82_FR_7693 82 FR 7680 - Examinations of Working Places in Metal and Nonmetal Mines

82 FR 7680 - Examinations of Working Places in Metal and Nonmetal Mines

DEPARTMENT OF LABOR
Mine Safety and Health Administration

Federal Register Volume 82, Issue 13 (January 23, 2017)

Page Range7680-7695
FR Document2017-00832

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 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.

Federal Register, Volume 82 Issue 13 (Monday, January 23, 2017)
[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Rules and Regulations]
[Pages 7680-7695]
From the Federal Register Online  [www.thefederalregister.org]
[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 
[email protected] (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).
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    \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.
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    \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.''
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    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.
---------------------------------------------------------------------------

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



                                                7680              Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                §§ 70.45–70.52     [Reserved]                           201, 202, 203, or 211 of the Labor-                       8. Office of Disability Employment Policy
                                                                                                        Management Reporting and Disclosure                    (ODEP).
                                                Subpart D—Public Records and Filings                    Act of 1959 (73 Stat. 524–528, 79 Stat.                   9. Office of Federal Contract Compliance
                                                                                                        888; 29 U.S.C. 431–433, 441), or for                   Programs (OFCCP).
                                                § 70.53 Office of Labor-Management                                                                                10. Office of the Inspector General (OIG).
                                                Standards.                                              information contained therein, which                      11. Office of Labor Management Standards
                                                   (a) The following documents in the                   have been filed by any person whose                    (OLMS).
                                                custody of the Office of Labor-                         principal place of business or                            12. Office of Public Affairs (OPA).
                                                Management Standards are public                         headquarters is in such State, the Office                 13. Office of Workers’ Compensation
                                                information available for inspection                    of Labor-Management Standards will:                    Programs (OWCP).
                                                                                                          (1) Make available without payment                      14. Bureau of International Labor Affairs
                                                and/or purchase of copies in accordance                                                                        (ILAB).
                                                with paragraphs (b) and (c) of this                     of a charge to the State agency
                                                                                                        designated by law or by such Governor,                    15. Bureau of Labor Statistics (BLS), Postal
                                                section.                                                                                                       Square Building, Room 4040, 2
                                                   (1) Data and information contained in                such requested copies of information
                                                                                                                                                               Massachusetts Avenue NE., Washington, DC
                                                any report or other document filed                      and data, or                                           20212–0001.
                                                pursuant to sections 201, 202, 203, 211,                  (2) Require the person who filed such                   16. Employment and Training
                                                301 of the Labor-Management Reporting                   reports and documents to furnish such                  Administration (ETA). Job Corps (part of
                                                and Disclosure Act of 1959 (73 Stat.                    copies or information and data directly                ETA).
                                                524–28, 530, 79 Stat. 888, 73 Stat. 530,                to the State agency thus designated.                      17. Mine Safety and Health Administration
                                                                                                                                                               (MSHA), 201 12th Street, South, Arlington,
                                                29 U.S.C. 431–433, 441, 461).                           § 70.54 Employee Benefits Security                     Virginia 22202.
                                                   (2) Data and information contained in                Administration.                                           18. Occupational Safety and Health
                                                any report or other document filed                                                                             Administration (OSHA).
                                                                                                           (a) The annual financial reports (Form
                                                pursuant to the reporting requirements                                                                            19. Employee Benefits Security
                                                                                                        5500) and attachments/schedules as
                                                of 29 CFR part 458, which are the                                                                              Administration (EBSA).
                                                                                                        filed by employee benefit plans under
                                                regulations implementing the standards                                                                            20. Veterans’ Employment and Training
                                                                                                        the Employee Retirement Income                         Service (VETS).
                                                of conduct provisions of the Civil
                                                                                                        Security Act (ERISA) are in the custody                   21. Employees’ Compensation Appeals
                                                Service Reform Act of 1978, 5 U.S.C.
                                                                                                        of the Employee Benefits Security                      Board (ECAB).
                                                7120, and the Foreign Service Act of
                                                                                                        Administration (EBSA) at the address                      22. Administrative Review Board (ARB).
                                                1980, 22 U.S.C. 4117. The reporting
                                                                                                        indicated in paragraph (b) of this                        23. Benefits Review Board (BRB).
                                                requirements are found in 29 CFR 458.3.                                                                           24. Wage and Hour Division (WHD).
                                                   (3) Data and information contained in                section, and the right to inspect and
                                                                                                        copy such reports, as authorized under                    25. Women’s Bureau (WB).
                                                any report or other document filed
                                                pursuant to the Congressional                           ERISA, at the fees set forth in this part,             Appendix B to Part 70—[Reserved]
                                                Accountability Act of 1995, 2 U.S.C.                    may be exercised at such office.
                                                1351, 109 Stat. 19.                                        (b) The mailing address for the                     Thomas E. Perez,
                                                   (b) The documents listed in paragraph                documents described in this section is:                Secretary of Labor .
                                                (a) of this section are available from:                 U.S. Department of Labor, Employee                     [FR Doc. 2017–00453 Filed 1–19–17; 8:45 am]
                                                U.S. Department of Labor, Office of                     Benefits Security Administration, Public               BILLING CODE P
                                                Labor-Management Standards, Public                      Documents Room, 200 Constitution
                                                Disclosure Room, N–1519, 200                            Avenue NW., Washington, DC 20210.
                                                Constitution Avenue NW., Washington,                    Appendix A to Part 70—FOIA                             DEPARTMENT OF LABOR
                                                DC 20210. Reports filed pursuant to                     Components
                                                section 201 of the Labor-Management                                                                            Mine Safety and Health Administration
                                                                                                           The following list identifies the individual
                                                Reporting and Disclosure Act of 1959
                                                                                                        agency components of the Department of                 30 CFR Parts 56 and 57
                                                and pursuant to 29 CFR 458.3                            Labor for the purposes of the FOIA. Each
                                                implementing the Civil Service Reform                   component is responsible for making records            [Docket No. MSHA–2014–0030]
                                                Act of 1978 and the Foreign Service Act                 in its custody available for inspection and
                                                of 1980 for the year 2000 and thereafter                copying, in accordance with the provisions of          RIN 1219–AB87
                                                are also available at http://www.union-                 the FOIA and this part. Unless otherwise
                                                                                                        specified, the mailing addresses for the               Examinations of Working Places in
                                                reports.dol.gov.
                                                   (c) Pursuant to 29 U.S.C. 435(c) which               following national office components are               Metal and Nonmetal Mines
                                                provides that the Secretary will by                     listed below. Updated contact information for
                                                                                                                                                               AGENCY:  Mine Safety and Health
                                                                                                        national and regional offices can be found on
                                                regulation provide for the furnishing of                                                                       Administration, Labor.
                                                                                                        the DOL Web site at http://www.dol.gov/dol/
                                                copies of the documents listed in                       foia.                                                  ACTION: Final rule.
                                                paragraph (a) of this section, upon
                                                                                                        U.S. Department of Labor
                                                payment of a charge based upon the cost                 200 Constitution Avenue NW.                            SUMMARY:   The Mine Safety and Health
                                                of the service, these documents are                     Washington, DC 20210.                                  Administration’s final rule amends the
                                                available at a cost of $ .15 per page for                  1. Office of the Secretary (OSEC).                  Agency’s standards for the examination
                                                record copies furnished. Authentication                    2. Office of the Solicitor (SOL).                   of working places in metal and
                                                of copies is available in accordance with                  3. Office of Administrative Law Judges              nonmetal mines. This final rule requires
                                                the fee schedule established in Sec.                    (ALJ), 800 K Street NW., Suite N–400,                  that an examination of the working
                                                70.40. In accordance with 5 U.S.C.                      Washington, DC 20001–8002.                             place be conducted before miners begin
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                                                552(a)(4)(A)(vi), the provisions for fees,                 4. Office of the Assistant Secretary for            working in that place, that operators
                                                                                                        Administration and Management (OASAM).                 notify miners in the affected areas of
                                                fee waivers and fee reductions in
                                                                                                           5. Office of the Assistant Secretary for
                                                subpart C of this part do not supersede                 Policy (OASP).
                                                                                                                                                               any conditions found that may
                                                these charges for these documents.                         6. Office of the Chief Financial Officer            adversely affect their safety or health,
                                                   (d) Upon request of the Governor of a                (OCFO).                                                that operators promptly initiate
                                                State for copies of any reports or                         7. Office of Congressional and                      corrective action, and that a record be
                                                documents filed pursuant to sections                    Intergovernmental Affairs (OCIA).                      made of the examination. The final rule


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                                                                  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                           7681

                                                also requires that the examination                      work practices provide a substantial                   A. Statutory and Regulatory History
                                                record include: The name of the person                  measure of protection against hazards                     On July 31, 1969, MSHA’s
                                                conducting the examination, the date of                 that cause accidents, injuries, and                    predecessor, the Department of the
                                                the examination, the location of all areas              fatalities. The Mine Safety and Health                 Interior’s Bureau of Mines, published a
                                                examined, a description of each                         Administration (MSHA) has determined                   final rule (34 FR 12503) addressing
                                                condition found that may adversely                      that examinations of working places are                health and safety standards for Metal
                                                affect the safety or health of miners, and              an important part of an effective                      and Nonmetallic Open Pit Mines; Sand,
                                                the date of the corrective action. In                   accident prevention strategy; they are a               Gravel, and Crushed Stone Operations;
                                                addition, the final rule requires that                  first line of defense because they allow               and Metal and Nonmetallic
                                                mine operators make the examination                     operators to find and fix conditions. The              Underground Mines. These standards
                                                record available for inspection by                      existing standards for metal and                       were promulgated pursuant to the 1966
                                                authorized representatives of the                       nonmetal (MNM) mines requiring that                    Federal Metal and Nonmetallic Mine
                                                Secretary and miners’ representatives                   workplace examinations be conducted                    Safety Act (MNM Act). The final rule
                                                and provide a copy upon request.                        at least once each shift potentially                   included some mandatory standards
                                                DATES: Effective date: May 23, 2017.                    expose miners to adverse conditions                    and some advisory standards. The final
                                                FOR FURTHER INFORMATION CONTACT:                        during the shift because mine operators                rule set forth advisory standards at
                                                Sheila A. McConnell, Director, Office of                can perform the workplace examination                  §§ 55.18–8, 56.18–8, and 57.18–8 stating
                                                Standards, Regulations, and Variances,                  anytime during the shift, which exposes                that each working place ‘‘should be
                                                MSHA, at mcconnell.sheila.a@dol.gov                     miners to adverse conditions during the                visited by a supervisor or a designated
                                                (email); 202–693–9440 (voice); or 202–                  shift before any corrective action is                  person at least once each shift and more
                                                693–9441 (facsimile).                                   taken. The final rule, like the proposed               frequently as necessary to insure that
                                                SUPPLEMENTARY INFORMATION:
                                                                                                        rule, amends this provision to require                 work is being done in a safe manner.’’
                                                                                                        that each working place be examined                       The Federal Mine Safety and Health
                                                Table of Contents                                       before miners or other employees begin                 Act of 1977 (Mine Act) amended the
                                                                                                        work in that place. The new                            Federal Coal Mine Health and Safety
                                                I. Introduction                                         requirement that mine operators notify                 Act of 1969 (Coal Act) to include MNM
                                                   A. Statutory and Regulatory History
                                                                                                        miners of adverse conditions in their                  mines and repealed the MNM Act. The
                                                   B. Executive Order 12866 Summary
                                                   C. Background Information                            working places will make miners aware                  Mine Act retained the mandatory
                                                II. Section-by-Section Analysis                         of such conditions and allow them to                   standards and regulations promulgated
                                                III. Executive Order 12866: Regulatory                  take appropriate protective measures or                under the Coal Act and the MNM Act.
                                                      Planning and Review and Executive                 avoid the adverse conditions altogether                In addition, section 301(b)(2) of the
                                                      Order 13563: Improving Regulation and             until such conditions are corrected.                   Mine Act required the Secretary of
                                                      Regulatory Review                                                                                        Labor to establish an advisory
                                                IV. Feasibility
                                                                                                           The existing standards do not require
                                                                                                        the operator to include in the record                  committee to review all advisory
                                                V. Regulatory Flexibility Analysis and Small                                                                   standards under the MNM Act and to
                                                      Business Regulatory Enforcement                   adverse conditions that may contribute
                                                      Fairness Act                                      to an accident, injury, or fatality, or to             either revoke them or make them
                                                VI. Paperwork Reduction Act of 1995                     document that corrective actions were                  mandatory (with or without revision).
                                                VII. Other Regulatory Considerations                    taken. MSHA believes that by making a                  On August 17, 1979 (44 FR 48490),
                                                VIII. References                                        record of adverse conditions, mine                     MSHA revised, renumbered, and made
                                                                                                        operators and miners will become more                  mandatory the Agency’s advisory
                                                Availability of Information                                                                                    standards regarding working place
                                                                                                        proactive in their approach to correcting
                                                   Federal Register Publications: Access                adverse conditions and avoiding                        examinations. This resulted in
                                                rulemaking documents electronically at                  reoccurrences, thereby improving the                   standards, set forth at §§ 55.18–2, 56.18–
                                                http://www.msha.gov/regsinfo.htm or                     protection of miners.                                  2, and 57.18–2, that were the same as
                                                http://www.regulations.gov [Docket                                                                             the language that currently exists at
                                                Number: MSHA–2014–0030]. Obtain a                          In addition, the final rule requires that           §§ 56.18002 and 57.18002.
                                                copy of a rulemaking document from                      mine operators make the examination                       On January 29, 1985 (50 FR 4048),
                                                the Office of Standards, Regulations,                   record available for inspection by                     MSHA combined and recodified the
                                                and Variances, MSHA, by request to                      authorized representatives of the                      standards in 30 CFR parts 55 and 56
                                                202–693–9440 (voice) or 202–693–9441                    Secretary and miners’ representatives                  into a single part 56 that applies to all
                                                (facsimile). (These are not toll-free                   and provide a copy upon request. Under                 surface MNM mines. As a part of this
                                                numbers.)                                               the Mine Act, mine operators, with the                 effort, the MNM working place
                                                   Email Notification: MSHA maintains                   assistance of miners, have the primary                 examination standards were
                                                a list that enables subscribers to receive              responsibility to prevent the existence                redesignated as 30 CFR 56.18002
                                                an email notification when the Agency                   of adverse conditions, which is why                    (surface) and 57.18002 (underground).
                                                publishes rulemaking documents in the                   MSHA concluded that the final rule                     No change was made to the language of
                                                Federal Register. To subscribe, go to                   should require operators to make                       the standards.
                                                http://www.msha.gov/subscriptions/                      examination records available to miners’                  On June 8, 2016 (81 FR 36818), MSHA
                                                subscribe.aspx.                                         representatives as well as provide                     published a proposed rule on
                                                                                                        copies of such records to them upon                    Examinations of Working Places in
                                                I. Introduction                                         request.                                               Metal and Nonmetal Mines. The Agency
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                                                  Under the Mine Act, mine operators,                      The final rule will result in more                  received comments on the proposed
                                                with the assistance of miners, have the                 effective and consistent working place                 rule and held four public hearings in
                                                primary responsibility to prevent the                   examinations by helping to ensure that                 July and August 2016. These hearings
                                                existence of unsafe and unhealthful                     adverse conditions will be timely                      were held in Salt Lake City, Utah;
                                                conditions and practices. Operator                      identified, communicated to miners,                    Pittsburgh, Pennsylvania; Arlington,
                                                compliance with safety and health                       and corrected, thereby improving                       Virginia; and Birmingham, Alabama. On
                                                standards and implementation of safe                    miners’ safety and health.                             August 25, 2016, in response to


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                                                7682               Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                stakeholder requests, MSHA published                      MSHA estimates that the final rule                   existing standards, which do not specify
                                                a document in the Federal Register (81                  will result in $34.5 million in annual                 a time frame for the working place
                                                FR 58422) extending the deadline for                    costs for the MNM industry: $10.6                      examination to be conducted. Some
                                                submission of comments from                             million for mines with 1–19 employees;                 commenters rejected a 2-hour time
                                                September 6, 2016, to September 30,                     $22.2 million for mines with 20–500                    frame before miners start work as
                                                2016.                                                   employees; and $1.7 million for mines                  arbitrary; other commenters with
                                                                                                        with 501+ employees. The Agency                        operations with shifts that begin before
                                                B. Executive Order 12866 Summary
                                                                                                        estimates that the total undiscounted                  daylight opposed any specified time
                                                   MSHA is not claiming a monetized                     cost of the final rule over 10 years will              period. A commenter interpreted the 2-
                                                benefit for this rule. MSHA anticipates,                be $345.1 million; at a 3 percent                      hour time period mentioned in the
                                                however, that there will be benefits from               discount rate, $294.4 million; and at a                proposal to mean that, if miners do not
                                                the final rule as a result of more                      7 percent discount rate, $242.4 million.               enter the area within a 2-hour window,
                                                effective and consistent working place                  Additional details on MSHA’s analysis                  but instead enter 3 hours after the
                                                examinations that will help to ensure                   are found in Section III of this preamble.             examination was made, the area would
                                                that adverse conditions will be timely                                                                         have to be reexamined. A few
                                                                                                        C. Background Information
                                                identified, communicated to miners,                                                                            commenters suggested that the
                                                and corrected. MSHA anticipates that                       Mining continues to be one of the                   examination be performed as close to
                                                the enhanced record requirements will                   nation’s most hazardous occupations.                   the start of the next shift as possible, but
                                                improve accident prevention by helping                  Mining operations have dynamic work                    no more than 2 hours. One commenter
                                                mine operators identify any patterns or                 environments where working conditions                  who supported conducting the working
                                                trends of adverse conditions and                        can change rapidly and without                         place examinations before miners begin
                                                preventing these conditions from                        warning. For this rulemaking, MSHA                     working in that place did support a 2-
                                                recurring. In response to comments,                     reviewed accident investigation reports                hour time period, unless only one
                                                MSHA reviewed studies that examined                     from January 2010 through mid-                         employee is responsible for examining
                                                the effectiveness of programs for the                   December 2015. During this period 122                  multiple areas. In that case, the
                                                monitoring, detecting, and correction of                miners were killed in 110 accidents at                 commenter stated that additional time
                                                hazards. Maxey (2013) 1 found that                      MNM mines. MSHA conducted                              would be needed for the one employee
                                                injury and illness prevention programs                  investigations into each of these 110                  to inspect each area properly.
                                                help employers find hazards and fix                     fatal accidents of which 16 accidents (18                 Some commenters suggested that
                                                them before injuries, illnesses, or deaths              fatalities) citations were issued to mine              examinations should start immediately
                                                occur. Maxey’s article notes one study                  operators for unwarrantable failure to                 before a shift begins. One commenter
                                                which showed that after a short period,                 comply for purposes of Section 104(d)                  stated that making the examinations
                                                five States that implemented injury and                 of the Mine Act. Because unwarrantable                 prior to someone working in that area is
                                                safety programs that have the basic                     failures involve serious conditions that               common sense. Several commenters
                                                elements common in safety and health                    the operator should have known about,                  supported conducting the examination
                                                programs saw reductions in accidents                    MSHA believes that for these 16                        before work begins as this practice alerts
                                                ranging from 17.4 to 23 percent (Huang                  accidents, had the person making the                   miners of adverse conditions before they
                                                et al., 2009). In another study cited by                examination recorded these adverse                     begin work.
                                                Maxey, the author found that mandatory                  conditions, the records may have alerted                  Another commenter stated that the
                                                injury and illness prevention programs                  operators to take prompt corrective                    wording of the proposed rule, ‘‘before
                                                were effective in reducing injury and                   action thus preventing the accidents.                  miners begin work’’ and ‘‘once each
                                                illness incidence rates (Smitha et al.,                 II. Section-by-Section Analysis                        shift’’, creates ambiguity and implies
                                                2001).                                                                                                         that the working place examination
                                                                                                        A. Sections 56.18002(a) and                            would occur during each shift but
                                                   In response to comments, MSHA also                   57.18002(a)—Requirements for
                                                notes that it is not the only regulatory                                                                       before miners begin work. MSHA
                                                                                                        Conducting Working Place                               acknowledges that, in the existing rule,
                                                agency to recognize the importance of                   Examinations
                                                working place examinations and records                                                                         ‘‘once each shift’’ may have been
                                                of examinations. The West Virginia                         Final §§ 56.18002(a) and 57.18002(a),               interpreted to mean ‘‘once during each
                                                Office of Miners’ Health, Safety and                    like the existing standards and proposed               shift.’’ However, for this final rule,
                                                Training revised its rules that govern the              rule, require that a competent person                  MSHA clarifies that ‘‘once each shift’’
                                                safety of those employed in and around                  designated by the operator examine                     means that examinations must be
                                                quarries. The new rulemaking that went                  each working place at least once each                  conducted at least once for each
                                                into effect July 1, 2015 requires daily                 shift for conditions that may adversely                separate shift.
                                                inspection of working places and                        affect safety or health. The existing                     The final rule provides mine
                                                records, among other requirements, and                  standards permit the examination to be                 operators flexibility on when to conduct
                                                this includes: (1) Examinations within 3                made at any time during the shift. The                 an examination. Operators, however,
                                                hours prior to the beginning of any shift;              final rule, like the proposed rule,                    should use their judgment to ensure that
                                                and (2) that records be made of                         requires that the competent person                     the time between the examination and
                                                hazardous conditions or violations and                  examine each working place before                      the start of work is such that the
                                                the action taken to correct them.                       miners begin work in that place.                       operator would reasonably not expect
                                                                                                           In the proposed rule, MSHA                          conditions in the examined area to have
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                                                  1 Maxey, H., Safety & Small Business, 2013,           requested specific comments on                         been able to change adversely during
                                                pp.12–22. http://www.asse.org/assets/1/7/Maxey_         whether the Agency should require that                 that period. Thus, operators have the
                                                TheCompass.pdf. The article points out that 34          examinations be conducted within a                     flexibility to determine how close in
                                                states, OSHA, and many other nations require safety     specified time period, (e.g., 2 hours)                 time the examination must be
                                                and health programs that include monitoring,
                                                detecting, and correction of hazards and that have
                                                                                                        before miners start work in an area.                   performed based on conditions in the
                                                resulted in substantial reduction in loss of life and   Many commenters did not support the                    mine and how dynamic those
                                                reduced injuries.                                       proposed provision but did support the                 conditions are.


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                                                                  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                           7683

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


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                                                7684              Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                commenters stated that further                          requires that an operator examine each                 may also be ‘‘competent.’’ The PPL
                                                clarification is needed to distinguish                  working place for conditions that                      emphasizes that a competent person
                                                between regular working places and the                  ‘‘adversely affect safety or health.’’                 designated by the operator under
                                                occasional or sudden assignment that                    MSHA believes that the mining                          §§ 56.18002(a) and 57.18002(a) must
                                                requires a miner to enter into a place                  community understands the meaning of                   have the experience and training to be
                                                that is not a regularly active production               ‘‘adverse’’ in these standards because it              able to perform the examination and
                                                area or where mining activities are not                 has been in place since 1979.                          identify safety and health hazards.
                                                present. For such areas, commenters                        One commenter stated that, even                        In the proposed rule, MSHA
                                                asserted that the examination should                    among MSHA inspectors from the same                    requested comment on whether the
                                                occur when work begins, even if work                    field office, there can be variability in              Agency should require that the
                                                begins in this location mid-shift. Some                 judgments of inspectors whether a                      competent person conducting a working
                                                commenters expressed concern that the                   stated condition is ‘‘adverse.’’ Another               place examination have a minimum
                                                proposed rule would require mine                        commenter noted that for mine                          level of experience or particular training
                                                operators to conduct an examination of                  operators to better train their competent              or knowledge to identify workplace
                                                the entire mine before the start of each                persons, MSHA must better define                       hazards. Many commenters expressed
                                                shift. Some of these commenters also                    ‘‘adversely affect’’ so that laymen can                concern over the possibility that MSHA
                                                stated that it is impractical to expect the             understand it and apply it consistently;               might restrict the ‘‘competent person’’ to
                                                entire mine to be inspected prior to the                otherwise, mine operators could be                     supervisors or foremen. Some
                                                start of the shift because of changing                  subject to ever-changing interpretations               commenters suggested that MSHA
                                                work needs during the course of a shift.                when MSHA inspects the mine.                           develop training and templates for
                                                   It is not MSHA’s intent for the mine                    MSHA regularly trains its inspectors                workplace examinations for various
                                                operator to examine the entire mine                     and managers. A central focus of the                   commodities that would highlight
                                                before work begins, unless work is                      Agency’s enforcement training and                      hazards and typical work tasks in
                                                beginning in the entire mine. As                        retraining is consistency. In addition,                different mining environments. As
                                                previously noted, ‘‘before work begins,’’               MSHA will develop outreach and                         previously stated, MSHA will develop
                                                may or may not coincide with the start                  compliance assistance materials related                outreach and compliance assistance
                                                of any particular shift; it depends on                  to the final rule and will include these               materials to be made available at
                                                when miners actually will be working in                 materials in stakeholder seminars to be                stakeholder seminars.
                                                any particular working place. The final                 held in locations accessible to the                       Other commenters suggested that
                                                rule, like the existing standards and                   mining public. As part of this process,                there needs to be a minimum level of
                                                proposed rule, would require                            MSHA will identify best practices that                 experience, ability, or knowledge to be
                                                examinations in only those areas where                  can be shared with the mining                          a competent person. These commenters
                                                work will be performed.                                 community.                                             stated that such miners need specific
                                                   As MSHA stated in the preamble to                       Final §§ 56.18002(a) and 57.18002(a),               task training in recognizing hazards.
                                                the proposed rule, a ‘‘working place’’                  like the existing standards and the                    One commenter suggested at least 8
                                                applies to all locations at a mine where                proposed rule, require that the working                hours of retraining each year on
                                                miners work in the extraction or milling                place examination be made by a                         identifying workplace hazards, while
                                                processes (81 FR 36821). MSHA clarifies                 competent person designated by the                     another suggested 24 to 40 hours of
                                                that consistent with the existing                       mine operator. Under §§ 56.2 and 57.2,                 training. A few commenters were
                                                definition of ‘‘working place,’’ this                   a competent person means a person                      concerned that MSHA might require
                                                includes roads traveled to and from a                   having abilities and experience that                   formal training for surface miners, as is
                                                work area (81 FR 58422). MSHA further                   fully qualify him to perform the duty to               required for underground miners in
                                                clarifies that a working place would not                which he is assigned. In Program Policy                MSHA’s system for certification of
                                                include roads not directly involved in                  Letter (PPL) No. P15–IV–01, MSHA                       competency in underground coal
                                                the mining process, administrative                      emphasizes that the competent person                   mining. Other commenters suggested
                                                office buildings, parking lots,                         designated by the operator should be                   that mine operators, and not MSHA,
                                                lunchrooms, toilet facilities, or inactive              able to recognize hazards and adverse                  should determine the training necessary
                                                storage areas. Unless required by other                 conditions that are expected or known                  for the competent person at their
                                                standards, mine operators would be                      to occur in a specific work area or that               locations.
                                                required to examine isolated,                           are predictable to someone familiar with                  This final rule does not change the
                                                abandoned, or idle areas of mines or                    the mining industry.2 In this same PPL,                definition of ‘‘competent person’’ under
                                                mills only when miners have to perform                  MSHA states that a best practice is for                existing §§ 56.2 and 57.2. MSHA
                                                work in these areas during the shift (81                a foreman or other supervisor to                       believes that existing experience and
                                                FR 58423).                                              conduct the examination, and that an                   training requirements allow for needed
                                                   Final §§ 56.18002(a) and 57.18002(a),                experienced non-supervisory person                     flexibility while still requiring the level
                                                like the existing standards and the                                                                            of competency necessary to conduct
                                                proposed rule, require that operators                      2 MSHA’s PPL guidance on the meaning of
                                                                                                                                                               adequate examinations. In the final rule,
                                                examine each working place for                          ‘‘competent person’’ was informed by the               like the existing standards and the
                                                                                                        Commission decision in Secretary of Labor (MSHA)
                                                conditions that may adversely affect                    v. FMC Wyoming Corporation, 11 FMSHRC 1622             proposed rule, the competent person is
                                                safety or health. Many commenters                       (1989), which held that: ‘‘As with many safety and     designated by the mine operator.
                                                expressed concerns that the term                        health standards, §§ 57.18002(a) and 57.2 are             Final rule §§ 56.18002(a)(1) and
                                                ‘‘adverse’’ is ambiguous, lacks                         drafted in general terms in order to be broadly        57.18002(a)(1) are similar to the
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                                                                                                        adaptable to the varying circumstances of a mine.
                                                specificity, and is open to                             Kerr-McGee Corp., 3 FMSHRC 2496, 97 (November
                                                                                                                                                               proposed rule. Like the proposal, they
                                                interpretation. A few commenters                        1981). We conclude that the term ‘competent            contain a provision requiring mine
                                                provided examples of conditions that                    person’ within the meaning of §§ 57.18002(a) and       operators to notify miners in any
                                                could adversely affect safety and health                57.2 must contemplate a person capable of              affected areas of any conditions found
                                                                                                        recognizing hazards that are known by the operator
                                                such as slips, trips, and falls, or cause               to be present in a work area or the presence of
                                                                                                                                                               that may adversely affect their safety or
                                                a fatal injury. MSHA notes that the final               which is predictable in the view of a reasonably       health. Miners need to know about
                                                rule, like the existing standards,                      prudent person familiar with the mining industry.’’    adverse conditions in their working


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                                                                  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                           7685

                                                place so that they can take protective                  this notification could take any form                  which could reasonably be expected to
                                                measures or avoid the adverse                           that effectively notifies miners of an                 cause death or serious physical harm
                                                conditions altogether. Several                          adverse condition: Verbal notification,                before such condition or practice can be
                                                commenters expressed concern that                       prominent warning signage, other                       abated.’’ Although MSHA received
                                                there is no need to notify miners of                    written notification, etc. MSHA believes               comments on this aspect of the
                                                conditions found, if such conditions,                   that, in most cases, verbal notification or            proposal, the final rule is not changed
                                                such as a hose across a walkway, were                   descriptive warning signage would be                   from the existing standards and is
                                                corrected immediately. Many                             needed to ensure that all affected miners              consistent with the statute.
                                                commenters added that only conditions                   received actual notification of any
                                                                                                                                                               B. Sections 56.18002(b) and
                                                that cannot or have not been corrected                  adverse condition. MSHA also clarified
                                                                                                                                                               57.18002(b)—Requirements for Records
                                                require miner notification; if the hazard               that a ‘‘prompt’’ notification is one that
                                                                                                                                                               of Working Place Examinations
                                                has been corrected, there is no benefit                 occurs before miners are potentially
                                                for requiring miner notification. The                   exposed to the condition; e.g., before                    Final rule §§ 56.18002(b) and
                                                Agency recognizes that if adverse                       miners begin work in the affected areas,               57.18002(b) require that a record of each
                                                conditions are corrected before miners                  or as soon as possible after work begins               examination be made before the end of
                                                begin work, notification is not required                if the condition is discovered while they              the shift for which the examination was
                                                because there are no ‘‘affected areas.’’                are working in an area. For example,                   conducted. The requirement that the
                                                  MSHA received other comments                          this notification could occur when                     operator make a record is not a new
                                                addressing the notification provision.                  miners are given work assignments (81                  provision; existing §§ 56.18002(b) and
                                                Many commenters stated that they                        FR 58422). Consistent with the                         57.18002(b) require a record that the
                                                already notify miners of hazards                        comment extension document, the final                  examination was conducted. The final
                                                through tagging, signage, and posting.                  rule requires notification only of those               rule, like the proposal, requires the
                                                One commenter asked that MSHA                           miners ‘‘in any affected areas.’’                      record to include: (1) The name of the
                                                suggest methods of notification to all                  Therefore, not all miners need to be                   person conducting the examination; (2)
                                                miners for typical conditions found on                  notified, only those miners that would                 the date of the examination; (3) the
                                                a workplace examination. The                            be affected by the adverse condition.                  location of all areas examined, and (4)
                                                commenter then requested clarification                     Final rule §§ 56.18002(a)(1) and                    a description of each condition found
                                                on who would receive the notification—                  57.18002(a)(1), like the proposed rule,                that may adversely affect the safety or
                                                that is, whether operators would be                     incorporate requirements from existing                 health of miners. The final rule does not
                                                required to notify incoming shift                       §§ 56.18002(a) and 57.18002(a) that the                include the proposed requirements that
                                                workers not yet in the area or not yet at               mine operator promptly initiate action                 the record contain: (1) The signature of
                                                work. The same commenter also was                       to correct conditions that may adversely               the competent person conducting the
                                                concerned about the logistics for                       affect miners’ safety or health that are               working place examination and (2) the
                                                notifying miners when many                              found during the examination. A                        description of the corrective actions
                                                examinations are being conducted at the                 commenter suggested that the proposed                  taken.
                                                same time. Another commenter stated                     requirement would encourage narrower                      The Agency received a number of
                                                that prompt notification to employees if                examinations to avoid the need to                      comments on proposed provisions of
                                                they are not in an affected area could                  engage in remedial efforts in non-                     paragraph (b) asking if MSHA would
                                                take considerable time and resources                    working places, which could lead to                    require the person conducting the
                                                resulting in operational downtime and                   more hazardous conditions if a miner                   working place examination to wait until
                                                lost revenue. The commenter added                       wanders into these unexamined areas. A                 the end of the shift to make the record.
                                                that, as a logistical matter, this process              few commenters stated that the existing                MSHA clarified that the proposal would
                                                will be nearly impossible to manage on                  rule has long required mine operators to               allow the competent person conducting
                                                a mine site with thousands of                           identify and ‘‘promptly initiate action to             the examination to make the record at
                                                employees and contractors.                              correct’’ any ‘‘conditions which may                   any time before the end of the shift (81
                                                  Another commenter wrote that the                      adversely affect safety or health.’’ The               FR 58422).
                                                term ‘‘promptly notify’’ is vague. This                 final rule is not changed from the                        As previously noted, final rule
                                                same commenter was also concerned                       existing standards.                                    §§ 56.18002(b) and 57.18002(b), like the
                                                that the proposed rule was unclear                         Final rule §§ 56.18002(a)(2) and                    proposed rule, add requirements for the
                                                about who would need to be notified.                    57.18002(a)(2), like the proposed                      contents of the examination record.
                                                The commenter stated that notifying                     provisions, are redesignated from and                  Final paragraph (b), unlike the proposed
                                                miners who are not affected by the                      substantively the same as existing                     rule, does not require that the
                                                hazard carries no safety benefit and                    §§ 56.18002(c) and 57.18002(c). These                  competent person conducting the
                                                distracts them, thereby risking work                    provisions require that if the competent               working place examination sign the
                                                slowdowns. This commenter expressed                     person finds conditions that may                       record; instead, the record must include
                                                concerns about diverting a mine’s                       present an imminent danger, these                      only the name of the competent person.
                                                resources to notify miners needlessly                   conditions must be brought to the                      Many commenters stated that the
                                                just to avoid MSHA citations for failing                immediate attention of the operator who                proposed requirement to sign the
                                                to communicate such hazards to all                      must withdraw all persons from the area                examination record would increase the
                                                miners.                                                 affected (except persons referred to in                potential for liability under Section
                                                  In its August 25, 2016, comment                       section 104(c) of the Mine Act) until the              110(c) of the Mine Act for miners who
                                                extension document in the Federal                       danger is abated. In response to                       conduct workplace examinations. Some
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                                                Register (81 FR 58422), MSHA clarified                  comments, MSHA clarified that the                      commenters were concerned that the
                                                that to ‘‘promptly notify miners’’ means                proposed rule would not change the                     designated competent person would be
                                                any notification to miners that alerts                  existing standards regarding conditions                liable under 110(c) for individual civil
                                                them to adverse conditions in their                     that present imminent danger (81 FR                    penalties. Other commenters stated that
                                                working place so that they can take                     58422). ‘‘Imminent danger’’ is defined                 the signature requirement is
                                                necessary precautions to avoid the                      in section 3(j) of the Mine Act as ‘‘the               unproductive, does not improve safety,
                                                adverse condition. MSHA added that                      existence of any condition or practice                 and that competent persons are taking


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                                                7686              Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

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


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                                                                  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                           7687

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


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                                                7688                     Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                by MSHA to confirm compliance is one                                        approval, noting that MSHA could use                                             Under E.O. 12866, a significant
                                                thing, but forcing operators to make                                        this document to check for compliance.                                        regulatory action is one that meets any
                                                books and records available to its rank-                                    Other commenters suggested additional                                         of a number of specified conditions,
                                                and-file personnel shows lack of respect                                    miner training could be an alternative to                                     including the following: Having an
                                                by MSHA for the integrity of mine                                           modifying the existing standards.                                             annual effect on the economy of $100
                                                management. Several commenters did                                          MSHA did not propose or solicit                                               million or more, creating a serious
                                                not oppose making the records available                                     comments regarding a workplace                                                inconsistency or interfering with an
                                                to miners and their representatives.                                        inspection program or additional miner                                        action of another agency, materially
                                                  MSHA notes that the final rule, like                                      training: either would have necessitated                                      altering the budgetary impact of
                                                the proposal, includes the requirement                                      a discussion of various options in the                                        entitlements or the rights of entitlement
                                                that records be made available for                                          proposed rule. For this reason, both of                                       recipients, or raising novel legal or
                                                inspection by miners’ representatives.                                      these issues are beyond the scope of this                                     policy issues. MSHA has determined
                                                This is consistent with the Mine Act                                        rulemaking.                                                                   that the final rule is an ‘‘other
                                                which requires miners be provided with                                                                                                                    significant’’ regulatory action because it
                                                                                                                            III. Executive Order 12866: Regulatory
                                                information concerning safety and                                                                                                                         raises novel legal and policy issues.
                                                                                                                            Planning and Review and Executive
                                                health hazards. Under the Mine Act,                                                                                                                       However, MSHA has determined that
                                                                                                                            Order 13563: Improving Regulation and
                                                mine operators, with the assistance of                                                                                                                    this final rule will not have an annual
                                                                                                                            Regulatory Review
                                                miners, have the primary responsibility                                                                                                                   effect of $100 million or more on the
                                                to prevent the existence of adverse                                            Executive Orders (E.O.) 13563 and                                          economy and, therefore, will not be an
                                                conditions, which is why MSHA                                               12866 direct agencies to assess all costs                                     economically significant regulatory
                                                concluded that the final rule should                                        and benefits of available regulatory                                          action pursuant to section 3(f) of E.O.
                                                require operators to make examination                                       alternatives and, if regulation is                                            12866.
                                                records available to miners’                                                necessary, to select regulatory
                                                                                                                                                                                                          A. Population at Risk
                                                representatives as well as to provide                                       approaches that maximize net benefits
                                                copies of such records to them upon                                         (including potential economic,                                                  The final rule will apply to all MNM
                                                request. Also, under other MSHA safety                                      environmental, public health and safety                                       mines in the United States. In 2015,
                                                and health standards, operators provide                                     effects, distributive impacts, and                                            there were approximately 11,660 MNM
                                                records to miners’ representatives.                                         equity). E.O. 13563 emphasizes the                                            mines employing 144,408 miners,
                                                  A few commenters suggested that                                           importance of quantifying both costs                                          excluding office workers, and 74,465
                                                mine operators have a ‘‘workplace                                           and benefits, of reducing costs, of                                           contractors working at MNM mines.
                                                inspection program’’, which could be                                        harmonizing rules, and of promoting                                             Table 1 presents the number of MNM
                                                documented or submitted to MSHA for                                         flexibility.                                                                  mines and employment by mine size.

                                                                                                                 TABLE 1—MNM MINES AND EMPLOYMENT IN 2015
                                                                                                                                                                                                                                                     Total employment
                                                                                                                      Mine size                                                                                    Number of mines                  at 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                                       mining industry’s MNM output in 2015                                          hours worked and revenues for MNM
                                                (DOI) estimated revenues of the U.S.                                        to be $78.3 billion.3 Table 2 presents the                                    mines by mine size.

                                                                                                            TABLE 2—MNM TOTAL HOURS AND REVENUES IN 2015
                                                                                                                                                                                                                                                         Revenue
                                                                                                                                                                                                                      Total hours
                                                                                                                      Mine size                                                                                                                       (in 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.
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                                                  3 Production revenue estimates are from DOI, U.S.

                                                Geological Survey (USGS), Mineral Commodity
                                                Summaries 2016, February 2016, page 8.

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                                                                     Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                                 7689

                                                B. Benefits                                                   that may adversely affect their safety or                 locations examined, a description of
                                                   The purpose of this final rule is to                       health. The final rule also requires that                 adverse conditions found, and the date
                                                ensure that MNM mine operators                                the examination record contain the                        they were corrected. Under the existing
                                                identify and correct conditions that may                      name of the person conducting the                         standard, MSHA does not specify the
                                                adversely affect miners’ safety or health.                    examination, the date of the                              timing of the examination or the
                                                Effective workplace examinations are a                        examination, the location of all areas                    contents of the record. In addition, the
                                                fundamental accident prevention tool;                         examined, a description of each                           final rule adds a new requirement that
                                                they allow operators to find and fix                          condition found that may adversely                        mine operators notify miners of adverse
                                                adverse conditions and violations of                          affect the safety or health of miners, and                conditions in their working places that
                                                safety and health standards before they                       the date the corrective action was made.                  will ensure that miners are aware of
                                                cause injury or death to miners.                                 A number of commenters observed                        such conditions and avoid them until
                                                   Under MSHA’s existing standards,                           that MSHA was unable to quantify the                      they are corrected. MSHA anticipates
                                                mine operators can perform the                                benefits of the proposed rule. Another                    that there will be benefits from these
                                                examinations anytime during the shift.                        commenter stated that MSHA should                         provisions that will result in more
                                                If the examination is performed after                         show that the Agency’s proposed                           effective and consistent workplace
                                                miners begin work, miners may be                              revision of the existing rule will not                    examinations and ensure that adverse
                                                exposed to conditions that may                                negatively impact the safety and health                   conditions will be timely identified,
                                                adversely affect their safety and health.                     of miners as required by the Mine Act.                    communicated to miners, and corrected.
                                                In addition, the existing standard does                       Under the Mine Act, MSHA is not                              However, MSHA is unable to separate
                                                not specify the contents of the                               required to use monetized benefits or                     the benefits of the new requirements
                                                examination record.                                           estimated net benefits as the basis for                   under the final rule from those benefits
                                                   Over the years, MSHA has issued                            the Agency’s decision on standards                        attributable to conducting a workplace
                                                Program Policy Letters (PPL) regarding                        designed to protect the health and safety                 examination under the existing
                                                working place examinations. The PPLs                          of miners. However, in the proposed                       standards. The Agency has concluded
                                                are MSHA’s guidance and best practices                        rule, MSHA stated that, while the                         that the combined effect of all the
                                                regarding compliance with the existing                        Agency was unable to quantify the                         provisions (existing standards that have
                                                standards. In the PPLs, MSHA provided                         benefits, it anticipated there would be                   been in place since 1979 and the final
                                                guidance on what the examination                              unquantified benefits from the proposed                   rule) will improve miners’ safety and
                                                record should include, such as: (1) The                       requirements.                                             health. While unable to quantify the
                                                date of the examination; (2) name of the                         MSHA recognizes that under the                         benefits, the Agency has concluded that
                                                person conducting the examination; (3)                        existing standards, many mine operators                   the final rule will have benefits.
                                                the working places examined; and (4) a                        have safe workplace operations and                           MSHA also anticipates that there will
                                                description of the conditions found that                      safety programs that include many of                      be additional unquantifiable financial
                                                adversely affect safety or health. In the                     the provisions in this final rule.                        benefits, such as reduced insurance
                                                Agency’s experience, despite MSHA                             However, as noted above, the Agency’s                     premiums, from effective working place
                                                guidance and best practices, under the                        experience is that there is a significant                 examinations that will help mine
                                                existing standard working place                               degree of variability in how safety                       operators, miners, and their
                                                examinations are not always done at a                         programs are operationalized. MSHA                        representatives to become more aware of
                                                point during the shift when the results                       has concluded that the final rule will                    potential dangers, and be more
                                                of the examination would provide the                          reduce the variability in how operators                   proactive in correcting adverse
                                                necessary protections as intended by the                      conduct examinations of working places                    conditions and violations of health and
                                                Mine Act and the existing standard.                           and thereby improve miners’ safety and                    safety standards before these conditions
                                                   MSHA’s final rule amends the                               health. MSHA believes that several                        cause an accident.
                                                existing standards to require that the                        features of this rule will contribute to
                                                                                                                                                                        C. Compliance Costs
                                                examination of each working place be                          this reduction in variability in
                                                conducted at least once each shift before                     workplace examinations and reporting.                       MSHA estimated the costs for MNM
                                                miners begin work in that place, and                          These features are conducting the                         mine operators to comply with the final
                                                that mine operators notify miners in                          workplace examination before work                         rule. Table 3 provides a summary of the
                                                affected areas of any conditions found                        begins; and a record that will include                    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 Record ...................................                       5.51                1.73         0.04          7.29
                                                56/57.18002 (d) Provide Miners’ Representative a Copy of Record ..............                                0.13                0.21         0.01          0.35

                                                   * Totals (may not sum due to rounding) .......................................................            10.61               22.16           1.75       34.51
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                                                Examination of Working Places—Final                           designated by the operator must                             In the proposed rule, MSHA believed
                                                §§ 56.18002(a) and 57.18002(a)                                examine each working place at least                       that the cost associated with examining
                                                                                                              once each shift, before miners begin                      areas before miners begin work in that
                                                  Final §§ 56.18002(a) and 57.18002(a)                        work in that place, for conditions that                   area would be de minimis. However,
                                                require that a competent person                               may adversely affect safety or health.                    several commenters stated that requiring


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                                                7690              Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                the working place examination to occur                  commenters submitted concerns about                    hourly wage rate, updated for 2015, is
                                                before miners can begin work would                      24/7 operations or overlapping shifts in               $34.06 (including benefits).
                                                impose additional costs on mine                         large mines. MSHA re-examined the                        As noted above, several commenters
                                                operators. Commenters also expressed                    availability of internal data and revised              stated that compliance with
                                                concern that there could be considerable                the number of shifts. For the final rule,              §§ 56.18002(a) and 57.18002(a) would
                                                downtime and lost productivity as                       MSHA estimates that, on average: A                     require a mine operator to pay overtime
                                                miners waited for a working place                       mine with 1–19 employees operates 1.1                  for a competent person to arrive before
                                                examination to be completed before                      shifts per day; a mine with 20–500                     the shift begins to conduct the working
                                                starting work. Some commenters stated                   employees operates 1.8 shifts per day;                 place examination. In response to
                                                that it could take between two to six                   and a mine with 501+ employees                         comments, MSHA estimated the cost for
                                                hours for larger mines to conduct the                   operates 2.2 shifts per day. As with all               overtime as time and a half ($51.09/hr
                                                examination, which they stated might                    averages, the data include a range of                  = $34.06 × 1.5). MSHA estimates that it
                                                require paying overtime to the                          values.                                                will cost approximately $26.9 million
                                                competent person to arrive well before                     In response to comments and based                   per year for mine operators to comply
                                                the shift begins.                                       on the Agency’s experience, MSHA                       with the final provision that requires
                                                  Based on these comments, MSHA                         estimates that, on average, the time to                mine operators to examine each working
                                                concludes that MNM mine operators                       conduct workplace examinations before                  place at least once each shift before
                                                will use a variety of scheduling methods                work begins is: 20 minutes in mines                    miners begin work. This annual cost
                                                to conduct an examination of a working                  with 1–19 employees; 1 hour in mines                   consists of:
                                                place before miners begin work. In                      with 20–500 employees; and 2.5 hours                     • $5 million = 10,451 mines with
                                                developing this cost estimate, MSHA                     in mines with 501+ employees.                          1–19 employees × 15% × 20 minutes ×
                                                considered the following variables: (1)                    In the proposed rule, MSHA assumed                  1 hr/60 min × $51.09 wage × 1.1 shifts
                                                Percent of mine operators currently                     that all MNM mines operate 300 days                    per day × 1 exam × 169 workdays per
                                                compliant with this requirement; (2)                    per year. Commenters provided various                  year;
                                                number of shifts by mine size; (3)                      estimates on the number of days that                     • $20.2 million = 1,187 mines with
                                                average time to conduct a workplace                     MNM mines operate. In response to                      20–500 employees × 65% × 1 hour ×
                                                examination by mine size; (4) hourly                    comments, MSHA reevaluated the                         $51.09 wage × 1.8 shifts per day × 1
                                                wage rate; and (5) number of days a                     Agency’s estimate. MSHA reviewed                       exam × 285 workdays per year; and
                                                mine operates, on average, by mine size.                employment, average shifts per week,                     • $1.7 million = 22 mines with 501+
                                                Operators may use overtime, use                         and average hours per employee to                      employees × 85% × 2.5 hours × $51.09
                                                different people to backfill for the time               estimate average days per year worked                  wage × 2.2 shifts per day × 1 exam × 322
                                                shifted to the examination, and perhaps                 in MNM mines for 2015.4 MSHA’s                         workdays per year;
                                                lengthen the examination time to                        estimate shows that, on average, a mine                Records of Working Place
                                                comply with the final rule. Based on                    with 1–19 employees operates 169 days                  Examinations—Final §§ 56.18002(b) and
                                                analysis of comments received about                     per year, a mine with 20–500 employees                 (c) and 57.18002(b) and (c)
                                                overtime, MSHA assigned an overtime                     operates 285 days per year, and a mine
                                                rate to the new time adjustments to                                                                               The requirement that the operator
                                                                                                        with more than 500 employees operates                  make a record is not a new provision;
                                                appropriately estimate the change to                    322 days per year.
                                                costs.                                                                                                         existing §§ 56.18002(b) and 57.18002(b)
                                                                                                           In the proposed rule, MSHA used a
                                                  Small mine operators, with 1–19                                                                              require that a record of the examination
                                                                                                        2014 hourly wage rate of $31.14
                                                employees, represent 90 percent of all                                                                         be made. The final rule revises
                                                                                                        (including benefits). One commenter
                                                MNM mines. Of these small mines, 62                                                                            §§ 56.18002(b) and 57.18002(b) to
                                                                                                        stated that $51.25 was the 2016 average
                                                percent have 1–5 employees. It is                                                                              require that the record of each
                                                                                                        miner hourly wage rate for large mines
                                                MSHA’s experience that small mine                                                                              examination be made before the end of
                                                                                                        that the commenter represents. Another
                                                operators with 5 or fewer employees are                                                                        the shift for which the examination was
                                                                                                        commenter stated that for the mine
                                                currently in compliance with the final                                                                         conducted. The record shall contain: (1)
                                                                                                        operators it represents the pay, on
                                                rule or will be able to adjust work                                                                            The name of the person conducting the
                                                                                                        average, is $35 to $55 per hour,
                                                schedules to comply without incurring                                                                          examination; (2) the date of the
                                                                                                        excluding benefits. However, this
                                                additional costs and burden. MSHA also                                                                         examination; (3) the location of the
                                                                                                        commenter did not specify whether this
                                                determined from the public comments                                                                            areas examined; and (4) a description of
                                                                                                        hourly wage rate range was for a
                                                that a greater percentage of larger mines
                                                                                                        supervisor or a miner. Another
                                                will incur compliance costs due to large                                                                       and are used nationally for many federal estimates
                                                                                                        commenter provided calculations that                   and programs. As with any average, there are
                                                physical spaces, complex work
                                                                                                        used MSHA’s proposed wage rate of                      always examples of higher and lower values but the
                                                schedules, and larger numbers of miners                                                                        national average is the appropriate value for a rule
                                                                                                        $31.14 per hour.
                                                assigned to such schedules. In response                                                                        regulating an entire industry.
                                                                                                           The hourly wage rate used in MSHA’s
                                                to comments, the Agency estimated that                                                                            6 The wage rate without benefits was increased
                                                                                                        analysis assumes an average rate for all
                                                15 percent of mines with 1–19                                                                                  for a benefit-scalar of 1.48. The benefit-scalar comes
                                                                                                        MNM mines. For the final rule, like the                from BLS Employer Costs for Employee
                                                employees, 65 percent of mines with
                                                                                                        proposal, MSHA used wage data from                     Compensation access by menu http://www.bls.gov/
                                                20–500 employees, and 85 percent of                                                                            data/ or directly with http://download.bls.gov/pub/
                                                                                                        BLS’s Occupational Employment
                                                mines with 501+ employees will incur                                                                           time.series/cm/cm.data.0.Current. The data series
                                                                                                        Survey (OES).5 6 For the final rule, the
                                                some additional cost as a result of                                                                            CMU2030000405000P, Private Industry Total
                                                requiring operators to conduct working                                                                         benefits for Construction, extraction, farming,
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                                                                                                          4 MSHA    MSIS data, 2015.                           fishing, and forestry occupations, is divided by 100
                                                place examinations before miners begin                    5 OES  data are available at http://www.bls.gov/     to convert to a decimal value. MSHA used the latest
                                                work in those places.                                   oes/tables.htm or at http://www.bls.gov/oes/oes_       4-quarter moving average 2015 Qtr. 3–2016 Qtr. 2
                                                  For the proposed rule, MSHA                           ques.htm. The employment-weighted mean wage is         to determine that 32.65 percent of total loaded
                                                assumed that mines with 1–19                            for Extraction Workers (Standard Occupational          wages are benefits. The scaling factor is a detailed
                                                                                                        Classification code, SOC, 475000) for Metal Ore        calculation, but may be approximated with the
                                                employees operated 1 shift per day,                     Mining (NAICS 212200) and Nonmetallic Mineral          formula and values 1 + (benefit percentage/(1-
                                                while those with 20 or more employees                   Mining and Quarrying (NAICS 212300). The OES           benefit percentage)) = 1 + (0.3265/(1 ¥ 0.3265)) =
                                                operated 2 shifts per day. Five                         wages represent the average for the entire industry    1.48.



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                                                                  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                                        7691

                                                each condition found that may                           and 57.18002(b) and (c). MSHA                            minute to make a copy of the
                                                adversely affect the safety or health of                estimates that the annual cost for this                  examination record and provide it to the
                                                miners. Under final §§ 56.18002(c) and                  provision will be approximately 7.3                      representative of the miners, and that
                                                57.18002(c), the record also must                       million. This annual cost consists of:                   copying costs will be $0.30 per
                                                include the date of corrective action.                    • $5.5 million = 10,451 mines with                     examination (2 pgs. × $0.15 per page).
                                                   Under the proposed rule, the mine                    1–19 employees × 1.1 shift per day × 1                   Thus, MSHA estimates that the
                                                operator would have been required to                    exam record × 169 workdays per year ×                    compliance costs for mine operators to
                                                record a description of the adverse                     5 additional minutes × 1 hr/60 min ×                     make copies of examination records for
                                                conditions found during the                             $34.06 per hour;                                         the representative of the miners will be
                                                examinations and a description of the                     • $1.7 million = 1,187 mines with 20–                  $346,578 annually. This annual cost
                                                corrective actions taken. MSHA                          500 employees × 1.8 shifts per day × 1                   consists of:
                                                received numerous comments and heard                    exam record × 285 workdays per year ×                      • $130,916 = 10,451 mines with 1–19
                                                testimony at the public hearings                        5 additional minutes × $34.06 per hour;                  employees × 10 percent × 1.1 shifts per
                                                opposing these requirements.                            and                                                      day × 169 workdays per year × ((1
                                                Commenters were concerned that                            • $44,235 = 22 mines with 501+                         minute × $22.43 per hour) + $0.30 copy
                                                recording every condition and every                     employees × 2.2 shifts per day × 1 exam                  costs);
                                                corrective action would be an excessive                 record × 322 workdays per year × 5                         • $205,160 = 1,187 mines with 20–
                                                burden to mine operators, especially                    additional minutes × $34.06 per hour.                    500 employees × 50 percent × 1.8 shifts
                                                small operators. Several commenters
                                                                                                        Making Records Available to Miners’                      per day × 285 workdays per year × ((1
                                                noted that MSHA’s estimate of 5
                                                                                                        Representatives—§§ 56.18002(d) and                       minute × $22.43 per hour) + $0.30 copy
                                                minutes to complete the record was an                                                                            costs); and
                                                                                                        57.18002(d)
                                                underestimate. One commenter stated                                                                                • $10,502 = 22 mines with 501+
                                                that MSHA’s proposed estimate was not                      Final §§ 56.18002(d) and 57.18002(d)                  employees × 100 percent × 2.2 shifts per
                                                enough time to document every hazard                    require that the operator maintain the                   day × 322 workdays per year × ((1
                                                found in every active part of the mine                  examination records for at least one                     minute × $22.43 per hour) + $0.30 copy
                                                and all corrective actions. In response to              year, make the records available for                     costs).
                                                comments, the final rule does not                       inspection by authorized representatives
                                                require the record to include a                         of the Secretary and the representatives                 Summary of Compliance Costs
                                                description of the corrective action                    of the miners, and provide these                           The total annual compliance cost of
                                                taken. However, the final rule retains                  representatives a copy on request.                       the final rule is $34.5 million: $10.6
                                                the requirement that the record include                 Several commenters have stated that                      million for mines with 1–19 employees;
                                                the date when corrective action was                     this requirement would place an                          $22.2 million for mines with 20–500
                                                made.                                                   additional burden on mine operators                      employees; and $1.7 million for mines
                                                   MSHA proposed that the competent                     without MSHA showing any benefit.                        with 501+ employees.
                                                person conducting the working place                     MSHA did not estimate a cost for this
                                                examination would be required to sign                                                                            Discounting
                                                                                                        provision in the proposed rule. The
                                                and date the record before the end of the               existing information collection already                    Discounting is a technique used to
                                                shift for which the examination was                     allows time for record keeping and                       apply the economic concept that the
                                                made. MSHA received numerous                            making copies for representatives of the                 preference for the value of money
                                                comments and testimony opposing this                    Secretary. MSHA believes that on                         decreases over time. In this analysis,
                                                requirement. In response to the                         average the time already allowed for                     MSHA provides cost totals at zero, 3,
                                                concerns from commenters, the final                     recordkeeping and providing copies to                    and 7 percent discount rates. The zero
                                                rule does not require that the competent                the Secretary’s representative will                      percent discount rate is referred to as
                                                person who conducted the examination                    increase only slightly with regard to                    the undiscounted rate. MSHA used the
                                                sign the record. However, the final rule                providing information to the mining                      Excel Net Present Value (NPV) function
                                                requires that the examination record                    representative. MSHA has increased the                   to determine the present value of costs
                                                contain the name of the person                          time for the copying from 20 seconds to                  and computed an annualized cost from
                                                conducting the examination.                             an average of 1 minute. For the final                    the present value using the Excel PMT
                                                   The proposed record requirements                     rule, MSHA estimates that the number                     function.9 The negative value of the
                                                were interpreted by commenters as                       of times a copy of the examination
                                                requiring substantially more time than                  record will be requested is: 10 percent                     8 The wage rate without benefits was increased

                                                the 5 minutes the Agency estimated. For                 in mines with 1–19 employees; 50                         for a benefit-scalar of 1.48. The benefit-scalar comes
                                                purposes of this final rule, MSHA                                                                                from BLS Employer Costs for Employee
                                                                                                        percent in mines with 20–500                             Compensation access by menu http://www.bls.gov/
                                                accepts that the proposed record                        employees; and 100 percent in mines                      data/ or directly with http://download.bls.gov/pub/
                                                requirements may have required more                     with 501+ employees. Also, MSHA                          time.series/cm/cm.data.0.Current. The data series
                                                time than MSHA’s estimate. However,                                                                              CMU2030000405000P, Private Industry Total
                                                                                                        estimates that it will take a clerical
                                                the Agency now has clarified and                                                                                 benefits for Construction, extraction, farming,
                                                                                                        employee, earning $22.43 per hour,7 8 1                  fishing, and forestry occupations, is divided by 100
                                                narrowed the record requirements in the
                                                                                                                                                                 to convert to a decimal value. MSHA used the latest
                                                final rule. MSHA has concluded the                        7 OES data are available at http://www.bls.gov/        4-quarter moving average 2015 Qtr. 3–2016 Qtr. 2
                                                original time estimates are appropriate                 oes/tables.htm or at http://www.bls.gov/oes/oes_         to determine that 32.65 percent of total loaded
                                                given these changes. The Agency                         ques.htm. The employment-weighted mean wage is           wages are benefits. The scaling factor is a detailed
                                                estimates that it will take all MNM mine                for Office Clerks, General (Standard Occupational        calculation, but may be approximated with the
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                                                                                                        Classification code, SOC, 439061) for Metal Ore          formula and values 1 + (benefit percentage/(1-
                                                operators an additional 5 minutes to                    Mining (NAICS 212200) and Nonmetallic Mineral            benefit percentage)) = 1 + (0.3265/(1¥0.3265)) =
                                                record the information as required.                     Mining and Quarrying (NAICS 212300). The OES             1.48.
                                                MSHA estimates that a miner, earning                    wages represent the average for the entire industry         9 Office of Management and Budget, Office of

                                                $34.06 per hour, will take 5 additional                 and are used nationally for many federal estimates       Information and Regulatory Affairs, Regulatory
                                                                                                        and programs. As with any average, there are             Impact Analysis: Frequently Asked Questions,
                                                minutes to include into the existing                    always higher and lower values but the national          February 7, 2011. [http://www.whitehouse.gov/
                                                record the additional information                       average is the appropriate value for a rule regulating   sites/default/files/omb/assets/OMB/circulars/a004/
                                                required by final §§ 56.18002(b) and (c)                an entire industry.                                      a-4_FAQ.pdf].



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                                                7692                Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                PMT function provides the annualized                      (E.O.) 13563 ‘‘Improving Regulation and                of the RFA for an analysis of the impact
                                                cost over 10 years at 3 and 7 percent                     Regulatory Review’’ (76 FR 3821).                      on ‘‘small entities’’ using both SBA’s
                                                discount rates.                                                                                                  definition as well as MSHA’s traditional
                                                                                                          V. Regulatory Flexibility Analysis and
                                                  MSHA estimates that the total                                                                                  mine size definition.
                                                                                                          Small Business Regulatory Enforcement
                                                undiscounted cost of the final rule over                                                                         B. Factual Basis for Certification
                                                                                                          Fairness Act
                                                a 10-year period will be approximately
                                                $345.1 million, $294.4 million at a 3                        Pursuant to the Regulatory Flexibility                 MSHA initially evaluates the impacts
                                                percent discount rate, and $242.4                         Act (RFA) of 1980, as amended by the                   on small entities by comparing the
                                                million at a 7 percent discount rate. The                 Small Business Regulatory Enforcement                  estimated compliance costs of a rule for
                                                total undiscounted cost annualized over                   Fairness Act (SBREFA), MSHA has                        small entities in the sector affected by
                                                10 years will be approximately $34.5                      analyzed the impact of the final rule on               the rule to the estimated revenues for
                                                million, $33.5 million at a 3 percent                     small entities. Based on that analysis,                the affected sector. When estimated
                                                discount rate, and $32.3 million at a 7                   MSHA certifies that the final rule will                compliance costs are less than one
                                                percent discount rate.                                    not have a significant economic impact                 percent of the estimated revenues, the
                                                                                                          on a substantial number of small                       Agency believes it is generally
                                                IV. Feasibility                                           entities. The Agency, therefore, is not                appropriate to conclude that there is no
                                                A. Technological Feasibility                              required to develop an initial regulatory              significant economic impact on a
                                                                                                          flexibility analysis. The factual basis for            substantial number of small entities.
                                                  MSHA concludes that the final rule is                   this certification is presented below.                 When estimated compliance costs
                                                technologically feasible because it                                                                              exceed one percent of revenues, MSHA
                                                requires only that the operator conduct                   A. Definition of a Small Mine                          investigates whether further analysis is
                                                the working place exam before work                           Under the RFA, in analyzing the                     required. MSHA evaluated a number of
                                                begins in that place and requires                         impact of a rule on small entities,                    data sources related to the number of
                                                additional information to be included in                  MSHA must use the Small Business                       firms, employment, and revenue. MSHA
                                                the operators’ existing examination                       Administration’s (SBA’s) definition for a              concluded that the most useful data was
                                                records. There are no technology issues                   small entity, or after consultation with               MSHA’s 2015 MSIS MNM mine data
                                                raised by the final rule.                                 the SBA Office of Advocacy, establish                  (datasets are publicly available at http://
                                                B. Economic Feasibility                                   an alternative definition for the mining               arlweb.msha.gov/OpenGovernment
                                                                                                          industry by publishing that definition in              Data/OGIMSHA.asp). MSHA summed
                                                   MSHA has traditionally used a                          the Federal Register for notice and                    employment using the MSHA data
                                                revenue screening test—whether the                        comment. MSHA has not established an                   element ‘‘Controller’’ 10 to best align
                                                yearly impacts of a regulation are less                   alternative definition and, therefore,                 with the SBA concept of firm as either
                                                than one percent of revenues—to                           must use SBA’s definition. On February                 an owner or exercising decision making.
                                                establish presumptively that the                          26, 2016, SBA’s revised size standards                 Each mine was assigned a size of large
                                                regulation is economically feasible for                   became effective. SBA updated the                      or small using the SBA size standard for
                                                the mining community. The final rule is                   small business thresholds for mining by                each NAIC code in the MSHA data.
                                                projected to cost $34.5 million per year                  establishing a number of different                     MSHA estimated mine revenue as it has
                                                and the MNM industry has estimated                        levels. MSHA used the new SBA                          in the past using U.S. Geological reports
                                                annual revenues of $78.3 billion. The                     standards for the screening analysis of                (USGS, 2016) to obtain national revenue
                                                final rule cost is less than one percent                  this final rule.                                       numbers for 2015 that MSHA then
                                                of revenues. Therefore, MSHA                                 The SBA uses North American                         allocated to mines on a dollar per hour
                                                concludes that the final rule will be                     Industry Classification System (NAICS)                 basis. Using the traditional definition of
                                                economically feasible for the MNM                         codes, generally at the 6-digit NAICS                  small, MSHA estimated that final
                                                mining industry.                                          level, to set thresholds for small                     compliance costs for MNM mines with
                                                   MSHA intends to conduct a                              business sizes for each industry. See the              1 to 19 employees is $10.6 million,
                                                retrospective study beginning January                     SBA size standard tables and                           which is less than one percent of the
                                                20, 2022. Using the results of this study,                methodology at https://www.sba.gov/                    $22.1 billion in revenues for these
                                                MSHA will determine to what extent                        contracting/getting-started-contractor/                mines in 2015. Table 4 shows the
                                                the provisions of the final rule ensure                   make-sure-you-meet-sba-size-standards/                 estimated revenues, costs, size
                                                that operators find and fix adverse                       summary-size-standards-industry-                       standards (Feb. 2016), and the summary
                                                conditions and violations of safety and                   sector.                                                level screening test results. The
                                                health standards before they cause                           MSHA has also examined the impact                   summary level data is consistent with
                                                injury or death to miners, and reduce                     of the final rule on MNM mines with                    evaluating the impact on a mine-by-
                                                the variability in how operators conduct                  fewer than 20 employees, which MSHA                    mine basis without providing detail on
                                                examinations of working places and                        and the mining community have                          the approximately ten thousand small
                                                thereby improve miners’ safety and                        traditionally referred to as ‘‘small                   mines. MSHA identified numerous data
                                                health. Under the Department’s Plan for                   mines.’’ These small mines differ from                 records that were either incomplete or
                                                Retrospective Analysis of Existing                        larger mines not only in the number of                 numerous mines that are intermittent
                                                Rules, MSHA intends to consult with                       employees, but also in economies of                    with very few producing hours during
                                                industry, labor, and other stakeholders                   scale in material produced, in the type                the year. For these reasons, the analysis
                                                in conducting this review.                                and amount of production equipment,                    by NAICS code does not exactly match
                                                   This retrospective study will be                       and in supply inventory. Therefore, the                the total mine count or totals using
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                                                conducted in accordance with the                          impact of MSHA’s rules and the costs of                MSHA’s traditional methodology.
                                                Department of Labor’s Plan for                            complying with them will also tend to                  However, the error is small enough to
                                                Retrospective Analysis of Existing Rules                  differ for these small mines. This                     not affect MSHA’s decision to certify
                                                which complies with Executive Order                       analysis complies with the requirements                that there is no significant economic


                                                  10 Official definition in data set: Legal Entity

                                                acting as a controller of an operator.


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                                                                          Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                                                                               7693

                                                impact on a substantial number of small
                                                entities.
                                                                                                           TABLE 4—SUMMARY OF SCREENING ANALYSIS BY NAICS CODE
                                                                                                                                                                      Small                               Estimated      One percent        Cost to       Cost
                                                                                                                                                                    standard                Number         revenue
                                                     NAICS                                           NAICS description                                                                                                   of revenues     small mines    exceeds
                                                                                                                                                                   (maximum                small mines   small mines      ($millions)     ($millions)   1 percent
                                                                                                                                                                   employees)                             ($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 Mining ...................................                                        750                 5          439.5              4.4            0.2   No.
                                                212234    ............   Copper Ore and Nickel Ore Mining ............................                                         1,500                17        1,383.6             13.8            0.3   No.
                                                212291    ............   Uranium-Radium-Vanadium Ore Mining .....................                                                250                 5          109.7              1.1            0.0   No.
                                                212299    ............   All Other Metal Ore Mining .........................................                                    750                28          726.4              7.3            0.3   No.
                                                212311    ............   Dimension Stone Mining and Quarrying .....................                                              500               793        2,821.7             28.2            1.6   No.
                                                212312    ............   Crushed and Broken Limestone Mining and Quar-                                                           750             1,415        7,375.5             73.8            4.1   No.
                                                                            rying.
                                                212313 ............      Crushed and Broken Granite Mining and Quarrying ..                                                       750              152        1,162.8             11.6            0.6   No.
                                                212319 ............      Other Crushed and Broken Stone Mining and Quar-                                                          500              963        3,069.8             30.7            1.7   No.
                                                                            rying.
                                                212321    ............   Construction Sand and Gravel Mining ........................                                            500             5,684        9,358.9             93.6            5.1   No.
                                                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 Refractory Minerals Mining ....                                                    500               243        1,459.7             14.6            0.8   No.
                                                212391    ............   Potash, Soda, and Borate Mineral Mining ..................                                              750                 9          650.4              6.5            0.3   No.
                                                212392    ............   Phosphate Rock Mining ..............................................                                  1,000                 8          529.5              5.3            0.3   No.
                                                212393    ............   Other Chemical and Fertilizer Mineral Mining ............                                               500                45          667.0              6.7            0.4   No.
                                                212399    ............   All Other Nonmetallic Mineral Mining .........................                                          500               185        1,044.1             10.4            0.6   No.
                                                325998    ............   All Other Miscellaneous Chemical Product and Prep-                                                      500                 3           53.1              0.5            0.0   No.
                                                                            aration 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 Primary Aluminum Production                                                      1,000                 7        1,467.3             14.7            0.4   No.

                                                     Grand                .....................................................................................   ......................        10,096       41,755.1            417.5           21.0   No.
                                                       Total.



                                                VI. Paperwork Reduction Act of 1995                                                   final rule to the existing record. Burden                               estimates that the number of times that
                                                                                                                                      hours and costs are shown below:                                        a copy of the examination record will be
                                                A. Summary
                                                                                                                                         • 161,903 hours = 10,451 mines with                                  requested is: 10 percent in mines with
                                                   This final rule contains changes that                                              1–19 employees × 1.1 shifts per day ×                                   1–19 employees; 50 percent in mines
                                                affect the burden in an existing                                                      1 exam record × 169 workdays per year                                   with 20–500 employees; and 100
                                                paperwork package with OMB Control                                                    × 5 additional minutes;                                                 percent in mines with 501+ employees.
                                                Number 1219–0089 (Safety Defects-                                                        • 50,744 hours = 1,187 mines with                                    Burden hours and costs are shown
                                                Examination, Correction, and Records).                                                20–500 employees × 1.8 shifts per day                                   below:
                                                MSHA estimates that the final rule will                                               × 1 exam record × 285 workdays per                                        • 3,238 hours = 10,451 mines with 1–
                                                result in an additional 222,519 burden                                                year × 5 additional minutes; and                                        19 employees × 10 percent × 1.1 shift
                                                hours with an associated additional cost                                                 • 1,299 hours = 22 mines with 501+                                   per day × 169 workdays per year × 1
                                                of $7.6 million annually. Public                                                      employees × 2.2 shifts per day × 1 exam                                 minute;
                                                comments relating to collection                                                       record × 322 workdays per year × 5                                        • 5,074 hours = 1,187 mines with 20–
                                                requirements were also applicable to the                                              additional minutes.                                                     500 employees × 50 percent × 1.8 shifts
                                                cost analysis section. MSHA has not                                                      Total additional burden hours for                                    per day × 285 workdays per year × 1
                                                repeated those comments as they appear                                                final §§ 56.18002(b) and (c) and                                        minute; and
                                                above in this preamble.                                                               57.18002(b) and (c) are 213,946 hours.                                    • 260 hours = 22 mines with 501+
                                                Burden for Final §§ 56.18002(b) and (c)                                                                                                                       employees × 100 percent × 2.2 shifts per
                                                                                                                                      Burden Hour Costs
                                                and 57.18002(b) and (c)                                                                                                                                       day × 322 workdays per year × 1 minute.
                                                                                                                                        Total burden hour costs for final                                       Total burden hours for final
                                                   Final §§ 56.18002(b) and (c) and                                                   §§ 56.18002(b) and (c) and 57.18002(b)                                  §§ 56.18002(d) and 57.18002(d) are
                                                57.18002(b) and (c) require the existing                                              and (c) are $7,287,001 (213,946 hours ×                                 8,572 hours.
                                                record to include the following                                                       $34.06 per hour).
                                                additional information: The name of the                                                                                                                       Burden Hour Costs
                                                person conducting the examination; the                                                Burden for Final §§ 56.18002(d) and
                                                                                                                                                                                                                Total Burden Hour Costs for final
                                                date of the examination; the location of                                              57.18002(d)
                                                                                                                                                                                                              §§ 56.18002(d) and 57.18002(d) are
                                                all areas examined; a description of each                                               Final §§ 56.18002(d) and 57.18002(d)                                  $192,270 (8,572 hours × $22.43 per
                                                condition found that may adversely                                                    require that the operator provide                                       hour).
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                                                affect the safety or health of miners; and                                            miners’ representatives with a copy of
                                                the date when a condition that may                                                    the examination record on request.                                      Copy Cost Burden Related to Final
                                                adversely affect safety or health is                                                  MSHA estimates that a MNM clerical                                      §§ 56.18002(d) and 57.18002(d)
                                                corrected. MSHA estimates that a MNM                                                  employee, earning $22.43 an hour, will                                    On average, MSHA estimates that
                                                competent person, earning $34.06 per                                                  take 1 minute to make and provide a                                     copy costs will be $0.30 (2 pages × $0.15
                                                hour, will take 5 additional minutes to                                               copy of the examination record to the                                   per page). Burden costs are shown
                                                add the information required by the                                                   representative of the miners. MSHA                                      below:


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                                                7694              Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations

                                                   • $58,285 = 10,451 mines with 1–19                   D. Executive Order 12988: Civil Justice                MNM mining industry, only the impact
                                                employees × 10 percent × 1.1 shift per                  Reform                                                 on uranium mines is applicable in this
                                                day × 169 workdays per year × $0.30 per                   Section 3 of E.O. 12988 contains                     case. MSHA data show only three active
                                                copy;                                                   requirements for Federal agencies                      uranium mines in 2015. The Energy
                                                   • $91,340 = 1,187 mines with 20–500                  promulgating new regulations or                        Information Administration’s annual
                                                employees × 50 percent × 1.8 shifts per                 reviewing existing regulations to                      uranium report for 2015 11 shows 4
                                                day × 285 workdays per year × $0.30 per                 minimize litigation by eliminating                     million pounds at an average price of
                                                copy; and                                               drafting errors and ambiguity, providing               $42.86 per pound, for sales of
                                                                                                        a clear legal standard for affected                    approximately $171.4 million. Using
                                                   • $4,675 = 22 mines with 501+                                                                               average annual costs of the final rule,
                                                                                                        conduct rather than a general standard,
                                                employees × 100 percent × 2.2 shifts per                promoting simplification, and reducing                 the impact to all active uranium mine
                                                day × 322 workdays per year × $0.30 per                 burden. MSHA has reviewed this final                   operators is $57,010. MSHA has
                                                copy.                                                   rule and has determined that it will                   concluded that it is not a significant
                                                   Total copy costs for burden related to               meet the applicable standards provided                 energy action because it is not likely to
                                                final §§ 56.18002(d) and 57.18002(d) are                in E.O. 12988 to minimize litigation and               have a significant adverse effect on the
                                                $154,300.                                               undue burden on the Federal court                      supply, distribution, or use of energy.
                                                                                                        system.                                                Accordingly, under this analysis, no
                                                VII. Other Regulatory Considerations                                                                           further Agency action or analysis is
                                                                                                        E. Executive Order 13045: Protection of                required.
                                                A. The Unfunded Mandates Reform Act                     Children From Environmental Health
                                                of 1995                                                 Risks and Safety Risks                                 I. Executive Order 13272: Proper
                                                                                                                                                               Consideration of Small Entities in
                                                   MSHA has reviewed the final rule                       MSHA has determined that this final
                                                                                                                                                               Agency Rulemaking
                                                under the Unfunded Mandates Reform                      rule will have no adverse impact on
                                                Act of 1995 (2 U.S.C. 1501 et seq.).                    children. Accordingly, E.O. 13045                         MSHA has reviewed the final rule to
                                                MSHA has determined that this final                     requires no further Agency action or                   assess and take appropriate account of
                                                rule does not include any federal                       analysis.                                              its potential impact on small businesses,
                                                mandate that may result in increased                                                                           small governmental jurisdictions, and
                                                                                                        F. Executive Order 13132: Federalism                   small organizations. MSHA has
                                                expenditures by State, local, or tribal
                                                                                                          MSHA has determined that this final                  determined that the final rule will not
                                                governments; nor will it increase private
                                                                                                        rule does not have federalism                          have a significant economic impact on
                                                sector expenditures by more than $100                   implications because it will not have                  a substantial number of small entities.
                                                million (adjusted for inflation) in any                 substantial direct effects on the States,
                                                one year or significantly or uniquely                   on the relationship between the national               VIII. References
                                                affect small governments. Accordingly,                  government and the States, or on the                   Bureau of Labor Statistics (BLS). 2016.
                                                the Unfunded Mandates Reform Act                        distribution of power and                                  Employment Cost Index
                                                requires no further Agency action or                    responsibilities among the various                         CMU203000040500P, Private Industry
                                                analysis.                                               levels of government. Accordingly, E.O.                    Total benefits for construction,
                                                                                                                                                                   extraction, farming, fishing, and forestry
                                                B. The Treasury and General                             13132 requires no further Agency action
                                                                                                                                                                   occupations. http://download.bls.gov/
                                                Government Appropriations Act of                        or analysis.                                               pub/time.series/cm/cm.data.0.Current.
                                                1999: Assessment of Federal                             G. Executive Order 13175: Consultation                 Bureau of Labor Statistics (BLS). 2015.
                                                Regulations and Policies on Families                    and Coordination With Indian Tribal                      National Occupational Employment
                                                                                                                                                                 Statistics—National—May, 2015.
                                                                                                        Governments                                              (Accessed October 13, 2016). http://
                                                  Section 654 of the Treasury and
                                                General Government Appropriations                          MSHA has determined that this final                   www.bls.gov/oes/tables.htm.
                                                                                                        rule does not have tribal implications                 Department of the Interior (DOI). 2016.
                                                Act of 1999 (5 U.S.C. 601 note) requires                                                                         Mineral Commodity Summaries 2016. U.S.
                                                agencies to assess the impact of Agency                 because it will not have substantial
                                                                                                                                                                 Geological Survey, Reston, VA. 202 pages.
                                                action on family well-being. MSHA has                   direct effects on one or more Indian
                                                                                                                                                                 http://minerals.usgs.gov/minerals/pubs/
                                                determined that this final rule will have               tribes, on the relationship between the                  mcs/2016/mcs2016.pdf.
                                                no effect on family stability or safety,                Federal Government and Indian tribes,                  Energy Information Administration (EIA).
                                                marital commitment, parental rights and                 or on the distribution of power and                      2016. 2015 Domestic Uranium Production
                                                authority, or income or poverty of                      responsibilities between the Federal                     Report. U.S. Department of Energy, EIA,
                                                                                                        Government and Indian tribes.                            Washington, DC May 2016. 23 pages.
                                                families and children. Accordingly,                                                                            Huang, Y.H., et al. 2009. Financial decision
                                                MSHA certifies that this final rule will                Accordingly, E.O. 13175 requires no
                                                                                                        further Agency action or analysis.                       makers’ views on safety: What SH&E
                                                not impact family well-being.                                                                                    professionals should know. Professional
                                                                                                        H. Executive Order 13211: Actions                        Safety. 54(4): 36–42.
                                                C. Executive Order 12630: Government                                                                           Maxey, H. 2013. Safety & Small Business.
                                                                                                        Concerning Regulations That
                                                Actions and Interference With                                                                                    The Compass. Pages 12–22. [www.Asse.org]
                                                                                                        Significantly Affect Energy Supply,
                                                Constitutionally Protected Property                                                                            Mine Safety and Health Administration
                                                                                                        Distribution, or Use
                                                Rights                                                                                                           (MSHA). 2015. Mine Injury and Worktime,
                                                                                                           E.O. 13211 requires agencies to                       Quarterly, January–December 2015.
                                                   Section 5 of E.O. 12630 requires                     publish a statement of energy effects                    Program Evaluation and Information
                                                Federal agencies to ‘‘identify the takings              when a rule has a significant energy                     Resources, Information Technology Center.
mstockstill on DSK3G9T082PROD with RULES




                                                implications of final regulatory actions.               action that adversely affects energy                     35 pages. http://arlweb.msha.gov/Stats/
                                                . . .’’ MSHA has determined that this                                                                            Part50/WQ/MasterFiles/MIWQ-Master-
                                                                                                        supply, distribution, or use. MSHA has
                                                                                                                                                                 2015-final.pdf.
                                                final rule does not include a regulatory                reviewed this final rule for its energy                Office of Management and Budget (OMB).
                                                or policy action with takings                           effects because the final rule applies to                2011. Regulatory Impact Analysis:
                                                implications. Accordingly, E.O. 12630                   the MNM mining sector. Although this
                                                requires no further Agency action or                    final rule will result in yearly costs of                11 http://www.eia.gov/uranium/production/

                                                analysis.                                               approximately $34.5 million to the                     annual/pdf/dupr.pdf, page 6.



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                                                                    Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules and Regulations                                                 7695

                                                 Frequently Asked Questions. Office of                       (b) A record of each examination shall                (d) The operator shall maintain the
                                                 Information and Regulatory Affairs,                      be made before the end of the shift for                examination records for at least one
                                                 February 7, 2011. 12 pages. http://                      which the examination was conducted.                   year, make the records available for
                                                 www.whitehouse.gov/sites/default/files/                  The record shall contain the name of the               inspection by authorized representatives
                                                 omb/assets/OMB/circulars/a004/a-4_
                                                 FAQ.pdf.
                                                                                                          person conducting the examination;                     of the Secretary and the representatives
                                                Smitha, M.W., et al. 2001. Effect of state                date of the examination; location of all               of miners, and provide these
                                                 workplace safety laws on occupational                    areas examined; and description of each                representatives a copy on request.
                                                 injury rates. J. Occ. Environ. Med.                      condition found that may adversely                     [FR Doc. 2017–00832 Filed 1–17–17; 4:15 pm]
                                                 43(12):1001–1010.                                        affect the safety or health of miners.                 BILLING CODE 4510–43–P
                                                West Virginia Office of Miners’ Health, Safety               (c) When a condition that may
                                                 and Training. 2015. Notice of Final Filing               adversely affect safety or health is
                                                 and Adoption of a Legislative Rule                       corrected, the examination record shall
                                                 Authorized by the West Virginia                                                                                 ENVIRONMENTAL PROTECTION
                                                                                                          include, or be supplemented to include,                AGENCY
                                                 Legislature—Rules Governing the Safety of
                                                 Those Employed in and Around Quarries                    the date of the corrective action.
                                                 in West Virginia. West Virginia Secretary                   (d) The operator shall maintain the                 40 CFR Part 52
                                                 of State Filed April 20, 2015. 83 pages.                 examination records for at least one
                                                                                                          year, make the records available for                   [EPA–HQ–OAR–2016–0764; FRL–9958–26–
                                                List of Subjects in 30 CFR Parts 56 and                                                                          OAR]
                                                                                                          inspection by authorized representatives
                                                57                                                        of the Secretary and the representatives               Extension of Deadline for Action on
                                                  Explosives, Fire prevention,                            of miners, and provide these                           the November 28, 2016 Section 126
                                                Hazardous substances, Metals, Mine                        representatives a copy on request.                     Petition From Delaware
                                                safety and health, Reporting and
                                                recordkeeping requirements.                               PART 57—SAFETY AND HEALTH                              AGENCY:  Environmental Protection
                                                                                                          STANDARDS—UNDERGROUND                                  Agency (EPA).
                                                Joseph A. Main,                                           METAL AND NONMETAL MINES                               ACTION: Final rule.
                                                Assistant Secretary of Labor for Mine Safety
                                                and Health.                                               ■ 3. The authority citation for part 57                SUMMARY:    In this action, the
                                                  For the reasons set out in the                          continues to read as follows:                          Environmental Protection Agency (EPA)
                                                preamble, and under the authority of the                      Authority: 30 U.S.C. 811.                          is determining that 60 days is
                                                Federal Mine Safety and Health Act of                                                                            insufficient time to complete the
                                                                                                          ■ 4. Revise § 57.18002 to read as
                                                1977, as amended by the Mine                                                                                     technical and other analyses and public
                                                                                                          follows:
                                                Improvement and New Emergency                                                                                    notice-and-comment process required
                                                Response Act of 2006, MSHA is                             § 57.18002    Examination of working places.           for our review of a petition submitted by
                                                amending chapter I of title 30 of the                        (a) A competent person designated by                the state of Delaware pursuant to section
                                                Code of Federal Regulations as follows:                   the operator shall examine each working                126 of the Clean Air Act (CAA). The
                                                                                                          place at least once each shift before                  petition requests that the EPA make a
                                                PART 56—SAFETY AND HEALTH                                 miners begin work in that place, for                   finding that Conemaugh Generating
                                                STANDARDS—SURFACE METAL AND                               conditions that may adversely affect                   Station, located in Indiana County,
                                                NONMETAL MINES                                            safety or health.                                      Pennsylvania, emits air pollution that
                                                                                                             (1) The operator shall promptly notify              significantly contributes to
                                                ■ 1. The authority citation for part 56                                                                          nonattainment and interferes with
                                                continues to read as follows:                             miners in any affected areas of any
                                                                                                          conditions found that may adversely                    maintenance of the 2008 and 2015
                                                    Authority: 30 U.S.C. 811.                             affect safety or health and promptly                   ozone national ambient air quality
                                                                                                          initiate appropriate action to correct                 standards (NAAQS) in the state of
                                                ■ 2. Revise § 56.18002 to read as
                                                                                                          such conditions.                                       Delaware. Under section 307(d)(10) of
                                                follows:
                                                                                                             (2) Conditions noted by the person                  CAA, the EPA is authorized to grant a
                                                § 56.18002       Examination of working places.           conducting the examination that may                    time extension for responding to a
                                                   (a) A competent person designated by                   present an imminent danger shall be                    petition if the EPA determines that the
                                                the operator shall examine each working                   brought to the immediate attention of                  extension is necessary to afford the
                                                place at least once each shift before                     the operator who shall withdraw all                    public, and the agency, adequate
                                                miners begin work in that place, for                      persons from the area affected (except                 opportunity to carry out the purposes of
                                                conditions that may adversely affect                      persons referred to in section 104(c) of               the section 307(d) notice-and-comment
                                                safety or health.                                         the Federal Mine Safety and Health Act                 rulemaking requirements. By this
                                                   (1) The operator shall promptly notify                 of 1977) until the danger is abated.                   action, the EPA is making that
                                                miners in any affected areas of any                          (b) A record of each examination shall              determination. The EPA is, therefore,
                                                conditions found that may adversely                       be made before the end of the shift for                extending the deadline for acting on the
                                                affect safety or health and promptly                      which the examination was conducted.                   petition to no later than August 3, 2017.
                                                initiate appropriate action to correct                    The record shall contain the name of the               DATES: This final rule is effective on
                                                such conditions.                                          person conducting the examination;                     January 23, 2017.
                                                   (2) Conditions noted by the person                     date of the examination; location of all               ADDRESSES: The EPA has established a
                                                conducting the examination that may                       areas examined; and description of each                docket for this action under Docket ID
mstockstill on DSK3G9T082PROD with RULES




                                                present an imminent danger shall be                       condition found that may adversely                     No. EPA–HQ–OAR–2016–0764. All
                                                brought to the immediate attention of                     affect the safety or health of miners.                 documents in the docket are listed on
                                                the operator who shall withdraw all                          (c) When a condition that may                       the http://www.regulations.gov Web
                                                persons from the area affected (except                    adversely affect safety or health is                   site. Although listed in the index, some
                                                persons referred to in section 104(c) of                  corrected, the examination record shall                information is not publicly available,
                                                the Federal Mine Safety and Health Act                    include, or be supplemented to include,                e.g., Confidential Business Information
                                                of 1977) until the danger is abated.                      the date of the corrective action.                     or other information whose disclosure is


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Document Created: 2017-01-20 01:30:38
Document Modified: 2017-01-20 01:30:38
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective date: May 23, 2017.
ContactSheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at [email protected] (email); 202-693-9440 (voice); or 202-693- 9441 (facsimile).
FR Citation82 FR 7680 
RIN Number1219-AB87
CFR Citation30 CFR 56
30 CFR 57
CFR AssociatedExplosives; Fire Prevention; Hazardous Substances; Metals; Mine Safety and Health and Reporting and Recordkeeping Requirements

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