20700 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

Affairs, that the outside activity is not 

expected to involve conduct prohibited 

by statute or Federal regulation, 

including 5 CFR part 2635. 

(d) Definitions. For purposes of this 

section: 

(1) ‘‘Active participant’’ has the 

meaning set forth in 5 CFR 

2635.502(b)(1)(v). 

(2) ‘‘Nonpublic information’’ has the 

meaning set forth in 5 CFR 2635.703(b). 

(3) ‘‘Professional services’’ means the 

provision of personal services by an 

employee, including the rendering of 

advice or consultation, which involves 

application of the skills of a profession 

as defined in 5 CFR 2636.305(b)(1). 

(4) ‘‘Prohibited source’’ has the 

meaning set forth in 5 CFR 2635.203(d). 

(5) ‘‘Relates to the employee’s official 

duties’’ has the meaning set forth in 5 

CFR 2635.807(a)(2)(i)(B) through 

(a)(2)(i)(E). 

Dated: March 16, 2011. 

Steven J. Trent, 

Acting Inspector General, Special Inspector 

General for Afghanistan Reconstruction. 

Approved: March 20, 2011. 

Don W. Fox, 

Acting Director, Office of Government Ethics. 

[FR Doc. 2012–8191 Filed 4–5–12; 8:45 am] 

BILLING CODE 3710–L9–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2012–0292; Directorate 

Identifier 2011–NM–056–AD; Amendment 

39–16991; AD 2012–06–10] 

RIN 2120–AA64 

Airworthiness Directives; Airbus 

Airplanes 

Correction 

In rule document 2012–7008 

appearing on pages 19071–19074 in the 

issue of March 30, 2012, make the 

following correction: 

§ 39.13 [Corrected] 

■ On page 19073, in § 39.13, beginning 

in the second column, in the 28th line 

from the bottom, remove the duplicate 

section ‘‘(g) Inspection and Corrective 

Action in Fuel Tank Areas’’ which ends 

in the third column, in the 24th line 

from the top. 

[FR Doc. C1–2012–7008 Filed 4–5–12; 8:45 am] 

BILLING CODE 1505–01–D 

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. 

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 triebsch.george@dol.gov 

(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. § 75.360 Preshift Examination at Fixed 

Intervals 

B. § 75.361 Supplemental Examination 

C. § 75.362 On-Shift Examination 

D. § 75.363 Hazardous Conditions and 

Violations of Mandatory Health or Safety 

Standards; Posting, Correcting, and 

Recording 

E. § 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, onshift, 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 


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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; 


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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, onshift, 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: 

§§ 75.202(a) and 75.220(a)(1)—roof support 

and the mine roof control plan; 

§§ 75.333(h) and 75.370(a)(1)— 

maintenance of ventilation controls and the 

mine ventilation plan; 


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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 20703 

§§ 75.400 and 75.403—accumulations of 

combustible materials and application of 

rock dust; 

§ 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; 

§ 75.1722(a)—guarding moving machine 

parts; and 

§ 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. § 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 


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20704 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

have examiners perform additional 

tests, take additional measurements, or 

open and examine equipment or boxes. 

The mine operator is required by 

§ 75.220(a)(1) to develop and follow a 

roof control plan and by § 75.370(a)(1) 

to develop and follow a mine 

ventilation plan approved by the 

District Manager. These plans are minespecific 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 

§ 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 § 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 § 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 § 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 

§ 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 § 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 

§ 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 


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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 §§ 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. § 75.361 Supplemental Examination 

The final rule revises existing 

§ 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. § 75.362 On-Shift Examination 

The final rule revises existing 

§ 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. § 75.363 Hazardous Conditions and 

Violations of Mandatory Health or 

Safety Standards; Posting, Correcting, 

and Recording 

The final rule revises existing § 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 

§ 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 §§ 75.363(a) and (b) and 

75.364(h); those comments were 

addressed above under the discussion of 

recordkeeping in § 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 

§ 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. § 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 

§ 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 § 75.1403—other safeguards, 

maintenance of travelways along belt 

conveyors; § 75.1722(a)—guarding 

moving machine parts; and 

§ 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. 


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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

Mine size Number of underground 

coal mines 

Total employment at underground 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

Mine size Coal production 

(short 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 × 

$8.7 million + 6.4 × $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 


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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 § 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 


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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 datasets 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

Requirement 

Number of employees 

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 yearround; 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 onshift 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 § 75.360 

Final § 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 


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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 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 × 1 exam/day × 

200 days/yr × 0.5 hr × $84.69/hr); 

• $9.3 million in mines with 20–500 

employees (366 mines × 2 exams/day × 

300 days/yr × 0.5 hr × $84.69/hr); and 

• $500,000 in mines with 501+ 

employees (15 mines × 3 exams/day × 

350 days/yr × 0.5 hr × $84.69/hr). 

Supplemental Examination—Final 

§ 75.361 

Final § 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 × 4 exams/mine 

× 0.25 hr/exam × $36.92/hr); 

• $81,000 in mines with 20–500 

employees (366 mines × 24 exams/mine 

× 0.25 hr/exam × $36.92/hr); and 

• $2,400 in mines with 501+ 

employees (11 mines × 24 exams/mine 

× 0.25 hr/exam × $36.92/hr). 

On-Shift Examination—Final § 75.362 

Final § 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 onshift 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 × 1 shift/day × 200 

days/yr × 0.25 hr/shift × $84.69/hr); 

• $4.2 million in mines with 20–500 

employees (331 mines × 2 shifts/day × 

300 days/yr × 0.25 hr/shift × $84.69/hr); 

and 

• $267,000 in mines with 501+ 

employees (12 mines × 3 shifts/day × 

350 days/yr × 0.25 hr/shift × $84.69/hr). 

Hazardous Conditions and Violations of 

Health or Safety Standards; Posting, 

Correcting, Recording, and Reviewing— 

Final § 75.363(b) and (e) 

Final § 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 §§ 75.361 and 75.362 

above. 

Final § 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 nonsupervisory 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) 

× $84.69/hr × 4 mtg × 1 hr/mtg] + [17 

examiners × $36.92/hr × 4 mtg × 1 hr/ 

mtg]; 

• $448,000 in mines with 20–500 

employees [(73 agents + 530 examiners) 

× $84.69/hr × 4 mtg × 2 hr/mtg] + [132 

examiners × $36.92/hr × 4 mtg × 2 hr/ 

mtg]; and 

• $69,000 in mines with 501+ 

employees [(2 agents + 62 examiners) × 

$84.69/hr × 4 mtg × 4 hr/mtg] + [10 

examiners × $36.92/hr × 4 mtg × 4 hr/ 

mtg]. 

Weekly Examination—Final § 75.364 

Final § 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 × 50 wk/yr × 0.25 

hr/wk × $36.92/hr); 

• $169,000 in mines with 20–500 

employees (366 mines × 50 wk/yr × 0.25 

hr/wk × $36.92/hr); and 

• $5,000 in mines with 501+ 

employees (11 mines × 50 wk/yr × 0.25 

hr/wk × $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 


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20710 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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

Mine size Total number 

Mines 

Total number 

Miners 

Production 

(short tons) 

Revenues 

($59.51/ 

short 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. 


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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 20711 

TABLE 5—SUMMARY OF ANNUAL COSTS TO UNDERGROUND ANTHRACITE COAL MINE OPERATORS

Requirement 

Number of employees 

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. 


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20712 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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 § 75.360—Burden to Make a 

Record of the Preshift Examination 

Final § 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 × 1 shift × 200 days × 0.05 

hr = 1,720 hr 

• 366 mines × 2 shifts × 300 days × 0.05 

hr = 10,980 hr 

• 11 mines × 3 shifts × 350 days × 0.05 

hr = 578 hr 

Total Hours = 13,278 hr 

Burden Hour Costs 

• 13,278 hr × $84.69/hr = $1,124,514 

There are no other associated costs 

because the final rule adds to an 

existing system of recordkeeping. 

Final § 75.363—Burden to Make a 

Record of Violations Found 

Final § 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 (§ 75.360) and weekly 

(§ 75.364) examinations have their own 

recordkeeping requirements. The final 

supplemental (§ 75.361) and on-shift 

(§ 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 § 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 × 16,547) 

would be found on the on-shift 

examinations and 20 percent of these 

violations (3,309 = 0.80 × 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 × 0.05 hrs. = 662 

hrs. 

• 3,310 violations × 0.05 hrs. = 165 hrs. 

Total Hours = 827 hrs. 

Burden Costs 

• 662 hrs. × $84.69 wage rate = $56,065 

• 165 hrs. × $36.92 wage rate = $6,092 

Total burden cost = $62,157 

Final § 75.364—Burden to Make a 

Record of the Weekly Examinations 

Final § 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 nonsupervisory wage of $36.92 an hour 

(includes benefits). MSHA also 

estimates that, on average, mines 

operate for 50 weeks per year. 


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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 20713 

MSHA’s estimates of underground 

coal operators’ annual burden hours and 

related costs for weekly examinations 

are presented below. 

Burden Hours 

• 549 mines × 50 weeks × 0.05 hr = 

1,373 hr 

Burden Hour Costs 

• 1,373 hr × $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 


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20714 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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 

■ 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 

■ 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: 

§ 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 § 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) §§ 75.202(a) and 75.220(a)(1)—roof 

control; 

(ii) §§ 75.333(h) and 75.370(a)(1)— 

ventilation, methane; 

(iii) §§ 75.400 and 75.403— 

accumulations of combustible materials 

and application of rock dust; 

(iv) § 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) § 75.1722(a)—guarding moving 

machine parts; and 

(vi) § 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. 

* * * * * 

■ 3. Section 75.361 is amended by 

revising paragraph (a) to read as follows: 

§ 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 


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Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 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) §§ 75.202(a) and 75.220(a)(1)—roof 

control; 

(ii) §§ 75.333(h) and 75.370(a)(1)— 

ventilation, methane; 

(iii) §§ 75.400 and 75.403— 

accumulations of combustible materials 

and application of rock dust; 

(iv) § 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) § 75.1722(a)—guarding moving 

machine parts; and 

(vi) § 75.1731(a)—maintenance of belt 

conveyor components. 

* * * * * 

■ 4. Section 75.362 is amended by 

revising paragraphs (a)(1) and (b), and 

adding new paragraph (a)(3) to read as 

follows: 

§ 75.362 On-shift examination. 

(a)(1) At least once during each shift, 

or more often if necessary for safety, a 

certified person designated by the 

operator shall conduct an on-shift 

examination of each section where 

anyone is assigned to work during the 

shift and any area where mechanized 

mining equipment is being installed or 

removed during the shift. The certified 

person shall check for hazardous 

conditions and violations of 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) §§ 75.202(a) and 75.220(a)(1)—roof 

control; 

(ii) §§ 75.333(h) and 75.370(a)(1)— 

ventilation, methane; 

(iii) §§ 75.400 and 75.403— 

accumulations of combustible materials 

and application of rock dust; 

(iv) § 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) § 75.1722(a)—guarding moving 

machine parts; and 

(vi) § 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. 

* * * * * 

■ 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: 

§ 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. 

■ 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: 

§ 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) §§ 75.202(a) and 75.220(a)(1)—roof 

control; 

(ii) §§ 75.333(h) and 75.370(a)(1)— 

ventilation, methane; 

(iii) §§ 75.400 and 75.403— 

accumulations of combustible materials 

and application of rock dust; and 

(iv) § 75.1403—maintenance of off 

track haulage roadways, and track 

haulage, track switches, and other 

components for haulage; 

(v) § 75.1722(a)—guarding moving 

machine parts; and 

(vi) § 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 


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20716 Federal Register / Vol. 77, No. 67 / Friday, April 6, 2012 / Rules and Regulations 

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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket Number USCG–2012–0165] 

Drawbridge Operation Regulation; 

Upper Mississippi River, Rock Island, 

IL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of temporary deviation 

from regulations. 

SUMMARY: The Commander, Eighth 

Coast Guard District, has issued a 

temporary deviation from the regulation 

governing the operation of the Rock 

Island Railroad and Highway 

Drawbridge across the Upper 

Mississippi River, mile 482.9, at Rock 

Island, Illinois. The deviation is 

necessary to allow the Quad Cities Live 

Uncommon Walk to cross the bridge. 

This deviation allows the bridge to be 

maintained in the closed-to-navigation 

position for two hours. 

DATES: This deviation is effective from 

8:30 p.m. to 10:30 p.m. on June 2, 2012. 

ADDRESSES: Documents mentioned in 

this preamble as being available in the 

docket are part of docket USCG–2012– 

0165 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2012–0165 in the ‘‘Keyword’’ 

box and then clicking ‘‘Search’’. They 

are also available for inspection or 

copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Eric A. Washburn, Bridge 

Administrator, Western Rivers, Coast 

Guard; telephone (314) 269–2378, email 

Eric.Washburn@uscg.mil. If you have 

questions on viewing the docket, call 

Renee V. Wright, Program Manager, 

Docket Operations, telephone (202) 

366–9826. 

SUPPLEMENTARY INFORMATION: The U.S. 

Army Rock Island Arsenal requested a 

temporary deviation for the Rock Island 

Railroad and Highway Drawbridge, 

across the Upper Mississippi River, mile 

482.9, at Rock Island, Illinois to remain 

in the closed-to-navigation position for 

a two-hour period from 8:30 p.m. to 

10:30 p.m., June 2, 2012, while a walk 

is held between the cities of Davenport, 

IA and Rock Island, IL. The Rock Island 

Railroad and Highway Drawbridge 

currently operates in accordance with 

33 CFR 117.5, which states the general 

requirement that drawbridges shall open 

promptly and fully for the passage of 

vessels when a request to open is given 

in accordance with the subpart. 

There are no alternate routes for 

vessels transiting this section of the 

Upper Mississippi River. 

The Rock Island Railroad and 

Highway Drawbridge, in the closed-tonavigation position, provides a vertical 

clearance of 23.8 feet above normal 

pool. Navigation on the waterway 

consists primarily of commercial tows 

and recreational watercraft. This 

temporary deviation has been 

coordinated with waterway users. No 

objections were received. 

In accordance with 33 CFR 117.35(e), 

the drawbridge must return to its regular 

operating schedule immediately at the 

end of the designated time period. This 

deviation from the operating regulations 

is authorized under 33 CFR 117.35. 

Dated: March 12, 2012. 

Eric A. Washburn, 

Bridge Administrator, Western Rivers. 

[FR Doc. 2012–8293 Filed 4–5–12; 8:45 am] 

BILLING CODE 9110–04–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2011–0943] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Blackwater River, South Quay, VA 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is changing 

the regulations that govern the operation 

of the S189 Bridge over Blackwater 

River, mile 9.2, at South Quay, VA. The 

new rule will change the current 

regulation requiring a 24-hour advance 

notice and allow the bridge to remain in 

the closed position for the passage of 

vessels. There have been no requests for 

openings in 11 years. 

DATES: This rule is effective May 7, 

2012. 

ADDRESSES: Comments and related 

materials received from the public, as 

well as documents mentioned in this 

preamble as being available in the 

docket, are part of docket USCG–2011– 

0943 and are available by going to 

http://www.regulations.gov, inserting 

USCG–2011–0943 in the ‘‘Keyword’’ 

box, and then clicking ‘‘Search.’’ This 

material is also available for inspection 

or copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Jim Rousseau, Bridge 

Management Specialist, Coast Guard; 

telephone 757–398–6557, email 

James.L.Rousseau2@uscg.mil. If you 

have questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone 202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On December 8, 2011, we published 

a notice of proposed rulemaking 

(NPRM) entitled Drawbridge Operation 

Regulation; Blackwater River, South 

Quay, VA in the Federal Register (76 FR 

76634). We received no comments on 

the proposed rule. No public meeting 

was requested, and none was held. 


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