87904 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

1Accidents at mines are classified by MSHA 

based on the Agency’s ‘‘Accident Investigation 

Procedures Handbook,’’ which defines 21 categories 

of mine-related accidents. Most accidents involving 

mining equipment are classified under one of two 

MSHA accident categories—powered haulage 

accidents or machinery accidents—depending on 

the type of equipment involved. For more 

information, please see MSHA Accident 

Investigation Procedures Handbook, December 

2020, Appendix 7, Accident Classifications— 

available at https:/arlweb.msha.gov/READROOM/ 

HANDBOOK/PH20-I-4.pdf. 

2MSHA Fatality Reports, https://www.msha.gov/ 

data-and-reports/fatality-reports/search?page=2. 

3More information on MSHA’s ‘‘Stand Down for 

Safety Day’’ can be found on MSHA’s website at 

https://blog.dol.gov/2021/07/14/stop-poweredhaulage-accidents-stay-alert-stay-alive. 

4More information on MSHA’s ‘‘Take Time, Save 

Lives’’ campaign can be found on MSHA’s website 

at https://www.msha.gov/take-time-save-lives. 

5MSHA’s Miner Safety & Health App gives 

miners and mine operators instant access to 

information that can help keep them safe and 

healthy on the job. The app provides important 

safety alerts, safety and health best practices that 

apply to their daily work, information on their 

rights and responsibilities, and the ability to contact 

MSHA with a question or to report an accident or 

hazard. The app is available for free on Android 

and iPhone mobile devices and can also be found 

at the respective app stores by searching for ‘‘Miner 

Safety & Health.’’ More information can be found 

on MSHA’s website at https://www.msha.gov/ 

miner-safety-health-application. 

■ b. Removing paragraph (i). 

The revisions read as follows: 

§ 543.32 Processing the claim. 

* * * * * 

(e) Central Office review. * * * 

* * * * * 

(g) Acceptance of settlement. If you 

accept a settlement, you give up your 

right to bring a lawsuit against the 

United States or against any employee 

of the government whose action or lack 

of action gave rise to your claim. 

(h) Response timeline. Generally, you 

will receive a decision regarding your 

claim within six months of when you 

properly present the claim. If you have 

not received a letter either proposing a 

settlement or denying your claim within 

six months after the date your claim was 

presented, you may assume your claim 

is denied. You may then proceed to file 

a lawsuit in the appropriate United 

States District Court. 

Daniel J. Crooks III, 

Assistant General Counsel/Rules 

Administrator, Federal Bureau of Prisons. 

[FR Doc. 2023–28011 Filed 12–19–23; 8:45 am] 

BILLING CODE 4410–05–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Parts 56, 57, and 77 

[Docket No. MSHA–2018–0016] 

RIN 1219–AB91 

Safety Program for Surface Mobile 

Equipment 

AGENCY: Mine Safety and Health 

Administration (MSHA), Department of 

Labor. 

ACTION: Final rule. 

SUMMARY: The Mine Safety and Health 

Administration (MSHA or the Agency) 

is requiring that mine operators 

develop, implement, and update, 

periodically or when necessary, a 

written safety program for surface 

mobile equipment (excluding belt 

conveyors) at surface mines and surface 

areas of underground mines. The 

written safety program must be 

developed and updated with input from 

miners and their representatives. The 

written safety program must include 

actions mine operators will take to 

identify hazards and risks to reduce 

accidents, injuries, and fatalities related 

to surface mobile equipment. The final 

rule offers mine operators flexibility to 

devise a safety program that is 

appropriate for their specific mining 

conditions and operations. 

DATES: 

Effective date: The final rule is 

effective January 19, 2024. 

Compliance date: Compliance with 

this final rule is not required until July 

17, 2024 

FOR FURTHER INFORMATION CONTACT: S. 

Aromie Noe, Director, Office of 

Standards, Regulations and Variances, 

MSHA, at Noe.Song-Ae.A@dol.gov 

(email), 202–693–9440 (voice) or 202– 

693–9441 (facsimile). These are not tollfree numbers. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction 

II. Section-by-Section Analysis 

III. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

14094 (Modernizing Regulatory Review), 

and 13563 (Improving Regulation and 

Regulatory Review) 

IV. Regulatory Flexibility Analysis (RFA) and 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) and Executive 

Order 13272: Proper Consideration of 

Small Entities in Agency Rulemaking 

V. Paperwork Reduction Act of 1995 

VI. Other Regulatory Considerations 

VII. References 

I. Introduction 

A. Regulatory Authority 

This final rule is issued under section 

101 of the Federal Mine Safety and 

Health Act of 1977 (Mine Act), as 

amended. 30 U.S.C. 811. 

B. Background 

A variety of mining equipment is used 

at surface mines or in surface areas of 

underground mines. Surface mining 

vehicles can be very large (many can be 

several stories tall) and are capable of 

destroying smaller vehicles that cannot 

be seen by the vehicle operators. 

Accidents involving mining equipment 

are a leading cause of fatalities at mines, 

although fatalities involving powered 

haulage equipment, a type of mobile 

equipment, decreased in 2022.1 2 To 

reduce the number of accidents, injuries 

and fatalities at mines, MSHA 

implemented several powered haulage 

initiatives—for example, conducting 

safety awareness campaigns, providing 

powered haulage guidance and 

technical assistance, and disseminating 

training materials and best-practices 

information that addresses powered 

haulage safety. Despite these efforts, in 

2023, machinery (mobile) accidents 

have still accounted for a significant 

number of mining fatalities. 

On July 20, 2021, for example, MSHA 

hosted a national ‘‘Stand Down for 

Safety Day’’ to focus on powered 

haulage accidents and vehicle rollovers 

to help educate miners, save lives, and 

prevent injuries.3 On that day, Mine 

Safety and Health Enforcement (MSHE) 

and Educational Field and Small Mine 

Services (EFSMS) staff visited mines to 

meet with miners and operators to 

increase awareness of powered haulage 

hazards and the need to be familiar with 

and follow mine-safety best practices. 

On February 28, 2022, MSHA 

announced its ‘‘Take Time, Save Lives’’ 

campaign to remind mine operators to 

train miners and ensure miners can take 

their time to prevent accidents and 

injuries and to save lives.4 As part of the 

campaign, mines across the country 

received a poster to display at mine sites 

with steps operators and miners can 

take to stay safe, including actions 

related to working around powered 

haulage equipment and wearing seat 

belts. 

In addition, over the years, MSHA has 

developed a wide variety of mine safety 

and health materials and has made them 

available on the Agency’s website 

(http://www.msha.gov) and mobile app.5

These materials are intended to assist 

trainers and mine operators in 

promoting a safe and healthy 

environment, and among other topics, 

they cover safety topics related to 

mobile equipment at surface mines. For 

example, MSHA issued Powered 

Haulage Equipment Guidance in 2021 

intended to help prevent accidents 

associated with working with, on, or 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87905 

6More information on MSHA’s Powered Haulage 

Safety Initiative can be found on MSHA’s website 

at https://www.msha.gov/safety-and-health/safetyand-health-initiatives/powered-haulage-safety. 

MSHA’s guidance on mitigating and preventing 

powered haulage equipment accidents, entitled 

‘‘Powered Haulage Equipment Safety Guidance,’’ 

can be found on MSHA’s website at https:// 

www.msha.gov/sites/default/files/events/ 

Powered%20Haulage%20Guidance.pdf. 

7As part of the proposed rule, MSHA reviewed 

safety program guidance materials from several 

types of organizations: (1) consensus standards 

organizations (e.g., American Society of Safety 

Professionals (ASSP), Occupational Health and 

Safety Management Systems, ANSI/ASSP Z10–2012 

(R2017); and the International Standards 

Organization (ISO), Occupational Health and Safety 

Management Systems—Requirements With 

Guidance for Use (ISO 45001:2018)); (2) industry 

organizations (e.g., the National Mining 

Association’s CORESafety and Health Management 

System); and (3) government agencies (e.g., the 

Department of Transportation, 49 CFR part 270). 

The Department of Labor’s Occupational Safety and 

Health Administration (OSHA) also has developed 

recommended practices for developing safety and 

health programs (https://www.osha.gov/ 

shpguidelines/). 86 FR 50498. 

near powered haulage equipment.6

MSHA also launched an enforcement 

initiative focused on powered haulage 

by issuing guidance on preventing 

accidents and meeting with mine 

personnel to emphasize best safety 

practices and training. 

In April 2022, to complement the 

Agency’s awareness initiatives, the 

Agency implemented an Enhanced 

Enforcement Program to help improve 

safety and health in the mining 

industry. As a part of MSHA’s regular 

inspections, this program focuses on 

task training and hazard training for 

customer and contract truck drivers and 

task training for managers and 

supervisors who perform mining tasks. 

For example, MSHA inspectors will 

observe truck drivers and focus on 

enforcing existing standards necessary 

to ensure that they perform tasks in a 

safe manner at mines. 

C. Rulemaking History 

As part of its overall effort to improve 

safety in the use of mining equipment, 

MSHA published a request for 

information (RFI) on June 26, 2018, 

entitled Safety Improvement 

Technologies for Mobile Equipment at 

Surface Mines, and for Belt Conveyors 

at Surface and Underground Mines (83 

FR 29716). The RFI focused on 

technologies for reducing accidents 

involving mobile equipment at surface 

mines and surface areas of underground 

mines and belt conveyors at surface and 

underground mines. The RFI requested 

information on what types of 

engineering controls are available, how 

to implement engineering controls, and 

how these controls could be used on 

mobile equipment and belt conveyors to 

reduce accidents, fatalities, and injuries. 

MSHA sought information on 

technologies, controls, and training that 

provide additional protection from 

accidents related to mobile equipment 

operation and working near or around 

belt conveyors. 

To encourage additional public 

participation, the Agency held six 

stakeholder meetings and one webinar 

in August and September 2018. The 

meetings were held in Birmingham, 

Alabama; Dallas, Texas; Reno, Nevada; 

Beckley, West Virginia; Albany, New 

York; and Arlington, Virginia. 

Commenters responding to the RFI 

supported MSHA’s focused efforts to 

improve miner safety related to the 

operation of mobile equipment at 

surface mines and in surface areas of 

underground mines. Some emphasized 

the use of technologies to achieve this 

goal, such as the use of new 

technologies and the use of current 

technologies (e.g., collision avoidance 

systems, collision warning systems, and 

seat belt warning signals used in 

automobiles). Others supported the 

importance of non-technological 

interventions, such as safety programs, 

to bring about behavioral and cultural 

changes. Commenters differed in how 

technological and non-technological 

interventions should be implemented. 

Some commenters noted that the 

application of engineering controls or 

technologies needs further review by 

MSHA and the National Institute for 

Occupational Safety and Health 

(NIOSH) before any regulatory changes 

are made. Other commenters suggested 

that the use of new technologies has the 

best outcomes when mine operators and 

their employees partner with other 

stakeholders such as NIOSH and 

equipment manufacturers. 

In addition, one commenter 

underscored the importance of safety 

culture at a workplace. This commenter 

observed that mine operators who 

develop and implement safety programs 

do so with the goal of preventing 

injuries, fatalities, and the suffering 

these accidents cause miners, their 

families, and their communities. The 

commenter noted that for these mine 

operators, preventing harm to their 

miners is more than just compliance 

with safety requirements; it reflects a 

culture of safety. According to the 

commenter, this culture of safety 

derives from a commitment to a 

systematic, effective, and 

comprehensive approach to safety 

management at mines with the full 

participation of miners. 

On September 9, 2021, MSHA 

published the proposed rule, Safety 

Program for Surface Mobile Equipment 

(86 FR 50496). In addition to 

information gathered from stakeholders 

who commented on the RFI, MSHA 

based the proposed rule on best 

practices and guidance on workplace 

safety programs.7 The comment period 

closed on November 8, 2021. On 

December 20, 2021, in response to a 

public request, MSHA reopened the 

rulemaking record for additional 

comments, and the Agency held a 

virtual public hearing on the proposed 

rule on January 11, 2022 (86 FR 71860). 

The comment period closed on February 

11, 2022. 

MSHA’s proposed rule addresses 

hazards related to surface mobile 

equipment (except belt conveyors) used 

at surface mines and surface areas of 

underground mines. Surface mobile 

equipment in the proposed rule refers to 

wheeled, skid-mounted, track-mounted, 

or rail mounted equipment capable of 

moving or being moved and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface 

mines and surface areas of underground 

mines. Examples of this equipment 

include bulldozers, front-end loaders, 

skid steers, excavators, draglines, 

graders, and haul trucks. 

The proposed rule would require a 

written safety program for operators 

employing six or more miners. The 

proposed written safety program would 

list actions that mine operators would 

take to identify hazards and reduce 

risks, develop equipment maintenance 

and repair schedules, evaluate 

technologies, and train miners. The 

proposal would provide mine operators 

with the flexibility to tailor the written 

safety program to meet the needs of 

their operations and unique mining 

conditions. Under the proposal, mine 

operators would be required to evaluate 

and update the written safety program 

whenever necessary to appropriately 

manage safety risks associated with 

their surface mobile equipment. 

MSHA received comments on the 

proposed rule from miners, safety 

associations, mining associations, 

mining companies, manufacturers, labor 

unions, and trade associations. (Public 

comments and supporting 

documentation submitted were posted 

on MSHA’s website and at 

www.regulations.gov, along with the 

transcript from the public hearing.) 

Commenters supported MSHA’s efforts 

to ensure the safety of all miners from 

powered haulage accidents. After 

considering the comments, for the 

reasons discussed further below, MSHA 


ddrumheller on DSK120RN23PROD with RULES1
87906 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

is adopting the proposed rule with 

modifications. MSHA has addressed 

comments more fully in the next 

section, Section II, Section-by-Section 

Analysis, of this preamble. 

II. Section-by-Section Analysis 

A. Sections 56.23000, 57.23000, and 

77.2100—Purpose and Scope 

Final §§ 56.23000, 57.23000, and 

77.2100 address the purpose and scope 

of the final rule. Like the proposal, final 

§§ 56.23000, 57.23000, and 77.2100 

state that the purpose of the safety 

program is to reduce the accidents, 

injuries, and fatalities related to the 

operation of surface mobile equipment, 

promote and support a positive safety 

culture, and improve miners’ safety at 

the mine. Unlike the proposal, all mine 

operators are required to develop, 

implement, and update a written safety 

program for surface mobile equipment 

used at surface mines and surface areas 

of underground mines. The final rule is 

changed from the proposal to cover 

operators with five or fewer miners. 

After reviewing comments and data, the 

Agency determined that operators of 

these mines need to develop a written 

safety program to address surface 

mobile equipment at their operations to 

protect their miners. MSHA intends to 

provide compliance assistance where 

necessary. 

1. Mines Covered by the Proposal— 

Mines Employing 6 or More Miners 

In the proposal, §§ 56.23000, 

57.23000, and 77.2100 would require 

mine operators with six or more miners 

to develop a written safety program. In 

the proposed rule, MSHA also requested 

comment on potentially requiring mines 

with five or fewer miners to develop a 

written safety program. Safety Program: 

Surface Mobile Equipment, 86 FR 

50,496, 50,500 (Sept. 9, 2021). 

Commenters stated that all mine 

operators, regardless of the number of 

miners employed, should be required to 

have a written safety program and that 

miners at small operations need the 

same protections as miners at larger 

operations. Several commenters stated 

that, regardless of whether a facility 

employs one miner or one hundred 

miners, each individual should be 

protected equally. One commenter 

stated that even though data may 

indicate that serious accidents occur 

less frequently at smaller operations, all 

miners and operations should still be 

covered because the hazards involving 

surface mobile equipment pose a risk for 

all miners. Several commenters stated 

that applying the rule to all mines, 

regardless of the number of miners 

employed, will minimize confusion, 

enhance safety practices, and increase 

consistency across mines and 

throughout MSHA enforcement. One 

commenter stated that the Mine Act 

does not set a threshold for how many 

miners must be employed at a mine in 

order for it to be subject to a standard, 

and as such, operators with five or fewer 

miners should not be excluded. Several 

commenters supported MSHA’s goal to 

minimize the burden on small 

operations, but they did not believe that 

a mobile equipment safety program will 

present an undue economic burden on 

operators with five or fewer miners if 

MSHA provides clear guidance 

regarding what is expected. 

In response to comments, MSHA 

reviewed recent data from 2011 to 2020 

on fatalities and injuries and accident 

investigation reports. Based on that 

review, MSHA determined that the 

fatality rate for mines with five or fewer 

miners is greater than that for larger 

mines. MSHA found that from 2011 to 

2020, the average fatality rates (or fatal 

incidence rate) per 200,000 working 

hours were as follows: 0.0227 at mines 

with 5 or fewer employees; 0.0167 at 

mines with 6 to 20 employees; 0.0103 at 

mines with 21 to 100 employees, and 

0.0079 at mines with more than 100 

employees. See Table II–1. 

TABLE II–1—FATALITY RATES (OR FATAL INCIDENCE RATES), 2011–2020 

Mine size (based on all mine employees) 

5 or fewer 

employees 

6 to 20 

employees 

21 to 100 

employees 

101 or more 

employees 

Fatalities at Surface Mines and Surface Areas of Underground Mines (10-year 

total) 1 ......................................................................................................................... 25 65 47 44 

Hours worked at Surface Mines and Surface Areas of Underground Mines (10-year 

total in millions) 2 ........................................................................................................ 220.5 776.9 912.6 1,110.6 

Fatal Incidence Rate (or Fatality Rate) per 200,000 Working hours 3 .......................... 0.0227 0.0167 0.0103 0.0079 

1 Includes fatalities of miners (including contract miners and office workers) that occurred at surface mines and at surface areas of underground mines. 2 Includes hours worked by miners (excluding contract miners) at surface mines and at surface areas of underground mines. Does not include 

hours worked at facilities. 3 (Number of Fatalities × 200,000)/Hours Worked = Fatality Rate. 

Note: Table excludes fatalities and work hours reported at facilities. 

Based on the analysis and comments, 

the final rule requires a written safety 

program for all mines. MSHA agrees 

with comments that the Mine Act 

requires that miners’ safety and health 

must be protected no matter how many 

employees work at the mine. The 

Agency concludes that applying the 

final rule to all mines will provide 

improved safety for all miners. 

MSHA will provide compliance 

assistance through the Agency’s EFSMS 

staff to all mines. MSHA will also 

encourage state grantees to focus on 

providing training to address hazards 

and risks involving surface mobile 

equipment in small mining operations. 

In addition, MSHA will provide 

assistance to small mine operators in the 

form of additional training materials, 

education, technical assistance, and 

work with mining industry stakeholders 

as it develops materials and templates to 

assist mine operators. Also, MSHA is 

implementing a 6-month delayed 

compliance date from the effective date 

to provide mine operators, especially 

small mine operators, sufficient time to 

identify and acquire, if necessary, the 

needed resources to comply with this 

final rule. 

2. Belt Conveyors 

The proposed rule did not include 

belt conveyors in the definition of 

surface mobile equipment. MSHA 

received comments on whether to 

include or exclude belt conveyors from 

the definition of surface mobile 

equipment and whether belt conveyors 

should be covered under this rule. Some 

commenters stated that belt conveyors 

should be included in the scope of the 

rule and that a written safety program 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87907 

should be developed and implemented 

to include them. One commenter 

reviewed accident and injury data and 

stated that many fatalities are associated 

with belt conveyers. Several 

commenters stated that technologies 

and controls exist that can help prevent 

accidents, for example: devices that can 

sense a miner’s presence in hazardous 

locations, properly installed machine 

guards, and properly locked-out and 

tagged-out machines undergoing 

maintenance. According to these 

commenters, MSHA should require a 

written safety program for belt 

conveyors just as it is requiring one for 

mobile and powered haulage 

equipment. 

Several commenters agreed with 

MSHA’s exclusion of belt conveyors 

from the proposed rule. The 

commenters stated that belt conveyors 

should be addressed separately from 

powered haulage vehicles because they 

are very different types of equipment 

and keeping them separate would 

increase clarity. 

Based on the comments, the final rule, 

like the proposal, excludes belt 

conveyors from the definition of surface 

mobile equipment. Belt conveyors 

present different safety hazards from 

those associated with surface mobile 

equipment. Belt conveyors range from a 

single belt to a series of belts spanning 

miles. All conveyor systems have 

inherent dangers while in motion. Belt 

conveyor accidents predominantly 

involve entanglements in equipment 

whereas accidents related to other 

mobile equipment involve striking, 

colliding, falling, or overtravel while the 

equipment is in operation. MSHA 

continues to believe that the safety 

issues surrounding the operation of belt 

conveyors can be better addressed 

through existing standards (e.g., §§ 56/ 

57.14107 and 56/57.14112 for moving 

machine parts and construction and 

maintenance of guards), best practices, 

and training. As MSHA does with many 

other types of mining equipment, the 

Agency provides training resources to 

help operators and miners that include 

best practices for working safely around 

conveyor systems. These best practices 

are available on the Agency’s website at 

http://www.msha.gov. 

3. Underground Areas of Underground 

Mines 

MSHA proposed to require a written 

safety program for surface mobile 

equipment at surface mines and surface 

areas of underground mines. Several 

commenters stated that all areas of 

underground mines—meaning both 

surface and underground areas of 

underground mines—should be 

included in the scope of the proposed 

rule. Commenters stated that powered 

haulage accidents happen in 

underground areas of underground 

mines, not just surface areas. This 

observation, a commenter pointed out, 

is based on MSHA accident data. One 

commenter stated that underground 

mining equipment should be expressly 

excluded from the proposed rule even if 

the equipment is operated on surface 

areas. 

Like the proposal, the final rule 

applies to surface mobile equipment 

used at surface mines as well as surface 

areas of underground mines. Surface 

mobile equipment being used in 

underground mines and only brought to 

the surface for maintenance or repair, 

for example, is not included in the 

scope of the final rule. 

A large amount of surface mobile 

equipment operates at many surface 

mines and surface areas of underground 

mines, which creates common hazards 

such as striking, collision, and falling. 

Surface mobile equipment tends to be 

complex and large in size (compared to 

mobile equipment used at underground 

mines), which generates some unique 

hazards, such as large blind spots for 

equipment operators. The final rule 

applies only to surface mobile 

equipment. 

As is the Agency’s practice, MSHA 

will continue to work with operators 

and miners in underground mines to 

deliver training and best practice 

materials to prevent accidents involving 

mobile equipment in underground areas 

and to provide safety protections for 

miners at these mines. 

B. Sections 56.23001, 57.23001, and 

77.2101—Definitions 

Final §§ 56.23001, 57.23001, and 

77.2101 continue to define the terms 

responsible person and surface mobile 

equipment in the same way as defined 

in the proposed rule. 

MSHA proposed to define a 

responsible person as a person with 

authority and responsibility to evaluate 

and update a written safety program for 

surface mobile equipment. MSHA 

believes that designating a person with 

authority and responsibility to evaluate 

and update the safety program as 

necessary will help ensure the 

successful development and 

maintenance of a safety program that 

addresses and reduces the likelihood of 

surface mobile equipment hazards at a 

particular mine. This individual should 

be able to communicate the operator’s 

commitment to safety and the 

importance of miners’ involvement in 

the program to prevent or mitigate 

hazards. The responsible person must 

communicate the goals of the safety 

program to all miners. The responsible 

person will need to have the experience 

and knowledge about mining 

conditions, including surface mobile 

equipment, necessary to evaluate and 

update the written safety program. 

MSHA received comments on this 

definition. Commenters indicated a 

preference for removing or redefining 

the term. Some commenters stated that 

the definition is redundant and should 

be deleted, and that operators are 

already required to designate a 

responsible person for health and safety 

purposes. Several commenters 

discussed the similarities between the 

responsibilities and liability burdens of 

the mine operator, as compared to the 

proposed definition of a responsible 

person. One commenter stated that the 

definition should be deleted as it serves 

no purpose. 

Other commenters brought up the 

feasibility of assigning the duties to a 

single individual. For example, one 

commenter stated its view that the 

proposed rule would require a person 

that has the knowledge to identify 

hazards on every piece of mobile 

equipment, the authority to make highlevel financial decisions, and the 

responsibility for any shortfalls in the 

program. Still other commenters 

questioned the consequences of 

assigning the title of ‘‘responsible 

person’’ to a single individual because 

that individual could become 

temporarily or permanently unavailable. 

One commenter stated that MSHA 

should amend this language to clearly 

allow for multiple persons to be 

designated as a responsible person. In 

the commenter’s view, there are many 

practical reasons to have additional 

people in this position. For example, if 

one designee is out sick, on vacation, or 

leaves the company, there would still be 

a designated responsible person on-site. 

In response to the comments, the final 

rule requires that each operator 

designate at least one responsible 

person to evaluate and update the 

written safety program. Under the final 

rule, the operator can designate one 

person or multiple persons so long as 

the designated persons have the 

authority and responsibility to evaluate 

and update the written safety program. 

In addition, the final rule, like the 

proposed rule, defines surface mobile 

equipment as wheeled, skid-mounted, 

track-mounted, or rail-mounted 

equipment capable of moving or being 

moved, and any powered equipment 

that transports people, equipment, or 

materials, excluding belt conveyors, at 

surface mines and surface areas of 

underground mines. This definition is 


ddrumheller on DSK120RN23PROD with RULES1
87908 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

adapted from the current definition in 

30 CFR 56.2 and 57.2 for metal and 

nonmetal mines: mobile equipment 

means ‘‘wheeled, skid-mounted, trackmounted, or rail-mounted equipment 

capable of moving or being moved.’’ 

MSHA received comments on the 

proposed definition of surface mobile 

equipment. Several commenters 

requested that MSHA clarify the type of 

equipment that would meet the 

proposed definition. One commenter 

stated that equipment such as push 

carts, welding carts, cylinder carts, and 

basic hand trucks would be subject to 

the proposed rule. The commenter 

stated that the rationale to include this 

type of equipment under the definition 

is unclear. Another commenter stated 

that certain skid-mounted equipment 

such as light towers and substations 

could be covered unintentionally. 

Another commenter stated that it is 

unclear whether small boats, portable 

crushers, dredges, etc., are included. 

Several commenters requested further 

clarification from MSHA on the types of 

equipment to be included in the 

definition. Commenters requested that 

MSHA provide a finite list of equipment 

that would be included or exempted 

from the rule. One commenter suggested 

that MSHA create a supplementary, 

clarifying guidance document. 

After reviewing all the comments, 

MSHA concludes that the definition in 

this final rule is sufficiently clear about 

what types of surface mobile equipment 

are subject to a written safety program. 

Surface mobile equipment excludes any 

manually powered tools, such as 

wheelbarrows, hand carts, push carts, 

welding carts, cylinder carts, basic hand 

trucks, or dollies for the purposes of this 

written safety program. This definition 

is consistent with the currently enforced 

definition in 30 CFR parts 56 and 57. 

C. Sections 56.23002, 57.23002, and 

77.2102—Written Safety Program 

Final §§ 56.23002(a), 57.23002(a), and 

77.2102(a), like the proposal, require 

each mine operator to develop and 

implement a written safety program no 

later than 6 months after the effective 

date of the final rule. Three issues raised 

by commenters are discussed below. 

1. Independent Contractors 

Commenters stated that the proposed 

rule is unclear as to whether or not 

contractors are subject to the 

requirements. Some commenters stated 

that the proposed rule is silent on 

whether it covers contractor equipment 

and how such coverage would be 

implemented in a practical sense, and 

one commenter said that this silence 

would lead to enforcement actions 

against the mine and/or contractors for 

inconsistencies in how they would 

comply with the proposed 

requirements. Several commenters 

stated that MSHA should clarify how 

contractor programs should be 

integrated with operators’ on-site safety 

programs. 

Commenters requested that MSHA 

clarify that contractors are considered 

operators, and thus would need to have 

their own written safety program. 

Several commenters stated that the 

definition of ‘‘operator’’ in section 3(d) 

of the Mine Act includes ‘‘any 

independent contractor performing 

services or construction’’ at a mine. 30 

U.S.C. 802(d). Several commenters 

stated that MSHA’s regulations at 30 

CFR part 45, which sets forth procedural 

requirements for independent 

contractors working at mine sites, state 

that such requirements exist ‘‘to 

facilitate implementation of MSHA’s 

enforcement policy of holding 

independent contractors responsible for 

violations committed by them and their 

employees.’’ 

Several commenters stated that it 

would be untenable to require 

production operators to account for 

contractor equipment in their own 

safety programs. According to the 

commenters, contractors often have 

their own equipment and specialized 

knowledge, so that it would be 

impractical to require the operator to be 

responsible for the contractors’ 

equipment. 

MSHA’s intent in the proposed rule 

was that an operator would mean ‘‘any 

owner, lessee, or other person who 

operates, controls, or supervises a coal 

or other mine or any independent 

contractor performing services or 

construction at such mine’’ as stated in 

section 3(d) of the Mine Act. To 

facilitate implementation of MSHA’s 

enforcement policy with respect to 

certain independent contractors, MSHA 

published regulations in 30 CFR part 45 

related to the responsibility of 

independent contractors that met the 

requirements of part 45. 

Consistent with MSHA’s part 45 

regulations and the Agency’s 

longstanding policy regarding 

independent contractors, this final rule 

requires operators, including contractors 

with a part 45 identification number, to 

develop and implement a written safety 

program addressing surface mobile 

equipment. MSHA has a long history 

and practice of enforcing its standards 

and regulations against operators and 

independent contractors and believes 

that the industry is familiar with and 

understands this history and practice. 

Under this final rule, MSHA will treat 

operators and part 45 independent 

contractors consistent with the 

definition in the Mine Act and the 

Agency’s longstanding history and 

practice. 

MSHA expects that a majority of the 

Part 45 independent contractors will 

develop and implement their own 

written safety programs addressing their 

surface mobile equipment and follow 

the site-specific requirements, as 

necessary, in the operators’ written 

safety programs. In some situations, 

operators may choose to integrate the 

independent contractors’ written safety 

programs into their programs. No matter 

what approach is used, MSHA expects 

that, in all cases, operators and 

independent contractors will 

communicate and coordinate with each 

other, as appropriate, to ensure that 

miners’ safety and health is protected. 

Final §§ 56.23002(b), 57.23002(b), and 

77.2102(b), similar to the proposal, 

require each mine operator, within 6 

months after the effective date of the 

final rule, to designate at least one 

responsible person to evaluate and 

update the written safety program. As 

discussed in the definition section, a 

responsible person is a person with 

authority and responsibility to evaluate 

and update a written safety program for 

surface mobile equipment. 

2. Compliance Date 

The final rule implements a 6-month 

delayed compliance date from the 

effective date. Commenters provided 

varying suggestions on the proposed 

effective date. Some commenters 

suggested that all mine operators should 

have an additional 6 to 12 months 

without receiving citations relating to 

this rule, for a total of up to 18 months 

delayed effective date. Another 

commenter suggested a longer time 

period for only those mines that meet 

the Small Business Administration’s 

size standards; therefore, a 6-month 

delay (as proposed) for larger entities 

and up to an 18-month delay for smaller 

entities. Some commenters agreed with 

MSHA’s proposal that 6 months from 

the effective date of the final rule is 

sufficient time for operators to develop 

a written safety program. 

The final rule includes a delayed 

compliance date to allow for 

development and implementation of the 

written safety program for surface 

mobile equipment. After considering 

comments and reviewing data on 

accidents, injuries, and fatalities 

involving surface mobile equipment, 

MSHA determined that 6 months is a 

reasonable timeframe for the 

development and implementation of the 

safety program for all mines, regardless 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87909 

of size. MSHA believes that the 6-month 

time frame gives operators sufficient 

time to develop a meaningful written 

safety program, with input from miners 

and their representatives. MSHA has 

offered and will continue to offer 

materials and information that operators 

can use in developing and 

implementing a written safety program. 

MSHA will also work with operators, 

miners, and their representatives as well 

as other stakeholders in the mining 

industry (e.g., contractors) to develop 

written safety program templates, as 

well as best practices and guidance on 

the development, implementation, and 

evaluation of safety programs. 

3. Approval of the Written Safety 

Program 

The proposed rule did not require 

MSHA approval of the operator’s 

written safety program. Commenters 

provided their views on whether MSHA 

should require its approval of operators’ 

written safety programs. Several 

commenters stated that MSHA’s 

approval of the written safety program 

is necessary, and that not requiring 

MSHA approval would lead to 

inconsistent enforcement by MSHA 

inspectors. One commenter stated that 

approval by MSHA should be required 

because the written safety programs that 

are developed without MSHA’s 

oversight or approval would be, in the 

commenter’s view, based on the 

operator’s convenience, not the miners’ 

health and safety. One commenter 

stated that MSHA approval of the 

operator’s program is needed before it is 

implemented to ensure the adequacy of 

the individual, site-specific program 

and to ensure that mine operators have 

the opportunity to be alerted to any 

possible deficiencies in their program 

prior to MSHA approval. One 

commenter stated that MSHA already 

approves a number of written programs 

and plans submitted by mine operators, 

such as roof control plans, ground 

control plans, and ventilation plans. 

The commenter further stated that 

without MSHA oversight, mine 

operators will have generic programs 

that will not be mine-specific or include 

meaningful participation from miners 

and their representatives. 

Other commenters supported MSHA’s 

proposal that required no Agency 

approval of written safety programs. 

One commenter stated that they 

appreciate MSHA proposing to require a 

written safety program without the 

Agency’s approval, rather than with the 

Agency’s approval. Another commenter 

agreed that not requiring approval is a 

wise decision because it would be 

burdensome for MSHA to approve tens 

of thousands of programs. 

After considering all comments, 

MSHA has determined that an 

operator’s written safety program will be 

appropriately reviewed by MSHA 

during regular inspections. During the 

inspection, MSHA will review the 

written safety program to determine if it 

reflects actions that identify and address 

surface mobile equipment hazards at 

mine sites and to verify whether input 

from miners and their representatives 

was sought. This approach will also 

allow the Agency to ensure that the 

written safety program addresses 

hazards identified by mine operators 

and miners. MSHA will also determine 

whether the written safety program is 

adequately evaluated and updated. In 

light of the Agency’s inspection 

presence, MSHA has determined that 

Agency approval of the written safety 

program is not needed. 

D. Sections 56.23003, 57.23003, and 

77.2103—Requirements for Written 

Safety Program 

Like the proposal, final 

§§ 56.23003(a), 57.23003(a), and 

77.2103(a) list general, performancebased requirements for the written 

safety program. Under this final rule, an 

operator’s safety program must include 

four types of actions the operators will 

take to reduce accidents, injuries, and 

fatalities and to improve miners’ safety. 

As discussed earlier, this and other 

provisions in the final rule, unlike the 

proposed rule, clarify the term 

‘‘operator’’ or ‘‘operators,’’ to be 

consistent with section 3(d) of the Mine 

Act. 

Several commenters stated that the 

written safety program requirement is 

redundant with provisions already 

required in the CFR and does not 

provide a new or strategic focus that 

advances mobile equipment safety. 

These commenters stated that there are 

existing regulations in part 56 that 

require mine operators to identify and 

correct hazards in all work areas and for 

all equipment, including surface mobile 

equipment, such as § 56.18002 on the 

examination of working places and 

§ 56.14100 on safety defects; 

examination; and correction of records. 

One commenter stated that the 

requirements of this section are 

redundant with the training 

requirements already set forth in part 

46, and another commenter stated these 

requirements are redundant with 

training requirements already set forth 

in part 48. One commenter requested 

clarification on the specifics of the 

documentation requirement for the 

review and collection of this 

information. For example, what type of 

information would meet the 

requirement, how should it be 

maintained, for how long would it need 

to be kept, and how would MSHA 

evaluate it for compliance? Another 

commenter also requested additional 

guidance on the types of safety hazards 

that should be included. One 

commenter asked how this requirement 

could be enforced. Finally, one 

commenter fully supported the 

inclusion of this requirement. 

After reviewing comments and 

relevant information, MSHA believes 

that structuring the final rule to include 

a performance-based requirement to 

identify and analyze hazards is more 

appropriate than a prescriptive 

requirement. The performance-based 

approach in the final rule allows 

operators the flexibility to devise and 

tailor a safety program that is 

appropriate for their specific and unique 

mining conditions and operations. 

These actions could include review of 

accident data and information on near 

misses and any operational or 

maintenance accidents at their mines. 

For example, under 30 CFR part 50, 

mine operators are already required to 

submit a report of each accident, injury, 

and illness to MSHA within 10 working 

days after an accident or occupational 

injury occurs or an occupational illness 

is diagnosed. Based on such information 

and data, mine operators will be able to 

develop a program that more 

specifically addresses conditions at 

their mines; mining equipment, work 

locations, and tasks at their mine site; 

and measures to eliminate, prevent, or 

mitigate identified hazards. Regarding 

the comment asking how this 

information should be maintained and 

for how long it would need to be kept, 

further discussion of records and 

inspection requirements is located 

elsewhere in this preamble under 

§§ 56.23004, 57.23004, and 77.2104. 

1. Sections 56.23003(a)(1), 

57.23003(a)(1), and 77.2103(a)(1) 

Final §§ 56.23003(a)(1), 

57.23003(a)(1), and 77.2103(a)(1), like 

the proposal, require that the written 

safety program include actions the 

operator will take to identify and 

analyze hazards and reduce the 

resulting risks related to the movement 

and operation of surface mobile 

equipment. Operators are required to 

identify and analyze hazards relevant to 

surface mobile equipment and to take 

actions to reduce the site-specific risks 

so that their written safety programs can 

be tailored to their unique mining 

operations and conditions. Actions that 

mine operators may take include 


ddrumheller on DSK120RN23PROD with RULES1
87910 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

enhanced administrative controls such 

as increased use of signage and 

procedural changes to tasks that 

remediate identified hazards. Other 

actions may include visibility studies to 

identify inherent blind spot areas 

around mobile equipment and use of 

visibility enhancing devices such as 

flags and additional mirrors to minimize 

these areas. Mine operators may choose 

to change traffic patterns, implement 

dispatchers for certain areas of a mine, 

and limit or prohibit small vehicular or 

foot traffic in identified high risk areas. 

2. Sections 56.23003(a)(2), 

57.23003(a)(2), and 77.2103(a)(2) 

Final §§ 56.23003(a)(2), 

57.23003(a)(2), and 77.2103(a)(2), like 

the proposal, require that the written 

safety program include actions the 

operator will take to develop and 

maintain procedures and schedules for 

routine maintenance and non-routine 

repairs for surface mobile equipment. 

Commenters stated that this 

requirement is redundant when 

compared to existing part 56 and part 57 

regulations. Likewise, another 

commenter stated that § 77.404 already 

addresses the requirements that mobile 

and stationary machinery and 

equipment be maintained in safe 

operating conditions. Another 

commenter stated that §§ 77.1600– 

77.1607 includes extensive rules that 

address loading and haulage, including 

traffic controls, transportation of 

persons, berms, inspection and 

maintenance, and operation. 

Another commenter expressed a 

concern about the ambiguity of the 

requirement, stating that inspectors may 

be subjective and issue violations for 

failure to follow manufacturers’ 

recommendations. Several commenters 

stated that operators should have 

additional flexibility when it comes to 

manufacturers’ recommendations. In 

these commenters’ view, manufacturers’ 

recommendations for maintenance and 

repairs are often not reflective of how 

the equipment is used at a given 

operation. A commenter noted that 

recommendations from the 

manufacturer are a valuable resource for 

equipment operators and maintenance 

personnel, but often are designed to 

avoid legal challenges rather than 

maximize safe operation. One 

commenter requested that this 

requirement for maintenance and 

repairs apply to the safe operation of the 

equipment, rather than all maintenance 

and repairs in general. Another 

commenter stated that MSHA should 

make clear that this section does not 

require any new maintenance or repair 

procedures, but requires only that the 

facility’s procedures be reflected (or 

referenced) in a written program. 

Under the final rule, MSHA does not 

intend for operators to develop new 

maintenance and repair procedures, 

unless operators do not have these in 

place already. Operators may decide to 

modify existing maintenance and repair 

procedures based upon newly 

conducted risk assessment findings. The 

procedures and schedules for 

maintenance and repairs for surface 

mobile equipment developed for the 

written safety program can reflect or 

reference the operator’s existing 

procedures and schedules. 

3. Sections 56.23003(a)(3), 

57.23003(a)(3), and 77.2103(a)(3) 

Final §§ 56.23003(a)(3), 

57.23003(a)(3), and 77.2103(a)(3), like 

the proposed rule, require that the 

written safety program include actions 

the mine operator will take to identify 

currently available and newly emerging 

feasible technologies that can enhance 

safety and evaluate whether to adopt 

them. Examples of these technologies 

could include seat belt interlocks that 

affect equipment operation when a seat 

belt is not fastened; seatbelt notification 

systems that alert management when the 

seatbelts are not worn; collision warning 

systems and collision avoidance 

systems that may prevent accidents by 

alerting equipment operators to hazards 

located in blind areas; technologies that 

use Global Positioning Systems to 

provide equipment operators with 

information regarding their location 

when pushing and dumping material; as 

well as cameras, curvilinear mirrors, 

and other vision enhancements (86 FR 

50500). 

Commenters stated that this 

requirement is ambiguous, burdensome, 

and redundant, and should be stricken 

from the rule. Several commenters 

stated that: the proposal does not appear 

to require mine operators to implement 

newly emerging technologies, and, 

instead, it appears to require 

evaluations. They further stated that 

most mine operators likely already 

evaluate newly emerging technologies to 

save money and improve safety. Some 

commenters were concerned that certain 

terminology in the proposal is 

subjective. For example, commenters 

stated that MSHA needs to elaborate on 

what types of actions operators should 

take to ‘‘evaluate’’ how ‘‘newly 

emerging feasible technologies’’ would 

‘‘enhance’’ safety. Other commenters 

stated that there are many areas of 

concern related to testing and 

implementing new technologies into 

existing equipment, potentially creating 

safety hazards. Another commenter 

stated that new technologies often have 

problems when they are initially 

developed. For example, the commenter 

noted that when airbags were first 

released there were issues causing 

injuries, and thus they had to be 

redesigned. Another commenter stated 

that MSHA should make clear that the 

rule does not require the adoption of 

any particular technology but is strictly 

a requirement that the operator have a 

procedure to identify and evaluate 

potentially useful new technology. 

After considering all comments, the 

final rule is unchanged from the 

proposal, and it requires that the 

operator identify and evaluate currently 

available and newly emerging feasible 

technologies that can enhance safety at 

the mines. MSHA’s intent is that 

operators consider feasible technologies 

that are capable of being used 

successfully at that mine. MSHA 

recognizes the safety benefits of new 

and emerging technologies related to 

surface mobile equipment. MSHA 

believes that operators can typically 

determine what types of new or existing 

technologies that they need to enhance 

safety at their operations. MSHA will 

offer educational assistance on currently 

available and newly emerging 

technologies in a number of ways, 

including through EFSMS, industry 

stakeholders, quarterly stakeholder calls 

and stakeholder meetings, safety and 

health training workshops (e.g., 

Training Resources Applied to Mining 

(TRAM) and Spring Thaw Training 

Workshops), guidance documents, and 

Agency website and mobile app 

resources. Also, as part of the Agency’s 

compliance assistance efforts, MSHA 

will work with operators and provide 

information and technical assistance 

that will help them identify control 

options and the use of new technologies 

to prevent accidents and injuries. 

MSHA will also encourage its state 

grantees to focus on providing training 

to address feasible technologies 

involving surface mobile equipment in 

mining operations. 

4. Sections 56.23003(a)(4), 

57.23003(a)(4), and 77.2103(a)(4) 

Final §§ 56.23003(a)(4), 

57.23003(a)(4), and 77.2103(a)(4), like 

the proposal, require that the written 

safety program include actions the 

operator will take to train miners and 

other persons at the mine necessary to 

perform work to identify and address or 

avoid hazards related to surface mobile 

equipment. 

Several commenters stated that they 

already comply with part 46 

requirements and that this section is 

another example of regulatory 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87911 

redundancy and does not provide a new 

or strategic focus to advance mobile 

equipment safety. One commenter 

suggested that MSHA make clear that 

the mobile equipment program can refer 

to other sections of regulations relating 

to mobile equipment and can 

incorporate these by reference, for 

example §§ 46.5(b)(2), 46.6(b)(2), and 

46.8(c). Another commenter requested 

that the Agency disambiguate the 

language, ‘‘other persons at the mine 

necessary to perform work,’’ by 

providing more precise language. 

Otherwise, for training purposes, the 

language effectively would expand the 

definition of ‘‘miner’’ to all employees. 

After reviewing the comments, MSHA 

clarifies that mine operators will only 

need to integrate existing training 

provisions, as applicable, into the 

written safety program. The Agency 

previously described the intended 

audience for site-specific hazard 

awareness training in the final rule for 

Training and Retraining of Miners 

Engaged in Shell Dredging or Employed 

at Sand, Gravel, Surface Stone, Surface 

Clay, Colloidal Phosphate, or Surface 

Limestone Mines (64 FR 53080, 

September 30, 1999). In that final rule, 

MSHA required that ‘‘. . . hazard 

awareness training be appropriate for 

the individual who is receiving it and 

that the breadth and depth of training 

vary depending on the skills, 

background, and job duties of the 

recipient. For example, it may be 

appropriate to provide hazard 

awareness training to customer truck 

drivers by handing out a card to the 

drivers alerting them to the mine 

hazards or directing them away from 

certain areas of the mine site. More 

extensive hazard awareness training 

might be needed for an equipment 

manufacturer’s representative who 

comes onto mine property to service or 

inspect a piece of mining equipment. 

Although this individual may not be on 

mine property for an extended period, 

the person’s exposure to mine hazards 

may warrant more training. Appropriate 

hazard awareness training would 

typically be more comprehensive for 

contractor employees who fit the 

definition of ‘miner’ because they are 

engaged in mining operations. These 

employees receive comprehensive 

training but also need orientation to the 

mine site and information on the mining 

operations and mine hazards.’’ (64 FR 

53128) Similarly, under this final rule, 

the written safety program must include 

the actions that the mine operator will 

take to train miners and other persons 

at the mine necessary to perform work 

to identify and address or avoid hazards 

related to surface mobile equipment. 

Under the final rule, mine operators 

will need to integrate their existing 

training procedures for miners and other 

persons at the mine necessary to 

perform work into their written safety 

program to address and avoid hazards 

related to surface mobile equipment. 

5. Sections 56.23003(b), 57.23003(b), 

and 77.2103(b) 

Final §§ 56.23003(b), 57.23003(b), and 

77.2103(b), similar to the proposal, 

require the responsible person to 

evaluate and update the written safety 

program for the mine at least annually, 

or as mining conditions or practices 

change that may adversely affect the 

health and safety of miners or other 

persons, as accidents or injuries occur, 

or as surface mobile equipment changes 

or modifications are made. The final 

rule is clarified in two ways. First, the 

written program must be evaluated and 

updated ‘‘at least’’ annually. This 

clarification indicates that an annual 

evaluation and update is the minimum, 

and more frequent evaluations and 

updates of the written safety program 

must be done, if necessary. Second, the 

final rule specifies that the evaluation 

and update must be done when changes 

in the mining conditions or practices 

‘‘may adversely affect the health and 

safety of miners or other persons.’’ 

MSHA acknowledges that not all 

changes to mining conditions or 

practices warrant updates to the written 

safety program. This is similar to 

MSHA’s existing requirements in §§ 56/ 

57.18002 that require for each working 

place in metal and nonmetal (MNM) 

mines an examination to be conducted 

for conditions that may adversely affect 

safety or health. 

One commenter stated that requiring 

the responsible person to evaluate and 

update the written safety program is 

redundant and already covered by part 

56 requirements. Other commenters 

recommended that the proposed 

language regarding ‘‘surface mobile 

equipment changes or modifications’’ be 

removed. The commenters believe that 

any significant changes in equipment 

are covered under the provision of 

‘‘mining practices’’ changing. In their 

view, this deletion would capture the 

large-scale changes the Agency intended 

to cover without including small, 

insignificant changes. These same 

commenters also recommended 

removing the term ‘‘injuries’’ from the 

proposal because most powered haulage 

injuries cannot meaningfully be 

addressed in a safety program. The 

commenters stated that, for example, an 

equipment operator who slams a finger 

in the door of a pickup truck or pulls 

a muscle climbing on or off a loader has 

sustained a powered haulage injury, but 

they are not the types of injuries that 

warrant re-evaluation of the program. 

The commenters stated that 

‘‘accidents,’’ however, should be 

retained and that yearly is a reasonable 

timeframe to reevaluate the program. 

Other commenters suggested that MSHA 

revise the requirement to read: 

‘‘evaluate and update the written safety 

program at least annually or whenever 

necessary to manage safety risks 

associated with their surface mobile 

equipment appropriately.’’ 

Except the clarifications described 

earlier, this requirement is the same as 

the proposal. As explained in the 

previous section, MSHA believes that 

given the type of authority and 

responsibility, it is a responsible person 

who must evaluate and update the 

written safety program. In addition, as 

stated in the proposal, best practices 

shown by NIOSH, OSHA, and other 

safety standards organizations include 

ongoing evaluations of workplace 

activities and processes to address 

safety proactively and to find and fix 

hazards before injuries and fatalities 

happen. Moreover, in response to some 

commenters recommending that the 

term injuries be removed from the 

requirements, MSHA believes that the 

term is still needed because injuries are 

an indicator of hazards at mines that 

could result in further injuries and 

fatalities. The final rule also clarifies 

that the written safety program must be 

evaluated and updated when mining 

conditions and practices change that 

may adversely affect the health and 

safety of miners. 

6. Sections 56.23003(c), 57.23003(c), 

and 77.2103(c) 

Final §§ 56.23003(c), 57.23003(c), and 

77.2103(c) is a provision that requires 

operators to consult with miners and 

their representatives in developing and 

updating the safety program. These 

requirements are consistent with 

existing obligations to consult with 

miners and representatives and MSHA’s 

long-standing recognition that such 

consultation is vital for ensuring the 

efficacy of safety programs. Under 

existing requirements, operators already 

must (in many cases) provide miners 

and miners’ representatives the 

opportunity to comment on or otherwise 

participate in these existing processes. 

See, e.g., 30 CFR 46.3(g), 48.23(d) and 

(j)(1), and 56/57.18002. As these 

existing processes are expected to be 

referenced in developing and updating 

the safety program, miners and their 

representatives similarly should be 


ddrumheller on DSK120RN23PROD with RULES1
87912 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

consulted in developing and updating 

the program. In drafting the proposal, 

MSHA intended that operators would 

seek input from miners and their 

representatives in the development and 

updating of a meaningful safety 

program, given their existing 

involvement with most of the 

component parts of the program. The 

proposal also provided that the 

responsible person ‘‘should be able to 

communicate the operator’s 

commitment to safety and the 

importance of miners’ involvement in 

the program to prevent or mitigate 

hazards.’’ 86 FR 50500. In addition, 

commenters requested that miners and 

their representatives participate in the 

development of the written safety 

program. MSHA includes this provision 

in the final rule to recognize the 

comments and to be consistent with the 

Agency’s intent in the proposal and 

with the Mine Act. In drafting the 

proposal, consistent with the Agency’s 

long-standing practice and section 2(e) 

of the Mine Act, MSHA intended that 

miners would be involved in the 

development and updating of the 

program, although it was not discussed 

in the preamble. 

The Mine Act provides miners and 

their representatives a right to 

participate in various safety and health 

activities. Some examples are as 

follows. Section 2(e) provides that ‘‘the 

operators of [coal or other] mines with 

the assistance of the miners have the 

primary responsibility to prevent the 

existence of [unsafe and unhealthy] 

conditions and practices in such 

mines.’’ Section 101(c) provides that the 

representative of miners may petition 

the Secretary (of Labor) to ‘‘modify the 

application of any mandatory safety 

standard to a coal or other mine if the 

Secretary determines that an alternative 

method of achieving the result of such 

standard exists which will at all times 

guarantee no less than the same measure 

of protection afforded the miners of 

such mine by such standard . . .’’ 

Section 103(f) provides that miners’ 

representatives ‘‘be given an 

opportunity to accompany the Secretary 

or authorized representative during the 

physical inspection of any coal or other 

mine . . .’’ Section 103(g)(1) provides a 

representative of miners or a miner in 

case there is no representative the ‘‘right 

to obtain an immediate inspection by 

giving notice to the Secretary or 

authorized representative’’ that a 

violation of the Mine Act or its 

standards, or an imminent danger exists. 

Section 105(c) provides miners and 

their representatives the right to file a 

discrimination complaint with MSHA if 

they believe they have been discharged, 

discriminated against, or interfered with 

for complaining of ‘‘an alleged danger or 

safety or health violation in a coal or 

other mine’’. Further, as stated by the 

Senate Committee on Human Resources 

in keeping with a purpose of the Mine 

Act: ‘‘If our national mine safety and 

health program is to be truly effective, 

miners will have to play an active part 

in the enforcement of the Act.’’ S. Rep. 

No. 95–181, 95th Cong., 1st Sess. at 35 

(1977). 

Based on MSHA’s experience and 

past practice, and consistent with the 

statutory intent of the Mine Act, miners 

and their representatives are involved in 

many aspects of MSHA’s enforcement 

program and standards. MSHA is 

persuaded by commenters who stated 

that for safety programs to be successful, 

there must be active and meaningful 

participation from miners. The final rule 

makes explicit that miners provide 

input in developing and updating the 

written safety program. 

E. Sections 56.23004, 57.23004, and 

77.2104—Record and Inspection 

Final §§ 56.23004, 57.23004, and 

77.2104 is clarified from the proposed 

provision. Like the proposal, the final 

rule requires that the operator make 

available a copy of the written safety 

program for inspection by authorized 

representatives of the Secretary, miners, 

and their representatives. In response to 

comments and consistent with the Mine 

Act that the operator, with the 

assistance of miners, is primarily 

responsible for safety and health, the 

final rule clarifies that miners and their 

representatives will receive, upon 

request, a copy of the written safety 

program at no cost. 

Several commenters requested that 

MSHA provide further clarity on the 

acceptable formats for delivery of the 

written safety program. One commenter 

stated that the proposed rule needs to 

clarify that the written safety program is 

to be provided at no cost to miners and 

their representatives. Another 

commenter stated that this section 

should indicate that the written program 

can be maintained and provided 

electronically. 

The final rule allows operators the 

flexibility to create the written safety 

program in any electronic or hard copy 

format, as long as the written safety 

program includes the information 

required by the final rule and can be 

made available for inspection by the 

Secretary, miners, and their 

representatives. Consistent with the 

Agency’s longstanding policy, an 

operator must provide notice to miners 

by providing an electronic or hard copy 

of the written safety program to miners 

and their representatives, at no cost, 

upon request. 

III. Executive Order 12866 (Regulatory 

Planning and Review), Executive Order 

14094 (Modernizing Regulatory 

Review), and Executive Order 13563 

(Improving Regulation and Regulatory 

Review) 

Under Executive Order (E.O.) 12866 

(as amended by E.O. 14094), the Office 

of Management and Budget (OMB)’s 

Office of Information and Regulatory 

Affairs (OIRA) determines whether a 

regulatory action is significant and, 

therefore, subject to the requirements of 

the E.O. and review by OMB. 58 FR 

51735, 51741 (1993). As amended by 

E.O. 14094, section 3(f) of E.O. 12866 

defines a ‘‘significant regulatory action’’ 

as a regulatory action that is likely to 

result in a rule that may: (1) have an 

annual effect on the economy of $200 

million or more; or adversely affect in 

a material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or state, local, territorial, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impact of 

entitlements, grants, user fees or loan 

programs or the rights and obligations of 

recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the E.O. OIRA has 

determined that this rule is significant 

under E.O. 12866, and accordingly it 

has been reviewed by OMB. 

E.O. 13563 directs agencies to propose 

or adopt a regulation only upon a 

reasoned determination that its benefits 

justify its costs; the regulation is tailored 

to impose the least burden on society, 

consistent with achieving the regulatory 

objectives; and in choosing among 

alternative regulatory approaches, the 

agency has selected those approaches 

that maximize net benefits. 76 FR 3821 

(2011). E.O. 13563 recognizes that some 

benefits are difficult to quantify and 

provides that, where appropriate and 

permitted by law, agencies may 

consider and discuss qualitative values 

that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

MSHA presents the costs and benefits 

associated with the final rule. MSHA 

estimated the costs associated with the 

final rule’s requirements by adding the 

estimated costs of the following. First, 

the estimated costs include developing 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87913 

the written safety program document, 

including the actions the operators will 

take to follow better safety procedures 

and practices, by identifying and 

analyzing hazards, evaluating currently 

available and emerging technologies, 

developing and maintaining 

maintenance and repair schedules and 

procedures, and training miners and 

others to identify and address hazards, 

and including miners in developing and 

updating the program. Operators must 

also provide copies of the written safety 

program to miners and their 

representatives upon request. MSHA 

anticipates that the listing of actions 

operators will take will enhance existing 

compliance and improve safety 

regarding several of the existing 

requirements (such as training, 

maintenance and repair, workplace 

exams) that the program must describe. 

Second, the estimated costs include 

updating the written safety program at 

least annually and under certain 

circumstances, such as when new 

equipment is brought to the mine or 

when accidents or changes in mining 

conditions or practices occur that may 

adversely affect the safety and health of 

miners, and providing copies of the 

written safety program to miners and 

their representatives upon request. The 

first component is a one-time, initial 

compliance costs in the first year, 

whereas the second component 

represents the recurring compliance 

costs for subsequent years. 

This section provides a summary of 

MSHA’s cost and benefit estimates of 

the final rule. This final rule is 

estimated to have a 10-year total net 

benefit of $411 million at a 3 percent 

discount rate, based on estimated 10- 

year total benefits of $522 million and 

estimated 10-year total costs of $111 

million. At the 3 percent discount rate, 

the estimated annualized net benefit is 

$48.2 million (annualized benefits of 

$61.3 million and annualized costs of 

$13.0 million). Supporting materials 

and data that provide additional details 

on the methodology used to estimate the 

costs, benefits, and other required 

analyses of this rule are included in the 

standalone Final Regulatory Impact 

Analysis (FRIA), which has been placed 

in the rule docket (RIN 1219–AB91, 

Docket ID No. MSHA–2018–0016) at 

https://www.regulations.gov and is 

posted on MSHA’s website at https:// 

www.msha.gov. 

A. Mining Industry Profile 

A total of 12,434 mines in the U.S. 

reported their working hours in 2021. 

Over 301,000 workers worked at those 

mines. Table III–1 shows which types of 

mines the miners and other workers 

worked. 

TABLE III–1—MINES AND EMPLOYMENT BY SURFACE OR UNDERGROUND LOCATION IN 2021 

Commodity Location Mines 1 Miners 

Total 

mine 

workers 2

Contract 

miners 

Total 

contract 

workers 2

Total 

workers 3

MNM ........................ Surface Including Facilities ........................ 11,236 128,156 149,846 60,120 .................... ....................

Underground .............................................. 235 18,223 20,712 7,047 .................... ....................

Total .................................................... 11,471 146,379 170,558 67,167 69,433 239,991 

Coal ......................... Surface Including Facilities ........................ 750 18,294 19,200 11,887 .................... ....................

Underground .............................................. 213 21,323 21,916 7,664 .................... ....................

Total .................................................... 963 39,617 41,116 19,551 20,288 61,404 

All Mines .................. Surface Including Facilities ........................ 11,986 146,450 169,046 72,007 .................... ....................

Underground .............................................. 448 39,546 42,628 14,711 .................... ....................

Total .................................................... 12,434 185,996 211,674 86,718 89,721 301,395 

Source: MSHA MSIS Data (reported on MSHA Form 7000–2), Accessed on April 7, 2022. 

Notes: All Miners and workers are calculated using employers’ headcount reports; some miners and workers may be counted more than once, 

as they work at more than one mine. 1Of the 12,434 mines, 40 did not have any employment in surface areas; they were thus excluded from the analysis. 

2Total mine workers and total contract workers include both miners and office/administrative workers. 

3Total workers include total mine workers and total contract workers. 

This final rule applies to all operators 

of surface mines and underground 

mines with surface areas, including 

independent contractors working at 

those mines. As shown, there were 

11,986 surface mines and 448 

underground mines. Most underground 

mines have surface areas where miners 

work. Of all the mines, about 92 percent 

were metal and nonmetal mines and the 

rest were coal mines. 

B. Costs 

Under the final rule, operators are 

required to develop, implement, and 

update at least annually and when 

necessary, a written safety program for 

surface mobile equipment used at their 

mines. As defined in this rule, surface 

mobile equipment refers to wheeled, 

skid-mounted, track-mounted, or railmounted equipment capable of moving 

or being moved, and any powered 

equipment that transports people, 

equipment, or materials, excluding belt 

conveyors, at surface mines and surface 

work areas of underground mines. 

The required written safety program 

for surface mobile equipment must 

include the actions that operators will 

take to identify and analyze hazards and 

reduce the resulting risks related to 

equipment movement and operation. It 

must also include actions to develop 

and maintain procedures and schedules 

for routine maintenance and nonroutine repairs. Operators are also 

required to describe the actions they 

will take to identify currently available 

and newly emerging feasible 

technologies that can enhance safety 

and evaluate whether to adopt them. 

Finally, the rule requires operators to 

describe the actions they will take to 

train miners and other persons at the 

mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

Once the written safety program is 

developed and implemented, a 

responsible person is required to 

evaluate and update it for the mine at 

least annually, or when mining 

conditions or practices change that may 

adversely affect the health and safety of 

miners or other persons, when accidents 

or injuries occur, or when surface 


ddrumheller on DSK120RN23PROD with RULES1
87914 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

8MSHA used metric tons for the production 

output as based on the cost estimation chapter of 

the Society for Mining, Metallurgy, and Exploration 

Handbook. Stebbins, S.A., and Leinart, J.B. 2011. 

Cost estimating for surface mines. In SME Mining 

Engineering Handbook, 3rd ed. Edited by P. 

Darling. 

9See Appendix A of the Final Regulatory Impact 

Analysis for this final rule for a detailed 

explanation. 

10Based on its examination of the mining 

contractors listed in 2021, MSHA estimated that 

approximately 75 percent of 6,318 part 45 

independent contractors would be required under 

the final rule to develop a safety program because 

they have surface mobile equipment. 

mobile equipment changes or 

modifications are made. While the final 

rule provides operators flexibility to 

devise a safety program that is 

appropriate for their specific mining 

conditions and operations, the final rule 

also requires operators to solicit input 

from miners and their representatives as 

they develop and update the written 

safety program. 

MSHA estimated the costs associated 

with the final rule’s requirements by 

adding the estimated costs of the 

following. First, the estimated costs 

include developing the written safety 

program document, including the 

actions the operators will take to 

identify and analyze hazards, evaluate 

current and emerging technologies, 

develop and maintain the maintenance 

and repair schedules and procedures, 

train miners and others to identify and 

address hazards associated with surface 

mobile equipment. Operators must also 

provide copies of the written safety 

program to miners and their 

representatives upon request. Second, 

the estimated costs include updating the 

written safety program at least annually 

and under certain circumstances, such 

as when new equipment is brought to 

the mine or when accidents or changes 

in mining conditions or practices occur 

that may adversely affect the safety and 

health of miners, and, for each update, 

providing copies of the written safety 

program to miners and their 

representatives upon request. The first 

component is considered to be the onetime, initial compliance costs in the first 

year, whereas the second component 

represents the recurring compliance 

costs for subsequent years. Estimated 

costs also include providing copies of 

the written safety program to miners 

and their representatives upon request. 

MSHA calculated these compliance 

costs based on the estimated time spent 

by mine employees to develop and 

update the written safety program, 

multiplied by their wage rates. MSHA 

assumed that mine supervisors, safety 

professionals, and maintenance workers 

would participate in the creation and 

updates of the written safety program. 

MSHA assumed that operators will 

solicit input from miners and their 

representatives in developing and 

maintaining all aspects of the written 

safety program, and MSHA included the 

time for their collaboration in its cost 

estimates. 

MSHA further assumed that the time 

needed to develop and update the 

written safety program would vary by 

the number of unique surface mobile 

equipment units at each mine, which 

would be related to a mine’s production 

output (e.g., tonnage), and employment 

size.8 Based on these factors, MSHA 

grouped all MNM and coal mines into 

three categories each and estimated the 

compliance costs for this final rule by 

category.9 MSHA also assumed a 

majority of independent contractors (75 

percent or 4,739) would develop and 

update a written safety program for 

surface mobile equipment at mines.10

The total compliance cost estimates 

are shown in Table III–2. The 

compliance costs for the 10-year period 

of analysis (i.e., 10-year implementation 

period) are estimated to be about $126 

million (in 2021 dollars) undiscounted, 

while the 10-year compliance costs 

discounted at 3 percent and 7 percent 

are about $111 million and $95 million, 

respectively. The annualized costs 

discounted at 3 and 7 percent are $13.0 

million and $13.5 million, respectively. 

TABLE III–2—YEARLY COMPLIANCE COST ESTIMATES

[Millions of 2021 dollars] 

Implementation year 

Total compliance costs 

Discounted at 

0% 3% 7% 

Year 1 .......................................................................................................................................... $37.0 $36.0 $34.6 

Year 2 .......................................................................................................................................... 9.9 9.4 8.7 

Year 3 .......................................................................................................................................... 9.9 9.1 8.1 

Year 4 .......................................................................................................................................... 9.9 8.8 7.6 

Year 5 .......................................................................................................................................... 9.9 8.6 7.1 

Year 6 .......................................................................................................................................... 9.9 8.3 6.6 

Year 7 .......................................................................................................................................... 9.9 8.1 6.2 

Year 8 .......................................................................................................................................... 9.9 7.8 5.8 

Year 9 .......................................................................................................................................... 9.9 7.6 5.4 

Year 10 ........................................................................................................................................ 9.9 7.4 5.0 

10-Year Total ........................................................................................................................ 126.4 111.0 95.1 

Annualized ............................................................................................................................ 12.6 13.0 13.5 

Note: Totals may not equal the sum of the components due to rounding. 

C. Benefits 

This final rule is expected to generate 

numerous benefits, including reductions 

in individual injuries and fatalities, 

fostering of a positive safety culture at 

the mine, reductions in worker 

compensation and other insurance 

premiums, and decreases in down-time 

(non-production time) due to accidents. 

Among these benefits, MSHA focused 

on estimating the number of surface 

mobile equipment-related fatalities and 

injuries that could be prevented due to 

this final rule and the monetized 

benefits of those fatalities and injuries 

prevented. MSHA also performed a 

sensitivity analysis covering different 

scenarios that would lead to different 

percentages of fatalities and injuries 

prevented, and thus to different levels of 

benefits depending on the assumptions 

made. 

Since the final rule includes all 

mines, MSHA modified the approach 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87915 

11 In the first year—because the rule will be 

effective for only half the year—there would be a 

37.5 percent, rather than a 75 percent, reduction. 

from the proposed rule and used the 

following analysis to estimate the 

monetized benefits of fatalities and 

injuries prevented. MSHA first 

established a baseline using the fatality 

and injury data and post-accident 

investigation reports from the 2011– 

2020 period. In the proposed rule, 

MSHA used data for accidents, 

fatalities, and injuries from the years 

2003 to 2018 for mines that employed 

six or more miners. For the final rule, 

however, MSHA is using more recent 

and comprehensive data and detailed 

information concerning accidents, 

fatalities, and injuries that occurred 

between 2011 and 2020 for all mines. 

The Agency believes the more recent 

data better reflects current and future 

circumstances. 

To estimate the monetized benefits of 

fatalities and injuries prevented, MSHA 

first examined historical fatality and 

injury data and post-accident 

investigation reports from the 2011– 

2020 period. MSHA found that over that 

10-year period, there were 113 surface 

mobile equipment fatalities. MSHA 

further observed that in the case of 63 

(about 56 percent) of the 113 fatalities 

involving surface mobile equipment, 

deficiencies in training, hazard 

identification, or maintenance or any 

combination of these three factors 

contributed to the fatality. MSHA also 

counted 13,753 non-fatal injuries 

involving surface mobile equipment and 

454,076 workdays lost due to those 

injuries during the 10-year period. 

Based on this historical analysis, 

MSHA projected the numbers of surface 

mobile equipment fatalities, non-fatal 

injuries, and lost workdays that would 

be expected due to deficiencies in 

training, hazard identification, or 

maintenance, in the absence of the final 

rule. MSHA then compared those 

projected numbers (‘‘baseline’’) with the 

projections of the same types of 

fatalities, non-fatal injuries, and 

workdays lost, in the presence of the 

final rule. The difference between the 

two was used as the basis for calculating 

benefits of the final rule. MSHA believes 

that a safety program that identifies 

actions operators will take to 

accomplish the required tasks will 

reduce fatalities, non-fatal injuries, and 

lost workdays that would be expected 

due to deficiencies in training, hazard 

identification, or maintenance because 

it will increase compliance with 

MSHA’s existing hazard identification, 

hazard correction, maintenance, and 

training requirements. 

MSHA projected that in the absence 

of the final rule, over the next 10 years, 

there would be 60 fatalities, 7,298 

injuries, and 240,954 workdays lost 

annually due to deficiencies in training, 

hazard identification, or maintenance 

related to surface mobile equipment. 

These projections assume a mining 

workforce of approximately 253,401 

(each working 2,000 hours in a year) 

each year. MSHA estimated that the 

final rule would reduce the projected 

fatalities, injuries, and workdays lost 

resulting from deficiencies in training, 

hazard identification, or maintenance by 

about 75 percent for each year the rule 

is in effect, beginning in the second 

year.11 MSHA then performed a 

sensitivity analysis with two additional 

scenarios—a 50 percent reduction and a 

25 percent reduction. Table III–3 and 

Table III–4 present summaries of these 

results. 

TABLE III–3—PROJECTED SURFACE MOBILE EQUIPMENT FATALITIES IN THE ABSENCE OF AND WITH THE FINAL RULE

Implementation year 

In the absence of 

final rule 

With final rule 

Projected surface 

mobile equipment 

fatalities due to 

deficiencies in 

training, hazard 

identification, or 

maintenance 

Fatalities prevented—projections 

Baseline 

Program 

effectiveness at 

75% 

(expected 

scenario) 

Program 

effectiveness 

at 50% 

Program 

effectiveness 

at 25% 

Year 1 * ...................................................................................... 6.00 2.2 1.5 0.7 

Year 2 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 3 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 4 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 5 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 6 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 7 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 8 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 9 ........................................................................................ 6.00 4.5 3.0 1.5 

Year 10 ...................................................................................... 6.00 4.5 3.0 1.5 

10-Year Total ...................................................................... 60.0 42.7 28.5 14.2 

Note: Totals may not equal the sum of the components due to rounding. 

* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer fatalities prevented in the first year 

than in each subsequent year. For example, under the expected scenario, MSHA estimates that 4.5 lives will be saved in a full year after implementation, but given the 6-month delayed compliance date, a half of 2.2 lives is assumed to be saved in the first year. 


ddrumheller on DSK120RN23PROD with RULES1
87916 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE III–4—PROJECTED SURFACE MOBILE EQUIPMENT INJURIES IN THE ABSENCE OF AND WITH THE FINAL RULE

Implementation year 

In the absence of 

final rule 

With final rule 

Projected surface 

mobile equipment 

injuries due to 

deficiencies in 

training, hazard 

identification, or 

maintenance 

Injuries prevented—projections 

Baseline 

Program 

effectiveness 

at 75% 

(expected 

scenario) 

Program 

effectiveness 

at 50% 

Program 

effectiveness 

at 25% 

Year 1 * ...................................................................................... 730 273.7 182.5 91.2 

Year 2 ........................................................................................ 730 547.4 364.9 182.5 

Year 3 ........................................................................................ 730 547.4 364.9 182.5 

Year 4 ........................................................................................ 730 547.4 364.9 182.5 

Year 5 ........................................................................................ 730 547.4 364.9 182.5 

Year 6 ........................................................................................ 730 547.4 364.9 182.5 

Year 7 ........................................................................................ 730 547.4 364.9 182.5 

Year 8 ........................................................................................ 730 547.4 364.9 182.5 

Year 9 ........................................................................................ 730 547.4 364.9 182.5 

Year 10 ...................................................................................... 730 547.4 364.9 182.5 

10-Year Total ...................................................................... 7,298 5,200 3,467 1,733 

Notes: Totals may not equal the sum of the components due to rounding. 

* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer injuries prevented in the first year than 

in each subsequent year. 

The monetary value of the reduction 

in fatalities and injuries related to 

surface mobile equipment is calculated 

as follows. First, to develop a monetized 

benefit estimate of fatality reduction, 

MSHA used the Value of a Statistical 

Life (VSL) adopted by other Federal 

agencies like the Department of 

Transportation and Department of 

Homeland Security, and adjusted for the 

real per-capita Gross Domestic Product 

(GDP). Second, to estimate the 

monetized benefit of injury reduction, 

MSHA used the projected reduction in 

the number of workdays lost due to 

injuries, multiplied by the average wage 

of miners. The monetized benefits of 

reduced injuries were then calculated 

by multiplying the total workdays lost 

due to the injuries and the average wage 

of miners. Again, MSHA performed a 

sensitivity analysis with two additional 

scenarios—a 25 percent reduction and a 

50 percent reduction in fatalities and 

injuries. In the expected scenario, the 

10-year monetized benefit totals, in 

2021 dollars, are calculated at $522 

million at a 3 percent discount rate and 

$424 million at a 7 percent discount 

rate. 

D. Net Benefits 

Table III–5 presents the monetized net 

benefits for the first 10 years of 

implementation of the final rule. The 

10-year net benefit totals in 2021 dollars 

are $411 million at a 3 percent discount 

rate and $329 million at a 7 percent 

discount rate. An annualized net benefit 

is estimated at $48.2 million and $46.8 

million, respectively, at 3 percent and 7 

percent discount rates. 

TABLE III–5—MONETIZED NET BENEFITS

[Millions of 2021 dollars] 

Expected 

scenario 

Low net benefit 

scenario 

Lowest net benefit 

scenario 

Discounted at Discounted at Discounted at 

0% 3% 7% 0% 3% 7% 0% 3% 7% 

10-Year total * ............................. $493 $411 $329 $286 $237 $187 $80 $63 $46 

Annualized .................................. 49.3 48.2 46.8 28.6 27.8 26.7 8.0 7.4 6.6 

Note: Totals may not equal the sum of the components due to rounding. 

* MSHA assumed that a full-year worth costs would be incurred, while projecting a half of the full-year monetized benefits in the first year, due 

to the timing of implementation (6-month delayed compliance). 

MSHA believes that the net-benefits 

of the rule are understandable, because 

the costs of the safety program are 

modest relative to the much-higher 

value of the estimated reduction in 

fatalities. 

IV. Regulatory Flexibility Analysis 

(RFA) and Small Business Regulatory 

Enforcement Fairness Act (SBREFA) 

and 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. Pursuant to the 

Regulatory Flexibility Act (RFA) of 

1980, as amended by the Small Business 

Regulatory Enforcement Fairness Act 

(SBREFA), MSHA analyzed the impact 

of the final rule on small entities. Based 

on that analysis, MSHA certifies that 

this final rule does not have a 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87917 

12Small Business Administration, Table of Size 

Standards: Effective July 14, 2022. https:// 

www.sba.gov/document/support-table-sizestandards. 

13A controller is a parent company owning or 

controlling one or more mines, whereas a mine is 

an establishment of that parent company. Small 

entities, subject to requirements of the Regulatory 

Flexibility Act, are entities that are parent 

companies only and not establishments. See Small 

Business Administration, Office of Advocacy, How 

to Comply with the Regulatory Flexibility Act, 

August 2017. Sec. 3(d) of the Mine Act defines 

‘‘operator’’ as ‘‘any owner, lessee, or other person 

who operates, controls, or supervises a coal or other 

mine.’’ 30 U.S.C. 802(d). Under 30 CFR part 41, an 

operator must file a legal identity report with 

MSHA and with this report, MSHA identifies a 

controller for each mine. 30 U.S.C. 819(d) (each 

operator shall file the name and address of the 

‘‘person who controls or operates the mine.’’). In the 

IRFA, MSHA considered the controller of a mine 

and then determined whether the mine, not the 

controller, was a small entity. In the FRFA, 

consistent with the SBA guidance and the Mine 

Act, MSHA determines whether a controller is a 

small entity. 

14The NAICS classifications used in this analysis 

are drawn from the latest version of the NAICS, 

which was effective in July 2022. MSHA also used, 

in the analysis, an earlier the version of NAICS 

categories that were effective in August 2019. When 

developing the analysis, MSHA had begun the work 

prior to the most current NAICS being effective. The 

older NAICS categories were still used in the part 

of the current analysis that estimated revenues. This 

is because the older categories were still needed in 

order for MSHA to cross-tabulate (or crosswalk) its 

data on mines and controllers with Bureau of 

Census data on revenues by NAICS codes, where 

these Census data were organized by the same 

NAICS codes that were in the earlier version. No 

comparable revenue data, at this writing, had yet 

been revised to the most recent NAICS categories. 

15Some controllers own mines with more than 

one NAICS code if those mines produce different 

commodities. For this analysis, however, MSHA 

counted each ‘‘unique’’ controller only once. In 

other words, there is no double-counting of the 

same controller if a controller produces in more 

than one NAICS code. It is not uncommon for firms 

to produce different products falling under more 

than one six-digit NAICS codes, especially if the 

firm is large. In any case, no single NAICS code is 

attributed to any controller that has more than one 

NAICS code. Rather, the analysis takes all of any 

one controller’s multiple NAICS codes into account 

without losing any of the information about the 

NAICS codes. Specifically, that one controller’s 

revenues and employees are partitioned among 

each of that one controller’s production by NAICS 

code, and then aggregated for that one controller. 

16The number of controllers and mines examined 

in this regulatory flexibility analysis are those 

specifically known to operate in 2021. The year 

2021 is the most current year for which complete 

information were available. Such information about 

controllers as parent companies might include, for 

example, knowledge of whether the parent 

company is a large, multinational corporation, 

which has bearing on this regulatory flexibility 

analysis. Because the benefit-cost analysis 

performed on the proposed rule did not need this 

kind of detailed information about controllers, it 

was able to have a broader scope to include data 

from other years besides 2021, and to include some 

more data in the year 2021 itself, which it did. As 

a result, the benefit cost analysis included a larger 

number of mines (and affected mines) and 

controllers. The key factor for this regulatory 

flexibility analysis is the estimated ratio of the 

regulatory cost per revenue for controllers, as 

reflected by the most current data. The estimation 

of this ratio is robustly addressed in MSHA’s 

analysis of the 5,879 controllers in 2021 (which is 

not impacted by the exclusion of other years in this 

analysis). 

significant economic impact on a 

substantial number of small entities. 

The factual basis for this certification is 

presented in this section. 

A. Definition of Small 

Under the RFA, when analyzing the 

impact of a rule on small entities, 

MSHA must use the Small Business 

Administration’s (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. The SBA uses North 

American Industry Classification 

System (NAICS) codes, generally at the 

6-digit NAICS level, to set thresholds for 

small business sizes for each industry.12

B. Factual Basis for Certification 

Following SBA guidance on carrying 

out a threshold analysis, MSHA 

evaluates the impacts on small entities 

by comparing the estimated compliance 

costs of a rule for small entities in the 

sector affected by the rule to the 

estimated revenues for the affected 

sector. When estimated compliance 

costs are less than 1 percent of the 

estimated industry revenues, it is 

generally appropriate to conclude that 

there is no significant economic impact 

on a substantial number of small 

entities. In addition to assessing the 

overall impact on small entities, MSHA 

examines data for the NAICS codes that 

have much higher impact ratios (cost/ 

revenue) than others to ensure that the 

first-level screening is representative. 

As the first step, MSHA identified all 

small-entity controllers in the mining 

industry on the basis of the small-entity 

thresholds. The MNM and coal mining 

operations affected by the rule fall into 

two general categories: (1) controllers 

(parent companies) that own and 

operate mines, which is the appropriate 

unit for this RFA analysis (based on 

SBA guidance),13 and (2) mining 

contractors (independent contractors 

designated under part 45 of 30 CFR), 

hired by mine operators to work at 

mines, that operate their own surface 

mobile equipment. MSHA identified 

and analyzed the effect of the rule on 

small-entity controllers of mines and on 

small-entity mining contractors. 

To determine the number of small 

entities subject to the final rule, MSHA 

reviewed NAICS, the standard used by 

Federal statistical agencies in classifying 

business establishments, as well as 

information from the SBA Office of 

Advocacy. MSHA used its data from the 

MSHA Standardized Information 

System (MSIS) to identify the 

responsible party for each mine, as well 

as the contractors hired to do work on 

mines. MSHA then combined that 

information with the size classification 

information. The two sections below 

describe MSHA’s analysis of controllers 

and mining contractors, respectively. 

Small-entity controllers: In analyzing 

controllers of mines, MSHA determined 

that mining operations that fall into 19 

NAICS-based industry classifications 

may be subject to the final rule. These 

industry categories and their 

accompanying six-digit NAICS codes 

are shown in Table IV–1.14 MSHA then 

matched the NAICS classifications with 

SBA small-entity size standards (based 

on number of employees) to determine 

the number of small entities within each 

of the respective NAICS codes. See 

Table IV–1. 

MSHA counted the number of smallentity controllers in each NAICS code, 

after determining which mines were 

owned by which controllers. Table IV– 

1 shows the count of all controllers and 

a count of small-entity controllers in 

each NAICS code.15

Based on this methodology, MSHA 

estimated that in 2021, there were a 

total of 5,879 controllers, and 5,462 of 

them were small-entity controllers. 

Many controllers owned one or two 

mines, while some controllers owned 

hundreds of mines nationwide (or 

worldwide).16


ddrumheller on DSK120RN23PROD with RULES1
87918 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

17Note that many of the controllers also own 

operations in other, non-mining industries, and in 

other mining operations in other nations. 

TABLE IV–1—SMALL ENTITIES AFFECTED BY THE FINAL RULE: NUMBER OF CONTROLLERS AND SMALL-ENTITY

CONTROLLERS BY NAICS CODE * 

NAICS code Industry description 

SBA size 

standards in 

maximum 

number of 

employees ** 

Number 

of all 

controllers 

Number of 

small-entity 

controllers 

211120 .............. Crude petroleum extraction *** ..................................................................... 1,250 4 3

211130 .............. Natural Gas Extraction *** ............................................................................ 1,250 1 0 

212114 .............. Surface Coal Mining ..................................................................................... 1,250 282 237 

212115 .............. Underground Coal Mining ............................................................................ 1,500 122 99 

212210 .............. Iron Ore Mining ............................................................................................ 750 31 26 

212220 .............. Gold Ore and Silver Ore Mining .................................................................. 1,500 142 108 

212230 .............. Copper, Nickel, Lead, and Zinc Mining ........................................................ 750 45 33 

212290 .............. Other Metal Ore Mining ................................................................................ 750 29 22 

212311 .............. Dimension Stone Mining and Quarrying ...................................................... 500 491 432 

212312 .............. Crushed and Broken Limestone Mining and Quarrying ............................... 750 820 738 

212313 .............. Crushed and Broken Granite Mining and Quarrying ................................... 750 182 165 

212319 .............. Other Crushed and Broken Stone Mining and Quarrying ............................ 500 760 704 

212321 .............. Construction Sand and Gravel Mining ......................................................... 500 3,221 2,984

212322 .............. Industrial Sand Mining .................................................................................. 500 172 155 

212323 .............. Kaolin, Clay, and Ceramic and Refractory Minerals Mining ........................ 500 161 143 

212390 .............. Other Nonmetallic Mineral Mining and Quarrying ........................................ 500 151 123 

327310 .............. Cement Manufacturing ................................................................................. 1,000 74 53 

327410 .............. Lime Manufacturing ...................................................................................... 750 58 49 

331313 .............. Primary production of alumina and aluminum ............................................. 1,300 3 3 

* Each mine is assigned only one NAICS (as its major product) but some controllers that own more than one mine own mines that are in different NAICS. Consequently, some controllers have more than one NAICS (when they own mines with different NAICS) and they are therefore 

counted more than once in this table. See Table _–2 for the distribution of controllers by the NAICS code for which they have the most employees, which will then show only one NAICS code for each controller. 

** SBA, effective July 14, 2022. 

*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas extraction, but the mines in 

these categories that are counted here, and included in this analysis, also involve mining operations that would fall under MSHA’s jurisdiction. 

This analysis does not include crude petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not 

regulate these activities. 

Each mine is assigned only one 

NAICS code, with that code reflecting 

what that mine produces the most. 

There are several cases in which more 

than one mine, owned by the same 

controller, have different NAICS codes, 

and as a result that one controller has 

multiple NAICS codes. For this reason, 

some controllers are counted more than 

once in this Table IV–1 (as also 

explained in a footnote in the table). In 

particular, of the 5,879 unique 

controllers identified in 2021, 608 of 

them each owned multiple mines with 

different NAICS codes. In theory, this 

could present an ambiguity as to 

whether a controller, with more than 

one NAICS code, should be considered 

a small entity or not. Since NAICS codes 

vary by their small-entity thresholds, it 

is theoretically possible for a controller 

with more than one NAICS code to be 

a small entity according to the threshold 

for one of its NAICS codes, while not 

being a small entity under the lower 

threshold that applies to another of its 

NAICS codes. However, this situation 

was not found to occur for any of the 

controllers; all controllers that were 

determined to be small entities met the 

conditions for a small entity for each of 

their NAICS codes. 

While some controllers are in more 

than one mining NAICS code, the 

distribution of controllers by their most 

significant NAICS code may also 

provide useful information about the 

general structure of the industry. 

Therefore, MSHA also prepared Table 

IV–2 to present the distribution of 

controllers by the one NAICS code 

under which the largest number of their 

employees are reported. This table then 

assigns only one NAICS code for each 

controller, allowing for a count of 

controllers by their (mutually exclusive) 

most significant NAICS code in 

mining.17

TABLE IV–2—SMALL ENTITIES AFFECTED BY THE FINAL RULE: DISTRIBUTION OF CONTROLLERS BY NAICS CATEGORY, 

WITH ONE NAICS CODE PER CONTROLLER * 

NAICS code Industry description 

SBA size 

standards 

in maximum 

number of 

employees ** 

Number 

of all 

controllers 

Number 

of small-entity 

controllers 

211120 .............. Crude Petroleum Extraction *** .................................................................... 1,250 3 3 

211130 .............. Natural Gas Extraction *** ............................................................................ 1,250 1 0 

212114 .............. Surface Coal Mining ..................................................................................... 1,250 246 218 

212115 .............. Underground Coal Mining ............................................................................ 1,500 93 75 

212210 .............. Iron Ore Mining ............................................................................................ 750 19 18 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87919 

TABLE IV–2—SMALL ENTITIES AFFECTED BY THE FINAL RULE: DISTRIBUTION OF CONTROLLERS BY NAICS CATEGORY, 

WITH ONE NAICS CODE PER CONTROLLER *—Continued 

NAICS code Industry description 

SBA size 

standards 

in maximum 

number of 

employees ** 

Number 

of all 

controllers 

Number 

of small-entity 

controllers 

212220 .............. Gold Ore and Silver Ore Mining .................................................................. 1,500 98 82

212230 .............. Copper, Nickel, Lead, and Zinc Mining ........................................................ 750 31 25 

212290 .............. Other Metal Ore Mining ................................................................................ 750 14 12 

212311 .............. Dimension Stone Mining and Quarrying ...................................................... 500 415 382 

212312 .............. Crushed and Broken Limestone Mining and Quarrying ............................... 750 716 675 

212313 .............. Crushed and Broken Granite Mining and Quarrying ................................... 750 133 130 

212319 .............. Other Crushed and Broken Stone Mining and Quarrying ............................ 500 617 596 

212321 .............. Construction Sand and Gravel Mining ......................................................... 500 3,046 2,839

212322 .............. Industrial Sand Mining .................................................................................. 500 120 113 

212323 .............. Kaolin, Clay, and Ceramic and Refractory Minerals Mining ........................ 500 108 101 

212390 .............. Other Nonmetallic Mineral Mining and Quarrying ........................................ 500 108 95 

327310 .............. Cement Manufacturing ................................................................................. 1,000 61 49 

327410 .............. Lime Manufacturing ...................................................................................... 750 48 47 

331313 .............. Primary production of alumina and aluminum ............................................. 1,300 2 2 

Total ........... ....................................................................................................................... ........................ 5,879 5,462 

* Each controller is assigned the one NAICS code for which it devotes the most employees, based on the employees at its mines and each of 

its mines being associated with only one NAICS code. 

** SBA, effective July 14, 2022. 

*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas extraction, but the mines in 

these categories that are counted here, and included in this analysis, also involve mining operations that would fall under MSHA’s jurisdiction. 

This analysis does not include crude petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not 

regulate these activities. 

MSHA estimated the costs of the rule 

for small-entity controllers by summing 

the costs for each of these controller’s 

mines. The estimated cost for each mine 

was based on the number of miners at 

that mine, and the mine’s industry 

category. Thus, if two mines belonging 

to the same controller had different 

NAICS codes, both of those NAICS 

codes would be accounted for, and the 

total cost to the controller would be 

calculated as the total cost for all of that 

controller’s mines. Similarly, the 

estimated revenues of controllers were 

derived as the sum of the revenues of 

each of their mines, which was, in turn, 

dependent on the NAICS codes 

associated with those mines. Thus, all of 

NAICS codes for all of the mines, and 

all of the mines under all of the NAICS 

codes, were accounted for in the 

estimates of the costs and revenues of 

controllers. 

As shown in Table IV–2, MSHA 

determined that, in 2021, there were a 

total of 5,879 controllers, and 5,462 of 

them were small-entity controllers. 

These small-entity controllers owned a 

total of 9,395 mines, out of the 12,529 

mines owned by all controllers in 2021. 

Table IV–3 presents a summary of the 

main findings regarding small-entity 

controllers. As shown, MSHA estimated 

the total cost of the rule to all 5,462 

small-entity controllers to be $26.69 

million in the first year, and $8.17 

million in each subsequent year (in 

2021 dollars). Per small entity, this 

amounted to an average compliance cost 

of $4,886 in the first year and $1,496 in 

each year thereafter. MSHA estimated 

the total revenues of the 5,462 smallentity controllers to be $33,720 million 

(in 2021 dollars). As a result of these 

estimates, MSHA found the compliance 

cost of the final rule to small entities, as 

a percent of revenues, on average, to be 

0.165 percent in the first year, and 0.069 

percent in each subsequent year. Among 

the small-entity controllers examined, 

the compliance cost as a percent of 

controllers’ revenues ranged from near 

zero to a maximum of 0.341 percent in 

the first year, and to a maximum of 

0.175 percent in each year thereafter. On 

the basis of these findings, MSHA 

determined that the final rule does not 

have a significant impact on small 

entities controllers in the mining 

industry. 

TABLE IV–3—MAIN FINDINGS FOR 5,462 SMALL-ENTITY CONTROLLERS

Economic measure First year 

Each 

subsequent 

year 

Total Compliance Costs (in Millions of 2021 Dollars) ............................................................................................. $26.69 $8.17 

Total Revenue (in Millions of 2021 Dollars) ............................................................................................................ $33,720 $33,720 

Average Compliance Cost per Small-Entity Controller (in 2021 Dollars) ............................................................... $4,886 $1,496 

Ratio of Total Compliance Cost/Total Revenue (in Percent) .................................................................................. 0.079 0.024 

Average of the Ratios of Compliance Cost/Revenue (in Percent) ......................................................................... 0.165 0.069 

Small-entity independent contractors: 

For its analysis of independent 

contractors designated under part 45 of 

30 CFR, MSHA used MSIS data to first 

derive a list of all mining contractors in 

the year 2021. The list contained a total 

of 6,318 contractors. While these 

contractors varied greatly in terms of 

their corresponding NAICS codes, 

MSHA determined that the most 

relevant NAICS codes for characterizing 

the mining contractors were the NAICS 


ddrumheller on DSK120RN23PROD with RULES1
87920 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

18Census Bureau, Statistics of U.S. Businesses. 

https://www.census.gov/data/tables/2017/econ/ 

susb/2017-susb-annual.html. 

19Small Business Administration, Table of Size 

Standards: Effective July 14, 2022. https:// 

www.sba.gov/document/support-table-sizestandards. 

20MSHA translated the threshold of $20.5 million 

in 2022 dollars to $17.44 million in 2017 dollars 

based on the Bureau of Economic Analysis’ GDP 

Price Index. 

21 It is important to note that, although, contractor 

revenues may be close in magnitude to their costs, 

those costs often far exceed their labor costs, and 

therefore their revenue per employee would be 

expected to far exceed their average salaries. Such 

additional costs, besides labor costs, include the 

costs of equipment, fuel, overhead, taxes, etc. 

Codes for (1) ‘‘Support Activities for 

Coal Mining’’ (213113), (2) ‘‘Support 

Activities for Metal Mining’’ (213114), 

and (3) ‘‘Support Activities for 

Nonmetallic Minerals’’ (213115). MSHA 

did not have data on parent companies 

of these contractors. However, MSHA 

analyzed data on enterprises and 

establishments in these NAICS codes 

from the Census Bureau, Statistics of 

U.S. Businesses (SUSB).18 The SUSB 

data on entities in these three NAICS 

codes indicated that the vast majority of 

contractors (which would be listed 

separately in MSHA’s data) are, 

themselves, parent companies. 

Specifically, based on the SUSB data on 

parent companies and the enterprises 

that belong to them, MSHA observed 

that the number of enterprises in these 

three NAICS codes, on average, 

exceeded the number of parent 

companies by only about 9 percent. 

Therefore, over 91 percent of parent 

companies that are mining contractors 

have only one establishment, implying 

that the vast majority of listed 

contractors are themselves parent 

companies, rather than subsidiaries of 

larger companies. Based on these 

findings, MSHA assumed in its analysis 

that the contractors on its list are parent 

companies. 

Based on this assumption that each of 

the listed mining contractors in 2021 is 

not a subsidiary of a larger company, 

MSHA estimated how many of them 

would be considered small entities 

under the RFA. To make this 

determination, MSHA applied the size 

thresholds for the three NAICS 

categories for support activities for 

mining (213113, 213114, and 213115). 

Small entities in NAICS 213113 

(support activities for coal mining) are 

those with annual revenues below the 

threshold of $27.5 million in 2022 

dollars, while those in NAICS 213114 

(support activities for metal mining) and 

NAICS 213115 (support activities for 

nonmetallic minerals) have annual 

revenues of less than $41.0 million and 

$20.5 million, respectively.19 In 

estimating how many contractors are 

small entities, MSHA conservatively 

applied the $20.5 million (in 2022 

dollars) threshold, so as not to 

underestimate the number of small 

entities.20 MSHA’s estimation of the 

number of small-entity contractors may 

therefore be an overestimation; 

however, MSHA still believes it is a 

close approximation to the number of 

small-entity contractors that would be 

determined if more detailed data were 

available. 

From the employment and revenue 

data in the SUSB tables for the three 

NAICS Codes for support activities for 

mines, MSHA estimated that mining 

support contractors have, on average, 

revenues of approximately $315,000 (in 

2017 dollars) per employee.21

MSHA’s data on mining contractors 

included the number of employees 

working for each contractor. MSHA was 

able to estimate the revenue of each 

contractor by multiplying its number of 

employees by the average revenue per 

employee of $315,000 from the SUSB 

data. From these estimates of each 

contractor’s revenue, MSHA estimated 

that approximately 4,469 contractors out 

of a total of 4,739 contractors affected by 

the rule (or about 94.3 percent of those 

contractors) are potentially small 

entities, under the threshold of $17.4 

million (in 2017 $) in annual revenue. 

Table IV–3 presents a summary of the 

main findings on mining contractors 

that would be affected by the rule. As 

shown, MSHA estimated the total cost 

to all 4,469 potential small-entity 

contractors of the rule to be $2.69 

million in the first year and $0.954 

million in each subsequent year. Per 

small-entity contractor, this amounted 

to an average cost of $453 in the first 

year and $212 in each year thereafter. 

MSHA estimated the total revenues of 

the 4,469 potential small-entity 

contractors to be $12,783 million (in 

2021 dollars). As a result of these 

estimates, MSHA found the cost of the 

final rule to small-entity contractors, as 

a percent of revenue, to be, on average 

across the contractors, 0.0211 percent of 

revenue in the first year and 0.0074 

percent of revenue in each subsequent 

year. On the basis of these findings, 

MSHA determined that the final rule 

does not have a significant impact on 

small-entity-contractors in the mining 

industry. 

TABLE IV–3—MAIN FINDINGS FOR 4,469 SMALL-ENTITY CONTRACTORS

Economic measure First year 

Each 

subsequent 

year 

Total Compliance Costs (in Millions of 2021 Dollars) ............................................................................................. $2.69 $0.95 

Total Revenue (in Millions of 2021 Dollars) ............................................................................................................ $12,783 $12,783 

Average Compliance Cost Per Small-Entity Contractor (in 2021 Dollars) .............................................................. $453 $212 

Ratio of Total Compliance Cost/Total Revenue (in Percent) .................................................................................. 0.0211 0.0074 

Average of the Ratios of Compliance Cost/Revenue (in Percent) ......................................................................... 0.0460 0.0212 

In conclusion, MSHA determined that 

the rule does not have a significant 

effect on either small-entity mining 

controllers or small-entity mining 

contractors. MSHA therefore certifies 

that this final rule does not have a 

significant economic impact on a 

substantial number of small entities. 

V. Paperwork Reduction Act of 1995 

The Paperwork Reduction Act of 1995 

(PRA) (44 U.S.C. 3501–3521) provides 

for the Federal Government’s collection, 

use, and dissemination of information. 

The goals of the PRA include 

minimizing paperwork and reporting 

burdens and ensuring the maximum 

possible utility from the information 

that is collected under 5 CFR part 1320. 

The PRA requires Federal agencies to 

obtain approval from OMB before 

requesting or requiring ‘‘a collection of 

information’’ from the public. 

MSHA determined that this final rule 

creates a new information collection 

burden for the mining community. 

However, the final rule does not contain 

changes that transfer burden from, or 

add burden to, existing information 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87921 

collections because the paperwork 

requirements in this rule are applicable 

to only the new information collection 

discussed below. MSHA expects that 

some mine operators may use existing 

information collections to help the 

development or implementation of a 

written safety program at their mine. For 

example, under OMB No. 1219–0089, 

Safety Defects; Examination, Correction, 

and Records, MNM operators record 

inspections of surface mobile equipment 

before equipment is placed in operation 

and when equipment is removed from 

service to be repaired before use is 

resumed. Under OMB No. 1219–0083, 

Surface Coal Mines Daily Inspection; 

Certified Person; Reports of Inspection, 

coal mine operators record reports of 

hazardous conditions in active work 

areas of surface operations along with a 

description of any corrective actions 

taken. Some operators may incorporate 

these existing information collections, if 

applicable, into their safety program for 

surface mobile equipment because they 

have determined the existing 

information collections would support 

the safety program’s development or 

implementation. Hence, only new 

requirements from this final rule will be 

recorded under this new information 

collection and there will be no change 

to existing information collections. 

Once OMB completes its review of 

MSHA’s new information collection, the 

Agency will publish a notice on the new 

information collection under the 

Information Collection Review (ICR) 

1219–0155. (The regulated community 

is not required to respond to any 

collection of information unless it 

displays a current, valid, OMB control 

number.) 

A. New Information Collection Under 

‘‘Safety Program for Surface Mobile 

Equipment’’ 

Under this final rule, new burdens 

will apply to operators and independent 

contractors who are subject to 30 CFR 

part 45, as discussed below. 

Section 56.23003(a) requires operators 

of surface metal and nonmetal mines to 

develop, implement, and update a 

written safety program for surface 

mobile equipment to reduce the number 

and rates of accidents, injuries, and 

fatalities. This subpart applies to all 

surface mobile equipment at surface 

metal and nonmetal mines. Such a 

program will include actions the 

operator will take to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

Section 57.23003(a) requires operators 

of underground metal and nonmetal 

mines to develop, implement, and 

update a written safety program for 

surface mobile equipment to reduce the 

number and rates of accidents, injuries, 

and fatalities. This subpart applies to all 

surface mobile equipment at surface 

areas of underground metal and 

nonmetal mines. Such a program will 

describe actions the operator will take 

to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

Section 77.2103(a) requires operators 

of surface coal mines and surface work 

areas of underground coal mines to 

develop, implement, and update a 

written safety program for surface 

mobile equipment to reduce the number 

and rates of accidents, injuries, and 

fatalities. This subpart applies to all 

surface mobile equipment at surface 

coal mines and surface work areas of 

underground coal mines. Such a 

program will describe actions the 

operator will take to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

In addition, §§ 56.23003(b), 

57.23003(b), and 77.2103(b) require 

evaluation and updates to the written 

safety program at least annually, or as 

mining conditions or practices change 

that may adversely affect the health and 

safety of miners or other persons, as 

accidents or injuries occur, or as surface 

mobile equipment changes or 

modifications are made. 

B. Information Collection Requirements 

I. Type of Review: New Collection. 

OMB Control Number: 1219–0155. 

1. Title: Safety Program for Surface 

Mobile Equipment. 

2. Description of the ICR: This final 

rule on safety program for surface 

mobile equipment contains collection of 

information requirements that will 

assist miners, operators, and 

independent contractors in identifying 

risks to their safety and help reduce 

injuries and fatalities at mines. 

There are provisions of this final rule 

that have different burden hours, 

burden costs, and responses each year. 

Therefore, MSHA shows the estimates 

of burden hours, burden costs, and 

responses in three separate years. 

3. Summary of the Collection of 

Information: 

Sections 56.23003(a), 57.23003(a), 

77.2103(a)—Developing and 

Implementing Written Safety Program 

ICR. Final §§ 56.23003(a), 57.23003(a), 

and 77.2103(a) require operators to 

develop and implement written safety 

programs. 

Number of respondents. For 

§§ 56.23003(a), 57.23003(a), and 

71.2103(a), the respondents consist of 

operators and independent contractors 

owning and using surface mobile 

equipment since they will be 

responsible for developing and 

implementing the written safety 

program for surface mobile equipment. 

MSHA estimates that, based on its 

2021 data, a total of 17,133 respondents 

(12,394 operators and 4,739 part 45 

independent contractors) will develop a 

written safety program for surface 

mobile equipment in the first year of 

implementation. MSHA estimated that 

12,394 are surface mines and 

underground mines with surface areas, 

so the operators of those mines are 

assumed to comply with this rule. 

MSHA estimates that some operators 

may need to update, enhance, or even 

develop portions of this written safety 

program to meet current requirements. 

MSHA estimated that no additional 

recordkeeping costs will be generated by 

the activities associated with training 

because this activity is already being 

performed during compliance efforts for 

existing training standards. 


ddrumheller on DSK120RN23PROD with RULES1
87922 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

Annual number of responses. The 

estimated average annual number of 

responses will be 17,133. 

Estimated annual burden. The total 

burden arising from the development of 

the safety program in the first year of 

implementation is estimated to be 

682,833 hours, which includes 297,687 

hours to list the actions the operator 

will take to conduct the mine-specific 

hazard analysis and technology 

evaluation components of the safety 

program, 383,860 hours for listing the 

actions operators will take to develop a 

maintenance schedule for surface 

mobile equipment as part of the written 

safety program (if needed), as well as 

1,285 hours to make available and copy 

the written safety program. An average 

burden per respondent is estimated to 

be 39.85 hours to develop a written 

safety program for surface mobile 

equipment in the first year. 

Sections 56.23003(b), 57.23003(b), and 

71.2103(b)—Annual Updates to the 

Written Safety Program 

ICR. Final §§ 56.23003(b), 

57.23003(b), and 71.2103(b) require the 

responsible person to evaluate and 

update the written safety program for 

the mine at least annually, or as mining 

conditions or practices change that may 

adversely affect the health and safety of 

miners or other persons, as accidents or 

injuries occur, or as surface mobile 

equipment changes or modifications are 

made. 

Number of respondents. For 

§§ 56.23003(b), 57.23003(b), and 

71.2103(b), the respondents will consist 

of all operators and contractors who 

have developed a written safety program 

for surface mobile equipment. MSHA 

estimates that a total of 17,133 mine 

operators and independent contractors 

will subsequently update a written 

safety program for surface mobile 

equipment in years two and three. The 

respondents will update at least 

annually, or as mining conditions or 

practices change that may adversely 

affect the health and safety of miners or 

other persons, as accidents or injuries 

occur, or as surface mobile equipment 

changes or modifications are made. 

Annual number of responses. The 

estimated average annual number of 

responses will be 17,133. 

Estimated annual burden. The total 

burden arising from the annual and 

other updating of the safety program 

will be 259,834 hours in the second and 

third years of implementation, 129,917 

hours each year. This annual burden 

includes updates to the written safety 

program arising from changing 

conditions at mine sites, surface mobile 

equipment unit updates, as well as 

making available and copying the 

written safety program. The estimated 

annual burden per respondent is 7.58 

hours. 

Besides the development and update 

of the written safety program, no 

additional information collection cost is 

expected. Information collection 

associated with training requirements in 

this final rule is covered under existing 

regulations in 30 CFR parts 46, 48, and 

77. 

Total Recordkeeping and 

Documentation Burden for the Safety 

Program for Surface Mobile Equipment 

Rule 

TABLE V–1—ESTIMATED ANNUAL RECORDKEEPING AND DOCUMENTATION BURDEN

Year 

Annual 

number of 

respondents 

Annual 

number of 

responses 

Annual 

burden per 

respondent 

Estimated 

annual burden 

(Hours) 

Year 1 ............................................................................................................ 17,133 17,133 39.85 682,833 

Year 2 ............................................................................................................ 17,133 17,133 7.58 129,917 

Year 3 ............................................................................................................ 17,133 17,133 7.58 129,917 

3-Year Total ............................................................................................ 17,133 51,399 55.02 942,666 

Annual Average ...................................................................................... 17,133 17,133 18.34 314,222

The cost estimates of information 

collection burden are calculated as 

follows. In the first year, the average 

burden per respondent for developing a 

safety program, combining hazard 

analysis and technology evaluation, 

identifying actions operators will take to 

maintain and repair equipment and 

train miners as well as making available 

and copying the written safety program, 

is 39.85 hours for a total of 682,833 

burden hours in Year 1. In Years 2 and 

3, the average burden per respondent for 

updating a safety program is 7.58 hours, 

for a total of 129,917 burden hours in 

Year 2 and 129,917 burden hours in 

Year 3. 

MSHA determined the hourly wage 

rates through data from the U.S. 

Department of Labor, Bureau of Labor 

Statistics (BLS), Occupational 

Employment and Wage Statistics 

(OEWS) published May 2021. Annual 

Burden Hours are summarized in Table 

V–2. 

TABLE V–2—WAGE AND HOUR BURDENS

Occupation Loaded hourly 

wage rate * 

Year 1 

burden hours 

Year 2 

burden hours 

Year 3 

burden hours 

Mining Supervisor, MNM ............................................................................... $61.41 241,085.00 103,182.50 103,182.50 

Mining Supervisor, Coal ................................................................................ 71.79 21,198.80 7,989.28 7,989.28 

Maintenance and Mechanic, MNM ................................................................ 42.22 307,802.50 ........................ ........................

Maintenance and Mechanic, Coal ................................................................. 47.70 33,406.80 ........................ ........................

Occupational Health & Safety Specialist, MNM ............................................ 59.06 16,318.40 4,561.34 4,561.34 

Occupational Health & Safety Specialist, Coal ............................................. 68.29 8,422.40 2,354.24 2,354.24 

Clerk, MNM .................................................................................................... 35.58 858.78 858.78 858.78 

Clerk, Coal ..................................................................................................... 35.01 70.80 70.80 70.80 

Clerk, Contractor ............................................................................................ 35.45 355.43 355.43 355.43 

Mining Supervisor, Contractor ....................................................................... 63.70 10,662.75 10,544.28 10,544.28 

Maintenance and Mechanic, Contractor ........................................................ 43.43 42,651.00 ........................ ........................


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87923 

TABLE V–2—WAGE AND HOUR BURDENS—Continued 

Occupation Loaded hourly 

wage rate * 

Year 1 

burden hours 

Year 2 

burden hours 

Year 3 

burden hours 

Occupational Health & Safety Specialist, Contractor .................................... 61.09 ........................ ........................ ........................

Total (Rounded) ...................................................................................... .......................... 682,833 129,917 129,917 

* Loaded hourly wages are mean wages that are increased by a benefits multiplier of 1.488 plus a separate overhead multiplier of 1.01. 

The resulting annual burden cost is 

summarized in Table V–3. 

TABLE V–3—SUMMARY OF INFORMATION COLLECTION BURDEN FOR SAFETY PROGRAM FOR SURFACE MOBILE EQUIPMENT

Year 1 Year 2 Year 3 Annual 

average 

Number of Respondents .................................................................................. 17,133 17,133 17,133 17,133 

Number of Responses ..................................................................................... 17,133 17,133 17,133 17,133 

Number of Burden Hours (Rounded) .............................................................. 682,833 129,917 129,917 314,222 

Respondent or Recordkeeping Costs (Rounded) ........................................... $25,700 $25,700 $25,700 $25,700 

1. Affected Public: Business or other 

for-profit. 

2. Estimated Number of Respondents: 

17,133 respondents in the first year; 

17,133 respondents in the second year; 

and 17,133 respondents in the third 

year. 

3. Frequency: On occasion. 

4. Estimated Number of Responses: 

17,133 responses in the first year; 

17,133 responses in the second year; 

and 17,133 responses in the third year. 

5. Estimated Number of Burden 

Hours: 682,833 hours in the first year; 

129,917 hours in the second year; and 

129,917 hours in the third year. 

6. Estimated Respondent or 

Recordkeeper Hour Burden Costs: 

$25,700 in the first year; $25,700 in the 

second year; and $25,700 in the third 

year. 

For a detailed summary of the burden 

hours and related costs by provision, see 

the FRIA accompanying the final rule. 

The FRIA includes the estimated costs 

and assumptions for the paperwork 

requirements related to this final rule. 

MSHA received comments on the 

information collection requirements 

contained in the proposed rule (86 FR 

50496). These comments are addressed 

in the Supporting Statement for the 

information collection requirements for 

this final rule. The Information 

Collection Supporting Statement is 

available at http://www.reginfo.gov/ 

public/do/PRAMain, on MSHA’s 

website at http://www.msha.gov/regs/ 

fedreg/informationcollection/ 

informationcollection.asp, and at http:// 

www.regulations.gov. A copy of the 

Statement is also available from MSHA 

by request to S. Aromie Noe at 

Noe.Song-Ae.A@dol.gov, by phone 

request to 202–693–9440, or by 

facsimile to 202–693–9441. These are 

not toll-free numbers. 

VI. Other Regulatory Considerations 

A. National Environmental Policy Act of 

1969 

The National Environmental Policy 

Act of 1969 (NEPA) (42 U.S.C. 4321 et 

seq.), requires each Federal agency to 

consider the environmental effects of 

final actions and to prepare an 

Environmental Impact Statement on 

major actions significantly affecting the 

quality of the environment. MSHA has 

reviewed the final rule in accordance 

with NEPA requirements, the 

regulations of the Council on 

Environmental Quality (40 CFR part 

1500), and the Department of Labor’s 

NEPA compliance procedures (29 CFR 

part 11). As a result of this review, 

MSHA has determined that this final 

rule will not have a significant 

environmental impact. Accordingly, 

MSHA has not conducted an 

environmental assessment nor provided 

an environmental impact statement. 

B. The Unfunded Mandates Reform Act 

of 1995 

The Unfunded Mandates Reform Act 

of 1995 (Act) (2 U.S.C. 1501 et seq.) 

requires Federal agencies to assess the 

effects of their discretionary regulatory 

actions. In particular, the Act addresses 

actions that may result in the 

expenditure by State, local, or tribal 

governments, in the aggregate, or by the 

private sector, of $100 million (adjusted 

annually for inflation) or more in any 1 

year. MSHA has reviewed the final rule 

and has determined that it does not 

result in such an expenditure. 

Accordingly, the Unfunded Mandates 

Reform Act of 1995 requires no further 

Agency action or analysis. 

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 the final rule has no 

effect on family stability or safety, 

marital commitment, parental rights and 

authority, or income or poverty of 

families and children, as defined in the 

Act. Accordingly, MSHA determines 

that the final rule does not impact 

family well-being, as defined in the Act. 

D. Congressional Review Act 

The Congressional Review Act (5 

U.S.C. 801 et seq.) allows Congress to 

review ‘‘major’’ rules issued by federal 

agencies. The Congressional Review Act 

states that, before a rule may take effect, 

the agency issuing the rule must submit 

the rule, and certain related 

information, to each House of Congress 

and the Comptroller General. 5 U.S.C. 

801(a)(1). The Congressional Review Act 

defines a major rule as one that has 

resulted in or is likely to result in (1) an 

annual effect on the economy of $100 

million or more; (2) a major increase in 

costs or prices for consumers, 

individual industries, federal, state, or 

local government agencies, or 

geographic regions; or (3) significant 

adverse effects on competition, 

employment, investment, productivity, 

or innovation, or on the ability of 

United States-based enterprises to 

compete with foreign-based enterprises 


ddrumheller on DSK120RN23PROD with RULES1
87924 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

in domestic and export markets. 5 

U.S.C. 804(2). 

Pursuant to the Congressional Review 

Act, this rule is not a ‘‘major rule,’’ as 

defined by 5 U.S.C. 804(2). However, 

pursuant to the Congressional Review 

Act, MSHA will submit a copy of this 

final rule to both Houses of Congress 

and to the Comptroller General. 

E. Executive Order 12630: Government 

Actions and Interference With 

Constitutionally Protected Property 

Rights 

E.O. 12630 requires Federal agencies 

to ‘‘identify the takings implications of 

proposed regulatory actions . . . .’’ 

MSHA has determined that the final 

rule does not include a regulatory or 

policy action with takings implications. 

Accordingly, E.O. 12630 requires no 

further Agency action or analysis. 

F. Executive Order 12988: Civil Justice 

Reform 

Section 3 of E.O. 12988 contains 

requirements for Federal agencies 

promulgating new regulations or 

reviewing existing regulations to 

minimize litigation by eliminating 

drafting errors and ambiguity, providing 

a clear legal standard for affected 

conduct rather than a general standard, 

promoting simplification, and reducing 

burden. MSHA has reviewed the final 

rule and has determined that it meets 

the applicable standards provided in 

E.O. 12988 to minimize litigation and 

undue burden on the Federal court 

system. Accordingly, the final rule 

meets the applicable standards provided 

in E.O. 12988, Civil Justice Reform. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

E.O. 13045 requires Federal agencies 

submitting covered regulatory actions to 

OMB’s Office of Information and 

Regulatory Affairs (OIRA) for review, 

pursuant to E.O. 12866, to provide OIRA 

with (1) an evaluation of the 

environmental health or safety effects 

that the planned regulation may have on 

children, and (2) an explanation of why 

the planned regulation is preferable to 

other potentially effective and 

reasonably feasible alternatives 

considered by the agency. In E.O. 13045, 

‘‘covered regulatory action’’ is defined 

as rules that may (1) be significant 

under E.O. 12866, supplemented by 

E.O. 14094, (i.e., a rulemaking that has 

an annual effect on the economy of $200 

million or more or would adversely 

affect in a material way the economy, a 

sector of the economy, productivity, 

competition, jobs, the environment, 

public health or safety, or State, local or 

tribal governments or communities), 

and (2) concern an environmental 

health risk or safety risk that an agency 

has reason to believe may 

disproportionately affect children. 

Environmental health risks and safety 

risks refer to risks to health or to safety 

that are attributable to products or 

substances that the child is likely to 

come in to contact with or ingest 

through air, food, water, soil, or product 

use or exposure. 

This final rule is not subject to E.O. 

13045 because it is not significant under 

section 3(f)(1) of E.O. 12866, and 

because it does not concern an 

environmental health risk or safety risk 

that may disproportionately affect 

children. This final rule is requiring that 

operators develop, implement, and 

update a written safety program for 

surface mobile equipment (excluding 

belt conveyors) at surface mines and 

surface areas of underground mines. 

The written safety program includes 

actions operators will take to identify 

hazards and risks to reduce accidents, 

injuries, and fatalities related to surface 

mobile equipment. This rule does not 

concern risks to health or to safety that 

are attributable to products or 

substances that children are likely to 

come in to contact with or ingest 

through air, food, water, soil, or product 

use or exposure. Accordingly, E.O. 

13045 requires no further Agency action 

or analysis. 

H. Executive Order 13132: Federalism 

MSHA has determined that the final 

rule does not have federalism 

implications because it does not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Accordingly, E.O. 

13132 requires no further Agency action 

or analysis. 

I. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

MSHA has determined that the final 

rule does not have tribal implications 

because it does not have substantial 

direct effects on one or more Indian 

tribes, on the relationship between the 

Federal Government and Indian tribes, 

or on the distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

Accordingly, E.O. 13175 requires no 

further Agency action or analysis. 

J. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

E.O. 13211 requires agencies to 

publish a Statement of Energy Effects for 

‘‘significant energy actions’’ which are 

agency actions that are ‘‘likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy’’ 

including a ‘‘shortfall in supply, price 

increases, and increased use of foreign 

supplies.’’ MSHA reviewed the final 

rule for its impact on the production of 

coal and uranium mining. The final rule 

results in annualized costs of 

approximately $12.6 million (in 2021 

dollars, undiscounted) to covered 

surface mines and surface areas of 

underground mines, though most of 

these costs will be incurred in MNM 

mining that does not involve uranium 

mining (nor coal mining). MSHA 

therefore determined that such costs do 

not have any substantive effect on coal 

and uranium mining. Because the final 

rule does not result in a significant 

adverse effect on the supply, 

distribution, or use of energy, it is not 

a ‘‘significant energy action.’’ 

Accordingly, E.O. 13211 requires no 

further Agency action or analysis. 

K. Executive Order 13985: Advancing 

Racial Equity and Support for 

Underserved Communities Through the 

Federal Government; Executive Order 

14091: Further Advancing Racial Equity 

and Support for Underserved 

Communities Through the Federal 

Government 

E.O. 13985 provides ‘‘that the Federal 

Government should pursue a 

comprehensive approach to advancing 

equity for all, including people of color 

and others who have been historically 

underserved, marginalized, and 

adversely affected by persistent poverty 

and inequality.’’ E.O. 13985 defines 

‘‘equity’’ as ‘‘consistent and systematic 

fair, just, and impartial treatment of all 

individuals, including individuals who 

belong to underserved communities that 

have been denied such treatment, such 

as Black, Latino, and Indigenous and 

Native American persons, Asian 

Americans and Pacific Islanders and 

other persons of color; members of 

religious minorities; lesbian, gay, 

bisexual, transgender, and queer 

(LGBTQ+) persons; persons with 

disabilities; persons who live in rural 

areas; and persons otherwise adversely 

affected by persistent poverty or 

inequality.’’ To assess the impact of the 

final rule on equity, MSHA considered 

two factors: (1) the racial/ethnic 

distribution in mining in NAICS 212 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87925 

22National Institute for Occupational Safety and 

Health (NIOSH), ‘‘National Survey of the Mining 

Population: Part I: Employees,’’ June 2012. https:// 

www.cdc.gov/niosh/mining/works/ 

coversheet776.html. 

23National data on workers by race were not 

available for the year 2008; comparable data for 

2012 are provided for comparison under the 

assumption that there would not be major 

differences in distributions between these 2 years. 

24Although 2 percent may appear to be a small 

number for identifying a mining community, one 

might consider that if the average household with 

one parent working as a miner has five members in 

total, then approximately 10 percent of households 

in the area would be directly associated with 

mining. While 10 percent may also appear small, 

this refers to the county. There are likely particular 

areas that have a heavier concentration of mining 

households. 

25This is a simple average rather than a weighted 

average by population. 

(which does not include oil and gas 

extraction) compared to the racial/ 

ethnic distribution of the U.S. workforce 

(Table VI–1), and (2) the extent to which 

mining may be concentrated within 

general mining communities (Table VI– 

2). 

In 2008, NIOSH conducted a survey of 

mines, which entailed sending a survey 

packet to 2,321 mining operations to 

collect a wide range of information, 

including demographic information on 

miners. NIOSH’s 2012 report, entitled 

‘‘National Survey of the Mining 

Population: Part I: Employees’’ reported 

the findings of this survey.22 Race and 

ethnicity information about U.S. mine 

workers is presented in Table VI–1. Of 

all mine workers, including miners as 

well as administrative employees at 

mines, 93.4 percent of mine workers 

were white, compared to 80.6 percent of 

all U.S workers.23 There were larger 

percentages of American Indian or 

Alaska Native and Native Hawaiian or 

Other Pacific Islander people in the 

mining industry compared to all U.S. 

workers, while there were smaller 

percentages of Asian, Black or African 

American, and Hispanic/Latino people 

in the mining industry compared to all 

U.S. workers. 

Section 6 of E.O. 14091 further 

provides that agencies are ‘‘to create 

equitable economic opportunity and 

advance projects that build community 

wealth’’ in rural America. The final rule 

helps miners in rural areas by 

improving safety and health at their 

mines. Table VI–2 shows that there are 

22 mining communities, defined as 

counties where at least 2 percent of the 

population is working in the mining 

industry.24 Although the total 

population in this table represents only 

0.15 percent of the U.S. population, it 

represents 12.0 percent of all mine 

workers. The average per capita income 

in these communities in 2020, 

$47,977,25 was lower than the U.S. 

average, $59,510, representing 80.6 

percent of the U.S. average. However, 

each county’s average per capita income 

varies substantially, ranging from 56.4 

percent of the U.S. average to 146.8 

percent. 

This final rule is requiring that 

operators develop, implement, and 

update a written safety program for 

surface mobile equipment (excluding 

belt conveyors) at surface mines and 

surface areas of underground mines. 

The written safety program includes 

actions operators will take to identify 

hazards and risks to reduce accidents, 

injuries, and fatalities related to surface 

mobile equipment. MSHA determined 

that the final rule is consistent with the 

goals of E.O. 13985 and supports the 

advancement of equity for all workers at 

mines, including those who are 

historically underserved and 

marginalized. 

TABLE VI–1—RACIAL AND ETHNIC DISTRIBUTION OF MINERS * 

[2012] 

Number of miners 

in mining 

(except oil and gas) 

(NAICS 212) 

As a percent of total 

miners who self-identified 

in these categories 

(latest data for 2008) 

Percent of all workers 

in the United States 

for comparison 

(latest data 2012) **** 

Ethnicity: 

Hispanic/Latino ........................................................... 26,622 12.1 15.0 

Non-Hispanic or Latino ............................................... 192,839 87.9 85.0 

Total ..................................................................... 219,461 100.0 100.0 

Race: ** 

American Indian or Alaska Native *** ......................... 4,050 1.9 0.8 

Asian ........................................................................... 183 0.1 5.4 

Black or African American .......................................... 8,893 4.3 13.0 

Native Hawaiian or Other Pacific Islander ................. 634 0.3 0.2 

White ........................................................................... 194,016 93.4 80.6 

Total ..................................................................... 207,776 100.0 100.0 

* The term ‘‘miners’’ includes miners and other workers at mines such as administrative employees. 

** Does not include miners who did not self-report in one of these categories. Some of the surveyed miners may not have self-reported in one 

of these categories if they are affiliated with more than one race, or if they chose not to respond to this survey question. 

*** Includes miners who self-identified as an American Indian or Alaskan Native as a single race, not in combination with any other races. No 

other data on miners in this racial group were available from this source. In other employment statistics often reported on American Indians and 

Alaska Natives, their population is based on self-reporting as being American Indian or Alaska Native in combination with any other race, which 

has resulted in the reporting of much higher employment levels. See BLS, Monthly Labor Review, ‘‘Alternative Measurements of Indian Country: 

Understanding Their Implications for Economic, Statistical, and Policy Analysis,’’ https://www.bls.gov/opub/mlr/2021/article/alternative-measurements-of-indian-country.htm. 

**** More recent data from the 2020 Decennial Census were not available in September 2022. 

Sources: National Institute for Occupational Safety and Health (NIOSH). 2012a. National Survey of the Mining Population Mining Publication: 

Part 1: Employees, DHHS (NIOSH) Pub. No. 2012–152, June 2012; U.S. Census Bureau, 2012 American Community Survey (ACS). 


ddrumheller on DSK120RN23PROD with RULES1
87926 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

TABLE VI–2—MINING COUNTIES: COUNTIES IN THE UNITED STATES WITH RELATIVELY HIGH CONCENTRATIONS OF

MINERS * 

[At least 2 percent of the county population] 

Number County Number of miners 

(first quarter 2022) 

Population of county 

(latest data in 2021) 

Estimated 

percent of 

population 

who are 

miners 

1 .............. White Pine County, Nevada ............. 1,288 ................................................ 9,182 ................................................ 14.0 

2 .............. Pershing County, Nevada ................ 771 ................................................... 6,741 ................................................ 11.4 

3 .............. Humboldt County, Nevada ............... 1,549 ................................................ 17,648 .............................................. 8.8 

4 .............. Campbell County, Wyoming ............ 3,547 ................................................ 46,401 .............................................. 7.6 

5 .............. Winkler County, Texas ..................... 513 ................................................... 7,415 ................................................ 6.9 

6 .............. Mercer County, North Dakota .......... 555 ................................................... 8,323 ................................................ 6.7 

7 .............. Chase County, Kansas .................... 166 ................................................... 2,598 ................................................ 6.4 

8 .............. Shoshone County, Idaho ................. 723 ................................................... 13,612 .............................................. 5.3 

9 .............. Logan County, West Virginia ........... 1,643 ................................................ 31,909 .............................................. 5.1 

10 ............ Sweetwater County, Wyoming ......... 2,050 ................................................ 41,614 .............................................. 4.9 

11 ............ Glasscock County, Texas ................ 56 ..................................................... 1,149 ................................................ 4.9 

12 ............ Livingston County, Kentucky ............ 431 ................................................... 8,959 ................................................ 4.8 

13 ............ Buchanan County, Virginia .............. 946 ................................................... 19,816 .............................................. 4.8 

14 ............ McDowell County, West Virginia ...... 660 ................................................... 18,363 .............................................. 3.6 

15 ............ Big Horn County, Wyoming ............. 413 ................................................... 11,632 .............................................. 3.6 

16 ............ Sevier County, Utah ......................... 601 ................................................... 21,906 .............................................. 2.7 

17 ............ Boone County, West Virginia ........... 582 ................................................... 21,312 .............................................. 2.7 

18 ............ Moffat County, Colorado .................. 349 ................................................... 13,185 .............................................. 2.6 

19 ............ Nye County, Nevada ........................ 1,062 ................................................ 43,946 .............................................. 2.4 

20 ............ Raleigh County, West Virginia ......... 1,647 ................................................ 73,771 .............................................. 2.2 

21 ............ Wyoming County, West Virginia ...... 456 ................................................... 21,051 .............................................. 2.2 

22 ............ Elko County, Nevada ....................... 1,090 ................................................ 53,915 .............................................. 2.0 

Total ....................................................................... 20,963 .............................................. 494,448 ............................................ 4.2 

All U.S. Counties .................................................... 174,387 ............................................ 331,893,745 ..................................... ........................

Miners in Mining Counties as a Percent of All 

U.S. Miners.

12.0% ............................................... ........................................................... ........................

Population of Mine Counties as a Percent of U.S. 

Population.

........................................................... 0.15% ............................................... ........................

* The term ‘‘miners’’ includes miners and other workers at mines such as administrative employees. 

Source: Bureau of Labor Statistics (BLS), Quarterly Employment and Wages First Quarter 2022 (2022); Bureau of Economic Analysis, Personal Income by County, Metro, and Other Areas 2020 (2020); U.S. Census Bureau, ‘‘Annual Estimates of the Resident Population for Counties: 

April 1, 2020, to July 1, 2021 (CO–EST2021–POP).’’ Census.gov. Accessed DATE. Available at: https://www.census.gov/data/tables/time-series/ 

demo/popest/2020s-counties-total.html; U.S. Census Bureau, Quick Facts, available at: https://www.census.gov/quickfacts/fact/table/US/ 

PST045221 (accessed DATE). 

VII. References 

American Society of Safety Professionals 

(ASSP), Occupational Health and Safety 

Management Systems, ANSI/ASSP Z10– 

2012, (R2017). 

International Standards Organization (ISO), 

Occupational Health and Safety 

Management Systems—Requirements 

With Guidance for Use (ISO 45001:2018). 

National Mining Association, CORESafety 

and Health Management System 

U.S Department of Labor, Occupational 

Safety and Health Administration 

(OSHA), Recommended Practices for 

Safety and Health Programs (https:// 

www.osha.gov/safety-management). 

U.S. Department of Transportation, 49 CFR 

part 270—System Safety Program. 

List of Subjects 

30 CFR Parts 56 and 57 

Metal and nonmetal mining, Mine 

safety and health, Surface mining, 

Mobile equipment safety program, 

Reporting and recordkeeping 

requirements, and Underground mining. 

30 CFR Part 77 

Coal mining, Mine safety and health, 

Surface mining, Mobile equipment 

safety program, Reporting and 

recordkeeping requirements, and 

Underground mining. 

Christopher J. Williamson 

Assistant Secretary of Labor for Mine Safety 

and Health. 

For the reasons set out in the 

preamble, and under the authority of the 

Federal Mine Safety and Health Act of 

1977, as amended by the Mine 

Improvement and New Emergency 

Response Act of 2006, chapter I of title 

30 of the Code of Federal Regulations is 

amended as follows: 

SUBCHAPTER K—METAL AND NONMETAL 

MINE SAFETY AND HEALTH 

PART 56—SAFETY AND HEALTH 

STANDARDS—SURFACE METAL AND 

NONMETAL MINES 

■ 1. The authority citation for part 56 

continues to read as follows: 

Authority: 30 U.S.C. 811. 

■ 2. Add subpart T to part 56 to read as 

follows: 

Subpart T—Safety Program for Surface 

Mobile Equipment 

Sec. 

56.23000 Purpose and scope. 

56.23001 Definitions. 

56.23002 Written safety program. 

56.23003 Requirements for written safety 

program. 

56.23004 Record and inspection. 


ddrumheller on DSK120RN23PROD with RULES1
Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 87927 

§ 56.23000 Purpose and scope. 

This subpart requires operators to 

develop, implement, and update a 

written safety program for surface 

mobile equipment to reduce the number 

and rates of accidents, injuries, and 

fatalities. This subpart applies to surface 

mobile equipment at surface metal and 

nonmetal mines. The purpose of this 

safety program is to promote and 

support a positive safety culture and 

improve miners’ safety at the mine. 

§ 56.23001 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface 

metal and nonmetal mines. 

§ 56.23002 Written safety program. 

(a) Each operator shall develop and 

implement a written safety program for 

surface mobile equipment that contains 

the elements in this subpart, no later 

than July 17, 2024. 

(b) Each operator shall designate at 

least one responsible person to evaluate 

and update the written safety program, 

no later than July 17, 2024. 

§ 56.23003 Requirements for written safety 

program. 

(a) The operator shall develop and 

implement a written safety program that 

includes actions the operator will take 

to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that can enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

(b) The responsible person shall 

evaluate and update the written safety 

program at least annually, or as mining 

conditions or practices change that may 

adversely affect the health and safety of 

miners or other persons, as accidents or 

injuries occur, or as surface mobile 

equipment changes or modifications are 

made. 

(c) The operator shall solicit input 

from miners and their representatives in 

developing and updating the written 

safety program. 

§ 56.23004 Record and inspection. 

(a) The operator shall make the 

written safety program available for 

inspection by authorized representatives 

of the Secretary and provide a copy 

upon request. 

(b) The operator shall make the 

written safety program available for 

inspection by miners and their 

representatives and, at no cost, provide 

a copy upon request. 

PART 57—SAFETY AND HEALTH 

STANDARDS—UNDERGROUND 

METAL AND NONMETAL MINES 

■ 3. The authority citation for part 57 

continues to read as follows: 

Authority: 30 U.S.C. 811. 

■ 4. Add subpart U to part 57 to read as 

follows: 

Subpart U—Safety Program for 

Surface Mobile Equipment 

Sec. 

57.23000 Purpose and scope. 

57.23001 Definitions. 

57.23002 Written safety program. 

57.23003 Requirements for written safety 

program. 

57.23004 Record and inspection. 

§ 57.23000 Purpose and scope. 

This subpart requires operators to 

develop, implement, and update a 

written safety program for surface 

mobile equipment to reduce the number 

and rates of accidents, injuries, and 

fatalities. This subpart applies to surface 

mobile equipment at surface areas of 

underground metal and nonmetal 

mines. The purpose of this safety 

program is to promote and support a 

positive safety culture and improve 

miners’ safety at the mine. 

§ 57.23001 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface 

areas of underground metal and 

nonmetal mines. 

§ 57.23002 Written safety program. 

(a) Each operator shall develop and 

implement a written safety program for 

surface mobile equipment that contains 

the elements in this subpart, no later 

than July 17, 2024. 

(b) Each operator shall designate at 

least one responsible person to evaluate 

and update the written safety program, 

no later than July 17, 2024. 

§ 57.23003 Requirements for written safety 

program. 

(a) The operator shall develop and 

implement a written safety program that 

includes actions the operator will take 

to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that can enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

(b) The responsible person shall 

evaluate and update the written safety 

program at least annually, or as mining 

conditions or practices change that may 

adversely affect the health and safety of 

miners or other persons, as accidents or 

injuries occur, or as surface mobile 

equipment changes or modifications are 

made. 

(c) The operator shall solicit input 

from miners and their representatives in 

developing and updating the written 

safety program. 

§ 57.23004 Record and inspection. 

(a) The operator shall make the 

written safety program available for 

inspection by authorized representatives 

of the Secretary and provide a copy 

upon request. 

(b) The operator shall make the 

written safety program available for 

inspection by miners and their 

representatives and, at no cost, provide 

a copy upon request. 

SUBCHAPTER O—COAL MINE SAFETY 

AND HEALTH 

PART 77—MANDATORY SAFETY 

STANDARDS, SURFACE COAL MINES 

AND SURFACE WORK AREAS OF 

UNDERGROUND COAL MINES 

■ 5. The authority citation for part 77 

continues to read as follows: 

Authority: 30 U.S.C. 811. 


ddrumheller on DSK120RN23PROD with RULES1
87928 Federal Register / Vol. 88, No. 243 / Wednesday, December 20, 2023 / Rules and Regulations 

■ 6. Add subpart V to part 77 to read as 

follows: 

Subpart V—Safety Program for Surface 

Mobile Equipment 

Sec. 

77.2100 Purpose and scope. 

77.2101 Definitions. 

77.2102 Written safety program. 

77.2103 Requirements for written safety 

program. 

77.2104 Record and inspection. 

§ 77.2100 Purpose and scope. 

This subpart requires operators to 

develop, implement, and update a 

written safety program for surface 

mobile equipment to reduce the number 

and rates of accidents, injuries, and 

fatalities. This subpart applies to surface 

mobile equipment at surface coal mines 

and surface work areas of underground 

coal mines. The purpose of this safety 

program is to promote and support a 

positive safety culture and improve 

miners’ safety at the mine. 

§ 77.2101 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface coal 

mines and surface work areas of 

underground coal mines. 

§ 77.2102 Written safety program. 

(a) Each operator shall develop and 

implement a written safety program for 

surface mobile equipment that contains 

the elements in this subpart, no later 

than July 17, 2024. 

(b) Each operator shall designate at 

least one responsible person to evaluate 

and update the written safety program, 

no later than July 17, 2024. 

§ 77.2103 Requirements for written safety 

program. 

(a) The operator shall develop and 

implement a written safety program that 

includes actions the operator will take 

to: 

(1) Identify and analyze hazards and 

reduce the resulting risks related to the 

movement and the operation of surface 

mobile equipment; 

(2) Develop and maintain procedures 

and schedules for routine maintenance 

and non-routine repairs for surface 

mobile equipment; 

(3) Identify currently available and 

newly emerging feasible technologies 

that can enhance safety at the mine and 

evaluate whether to adopt them; and 

(4) Train miners and other persons at 

the mine necessary to perform work to 

identify and address or avoid hazards 

related to surface mobile equipment. 

(b) The responsible person shall 

evaluate and update the written safety 

program at least annually, or as mining 

conditions or practices change that may 

adversely affect the health and safety of 

miners or other persons, as accidents or 

injuries occur, or as surface mobile 

equipment changes or modifications are 

made. 

(c) The operator shall solicit input 

from miners and their representatives in 

developing and updating the written 

safety program. 

§ 77.2104 Record and inspection. 

(a) The operator shall make the 

written safety program available for 

inspection by authorized representatives 

of the Secretary and provide a copy 

upon request. 

(b) The operator shall make the 

written safety program available for 

inspection by miners and their 

representatives and, at no cost, provide 

a copy upon request. 

[FR Doc. 2023–27640 Filed 12–19–23; 8:45 am] 

BILLING CODE 4520–43–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Parts 3, 100, and 165 

[Docket Number USCG–2023–0927] 

RIN 1625–AA00 

Coast Guard Sector Buffalo; Sector 

Name Conforming Amendment 

AGENCY: Coast Guard, Department of 

Homeland Security. 

ACTION: Final rule. 

SUMMARY: This rule makes nonsubstantive changes to Coast Guard 

regulations in association with a change 

in the Coast Guard’s internal 

organization. The purpose of this rule is 

to reflect that U.S. Coast Guard Sector 

Buffalo has been renamed U.S. Coast 

Guard Sector Eastern Great Lakes. These 

changes will have no substantive effect 

on the regulated public. 

DATES: This rule is effective December 

20, 2023. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2023– 

0927 in the search box and click 

‘‘Search.’’ Next, in the Document Type 

column, select ‘‘Supporting & Related 

Material.’’ 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Lieutenant Commander Bo Ames, 

Ninth Coast Guard District Legal Office, 

U.S. Coast Guard; telephone 216–902– 

6010, email Bo.J.Ames@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

AOR Area of responsibility 

CFR Code of Federal Regulations 

COTP Captain of the Port 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

OCMI Officer in Charge of Marine 

Inspections 

OFCO Operating Facility Change Order 

SAR Search and rescue 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

For the last several years, the Coast 

Guard has sought to better align the 

names of its assets to correspond to the 

area of responsibility which they serve. 

Review of the missions and 

engagements within the eastern Great 

Lakes region highlighted that ‘‘Sector 

Buffalo’’ alone did not adequately 

capture the breadth and range of Coast 

Guard operations and relationships 

throughout the Eastern Great Lakes. The 

Coast Guard has approved the name 

change to U.S. Coast Guard Sector 

Eastern Great Lakes in order to 

acknowledge the long-standing 

commitment to all communities 

throughout the Eastern Great Lakes and 

to reaffirm the multi-mission support 

that the Coast Guard provides to ensure 

safety at sea and enhanced maritime 

governance. 

The geographic boundaries of Sector 

Eastern Great Lakes are not changing, 

and its office is not moving from 

Buffalo, New York. 

We did not publish a notice of 

proposed rulemaking (NPRM) before 

this final rule. The Coast Guard finds 

that this rule is exempt from notice and 

comment rulemaking requirements 

under 5 U.S.C. 553(b)(A) because the 

changes it makes are conforming 

amendments involving agency 

organization. The Coast Guard also finds 

good cause exists under 5 U.S.C. 

553(b)(B) for not publishing an NPRM 

because the changes will have no 

substantive effect on the public, and 

notice and comment are therefore 

unnecessary. 


ddrumheller on DSK120RN23PROD with RULES1