[Federal Register Volume 76, Number 22 (Wednesday, February 2, 2011)]
[Proposed Rules]
[Pages 5719-5729]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Part 104
RIN 1219-AB73
Pattern of Violations
AGENCY: Mine Safety and Health Administration, Labor.
ACTION: Proposed rule; notice of close of comment period.
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SUMMARY: The Mine Safety and Health Administration (MSHA) is proposing to revise the Agency's existing regulation for pattern of violations (POV). MSHA has determined that the existing regulation does not adequately achieve the intent of the Federal Mine Safety and Health Act of 1977 (Mine Act) that the POV provision be used to address operators who have demonstrated a disregard for the safety and health of miners. Congress included the POV provision in the Mine Act so that operators would manage safety and health conditions at mines and find and fix the root causes of significant and substantial (S&S) violations to protect the safety and health of miners. The proposal would simplify the existing POV criteria, improve consistency in applying the POV criteria, and more adequately achieve the statutory intent. It would also encourage chronic violators to comply with the Mine Act and MSHA's safety and health standards.
DATES: MSHA must receive comments by midnight Eastern Standard Time on April 4, 2011.
ADDRESSES: comments must be identified with ``RIN 1219-AB73'' and may
be sent to MSHA by any of the following methods:
Federal E-Rulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
Electronic mail: zzMSHA-comments@dol.gov. Include ``RIN
1219-AB73'' in the subject line of the message.
Facsimile: 202-693-9441. Include ``RIN 1219-AB73'' in the
subject line of the message.
Regular Mail: MSHA, Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia 22209-
3939.
Hand Delivery or Courier: MSHA, Office of Standards,
Regulations, and Variances, 1100 Wilson Boulevard, Room 2350,
Arlington, Virginia. Sign in at the receptionist's desk on the 21st
floor.
Information Collection Requirements:
comments concerning the information collection requirements of this
proposed rule must be clearly identified with ``RIN 1219-AB73'' and
sent to both the Office of Management and Budget (OMB) and MSHA.
comments to OMB may be sent by mail addressed to the Office of
Information and Regulatory Affairs, Office of Management and Budget,
New Executive Office Building, 725 17th Street, NW., Washington, DC
20503, Attn: Desk Officer for MSHA. comments to MSHA may be transmitted
by any of the methods listed above in this section.
FOR FURTHER INFORMATION CONTACT: April E. Nelson, Acting Director, Office of Standards, Regulations, and Variances, MSHA, at nelson.april@dol.gov (e-mail); 202-693-9440 (voice); or 202-693-9441 (facsimile).
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background and Regulatory History
III. Section-by-Section Analysis
IV. Preliminary Regulatory Economic Analysis
V. Feasibility
VI. Regulatory Flexibility Analysis and Small Business Regulatory
Enforcement Fairness Act (SBREFA)
VII. Paperwork Reduction Act of 1995
VIII. Other Regulatory Considerations
IX. References
I. Introduction
Availability of Information
Public comments: MSHA will post all comments on the Internet
without change, including any personal information provided. Access
comments electronically at http://www.msha.gov/regsinfo.htm. Review
comments in person at the Office of Standards, Regulations, and
Variances, 1100 Wilson Boulevard, Room 2350, Arlington, Virginia. Sign
in at the receptionist's desk on the 21st floor.
E-mail notification: MSHA maintains a list that enables subscribers
to receive e-mail notification when the Agency publishes rulemaking
documents in the Federal Register. To subscribe, go to http://www.msha.gov/subscriptions/subscribe.aspx.
Information Collection Supporting Statement: A copy of the
information collection package can be obtained from the Department of
Labor by electronic mail request to Michel Smyth at
smyth.michel@dol.gov or by phone request to 202-693-4129.
II. Background and Regulatory History
A. Statutory Provision
In enacting the Mine Act, Congress included the pattern of
violations (POV) provision in section 104(e) to provide MSHA with an
additional enforcement tool to protect miners when the operator
demonstrated a disregard for the safety and health of miners. The need
for such a provision was forcefully demonstrated during the
investigation of the Scotia Mine disaster, which occurred in 1976 in
Eastern Kentucky. (S. Rep. No. 181, 95th Cong., 1st Sess. at 32.) As a
result of explosions on March 9 and 11, 1976, caused by dangerous
accumulations of methane, 23 miners and three mine inspectors lost
their lives. The Scotia Mine had a chronic history of persistent,
serious violations that were cited over and over by MSHA. After abating
the violations, the operator would permit the same violations to recur,
repeatedly exposing miners to the same hazards. The accident
investigation showed that MSHA's then-existing enforcement program was
unable to address the Scotia Mine's history of recurring violations.
The Mine Act places the ultimate responsibility for ensuring the
safety and health of miners on mine operators. The legislative history
of the Mine Act emphasizes that Congress reserved the POV provision for
mine operators with a record of repeated S&S violations. Congress
intended the POV sanction to attain remedial action from operators
``who have not responded to the Agency's other enforcement efforts.''
(55 FR 31129) The legislative history states that Congress believed
that the existence of a pattern would signal to both the
mine operator and the Secretary that ``there is a need to restore the
mine to effective safe and healthful conditions and that the mere
abatement of violations as they are cited is insufficient.'' (S. Rep.
No. 181, supra at 33.)
The Mine Act does not define ``pattern of violations,'' but section
104(e)(4) authorizes the Secretary to establish criteria for
determining when a pattern of violations of mandatory safety or health
standards exists. Congress provided the Secretary with broad discretion
in establishing pattern criteria, recognizing that MSHA may need to
modify the criteria as experience dictates.
MSHA first proposed a POV regulation in 1980 (45 FR 54656). That
proposal included: Purpose and scope, initial screening, pattern
criteria, issuance of notice, and termination of notice. Commenters
were generally opposed to the 1980 proposal. They stated that the
proposal was complex, too statistically oriented, overbroad, and vague.
In addition, they stated that the rulemaking was untimely because of
litigation then pending before the Federal Mine Safety and Health
Review Commission (Commission) concerning MSHA's interpretation of the
S&S provisions of the Mine Act. Commenters also stated that review of
the Agency's then pending regulation for assessment of civil penalties
could affect the POV proposal.
On February 8, 1985 (50 FR 5470), MSHA announced its withdrawal of
the 1980 proposed rule and issued an advance notice of proposed
rulemaking (ANPRM) that addressed many of the concerns expressed about
the 1980 proposal. In the 1985 ANPRM, MSHA stated that it intended to
focus on the safety and health record of each mine rather than on a
strictly quantitative comparison of mines to industry-wide norms. In
the ANPRM, MSHA stated that the Agency envisioned simplified criteria,
focusing on two principal areas:
(1) Were S&S violations common to a particular hazard or did S&S
violations throughout the mine represent an underlying health and
safety problem, and
(2) Is the mine on a section 104(d) unwarrantable failure sequence,
indicating that other enforcement measures had been ineffective.
MSHA requested suggestions for additional factors the Agency should
use in determining whether a POV exists and requested ideas on
administrative procedures for terminating a pattern notice.
MSHA published a second proposed rule on May 30, 1989 (54 FR
23156), which included criteria and procedures for identifying mines
with a pattern of S&S violations. The 1989 proposal included procedures
for initial identification of mines developing a pattern of violations;
criteria for determining whether a pattern of violations exists at a
mine; notification procedures that would provide both the mine operator
and miners' representative an opportunity to respond to the Agency's
evaluation that a pattern of violations may exist; and procedures for
terminating a pattern notice. The 1989 proposal addressed the major
issues raised by commenters. Commenters' primary concerns were MSHA's
policies for enforcing the S&S provisions of the Mine Act, the civil
penalty regulation, and MSHA's enforcement of the unwarrantable failure
provision of the Mine Act. MSHA held two public hearings and issued a
final rule on July 31, 1990 (55 FR 31128).
The existing rule established MSHA's criteria and procedures for
identifying mines with a POV. The existing rule reflected MSHA's belief
that Congress intended the POV sanction to be directed at restoring
mines to a safe and healthful condition.
Until mid-2007, POV screening was decentralized and lacked a
consistent, structured approach. MSHA District offices were responsible
for conducting the required annual POV screening of mines. Following
the accidents at the Sago, Darby, and Aracoma mines in early 2006, MSHA
began developing a centralized, quantifiable POV screening process.
MSHA initiated its newly developed Pattern of Violations Screening
Criteria and Scoring Model in mid-2007 and updated and revised the
screening criteria and procedures in 2010. MSHA uses a computer program
based on this screening criteria and scoring model to generate lists of
mines with a potential pattern of violations (PPOV).
III. Section-by-Section Analysis
MSHA is proposing the following changes to its existing pattern of violations regulation.
A. Section 104.1 Purpose and Scope
Proposed Sec. 104.1 would provide the purpose and scope of the proposal and is unchanged from the existing provision.
B. Section 104.2 Pattern Criteria
Proposed Sec. 104.2 would combine existing Sec. Sec. 104.2 and
104.3. It would specify the general criteria that MSHA would use to
identify mines with a pattern of violations. MSHA would review
compliance, accident, injury, and illness records. MSHA believes that
the proposed rule would simplify the process for determining whether a
mine has a pattern of violations and would more accurately reflect the
statutory intent. Consistent with the Mine Act, the proposed rule would
eliminate all references to initial screening criteria.
Proposed Sec. 104.2(a) would provide that the specific criteria
(e.g., number of S&S violations issued in the previous year) used in
the review to identify mines with a pattern of S&S violations would be
posted on MSHA's website at http://www.msha.gov. MSHA requests specific
comments on how the agency should obtain comment during the development
of, and periodic revision to, the POV screening criteria. MSHA also
requests comments on the best methods for notifying mine operators of
changes to these criteria. Under the proposal, MSHA would review:
(1) Citations for significant and substantial violations;
(2) Orders under section 104(b) of the Act for not abating
significant and substantial violations;
(3) Citations and withdrawal orders under section 104(d) of the
Act, resulting from the operator's unwarrantable failure to comply;
(4) Imminent danger orders under section 107(a) of the Act;
(5) Orders under section 104(g) of the Act requiring withdrawal of
miners who have not received training and who the inspector declares to
be a hazard to themselves and others;
(6) Enforcement measures, other than section 104(e) of the Act,
which have been applied at the mine;
(7) Other information that demonstrates a serious safety or health
management problem at the mine, such as accident, injury, and illness
records; and
(8) Mitigating circumstances.
MSHA believes that posting the specific criteria and compliance
data that the Agency would use on the website would allow mine
operators to monitor their compliance record against the proposed POV
criteria. Some mines have personnel who, currently, are requesting this
information from MSHA. This website would reduce the effort for these
mine operators. Access to this information through a searchable
database would provide operators an opportunity to evaluate their
record and determine whether they are approaching proposed POV criteria
levels. This would enable operators to proactively implement measures
to improve safety and health at their mines and to bring
their mines into compliance. Posting the specific pattern criteria on
MSHA's website will promote openness and transparency and encourage
operators to examine their compliance record more closely, ascertain
whether they have any recurring problems, and enhance the safety and
health of miners. MSHA believes that sharing this information
facilitates a more proactive approach to safety and health on the part
of all involved with miner safety and health. In addition, MSHA
believes that the ready availability of compliance data will eliminate
the need to inform operators of a potential pattern of violations
(PPOV). MSHA believes that this is an improvement over the existing
process because it allows operators to continually evaluate their
compliance performance.
Under proposed Sec. 104.2(a)(1), like the existing provision, MSHA
would consider a mine's S&S violations.
Like the existing provision, proposed Sec. 104.2(a)(2) would
require MSHA to consider closure orders issued under section 104(b) of
the Mine Act that resulted from S&S violations.
Proposed Sec. 104.2(a)(3), like existing Sec. 104.3(a)(3), would
require MSHA to consider unwarrantable failure citations and withdrawal
orders issued under sections 104(d)(1) and (d)(2) of the Mine Act.
Unwarrantable failure citations and orders often constitute S&S
violations that are the types of serious, repeated violations that
Congress intended to address in a POV regulation.
Proposed Sec. 104.2(a)(4), like existing Sec. 104.2(a)(3), would
require MSHA to consider imminent danger withdrawal orders issued under
section 107(a) of the Mine Act.
Proposed Sec. 104.2(a)(5), derived from existing Sec.
104.2(b)(1), would require MSHA to consider orders issued under section
104(g) of the Act.
Proposed Sec. 104.2(a)(6), like existing Sec. 104.2(b)(1), would
require that MSHA consider enforcement measures other than section
104(e) of the Act, which have been applied at the mine.
Proposed Sec. 104.2(a)(7) would clarify MSHA's intent that the
proposed POV criteria include consideration of operations with serious
safety and health management problems. It is derived from the existing
regulation and the legislative history of the Mine Act.\1\ It would
require MSHA to consider other information, such as accident, injury,
and illness records, that may reveal a serious safety or health
management problem at a mine. This other information may also include:
Enforcement measures, other than POV, applied at the mine; evidence of
the operator's lack of good faith in correcting the problem that
results in repeated S&S violations; repeated S&S violations of a
particular standard; repeated S&S violations of standards related to
the same hazard; and any other relevant information. This is
essentially the same information addressed in existing Sec. Sec.
104.2(b)(2) to (b)(3) and 104.3(a)(1) and (a)(2). In addition, in
making a determination under this aspect of the proposal, MSHA would
consider: knowing and willful S&S violations; citations and orders
issued in conjunction with an accident, including orders under sections
103(j) and (k) of the Mine Act; and S&S violations of safety and health
standards that contribute to the cause of accidents and injuries. MSHA
data and experience show that violations of approval, training, or
recordkeeping regulations, for example, can significantly and
substantially contribute to safety or health hazards. This is
especially true where the mine operator allows similar violations to
occur repeatedly.
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\1\ The Committee views the 105(d)(1) [now 104(e)] notice as indicating to both the mine operator and the Secretary that there exists at mine a serious safety and health management problem. (Legislative History, Committee Report, p. 620).
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Under proposed Sec. 104.2(a)(8), like existing Sec. 104.2(b)(4),
MSHA would consider mitigating circumstances. Under this proposed
provision, MSHA would consider the causes of repeated violations that
may be beyond the operator's control, such as changes in mine ownership
or mine management, and whether conditions at the mine show a trend of
significant improvement.
Under this proposed provision and consistent with the legislative
history, MSHA would allow operators to take proactive measures to bring
their mines into compliance. For example, operators who compare their
compliance record with the POV criteria and determine that they are
approaching a pattern of violations level may work with MSHA to bring
their mines into compliance to avoid a POV notice. Under the proposal,
an operator may submit a written safety and health management program
to the District Manager for approval. To obtain approval, operators
should structure safety and health management programs so that MSHA can
determine whether the program's parameters would result in meaningful,
measurable, and significant reductions in S&S violations. The operator
should develop a process and program with measurable benchmarks for
abating specific violations that could lead to a POV and addressing
these hazardous conditions at their mines. Using these benchmarks,
operators would be able to use the MSHA database accessible through the
Agency's Web site to monitor their safety and health record. Under the
proposal, MSHA would consider an operator's effective implementation of
an MSHA-approved safety and health management program as a mitigating
circumstance.
The proposed rule would eliminate the existing requirement in Sec.
104.3(b) that only citations and orders that have become final are to
be used to identify mines with a potential pattern of violations. This
proposal is consistent with the language of section 104(e), the
legislative history of the Mine Act, and the purpose of section 104(e).
In explaining the need for the POV enforcement tool, Congress pointed
out that ``the Scotia mine, as well as other mines, had an inspection
history of recurrent violations, some of which were tragically related
to the disasters, which the existing enforcement scheme was unable to
address.'' (S. Rep. No. 181, 95th Cong., 1st Sess. at 32.) The use of
the phrase ``inspection history'' indicates Congress' intent that POV
determinations be based on inspection histories, i.e., violations found
by MSHA during inspections, rather than only on final citations and
orders.
The Senate Report specifically noted similarities between sections
104(d) and 104(e) of the Mine Act and stated that the POV ``sequence
parallels the current unwarrantable failure sequence.'' (S. Rep. No.
181, supra, at 33.) This reflects Congress's intent that POV
determinations, like section 104(d)(1) and (d)(2) determinations, need
not be final orders. In addition, the Senate Report stated that it was
``* * * the Committee's intention that the Secretary or his authorized
representative [] have both [Section 104(d) and Section 104(e)]
enforcement tools available, and that they [] be used simultaneously if
the situation warrants.'' (Id at 34.) The proposal to consider non-
final citations and orders to identify mines with a POV is consistent
with the Mine Act.
The existing provision limiting MSHA's consideration of citations
and orders to those that are final restricts MSHA's ability to achieve
the purpose of the POV provision, consistent with Congressional intent.
As stated in the Mine Act and its legislative history, the Secretary is
given broad discretion to ``make such rules as [she] deems necessary to
establish criteria for determining when a pattern of violations''
exists. (30 U.S.C. 814(e)(4)) Congress stated that the Secretary should
``continually evaluate and modify the pattern of violations criteria as
she deems necessary.'' (S. Rep. No.
181, supra at 33.) MSHA's experience with enforcing section 104(e) has
led the Agency to conclude that it is necessary to modify the final
order criteria in its existing POV regulation.
In November 2010, there was a backlog of approximately 88,000
contested violations pending before the Commission. For cases disposed
during November, 2010, it took, on average, 518 days for contested
violations to become final. For a mine with contested citations and
orders that have not become final, the final order provision does not
allow MSHA to review the mine's complete recent compliance history when
assessing whether a POV exists and hinders MSHA's ability to
effectively enforce section 104(e) of the Mine Act. It can allow
chronic violators to avoid or delay the POV sanction and to continue
their repeated pattern of noncompliance with health and safety
standards, without correcting the underlying problem. The final order
provision in the existing regulation provides an incentive for
operators to contest S&S violations to avoid being placed under a POV.
The fact that the Mine Act requires an operator to abate a hazard
prior to contesting a violation provides further support for the
proposed rule. Mine operators must correct the hazardous condition
within the time set by the MSHA inspector, even if they challenge the
violation. The proposal to eliminate the existing requirement that only
final orders be used for POV determination would greatly enhance safety
and health of miners. Fewer than one percent of citations are reversed.
Over 700,000 violations were assessed civil penalties that became final
orders during the five-year period 2006 through 2010, with 3,400
vacated after they were contested. During the same timeframe, 6,000 of
the contested violations were modified from S&S to non-S&S.
Proposed Sec. 104.2(b) would increase the frequency of MSHA's
review of a mine for a POV from at least once per year under the
existing regulation to at least twice per year. MSHA determined that an
annual review would not adequately allow the Agency to identify mines
with recurring S&S violations. The increased frequency of review would
allow MSHA to more promptly identify mines with recurring S&S
violations and take appropriate action. This proposal would also
encourage operators to more closely examine their compliance records to
determine whether greater efforts are necessary to comply with the Mine
Act and MSHA's standards and regulations.
C. Section 104.3 Issuance of Notice
Proposed Sec. 104.3, renumbered from existing Sec. 104.4, would
simplify the requirements for issuing a POV notice.
Proposed Sec. 104.3(a) is similar to existing Sec. 104.4(a). The
proposal would provide that, when a mine has a POV, the District
Manager will issue a POV notice to the mine operator that specifies the
basis for the Agency's action. The District Manager will also provide a
copy of the POV notice to the representative of miners. The proposed
provision would delete all references to a PPOV; otherwise it is
essentially unchanged from the existing requirement.
MSHA believes that this proposed action would allow the Agency to
more effectively implement the POV provision in the Mine Act,
consistent with legislative intent. MSHA's experience and data reveal
that over the past 3 years, mine operators who received a PPOV letter
reduced their S&S violations by at least 30 percent. In this same
period, 6 of 62 operators received more than one PPOV letter. These
mine operators temporarily reduced their S&S violations, but reverted
back to allowing the same hazards to occur again and again without
addressing the underlying causes.
Proposed Sec. 104.3(b), essentially the same as existing Sec.
104.4(d), would require that the mine operator post a copy of the POV
notice on the mine bulletin board and that the notice remain posted
until MSHA terminates the POV notice. Existing Sec. 104.4(d) requires
the operator to post all notifications issued under 30 CFR part 104 at
the mine. The proposal would clarify that the operator post
notifications issued under this part on the mine bulletin board.
Proposed Sec. 104.3(c) is a new provision that would restate the
intent of the Mine Act when a POV notice is issued. It essentially
restates section 104(e)(1) of the Mine Act and would require MSHA to
issue an order withdrawing all persons from the affected area of the
mine if an authorized representative of the Secretary finds any S&S
violation within 90 days after the issuance of the POV notice. No one
would be allowed to enter the area affected by the violation until the
condition has been abated, except those persons referred to in section
104(c) of the Mine Act who must enter the affected area to correct the
violation.
Proposed Sec. 104.3(d) is a new provision that would specifically
restate the intent of the Mine Act when a POV notice is issued. It
would provide that if a withdrawal order is issued under proposed Sec.
104.3(c), any subsequent S&S violation will result in an order
withdrawing all persons from the affected area of the mine until the
authorized representative of the Secretary determines that the
violation has been abated, except those persons identified in section
104(c) of the Mine Act.
D. Section 104.4 Termination of Notice
Proposed Sec. 104.4, renumbered from existing Sec. 104.5, addresses the termination of a POV notice and continues to provide that a POV notice will be terminated if MSHA finds no S&S violations during an inspection of the entire mine, or if no withdrawal order for S&S violations under section 104(e)(1) of the Mine Act has been issued within 90 days of the issuance of the POV notice. MSHA's Pattern of Violations (POV) Procedures Summary, posted on MSHA's website, also includes requirements for MSHA to conduct a complete inspection of the entire mine within 90 days of issuing the POV notice. The Procedures Summary states, in part, the following:
Following notification to the operator of the issuance of a Notice of Pattern of Violations, the District Manager shall initiate appropriate inspection activities to ensure that the mine is inspected in its entirety during the following 90-day period and each succeeding inspection cycle until the POV notice is terminated.
Proposed Sec. 104.4(b), renumbered from existing Sec. 104.5(b), is unchanged.
IV. Preliminary Regulatory Economic Analysis
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (E.O.) 12866, the Agency must determine
whether a regulatory action is ``significant'' and subject to review by
the Office of Management and Budget (OMB). Section 3(f) of E.O. 12866
defines a ``significant regulatory action'' as an action that is likely
to result in a rule: (1) Having an annual effect on the economy of $100
million or more, or adversely and materially affecting a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, or tribal governments or communities
(also referred to as ``economically significant''); (2) creating
serious inconsistency or otherwise interfering with an action taken or
planned by another agency; (3) materially altering the budgetary
impacts of entitlements, grants, user fees, or loan programs or the
rights and obligations of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in this Executive Order.
MSHA has determined that this proposed rule would not have an
annual effect of $100 million or more on the economy, and is not an
economically ``significant regulatory action'' pursuant to section 3(f)
of E.O. 12866. However, the proposed rule is a ``significant''
regulatory action because it would likely raise novel legal or policy
issues. MSHA requests comments on the estimates of costs and benefits
presented in this proposed rule.
MSHA has not prepared a separate preliminary regulatory economic
analysis for this rulemaking. Rather, the analysis is presented below.
B. Industry Profile and Population at Risk
The proposed rule applies to all mines in the United States. MSHA
divides the mining industry into two major sectors based on commodity:
(1) coal mines and (2) metal and nonmetal mines. Each sector is further
divided by type of operation, e.g., underground mines or surface mines.
The Agency maintains data on the number of mines and on mining
employment by mine type and size. MSHA also collects data on the number
of independent contractor firms and their employees. Each independent
contractor is issued one MSHA contractor identification number, but may
work at any mine.
For the 12 months ending January 2010, the average number of mines
in operation was 14,100. These mines employed 297,000 miners, including
contract workers and excluding office workers. There were 8,770 mine
contractor firms with 88,000 employees, excluding office workers. Table
IV-1 presents the total number of all mines and miners, by size of
mine.
Table IV-1--Average 2009 Number of Mines and Employment (Excluding Office Employees), by Employment Size
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Employment at all
Size of mine All mines mines, excluding office
employees
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1-19 Employees................................................ 11,816 56,489
20-500 Employees.............................................. 2,234 123,181
501+ Employees................................................ 48 29,402
Contractors................................................... ....................... 87,740
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Total..................................................... 14,098 296,812
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The estimated value of coal produced in U.S. coal mines in 2009 was $35.7 billion of which $18.5 billion was from underground coal and $17.2 billion from surface coal. The value of coal was estimated from the amount of coal produced and the price of coal. MSHA obtained the coal production estimates from the Agency's MSIS system and the price per ton for coal from the Department of Energy (DOE), Energy Information Administration (EIA), Annual Coal Report 2009, October 2010, Table 28.
The value of the U.S. mining industry's metal and nonmetal (M/NM) output in 2009 was estimated to be approximately $57.1 billion. Metal mining contributed an estimated $21.3 billion to the total while the nonmetal mining sector contributed an estimated $35.8 billion. The value of production estimates are from U.S. Department of the Interior (DOI), U.S. Geological Survey (USGS), Mineral Commodity Summaries 2010, January 2010, page 8.
The combined value of production from all U.S. mines in 2009 was $92.8 billion. Table IV-2 presents the estimated revenues for all mines, by size of mine.
Table IV-2--Revenues at All Mines, by Employment Size, in 2009
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Revenues at all mines
Size of mine (million dollars)
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1-19 Employees................................. $17,450
20-500 Employees............................... 54,478
501+ Employees................................. 20,856
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Total...................................... 92,784
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C. Benefits
Although MSHA does not have an historical basis from which to
estimate the effects of placing a mine on a pattern of violations
(POV), the Agency does have some experience with issuing potential
pattern of violations (PPOV) notifications to operators. MSHA's data
reveal that although most mine operators significantly improve health
and safety conditions at their mines after receiving the PPOV
notification, many later experienced both a decline in health and
safety and an increase in S&S violations.
During June 2007 through September 2009, MSHA made PPOV evaluations
on an average of every six to nine months. During that period, MSHA
sent 68 PPOV notification letters to 62 mine operators (6 operators
received more than one notification). After receiving the notification
letter, of the mines that remained in operation to the next evaluation,
94 percent reduced the rate of S&S citations and orders by at least 30
percent and 77 percent reduced the rate of S&S citations and orders to
levels at or below the national average for similar mines. However, as
discussed previously in the preamble, improvements at some mines
declined over time. Of the 62 mine operators that received PPOV
notification letters during the review period, 6 received a second PPOV
notification letter. In addition to the 6 mines that received two
letters, 7 mines were identified in more than one evaluation as meeting
the PPOV criteria but were only sent one letter generally due to mitigating
circumstances. Compliance at 13 of the 62 mines that received PPOV
notification letters (21 percent) deteriorated such that each of these
mines either was sent or could have been sent a second letter.
Under the existing rule, MSHA identifies mines that meet the
screening criteria for PPOV. MSHA conducts a review to determine if
there are mitigating circumstances and issues PPOV notification letters
as appropriate. The proposed rule would delete the screening process as
well as all references to a PPOV.
The proposed rule would establish general criteria that MSHA would
use to identify mines with a pattern of S&S violations. MSHA would post
specific criteria that MSHA would use in making POV determinations,
including a searchable database of mine operator compliance
information, on the Agency's website. Operators would be able to use
the specific criteria and the information in the database to
continually monitor their safety and health performance and determine
whether they are approaching proposed POV criteria levels.
Under the proposed rule, MSHA would allow operators to take
proactive measures to bring their mines into compliance. MSHA would
consider an operator's effective implementation of an MSHA-approved
safety and health management program as a mitigating circumstance when
it comes to placing a mine on a POV.
Under the proposed rule, MSHA projects that operators would
continually monitor their performance and, if they believe that they
are approaching a POV, would take action to improve their safety and
health performance. MSHA projects that, under the proposed rule, most
mine operators who see that their mines are close to a POV would
institute an MSHA-approved safety and health management program to
lessen the probability of being placed on a POV and the possibility of
being issued closures. MSHA projects that this would result in more
mines taking action than those issued PPOV notifications under the
existing procedure.
Closure orders can have a substantial impact on the ability of a
mine to conduct its business. The threat of closure provides a strong
incentive for operators to ensure that S&S violations do not recur.
MSHA projects that few operators would risk such an occurrence.
MSHA projects that under the proposal, which would increase the
frequency of MSHA's review of a mine for a POV from once to twice per
year, on average, approximately 50 mine operators per year would submit
a safety and health management program to MSHA for approval as a
mitigating circumstance. Under the proposed rule, MSHA would allow
operators to take proactive measures to bring their mines into
compliance with MSHA standards and regulations, reducing the
probability of these mines being on a POV. MSHA further projects that
an average of approximately 10 mines per year (i.e., those that would
not take proactive action, such as instituting an MSHA-approved safety
and health management program) would be issued POV notifications. MSHA
requests comments on these estimates which are likely to vary from year
to year.
MSHA used the Agency's experience with PPOV notification letters to
estimate the impact that the proposed mitigating circumstance provision
(including the opportunity for operators to submit safety and health
management programs) would have on the number of nonfatal injuries at
mines. MSHA determined that 62 mines which received PPOV notification
letters (6 received two notifications) during the June 2007 through
September 2009 period experienced, on average, 11 nonfatal injuries
during the year prior to receiving the letter and eight nonfatal
injuries during the year after receiving the letter. MSHA used the one
year period before and after PPOV notification as a basis for
comparison because, as was previously noted, improvements at some mines
declined over time and because a longer period was not available for
some mines (i.e., mines that were issued PPOV notifications in
September 2009).
Based on the projection that 50 mines per year would average three
fewer nonfatal injuries in the first year after implementing an MSHA-
approved safety and health management program, MSHA projects that the
number of nonfatal injuries would be reduced by a minimum of 150 (50
mines x 3 nonfatal injuries per mine) per year. MSHA believes that this
is a low estimate for the following reasons:
It is likely that including measurable benchmarks for
abating specific violations and addressing hazardous conditions in the
MSHA-approved safety and health management programs would make these
programs more effective than the measures that recipients of the PPOV
notification letters have historically instituted.
The estimate does not include any reductions in the number
of fatalities. Because mine fatalities occur on a less frequent basis
than do injuries, the Agency does not believe that it has a reliable
basis upon which to project a reduction in fatalities. However, the
Agency believes that the implementation of an MSHA-approved safety and
health management program would reduce fatalities.
The estimate does not include any projected improvement at
the 10 mines that would not institute an MSHA-approved safety and
health management program and would be placed on a POV. However, due to
the high threshold for getting off a POV under the proposed rule, there
would likely be injury reductions for this category.
MSHA also anticipates longer lasting improvements under the
proposed rule. Of the 62 mines that received PPOV notification letters
from June 2007 through September 2009, 13 did not have a full second
year of data following receipt of the PPOV notification letter. Of the
49 mines that had two full years of data following receipt of the PPOV
notification letter, 19 (39%) experienced an increase in the number of
injuries in the second year following receipt of the PPOV notification
letter compared to the first. MSHA believes that, under the proposed
rule, fewer mines will experience such increases. Mines that have
effectively implemented an MSHA-approved safety and health management
program (to avoid being placed on a POV) would have procedures in place
to continuously address hazardous conditions. Mines that successfully
get off of a POV would have increased incentive (see the cost analysis)
to remain off and would likely institute continuing measures to
minimize violations and address hazardous conditions.
MSHA based its estimates of the monetary values for the benefits
associated with the proposed rule on relevant literature. To estimate
the monetary values of the reductions in nonfatal injuries, MSHA
performed an analysis of the imputed value of injuries avoided based on
a willingness-to-pay approach. This approach relies on the theory of
compensating wage differentials (i.e., the wage premium paid to workers
to accept the risk associated with various jobs) in the labor market. A
number of studies have shown a correlation between higher job risk and
higher wages, suggesting that employees demand monetary compensation in
return for incurring a greater risk.
Viscusi & Aldy (2003) conducted an analysis of studies that use a
willingness-to-pay methodology to estimate the imputed value of life-
saving programs (i.e., meta-analysis) and
found that the value of each lost work-day injury prevented was
approximately $50,000 in 2000 dollars. Using the GDP Deflator (U.S.
Bureau of Economic Analysis, 2010), this yields an estimate of $62,000
for each lost work-day injury avoided in 2009 dollars.
MSHA recognizes that willingness-to-pay estimates involve
uncertainty and imprecision. Although MSHA is using the Viscusi & Aldy
(2003) study as the basis for monetizing the expected benefits of the
proposed rule, the Agency does so with several reservations, given the
methodological difficulties involved in estimating the compensating
wage differentials (see Hintermann, Alberini, and Markandya, 2008).
Furthermore, these estimates pooled across different industries may not
capture the unique circumstances faced by miners. For example, some
have suggested that the models be disaggregated to account for
different levels of risk, as might occur in coal mining (see Sunstein,
2004). In addition, miners may have few options of alternative
employers and, in some cases, only one employer (near-monopsony or
monopsony) that may depress wages below those in a more competitive
labor market. In the future, MSHA plans to work with other agencies to
refine the approach taken in this proposed rule.
Based on the estimated prevention of 150 nonfatal injuries per
year, the proposed rule would result in monetized benefits of
approximately $9.3 million per year (150 nonfatal injuries x $62,000
per injury). MSHA believes that this is a low estimate for the total
benefits of the proposed rule for the reasons stated above. MSHA
solicits comments on the benefit estimates.
D. Compliance Costs
Proposed Sec. 104.3(c) would require MSHA to issue an order
withdrawing all persons from the affected area of the mine if any S&S
violation is found within 90 days after the issuance of the POV notice.
No one would be allowed to enter the area affected by the violation
until the condition has been abated, except those persons who must
enter the affected area to correct the violation.
Under proposed Sec. 104.3(d), if a withdrawal order is issued
under proposed Sec. 104.3(c), any subsequent S&S violation would
result in an order withdrawing all persons from the affected area of
the mine until the authorized representative of the Secretary
determines that the violation has been abated, except those persons who
must enter the affected area to correct the violation.
Closure orders can have a substantial effect on the ability of a
mine to conduct its business. The threat of closure provides a strong
incentive for operators to ensure that S&S violations do not recur. As
was noted under benefits, MSHA anticipates that few operators would
risk such an occurrence. Rather than risking a POV and the possibility
of a closure, MSHA projects that mine operators would monitor their
compliance record against the proposed POV criteria using the Agency's
website. MSHA estimates that it will take a supervisor an average of 5
minutes each month to monitor each mine's performance using the
Agency's website. Based on the average supervisory wage rate for all
mining in 2009 of $65.05 per hour, MSHA estimates that the yearly cost
for all mine operators to monitor their performance would be about $0.9
million (14,098 mines x 5/60 hours per month x 12 months per year x
$65.05 per hour).
However, MSHA believes that this may be an overestimate. As was
noted above, some operators are currently requesting this information
from MSHA. Making the information available on the Agency's Web site
would reduce the costs for these mine operators. MSHA requests comments
on the burden that monitoring compliance record against the proposed
POV criteria using the Agency's Web site would place on mine operators.
MSHA projects that approximately 50 mine operators each year would
submit a safety and health management program to MSHA for approval as a
mitigating circumstance. MSHA believes that it would take management
working with miners to develop and implement an effective safety and
health management program. MSHA projects that developing such a program
with meaningful and measurable benchmarks would take about 80 hours of
a supervisor's time and 80 hours of miners' time. MSHA projects that it
would take an additional 40 hours of a supervisor's time and 40 hours
of miners' time during the approval process and that the cost for
copying and mailing the program and revisions would be about $100. MSHA
projects it will take 40 hours of a supervisor's time to implementing
the program plus 120 hours of miners' time to run the program (based on
an average size mine in terms of employment).
Although the proposed rule applies to all mining, based on the
Agency's experience and due to the nature of the mining conditions,
MSHA projects that the proposed rule would have a greater impact on
underground coal mining than any other mining sector. During the period
June 2007 through September 2009, underground coal mine operators
received nearly 80 percent of the PPOV notifications. Rather than using
the wage rates for all mining as was done to estimate the costs for
monitoring mine performance, MSHA used the 2009 underground coal mine
hourly wage rates of $84.70 for a supervisor and $35.30 for a miner to
estimate these costs. Since the hourly wage rates in underground coal
mining are higher than those in surface coal and metal/nonmetal mining,
this approach could overstate the estimated costs.
The average cost of developing and implementing an approved safety
and health program at a mine would be approximately $22,100 (160 hours
of a supervisor's time x $84.70 per hour + 240 hours of miners' time x
$35.30 per hour + $100). MSHA anticipates that, each year, the
projected 50 mines that would choose to implement an MSHA-approved
safety and health management program would incur costs of approximately
$1.1 million.
Although MSHA does not have a historical basis from which to
estimate the potential costs that would be incurred by a mine on a POV,
MSHA determined that a good proxy for these costs would be the
potential production lost during mine closures while the operators take
the necessary actions to correct the safety and health violations. MSHA
projects that a typical mine would lose about 0.5 percent of revenue as
the result of closures (about 1 or 2 days for a large mine and a day or
less for a small mine) and that lost revenue due to the closures would
likely vary considerably among mines depending on the specific
conditions in the mine. Some mines would likely incur greater than
average losses while others would incur less than average losses.
As was noted above, based on the Agency's experience and due to the
nature of the mining conditions, MSHA projects that the proposed rule
would affect underground coal mining more than any other mining sector.
MSHA, therefore, used the revenue in the underground coal sector to
estimate potential production losses. The average number of underground
coal mines in operation during a month in 2009 was 424. These mines
generated an estimated $18.5 billion in revenue in 2009, an average of
approximately $43.6 million per mine. One-half percent of an average
mine's revenue is about $218,000.
MSHA estimates that the projected 10 mines that would be on a POV
each year
would potentially incur about $2.2 million in production losses (10
mines x $218,000 per mine). Since the average revenue per underground
coal mine is significantly higher than the average revenue produced by
a mine in the entire mining industry (i.e., $6.6 million per mine =
$92.8 billion/14,098 mines), this approach could overstate the
estimated costs.
MSHA estimates that the total yearly cost of the proposed rule
would be $4.2 million; $0.9 million for monitoring the performance of
each mine, $1.1 million for 50 mines developing and implementing MSHA-
approved safety and health management programs, plus $2.2 million for
10 mines operating under a POV. MSHA's estimates do not include the
cost of coming into compliance with the underlying regulatory
requirements. Although these costs can be substantial, they were
previously attributed to compliance with MSHA's existing regulations
and are not new compliance costs resulting from the proposed rule. MSHA
solicits comments on the cost estimates.
E. Net Benefits
This section presents a summary of the estimated net benefits of
the proposed rule for informational purposes only. Under the Mine Act,
MSHA is not required to use estimated net benefits as the basis for its
decision to promulgate a rule.
Based on the estimated prevention of 150 nonfatal injuries per
year, MSHA estimates that the proposed rule would result in monetized
benefits of $9.3 million per year (150 nonfatal injuries per year x
$62,000 per injury) compared to estimated costs of $4.2 million per
year, for an estimated net benefit of approximately $5.1 million per
year. MSHA solicits comments on the net benefit estimate.
V. Feasibility
MSHA has concluded that the requirements of the pattern of violations proposed rule are technologically and economically feasible.
A. Technological Feasibility
MSHA concludes that this proposed rule is technologically feasible. The proposed rule is not technology-forcing. In order to avoid a POV, mine operators would have to comply with existing MSHA regulations, which have previously been determined to be technologically feasible.
B. Economic Feasibility
MSHA also concludes that this proposed rule is economically
feasible. Mine operators can avoid the expenses of being placed on a
pattern of violations by complying with existing MSHA regulations, all
of which have previously been found to be economically feasible. For
those mine operators who are in danger of a POV, MSHA will consider the
institution of an approved safety and health management program as a
mitigating circumstance. MSHA expects few mines (about 10 per year)
would incur the potential expenses associated with closures while on a
POV.
MSHA has traditionally used a revenue screening test--whether the
yearly compliance costs of a regulation are less than one percent of
revenues--to establish presumptively that compliance with the
regulation is economically feasible for the mining community. Based on
this test, MSHA has concluded that the requirements of the proposed
rule are economically feasible. The estimated annual compliance costs
of the proposed rule to mine operators are $4.2 million, which are
insignificant compared to total annual revenue of $92.8 billion for the
mining industry (i.e., significantly less that one percent of the
mining industry's $92.8 billion revenue, which is $928 million). Even
if all of the costs were borne by the underground coal industry, the
estimated $4.2 million cost of the proposed rule is about 0.02 percent
of the underground coal industry's 2009 revenue of $18.5 billion. MSHA,
therefore, concludes that compliance with the provisions of the
proposed rule would be economically feasible for the mining industry.
VI. Regulatory Flexibility Act and Small Business Regulatory Enforcement Fairness Act (SBREFA)
Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by SBREFA, MSHA has analyzed the impact of the proposed rule on small businesses. Based on that analysis, MSHA has notified the Chief Counsel for Advocacy, Small Business Administration (SBA), and made the certification under the RFA at 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification is presented below.
A. Definition of a Small Mine
Under the RFA, in analyzing the impact of the proposed rule on
small entities, MSHA must use the SBA 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
taken such an action and is required to use the SBA definition. The SBA
defines a small entity in the mining industry as an establishment with
500 or fewer employees.
In addition to examining small entities as defined by SBA, MSHA has
also looked at the impact of this proposed rule on mines with fewer
than 20 employees, which MSHA and the mining community have
traditionally referred to as ``small mines.'' These small mines differ
from larger mines not only in the number of employees, but also in
economies of scale in material produced, in the type and amount of
production equipment, and in supply inventory. The costs of complying
with the proposed rule and the impact of the proposed rule on small
mines will also be different. It is for this reason that small mines
are of special concern to MSHA.
MSHA concludes that it can certify that the proposed rule would not
have a significant economic impact on a substantial number of small
entities that would be covered by this proposed rule. The Agency has
determined that this is the case both for mines with fewer than 20
employees and for mines with 500 or fewer employees.
B. Factual Basis for Certification
Mine operators can avoid the expenses of being placed on a POV by
complying with MSHA regulations. Under the proposed rule, MSHA will
consider the institution of an approved safety and health management
program as a mitigating circumstance for those mine operators who are
placed on a pattern. MSHA expects few mines (about 10 per year) would
incur the potential expenses associated with closure orders under a
POV.
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 a further
analysis is required. Since it was not possible to accurately project
the distribution of mines that would incur the estimated $4.2 million
to comply with the proposed rule by commodity and size, MSHA examined
the impact using several alternative assumptions.
The average number of mines in operation during a month in 2009
with 500 or fewer employees was 14,050. These mines generated an
estimated $71.9 billion in revenue in 2009. Even if all of the costs
were incurred by mines with 500 or fewer employees, the estimated $4.2
million in compliance costs would be less than 0.006 percent of the
revenue generated by all small mines according to the SBA's definition.
The average number of underground coal mines in operation during a
month in 2009 with 500 or fewer employees was 412. These mines
generated an estimated $13.7 billion in revenue in 2009. Even if all of
the costs were incurred by underground coal mines with 500 or fewer
employees, the $4.2 million in compliance costs would be about 0.03
percent of the revenue generated by small underground coal mines
according to the SBA's definition.
The average number of mines in operation during a month in 2009
with 1-19 employees was 11,816. These mines generated an estimated
$17.4 billion in revenue in 2009. Even if all of the costs were
incurred by mines with 1-19 employees, the estimated $4.2 million
compliance costs would be about 0.02 percent of the revenue generated
by all small mines with fewer than 20 employees.
The average number of underground coal mines in operation during a
month in 2009 with 1-19 employees was 81. These mines generated an
estimated $920 million in revenue in 2009. Even if all of the $4.2
million in compliance costs were incurred by underground coal mines
with 1-19 employees, the costs would be about 0.45 percent of the
revenue generated by small underground coal mines with fewer than 20
employees.
Moreover, mine operators can avoid any costs associated with being
on a POV simply by complying with the law. If an operator has trouble
complying and is in danger of being on POV, under the proposed rule,
the implementation of an approved safety and health management program
would serve as a mitigating circumstance.
Accordingly, MSHA has certified that the proposed rule would not
have a significant economic impact on a substantial number of small
entities.
VII. Paperwork Reduction Act of 1995
A. Summary
This proposed rule contains a collection-of-information requirement
subject to review and approval by OMB under the Paperwork Reduction Act
(PRA). MSHA estimates that under the proposed rule about 50 mines each
year would develop and implement approved safety and health management
programs. This would impose information collection requirements related
to mitigating circumstances under proposed Sec. 104.2(a)(8).
MSHA expects that developing an approved program with meaningful
and measurable benchmarks would take about 160 hours of a supervisor's
time at an hourly wage of $84.70 and 240 hours of miners' time at an
hourly wage of $35.30. Costs for copying and mailing the program and
revisions are estimated to be $100 per program.
The burden of developing and implementing an approved safety and
health program is 400 hours per mine (160 + 240) and the average cost
is approximately $22,100 (160 hours of a supervisor's time x $84.70 per
hour + 240 hours of miners' time x $35.30 per hour + $100).
Burden Hours: 50 mines x 400 hours per mine = 20,000 hours.
Burden Costs: 50 mines x $100 per mine = $5,000.
B. Procedural Details
The information collection package for this proposed rule has been submitted to OMB for review under 44 U.S.C. 3504, paragraph (h) of the Paperwork Reduction Act of 1995, as amended (44 U.S.C. 3501 et seq.). MSHA requests comments to:
- Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
- Evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
- Enhance the quality, utility, and clarity of the information to be collected; and
- Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
VIII. Other Regulatory Considerations
A. The Unfunded Mandates Reform Act of 1995
MSHA has reviewed the proposed rule under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq.). MSHA has determined that this proposed rule would not include any federal mandate that may result in increased expenditures by State, local, or tribal governments; nor would it increase private sector expenditures by more than $100 million in any one year or significantly or uniquely affect small governments. Accordingly, the Unfunded Mandates Reform Act of 1995 requires no further Agency action or analysis.
B. Executive Order 13132: Federalism
This proposed rule would not have ``federalism implications'' because it would not ``have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.'' Accordingly, under E.O. 13132, no further Agency action or analysis is required.
C. The Treasury and General Government Appropriations Act of 1999: Assessment of Federal Regulations and Policies on Families
Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that this proposed rule would have no effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. This proposed rule impacts only the mining industry. Accordingly, MSHA certifies that this proposed rule would not impact family well-being.
D. Executive Order 12630: Government Actions and Interference With Constitutionally Protected Property Rights
The proposed rule would not implement a policy with takings implications. Accordingly, under E.O. 12630, no further Agency action or analysis is required.
E. Executive Order 12988: Civil Justice Reform
This proposed rule was written to provide a clear legal standard for affected conduct and was carefully reviewed to eliminate drafting errors and ambiguities, so as to minimize litigation and undue burden on the Federal court system. Accordingly, this proposed rule would meet the applicable standards provided in section 3 of E.O. 12988, Civil Justice Reform.
F. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks
This proposed rule would have no adverse impact on children. Accordingly, under E.O. 13045, no further Agency action or analysis is required.
G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments
This proposed rule would not have ``tribal implications'' because it would not ``have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.'' Accordingly, under E.O. 13175, no further Agency action or analysis is required.
H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use
Executive Order 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action (i.e., it adversely affects energy supply, distribution or use). MSHA has reviewed this proposed rule for its energy effects because the proposed rule applies to the coal mining sector. Because this proposed rule would result in annual costs of approximately $4.2 million, most of which would be incurred by the coal mining industry, relative to annual coal mining industry revenues of $35.7 billion in 2009, MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.
I. Executive Order 13272: Proper Consideration of Small Entities in Agency Rulemaking
MSHA has reviewed the proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. MSHA has determined and certified that the proposed rule would not have a significant economic impact on a substantial number of small entities.
IX. References
Hintermann, B., Alberini, A., Markandya, A. (2010). ``Estimating the
Value of Safety with Labor Market Data: Are the Results
Trustworthy?'' Applied Economics. 42(9):1085-1100. Published
electronically in July 2008.
Sunstein, C. (2004). ``Valuing Life: A Plea for Disaggregation.''
Duke Law Journal, 54 (November 2004): 385-445.
U.S. Bureau of Economic Analysis (2010). National Income and Product
Accounts Table: Table 1.1.9. Implicit Price Deflators for Gross
Domestic Product [Index numbers, 2005 = 100]. Revised May 27, 2010.
http://www.bea.gov/national/nipaweb/TableView.asp?SelectedTable=13&Freq=Qtr&FirstYear=2006&LastYear=2008.
Viscusi, W. and Aldy, J. (2003). ``The Value of a Statistical Life: A Critical Review of Market Estimates Throughout the World,'' Journal of Risk and Uncertainty, (27:5-76).
List of Subjects in 30 CFR Part 104
Administrative practice and procedure, Law enforcement, Mine safety and health, Reporting and recordkeeping requirements.
Dated: January 28, 2011.
Joseph A. Main,
Assistant Secretary of Labor for Mine Safety and Health.
For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977 as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is proposing to amend chapter I of title 30 of the Code of Federal Regulations by revising part 104 as follows:
PART 104--PATTERN OF VIOLATIONS
Sec.
104.1 Purpose and scope.
104.2 Pattern criteria.
104.3 Issuance of notice.
104.4 Termination of notice.
Authority: 30 U.S.C. 814(e), 957.
Sec. 104.1 Purpose and scope.
This part establishes the criteria and procedures for determining whether a mine operator has established a pattern of significant and substantial (S&S) violations at a mine. It implements section 104(e) of the Federal Mine Safety and Health Act of 1977 (Act) by addressing mines with an inspection history of recurrent S&S violations of mandatory safety or health standards that demonstrate a mine operator's disregard for the safety and health of miners. The purpose of the procedures in this part is the restoration of effective safe and healthful conditions at such mines.
Sec. 104.2 Pattern criteria.
(a) Specific pattern criteria will be posted on MSHA's Web site at
http://www.msha.gov and used in the review to identify mines with a
pattern of S&S violations. The review will include:
(1) Citations for significant and substantial violations;
(2) Orders under section 104(b) of the Act for not abating
significant and substantial violations;
(3) Citations and withdrawal orders under section 104(d) of the
Act, resulting from the operator's unwarrantable failure to comply;
(4) Imminent danger orders under section 107(a) of the Act;
(5) Orders under section 104(g) of the Act requiring withdrawal of
miners who have not received training and who the inspector declares to
be a hazard to themselves and others;
(6) Enforcement measures, other than section 104(e) of the Act,
which have been applied at the mine;
(7) Other information that demonstrates a serious safety or health
management problem at the mine such as accident, injury, and illness
records; and
(8) Mitigating circumstances.
(b) At least two times each year, MSHA will review the compliance
and accident, injury, and illness records of mines to determine if any
mines meet the criteria posted on MSHA's Web site.
Sec. 104.3 Issuance of notice.
(a) When a mine has a pattern of violations, the District Manager
will issue a pattern of violations notice to the mine operator that
specifies the basis for the Agency's action. The District Manager will
also provide a copy of this notice to the representative of miners.
(b) The mine operator shall post a copy of the notice on the mine
bulletin board. The notice shall remain posted at the mine until it is
terminated under Sec. 104.4 of this part.
(c) If, on any inspection within 90 days after issuance of the
pattern notice, an authorized representative of the Secretary finds any
S&S violation, he shall issue an order for the withdrawal of all
persons from the affected area, except those persons referred to in
section 104(c) of the Act, until the condition has been abated.
(d) If a withdrawal order is issued under paragraph (c) of this
section, any subsequent S&S violation will result in a withdrawal order
that shall remain in effect until the authorized
representative of the Secretary determines that the violation has been
abated.
Sec. 104.4 Termination of notice.
(a) Termination of a section 104(e)(1) pattern of violations notice
shall occur when an MSHA inspection of the entire mine finds no S&S
violations, or if no withdrawal order is issued by MSHA in accordance
with section 104(e)(1) of the Act within 90 days of the issuance of the
pattern notice.
(b) The mine operator may request an inspection of the entire mine
or portion of the mine. No advance notice of the inspection shall be
provided, and the scope of inspection shall be determined by MSHA.
Partial mine inspections-covering the entire mine within 90 days shall
constitute an inspection of the entire mine for the purposes of this
part.
[FR Doc. 2011-2255 Filed 1-31-11; 8:45 am]
BILLING CODE 4510-43-P
