify every condition 
that violates a standard. They pointed out that mine examiners are 
trained to recognize certain hazards. They were concerned that the 
proposal would require certified examiners to act as MSHA inspectors 
despite the lack of training on identifying violations of all health or 
safety standards.
    As stated at the public hearings, operators are responsible under 
the Mine Act for finding and fixing violations of safety and health 
standards. Historically, MSHA accepted State certifications for mine 
examiners. The final rule addresses hazardous conditions required under 
the existing rule and violations of health or safety standards. Since 
violations of the nine standards generally relate to hazardous 
conditions covered by the existing rule, MSHA believes that the final 
rule will have only a minimal effect on states.
    In response to questions from the MSHA Panel at the public 
hearings, some commenters provided information as to how they examine 
for violations of safety and health standards. The examinations in this 
final rule should represent only part of an operator's program for 
finding and fixing violations. Since this final rule requires 
examinations for hazards and violations of nine safety or health 
standards which present unsafe conditions and risks to miners, MSHA 
does not believe that there is a need for any additional requirement 
for training mine examiners. In addition, MSHA believes that the new 
requirement in Sec.  75.363(e) (that the operator review with examiners 
on a quarterly basis all citations and orders issued in areas where 
preshift, supplemental, on-shift, and weekly examinations are required 
discussed elsewhere in the preamble), when conducted properly, provides 
examiners with necessary instruction to identify hazards and 
violations.
    The final rule makes conforming changes to the existing requirement 
in Sec.  75.360(a)(2) that allows pumpers, who are certified persons, 
to perform the preshift examination for themselves. Under the final 
rule, examinations conducted by pumpers must include hazardous 
conditions and violations of the nine standards. Like the existing 
rule, pumpers often work alone in remote areas of the mine. MSHA 
expects that the pumper would examine for hazardous conditions and 
violations of the nine standards. The pumper must record hazardous 
conditions and violations of the nine health or safety standards found 
during the preshift examination.
    Some commenters addressed proposed Sec.  75.360(e) that would 
permit the District Manager to require examinations in other areas of 
the mine for other hazards or violations of safety or health standards. 
Most of those commenters stated that this would add to the existing 
burden on both the District Managers and mine operators. Commenters 
were concerned that this would give the District Manager broad powers 
to dictate additional areas, other hazards, or violations to be 
examined by certified persons. Under the existing standard, the 
District Manager may require the certified person to examine other 
areas of the mine or examine for other hazards during the preshift 
examination.
    It was the intent of Congress in the Mine Act and MSHA in the 
existing standard that the District Managers have the discretion to 
require additional examinations as necessary. MSHA's experience reveals 
that District Managers rarely exercise this discretion. Therefore, MSHA 
does not believe that this provision will result in additional costs. 
Consistent with the Mine Act, like the proposal, the final rule revises 
this provision to allow the District Manager to require additional 
examinations based on, among others, the violation history of the mine.
    For example, if a mine is experiencing safety issues and violations 
due to obstructed walkways on the off side of the belt conveyor, it 
would be appropriate for the District Manager to require that the mine 
operator focus on this area. Most operators do not routinely examine 
the off side of the belt conveyor, but there are occasions when miners 
are required to work or travel on the off side, such as to align the 
belt, replace a roller, or remove accumulations. As another example, 
the District Manager may require a mine operator to verify that battery 
charging stations are adequately ventilated if a mine operator has 
received violations of Sec.  75.340(a)(1)(i) for failure to ventilate 
battery charging stations with intake air that is directly coursed into 
a return air course or to the surface or with air that

[[Page 20705]]

is not used to ventilate working places. MSHA believes that this 
provision is consistent with the Mine Act and is necessary to protect 
the safety and health of miners.
    A number of commenters were concerned about the recordkeeping 
requirements in proposed Sec. Sec.  75.360(g), 75.363(a) and (b), and 
75.364(h). Although commenters recognized the importance of 
recordkeeping, some were concerned that the proposal would increase 
recordkeeping dramatically.
    MSHA understands that the final rule will increase recordkeeping 
requirements. The final rule requires that the operator focus on nine 
standards which present the greatest risks to miners in underground 
coal mines.

B. Sec.  75.361 Supplemental Examination

    The final rule revises existing Sec.  75.361(a) to require that the 
supplemental examination identify hazards and violations of nine 
standards to provide necessary protection for miners. As with the 
existing rule, operators cannot ignore violations of other standards 
seen during the examination. As discussed above, in response to 
comments, MSHA is adding language to make clear which violations 
operators are required to identify. The same language referencing these 
standards is also being added to the final requirements for preshift, 
on-shift, and weekly examinations.

C. Sec.  75.362 On-Shift Examination

    The final rule revises existing Sec.  75.362(a)(1) and (b) to 
require that the mine operators identify hazards and violations of the 
nine standards during any shift when anyone is assigned to work on the 
section and where mechanized mining equipment is being installed or 
removed. Like the existing rule, operators cannot ignore violations of 
other standards seen during the examination. As discussed above, in 
response to comments, the final rule clarifies that operators are 
required to look for violations of nine standards, in addition to 
hazards, while also recording and correcting violations of other 
standards when they see them.

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

    The final rule revises existing Sec.  75.363 to require the mine 
operator to post hazardous conditions, correct, and record hazardous 
conditions and violations of all health or safety standards found 
during preshift, supplemental, on-shift, and weekly examinations and 
record the corrective actions taken. The final rule also includes a new 
requirement in Sec.  75.363(e) that the operator review with examiners, 
on a quarterly basis, all citations and orders issued in areas where 
preshift, supplemental, on-shift, and weekly examinations are required. 
MSHA expects that, during the review, the operator and examiners would 
discuss the violations found since the previous review.
    Some commenters were concerned about the recordkeeping requirements 
in proposed Sec. Sec.  75.363(a) and (b) and 75.364(h); those comments 
were addressed above under the discussion of recordkeeping in Sec.  
75.360(g).
    Commenters suggested that MSHA clarify what the Agency meant when 
it stated in the preamble that operators would have to correct 
violations within a reasonable time. They indicated that without such 
clarification, there could be a range of interpretations about what 
would be reasonable and whether this would be determined by the MSHA 
inspector or the company.
    In the final rule, MSHA has not included a time frame for 
correcting violations but is relying on the Agency's historical 
practice related to mine operators' correction of violations. 
Consistent with its position in the preamble to the proposed rule, MSHA 
anticipates that operators will correct violations within a reasonable 
time period based on the conditions and circumstances at the mine. The 
mine operator is in the best position to determine the resources 
necessary to correct a violation including the time frame. If resources 
and personnel are available to correct a violation, the violation 
should be corrected at that time.
    For example, a mine examiner is conducting an examination of a belt 
conveyor entry and identifies a broken roller as a violation. It is not 
generating any heat or sparks and, therefore, does not pose a hazard. 
To prevent the broken roller from becoming a potential fire hazard, the 
mine examiner removes the roller assembly. The mine examiner completes 
the examination of the belt conveyor entry and returns to the surface. 
The condition ``damaged roller--needs replaced'' is entered into the 
preshift examination book. The mine operator must order a new roller 
assembly, which will take two days to obtain and install. The mine 
operator places an order for the roller assembly and has the purchase 
order available for review by the inspector. The roller is ordered and 
replaced when it is received. In this particular example, the mine 
operator would not receive a citation.
    Some commenters opposed proposed Sec.  75.363(e), the requirement 
for quarterly reviews of citations and orders. They stated that 
quarterly meetings to review citations and orders with mine examiners 
are not needed because all citations are required to be posted in a 
conspicuous area. Other commenters supported the proposed requirement. 
They agreed that it makes sense to make mine examiners aware of 
citations, orders, and violations identified by inspectors in areas 
where examinations are required so the examiners can improve 
identification of recurring violations. Therefore, if citations and 
orders are being issued for violations other than the nine standards 
identified in the rule, the mine examiner will be better able to find 
and correct those violations as well.
    MSHA believes that the final rule will result in continual 
improvement in the quality of mine examinations in underground coal 
mines and a greater level of protection for underground coal miners. 
The questions and discussions that arise during the quarterly reviews 
will educate operators and examiners and enhance their skills and 
knowledge.

E. Sec.  75.364 Weekly Examination

    The final rule revises the weekly examination standard to require 
operators to examine for hazards and violations of the nine standards 
to provide greater protection for miners. The operator must look for 
violations of the nine standards listed in the final rule, but also 
record and correct violations of other health or safety standards when 
they see them.
    The weekly examination involving Sec.  75.1403 will require 
operators to address maintenance of track haulage, off track haulage 
roadways, track switches, and other components for haulage. Since 
weekly examinations are required in worked out areas, bleeder entries, 
and air courses where equipment and conveyor belts are not typically 
installed, mine examiners are unlikely to encounter conditions related 
to Sec.  75.1403--other safeguards, maintenance of travelways along 
belt conveyors; Sec.  75.1722(a)--guarding moving machine parts; and 
Sec.  75.1731(a)--maintenance of belt conveyor components.
    The final rule includes conforming changes to require the 
identification, recording, and correcting of hazardous conditions and 
violations of the nine health or safety standards found during the 
weekly examinations.

[[Page 20706]]

V. Executive Orders 12866 and 13563: Regulatory Planning and Review

    MSHA has not prepared a separate regulatory economic analysis for 
this rulemaking. Rather, the analysis is presented below.

A. Population at Risk

    The final rule applies to all underground coal mines in the United 
States. The number of underground coal mines that MSHA used to estimate 
the cost of the final rule is the quarterly average of underground coal 
mines that reported employment underground at any time during 2010 
regardless of production. Underground mines that only reported 
employment at the surface were not included since the examinations 
covered by this final rule are only performed when miners are working 
underground. The number of employees reflects the average underground 
employment at these mines for the year.
    There are approximately 549 underground coal mines employing 51,706 
miners, excluding office workers. Table 1 presents the number of 
underground coal mines and employment by mine size.

          Table 1--Underground Coal Mines and Miners, 12-Month Average as of January 2011, by Mine Size
----------------------------------------------------------------------------------------------------------------
                                                                                           Total employment at
                                                                 Number of underground   underground coal mines,
                           Mine size                                   coal mines            excluding office
                                                                                                 workers
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................                      172                    1,676
20-500 Employees..............................................                      366                   33,036
501+ Employees................................................                       11                    6,748
Contractors...................................................  .......................                   10,246
                                                               -------------------------------------------------
    Total.....................................................                      549                   51,706
----------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (December 16, 2011).

    Underground coal mines produced an estimated 337 million short tons 
of coal in 2010. The average price of coal in underground mines in 2010 
was $60.73 per short ton (Department of Energy (DOE), Energy 
Information Administration (EIA), Annual Coal Report 2010, November 
2011, Table 28). Table 2 presents coal production and estimated 
revenues for 2010.

           Table 2--Coal Production in Short Tons and Coal Revenues in 2010 for Underground Coal Mines
----------------------------------------------------------------------------------------------------------------
                                                                Coal production  (short
                           Mine size                                     tons)           Coal revenue  (dollars)
----------------------------------------------------------------------------------------------------------------
1-19 Employees................................................                3,687,255             $223,890,124
20-500 Employees..............................................              247,441,842          $15,024,668,646
501+ Employees................................................               86,219,427           $5,235,243,607
                                                               -------------------------------------------------
    Total.....................................................              337,348,524          $20,483,802,377
----------------------------------------------------------------------------------------------------------------

B. Benefits

    One of MSHA's primary goals with this rulemaking is to reduce 
violations of 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 final rule changes to requirements 
for preshift, supplemental, on-shift, and weekly examinations in 
underground coal mines.
    For informational purposes, MSHA provides estimates of monetized 
potential benefits of the final rule. Under the Mine Act, MSHA is not 
required to use monetized benefits or estimated net benefits as the 
basis for its decisions on standards designed to protect the health and 
safety of miners.
    Based on the estimated prevention of 2.4 fatalities and 6.4 lost-
time injuries per year, MSHA estimates that the final 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). An explanation of the methodology MSHA relied 
upon to calculate the monetized benefits is presented towards the end 
of the benefits section.
    To derive the estimated number of preventable injuries and 
fatalities used above, MSHA reviewed accident investigation reports 
from 2005 through 2009 where an inadequate examination of the 
underground work area contributed to the accident. MSHA further looked 
to see how many of those accidents involved, as a contributing factor, 
violations of nine standards cited by MSHA inspectors year after year.
    Over the 5-year review period, there were 91 fatalities in 
underground coal mines. Of this total, the investigation reports for 15 
of the fatalities (11 reports) specifically listed violations of the 
preshift, supplemental, on-shift, or weekly examinations standards as 
factors contributing to the accident. Although these fatalities 
involved conditions exposing risks to miners and violations of existing 
standards, the examiners did not perceive them as hazardous conditions. 
MSHA determined that only focusing on hazardous conditions would not 
provide effective safety for miners. Under the final rule, mine 
operators would be required to identify and correct these violations in 
addition to hazardous conditions.
    Based on MSHA's review and the findings explained below, the final 
rule requires the examiner to identify and record, and the operator to 
correct, violations of the nine standards listed in the final rule that 
are found during preshift, supplemental, on-shift, or weekly 
examinations.
    After analysis of the 15 fatalities, MSHA determined that nine of 
them involved violations of one or more of the health or safety 
standards listed in the final rule. MSHA concluded that, if these 
violations had been identified and corrected as required by the final 
rule, these nine fatalities, or approximately

[[Page 20707]]

two fatalities per year (9 fatalities/5 years) could have been 
prevented.
    MSHA also examined the fatal investigation reports that did not 
list violations of the preshift, supplemental, on-shift, or weekly 
examinations standards as contributing to the accident to determine if 
a violation of any of the nine standards in the final rule was listed 
as a contributing cause of the accident. Based on its review of these 
reports, MSHA determined that three additional fatalities could have 
been prevented by identifying violations of one or more of the nine 
standards and taking necessary corrective actions. Based on the 
frequency of the required examinations, MSHA believes that the examiner 
could have identified the violations during either the preshift or on-
shift examination, triggering corrective action. Thus, MSHA estimates 
that the final rule could have prevented a total of up to 12 fatalities 
or 2.4 fatalities per year.
    MSHA estimates that the final rule could have prevented 13 percent 
of the 91 fatalities that occurred in underground coal mines during the 
5-year review period (12/91 fatalities). The fatal investigation 
reports for all 12 fatalities are included in the rulemaking docket at 
www.regulations.gov.
    In addition to reducing the number of fatalities, the final rule 
also could reduce the number of injuries. For the 5-year review period, 
2005 through 2009, MSHA reviewed the descriptions of 75 accidents 
involving 90 nonfatal injuries where the citation or order listed an 
inadequate examination, or a violation of one or more of the nine 
standards in the final rule, or both, as a contributing cause of the 
accident. Based on this review and its experience in investigating 
accidents, MSHA determined that the final rule could have prevented 32 
nonfatal injuries or approximately 6.4 nonfatal injuries per year (32 
nonfatal injuries/5 years).
    Violations of the standards listed in the final rule create unsafe 
conditions for underground coal miners and are directly linked to 
fatalities and injuries. The final rule includes a new requirement in 
Sec.  75.363(e) that the operator review with examiners, on a quarterly 
basis, all citations and orders issued in areas where preshift, 
supplemental, on-shift, and weekly examinations are required. This new 
requirement may provide qualitative benefits that increase over time.
    MSHA expects that, during the review, the operator and examiners 
would discuss any hazards or violations found since the previous 
review. MSHA believes that the questions and discussions that arise 
during the quarterly reviews will educate and enhance the skills and 
knowledge of the operators and the examiners. This provision will 
promote a culture of safety, resulting in a continual improvement in 
the quality and effectiveness of mine examinations. This will 
ultimately lead to an overall improvement in compliance with health and 
safety standards at the mine, and provide a greater level of protection 
for underground coal miners. Furthermore, if the examinations and 
corrective actions are applied effectively, individual operators may 
see some reductions in the time and administrative staff associated 
with violations of mandatory health or safety standards.
    Based on the nature of the standards in the final rule, MSHA 
believes that the final rule will also reduce respirable dust exposures 
in underground coal mines and reduce the incidence of black lung. 
According to a recent NIOSH report (2010), ``[v]entilating air to a * * 
* mining section, whether blowing or exhausting, is the primary means 
of protecting workers from overexposure to respirable dust.'' 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. The 
final rule will provide better identification and correction of 
violations of the ventilation standards. This, in turn, should lower 
miners' exposure to respirable coal mine dust, thereby lowering the 
incidence of black lung and other respiratory diseases. MSHA also is 
engaged in a separate rulemaking (RIN 1219-AB64, 75 FR 64412) that 
directly addresses miners' exposure to respirable coal mine dust. Due 
to lack of data, MSHA is unable to incrementally quantify the reduced 
incidence of disease attributable to this final rule alone.
    MSHA based its estimates of the monetary values for the benefits on 
relevant literature. To estimate the monetary value of the reduction in 
fatalities, MSHA performed an analysis of the value of fatalities 
avoided based on a willingness-to-pay approach. This approach relies on 
the theory of compensating wage differentials in the labor market, 
(i.e., the wage premium paid to workers to accept the risks associated 
with various jobs). A number of studies have shown a correlation 
between higher risk on a job and higher wages, suggesting that 
employees demand monetary compensation in return for incurring a 
greater risk of injury or death.
    Viscusi & Aldy (2003) conducted an analysis of studies that use a 
willingness-to-pay methodology to estimate the 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 Gross Domestic Product 
(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 
lost work-day 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 final rule, the Agency does 
so with several reservations, given the methodological difficulties 
involved in estimating the compensating wage differentials (Hintermann, 
Alberini, and Markandya, 2008). Furthermore, these estimates pooled 
across different industries may not capture the unique circumstances 
faced by coal miners. For example, some have suggested that VSL models 
be disaggregated to account for different levels of risk, as might 
occur in coal mining (Sunstein, 2004). In addition, coal miners may 
have few employment options and in some cases only one employer (near-
monopsony or monopsony), which may depress wages below those in a more 
competitive labor market.
    MSHA recognizes that monetizing the VSL is difficult and involves 
uncertainty and imprecision. In the future, MSHA plans to work with 
other agencies to refine the approach taken in this final rule.
    A number of commenters disputed MSHA's analysis of the 11 fatal 
accident investigation reports discussed in the benefits section of the 
preamble to the proposed rule. One of these commenters noted that the 
report does not say how the investigators determined that the 
violations were present during the mine examinations. Another said that 
their review of the accident reports led them to disagree with MSHA's 
conclusion that the fatal injuries would have been prevented by 
examinations that identified violations as well as hazards.
    Another commenter who reviewed the fatality reports stated that 
their analysis led them to conclude that the

[[Page 20708]]

Agency's claims that nine of the 15 cited fatalities could have been 
prevented by examinations for violations of health or safety standards 
was not supportable. One commenter stated that it was not sound logic 
to conclude that if the violation had been identified by the examiner 
the accident would not have happened. He added that, in general, MSHA 
cites a condition or practice that caused the accident because 
something went wrong, but he noted that it is easy to point the finger 
after an accident. A number of commenters agreed that conditions often 
change after examinations are done.
    A number of commenters addressed the potential benefits that MSHA 
indicated would be achieved if the proposed provisions were made final. 
A commenter who supported the proposed provisions said that, in their 
entirety, the data reveal that some accidents and injuries could have 
been avoided if the examiners had reported violations of standards as 
well as hazardous conditions. Another stated that MSHA needed to be 
more specific as to what it wants and what benefits MSHA thinks will be 
gained from the regulation. Others were uncertain about the data and 
experience MSHA relied on for these calculations, and suspected that 
the calculations were hugely understated.
    As explained above, MSHA used accident reports that specifically 
listed violations of nine standards to derive the estimated benefits of 
the final rule. While the Agency feels that these accident reports best 
represent the types of violations that lead to injuries and fatalities, 
MSHA realizes that operators may find and correct violations of 
standards that were not considered when the Agency estimated the 
potential benefits and as a result the benefits above may be 
understated.
    In this regulatory economic analysis section, MSHA provides 
estimated potential benefits of the final rule. MSHA includes 
supporting data for its estimates of benefits and describes the 
methodology used to derive those benefits. MSHA also has included two 
links in the benefits section where interested parties can view the raw 
data-sets that the Agency relied on for the analysis and determination 
of the estimated benefits.

C. Compliance Costs

    Table 3 below presents the summary of annual costs for all 
underground coal mine operators. MSHA's response to comments on the 
economic analysis in the proposed rule and a summary cost analysis for 
anthracite mines can be found at the end of this cost analysis section.

                     Table 3--Summary of Annual Costs to All Underground Coal Mine Operators
----------------------------------------------------------------------------------------------------------------
                                                                Number of employees
                   Requirement                   ------------------------------------------------     Totals
                                                       1-19           20-500           501+
----------------------------------------------------------------------------------------------------------------
75.360 Pre-Shift Exam...........................      $1,460,000      $9,300,000        $490,000     $11,250,000
75.361 Supplemental Exam........................           6,400          81,100           2,400          89,900
75.362 On-Shift Exam............................         343,000       4,205,000         267,000       4,815,000
75.363(e) Review of Citations and Orders........          31,000         448,000          69,000         548,000
75.364 Weekly Exam..............................          79,000         169,000           5,000         253,000
                                                 ---------------------------------------------------------------
    Totals......................................       1,919,400      14,203,100         833,400      16,955,900
----------------------------------------------------------------------------------------------------------------

    The annualized benefits are $21.3 million while the annualized 
costs are $17.0 million. The estimates remain unchanged between years 
so changing the time period or the discount rate results in the same 
values over time or rate changes.
    As stated previously in the industry profile section, MSHA used the 
quarterly average of active mines (549) that reported underground 
employment to estimate the costs for preshift, supplementary and weekly 
examinations because these examinations are only performed when miners 
are working underground. To estimate the cost for the on-shift 
examination, MSHA used the quarterly average of active mines reporting 
production (424) because on-shift examinations are typically performed 
on production shifts. MSHA used a conservative approach in estimating 
costs and as a result the cost figures may be overstated. This update 
to the number of mines resulted in an increase in total costs but not 
at the same rate of increase. The net effect is that the cost per mine 
is lower in the final rule than was presented in the proposed rule.
    Because the examinations covered by this final rule are only 
performed when miners are working underground MSHA limited the cost 
estimates to mines that reported underground employment. MSHA is aware 
that, because of changing conditions and differing production 
schedules, not every mine with underground employment will perform each 
of the examinations nor will every mine perform them year-round; 
however, for the purpose of estimating average yearly costs, MSHA has 
assumed that mines with underground employment will perform each of the 
examinations year-round.
    For the purpose of this analysis, MSHA estimates that preshift and 
on-shift examinations would be conducted by a supervisory certified 
examiner (paid an hourly rate of $84.69, including benefits); and that 
the supplemental and weekly examinations would be conducted by non-
supervisory certified examiners (paid an hourly rate of $36.92, 
including benefits). MSHA also estimates that--
     Mines with 1-19 employees operate one shift per day, 200 
days per year;
     Mines with 20-500 employees operate two shifts per day, 
300 days per year; and
     Mines with 501+ employees operate three shifts per day, 
350 days per year.
Preshift Examination at Fixed Intervals--Final Sec.  75.360
    Final Sec.  75.360 requires examiners conducting preshift 
examinations to identify violations of nine standards, in addition to 
examining for hazards, and record all violations found along with the 
corrective actions taken. MSHA estimates that it will take an examiner 
an additional 30 minutes (0.5 hr) per preshift examination to identify 
and record these violations and the corrective actions taken. Although 
the final rule narrows the scope of the preshift examination, from 
requiring the examiner to identify violations of all standards to 
requiring the examiner to identify violations of nine standards, the 
time estimates for the proposal were based on violations of ten of the 
most frequently cited standards by MSHA inspectors. MSHA, therefore, is 
using the same estimate for additional

[[Page 20709]]

examination time (0.5 hr) as used in the proposed rule.
    MSHA estimates that the additional time required for the preshift 
examinations will result in costs of approximately $11.3 million:
     $1.5 million in mines with 1-19 employees (172 mines x 1 
exam/day x 200 days/yr x 0.5 hr x $84.69/hr);
     $9.3 million in mines with 20-500 employees (366 mines x 2 
exams/day x 300 days/yr x 0.5 hr x $84.69/hr); and
     $500,000 in mines with 501+ employees (15 mines x 3 exams/
day x 350 days/yr x 0.5 hr x $84.69/hr).
Supplemental Examination--Final Sec.  75.361
    Final Sec.  75.361 requires examiners conducting supplemental 
examinations to identify violations of nine standards, in addition to 
identifying hazards. MSHA estimates that it will take an examiner an 
additional 15 minutes (0.25 hr) to identify and record these violations 
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 four supplemental 
examinations per year at mines with 1-19 employees and 24 supplemental 
examinations per year at mines with 20-500 employees and 501+ 
employees.
    MSHA estimates that the additional time required for supplemental 
examinations will result in costs of approximately $90,000:
     $6,400 in mines with 1-19 employees (172 mines x 4 exams/
mine x 0.25 hr/exam x $36.92/hr);
     $81,000 in mines with 20-500 employees (366 mines x 24 
exams/mine x 0.25 hr/exam x $36.92/hr); and
     $2,400 in mines with 501+ employees (11 mines x 24 exams/
mine x 0.25 hr/exam x $36.92/hr).
On-Shift Examination--Final Sec.  75.362
    Final Sec.  75.362 requires examiners conducting on-shift 
examinations to identify violations of nine standards, in addition to 
identifying hazards. MSHA estimates that it would take an examiner an 
additional 15 minutes (0.25 hr) to identify and record these violations 
and the corrective actions taken. Because on-shift examinations are 
performed during each production shift, MSHA used the quarterly average 
of active mines reporting production (424) to estimate the costs below.
    MSHA estimates that the additional time required for on-shift 
examinations will result in estimated costs of approximately $4.8 
million:
     $343,000 in mines with 1-19 employees (81 mines x 1 shift/
day x 200 days/yr x 0.25 hr/shift x $84.69/hr);
     $4.2 million in mines with 20-500 employees (331 mines x 2 
shifts/day x 300 days/yr x 0.25 hr/shift x $84.69/hr); and
     $267,000 in mines with 501+ employees (12 mines x 3 
shifts/day x 350 days/yr x 0.25 hr/shift x $84.69/hr).
Hazardous Conditions and Violations of Health or Safety Standards; 
Posting, Correcting, Recording, and Reviewing--Final Sec.  75.363(b) 
and (e)
    Final Sec.  75.363(b) requires examiners to record all violations 
noted and the corrective actions taken for supplemental and on-shift 
examinations (preshift and weekly examinations have separate 
recordkeeping requirements and are not covered by this provision). The 
costs associated with this final requirement are included in cost 
estimates for final Sec. Sec.  75.361 and 75.362 above.
    Final Sec.  75.363(e) is a new provision that requires the operator 
to review with mine examiners, on a quarterly basis, citations and 
orders issued in areas where preshift, supplemental, on-shift, and 
weekly examinations are required. MSHA estimates that 80 percent of 
underground coal mine operators currently discuss violations with 
examiners. Although some operators and examiners may meet less 
frequently and some more frequently, for costing purposes, MSHA assumes 
that these operators and examiners are meeting on a quarterly basis.
    MSHA estimates that approximately 20 percent of mine operators do 
not currently discuss violations with examiners and would, therefore, 
incur new costs from this provision. MSHA estimates that 84 agents of 
the operators, 641 examiners for preshift and on-shift examinations, 
and 159 examiners for weekly and supplemental examinations would need 
to review the citations and orders as follows:
     34 agents, 49 preshift and on-shift examiners, and 17 
weekly and supplemental examiners in mines with 1-19 employees;
     73 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 supervisory certified 
examiners earning an hourly wage of $84.69 and examiners on weekly and 
supplemental exams are non-supervisory certified examiners earning an 
hourly wage of $36.92. MSHA estimates the operator's agent conducting 
the review earns an hourly wage of $84.69.
    MSHA estimates that these quarterly reviews will result in costs of 
approximately $548,000 per year:
     $31,000 in mines with 1-19 employees [(34 agents + 49 
examiners) x $84.69/hr x 4 mtg x 1 hr/mtg] + [17 examiners x $36.92/hr 
x 4 mtg x 1 hr/mtg];
     $448,000 in mines with 20-500 employees [(73 agents + 530 
examiners) x $84.69/hr x 4 mtg x 2 hr/mtg] + [132 examiners x $36.92/hr 
x 4 mtg x 2 hr/mtg]; and
     $69,000 in mines with 501+ employees [(2 agents + 62 
examiners) x $84.69/hr x 4 mtg x 4 hr/mtg] + [10 examiners x $36.92/hr 
x 4 mtg x 4 hr/mtg].
Weekly Examination--Final Sec.  75.364
    Final Sec.  75.364 requires operators to conduct examinations at 
least every 7 days to identify and record hazards and violations of 
nine health or safety standards.
    MSHA estimates that it will take a certified examiner an additional 
15 minutes (0.25 hr) to identify and record violations of standards and 
the corrective actions taken and that, on average, mines operate for 50 
weeks per year.
    The additional time required for weekly examinations for violations 
will result in costs of approximately $253,000 per year:
     $79,000 in mines with 1-19 employees (172 mines x 50 wk/yr 
x 0.25 hr/wk x $36.92/hr);
     $169,000 in mines with 20-500 employees (366 mines x 50 
wk/yr x 0.25 hr/wk x $36.92/hr); and
     $5,000 in mines with 501+ employees (11 mines x 50 wk/yr x 
0.25 hr/wk x $36.92/hr).
Costs for Corrective Actions
    MSHA's cost estimates for recording corrective actions for hazards 
or violations found during preshift, supplemental, on-shift, and weekly 
examinations do not include costs for any corrective actions taken to 
eliminate the hazardous condition or comply with the health or safety 
standard identified during the mine examination. These compliance costs 
were included in the cost estimates associated with the existing 
standards and are not new

[[Page 20710]]

compliance costs resulting from this final rule. Rather than waiting 
for violations to be either identified by an MSHA inspector or rise to 
the level of a hazardous condition and be identified by a mine 
examiner, the final rule requires mine operators to identify violations 
found during mine examinations.
    MSHA estimates that the final rule could prevent some accidents 
because mine operators will be required to take corrective actions 
earlier than under the existing standards, i.e., before a hazardous 
condition develops or before they are cited by MSHA inspectors. 
Although the final rule will result in operators taking corrective 
actions promptly, before the violation develops into a hazard, it will 
not increase the costs of the corrective actions. MSHA requires mine 
operators, if cited, to correct a violation of a health or safety 
standard, such as removing coal dust accumulations from conveyor belts 
or maintaining ventilation controls for their intended purpose, to 
abate the citation. The MSHA inspector determines the time for abating 
the violation. If the violation is a hazardous condition, MSHA requires 
it to be corrected immediately.
Impact on the Time Needed To Complete Examinations and Numbers of 
Examiners
    A number of commenters were concerned that the final rule will 
force companies to hire additional personnel to meet the requirements 
of the proposed examinations provisions. One commenter pointed out 
that, if examiners were compelled to walk both sides of conveyor belts, 
it would require twice the time or two examiners for preshift 
examinations. Another stated that the cost of the proposed requirements 
are more than the cost analysis in the proposed rule shows, and 
provided detailed estimates for all four mine examinations. This 
commenter estimated that it would take an additional half-hour for a 
preshift examination per working section, and at their mine with three 
working sections, they would need an additional preshift examiner per 
shift. The commenter added that the mine is new, and examination times 
for short travel distances and belt lengths will increase as the mine 
develops.
    In response to commenters, MSHA has narrowed the scope of the final 
rule from the proposal to match what MSHA originally intended and what 
was originally assumed in the analysis in the proposed rule. The final 
rule requires examiners to look for hazardous conditions and violations 
of nine standards. Under the final rule, MSHA intends that the examiner 
focus on those violations that present the most unsafe conditions. It 
is important to remind operators that, however, if examiners observe 
other violations, they remain obligated, as they are under the existing 
standards, to address these violations.
    The existing rule requires that the preshift examination be 
conducted within 3 hours of the beginning of the oncoming shift, but 
most preshift examinations do not take the whole 3 hours. All the 
estimates of time, number of shifts, and working sections that MSHA 
uses in this cost section are the averages for all underground coal 
mines in a given size category and are not meant to be exact 
measurements for any individual mine.
    As stated previously, MSHA does not intend that the final rule 
expand the examination to require additional tests or additional 
measurements, or to require examiners to open and examine equipment or 
boxes. MSHA expects the mine examiner to look for violations of these 
nine standards as they conduct their examinations and to complete the 
entire examination in the time allotted without the need for additional 
examiners.
Anthracite Coal Mines
    In addition, several comments stated the need for a separate 
economic analysis of underground anthracite coal mines. One commenter 
indicated that the economic hardship on the anthracite underground 
mining community far exceeds the MSHA published figure of 0.43 percent 
of annual revenues for small mines with 1-19 employees and 0.12 percent 
for mines with 20-500 employees. The commenter provided several 
calculations to show that the economic impact on underground anthracite 
coal mines would be 36.1 percent of annual revenues for anthracite 
mines with 1-19 employees and 43.7 percent of annual revenues for 
anthracite mines with 20-500 employees.
    In response to these comments, MSHA reviewed the commenter's 
calculations and found that, while the calculations used only revenues 
from anthracite mines, the cost estimates included the cost to all 
mines instead of the cost to anthracite mines only. Thus, the 
percentages of costs relative to revenues are overstated.
    MSHA conducted a separate and more detailed analysis of the 
economic impact of the final rule on underground anthracite coal mines. 
Table 4 below summarizes industry data for underground anthracite coal 
mines.

       Table 4--Underground Anthracite Coal Mines, 2010 Quarterly Average as of January 2011, By Mine Size
----------------------------------------------------------------------------------------------------------------
                                                                                                     Revenues
                    Mine size                      Total number    Total number     Production    ($59.51/ short
                                                       Mines          Miners       (short tons)        ton)
----------------------------------------------------------------------------------------------------------------
1-19 Miners.....................................               8              52          39,724      $2,363,975
20-500 Miners...................................               1              36          98,930       5,887,324
                                                 ---------------------------------------------------------------
    Total.......................................               9              88         138,654       8,251,300
----------------------------------------------------------------------------------------------------------------

    Because anthracite mines are generally smaller than most bituminous 
mines and most violations of the standards in this final rule typically 
are not the types of conditions that are most cited found at 
underground anthracite underground mines, MSHA estimates that 
examination and recordkeeping times would be less for anthracite mines 
than the average used for all underground coal mines. After conducting 
this separate analysis with more accurate examination time estimates 
for anthracite mines, MSHA has determined that the cost of the final 
rule for anthracite mines will not exceed 1 percent of total anthracite 
coal mine revenues and will be economically feasible.
    MSHA has included the results of the Agency's separate anthracite 
cost analysis for each provision in the final rule. Table 5 below 
presents the summary cost data for underground anthracite coal mines.

[[Page 20711]]

                 Table 5--Summary of Annual Costs to Underground Anthracite Coal Mine Operators
----------------------------------------------------------------------------------------------------------------
                                                                        Number of employees
                           Requirement                           --------------------------------     Totals
                                                                       1-19           20-500
----------------------------------------------------------------------------------------------------------------
75.360 Preshift Exam............................................         $20,000         $10,000         $30,000
75.361 Supplemental Exam........................................              50              40              90
75.362 On-Shift Exam............................................          10,000           4,200          14,200
75.363(e) Review of Citations and Orders........................           1,000           1,000           2,000
75.364 Weekly Exam..............................................           1,000             100           1,100
                                                                 -----------------------------------------------
    Totals......................................................          32,050          15,340          47,390
----------------------------------------------------------------------------------------------------------------

    Taking the total cost to underground anthracite coal mines of 
$47,390 and dividing it by the total revenues in 2010 for underground 
anthracite coal mines of $8,251,300 the economic impact of the final 
rule to underground anthracite coal mines is 0.57 percent of total 
revenues ($47,390/$8.25 million).

VI. Feasibility

    MSHA has concluded that the requirements of the final rule are 
technologically and economically feasible. The existing regulations 
require mine operators to perform the examinations to identify 
hazardous conditions. The final rule expands the existing standards to 
require the mine examiner to identify violations of specific health or 
safety standards listed in the final rule.

A. Technological Feasibility

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

B. Economic Feasibility

    MSHA concludes that the final rule is economically feasible. The 
U.S. underground coal mining sector produced an estimated 337 million 
short tons of coal in 2010. Multiplying the production by the 2010 
price of underground coal of $60.73 per short ton yields estimated 2010 
underground coal revenues of approximately $20.5 billion. MSHA 
estimated the yearly compliance cost of the final rule to be $17.0 
million, which is 0.08 percent of revenues ($17.0 million/$20.5 
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.

VII. 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 final rule on small 
businesses. Based on its analysis, MSHA 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 final 
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 final 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 must 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 final 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 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 final rule and the impact of the final rule on small 
mines will also be different. It is for this reason that small mines 
are of special concern to MSHA.

B. Factual Basis for Certification

    MSHA initially evaluates the impact 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 do not exceed 1 
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 2010 
production was approximately 3.7 million tons for mines that had fewer 
than 20 employees and 251 million tons for mines that had 500 or fewer 
employees. Using the 2010 price of underground coal of $60.73 per short 
ton and total 2010 coal production in short tons, underground coal 
revenues are estimated to be approximately $224 million for mines 
employing fewer than 20 employees and $15.0 billion for mines employing 
500 or fewer employees. The annual costs of the final rule for mines 
that have fewer than 20 employees is 0.86 percent ($1.9 million/$224 
million) of annual revenues, and the annual costs of the final rule for 
mines that have 500 or fewer employees is 0.10 percent ($16.1 million/
$15.2 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 final rule will not exceed 1 percent of 
their estimated revenues. Accordingly, MSHA certifies that the final 
rule will not have a significant economic impact on a substantial 
number of small entities.

[[Page 20712]]

VIII. Paperwork Reduction Act of 1995

A. Summary

    This final rule contains changes that affect the burden in an 
existing paperwork package with OMB Control Number 1219-0088. The final 
rule also contains a new burden for information collection 
requirements, which is shown in Table 6. MSHA estimates that the final 
rule will result in approximately 15,478 burden hours with an 
associated cost of approximately $1.2 million annually. The change in 
the number of mines increased the burden hours and cost. However, the 
net effect per mine is a decrease from the proposed rule.

               Table 6--Summary of Burden Hours and Costs
------------------------------------------------------------------------
               Requirement                 Burden hours        Cost
------------------------------------------------------------------------
75.360 Pre-Shift exam...................          13,278      $1,124,514
75.363 Record of Hazards................             827          62,157
75.364 Weekly exam......................           1,373          50,673
                                         -------------------------------
    Totals..............................          15,478       1,237,344
------------------------------------------------------------------------

    Many of the commenters were concerned that under the proposal, 
recordkeeping requirements would increase dramatically. One stated that 
the recordkeeping will require additional personnel on each shift, 7 
days per week and, thus, add four people at an annual cost of $400,000 
per mine with wages and benefits. MSHA estimated additional time for 
identifying, correcting, and recording violations of nine standards 
found during preshift, supplemental, on-shift, and weekly mine 
examinations. Out of the additional time for examining for violations, 
MSHA estimates that an average of 3 minutes (0.05 hr) will be for 
recording the violations found and the corrective actions taken. MSHA 
has determined that requiring examiners to look for violations of nine 
standards during required examinations and recording the violations 
found and corrective actions taken, will increase the burden on 
operators, but will not require additional examiners.
Final Sec.  75.360--Burden to Make a Record of the Preshift Examination
    Final Sec.  75.360 requires operators to record hazardous 
conditions and violations of standards found during the preshift 
examination and the corrective actions taken. MSHA estimates that it 
would take an examiner an average of 3 minutes (0.05 hr) out of the 
total additional time needed to perform the preshift examination to 
record the violations and any corrective actions taken. An examiner 
conducting a preshift examination earns a supervisory wage of $84.69 an 
hour (includes benefits). MSHA estimates that--
     Mines with 1-19 employees operate one shift per day, 200 
days per year;
     Mines with 20-500 employees operate two shifts per day, 
300 days per year; and
     Mines with 501+ employees operate three shifts per day, 
350 days per year.
    MSHA's estimates of underground coal operators' annual burden hours 
and burden hour costs for preshift examinations are presented below.
Burden Hours
 172 mines x 1 shift x 200 days x 0.05 hr = 1,720 hr
 366 mines x 2 shifts x 300 days x 0.05 hr = 10,980 hr
 11 mines x 3 shifts x 350 days x 0.05 hr = 578 hr
    Total Hours = 13,278 hr
Burden Hour Costs
 13,278 hr x $84.69/hr = $1,124,514
    There are no other associated costs because the final rule adds to 
an existing system of recordkeeping.
Final Sec.  75.363--Burden to Make a Record of Violations Found
    Final Sec.  75.363 requires operators to record any violations of 
mandatory health or safety standards found on supplemental and on-shift 
examinations and any corrective actions taken. The final preshift 
(Sec.  75.360) and weekly (Sec.  75.364) examinations have their own 
recordkeeping requirements. The final supplemental (Sec.  75.361) and 
on-shift (Sec.  75.362) standards contain new recordkeeping 
requirements if a violation of a mandatory health or safety standard is 
found. The recordkeeping for these final standards would be recorded 
under final Sec.  75.363.
    During FY 2005 through 2009, MSHA inspectors found an annual 
average of 22,062 violations of the 9 top cited standards MSHA believes 
are most likely to be identified on preshift, supplemental, on-shift, 
and weekly examinations (see Section IV). 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.
    MSHA estimates that 80 percent of these violations (13,237 = 0.80 x 
16,547) would be found on the on-shift examinations and 20 percent of 
these violations (3,309 = 0.80 x 16,547) 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 $84.69 an hour perform on-shift 
exams and certified examiners earning $36.92 perform supplemental 
exams.
    MSHA's estimates of underground coal operators' annual burden hours 
and related costs are presented below.
Burden Hours
 13,239 violations x 0.05 hrs. = 662 hrs.
 3,310 violations x 0.05 hrs. = 165 hrs.
    Total Hours = 827 hrs.
Burden Costs
 662 hrs. x $84.69 wage rate = $56,065
 165 hrs. x $36.92 wage rate = $6,092
    Total burden cost = $62,157
Final Sec.  75.364--Burden to Make a Record of the Weekly Examinations
    Final Sec.  75.364 requires operators to conduct examinations every 
7 days and record hazardous conditions and violations of standards 
found and corrective actions taken. MSHA estimates that it will take a 
certified examiner approximately 3 minutes (0.05 hr) out of the total 
time needed to conduct the examination to record the violations found 
and corrective actions taken. An examiner conducting these weekly 
examinations earns a non-supervisory wage of $36.92 an hour (includes 
benefits). MSHA also estimates that, on average, mines operate for 50 
weeks per year.

[[Page 20713]]

    MSHA's estimates of underground coal operators' annual burden hours 
and related costs for weekly examinations are presented below.
Burden Hours
 549 mines x 50 weeks x 0.05 hr = 1,373 hr
Burden Hour Costs
 1,373 hr x $36.92/hr = $50,673

    There are no other associated costs because the final rule adds to 
an existing system of recordkeeping.

B. Procedural Details

    The information collection package for this final rule was 
submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the 
Paperwork Reduction Act of 1995, as amended. MSHA requested comment on 
its estimates for information collection requirements in the proposal 
and responded to these comments in the final rule. A Federal agency 
generally cannot conduct or sponsor a collection of information, and 
the public is generally not required to respond to an information 
collection, unless it is approved by the OMB under the PRA and displays 
a currently valid OMB Control Number. In addition, notwithstanding any 
other provisions of law, no person shall generally be subject to 
penalty for failing to comply with a collection of information if the 
collection of information does not display a valid OMB Control Number. 
See 5 CFR 1320.5(a) and 1320.6.
    The Department will, concurrent with publication of this rule, 
submit the information collections contained in this final rule for 
review under the PRA to the OMB, as part of a revision to Control 
Number 1219-0088. The Department will publish an additional Notice to 
announce OMB's action on the request and when the information 
collection requirements will take effect. 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.

IX. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this 
final 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 final 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.
    One commenter stated that they disagreed with MSHA's finding 
regarding E.O. 13132, that the proposed rule would not have `federalism 
implications' or a `substantial direct effect' on states. The commenter 
said that the rule would have real implications for states, with 
potentially substantial costs associated with training and 
certification. Historically, MSHA accepted state certifications for 
mine examiners. The final rule addresses hazardous conditions required 
under the existing rule and violations of health or safety standards. 
Since violations of the nine standards generally relate to hazardous 
conditions covered by the existing rule, MSHA believes that the final 
rule will have only a minimal effect on states. It is currently the 
responsibility of the mine operator to correct any violation of a 
health or safety standard. Based on Agency experience, MSHA does not 
anticipate that requiring examiners on preshift, supplemental, on-
shift, and weekly examinations to look for and identify violations of 
the nine standards in the final rule will affect training and 
certification done by the states.

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 
final 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 final rule impacts only the underground 
coal mine industry. Accordingly, MSHA certifies that this final rule 
would not impact family well-being.

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

    This final 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 final 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 final 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 final 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 final 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 final rule for its energy effects because the final rule applies 
to the underground coal mining sector. Because this final rule will 
result in yearly costs of approximately $17.0 million to the 
underground coal mining industry, relative to annual revenues of $18.8 
billion in 2010, MSHA has concluded that it is not a significant energy 
action because it is not likely to have a

[[Page 20714]]

significant adverse effect on the supply, distribution, or use of 
energy. Accordingly, under this analysis, no further Agency action or 
analysis is required.

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

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

X. 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 (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: April 3, 2012.
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 amended as 
follows:

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

0
1. The authority citation for part 75 subpart D is added to read as 
follows:

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

Subpart D--Ventilation

0
2. Section 75.360 is amended by revising paragraphs (a)(2), (b) 
introductory text, (e), and (g), and adding new paragraph (b)(11) 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 the mandatory 
health or safety standards referenced in paragraph (b)(11) of this 
section, 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 the 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 the mandatory health or 
safety standards referenced in paragraph (b)(11) of this section, test 
for methane and oxygen deficiency, and determine if the air is moving 
in its proper direction at the following locations:
* * * * *
    (11) Preshift examinations shall include examinations to identify 
violations of the standards listed below:
    (i) Sec. Sec.  75.202(a) and 75.220(a)(1)--roof control;
    (ii) Sec. Sec.  75.333(h) and 75.370(a)(1)--ventilation, methane;
    (iii) Sec. Sec.  75.400 and 75.403--accumulations of combustible 
materials and application of rock dust;
    (iv) Sec.  75.1403--other safeguards, limited to maintenance of 
travelways along belt conveyors, off track haulage roadways, and track 
haulage, track switches, and other components for haulage;
    (v) Sec.  75.1722(a)--guarding moving machine parts; and
    (vi) Sec.  75.1731(a)--maintenance of belt conveyor components.
* * * * *
    (e) The district manager may require the operator to examine other 
areas of the mine or examine for other hazards and violations of other 
mandatory health or safety standards found during the preshift 
examination.
* * * * *
    (g) Recordkeeping. A record of the results of each preshift 
examination, including a record of hazardous conditions and violations 
of the nine 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.
* * * * *

0
3. Section 75.361 is amended by revising paragraph (a) to read as 
follows:

Sec.  75.361  Supplemental examination.

    (a)(1) 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 the mandatory health or safety standards referenced in 
paragraph (a)(2) of this section, determine whether the air is 
traveling in its proper direction and at

[[Page 20715]]

its normal volume, and test for methane and oxygen deficiency.
    (2) Supplemental examinations shall include examinations to 
identify violations of the standards listed below:
    (i) Sec. Sec.  75.202(a) and 75.220(a)(1)--roof control;
    (ii) Sec. Sec.  75.333(h) and 75.370(a)(1)--ventilation, methane;
    (iii) Sec. Sec.  75.400 and 75.403--accumulations of combustible 
materials and application of rock dust;
    (iv) Sec.  75.1403--other safeguards, limited to maintenance of 
travelways along belt conveyors, off track haulage roadways, and track 
haulage, track switches, and other components for haulage;
    (v) Sec.  75.1722(a)--guarding moving machine parts; and
    (vi) Sec.  75.1731(a)--maintenance of belt conveyor components.
* * * * *

0
4. Section 75.362 is amended by revising paragraphs (a)(1) and (b), and 
adding new paragraph (a)(3) 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 the mandatory health 
or safety standards referenced in paragraph (a)(3) of this section, 
test for methane and oxygen deficiency, and determine if the air is 
moving in its proper direction.
* * * * *
    (3) On-shift examinations shall include examinations to identify 
violations of the standards listed below:
    (i) Sec. Sec.  75.202(a) and 75.220(a)(1)--roof control;
    (ii) Sec. Sec.  75.333(h) and 75.370(a)(1)--ventilation, methane;
    (iii) Sec. Sec.  75.400 and 75.403--accumulations of combustible 
materials and application of rock dust;
    (iv) Sec.  75.1403--other safeguards, limited to maintenance of 
travelways along belt conveyors, off track haulage roadways, and track 
haulage, track switches, and other components for haulage;
    (v) Sec.  75.1722(a)--guarding moving machine parts; and
    (vi) Sec.  75.1731(a)--maintenance of belt conveyor components.
    (b) During each shift that coal is produced, a certified person 
shall examine for hazardous conditions and violations of the mandatory 
health or safety standards referenced in paragraph (a)(3) of this 
section 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.
* * * * *

0
5. Section 75.363 is amended by adding new paragraph (e) and revising 
the section heading and paragraphs (a) and (b) to read as follows:

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 hazardous condition may enter the posted area. Any 
violation of a mandatory health or safety standard found during a 
preshift, supplemental, on-shift, or weekly examination shall be 
corrected.
    (b) A record shall be made of any hazardous condition and any 
violation of the nine mandatory health or safety standards found by the 
mine examiner. 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 the nine mandatory health or safety standards is found and shall 
include the nature and location of the hazardous condition or violation 
and the corrective action taken. This record shall not be required for 
shifts when no hazardous conditions or violations of the nine mandatory 
health or safety standards are found.
* * * * *
    (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.

0
6. Section 75.364 is amended by revising the introductory text of 
paragraph (b) and paragraphs (d) and (h), and adding new paragraph 
(b)(8) 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 the mandatory health or safety standards 
referenced in paragraph (b)(8) of this section shall be made by a 
certified person designated by the operator at the following locations:
* * * * *
    (8) Weekly examinations shall include examinations to identify 
violations of the standards listed below:
    (i) Sec. Sec.  75.202(a) and 75.220(a)(1)--roof control;
    (ii) Sec. Sec.  75.333(h) and 75.370(a)(1)--ventilation, methane;
    (iii) Sec. Sec.  75.400 and 75.403--accumulations of combustible 
materials and application of rock dust; and
    (iv) Sec.  75.1403--maintenance of off track haulage roadways, and 
track haulage, track switches, and other components for haulage;
    (v) Sec.  75.1722(a)--guarding moving machine parts; and
    (vi) Sec.  75.1731(a)--maintenance of belt conveyor components.
* * * * *
    (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 the nine mandatory health or safety 
standards 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 the nine 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

[[Page 20716]]

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. 2012-8328 Filed 4-4-12; 11:15 am]
BILLING CODE 4510-43-P
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