MSHA derived these cost estimates using the following calculations.

§ 62.160 Evaluation of Audiogram

Section 62.160 would require the mine operator to have a skilled medical professional compare the annual audiogram to the miner's baseline audiogram to determine if a standard threshold shift or a reportable hearing loss has occurred, giving credit for aging effects.

The section also would require mine operators to instruct the physician or audiologist not to reveal to the operator any findings unrelated to the miner's exposure to noise or wearing hearing protectors. An audiometric retest would be required if the audiogram is found to be invalid. The costs of this section are as follows.

These cost estimates were determined using the following calculations. These estimates reflect the number of miners who are not covered by a voluntary HCP with audiometric testing. MSHA estimates that 5% of small mines and 20% of large mines voluntarily offer an HCP.

§ 62.170 Follow-up Evaluation

If a valid audiogram cannot be obtained due to a medical pathology of the ear which the physician or audiologist suspects was caused or aggravated by the miner's exposure to noise or the wearing of hearing protectors, the operator would be required to have a clinical audiological evaluation or an otological examination performed on the miner; the costs of additional tests and exams would have to be paid by the mine operator. If a reportable hearing loss is confirmed, the mine operator must report it to MSHA under existing 30 CFR part 50 requirements.

Additionally, the mine operator would be required to provide instructions to the physician or audiologist. These instructions would tell the physician that if the medical pathology of the ear is not work-related that the physician should inform the miner of the need for an otological examination. The operator must also instruct the physician not to reveal to the operator any specific findings or diagnoses unrelated to the miner's noise exposure or the wearing of hearing protection without the written consent of the miner. The mine operator would also need to notify the miner of the need to take the exam.

MSHA estimates that 24 mine operators (17 metal/nonmetal; 7 coal) would need to send miners for an otological evaluation. Metal/nonmetal mine operators would send 264 (90 from small mines; 174 from large mines) miners for testing. Coal mine operators would send 220 (24 from small mines and 196 from large mines) miners for testing. MSHA did not adjust its calculation to reflect the numbers of miners covered by a voluntary HCP since the Agency anticipates that such HCPs would not include a requirement for otological testing.

These estimates are based on the assumption that 5% of the retested miners (0.0062% of all miners audiometrically tested), earning about $22.60 per hour at metal/nonmetal mines and about $25.40 per hour at coal mines, would need an otological evaluation and that it would take two hours for the exam and evaluation. An otological exam would cost about $250.

The costs of this section are provided below.

The following table details how these cost estimates were derived.

§ 62.180 Follow-up Corrective Measures.

Under the proposal, within 30 days of receiving evidence of a work-related STS, the mine operator would be required to perform the following corrective tasks: (1) retrain miner and keep a record of retraining, (2) permit miner to select additional or different hearing protector from among those offered by mine operator (see §62.125 for cost of HPDs), and (3) review the effectiveness of engineering and administrative controls to identify and correct any deficiencies.

MSHA expects that a work-related STS would be found in all of the reexamined miners. The cost of retraining and refitting miners with an STS would be about $43,980 for metal/nonmetal mine operators ($17,350, small; $26,630, large). For coal mine operators, the annual cost would total $38,660 ($5,200, small; $33,460, large). MSHA estimates that 20 minutes would be needed to refit and retrain a miner. About 370 metal/nonmetal mine operators (320, small; 50 large) would perform this task for 5,299 miners (1,808 miners for small mines and 3,491 miners for large mines). In addition, 120 coal mine operators (70 small; 50 large) would have to refit and retrain 4,415 miners (507 miners at small mines and 3,908 miners at large mines).

The costs of refitting and retraining is found by adding the miners' labor cost (number of miners times the time to train times the wage rate) plus the supervisor's labor cost (number of mines multiplied by the time to train multiplied by the wage rate). For these calculations, MSHA did not adjust the number of miners (or mines) for those who are covered by an HCP. All miners found to have an STS must be retrained. The Agency does not believe current HCPs include this retraining requirement. Here are the cost calculations.

Along with the retraining costs, the proposal would require mine operators to prepare and retain a certification of retraining. The costs of completing this task are computed by multiplying the number of miners who are retrained by the sum of a photocopy cost plus the clerical labor cost (clerical wage rate times the time to prepare the certification). These costs are given by the following equations.

The cost of reviewing administrative and engineering controls would be $6,515 for the industry ($3,415 metal/nonmetal mine operators; $3,645, coal mine operators). About 50 metal/nonmetal mine operators would perform this function. In addition, 60 coal mine operators would also need to review administrative and engineering controls. MSHA estimates that 0.75 hour would be spent by small mines in doing so; large mines would need 1.5 hours of supervisory time to accomplish this task.

The Agency calculated this cost by multiplying the number of mine operators which use administrative controls and which have a miner with an STS by the managerial labor cost and the clerical labor cost. MSHA did not adjust these numbers to reflect the influence of having a voluntary HCP as an HCP would not normally address this requirement. Here are the calculations.

The cost of permitting a miner to select a different type of hearing protection would be minimal. MSHA estimates that the mine operators would have at least two types of hearing protection available to satisfy the proposal's requirements. The selection of a different type would take a nominal amount of time. The following table summarizes the net compliance costs associated with follow-up corrective measures.

§ 62.190 Notification of Results

The proposal is new and would require the mine operator to notify miners of the test results within 21 days of the test or evaluation of results. Further, it requires that work-related hearing losses be reported to MSHA. MSHA estimates that 12.5% of miners who are audiometrically tested in an HCP would need to be retested for determination of an STS; that would be 4,513 metal/nonmetal miners and 3,607 coal miners. An otological exam would need to be performed on 264 metal/nonmetal miners and 220 coal miners.

Based on an average wage rate of $16.16 per hour for a clerical/secretarial worker, MSHA estimates that the cost of this section is $128,710 for the industry. Metal/nonmetal mine operators would have estimated costs of $74,340 ($34,070, small mines; $40,270, large mines). Coal mine operators would have estimated costs of $54,370 ($9,170, small mines; $45,200, large mines).

MSHA estimates that it requires about 0.08 hour to prepare a written notice and to notify each miner; 0.1 hour of supervisory time would be required to give directions to the clerical worker and to approve the final notice.

The proposal would require mine operators to notify miners of an STS or of the need for an otological exam if the hearing loss were found not to be work-related. MSHA estimates an average of 0.08 hour of clerical time would be needed per notice and 0.1 hour of supervisory time would be spent giving instructions and approving the final notice.

The costs of reporting to MSHA a reportable hearing loss are allocable to costs of complying with 30 CFR part 50.

The following chart summarizes the costs of this section.

Here are the cost calculations.

§ 62.200 Access to Records

The proposal is new and would require the mine operator, upon request, to provide access to records to authorized representatives of the Secretaries of Labor and Health and Human Services as well as to the miner and the miner's designated representative. The proposal specifies a time period of 15 calendar days of the written request that the mine operator would have to comply with the request which MSHA believes provides ample time. The proposal further clarifies the meaning of access.

MSHA estimates that 4-5 minutes of clerical time would be needed to photocopy records. One percent of miners (or their designated representatives) are anticipated to request access per year (1,110 metal/nonmetal miners; 757 coal miners).

In addition, the proposal would require mine operators to give copies of all records required by this part to miners when they terminate their employment. For metal/nonmetal mine operators, the miner attrition rate is 11.4% for small mines and 6.4% for large mines. The provision would apply to 4,021 miners of small metal/nonmetal mines and 4,844 miners of large metal/nonmetal mines. The rates for the coal industry are 5.8% and 1.9% respectively. The provision would apply to 523 miners of small coal mines and 1,267 miners of large coal mines.

MSHA estimates the costs of this section to be $8,375 for small metal/nonmetal mine operators and $10,490 for large metal/nonmetal mine operators to provide access and copies to 4,371 miners at small mines and 5,604 miners at large mines. MSHA estimates that coal operators would spend $4,845 ($1,190 for small mines and $3,655 for large mines) to provide this service for 613 miners at small mines and 1,937 miners at large mines.

The costs of this provision are found by summing the costs of the clerical worker with the managerial labor cost. The costs of the clerical worker are found by multiplying the number of miners times the sum of the copy cost plus the clerical wage rate times the time to process a request. The managerial labor costs are found by multiplying the number of mines affected by the time to give instructions by the supervisor's wage rate. The calculations are provided below. This provision implements section 101 (a) of the Mine Act.

§ 62.210 Transfer of Records

This section would require the mine operator to transfer all records required by this part to the successor mine operator. The mine operator shall notify miners of their right to access records if no successor operator exists.

Based upon data compiled by the U.S. Department of the Interior, Bureau of Mines, MSHA projects that the mine closure rate is about 5.8% at small metal/nonmetal mines, 1.0% at large metal/nonmetal mines, 12.5% at small coal mines, and 1.9% at large coal mines. This translates to 571 mines which close each year (361 small metal/nonmetal, 10 large metal/nonmetal, 160 small coal, 40 large coal).

MSHA estimates that making a photocopy of records for an individual miner would take only 5-6 minutes. The labor cost is estimated to be $16.16 per hour for a clerical worker or secretary. MSHA estimates that it would take 0.1 hour for the mine operator to give instructions to the secretary.

The annually recurring cost for compliance with this provision of the proposal would be minimal, amounting to $5,040 for industry compliance ($2,950, metal/nonmetal mines; $2,090, coal mines).

These costs were computed taking the sum of the clerical labor cost (number of mines times clerical wage rate times the time to transfer) plus the managerial labor cost (number of mines times managerial wage rate times the time to give instructions). The calculations are illustrated below.

CONTRACTORS

The proposed requirements of this rule would be applicable to contract workers. There are about 27,170 coal contractors (14,310 work at small coal mines, 12,860 work at large coal mines) and 33,900 metal/nonmetal contractors (12,920 work at small metal/nonmetal mines, 20,975 work at large metal/nonmetal mines. MSHA, however, does not have data to determine their noise exposure, duration of their employment at a specific mine, nor the type of noise preventive personal protective equipment which is supplied to them by their employers. MSHA requests information from the mining public to assist in determining the impact of the proposal on contractors, both at metal/nonmetal and coal mines.

To derive an estimate of the proposal's impact relative to contractors, MSHA made two key assumptions. The Agency assumed that the distribution of noise exposure for contractors would be identical as that of miners. In addition, MSHA assumed that the percent of employers that provide HPDs for contractors would be the same as that for miners.

MSHA estimates that compliance would cost at least $541,640 for hearing protectors and training. Metal/nonmetal mine operators would spend about $316,320; coal operators would spend an estimated $225,320.

These cost estimates were derived as follows.

FEASIBILITY

As discussed in detail in Part IV of the preamble of the proposed rule, MSHA has concluded that the requirements of the proposed rule are feasible for the mining industry.

Prior to the preproposal draft notice for rulemaking on noise exposure, MSHA conducted an examination of the feasibility of engineering noise controls. This initial study was performed for metal and nonmetal mines. The study revealed that engineering controls such as retrofitting equipment and the use of noise dampening fields would be economically and technologically feasible on specific types of equipment. The study was organized by feasibility per equipment type.

For haulage equipment (shuttle cars, haul trucks, etc), draglines, shovels, and portable crushers, engineering controls can be added to reduce noise exposure; for each type of equipment, a three to five decibel reduction was expected. In addition, the study suggested that such changes would be economically feasible as the controls would cost from $700 to $1,000 per machine. This figure can be amortized over the life of the equipment and the annualized cost is low.

MSHA anticipates that the most expensive engineering controls to be retrofitting machinery with acoustically treated cabs which could cost up to $13,000. In looking at these options, MSHA would expect that mine operators would consider the noise reduction of the controls as to their relationship to getting below the PEL. The age and remaining productive life of the equipment would be factors. In situations where cabs are not feasible, MSHA anticipates the use of less costly and effective controls, including the placement of acoustic materials on the firewall and in the operator's compartment, or the addition of a muffler.

The greatest issues concerning feasibility center on the financial ability of mine operators to install engineering controls. Although the total cost of engineering controls is a small fraction of the value of all mining production, some individual mine operators, notably small operators, may have difficulty in achieving full compliance immediately due to the expected financial outlay for engineering controls. However, ultimate compliance with the proposal is expected to be achieved.

As further discussed in Part IV of the preamble, and in the Initial Regulatory Flexibility Analysis, MSHA considered some additional regulatory alternatives that would have resulted in more extensive use of engineering controls. MSHA believes that these alternatives might not be feasible at this time for the mining industry.

In accordance with § 605 of the Regulatory Flexibility Act (RFA), the Mine Safety and Health Administration certifies that the noise proposal does not have a significant economic impact on a substantial number of small entities. MSHA considers small mines to be mines with fewer than 20 employees. However, for the purposes of the RFA and this certification, MSHA has also evaluated the impact of the proposal on mines up to and including those with fewer than 500 employees. No small governmental jurisdictions or nonprofit organizations are affected. Under the Small Business Regulatory Enforcement Fairness Act (SBREFA) amendments to the RFA, MSHA must include in the proposal a factual basis for this certification. The Agency also must publish the regulatory flexibility certification statement in the Federal Register, along with the factual basis, followed by an opportunity for comment by the public. The Agency has consulted with the Small Business Administration (SBA) Office of Advocacy and believes that this analysis provides a reasonable basis for the certification in this case.

MSHA specifically solicits comment on the Agency's determination in this regulatory flexibility certification statement, including cost data and data sources. To facilitate the public participation in the rulemaking process, MSHA will mail a copy of the proposed rule, including the preamble and regulatory flexibility certification statement, to every mine operator.

Factual basis for certification. The Agency has used a quantitative approach in concluding that the proposed rule does not have a significant impact on a substantial number of small entities. The Agency performed its analysis separately for two groups of mines: the coal mining sector as a whole, and the metal and nonmetal mining sector as a whole. Based on a review of available sources of public data on the mining industry, the Agency believes that a quantitative analysis of the impacts on various mining subsectors (i.e., beyond the 4-digit SIC level) may not be feasible. The Agency requests comments, however, on whether there are special circumstances that warrant separate quantification of the impact of this proposal on any mining subsector, and information on how it might readily obtain the data necessary to conduct such a quantitative analysis. The Agency is fully cognizant of the diversity of mining operations in each sector, and has applied that knowledge as it developed the proposal.

Under the RFA, MSHA must use the SBA definition for a small mine of 500 employees or fewer or, after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment. The alternative definition could be the Agency's traditional definition of "fewer than 20 miners," or some other definition. As reflected in the certification, MSHA analyzed the costs of this proposal for small and large mines using both the traditional Agency definition, and SBA's definition, as required by RFA, of a small mine. The Agency compared the costs of the proposal for small mines in each sector to the revenues and profits for each sector for every size category analyzed. In each case, the results indicated that the costs as a percent of revenue are less than 1%. Further, the costs do not appear to have any appreciable impact on profits.

The following table summarizes the results of this analysis for mines which employ fewer than 500 miners, at various sizes.

In determining revenues for coal mines, MSHA multiplied coal production data (in tons) for mines in specific size categories (reported to MSHA quarterly) by the average price per ton (from the Department of Energy, Energy Information Administration, Annual Energy Review 1995). For metal and nonmetal mines, the Agency estimated revenues for specific mine size categories as the proportionate share of these mines' contribution to the Gross National Product (from the Department of the Interior, former Bureau of Mines, Mineral Commodity Summaries 1996). Average profit as a percent of revenue for both coal mines and metal and nonmetal mines comes from Dun & Bradstreet Information Services, Industry Norms & Key Business Ratios, 1993-94.

Based on the information in the Agency's preliminary Regulatory Impact Analysis (summarized in the "costs" table in the Question and Answer section of this preamble), the costs of the proposal for all metal and nonmetal mines with fewer than 20 employees would be $4.6 million; the average cost of the proposal for a small metal and nonmetal mine with fewer than 20 employees is about $500. The average cost of the proposal for a small metal and nonmetal mine with fewer than 500 employees is about $700. For small coal mines with fewer than 20 employees, the proposal is estimated to result in a small net savings of about $30. This savings results from the proposed elimination of a substantial paperwork burden htat now exists in the coal mine sector for monitoring miners' noise exposures. For small coal mines with fewer than 500 employees, the proposal is estimated to result in a net cost of about $130.

Regulatory alternatives rejected. The limited impacts on small mines, regardless of size definition, reflect decisions by MSHA not to propose more costly regulatory alternatives. In considering regulatory alternatives for small mines, MSHA must observe the requirements of its authorizing statute. Section 101(a)(6)(A) of the Mine Act requires the Secretary to set standards which most adequately assure, on the basis of the best available evidence, that no miner will suffer material impairment of health over his/her working lifetime. In addition, the Mine Act requires that the Secretary, when promulgating mandatory standards pertaining to toxic materials or harmful physical agents, consider other factors, such as the latest scientific data in the field, the feasibility of the standard and experience gained under the Act and other health and safety laws. Thus, the Mine Act requires that the Secretary, in promulgating a standard, attain the highest degree of health and safety protection for the miner, based on the "best available evidence," with feasibility as a consideration.

As a result of this statutory requirement, MSHA seriously considered two alternatives that would have significantly increased costs for small mine operators lowering the PEL to a TWA8 of 85 dBA, and lowering the exchange rate to 3 dB. In both cases, the scientific evidence in favor of these approaches was strong. But in both cases, for the purpose of this proposal, MSHA has concluded that it may not be feasible for the mining industry to accomplish these more protective approaches. The impact of these approaches on small mine operators was an important consideration in this regard. Part IV of this preamble contains a full discussion of MSHA's preliminary conclusions about these alternatives. The public is invited to propose other alternatives for consideration.

Paperwork impact. In accordance with the Regulatory Flexibility Act and the Paperwork Reduction Act of 1995 (PRA 95), MSHA has analyzed the paperwork burden for small mines. While the proposal results in a net paperwork burden decrease for all mines, it results in an increase in paperwork hours. For mines with fewer than 20 miners the proposal would result in an increase of about 18,800 hours, and with fewer than 500 miners it would result in a decrease of about 14,985 hours. The bulk of the new hours (greater than 80%) is derived from the audiometric testing program and procedures. While mines with fewer than 20 employees in the coal and metal and nonmetal sectors will have extra burden hours associated with new requirements, the net burden hours for small coal mines are actually reduced, because the proposal would eliminate current requirements for biannual noise surveys and other miscellaneous reports and surveys in that sector. However, at this size level, there are more metal and nonmetal mines than there are coal mines. Thus, at this size level, the proposal would result in a net gain in paperwork burdens.

As required by PRA 95, MSHA has included in its paperwork burden estimates the time needed to perform tasks associated with information collection. For example, the proposed rule requires a mine operator to notify a miner if the miner's noise exposure exceeds the action level. In order to determine if notification is necessary, the mine operator must perform dose determination monitoring. Although completion of the notification would take 0.05 hour on average, the time for dose determination must be included in the burden estimate according to the new paperwork law. The proposal's average paperwork burden per small metal and nonmetal mine is 4.8 hours and per small coal mine is 6 hours.

Other relevant matters. In accordance with the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA is taking actions to minimize the compliance burden on small mines. As discussed in the "Questions and Answers" section of this preamble, MSHA is committed to writing the final rule in plain English, so that it can be easily understood by small mine operators. The proposed effective date of the rule would be a year after final promulgation, to provide adequate time for small mines to achieve compliance. Also, as stated previously, MSHA will mail a copy of the proposed rule to every mine operator which primarily benefits small mine operators. The Agency has committed itself to issuance of a compliance guide for all mines, and has invited comment on whether compliance workshops or other such approaches would be valuable.

MSHA is considering whether to continue to use "fewer than 20 miners" as the definition of a small mine for purposes of the Regulatory Flexibility Act (RFA). For this rulemaking's Regulatory Flexibility Analysis, the Agency is using fewer than 20 employees, in addition to the SBA's definition of fewer than 500, as required by the RFA. MSHA presently is consulting with the SBA Office of the Chief Counsel for Advocacy in order to determine an appropriate definition to propose to the public for comment in the future. For purposes of this proposed rule on noise, MSHA has continued its past practice of using "under 20 miners" as the appropriate point of reference, in addition to SBA's definition. Reviewers will note that the paperwork and cost discussions continue to refer to the impacts on "small" mines with fewer than 20 employees. The Agency has not established a definition of "small entity" for purposes of the final rule. Based on this analysis, MSHA concludes that whatever definition of "small entity" is eventually selected, the proposed noise rule does not have a significant economic impact on a substantial number of small entities.

MSHA has determined that, for purposes of § 202 of the Unfunded Mandates Reform Act of 1995, this proposal does not include any Federal mandate that may result in increased expenditures by State, local, or tribal governments in the aggregate of more than $100 million, or increased expenditures by the private sector of more than $100 million. Moreover, the Agency has determined that for purposes of § 203 of that Act, this proposed rule does not significantly or uniquely affect small governments.

Background. The Unfunded Mandates Reform Act was enacted in 1995. While much of the Act is designed to assist the Congress in determining whether its actions will impose costly new mandates on State, local, and tribal governments, the Act also includes requirements to assist Federal agencies to make this same determination with respect to regulatory actions.

Analysis. Based on the analysis in the Agency's preliminary Regulatory Impact Statement (summarized in the "cost" table in the Questions and Answers section of this preamble), the cost of this proposed rule for the entire mining industry is less than $10 million. Accordingly, there is no need for further analysis under § 202 of the Unfunded Mandates Reform Act.

MSHA has concluded that small governmental entities are not significantly or uniquely impacted by the proposed regulation. The proposed rule will impact approximately 14,000 coal and metal and nonmetal mining operations; however, increased costs would be incurred only by those operations where noise exposures exceed the allowable limits. MSHA estimates that approximately 350 sand and gravel or crushed stone operations are run by state, local, or tribal governments and would be impacted by this rule. MSHA anticipates that these entities would be able to reduce noise exposure below the PEL via engineering and administrative controls and would not need to use a Hearing Conservation Program, thereby minimizing their costs. MSHA estimates that increased costs for these entities would be about $500 per year which would be partially offset by reduced worker compensation costs. Other tangible benefits include reduction in the number of cases of hearing impairment in these entities.

When MSHA issues the proposed rule, the Agency will affirmatively seek input of any state, local, and tribal government which may be affected by the noise rulemaking. This would include state and local governmental entities who operate sand and gravel mines in the construction and repair of highways and roads. MSHA will mail a copy of the proposed rule to approximately 350 such entities.

Following is MSHA's state-by-state listing of sand and gravel mines owned or operated by state or local governments. The Agency welcomes any corrections.