50496 Federal Register / Vol. 86, No. 172 / Thursday, September 9, 2021 / Proposed Rules 

circumstances exist that would warrant 

at least an environmental assessment 

(see 21 CFR 25.21). If FDA determines 

a categorical exclusion applies, neither 

an environmental assessment nor an 

environmental impact statement is 

required. If FDA determines a 

categorical exclusion does not apply, we 

will request an environmental 

assessment and make it available for 

public inspection. 

Dated: September 2, 2021. 

Lauren K. Roth, 

Acting Principal Associate Commissioner for 

Policy. 

[FR Doc. 2021–19405 Filed 9–8–21; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 172 

[Docket No. FDA–2021–F–0926] 

Monaghan Mushrooms Ireland 

Unlimited Company; Filing of Food 

Additive Petition 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Notification of petition. 

SUMMARY: The Food and Drug 

Administration (FDA or we) is 

announcing that we have filed a 

petition, submitted by Monaghan 

Mushrooms Ireland Unlimited 

Company, proposing that the food 

additive regulations be amended to 

provide for the safe use of vitamin D2

mushroom powder produced by 

exposing dried and powdered edible 

cultivars of Agaricus bisporus to 

ultraviolet light. 

DATES: The food additive petition was 

filed on June 8, 2021. 

ADDRESSES: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov and insert the 

docket number found in brackets in the 

heading of this document into the 

‘‘Search’’ box and follow the prompts, 

and/or go to the Dockets Management 

Staff, 5630 Fishers Lane, Rm. 1061, 

Rockville, MD 20852. 

FOR FURTHER INFORMATION CONTACT: 

Katie Overbey, Center for Food Safety 

and Applied Nutrition, Food and Drug 

Administration, 5001 Campus Dr., 

College Park, MD 20740, 240–402–7536. 

SUPPLEMENTARY INFORMATION: Under the 

Federal Food, Drug, and Cosmetic Act 

(section 409(b)(5) (21 U.S.C. 348(b)(5)), 

we are giving notice that we have filed 

a food additive petition (FAP 1A4828), 

submitted by Monaghan Mushrooms 

Ireland Unlimited Company, Tullygony, 

Tyholland, County Monaghan, H18 

FW95, Ireland. The petition proposes to 

amend the food additive regulations in 

§ 172.382 (21 CFR 172.382) Vitamin D2

mushroom powder to provide for the 

safe use of vitamin D2 mushroom 

powder produced by exposing dried and 

powdered edible cultivars of Agaricus 

bisporus to ultraviolet light. 

The petitioner has claimed that this 

action is categorically excluded under 

21 CFR 25.32(k) because the substance 

is intended to remain in food through 

ingestion by consumers and is not 

intended to replace macronutrients in 

food. In addition, the petitioner has 

stated that, to their knowledge, no 

extraordinary circumstances exist that 

would warrant at least an environmental 

assessment (see 21 CFR 25.21). If FDA 

determines a categorical exclusion 

applies, neither an environmental 

assessment nor an environmental 

impact statement is required. If FDA 

determines a categorical exclusion does 

not apply, we will request an 

environmental assessment and make it 

available for public inspection. 

Dated: September 2, 2021. 

Lauren K. Roth, 

Acting Principal Associate Commissioner for 

Policy. 

[FR Doc. 2021–19409 Filed 9–8–21; 8:45 am] 

BILLING CODE 4164–01–P 

DEPARTMENT OF LABOR 

Mine Safety and Health Administration 

30 CFR Parts 56, 57 and 77 

[Docket No. MSHA–2018–0016] 

RIN 1219–AB91 

Safety Program for Surface Mobile 

Equipment 

AGENCY: Mine Safety and Health 

Administration, Labor. 

ACTION: Proposed rule; request for 

comments. 

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: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the online 

instructions for submitting comments. 

• Email: zzMSHA-comments@

dol.gov. 

• Mail: MSHA, Office of Standards, 

Regulations, and Variances, 201 12th 

Street South, Suite 4E401, Arlington, 

Virginia 22202–5452. 

• 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. 

• 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 


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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). 

• Comments to MSHA may be sent by 

one of the methods in the ADDRESSES

section above. 

• 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 Senk.Jessica@dol.gov (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 muchneeded 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 


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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 nontechnological 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. 


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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 §§ 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 §§ 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 


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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 §§ 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 §§ 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 §§ 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 §§ 56.23003(a),/57.23003(a) 

and 77.2103(a), and rationales for the 

comments. 

Proposed §§ 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 §§ 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 §§ 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 §§ 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 §§ 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. 


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Proposed §§ 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 

(§§ 46.3, 46.4, 46.5, 46.7, 46.8, 46.11, 

and 46.12); part 48—Training and 

Retraining of Miners (§§ 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 (§§ 77.404(b) 

and 77.1708). 

Proposed §§ 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 nearmisses 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 §§ 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 

mines 

Number of 

miners 

Total 

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 


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1Maxey, H. 2013. Safety & Small Business. The 

Compass. Pages 12–22. [https://ASEE.org.] 

2OSHA, Safety and Health Programs in the States 

White Paper, April 2016. 

TABLE 1—MINES AND EMPLOYMENT IN 2018—Continued 

Number of 

mines 

Number of 

miners 

Total 

employment 

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 

revenue 

($ billions) 

Miner work 

hours 

(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. 

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. 

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%20

CY%202018.pdf) provides official data 

and definition for injuries. The injury 


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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

Year Fatalities 

Nonfatal Injuries 

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 


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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. 4The 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. 

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=MSHA2018-0016 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

Year Fatalities 

Nonfatal injuries 

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

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

Year VSL 

($ millions) 

NFDL 

($ millions) 

NDL 

($ 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 


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TABLE 6—ANNUAL VALUES FOR VSL AND INJURIES—Continued 

Year VSL 

($ millions) 

NFDL 

($ millions) 

NDL 

($ millions) 

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 × Values in Table 6] 

Year 

Prevented 

fatalities 

($ millions) 

Prevented 

nonfatal 

injuries NFDL 

($ millions) 

Prevented 

nonfatal 

injuries NDL 

($ millions) 

Annual total * 

($ 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

Major Safety Program Elements * 

Mine task 

hours (annual) 

Total hours 

(task hours × 

5,027 mines) 

One-time 

($ millions) 

Out-year 

annual 

($ 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 program .................................. 20 100,540 6.5 0.0 

Clerical assistance to finalize program (clerical rate $31.03) ......................... 30 150,810 4.7 0.0 


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TABLE 8—SAFETY PROGRAM DEVELOPMENT COSTS—Continued 

Major Safety Program Elements * 

Mine task 

hours (annual) 

Total hours 

(task hours × 

5,027 mines) 

One-time 

($ millions) 

Out-year 

annual 

($ millions) 

Reevaluating workplace activities due to changes in technology, conditions, 

processes, materials, or equipment; conducting on-site examinations; 

identifying hazards, trends, root causes, and taking corrective actions ...... 20 100,540 0.0 6.5 

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 safetyenhancement 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 safetyenhancement 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

Cost item 

Millions of dollars 

(undiscounted) 

Startup 

costs 

Annual 

out-year costs 

Safety program development (inclusive of overhead costs) ................................................................................... $35.7 $8.1 

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. 


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TABLE 10—SUMMARY OF BENEFITS, COSTS, AND NET BENEFITS * 

[$ millions] 

Year Benefits 

Undiscounted Discounted 

Costs Net benefits Net benefits 

(3 percent) 

Net benefits 

(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-industrysector. 

B. Factual Basis for Certification 

The SBA guidance recommends, as a 

first step, a threshold analysis. MSHA 


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5Those 533 mines excluded from this analysis are 

mines with 1 to 5 miners, which are not subject to 

the proposed rule. 

6https://www.eia.gov/coal/annual/archive/0584_

2018.pdf, p. XVII 

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

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

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] 

NAICS 

Code NAICS description 

Small standard 

(max. no. of 

employees) 

Number of 

small mines 

Estimated 

revenues all 

small mines 

One percent of 

revenues 

Costs to all 

small mines 

Cost exceeds one 

percent 

212111 ...................... Bituminous Coal and Lignite Surface Mining.1,250 611 $9,325 $93.25 $4.48 No. 

212112 ...................... Bituminous Coal Underground Mining ...... 1,500 148 4,386 43.86 0.33 No. 

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, and Zinc Mining .... 750 27 2,780 27.80 0.31 No. 

212291 ...................... Uranium-Radium-Vanadium Ore Mining ... 250 4 0 0.00 0.01 Yes. 

212299 ...................... All Other Metal Ore Mining ....................... 750 17 419 4.19 0.13 No. 

212311 ...................... Dimension Stone Mining and Quarrying ... 500 772 438 4.38 3.15 No. 

212312 ...................... Crushed and Broken Limestone Mining 

and Quarrying.

750 1,318 6,459 64.59 7.64 No. 

212313 ...................... Crushed and Broken Granite Mining and 

Quarrying.

750 138 1,135 11.35 0.97 No. 

212319 ...................... Other Crushed and Broken Stone Mining 

and Quarrying.

500 874 1,732 17.32 3.52 No. 

212321 ...................... Construction Sand and Gravel Mining ...... 500 5,326 6,796 67.96 12.77 No. 

212322 ...................... Industrial Sand Mining .............................. 500 249 4,231 42.31 1.34 No. 

212324 ...................... Kaolin and Ball Clay Mining ...................... 750 7 620 6.20 0.05 No. 

212325 ...................... Clay and Ceramic and Refractory Minerals Mining.500 198 766 7.66 0.78 No. 

212391 ...................... Potash, Soda, and Borate Mineral Mining 750 9 909 9.09 0.05 No. 

212392 ...................... Phosphate Rock Mining ............................ 1,000 8 969 9.69 0.16 No. 

212393 ...................... Other Chemical and Fertilizer Mineral 

Mining.

500 44 1,541 15.41 0.28 No. 

212399 ...................... All Other Nonmetallic Mineral Mining ....... 500 181 957 9.57 0.89 No. 

311942 ...................... Spice and Extract Manufacturing .............. 500 3 920 9.20 0.02 No. 

327310 ...................... Cement Manufacturing .............................. 1,000 40 4,501 45.01 0.43 No. 


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7See https://www2.census.gov/programs-surveys/ 

susb/tables/2017/us_6digitnaics_2017.xlsx for the 

available data. 

TABLE 11—SUMMARY OF SMALL BUSINESS SCREENING DATA—Continued 

[Revenues and costs in $ millions] 

NAICS 

Code NAICS description 

Small standard 

(max. no. of 

employees) 

Number of 

small mines 

Estimated 

revenues all 

small mines 

One percent of 

revenues 

Costs to all 

small mines 

Cost exceeds one 

percent 

327410 ...................... Lime Manufacturing ................................... 750 31 1,350 13.50 0.24 No. 

331313 ...................... Alumina Refining and Primary Aluminum 

Production.

1,000 6 3 0.03 0.04 Yes. 

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

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-aluminumproduction), 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, nonproducing 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

Year Item description Hours per task Respondents 

(mines) 

Burden 

hours 

Hourly rate 

(with Benefits) 

Hour burden 

cost 

($ Millions) 

1 ............... Development of a written safety program ..... 20 5,027 100,540 $65.10 $6.5 

1 ............... Clerical assistance to finalize written program.30 5,027 150,810 31.46 4.7 

2 ............... Annual review, plan revision, and update 

due to changes in workplace activities.

5 5,027 25,135 65.10 1.6 


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TABLE 12—RECORDKEEPING BURDEN OF PROPOSED RULE—Continued 

Year Item description Hours per task Respondents 

(mines) 

Burden 

hours 

Hourly rate 

(with Benefits) 

Hour burden 

cost 

($ Millions) 

3 ............... Annual review, plan revision, and update 

due to changes in workplace activities.

5 5,027 25,135 65.10 1.6 

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: 

• 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; 

• Evaluate the accuracy of MSHA’s 

estimate of the burden of the collection 

of information, including the validity of 

the methodology and assumptions used; 

• Suggest methods to enhance the 

quality, utility, and clarity of the 

information to be collected; and 

• 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. 


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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 

■ 1. The authority citation for part 56 

continues to read as follows: 

Authority: 30 U.S.C. 811. 

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

follows: 

Subpart T—Safety Program For 

Surface Mobile Equipment 

Sec. 

56.23000 Purpose and scope. 

56.23001 Definitions. 

56.23002 Written safety program. 

56.23003 Requirements for written safety 

program. 

56.23004 Record and inspection. 

§ 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. 

§ 56.23001 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface 

metal and nonmetal mines. 

§ 56.23002 Written safety program. 

(a) Each operator 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]. 

§ 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 


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(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. 

§ 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 

■ 3. The authority citation for Part 57 

continues to read as follows: 

Authority: 30 U.S.C. 811. 

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

follows: 

Subpart U—Safety Program for 

Surface Mobile Equipment 

Sec. 

57.23000 Purpose and scope. 

57.23001 Definitions. 

57.23002 Written safety program. 

57.23003 Requirements for written safety 

program. 

57.23004 Record and inspection. 

§ 57.23000 Purpose and scope. 

This subpart requires 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. 

§ 57.23001 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface 

areas of underground metal and 

nonmetal mines. 

§ 57.23002 Written safety program. 

(a) Each operator 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]. 

§ 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. 

§ 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 

■ 5. The authority citation for part 77 

continues to read as follows: 

Authority: 30 U.S.C. 811. 

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

follows: 

Subpart V—Safety Program for Surface 

Mobile Equipment 

Sec. 

77.2100 Purpose and scope. 

77.2101 Definitions. 

77.2102 Written safety program. 

77.2103 Requirements for written safety 

program. 

77.2104 Record and inspection. 

§ 77.2100 Purpose and scope. 

This subpart requires 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. 

§ 77.2101 Definitions. 

The following definitions apply in 

this subpart— 

Responsible person means a person 

with authority and responsibility to 

evaluate and update a written safety 

program for surface mobile equipment. 

Surface mobile equipment means 

wheeled, skid-mounted, track-mounted, 

or rail-mounted equipment capable of 

moving or being moved, and any 

powered equipment that transports 

people, equipment, or materials, 

excluding belt conveyors, at surface coal 

mines and surface work areas of 

underground coal mines. 

§ 77.2102 Written safety program. 

(a) Each operator 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]. 

§ 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 


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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. 

§ 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 

DEPARTMENT OF VETERANS 

AFFAIRS 

38 CFR Part 3 

RIN 2900–AQ95 

Update and Clarify Regulatory Bars to 

Benefits Based on Character of 

Discharge 

AGENCY: Department of Veterans Affairs. 

ACTION: Request for information; 

notification of listening sessions. 

SUMMARY: The Department of Veterans 

Affairs (VA) is requesting information to 

assist in the modification of the 

regulatory framework for discharges 

considered ‘‘dishonorable’’ for VA 

benefit eligibility purposes. On July 10, 

2020, VA published a proposed rule for 

public notice and comment. The 

proposed rule would modify VA 

regulations governing VA character of 

discharge determinations based on 

‘‘willful and persistent misconduct,’’ 

‘‘moral turpitude,’’ and ‘‘homosexual 

acts involving aggravating 

circumstances or other factors affecting 

the performance of duty.’’ In addition, 

the proposed rule would create a 

‘‘compelling circumstances’’ exception 

to certain regulatory bars to benefits in 

order to ensure fair character of 

discharge determinations in light of all 

pertinent factors. Following publication, 

VA received numerous public 

comments. Due to the various and 

differing comments received, VA is 

seeking additional information to help 

inform VA’s development of updated 

character of discharge regulations. 

Additionally, VA is announcing a 

virtual listening session to further seek 

verbal feedback from a variety of entities 

as VA implements this regulation. 

Regardless of attendance at the virtual 

listening session, interested parties are 

invited to submit comments, including 

data and research. 

DATES: Comments on this request for 

information must be received by VA on 

or before October 12, 2021. VA will also 

hold the first public virtual listening 

session on October 5, 2021, and the 

second public virtual listening session 

on October 6, 2021. Each meeting will 

start at 8:50 a.m. and conclude at or 

before 4:15 p.m. Eastern Daylight Time. 

Virtual check-in will begin at 8 a.m. 

ADDRESSES: Comments must be 

submitted through www.Regulations.gov 

and will be available for public viewing, 

inspection, or copies. 

The virtual listening sessions will be 

held virtually as WebEx events and will 

be open to the public to listen on a first 

come, first served basis. Information 

about the meeting and registration to 

speak or listen can be obtained by 

emailing: CODRegistration.VBACO@

va.gov. Virtual attendance will be 

limited to the maximum allowed by 

WebEx. 

FOR FURTHER INFORMATION CONTACT: 

Robert Parks, Chief, Part 3 Forms and 

Regulations (211D), Department of 

Veterans Affairs, 810 Vermont Avenue 

NW, Washington, DC 20420, 202–461– 

9540 (This is not a toll-free telephone 

number). 

SUPPLEMENTARY INFORMATION: 

Background 

On July 10, 2020 (85 FR 41471), VA 

published a proposed rule in the 

Federal Register to amend 38 CFR 3.12 

by updating and clarifying the 

regulatory bars to benefits. Specifically, 

VA proposed to modify the regulatory 

framework for discharges considered 

‘‘dishonorable’’ for VA benefit eligibility 

purposes, such as discharges due to 

‘‘willful and persistent misconduct,’’ 

‘‘an offense involving moral turpitude,’’ 

and ‘‘homosexual acts involving 

aggravating circumstances or other 

factors affecting the performance of 

duty.’’ VA also proposed to extend a 

‘‘compelling circumstances’’ exception 

to certain regulatory bars to benefits in 

order to ensure fair character of 

discharge determinations in light of all 

pertinent factors. 

VA invited interested persons to 

submit written comments on or before 

September 8, 2020. VA received over 70 

comments in response to the proposed 

rule. Over 20 of those comments were 

from organizations and the rest were 

from individual members of the public. 

Those organizations included: (1) 

American Psychological Association, (2) 

Charlotte Center for Legal Advocacy, (3) 

Homeless Advocacy Project, (4) 

Homeless Persons Representation 

Project, Inc., (5) Inner City Law Center, 

(6) Legal Aid Foundation of Los 

Angeles, (7) Lewis B. Puller Veterans 

Benefits Clinic of William & Mary Law 

School, (8) Modern Military Association 

of America, (9) National Law School 

Veterans Clinic Consortium, (10) 

National Organization of Veterans’ 

Advocates, Inc., (11) National Veterans 

Legal Services Program, (12) New York 

State Division of Veterans Services, (13) 

NY Legal Assistance Group, (14) Ohio 

Veterans Law Task Force, (15) Public 

Counsel Center for Veterans 

Advancement, (16) Swords to 

Plowshares, (17) The Jerome N. Frank 

Legal Services Organization, (18) The 

Minority Veterans of America (MVA), 

(19) The National Coalition for 

Homeless Veterans, (20) The National 

Veterans Council for Legal Redress, (21) 

University of Florida Levin College of 

Law Veterans and Servicemembers 

Legal Clinic, (22) Veterans Advocacy 

Project, (23) Veterans Clinic at the 

University of Missouri School of Law, 

(24) Veterans Healthcare Policy 

Institute, (25) Veterans Legal Services, 

and (26) Vietnam Veterans of America. 

Individual comments were also received 

from U.S. Senators Richard Blumenthal, 

Jon Tester, and Sherrod Brown. 

This additional request for 

information, described in more detail 

below, will assist VA in gathering and 

taking into account diverse viewpoints 

on this issue. Responses to this request 

for information will be used to help 

inform VA’s development of updated 

character of discharge regulations. This 

request for information has a written 

comment period of 30 days, during 

which VA invites individuals, groups, 

and entities to reply to the questions 

presented below. VA believes that 30 

days is sufficient to provide comments, 

as the individuals, groups, and entities 

interested in this program likely have 

information and opinions readily 

available or can quickly compile and 

submit such information. Commenters 

are encouraged to provide complete but 

concise responses to the questions 

outlined below. 

VA will also be holding virtual public 

listening sessions on October 5, 2021, 

and October 6, 2021, to provide groups 

and entities an opportunity to share 

additional information. Oral comments, 

testimonies, and technical remarks are 

encouraged to be concise and directed 


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