[Federal Register Volume 86, Number 172 (Thursday, September 9, 2021)]
[Proposed Rules]
[Pages 50496-50513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-18791]


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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, Labor.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to require that mine operators employing six or more miners develop and 
implement a written safety program for mobile and powered haulage 
equipment (excluding belt conveyors) at surface mines and surface areas 
of underground mines. The written safety program would include actions 
mine operators would take to identify hazards and risks to reduce 
accidents, injuries, and fatalities related to surface mobile 
equipment. The proposal would offer mine operators flexibility to 
devise a safety program that is appropriate for their specific mining 
conditions and operations.

DATES: Comments must be received or postmarked by midnight Eastern Time 
on November 8, 2021.

ADDRESSES: Submit comments and informational materials, identified by 
RIN 1219-AB91 or Docket No. MSHA-2018-0016 by one of the following 
methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#ceb4b4839d868fe3ada1a3a3aba0babd8eaaa1a2e0a9a1b8"><span class="__cf_email__" data-cfemail="215b5b6c7269600c424e4c4c444f555261454e4d0f464e57">[email protected]</span></a>.
    <bullet> Mail: MSHA, Office of Standards, Regulations, and 
Variances, 201 12th Street South, Suite 4E401, Arlington, Virginia 
22202-5452.
    <bullet> Hand Delivery or Courier: 201 12th Street South, Suite 
4E401, Arlington, Virginia, between 9:00 a.m. and 5:00 p.m. Monday 
through Friday, except federal holidays. Before visiting MSHA in 
person, call 202-693-9455 to make an appointment, in keeping with the 
Department of Labor's COVID-19 policy. Special health precautions may 
be required.
    <bullet> Fax: 202-693-9441.
    Instructions: All submissions must include RIN 1219-AB91 or Docket 
No. MSHA 2018-0016. Do not include personal or proprietary information 
that you do not wish to disclose publicly. If a commenter marks parts 
of a comment as ``business confidential'' information, MSHA will not 
post those parts of the comment. Otherwise, MSHA will post all comments 
without change, including personal information.
    Docket: For access to the docket to read comments and background 
documents, go to http://www.regulations.gov. The docket can also be 
reviewed in person at MSHA, Office of Standards, Regulations, and 
Variances, 201 12th Street South, Arlington, Virginia, between 9:00 
a.m. and 5:00 p.m. Monday through Friday, except federal holidays. 
Before visiting MSHA in person, call 202-693-9455 to make an 
appointment, in keeping with the Department of Labor's COVID-19 policy. 
Special health precautions may be required.
    Email Notification: To subscribe to receive an email notification 
when MSHA publishes rulemaking documents in the Federal Register, go to 
https://public.govdelivery.com/accounts/USDOL/subscriber/new.
    Information Collection Requirements: Comments concerning the 
information collection requirements of this proposal

[[Page 50497]]

must be clearly identified with RIN 1219-AB91 or Docket No. MSHA 2018-
0016, and be sent to both MSHA and the Office of Management and Budget 
(OMB).
    <bullet> Comments to MSHA may be sent by one of the methods in the 
ADDRESSES section above.
    <bullet> Comments to OMB may be sent by mail to the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
New Executive Office Building, 725 17th Street NW, Washington, DC 
20503, Attn: Desk Officer for DOL MSHA.

FOR FURTHER INFORMATION CONTACT: Jessica Senk, Director, Office of 
Standards, Regulations and Variances, MSHA at <a href="/cdn-cgi/l/email-protection#194a7c777237537c6a6a707a78597d7675377e766f"><span class="__cf_email__" data-cfemail="085b6d666326426d7b7b616b69486c6764266f677e">[email protected]</span></a> 
(email), 202-693-9440 (voice) or 202-693-9441 (facsimile).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background Information
    A. Request for Information (RFI)
    B. Comments Received on the RFI
    C. Workplace Safety Programs
    D. Written Safety Program for Surface Mobile Equipment
II. Section-by-Section Analysis
    A. Sections 56.23000, 57.23000, and 77.2100--Purpose and Scope
    B. Sections 56.23001, 57.23001, and 77.2101--Definitions
    C. Sections 56.23002, 57.23002, and 77.2102--Written Safety 
Program
    D. Sections 56.23003, 57.23003, and 77.2103--Requirements for 
Written Safety Program
    E. Sections 56.23004, 57.23004, and 77.2104--Record and 
Inspection
    F. Request for Comments
III. Executive Order 12866: Regulatory Planning and Review; and 
Executive Order 13563: Improving Regulation and Regulatory Review
    A. Regulated Industry Description
    B. Benefits
    C. Compliance Costs
    D. Net Benefits
    E. Request for Comments
IV. Feasibility
    A. Technological Feasibility
    B. Economic Feasibility
V. Regulatory Flexibility Analysis (RFA) and Small Business 
Regulatory Enforcement Fairness Act (SBREFA) and Executive Order 
13272: Proper Consideration of Small Entities in Agency Rulemaking
    A. Definition of a Small Mine
    B. Factual Basis for Certification
VI. Paperwork Reduction Act of 1995
    A. Summary
    B. Procedural Details
VII. Regulatory Alternative
VIII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act of 1995
    B. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    C. Executive Order 12630: Government Actions and Interference 
with Constitutionally Protected Property Rights
    D. Executive Order 12988: Civil Justice Reform
    E. Executive Order 13045: Protection of Children from 
Environmental Health Risks and Safety Risks
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination with 
Indian Tribal Governments
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
IX. References

I. Background Information

    At surface mines and at surface areas of underground mines, a wide 
range of mobile and powered haulage equipment is in use. Examples of 
such equipment are bulldozers, front-end loaders, skid steers, and haul 
trucks. While accidents at mines are declining, accidents involving 
mobile and powered haulage equipment are still a leading cause of 
fatalities in mining. Of all 739 fatalities that occurred at U.S. mines 
between 2003 and 2018, 109 were caused by hazards related to working 
near or operating mobile and powered haulage equipment at mines with 
six or more miners. To reduce the number of injuries and fatalities 
involving mobile and powered haulage equipment, the Mine Safety and 
Health Administration (MSHA) has launched several actions, including 
providing technical assistance, developing training materials, and 
gathering information from the public and mining stakeholders. MSHA is 
now proposing a rule to improve safety in the use of surface mobile 
equipment, defined as mobile and powered haulage equipment (except belt 
conveyors), at surface mines and surface areas of underground mines. 
This proposal is based on the information gathered from many 
stakeholders; the details are presented in the section-by-section 
analysis portion of this preamble.

A. Request for Information (RFI)

    On June 26, 2018, MSHA published a request for information (RFI), 
Safety Improvement Technologies for Mobile Equipment at Surface Mines, 
and for Belt Conveyors at Surface and Underground Mines (83 FR 29716), 
that 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 also requested information from the mining community on 
what types of engineering controls are available, how to implement such 
engineering controls, and how these controls could be used in mobile 
equipment and belt conveyors to reduce accidents, fatalities, and 
injuries. MSHA sought information and data on: (1) Seat belt interlock 
systems or other controls that affect equipment operation when the seat 
belt is not properly fastened; (2) collision warning systems and 
collision avoidance systems that may reduce collisions or prevent 
accidents by decreasing blind areas that are invisible to equipment 
operators due to direct line of sight or other reasons; (3) 
technologies that would provide equipment operators better information 
regarding their location in relation to the edge of highwalls or dump 
points; (4) use of autonomous mobile equipment at surface mines; (5) 
technologies that provide additional protections from accidents related 
to working near or around belt conveyors; and (6) training and 
technical assistance that improve equipment operators' awareness of 
hazards at the mine site, and assure miners lock and tag conveyor belts 
before performing maintenance work.
    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.

B. Comments Received on the RFI

    All commenters supported MSHA's focused efforts to improve miner 
safety related to the operation of surface mobile equipment. Some 
emphasized the use of technologies to achieve this goal, while others 
argued for the importance of non-technological interventions such as 
safety programs to bring behavioral and cultural changes. Commenters 
also differed in how technological and non-technological interventions 
should be implemented.
    Several commenters supported incorporating new technologies into 
the workplace to reduce accidents, injuries, and fatalities. One 
commenter noted that the use of current automobile technologies such as 
collision avoidance systems, collision warning systems, seat belt 
warning signals, and other engineering controls could add much-needed 
improvement in preventing collision accidents or mitigating their 
impacts.
    A majority of commenters noted, however, that the application of 
engineering controls or technologies needs further review by MSHA and 
the National Institute for Occupational

[[Page 50498]]

Safety and Health (NIOSH) before any regulatory changes are made. One 
commenter noted that because the issues MSHA raised vary at different 
mines and with different types of equipment and operations, it is 
critical to understand how specific hazards at a mine would be 
addressed through new technologies. Other commenters asserted that the 
best outcomes occur when mine operators and their employees partner 
with other stakeholders such as NIOSH and equipment manufacturers, to 
introduce innovative solutions into the workplace through the use of 
new technologies. One commenter noted that to comprehensively address 
solutions, MSHA needs to acknowledge certain factors that can limit 
mine operators' ability to introduce new safety technology effectively. 
These obstacles include mistrust of technology by the workforce, 
inadequate testing of technology before full implementation, and 
challenges in communicating to miners why technological improvements in 
equipment operation create a safer work environment. A trade 
association recommended that MSHA proceed with caution to avoid 
excessive costs and unintended consequences that do not address the 
root causes of accidents.
    On the other hand, a number of commenters noted that non-
technological interventions such as safety programs are as important, 
or even more important, than technology in improving safety in the use 
of surface mobile equipment and reducing accidents, injuries, and 
fatalities. A mining coalition commented that because human factors are 
a major contributor to accidents, properly enforced comprehensive 
safety programs are a significant component of the solution, with or 
without new technology. This mining coalition continued to note that 
mining's major safety advances would ``come from consistently improving 
behavior and culture across the industry.'' The mining coalition also 
stated on the basis of its members' experiences that safety does best 
when mine operators develop and implement their own comprehensive 
safety programs. Another commenter noted that effective safety programs 
work because they create incentives for compliance and disincentives 
for violations.
    In addition, one 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. For these mine operators, noted 
the commenter, preventing harm to their miners is more than just 
compliance with safety requirements; it reflects a culture of safety. 
Indeed, according to the commenter, this culture of safety derives from 
a commitment to a systematic, effective, and comprehensive management 
of safety at mines with the full participation of the miners.
    MSHA has been most persuaded by comments on the use of safety 
programs. The Agency agrees with these commenters that mine operators 
should be allowed to tailor safety programs specifically to their 
mining conditions and operations, so that operators could: (1) 
Systematically and continuously evaluate their mine operations to 
identify hazards and (2) determine how to eliminate or mitigate risks 
and hazards related to operating and working near surface mobile 
equipment, which includes mobile and powered haulage equipment (except 
belt conveyors). The Agency further agrees that such a flexible 
approach to reducing hazards and risks (e.g., not imposing universal 
mandates) would be more effective since mine operators would be able to 
develop and implement safety programs that work for their operation, 
mining conditions, and miners. Taking into account all comments and 
information received, this proposal would require written safety 
programs for surface mobile equipment at surface mines and surface 
areas of underground mines with six or more miners.
    In the 2018 RFI, MSHA sought information on safety issues related 
to belt conveyors. After reviewing the comments, the Agency has 
concluded, at this time, that the safety issues surrounding the 
operation of belt conveyors can be better addressed through best 
practices and training than through rulemaking. No belt conveyor is 
covered under this proposed rule.
    MSHA solicits comments regarding the Agency's decision to exclude 
belt conveyors from the proposed rule. Please provide the rationale and 
any supporting documentation in your comment.

C. Workplace Safety Programs

    Many resources are available for employers to provide a safe 
workplace. MSHA has reviewed several types of organizations that 
provide guidance on safety programs: (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/).
    Generally, safety programs recommended by these organizations share 
the following principles. First, safety programs should address safety 
proactively rather than reactively. In other words, addressing problems 
only after an employee is injured is less effective than finding and 
fixing hazards before injuries and fatalities occur. Second, safety 
programs should take into account work processes and conditions 
specific to the workplaces and should make sense for the organizations 
that implement them. Third, safety programs should not be static and 
should be continually improving, based on monitoring and evaluating 
work performance and safety outcomes, scanning and assessing risks of 
mining conditions and operations, and evaluating use of emerging 
technologies.
    In addition, most of the safety programs include a set of 
interacting elements that are designed to establish and achieve similar 
safety goals. Specifically, a safety program includes a common set of 
elements that focus on identifying hazards in the workplace and 
developing a plan for preventing and controlling those hazards. 
Examples of common elements include management commitment; worker 
involvement; hazard identification, prevention, and remediation, 
including workplace examinations for violations of mandatory safety and 
health standards; worker training and education; and program 
evaluation.
    Based on its review of best practices and guidance on safety 
programs, together with comments gathered from a variety of 
stakeholders in mining communities, MSHA has concluded that developing 
and implementing a written safety program for surface mobile equipment 
at mines would contribute to advancing miners' safety and health. For 
this reason, MSHA is now issuing a proposal that would require mine 
operators with six or more miners to develop, implement, and update a 
written safety program for surface mobile equipment.

[[Page 50499]]

D. Written Safety Program for Surface Mobile Equipment

    This proposal would address hazards related to mobile equipment and 
powered haulage equipment (except belt conveyors) used at surface mines 
and in surface areas of underground mines. MSHA believes that mine 
safety would be substantially improved when mine operators implement 
written safety programs that promote a culture of safety, take a 
holistic approach to safety and health, and encourage technological 
solutions to prevent or mitigate hazards. The Agency also believes that 
miners' safety would be improved if mine operators: (1) Continually 
evaluate their operations to identify hazards resulting from operating 
and working near surface mobile equipment and (2) identify controls 
that prevent or mitigate these hazards, including the use of technology 
to reduce accidents, injuries, and fatalities.
    The proposed written safety program would be required only for 
operators employing six or more miners. Over the years, MSHA has 
observed that mine operators with five or fewer miners generally have a 
limited inventory of surface mobile equipment. These operations also 
tend to have less complex mining operations, with fewer mobile 
equipment hazards that would necessitate a written safety program. 
Although these mine operators are not required to have a written safety 
program, MSHA encourages mine operators with five or fewer miners to 
assure that surface mobile equipment hazards at their mines would be 
mitigated to the greatest extent possible. For mines employing five or 
fewer miners, MSHA's Educational Field and Small Mine Services (EFSMS) 
would provide assistance in the development and improvement of safety 
programs for mine operators and contractors in the mining community. 
Also, MSHA's EFSMS staff would encourage state grantees to focus on 
providing training to address hazards and risks involving surface 
mobile equipment in small mining operations.
    The 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 specific 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 manage safety risks associated with their 
surface mobile equipment appropriately.
    A written safety program is an important part of a mine operator's 
overall safety program to prevent workplace injuries, illnesses, or 
deaths. A written safety program, as opposed to an oral one, is one 
that's more likely to be followed by mine operators and miners. The 
specific contents of an operator's written safety program do not need 
MSHA approval, but a written program serves other purposes beyond 
simply meeting regulatory requirements because it: (1) Reinforces that 
the mine operator/management is serious about safety; (2) provides 
benchmarks against which safety performance can be measured and 
verified; and (3) prevents confusion about authority, responsibility, 
and accountability. Furthermore, a written safety program which is 
reviewed regularly can clarify policy, create consistency and 
continuity, provide a basis for making decisions relative to when 
changes are needed, and serve as a checkpoint whenever there is a 
question regarding the use of surface mobile equipment at surface mines 
and surface areas of underground mines.
    As is MSHA's practice, the Agency would provide mine operators with 
guidance needed to develop, implement, evaluate, and update their 
safety programs, if requested. MSHA would also work with mining 
industry stakeholders as it develops materials and templates to assist 
mine operators.

II. Section-by-Section Analysis

    This proposal would require mine operators to develop a written 
safety program in which they would systematically identify and evaluate 
risks of surface mobile equipment used at their mines to eliminate or 
mitigate safety hazards and reduce accidents, injuries, and fatalities. 
The safety program should be designed so that it promotes and supports 
a safety culture at the mine. Since each mine has a unique environment, 
MSHA is proposing to allow each mine operator the flexibility to 
develop a safety program that addresses its specific types of surface 
mobile equipment and mining conditions and operations.

A. Sections 56.23000, 57.23000 and 77.2100--Scope and Purpose

    Proposed Sec. Sec.  56.23000, 57.23000 and 77.2100 address the 
purpose and scope of the proposal. The purpose of the safety program is 
to reduce accidents, injuries, and fatalities related to the operation 
of surface mobile equipment. Operators covered by this part would be 
required to develop, implement, and update a written safety program for 
mobile equipment used at surface mines and at surface areas of 
underground mines.
    MSHA recognizes that mine operations are diverse, with varying 
mining methods, mining conditions and operations, types of mobile 
equipment, and mined commodities. Under this proposal, mine operators 
would have the flexibility to develop effective safety programs that 
best meet the unique conditions of their mines to prevent accidents, 
injuries, and fatalities involving surface mobile equipment. Indeed, 
mine operators with existing effective safety programs would likely 
need to make few adjustments, if any, to their existing programs and 
practices to meet the requirements of this proposal.
    Proposed Sec. Sec.  56.23000, 57.23000 and 77.2100 would require 
mine operators employing six or more miners to develop a written safety 
program. Based on Agency experience and data, a mine operator with five 
or fewer miners would generally have a limited inventory of surface 
mobile equipment. These operators would also have less complex mining 
operations, with fewer mobile equipment hazards that would necessitate 
a written safety program. Although these mine operators are not 
required to have a written safety program, MSHA would encourage 
operators with five or fewer miners to have safety programs. As stated 
earlier, for mines with five or fewer miners, MSHA's EFSMS would 
provide compliance assistance to operators in developing a safety 
program, such as making examples of model safety programs available at 
the Agency's website. Also, MSHA would encourage its state grantees to 
focus on providing training to address hazards and risks involving 
surface mobile equipment in small mining operations.
    MSHA believes that these small mine operators would be able to 
accomplish the goals of this proposal through existing requirements 
(for example, 30 CFR parts 56, 57, and 77) relating to the use of 
written hazard warnings, oral instruction, signs and posted warnings, 
walkaround training, or other appropriate means that alert persons to 
site-specific hazards at the mine. However, to assure that surface 
mobile equipment hazards at these mines are mitigated to the greatest 
extent possible, MSHA intends to use its EFSMS resources as stated 
earlier.
    The proposal is premised on MSHA's experience and data that, as a 
mine operation grows, the number and size of surface mobile equipment 
used at the mine usually increase, as do the complexity of the hazards 
that occur at

[[Page 50500]]

the mine. MSHA believes that mines employing six or more miners often 
have more complex mining operations and more surface mobile equipment.
    MSHA estimates that about 41 percent of all mines in the U.S. 
employ six or more miners and that about 88 percent of all miners in 
the U.S. work at mines employing six or more miners. MSHA requests 
comments on whether the Agency should require all mine operators, 
regardless of size, to develop a written safety program. MSHA is 
particularly interested in comments on the economic feasibility of 
requiring operators with five or fewer miners to develop a written 
safety program. MSHA is also interested in comments and suggestions on 
alternatives or best practices that all mines might use to develop 
safety programs (whether written or not) for surface mobile equipment. 
MSHA solicits comments on requiring a non-written safety program for 
mines with five or fewer miners. Please provide the rationale and any 
supporting documentation in the comment. If a commenter marks parts of 
a comment as ``business confidential'' information, MSHA will not post 
those parts of the comment.

B. Sections 56.23001, 57.23001 and 77.2101--Definitions

    Proposed Sec. Sec.  56.23001, 57.23001 and 77.2101 would define 
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 
would help assure the successful development and maintenance of a 
safety program that addresses and eliminates 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, including contractors. The responsible person would need to 
have the experience and knowledge about mining conditions, including 
surface mobile equipment, necessary to develop and manage the safety 
program, as well as experience and knowledge necessary to maintain and 
evaluate any controls and best practices.
    Proposed Sec. Sec.  56.23001, 57.23001 and 77.2101 would define 
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 in surface areas of 
underground mines.

C. Sections 56.23002, 57.23002 and 77.2102--Written Safety Program

    Under proposed Sec. Sec.  56.23002(a), 57.23002(a) and 77.2102(a), 
mine operators would develop and implement a written safety program for 
surface mobile equipment within 6 months after the effective date of 
the final rule. MSHA requests comments on whether the 6-month period 
provides mine operators sufficient time to develop and implement a 
written safety program that includes the elements in proposed 
Sec. Sec.  56.23003(a),/57.23003(a) and 77.2103(a), and rationales for 
the comments.
    Proposed Sec. Sec.  56.23002(b), 57.23002(b) and 77.2102(b) would 
also require mine operators to designate a responsible person as 
described above within 6 months after the effective date of the final 
rule. MSHA requests comments on whether this provides mine operators 
sufficient time to meet the proposed requirements, and rationales for 
the comments.

D. Sections 56.23003, 57.23003 and 77.2103--Requirements for Written 
Safety Program

    Proposed Sec. Sec.  56.23003(a), 57.23003(a) and 77.2103(a) would 
require a written safety program for surface mobile equipment to 
include four types of actions that mine operators would take in order 
to reduce accidents, injuries, and fatalities and to improve miners' 
safety.
    Proposed Sec. Sec.  56.23003(a)(1), 57.23003(a)(1) and 
77.2103(a)(1) would require the safety program to include actions that 
would identify and analyze hazards and reduce the resulting risks 
related to the movement and operation of surface mobile equipment. 
Specifically, the proposal would require mine operators to identify, 
collect, and review information about hazards at their mines. These 
actions could include review of accident data and information on close 
calls or near misses, and any operational or maintenance accidents at 
their mines. Based on the information collected, mine operators would 
be able to develop a program that more specifically addresses 
conditions at their mines and measures to eliminate, prevent, or 
mitigate hazards.
    Proposed Sec. Sec.  56.23003(a)(2), 57.23003(a)(2) and 
77.2103(a)(2) would require operators to develop and maintain 
procedures and schedules for routine maintenance and non-routine 
repairs for surface mobile equipment. Operators must comply with MSHA's 
existing requirements for maintenance and repair, which include but are 
not limited to 30 CFR 56.14100; 56.14105; 56.14211; 57.14100; 57.14105; 
57.14211; 77.404(a); 77.404(c); 77.410(c); 77.1606(a) and (c); 
77.1607(l); 77.1607(q); 77.405(a) and (b); 77.502; and 77.1302(b). 
Under this proposal, the mine operator would need to integrate existing 
compliance processes with any manufacturer's recommendations into the 
safety program and to assure that hazards in all phases of work be 
examined and analyzed. Existing processes include procedures for 
maintaining brakes and steering components, as well as procedures that 
assure pre-operational checks of equipment are conducted and then 
defects are corrected.
    Proposed Sec. Sec.  56.23003(a)(3), 57.23003(a)(3) and 
77.2103(a)(3) would require that the program include actions the mine 
operator would take to evaluate currently available and newly emerging 
feasible technologies that can enhance safety and evaluate whether to 
adopt them. The safety program would include a process by which 
operators would periodically evaluate new and existing technologies 
that could enhance safety.
    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. As stated earlier, 
for mines with five or fewer employees that would not be subject to 
this proposed rule, MSHA's EFSMS would provide assistance to operators 
who are interested in developing a safety program. Also, as part of the 
Agency's compliance assistance efforts, MSHA would work with operators 
and provide information and technical assistance that would help them 
investigate control options and the use of technology to prevent 
accidents and injuries. Furthermore, MSHA would encourage its state 
grantees to focus on providing training to address hazards and risks 
involving surface mobile equipment in small mining operations.

[[Page 50501]]

    Proposed Sec. Sec.  56.23003(a)(4), 57.23003(a)(4) and 
77.2103(a)(4) would require operators to train miners and other persons 
at the mine necessary to perform work (e.g., office workers) to 
identify and address or avoid hazards related to surface mobile 
equipment. Training provided under this section would be met through 
existing training requirements, which include but are not limited to 30 
CFR part 46--Training and Retraining of Miners Engaged in Shell 
Dredging or Employed At Sand, Gravel, Surface Stone, Surface Clay, 
Colloidal Phosphate, or Surface Limestone Mines (Sec. Sec.  46.3, 46.4, 
46.5, 46.7, 46.8, 46.11, and 46.12); part 48--Training and Retraining 
of Miners (Sec. Sec.  48.23, 48.25, 48.26, 48.27, 48.28, and 48.31); 
and part 77 Mandatory Safety Standards, Surface Coal Mines and Surface 
Work Areas of Underground Coal Mines (Sec. Sec.  77.404(b) and 
77.1708).
    Proposed Sec. Sec.  56.23003(b), 57.23003(b) and 77.2103(b) would 
require the responsible person to evaluate and update the written 
safety program at least annually or as mining conditions or practices 
change, accidents or injuries occur, or as surface mobile equipment 
changes, or modifications are made. This proposed requirement would 
assure that the written safety program remains relevant and up to date. 
If a mine operator determines that the controls and procedures 
identified in the safety program are not effective (or are no longer 
relevant), further measures would need to be identified and implemented 
to assure miners' safety. Similarly, mine operators would also need to 
evaluate safety programs during seasonal weather condition changes or 
whenever work processes or practices change. In fact, best practices 
shown by NIOSH, OSHA, and other voluntary consensus standards 
organizations include ongoing evaluations of workplace activities and 
processes for hazards. These ongoing evaluations could result in 
identifying new hazards, taking corrective actions, and investigating 
accidents and near-misses to determine root causes and making this 
information available to all miners at the mines.

E. Sections 56.23004, 57.23004 and 77.2104--Record and Inspection

    Proposed Sec. Sec.  56.23004, 57.23004 and 77.2104 would require 
that the mine operator make available a copy of the written safety 
program for inspection by authorized representatives of the Secretary, 
miners, and representatives of miners, and provide a copy upon request.

F. Request for Comments

    MSHA is interested in any information and data associated with 
safety programs for surface mobile equipment. The Agency is 
particularly interested in the aspects of the safety programs that work 
best and are most effective. The Agency also is interested in comments 
on MSHA's proposal to require a written safety program for mine 
operators employing six or more miners. If a commenter marks parts of a 
comment as ``business confidential'' information, MSHA will not post 
those parts of the comment. The Agency is interested in receiving 
comments from all members of the mining community and all interested 
stakeholders. Where possible, please include specific examples to 
support the rationale.

III. Executive Order 12866: Regulatory Planning and Review; and 
Executive Order 13563: Improving Regulation and Regulatory Review

    Executive Orders (E.O.) 13563 and 12866 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility.
    Under E.O. 12866, a significant regulatory action is one that meets 
any of a number of specified conditions, including the following: 
Having an annual effect on the economy of $100 million or more, 
creating a serious inconsistency or interfering with an action of 
another agency, materially altering the budgetary impact of 
entitlements or the rights of entitlement recipients, or raising novel 
legal or policy issues. MSHA has determined that the proposal would not 
be an economically significant regulatory action, pursuant to section 
3(f) of E.O. 12866, because this proposal would not have an annual 
effect of $100 million or more on the economy.
    This section provides a summary of MSHA's cost and benefit 
estimates of the proposal. The proposed rule is estimated to have a 10-
year total net benefit of $343.0 million at a 7 percent discount rate, 
based on estimated benefits of $470.9 million and costs of $127.9 
million. At that 7 percent discount rate, the estimated annualized net 
benefit is $45.6 million (annualized benefits of $62.7 million and 
annualized costs of $17.0 million). Supporting materials and data that 
provide additional details on the methodology used to estimate the 
costs, benefits, and other required analyses of the proposal are 
included in the proposed rule docket at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted on MSHA's website at https://www.msha.gov.

A. Regulated Industry Description

    The proposal would apply to surface mines and surface areas of 
underground mines, for mines employing six or more miners. As of 2018, 
there were 12,281 mines in the U.S.--1087 coal mines and 11,194 metal 
and nonmetal (MNM) mines. Of those mines, 5,027 mines (about 41 
percent) had six or more miners working and would be subject to this 
proposal. Among a total of 223,289 workers at U.S. mines, 162,718 were 
reported to be miners. About 88 percent of the miners were working at 
mines with six or more miners. See Table 1 for additional details.

                                      Table 1--Mines and Employment in 2018
----------------------------------------------------------------------------------------------------------------
                                                                     Number of       Number of         Total
                                                                       mines          miners        employment
----------------------------------------------------------------------------------------------------------------
U.S. Total......................................................          12,281         162,718         223,289
Subject to Proposed Rule:
    Coal mines with six or more miners..........................             584          25,626          46,178
    MNM mines with six or more miners...........................           4,443         117,343         146,459
                                                                 -----------------------------------------------
        Subtotal................................................           5,027         142,969         192,637
                                                                 -----------------------------------------------
Not Subject to Proposed Rule:
    Coal mines with five or fewer miners........................             503           1,379           7,238
                                                                 -----------------------------------------------

[[Page 50502]]

 
    MNM mines with five or fewer miners.........................           6,751          18,370          23,414
                                                                 -----------------------------------------------
        Subtotal................................................           7,254          19,749          30,652
                                                                 -----------------------------------------------
----------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2).

    Table 2 shows that in 2018 mining revenues were $109.4 billion and 
miners worked 415.1 million hours. MSHA estimates coal revenue at $27.2 
billion using the production estimates multiplied by the revenue per 
ton. For the MNM revenue figures, MSHA used the estimate of $82.2 
billion from the U.S. Geological Survey's (USGS) annual commodity 
report.

            Table 2--Mining Revenues and Miner Hours in 2018
------------------------------------------------------------------------
                                             Estimated      Miner work
                                            revenue ($         hours
                                             billions)      (millions)
------------------------------------------------------------------------
Coal mines..............................           $27.2           120.3
MNM mines...............................            82.2           294.8
                                         -------------------------------
    Total...............................           109.4           415.1
------------------------------------------------------------------------
Source: MSHA MSIS Data (total hours worked at mines and coal production
  reported on MSHA Form 7000-2 at $35.99 per ton). USGS reported 2018
  MNM revenues at $82.2 billion. (U.S. Geological Survey, 2019, Mineral
  commodity summaries 2019: U.S. Geological Survey, 200 p., https://doi.org/10.3133/70202434).

B. Benefits

    MSHA believes that the proposed rule would improve miners' safety 
in important ways. Numerous published professional articles about 
safety describe the relationship between effective safety programs and 
accident reduction. For example, Maxey (2013, p. 14) describes the 
shared features of successful programs as follows: ``These basic 
elements--management leadership, worker participation, hazard 
identification and assessment, hazard prevention and control, education 
and training, and program evaluation and improvement--are common to 
almost all existing health and safety management programs. Each element 
is important in ensuring the success of the overall program, and the 
elements are interrelated and interdependent.'' \1\ MSHA's proposal 
would require mine operators to develop and implement a written safety 
program with six or more miners that covers the range of actions an 
operator would take to systematically evaluate and address risks to 
reduce accidents, injuries, and fatalities related to the operation of 
or working near surface mobile equipment.
---------------------------------------------------------------------------

    \1\ Maxey, H. 2013. Safety & Small Business. The Compass. Pages 
12-22. [https://ASEE.org.]
---------------------------------------------------------------------------

    The proposed safety program would create benefits through several 
mechanisms. First, the proposed safety program would include a variety 
of actions an operator would take to identify hazards and assess risks 
to reduce accidents, injuries, and fatalities. Second, MSHA believes 
the process of developing and maintaining a safety program would help 
create or improve a safety culture at the mine. As mine management and 
miners work together to identify hazards and determine appropriate 
controls to prevent or mitigate those hazards, they could come to share 
beliefs, practices, and attitudes about safety and to promote a 
positive safety culture.
    In addition, MSHA believes that there would be additional 
unquantifiable financial benefits, such as reduced insurance premiums 
and decreased downtime after accidents, stemming from the collaborative 
focus on safety by operators and miners.
    MSHA is aware that some mine operators have developed safety 
programs based on the Occupational Safety and Health Administration 
(OSHA)'s recommended practices, or on consensus standards. These 
operators would have procedures in place already to continually 
identify workplace hazards and evaluate risks. MSHA is also aware that 
some states require, by either regulation or statute, a workplace 
safety plan or program for some or all employers including mine 
operators. Other states incentivize (through premium credits or public 
recognition) and support (with free training and consultations) safety 
programs.\2\ Of those states that require safety programs, most require 
employers to develop procedures to identify controls to eliminate or 
mitigate identified hazards and evaluate the effectiveness of existing 
controls to determine whether they continue to protect employees. 
Although MSHA does not know to what degree state programs may overlap 
with this proposal, MSHA believes that some mine operators with 
effective existing safety programs and processes would likely need to 
make few, if any, adjustments to their programs to meet the 
requirements of the proposal.
---------------------------------------------------------------------------

    \2\ OSHA, Safety and Health Programs in the States White Paper, 
April 2016.
---------------------------------------------------------------------------

Accident Data and Forecast
    Under 30 CFR part 50, mine operators are 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 the information collected from mine 
operators' reports, the Agency has analyzed accident and injury trends 
related to mining equipment, work locations, and tasks.
    MSHA'S Quarterly Mine Injury and Worktime, Quarterly Reports (2018 
report at https://arlweb.msha.gov/Stats/Part50/WQ/2018/MIWQ%20Report%20CY%202018.pdf) provides official data and definition 
for injuries. The injury

[[Page 50503]]

occurrences are classified according to severity as follows:
    1. FATAL: Occurrences resulting in death.
    2. NFDL: Nonfatal occurrences with Days Lost (lost workdays). That 
is, nonfatal injury occurrences that result in days away from work or 
days of restricted work activity.
    3. NDL: Occurrences with No Days Lost. That is, nonfatal injury 
occurrences resulting in loss of consciousness or medical treatment 
other than first aid, but not in any lost workdays.
    For the period from 2003 to 2018, MSHA identified 109 fatalities 
and 1,543 nonfatal injuries that involved surface mobile equipment at 
mines employing six or more miners. Table 3 shows the annual number of 
fatal and nonfatal injuries caused by operating or working near surface 
mobile equipment at coal and MNM mines with six or more miners, from 
2003 to 2018.

        Table 3--Fatalities and Injuries Involving Surface Mobile Equipment at All Covered Mines: 2003-18
----------------------------------------------------------------------------------------------------------------
                              Year                                  Fatalities         NFDL             NDL
----------------------------------------------------------------------------------------------------------------
2003............................................................               7              70              28
2004............................................................               6              94              44
2005............................................................              11              88              50
2006............................................................               7             104              51
2007............................................................               8              76              39
2008............................................................               6             100              40
2009............................................................               9              66              30
2010............................................................               6              76              23
2011............................................................               3              62              22
2012............................................................               6              55              15
2013............................................................               5              50              18
2014............................................................               9              53              31
2015............................................................               5              42              24
2016............................................................               5              40              18
2017............................................................              10              46              19
2018............................................................               6              49              20
    Total.......................................................             109            1071             472
----------------------------------------------------------------------------------------------------------------

    MSHA developed 10-year baseline forecasts of injuries and 
fatalities with the detailed coal and MNM data and the summary 
information shown in the following paragraphs. Table 4 shows the 
numbers of fatalities and injuries that MSHA projects would occur in 
the absence of any changes in the existing regulation. See the full 
Preliminary Regulatory Impact Analysis (PRIA), which is available in 
the docket, for the intermediary calculations and tables.

                          Table 4--Baseline Trend Forecast for Fatalities and injuries
----------------------------------------------------------------------------------------------------------------
                                                                                         Nonfatal Injuries
                              Year                                  Fatalities   -------------------------------
                                                                                       NFDL             NDL
----------------------------------------------------------------------------------------------------------------
1...............................................................               6              44              19
2...............................................................               6              40              19
3...............................................................               6              37              18
4...............................................................               6              34              18
5...............................................................               6              32              17
6...............................................................               6              30              17
7...............................................................               6              28              17
8...............................................................               6              25              16
9...............................................................               6              23              16
10..............................................................               6              21              16
----------------------------------------------------------------------------------------------------------------

    MSHA believes that a substantial percentage of accidents involving 
surface mobile equipment could be reduced if operators comply with the 
proposed rule, and it projects that the number of fatalities and 
injuries would be reduced by 80 percent as a result. MSHA believes it 
is likely that the severity of injuries would be reduced, creating an 
additional benefit, which is not quantified in this analysis. MSHA 
believes that as mine operators begin the process of developing their 
safety program, some benefits would be realized in the first year. 
Because mine operators would focus on safety during the development of 
their programs, injury rates would likely start falling even before the 
programs were complete. In the first year, MSHA therefore assumes 
injuries and fatalities would drop 10 percent (equivalent also to 10 
percent of the full-year potential reduction) due to these improvements 
taking place as safety programs are finalized. Starting from the second 
year, MSHA expects that there would be considerably fewer accidents 
involving surface mobile equipment, leading to a substantial drop in 
the number of fatalities and nonfatal injuries. MSHA solicits comments 
regarding the Agency's proposed regulatory effectiveness. Please 
provide the rationale and any supporting documentation in your comment.
    Table 5 shows the projected reduction in fatalities and nonfatal 
injuries related to surface mobile equipment for each of 10 years after 
the proposal takes effect. (A break-even analysis is discussed later, 
in the benefit monetization section.) Even though fatalities and 
injuries are always whole numbers, the projection of reduced fatalities 
and injuries includes decimal values to allow more accurate estimates 
of benefit monetization later. Supporting material

[[Page 50504]]

and data that provide additional details on MSHA's forecast including 
sensitivity analysis results are included in the proposed rule docket 
at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted 
on MSHA's website at www.msha.gov.

Table 5--Projected Reductions in Fatalities and Injuries Involving Surface Mobile Equipment at All Covered Mines
----------------------------------------------------------------------------------------------------------------
                                                                                         Nonfatal injuries
                              Year                                  Fatalities   -------------------------------
                                                                                       NFDL             NDL
----------------------------------------------------------------------------------------------------------------
1 *.............................................................            0.48            3.52            1.52
2...............................................................            4.80           32.00           15.20
3...............................................................            4.80           29.60           14.40
4...............................................................            4.80           27.20           14.40
5...............................................................            4.80           25.60           13.60
6...............................................................            4.80           24.00           13.60
7...............................................................            4.80           22.40           13.60
8...............................................................            4.80           20.00           12.80
9...............................................................            4.80           18.40           12.80
10..............................................................            4.80           16.80           12.80
----------------------------------------------------------------------------------------------------------------
* MSHA Assumes that due to timing of implementation, the startup will result in only 10% of likely reduction of
  the overall as the operators begin implementing their programs.

Benefit Monetization
    To estimate the monetary value of the reductions in fatalities and 
nonfatal injuries, MSHA used an analysis that relies on the theory of 
compensating wage differentials (i.e., the wage premiums paid to 
workers to accept the risk associated with various jobs) in the labor 
market. This theory grows out of the widely observed correlation 
between higher job risk and higher wages, which suggests that employees 
demand monetary compensation in return for incurring greater risk. The 
measure of risk reduction as applied to fatalities is known as the 
Value of a Statistical Life (VSL). Despite its name, VSL is not the 
valuation of life, but the valuation of reductions in risks. Following 
OMB Circular A-4 and adjusting for real income changes, MSHA has used a 
VSL value of $13.6 million for the 2018 base year and $13.9 million for 
the first year of rule implementation.\3\ By the tenth year, the VSL 
value reaches $16.5 million.\4\
---------------------------------------------------------------------------

    \3\ In selecting this VSL, MSHA has taken into account recent 
VSL research and OMB Circular A-4 guidance, which underscore the 
need to reflect industry-specific risk profiles in calculating VSLs. 
For a detailed discussion, see the Preliminary Regulatory Impact 
Analysis.
    \4\ The historical VSL value is adjusted for inflation. Future 
years are adjusted using projected increase in national real income. 
These adjustments are consistent with the practice of other large 
federal agencies. See the Preliminary Regulatory Impact Analysis for 
the formula and documentation.
---------------------------------------------------------------------------

    For NFDL and NDL injuries, MSHA used percentages of VSL. In the 
past, to estimate the cost of nonfatal lost-time injuries, MSHA used a 
value equivalent to 0.7 percent of VSL. The figure is taken from a 2003 
meta-analysis by Viscusi & Aldy and represents the study's estimate of 
injury dollar value divided by the VSL. For this analysis, MSHA 
continues its use of 0.7 percent of VSL for NFDL injuries.
    For the NDL injuries, as discussed in the PRIA, MSHA considered 
values from two sources. The National Safety Council (NSC) and the 
National Institute for Occupational Safety and Health (NIOSH) have 
analyzed injury costs and have continued to update their findings. 
NIOSH, which is part of the Centers for Disease Control and Prevention, 
focuses on researching and developing new knowledge related to worker 
safety and health and to transfer that knowledge into practice. The 
National Safety Council is recognized among safety professionals as a 
leading nonprofit safety advocate. The organization focuses on 
eliminating the leading causes of preventable injuries and deaths. The 
NIOSH data offers many values for individual industry groups, together 
with numerous percentile groupings, means, and medians, but no single 
overall value. By contrast, NSC provides a consolidated estimate of the 
cost of each type of injury--one cost estimate for non-fatal injuries 
with days lost (NFDL) that includes wage losses, medical expenses, 
administrative expenses, and employer costs, and a second cost estimate 
for injuries resulting no days of work lost (NDL) that takes into 
account medical expenses, administrative expenses and employer costs. 
(Note that neither estimate includes costs of property damage except to 
motor vehicles). MSHA believes that the average calculated by the NSC 
is a reasonable estimate to use for NDL injuries, because it is simpler 
and more similar to estimates used in past MSHA analysis. Adjusting the 
2016 NSC value of $39,000 (2016 dollars) for inflation using the 
Medical Consumer Price Index (CPI), this figure yields a 2018 value of 
$40,000. By taking the ratio of $40,000 to a 2018 VSL of $13.6 million, 
MSHA calculates a percent-of-VSL value of 0.3 percent (rounded value) 
for NDLs. For more detailed information, including alternate scenarios, 
see the monetization discussion in the full PRIA. Table 6 lists the 
resulting annual values for VSL and nonfatal injuries.

                                   Table 6--Annual Values for VSL and Injuries
----------------------------------------------------------------------------------------------------------------
                                                                      VSL ($          NFDL ($         NDL ($
                              Year                                   millions)       millions)       millions)
----------------------------------------------------------------------------------------------------------------
1...............................................................          $13.90           $0.10           $0.04
2...............................................................           14.16            0.11            0.04
3...............................................................           14.44            0.11            0.04
4...............................................................           14.71            0.11            0.04

[[Page 50505]]

 
5...............................................................           15.00            0.11            0.04
6...............................................................           15.28            0.11            0.04
7...............................................................           15.58            0.12            0.04
8...............................................................           15.88            0.12            0.04
9...............................................................           16.18            0.12            0.04
10..............................................................           16.50            0.12            0.05
----------------------------------------------------------------------------------------------------------------

    Table 7 below displays the monetized benefits from the reductions 
in fatalities and nonfatal injuries attributable to the proposal. These 
figures are calculated by multiplying the numbers of prevented 
fatalities and nonfatal injuries in Table 5 by the VSL estimates of 
fatal and nonfatal injuries shown in Table 6.

                               Table 7--Monetized Benefit Estimates--Undiscounted
                                     [Values in Table 5 x Values in Table 6]
----------------------------------------------------------------------------------------------------------------
                                                                     Prevented       Prevented
                                                     Prevented       nonfatal        nonfatal     Annual total *
                      Year                         fatalities ($   injuries NFDL   injuries NDL    ($ millions)
                                                     millions)     ($ millions)    ($ millions)
----------------------------------------------------------------------------------------------------------------
1...............................................             6.7             0.4             0.1             7.1
2...............................................            68.2             3.5             0.6            72.3
3...............................................            69.1             3.3             0.6            73.0
4...............................................            70.6             3.0             0.6            74.1
5...............................................            72.0             2.8             0.5            75.4
6...............................................            73.4             2.6             0.5            76.6
7...............................................            74.9             2.7             0.5            78.1
8...............................................            76.3             2.4             0.5            79.2
9...............................................            77.8             2.2             0.5            80.5
10..............................................            79.2             2.0             0.6            81.9
                                                 ---------------------------------------------------------------
    10-Year Total *.............................           668.2            24.9             5.0           698.2
----------------------------------------------------------------------------------------------------------------
* Totals are based on the detailed data without rounding of the individual table cells.

C. Compliance Costs

    As explained above, this proposed rule would require certain mine 
operators to develop a written safety program in which they would 
systematically evaluate risks to reduce accidents, injuries, and 
fatalities. The quantified costs associated with this proposal would be 
two types--one related to the development of the written safety 
program, and the other related to measures taken to enhance safety and 
minimize risks.
Safety Program Development Cost
    MSHA recognizes that mine operations are diverse, with varying 
mining methods, mining conditions and operations, types of mobile 
equipment, and mined commodities. Under this proposal, mine operators 
would develop programs that are unique to their operations and/or build 
on existing programs.
    Program development costs are estimated based on categories of 
actions to be included in the written program. To develop the safety 
program, a mine operator would need to implement various procedures and 
processes that identify hazards and manage risks. However, many 
operators already have a number of procedures and processes in place 
that would meet the requirements of this proposal. Those operators 
would only have to identify and describe these procedures and 
processes. Therefore, when MSHA estimates the average time for each 
type of action it would take a mine operator to develop a written 
safety program, it is averaging across these variations in the new 
compliance actions that would be required.
    The hourly-wage data used in MSHA's analysis assumes an average 
rate for all mining and uses BLS's 2018 Occupational Employment Survey 
(OES) mean wage rates adjusted for benefits and wage inflation since 
completion of the survey. MSHA has also added an overhead cost rate of 
1 percent to the wage rates. Labor costs for most employees are 
estimated using $65.10 per hour for a supervisor; the only exception is 
the item identified as clerical assistance, for which the estimated 
cost is $31.46 per hour. Costs are estimated based on a projection that 
5,027 mine operators would need to develop written programs. Table 8 
summarizes these costs associated with a written safety program.

                                    Table 8--Safety Program Development Costs
----------------------------------------------------------------------------------------------------------------
                                                     Mine task      Total hours                      Out-year
         Major Safety Program Elements *          hours (annual)   (task hours x    One-time ($      annual ($
                                                                   5,027 mines)      millions)       millions)
----------------------------------------------------------------------------------------------------------------
Identifying hazards and manage risks............              15          75,405            $4.9            $0.0
Evaluating technologies that enhance safety.....              60         301,620            19.5             0.0
Summarizing findings and developing written                   20         100,540             6.5             0.0
 program........................................
Clerical assistance to finalize program                       30         150,810             4.7             0.0
 (clerical rate $31.03).........................

[[Page 50506]]

 
Reevaluating workplace activities due to changes              20         100,540             0.0             6.5
 in technology, conditions, processes,
 materials, or equipment; conducting on-site
 examinations; identifying hazards, trends, root
 causes, and taking corrective actions..........
Annual review and update of the safety program..               5          25,135             0.0             1.6
    Total including overhead of 1%..............  ..............  ..............            35.7             8.1
----------------------------------------------------------------------------------------------------------------

Safety-Enhancement Cost
    Under the proposed rule, MSHA would require mine operators to 
evaluate technologies that enhance safety in the operation of surface 
mobile equipment. As a result, mine operators would incur costs in 
implementing safety-enhancing processes and controls.
    Because it is difficult to determine the type of controls mine 
operators would use to eliminate or mitigate a hazard, MSHA's analysis 
approximates the safety-enhancement costs by estimating the number of 
pieces of surface mobile equipment covered by this proposal and 
multiplying by the associated cost for each one.
    Based on MSHA experience and data, the agency has estimated the 
number of pieces of equipment by several mine sizes and by mining 
process (using the MSIS data for subunits) and cost per piece of 
equipment for startup as well as outyear maintenance and updates. MSHA 
estimates that there are approximately 60,000 pieces of mobile 
equipment used at surface mines and surface areas of underground mines; 
of this total, 41,994 are used at mines with six or more miners.
    The safety-enhancing expenditures would vary widely across mine 
operations. Some operators would incur lower costs, as they would use 
less advanced controls such as signs and signals, while other operators 
would invest in higher-priced controls such as interlocked seatbelts or 
collision warning systems. Given this variation, MSHA assumes an 
average cost of $500 per piece of surface mobile equipment in the first 
year, reflecting the cost of both new technology purchases and existing 
technology repairs and modifications. From the second year on, the 
analysis assumes an average cost of $100 per piece of surface mobile 
equipment, reflecting mostly costs of modification of existing 
technologies. The analysis assumes little incremental cost for repairs 
in the second year and beyond, because the repairs are already required 
by other MSHA standards.
    Using these estimates of the average safety-enhancement costs and 
the number of pieces of equipment used by the covered mines that would 
be subject to this proposal, MSHA estimates that mine operators would 
incur safety-enhancement costs of approximately $21.0 million in the 
first year and $4.2 million annually after that. MSHA invites 
commenters to submit estimates of the types and costs of safety 
enhancements that would be needed at mining operations under this 
proposal.
    MSHA estimates that there would be no incremental training costs, 
because this proposed rule requires no new or additional training. 
Training costs are already accounted for in training required by 
existing standards in 30 CFR parts 46, 48, and 77, which address mine 
hazard awareness and safety measures. MSHA invites commenters' views 
and estimates on training costs.
    Table 9 shows the total compliance costs, which are the sum of the 
written program development costs and safety-enhancement and training 
costs. Based on the estimates above, the total compliance costs in the 
first year would be $56.6 million and $12.3 million annually in the 
out-years starting from the second year of implementation. MSHA invites 
commenters to submit estimates of the types and costs of enhancements 
at their operations.

                    Table 9--Compliance Cost Summary
------------------------------------------------------------------------
                                                Millions of dollars
                                                  (undiscounted)
                Cost item                -------------------------------
                                                            Annual out-
                                           Startup costs    year costs
------------------------------------------------------------------------
Safety program development (inclusive of           $35.7            $8.1
 overhead costs)........................
Safety enhancement......................            21.0             4.2
                                         -------------------------------
    Total Costs.........................            56.7            12.3
------------------------------------------------------------------------

D. Net Benefits

    MSHA's 10-year cost and benefit estimates are shown in Table 10. 
Under MSHA's proposed rule, mine operators would be required to meet 
the requirements of the proposed rule 6 months after the effective date 
of the final rule. MSHA believes that this 6-month period would provide 
mine operators time to develop and communicate the safety program to 
employees, evaluate mine operations for hazards, and eliminate or 
control identified hazards (e.g., engineering controls, work practices, 
and equipment maintenance). MSHA assumes that by reducing the surface 
mobile machine fatalities and injuries by 80 percent, full benefits of 
the proposed rule would be achieved by the second year, with benefits 
equal to 10 percent of that amount in the first year.

[[Page 50507]]



                            Table 10--Summary of Benefits, Costs, and Net Benefits *
                                                  [$ millions]
----------------------------------------------------------------------------------------------------------------
                                                           Undiscounted                     Discounted
                                                 ---------------------------------------------------------------
              Year                   Benefits                                      Net benefits    Net benefits
                                                       Costs       Net benefits     (3 percent)     (7 percent)
----------------------------------------------------------------------------------------------------------------
1...............................            $7.1           $56.7          -$49.6          -$48.2          -$46.4
2...............................            72.3            12.3            60.0            56.6            52.4
3...............................            73.0            12.3            60.7            55.5            49.5
4...............................            74.1            12.3            61.8            54.9            47.1
5...............................            75.4            12.3            63.1            54.4            45.0
6...............................            76.6            12.3            64.3            53.9            42.8
7...............................            78.1            12.3            65.8            53.5            41.0
8...............................            79.2            12.3            66.9            52.8            38.9
9...............................            80.5            12.3            68.2            52.3            37.1
10..............................            81.9            12.3            69.6            51.8            35.4
                                 -------------------------------------------------------------------------------
    Total.......................           698.2           167.4           530.8           437.5           343.0
                                 -------------------------------------------------------------------------------
        Annualized..............            69.8            16.7            53.1            49.8            45.6
----------------------------------------------------------------------------------------------------------------
* Values in millions. Full precision of numbers calculated and summed, but independent rounding for display
  purposes reflects subtotals but not the underlying calculations.

Break-Even Point Analysis
    OMB Circular A-4 recommends use of a break-even or threshold 
analysis when there are qualitative benefits or issues of uncertainty 
related to the cost and benefit estimates. As discussed above, MSHA's 
estimates of the benefits of the rule are based on the projected 
reduction in the number of fatalities and injuries. The success of the 
proposed rule in reducing fatal and nonfatal injuries can be considered 
in terms of the resulting monetized benefit. A break-even point is when 
net benefits (monetized benefits minus costs) equal zero. According to 
the break-even calculations for this proposal, even if the fatalities 
and injuries are not reduced as forecasted, the reduction of fatal and 
nonfatal injuries would have a positive net benefit as long as those 
injuries are reduced by more than 27.1 percent; at 27.1 percent, the 
net benefits at a 7 percent discount rate would equal zero.

E. Request for Comments

    Please provide data or information that would be useful to MSHA as 
the Agency evaluates the costs and benefits of this proposal. MSHA 
recognizes that mine operations are diverse with varying mining 
methods, mining conditions and operations, types of mobile equipment, 
mined commodities, and mine sizes. MSHA seeks data and information that 
would allow the Agency to develop estimates that might better reflect 
these differing conditions and further evaluate the economic 
feasibility of this proposal. MSHA requests comments on innovative 
technologies and/or new and developing technologies that could enhance 
the benefits of the proposal.

IV. Feasibility

A. Technological Feasibility

    MSHA concludes that the proposal would be technologically feasible 
because it would require mine operators to develop and implement 
written safety programs based on an assessment of risk in their mines 
and use existing technology or methods to enhance safety. Therefore, 
there are no technological issues raised by the proposal.

B. Economic Feasibility

    MSHA has traditionally used a revenue screening test--i.e., whether 
the yearly impacts of a regulation are less than one percent of 
revenues--to establish presumptively that the regulation is 
economically feasible for the mining community. MSHA projects that the 
proposal would have an annualized cost of $17 million (at a 7 percent 
discount rate over 10 years), while the mining industry has estimated 
annual revenues of $109.4 billion. The cost of the proposal would be 
much less than 1 percent of revenues. Therefore, MSHA concludes that 
the proposed rule would be economically feasible for the mining 
industry.

V. 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 proposed 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 proposed rule on small entities. Based on that analysis, MSHA 
believes that this proposed rule would not have a significant economic 
impact on a substantial number of small entities. The Agency, 
therefore, is not required to develop an initial regulatory flexibility 
analysis. The factual basis for this proposed certification is 
presented below.

A. Definition of a Small Mine

    Under the RFA, in analyzing the impact of a rule on small entities, 
MSHA must use the Small Business Administration (SBA)'s 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. See Table 11 for SBA thresholds 
for each relevant NAICS code. The SBA size standard tables and 
methodology are available at https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/summary-size-standards-industry-sector.

B. Factual Basis for Certification

    The SBA guidance recommends, as a first step, a threshold analysis. 
MSHA

[[Page 50508]]

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. As the 
threshold analysis is developed, MSHA considers the data availability 
as well as the degree of representativeness if the data is 
disaggregated. 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. 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. When estimated ratios 
may not be representative or when compliance costs exceed one percent 
of revenues, MSHA investigates whether further analysis is required.
    For this analysis, MSHA evaluated a number of data sources related 
to the number of firms, employment, and revenue. MSHA concluded that 
the most useful data for firms and employment was the MNM mine data 
from MSIS, which is publicly available at https://www.msha.gov/data-reports/data-sources-calculators. Using the SBA criteria (see Table 11) 
and MSIS total average annual mine employment data as provided by mine 
operators, MSHA identified that 10,278 out of 12,281 mines and 
facilities are considered ``small'' and have usable data. MSHA 
identified 533 other small mines that were not included in this 
analysis, because some had incomplete data, another had few production 
hours for the year (intermittent mines), and others stopped production 
in 2018.) Of those small mines and facilities, slightly more than one-
third, 35 percent (3,557/10,278 small), would be required to comply 
with the provisions of the proposal because they employ six or more 
miners. Costs from the Compliance Costs section above were distributed 
using the SBA small and large sizes using the same methodology 
discussed in that section. The 65 percent of small mine operators that 
do not have to comply will have no cost.\5\
---------------------------------------------------------------------------

    \5\ Those 533 mines excluded from this analysis are mines with 1 
to 5 miners, which are not subject to the proposed rule.
---------------------------------------------------------------------------

    MSHA estimates mine revenue as it did in the past. Since MNM mines 
do not report production, MSHA used U.S. Geological Commodity reports 
(USGS, 2019) to obtain national MNM revenue numbers for 2018. MSHA 
allocated the NAICS code revenue for MNM mines on a dollar per hour 
basis. MSHA uses the mine operator-reported coal production and Energy 
Information Administration price per ton for anthracite, lignite, and 
bituminous coal for small mines.\6\
---------------------------------------------------------------------------

    \6\ https://www.eia.gov/coal/annual/archive/0584_2018.pdf, p. 
XVII
---------------------------------------------------------------------------

    MSHA considered the issue of disaggregation of summary data and 
displaying representative data for mines with only five or fewer 
miners. The revenue per hour for MNM mines and per ton for coal is 
representative for the total as most mines meet the SBA's small 
criteria. However, MSHA believes it is unlikely to be representative 
for the smallest mines. MSHA requests comments and data that would 
assist MSHA in estimating representative revenues for the categories of 
six or more, and five or fewer, miners.
    Table 11 shows the estimated revenues, costs, SBA size standards 
(Feb. 2019), and the summary level screening test results for the total 
small mine revenue for each 6-digit NAICS code. The summary level data 
is consistent with evaluating the impact on a mine-by-mine basis 
without providing detail on all mines. The data allows each operator to 
use the Table 11 data to compare the revenue per mine and cost per mine 
to their operating data. However, the revenue for incomplete data was 
less than 1 percent of total revenues. It is therefore small enough not 
to affect MSHA's decision to propose to certify that there would be no 
significant economic impact on a substantial number of small entities.

                                                   Table 11--Summary of Small Business Screening Data
                                                           [Revenues and costs in $ millions]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                        Small standard                     Estimated
          NAICS Code               NAICS description     (max. no. of      Number of     revenues all   One percent of   Costs to all   Cost exceeds one
                                                          employees)      small mines     small mines      revenues       small mines        percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
212111........................  Bituminous Coal and              1,250             611          $9,325          $93.25           $4.48  No.
                                 Lignite Surface
                                 Mining.
212112........................  Bituminous Coal                  1,500             148           4,386           43.86            0.33  No.
                                 Underground Mining.
212113........................  Anthracite Mining.....             250             117             189            1.89            0.38  No.
212210........................  Iron Ore Mining.......             750              21             999            9.99            0.16  No.
212221........................  Gold Ore Mining.......           1,500             122           2,332           23.32            0.63  No.
212222........................  Silver Ore Mining.....             250               5              99            0.99            0.01  No.
212230........................  Copper, Nickel, Lead,              750              27           2,780           27.80            0.31  No.
                                 and Zinc Mining.
212291........................  Uranium-Radium-                    250               4               0            0.00            0.01  Yes.
                                 Vanadium Ore Mining.
212299........................  All Other Metal Ore                750              17             419            4.19            0.13  No.
                                 Mining.
212311........................  Dimension Stone Mining             500             772             438            4.38            3.15  No.
                                 and Quarrying.
212312........................  Crushed and Broken                 750           1,318           6,459           64.59            7.64  No.
                                 Limestone Mining and
                                 Quarrying.
212313........................  Crushed and Broken                 750             138           1,135           11.35            0.97  No.
                                 Granite Mining and
                                 Quarrying.
212319........................  Other Crushed and                  500             874           1,732           17.32            3.52  No.
                                 Broken Stone Mining
                                 and Quarrying.
212321........................  Construction Sand and              500           5,326           6,796           67.96           12.77  No.
                                 Gravel Mining.
212322........................  Industrial Sand Mining             500             249           4,231           42.31            1.34  No.
212324........................  Kaolin and Ball Clay               750               7             620            6.20            0.05  No.
                                 Mining.
212325........................  Clay and Ceramic and               500             198             766            7.66            0.78  No.
                                 Refractory Minerals
                                 Mining.
212391........................  Potash, Soda, and                  750               9             909            9.09            0.05  No.
                                 Borate Mineral Mining.
212392........................  Phosphate Rock Mining.           1,000               8             969            9.69            0.16  No.
212393........................  Other Chemical and                 500              44           1,541           15.41            0.28  No.
                                 Fertilizer Mineral
                                 Mining.
212399........................  All Other Nonmetallic              500             181             957            9.57            0.89  No.
                                 Mineral Mining.
311942........................  Spice and Extract                  500               3             920            9.20            0.02  No.
                                 Manufacturing.
327310........................  Cement Manufacturing..           1,000              40           4,501           45.01            0.43  No.

[[Page 50509]]

 
327410........................  Lime Manufacturing....             750              31           1,350           13.50            0.24  No.
331313........................  Alumina Refining and             1,000               6               3            0.03            0.04  Yes.
                                 Primary Aluminum
                                 Production.
                                                       -------------------------------------------------------------------------------------------------
    Grand Total...............  ......................  ..............          10,278          53,856          538.56           38.77  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Total number of small mines includes two mines that were not reported as abandoned but lacked hours and sufficient information to assign revenues.
  Without miner hours, costs and revenues related to the NAICS codes above are most likely zero.

    As Table 11 shows, the total estimated cost to small mines, $38.77 
million, is far less than 1 percent of the total revenues of those 
mines, which comes to $538.56 million. Two NAICS codes, 331313 Alumina 
Refining and Primary Aluminum Production and 212291 Uranium Radium 
Vanadium Ore Mining, require further analysis, because estimated costs 
for those codes exceed MSHA's 1-percent threshold for additional 
analysis. The Census Bureau's Statistics of U.S. Businesses and 2017 
Economic Census data provides helpful information for additional 
analysis of NAICS code 331313. The Census Bureau reports that all data 
for the 212291 NAICS has been withheld due to the very limited number 
of mines. The six mines and plants regulated by MSHA with NAICS code 
331313 are only a portion of the larger group of all firms with NAICS 
code 331313. The preliminary data from the Economic Census as shown in 
the Bureau's data does not provide enough detail to separate small 
firms between 500 and 1,000 employees from their total for 500 and more 
employees or to isolate mines from all firms with NAICS code 331313.\7\
---------------------------------------------------------------------------

    \7\ See https://www2.census.gov/programs-surveys/susb/tables/2017/us_6digitnaics_2017.xlsx for the available data.
---------------------------------------------------------------------------

    For NAICS code 331313, MSHA's estimate for the total costs for the 
small firms that it regulates within the code is $38,500. The Economic 
Census reports that the smallest firms for this NAICS have preliminary 
receipts of $9.3 million. The impact for the smallest firms would be 
only 0.4 percent ($38,500/$9,300,000). The overall percentage impact to 
small firms goes down as the revenues increase for the rest of the 
firms up to the SBA threshold of 1,000 employees. Although the Economic 
Census numbers are for 2017, information available online provided by a 
private firm SICCODE.com (https://siccode.com/naics-code/331313/alumina-refining-primary-aluminum-production), suggests that the number 
of firms (26) and total revenues ($3 billion) are down slightly for 
2018 but not enough to alter MSHA's conclusion that there is no 
significant impact for small firms with this NAICS code.
    For Uranium and Vanadium, the mines were rarely in production in 
2018. Several web sources suggest that as uranium approaches or 
maintains zero production, the Vanadium mines have the potential for 
growth for use in steel and battery production; thus, non-producing 
mines are maintained for this possibility. Because no recent data are 
available regarding the remaining establishments, their total 
employment, their revenues or costs, it is not possible to compute the 
impact beyond the total cost for the NAICS code 212291 which is 
slightly more than $14,000. Considering that the firms owning the 
limited number of mines are maintaining the mines for future 
possibilities, it is unlikely that this low cost would impact their 
decision whether to close. MSHA invites comments and data that might 
improve this conclusion and analysis.

VI. Paperwork Reduction Act of 1995

A. Summary

    This proposal would create new information collection burdens for 
the mining community. The new burden applies only to mine operators 
with six or more miners. As stated in the proposal, mine operators 
would have wide latitude to develop and implement a written safety 
program. Mine operators could also consult or use examples of model 
written safety programs available on MSHA's website. MSHA recognizes 
that this proposal could transfer burden from (or add burden to) 
existing information collections such as those related to training or 
equipment maintenance. However, MSHA is requesting a new OMB Control 
Number until the Agency determines how the burden under this proposal 
would affect MSHA's existing information collections. Using the data 
from the E.O. 12866 analysis, MSHA estimates that 5,027 respondents 
(mine operators employing six or more miners) would incur an average 
annual collection burden of 5,027 responses, 100,540 hours, with an 
annual burden cost estimate of $4.8 million. The MSHA enforcement staff 
would not review all written programs, but any program review would be 
part of routine mine inspections and therefore there is no new federal 
cost. Table 12 shows the anticipated first three years of collection 
burden.

                                                     Table 12--Recordkeeping Burden of Proposed Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Hourly rate     Hour burden
                  Year                           Item description         Hours per task    Respondents    Burden hours        (with          cost ($
                                                                                              (mines)                        Benefits)       Millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1......................................  Development of a written safety              20           5,027         100,540          $65.10            $6.5
                                          program.
1......................................  Clerical assistance to finalize              30           5,027         150,810           31.46             4.7
                                          written program.
2......................................  Annual review, plan revision,                 5           5,027          25,135           65.10             1.6
                                          and update due to changes in
                                          workplace activities.

[[Page 50510]]

 
3......................................  Annual review, plan revision,                 5           5,027          25,135           65.10             1.6
                                          and update due to changes in
                                          workplace activities.
--------------------------------------------------------------------------------------------------------------------------------------------------------
     3-Year Total.......................................................              60           5,027         301,620              NA            14.4
         Annual Average.................................................              20           5,027         100,540              NA             4.8
--------------------------------------------------------------------------------------------------------------------------------------------------------

B. Procedural Details

    The information collection package for this proposal has been 
submitted to OMB for review under 44 U.S.C. 3504, paragraph (c) of the 
Paperwork Reduction Act of 1995, as amended. Comments on the 
information collection requirements should be sent to both OMB and 
MSHA. Addresses for both offices can be found in the ADDRESSES section 
of this preamble.
    MSHA is soliciting comments concerning the proposed information 
collection related to written safety programs. MSHA is particularly 
interested in comments that address the following:
    <bullet> Evaluate whether the collection of information is 
necessary for the proper performance of the functions of the Agency, 
including whether the information has practical utility;
    <bullet> Evaluate the accuracy of MSHA's estimate of the burden of 
the collection of information, including the validity of the 
methodology and assumptions used;
    <bullet> Suggest methods to enhance the quality, utility, and 
clarity of the information to be collected; and
    <bullet> Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.

VII. Regulatory Alternative

    MSHA considered requiring all mines, regardless of size, to develop 
and implement a written safety program for surface mobile equipment 
used at surface mines and surface areas of underground mines. Between 
2013 and 2018, mines with five or fewer miners experienced 10 
fatalities related to surface mobile equipment, whereas mines with six 
or more miners experienced 109 related fatalities during the same time 
period.
    If those mines with five or fewer miners were required to develop 
and implement a written safety program, they would incur substantial 
costs. MSHA estimates that there are 7,254 mines with five or fewer 
miners. The preliminary projected costs for this group of mines would 
add up to approximately undiscounted cost of $170 million over a ten-
year period. These mines would incur a start up cost of $ 64.6 million 
in the first year and an annual cost of $11.7 over the subsequent 9 
years.
    Based on the Agency's experience, MSHA concluded that a mine 
operator with five or fewer miners would generally have a limited 
inventory of surface mobile equipment. These operators would also have 
less complex mining operations, with fewer mobile equipment hazards 
that would necessitate a written safety program. Also, at these small 
mines, safety can be communicated more effectively through face to face 
communication rather than in writing. Taken together, MSHA has 
determined that mine operators employing five or fewer miners would not 
be required to have a written safety program, although the Agency would 
assist these mine operators with promoting a safety culture in a 
variety of ways. Fuller discussions can be found in the Preliminary 
Regulatory Impact Analysis in the proposed rule docket at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted on MSHA's 
website at https://www.msha.gov. MSHA also solicits comments on the 
Agency's determination.

VIII. Other Regulatory Considerations

A. 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 one year. This 
proposed rule would not result in such an expenditure. Accordingly, the 
Unfunded Mandates Reform Act requires no further Agency action or 
analysis.

B. 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 
proposal would not have an effect on family stability or safety, 
marital commitment, parental rights and authority, or income or poverty 
of families and children. Accordingly, MSHA certifies that this 
proposed rule would not impact family well-being.

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

    Section 5 of E.O. 12630 requires federal agencies to ``identify the 
takings implications of final regulatory actions. . . .'' MSHA has 
determined that the proposal would not include a regulatory or policy 
action with takings implications. Accordingly, E.O. 12630 requires no 
further Agency action or analysis.

D. 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 proposal and has determined that it would meet the 
applicable standards provided in E.O. 12988 to minimize litigation and 
undue burden on the federal court system.

[[Page 50511]]

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    MSHA has determined that the proposal would not have an adverse 
impact on children. Accordingly, E.O. 13045 requires no further Agency 
action or analysis.

F. Executive Order 13132: Federalism

    MSHA has determined that the proposal would not have federalism 
implications because it would 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.

G. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    MSHA has determined that the proposal would not have tribal 
implications because it would 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.

H. 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 when a rule has a significant energy action that adversely 
affects energy supply, distribution, or use. MSHA reviewed the proposal 
for its energy effects on the production of coal and uranium mining. 
The proposal would result in annualized costs of approximately $16.7 
million to covered surface mines and surface areas of underground 
mines. The Energy Information Administration's annual uranium report 
for 2018 shows, ``Owners and operators of U.S. civilian nuclear power 
reactors (civilian owner/operators, or COOs) purchased a total of 43 
million pounds U3O8e (equivalent) of deliveries from U.S. suppliers and 
foreign suppliers during 2017, at a weighted-average price of $38.80 
per pound,'' which is approximately $1.7 billion. Given that domestic 
nuclear plants represent only 19.3 percent of the U.S. electrical 
production and using average annual costs of the entire proposal, the 
impact to the domestic energy production could not reach 1 percent. 
Coal mining industry has an annual revenue of $27.2 billion (See Table 
2). Under this proposal, annual costs impacting the total coal 
production of 756 million tons would not affect national energy 
production costs by more than 1 percent or reduce annual coal 
production by 5 million tons. MSHA has concluded that it is not a 
significant energy action because it is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Accordingly, under this analysis, no further Agency action or 
analysis is required.

IX. 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). Occupational Health and Safety Assessment Series 
(OHSAS) 18001.

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.

Patricia W. Silvey,
Deputy 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, MSHA is proposing 
to amend chapter I of title 30 of the Code of Federal Regulations as 
follows:

PART 56--SAFETY AND HEALTH STANDARDS--SURFACE METAL AND NONMETAL 
MINES

0
1. The authority citation for part 56 continues to read as follows:

    Authority:  30 U.S.C. 811.

0
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.


Sec.  56.23000  Purpose and scope.

    This subpart requires mine operators employing six or more miners 
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.


Sec.  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.


Sec.  56.23002  Written safety program.

    (a) Each operator subject to this subpart shall develop and 
implement a written safety program for surface mobile equipment that 
contains the elements in this subpart, no later than [DATE 6 months 
after the effective date of the final rule].
    (b) Each operator subject to this subpart shall designate a 
responsible person to evaluate and update the written safety program, 
no later than [DATE 6 months after the effective date of the final 
rule].


Sec.  56.23003  Requirements for written safety program.

    (a) The mine operator shall develop and implement a written safety 
program that includes actions the operator would 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

[[Page 50512]]

    (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 annually or as mining conditions or practices change, as 
accidents or injuries occur, or as surface mobile equipment changes or 
modifications are made.


Sec.  56.23004  Record and inspection.

    The mine operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary, miners, 
and representatives of miners, and provide a copy, upon request.

PART 57--SAFETY AND HEALTH STANDARDS--UNDERGROUND METAL AND 
NONMETAL MINES

0
3. The authority citation for Part 57 continues to read as follows:

    Authority:  30 U.S.C. 811.

0
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.


Sec.  57.23000  Purpose and scope.

    This subpart requires mine operators employing six or more miners 
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.


Sec.  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.


Sec.  57.23002  Written safety program.

    (a) Each operator subject to this subpart shall develop and 
implement a written safety program for surface mobile equipment that 
contains the elements in this subpart, no later than [DATE 6 months 
after the effective date of the final rule].
    (b) Each operator subject to this subpart shall designate a 
responsible person to evaluate and update the written safety program, 
no later than [DATE 6 months after the effective date of the final 
rule].


Sec.  57.23003  Requirements for written safety program.

    (a) The mine operator shall develop and implement a written safety 
program that includes actions the operator would 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 annually or as mining conditions or practices change, as 
accidents or injuries occur, or as surface mobile equipment changes or 
modifications are made.


Sec.  57.23004  Record and inspection.

    The mine operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary, miners, 
and representatives of miners, and provide a copy, upon request.

PART 77--MANDATORY SAFETY STANDARDS, SURFACE COAL MINES AND SURFACE 
WORK AREAS OF UNDERGROUND COAL MINES

0
5. The authority citation for part 77 continues to read as follows:

    Authority:  30 U.S.C. 811.

0
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.


Sec.  77.2100  Purpose and scope.

    This subpart requires mine operators employing six or more miners 
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.


Sec.  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.


Sec.  77.2102  Written safety program.

    (a) Each operator subject to this subpart shall develop and 
implement a written safety program for surface mobile equipment that 
contains the elements in this subpart, no later than [DATE 6 months 
after effective date of the final rule].
    (b) Each operator subject to this subpart shall designate a 
responsible person to evaluate and update the written safety program, 
no later than [DATE 6 months after effective date of the final rule].


Sec.  77.2103  Requirements for written safety program.

    (a) The mine operator shall develop and implement a written safety 
program that includes actions the operator would 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

[[Page 50513]]

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 annually or as mining conditions or practices change, as 
accidents or injuries occur, or as equipment changes or modifications 
are made.


Sec.  77.2104  Record and inspection.

    The mine operator shall make the written safety program available 
for inspection by authorized representatives of the Secretary, miners, 
and representatives of miners, and provide a copy, upon request.

[FR Doc. 2021-18791 Filed 9-8-21; 8:45 am]
BILLING CODE 4520-43-P


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