Examinations of Working Places in Metal and Nonmetal Mines, 36818-36826 [2016-13218]

Agencies

• DEPARTMENT OF LABOR
• Mine Safety and Health Administration

[Federal Register Volume 81, Number 110 (Wednesday, June 8, 2016)]
[Proposed Rules]
[Pages 36818-36826]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-13218]


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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56 and 57

[Docket No. MSHA-2014-0030]
RIN 1219-AB87


Examinations of Working Places in Metal and Nonmetal Mines

AGENCY: Mine Safety and Health Administration, Labor.

ACTION: Proposed rule; notice of public hearings.

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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing 
to amend the Agency's standards for the examination of working places 
in metal and nonmetal (MNM) mines. The purpose of this proposed rule is 
to ensure that mine operators identify and correct conditions that may 
adversely affect miners' safety or health. MSHA is proposing to require 
that an examination of the working place be conducted before miners 
begin work in an area and that the operator notifies miners in the 
working place of any conditions found that may adversely affect their 
safety or health. MSHA is also proposing that the competent person 
conducting the examination sign and date the examination record before 
the end of each shift, that the record includes information regarding 
adverse conditions found and corrective actions taken, and that 
operators make such records available to miners and their 
representatives. The proposal would enhance the quality of working 
place examinations in MNM mines and help assure that violations of 
mandatory health or safety standards are identified and corrected, 
thereby improving protections for miners.

DATES: Comments must be received or postmarked by midnight Eastern Time 
on September 6, 2016.
    Hearing Dates: July 19, 2016, July 21, 2016, July 26, 2016, and 
August 4, 2016. The locations are listed in the Public Hearings section 
in the SUPPLEMENTARY INFORMATION section of this document. Post-hearing 
comments must be received by midnight Eastern Standard Time on 
September 6, 2016.

ADDRESSES: Submit comments and informational materials, identified by 
RIN 1219-AB87 or Docket No. MSHA-2014-0030, by one of the following 
methods:
     Federal E-Rulemaking Portal: https://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-Mail: 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. Sign in at the receptionist's 
desk on the 4th floor East, Suite 4E401.
     Fax: 202-693-9441.
    Information Collection Requirements: Comments concerning the 
information collection requirements of this proposed rule must be 
clearly identified with RIN 1219-AB87 or Docket No. MSHA-2014-0030, and 
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 addressed 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 MSHA.
    Instructions: All submissions must include RIN 1219-AB87 or Docket 
No. MSHA-2014-0030. Do not include personal information that you do not 
want publicly disclosed; MSHA will post all comments without change, 
including any personal information provided.
    Docket: For access to the docket to read comments received, go to 
https://www.regulations.gov or https://www.msha.gov/currentcomments.asp. 
To read background documents, go to https://www.regulations.gov. Review 
the docket 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. EST Monday through Friday, except Federal holidays. 
Sign in at the receptionist's desk on the 4th floor East, Suite 4E401.
    E-Mail Notification: To subscribe to receive an email notification 
when MSHA publishes rules in the Federal Register, go to https://www.msha.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction
    A. Public Hearings
    B. Statutory and Regulatory History
II. Background Information
III. Section-by-Section Analysis
IV. Executive Order 12866: Regulatory Planning and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review
V. Feasibility
VI. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
IX. References

I. Introduction

A. Public Hearings

    MSHA will hold four public hearings on the proposed rule to provide 
the public with an opportunity to present oral statements, written 
comments, and other information on this rulemaking. The public hearings 
will begin at 9 a.m. and end after the last presenter speaks, and in 
any event not later than 5 p.m., on the following dates at the 
locations indicated:

------------------------------------------------------------------------
             Date                     Location          Contact number
------------------------------------------------------------------------
July 19, 2016................  Homewood Suites by         (801) 363-6700
                                Hilton, Salt Lake
                                City-Downtown, 423
                                West 300 South, Salt
                                Lake City, UT 84101.

[[Page 36819]]

 
July 21, 2016................  Hyatt Place                (412) 321-3000
                                Pittsburgh--North
                                Shore, 260 North
                                Shore Drive,
                                Pittsburgh, PA 15212.
July 26, 2016................  Mine Safety and            (202) 693-9440
                                Health
                                Administration
                                Headquarters, 201
                                12th Street, South,
                                Rooms 7W204 & 7W206,
                                Arlington, VA 22202.
August 4, 2016...............  Sheraton Birmingham        (205) 324-5000
                                Hotel, 2101 Richard
                                Arrington Jr.
                                Boulevard North,
                                Birmingham, AL 35203.
------------------------------------------------------------------------

    The hearings will begin with an opening statement from MSHA, 
followed by an opportunity for members of the public to make oral 
presentations. You do not have to make a written request to speak; 
however, persons and organizations wishing to speak are encouraged to 
notify MSHA in advance for scheduling purposes.
    Speakers and other attendees may present information to MSHA for 
inclusion in the rulemaking record. The hearings will be conducted in 
an informal manner. Formal rules of evidence or cross examination will 
not apply.
    A verbatim transcript of the proceedings will be prepared and made 
a part of the rulemaking record. Copies of the transcript will be 
available to the public. The transcript may also be viewed on MSHA's 
Web site at https://arlweb.msha.gov/currentcomments.asp, under Comments 
on Public Rule Making. MSHA will accept post-hearing written comments 
and other appropriate information for the record from any interested 
party, including those not presenting oral statements.

B. Statutory and Regulatory History

    On July 31, 1969, MSHA's predecessor, the Department of the 
Interior's Bureau of Mines, published a final rule (34 FR 12503) 
addressing health and safety standards for Metal and Nonmetallic Open 
Pit Mines; Sand, Gravel, and Crushed Stone Operations; and Metal and 
Nonmetallic Underground Mines. These standards were promulgated 
pursuant to the 1966 Federal Metal and Nonmetallic Mine Safety Act (MNM 
Act). The final rule included some mandatory standards and some 
advisory standards. The final rule at Sec. Sec.  55.18-8, 56.18-8, and 
57.18-8 set forth an advisory standard stating that each working place 
``should be visited by a supervisor or a designated person at least 
once each shift and more frequently as necessary to insure that work is 
being done in a safe manner.''
    The Federal Mine Safety and Health Act of 1977 (Mine Act) amended 
the Federal Coal Mine Health and Safety Act of 1969 (Coal Act) to 
include MNM mines and repealed the MNM Act. The Mine Act retained the 
mandatory standards and regulations promulgated under the Coal Act and 
the MNM Act. In addition, section 301(b)(2) of the Mine Act required 
the Secretary of Labor to establish an advisory committee to review all 
advisory standards under the MNM Act and to either revoke them or make 
them mandatory (with or without revision). On August 17, 1979 (44 FR 
48490), MSHA revised, renumbered, and made mandatory the Agency's 
advisory standards regarding working place examinations. This resulted 
in standards, set forth at Sec. Sec.  55.18-2, 56.18-2, and 57.18-2, 
that mirrored the language that currently exists at Sec. Sec.  56.18002 
and 57.18002.
    On January 29, 1985 (50 FR 4048), MSHA combined and recodified the 
standards in 30 CFR parts 55 and 56 into a single part 56 that applies 
to all surface MNM mines. As a part of this effort, the MNM working 
place examination standards were redesignated as 30 CFR 56.18002 and 
57.18002. No change was made to the language of the standards.

II. Background Information

    Mining continues to be one of the nation's most hazardous 
occupations. Mining operations have dynamic work environments where 
working conditions can change rapidly and without warning. Under the 
Mine Act, mine operators with the assistance of the miners have the 
primary responsibility to prevent the existence of unsafe and 
unhealthful conditions and practices. Compliance with safety and health 
standards and adoption of safe work practices provide a substantial 
measure of protection against hazards that cause accidents, injuries, 
and fatalities. MSHA has determined that effective accident prevention 
strategies include an examination of working places.
    Under existing Sec. Sec.  56.18002 and 57.18002, MSHA requires that 
a competent person designated by the operator examine each working 
place at least once each shift for conditions that may adversely affect 
safety or health, that the operator promptly initiate appropriate 
action to correct such conditions, and that the operator keep records 
for one year that the examinations were conducted. These standards also 
require the operator to withdraw persons from an area where conditions 
may present an imminent danger, except those persons referred to in 
section 104(c) of the Mine Act, until the danger is abated.
    The proposal would require that operators promptly notify miners of 
any adverse conditions found that may adversely affect safety or 
health. It would also require that the examination record include 
additional information that MSHA believes would help assure that 
adverse conditions are identified and corrected, and that the record be 
made available to miners and their representatives so that they can be 
made aware of these conditions. MSHA is proposing that the record 
include: (1) The locations of all areas examined and a description of 
each condition found that could adversely affect the safety or health 
of miners; and (2) a description of the corrective action and date the 
corrective action was taken. The proposal would also require that the 
competent person who conducted the examination sign and date the 
examination record before the end of each shift.
    MSHA believes that making and maintaining a record of adverse 
conditions found and corrective actions taken would help mine operators 
and miners and their representatives become more aware of potential 
dangers and more proactive in their approach to correcting these issues 
before they cause or contribute to an accident, injury, or fatality. 
Under this proposed rule, MSHA anticipates that improved communication 
at the mine site about adverse conditions and the best practices used 
to correct the conditions will encourage awareness and participation at 
all levels, fostering a culture of safety and health at the mine.
    In developing the proposed rule, MSHA reviewed accident 
investigation reports and the Agency's enforcement data from January 
2010 through mid-December 2015. During this period, 122 miners were 
killed in 110 accidents at MNM mines. MSHA conducted investigations 
into each of these 110 fatal accidents and issued 252 citations and 
orders for violations of 95 different mandatory safety and health 
standards. MSHA's analysis of the accident investigations further 
revealed that in

[[Page 36820]]

more than 60 percent of the fatal accidents (67 out of 110), the Agency 
had issued at least one citation or order for a violation of a 
mandatory safety or health standard identified in MSHA's Rules to Live 
By (RTLB) initiative, launched in February 2010. Violations of the 19 
MNM RTLB standards represent the conditions or practices that have been 
most frequently cited as causing or contributing to fatal accidents.
    At this point, MSHA believes that most operators and miners should 
be familiar with the RTLB standards. Under the proposal, the additional 
communication that would be required by operators (1) notifying miners 
of conditions that violate RTLB standards and other adverse conditions 
and (2) recording additional information about these conditions in the 
examination record should further serve to educate miners, their 
representatives, and operators about adverse conditions and encourage 
prompt corrective action. In this way, MSHA believes the proposal will 
help prevent fatalities and other accidents.
    Over the years, MSHA has issued Program Policy Letters (PPL) 
regarding working place examinations, including PPL No. P94-IV-5 
(1994); PPL No. P96-IV-2 (1996); PPL No. P10-IV-3 (2010); PPL No. P14-
IV-01 (2014); and PPL P15-IV-01 (July 22, 2015). The PPLs are MSHA's 
guidance and best practices regarding compliance with the existing 
standards. MSHA inspectors, miners, mine operators, trainers, and the 
mining community use these PPLs as guidance in determining how best to 
comply with MSHA's standards on working place examinations.
    As discussed in PPL No. P15-IV-01 and other PPLs, MSHA believes 
that, for a record to provide meaningful information, it should contain 
the following: (1) The date of the examination; (2) the examiner's 
name; and (3) the working places examined. As reflected in the PPLs, 
MSHA also believes that, as a best practice, the record should include 
a description of the conditions found that adversely affect safety or 
health.
    Effective working place examinations are a fundamental accident 
prevention tool; they allow operators to find and fix adverse 
conditions and violations of health and safety standards before they 
cause injury or death to miners. MSHA believes that notifying miners of 
adverse conditions in their working place allows the miner to take 
appropriate precautions until the adverse condition is corrected. 
Records alert operators to take prompt corrective action. The following 
are recent examples of adverse conditions that existed for more than 
one shift prior to causing or contributing to a fatal accident.\1\ MSHA 
believes that, had the person making the examination noted these 
conditions prior to miners working in an area, had the conditions been 
recorded, and had the operator warned miners about these conditions, 
the accidents may have been prevented.
---------------------------------------------------------------------------

    \1\ Examples of accidents cited may be in litigation.
---------------------------------------------------------------------------

    In March 2011, a contract supervisor was fatally injured when he 
was struck by a section of pipe. He was supervising the operation of 
joining two ends of pipe using a pipe-fusion machine. The positioning 
cylinder was defective and had been removed from the pipe-fusion 
machine eight days prior to the accident. Since the positioning 
cylinder was removed, the machine could not hold the pipe in place. 
MSHA believes that, had a competent person identified and recorded the 
adverse condition before miners used the machine, the operator could 
have warned miners and removed the machine from service until the 
cylinder was repaired and replaced, thus preventing the fatal accident.
    In January 2015, a fatal accident occurred at a phosphate rock 
mine. A heavy equipment operator was operating an excavator near a 
water-filled ditch when the excavator tipped on its side, into the 
water, trapping the miner inside the nearly submerged cab. The 
equipment operator was rescued from the cab and hospitalized, but died 
later that day. Three days prior to the accident, several inches of 
rain fell in the area causing the ditch to fill with water and 
overflow, making the ditch invisible to persons working in the area. 
MSHA believes that had a competent person conducted a workplace 
examination before miners started working in the area the hazard would 
have been identified; notification to affected miners of the water-
filled ditch would have made them aware of the hazardous condition; and 
a record of the hazardous condition would have prompted corrective 
action and prevented the fatality.
    Another fatal accident in March 2015 involved a haul truck driver 
at a sand and gravel mine. The driver was driving on an elevated 
roadway on an embankment next to the mine's dredge pond. The roadway, 
which was recently established, had no berm as a barrier to the drop-
off as required by MSHA standards. The truck went off the roadway into 
the pond. The driver was hospitalized and died two days later. MSHA 
believes that the operator should have recognized during a workplace 
examination that a berm was not in place along the banks of the 
elevated haul road and warned miners before miners started work in that 
area. MSHA also believes that a record of this hazard likely would have 
prompted corrective action and that these actions would have prevented 
the accident that occurred.
    From 2013 through 2015, there were 68 fatalities at MNM mines, as 
compared with 54 fatalities in the preceding three years (2010-2012). 
To reduce fatalities at MNM mines, MSHA has engaged, and continues to 
share best practices and training materials with stakeholders in the 
MNM industry. The Agency has provided stakeholders with guidance and 
compliance assistance materials to help mine operators find and fix 
violations of mandatory safety and health standards. These efforts 
included stakeholder conferences, online training sessions, and a 
``walk and talk'' safety initiative in which MSHA's inspectors and 
field staff provided operators and miners information about potentially 
hazardous tasks and conditions, as well as best mining practices to 
prevent accidents, injuries, and fatalities. These efforts, however, 
have not been sufficient to address the increase in fatalities that 
began in 2013.
    This proposed rule is intended to strengthen MSHA's requirements 
for MNM working place examinations to help prevent the kind of 
accidents discussed above. MSHA believes that the proposed requirements 
that operators examine working places before miners begin work in an 
area and notify miners of any adverse conditions that may adversely 
affect safety or health would assure that miners and operators are 
aware of hazards and take proactive actions to correct hazards. In 
addition, the record required under the proposed rule would help assure 
that adverse conditions are identified and corrected promptly.

III. Section-by-Section Analysis

    This proposed rule would help reduce common causes of accidents, 
injuries, and fatalities at MNM mines by enhancing the effectiveness of 
working place examinations.

A. Sections 56.18002(a) and 57.18002(a)--Requirements for Conducting 
Working Place Examinations

    Proposed Sec. Sec.  56.18002(a) and 57.18002(a) would require an 
examination of each working place at least once each shift, before work 
begins in an area, for conditions that may adversely affect the safety 
or health of miners.

[[Page 36821]]

    Existing Sec. Sec.  56.2 and 57.2 define the phrase ``working 
place'' as: ``any place in or about a mine where work is being 
performed.'' In PPL No. P15-IV-01, MSHA clarifies that ``working 
place'' applies to all locations at a mine where miners work in the 
extraction or milling processes. The Agency further explains that this 
includes areas where work is performed on an infrequent basis, such as 
areas accessed primarily during periods of maintenance or clean-up, if 
miners will be performing work in these areas during the shift. As 
discussed in previous guidance, the ``working place'' would not include 
roads not directly involved in the mining process, administrative 
office buildings, parking lots, lunchrooms, toilet facilities, or 
inactive storage areas. Operators would be required to examine 
isolated, abandoned, or idle areas of mines or mills only when miners 
have to perform work in these areas during the shift.
    The existing standards for examinations of working places in MNM 
mines in Sec. Sec.  56.18002(a) and 57.18002(a) require that a 
competent person designated by the mine operator examine each working 
place at least once per shift for conditions that may adversely affect 
safety or health and promptly initiate appropriate action to correct 
such conditions. While the existing standards permit the examination to 
be made at any time during the shift, MSHA is proposing that the 
examination start before work begins in an area. MSHA believes that the 
proposal is consistent with the remedial intent of the Mine Act and the 
existing standards. MSHA also believes that the proposed requirement 
that operators conduct an examination of working places before work 
begins in an area would provide better protection of miners. MSHA 
requests comments on whether the Agency should require that 
examinations be conducted within a specified time period, e.g., 2 
hours, before miners start work in an area. Please provide specific 
rationale for your position, and include the merits for your argument.
    Like the existing rule, the proposed rule would require that the 
examination be made by a competent person designated by the mine 
operator. In PPL No. P15-IV-01, MSHA emphasized that the competent 
person designated by the operator to conduct working place examinations 
should be able to recognize hazards and adverse conditions that are 
expected or known to occur in a specific work area or that are 
predictable to someone familiar with the mining industry. MSHA states 
in various PPLs that, although a best practice is for a foreman or 
other supervisor to conduct the examination in most cases, an 
experienced non-supervisory person may also be ``competent.'' The PPLs 
emphasized that a competent person designated by the operator under 
Sec. Sec.  56.18002(a) and 57.18002(a) must already have the experience 
and training to be able to perform the examination and identify safety 
and health hazards.
    MSHA requests comment on whether the Agency should require that the 
competent person conducting a working place examination have a minimum 
level of experience or particular training or knowledge to identify 
workplace hazards. The Agency requests information on whether a 
competent person should have a certain ability, experience, knowledge, 
or training that would enable the person to recognize conditions that 
could adversely affect safety or health. Please provide the rationale, 
including supporting documentation.
    Proposed Sec. Sec.  56.18002(a)(1) and 57.18002(a)(1) incorporate 
the existing requirements in Sec. Sec.  56.18002(a) and 57.18002(a) 
that the mine operator promptly initiate action to correct conditions 
that may adversely affect safety or health that are found during the 
examination, and would add a new requirement that the operator promptly 
notify the miners in any affected areas of any adverse conditions found 
during the working place examination. MSHA believes that miners need to 
know about adverse conditions in their working place so that they can 
take precautions to avoid an accident or injury.
    Proposed Sec. Sec.  56.18002(a)(2) and 57.18002(a)(2) are 
substantively the same as existing Sec. Sec.  56.18002(c) and 
57.18002(c). These provisions would require that, if the competent 
person finds conditions that may present an imminent danger, these 
conditions must be brought to the immediate attention of the operator. 
The operator must immediately withdraw all persons from the affected 
area until the danger is abated, except persons referred to in section 
104(c) of the Mine Act who are necessary to eliminate the imminent 
danger.
    Imminent danger is defined in section 3(j) of the Mine Act as the 
existence of any condition or practice which could reasonably be 
expected to cause death or serious physical harm before such condition 
or practice can be abated. From January 2010 through December 2015, 
MSHA has issued 1,819 imminent danger orders under section 107(a) of 
the Mine Act in MNM mines.

B. Sections 56.18002(b) and 57.18002(b)--Requirements for Records of 
Working Place Examinations

    MSHA believes that, to be effective, working place examinations 
must be timely, made by a competent person, and made in the areas where 
miners work. MSHA is proposing that working place examination records 
include additional information the Agency believes is necessary to 
accomplish the intent of the standards.
    The proposed rule would add new requirements addressing the 
contents of the examination record. The introductory text to proposed 
Sec. Sec.  56.18002(b) and 57.18002(b) would continue to require that a 
record of the working place examination be made. The proposed rule 
would add the requirement that the competent person who conducted the 
examination sign and date the record before the end of the shift for 
which the examination was made. Proposed Sec. Sec.  56.18002(b)(1) and 
57.18002(b)(1) would require the record to include the locations 
examined and a description of any adverse conditions found. MSHA 
believes that this proposed requirement for a description of the 
adverse conditions found would expedite the correction of these 
conditions. Proposed Sec. Sec.  56.18002(b)(2)(i) through (iii) and 
57.18002(b)(2)(i) through (iii) are new provisions; they would require 
that, if any adverse condition is found, the record must include:
     A description of the action taken to correct the adverse 
condition,
     The date that the corrective action was taken, and
     The name of the person who made the record of the 
corrective action and the date the corrective action was taken. (MSHA 
expects that the person taking the corrective action would make this 
record.)
    The proposed rule would redesignate the requirement for 
recordkeeping in existing Sec. Sec.  56.18002(b) and 57.18002(b) as 
proposed Sec. Sec.  56.18002(b)(3) and 57.18002(b)(3). Existing 
Sec. Sec.  56.18002(b) and 57.18002(b) require that a record that such 
working place examinations were conducted shall be kept by the operator 
for a period of one year and shall be made available for review by the 
Secretary or his authorized representative. The proposed rule would add 
new requirements that the record also be made available to miners and 
their representatives and that a copy be provided to the Secretary or 
his authorized representative or a miners' representative when they 
request a copy. MSHA solicits comments on these proposed requirements.

[[Page 36822]]

C. Request for Comments

    Please provide any other data or information that would be useful 
to MSHA as the Agency evaluates its proposal related to working place 
examinations in MNM mines. Please provide the rationale and sufficient 
detail in your comments to enable proper Agency review and 
consideration. Where possible, include specific examples to support the 
rationale and other relevant information, including past experience, 
studies and articles, and standard professional practices. Include any 
related cost and benefit data with your submission, and information on 
economic and technological feasibility.
    Based data reported on MSHA Form 7000-2, 90 percent of MNM mines 
employ fewer than 20 miners. In addition, almost all (98 percent) of 
MNM mines are surface operations. Over half of all MNM mines are 
surface sand and gravel or crushed stone operations that operate 
intermittently or seasonally and employ five or fewer miners. For this 
reason, MSHA is particularly interested in comments related to the 
impact of the proposed rule on small mines, particularly comments and 
suggestions on alternatives and best practices that small mines might 
use to implement more effective working place examinations.

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

    Executive Orders 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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    Under Executive Order (E.O.) 12866, the Agency must determine 
whether a regulatory action is ``significant'' and subject to review by 
the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866 
defines a ``significant regulatory action'' as an action that is likely 
to result in a rule: (1) Having an annual effect on the economy of $100 
million or more, or adversely and materially affecting a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or state, local, or tribal governments or communities 
(also referred to as ``economically significant''); (2) creating 
serious inconsistency or otherwise interfering with an action taken or 
planned by another agency; (3) materially altering the budgetary 
impacts of entitlements, grants, user fees, or loan programs or the 
rights and obligations of recipients thereof; or (4) raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in this Executive Order.
    Based on its assessment of the costs and benefits, MSHA has 
determined that this proposed rule would not have an annual effect of 
$100 million or more on the economy and, therefore, would not be an 
economically significant regulatory action pursuant to section 3(f) of 
E.O. 12866. MSHA requests comments on all cost and benefit estimates 
presented in this preamble and on the data and assumptions the Agency 
used to develop estimates.

A. Population at Risk

    The proposed rule would apply to all MNM mines in the United 
States. In 2014, there were approximately 11,800 MNM mines employing 
145,800 miners, excluding office workers, and 75,800 contractors 
working at MNM mines.
    Table 1 presents the number of MNM mines and employment by mine 
size.

                Table 1--MNM Mines and Employment in 2014
------------------------------------------------------------------------
                                                               Total
                                                           employment at
                Mine size                  No. of mines       mines,
                                                             excluding
                                                          office workers
------------------------------------------------------------------------
1-19 Employees..........................          10,599          52,328
20-500 Employees........................           1,162          73,253
501+ Employees..........................              26          20,186
Contractors.............................  ..............          75,762
                                         -------------------------------
    Total...............................          11,787         221,529
------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2) August 26, 2015.

    The U.S. Department of the Interior (DOI) estimated the value of 
the U.S. mining industry's MNM output in 2014 to be $77.6 billion.\2\ 
Table 2 presents the hours worked and revenue produced at MNM mines by 
mine size.
---------------------------------------------------------------------------

    \2\ Production revenue estimates are from DOI, U.S. Geological 
Survey (USGS), Mineral Commodity Summaries 2015, February 2015, page 
8.

              Table 2--MNM Total Hours and Revenues in 2014
------------------------------------------------------------------------
                                            Total hours     Revenue (in
                Mine size                  reported for     millions of
                                               year          dollars)
------------------------------------------------------------------------
1-19 Employees..........................      86,704,486         $23,539
20-500 Employees........................     156,402,789         $42,461
501+ Employees..........................      42,730,947         $11,600
                                         -------------------------------

[[Page 36823]]

 
    Total...............................     285,838,222         $77,600
------------------------------------------------------------------------
Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA
  Form 7000-2) and estimated DOI reported mine revenues for 2014 by mine
  size.

B. Benefits

    The proposed rule would require additional recordkeeping provisions 
to assure that adverse conditions are recorded and corrected. The 
proposed rule would provide for more detailed examination records that 
include essential information that the operator can use to correct 
recognized hazards and protect miners. The proposed provisions to 
record the adverse conditions found during the examinations and the 
corrective actions taken to mitigate the hazards, and to notify miners 
of the adverse conditions that may adversely affect safety or health, 
would better achieve the protections intended under the existing 
requirements. The additional information recorded in the examination 
records would assist MSHA, mine operators, and miners in focusing 
efforts on correcting hazardous conditions.
    MSHA is unable to quantify the benefits from this proposed 
rulemaking, including the proposed provisions that an examination of 
the working place be conducted before miners begin work in an area; 
that the operator notify miners in the working place of any conditions 
found that may adversely affect their safety or health; and that the 
examination record include a description of the adverse conditions 
found and the corrective actions taken. MSHA anticipates, however, that 
there would be benefits from the proposed requirements, such as 
expedited correction of adverse conditions, which would be expected to 
result in fewer injuries and fatalities. MSHA requests information and 
data on the benefits from this proposed rulemaking. Please be specific 
to facilitate any benefits quantification that may be possible.
    Net benefits under MSHA's current analysis would be negative (zero 
quantified benefits minus quantified costs). MSHA also believes that 
there would be a financial benefit to MNM mine operators who conduct 
working place examinations to find and fix adverse conditions and 
violations of health and safety standards before these conditions cause 
injury or death. Mine operators who conduct effective working place 
examinations could achieve a financial benefit from reduced penalties. 
From January 2010 through December 2015, penalties for MNM mine 
operators were $152 million for violations of all mandatory safety and 
health standards.

C. Compliance Costs

    The quantified cost associated with this proposed rule would be the 
additional cost for the expanded recordkeeping requirements. Some mine 
operators already conduct and record working place examinations that 
satisfy the proposed requirements and would have little or no 
additional cost. Many adverse conditions found during the working place 
examination are corrected immediately before miners have an opportunity 
to encounter the condition; therefore, MSHA also believes that the cost 
associated with examining areas before miners begin work in that area 
and with notifying miners of any adverse conditions would be de 
minimis. MSHA requests information and data on the costs of this 
proposed rulemaking.
    For the purpose of this analysis, MSHA estimates that the competent 
person making the record of the examination of working places would 
earn $31.14 (including benefits). The wage rate is from U.S. Metal and 
Industrial Mineral Mine Salaries, Wages, and Benefits--2012 Survey 
Results, InfoMine USA, Inc., 2012. MSHA updated rates from 2012 to 2014 
for inflation using a percent change of 3.8 percent derived from the 
BLS Employment Cost Index (CIU2010000405000I), total compensation for 
private industry workers in construction, extraction, farming, fishing, 
and forestry occupations (Index available at https://data.bls.gov/timeseries/CIU2010000405000I).
    MSHA also estimates that--
     Mines with 1-19 employees operate one shift per day, 300 
days per year; and
     Mines with 20+ employees operate two shifts per day, 300 
days per year.

    MSHA recognizes that there are many seasonal and intermittent mines 
that would be covered by this proposed rule. MSHA requests information 
and data on the Agency's estimates on the number of days per year a 
mine operates; the number of working place examinations made each 
shift; the number of competent persons required to conduct multiple 
examinations during a single shift; the amount of time required to 
record the examination and record corrective actions taken; and the 
number of shifts per day, by mine size.
Records of Working Place Examinations
    The proposed rule would revise existing Sec. Sec.  56.18002(b) and 
57.18002(b) by adding requirements that the record of the examination 
include the locations of all areas examined and a description of each 
adverse condition found, and that the competent person conducting the 
examination sign and date this record before the end of the shift for 
which the examination was made. Also, if an adverse condition is found, 
the record must include a description of the actions taken to correct 
the adverse condition, the date that corrective action was taken, and 
the name of the person updating the record as well as the date the 
record was updated. MSHA expects that the person taking the corrective 
action would update the record on completion of the corrective action. 
MSHA has no data on the number of corrective actions that would be 
recorded under this proposed rule. However, the Agency believes that 
the time to record the corrective actions would be minimal at best.
    MSHA estimates that it will take a competent person approximately 5 
additional minutes to make the record after each examination. MSHA 
estimates that the annual cost of making this record for all MNM mines 
is approximately $10.1 million:
     $8.3 million in mines with 1-19 employees (10,599 mines x 
1 exam/day x 300 days/yr x 5 mins x $31.14/hr);
     $1.8 million in mines with 20-500 employees (1,162 mines x 
2 exams/day x 300 days/yr x 5 mins x $31.14/hr); and
     $40,482 in mines with 501+ employees (26 mines x 2 exams/
day x 300 days/yr x 5 mins x $31.14/hr).
Discounting
    Discounting is a technique used to apply the economic concept that 
the preference for the value of money decreases over time. In this 
analysis,

[[Page 36824]]

MSHA provides cost totals at zero, 3, and 7 percent discount rates. The 
zero percent discount rate is referred to as the undiscounted rate. 
MSHA used the Excel Net Present Value (NPV) function to determine the 
present value of costs and computed an annualized cost from the present 
value using the Excel PMT function.\3\ The negative value of the PMT 
function provides the annualized cost over 10 years at a 3 and 7 
percent discount rate.
---------------------------------------------------------------------------

    \3\ Office of Management and Budget, Office of Information and 
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked 
Questions, February 7, 2011. [https://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf.]
---------------------------------------------------------------------------

Summary of Costs
    MSHA estimates that the total undiscounted cost of the proposed 
rule over a 10-year period would be approximately $101.0 million, $86.2 
million at a 3 percent rate, and $70.9 million at a 7 percent rate. The 
total undiscounted cost annualized over 10 years would be approximately 
$10.1 million per year, $9.8 million per year at a 3 percent rate, and 
$9.4 million per year at a 7 percent rate.

V. Feasibility

A. Technological Feasibility

    The proposed rule contains recordkeeping requirements; the proposed 
rule is not technology-forcing. MSHA concludes that the rule is 
technologically feasible.

B. Economic Feasibility

    MSHA has traditionally used a revenue screening test--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. The proposed rule is projected to cost 
approximately $10.1 million per year and the MNM industry has estimated 
annual revenues of $77.6 billion, which is less than one percent of 
revenues. MSHA concludes that the proposed rule would be economically 
feasible for the MNM mining industry.

VI. Regulatory Flexibility Analysis and Small Business Regulatory 
Enforcement Fairness Act

    Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), MSHA has analyzed the impact of the proposed rule on small 
entities. Based on that analysis, MSHA certifies that the 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 
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's (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. MSHA has not established an alternative definition and, 
therefore, must use SBA's definition. The SBA defines a small entity in 
the mining industry as an establishment with 500 or fewer employees.
    MSHA has also examined the impact of the proposed rule on mines 
with fewer than 20 employees, which MSHA and the mining community have 
traditionally referred to as ``small mines.'' These small mines differ 
from larger mines not only in the number of employees, but also in 
economies of scale in material produced, in the type and amount of 
production equipment, and in supply inventory. Therefore, the impact of 
MSHA's rules and the costs of complying with them will also tend to 
differ for these small mines. This analysis complies with the 
requirements of the RFA for an analysis of the impact on ``small 
entities'' using both SBA's definition for small entities in the mining 
industry and MSHA's traditional definition.

B. Factual Basis for Certification

    MSHA initially evaluates the impacts on small entities by comparing 
the estimated compliance costs of a rule for small entities in the 
sector affected by the rule to the estimated revenues for the affected 
sector. When estimated compliance costs are less than one percent of 
the estimated revenues, the Agency believes it is generally appropriate 
to conclude that there is no significant economic impact on a 
substantial number of small entities. When estimated compliance costs 
exceed one percent of revenues, MSHA investigates whether further 
analysis is required. MSHA projects that the proposed compliance costs 
of $10.1 million for MNM mines with 1 to 500 employees is less than one 
percent of the $66 billion revenue of these mines in 2014. Proposed 
compliance costs for MNM mines with 1 to 19 employees is $8.3 million, 
which is less than one percent of the $23.5 billion revenue of these 
mines in 2014.

VII. Paperwork Reduction Act of 1995

A. Summary

    This proposed rule contains changes that affect the burden in an 
existing paperwork package with OMB Control Number 1219-0089. MSHA 
estimates that the proposed rule will result in 324,375 additional 
burden hours with an associated additional cost of approximately $10.1 
million annually. MSHA requests information and data on the Agency's 
estimates used to calculate the additional burden hours in the 
information collection package for this proposed rule.
Records of Working Place Examinations
    Proposed Sec. Sec.  56.18002(b)(1) and (2) and 57.18002(b)(1) and 
(2) would revise the existing provisions in Sec. Sec.  56.18002(b) and 
57.18002(b) by requiring competent persons to include in the record of 
the examination: (1) The locations of all areas examined, (2) a 
description of any adverse condition found, (3) a description of the 
actions taken to correct the adverse condition, and (4) the date that 
corrective action was taken. The competent person must sign and date 
this record before the end of the shift for which the examination was 
made. Also, if the record is updated, it must include the date and name 
of the person updating the record.
    MSHA estimates that a MNM competent person who conducts working 
place examinations earns $31.14 an hour (includes benefits, see cost 
section above). MSHA estimates that--
     Mines with 1-19 employees operate one shift per day, 300 
days per year;
     Mines with 20-500 employees operate two shifts per day, 
300 days per year; and
     Mines with 501+ employees operate two shifts per day, 300 
days per year.
    MSHA's estimates of MNM mine operators' additional annual burden 
hours and burden hour costs for examination records are presented 
below.
Additional Burden Hours
     10,599 mines (with 1-19 employees) x 1 exam x 300 days x 5 
min = 264,975 hr
     1,162 mines (with 20-500 employees) x 2 exams x 300 days x 
5 min = 58,100 hr
     26 mines (with >500 employees) x 2 exams x 300 days x 5 
min = 1,300 hr
     Total Burden Hours = 324,375 hr
Additional Burden Hour Costs
     Total Burden Hour Costs = 324,375 hr x $31.14/hr = 
$10,101,038

    There are no other associated burden hour costs because the 
proposed rule

[[Page 36825]]

only adds documentation requirements to a record already required by 
existing standards.

B. Procedural Details

    The information collection package for this proposed rule has been 
submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) 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.

VIII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the proposed rule under the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that 
this proposed rule does not include any federal mandate that may result 
in increased expenditures by State, local, or tribal governments; nor 
will it increase private sector expenditures by more than $100 million 
(adjusted for inflation) in any one year or significantly or uniquely 
affect small governments. 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 this 
proposed rule will have no 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 Executive Order (E.O.) 12630 requires Federal agencies 
to ``identify the takings implications of proposed regulatory actions . 
. . .'' MSHA has determined that this proposed rule does 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 Executive Order (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 this proposed rule 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.

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

    MSHA has determined that this proposed rule will have no adverse 
impact on children. Accordingly, E.O. 13045 requires no further Agency 
action or analysis.

F. Executive Order 13132: Federalism

    MSHA has determined that this proposed rule does not have 
federalism implications because it will not have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. Accordingly, 
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 this proposed rule does not have tribal 
implications because it will not have substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes. 
Accordingly, 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

    Executive Order 13211 requires agencies to publish a statement of 
energy effects when a rule has a significant energy action that 
adversely affects energy supply, distribution, or use. MSHA has 
reviewed this proposed rule for its energy effects because the proposed 
rule applies to the metal and nonmetal mining sector. Although this 
proposed rule will result in yearly costs of approximately $10.1 
million to the metal and nonmetal mining industry, only the impact on 
uranium mines is applicable in this case. MSHA data show only three 
active uranium mines in 2014. The Energy Information Administration's 
annual uranium report for 2014 \4\ shows 4.7 million pounds at an 
average price of $39.17, for sales of approximately $185.9 million. 
Using average annual costs, the impact to all active uranium mine 
operators is less than $4,000. 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.
---------------------------------------------------------------------------

    \4\ https://www.eia.gov/uranium/production/annual/pdf/dupr.pdf, 
page 6.
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I. 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. MSHA has determined that the 
proposed rule would not have a significant economic impact on a 
substantial number of small entities.

IX. References

    Salzer, Krista Noyes, survey results compilation ``2012 U.S. 
Coal Mines Salaries, Wages, and Benefits--2012, U.S. Metal and 
Industrial Mineral Mine Salaries, Wages, and Benefits'', InfoMine 
USA, Inc.
    U.S. Department of the Interior, U.S. Geological Survey, Mineral 
Commodity Summaries 2015, February 2015, page 8.
    U.S. Department of Labor, Bureau of Labor Statistics, Employment 
Cost Index CIU2010000405000I, total compensation for private 
industry workers in construction, extraction, farming, fishing, and 
forestry occupations, Index.
    U.S. Energy Information Administration, Independent Statistics & 
Analysis: Domestic Uranium Production Report 2014, April 2015.
    U.S. Office of Management and Budget, Office of Information and 
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked 
Questions, February 7, 2011.

List of Subjects in 30 CFR Parts 56 and 57

    Explosives, Fire prevention, Hazardous substances, Metals, Mine

[[Page 36826]]

safety and health, Reporting and recordkeeping requirements.

Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of 
the Federal Mine Safety and Health Act of 1977, as amended by the Mine 
Improvement and New Emergency Response Act of 2006, MSHA is proposing 
to amend chapter I of title 30 of the Code of Federal Regulations as 
follows:

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

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

    Authority: 30 U.S.C. 811.

0
2. Revise Sec.  56.18002 to read as follows:


Sec.  56.18002  Examination of working places.

    (a) A competent person designated by the operator shall examine 
each working place at least once each shift, before miners begin work 
in that place, for conditions that may adversely affect safety or 
health.
    (1) The operator shall promptly notify miners in any affected areas 
of any adverse conditions found that may adversely affect safety or 
health and promptly initiate appropriate action to correct such 
conditions.
    (2) Conditions noted by the person conducting the examination that 
may present an imminent danger shall be brought to the immediate 
attention of the operator who shall withdraw all persons from the area 
affected (except persons referred to in section 104(c) of the Federal 
Mine Safety and Health Act of 1977) until the danger is abated.
    (b) A record of each examination shall be made and the person 
conducting the examination shall sign and date the record before the 
end of the shift for which the examination was made.
    (1) The record shall include the locations of all areas examined 
and a description of each condition found that may adversely affect the 
safety or health of miners.
    (2) The record also shall include:
    (i) A description of the corrective action taken,
    (ii) The date that the corrective action was taken, and
    (iii) The name of the person who made the record of the corrective 
action and the date the record of the corrective action was made.
    (3) The operator shall maintain the examination records for at 
least one year; shall make the records available for inspection by 
authorized representatives of the Secretary and the representatives of 
miners; and shall provide these representatives a copy on request.

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

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

    Authority:  30 U.S.C. 811.

0
4. Revise Sec.  57.18002 to read as follows:


Sec.  57.18002  Examination of working places.

    (a) A competent person designated by the operator shall examine 
each working place at least once each shift, before miners begin work 
in that place, for conditions that may adversely affect safety or 
health.
    (1) The operator shall promptly notify miners in any affected areas 
of any adverse conditions found that may adversely affect safety or 
health and promptly initiate appropriate action to correct such 
conditions.
    (2) Conditions noted by the person conducting the examination that 
may present an imminent danger shall be brought to the immediate 
attention of the operator who shall withdraw all persons from the area 
affected (except persons referred to in section 104(c) of the Federal 
Mine Safety and Health Act of 1977) until the danger is abated.
    (b) A record of each examination shall be made and the person 
conducting the examination shall sign and date the record before the 
end of the shift for which the examination was made.
    (1) The record shall include the locations of all areas examined 
and a description of each condition found that may adversely affect the 
safety or health of miners.
    (2) The record also shall include:
    (i) A description of the corrective action taken,
    (ii) The date that the corrective action was taken, and
    (iii) The name of the person who made the record of the corrective 
action and the date the record of the corrective action was made.
    (3) The operator shall maintain the examination records for at 
least one year; shall make the records available for inspection by 
authorized representatives of the Secretary and the representatives of 
miners; and shall provide these representatives a copy on request.

[FR Doc. 2016-13218 Filed 6-7-16; 8:45 am]
BILLING CODE 4520-43-P