[Federal Register Volume 63, Number 134 (Tuesday, July 14, 1998)]
[Proposed Rules]
[Pages 38066-38071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18687]



[[Page 38065]]

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Part VI





Department of Labor





_______________________________________________________________________



Mine Safety and Health Administration



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30 CFR Part 75

Safety Standards for Underground Coal Mine Ventilation; Proposed Rule

Federal Register / Vol. 63, No. 134 / Tuesday, July 14, 1998 / 
Proposed Rules

[[Page 38066]]



DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AB10


Safety Standards for Underground Coal Mine Ventilation

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Proposed rule.

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SUMMARY: MSHA is proposing to amend the examination interval for 
preshift examinations of underground coal mines by requiring preshift 
examinations to be conducted at 8-hour intervals. After MSHA 
promulgated a comprehensive revision of its ventilation standards in 
March of 1996, the United States Court of Appeals for the District of 
Columbia Circuit (Court) reviewed the validity of the rule. On June 17, 
1997, the Court issued an order invalidating, on procedural grounds 
only, the provision relating to the interval for preshift examinations. 
This proposed rule would be essentially the same as the standard that 
was promulgated in 1996 and invalidated by the Court on procedural 
grounds. The proposed rule would clarify both when a preshift 
examination would be required and the length of the shift covered by 
the preshift examination.

DATES: Comments must be submitted on or before September 14, 1998. 
Submit written comments on the information collection no later than 
September 14, 1998.

ADDRESSES: Comments by electronic mail must be clearly identified as 
such and sent to this e-mail address: <a href="/cdn-cgi/l/email-protection#f99a9694949c978d8ab9948a9198d79e968f"><span class="__cf_email__" data-cfemail="583b3735353d362c2b18352b3039763f372e">[email protected]</span></a>. Comments by 
fax must be clearly identified as such and sent to: MSHA, Office of 
Standards, Regulations, and Variances, 703-235-5551. Send mail comments 
to: MSHA, Office of Standards, Regulations, and Variances, 4015 Wilson 
Boulevard, Room 631, Arlington, VA 22203-1984. Commenters are 
encouraged to submit comments to MSHA on a computer disk along with 
their original comments in hard copy. Submit written comments on the 
information collection requirement to MSHA at the address above and to 
the Office of Information and Regulatory Affairs, Office of Management 
and Budget, New Executive Office Bldg., 725 17th St. NW., Rm. 10235, 
Washington, DC 20503, Attn: Desk Officer for MSHA.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office 
of Standards, Regulations, and Variances, MSHA: 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

    This proposed rule contains an information collection which is 
subject to review by the Office of Management and Budget (OMB) under 
the Paperwork Reduction Act of 1995 (PRA 95). The title, description, 
and respondent description of the information collection are shown 
below with an estimate of the annual reporting burden. Included in the 
estimate is the time to conduct an additional preshift examination, the 
time to make a record, the time to obtain a countersignature from the 
mine foreman or equivalent mine official, and the time to file the 
form.
    With respect to the following collection of information, MSHA 
invites comments on: (1) Whether the proposed collection of information 
is necessary for proper performance of the functions of the Agency, 
including whether the information will have practical utility; (2) the 
accuracy of the estimate by MSHA of the burden of the proposed 
collection of information, including the validity of the methodology 
and assumptions used; (3) ways to enhance the quality, utility, and 
clarity of information to be collected; and (4) ways to minimize the 
burden of the collection of information on respondents, including 
through the use of automated collection techniques, when appropriate, 
and other forms of information technology.

Description

    Section 75.360(a)(1) would require that a certified person 
designated by the operator make a preshift examination within 3 hours 
preceding the beginning of any 8-hour interval during which any person 
is scheduled to work or travel underground. Presently Sec. 75.360(f) 
requires a record of the results of each preshift examination, 
including a record of hazardous conditions and their locations found by 
the examiner during each examination and of the results and locations 
of air and methane measurements. The record must also include a 
notation that the hazardous conditions found during the preshift 
examination were corrected. This record must be countersigned by the 
mine foreman or equivalent mine official by the end of the mine 
foreman's or equivalent mine official's next regularly scheduled 
working shift. The mine operator has the option of conducting a portion 
of the additional preshift examination concurrently with the on-shift 
examination. In this instance, the additional preshift examination 
essentially would consist of the examination of outby areas not covered 
by an on-shift examination such as travelways, work areas, and 
electrical installations. Because large mines generally have longer 
outby travelways and more outby work areas and electrical installations 
to be examined than small mines, the additional time to perform the 
preshift examination would take longer in large mines. MSHA estimates 
that it would take an examiner an additional hour to conduct an 
additional preshift examination in a large underground coal mine and an 
additional 45 minutes in a small underground coal mine. An examiner 
would take about 30 minutes to make the record in a large mine and 
about 15 minutes in a small mine, and the mine foreman or equivalent 
mine official would take about 10 minutes to review and countersign the 
record in a large mine and about 5 minutes in a small mine.

Description of Affected Mines

    The affected mines are underground coal mines. MSHA estimates that 
this provision annually would affect 127 underground coal mines (75 
with fewer than 20 employees and 52 with 20 or more employees).

Information Collection Burden

    Based on MSHA's traditional definition of ``small mine'' as one 
with fewer than 20 employees, the total estimated burden for all 
affected mines would be 78,001 hours, and compliance costs associated 
with such hours would be $2,182,000. Under MSHA's traditional 
definition, total burden to small mines would be 13,000 hours at a cost 
of $361,000. Specifically, small mines' burden hours and costs consist 
of: 9,000 hours related to conducting the additional preshift 
examination at a cost of $243,000; 3,000 hours related to making the 
record at a cost of $81,000; and 1,000 hours related to reviewing, 
countersigning and filing the record at a cost of $37,000. The total 
burden to large mines would be 65,001 hours at a cost of $1,821,000. 
Large mines' burden hours and costs consist of: 39,000 hours related to 
conducting the preshift examination at a cost of $1,053,000; 19,500 
hours related to making the record at a cost of $527,000; and 6,501 
hours related to reviewing, countersigning and filing the record at a 
cost of $241,000.
    Using the SBA definition, when a ``small mine'' is defined as a 
mine with 500 or fewer employees, 126 of the 127 affected mines are 
considered small. Under this definition, 76,751 of the 78,001 burden 
hours are related to small mines. The costs related to the 76,751 
burden hours are $2,147,000. Of the

[[Page 38067]]

76,751 burden hours: 47,250 hours are related to conducting the 
additional preshift examination at a cost of $1,276,000; 22,125 hours 
are related to making a record at a cost of $598,000; and 7,376 hours 
are related to reviewing and countersigning the record at a cost of 
$273,000. Burden hours to the one large mine affected would be 1,250 
hours at a cost of $35,000.
    Under Sec. 3507(o) of PRA 95, the Agency has submitted a copy of 
this proposed rule to OMB for its review and approval of the 
information collection. Interested persons are requested to send 
comments regarding these burden estimates or any other aspect of this 
information collection, including suggestions for reducing this burden 
to: (1) the Office of Information and Regulatory Affairs, OMB, Attn: 
Desk Officer for MSHA, New Executive Office Bldg., 725 17th St. NW., 
Rm. 10235, Washington, DC 20503; and (2) Patricia W. Silvey, Director, 
Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson 
Boulevard, Room 631, Arlington, VA 22203.

II. Background

    The preshift examination is a critically important, fundamental 
safety practice in the mining industry. It has historically been a 
primary means of determining the effectiveness of an underground coal 
mine ventilation system, and of detecting hazardous conditions and 
practices. The preshift examination has proven to be particularly 
effective because it provides a thorough safety check before work 
commences underground on the shift for which the examination is 
conducted. A preshift examination can detect developing hazards as well 
as existing hazards.
    The Federal Mine Safety and Health Act of 1977 (Mine Act) contains 
interim mandatory safety standards that address preshift examinations. 
Interim standard Sec. 303(d)(1) requires that preshift examinations be 
conducted ``within 3 hours immediately preceding the beginning of any 
shift * * *.'' MSHA adopted this provision as a permanent safety 
standard in its regulations for underground coal mines, promulgating it 
in 1978 as 30 CFR 75.303(a).
    Section 303(d)(2) of the Mine Act is another interim standard that 
addresses preshift examinations. It provides that no person, other than 
certified persons designated to conduct the examination, is permitted 
to enter any underground area, except during any shift, unless a 
preshift examination of such area has been made within 8 hours prior to 
the person entering the area. Under this provision, miners already 
working on a shift for which a preshift has been completed may remain 
working underground during the subsequent preshift examination being 
conducted for the oncoming shift. In 1978, MSHA adopted this provision 
as a permanent safety standard in its regulations for underground coal 
mines as 30 CFR 75.303(b).
    The general practice in the mining industry at the time the Mine 
Act was enacted was for coal miners to work in shifts of 8 hours. Thus, 
the effect of the preshift examination requirement was that examiners 
conducted preshift examinations every 8 hours. Since 1977, overlapping 
work shifts and work shifts of various lengths (novel work shifts) have 
become common, making it necessary for MSHA to address this issue in 
its 1992 revisions to the ventilation standards for underground coal 
mines.
    MSHA revised its preshift examination standards as part of a final 
rule for ventilation standards and retained the requirement that 
preshift examinations are to be conducted ``within 3 hours preceding 
the beginning of any shift.'' However, in its preamble discussion to 
the 1992 ventilation final rule (57 FR 20893), MSHA interpreted this 
language to mean that if the mine used regular shifts that were longer 
than 8 hours in length, the preshift examination would apply to the 
entire length of the shift. The 1992 revisions continued to allow work 
to proceed underground during the preshift examination for the oncoming 
shift.
    In 1994, the Agency proposed a new preshift examination rule in an 
attempt to clarify and standardize the application of certain 
provisions of the 1992 preshift examination rule. In the comments 
submitted to MSHA during the 1994 rulemaking, a segment of the mining 
community expressed concern that because of novel work schedules, 
preshift examinations were not being conducted frequently enough to 
assure safe working conditions. A second concern expressed was that 
conducting preshift examinations at intervals longer than 8 hours would 
reduce the protection afforded miners under the Mine Act. A final 
concern expressed was that MSHA introduced confusion into the preshift 
examination requirements when it interpreted the acceptable intervals 
for preshift examinations. Another segment of the public argued that by 
the language of Sec. 303(d)(2) Congress tacitly accepted shifts longer 
than 8 hours with only one preshift examination required. The same 
segment of the public argued that a practice had built up over a period 
of time allowing not only longer shifts but also ``excursions'' where 
miners work over 8 hours under specific conditions. Finally, commenters 
representing both labor and industry recommended that MSHA adopt a rule 
requiring preshift examinations for each 8 hour period that miners are 
underground.
    In response to these comments, the Agency substituted the phrase 
``8-hour interval'' for the phrase ``beginning of any shift'' when it 
promulgated the 1994 proposed rule as a final rule in 1996. The 1996 
standard thus required a preshift examination, ``* * * within 3 hours 
preceding the beginning of any 8-hour interval during which any person 
is scheduled to work or travel underground * * *''. MSHA also 
acknowledged in the preamble to the final rule (61 FR 9791) that, in 
accordance with longstanding practice, unplanned short excursions past 
the 8-hour period that occur infrequently are accepted without an 
additional preshift examination.
    In the preamble to the 1996 final rule (61 FR 9791), MSHA discussed 
its rationale for adopting an 8-hour preshift examination rule. MSHA 
stated that:

* * * MSHA agrees with commenters that evolution within the industry 
in shift scheduling has presented a number of questions and 
controversies regarding the standard which must be resolved to 
assure that proper preshift examinations are conducted within 
suitable time frames. Based on comments, the final rule adopts a 
modification to clarify and standardize the application of the 
preshift examination in recognition of the use of novel shifts while 
maintaining the protection of the existing standard. * * *
    Underground working schedules of three 8-hour shifts per day 
were virtually standard when the previous rule was implemented. 
Currently a substantial number of mining operations have work shifts 
of more than 8 hours. Other operations stagger or overlap shifts 
providing for continuous underground mining activities. Some mines 
that operate around the clock schedule persons to begin shifts at 
one- or two-hour intervals. In such cases, controversies and 
misunderstandings have developed regarding application of the 
current standard.

    In adopting an 8-hour preshift requirement, the Agency also agreed 
(61 FR 9791) with comments suggesting that ``the original legislation 
of the Mine Act envisioned that preshift examinations would be 
conducted for each 8-hour interval that persons worked underground.'' 
MSHA reached this conclusion both from the traditional practice at the 
time of the legislation and from the language of Sec. 303(d)(2) of the 
Mine Act.
    On June 17, 1997, the United States Court of Appeals for the 
District of

[[Page 38068]]

Columbia Circuit, in National Mining Association v. Mine Safety and 
Health Administration and Secretary of Labor (MSHA), 116 F.3d 520, 
(D.C. Cir. 1997) issued an order granting a petition for review on the 
National Mining Association's challenge of 30 CFR 75.360(a) relating to 
preshift examinations. The court acknowledged that the approach used by 
MSHA in adopting the 8-hour time interval for the preshift examination 
was a reasonable one,<SUP>1</SUP> but invalidated the provision on 
procedural grounds due to lack of sufficient notice to the parties in 
the rulemaking (supra 116 F.3d 520, 530). The effect of the decision 
was to reinstate the portion of the previous regulation that requires a 
preshift examination to be conducted prior to the beginning of any 
shift. MSHA published a Federal Register document on June 30, 1997 (62 
FR 35085) conforming the language of the existing standard to the 
Court's order.
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    \1\  The Court stated, ``At the least, 30 CFR 75.360(a)(1) is a 
reasonable interpretation of open-ended statutory language. * * * We 
see no reason why we should not think of 30 CFR 75.360(a)(1) as just 
such an `improved mandatory safety standard[]' issued in light of 
changed circumstances in the mining industry.'' (116 F.3d 520, 530)
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    MSHA continues to believe that it is necessary to address the 
issues surrounding the preshift examination interval. The standard must 
provide for sufficient protection, be clear in its recommendations, and 
be properly implemented to ensure safe working conditions in 
underground coal mines. Accordingly, MSHA encourages all parties to 
fully express their viewpoints during this rulemaking to assist the 
Agency in promulgating a final rule that most appropriately addresses 
the safety of our nation's underground coal miners.

III. Discussion

Section 75.360 Preshift Examination at Fixed Intervals

    Existing Sec. 75.360(a)(1) of the MSHA ventilation standards 
provides

    Except as provided in paragraph (a)(2) of this section, a 
certified person designated by the operator shall make a preshift 
examination within 3 hours preceding the beginning of any shift 
during which any person is scheduled to work or travel underground. 
No person other than certified examiners may enter or remain in any 
underground area unless a preshift examination has been completed 
for the shift.

    Proposed paragraph (a)(1) would modify the existing language of 
Sec. 75.360(a)(1) to require preshift examinations at fixed 8-hour 
intervals. It would replace the word ``shift'' with the phrase ``8-hour 
interval''. In addition, the proposed rule would add the sentence, 
``The operator shall establish the 8-hour intervals of time subject to 
the required preshift examinations.''
    The Agency believes that, considering the speed at which 
underground conditions can change, a reasonable period must be 
identified after which another examination is necessary. For example, 
methane, an explosive gas naturally occurring in coal mines, commonly 
builds up over time, especially in newly mined areas. Methane may also 
accumulate in other areas, such as where water accumulation interferes 
with mine ventilation. A preshift examination should result in the 
detection of this explosive gas and the timely correction of the 
condition before it reaches a hazardous level. Also, the roof and ribs 
tend to deteriorate over time in outby entries used as travelways and 
on the sections of a mine where miners are assigned to work. Roof 
pressures and subsequent falls can damage ventilation controls, 
resulting in hazardous conditions. Equipment damaged by a roof fall, 
including belt haulage systems or trolley wire systems, can lead to 
mine fires or explosions. A preshift examination provides a vehicle to 
detect these developing hazards.
    MSHA has reviewed the history of fatalities that have occurred at 
underground coal mines since 1990 to determine if any of the fatalities 
occurred more than 8 hours after the start of the shift, and therefore 
may have been prevented had the proposed rule been in place. MSHA has 
placed in the rulemaking record 32 fatal accident reports of MSHA 
investigations conducted since 1990 in which the accident was 
identified as occurring more than 8 hours into the shift. At least six 
of the reports, representing seven fatalities, address instances where 
an additional preshift examination might have identified the hazards 
that resulted in the fatalities and allowed an opportunity for 
corrective action.<SUP>2</SUP> This is approximately 3 percent of the 
total number of fatalities which occurred at underground coal mines 
during this time period.
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    \2\ The accidents are: Linda Enterprise, Inc., #31-A mine, March 
23, 1990, 1 fatality; Waco Limited Partnership No.1, No. 2 mine, 
December 18, 1995, 1 fatality; Miller Branch Enterprises, Inc., No. 
1 mine, 1 fatality; MAG Inc., Alloy Deep Mine #2, October 2, 1993, 1 
fatality; M&D Coal Co., Inc., No. 3 mine, August 15, 1996, 1 
fatality; and Day Branch Coal Co., Inc., No. 9 mine, May 11, 1994, 2 
fatalities.
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    In reviewing these accident reports, MSHA recognizes the difficulty 
in determining whether an additional preshift examination would have 
prevented a specific fatality from occurring, particularly since prior 
examinations had in some cases failed to identify the hazardous 
conditions or practices. However, MSHA does not concede that subsequent 
examinations will necessarily fail in their purpose simply because one 
or more previous examinations may have been inadequate. A preshift 
examination conducted at 8-hour intervals would provide an opportunity 
for the examiner to identify hazardous conditions or practices that may 
have been overlooked in an earlier examination. It should also be noted 
that the conditions in a mine may have further deteriorated after 8 
hours into the shift, and that the same examiner or a different 
examiner conducting the additional preshift examination might have 
identified the hazard and caused appropriate actions to be taken to 
correct the condition and protect the safety of the miners.
    It is not the intent of the Agency that the preshift examination be 
a continuous examination without a beginning or an end. Once a preshift 
examination has been conducted, an additional preshift examination 
would not be necessary during the 8-hour interval covered by the 
preshift examination simply because persons start to work after the 
beginning of the normal shift start time. Under the proposed rule, 
persons could enter or leave the mine, regardless of their shift 
schedule, during any established 8-hour period for which a preshift 
examination has been conducted. However, another preshift examination 
must be completed prior to the beginning of the next 8-hour interval if 
any persons, other than examiners, remain in the mine during the next 
8-hour interval or are scheduled to enter the mine during the oncoming 
interval. For example, if the established time interval for the 8-hour 
preshift examination covers the period from 8:00 a.m. to 4:00 p.m., no 
one except mine examiners may enter the mine or remain underground 
after 4:00 p.m. unless a preshift examination has been conducted for 
the 8-hour interval beginning at 4:00 p.m. As with the existing 
standard, no person other than examiners may enter any underground area 
that is subject to a preshift examination prior to the completion of 
the preshift examination for that area. Also, supplemental examinations 
continue to be required under Sec. 75.361 before anyone enters areas of 
the mine that had not had a preshift examination.
    The proposal would require one preshift examination at mines that 
operate with only one 8-hour shift per day. If the mine uses regular 
shifts that

[[Page 38069]]

are longer than 8 hours in length, the preshift examination would cover 
an 8-hour interval. The proposal would require three preshift 
examinations where persons are underground for more than 16 hours per 
day. For example, at a mine operating two 10-hour shifts per day, the 
proposed rule would require three examinations per day. As with the 
existing standard, the proposed rule would not require examinations for 
designated 8-hour periods when no one enters the mine. Also consistent 
with the existing standard, no one, except other designated preshift 
examiners, may accompany a preshift examiner during the examination.
    MSHA recognizes that the proposed rule may cause some mine 
operators to perform additional examinations that are not currently 
required. For example, some mines operate single or multiple extended 
shifts of up to 14 hours each. Mines that are not currently conducting 
preshift examinations at 8-hour intervals during extended shifts would 
be impacted by the proposed rule. The proposed rule would require 
additional preshift examinations at these mines. During the 1996 MSHA 
ventilation rulemaking and subsequent litigation, a segment of the 
mining community expressed the view that extended and novel work shifts 
are being used more frequently by mine operators and that the time 
interval for preshift examinations should not be limited to 8 hours. 
The Agency solicits comments on the benefits and hazards associated 
with an alternative approach to preshift examinations that would permit 
an 8\1/2\, 9, or up to a 10-hour interval for preshift examinations. 
The Agency specifically solicits comments on any benefits and hazards 
that may be associated with this alternative approach.
    Earlier comments suggested that the longstanding MSHA practice of 
accepting certain excursions beyond the 8-hour preshift examination 
time interval should be continued. MSHA has permitted excursions in the 
past when miners are required to stay beyond an 8-hour shift to catch 
up on production, perform mechanical repairs, install roof support, or 
as a result of a mantrip delay. The Agency solicits comments on: 
whether any excursions should be permitted beyond 8 hours without an 
additional examination; the maximum length of any such excursion; and 
the safety impact of such an excursion.
    A commenter has stated that requiring preshift examinations every 8 
hours creates overlaps and confusion with State laws, specifically the 
laws of West Virginia. While MSHA is not barred from promulgating 
otherwise appropriate safety and health standards because they may 
result in additional responsibilities for operators, neither does the 
Agency desire to impose requirements that are confusing or unduly 
burdensome.
    A commenter in the 1996 ventilation rulemaking also suggested that 
the regulation should stipulate specific times for examinations, such 
as 12:00 midnight, 8:00 a.m., and 4:00 p.m. as the beginning of the 8-
hour intervals for which preshift examinations would be required. MSHA 
believes there is no safety or health benefit to be gained through 
prohibiting operators from adopting other 8-hour intervals, e.g., 10:00 
p.m., 6:00 a.m., and 2:00 p.m., to accommodate their individual 
operations and the proposed standard would therefore allow operators 
the flexibility to establish their own shift schedules. For example, an 
operator may elect a starting time of 11:00 a.m. for a weekend project, 
provided the preshift examination is conducted within the 3 hours prior 
to the beginning of the shift.
    As proposed, the preshift examination would be conducted within 3 
hours preceding the beginning of any 8-hour interval. For accuracy, the 
title of Sec. 75.360 would be changed from ``Preshift examination'' to 
``Preshift examination at fixed intervals.'' The text of the proposed 
standard and the preamble discussion of the standard would continue to 
refer to the examination as the ``preshift examination.'' Because of 
the history of the term and the widespread understanding in the 
industry of the safety checks required by a preshift examination, MSHA 
is proposing to continue the use of the term ``preshift examination'' 
in the body of the standard and to continue to refer to the examination 
as the preshift examination.

IV. Executive Order 12866 and Regulatory Flexibility Act

    Executive Order 12866 requires that agencies assess both the costs 
and benefits of proposed regulations. MSHA has determined that this 
proposed rule does not meet the criteria of a significant regulatory 
action and, therefore, has not prepared a separate analysis of costs 
and benefits. All of the compliance costs of this proposed rule are 
paperwork related costs. Thus, the derivation of the compliance costs 
that are summarized in this document are contained in the paperwork 
package that was submitted to the Office of Management and Budget. 
Copies of the paperwork package are available upon request from MSHA, 
Office of Standards, Regulations, and Variances (703-235-1910).

Benefits

    A timely preshift examination in underground coal mines is a 
primary method of assuring safety to miners. Coal miners rely on the 
preshift examination to provide protection and often take it for 
granted that an adequate examination has been conducted.
    There is a potential for multiple fatalities in an underground coal 
mine when explosive quantities of methane exist or when a roof 
deteriorates and falls. It is extremely difficult to specifically 
quantify safety benefits related to a particular safety factor such as 
a preshift examination. Due to the hazardous environment that miners 
work in, an unsafe condition or work practice could jeopardize the 
well-being of all miners underground.
    As discussed earlier, MSHA has identified seven fatalities, 
associated with six mining accidents that have occurred since 1990, 
which could potentially have been prevented if the requirements of the 
proposed rule were followed. This is approximately 3 percent of the 
total number of fatalities which occurred at underground coal mines 
during this time period.
    During this same period of time there were 59,000 injuries for all 
underground coal mines. Although the reports of the accidents do not 
permit us to make a precise analysis of the causes of all the injuries, 
if we were to extrapolate using the same 3 percent that we used for 
fatalities the Agency predicts that 1,770 injuries might have been 
prevented. MSHA believes that if a preshift examination had been 
conducted at the intervals that would be established by the proposed 
rule, it is reasonable to expect that the examiners would have 
identified at least some of the hazardous conditions or practices 
resulting in the injuries and fatalities. MSHA realizes that in some 
cases this assumes that the additional preshift examinations would have 
identified hazardous conditions or practices that earlier examinations 
failed to recognize. However, an additional examination would afford 
the mine operator with another opportunity to identify hazards. MSHA 
believes that this position is reasonable and that subsequent 
examinations could discover hazardous conditions or practices, even 
though earlier examinations may have been inadequate. Furthermore, the 
requirement that a preshift examination be conducted during every 8-
hour interval is not unreasonable in light of the fact that within such 
a time period it is possible that conditions in a mine

[[Page 38070]]

can deteriorate. It was in this spirit that Congress originally enacted 
the interim preshift examination standards which envisioned such 
examinations occurring for each 8-hour shift.
    Therefore, MSHA has found it prudent to take a conservative 
approach and propose an 8-hour interval for preshift examinations to 
provide adequate protection for miners. This proposed rule should 
decrease the occurrence of fatalities, injuries, and accidents in 
underground coal mines.

Compliance Costs

    MSHA estimates that approximately 127 underground coal mine 
operators would need to conduct an additional preshift examination. 
Based on a small mine definition of fewer than 20 employees, about 75 
of the mines are small mines and 52 are large mines. The mine operator 
has the option of conducting a portion of the additional preshift 
examination concurrently with the on-shift examination. Therefore, the 
compliance costs of the additional preshift examination essentially 
consist of the cost of the examination of outby areas not covered by an 
on-shift examination, such as travelways, work areas, and electrical 
installations.
    The proposed rule is estimated to cost about $2,182,000 per year, 
of which small mine operators (those with fewer than 20 employees) 
would incur about $361,000 per year and large mine operators would 
incur $1,821,000 per year.

V. Regulatory Flexibility Act (RFA) and Small Business Regulatory 
Enforcement Fairness Act (SBREFA)

    The RFA requires regulatory agencies to consider a rule's impact on 
small entities. Under the SBREFA amendments to the RFA, MSHA must use 
the Small Business Administration (SBA) definition for a small mine of 
500 or fewer employees or, after consultation with the SBA Office of 
Advocacy, establish an alternative definition for the mining industry 
by publishing that definition in the Federal Register for notice and 
comment. MSHA traditionally has considered small mines to be those with 
fewer than 20 employees. For the purposes of the RFA and this 
certification, MSHA has analyzed the impact of the proposed rule on all 
affected mines with 500 or fewer employees, as well as on those with 
fewer than 20 employees.
    The Agency has provided a copy of this proposed rule and regulatory 
flexibility certification statement to the SBA Office of Advocacy. In 
addition, MSHA will mail a copy of the proposed rule, including the 
preamble and regulatory flexibility certification statement, to all 
mine operators and miners' representatives.

Regulatory Flexibility Certification

    In accordance with section 605 of the RFA, MSHA certifies that this 
proposed rule would not have a significant economic impact on a 
substantial number of small entities. No small governmental 
jurisdictions or nonprofit organizations are affected.
    Under the SBREFA amendments to the RFA, MSHA must include a factual 
basis in the proposed rule for this certification. The Agency also must 
publish the regulatory flexibility certification in the Federal 
Register, along with its factual basis, followed by an opportunity for 
comment by the public.

Factual Basis for Certification

    The underlying data in Table I shows that the compliance costs of 
this proposed rule does not exceed 1 percent of the estimated revenues 
of the underground coal mines affected by this proposed rule. When 
small underground coal mines affected by this proposed rule are defined 
as those that employ fewer than 20 employees, then small mines account 
for about $361,000 of the total compliance costs and estimated revenues 
of such mines are approximately $50.2 million. Thus compliance costs as 
a percent of estimated revenues for the affected mines are 0.72 
percent. When small underground coal mines affected by this proposed 
rule are defined as those that employ 500 or fewer employees, then 
small mines account for $2,147,000 of the total compliance costs and 
estimated revenues of such mines are approximately $641,237,000. In 
this case compliance costs as a percentage of estimated revenues for 
the affected mines are 0.33 percent.

    Table I.--Costs and Revenues For Affected Underground Coal Mines    
------------------------------------------------------------------------
                                                 Estimated              
                                     Proposed   revenues of    Costs as 
       Section 75.360(a)(1)         rule costs    affected    percent of
                                     (thous.)      mines       revenues 
                                                  (thous.)              
------------------------------------------------------------------------
Small Mines (<20)................         $361      $50,200         0.72
Small Mines (500)................       $2,147     $641,237         0.33
------------------------------------------------------------------------

    This proposed rule would not have a significant impact on a 
substantial number of small entities that are affected by this rule.

VI. Unfunded Mandates and Executive Order 12875

    For purposes of the Unfunded Mandates Reform Act of 1995, as well 
as E.O. 12875, this proposed rule does not include any Federal mandate 
that may result in increased expenditures by State, local, and tribal 
governments, or increased expenditures by the private sector of more 
than $100 million.

VII. Executive Order 13045

    In accordance with Executive Order 13045, MSHA has evaluated the 
environmental health or safety effect of the proposed rule on children. 
The Agency has determined that the proposal will have no effect on 
children.

List of Subjects in 30 CFR Part 75

    Mine safety and health, Reporting and recordkeeping requirements, 
Underground coal mining, Ventilation.

    Dated: July 8, 1998.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.
    Accordingly, it is proposed to amend part 75, subchapter O, chapter 
I, title 30 of the Code of Federal Regulations as follows:

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

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

    Authority: 30 U.S.C. 811.


[[Page 38071]]


    2. In subpart D of Part 75, in Sec. 75.360, revise the section 
heading and paragraph (a)(1) to read as follows:


Sec. 75.360  Preshift examination at fixed intervals.

    (a)(1) Except as provided in paragraph (a)(2) of this section, a 
certified person designated by the operator shall make a preshift 
examination within 3 hours preceding the beginning of any 8-hour 
interval during which any person is scheduled to work or travel 
underground. No person other than certified examiners may enter or 
remain in any underground area unless a preshift examination has been 
completed for the established 8-hour interval. The operator shall 
establish 8-hour intervals of time subject to the required preshift 
examinations.
* * * * *
[FR Doc. 98-18687 Filed 7-13-98; 8:45 am]
BILLING CODE 4510-43-P


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