Examinations of Working Places in Metal and Nonmetal Mines, 7680-7695 [2017-00832]

Download as PDF 7680 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations §§ 70.45–70.52 [Reserved] Subpart D—Public Records and Filings mstockstill on DSK3G9T082PROD with RULES § 70.53 Office of Labor-Management Standards. (a) The following documents in the custody of the Office of LaborManagement Standards are public information available for inspection and/or purchase of copies in accordance with paragraphs (b) and (c) of this section. (1) Data and information contained in any report or other document filed pursuant to sections 201, 202, 203, 211, 301 of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524–28, 530, 79 Stat. 888, 73 Stat. 530, 29 U.S.C. 431–433, 441, 461). (2) Data and information contained in any report or other document filed pursuant to the reporting requirements of 29 CFR part 458, which are the regulations implementing the standards of conduct provisions of the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign Service Act of 1980, 22 U.S.C. 4117. The reporting requirements are found in 29 CFR 458.3. (3) Data and information contained in any report or other document filed pursuant to the Congressional Accountability Act of 1995, 2 U.S.C. 1351, 109 Stat. 19. (b) The documents listed in paragraph (a) of this section are available from: U.S. Department of Labor, Office of Labor-Management Standards, Public Disclosure Room, N–1519, 200 Constitution Avenue NW., Washington, DC 20210. Reports filed pursuant to section 201 of the Labor-Management Reporting and Disclosure Act of 1959 and pursuant to 29 CFR 458.3 implementing the Civil Service Reform Act of 1978 and the Foreign Service Act of 1980 for the year 2000 and thereafter are also available at http://www.unionreports.dol.gov. (c) Pursuant to 29 U.S.C. 435(c) which provides that the Secretary will by regulation provide for the furnishing of copies of the documents listed in paragraph (a) of this section, upon payment of a charge based upon the cost of the service, these documents are available at a cost of $ .15 per page for record copies furnished. Authentication of copies is available in accordance with the fee schedule established in Sec. 70.40. In accordance with 5 U.S.C. 552(a)(4)(A)(vi), the provisions for fees, fee waivers and fee reductions in subpart C of this part do not supersede these charges for these documents. (d) Upon request of the Governor of a State for copies of any reports or documents filed pursuant to sections VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 201, 202, 203, or 211 of the LaborManagement Reporting and Disclosure Act of 1959 (73 Stat. 524–528, 79 Stat. 888; 29 U.S.C. 431–433, 441), or for information contained therein, which have been filed by any person whose principal place of business or headquarters is in such State, the Office of Labor-Management Standards will: (1) Make available without payment of a charge to the State agency designated by law or by such Governor, such requested copies of information and data, or (2) Require the person who filed such reports and documents to furnish such copies or information and data directly to the State agency thus designated. § 70.54 Employee Benefits Security Administration. (a) The annual financial reports (Form 5500) and attachments/schedules as filed by employee benefit plans under the Employee Retirement Income Security Act (ERISA) are in the custody of the Employee Benefits Security Administration (EBSA) at the address indicated in paragraph (b) of this section, and the right to inspect and copy such reports, as authorized under ERISA, at the fees set forth in this part, may be exercised at such office. (b) The mailing address for the documents described in this section is: U.S. Department of Labor, Employee Benefits Security Administration, Public Documents Room, 200 Constitution Avenue NW., Washington, DC 20210. Appendix A to Part 70—FOIA Components The following list identifies the individual agency components of the Department of Labor for the purposes of the FOIA. Each component is responsible for making records in its custody available for inspection and copying, in accordance with the provisions of the FOIA and this part. Unless otherwise specified, the mailing addresses for the following national office components are listed below. Updated contact information for national and regional offices can be found on the DOL Web site at http://www.dol.gov/dol/ foia. U.S. Department of Labor 200 Constitution Avenue NW. Washington, DC 20210. 1. Office of the Secretary (OSEC). 2. Office of the Solicitor (SOL). 3. Office of Administrative Law Judges (ALJ), 800 K Street NW., Suite N–400, Washington, DC 20001–8002. 4. Office of the Assistant Secretary for Administration and Management (OASAM). 5. Office of the Assistant Secretary for Policy (OASP). 6. Office of the Chief Financial Officer (OCFO). 7. Office of Congressional and Intergovernmental Affairs (OCIA). PO 00000 Frm 00050 Fmt 4700 Sfmt 4700 8. Office of Disability Employment Policy (ODEP). 9. Office of Federal Contract Compliance Programs (OFCCP). 10. Office of the Inspector General (OIG). 11. Office of Labor Management Standards (OLMS). 12. Office of Public Affairs (OPA). 13. Office of Workers’ Compensation Programs (OWCP). 14. Bureau of International Labor Affairs (ILAB). 15. Bureau of Labor Statistics (BLS), Postal Square Building, Room 4040, 2 Massachusetts Avenue NE., Washington, DC 20212–0001. 16. Employment and Training Administration (ETA). Job Corps (part of ETA). 17. Mine Safety and Health Administration (MSHA), 201 12th Street, South, Arlington, Virginia 22202. 18. Occupational Safety and Health Administration (OSHA). 19. Employee Benefits Security Administration (EBSA). 20. Veterans’ Employment and Training Service (VETS). 21. Employees’ Compensation Appeals Board (ECAB). 22. Administrative Review Board (ARB). 23. Benefits Review Board (BRB). 24. Wage and Hour Division (WHD). 25. Women’s Bureau (WB). Appendix B to Part 70—[Reserved] Thomas E. Perez, Secretary of Labor . [FR Doc. 2017–00453 Filed 1–19–17; 8:45 am] BILLING CODE P 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 Mine Safety and Health Administration, Labor. ACTION: Final rule. AGENCY: The Mine Safety and Health Administration’s final rule amends the Agency’s standards for the examination of working places in metal and nonmetal mines. This final rule requires that an examination of the working place be conducted before miners begin working in that place, that operators notify miners in the affected areas of any conditions found that may adversely affect their safety or health, that operators promptly initiate corrective action, and that a record be made of the examination. The final rule SUMMARY: E:\FR\FM\23JAR1.SGM 23JAR1 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations also requires that the examination record include: The name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date of the corrective action. In addition, the final rule requires that mine operators make the examination record available for inspection by authorized representatives of the Secretary and miners’ representatives and provide a copy upon request. DATES: Effective date: May 23, 2017. FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at mcconnell.sheila.a@dol.gov (email); 202–693–9440 (voice); or 202– 693–9441 (facsimile). SUPPLEMENTARY INFORMATION: Table of Contents I. Introduction A. Statutory and Regulatory History B. Executive Order 12866 Summary C. Background Information II. Section-by-Section Analysis III. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review IV. Feasibility V. Regulatory Flexibility Analysis and Small Business Regulatory Enforcement Fairness Act VI. Paperwork Reduction Act of 1995 VII. Other Regulatory Considerations VIII. References Availability of Information Federal Register Publications: Access rulemaking documents electronically at http://www.msha.gov/regsinfo.htm or http://www.regulations.gov [Docket Number: MSHA–2014–0030]. Obtain a copy of a rulemaking document from the Office of Standards, Regulations, and Variances, MSHA, by request to 202–693–9440 (voice) or 202–693–9441 (facsimile). (These are not toll-free numbers.) Email Notification: MSHA maintains a list that enables subscribers to receive an email notification when the Agency publishes rulemaking documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/ subscribe.aspx. mstockstill on DSK3G9T082PROD with RULES I. Introduction Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of unsafe and unhealthful conditions and practices. Operator compliance with safety and health standards and implementation of safe VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 work practices provide a substantial measure of protection against hazards that cause accidents, injuries, and fatalities. The Mine Safety and Health Administration (MSHA) has determined that examinations of working places are an important part of an effective accident prevention strategy; they are a first line of defense because they allow operators to find and fix conditions. The existing standards for metal and nonmetal (MNM) mines requiring that workplace examinations be conducted at least once each shift potentially expose miners to adverse conditions during the shift because mine operators can perform the workplace examination anytime during the shift, which exposes miners to adverse conditions during the shift before any corrective action is taken. The final rule, like the proposed rule, amends this provision to require that each working place be examined before miners or other employees begin work in that place. The new requirement that mine operators notify miners of adverse conditions in their working places will make miners aware of such conditions and allow them to take appropriate protective measures or avoid the adverse conditions altogether until such conditions are corrected. The existing standards do not require the operator to include in the record adverse conditions that may contribute to an accident, injury, or fatality, or to document that corrective actions were taken. MSHA believes that by making a record of adverse conditions, mine operators and miners will become more proactive in their approach to correcting adverse conditions and avoiding reoccurrences, thereby improving the protection of miners. In addition, the final rule requires that mine operators make the examination record available for inspection by authorized representatives of the Secretary and miners’ representatives and provide a copy upon request. Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of adverse conditions, which is why MSHA concluded that the final rule should require operators to make examination records available to miners’ representatives as well as provide copies of such records to them upon request. The final rule will result in more effective and consistent working place examinations by helping to ensure that adverse conditions will be timely identified, communicated to miners, and corrected, thereby improving miners’ safety and health. PO 00000 Frm 00051 Fmt 4700 Sfmt 4700 7681 A. 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 set forth advisory standards at §§ 55.18–8, 56.18–8, and 57.18–8 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 §§ 55.18–2, 56.18– 2, and 57.18–2, that were the same as the language that currently exists at §§ 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 (surface) and 57.18002 (underground). No change was made to the language of the standards. On June 8, 2016 (81 FR 36818), MSHA published a proposed rule on Examinations of Working Places in Metal and Nonmetal Mines. The Agency received comments on the proposed rule and held four public hearings in July and August 2016. These hearings were held in Salt Lake City, Utah; Pittsburgh, Pennsylvania; Arlington, Virginia; and Birmingham, Alabama. On August 25, 2016, in response to E:\FR\FM\23JAR1.SGM 23JAR1 7682 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations stakeholder requests, MSHA published a document in the Federal Register (81 FR 58422) extending the deadline for submission of comments from September 6, 2016, to September 30, 2016. B. Executive Order 12866 Summary mstockstill on DSK3G9T082PROD with RULES MSHA is not claiming a monetized benefit for this rule. MSHA anticipates, however, that there will be benefits from the final rule as a result of more effective and consistent working place examinations that will help to ensure that adverse conditions will be timely identified, communicated to miners, and corrected. MSHA anticipates that the enhanced record requirements will improve accident prevention by helping mine operators identify any patterns or trends of adverse conditions and preventing these conditions from recurring. In response to comments, MSHA reviewed studies that examined the effectiveness of programs for the monitoring, detecting, and correction of hazards. Maxey (2013) 1 found that injury and illness prevention programs help employers find hazards and fix them before injuries, illnesses, or deaths occur. Maxey’s article notes one study which showed that after a short period, five States that implemented injury and safety programs that have the basic elements common in safety and health programs saw reductions in accidents ranging from 17.4 to 23 percent (Huang et al., 2009). In another study cited by Maxey, the author found that mandatory injury and illness prevention programs were effective in reducing injury and illness incidence rates (Smitha et al., 2001). In response to comments, MSHA also notes that it is not the only regulatory agency to recognize the importance of working place examinations and records of examinations. The West Virginia Office of Miners’ Health, Safety and Training revised its rules that govern the safety of those employed in and around quarries. The new rulemaking that went into effect July 1, 2015 requires daily inspection of working places and records, among other requirements, and this includes: (1) Examinations within 3 hours prior to the beginning of any shift; and (2) that records be made of hazardous conditions or violations and the action taken to correct them. 1 Maxey, H., Safety & Small Business, 2013, pp.12–22. http://www.asse.org/assets/1/7/Maxey_ TheCompass.pdf. The article points out that 34 states, OSHA, and many other nations require safety and health programs that include monitoring, detecting, and correction of hazards and that have resulted in substantial reduction in loss of life and reduced injuries. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 MSHA estimates that the final rule will result in $34.5 million in annual costs for the MNM industry: $10.6 million for mines with 1–19 employees; $22.2 million for mines with 20–500 employees; and $1.7 million for mines with 501+ employees. The Agency estimates that the total undiscounted cost of the final rule over 10 years will be $345.1 million; at a 3 percent discount rate, $294.4 million; and at a 7 percent discount rate, $242.4 million. Additional details on MSHA’s analysis are found in Section III of this preamble. C. 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. For this rulemaking, MSHA reviewed accident investigation reports from January 2010 through midDecember 2015. During this period 122 miners were killed in 110 accidents at MNM mines. MSHA conducted investigations into each of these 110 fatal accidents of which 16 accidents (18 fatalities) citations were issued to mine operators for unwarrantable failure to comply for purposes of Section 104(d) of the Mine Act. Because unwarrantable failures involve serious conditions that the operator should have known about, MSHA believes that for these 16 accidents, had the person making the examination recorded these adverse conditions, the records may have alerted operators to take prompt corrective action thus preventing the accidents. II. Section-by-Section Analysis A. Sections 56.18002(a) and 57.18002(a)—Requirements for Conducting Working Place Examinations Final §§ 56.18002(a) and 57.18002(a), like the existing standards and proposed rule, require 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. The existing standards permit the examination to be made at any time during the shift. The final rule, like the proposed rule, requires that the competent person examine each working place before miners begin work in that place. In the proposed rule, MSHA requested specific 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. Many commenters did not support the proposed provision but did support the PO 00000 Frm 00052 Fmt 4700 Sfmt 4700 existing standards, which do not specify a time frame for the working place examination to be conducted. Some commenters rejected a 2-hour time frame before miners start work as arbitrary; other commenters with operations with shifts that begin before daylight opposed any specified time period. A commenter interpreted the 2hour time period mentioned in the proposal to mean that, if miners do not enter the area within a 2-hour window, but instead enter 3 hours after the examination was made, the area would have to be reexamined. A few commenters suggested that the examination be performed as close to the start of the next shift as possible, but no more than 2 hours. One commenter who supported conducting the working place examinations before miners begin working in that place did support a 2hour time period, unless only one employee is responsible for examining multiple areas. In that case, the commenter stated that additional time would be needed for the one employee to inspect each area properly. Some commenters suggested that examinations should start immediately before a shift begins. One commenter stated that making the examinations prior to someone working in that area is common sense. Several commenters supported conducting the examination before work begins as this practice alerts miners of adverse conditions before they begin work. Another commenter stated that the wording of the proposed rule, ‘‘before miners begin work’’ and ‘‘once each shift’’, creates ambiguity and implies that the working place examination would occur during each shift but before miners begin work. MSHA acknowledges that, in the existing rule, ‘‘once each shift’’ may have been interpreted to mean ‘‘once during each shift.’’ However, for this final rule, MSHA clarifies that ‘‘once each shift’’ means that examinations must be conducted at least once for each separate shift. The final rule provides mine operators flexibility on when to conduct an examination. Operators, however, should use their judgment to ensure that the time between the examination and the start of work is such that the operator would reasonably not expect conditions in the examined area to have been able to change adversely during that period. Thus, operators have the flexibility to determine how close in time the examination must be performed based on conditions in the mine and how dynamic those conditions are. E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Moreover, examinations can be conducted before or after the shift begins, so long as the examinations are conducted close in time ‘‘before work begins.’’ We note that this allows for the competent person to examine a work area before workers begin working there, rather than requiring the competent person to examine all possible work areas before a shift can begin. Another commenter opposed the requirement to conduct the examination prior to beginning work, noting that MSHA’s existing standards for surface coal mines in § 77.1713 requires an examination ‘‘at least once during each working shift, or more often if necessary.’’ The commenter further stated that, due to the physical and operational differences between underground and surface mining, conducting a workplace examination before work begins in a surface mine is more burdensome than in an underground mine. MSHA recognizes that there are operational differences between surface and underground mining. In recognition of these differences, the final rule only requires that the operator examine each working place before miners begin work in that place. As stated during the rulemaking process and as is the practice under the existing rule, if miners are not scheduled for work in a particular area or place in the mine, that place does not need to be examined. Similarly, if miners are not scheduled to work for some time (e.g., 4 hours) after the shift begins; the final rule would only require that the examination be performed prior to the beginning of work. Therefore, the final rule provides mine operators the needed flexibility on how to structure workplace examinations so that operational differences between surface and underground mines can be addressed and limit any additional burden. Other commenters indicated that the proposed provision would limit mine operators to a single examination. Some of these commenters stated that an examination before work begins may not ensure all hazards are addressed, noting that since mining is dynamic and conditions are always changing, adverse conditions need to be addressed as they occur. Another commenter stated that while an industry standard practice is to examine for unsafe conditions before miners begin work in an area, unsafe conditions can occur anytime during a shift. Therefore, these conditions must be identified and corrected throughout the shift, not just at the beginning. MSHA agrees with comments indicating that because mine conditions are subject to change, mine operators VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 and miners need to be aware of conditions that may occur at any time that could affect the safety and health of miners. As discussed above, examinations must be conducted sufficiently close in time to the start of work that the operator would not reasonably expect conditions to have changed. Moreover, the final rule does not limit operators to a single examination or prevent ongoing examinations throughout the shift. The final rule, like the proposed rule, requires examinations ‘‘at least’’ once per shift before miners begin work in that place. However, operators should continue to identify and correct adverse conditions in the workplace regardless of when they occur. A number of commenters representing both small and large operations were concerned that conditions such as lack of daylight and inclement weather make it impractical or impossible to conduct a workplace examination at the beginning of a shift or even within 2 hours of a shift. Some commenters suggested that MSHA modify the proposed requirement to allow mine examinations to begin at the beginning of a shift at daybreak and continue throughout a shift as mining conditions change. As stated earlier, under the final rule, operators must conduct a workplace examination before miners begin work in an area. The Agency assumes that if miners can work in an area, then weather and lighting conditions are sufficient to permit working place examinations to be conducted. Some commenters stated that multishift operations will be at a disadvantage since all work would need to be halted to accommodate an examination before work begins, even if a company had a sufficient number of competent persons available to conduct the examination before the area would be deemed safe to proceed. A commenter stated that for some sitespecific work conditions, personnel would be unable to do inspections between shift changes. Other commenters noted that conducting an examination before work begins would be difficult for operations with overlapping or maintenance shifts and questioned when an examination would be required. Other commenters noted that conducting an examination within a specified time period, i.e., within 2 hours before the shift starts, is not practical for mines scheduled to operate on a 24-hour, 365-day basis with multiple crews working over multiple shifts. A few commenters suggested that MSHA consider allowing the previous PO 00000 Frm 00053 Fmt 4700 Sfmt 4700 7683 shift to conduct examinations for the next shift. The final rule requires that a competent person conduct an examination before work begins so that conditions that may adversely affect miners’ safety and health are identified before they begin work and are potentially exposed. In response to these comments, MSHA’s final rule provides operators with flexibility on how to structure workplace examinations as long as they are conducted before miners begin work in that place. As noted previously, the final rule does not require a specific time frame for the examination to be conducted before work begins. The purpose of the rule is to ensure that for each shift the examinations occur at a time that is sufficiently close to when miners begin their work. MSHA acknowledges that for mines with consecutive shifts or those that operate on a 24-hour, 365-day basis, it may be appropriate to conduct the examination for the next shift at the end of the previous shift to ensure that the examination is complete before the next shift begins work in those places. However, because conditions at mines can change, operators should examine at a time sufficiently close to the start of the shift, before miners begin work at that working place, to minimize potential exposure to conditions that may adversely affect their safety or health. For this reason, MSHA does not believe that the protective purpose of the examinations would be accomplished if, at single-shift mines for example, the examination for one day’s shift were performed at the end of the previous day’s shift. In response to commenters’ concerns, if an examination was made for miners before work began in that place and incoming miners on an overlapping or maintenance shift are to begin work in that place, an additional examination is not needed provided that the incoming shift begins work close to when the examination was conducted and mining conditions would not be expected to have changed adversely. The final rule, like the existing standards and the proposed rule, would continue to require that operators examine each working place at least once each shift. Existing §§ 56.2 and 57.2 define ‘‘working place’’ as ‘‘any place in or about a mine where work is being performed.’’ Some commenters expressed concerns that the phrase ‘‘working place’’ was vague or needed clarification. A number of commenters stated that the phrase ‘‘working place’’ needs to be defined beyond what is in existing §§ 56.2 and 57.2. Other E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES 7684 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations commenters stated that further clarification is needed to distinguish between regular working places and the occasional or sudden assignment that requires a miner to enter into a place that is not a regularly active production area or where mining activities are not present. For such areas, commenters asserted that the examination should occur when work begins, even if work begins in this location mid-shift. Some commenters expressed concern that the proposed rule would require mine operators to conduct an examination of the entire mine before the start of each shift. Some of these commenters also stated that it is impractical to expect the entire mine to be inspected prior to the start of the shift because of changing work needs during the course of a shift. It is not MSHA’s intent for the mine operator to examine the entire mine before work begins, unless work is beginning in the entire mine. As previously noted, ‘‘before work begins,’’ may or may not coincide with the start of any particular shift; it depends on when miners actually will be working in any particular working place. The final rule, like the existing standards and proposed rule, would require examinations in only those areas where work will be performed. As MSHA stated in the preamble to the proposed rule, a ‘‘working place’’ applies to all locations at a mine where miners work in the extraction or milling processes (81 FR 36821). MSHA clarifies that consistent with the existing definition of ‘‘working place,’’ this includes roads traveled to and from a work area (81 FR 58422). MSHA further clarifies that a 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. Unless required by other standards, mine 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 (81 FR 58423). Final §§ 56.18002(a) and 57.18002(a), like the existing standards and the proposed rule, require that operators examine each working place for conditions that may adversely affect safety or health. Many commenters expressed concerns that the term ‘‘adverse’’ is ambiguous, lacks specificity, and is open to interpretation. A few commenters provided examples of conditions that could adversely affect safety and health such as slips, trips, and falls, or cause a fatal injury. MSHA notes that the final rule, like the existing standards, VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 requires that an operator examine each working place for conditions that ‘‘adversely affect safety or health.’’ MSHA believes that the mining community understands the meaning of ‘‘adverse’’ in these standards because it has been in place since 1979. One commenter stated that, even among MSHA inspectors from the same field office, there can be variability in judgments of inspectors whether a stated condition is ‘‘adverse.’’ Another commenter noted that for mine operators to better train their competent persons, MSHA must better define ‘‘adversely affect’’ so that laymen can understand it and apply it consistently; otherwise, mine operators could be subject to ever-changing interpretations when MSHA inspects the mine. MSHA regularly trains its inspectors and managers. A central focus of the Agency’s enforcement training and retraining is consistency. In addition, MSHA will develop outreach and compliance assistance materials related to the final rule and will include these materials in stakeholder seminars to be held in locations accessible to the mining public. As part of this process, MSHA will identify best practices that can be shared with the mining community. Final §§ 56.18002(a) and 57.18002(a), like the existing standards and the proposed rule, require that the working place examination be made by a competent person designated by the mine operator. Under §§ 56.2 and 57.2, a competent person means a person having abilities and experience that fully qualify him to perform the duty to which he is assigned. In Program Policy Letter (PPL) No. P15–IV–01, MSHA emphasizes that the competent person designated by the operator 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.2 In this same PPL, MSHA states that a best practice is for a foreman or other supervisor to conduct the examination, and that an experienced non-supervisory person 2 MSHA’s PPL guidance on the meaning of ‘‘competent person’’ was informed by the Commission decision in Secretary of Labor (MSHA) v. FMC Wyoming Corporation, 11 FMSHRC 1622 (1989), which held that: ‘‘As with many safety and health standards, §§ 57.18002(a) and 57.2 are drafted in general terms in order to be broadly adaptable to the varying circumstances of a mine. Kerr-McGee Corp., 3 FMSHRC 2496, 97 (November 1981). We conclude that the term ‘competent person’ within the meaning of §§ 57.18002(a) and 57.2 must contemplate a person capable of recognizing hazards that are known by the operator to be present in a work area or the presence of which is predictable in the view of a reasonably prudent person familiar with the mining industry.’’ PO 00000 Frm 00054 Fmt 4700 Sfmt 4700 may also be ‘‘competent.’’ The PPL emphasizes that a competent person designated by the operator under §§ 56.18002(a) and 57.18002(a) must have the experience and training to be able to perform the examination and identify safety and health hazards. In the proposed rule, MSHA requested 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. Many commenters expressed concern over the possibility that MSHA might restrict the ‘‘competent person’’ to supervisors or foremen. Some commenters suggested that MSHA develop training and templates for workplace examinations for various commodities that would highlight hazards and typical work tasks in different mining environments. As previously stated, MSHA will develop outreach and compliance assistance materials to be made available at stakeholder seminars. Other commenters suggested that there needs to be a minimum level of experience, ability, or knowledge to be a competent person. These commenters stated that such miners need specific task training in recognizing hazards. One commenter suggested at least 8 hours of retraining each year on identifying workplace hazards, while another suggested 24 to 40 hours of training. A few commenters were concerned that MSHA might require formal training for surface miners, as is required for underground miners in MSHA’s system for certification of competency in underground coal mining. Other commenters suggested that mine operators, and not MSHA, should determine the training necessary for the competent person at their locations. This final rule does not change the definition of ‘‘competent person’’ under existing §§ 56.2 and 57.2. MSHA believes that existing experience and training requirements allow for needed flexibility while still requiring the level of competency necessary to conduct adequate examinations. In the final rule, like the existing standards and the proposed rule, the competent person is designated by the mine operator. Final rule §§ 56.18002(a)(1) and 57.18002(a)(1) are similar to the proposed rule. Like the proposal, they contain a provision requiring mine operators to notify miners in any affected areas of any conditions found that may adversely affect their safety or health. Miners need to know about adverse conditions in their working E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations place so that they can take protective measures or avoid the adverse conditions altogether. Several commenters expressed concern that there is no need to notify miners of conditions found, if such conditions, such as a hose across a walkway, were corrected immediately. Many commenters added that only conditions that cannot or have not been corrected require miner notification; if the hazard has been corrected, there is no benefit for requiring miner notification. The Agency recognizes that if adverse conditions are corrected before miners begin work, notification is not required because there are no ‘‘affected areas.’’ MSHA received other comments addressing the notification provision. Many commenters stated that they already notify miners of hazards through tagging, signage, and posting. One commenter asked that MSHA suggest methods of notification to all miners for typical conditions found on a workplace examination. The commenter then requested clarification on who would receive the notification— that is, whether operators would be required to notify incoming shift workers not yet in the area or not yet at work. The same commenter also was concerned about the logistics for notifying miners when many examinations are being conducted at the same time. Another commenter stated that prompt notification to employees if they are not in an affected area could take considerable time and resources resulting in operational downtime and lost revenue. The commenter added that, as a logistical matter, this process will be nearly impossible to manage on a mine site with thousands of employees and contractors. Another commenter wrote that the term ‘‘promptly notify’’ is vague. This same commenter was also concerned that the proposed rule was unclear about who would need to be notified. The commenter stated that notifying miners who are not affected by the hazard carries no safety benefit and distracts them, thereby risking work slowdowns. This commenter expressed concerns about diverting a mine’s resources to notify miners needlessly just to avoid MSHA citations for failing to communicate such hazards to all miners. In its August 25, 2016, comment extension document in the Federal Register (81 FR 58422), MSHA clarified that to ‘‘promptly notify miners’’ means any notification to miners that alerts them to adverse conditions in their working place so that they can take necessary precautions to avoid the adverse condition. MSHA added that VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 this notification could take any form that effectively notifies miners of an adverse condition: Verbal notification, prominent warning signage, other written notification, etc. MSHA believes that, in most cases, verbal notification or descriptive warning signage would be needed to ensure that all affected miners received actual notification of any adverse condition. MSHA also clarified that a ‘‘prompt’’ notification is one that occurs before miners are potentially exposed to the condition; e.g., before miners begin work in the affected areas, or as soon as possible after work begins if the condition is discovered while they are working in an area. For example, this notification could occur when miners are given work assignments (81 FR 58422). Consistent with the comment extension document, the final rule requires notification only of those miners ‘‘in any affected areas.’’ Therefore, not all miners need to be notified, only those miners that would be affected by the adverse condition. Final rule §§ 56.18002(a)(1) and 57.18002(a)(1), like the proposed rule, incorporate requirements from existing §§ 56.18002(a) and 57.18002(a) that the mine operator promptly initiate action to correct conditions that may adversely affect miners’ safety or health that are found during the examination. A commenter suggested that the proposed requirement would encourage narrower examinations to avoid the need to engage in remedial efforts in nonworking places, which could lead to more hazardous conditions if a miner wanders into these unexamined areas. A few commenters stated that the existing rule has long required mine operators to identify and ‘‘promptly initiate action to correct’’ any ‘‘conditions which may adversely affect safety or health.’’ The final rule is not changed from the existing standards. Final rule §§ 56.18002(a)(2) and 57.18002(a)(2), like the proposed provisions, are redesignated from and substantively the same as existing §§ 56.18002(c) and 57.18002(c). These provisions 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 who must withdraw all persons from the area affected (except persons referred to in section 104(c) of the Mine Act) until the danger is abated. In response to comments, MSHA clarified that the proposed rule would not change the existing standards regarding conditions that present imminent danger (81 FR 58422). ‘‘Imminent danger’’ is defined in section 3(j) of the Mine Act as ‘‘the existence of any condition or practice PO 00000 Frm 00055 Fmt 4700 Sfmt 4700 7685 which could reasonably be expected to cause death or serious physical harm before such condition or practice can be abated.’’ Although MSHA received comments on this aspect of the proposal, the final rule is not changed from the existing standards and is consistent with the statute. B. Sections 56.18002(b) and 57.18002(b)—Requirements for Records of Working Place Examinations Final rule §§ 56.18002(b) and 57.18002(b) require that a record of each examination be made before the end of the shift for which the examination was conducted. The requirement that the operator make a record is not a new provision; existing §§ 56.18002(b) and 57.18002(b) require a record that the examination was conducted. The final rule, like the proposal, requires the record to include: (1) The name of the person conducting the examination; (2) the date of the examination; (3) the location of all areas examined, and (4) a description of each condition found that may adversely affect the safety or health of miners. The final rule does not include the proposed requirements that the record contain: (1) The signature of the competent person conducting the working place examination and (2) the description of the corrective actions taken. The Agency received a number of comments on proposed provisions of paragraph (b) asking if MSHA would require the person conducting the working place examination to wait until the end of the shift to make the record. MSHA clarified that the proposal would allow the competent person conducting the examination to make the record at any time before the end of the shift (81 FR 58422). As previously noted, final rule §§ 56.18002(b) and 57.18002(b), like the proposed rule, add requirements for the contents of the examination record. Final paragraph (b), unlike the proposed rule, does not require that the competent person conducting the working place examination sign the record; instead, the record must include only the name of the competent person. Many commenters stated that the proposed requirement to sign the examination record would increase the potential for liability under Section 110(c) of the Mine Act for miners who conduct workplace examinations. Some commenters were concerned that the designated competent person would be liable under 110(c) for individual civil penalties. Other commenters stated that the signature requirement is unproductive, does not improve safety, and that competent persons are taking E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES 7686 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations the risk that they will be criminally prosecuted for knowing and willful violations. Commenters stated that it is difficult to get individuals to take on the responsibility of becoming a competent person. Some commenters were concerned that the signature requirement would discourage miners from conducting working place examinations and would have a negative impact on the quality of the examination. MSHA believes that the single act of signing one’s name adds no more and no less to the substantive duties and qualifications of the person who conducts the examination. For that reason, MSHA does not agree with commenters who believe that a signature would increase exposure to personal liability under Section 110(c). However, as will be discussed, MSHA also believes that it is the identity of the examiner, rather than the signature, that is important to record. For this reason, the final rule does not require the signature of the competent person conducting the working place examination. Some commenters were not in favor of including the name of the competent person in the record. MSHA maintains that, like a signature, printing one’s initials or name adds no more and no less to the substantive duties and qualifications of the person who conducts the examination. Historically, MSHA has taken the position that a meaningful record should at least contain the name of the competent person who conducted the examination. In addition, MSHA believes that the mine operator would need to know who conducted the working place examination. It is important to know the identity of the examiner for a number of reasons, such as clarifying the condition noted or following up with the examiner regarding areas examined or conditions noted. Final rule §§ 56.18002(a) and 57.18002(b), like the proposal, require that the record be dated. A few commenters supported including the date in the record; some stated that they already include the date in their examination record. MSHA has determined that dating the record is a key element for record management and for identifying trends that would be useful in promoting a mine’s safety and health efforts. Final rule §§ 56.18002(a) and 57.18002(b), like the proposal, also require that the record contain the location of all areas examined and a description of each condition found that may adversely affect the safety or health of miners. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 Many commenters opposed including in the record the locations of all areas examined and a description of each condition that may adversely affect the safety and health of miners, citing burden and cost concerns. A few commenters objected to recording every work location examined, indicating that this provision was costly and burdensome and would not improve miners’ safety. These commenters also noted that the proposed requirement to include the locations of all areas examined would increase the number of records significantly. Several of these commenters recommended that MSHA allow operators to use a form or checklist for the examination record, noting that this would reduce burden and assist in operators’ compliance with this requirement. Some commenters questioned how specific the description of adverse conditions should be because requiring more detail would limit the use of forms or checklists. Several other commenters supported the provision to include the locations of all areas examined and noted that they are currently including this information as part of their examination records. MSHA has determined that requiring that the record include locations of areas examined ensures that the mine operator is aware that all locations in a working place have been examined. The final rule allows mine operators the flexibility to record the results of an examination using a checklist or any other format, as long as the record includes the information listed in paragraph (b). Regarding the specificity of a description of an adverse condition, MSHA clarifies that the description should provide sufficient information which allows mine operators to notify miners of the condition and to take prompt corrective action. Several commenters supported the proposed provision to record a description of each condition found that may adversely affect the safety or health of miners. Another commenter noted that many companies follow the ‘‘best practices’’ MSHA advocated in its policy documents in terms of memorializing what hazards are identified. Other commenters objected to including a description of all adverse conditions found in the examination record. Specifically, one commenter stated that requiring a description of every adverse condition is a burdensome requirement and does not provide any benefit to miners if it was immediately corrected by the competent person who performed the examination. This commenter stated that only the adverse conditions that cannot or have not been corrected should be required to PO 00000 Frm 00056 Fmt 4700 Sfmt 4700 be documented as these could affect miners. The commenter noted that this would provide an incentive to immediately correct adverse conditions. Another commenter stated that there are certain adverse conditions that occur regularly during normal mining operations. The commenter provided an example of entering an area in which a round of explosives has recently been blasted creating adverse conditions such as unsupported ground at the face, loose rock that presents tripping hazards, and dusty conditions caused by the blast. The commenter believed that requiring the competent person conducting the examination to record these regularly occurring adverse conditions and the corrective actions, would add no value since these conditions will be expected. The commenter further stated that this would unnecessarily add to the duties of the competent person conducting the examination. MSHA believes that, by making a record of adverse conditions, mine operators and miners will become more proactive in their approach to correcting the conditions and avoiding recurrence, thereby improving protections for miners. The Agency believes that a record that notes the adverse conditions prior to miners working in an area expedites the correction of these conditions, notwithstanding the regularity in which the adverse conditions occur. Also, MSHA believes that recording all adverse conditions, even those that are corrected immediately, will be useful as a means of identifying trends. This information should help inform mine management regarding areas or subjects that may benefit from increased safety emphasis. Some commenters questioned if correcting the condition takes a significant amount of time, would the adverse condition have to be recorded each shift until it is corrected. MSHA clarifies that if not immediately corrected, the continuing adverse condition does not need to be recorded each shift. The final rule requires that, once the condition is corrected, the record include, or be supplemented to include, the date of corrective action. Regardless of how long an adverse condition has existed, mine operators must ensure that all affected miners are promptly notified of all adverse conditions on each shift as required in final paragraph (a)(1), so that miners can take the necessary precautions to avoid an accident or injury. Another commenter stated that requiring that examinations include descriptions of unsafe conditions would require separate records for each and every examination. The commenter E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations added that for medium and large-sized operations this requirement would necessitate the generation, management, and storage of hundreds of thousands of individual examination records each year. The commenter stated that this may not be feasible for many operators, or would require the operators to add additional personnel and incur the associated costs without any proven benefit. MSHA believes that a key element in any safety and health program includes the identification of adverse conditions. MSHA further believes that this information is essential to inform operators and miners of these conditions, so that they can be found and fixed before miners are exposed to them. Under the existing standards, a competent person is not required to record adverse conditions. MSHA’s experience is that if adverse conditions are not recorded, these conditions may exist for more than one shift, causing or contributing to an accident, injury, or fatality. The final rule allows mine operators the flexibility to record the results of an examination using electronic or hard copy checklists or any other format, as long as the record includes the information listed in paragraph (b). In addition, MSHA has reduced the recordkeeping requirements in the final rule to address commenters’ concerns regarding costs and burden. Many commenters were concerned that the Agency will use the examination record to write citations based solely on the adverse conditions identified in the record. This is not MSHA’s intent, nor do we plan to train our inspectors to do this. MSHA reiterates that the Agency’s intent is to ensure that conditions that adversely affect the safety or health of miners are found and fixed before miners begin work. MSHA proposed in §§ 56.18002(b)(2) and 57.18002(b)(2) that the record include a description of the corrective action taken and the date it was taken, the name of the person who made the record of the corrective action, and the date the record of corrective action was made. The final rule in paragraph (c), similar to the proposed rule, requires when a condition that may adversely affect safety or health is corrected, the examination record must include the date of the corrective action. The final rule, unlike the proposed rule, does not require that the name of the person who made the record of the corrective action be included in the record. Many commenters opposed the proposed requirement that the record contain a description of every corrective action, stating that this was VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 burdensome, especially for small operations. One commenter noted that for conditions not immediately corrected, the proposal would result in leaving open indefinitely the mandatory records, raising the potential for records to be misplaced. Other commenters noted that including a description of corrective actions in the examination record is duplicative since operators have systems in place that track work orders and repairs that document corrective actions taken. Other commenters stated that this provision would not enhance miners’ safety. In response to these comments, the final rule does not require that the record include a description of corrective action. MSHA believes that a single requirement to record the date the corrective action is completed will result in similar safety benefits for less time and cost, as it will still encourage prompt corrective action. Many commenters did not support the provisions in proposed paragraph (b)(2) to record the name of the person who made the record of the corrective action, the date the corrective action was taken, and the date the record of corrective action was made, stating that they were unnecessary and confusing. These commenters added that these proposed requirements may overly complicate recordkeeping and add little protective value. MSHA notes that while the final rule does not require the name of the person who made the record of corrective action, it does require that the record include the date of the corrective action. MSHA expects that most corrective actions will be completed before the end of the shift on which the adverse condition was found and that, therefore, the date of the corrective action will be the same as the date of the examination. However, regardless of when the corrective action is completed, the examination record noting the adverse condition must include or must be updated with the date of the corrective action. MSHA believes that including the date of corrective action alerts the mine operator, the authorized representative of the Secretary, and miners’ representatives whether adverse conditions have been corrected. A few commenters stated that the person taking the corrective action is not necessarily the same person who dates the record of corrective action. Recognizing these commenters’ concerns, MSHA clarifies that under the final rule, unlike the preamble discussion to the proposed rule, the person who takes the corrective action does not need to be the person who records the date of corrective action under final paragraph (c). PO 00000 Frm 00057 Fmt 4700 Sfmt 4700 7687 MSHA received comments requesting that the Agency allow alternative means of documenting corrective action other than the examination record, such as closed-out work orders or invoices. MSHA believes, however, that all information related to adverse conditions should be in one record, including the date of corrective action, to ensure a complete record is available for inspection and the Agency will not accept alternate documentation for corrective action taken. Final rule §§ 56.18002(d) and 57.18002(d), like the existing standards and proposed §§ 56.18002(b)(3) and 57.18002(b)(3), require that the operator maintain the examination records for one year and make them available to the Secretary or his authorized representative. The final rule, like the proposed rule, adds requirements that: (1) The record also be made available for inspection by miners’ representatives and (2) that a copy be provided to the Secretary or his authorized representative and miners’ representatives upon request. Some commenters suggested that the requirement for a one-year record retention period be changed to six months since MSHA inspections are on a six-month inspection schedule. Historically, mine operators have been required to retain examination records for one year. The Mine Act requires that surface mines be inspected at least twice a year but does not mandate that the inspections be six months apart; inspection schedules vary. Also, retaining examination records for one year allows operators and miners to identify trends that may not be apparent in a shorter period of time. The final rule retains the existing requirement. A few commenters suggested that examination records be made and kept electronically since they currently complete these records electronically. MSHA agrees; however, when records are collected electronically, such records must be secured in a computer system that is not susceptible to alteration. These electronic records must be made available for inspection by authorized representatives of the Secretary and representatives of miners, and an electronic or paper copy must be provided upon request. Several commenters opposed the proposed requirement to make records available upon request to representatives of miners. They stated that obligating an operator to make its examination records available to the miners’ representatives and to provide copies upon request will not improve or benefit safety. One commenter stated that making records available for review E:\FR\FM\23JAR1.SGM 23JAR1 7688 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations by MSHA to confirm compliance is one thing, but forcing operators to make books and records available to its rankand-file personnel shows lack of respect by MSHA for the integrity of mine management. Several commenters did not oppose making the records available to miners and their representatives. MSHA notes that the final rule, like the proposal, includes the requirement that records be made available for inspection by miners’ representatives. This is consistent with the Mine Act which requires miners be provided with information concerning safety and health hazards. Under the Mine Act, mine operators, with the assistance of miners, have the primary responsibility to prevent the existence of adverse conditions, which is why MSHA concluded that the final rule should require operators to make examination records available to miners’ representatives as well as to provide copies of such records to them upon request. Also, under other MSHA safety and health standards, operators provide records to miners’ representatives. A few commenters suggested that mine operators have a ‘‘workplace inspection program’’, which could be documented or submitted to MSHA for approval, noting that MSHA could use this document to check for compliance. Other commenters suggested additional miner training could be an alternative to modifying the existing standards. MSHA did not propose or solicit comments regarding a workplace inspection program or additional miner training: either would have necessitated a discussion of various options in the proposed rule. For this reason, both of these issues are beyond the scope of this rulemaking. 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 final rule is an ‘‘other significant’’ regulatory action because it raises novel legal and policy issues. However, MSHA has determined that this final rule will not have an annual effect of $100 million or more on the economy and, therefore, will not be an economically significant regulatory action pursuant to section 3(f) of E.O. 12866. A. Population at Risk The final rule will apply to all MNM mines in the United States. In 2015, there were approximately 11,660 MNM mines employing 144,408 miners, excluding office workers, and 74,465 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 2015 Total employment at mines, excluding office workers Mine size Number of mines 1–19 Employees ...................................................................................................................................... 20–500 Employees .................................................................................................................................. 501+ Employees ...................................................................................................................................... Contractors .............................................................................................................................................. 10,451 1,187 22 ................................ 52,310 74,545 17,553 74,465 Total .................................................................................................................................................. 11,660 218,873 Source: MSHA MSIS Data (reported on MSHA Form 7000–2) September 21, 2016. The U.S. Department of the Interior (DOI) estimated revenues of the U.S. mining industry’s MNM output in 2015 to be $78.3 billion.3 Table 2 presents the hours worked and revenues for MNM mines by mine size. TABLE 2—MNM TOTAL HOURS AND REVENUES IN 2015 Total hours reported for year Mine size Revenue (in millions of dollars) 88,661,855 159,361,570 37,470,328 $22,149 43,652 12,499 Total .................................................................................................................................................. mstockstill on DSK3G9T082PROD with RULES 1–19 Employees ...................................................................................................................................... 20–500 Employees .................................................................................................................................. 501+ Employees ...................................................................................................................................... 285,493,753 78,300 Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA Form 7000–2) and estimated DOI reported mine revenues for 2015 by mine size. 3 Production revenue estimates are from DOI, U.S. Geological Survey (USGS), Mineral Commodity Summaries 2016, February 2016, page 8. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00058 Fmt 4700 Sfmt 4700 E:\FR\FM\23JAR1.SGM 23JAR1 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations B. Benefits The purpose of this final rule is to ensure that MNM mine operators identify and correct conditions that may adversely affect miners’ safety or health. Effective workplace examinations are a fundamental accident prevention tool; they allow operators to find and fix adverse conditions and violations of safety and health standards before they cause injury or death to miners. Under MSHA’s existing standards, mine operators can perform the examinations anytime during the shift. If the examination is performed after miners begin work, miners may be exposed to conditions that may adversely affect their safety and health. In addition, the existing standard does not specify the contents of the examination record. Over the years, MSHA has issued Program Policy Letters (PPL) regarding working place examinations. The PPLs are MSHA’s guidance and best practices regarding compliance with the existing standards. In the PPLs, MSHA provided guidance on what the examination record should include, such as: (1) The date of the examination; (2) name of the person conducting the examination; (3) the working places examined; and (4) a description of the conditions found that adversely affect safety or health. In the Agency’s experience, despite MSHA guidance and best practices, under the existing standard working place examinations are not always done at a point during the shift when the results of the examination would provide the necessary protections as intended by the Mine Act and the existing standard. MSHA’s final rule amends the existing standards to require that the examination of each working place be conducted at least once each shift before miners begin work in that place, and that mine operators notify miners in affected areas of any conditions found that may adversely affect their safety or health. The final rule also requires that the examination record contain the name of the person conducting the examination, the date of the examination, the location of all areas examined, a description of each condition found that may adversely affect the safety or health of miners, and the date the corrective action was made. A number of commenters observed that MSHA was unable to quantify the benefits of the proposed rule. Another commenter stated that MSHA should show that the Agency’s proposed revision of the existing rule will not negatively impact the safety and health of miners as required by the Mine Act. Under the Mine Act, MSHA is not required to use monetized benefits or estimated net benefits as the basis for the Agency’s decision on standards designed to protect the health and safety of miners. However, in the proposed rule, MSHA stated that, while the Agency was unable to quantify the benefits, it anticipated there would be unquantified benefits from the proposed requirements. MSHA recognizes that under the existing standards, many mine operators have safe workplace operations and safety programs that include many of the provisions in this final rule. However, as noted above, the Agency’s experience is that there is a significant degree of variability in how safety programs are operationalized. MSHA has concluded that the final rule will reduce the variability in how operators conduct examinations of working places and thereby improve miners’ safety and health. MSHA believes that several features of this rule will contribute to this reduction in variability in workplace examinations and reporting. These features are conducting the workplace examination before work begins; and a record that will include 7689 locations examined, a description of adverse conditions found, and the date they were corrected. Under the existing standard, MSHA does not specify the timing of the examination or the contents of the record. In addition, the final rule adds a new requirement that mine operators notify miners of adverse conditions in their working places that will ensure that miners are aware of such conditions and avoid them until they are corrected. MSHA anticipates that there will be benefits from these provisions that will result in more effective and consistent workplace examinations and ensure that adverse conditions will be timely identified, communicated to miners, and corrected. However, MSHA is unable to separate the benefits of the new requirements under the final rule from those benefits attributable to conducting a workplace examination under the existing standards. The Agency has concluded that the combined effect of all the provisions (existing standards that have been in place since 1979 and the final rule) will improve miners’ safety and health. While unable to quantify the benefits, the Agency has concluded that the final rule will have benefits. MSHA also anticipates that there will be additional unquantifiable financial benefits, such as reduced insurance premiums, from effective working place examinations that will help mine operators, miners, and their representatives to become more aware of potential dangers, and be more proactive in correcting adverse conditions and violations of health and safety standards before these conditions cause an accident. C. Compliance Costs MSHA estimated the costs for MNM mine operators to comply with the final rule. Table 3 provides a summary of the annual costs by mine size. TABLE 3—SUMMARY OF ANNUAL COSTS TO MNM MINE OPERATORS * [$ millions] Mine size Requirement Totals 1–19 20–500 501+ $4.96 5.51 0.13 $20.22 1.73 0.21 $1.69 0.04 0.01 $26.88 7.29 0.35 * Totals (may not sum due to rounding) ....................................................... mstockstill on DSK3G9T082PROD with RULES 56/57.18002 (a) Conduct Exam Before Work Begins ..................................... 56/57.18002 (b)& (c) Additional Time to Make Record ................................... 56/57.18002 (d) Provide Miners’ Representative a Copy of Record .............. 10.61 22.16 1.75 34.51 Examination of Working Places—Final §§ 56.18002(a) and 57.18002(a) Final §§ 56.18002(a) and 57.18002(a) require that a competent person VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 designated by the operator must 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. PO 00000 Frm 00059 Fmt 4700 Sfmt 4700 In the proposed rule, MSHA believed that the cost associated with examining areas before miners begin work in that area would be de minimis. However, several commenters stated that requiring E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES 7690 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations the working place examination to occur before miners can begin work would impose additional costs on mine operators. Commenters also expressed concern that there could be considerable downtime and lost productivity as miners waited for a working place examination to be completed before starting work. Some commenters stated that it could take between two to six hours for larger mines to conduct the examination, which they stated might require paying overtime to the competent person to arrive well before the shift begins. Based on these comments, MSHA concludes that MNM mine operators will use a variety of scheduling methods to conduct an examination of a working place before miners begin work. In developing this cost estimate, MSHA considered the following variables: (1) Percent of mine operators currently compliant with this requirement; (2) number of shifts by mine size; (3) average time to conduct a workplace examination by mine size; (4) hourly wage rate; and (5) number of days a mine operates, on average, by mine size. Operators may use overtime, use different people to backfill for the time shifted to the examination, and perhaps lengthen the examination time to comply with the final rule. Based on analysis of comments received about overtime, MSHA assigned an overtime rate to the new time adjustments to appropriately estimate the change to costs. Small mine operators, with 1–19 employees, represent 90 percent of all MNM mines. Of these small mines, 62 percent have 1–5 employees. It is MSHA’s experience that small mine operators with 5 or fewer employees are currently in compliance with the final rule or will be able to adjust work schedules to comply without incurring additional costs and burden. MSHA also determined from the public comments that a greater percentage of larger mines will incur compliance costs due to large physical spaces, complex work schedules, and larger numbers of miners assigned to such schedules. In response to comments, the Agency estimated that 15 percent of mines with 1–19 employees, 65 percent of mines with 20–500 employees, and 85 percent of mines with 501+ employees will incur some additional cost as a result of requiring operators to conduct working place examinations before miners begin work in those places. For the proposed rule, MSHA assumed that mines with 1–19 employees operated 1 shift per day, while those with 20 or more employees operated 2 shifts per day. Five VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 commenters submitted concerns about 24/7 operations or overlapping shifts in large mines. MSHA re-examined the availability of internal data and revised the number of shifts. For the final rule, MSHA estimates that, on average: A mine with 1–19 employees operates 1.1 shifts per day; a mine with 20–500 employees operates 1.8 shifts per day; and a mine with 501+ employees operates 2.2 shifts per day. As with all averages, the data include a range of values. In response to comments and based on the Agency’s experience, MSHA estimates that, on average, the time to conduct workplace examinations before work begins is: 20 minutes in mines with 1–19 employees; 1 hour in mines with 20–500 employees; and 2.5 hours in mines with 501+ employees. In the proposed rule, MSHA assumed that all MNM mines operate 300 days per year. Commenters provided various estimates on the number of days that MNM mines operate. In response to comments, MSHA reevaluated the Agency’s estimate. MSHA reviewed employment, average shifts per week, and average hours per employee to estimate average days per year worked in MNM mines for 2015.4 MSHA’s estimate shows that, on average, a mine with 1–19 employees operates 169 days per year, a mine with 20–500 employees operates 285 days per year, and a mine with more than 500 employees operates 322 days per year. In the proposed rule, MSHA used a 2014 hourly wage rate of $31.14 (including benefits). One commenter stated that $51.25 was the 2016 average miner hourly wage rate for large mines that the commenter represents. Another commenter stated that for the mine operators it represents the pay, on average, is $35 to $55 per hour, excluding benefits. However, this commenter did not specify whether this hourly wage rate range was for a supervisor or a miner. Another commenter provided calculations that used MSHA’s proposed wage rate of $31.14 per hour. The hourly wage rate used in MSHA’s analysis assumes an average rate for all MNM mines. For the final rule, like the proposal, MSHA used wage data from BLS’s Occupational Employment Survey (OES).5 6 For the final rule, the 4 MSHA MSIS data, 2015. data are available at http://www.bls.gov/ oes/tables.htm or at http://www.bls.gov/oes/oes_ ques.htm. The employment-weighted mean wage is for Extraction Workers (Standard Occupational Classification code, SOC, 475000) for Metal Ore Mining (NAICS 212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). The OES wages represent the average for the entire industry 5 OES PO 00000 Frm 00060 Fmt 4700 Sfmt 4700 hourly wage rate, updated for 2015, is $34.06 (including benefits). As noted above, several commenters stated that compliance with §§ 56.18002(a) and 57.18002(a) would require a mine operator to pay overtime for a competent person to arrive before the shift begins to conduct the working place examination. In response to comments, MSHA estimated the cost for overtime as time and a half ($51.09/hr = $34.06 × 1.5). MSHA estimates that it will cost approximately $26.9 million per year for mine operators to comply with the final provision that requires mine operators to examine each working place at least once each shift before miners begin work. This annual cost consists of: • $5 million = 10,451 mines with 1–19 employees × 15% × 20 minutes × 1 hr/60 min × $51.09 wage × 1.1 shifts per day × 1 exam × 169 workdays per year; • $20.2 million = 1,187 mines with 20–500 employees × 65% × 1 hour × $51.09 wage × 1.8 shifts per day × 1 exam × 285 workdays per year; and • $1.7 million = 22 mines with 501+ employees × 85% × 2.5 hours × $51.09 wage × 2.2 shifts per day × 1 exam × 322 workdays per year; Records of Working Place Examinations—Final §§ 56.18002(b) and (c) and 57.18002(b) and (c) The requirement that the operator make a record is not a new provision; existing §§ 56.18002(b) and 57.18002(b) require that a record of the examination be made. The final rule revises §§ 56.18002(b) and 57.18002(b) to require that the record of each examination be made before the end of the shift for which the examination was conducted. The record shall contain: (1) The name of the person conducting the examination; (2) the date of the examination; (3) the location of the areas examined; and (4) a description of and are used nationally for many federal estimates and programs. As with any average, there are always examples of higher and lower values but the national average is the appropriate value for a rule regulating an entire industry. 6 The wage rate without benefits was increased for a benefit-scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for Employee Compensation access by menu http://www.bls.gov/ data/ or directly with http://download.bls.gov/pub/ time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private Industry Total benefits for Construction, extraction, farming, fishing, and forestry occupations, is divided by 100 to convert to a decimal value. MSHA used the latest 4-quarter moving average 2015 Qtr. 3–2016 Qtr. 2 to determine that 32.65 percent of total loaded wages are benefits. The scaling factor is a detailed calculation, but may be approximated with the formula and values 1 + (benefit percentage/(1benefit percentage)) = 1 + (0.3265/(1 ¥ 0.3265)) = 1.48. E:\FR\FM\23JAR1.SGM 23JAR1 mstockstill on DSK3G9T082PROD with RULES Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations each condition found that may adversely affect the safety or health of miners. Under final §§ 56.18002(c) and 57.18002(c), the record also must include the date of corrective action. Under the proposed rule, the mine operator would have been required to record a description of the adverse conditions found during the examinations and a description of the corrective actions taken. MSHA received numerous comments and heard testimony at the public hearings opposing these requirements. Commenters were concerned that recording every condition and every corrective action would be an excessive burden to mine operators, especially small operators. Several commenters noted that MSHA’s estimate of 5 minutes to complete the record was an underestimate. One commenter stated that MSHA’s proposed estimate was not enough time to document every hazard found in every active part of the mine and all corrective actions. In response to comments, the final rule does not require the record to include a description of the corrective action taken. However, the final rule retains the requirement that the record include the date when corrective action was made. MSHA proposed that the competent person conducting the working place examination would be required to sign and date the record before the end of the shift for which the examination was made. MSHA received numerous comments and testimony opposing this requirement. In response to the concerns from commenters, the final rule does not require that the competent person who conducted the examination sign the record. However, the final rule requires that the examination record contain the name of the person conducting the examination. The proposed record requirements were interpreted by commenters as requiring substantially more time than the 5 minutes the Agency estimated. For purposes of this final rule, MSHA accepts that the proposed record requirements may have required more time than MSHA’s estimate. However, the Agency now has clarified and narrowed the record requirements in the final rule. MSHA has concluded the original time estimates are appropriate given these changes. The Agency estimates that it will take all MNM mine operators an additional 5 minutes to record the information as required. MSHA estimates that a miner, earning $34.06 per hour, will take 5 additional minutes to include into the existing record the additional information required by final §§ 56.18002(b) and (c) VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 and 57.18002(b) and (c). MSHA estimates that the annual cost for this provision will be approximately 7.3 million. This annual cost consists of: • $5.5 million = 10,451 mines with 1–19 employees × 1.1 shift per day × 1 exam record × 169 workdays per year × 5 additional minutes × 1 hr/60 min × $34.06 per hour; • $1.7 million = 1,187 mines with 20– 500 employees × 1.8 shifts per day × 1 exam record × 285 workdays per year × 5 additional minutes × $34.06 per hour; and • $44,235 = 22 mines with 501+ employees × 2.2 shifts per day × 1 exam record × 322 workdays per year × 5 additional minutes × $34.06 per hour. Making Records Available to Miners’ Representatives—§§ 56.18002(d) and 57.18002(d) Final §§ 56.18002(d) and 57.18002(d) require that the operator maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of the miners, and provide these representatives a copy on request. Several commenters have stated that this requirement would place an additional burden on mine operators without MSHA showing any benefit. MSHA did not estimate a cost for this provision in the proposed rule. The existing information collection already allows time for record keeping and making copies for representatives of the Secretary. MSHA believes that on average the time already allowed for recordkeeping and providing copies to the Secretary’s representative will increase only slightly with regard to providing information to the mining representative. MSHA has increased the time for the copying from 20 seconds to an average of 1 minute. For the final rule, MSHA estimates that the number of times a copy of the examination record will be requested is: 10 percent in mines with 1–19 employees; 50 percent in mines with 20–500 employees; and 100 percent in mines with 501+ employees. Also, MSHA estimates that it will take a clerical employee, earning $22.43 per hour,7 8 1 7 OES data are available at http://www.bls.gov/ oes/tables.htm or at http://www.bls.gov/oes/oes_ ques.htm. The employment-weighted mean wage is for Office Clerks, General (Standard Occupational Classification code, SOC, 439061) for Metal Ore Mining (NAICS 212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). The OES wages represent the average for the entire industry and are used nationally for many federal estimates and programs. As with any average, there are always higher and lower values but the national average is the appropriate value for a rule regulating an entire industry. PO 00000 Frm 00061 Fmt 4700 Sfmt 4700 7691 minute to make a copy of the examination record and provide it to the representative of the miners, and that copying costs will be $0.30 per examination (2 pgs. × $0.15 per page). Thus, MSHA estimates that the compliance costs for mine operators to make copies of examination records for the representative of the miners will be $346,578 annually. This annual cost consists of: • $130,916 = 10,451 mines with 1–19 employees × 10 percent × 1.1 shifts per day × 169 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs); • $205,160 = 1,187 mines with 20– 500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs); and • $10,502 = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × ((1 minute × $22.43 per hour) + $0.30 copy costs). Summary of Compliance Costs The total annual compliance cost of the final rule is $34.5 million: $10.6 million for mines with 1–19 employees; $22.2 million for mines with 20–500 employees; and $1.7 million for mines with 501+ employees. 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, 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.9 The negative value of the 8 The wage rate without benefits was increased for a benefit-scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for Employee Compensation access by menu http://www.bls.gov/ data/ or directly with http://download.bls.gov/pub/ time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private Industry Total benefits for Construction, extraction, farming, fishing, and forestry occupations, is divided by 100 to convert to a decimal value. MSHA used the latest 4-quarter moving average 2015 Qtr. 3–2016 Qtr. 2 to determine that 32.65 percent of total loaded wages are benefits. The scaling factor is a detailed calculation, but may be approximated with the formula and values 1 + (benefit percentage/(1benefit percentage)) = 1 + (0.3265/(1¥0.3265)) = 1.48. 9 Office of Management and Budget, Office of Information and Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked Questions, February 7, 2011. [http://www.whitehouse.gov/ sites/default/files/omb/assets/OMB/circulars/a004/ a-4_FAQ.pdf]. E:\FR\FM\23JAR1.SGM 23JAR1 7692 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations PMT function provides the annualized cost over 10 years at 3 and 7 percent discount rates. MSHA estimates that the total undiscounted cost of the final rule over a 10-year period will be approximately $345.1 million, $294.4 million at a 3 percent discount rate, and $242.4 million at a 7 percent discount rate. The total undiscounted cost annualized over 10 years will be approximately $34.5 million, $33.5 million at a 3 percent discount rate, and $32.3 million at a 7 percent discount rate. IV. Feasibility A. Technological Feasibility MSHA concludes that the final rule is technologically feasible because it requires only that the operator conduct the working place exam before work begins in that place and requires additional information to be included in the operators’ existing examination records. There are no technology issues raised by the final rule. mstockstill on DSK3G9T082PROD with RULES 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 final rule is projected to cost $34.5 million per year and the MNM industry has estimated annual revenues of $78.3 billion. The final rule cost is less than one percent of revenues. Therefore, MSHA concludes that the final rule will be economically feasible for the MNM mining industry. MSHA intends to conduct a retrospective study beginning January 20, 2022. Using the results of this study, MSHA will determine to what extent the provisions of the final rule ensure that operators find and fix adverse conditions and violations of safety and health standards before they cause injury or death to miners, and reduce the variability in how operators conduct examinations of working places and thereby improve miners’ safety and health. Under the Department’s Plan for Retrospective Analysis of Existing Rules, MSHA intends to consult with industry, labor, and other stakeholders in conducting this review. This retrospective study will be conducted in accordance with the Department of Labor’s Plan for Retrospective Analysis of Existing Rules which complies with Executive Order (E.O.) 13563 ‘‘Improving Regulation and Regulatory Review’’ (76 FR 3821). V. 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 final rule on small entities. Based on that analysis, MSHA certifies that the final rule will 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. On February 26, 2016, SBA’s revised size standards became effective. SBA updated the small business thresholds for mining by establishing a number of different levels. MSHA used the new SBA standards for the screening analysis of this final rule. 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 the SBA size standard tables and methodology at https://www.sba.gov/ contracting/getting-started-contractor/ make-sure-you-meet-sba-size-standards/ summary-size-standards-industrysector. MSHA has also examined the impact of the final rule on MNM 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 as well as MSHA’s traditional mine size 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 evaluated a number of data sources related to the number of firms, employment, and revenue. MSHA concluded that the most useful data was MSHA’s 2015 MSIS MNM mine data (datasets are publicly available at http:// arlweb.msha.gov/OpenGovernment Data/OGIMSHA.asp). MSHA summed employment using the MSHA data element ‘‘Controller’’ 10 to best align with the SBA concept of firm as either an owner or exercising decision making. Each mine was assigned a size of large or small using the SBA size standard for each NAIC code in the MSHA data. MSHA estimated mine revenue as it has in the past using U.S. Geological reports (USGS, 2016) to obtain national revenue numbers for 2015 that MSHA then allocated to mines on a dollar per hour basis. Using the traditional definition of small, MSHA estimated that final compliance costs for MNM mines with 1 to 19 employees is $10.6 million, which is less than one percent of the $22.1 billion in revenues for these mines in 2015. Table 4 shows the estimated revenues, costs, size standards (Feb. 2016), and the summary level screening test results. The summary level data is consistent with evaluating the impact on a mine-bymine basis without providing detail on the approximately ten thousand small mines. MSHA identified numerous data records that were either incomplete or numerous mines that are intermittent with very few producing hours during the year. For these reasons, the analysis by NAICS code does not exactly match the total mine count or totals using MSHA’s traditional methodology. However, the error is small enough to not affect MSHA’s decision to certify that there is no significant economic 10 Official definition in data set: Legal Entity acting as a controller of an operator. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 PO 00000 Frm 00062 Fmt 4700 Sfmt 4700 E:\FR\FM\23JAR1.SGM 23JAR1 7693 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations impact on a substantial number of small entities. TABLE 4—SUMMARY OF SCREENING ANALYSIS BY NAICS CODE NAICS 212210 212221 212222 212231 212234 212291 212299 212311 212312 ............ ............ ............ ............ ............ ............ ............ ............ ............ 212313 ............ 212319 ............ 212321 212322 212324 212325 212391 212392 212393 212399 325998 ............ ............ ............ ............ ............ ............ ............ ............ ............ 327310 ............ 327410 ............ 331313 ............ Grand Total. Iron Ore Mining ........................................................... Gold Ore Mining .......................................................... Silver Ore Mining ........................................................ Lead Ore and Zinc Ore Mining ................................... Copper Ore and Nickel Ore Mining ............................ Uranium-Radium-Vanadium Ore Mining ..................... All Other Metal Ore Mining ......................................... Dimension Stone Mining and Quarrying ..................... Crushed and Broken Limestone Mining and Quarrying. Crushed and Broken Granite Mining and Quarrying .. Other Crushed and Broken Stone Mining and Quarrying. Construction Sand and Gravel Mining ........................ Industrial Sand Mining ................................................ Kaolin and Ball Clay Mining ........................................ Clay and Ceramic and Refractory Minerals Mining .... Potash, Soda, and Borate Mineral Mining .................. Phosphate Rock Mining .............................................. Other Chemical and Fertilizer Mineral Mining ............ All Other Nonmetallic Mineral Mining ......................... All Other Miscellaneous Chemical Product and Preparation Manufacturing. Cement Manufacturing ................................................ Lime Manufacturing .................................................... Alumina Refining and Primary Aluminum Production ..................................................................................... VI. Paperwork Reduction Act of 1995 mstockstill on DSK3G9T082PROD with RULES A. Summary This final rule contains changes that affect the burden in an existing paperwork package with OMB Control Number 1219–0089 (Safety DefectsExamination, Correction, and Records). MSHA estimates that the final rule will result in an additional 222,519 burden hours with an associated additional cost of $7.6 million annually. Public comments relating to collection requirements were also applicable to the cost analysis section. MSHA has not repeated those comments as they appear above in this preamble. Burden for Final §§ 56.18002(b) and (c) and 57.18002(b) and (c) Final §§ 56.18002(b) and (c) and 57.18002(b) and (c) require the existing record to include the following additional information: The name of the person conducting the examination; the date of the examination; the location of all areas examined; a description of each condition found that may adversely affect the safety or health of miners; and the date when a condition that may adversely affect safety or health is corrected. MSHA estimates that a MNM competent person, earning $34.06 per hour, will take 5 additional minutes to add the information required by the VerDate Sep<11>2014 Small standard (maximum employees) NAICS description 18:54 Jan 19, 2017 Jkt 241001 Number small mines Estimated revenue small mines ($millions) Cost exceeds 1 percent 26 137 9 5 17 5 28 793 1,415 $1,803.7 2,357.2 223.8 439.5 1,383.6 109.7 726.4 2,821.7 7,375.5 $18.0 23.6 2.2 4.4 13.8 1.1 7.3 28.2 73.8 $0.5 0.9 0.1 0.2 0.3 0.0 0.3 1.6 4.1 No. No. No. No. No. No. No. No. No. 750 500 152 963 1,162.8 3,069.8 11.6 30.7 0.6 1.7 No. No. 500 500 750 500 750 1,000 500 500 500 5,684 271 11 243 9 8 45 185 3 9,358.9 1,395.2 293.0 1,459.7 650.4 529.5 667.0 1,044.1 53.1 93.6 14.0 2.9 14.6 6.5 5.3 6.7 10.4 0.5 5.1 0.8 0.2 0.8 0.3 0.3 0.4 0.6 0.0 No. No. No. No. No. No. No. No. No. 1,000 750 1,000 50 30 7 2,513.3 849.9 1,467.3 25.1 8.5 14.7 1.4 0.4 0.4 No. No. No. ...................... 10,096 41,755.1 417.5 21.0 No. Burden Hour Costs Total burden hour costs for final §§ 56.18002(b) and (c) and 57.18002(b) and (c) are $7,287,001 (213,946 hours × $34.06 per hour). Burden for Final §§ 56.18002(d) and 57.18002(d) Final §§ 56.18002(d) and 57.18002(d) require that the operator provide miners’ representatives with a copy of the examination record on request. MSHA estimates that a MNM clerical employee, earning $22.43 an hour, will take 1 minute to make and provide a copy of the examination record to the representative of the miners. MSHA Frm 00063 Cost to small mines ($millions) 750 1,500 250 750 1,500 250 750 500 750 final rule to the existing record. Burden hours and costs are shown below: • 161,903 hours = 10,451 mines with 1–19 employees × 1.1 shifts per day × 1 exam record × 169 workdays per year × 5 additional minutes; • 50,744 hours = 1,187 mines with 20–500 employees × 1.8 shifts per day × 1 exam record × 285 workdays per year × 5 additional minutes; and • 1,299 hours = 22 mines with 501+ employees × 2.2 shifts per day × 1 exam record × 322 workdays per year × 5 additional minutes. Total additional burden hours for final §§ 56.18002(b) and (c) and 57.18002(b) and (c) are 213,946 hours. PO 00000 One percent of revenues ($millions) Fmt 4700 Sfmt 4700 estimates that the number of times that a copy of the examination record will be requested is: 10 percent in mines with 1–19 employees; 50 percent in mines with 20–500 employees; and 100 percent in mines with 501+ employees. Burden hours and costs are shown below: • 3,238 hours = 10,451 mines with 1– 19 employees × 10 percent × 1.1 shift per day × 169 workdays per year × 1 minute; • 5,074 hours = 1,187 mines with 20– 500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × 1 minute; and • 260 hours = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × 1 minute. Total burden hours for final §§ 56.18002(d) and 57.18002(d) are 8,572 hours. Burden Hour Costs Total Burden Hour Costs for final §§ 56.18002(d) and 57.18002(d) are $192,270 (8,572 hours × $22.43 per hour). Copy Cost Burden Related to Final §§ 56.18002(d) and 57.18002(d) On average, MSHA estimates that copy costs will be $0.30 (2 pages × $0.15 per page). Burden costs are shown below: E:\FR\FM\23JAR1.SGM 23JAR1 7694 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations • $58,285 = 10,451 mines with 1–19 employees × 10 percent × 1.1 shift per day × 169 workdays per year × $0.30 per copy; • $91,340 = 1,187 mines with 20–500 employees × 50 percent × 1.8 shifts per day × 285 workdays per year × $0.30 per copy; and • $4,675 = 22 mines with 501+ employees × 100 percent × 2.2 shifts per day × 322 workdays per year × $0.30 per copy. Total copy costs for burden related to final §§ 56.18002(d) and 57.18002(d) are $154,300. VII. Other Regulatory Considerations A. The Unfunded Mandates Reform Act of 1995 MSHA has reviewed the final rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this final 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 final 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 final rule will not impact family well-being. mstockstill on DSK3G9T082PROD with RULES 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 this final rule does not include a regulatory or policy action with takings implications. Accordingly, E.O. 12630 requires no further Agency action or analysis. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 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 this final rule and has determined that it will 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 final 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 final 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 final 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 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 has reviewed this final rule for its energy effects because the final rule applies to the MNM mining sector. Although this final rule will result in yearly costs of approximately $34.5 million to the PO 00000 Frm 00064 Fmt 4700 Sfmt 4700 MNM mining industry, only the impact on uranium mines is applicable in this case. MSHA data show only three active uranium mines in 2015. The Energy Information Administration’s annual uranium report for 2015 11 shows 4 million pounds at an average price of $42.86 per pound, for sales of approximately $171.4 million. Using average annual costs of the final rule, the impact to all active uranium mine operators is $57,010. 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. I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking MSHA has reviewed the final rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined that the final rule will not have a significant economic impact on a substantial number of small entities. VIII. References Bureau of Labor Statistics (BLS). 2016. Employment Cost Index CMU203000040500P, Private Industry Total benefits for construction, extraction, farming, fishing, and forestry occupations. http://download.bls.gov/ pub/time.series/cm/cm.data.0.Current. Bureau of Labor Statistics (BLS). 2015. National Occupational Employment Statistics—National—May, 2015. (Accessed October 13, 2016). http:// www.bls.gov/oes/tables.htm. Department of the Interior (DOI). 2016. Mineral Commodity Summaries 2016. U.S. Geological Survey, Reston, VA. 202 pages. http://minerals.usgs.gov/minerals/pubs/ mcs/2016/mcs2016.pdf. Energy Information Administration (EIA). 2016. 2015 Domestic Uranium Production Report. U.S. Department of Energy, EIA, Washington, DC May 2016. 23 pages. Huang, Y.H., et al. 2009. Financial decision makers’ views on safety: What SH&E professionals should know. Professional Safety. 54(4): 36–42. Maxey, H. 2013. Safety & Small Business. The Compass. Pages 12–22. [www.Asse.org] Mine Safety and Health Administration (MSHA). 2015. Mine Injury and Worktime, Quarterly, January–December 2015. Program Evaluation and Information Resources, Information Technology Center. 35 pages. http://arlweb.msha.gov/Stats/ Part50/WQ/MasterFiles/MIWQ-Master2015-final.pdf. Office of Management and Budget (OMB). 2011. Regulatory Impact Analysis: 11 http://www.eia.gov/uranium/production/ annual/pdf/dupr.pdf, page 6. E:\FR\FM\23JAR1.SGM 23JAR1 Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations Frequently Asked Questions. Office of Information and Regulatory Affairs, February 7, 2011. 12 pages. http:// www.whitehouse.gov/sites/default/files/ omb/assets/OMB/circulars/a004/a-4_ FAQ.pdf. Smitha, M.W., et al. 2001. Effect of state workplace safety laws on occupational injury rates. J. Occ. Environ. Med. 43(12):1001–1010. West Virginia Office of Miners’ Health, Safety and Training. 2015. Notice of Final Filing and Adoption of a Legislative Rule Authorized by the West Virginia Legislature—Rules Governing the Safety of Those Employed in and Around Quarries in West Virginia. West Virginia Secretary of State Filed April 20, 2015. 83 pages. List of Subjects in 30 CFR Parts 56 and 57 Explosives, Fire prevention, Hazardous substances, Metals, Mine 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 amending 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. Revise § 56.18002 to read as follows: ■ mstockstill on DSK3G9T082PROD with RULES § 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 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. VerDate Sep<11>2014 18:54 Jan 19, 2017 Jkt 241001 (b) A record of each examination shall be made before the end of the shift for which the examination was conducted. The record shall contain the name of the person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners. (c) When a condition that may adversely affect safety or health is corrected, the examination record shall include, or be supplemented to include, the date of the corrective action. (d) The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request. 7695 (d) The operator shall maintain the examination records for at least one year, make the records available for inspection by authorized representatives of the Secretary and the representatives of miners, and provide these representatives a copy on request. [FR Doc. 2017–00832 Filed 1–17–17; 4:15 pm] BILLING CODE 4510–43–P ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA–HQ–OAR–2016–0764; FRL–9958–26– OAR] Extension of Deadline for Action on the November 28, 2016 Section 126 Petition From Delaware PART 57—SAFETY AND HEALTH STANDARDS—UNDERGROUND METAL AND NONMETAL MINES AGENCY: 3. The authority citation for part 57 continues to read as follows: SUMMARY: ■ Authority: 30 U.S.C. 811. 4. Revise § 57.18002 to read as follows: ■ § 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 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 before the end of the shift for which the examination was conducted. The record shall contain the name of the person conducting the examination; date of the examination; location of all areas examined; and description of each condition found that may adversely affect the safety or health of miners. (c) When a condition that may adversely affect safety or health is corrected, the examination record shall include, or be supplemented to include, the date of the corrective action. PO 00000 Frm 00065 Fmt 4700 Sfmt 4700 Environmental Protection Agency (EPA). ACTION: Final rule. In this action, the Environmental Protection Agency (EPA) is determining that 60 days is insufficient time to complete the technical and other analyses and public notice-and-comment process required for our review of a petition submitted by the state of Delaware pursuant to section 126 of the Clean Air Act (CAA). The petition requests that the EPA make a finding that Conemaugh Generating Station, located in Indiana County, Pennsylvania, emits air pollution that significantly contributes to nonattainment and interferes with maintenance of the 2008 and 2015 ozone national ambient air quality standards (NAAQS) in the state of Delaware. Under section 307(d)(10) of CAA, the EPA is authorized to grant a time extension for responding to a petition if the EPA determines that the extension is necessary to afford the public, and the agency, adequate opportunity to carry out the purposes of the section 307(d) notice-and-comment rulemaking requirements. By this action, the EPA is making that determination. The EPA is, therefore, extending the deadline for acting on the petition to no later than August 3, 2017. DATES: This final rule is effective on January 23, 2017. ADDRESSES: The EPA has established a docket for this action under Docket ID No. EPA–HQ–OAR–2016–0764. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is E:\FR\FM\23JAR1.SGM 23JAR1

Agencies

[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Rules and Regulations]
[Pages 7680-7695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00832]


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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: Final rule.

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SUMMARY: The Mine Safety and Health Administration's final rule amends 
the Agency's standards for the examination of working places in metal 
and nonmetal mines. This final rule requires that an examination of the 
working place be conducted before miners begin working in that place, 
that operators notify miners in the affected areas of any conditions 
found that may adversely affect their safety or health, that operators 
promptly initiate corrective action, and that a record be made of the 
examination. The final rule

[[Page 7681]]

also requires that the examination record include: The name of the 
person conducting the examination, the date of the examination, the 
location of all areas examined, a description of each condition found 
that may adversely affect the safety or health of miners, and the date 
of the corrective action. In addition, the final rule requires that 
mine operators make the examination record available for inspection by 
authorized representatives of the Secretary and miners' representatives 
and provide a copy upon request.

DATES: Effective date: May 23, 2017.

FOR FURTHER INFORMATION CONTACT: Sheila A. McConnell, Director, Office 
of Standards, Regulations, and Variances, MSHA, at 
mcconnell.sheila.a@dol.gov (email); 202-693-9440 (voice); or 202-693-
9441 (facsimile).

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

Availability of Information

    Federal Register Publications: Access rulemaking documents 
electronically at http://www.msha.gov/regsinfo.htm or http://www.regulations.gov [Docket Number: MSHA-2014-0030]. Obtain a copy of a 
rulemaking document from the Office of Standards, Regulations, and 
Variances, MSHA, by request to 202-693-9440 (voice) or 202-693-9441 
(facsimile). (These are not toll-free numbers.)
    Email Notification: MSHA maintains a list that enables subscribers 
to receive an email notification when the Agency publishes rulemaking 
documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.

I. Introduction

    Under the Mine Act, mine operators, with the assistance of miners, 
have the primary responsibility to prevent the existence of unsafe and 
unhealthful conditions and practices. Operator compliance with safety 
and health standards and implementation of safe work practices provide 
a substantial measure of protection against hazards that cause 
accidents, injuries, and fatalities. The Mine Safety and Health 
Administration (MSHA) has determined that examinations of working 
places are an important part of an effective accident prevention 
strategy; they are a first line of defense because they allow operators 
to find and fix conditions. The existing standards for metal and 
nonmetal (MNM) mines requiring that workplace examinations be conducted 
at least once each shift potentially expose miners to adverse 
conditions during the shift because mine operators can perform the 
workplace examination anytime during the shift, which exposes miners to 
adverse conditions during the shift before any corrective action is 
taken. The final rule, like the proposed rule, amends this provision to 
require that each working place be examined before miners or other 
employees begin work in that place. The new requirement that mine 
operators notify miners of adverse conditions in their working places 
will make miners aware of such conditions and allow them to take 
appropriate protective measures or avoid the adverse conditions 
altogether until such conditions are corrected.
    The existing standards do not require the operator to include in 
the record adverse conditions that may contribute to an accident, 
injury, or fatality, or to document that corrective actions were taken. 
MSHA believes that by making a record of adverse conditions, mine 
operators and miners will become more proactive in their approach to 
correcting adverse conditions and avoiding reoccurrences, thereby 
improving the protection of miners.
    In addition, the final rule requires that mine operators make the 
examination record available for inspection by authorized 
representatives of the Secretary and miners' representatives and 
provide a copy upon request. Under the Mine Act, mine operators, with 
the assistance of miners, have the primary responsibility to prevent 
the existence of adverse conditions, which is why MSHA concluded that 
the final rule should require operators to make examination records 
available to miners' representatives as well as provide copies of such 
records to them upon request.
    The final rule will result in more effective and consistent working 
place examinations by helping to ensure that adverse conditions will be 
timely identified, communicated to miners, and corrected, thereby 
improving miners' safety and health.

A. 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 set forth advisory standards at 
Sec. Sec.  55.18-8, 56.18-8, and 57.18-8 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 were the same as 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 
(surface) and 57.18002 (underground). No change was made to the 
language of the standards.
    On June 8, 2016 (81 FR 36818), MSHA published a proposed rule on 
Examinations of Working Places in Metal and Nonmetal Mines. The Agency 
received comments on the proposed rule and held four public hearings in 
July and August 2016. These hearings were held in Salt Lake City, Utah; 
Pittsburgh, Pennsylvania; Arlington, Virginia; and Birmingham, Alabama. 
On August 25, 2016, in response to

[[Page 7682]]

stakeholder requests, MSHA published a document in the Federal Register 
(81 FR 58422) extending the deadline for submission of comments from 
September 6, 2016, to September 30, 2016.

B. Executive Order 12866 Summary

    MSHA is not claiming a monetized benefit for this rule. MSHA 
anticipates, however, that there will be benefits from the final rule 
as a result of more effective and consistent working place examinations 
that will help to ensure that adverse conditions will be timely 
identified, communicated to miners, and corrected. MSHA anticipates 
that the enhanced record requirements will improve accident prevention 
by helping mine operators identify any patterns or trends of adverse 
conditions and preventing these conditions from recurring. In response 
to comments, MSHA reviewed studies that examined the effectiveness of 
programs for the monitoring, detecting, and correction of hazards. 
Maxey (2013) \1\ found that injury and illness prevention programs help 
employers find hazards and fix them before injuries, illnesses, or 
deaths occur. Maxey's article notes one study which showed that after a 
short period, five States that implemented injury and safety programs 
that have the basic elements common in safety and health programs saw 
reductions in accidents ranging from 17.4 to 23 percent (Huang et al., 
2009). In another study cited by Maxey, the author found that mandatory 
injury and illness prevention programs were effective in reducing 
injury and illness incidence rates (Smitha et al., 2001).
---------------------------------------------------------------------------

    \1\ Maxey, H., Safety & Small Business, 2013, pp.12-22. http://www.asse.org/assets/1/7/Maxey_TheCompass.pdf. The article points out 
that 34 states, OSHA, and many other nations require safety and 
health programs that include monitoring, detecting, and correction 
of hazards and that have resulted in substantial reduction in loss 
of life and reduced injuries.
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    In response to comments, MSHA also notes that it is not the only 
regulatory agency to recognize the importance of working place 
examinations and records of examinations. The West Virginia Office of 
Miners' Health, Safety and Training revised its rules that govern the 
safety of those employed in and around quarries. The new rulemaking 
that went into effect July 1, 2015 requires daily inspection of working 
places and records, among other requirements, and this includes: (1) 
Examinations within 3 hours prior to the beginning of any shift; and 
(2) that records be made of hazardous conditions or violations and the 
action taken to correct them.
    MSHA estimates that the final rule will result in $34.5 million in 
annual costs for the MNM industry: $10.6 million for mines with 1-19 
employees; $22.2 million for mines with 20-500 employees; and $1.7 
million for mines with 501+ employees. The Agency estimates that the 
total undiscounted cost of the final rule over 10 years will be $345.1 
million; at a 3 percent discount rate, $294.4 million; and at a 7 
percent discount rate, $242.4 million. Additional details on MSHA's 
analysis are found in Section III of this preamble.

C. 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. For this 
rulemaking, MSHA reviewed accident investigation reports 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 of which 16 accidents (18 
fatalities) citations were issued to mine operators for unwarrantable 
failure to comply for purposes of Section 104(d) of the Mine Act. 
Because unwarrantable failures involve serious conditions that the 
operator should have known about, MSHA believes that for these 16 
accidents, had the person making the examination recorded these adverse 
conditions, the records may have alerted operators to take prompt 
corrective action thus preventing the accidents.

II. Section-by-Section Analysis

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

    Final Sec. Sec.  56.18002(a) and 57.18002(a), like the existing 
standards and proposed rule, require 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. The existing 
standards permit the examination to be made at any time during the 
shift. The final rule, like the proposed rule, requires that the 
competent person examine each working place before miners begin work in 
that place.
    In the proposed rule, MSHA requested specific 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. Many commenters did not support the proposed provision but did 
support the existing standards, which do not specify a time frame for 
the working place examination to be conducted. Some commenters rejected 
a 2-hour time frame before miners start work as arbitrary; other 
commenters with operations with shifts that begin before daylight 
opposed any specified time period. A commenter interpreted the 2-hour 
time period mentioned in the proposal to mean that, if miners do not 
enter the area within a 2-hour window, but instead enter 3 hours after 
the examination was made, the area would have to be reexamined. A few 
commenters suggested that the examination be performed as close to the 
start of the next shift as possible, but no more than 2 hours. One 
commenter who supported conducting the working place examinations 
before miners begin working in that place did support a 2-hour time 
period, unless only one employee is responsible for examining multiple 
areas. In that case, the commenter stated that additional time would be 
needed for the one employee to inspect each area properly.
    Some commenters suggested that examinations should start 
immediately before a shift begins. One commenter stated that making the 
examinations prior to someone working in that area is common sense. 
Several commenters supported conducting the examination before work 
begins as this practice alerts miners of adverse conditions before they 
begin work.
    Another commenter stated that the wording of the proposed rule, 
``before miners begin work'' and ``once each shift'', creates ambiguity 
and implies that the working place examination would occur during each 
shift but before miners begin work. MSHA acknowledges that, in the 
existing rule, ``once each shift'' may have been interpreted to mean 
``once during each shift.'' However, for this final rule, MSHA 
clarifies that ``once each shift'' means that examinations must be 
conducted at least once for each separate shift.
    The final rule provides mine operators flexibility on when to 
conduct an examination. Operators, however, should use their judgment 
to ensure that the time between the examination and the start of work 
is such that the operator would reasonably not expect conditions in the 
examined area to have been able to change adversely during that period. 
Thus, operators have the flexibility to determine how close in time the 
examination must be performed based on conditions in the mine and how 
dynamic those conditions are.

[[Page 7683]]

    Moreover, examinations can be conducted before or after the shift 
begins, so long as the examinations are conducted close in time 
``before work begins.'' We note that this allows for the competent 
person to examine a work area before workers begin working there, 
rather than requiring the competent person to examine all possible work 
areas before a shift can begin.
    Another commenter opposed the requirement to conduct the 
examination prior to beginning work, noting that MSHA's existing 
standards for surface coal mines in Sec.  77.1713 requires an 
examination ``at least once during each working shift, or more often if 
necessary.'' The commenter further stated that, due to the physical and 
operational differences between underground and surface mining, 
conducting a workplace examination before work begins in a surface mine 
is more burdensome than in an underground mine. MSHA recognizes that 
there are operational differences between surface and underground 
mining. In recognition of these differences, the final rule only 
requires that the operator examine each working place before miners 
begin work in that place. As stated during the rulemaking process and 
as is the practice under the existing rule, if miners are not scheduled 
for work in a particular area or place in the mine, that place does not 
need to be examined. Similarly, if miners are not scheduled to work for 
some time (e.g., 4 hours) after the shift begins; the final rule would 
only require that the examination be performed prior to the beginning 
of work. Therefore, the final rule provides mine operators the needed 
flexibility on how to structure workplace examinations so that 
operational differences between surface and underground mines can be 
addressed and limit any additional burden.
    Other commenters indicated that the proposed provision would limit 
mine operators to a single examination. Some of these commenters stated 
that an examination before work begins may not ensure all hazards are 
addressed, noting that since mining is dynamic and conditions are 
always changing, adverse conditions need to be addressed as they occur. 
Another commenter stated that while an industry standard practice is to 
examine for unsafe conditions before miners begin work in an area, 
unsafe conditions can occur anytime during a shift. Therefore, these 
conditions must be identified and corrected throughout the shift, not 
just at the beginning.
    MSHA agrees with comments indicating that because mine conditions 
are subject to change, mine operators and miners need to be aware of 
conditions that may occur at any time that could affect the safety and 
health of miners. As discussed above, examinations must be conducted 
sufficiently close in time to the start of work that the operator would 
not reasonably expect conditions to have changed. Moreover, the final 
rule does not limit operators to a single examination or prevent 
ongoing examinations throughout the shift. The final rule, like the 
proposed rule, requires examinations ``at least'' once per shift before 
miners begin work in that place. However, operators should continue to 
identify and correct adverse conditions in the workplace regardless of 
when they occur.
    A number of commenters representing both small and large operations 
were concerned that conditions such as lack of daylight and inclement 
weather make it impractical or impossible to conduct a workplace 
examination at the beginning of a shift or even within 2 hours of a 
shift. Some commenters suggested that MSHA modify the proposed 
requirement to allow mine examinations to begin at the beginning of a 
shift at daybreak and continue throughout a shift as mining conditions 
change. As stated earlier, under the final rule, operators must conduct 
a workplace examination before miners begin work in an area. The Agency 
assumes that if miners can work in an area, then weather and lighting 
conditions are sufficient to permit working place examinations to be 
conducted.
    Some commenters stated that multi-shift operations will be at a 
disadvantage since all work would need to be halted to accommodate an 
examination before work begins, even if a company had a sufficient 
number of competent persons available to conduct the examination before 
the area would be deemed safe to proceed. A commenter stated that for 
some site-specific work conditions, personnel would be unable to do 
inspections between shift changes. Other commenters noted that 
conducting an examination before work begins would be difficult for 
operations with overlapping or maintenance shifts and questioned when 
an examination would be required. Other commenters noted that 
conducting an examination within a specified time period, i.e., within 
2 hours before the shift starts, is not practical for mines scheduled 
to operate on a 24-hour, 365-day basis with multiple crews working over 
multiple shifts. A few commenters suggested that MSHA consider allowing 
the previous shift to conduct examinations for the next shift.
    The final rule requires that a competent person conduct an 
examination before work begins so that conditions that may adversely 
affect miners' safety and health are identified before they begin work 
and are potentially exposed. In response to these comments, MSHA's 
final rule provides operators with flexibility on how to structure 
workplace examinations as long as they are conducted before miners 
begin work in that place. As noted previously, the final rule does not 
require a specific time frame for the examination to be conducted 
before work begins.
    The purpose of the rule is to ensure that for each shift the 
examinations occur at a time that is sufficiently close to when miners 
begin their work. MSHA acknowledges that for mines with consecutive 
shifts or those that operate on a 24-hour, 365-day basis, it may be 
appropriate to conduct the examination for the next shift at the end of 
the previous shift to ensure that the examination is complete before 
the next shift begins work in those places. However, because conditions 
at mines can change, operators should examine at a time sufficiently 
close to the start of the shift, before miners begin work at that 
working place, to minimize potential exposure to conditions that may 
adversely affect their safety or health. For this reason, MSHA does not 
believe that the protective purpose of the examinations would be 
accomplished if, at single-shift mines for example, the examination for 
one day's shift were performed at the end of the previous day's shift.
    In response to commenters' concerns, if an examination was made for 
miners before work began in that place and incoming miners on an 
overlapping or maintenance shift are to begin work in that place, an 
additional examination is not needed provided that the incoming shift 
begins work close to when the examination was conducted and mining 
conditions would not be expected to have changed adversely.
    The final rule, like the existing standards and the proposed rule, 
would continue to require that operators examine each working place at 
least once each shift. Existing Sec. Sec.  56.2 and 57.2 define 
``working place'' as ``any place in or about a mine where work is being 
performed.'' Some commenters expressed concerns that the phrase 
``working place'' was vague or needed clarification. A number of 
commenters stated that the phrase ``working place'' needs to be defined 
beyond what is in existing Sec. Sec.  56.2 and 57.2. Other

[[Page 7684]]

commenters stated that further clarification is needed to distinguish 
between regular working places and the occasional or sudden assignment 
that requires a miner to enter into a place that is not a regularly 
active production area or where mining activities are not present. For 
such areas, commenters asserted that the examination should occur when 
work begins, even if work begins in this location mid-shift. Some 
commenters expressed concern that the proposed rule would require mine 
operators to conduct an examination of the entire mine before the start 
of each shift. Some of these commenters also stated that it is 
impractical to expect the entire mine to be inspected prior to the 
start of the shift because of changing work needs during the course of 
a shift.
    It is not MSHA's intent for the mine operator to examine the entire 
mine before work begins, unless work is beginning in the entire mine. 
As previously noted, ``before work begins,'' may or may not coincide 
with the start of any particular shift; it depends on when miners 
actually will be working in any particular working place. The final 
rule, like the existing standards and proposed rule, would require 
examinations in only those areas where work will be performed.
    As MSHA stated in the preamble to the proposed rule, a ``working 
place'' applies to all locations at a mine where miners work in the 
extraction or milling processes (81 FR 36821). MSHA clarifies that 
consistent with the existing definition of ``working place,'' this 
includes roads traveled to and from a work area (81 FR 58422). MSHA 
further clarifies that a 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. Unless required by other standards, mine 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 (81 FR 58423).
    Final Sec. Sec.  56.18002(a) and 57.18002(a), like the existing 
standards and the proposed rule, require that operators examine each 
working place for conditions that may adversely affect safety or 
health. Many commenters expressed concerns that the term ``adverse'' is 
ambiguous, lacks specificity, and is open to interpretation. A few 
commenters provided examples of conditions that could adversely affect 
safety and health such as slips, trips, and falls, or cause a fatal 
injury. MSHA notes that the final rule, like the existing standards, 
requires that an operator examine each working place for conditions 
that ``adversely affect safety or health.'' MSHA believes that the 
mining community understands the meaning of ``adverse'' in these 
standards because it has been in place since 1979.
    One commenter stated that, even among MSHA inspectors from the same 
field office, there can be variability in judgments of inspectors 
whether a stated condition is ``adverse.'' Another commenter noted that 
for mine operators to better train their competent persons, MSHA must 
better define ``adversely affect'' so that laymen can understand it and 
apply it consistently; otherwise, mine operators could be subject to 
ever-changing interpretations when MSHA inspects the mine.
    MSHA regularly trains its inspectors and managers. A central focus 
of the Agency's enforcement training and retraining is consistency. In 
addition, MSHA will develop outreach and compliance assistance 
materials related to the final rule and will include these materials in 
stakeholder seminars to be held in locations accessible to the mining 
public. As part of this process, MSHA will identify best practices that 
can be shared with the mining community.
    Final Sec. Sec.  56.18002(a) and 57.18002(a), like the existing 
standards and the proposed rule, require that the working place 
examination be made by a competent person designated by the mine 
operator. Under Sec. Sec.  56.2 and 57.2, a competent person means a 
person having abilities and experience that fully qualify him to 
perform the duty to which he is assigned. In Program Policy Letter 
(PPL) No. P15-IV-01, MSHA emphasizes that the competent person 
designated by the operator 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.\2\ In this same PPL, MSHA states that a best practice is for 
a foreman or other supervisor to conduct the examination, and that an 
experienced non-supervisory person may also be ``competent.'' The PPL 
emphasizes that a competent person designated by the operator under 
Sec. Sec.  56.18002(a) and 57.18002(a) must have the experience and 
training to be able to perform the examination and identify safety and 
health hazards.
---------------------------------------------------------------------------

    \2\ MSHA's PPL guidance on the meaning of ``competent person'' 
was informed by the Commission decision in Secretary of Labor (MSHA) 
v. FMC Wyoming Corporation, 11 FMSHRC 1622 (1989), which held that: 
``As with many safety and health standards, Sec. Sec.  57.18002(a) 
and 57.2 are drafted in general terms in order to be broadly 
adaptable to the varying circumstances of a mine. Kerr-McGee Corp., 
3 FMSHRC 2496, 97 (November 1981). We conclude that the term 
`competent person' within the meaning of Sec. Sec.  57.18002(a) and 
57.2 must contemplate a person capable of recognizing hazards that 
are known by the operator to be present in a work area or the 
presence of which is predictable in the view of a reasonably prudent 
person familiar with the mining industry.''
---------------------------------------------------------------------------

    In the proposed rule, MSHA requested 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. Many commenters expressed 
concern over the possibility that MSHA might restrict the ``competent 
person'' to supervisors or foremen. Some commenters suggested that MSHA 
develop training and templates for workplace examinations for various 
commodities that would highlight hazards and typical work tasks in 
different mining environments. As previously stated, MSHA will develop 
outreach and compliance assistance materials to be made available at 
stakeholder seminars.
    Other commenters suggested that there needs to be a minimum level 
of experience, ability, or knowledge to be a competent person. These 
commenters stated that such miners need specific task training in 
recognizing hazards. One commenter suggested at least 8 hours of 
retraining each year on identifying workplace hazards, while another 
suggested 24 to 40 hours of training. A few commenters were concerned 
that MSHA might require formal training for surface miners, as is 
required for underground miners in MSHA's system for certification of 
competency in underground coal mining. Other commenters suggested that 
mine operators, and not MSHA, should determine the training necessary 
for the competent person at their locations.
    This final rule does not change the definition of ``competent 
person'' under existing Sec. Sec.  56.2 and 57.2. MSHA believes that 
existing experience and training requirements allow for needed 
flexibility while still requiring the level of competency necessary to 
conduct adequate examinations. In the final rule, like the existing 
standards and the proposed rule, the competent person is designated by 
the mine operator.
    Final rule Sec. Sec.  56.18002(a)(1) and 57.18002(a)(1) are similar 
to the proposed rule. Like the proposal, they contain a provision 
requiring mine operators to notify miners in any affected areas of any 
conditions found that may adversely affect their safety or health. 
Miners need to know about adverse conditions in their working

[[Page 7685]]

place so that they can take protective measures or avoid the adverse 
conditions altogether. Several commenters expressed concern that there 
is no need to notify miners of conditions found, if such conditions, 
such as a hose across a walkway, were corrected immediately. Many 
commenters added that only conditions that cannot or have not been 
corrected require miner notification; if the hazard has been corrected, 
there is no benefit for requiring miner notification. The Agency 
recognizes that if adverse conditions are corrected before miners begin 
work, notification is not required because there are no ``affected 
areas.''
    MSHA received other comments addressing the notification provision. 
Many commenters stated that they already notify miners of hazards 
through tagging, signage, and posting. One commenter asked that MSHA 
suggest methods of notification to all miners for typical conditions 
found on a workplace examination. The commenter then requested 
clarification on who would receive the notification--that is, whether 
operators would be required to notify incoming shift workers not yet in 
the area or not yet at work. The same commenter also was concerned 
about the logistics for notifying miners when many examinations are 
being conducted at the same time. Another commenter stated that prompt 
notification to employees if they are not in an affected area could 
take considerable time and resources resulting in operational downtime 
and lost revenue. The commenter added that, as a logistical matter, 
this process will be nearly impossible to manage on a mine site with 
thousands of employees and contractors.
    Another commenter wrote that the term ``promptly notify'' is vague. 
This same commenter was also concerned that the proposed rule was 
unclear about who would need to be notified. The commenter stated that 
notifying miners who are not affected by the hazard carries no safety 
benefit and distracts them, thereby risking work slowdowns. This 
commenter expressed concerns about diverting a mine's resources to 
notify miners needlessly just to avoid MSHA citations for failing to 
communicate such hazards to all miners.
    In its August 25, 2016, comment extension document in the Federal 
Register (81 FR 58422), MSHA clarified that to ``promptly notify 
miners'' means any notification to miners that alerts them to adverse 
conditions in their working place so that they can take necessary 
precautions to avoid the adverse condition. MSHA added that this 
notification could take any form that effectively notifies miners of an 
adverse condition: Verbal notification, prominent warning signage, 
other written notification, etc. MSHA believes that, in most cases, 
verbal notification or descriptive warning signage would be needed to 
ensure that all affected miners received actual notification of any 
adverse condition. MSHA also clarified that a ``prompt'' notification 
is one that occurs before miners are potentially exposed to the 
condition; e.g., before miners begin work in the affected areas, or as 
soon as possible after work begins if the condition is discovered while 
they are working in an area. For example, this notification could occur 
when miners are given work assignments (81 FR 58422). Consistent with 
the comment extension document, the final rule requires notification 
only of those miners ``in any affected areas.'' Therefore, not all 
miners need to be notified, only those miners that would be affected by 
the adverse condition.
    Final rule Sec. Sec.  56.18002(a)(1) and 57.18002(a)(1), like the 
proposed rule, incorporate requirements from existing Sec. Sec.  
56.18002(a) and 57.18002(a) that the mine operator promptly initiate 
action to correct conditions that may adversely affect miners' safety 
or health that are found during the examination. A commenter suggested 
that the proposed requirement would encourage narrower examinations to 
avoid the need to engage in remedial efforts in non-working places, 
which could lead to more hazardous conditions if a miner wanders into 
these unexamined areas. A few commenters stated that the existing rule 
has long required mine operators to identify and ``promptly initiate 
action to correct'' any ``conditions which may adversely affect safety 
or health.'' The final rule is not changed from the existing standards.
    Final rule Sec. Sec.  56.18002(a)(2) and 57.18002(a)(2), like the 
proposed provisions, are redesignated from and substantively the same 
as existing Sec. Sec.  56.18002(c) and 57.18002(c). These provisions 
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 who must withdraw all persons from the area 
affected (except persons referred to in section 104(c) of the Mine Act) 
until the danger is abated. In response to comments, MSHA clarified 
that the proposed rule would not change the existing standards 
regarding conditions that present imminent danger (81 FR 58422). 
``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.'' Although MSHA received comments on this 
aspect of the proposal, the final rule is not changed from the existing 
standards and is consistent with the statute.

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

    Final rule Sec. Sec.  56.18002(b) and 57.18002(b) require that a 
record of each examination be made before the end of the shift for 
which the examination was conducted. The requirement that the operator 
make a record is not a new provision; existing Sec. Sec.  56.18002(b) 
and 57.18002(b) require a record that the examination was conducted. 
The final rule, like the proposal, requires the record to include: (1) 
The name of the person conducting the examination; (2) the date of the 
examination; (3) the location of all areas examined, and (4) a 
description of each condition found that may adversely affect the 
safety or health of miners. The final rule does not include the 
proposed requirements that the record contain: (1) The signature of the 
competent person conducting the working place examination and (2) the 
description of the corrective actions taken.
    The Agency received a number of comments on proposed provisions of 
paragraph (b) asking if MSHA would require the person conducting the 
working place examination to wait until the end of the shift to make 
the record. MSHA clarified that the proposal would allow the competent 
person conducting the examination to make the record at any time before 
the end of the shift (81 FR 58422).
    As previously noted, final rule Sec. Sec.  56.18002(b) and 
57.18002(b), like the proposed rule, add requirements for the contents 
of the examination record. Final paragraph (b), unlike the proposed 
rule, does not require that the competent person conducting the working 
place examination sign the record; instead, the record must include 
only the name of the competent person. Many commenters stated that the 
proposed requirement to sign the examination record would increase the 
potential for liability under Section 110(c) of the Mine Act for miners 
who conduct workplace examinations. Some commenters were concerned that 
the designated competent person would be liable under 110(c) for 
individual civil penalties. Other commenters stated that the signature 
requirement is unproductive, does not improve safety, and that 
competent persons are taking

[[Page 7686]]

the risk that they will be criminally prosecuted for knowing and 
willful violations. Commenters stated that it is difficult to get 
individuals to take on the responsibility of becoming a competent 
person. Some commenters were concerned that the signature requirement 
would discourage miners from conducting working place examinations and 
would have a negative impact on the quality of the examination.
    MSHA believes that the single act of signing one's name adds no 
more and no less to the substantive duties and qualifications of the 
person who conducts the examination. For that reason, MSHA does not 
agree with commenters who believe that a signature would increase 
exposure to personal liability under Section 110(c). However, as will 
be discussed, MSHA also believes that it is the identity of the 
examiner, rather than the signature, that is important to record. For 
this reason, the final rule does not require the signature of the 
competent person conducting the working place examination.
    Some commenters were not in favor of including the name of the 
competent person in the record. MSHA maintains that, like a signature, 
printing one's initials or name adds no more and no less to the 
substantive duties and qualifications of the person who conducts the 
examination. Historically, MSHA has taken the position that a 
meaningful record should at least contain the name of the competent 
person who conducted the examination. In addition, MSHA believes that 
the mine operator would need to know who conducted the working place 
examination. It is important to know the identity of the examiner for a 
number of reasons, such as clarifying the condition noted or following 
up with the examiner regarding areas examined or conditions noted.
    Final rule Sec. Sec.  56.18002(a) and 57.18002(b), like the 
proposal, require that the record be dated. A few commenters supported 
including the date in the record; some stated that they already include 
the date in their examination record. MSHA has determined that dating 
the record is a key element for record management and for identifying 
trends that would be useful in promoting a mine's safety and health 
efforts.
    Final rule Sec. Sec.  56.18002(a) and 57.18002(b), like the 
proposal, also require that the record contain the location of all 
areas examined and a description of each condition found that may 
adversely affect the safety or health of miners.
    Many commenters opposed including in the record the locations of 
all areas examined and a description of each condition that may 
adversely affect the safety and health of miners, citing burden and 
cost concerns. A few commenters objected to recording every work 
location examined, indicating that this provision was costly and 
burdensome and would not improve miners' safety. These commenters also 
noted that the proposed requirement to include the locations of all 
areas examined would increase the number of records significantly. 
Several of these commenters recommended that MSHA allow operators to 
use a form or checklist for the examination record, noting that this 
would reduce burden and assist in operators' compliance with this 
requirement. Some commenters questioned how specific the description of 
adverse conditions should be because requiring more detail would limit 
the use of forms or checklists. Several other commenters supported the 
provision to include the locations of all areas examined and noted that 
they are currently including this information as part of their 
examination records. MSHA has determined that requiring that the record 
include locations of areas examined ensures that the mine operator is 
aware that all locations in a working place have been examined.
    The final rule allows mine operators the flexibility to record the 
results of an examination using a checklist or any other format, as 
long as the record includes the information listed in paragraph (b). 
Regarding the specificity of a description of an adverse condition, 
MSHA clarifies that the description should provide sufficient 
information which allows mine operators to notify miners of the 
condition and to take prompt corrective action.
    Several commenters supported the proposed provision to record a 
description of each condition found that may adversely affect the 
safety or health of miners. Another commenter noted that many companies 
follow the ``best practices'' MSHA advocated in its policy documents in 
terms of memorializing what hazards are identified. Other commenters 
objected to including a description of all adverse conditions found in 
the examination record. Specifically, one commenter stated that 
requiring a description of every adverse condition is a burdensome 
requirement and does not provide any benefit to miners if it was 
immediately corrected by the competent person who performed the 
examination. This commenter stated that only the adverse conditions 
that cannot or have not been corrected should be required to be 
documented as these could affect miners. The commenter noted that this 
would provide an incentive to immediately correct adverse conditions. 
Another commenter stated that there are certain adverse conditions that 
occur regularly during normal mining operations. The commenter provided 
an example of entering an area in which a round of explosives has 
recently been blasted creating adverse conditions such as unsupported 
ground at the face, loose rock that presents tripping hazards, and 
dusty conditions caused by the blast. The commenter believed that 
requiring the competent person conducting the examination to record 
these regularly occurring adverse conditions and the corrective 
actions, would add no value since these conditions will be expected. 
The commenter further stated that this would unnecessarily add to the 
duties of the competent person conducting the examination.
    MSHA believes that, by making a record of adverse conditions, mine 
operators and miners will become more proactive in their approach to 
correcting the conditions and avoiding recurrence, thereby improving 
protections for miners. The Agency believes that a record that notes 
the adverse conditions prior to miners working in an area expedites the 
correction of these conditions, notwithstanding the regularity in which 
the adverse conditions occur. Also, MSHA believes that recording all 
adverse conditions, even those that are corrected immediately, will be 
useful as a means of identifying trends. This information should help 
inform mine management regarding areas or subjects that may benefit 
from increased safety emphasis.
    Some commenters questioned if correcting the condition takes a 
significant amount of time, would the adverse condition have to be 
recorded each shift until it is corrected. MSHA clarifies that if not 
immediately corrected, the continuing adverse condition does not need 
to be recorded each shift. The final rule requires that, once the 
condition is corrected, the record include, or be supplemented to 
include, the date of corrective action.
    Regardless of how long an adverse condition has existed, mine 
operators must ensure that all affected miners are promptly notified of 
all adverse conditions on each shift as required in final paragraph 
(a)(1), so that miners can take the necessary precautions to avoid an 
accident or injury.
    Another commenter stated that requiring that examinations include 
descriptions of unsafe conditions would require separate records for 
each and every examination. The commenter

[[Page 7687]]

added that for medium and large-sized operations this requirement would 
necessitate the generation, management, and storage of hundreds of 
thousands of individual examination records each year. The commenter 
stated that this may not be feasible for many operators, or would 
require the operators to add additional personnel and incur the 
associated costs without any proven benefit.
    MSHA believes that a key element in any safety and health program 
includes the identification of adverse conditions. MSHA further 
believes that this information is essential to inform operators and 
miners of these conditions, so that they can be found and fixed before 
miners are exposed to them. Under the existing standards, a competent 
person is not required to record adverse conditions. MSHA's experience 
is that if adverse conditions are not recorded, these conditions may 
exist for more than one shift, causing or contributing to an accident, 
injury, or fatality. The final rule allows mine operators the 
flexibility to record the results of an examination using electronic or 
hard copy checklists or any other format, as long as the record 
includes the information listed in paragraph (b). In addition, MSHA has 
reduced the recordkeeping requirements in the final rule to address 
commenters' concerns regarding costs and burden.
    Many commenters were concerned that the Agency will use the 
examination record to write citations based solely on the adverse 
conditions identified in the record. This is not MSHA's intent, nor do 
we plan to train our inspectors to do this. MSHA reiterates that the 
Agency's intent is to ensure that conditions that adversely affect the 
safety or health of miners are found and fixed before miners begin 
work.
    MSHA proposed in Sec. Sec.  56.18002(b)(2) and 57.18002(b)(2) that 
the record include a description of the corrective action taken and the 
date it was taken, the name of the person who made the record of the 
corrective action, and the date the record of corrective action was 
made. The final rule in paragraph (c), similar to the proposed rule, 
requires when a condition that may adversely affect safety or health is 
corrected, the examination record must include the date of the 
corrective action. The final rule, unlike the proposed rule, does not 
require that the name of the person who made the record of the 
corrective action be included in the record.
    Many commenters opposed the proposed requirement that the record 
contain a description of every corrective action, stating that this was 
burdensome, especially for small operations. One commenter noted that 
for conditions not immediately corrected, the proposal would result in 
leaving open indefinitely the mandatory records, raising the potential 
for records to be misplaced. Other commenters noted that including a 
description of corrective actions in the examination record is 
duplicative since operators have systems in place that track work 
orders and repairs that document corrective actions taken. Other 
commenters stated that this provision would not enhance miners' safety. 
In response to these comments, the final rule does not require that the 
record include a description of corrective action. MSHA believes that a 
single requirement to record the date the corrective action is 
completed will result in similar safety benefits for less time and 
cost, as it will still encourage prompt corrective action.
    Many commenters did not support the provisions in proposed 
paragraph (b)(2) to record the name of the person who made the record 
of the corrective action, the date the corrective action was taken, and 
the date the record of corrective action was made, stating that they 
were unnecessary and confusing. These commenters added that these 
proposed requirements may overly complicate recordkeeping and add 
little protective value. MSHA notes that while the final rule does not 
require the name of the person who made the record of corrective 
action, it does require that the record include the date of the 
corrective action. MSHA expects that most corrective actions will be 
completed before the end of the shift on which the adverse condition 
was found and that, therefore, the date of the corrective action will 
be the same as the date of the examination. However, regardless of when 
the corrective action is completed, the examination record noting the 
adverse condition must include or must be updated with the date of the 
corrective action. MSHA believes that including the date of corrective 
action alerts the mine operator, the authorized representative of the 
Secretary, and miners' representatives whether adverse conditions have 
been corrected.
    A few commenters stated that the person taking the corrective 
action is not necessarily the same person who dates the record of 
corrective action. Recognizing these commenters' concerns, MSHA 
clarifies that under the final rule, unlike the preamble discussion to 
the proposed rule, the person who takes the corrective action does not 
need to be the person who records the date of corrective action under 
final paragraph (c).
    MSHA received comments requesting that the Agency allow alternative 
means of documenting corrective action other than the examination 
record, such as closed-out work orders or invoices. MSHA believes, 
however, that all information related to adverse conditions should be 
in one record, including the date of corrective action, to ensure a 
complete record is available for inspection and the Agency will not 
accept alternate documentation for corrective action taken.
    Final rule Sec. Sec.  56.18002(d) and 57.18002(d), like the 
existing standards and proposed Sec. Sec.  56.18002(b)(3) and 
57.18002(b)(3), require that the operator maintain the examination 
records for one year and make them available to the Secretary or his 
authorized representative. The final rule, like the proposed rule, adds 
requirements that: (1) The record also be made available for inspection 
by miners' representatives and (2) that a copy be provided to the 
Secretary or his authorized representative and miners' representatives 
upon request.
    Some commenters suggested that the requirement for a one-year 
record retention period be changed to six months since MSHA inspections 
are on a six-month inspection schedule. Historically, mine operators 
have been required to retain examination records for one year. The Mine 
Act requires that surface mines be inspected at least twice a year but 
does not mandate that the inspections be six months apart; inspection 
schedules vary. Also, retaining examination records for one year allows 
operators and miners to identify trends that may not be apparent in a 
shorter period of time. The final rule retains the existing 
requirement.
    A few commenters suggested that examination records be made and 
kept electronically since they currently complete these records 
electronically. MSHA agrees; however, when records are collected 
electronically, such records must be secured in a computer system that 
is not susceptible to alteration. These electronic records must be made 
available for inspection by authorized representatives of the Secretary 
and representatives of miners, and an electronic or paper copy must be 
provided upon request.
    Several commenters opposed the proposed requirement to make records 
available upon request to representatives of miners. They stated that 
obligating an operator to make its examination records available to the 
miners' representatives and to provide copies upon request will not 
improve or benefit safety. One commenter stated that making records 
available for review

[[Page 7688]]

by MSHA to confirm compliance is one thing, but forcing operators to 
make books and records available to its rank-and-file personnel shows 
lack of respect by MSHA for the integrity of mine management. Several 
commenters did not oppose making the records available to miners and 
their representatives.
    MSHA notes that the final rule, like the proposal, includes the 
requirement that records be made available for inspection by miners' 
representatives. This is consistent with the Mine Act which requires 
miners be provided with information concerning safety and health 
hazards. Under the Mine Act, mine operators, with the assistance of 
miners, have the primary responsibility to prevent the existence of 
adverse conditions, which is why MSHA concluded that the final rule 
should require operators to make examination records available to 
miners' representatives as well as to provide copies of such records to 
them upon request. Also, under other MSHA safety and health standards, 
operators provide records to miners' representatives.
    A few commenters suggested that mine operators have a ``workplace 
inspection program'', which could be documented or submitted to MSHA 
for approval, noting that MSHA could use this document to check for 
compliance. Other commenters suggested additional miner training could 
be an alternative to modifying the existing standards. MSHA did not 
propose or solicit comments regarding a workplace inspection program or 
additional miner training: either would have necessitated a discussion 
of various options in the proposed rule. For this reason, both of these 
issues are beyond the scope of this rulemaking.

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 final rule is an 
``other significant'' regulatory action because it raises novel legal 
and policy issues. However, MSHA has determined that this final rule 
will not have an annual effect of $100 million or more on the economy 
and, therefore, will not be an economically significant regulatory 
action pursuant to section 3(f) of E.O. 12866.

A. Population at Risk

    The final rule will apply to all MNM mines in the United States. In 
2015, there were approximately 11,660 MNM mines employing 144,408 
miners, excluding office workers, and 74,465 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 2015
------------------------------------------------------------------------
                                                       Total employment
                                                           at mines,
            Mine size               Number of mines    excluding office
                                                            workers
------------------------------------------------------------------------
1-19 Employees..................              10,451              52,310
20-500 Employees................               1,187              74,545
501+ Employees..................                  22              17,553
Contractors.....................  ..................              74,465
                                 ---------------------------------------
    Total.......................              11,660             218,873
------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2) September 21,
  2016.

    The U.S. Department of the Interior (DOI) estimated revenues of the 
U.S. mining industry's MNM output in 2015 to be $78.3 billion.\3\ Table 
2 presents the hours worked and revenues for MNM mines by mine size.
---------------------------------------------------------------------------

    \3\ Production revenue estimates are from DOI, U.S. Geological 
Survey (USGS), Mineral Commodity Summaries 2016, February 2016, page 
8.

              Table 2--MNM Total Hours and Revenues in 2015
------------------------------------------------------------------------
                                                          Revenue (in
            Mine size                 Total hours         millions of
                                   reported for year       dollars)
------------------------------------------------------------------------
1-19 Employees..................          88,661,855             $22,149
20-500 Employees................         159,361,570              43,652
501+ Employees..................          37,470,328              12,499
                                 ---------------------------------------
    Total.......................         285,493,753              78,300
------------------------------------------------------------------------
Source: MSHA MSIS Data (total hours worked at MNM mines reported on MSHA
  Form 7000-2) and estimated DOI reported mine revenues for 2015 by mine
  size.


[[Page 7689]]

B. Benefits

    The purpose of this final rule is to ensure that MNM mine operators 
identify and correct conditions that may adversely affect miners' 
safety or health. Effective workplace examinations are a fundamental 
accident prevention tool; they allow operators to find and fix adverse 
conditions and violations of safety and health standards before they 
cause injury or death to miners.
    Under MSHA's existing standards, mine operators can perform the 
examinations anytime during the shift. If the examination is performed 
after miners begin work, miners may be exposed to conditions that may 
adversely affect their safety and health. In addition, the existing 
standard does not specify the contents of the examination record.
    Over the years, MSHA has issued Program Policy Letters (PPL) 
regarding working place examinations. The PPLs are MSHA's guidance and 
best practices regarding compliance with the existing standards. In the 
PPLs, MSHA provided guidance on what the examination record should 
include, such as: (1) The date of the examination; (2) name of the 
person conducting the examination; (3) the working places examined; and 
(4) a description of the conditions found that adversely affect safety 
or health. In the Agency's experience, despite MSHA guidance and best 
practices, under the existing standard working place examinations are 
not always done at a point during the shift when the results of the 
examination would provide the necessary protections as intended by the 
Mine Act and the existing standard.
    MSHA's final rule amends the existing standards to require that the 
examination of each working place be conducted at least once each shift 
before miners begin work in that place, and that mine operators notify 
miners in affected areas of any conditions found that may adversely 
affect their safety or health. The final rule also requires that the 
examination record contain the name of the person conducting the 
examination, the date of the examination, the location of all areas 
examined, a description of each condition found that may adversely 
affect the safety or health of miners, and the date the corrective 
action was made.
    A number of commenters observed that MSHA was unable to quantify 
the benefits of the proposed rule. Another commenter stated that MSHA 
should show that the Agency's proposed revision of the existing rule 
will not negatively impact the safety and health of miners as required 
by the Mine Act. Under the Mine Act, MSHA is not required to use 
monetized benefits or estimated net benefits as the basis for the 
Agency's decision on standards designed to protect the health and 
safety of miners. However, in the proposed rule, MSHA stated that, 
while the Agency was unable to quantify the benefits, it anticipated 
there would be unquantified benefits from the proposed requirements.
    MSHA recognizes that under the existing standards, many mine 
operators have safe workplace operations and safety programs that 
include many of the provisions in this final rule. However, as noted 
above, the Agency's experience is that there is a significant degree of 
variability in how safety programs are operationalized. MSHA has 
concluded that the final rule will reduce the variability in how 
operators conduct examinations of working places and thereby improve 
miners' safety and health. MSHA believes that several features of this 
rule will contribute to this reduction in variability in workplace 
examinations and reporting. These features are conducting the workplace 
examination before work begins; and a record that will include 
locations examined, a description of adverse conditions found, and the 
date they were corrected. Under the existing standard, MSHA does not 
specify the timing of the examination or the contents of the record. In 
addition, the final rule adds a new requirement that mine operators 
notify miners of adverse conditions in their working places that will 
ensure that miners are aware of such conditions and avoid them until 
they are corrected. MSHA anticipates that there will be benefits from 
these provisions that will result in more effective and consistent 
workplace examinations and ensure that adverse conditions will be 
timely identified, communicated to miners, and corrected.
    However, MSHA is unable to separate the benefits of the new 
requirements under the final rule from those benefits attributable to 
conducting a workplace examination under the existing standards. The 
Agency has concluded that the combined effect of all the provisions 
(existing standards that have been in place since 1979 and the final 
rule) will improve miners' safety and health. While unable to quantify 
the benefits, the Agency has concluded that the final rule will have 
benefits.
    MSHA also anticipates that there will be additional unquantifiable 
financial benefits, such as reduced insurance premiums, from effective 
working place examinations that will help mine operators, miners, and 
their representatives to become more aware of potential dangers, and be 
more proactive in correcting adverse conditions and violations of 
health and safety standards before these conditions cause an accident.

C. Compliance Costs

    MSHA estimated the costs for MNM mine operators to comply with the 
final rule. Table 3 provides a summary of the annual costs by mine 
size.

                            Table 3--Summary of Annual Costs to MNM Mine Operators *
                                                  [$ millions]
----------------------------------------------------------------------------------------------------------------
                                                                     Mine size
                   Requirement                   ------------------------------------------------     Totals
                                                       1-19           20-500           501+
----------------------------------------------------------------------------------------------------------------
56/57.18002 (a) Conduct Exam Before Work Begins.           $4.96          $20.22           $1.69          $26.88
56/57.18002 (b)& (c) Additional Time to Make                5.51            1.73            0.04            7.29
 Record.........................................
56/57.18002 (d) Provide Miners' Representative a            0.13            0.21            0.01            0.35
 Copy of Record.................................
                                                 ---------------------------------------------------------------
  * Totals (may not sum due to rounding)........           10.61           22.16            1.75           34.51
----------------------------------------------------------------------------------------------------------------

Examination of Working Places--Final Sec. Sec.  56.18002(a) and 
57.18002(a)
    Final Sec. Sec.  56.18002(a) and 57.18002(a) require that a 
competent person designated by the operator must 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.
    In the proposed rule, MSHA believed that the cost associated with 
examining areas before miners begin work in that area would be de 
minimis. However, several commenters stated that requiring

[[Page 7690]]

the working place examination to occur before miners can begin work 
would impose additional costs on mine operators. Commenters also 
expressed concern that there could be considerable downtime and lost 
productivity as miners waited for a working place examination to be 
completed before starting work. Some commenters stated that it could 
take between two to six hours for larger mines to conduct the 
examination, which they stated might require paying overtime to the 
competent person to arrive well before the shift begins.
    Based on these comments, MSHA concludes that MNM mine operators 
will use a variety of scheduling methods to conduct an examination of a 
working place before miners begin work. In developing this cost 
estimate, MSHA considered the following variables: (1) Percent of mine 
operators currently compliant with this requirement; (2) number of 
shifts by mine size; (3) average time to conduct a workplace 
examination by mine size; (4) hourly wage rate; and (5) number of days 
a mine operates, on average, by mine size. Operators may use overtime, 
use different people to backfill for the time shifted to the 
examination, and perhaps lengthen the examination time to comply with 
the final rule. Based on analysis of comments received about overtime, 
MSHA assigned an overtime rate to the new time adjustments to 
appropriately estimate the change to costs.
    Small mine operators, with 1-19 employees, represent 90 percent of 
all MNM mines. Of these small mines, 62 percent have 1-5 employees. It 
is MSHA's experience that small mine operators with 5 or fewer 
employees are currently in compliance with the final rule or will be 
able to adjust work schedules to comply without incurring additional 
costs and burden. MSHA also determined from the public comments that a 
greater percentage of larger mines will incur compliance costs due to 
large physical spaces, complex work schedules, and larger numbers of 
miners assigned to such schedules. In response to comments, the Agency 
estimated that 15 percent of mines with 1-19 employees, 65 percent of 
mines with 20-500 employees, and 85 percent of mines with 501+ 
employees will incur some additional cost as a result of requiring 
operators to conduct working place examinations before miners begin 
work in those places.
    For the proposed rule, MSHA assumed that mines with 1-19 employees 
operated 1 shift per day, while those with 20 or more employees 
operated 2 shifts per day. Five commenters submitted concerns about 24/
7 operations or overlapping shifts in large mines. MSHA re-examined the 
availability of internal data and revised the number of shifts. For the 
final rule, MSHA estimates that, on average: A mine with 1-19 employees 
operates 1.1 shifts per day; a mine with 20-500 employees operates 1.8 
shifts per day; and a mine with 501+ employees operates 2.2 shifts per 
day. As with all averages, the data include a range of values.
    In response to comments and based on the Agency's experience, MSHA 
estimates that, on average, the time to conduct workplace examinations 
before work begins is: 20 minutes in mines with 1-19 employees; 1 hour 
in mines with 20-500 employees; and 2.5 hours in mines with 501+ 
employees.
    In the proposed rule, MSHA assumed that all MNM mines operate 300 
days per year. Commenters provided various estimates on the number of 
days that MNM mines operate. In response to comments, MSHA reevaluated 
the Agency's estimate. MSHA reviewed employment, average shifts per 
week, and average hours per employee to estimate average days per year 
worked in MNM mines for 2015.\4\ MSHA's estimate shows that, on 
average, a mine with 1-19 employees operates 169 days per year, a mine 
with 20-500 employees operates 285 days per year, and a mine with more 
than 500 employees operates 322 days per year.
---------------------------------------------------------------------------

    \4\ MSHA MSIS data, 2015.
---------------------------------------------------------------------------

    In the proposed rule, MSHA used a 2014 hourly wage rate of $31.14 
(including benefits). One commenter stated that $51.25 was the 2016 
average miner hourly wage rate for large mines that the commenter 
represents. Another commenter stated that for the mine operators it 
represents the pay, on average, is $35 to $55 per hour, excluding 
benefits. However, this commenter did not specify whether this hourly 
wage rate range was for a supervisor or a miner. Another commenter 
provided calculations that used MSHA's proposed wage rate of $31.14 per 
hour.
    The hourly wage rate used in MSHA's analysis assumes an average 
rate for all MNM mines. For the final rule, like the proposal, MSHA 
used wage data from BLS's Occupational Employment Survey 
(OES).5 6 For the final rule, the hourly wage rate, updated 
for 2015, is $34.06 (including benefits).
---------------------------------------------------------------------------

    \5\ OES data are available at http://www.bls.gov/oes/tables.htm 
or at http://www.bls.gov/oes/oes_ques.htm. The employment-weighted 
mean wage is for Extraction Workers (Standard Occupational 
Classification code, SOC, 475000) for Metal Ore Mining (NAICS 
212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). 
The OES wages represent the average for the entire industry and are 
used nationally for many federal estimates and programs. As with any 
average, there are always examples of higher and lower values but 
the national average is the appropriate value for a rule regulating 
an entire industry.
    \6\ The wage rate without benefits was increased for a benefit-
scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for 
Employee Compensation access by menu http://www.bls.gov/data/ or 
directly with http://download.bls.gov/pub/time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private 
Industry Total benefits for Construction, extraction, farming, 
fishing, and forestry occupations, is divided by 100 to convert to a 
decimal value. MSHA used the latest 4-quarter moving average 2015 
Qtr. 3-2016 Qtr. 2 to determine that 32.65 percent of total loaded 
wages are benefits. The scaling factor is a detailed calculation, 
but may be approximated with the formula and values 1 + (benefit 
percentage/(1-benefit percentage)) = 1 + (0.3265/(1 - 0.3265)) = 
1.48.
---------------------------------------------------------------------------

    As noted above, several commenters stated that compliance with 
Sec. Sec.  56.18002(a) and 57.18002(a) would require a mine operator to 
pay overtime for a competent person to arrive before the shift begins 
to conduct the working place examination. In response to comments, MSHA 
estimated the cost for overtime as time and a half ($51.09/hr = $34.06 
x 1.5). MSHA estimates that it will cost approximately $26.9 million 
per year for mine operators to comply with the final provision that 
requires mine operators to examine each working place at least once 
each shift before miners begin work. This annual cost consists of:
     $5 million = 10,451 mines with 1-19 employees x 15% x 20 
minutes x 1 hr/60 min x $51.09 wage x 1.1 shifts per day x 1 exam x 169 
workdays per year;
     $20.2 million = 1,187 mines with 20-500 employees x 65% x 
1 hour x $51.09 wage x 1.8 shifts per day x 1 exam x 285 workdays per 
year; and
     $1.7 million = 22 mines with 501+ employees x 85% x 2.5 
hours x $51.09 wage x 2.2 shifts per day x 1 exam x 322 workdays per 
year;
Records of Working Place Examinations--Final Sec. Sec.  56.18002(b) and 
(c) and 57.18002(b) and (c)
    The requirement that the operator make a record is not a new 
provision; existing Sec. Sec.  56.18002(b) and 57.18002(b) require that 
a record of the examination be made. The final rule revises Sec. Sec.  
56.18002(b) and 57.18002(b) to require that the record of each 
examination be made before the end of the shift for which the 
examination was conducted. The record shall contain: (1) The name of 
the person conducting the examination; (2) the date of the examination; 
(3) the location of the areas examined; and (4) a description of

[[Page 7691]]

each condition found that may adversely affect the safety or health of 
miners. Under final Sec. Sec.  56.18002(c) and 57.18002(c), the record 
also must include the date of corrective action.
    Under the proposed rule, the mine operator would have been required 
to record a description of the adverse conditions found during the 
examinations and a description of the corrective actions taken. MSHA 
received numerous comments and heard testimony at the public hearings 
opposing these requirements. Commenters were concerned that recording 
every condition and every corrective action would be an excessive 
burden to mine operators, especially small operators. Several 
commenters noted that MSHA's estimate of 5 minutes to complete the 
record was an underestimate. One commenter stated that MSHA's proposed 
estimate was not enough time to document every hazard found in every 
active part of the mine and all corrective actions. In response to 
comments, the final rule does not require the record to include a 
description of the corrective action taken. However, the final rule 
retains the requirement that the record include the date when 
corrective action was made.
    MSHA proposed that the competent person conducting the working 
place examination would be required to sign and date the record before 
the end of the shift for which the examination was made. MSHA received 
numerous comments and testimony opposing this requirement. In response 
to the concerns from commenters, the final rule does not require that 
the competent person who conducted the examination sign the record. 
However, the final rule requires that the examination record contain 
the name of the person conducting the examination.
    The proposed record requirements were interpreted by commenters as 
requiring substantially more time than the 5 minutes the Agency 
estimated. For purposes of this final rule, MSHA accepts that the 
proposed record requirements may have required more time than MSHA's 
estimate. However, the Agency now has clarified and narrowed the record 
requirements in the final rule. MSHA has concluded the original time 
estimates are appropriate given these changes. The Agency estimates 
that it will take all MNM mine operators an additional 5 minutes to 
record the information as required. MSHA estimates that a miner, 
earning $34.06 per hour, will take 5 additional minutes to include into 
the existing record the additional information required by final 
Sec. Sec.  56.18002(b) and (c) and 57.18002(b) and (c). MSHA estimates 
that the annual cost for this provision will be approximately 7.3 
million. This annual cost consists of:
     $5.5 million = 10,451 mines with 1-19 employees x 1.1 
shift per day x 1 exam record x 169 workdays per year x 5 additional 
minutes x 1 hr/60 min x $34.06 per hour;
     $1.7 million = 1,187 mines with 20-500 employees x 1.8 
shifts per day x 1 exam record x 285 workdays per year x 5 additional 
minutes x $34.06 per hour; and
     $44,235 = 22 mines with 501+ employees x 2.2 shifts per 
day x 1 exam record x 322 workdays per year x 5 additional minutes x 
$34.06 per hour.
Making Records Available to Miners' Representatives--Sec. Sec.  
56.18002(d) and 57.18002(d)
    Final Sec. Sec.  56.18002(d) and 57.18002(d) require that the 
operator maintain the examination records for at least one year, make 
the records available for inspection by authorized representatives of 
the Secretary and the representatives of the miners, and provide these 
representatives a copy on request. Several commenters have stated that 
this requirement would place an additional burden on mine operators 
without MSHA showing any benefit. MSHA did not estimate a cost for this 
provision in the proposed rule. The existing information collection 
already allows time for record keeping and making copies for 
representatives of the Secretary. MSHA believes that on average the 
time already allowed for recordkeeping and providing copies to the 
Secretary's representative will increase only slightly with regard to 
providing information to the mining representative. MSHA has increased 
the time for the copying from 20 seconds to an average of 1 minute. For 
the final rule, MSHA estimates that the number of times a copy of the 
examination record will be requested is: 10 percent in mines with 1-19 
employees; 50 percent in mines with 20-500 employees; and 100 percent 
in mines with 501+ employees. Also, MSHA estimates that it will take a 
clerical employee, earning $22.43 per hour,7 8 1 minute to 
make a copy of the examination record and provide it to the 
representative of the miners, and that copying costs will be $0.30 per 
examination (2 pgs. x $0.15 per page). Thus, MSHA estimates that the 
compliance costs for mine operators to make copies of examination 
records for the representative of the miners will be $346,578 annually. 
This annual cost consists of:
---------------------------------------------------------------------------

    \7\ OES data are available at http://www.bls.gov/oes/tables.htm 
or at http://www.bls.gov/oes/oes_ques.htm. The employment-weighted 
mean wage is for Office Clerks, General (Standard Occupational 
Classification code, SOC, 439061) for Metal Ore Mining (NAICS 
212200) and Nonmetallic Mineral Mining and Quarrying (NAICS 212300). 
The OES wages represent the average for the entire industry and are 
used nationally for many federal estimates and programs. As with any 
average, there are always higher and lower values but the national 
average is the appropriate value for a rule regulating an entire 
industry.
    \8\ The wage rate without benefits was increased for a benefit-
scalar of 1.48. The benefit-scalar comes from BLS Employer Costs for 
Employee Compensation access by menu http://www.bls.gov/data/ or 
directly with http://download.bls.gov/pub/time.series/cm/cm.data.0.Current. The data series CMU2030000405000P, Private 
Industry Total benefits for Construction, extraction, farming, 
fishing, and forestry occupations, is divided by 100 to convert to a 
decimal value. MSHA used the latest 4-quarter moving average 2015 
Qtr. 3-2016 Qtr. 2 to determine that 32.65 percent of total loaded 
wages are benefits. The scaling factor is a detailed calculation, 
but may be approximated with the formula and values 1 + (benefit 
percentage/(1-benefit percentage)) = 1 + (0.3265/(1-0.3265)) = 1.48.
---------------------------------------------------------------------------

     $130,916 = 10,451 mines with 1-19 employees x 10 percent x 
1.1 shifts per day x 169 workdays per year x ((1 minute x $22.43 per 
hour) + $0.30 copy costs);
     $205,160 = 1,187 mines with 20-500 employees x 50 percent 
x 1.8 shifts per day x 285 workdays per year x ((1 minute x $22.43 per 
hour) + $0.30 copy costs); and
     $10,502 = 22 mines with 501+ employees x 100 percent x 2.2 
shifts per day x 322 workdays per year x ((1 minute x $22.43 per hour) 
+ $0.30 copy costs).
Summary of Compliance Costs
    The total annual compliance cost of the final rule is $34.5 
million: $10.6 million for mines with 1-19 employees; $22.2 million for 
mines with 20-500 employees; and $1.7 million for mines with 501+ 
employees.
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, 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.\9\ The negative 
value of the

[[Page 7692]]

PMT function provides the annualized cost over 10 years at 3 and 7 
percent discount rates.
---------------------------------------------------------------------------

    \9\ Office of Management and Budget, Office of Information and 
Regulatory Affairs, Regulatory Impact Analysis: Frequently Asked 
Questions, February 7, 2011. [http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf].
---------------------------------------------------------------------------

    MSHA estimates that the total undiscounted cost of the final rule 
over a 10-year period will be approximately $345.1 million, $294.4 
million at a 3 percent discount rate, and $242.4 million at a 7 percent 
discount rate. The total undiscounted cost annualized over 10 years 
will be approximately $34.5 million, $33.5 million at a 3 percent 
discount rate, and $32.3 million at a 7 percent discount rate.

IV. Feasibility

A. Technological Feasibility

    MSHA concludes that the final rule is technologically feasible 
because it requires only that the operator conduct the working place 
exam before work begins in that place and requires additional 
information to be included in the operators' existing examination 
records. There are no technology issues raised by the final rule.

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 final rule is projected to cost $34.5 
million per year and the MNM industry has estimated annual revenues of 
$78.3 billion. The final rule cost is less than one percent of 
revenues. Therefore, MSHA concludes that the final rule will be 
economically feasible for the MNM mining industry.
    MSHA intends to conduct a retrospective study beginning January 20, 
2022. Using the results of this study, MSHA will determine to what 
extent the provisions of the final rule ensure that operators find and 
fix adverse conditions and violations of safety and health standards 
before they cause injury or death to miners, and reduce the variability 
in how operators conduct examinations of working places and thereby 
improve miners' safety and health. Under the Department's Plan for 
Retrospective Analysis of Existing Rules, MSHA intends to consult with 
industry, labor, and other stakeholders in conducting this review.
    This retrospective study will be conducted in accordance with the 
Department of Labor's Plan for Retrospective Analysis of Existing Rules 
which complies with Executive Order (E.O.) 13563 ``Improving Regulation 
and Regulatory Review'' (76 FR 3821).

V. 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 final rule on small 
entities. Based on that analysis, MSHA certifies that the final rule 
will 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. On February 26, 2016, SBA's 
revised size standards became effective. SBA updated the small business 
thresholds for mining by establishing a number of different levels. 
MSHA used the new SBA standards for the screening analysis of this 
final rule.
    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 the SBA size standard 
tables and methodology at https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/summary-size-standards-industry-sector.
    MSHA has also examined the impact of the final rule on MNM 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 as well as MSHA's traditional 
mine size 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 evaluated a number of data sources related 
to the number of firms, employment, and revenue. MSHA concluded that 
the most useful data was MSHA's 2015 MSIS MNM mine data (datasets are 
publicly available at http://arlweb.msha.gov/OpenGovernmentData/OGIMSHA.asp). MSHA summed employment using the MSHA data element 
``Controller'' \10\ to best align with the SBA concept of firm as 
either an owner or exercising decision making. Each mine was assigned a 
size of large or small using the SBA size standard for each NAIC code 
in the MSHA data. MSHA estimated mine revenue as it has in the past 
using U.S. Geological reports (USGS, 2016) to obtain national revenue 
numbers for 2015 that MSHA then allocated to mines on a dollar per hour 
basis. Using the traditional definition of small, MSHA estimated that 
final compliance costs for MNM mines with 1 to 19 employees is $10.6 
million, which is less than one percent of the $22.1 billion in 
revenues for these mines in 2015. Table 4 shows the estimated revenues, 
costs, size standards (Feb. 2016), and the summary level screening test 
results. The summary level data is consistent with evaluating the 
impact on a mine-by-mine basis without providing detail on the 
approximately ten thousand small mines. MSHA identified numerous data 
records that were either incomplete or numerous mines that are 
intermittent with very few producing hours during the year. For these 
reasons, the analysis by NAICS code does not exactly match the total 
mine count or totals using MSHA's traditional methodology. However, the 
error is small enough to not affect MSHA's decision to certify that 
there is no significant economic

[[Page 7693]]

impact on a substantial number of small entities.
---------------------------------------------------------------------------

    \10\ Official definition in data set: Legal Entity acting as a 
controller of an operator.

                                                  Table 4--Summary of Screening Analysis by NAICS Code
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                               Small                     Estimated
                                                             standard    Number small     revenue     One percent     Cost to
            NAICS                  NAICS description         (maximum        mines      small mines   of revenues   small mines   Cost exceeds 1 percent
                                                            employees)                  ($millions)   ($millions)   ($millions)
--------------------------------------------------------------------------------------------------------------------------------------------------------
212210......................  Iron Ore Mining............           750            26      $1,803.7         $18.0          $0.5  No.
212221......................  Gold Ore Mining............         1,500           137       2,357.2          23.6           0.9  No.
212222......................  Silver Ore Mining..........           250             9         223.8           2.2           0.1  No.
212231......................  Lead Ore and Zinc Ore                 750             5         439.5           4.4           0.2  No.
                               Mining.
212234......................  Copper Ore and Nickel Ore           1,500            17       1,383.6          13.8           0.3  No.
                               Mining.
212291......................  Uranium-Radium-Vanadium Ore           250             5         109.7           1.1           0.0  No.
                               Mining.
212299......................  All Other Metal Ore Mining.           750            28         726.4           7.3           0.3  No.
212311......................  Dimension Stone Mining and            500           793       2,821.7          28.2           1.6  No.
                               Quarrying.
212312......................  Crushed and Broken                    750         1,415       7,375.5          73.8           4.1  No.
                               Limestone Mining and
                               Quarrying.
212313......................  Crushed and Broken Granite            750           152       1,162.8          11.6           0.6  No.
                               Mining and Quarrying.
212319......................  Other Crushed and Broken              500           963       3,069.8          30.7           1.7  No.
                               Stone Mining and Quarrying.
212321......................  Construction Sand and                 500         5,684       9,358.9          93.6           5.1  No.
                               Gravel Mining.
212322......................  Industrial Sand Mining.....           500           271       1,395.2          14.0           0.8  No.
212324......................  Kaolin and Ball Clay Mining           750            11         293.0           2.9           0.2  No.
212325......................  Clay and Ceramic and                  500           243       1,459.7          14.6           0.8  No.
                               Refractory Minerals Mining.
212391......................  Potash, Soda, and Borate              750             9         650.4           6.5           0.3  No.
                               Mineral Mining.
212392......................  Phosphate Rock Mining......         1,000             8         529.5           5.3           0.3  No.
212393......................  Other Chemical and                    500            45         667.0           6.7           0.4  No.
                               Fertilizer Mineral Mining.
212399......................  All Other Nonmetallic                 500           185       1,044.1          10.4           0.6  No.
                               Mineral Mining.
325998......................  All Other Miscellaneous               500             3          53.1           0.5           0.0  No.
                               Chemical Product and
                               Preparation Manufacturing.
327310......................  Cement Manufacturing.......         1,000            50       2,513.3          25.1           1.4  No.
327410......................  Lime Manufacturing.........           750            30         849.9           8.5           0.4  No.
331313......................  Alumina Refining and                1,000             7       1,467.3          14.7           0.4  No.
                               Primary Aluminum
                               Production.
                                                          ----------------------------------------------------------------------------------------------
    Grand Total.............  ...........................  ............        10,096      41,755.1         417.5          21.0  No.
--------------------------------------------------------------------------------------------------------------------------------------------------------

VI. Paperwork Reduction Act of 1995

A. Summary

    This final rule contains changes that affect the burden in an 
existing paperwork package with OMB Control Number 1219-0089 (Safety 
Defects-Examination, Correction, and Records). MSHA estimates that the 
final rule will result in an additional 222,519 burden hours with an 
associated additional cost of $7.6 million annually. Public comments 
relating to collection requirements were also applicable to the cost 
analysis section. MSHA has not repeated those comments as they appear 
above in this preamble.
Burden for Final Sec. Sec.  56.18002(b) and (c) and 57.18002(b) and (c)
    Final Sec. Sec.  56.18002(b) and (c) and 57.18002(b) and (c) 
require the existing record to include the following additional 
information: The name of the person conducting the examination; the 
date of the examination; the location of all areas examined; a 
description of each condition found that may adversely affect the 
safety or health of miners; and the date when a condition that may 
adversely affect safety or health is corrected. MSHA estimates that a 
MNM competent person, earning $34.06 per hour, will take 5 additional 
minutes to add the information required by the final rule to the 
existing record. Burden hours and costs are shown below:
     161,903 hours = 10,451 mines with 1-19 employees x 1.1 
shifts per day x 1 exam record x 169 workdays per year x 5 additional 
minutes;
     50,744 hours = 1,187 mines with 20-500 employees x 1.8 
shifts per day x 1 exam record x 285 workdays per year x 5 additional 
minutes; and
     1,299 hours = 22 mines with 501+ employees x 2.2 shifts 
per day x 1 exam record x 322 workdays per year x 5 additional minutes.
    Total additional burden hours for final Sec. Sec.  56.18002(b) and 
(c) and 57.18002(b) and (c) are 213,946 hours.
Burden Hour Costs
    Total burden hour costs for final Sec. Sec.  56.18002(b) and (c) 
and 57.18002(b) and (c) are $7,287,001 (213,946 hours x $34.06 per 
hour).
Burden for Final Sec. Sec.  56.18002(d) and 57.18002(d)
    Final Sec. Sec.  56.18002(d) and 57.18002(d) require that the 
operator provide miners' representatives with a copy of the examination 
record on request. MSHA estimates that a MNM clerical employee, earning 
$22.43 an hour, will take 1 minute to make and provide a copy of the 
examination record to the representative of the miners. MSHA estimates 
that the number of times that a copy of the examination record will be 
requested is: 10 percent in mines with 1-19 employees; 50 percent in 
mines with 20-500 employees; and 100 percent in mines with 501+ 
employees. Burden hours and costs are shown below:
     3,238 hours = 10,451 mines with 1-19 employees x 10 
percent x 1.1 shift per day x 169 workdays per year x 1 minute;
     5,074 hours = 1,187 mines with 20-500 employees x 50 
percent x 1.8 shifts per day x 285 workdays per year x 1 minute; and
     260 hours = 22 mines with 501+ employees x 100 percent x 
2.2 shifts per day x 322 workdays per year x 1 minute.
    Total burden hours for final Sec. Sec.  56.18002(d) and 57.18002(d) 
are 8,572 hours.
Burden Hour Costs
    Total Burden Hour Costs for final Sec. Sec.  56.18002(d) and 
57.18002(d) are $192,270 (8,572 hours x $22.43 per hour).
Copy Cost Burden Related to Final Sec. Sec.  56.18002(d) and 
57.18002(d)
    On average, MSHA estimates that copy costs will be $0.30 (2 pages x 
$0.15 per page). Burden costs are shown below:

[[Page 7694]]

     $58,285 = 10,451 mines with 1-19 employees x 10 percent x 
1.1 shift per day x 169 workdays per year x $0.30 per copy;
     $91,340 = 1,187 mines with 20-500 employees x 50 percent x 
1.8 shifts per day x 285 workdays per year x $0.30 per copy; and
     $4,675 = 22 mines with 501+ employees x 100 percent x 2.2 
shifts per day x 322 workdays per year x $0.30 per copy.
    Total copy costs for burden related to final Sec. Sec.  56.18002(d) 
and 57.18002(d) are $154,300.

VII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act of 1995

    MSHA has reviewed the final rule under the Unfunded Mandates Reform 
Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this 
final 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 
final 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 final rule 
will 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 this final 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 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 final rule and has determined that it will 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 final 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 final 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 final 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

    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 has reviewed this 
final rule for its energy effects because the final rule applies to the 
MNM mining sector. Although this final rule will result in yearly costs 
of approximately $34.5 million to the MNM mining industry, only the 
impact on uranium mines is applicable in this case. MSHA data show only 
three active uranium mines in 2015. The Energy Information 
Administration's annual uranium report for 2015 \11\ shows 4 million 
pounds at an average price of $42.86 per pound, for sales of 
approximately $171.4 million. Using average annual costs of the final 
rule, the impact to all active uranium mine operators is $57,010. 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.
---------------------------------------------------------------------------

    \11\ http://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 final 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 
final rule will not have a significant economic impact on a substantial 
number of small entities.

VIII. References

Bureau of Labor Statistics (BLS). 2016. Employment Cost Index 
CMU203000040500P, Private Industry Total benefits for construction, 
extraction, farming, fishing, and forestry occupations. http://download.bls.gov/pub/time.series/cm/cm.data.0.Current.
Bureau of Labor Statistics (BLS). 2015. National Occupational 
Employment Statistics--National--May, 2015. (Accessed October 13, 
2016). http://www.bls.gov/oes/tables.htm.
Department of the Interior (DOI). 2016. Mineral Commodity Summaries 
2016. U.S. Geological Survey, Reston, VA. 202 pages. http://minerals.usgs.gov/minerals/pubs/mcs/2016/mcs2016.pdf.
Energy Information Administration (EIA). 2016. 2015 Domestic Uranium 
Production Report. U.S. Department of Energy, EIA, Washington, DC 
May 2016. 23 pages.
Huang, Y.H., et al. 2009. Financial decision makers' views on 
safety: What SH&E professionals should know. Professional Safety. 
54(4): 36-42.
Maxey, H. 2013. Safety & Small Business. The Compass. Pages 12-22. 
[www.Asse.org]
Mine Safety and Health Administration (MSHA). 2015. Mine Injury and 
Worktime, Quarterly, January-December 2015. Program Evaluation and 
Information Resources, Information Technology Center. 35 pages. 
http://arlweb.msha.gov/Stats/Part50/WQ/MasterFiles/MIWQ-Master-2015-final.pdf.
Office of Management and Budget (OMB). 2011. Regulatory Impact 
Analysis:

[[Page 7695]]

Frequently Asked Questions. Office of Information and Regulatory 
Affairs, February 7, 2011. 12 pages. http://www.whitehouse.gov/sites/default/files/omb/assets/OMB/circulars/a004/a-4_FAQ.pdf.
Smitha, M.W., et al. 2001. Effect of state workplace safety laws on 
occupational injury rates. J. Occ. Environ. Med. 43(12):1001-1010.
West Virginia Office of Miners' Health, Safety and Training. 2015. 
Notice of Final Filing and Adoption of a Legislative Rule Authorized 
by the West Virginia Legislature--Rules Governing the Safety of 
Those Employed in and Around Quarries in West Virginia. West 
Virginia Secretary of State Filed April 20, 2015. 83 pages.

List of Subjects in 30 CFR Parts 56 and 57

    Explosives, Fire prevention, Hazardous substances, Metals, Mine 
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 amending 
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 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 before the end of 
the shift for which the examination was conducted. The record shall 
contain the name of the person conducting the examination; date of the 
examination; location of all areas examined; and description of each 
condition found that may adversely affect the safety or health of 
miners.
    (c) When a condition that may adversely affect safety or health is 
corrected, the examination record shall include, or be supplemented to 
include, the date of the corrective action.
    (d) The operator shall maintain the examination records for at 
least one year, make the records available for inspection by authorized 
representatives of the Secretary and the representatives of miners, and 
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 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 before the end of 
the shift for which the examination was conducted. The record shall 
contain the name of the person conducting the examination; date of the 
examination; location of all areas examined; and description of each 
condition found that may adversely affect the safety or health of 
miners.
    (c) When a condition that may adversely affect safety or health is 
corrected, the examination record shall include, or be supplemented to 
include, the date of the corrective action.
    (d) The operator shall maintain the examination records for at 
least one year, make the records available for inspection by authorized 
representatives of the Secretary and the representatives of miners, and 
provide these representatives a copy on request.

[FR Doc. 2017-00832 Filed 1-17-17; 4:15 pm]
 BILLING CODE 4510-43-P