Rule2023-27640
Safety Program for Surface Mobile Equipment
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 20, 2023
Effective
January 19, 2024
Issuing agencies
Labor DepartmentMine Safety and Health Administration
Abstract
The Mine Safety and Health Administration (MSHA or the Agency) is requiring that mine operators develop, implement, and update, periodically or when necessary, a written safety program for surface mobile equipment (excluding belt conveyors) at surface mines and surface areas of underground mines. The written safety program must be developed and updated with input from miners and their representatives. The written safety program must include actions mine operators will take to identify hazards and risks to reduce accidents, injuries, and fatalities related to surface mobile equipment. The final rule offers mine operators flexibility to devise a safety program that is appropriate for their specific mining conditions and operations.
Full Text
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<title>Federal Register, Volume 88 Issue 243 (Wednesday, December 20, 2023)</title>
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[Federal Register Volume 88, Number 243 (Wednesday, December 20, 2023)]
[Rules and Regulations]
[Pages 87904-87928]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27640]
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DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 56, 57, and 77
[Docket No. MSHA-2018-0016]
RIN 1219-AB91
Safety Program for Surface Mobile Equipment
AGENCY: Mine Safety and Health Administration (MSHA), Department of
Labor.
ACTION: Final rule.
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SUMMARY: The Mine Safety and Health Administration (MSHA or the Agency)
is requiring that mine operators develop, implement, and update,
periodically or when necessary, a written safety program for surface
mobile equipment (excluding belt conveyors) at surface mines and
surface areas of underground mines. The written safety program must be
developed and updated with input from miners and their representatives.
The written safety program must include actions mine operators will
take to identify hazards and risks to reduce accidents, injuries, and
fatalities related to surface mobile equipment. The final rule offers
mine operators flexibility to devise a safety program that is
appropriate for their specific mining conditions and operations.
DATES:
Effective date: The final rule is effective January 19, 2024.
Compliance date: Compliance with this final rule is not required
until July 17, 2024
FOR FURTHER INFORMATION CONTACT: S. Aromie Noe, Director, Office of
Standards, Regulations and Variances, MSHA, at <a href="/cdn-cgi/l/email-protection#7f31101a512c101118523e1a513e3f1b101351181009"><span class="__cf_email__" data-cfemail="6927060c473a06070e44280c4728290d0605470e061f">[email protected]</span></a>
(email), 202-693-9440 (voice) or 202-693-9441 (facsimile). These are
not toll-free numbers.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Section-by-Section Analysis
III. Executive Order 12866 (Regulatory Planning and Review),
Executive Order 14094 (Modernizing Regulatory Review), and 13563
(Improving Regulation and Regulatory Review)
IV. Regulatory Flexibility Analysis (RFA) and Small Business
Regulatory Enforcement Fairness Act (SBREFA) and Executive Order
13272: Proper Consideration of Small Entities in Agency Rulemaking
V. Paperwork Reduction Act of 1995
VI. Other Regulatory Considerations
VII. References
I. Introduction
A. Regulatory Authority
This final rule is issued under section 101 of the Federal Mine
Safety and Health Act of 1977 (Mine Act), as amended. 30 U.S.C. 811.
B. Background
A variety of mining equipment is used at surface mines or in
surface areas of underground mines. Surface mining vehicles can be very
large (many can be several stories tall) and are capable of destroying
smaller vehicles that cannot be seen by the vehicle operators.
Accidents involving mining equipment are a leading cause of fatalities
at mines, although fatalities involving powered haulage equipment, a
type of mobile equipment, decreased in 2022.<SUP>1 2</SUP> To reduce
the number of accidents, injuries and fatalities at mines, MSHA
implemented several powered haulage initiatives--for example,
conducting safety awareness campaigns, providing powered haulage
guidance and technical assistance, and disseminating training materials
and best-practices information that addresses powered haulage safety.
Despite these efforts, in 2023, machinery (mobile) accidents have still
accounted for a significant number of mining fatalities.
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\1\ Accidents at mines are classified by MSHA based on the
Agency's ``Accident Investigation Procedures Handbook,'' which
defines 21 categories of mine-related accidents. Most accidents
involving mining equipment are classified under one of two MSHA
accident categories--powered haulage accidents or machinery
accidents--depending on the type of equipment involved. For more
information, please see MSHA Accident Investigation Procedures
Handbook, December 2020, Appendix 7, Accident Classifications--
available at https:/<a href="http://arlweb.msha.gov/READROOM/HANDBOOK/PH20-I-4.pdf">arlweb.msha.gov/READROOM/HANDBOOK/PH20-I-4.pdf</a>.
\2\ MSHA Fatality Reports, <a href="https://www.msha.gov/data-and-reports/fatality-reports/search?page=2">https://www.msha.gov/data-and-reports/fatality-reports/search?page=2</a>.
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On July 20, 2021, for example, MSHA hosted a national ``Stand Down
for Safety Day'' to focus on powered haulage accidents and vehicle
rollovers to help educate miners, save lives, and prevent injuries.\3\
On that day, Mine Safety and Health Enforcement (MSHE) and Educational
Field and Small Mine Services (EFSMS) staff visited mines to meet with
miners and operators to increase awareness of powered haulage hazards
and the need to be familiar with and follow mine-safety best practices.
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\3\ More information on MSHA's ``Stand Down for Safety Day'' can
be found on MSHA's website at <a href="https://blog.dol.gov/2021/07/14/stop-powered-haulage-accidents-stay-alert-stay-alive">https://blog.dol.gov/2021/07/14/stop-powered-haulage-accidents-stay-alert-stay-alive</a>.
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On February 28, 2022, MSHA announced its ``Take Time, Save Lives''
campaign to remind mine operators to train miners and ensure miners can
take their time to prevent accidents and injuries and to save lives.\4\
As part of the campaign, mines across the country received a poster to
display at mine sites with steps operators and miners can take to stay
safe, including actions related to working around powered haulage
equipment and wearing seat belts.
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\4\ More information on MSHA's ``Take Time, Save Lives''
campaign can be found on MSHA's website at <a href="https://www.msha.gov/take-time-save-lives">https://www.msha.gov/take-time-save-lives</a>.
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In addition, over the years, MSHA has developed a wide variety of
mine safety and health materials and has made them available on the
Agency's website (<a href="http://www.msha.gov">http://www.msha.gov</a>) and mobile app.\5\ These
materials are intended to assist trainers and mine operators in
promoting a safe and healthy environment, and among other topics, they
cover safety topics related to mobile equipment at surface mines. For
example, MSHA issued Powered Haulage Equipment Guidance in 2021
intended to help prevent accidents associated with working with, on, or
[[Page 87905]]
near powered haulage equipment.\6\ MSHA also launched an enforcement
initiative focused on powered haulage by issuing guidance on preventing
accidents and meeting with mine personnel to emphasize best safety
practices and training.
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\5\ MSHA's Miner Safety & Health App gives miners and mine
operators instant access to information that can help keep them safe
and healthy on the job. The app provides important safety alerts,
safety and health best practices that apply to their daily work,
information on their rights and responsibilities, and the ability to
contact MSHA with a question or to report an accident or hazard. The
app is available for free on Android and iPhone mobile devices and
can also be found at the respective app stores by searching for
``Miner Safety & Health.'' More information can be found on MSHA's
website at <a href="https://www.msha.gov/miner-safety-health-application">https://www.msha.gov/miner-safety-health-application</a>.
\6\ More information on MSHA's Powered Haulage Safety Initiative
can be found on MSHA's website at <a href="https://www.msha.gov/safety-and-health/safety-and-health-initiatives/powered-haulage-safety">https://www.msha.gov/safety-and-health/safety-and-health-initiatives/powered-haulage-safety</a>. MSHA's
guidance on mitigating and preventing powered haulage equipment
accidents, entitled ``Powered Haulage Equipment Safety Guidance,''
can be found on MSHA's website at <a href="https://www.msha.gov/sites/default/files/events/Powered%20Haulage%20Guidance.pdf">https://www.msha.gov/sites/default/files/events/Powered%20Haulage%20Guidance.pdf</a>.
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In April 2022, to complement the Agency's awareness initiatives,
the Agency implemented an Enhanced Enforcement Program to help improve
safety and health in the mining industry. As a part of MSHA's regular
inspections, this program focuses on task training and hazard training
for customer and contract truck drivers and task training for managers
and supervisors who perform mining tasks. For example, MSHA inspectors
will observe truck drivers and focus on enforcing existing standards
necessary to ensure that they perform tasks in a safe manner at mines.
C. Rulemaking History
As part of its overall effort to improve safety in the use of
mining equipment, MSHA published a request for information (RFI) on
June 26, 2018, entitled Safety Improvement Technologies for Mobile
Equipment at Surface Mines, and for Belt Conveyors at Surface and
Underground Mines (83 FR 29716). The RFI focused on technologies for
reducing accidents involving mobile equipment at surface mines and
surface areas of underground mines and belt conveyors at surface and
underground mines. The RFI requested information on what types of
engineering controls are available, how to implement engineering
controls, and how these controls could be used on mobile equipment and
belt conveyors to reduce accidents, fatalities, and injuries. MSHA
sought information on technologies, controls, and training that provide
additional protection from accidents related to mobile equipment
operation and working near or around belt conveyors.
To encourage additional public participation, the Agency held six
stakeholder meetings and one webinar in August and September 2018. The
meetings were held in Birmingham, Alabama; Dallas, Texas; Reno, Nevada;
Beckley, West Virginia; Albany, New York; and Arlington, Virginia.
Commenters responding to the RFI supported MSHA's focused efforts
to improve miner safety related to the operation of mobile equipment at
surface mines and in surface areas of underground mines. Some
emphasized the use of technologies to achieve this goal, such as the
use of new technologies and the use of current technologies (e.g.,
collision avoidance systems, collision warning systems, and seat belt
warning signals used in automobiles). Others supported the importance
of non-technological interventions, such as safety programs, to bring
about behavioral and cultural changes. Commenters differed in how
technological and non-technological interventions should be
implemented. Some commenters noted that the application of engineering
controls or technologies needs further review by MSHA and the National
Institute for Occupational Safety and Health (NIOSH) before any
regulatory changes are made. Other commenters suggested that the use of
new technologies has the best outcomes when mine operators and their
employees partner with other stakeholders such as NIOSH and equipment
manufacturers.
In addition, one commenter underscored the importance of safety
culture at a workplace. This commenter observed that mine operators who
develop and implement safety programs do so with the goal of preventing
injuries, fatalities, and the suffering these accidents cause miners,
their families, and their communities. The commenter noted that for
these mine operators, preventing harm to their miners is more than just
compliance with safety requirements; it reflects a culture of safety.
According to the commenter, this culture of safety derives from a
commitment to a systematic, effective, and comprehensive approach to
safety management at mines with the full participation of miners.
On September 9, 2021, MSHA published the proposed rule, Safety
Program for Surface Mobile Equipment (86 FR 50496). In addition to
information gathered from stakeholders who commented on the RFI, MSHA
based the proposed rule on best practices and guidance on workplace
safety programs.\7\ The comment period closed on November 8, 2021. On
December 20, 2021, in response to a public request, MSHA reopened the
rulemaking record for additional comments, and the Agency held a
virtual public hearing on the proposed rule on January 11, 2022 (86 FR
71860). The comment period closed on February 11, 2022.
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\7\ As part of the proposed rule, MSHA reviewed safety program
guidance materials from several types of organizations: (1)
consensus standards organizations (e.g., American Society of Safety
Professionals (ASSP), Occupational Health and Safety Management
Systems, ANSI/ASSP Z10-2012 (R2017); and the International Standards
Organization (ISO), Occupational Health and Safety Management
Systems--Requirements With Guidance for Use (ISO 45001:2018)); (2)
industry organizations (e.g., the National Mining Association's
CORESafety and Health Management System); and (3) government
agencies (e.g., the Department of Transportation, 49 CFR part 270).
The Department of Labor's Occupational Safety and Health
Administration (OSHA) also has developed recommended practices for
developing safety and health programs (<a href="https://www.osha.gov/shpguidelines/">https://www.osha.gov/shpguidelines/</a>). 86 FR 50498.
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MSHA's proposed rule addresses hazards related to surface mobile
equipment (except belt conveyors) used at surface mines and surface
areas of underground mines. Surface mobile equipment in the proposed
rule refers to wheeled, skid-mounted, track-mounted, or rail mounted
equipment capable of moving or being moved and any powered equipment
that transports people, equipment, or materials, excluding belt
conveyors, at surface mines and surface areas of underground mines.
Examples of this equipment include bulldozers, front-end loaders, skid
steers, excavators, draglines, graders, and haul trucks.
The proposed rule would require a written safety program for
operators employing six or more miners. The proposed written safety
program would list actions that mine operators would take to identify
hazards and reduce risks, develop equipment maintenance and repair
schedules, evaluate technologies, and train miners. The proposal would
provide mine operators with the flexibility to tailor the written
safety program to meet the needs of their operations and unique mining
conditions. Under the proposal, mine operators would be required to
evaluate and update the written safety program whenever necessary to
appropriately manage safety risks associated with their surface mobile
equipment.
MSHA received comments on the proposed rule from miners, safety
associations, mining associations, mining companies, manufacturers,
labor unions, and trade associations. (Public comments and supporting
documentation submitted were posted on MSHA's website and at
<a href="http://www.regulations.gov">www.regulations.gov</a>, along with the transcript from the public
hearing.) Commenters supported MSHA's efforts to ensure the safety of
all miners from powered haulage accidents. After considering the
comments, for the reasons discussed further below, MSHA
[[Page 87906]]
is adopting the proposed rule with modifications. MSHA has addressed
comments more fully in the next section, Section II, Section-by-Section
Analysis, of this preamble.
II. Section-by-Section Analysis
A. Sections 56.23000, 57.23000, and 77.2100--Purpose and Scope
Final Sec. Sec. 56.23000, 57.23000, and 77.2100 address the
purpose and scope of the final rule. Like the proposal, final
Sec. Sec. 56.23000, 57.23000, and 77.2100 state that the purpose of
the safety program is to reduce the accidents, injuries, and fatalities
related to the operation of surface mobile equipment, promote and
support a positive safety culture, and improve miners' safety at the
mine. Unlike the proposal, all mine operators are required to develop,
implement, and update a written safety program for surface mobile
equipment used at surface mines and surface areas of underground mines.
The final rule is changed from the proposal to cover operators with
five or fewer miners. After reviewing comments and data, the Agency
determined that operators of these mines need to develop a written
safety program to address surface mobile equipment at their operations
to protect their miners. MSHA intends to provide compliance assistance
where necessary.
1. Mines Covered by the Proposal--Mines Employing 6 or More Miners
In the proposal, Sec. Sec. 56.23000, 57.23000, and 77.2100 would
require mine operators with six or more miners to develop a written
safety program. In the proposed rule, MSHA also requested comment on
potentially requiring mines with five or fewer miners to develop a
written safety program. Safety Program: Surface Mobile Equipment, 86 FR
50,496, 50,500 (Sept. 9, 2021).
Commenters stated that all mine operators, regardless of the number
of miners employed, should be required to have a written safety program
and that miners at small operations need the same protections as miners
at larger operations. Several commenters stated that, regardless of
whether a facility employs one miner or one hundred miners, each
individual should be protected equally. One commenter stated that even
though data may indicate that serious accidents occur less frequently
at smaller operations, all miners and operations should still be
covered because the hazards involving surface mobile equipment pose a
risk for all miners. Several commenters stated that applying the rule
to all mines, regardless of the number of miners employed, will
minimize confusion, enhance safety practices, and increase consistency
across mines and throughout MSHA enforcement. One commenter stated that
the Mine Act does not set a threshold for how many miners must be
employed at a mine in order for it to be subject to a standard, and as
such, operators with five or fewer miners should not be excluded.
Several commenters supported MSHA's goal to minimize the burden on
small operations, but they did not believe that a mobile equipment
safety program will present an undue economic burden on operators with
five or fewer miners if MSHA provides clear guidance regarding what is
expected.
In response to comments, MSHA reviewed recent data from 2011 to
2020 on fatalities and injuries and accident investigation reports.
Based on that review, MSHA determined that the fatality rate for mines
with five or fewer miners is greater than that for larger mines. MSHA
found that from 2011 to 2020, the average fatality rates (or fatal
incidence rate) per 200,000 working hours were as follows: 0.0227 at
mines with 5 or fewer employees; 0.0167 at mines with 6 to 20
employees; 0.0103 at mines with 21 to 100 employees, and 0.0079 at
mines with more than 100 employees. See Table II-1.
Table II-1--Fatality Rates (or Fatal Incidence Rates), 2011-2020
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Mine size (based on all mine employees)
----------------------------------------------------
5 or fewer 6 to 20 21 to 100 101 or more
employees employees employees employees
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Fatalities at Surface Mines and Surface Areas of 25 65 47 44
Underground Mines (10-year total) \1\.....................
Hours worked at Surface Mines and Surface Areas of 220.5 776.9 912.6 1,110.6
Underground Mines (10-year total in millions) \2\.........
Fatal Incidence Rate (or Fatality Rate) per 200,000 Working 0.0227 0.0167 0.0103 0.0079
hours \3\.................................................
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\1\ Includes fatalities of miners (including contract miners and office workers) that occurred at surface mines
and at surface areas of underground mines.
\2\ Includes hours worked by miners (excluding contract miners) at surface mines and at surface areas of
underground mines. Does not include hours worked at facilities.
\3\ (Number of Fatalities x 200,000)/Hours Worked = Fatality Rate.
Note: Table excludes fatalities and work hours reported at facilities.
Based on the analysis and comments, the final rule requires a
written safety program for all mines. MSHA agrees with comments that
the Mine Act requires that miners' safety and health must be protected
no matter how many employees work at the mine. The Agency concludes
that applying the final rule to all mines will provide improved safety
for all miners.
MSHA will provide compliance assistance through the Agency's EFSMS
staff to all mines. MSHA will also encourage state grantees to focus on
providing training to address hazards and risks involving surface
mobile equipment in small mining operations. In addition, MSHA will
provide assistance to small mine operators in the form of additional
training materials, education, technical assistance, and work with
mining industry stakeholders as it develops materials and templates to
assist mine operators. Also, MSHA is implementing a 6-month delayed
compliance date from the effective date to provide mine operators,
especially small mine operators, sufficient time to identify and
acquire, if necessary, the needed resources to comply with this final
rule.
2. Belt Conveyors
The proposed rule did not include belt conveyors in the definition
of surface mobile equipment. MSHA received comments on whether to
include or exclude belt conveyors from the definition of surface mobile
equipment and whether belt conveyors should be covered under this rule.
Some commenters stated that belt conveyors should be included in the
scope of the rule and that a written safety program
[[Page 87907]]
should be developed and implemented to include them. One commenter
reviewed accident and injury data and stated that many fatalities are
associated with belt conveyers. Several commenters stated that
technologies and controls exist that can help prevent accidents, for
example: devices that can sense a miner's presence in hazardous
locations, properly installed machine guards, and properly locked-out
and tagged-out machines undergoing maintenance. According to these
commenters, MSHA should require a written safety program for belt
conveyors just as it is requiring one for mobile and powered haulage
equipment.
Several commenters agreed with MSHA's exclusion of belt conveyors
from the proposed rule. The commenters stated that belt conveyors
should be addressed separately from powered haulage vehicles because
they are very different types of equipment and keeping them separate
would increase clarity.
Based on the comments, the final rule, like the proposal, excludes
belt conveyors from the definition of surface mobile equipment. Belt
conveyors present different safety hazards from those associated with
surface mobile equipment. Belt conveyors range from a single belt to a
series of belts spanning miles. All conveyor systems have inherent
dangers while in motion. Belt conveyor accidents predominantly involve
entanglements in equipment whereas accidents related to other mobile
equipment involve striking, colliding, falling, or overtravel while the
equipment is in operation. MSHA continues to believe that the safety
issues surrounding the operation of belt conveyors can be better
addressed through existing standards (e.g., Sec. Sec. 56/57.14107 and
56/57.14112 for moving machine parts and construction and maintenance
of guards), best practices, and training. As MSHA does with many other
types of mining equipment, the Agency provides training resources to
help operators and miners that include best practices for working
safely around conveyor systems. These best practices are available on
the Agency's website at <a href="http://www.msha.gov">http://www.msha.gov</a>.
3. Underground Areas of Underground Mines
MSHA proposed to require a written safety program for surface
mobile equipment at surface mines and surface areas of underground
mines. Several commenters stated that all areas of underground mines--
meaning both surface and underground areas of underground mines--should
be included in the scope of the proposed rule. Commenters stated that
powered haulage accidents happen in underground areas of underground
mines, not just surface areas. This observation, a commenter pointed
out, is based on MSHA accident data. One commenter stated that
underground mining equipment should be expressly excluded from the
proposed rule even if the equipment is operated on surface areas.
Like the proposal, the final rule applies to surface mobile
equipment used at surface mines as well as surface areas of underground
mines. Surface mobile equipment being used in underground mines and
only brought to the surface for maintenance or repair, for example, is
not included in the scope of the final rule.
A large amount of surface mobile equipment operates at many surface
mines and surface areas of underground mines, which creates common
hazards such as striking, collision, and falling. Surface mobile
equipment tends to be complex and large in size (compared to mobile
equipment used at underground mines), which generates some unique
hazards, such as large blind spots for equipment operators. The final
rule applies only to surface mobile equipment.
As is the Agency's practice, MSHA will continue to work with
operators and miners in underground mines to deliver training and best
practice materials to prevent accidents involving mobile equipment in
underground areas and to provide safety protections for miners at these
mines.
B. Sections 56.23001, 57.23001, and 77.2101--Definitions
Final Sec. Sec. 56.23001, 57.23001, and 77.2101 continue to define
the terms responsible person and surface mobile equipment in the same
way as defined in the proposed rule.
MSHA proposed to define a responsible person as a person with
authority and responsibility to evaluate and update a written safety
program for surface mobile equipment. MSHA believes that designating a
person with authority and responsibility to evaluate and update the
safety program as necessary will help ensure the successful development
and maintenance of a safety program that addresses and reduces the
likelihood of surface mobile equipment hazards at a particular mine.
This individual should be able to communicate the operator's commitment
to safety and the importance of miners' involvement in the program to
prevent or mitigate hazards. The responsible person must communicate
the goals of the safety program to all miners. The responsible person
will need to have the experience and knowledge about mining conditions,
including surface mobile equipment, necessary to evaluate and update
the written safety program.
MSHA received comments on this definition. Commenters indicated a
preference for removing or redefining the term. Some commenters stated
that the definition is redundant and should be deleted, and that
operators are already required to designate a responsible person for
health and safety purposes. Several commenters discussed the
similarities between the responsibilities and liability burdens of the
mine operator, as compared to the proposed definition of a responsible
person. One commenter stated that the definition should be deleted as
it serves no purpose.
Other commenters brought up the feasibility of assigning the duties
to a single individual. For example, one commenter stated its view that
the proposed rule would require a person that has the knowledge to
identify hazards on every piece of mobile equipment, the authority to
make high-level financial decisions, and the responsibility for any
shortfalls in the program. Still other commenters questioned the
consequences of assigning the title of ``responsible person'' to a
single individual because that individual could become temporarily or
permanently unavailable. One commenter stated that MSHA should amend
this language to clearly allow for multiple persons to be designated as
a responsible person. In the commenter's view, there are many practical
reasons to have additional people in this position. For example, if one
designee is out sick, on vacation, or leaves the company, there would
still be a designated responsible person on-site.
In response to the comments, the final rule requires that each
operator designate at least one responsible person to evaluate and
update the written safety program. Under the final rule, the operator
can designate one person or multiple persons so long as the designated
persons have the authority and responsibility to evaluate and update
the written safety program.
In addition, the final rule, like the proposed rule, defines
surface mobile equipment as wheeled, skid-mounted, track-mounted, or
rail-mounted equipment capable of moving or being moved, and any
powered equipment that transports people, equipment, or materials,
excluding belt conveyors, at surface mines and surface areas of
underground mines. This definition is
[[Page 87908]]
adapted from the current definition in 30 CFR 56.2 and 57.2 for metal
and nonmetal mines: mobile equipment means ``wheeled, skid-mounted,
track-mounted, or rail-mounted equipment capable of moving or being
moved.''
MSHA received comments on the proposed definition of surface mobile
equipment. Several commenters requested that MSHA clarify the type of
equipment that would meet the proposed definition. One commenter stated
that equipment such as push carts, welding carts, cylinder carts, and
basic hand trucks would be subject to the proposed rule. The commenter
stated that the rationale to include this type of equipment under the
definition is unclear. Another commenter stated that certain skid-
mounted equipment such as light towers and substations could be covered
unintentionally. Another commenter stated that it is unclear whether
small boats, portable crushers, dredges, etc., are included.
Several commenters requested further clarification from MSHA on the
types of equipment to be included in the definition. Commenters
requested that MSHA provide a finite list of equipment that would be
included or exempted from the rule. One commenter suggested that MSHA
create a supplementary, clarifying guidance document.
After reviewing all the comments, MSHA concludes that the
definition in this final rule is sufficiently clear about what types of
surface mobile equipment are subject to a written safety program.
Surface mobile equipment excludes any manually powered tools, such as
wheelbarrows, hand carts, push carts, welding carts, cylinder carts,
basic hand trucks, or dollies for the purposes of this written safety
program. This definition is consistent with the currently enforced
definition in 30 CFR parts 56 and 57.
C. Sections 56.23002, 57.23002, and 77.2102--Written Safety Program
Final Sec. Sec. 56.23002(a), 57.23002(a), and 77.2102(a), like the
proposal, require each mine operator to develop and implement a written
safety program no later than 6 months after the effective date of the
final rule. Three issues raised by commenters are discussed below.
1. Independent Contractors
Commenters stated that the proposed rule is unclear as to whether
or not contractors are subject to the requirements. Some commenters
stated that the proposed rule is silent on whether it covers contractor
equipment and how such coverage would be implemented in a practical
sense, and one commenter said that this silence would lead to
enforcement actions against the mine and/or contractors for
inconsistencies in how they would comply with the proposed
requirements. Several commenters stated that MSHA should clarify how
contractor programs should be integrated with operators' on-site safety
programs.
Commenters requested that MSHA clarify that contractors are
considered operators, and thus would need to have their own written
safety program. Several commenters stated that the definition of
``operator'' in section 3(d) of the Mine Act includes ``any independent
contractor performing services or construction'' at a mine. 30 U.S.C.
802(d). Several commenters stated that MSHA's regulations at 30 CFR
part 45, which sets forth procedural requirements for independent
contractors working at mine sites, state that such requirements exist
``to facilitate implementation of MSHA's enforcement policy of holding
independent contractors responsible for violations committed by them
and their employees.''
Several commenters stated that it would be untenable to require
production operators to account for contractor equipment in their own
safety programs. According to the commenters, contractors often have
their own equipment and specialized knowledge, so that it would be
impractical to require the operator to be responsible for the
contractors' equipment.
MSHA's intent in the proposed rule was that an operator would mean
``any owner, lessee, or other person who operates, controls, or
supervises a coal or other mine or any independent contractor
performing services or construction at such mine'' as stated in section
3(d) of the Mine Act. To facilitate implementation of MSHA's
enforcement policy with respect to certain independent contractors,
MSHA published regulations in 30 CFR part 45 related to the
responsibility of independent contractors that met the requirements of
part 45.
Consistent with MSHA's part 45 regulations and the Agency's
longstanding policy regarding independent contractors, this final rule
requires operators, including contractors with a part 45 identification
number, to develop and implement a written safety program addressing
surface mobile equipment. MSHA has a long history and practice of
enforcing its standards and regulations against operators and
independent contractors and believes that the industry is familiar with
and understands this history and practice. Under this final rule, MSHA
will treat operators and part 45 independent contractors consistent
with the definition in the Mine Act and the Agency's longstanding
history and practice.
MSHA expects that a majority of the Part 45 independent contractors
will develop and implement their own written safety programs addressing
their surface mobile equipment and follow the site-specific
requirements, as necessary, in the operators' written safety programs.
In some situations, operators may choose to integrate the independent
contractors' written safety programs into their programs. No matter
what approach is used, MSHA expects that, in all cases, operators and
independent contractors will communicate and coordinate with each
other, as appropriate, to ensure that miners' safety and health is
protected.
Final Sec. Sec. 56.23002(b), 57.23002(b), and 77.2102(b), similar
to the proposal, require each mine operator, within 6 months after the
effective date of the final rule, to designate at least one responsible
person to evaluate and update the written safety program. As discussed
in the definition section, a responsible person is a person with
authority and responsibility to evaluate and update a written safety
program for surface mobile equipment.
2. Compliance Date
The final rule implements a 6-month delayed compliance date from
the effective date. Commenters provided varying suggestions on the
proposed effective date. Some commenters suggested that all mine
operators should have an additional 6 to 12 months without receiving
citations relating to this rule, for a total of up to 18 months delayed
effective date. Another commenter suggested a longer time period for
only those mines that meet the Small Business Administration's size
standards; therefore, a 6-month delay (as proposed) for larger entities
and up to an 18-month delay for smaller entities. Some commenters
agreed with MSHA's proposal that 6 months from the effective date of
the final rule is sufficient time for operators to develop a written
safety program.
The final rule includes a delayed compliance date to allow for
development and implementation of the written safety program for
surface mobile equipment. After considering comments and reviewing data
on accidents, injuries, and fatalities involving surface mobile
equipment, MSHA determined that 6 months is a reasonable timeframe for
the development and implementation of the safety program for all mines,
regardless
[[Page 87909]]
of size. MSHA believes that the 6-month time frame gives operators
sufficient time to develop a meaningful written safety program, with
input from miners and their representatives. MSHA has offered and will
continue to offer materials and information that operators can use in
developing and implementing a written safety program. MSHA will also
work with operators, miners, and their representatives as well as other
stakeholders in the mining industry (e.g., contractors) to develop
written safety program templates, as well as best practices and
guidance on the development, implementation, and evaluation of safety
programs.
3. Approval of the Written Safety Program
The proposed rule did not require MSHA approval of the operator's
written safety program. Commenters provided their views on whether MSHA
should require its approval of operators' written safety programs.
Several commenters stated that MSHA's approval of the written safety
program is necessary, and that not requiring MSHA approval would lead
to inconsistent enforcement by MSHA inspectors. One commenter stated
that approval by MSHA should be required because the written safety
programs that are developed without MSHA's oversight or approval would
be, in the commenter's view, based on the operator's convenience, not
the miners' health and safety. One commenter stated that MSHA approval
of the operator's program is needed before it is implemented to ensure
the adequacy of the individual, site-specific program and to ensure
that mine operators have the opportunity to be alerted to any possible
deficiencies in their program prior to MSHA approval. One commenter
stated that MSHA already approves a number of written programs and
plans submitted by mine operators, such as roof control plans, ground
control plans, and ventilation plans. The commenter further stated that
without MSHA oversight, mine operators will have generic programs that
will not be mine-specific or include meaningful participation from
miners and their representatives.
Other commenters supported MSHA's proposal that required no Agency
approval of written safety programs. One commenter stated that they
appreciate MSHA proposing to require a written safety program without
the Agency's approval, rather than with the Agency's approval. Another
commenter agreed that not requiring approval is a wise decision because
it would be burdensome for MSHA to approve tens of thousands of
programs.
After considering all comments, MSHA has determined that an
operator's written safety program will be appropriately reviewed by
MSHA during regular inspections. During the inspection, MSHA will
review the written safety program to determine if it reflects actions
that identify and address surface mobile equipment hazards at mine
sites and to verify whether input from miners and their representatives
was sought. This approach will also allow the Agency to ensure that the
written safety program addresses hazards identified by mine operators
and miners. MSHA will also determine whether the written safety program
is adequately evaluated and updated. In light of the Agency's
inspection presence, MSHA has determined that Agency approval of the
written safety program is not needed.
D. Sections 56.23003, 57.23003, and 77.2103--Requirements for Written
Safety Program
Like the proposal, final Sec. Sec. 56.23003(a), 57.23003(a), and
77.2103(a) list general, performance-based requirements for the written
safety program. Under this final rule, an operator's safety program
must include four types of actions the operators will take to reduce
accidents, injuries, and fatalities and to improve miners' safety. As
discussed earlier, this and other provisions in the final rule, unlike
the proposed rule, clarify the term ``operator'' or ``operators,'' to
be consistent with section 3(d) of the Mine Act.
Several commenters stated that the written safety program
requirement is redundant with provisions already required in the CFR
and does not provide a new or strategic focus that advances mobile
equipment safety. These commenters stated that there are existing
regulations in part 56 that require mine operators to identify and
correct hazards in all work areas and for all equipment, including
surface mobile equipment, such as Sec. 56.18002 on the examination of
working places and Sec. 56.14100 on safety defects; examination; and
correction of records. One commenter stated that the requirements of
this section are redundant with the training requirements already set
forth in part 46, and another commenter stated these requirements are
redundant with training requirements already set forth in part 48. One
commenter requested clarification on the specifics of the documentation
requirement for the review and collection of this information. For
example, what type of information would meet the requirement, how
should it be maintained, for how long would it need to be kept, and how
would MSHA evaluate it for compliance? Another commenter also requested
additional guidance on the types of safety hazards that should be
included. One commenter asked how this requirement could be enforced.
Finally, one commenter fully supported the inclusion of this
requirement.
After reviewing comments and relevant information, MSHA believes
that structuring the final rule to include a performance-based
requirement to identify and analyze hazards is more appropriate than a
prescriptive requirement. The performance-based approach in the final
rule allows operators the flexibility to devise and tailor a safety
program that is appropriate for their specific and unique mining
conditions and operations. These actions could include review of
accident data and information on near misses and any operational or
maintenance accidents at their mines. For example, under 30 CFR part
50, mine operators are already required to submit a report of each
accident, injury, and illness to MSHA within 10 working days after an
accident or occupational injury occurs or an occupational illness is
diagnosed. Based on such information and data, mine operators will be
able to develop a program that more specifically addresses conditions
at their mines; mining equipment, work locations, and tasks at their
mine site; and measures to eliminate, prevent, or mitigate identified
hazards. Regarding the comment asking how this information should be
maintained and for how long it would need to be kept, further
discussion of records and inspection requirements is located elsewhere
in this preamble under Sec. Sec. 56.23004, 57.23004, and 77.2104.
1. Sections 56.23003(a)(1), 57.23003(a)(1), and 77.2103(a)(1)
Final Sec. Sec. 56.23003(a)(1), 57.23003(a)(1), and 77.2103(a)(1),
like the proposal, require that the written safety program include
actions the operator will take to identify and analyze hazards and
reduce the resulting risks related to the movement and operation of
surface mobile equipment. Operators are required to identify and
analyze hazards relevant to surface mobile equipment and to take
actions to reduce the site-specific risks so that their written safety
programs can be tailored to their unique mining operations and
conditions. Actions that mine operators may take include
[[Page 87910]]
enhanced administrative controls such as increased use of signage and
procedural changes to tasks that remediate identified hazards. Other
actions may include visibility studies to identify inherent blind spot
areas around mobile equipment and use of visibility enhancing devices
such as flags and additional mirrors to minimize these areas. Mine
operators may choose to change traffic patterns, implement dispatchers
for certain areas of a mine, and limit or prohibit small vehicular or
foot traffic in identified high risk areas.
2. Sections 56.23003(a)(2), 57.23003(a)(2), and 77.2103(a)(2)
Final Sec. Sec. 56.23003(a)(2), 57.23003(a)(2), and 77.2103(a)(2),
like the proposal, require that the written safety program include
actions the operator will take to develop and maintain procedures and
schedules for routine maintenance and non-routine repairs for surface
mobile equipment.
Commenters stated that this requirement is redundant when compared
to existing part 56 and part 57 regulations. Likewise, another
commenter stated that Sec. 77.404 already addresses the requirements
that mobile and stationary machinery and equipment be maintained in
safe operating conditions. Another commenter stated that Sec. Sec.
77.1600-77.1607 includes extensive rules that address loading and
haulage, including traffic controls, transportation of persons, berms,
inspection and maintenance, and operation.
Another commenter expressed a concern about the ambiguity of the
requirement, stating that inspectors may be subjective and issue
violations for failure to follow manufacturers' recommendations.
Several commenters stated that operators should have additional
flexibility when it comes to manufacturers' recommendations. In these
commenters' view, manufacturers' recommendations for maintenance and
repairs are often not reflective of how the equipment is used at a
given operation. A commenter noted that recommendations from the
manufacturer are a valuable resource for equipment operators and
maintenance personnel, but often are designed to avoid legal challenges
rather than maximize safe operation. One commenter requested that this
requirement for maintenance and repairs apply to the safe operation of
the equipment, rather than all maintenance and repairs in general.
Another commenter stated that MSHA should make clear that this section
does not require any new maintenance or repair procedures, but requires
only that the facility's procedures be reflected (or referenced) in a
written program.
Under the final rule, MSHA does not intend for operators to develop
new maintenance and repair procedures, unless operators do not have
these in place already. Operators may decide to modify existing
maintenance and repair procedures based upon newly conducted risk
assessment findings. The procedures and schedules for maintenance and
repairs for surface mobile equipment developed for the written safety
program can reflect or reference the operator's existing procedures and
schedules.
3. Sections 56.23003(a)(3), 57.23003(a)(3), and 77.2103(a)(3)
Final Sec. Sec. 56.23003(a)(3), 57.23003(a)(3), and 77.2103(a)(3),
like the proposed rule, require that the written safety program include
actions the mine operator will take to identify currently available and
newly emerging feasible technologies that can enhance safety and
evaluate whether to adopt them. Examples of these technologies could
include seat belt interlocks that affect equipment operation when a
seat belt is not fastened; seatbelt notification systems that alert
management when the seatbelts are not worn; collision warning systems
and collision avoidance systems that may prevent accidents by alerting
equipment operators to hazards located in blind areas; technologies
that use Global Positioning Systems to provide equipment operators with
information regarding their location when pushing and dumping material;
as well as cameras, curvilinear mirrors, and other vision enhancements
(86 FR 50500).
Commenters stated that this requirement is ambiguous, burdensome,
and redundant, and should be stricken from the rule. Several commenters
stated that: the proposal does not appear to require mine operators to
implement newly emerging technologies, and, instead, it appears to
require evaluations. They further stated that most mine operators
likely already evaluate newly emerging technologies to save money and
improve safety. Some commenters were concerned that certain terminology
in the proposal is subjective. For example, commenters stated that MSHA
needs to elaborate on what types of actions operators should take to
``evaluate'' how ``newly emerging feasible technologies'' would
``enhance'' safety. Other commenters stated that there are many areas
of concern related to testing and implementing new technologies into
existing equipment, potentially creating safety hazards. Another
commenter stated that new technologies often have problems when they
are initially developed. For example, the commenter noted that when
airbags were first released there were issues causing injuries, and
thus they had to be redesigned. Another commenter stated that MSHA
should make clear that the rule does not require the adoption of any
particular technology but is strictly a requirement that the operator
have a procedure to identify and evaluate potentially useful new
technology.
After considering all comments, the final rule is unchanged from
the proposal, and it requires that the operator identify and evaluate
currently available and newly emerging feasible technologies that can
enhance safety at the mines. MSHA's intent is that operators consider
feasible technologies that are capable of being used successfully at
that mine. MSHA recognizes the safety benefits of new and emerging
technologies related to surface mobile equipment. MSHA believes that
operators can typically determine what types of new or existing
technologies that they need to enhance safety at their operations. MSHA
will offer educational assistance on currently available and newly
emerging technologies in a number of ways, including through EFSMS,
industry stakeholders, quarterly stakeholder calls and stakeholder
meetings, safety and health training workshops (e.g., Training
Resources Applied to Mining (TRAM) and Spring Thaw Training Workshops),
guidance documents, and Agency website and mobile app resources. Also,
as part of the Agency's compliance assistance efforts, MSHA will work
with operators and provide information and technical assistance that
will help them identify control options and the use of new technologies
to prevent accidents and injuries. MSHA will also encourage its state
grantees to focus on providing training to address feasible
technologies involving surface mobile equipment in mining operations.
4. Sections 56.23003(a)(4), 57.23003(a)(4), and 77.2103(a)(4)
Final Sec. Sec. 56.23003(a)(4), 57.23003(a)(4), and 77.2103(a)(4),
like the proposal, require that the written safety program include
actions the operator will take to train miners and other persons at the
mine necessary to perform work to identify and address or avoid hazards
related to surface mobile equipment.
Several commenters stated that they already comply with part 46
requirements and that this section is another example of regulatory
[[Page 87911]]
redundancy and does not provide a new or strategic focus to advance
mobile equipment safety. One commenter suggested that MSHA make clear
that the mobile equipment program can refer to other sections of
regulations relating to mobile equipment and can incorporate these by
reference, for example Sec. Sec. 46.5(b)(2), 46.6(b)(2), and 46.8(c).
Another commenter requested that the Agency disambiguate the language,
``other persons at the mine necessary to perform work,'' by providing
more precise language. Otherwise, for training purposes, the language
effectively would expand the definition of ``miner'' to all employees.
After reviewing the comments, MSHA clarifies that mine operators
will only need to integrate existing training provisions, as
applicable, into the written safety program. The Agency previously
described the intended audience for site-specific hazard awareness
training in the final rule for Training and Retraining of Miners
Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone,
Surface Clay, Colloidal Phosphate, or Surface Limestone Mines (64 FR
53080, September 30, 1999). In that final rule, MSHA required that ``.
. . hazard awareness training be appropriate for the individual who is
receiving it and that the breadth and depth of training vary depending
on the skills, background, and job duties of the recipient. For
example, it may be appropriate to provide hazard awareness training to
customer truck drivers by handing out a card to the drivers alerting
them to the mine hazards or directing them away from certain areas of
the mine site. More extensive hazard awareness training might be needed
for an equipment manufacturer's representative who comes onto mine
property to service or inspect a piece of mining equipment. Although
this individual may not be on mine property for an extended period, the
person's exposure to mine hazards may warrant more training.
Appropriate hazard awareness training would typically be more
comprehensive for contractor employees who fit the definition of
`miner' because they are engaged in mining operations. These employees
receive comprehensive training but also need orientation to the mine
site and information on the mining operations and mine hazards.'' (64
FR 53128) Similarly, under this final rule, the written safety program
must include the actions that the mine operator will take to train
miners and other persons at the mine necessary to perform work to
identify and address or avoid hazards related to surface mobile
equipment.
Under the final rule, mine operators will need to integrate their
existing training procedures for miners and other persons at the mine
necessary to perform work into their written safety program to address
and avoid hazards related to surface mobile equipment.
5. Sections 56.23003(b), 57.23003(b), and 77.2103(b)
Final Sec. Sec. 56.23003(b), 57.23003(b), and 77.2103(b), similar
to the proposal, require the responsible person to evaluate and update
the written safety program for the mine at least annually, or as mining
conditions or practices change that may adversely affect the health and
safety of miners or other persons, as accidents or injuries occur, or
as surface mobile equipment changes or modifications are made. The
final rule is clarified in two ways. First, the written program must be
evaluated and updated ``at least'' annually. This clarification
indicates that an annual evaluation and update is the minimum, and more
frequent evaluations and updates of the written safety program must be
done, if necessary. Second, the final rule specifies that the
evaluation and update must be done when changes in the mining
conditions or practices ``may adversely affect the health and safety of
miners or other persons.'' MSHA acknowledges that not all changes to
mining conditions or practices warrant updates to the written safety
program. This is similar to MSHA's existing requirements in Sec. Sec.
56/57.18002 that require for each working place in metal and nonmetal
(MNM) mines an examination to be conducted for conditions that may
adversely affect safety or health.
One commenter stated that requiring the responsible person to
evaluate and update the written safety program is redundant and already
covered by part 56 requirements. Other commenters recommended that the
proposed language regarding ``surface mobile equipment changes or
modifications'' be removed. The commenters believe that any significant
changes in equipment are covered under the provision of ``mining
practices'' changing. In their view, this deletion would capture the
large-scale changes the Agency intended to cover without including
small, insignificant changes. These same commenters also recommended
removing the term ``injuries'' from the proposal because most powered
haulage injuries cannot meaningfully be addressed in a safety program.
The commenters stated that, for example, an equipment operator who
slams a finger in the door of a pickup truck or pulls a muscle climbing
on or off a loader has sustained a powered haulage injury, but they are
not the types of injuries that warrant re-evaluation of the program.
The commenters stated that ``accidents,'' however, should be retained
and that yearly is a reasonable timeframe to reevaluate the program.
Other commenters suggested that MSHA revise the requirement to read:
``evaluate and update the written safety program at least annually or
whenever necessary to manage safety risks associated with their surface
mobile equipment appropriately.''
Except the clarifications described earlier, this requirement is
the same as the proposal. As explained in the previous section, MSHA
believes that given the type of authority and responsibility, it is a
responsible person who must evaluate and update the written safety
program. In addition, as stated in the proposal, best practices shown
by NIOSH, OSHA, and other safety standards organizations include
ongoing evaluations of workplace activities and processes to address
safety proactively and to find and fix hazards before injuries and
fatalities happen. Moreover, in response to some commenters
recommending that the term injuries be removed from the requirements,
MSHA believes that the term is still needed because injuries are an
indicator of hazards at mines that could result in further injuries and
fatalities. The final rule also clarifies that the written safety
program must be evaluated and updated when mining conditions and
practices change that may adversely affect the health and safety of
miners.
6. Sections 56.23003(c), 57.23003(c), and 77.2103(c)
Final Sec. Sec. 56.23003(c), 57.23003(c), and 77.2103(c) is a
provision that requires operators to consult with miners and their
representatives in developing and updating the safety program. These
requirements are consistent with existing obligations to consult with
miners and representatives and MSHA's long-standing recognition that
such consultation is vital for ensuring the efficacy of safety
programs. Under existing requirements, operators already must (in many
cases) provide miners and miners' representatives the opportunity to
comment on or otherwise participate in these existing processes. See,
e.g., 30 CFR 46.3(g), 48.23(d) and (j)(1), and 56/57.18002. As these
existing processes are expected to be referenced in developing and
updating the safety program, miners and their representatives similarly
should be
[[Page 87912]]
consulted in developing and updating the program. In drafting the
proposal, MSHA intended that operators would seek input from miners and
their representatives in the development and updating of a meaningful
safety program, given their existing involvement with most of the
component parts of the program. The proposal also provided that the
responsible person ``should be able to communicate the operator's
commitment to safety and the importance of miners' involvement in the
program to prevent or mitigate hazards.'' 86 FR 50500. In addition,
commenters requested that miners and their representatives participate
in the development of the written safety program. MSHA includes this
provision in the final rule to recognize the comments and to be
consistent with the Agency's intent in the proposal and with the Mine
Act. In drafting the proposal, consistent with the Agency's long-
standing practice and section 2(e) of the Mine Act, MSHA intended that
miners would be involved in the development and updating of the
program, although it was not discussed in the preamble.
The Mine Act provides miners and their representatives a right to
participate in various safety and health activities. Some examples are
as follows. Section 2(e) provides that ``the operators of [coal or
other] mines with the assistance of the miners have the primary
responsibility to prevent the existence of [unsafe and unhealthy]
conditions and practices in such mines.'' Section 101(c) provides that
the representative of miners may petition the Secretary (of Labor) to
``modify the application of any mandatory safety standard to a coal or
other mine if the Secretary determines that an alternative method of
achieving the result of such standard exists which will at all times
guarantee no less than the same measure of protection afforded the
miners of such mine by such standard . . .'' Section 103(f) provides
that miners' representatives ``be given an opportunity to accompany the
Secretary or authorized representative during the physical inspection
of any coal or other mine . . .'' Section 103(g)(1) provides a
representative of miners or a miner in case there is no representative
the ``right to obtain an immediate inspection by giving notice to the
Secretary or authorized representative'' that a violation of the Mine
Act or its standards, or an imminent danger exists. Section 105(c)
provides miners and their representatives the right to file a
discrimination complaint with MSHA if they believe they have been
discharged, discriminated against, or interfered with for complaining
of ``an alleged danger or safety or health violation in a coal or other
mine''. Further, as stated by the Senate Committee on Human Resources
in keeping with a purpose of the Mine Act: ``If our national mine
safety and health program is to be truly effective, miners will have to
play an active part in the enforcement of the Act.'' S. Rep. No. 95-
181, 95th Cong., 1st Sess. at 35 (1977).
Based on MSHA's experience and past practice, and consistent with
the statutory intent of the Mine Act, miners and their representatives
are involved in many aspects of MSHA's enforcement program and
standards. MSHA is persuaded by commenters who stated that for safety
programs to be successful, there must be active and meaningful
participation from miners. The final rule makes explicit that miners
provide input in developing and updating the written safety program.
E. Sections 56.23004, 57.23004, and 77.2104--Record and Inspection
Final Sec. Sec. 56.23004, 57.23004, and 77.2104 is clarified from
the proposed provision. Like the proposal, the final rule requires that
the operator make available a copy of the written safety program for
inspection by authorized representatives of the Secretary, miners, and
their representatives. In response to comments and consistent with the
Mine Act that the operator, with the assistance of miners, is primarily
responsible for safety and health, the final rule clarifies that miners
and their representatives will receive, upon request, a copy of the
written safety program at no cost.
Several commenters requested that MSHA provide further clarity on
the acceptable formats for delivery of the written safety program. One
commenter stated that the proposed rule needs to clarify that the
written safety program is to be provided at no cost to miners and their
representatives. Another commenter stated that this section should
indicate that the written program can be maintained and provided
electronically.
The final rule allows operators the flexibility to create the
written safety program in any electronic or hard copy format, as long
as the written safety program includes the information required by the
final rule and can be made available for inspection by the Secretary,
miners, and their representatives. Consistent with the Agency's
longstanding policy, an operator must provide notice to miners by
providing an electronic or hard copy of the written safety program to
miners and their representatives, at no cost, upon request.
III. Executive Order 12866 (Regulatory Planning and Review), Executive
Order 14094 (Modernizing Regulatory Review), and Executive Order 13563
(Improving Regulation and Regulatory Review)
Under Executive Order (E.O.) 12866 (as amended by E.O. 14094), the
Office of Management and Budget (OMB)'s Office of Information and
Regulatory Affairs (OIRA) determines whether a regulatory action is
significant and, therefore, subject to the requirements of the E.O. and
review by OMB. 58 FR 51735, 51741 (1993). As amended by E.O. 14094,
section 3(f) of E.O. 12866 defines a ``significant regulatory action''
as a regulatory action that is likely to result in a rule that may: (1)
have an annual effect on the economy of $200 million or more; or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or state, local, territorial, or tribal governments
or communities; (2) create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; (3)
materially alter the budgetary impact of entitlements, grants, user
fees or loan programs or the rights and obligations of recipients
thereof; or (4) raise legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in the E.O. OIRA has determined that this rule is
significant under E.O. 12866, and accordingly it has been reviewed by
OMB.
E.O. 13563 directs agencies to propose or adopt a regulation only
upon a reasoned determination that its benefits justify its costs; the
regulation is tailored to impose the least burden on society,
consistent with achieving the regulatory objectives; and in choosing
among alternative regulatory approaches, the agency has selected those
approaches that maximize net benefits. 76 FR 3821 (2011). E.O. 13563
recognizes that some benefits are difficult to quantify and provides
that, where appropriate and permitted by law, agencies may consider and
discuss qualitative values that are difficult or impossible to
quantify, including equity, human dignity, fairness, and distributive
impacts.
MSHA presents the costs and benefits associated with the final
rule. MSHA estimated the costs associated with the final rule's
requirements by adding the estimated costs of the following. First, the
estimated costs include developing
[[Page 87913]]
the written safety program document, including the actions the
operators will take to follow better safety procedures and practices,
by identifying and analyzing hazards, evaluating currently available
and emerging technologies, developing and maintaining maintenance and
repair schedules and procedures, and training miners and others to
identify and address hazards, and including miners in developing and
updating the program. Operators must also provide copies of the written
safety program to miners and their representatives upon request. MSHA
anticipates that the listing of actions operators will take will
enhance existing compliance and improve safety regarding several of the
existing requirements (such as training, maintenance and repair,
workplace exams) that the program must describe. Second, the estimated
costs include updating the written safety program at least annually and
under certain circumstances, such as when new equipment is brought to
the mine or when accidents or changes in mining conditions or practices
occur that may adversely affect the safety and health of miners, and
providing copies of the written safety program to miners and their
representatives upon request. The first component is a one-time,
initial compliance costs in the first year, whereas the second
component represents the recurring compliance costs for subsequent
years.
This section provides a summary of MSHA's cost and benefit
estimates of the final rule. This final rule is estimated to have a 10-
year total net benefit of $411 million at a 3 percent discount rate,
based on estimated 10-year total benefits of $522 million and estimated
10-year total costs of $111 million. At the 3 percent discount rate,
the estimated annualized net benefit is $48.2 million (annualized
benefits of $61.3 million and annualized costs of $13.0 million).
Supporting materials and data that provide additional details on the
methodology used to estimate the costs, benefits, and other required
analyses of this rule are included in the standalone Final Regulatory
Impact Analysis (FRIA), which has been placed in the rule docket (RIN
1219-AB91, Docket ID No. MSHA-2018-0016) at <a href="https://www.regulations.gov">https://www.regulations.gov</a>
and is posted on MSHA's website at <a href="https://www.msha.gov">https://www.msha.gov</a>.
A. Mining Industry Profile
A total of 12,434 mines in the U.S. reported their working hours in
2021. Over 301,000 workers worked at those mines. Table III-1 shows
which types of mines the miners and other workers worked.
Table III-1--Mines and Employment by Surface or Underground Location in 2021
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total mine Total
Commodity Location Mines Miners workers Contract contract Total
\1\ \2\ miners workers \2\ workers \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
MNM............................................ Surface Including Facilities..... 11,236 128,156 149,846 60,120 ........... ...........
Underground...................... 235 18,223 20,712 7,047 ........... ...........
---------------------------------------------------------------------
Total......................... 11,471 146,379 170,558 67,167 69,433 239,991
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coal........................................... Surface Including Facilities..... 750 18,294 19,200 11,887 ........... ...........
Underground...................... 213 21,323 21,916 7,664 ........... ...........
---------------------------------------------------------------------
Total......................... 963 39,617 41,116 19,551 20,288 61,404
--------------------------------------------------------------------------------------------------------------------------------------------------------
All Mines...................................... Surface Including Facilities..... 11,986 146,450 169,046 72,007 ........... ...........
Underground...................... 448 39,546 42,628 14,711 ........... ...........
---------------------------------------------------------------------
Total......................... 12,434 185,996 211,674 86,718 89,721 301,395
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source: MSHA MSIS Data (reported on MSHA Form 7000-2), Accessed on April 7, 2022.
Notes: All Miners and workers are calculated using employers' headcount reports; some miners and workers may be counted more than once, as they work at
more than one mine.
\1\ Of the 12,434 mines, 40 did not have any employment in surface areas; they were thus excluded from the analysis.
\2\ Total mine workers and total contract workers include both miners and office/administrative workers.
\3\ Total workers include total mine workers and total contract workers.
This final rule applies to all operators of surface mines and
underground mines with surface areas, including independent contractors
working at those mines. As shown, there were 11,986 surface mines and
448 underground mines. Most underground mines have surface areas where
miners work. Of all the mines, about 92 percent were metal and nonmetal
mines and the rest were coal mines.
B. Costs
Under the final rule, operators are required to develop, implement,
and update at least annually and when necessary, a written safety
program for surface mobile equipment used at their mines. As defined in
this rule, surface mobile equipment refers to wheeled, skid-mounted,
track-mounted, or rail-mounted equipment capable of moving or being
moved, and any powered equipment that transports people, equipment, or
materials, excluding belt conveyors, at surface mines and surface work
areas of underground mines.
The required written safety program for surface mobile equipment
must include the actions that operators will take to identify and
analyze hazards and reduce the resulting risks related to equipment
movement and operation. It must also include actions to develop and
maintain procedures and schedules for routine maintenance and non-
routine repairs. Operators are also required to describe the actions
they will take to identify currently available and newly emerging
feasible technologies that can enhance safety and evaluate whether to
adopt them. Finally, the rule requires operators to describe the
actions they will take to train miners and other persons at the mine
necessary to perform work to identify and address or avoid hazards
related to surface mobile equipment.
Once the written safety program is developed and implemented, a
responsible person is required to evaluate and update it for the mine
at least annually, or when mining conditions or practices change that
may adversely affect the health and safety of miners or other persons,
when accidents or injuries occur, or when surface
[[Page 87914]]
mobile equipment changes or modifications are made. While the final
rule provides operators flexibility to devise a safety program that is
appropriate for their specific mining conditions and operations, the
final rule also requires operators to solicit input from miners and
their representatives as they develop and update the written safety
program.
MSHA estimated the costs associated with the final rule's
requirements by adding the estimated costs of the following. First, the
estimated costs include developing the written safety program document,
including the actions the operators will take to identify and analyze
hazards, evaluate current and emerging technologies, develop and
maintain the maintenance and repair schedules and procedures, train
miners and others to identify and address hazards associated with
surface mobile equipment. Operators must also provide copies of the
written safety program to miners and their representatives upon
request. Second, the estimated costs include updating the written
safety program at least annually and under certain circumstances, such
as when new equipment is brought to the mine or when accidents or
changes in mining conditions or practices occur that may adversely
affect the safety and health of miners, and, for each update, providing
copies of the written safety program to miners and their
representatives upon request. The first component is considered to be
the one-time, initial compliance costs in the first year, whereas the
second component represents the recurring compliance costs for
subsequent years. Estimated costs also include providing copies of the
written safety program to miners and their representatives upon
request.
MSHA calculated these compliance costs based on the estimated time
spent by mine employees to develop and update the written safety
program, multiplied by their wage rates. MSHA assumed that mine
supervisors, safety professionals, and maintenance workers would
participate in the creation and updates of the written safety program.
MSHA assumed that operators will solicit input from miners and their
representatives in developing and maintaining all aspects of the
written safety program, and MSHA included the time for their
collaboration in its cost estimates.
MSHA further assumed that the time needed to develop and update the
written safety program would vary by the number of unique surface
mobile equipment units at each mine, which would be related to a mine's
production output (e.g., tonnage), and employment size.\8\ Based on
these factors, MSHA grouped all MNM and coal mines into three
categories each and estimated the compliance costs for this final rule
by category.\9\ MSHA also assumed a majority of independent contractors
(75 percent or 4,739) would develop and update a written safety program
for surface mobile equipment at mines.\10\
---------------------------------------------------------------------------
\8\ MSHA used metric tons for the production output as based on
the cost estimation chapter of the Society for Mining, Metallurgy,
and Exploration Handbook. Stebbins, S.A., and Leinart, J.B. 2011.
Cost estimating for surface mines. In SME Mining Engineering
Handbook, 3rd ed. Edited by P. Darling.
\9\ See Appendix A of the Final Regulatory Impact Analysis for
this final rule for a detailed explanation.
\10\ Based on its examination of the mining contractors listed
in 2021, MSHA estimated that approximately 75 percent of 6,318 part
45 independent contractors would be required under the final rule to
develop a safety program because they have surface mobile equipment.
---------------------------------------------------------------------------
The total compliance cost estimates are shown in Table III-2. The
compliance costs for the 10-year period of analysis (i.e., 10-year
implementation period) are estimated to be about $126 million (in 2021
dollars) undiscounted, while the 10-year compliance costs discounted at
3 percent and 7 percent are about $111 million and $95 million,
respectively. The annualized costs discounted at 3 and 7 percent are
$13.0 million and $13.5 million, respectively.
Table III-2--Yearly Compliance Cost Estimates
[Millions of 2021 dollars]
----------------------------------------------------------------------------------------------------------------
Total compliance costs
-----------------------------------------------
Implementation year Discounted at
-----------------------------------------------
0% 3% 7%
----------------------------------------------------------------------------------------------------------------
Year 1.......................................................... $37.0 $36.0 $34.6
Year 2.......................................................... 9.9 9.4 8.7
Year 3.......................................................... 9.9 9.1 8.1
Year 4.......................................................... 9.9 8.8 7.6
Year 5.......................................................... 9.9 8.6 7.1
Year 6.......................................................... 9.9 8.3 6.6
Year 7.......................................................... 9.9 8.1 6.2
Year 8.......................................................... 9.9 7.8 5.8
Year 9.......................................................... 9.9 7.6 5.4
Year 10......................................................... 9.9 7.4 5.0
-----------------------------------------------
10-Year Total............................................... 126.4 111.0 95.1
Annualized.................................................. 12.6 13.0 13.5
----------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.
C. Benefits
This final rule is expected to generate numerous benefits,
including reductions in individual injuries and fatalities, fostering
of a positive safety culture at the mine, reductions in worker
compensation and other insurance premiums, and decreases in down-time
(non-production time) due to accidents. Among these benefits, MSHA
focused on estimating the number of surface mobile equipment-related
fatalities and injuries that could be prevented due to this final rule
and the monetized benefits of those fatalities and injuries prevented.
MSHA also performed a sensitivity analysis covering different scenarios
that would lead to different percentages of fatalities and injuries
prevented, and thus to different levels of benefits depending on the
assumptions made.
Since the final rule includes all mines, MSHA modified the approach
[[Page 87915]]
from the proposed rule and used the following analysis to estimate the
monetized benefits of fatalities and injuries prevented. MSHA first
established a baseline using the fatality and injury data and post-
accident investigation reports from the 2011-2020 period. In the
proposed rule, MSHA used data for accidents, fatalities, and injuries
from the years 2003 to 2018 for mines that employed six or more miners.
For the final rule, however, MSHA is using more recent and
comprehensive data and detailed information concerning accidents,
fatalities, and injuries that occurred between 2011 and 2020 for all
mines. The Agency believes the more recent data better reflects current
and future circumstances.
To estimate the monetized benefits of fatalities and injuries
prevented, MSHA first examined historical fatality and injury data and
post-accident investigation reports from the 2011-2020 period. MSHA
found that over that 10-year period, there were 113 surface mobile
equipment fatalities. MSHA further observed that in the case of 63
(about 56 percent) of the 113 fatalities involving surface mobile
equipment, deficiencies in training, hazard identification, or
maintenance or any combination of these three factors contributed to
the fatality. MSHA also counted 13,753 non-fatal injuries involving
surface mobile equipment and 454,076 workdays lost due to those
injuries during the 10-year period.
Based on this historical analysis, MSHA projected the numbers of
surface mobile equipment fatalities, non-fatal injuries, and lost
workdays that would be expected due to deficiencies in training, hazard
identification, or maintenance, in the absence of the final rule. MSHA
then compared those projected numbers (``baseline'') with the
projections of the same types of fatalities, non-fatal injuries, and
workdays lost, in the presence of the final rule. The difference
between the two was used as the basis for calculating benefits of the
final rule. MSHA believes that a safety program that identifies actions
operators will take to accomplish the required tasks will reduce
fatalities, non-fatal injuries, and lost workdays that would be
expected due to deficiencies in training, hazard identification, or
maintenance because it will increase compliance with MSHA's existing
hazard identification, hazard correction, maintenance, and training
requirements.
MSHA projected that in the absence of the final rule, over the next
10 years, there would be 60 fatalities, 7,298 injuries, and 240,954
workdays lost annually due to deficiencies in training, hazard
identification, or maintenance related to surface mobile equipment.
These projections assume a mining workforce of approximately 253,401
(each working 2,000 hours in a year) each year. MSHA estimated that the
final rule would reduce the projected fatalities, injuries, and
workdays lost resulting from deficiencies in training, hazard
identification, or maintenance by about 75 percent for each year the
rule is in effect, beginning in the second year.\11\ MSHA then
performed a sensitivity analysis with two additional scenarios--a 50
percent reduction and a 25 percent reduction. Table III-3 and Table
III-4 present summaries of these results.
---------------------------------------------------------------------------
\11\ In the first year--because the rule will be effective for
only half the year--there would be a 37.5 percent, rather than a 75
percent, reduction.
Table III-3--Projected Surface Mobile Equipment Fatalities in the Absence of and With the Final Rule
----------------------------------------------------------------------------------------------------------------
In the absence of final With final rule
rule --------------------------------------------------
------------------------- Fatalities prevented--projections
Projected surface --------------------------------------------------
mobile equipment
fatalities due to
Implementation year deficiencies in Program
training, hazard effectiveness Program Program
identification, or at 75% effectiveness effectiveness
maintenance (expected at 50% at 25%
------------------------- scenario)
Baseline
----------------------------------------------------------------------------------------------------------------
Year 1 *............................ 6.00 2.2 1.5 0.7
Year 2.............................. 6.00 4.5 3.0 1.5
Year 3.............................. 6.00 4.5 3.0 1.5
Year 4.............................. 6.00 4.5 3.0 1.5
Year 5.............................. 6.00 4.5 3.0 1.5
Year 6.............................. 6.00 4.5 3.0 1.5
Year 7.............................. 6.00 4.5 3.0 1.5
Year 8.............................. 6.00 4.5 3.0 1.5
Year 9.............................. 6.00 4.5 3.0 1.5
Year 10............................. 6.00 4.5 3.0 1.5
---------------------------------------------------------------------------
10-Year Total................... 60.0 42.7 28.5 14.2
----------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.
* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer
fatalities prevented in the first year than in each subsequent year. For example, under the expected scenario,
MSHA estimates that 4.5 lives will be saved in a full year after implementation, but given the 6-month delayed
compliance date, a half of 2.2 lives is assumed to be saved in the first year.
[[Page 87916]]
Table III-4--Projected Surface Mobile Equipment Injuries in the Absence of and With the Final Rule
----------------------------------------------------------------------------------------------------------------
In the absence of final With final rule
rule --------------------------------------------------
------------------------- Injuries prevented--projections
Projected surface --------------------------------------------------
mobile equipment
injuries due to
Implementation year deficiencies in Program
training, hazard effectiveness Program Program
identification, or at 75% effectiveness effectiveness
maintenance (expected at 50% at 25%
------------------------- scenario)
Baseline
----------------------------------------------------------------------------------------------------------------
Year 1 *............................ 730 273.7 182.5 91.2
Year 2.............................. 730 547.4 364.9 182.5
Year 3.............................. 730 547.4 364.9 182.5
Year 4.............................. 730 547.4 364.9 182.5
Year 5.............................. 730 547.4 364.9 182.5
Year 6.............................. 730 547.4 364.9 182.5
Year 7.............................. 730 547.4 364.9 182.5
Year 8.............................. 730 547.4 364.9 182.5
Year 9.............................. 730 547.4 364.9 182.5
Year 10............................. 730 547.4 364.9 182.5
---------------------------------------------------------------------------
10-Year Total................... 7,298 5,200 3,467 1,733
----------------------------------------------------------------------------------------------------------------
Notes: Totals may not equal the sum of the components due to rounding.
* Due to delayed compliance in the first year of implementation, MSHA assumes that there will be fewer injuries
prevented in the first year than in each subsequent year.
The monetary value of the reduction in fatalities and injuries
related to surface mobile equipment is calculated as follows. First, to
develop a monetized benefit estimate of fatality reduction, MSHA used
the Value of a Statistical Life (VSL) adopted by other Federal agencies
like the Department of Transportation and Department of Homeland
Security, and adjusted for the real per-capita Gross Domestic Product
(GDP). Second, to estimate the monetized benefit of injury reduction,
MSHA used the projected reduction in the number of workdays lost due to
injuries, multiplied by the average wage of miners. The monetized
benefits of reduced injuries were then calculated by multiplying the
total workdays lost due to the injuries and the average wage of miners.
Again, MSHA performed a sensitivity analysis with two additional
scenarios--a 25 percent reduction and a 50 percent reduction in
fatalities and injuries. In the expected scenario, the 10-year
monetized benefit totals, in 2021 dollars, are calculated at $522
million at a 3 percent discount rate and $424 million at a 7 percent
discount rate.
D. Net Benefits
Table III-5 presents the monetized net benefits for the first 10
years of implementation of the final rule. The 10-year net benefit
totals in 2021 dollars are $411 million at a 3 percent discount rate
and $329 million at a 7 percent discount rate. An annualized net
benefit is estimated at $48.2 million and $46.8 million, respectively,
at 3 percent and 7 percent discount rates.
Table III-5--Monetized Net Benefits
[Millions of 2021 dollars]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Expected scenario Low net benefit scenario Lowest net benefit scenario
----------------------------------------------------------------------------------------------------
Discounted at Discounted at Discounted at
----------------------------------------------------------------------------------------------------
0% 3% 7% 0% 3% 7% 0% 3% 7%
--------------------------------------------------------------------------------------------------------------------------------------------------------
10-Year total *.................................... $493 $411 $329 $286 $237 $187 $80 $63 $46
Annualized......................................... 49.3 48.2 46.8 28.6 27.8 26.7 8.0 7.4 6.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Totals may not equal the sum of the components due to rounding.
* MSHA assumed that a full-year worth costs would be incurred, while projecting a half of the full-year monetized benefits in the first year, due to the
timing of implementation (6-month delayed compliance).
MSHA believes that the net-benefits of the rule are understandable,
because the costs of the safety program are modest relative to the
much-higher value of the estimated reduction in fatalities.
IV. Regulatory Flexibility Analysis (RFA) and Small Business Regulatory
Enforcement Fairness Act (SBREFA) and Executive Order 13272: Proper
Consideration of Small Entities in Agency Rulemaking
MSHA has reviewed the final rule to assess and take appropriate
account of its potential impact on small businesses, small governmental
jurisdictions, and small organizations. Pursuant to the Regulatory
Flexibility Act (RFA) of 1980, as amended by the Small Business
Regulatory Enforcement Fairness Act (SBREFA), MSHA analyzed the impact
of the final rule on small entities. Based on that analysis, MSHA
certifies that this final rule does not have a
[[Page 87917]]
significant economic impact on a substantial number of small entities.
The factual basis for this certification is presented in this section.
A. Definition of Small
Under the RFA, when analyzing the impact of a rule on small
entities, MSHA must use the Small Business Administration's (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. The SBA uses North American Industry Classification
System (NAICS) codes, generally at the 6-digit NAICS level, to set
thresholds for small business sizes for each industry.\12\
---------------------------------------------------------------------------
\12\ Small Business Administration, Table of Size Standards:
Effective July 14, 2022. <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
---------------------------------------------------------------------------
B. Factual Basis for Certification
Following SBA guidance on carrying out a threshold analysis, MSHA
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 1 percent of the estimated
industry revenues, it is generally appropriate to conclude that there
is no significant economic impact on a substantial number of small
entities. In addition to assessing the overall impact on small
entities, MSHA examines data for the NAICS codes that have much higher
impact ratios (cost/revenue) than others to ensure that the first-level
screening is representative.
As the first step, MSHA identified all small-entity controllers in
the mining industry on the basis of the small-entity thresholds. The
MNM and coal mining operations affected by the rule fall into two
general categories: (1) controllers (parent companies) that own and
operate mines, which is the appropriate unit for this RFA analysis
(based on SBA guidance),\13\ and (2) mining contractors (independent
contractors designated under part 45 of 30 CFR), hired by mine
operators to work at mines, that operate their own surface mobile
equipment. MSHA identified and analyzed the effect of the rule on
small-entity controllers of mines and on small-entity mining
contractors.
---------------------------------------------------------------------------
\13\ A controller is a parent company owning or controlling one
or more mines, whereas a mine is an establishment of that parent
company. Small entities, subject to requirements of the Regulatory
Flexibility Act, are entities that are parent companies only and not
establishments. See Small Business Administration, Office of
Advocacy, How to Comply with the Regulatory Flexibility Act, August
2017. Sec. 3(d) of the Mine Act defines ``operator'' as ``any owner,
lessee, or other person who operates, controls, or supervises a coal
or other mine.'' 30 U.S.C. 802(d). Under 30 CFR part 41, an operator
must file a legal identity report with MSHA and with this report,
MSHA identifies a controller for each mine. 30 U.S.C. 819(d) (each
operator shall file the name and address of the ``person who
controls or operates the mine.''). In the IRFA, MSHA considered the
controller of a mine and then determined whether the mine, not the
controller, was a small entity. In the FRFA, consistent with the SBA
guidance and the Mine Act, MSHA determines whether a controller is a
small entity.
---------------------------------------------------------------------------
To determine the number of small entities subject to the final
rule, MSHA reviewed NAICS, the standard used by Federal statistical
agencies in classifying business establishments, as well as information
from the SBA Office of Advocacy. MSHA used its data from the MSHA
Standardized Information System (MSIS) to identify the responsible
party for each mine, as well as the contractors hired to do work on
mines. MSHA then combined that information with the size classification
information. The two sections below describe MSHA's analysis of
controllers and mining contractors, respectively.
Small-entity controllers: In analyzing controllers of mines, MSHA
determined that mining operations that fall into 19 NAICS-based
industry classifications may be subject to the final rule. These
industry categories and their accompanying six-digit NAICS codes are
shown in Table IV-1.\14\ MSHA then matched the NAICS classifications
with SBA small-entity size standards (based on number of employees) to
determine the number of small entities within each of the respective
NAICS codes. See Table IV-1.
---------------------------------------------------------------------------
\14\ The NAICS classifications used in this analysis are drawn
from the latest version of the NAICS, which was effective in July
2022. MSHA also used, in the analysis, an earlier the version of
NAICS categories that were effective in August 2019. When developing
the analysis, MSHA had begun the work prior to the most current
NAICS being effective. The older NAICS categories were still used in
the part of the current analysis that estimated revenues. This is
because the older categories were still needed in order for MSHA to
cross-tabulate (or crosswalk) its data on mines and controllers with
Bureau of Census data on revenues by NAICS codes, where these Census
data were organized by the same NAICS codes that were in the earlier
version. No comparable revenue data, at this writing, had yet been
revised to the most recent NAICS categories.
---------------------------------------------------------------------------
MSHA counted the number of small-entity controllers in each NAICS
code, after determining which mines were owned by which controllers.
Table IV-1 shows the count of all controllers and a count of small-
entity controllers in each NAICS code.\15\
---------------------------------------------------------------------------
\15\ Some controllers own mines with more than one NAICS code if
those mines produce different commodities. For this analysis,
however, MSHA counted each ``unique'' controller only once. In other
words, there is no double-counting of the same controller if a
controller produces in more than one NAICS code. It is not uncommon
for firms to produce different products falling under more than one
six-digit NAICS codes, especially if the firm is large. In any case,
no single NAICS code is attributed to any controller that has more
than one NAICS code. Rather, the analysis takes all of any one
controller's multiple NAICS codes into account without losing any of
the information about the NAICS codes. Specifically, that one
controller's revenues and employees are partitioned among each of
that one controller's production by NAICS code, and then aggregated
for that one controller.
---------------------------------------------------------------------------
Based on this methodology, MSHA estimated that in 2021, there were
a total of 5,879 controllers, and 5,462 of them were small-entity
controllers. Many controllers owned one or two mines, while some
controllers owned hundreds of mines nationwide (or worldwide).\16\
---------------------------------------------------------------------------
\16\ The number of controllers and mines examined in this
regulatory flexibility analysis are those specifically known to
operate in 2021. The year 2021 is the most current year for which
complete information were available. Such information about
controllers as parent companies might include, for example,
knowledge of whether the parent company is a large, multinational
corporation, which has bearing on this regulatory flexibility
analysis. Because the benefit-cost analysis performed on the
proposed rule did not need this kind of detailed information about
controllers, it was able to have a broader scope to include data
from other years besides 2021, and to include some more data in the
year 2021 itself, which it did. As a result, the benefit cost
analysis included a larger number of mines (and affected mines) and
controllers. The key factor for this regulatory flexibility analysis
is the estimated ratio of the regulatory cost per revenue for
controllers, as reflected by the most current data. The estimation
of this ratio is robustly addressed in MSHA's analysis of the 5,879
controllers in 2021 (which is not impacted by the exclusion of other
years in this analysis).
[[Page 87918]]
Table IV-1--Small Entities Affected by the Final Rule: Number of Controllers and Small-Entity Controllers by
NAICS Code *
----------------------------------------------------------------------------------------------------------------
SBA size
standards in Number of
NAICS code Industry description maximum Number of all small-entity
number of controllers controllers
employees **
----------------------------------------------------------------------------------------------------------------
211120............................ Crude petroleum extraction 1,250 4 3
***.
211130............................ Natural Gas Extraction ***.. 1,250 1 0
212114............................ Surface Coal Mining......... 1,250 282 237
212115............................ Underground Coal Mining..... 1,500 122 99
212210............................ Iron Ore Mining............. 750 31 26
212220............................ Gold Ore and Silver Ore 1,500 142 108
Mining.
212230............................ Copper, Nickel, Lead, and 750 45 33
Zinc Mining.
212290............................ Other Metal Ore Mining...... 750 29 22
212311............................ Dimension Stone Mining and 500 491 432
Quarrying.
212312............................ Crushed and Broken Limestone 750 820 738
Mining and Quarrying.
212313............................ Crushed and Broken Granite 750 182 165
Mining and Quarrying.
212319............................ Other Crushed and Broken 500 760 704
Stone Mining and Quarrying.
212321............................ Construction Sand and Gravel 500 3,221 2,984
Mining.
212322............................ Industrial Sand Mining...... 500 172 155
212323............................ Kaolin, Clay, and Ceramic 500 161 143
and Refractory Minerals
Mining.
212390............................ Other Nonmetallic Mineral 500 151 123
Mining and Quarrying.
327310............................ Cement Manufacturing........ 1,000 74 53
327410............................ Lime Manufacturing.......... 750 58 49
331313............................ Primary production of 1,300 3 3
alumina and aluminum.
----------------------------------------------------------------------------------------------------------------
* Each mine is assigned only one NAICS (as its major product) but some controllers that own more than one mine
own mines that are in different NAICS. Consequently, some controllers have more than one NAICS (when they own
mines with different NAICS) and they are therefore counted more than once in this table. See Table _-2 for the
distribution of controllers by the NAICS code for which they have the most employees, which will then show
only one NAICS code for each controller.
** SBA, effective July 14, 2022.
*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas
extraction, but the mines in these categories that are counted here, and included in this analysis, also
involve mining operations that would fall under MSHA's jurisdiction. This analysis does not include crude
petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not regulate
these activities.
Each mine is assigned only one NAICS code, with that code
reflecting what that mine produces the most. There are several cases in
which more than one mine, owned by the same controller, have different
NAICS codes, and as a result that one controller has multiple NAICS
codes. For this reason, some controllers are counted more than once in
this Table IV-1 (as also explained in a footnote in the table). In
particular, of the 5,879 unique controllers identified in 2021, 608 of
them each owned multiple mines with different NAICS codes. In theory,
this could present an ambiguity as to whether a controller, with more
than one NAICS code, should be considered a small entity or not. Since
NAICS codes vary by their small-entity thresholds, it is theoretically
possible for a controller with more than one NAICS code to be a small
entity according to the threshold for one of its NAICS codes, while not
being a small entity under the lower threshold that applies to another
of its NAICS codes. However, this situation was not found to occur for
any of the controllers; all controllers that were determined to be
small entities met the conditions for a small entity for each of their
NAICS codes.
While some controllers are in more than one mining NAICS code, the
distribution of controllers by their most significant NAICS code may
also provide useful information about the general structure of the
industry. Therefore, MSHA also prepared Table IV-2 to present the
distribution of controllers by the one NAICS code under which the
largest number of their employees are reported. This table then assigns
only one NAICS code for each controller, allowing for a count of
controllers by their (mutually exclusive) most significant NAICS code
in mining.\17\
---------------------------------------------------------------------------
\17\ Note that many of the controllers also own operations in
other, non-mining industries, and in other mining operations in
other nations.
Table IV-2--Small Entities Affected by the Final Rule: Distribution of Controllers by NAICS Category, With One
NAICS Code per Controller *
----------------------------------------------------------------------------------------------------------------
SBA size
standards in Number of
NAICS code Industry description maximum Number of all small-entity
number of controllers controllers
employees **
----------------------------------------------------------------------------------------------------------------
211120............................ Crude Petroleum Extraction 1,250 3 3
***.
211130............................ Natural Gas Extraction ***.. 1,250 1 0
212114............................ Surface Coal Mining......... 1,250 246 218
212115............................ Underground Coal Mining..... 1,500 93 75
212210............................ Iron Ore Mining............. 750 19 18
[[Page 87919]]
212220............................ Gold Ore and Silver Ore 1,500 98 82
Mining.
212230............................ Copper, Nickel, Lead, and 750 31 25
Zinc Mining.
212290............................ Other Metal Ore Mining...... 750 14 12
212311............................ Dimension Stone Mining and 500 415 382
Quarrying.
212312............................ Crushed and Broken Limestone 750 716 675
Mining and Quarrying.
212313............................ Crushed and Broken Granite 750 133 130
Mining and Quarrying.
212319............................ Other Crushed and Broken 500 617 596
Stone Mining and Quarrying.
212321............................ Construction Sand and Gravel 500 3,046 2,839
Mining.
212322............................ Industrial Sand Mining...... 500 120 113
212323............................ Kaolin, Clay, and Ceramic 500 108 101
and Refractory Minerals
Mining.
212390............................ Other Nonmetallic Mineral 500 108 95
Mining and Quarrying.
327310............................ Cement Manufacturing........ 1,000 61 49
327410............................ Lime Manufacturing.......... 750 48 47
331313............................ Primary production of 1,300 2 2
alumina and aluminum.
-----------------------------------------------
Total......................... ............................ .............. 5,879 5,462
----------------------------------------------------------------------------------------------------------------
* Each controller is assigned the one NAICS code for which it devotes the most employees, based on the employees
at its mines and each of its mines being associated with only one NAICS code.
** SBA, effective July 14, 2022.
*** These categories are commonly associated with mines with activities involving crude petroleum or natural gas
extraction, but the mines in these categories that are counted here, and included in this analysis, also
involve mining operations that would fall under MSHA's jurisdiction. This analysis does not include crude
petroleum or natural gas extraction (and the mines that perform them exclusively) since MSHA does not regulate
these activities.
MSHA estimated the costs of the rule for small-entity controllers
by summing the costs for each of these controller's mines. The
estimated cost for each mine was based on the number of miners at that
mine, and the mine's industry category. Thus, if two mines belonging to
the same controller had different NAICS codes, both of those NAICS
codes would be accounted for, and the total cost to the controller
would be calculated as the total cost for all of that controller's
mines. Similarly, the estimated revenues of controllers were derived as
the sum of the revenues of each of their mines, which was, in turn,
dependent on the NAICS codes associated with those mines. Thus, all of
NAICS codes for all of the mines, and all of the mines under all of the
NAICS codes, were accounted for in the estimates of the costs and
revenues of controllers.
As shown in Table IV-2, MSHA determined that, in 2021, there were a
total of 5,879 controllers, and 5,462 of them were small-entity
controllers. These small-entity controllers owned a total of 9,395
mines, out of the 12,529 mines owned by all controllers in 2021. Table
IV-3 presents a summary of the main findings regarding small-entity
controllers. As shown, MSHA estimated the total cost of the rule to all
5,462 small-entity controllers to be $26.69 million in the first year,
and $8.17 million in each subsequent year (in 2021 dollars). Per small
entity, this amounted to an average compliance cost of $4,886 in the
first year and $1,496 in each year thereafter. MSHA estimated the total
revenues of the 5,462 small-entity controllers to be $33,720 million
(in 2021 dollars). As a result of these estimates, MSHA found the
compliance cost of the final rule to small entities, as a percent of
revenues, on average, to be 0.165 percent in the first year, and 0.069
percent in each subsequent year. Among the small-entity controllers
examined, the compliance cost as a percent of controllers' revenues
ranged from near zero to a maximum of 0.341 percent in the first year,
and to a maximum of 0.175 percent in each year thereafter. On the basis
of these findings, MSHA determined that the final rule does not have a
significant impact on small entities controllers in the mining
industry.
Table IV-3--Main Findings for 5,462 Small-Entity Controllers
------------------------------------------------------------------------
Each
Economic measure First year subsequent
year
------------------------------------------------------------------------
Total Compliance Costs (in Millions of $26.69 $8.17
2021 Dollars)..........................
Total Revenue (in Millions of 2021 $33,720 $33,720
Dollars)...............................
Average Compliance Cost per Small-Entity $4,886 $1,496
Controller (in 2021 Dollars)...........
Ratio of Total Compliance Cost/Total 0.079 0.024
Revenue (in Percent)...................
Average of the Ratios of Compliance Cost/ 0.165 0.069
Revenue (in Percent)...................
------------------------------------------------------------------------
Small-entity independent contractors: For its analysis of
independent contractors designated under part 45 of 30 CFR, MSHA used
MSIS data to first derive a list of all mining contractors in the year
2021. The list contained a total of 6,318 contractors. While these
contractors varied greatly in terms of their corresponding NAICS codes,
MSHA determined that the most relevant NAICS codes for characterizing
the mining contractors were the NAICS
[[Page 87920]]
Codes for (1) ``Support Activities for Coal Mining'' (213113), (2)
``Support Activities for Metal Mining'' (213114), and (3) ``Support
Activities for Nonmetallic Minerals'' (213115). MSHA did not have data
on parent companies of these contractors. However, MSHA analyzed data
on enterprises and establishments in these NAICS codes from the Census
Bureau, Statistics of U.S. Businesses (SUSB).\18\ The SUSB data on
entities in these three NAICS codes indicated that the vast majority of
contractors (which would be listed separately in MSHA's data) are,
themselves, parent companies. Specifically, based on the SUSB data on
parent companies and the enterprises that belong to them, MSHA observed
that the number of enterprises in these three NAICS codes, on average,
exceeded the number of parent companies by only about 9 percent.
Therefore, over 91 percent of parent companies that are mining
contractors have only one establishment, implying that the vast
majority of listed contractors are themselves parent companies, rather
than subsidiaries of larger companies. Based on these findings, MSHA
assumed in its analysis that the contractors on its list are parent
companies.
---------------------------------------------------------------------------
\18\ Census Bureau, Statistics of U.S. Businesses. <a href="https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html">https://www.census.gov/data/tables/2017/econ/susb/2017-susb-annual.html</a>.
---------------------------------------------------------------------------
Based on this assumption that each of the listed mining contractors
in 2021 is not a subsidiary of a larger company, MSHA estimated how
many of them would be considered small entities under the RFA. To make
this determination, MSHA applied the size thresholds for the three
NAICS categories for support activities for mining (213113, 213114, and
213115). Small entities in NAICS 213113 (support activities for coal
mining) are those with annual revenues below the threshold of $27.5
million in 2022 dollars, while those in NAICS 213114 (support
activities for metal mining) and NAICS 213115 (support activities for
nonmetallic minerals) have annual revenues of less than $41.0 million
and $20.5 million, respectively.\19\ In estimating how many contractors
are small entities, MSHA conservatively applied the $20.5 million (in
2022 dollars) threshold, so as not to underestimate the number of small
entities.\20\ MSHA's estimation of the number of small-entity
contractors may therefore be an overestimation; however, MSHA still
believes it is a close approximation to the number of small-entity
contractors that would be determined if more detailed data were
available.
---------------------------------------------------------------------------
\19\ Small Business Administration, Table of Size Standards:
Effective July 14, 2022. <a href="https://www.sba.gov/document/support-table-size-standards">https://www.sba.gov/document/support-table-size-standards</a>.
\20\ MSHA translated the threshold of $20.5 million in 2022
dollars to $17.44 million in 2017 dollars based on the Bureau of
Economic Analysis' GDP Price Index.
---------------------------------------------------------------------------
From the employment and revenue data in the SUSB tables for the
three NAICS Codes for support activities for mines, MSHA estimated that
mining support contractors have, on average, revenues of approximately
$315,000 (in 2017 dollars) per employee.\21\
---------------------------------------------------------------------------
\21\ It is important to note that, although, contractor revenues
may be close in magnitude to their costs, those costs often far
exceed their labor costs, and therefore their revenue per employee
would be expected to far exceed their average salaries. Such
additional costs, besides labor costs, include the costs of
equipment, fuel, overhead, taxes, etc.
---------------------------------------------------------------------------
MSHA's data on mining contractors included the number of employees
working for each contractor. MSHA was able to estimate the revenue of
each contractor by multiplying its number of employees by the average
revenue per employee of $315,000 from the SUSB data. From these
estimates of each contractor's revenue, MSHA estimated that
approximately 4,469 contractors out of a total of 4,739 contractors
affected by the rule (or about 94.3 percent of those contractors) are
potentially small entities, under the threshold of $17.4 million (in
2017 $) in annual revenue.
Table IV-3 presents a summary of the main findings on mining
contractors that would be affected by the rule. As shown, MSHA
estimated the total cost to all 4,469 potential small-entity
contractors of the rule to be $2.69 million in the first year and
$0.954 million in each subsequent year. Per small-entity contractor,
this amounted to an average cost of $453 in the first year and $212 in
each year thereafter. MSHA estimated the total revenues of the 4,469
potential small-entity contractors to be $12,783 million (in 2021
dollars). As a result of these estimates, MSHA found the cost of the
final rule to small-entity contractors, as a percent of revenue, to be,
on average across the contractors, 0.0211 percent of revenue in the
first year and 0.0074 percent of revenue in each subsequent year. On
the basis of these findings, MSHA determined that the final rule does
not have a significant impact on small-entity-contractors in the mining
industry.
Table IV-3--Main Findings for 4,469 Small-Entity Contractors
------------------------------------------------------------------------
Each
Economic measure First year subsequent
year
------------------------------------------------------------------------
Total Compliance Costs (in Millions of $2.69 $0.95
2021 Dollars)..........................
Total Revenue (in Millions of 2021 $12,783 $12,783
Dollars)...............................
Average Compliance Cost Per Small-Entity $453 $212
Contractor (in 2021 Dollars)...........
Ratio of Total Compliance Cost/Total 0.0211 0.0074
Revenue (in Percent)...................
Average of the Ratios of Compliance Cost/ 0.0460 0.0212
Revenue (in Percent)...................
------------------------------------------------------------------------
In conclusion, MSHA determined that the rule does not have a
significant effect on either small-entity mining controllers or small-
entity mining contractors. MSHA therefore certifies that this final
rule does not have a significant economic impact on a substantial
number of small entities.
V. Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521)
provides for the Federal Government's collection, use, and
dissemination of information. The goals of the PRA include minimizing
paperwork and reporting burdens and ensuring the maximum possible
utility from the information that is collected under 5 CFR part 1320.
The PRA requires Federal agencies to obtain approval from OMB before
requesting or requiring ``a collection of information'' from the
public.
MSHA determined that this final rule creates a new information
collection burden for the mining community. However, the final rule
does not contain changes that transfer burden from, or add burden to,
existing information
[[Page 87921]]
collections because the paperwork requirements in this rule are
applicable to only the new information collection discussed below. MSHA
expects that some mine operators may use existing information
collections to help the development or implementation of a written
safety program at their mine. For example, under OMB No. 1219-0089,
Safety Defects; Examination, Correction, and Records, MNM operators
record inspections of surface mobile equipment before equipment is
placed in operation and when equipment is removed from service to be
repaired before use is resumed. Under OMB No. 1219-0083, Surface Coal
Mines Daily Inspection; Certified Person; Reports of Inspection, coal
mine operators record reports of hazardous conditions in active work
areas of surface operations along with a description of any corrective
actions taken. Some operators may incorporate these existing
information collections, if applicable, into their safety program for
surface mobile equipment because they have determined the existing
information collections would support the safety program's development
or implementation. Hence, only new requirements from this final rule
will be recorded under this new information collection and there will
be no change to existing information collections.
Once OMB completes its review of MSHA's new information collection,
the Agency will publish a notice on the new information collection
under the Information Collection Review (ICR) 1219-0155. (The regulated
community is not required to respond to any collection of information
unless it displays a current, valid, OMB control number.)
A. New Information Collection Under ``Safety Program for Surface Mobile
Equipment''
Under this final rule, new burdens will apply to operators and
independent contractors who are subject to 30 CFR part 45, as discussed
below.
Section 56.23003(a) requires operators of surface metal and
nonmetal mines to develop, implement, and update a written safety
program for surface mobile equipment to reduce the number and rates of
accidents, injuries, and fatalities. This subpart applies to all
surface mobile equipment at surface metal and nonmetal mines. Such a
program will include actions the operator will take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that enhance safety at the mine and evaluate whether to
adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
Section 57.23003(a) requires operators of underground metal and
nonmetal mines to develop, implement, and update a written safety
program for surface mobile equipment to reduce the number and rates of
accidents, injuries, and fatalities. This subpart applies to all
surface mobile equipment at surface areas of underground metal and
nonmetal mines. Such a program will describe actions the operator will
take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that enhance safety at the mine and evaluate whether to
adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
Section 77.2103(a) requires operators of surface coal mines and
surface work areas of underground coal mines to develop, implement, and
update a written safety program for surface mobile equipment to reduce
the number and rates of accidents, injuries, and fatalities. This
subpart applies to all surface mobile equipment at surface coal mines
and surface work areas of underground coal mines. Such a program will
describe actions the operator will take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that enhance safety at the mine and evaluate whether to
adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
In addition, Sec. Sec. 56.23003(b), 57.23003(b), and 77.2103(b)
require evaluation and updates to the written safety program at least
annually, or as mining conditions or practices change that may
adversely affect the health and safety of miners or other persons, as
accidents or injuries occur, or as surface mobile equipment changes or
modifications are made.
B. Information Collection Requirements
I. Type of Review: New Collection.
OMB Control Number: 1219-0155.
1. Title: Safety Program for Surface Mobile Equipment.
2. Description of the ICR: This final rule on safety program for
surface mobile equipment contains collection of information
requirements that will assist miners, operators, and independent
contractors in identifying risks to their safety and help reduce
injuries and fatalities at mines.
There are provisions of this final rule that have different burden
hours, burden costs, and responses each year. Therefore, MSHA shows the
estimates of burden hours, burden costs, and responses in three
separate years.
3. Summary of the Collection of Information:
Sections 56.23003(a), 57.23003(a), 77.2103(a)--Developing and
Implementing Written Safety Program
ICR. Final Sec. Sec. 56.23003(a), 57.23003(a), and 77.2103(a)
require operators to develop and implement written safety programs.
Number of respondents. For Sec. Sec. 56.23003(a), 57.23003(a), and
71.2103(a), the respondents consist of operators and independent
contractors owning and using surface mobile equipment since they will
be responsible for developing and implementing the written safety
program for surface mobile equipment.
MSHA estimates that, based on its 2021 data, a total of 17,133
respondents (12,394 operators and 4,739 part 45 independent
contractors) will develop a written safety program for surface mobile
equipment in the first year of implementation. MSHA estimated that
12,394 are surface mines and underground mines with surface areas, so
the operators of those mines are assumed to comply with this rule. MSHA
estimates that some operators may need to update, enhance, or even
develop portions of this written safety program to meet current
requirements. MSHA estimated that no additional recordkeeping costs
will be generated by the activities associated with training because
this activity is already being performed during compliance efforts for
existing training standards.
[[Page 87922]]
Annual number of responses. The estimated average annual number of
responses will be 17,133.
Estimated annual burden. The total burden arising from the
development of the safety program in the first year of implementation
is estimated to be 682,833 hours, which includes 297,687 hours to list
the actions the operator will take to conduct the mine-specific hazard
analysis and technology evaluation components of the safety program,
383,860 hours for listing the actions operators will take to develop a
maintenance schedule for surface mobile equipment as part of the
written safety program (if needed), as well as 1,285 hours to make
available and copy the written safety program. An average burden per
respondent is estimated to be 39.85 hours to develop a written safety
program for surface mobile equipment in the first year.
Sections 56.23003(b), 57.23003(b), and 71.2103(b)--Annual Updates to
the Written Safety Program
ICR. Final Sec. Sec. 56.23003(b), 57.23003(b), and 71.2103(b)
require the responsible person to evaluate and update the written
safety program for the mine at least annually, or as mining conditions
or practices change that may adversely affect the health and safety of
miners or other persons, as accidents or injuries occur, or as surface
mobile equipment changes or modifications are made.
Number of respondents. For Sec. Sec. 56.23003(b), 57.23003(b), and
71.2103(b), the respondents will consist of all operators and
contractors who have developed a written safety program for surface
mobile equipment. MSHA estimates that a total of 17,133 mine operators
and independent contractors will subsequently update a written safety
program for surface mobile equipment in years two and three. The
respondents will update at least annually, or as mining conditions or
practices change that may adversely affect the health and safety of
miners or other persons, as accidents or injuries occur, or as surface
mobile equipment changes or modifications are made.
Annual number of responses. The estimated average annual number of
responses will be 17,133.
Estimated annual burden. The total burden arising from the annual
and other updating of the safety program will be 259,834 hours in the
second and third years of implementation, 129,917 hours each year. This
annual burden includes updates to the written safety program arising
from changing conditions at mine sites, surface mobile equipment unit
updates, as well as making available and copying the written safety
program. The estimated annual burden per respondent is 7.58 hours.
Besides the development and update of the written safety program,
no additional information collection cost is expected. Information
collection associated with training requirements in this final rule is
covered under existing regulations in 30 CFR parts 46, 48, and 77.
Total Recordkeeping and Documentation Burden for the Safety Program for
Surface Mobile Equipment Rule
Table V-1--Estimated Annual Recordkeeping and Documentation Burden
----------------------------------------------------------------------------------------------------------------
Annual number Annual burden Estimated
Year of Annual number per annual burden
respondents of responses respondent (Hours)
----------------------------------------------------------------------------------------------------------------
Year 1......................................... 17,133 17,133 39.85 682,833
Year 2......................................... 17,133 17,133 7.58 129,917
Year 3......................................... 17,133 17,133 7.58 129,917
----------------------------------------------------------------
3-Year Total............................... 17,133 51,399 55.02 942,666
Annual Average............................. 17,133 17,133 18.34 314,222
----------------------------------------------------------------------------------------------------------------
The cost estimates of information collection burden are calculated
as follows. In the first year, the average burden per respondent for
developing a safety program, combining hazard analysis and technology
evaluation, identifying actions operators will take to maintain and
repair equipment and train miners as well as making available and
copying the written safety program, is 39.85 hours for a total of
682,833 burden hours in Year 1. In Years 2 and 3, the average burden
per respondent for updating a safety program is 7.58 hours, for a total
of 129,917 burden hours in Year 2 and 129,917 burden hours in Year 3.
MSHA determined the hourly wage rates through data from the U.S.
Department of Labor, Bureau of Labor Statistics (BLS), Occupational
Employment and Wage Statistics (OEWS) published May 2021. Annual Burden
Hours are summarized in Table V-2.
Table V-2--Wage and Hour Burdens
----------------------------------------------------------------------------------------------------------------
Loaded hourly Year 1 burden Year 2 burden Year 3 burden
Occupation wage rate * hours hours hours
----------------------------------------------------------------------------------------------------------------
Mining Supervisor, MNM......................... $61.41 241,085.00 103,182.50 103,182.50
Mining Supervisor, Coal........................ 71.79 21,198.80 7,989.28 7,989.28
Maintenance and Mechanic, MNM.................. 42.22 307,802.50 .............. ..............
Maintenance and Mechanic, Coal................. 47.70 33,406.80 .............. ..............
Occupational Health & Safety Specialist, MNM... 59.06 16,318.40 4,561.34 4,561.34
Occupational Health & Safety Specialist, Coal.. 68.29 8,422.40 2,354.24 2,354.24
Clerk, MNM..................................... 35.58 858.78 858.78 858.78
Clerk, Coal.................................... 35.01 70.80 70.80 70.80
Clerk, Contractor.............................. 35.45 355.43 355.43 355.43
Mining Supervisor, Contractor.................. 63.70 10,662.75 10,544.28 10,544.28
Maintenance and Mechanic, Contractor........... 43.43 42,651.00 .............. ..............
[[Page 87923]]
Occupational Health & Safety Specialist, 61.09 .............. .............. ..............
Contractor....................................
----------------------------------------------------------------
Total (Rounded)............................ ............... 682,833 129,917 129,917
----------------------------------------------------------------------------------------------------------------
* Loaded hourly wages are mean wages that are increased by a benefits multiplier of 1.488 plus a separate
overhead multiplier of 1.01.
The resulting annual burden cost is summarized in Table V-3.
Table V-3--Summary of Information Collection Burden for Safety Program for Surface Mobile Equipment
----------------------------------------------------------------------------------------------------------------
Annual
Year 1 Year 2 Year 3 average
----------------------------------------------------------------------------------------------------------------
Number of Respondents........................... 17,133 17,133 17,133 17,133
Number of Responses............................. 17,133 17,133 17,133 17,133
Number of Burden Hours (Rounded)................ 682,833 129,917 129,917 314,222
Respondent or Recordkeeping Costs (Rounded)..... $25,700 $25,700 $25,700 $25,700
----------------------------------------------------------------------------------------------------------------
1. Affected Public: Business or other for-profit.
2. Estimated Number of Respondents: 17,133 respondents in the first
year; 17,133 respondents in the second year; and 17,133 respondents in
the third year.
3. Frequency: On occasion.
4. Estimated Number of Responses: 17,133 responses in the first
year; 17,133 responses in the second year; and 17,133 responses in the
third year.
5. Estimated Number of Burden Hours: 682,833 hours in the first
year; 129,917 hours in the second year; and 129,917 hours in the third
year.
6. Estimated Respondent or Recordkeeper Hour Burden Costs: $25,700
in the first year; $25,700 in the second year; and $25,700 in the third
year.
For a detailed summary of the burden hours and related costs by
provision, see the FRIA accompanying the final rule. The FRIA includes
the estimated costs and assumptions for the paperwork requirements
related to this final rule.
MSHA received comments on the information collection requirements
contained in the proposed rule (86 FR 50496). These comments are
addressed in the Supporting Statement for the information collection
requirements for this final rule. The Information Collection Supporting
Statement is available at <a href="http://www.reginfo.gov/public/do/PRAMain">http://www.reginfo.gov/public/do/PRAMain</a>, on
MSHA's website at <a href="http://www.msha.gov/regs/fedreg/informationcollection/informationcollection.asp">http://www.msha.gov/regs/fedreg/informationcollection/informationcollection.asp</a>, and at <a href="http://www.regulations.gov">http://www.regulations.gov</a>. A copy of the Statement is also available from
MSHA by request to S. Aromie Noe at <a href="/cdn-cgi/l/email-protection#fcb29399d2af93929bd1bd99d2bdbc989390d29b938a"><span class="__cf_email__" data-cfemail="0e40616b205d616069234f6b204f4e6a616220696178">[email protected]</span></a>, by phone
request to 202-693-9440, or by facsimile to 202-693-9441. These are not
toll-free numbers.
VI. Other Regulatory Considerations
A. National Environmental Policy Act of 1969
The National Environmental Policy Act of 1969 (NEPA) (42 U.S.C.
4321 et seq.), requires each Federal agency to consider the
environmental effects of final actions and to prepare an Environmental
Impact Statement on major actions significantly affecting the quality
of the environment. MSHA has reviewed the final rule in accordance with
NEPA requirements, the regulations of the Council on Environmental
Quality (40 CFR part 1500), and the Department of Labor's NEPA
compliance procedures (29 CFR part 11). As a result of this review,
MSHA has determined that this final rule will not have a significant
environmental impact. Accordingly, MSHA has not conducted an
environmental assessment nor provided an environmental impact
statement.
B. The Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Act) (2 U.S.C. 1501 et
seq.) requires Federal agencies to assess the effects of their
discretionary regulatory actions. In particular, the Act addresses
actions that may result in the expenditure by State, local, or tribal
governments, in the aggregate, or by the private sector, of $100
million (adjusted annually for inflation) or more in any 1 year. MSHA
has reviewed the final rule and has determined that it does not result
in such an expenditure. Accordingly, the Unfunded Mandates Reform Act
of 1995 requires no further Agency action or analysis.
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 the
final rule has no effect on family stability or safety, marital
commitment, parental rights and authority, or income or poverty of
families and children, as defined in the Act. Accordingly, MSHA
determines that the final rule does not impact family well-being, as
defined in the Act.
D. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801 et seq.) allows Congress
to review ``major'' rules issued by federal agencies. The Congressional
Review Act states that, before a rule may take effect, the agency
issuing the rule must submit the rule, and certain related information,
to each House of Congress and the Comptroller General. 5 U.S.C.
801(a)(1). The Congressional Review Act defines a major rule as one
that has resulted in or is likely to result in (1) an annual effect on
the economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, federal, state, or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity, or
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises
[[Page 87924]]
in domestic and export markets. 5 U.S.C. 804(2).
Pursuant to the Congressional Review Act, this rule is not a
``major rule,'' as defined by 5 U.S.C. 804(2). However, pursuant to the
Congressional Review Act, MSHA will submit a copy of this final rule to
both Houses of Congress and to the Comptroller General.
E. Executive Order 12630: Government Actions and Interference With
Constitutionally Protected Property Rights
E.O. 12630 requires Federal agencies to ``identify the takings
implications of proposed regulatory actions . . . .'' MSHA has
determined that the final rule does not include a regulatory or policy
action with takings implications. Accordingly, E.O. 12630 requires no
further Agency action or analysis.
F. Executive Order 12988: Civil Justice Reform
Section 3 of E.O. 12988 contains requirements for Federal agencies
promulgating new regulations or reviewing existing regulations to
minimize litigation by eliminating drafting errors and ambiguity,
providing a clear legal standard for affected conduct rather than a
general standard, promoting simplification, and reducing burden. MSHA
has reviewed the final rule and has determined that it meets the
applicable standards provided in E.O. 12988 to minimize litigation and
undue burden on the Federal court system. Accordingly, the final rule
meets the applicable standards provided in E.O. 12988, Civil Justice
Reform.
G. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
E.O. 13045 requires Federal agencies submitting covered regulatory
actions to OMB's Office of Information and Regulatory Affairs (OIRA)
for review, pursuant to E.O. 12866, to provide OIRA with (1) an
evaluation of the environmental health or safety effects that the
planned regulation may have on children, and (2) an explanation of why
the planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the agency. In E.O.
13045, ``covered regulatory action'' is defined as rules that may (1)
be significant under E.O. 12866, supplemented by E.O. 14094, (i.e., a
rulemaking that has an annual effect on the economy of $200 million or
more or would adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local or tribal governments or
communities), and (2) concern an environmental health risk or safety
risk that an agency has reason to believe may disproportionately affect
children. Environmental health risks and safety risks refer to risks to
health or to safety that are attributable to products or substances
that the child is likely to come in to contact with or ingest through
air, food, water, soil, or product use or exposure.
This final rule is not subject to E.O. 13045 because it is not
significant under section 3(f)(1) of E.O. 12866, and because it does
not concern an environmental health risk or safety risk that may
disproportionately affect children. This final rule is requiring that
operators develop, implement, and update a written safety program for
surface mobile equipment (excluding belt conveyors) at surface mines
and surface areas of underground mines. The written safety program
includes actions operators will take to identify hazards and risks to
reduce accidents, injuries, and fatalities related to surface mobile
equipment. This rule does not concern risks to health or to safety that
are attributable to products or substances that children are likely to
come in to contact with or ingest through air, food, water, soil, or
product use or exposure. Accordingly, E.O. 13045 requires no further
Agency action or analysis.
H. Executive Order 13132: Federalism
MSHA has determined that the final rule does not have federalism
implications because it does not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Accordingly, E.O. 13132 requires no
further Agency action or analysis.
I. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
MSHA has determined that the final rule does not have tribal
implications because it does not have substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
Government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes.
Accordingly, E.O. 13175 requires no further Agency action or analysis.
J. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
E.O. 13211 requires agencies to publish a Statement of Energy
Effects for ``significant energy actions'' which are agency actions
that are ``likely to have a significant adverse effect on the supply,
distribution, or use of energy'' including a ``shortfall in supply,
price increases, and increased use of foreign supplies.'' MSHA reviewed
the final rule for its impact on the production of coal and uranium
mining. The final rule results in annualized costs of approximately
$12.6 million (in 2021 dollars, undiscounted) to covered surface mines
and surface areas of underground mines, though most of these costs will
be incurred in MNM mining that does not involve uranium mining (nor
coal mining). MSHA therefore determined that such costs do not have any
substantive effect on coal and uranium mining. Because the final rule
does not result in a significant adverse effect on the supply,
distribution, or use of energy, it is not a ``significant energy
action.'' Accordingly, E.O. 13211 requires no further Agency action or
analysis.
K. Executive Order 13985: Advancing Racial Equity and Support for
Underserved Communities Through the Federal Government; Executive Order
14091: Further Advancing Racial Equity and Support for Underserved
Communities Through the Federal Government
E.O. 13985 provides ``that the Federal Government should pursue a
comprehensive approach to advancing equity for all, including people of
color and others who have been historically underserved, marginalized,
and adversely affected by persistent poverty and inequality.'' E.O.
13985 defines ``equity'' as ``consistent and systematic fair, just, and
impartial treatment of all individuals, including individuals who
belong to underserved communities that have been denied such treatment,
such as Black, Latino, and Indigenous and Native American persons,
Asian Americans and Pacific Islanders and other persons of color;
members of religious minorities; lesbian, gay, bisexual, transgender,
and queer (LGBTQ+) persons; persons with disabilities; persons who live
in rural areas; and persons otherwise adversely affected by persistent
poverty or inequality.'' To assess the impact of the final rule on
equity, MSHA considered two factors: (1) the racial/ethnic distribution
in mining in NAICS 212
[[Page 87925]]
(which does not include oil and gas extraction) compared to the racial/
ethnic distribution of the U.S. workforce (Table VI-1), and (2) the
extent to which mining may be concentrated within general mining
communities (Table VI-2).
In 2008, NIOSH conducted a survey of mines, which entailed sending
a survey packet to 2,321 mining operations to collect a wide range of
information, including demographic information on miners. NIOSH's 2012
report, entitled ``National Survey of the Mining Population: Part I:
Employees'' reported the findings of this survey.\22\ Race and
ethnicity information about U.S. mine workers is presented in Table VI-
1. Of all mine workers, including miners as well as administrative
employees at mines, 93.4 percent of mine workers were white, compared
to 80.6 percent of all U.S workers.\23\ There were larger percentages
of American Indian or Alaska Native and Native Hawaiian or Other
Pacific Islander people in the mining industry compared to all U.S.
workers, while there were smaller percentages of Asian, Black or
African American, and Hispanic/Latino people in the mining industry
compared to all U.S. workers.
---------------------------------------------------------------------------
\22\ National Institute for Occupational Safety and Health
(NIOSH), ``National Survey of the Mining Population: Part I:
Employees,'' June 2012. <a href="https://www.cdc.gov/niosh/mining/works/coversheet776.html">https://www.cdc.gov/niosh/mining/works/coversheet776.html</a>.
\23\ National data on workers by race were not available for the
year 2008; comparable data for 2012 are provided for comparison
under the assumption that there would not be major differences in
distributions between these 2 years.
---------------------------------------------------------------------------
Section 6 of E.O. 14091 further provides that agencies are ``to
create equitable economic opportunity and advance projects that build
community wealth'' in rural America. The final rule helps miners in
rural areas by improving safety and health at their mines. Table VI-2
shows that there are 22 mining communities, defined as counties where
at least 2 percent of the population is working in the mining
industry.\24\ Although the total population in this table represents
only 0.15 percent of the U.S. population, it represents 12.0 percent of
all mine workers. The average per capita income in these communities in
2020, $47,977,\25\ was lower than the U.S. average, $59,510,
representing 80.6 percent of the U.S. average. However, each county's
average per capita income varies substantially, ranging from 56.4
percent of the U.S. average to 146.8 percent.
---------------------------------------------------------------------------
\24\ Although 2 percent may appear to be a small number for
identifying a mining community, one might consider that if the
average household with one parent working as a miner has five
members in total, then approximately 10 percent of households in the
area would be directly associated with mining. While 10 percent may
also appear small, this refers to the county. There are likely
particular areas that have a heavier concentration of mining
households.
\25\ This is a simple average rather than a weighted average by
population.
---------------------------------------------------------------------------
This final rule is requiring that operators develop, implement, and
update a written safety program for surface mobile equipment (excluding
belt conveyors) at surface mines and surface areas of underground
mines. The written safety program includes actions operators will take
to identify hazards and risks to reduce accidents, injuries, and
fatalities related to surface mobile equipment. MSHA determined that
the final rule is consistent with the goals of E.O. 13985 and supports
the advancement of equity for all workers at mines, including those who
are historically underserved and marginalized.
Table VI-1--Racial and Ethnic Distribution of Miners *
[2012]
----------------------------------------------------------------------------------------------------------------
As a percent of total
Number of miners in miners who self- Percent of all workers in
mining (except oil and identified in these the United States for
gas) (NAICS 212) categories (latest data comparison (latest data
for 2008) 2012) ****
----------------------------------------------------------------------------------------------------------------
Ethnicity:
Hispanic/Latino............. 26,622 12.1 15.0
Non-Hispanic or Latino...... 192,839 87.9 85.0
-------------------------------------------------------------------------------
Total................... 219,461 100.0 100.0
----------------------------------------------------------------------------------------------------------------
Race: **
American Indian or Alaska 4,050 1.9 0.8
Native ***.................
Asian....................... 183 0.1 5.4
Black or African American... 8,893 4.3 13.0
Native Hawaiian or Other 634 0.3 0.2
Pacific Islander...........
White....................... 194,016 93.4 80.6
-------------------------------------------------------------------------------
Total................... 207,776 100.0 100.0
----------------------------------------------------------------------------------------------------------------
* The term ``miners'' includes miners and other workers at mines such as administrative employees.
** Does not include miners who did not self-report in one of these categories. Some of the surveyed miners may
not have self-reported in one of these categories if they are affiliated with more than one race, or if they
chose not to respond to this survey question.
*** Includes miners who self-identified as an American Indian or Alaskan Native as a single race, not in
combination with any other races. No other data on miners in this racial group were available from this
source. In other employment statistics often reported on American Indians and Alaska Natives, their population
is based on self-reporting as being American Indian or Alaska Native in combination with any other race, which
has resulted in the reporting of much higher employment levels. See BLS, Monthly Labor Review, ``Alternative
Measurements of Indian Country: Understanding Their Implications for Economic, Statistical, and Policy
Analysis,'' <a href="https://www.bls.gov/opub/mlr/2021/article/alternative-measurements-of-indian-country.htm">https://www.bls.gov/opub/mlr/2021/article/alternative-measurements-of-indian-country.htm</a>.
**** More recent data from the 2020 Decennial Census were not available in September 2022.
Sources: National Institute for Occupational Safety and Health (NIOSH). 2012a. National Survey of the Mining
Population Mining Publication: Part 1: Employees, DHHS (NIOSH) Pub. No. 2012-152, June 2012; U.S. Census
Bureau, 2012 American Community Survey (ACS).
[[Page 87926]]
Table VI-2--Mining Counties: Counties in the United States With Relatively High Concentrations of Miners *
[At least 2 percent of the county population]
----------------------------------------------------------------------------------------------------------------
Estimated
Number of miners Population of percent of
Number County (first quarter county (latest population
2022) data in 2021) who are
miners
----------------------------------------------------------------------------------------------------------------
1................................ White Pine County, 1,288.............. 9,182.............. 14.0
Nevada.
2................................ Pershing County, 771................ 6,741.............. 11.4
Nevada.
3................................ Humboldt County, 1,549.............. 17,648............. 8.8
Nevada.
4................................ Campbell County, 3,547.............. 46,401............. 7.6
Wyoming.
5................................ Winkler County, 513................ 7,415.............. 6.9
Texas.
6................................ Mercer County, 555................ 8,323.............. 6.7
North Dakota.
7................................ Chase County, 166................ 2,598.............. 6.4
Kansas.
8................................ Shoshone County, 723................ 13,612............. 5.3
Idaho.
9................................ Logan County, West 1,643.............. 31,909............. 5.1
Virginia.
10............................... Sweetwater County, 2,050.............. 41,614............. 4.9
Wyoming.
11............................... Glasscock County, 56................. 1,149.............. 4.9
Texas.
12............................... Livingston County, 431................ 8,959.............. 4.8
Kentucky.
13............................... Buchanan County, 946................ 19,816............. 4.8
Virginia.
14............................... McDowell County, 660................ 18,363............. 3.6
West Virginia.
15............................... Big Horn County, 413................ 11,632............. 3.6
Wyoming.
16............................... Sevier County, Utah 601................ 21,906............. 2.7
17............................... Boone County, West 582................ 21,312............. 2.7
Virginia.
18............................... Moffat County, 349................ 13,185............. 2.6
Colorado.
19............................... Nye County, Nevada. 1,062.............. 43,946............. 2.4
20............................... Raleigh County, 1,647.............. 73,771............. 2.2
West Virginia.
21............................... Wyoming County, 456................ 21,051............. 2.2
West Virginia.
22............................... Elko County, Nevada 1,090.............. 53,915............. 2.0
----------------------------------------------------------------------------------------------------------------
Total................................................. 20,963............. 494,448............ 4.2
----------------------------------------------------------------------------------------------------------------
All U.S. Counties..................................... 174,387............ 331,893,745........ ..............
Miners in Mining Counties as a Percent of All U.S. 12.0%.............. ................... ..............
Miners.
Population of Mine Counties as a Percent of U.S. ................... 0.15%.............. ..............
Population.
----------------------------------------------------------------------------------------------------------------
* The term ``miners'' includes miners and other workers at mines such as administrative employees.
Source: Bureau of Labor Statistics (BLS), Quarterly Employment and Wages First Quarter 2022 (2022); Bureau of
Economic Analysis, Personal Income by County, Metro, and Other Areas 2020 (2020); U.S. Census Bureau, ``Annual
Estimates of the Resident Population for Counties: April 1, 2020, to July 1, 2021 (CO-EST2021-POP).''
<a href="http://Census.gov">Census.gov</a>. Accessed DATE. Available at: <a href="https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html">https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html</a>; U.S. Census Bureau, Quick Facts, available at: <a href="https://www.census.gov/quickfacts/fact/table/US/PST045221">https://www.census.gov/quickfacts/fact/table/US/PST045221</a> table/US/PST045221 (accessed DATE).
VII. References
American Society of Safety Professionals (ASSP), Occupational Health
and Safety Management Systems, ANSI/ASSP Z10-2012, (R2017).
International Standards Organization (ISO), Occupational Health and
Safety Management Systems--Requirements With Guidance for Use (ISO
45001:2018).
National Mining Association, CORESafety and Health Management System
U.S Department of Labor, Occupational Safety and Health
Administration (OSHA), Recommended Practices for Safety and Health
Programs (<a href="https://www.osha.gov/safety-management">https://www.osha.gov/safety-management</a>).
U.S. Department of Transportation, 49 CFR part 270--System Safety
Program.
List of Subjects
30 CFR Parts 56 and 57
Metal and nonmetal mining, Mine safety and health, Surface mining,
Mobile equipment safety program, Reporting and recordkeeping
requirements, and Underground mining.
30 CFR Part 77
Coal mining, Mine safety and health, Surface mining, Mobile
equipment safety program, Reporting and recordkeeping requirements, and
Underground mining.
Christopher J. Williamson
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, chapter I of title
30 of the Code of Federal Regulations is amended as follows:
SUBCHAPTER K--METAL AND NONMETAL MINE SAFETY AND HEALTH
PART 56--SAFETY AND HEALTH STANDARDS--SURFACE METAL AND NONMETAL
MINES
0
1. The authority citation for part 56 continues to read as follows:
Authority: 30 U.S.C. 811.
0
2. Add subpart T to part 56 to read as follows:
Subpart T--Safety Program for Surface Mobile Equipment
Sec.
56.23000 Purpose and scope.
56.23001 Definitions.
56.23002 Written safety program.
56.23003 Requirements for written safety program.
56.23004 Record and inspection.
[[Page 87927]]
Sec. 56.23000 Purpose and scope.
This subpart requires operators to develop, implement, and update a
written safety program for surface mobile equipment to reduce the
number and rates of accidents, injuries, and fatalities. This subpart
applies to surface mobile equipment at surface metal and nonmetal
mines. The purpose of this safety program is to promote and support a
positive safety culture and improve miners' safety at the mine.
Sec. 56.23001 Definitions.
The following definitions apply in this subpart--
Responsible person means a person with authority and responsibility
to evaluate and update a written safety program for surface mobile
equipment.
Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved,
and any powered equipment that transports people, equipment, or
materials, excluding belt conveyors, at surface metal and nonmetal
mines.
Sec. 56.23002 Written safety program.
(a) Each operator shall develop and implement a written safety
program for surface mobile equipment that contains the elements in this
subpart, no later than July 17, 2024.
(b) Each operator shall designate at least one responsible person
to evaluate and update the written safety program, no later than July
17, 2024.
Sec. 56.23003 Requirements for written safety program.
(a) The operator shall develop and implement a written safety
program that includes actions the operator will take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that can enhance safety at the mine and evaluate whether
to adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
(b) The responsible person shall evaluate and update the written
safety program at least annually, or as mining conditions or practices
change that may adversely affect the health and safety of miners or
other persons, as accidents or injuries occur, or as surface mobile
equipment changes or modifications are made.
(c) The operator shall solicit input from miners and their
representatives in developing and updating the written safety program.
Sec. 56.23004 Record and inspection.
(a) The operator shall make the written safety program available
for inspection by authorized representatives of the Secretary and
provide a copy upon request.
(b) The operator shall make the written safety program available
for inspection by miners and their representatives and, at no cost,
provide a copy upon request.
PART 57--SAFETY AND HEALTH STANDARDS--UNDERGROUND METAL AND
NONMETAL MINES
0
3. The authority citation for part 57 continues to read as follows:
Authority: 30 U.S.C. 811.
0
4. Add subpart U to part 57 to read as follows:
Subpart U--Safety Program for Surface Mobile Equipment
Sec.
57.23000 Purpose and scope.
57.23001 Definitions.
57.23002 Written safety program.
57.23003 Requirements for written safety program.
57.23004 Record and inspection.
Sec. 57.23000 Purpose and scope.
This subpart requires operators to develop, implement, and update a
written safety program for surface mobile equipment to reduce the
number and rates of accidents, injuries, and fatalities. This subpart
applies to surface mobile equipment at surface areas of underground
metal and nonmetal mines. The purpose of this safety program is to
promote and support a positive safety culture and improve miners'
safety at the mine.
Sec. 57.23001 Definitions.
The following definitions apply in this subpart--
Responsible person means a person with authority and responsibility
to evaluate and update a written safety program for surface mobile
equipment.
Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved,
and any powered equipment that transports people, equipment, or
materials, excluding belt conveyors, at surface areas of underground
metal and nonmetal mines.
Sec. 57.23002 Written safety program.
(a) Each operator shall develop and implement a written safety
program for surface mobile equipment that contains the elements in this
subpart, no later than July 17, 2024.
(b) Each operator shall designate at least one responsible person
to evaluate and update the written safety program, no later than July
17, 2024.
Sec. 57.23003 Requirements for written safety program.
(a) The operator shall develop and implement a written safety
program that includes actions the operator will take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that can enhance safety at the mine and evaluate whether
to adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
(b) The responsible person shall evaluate and update the written
safety program at least annually, or as mining conditions or practices
change that may adversely affect the health and safety of miners or
other persons, as accidents or injuries occur, or as surface mobile
equipment changes or modifications are made.
(c) The operator shall solicit input from miners and their
representatives in developing and updating the written safety program.
Sec. 57.23004 Record and inspection.
(a) The operator shall make the written safety program available
for inspection by authorized representatives of the Secretary and
provide a copy upon request.
(b) The operator shall make the written safety program available
for inspection by miners and their representatives and, at no cost,
provide a copy upon request.
SUBCHAPTER O--COAL MINE SAFETY AND HEALTH
PART 77--MANDATORY SAFETY STANDARDS, SURFACE COAL MINES AND SURFACE
WORK AREAS OF UNDERGROUND COAL MINES
0
5. The authority citation for part 77 continues to read as follows:
Authority: 30 U.S.C. 811.
[[Page 87928]]
0
6. Add subpart V to part 77 to read as follows:
Subpart V--Safety Program for Surface Mobile Equipment
Sec.
77.2100 Purpose and scope.
77.2101 Definitions.
77.2102 Written safety program.
77.2103 Requirements for written safety program.
77.2104 Record and inspection.
Sec. 77.2100 Purpose and scope.
This subpart requires operators to develop, implement, and update a
written safety program for surface mobile equipment to reduce the
number and rates of accidents, injuries, and fatalities. This subpart
applies to surface mobile equipment at surface coal mines and surface
work areas of underground coal mines. The purpose of this safety
program is to promote and support a positive safety culture and improve
miners' safety at the mine.
Sec. 77.2101 Definitions.
The following definitions apply in this subpart--
Responsible person means a person with authority and responsibility
to evaluate and update a written safety program for surface mobile
equipment.
Surface mobile equipment means wheeled, skid-mounted, track-
mounted, or rail-mounted equipment capable of moving or being moved,
and any powered equipment that transports people, equipment, or
materials, excluding belt conveyors, at surface coal mines and surface
work areas of underground coal mines.
Sec. 77.2102 Written safety program.
(a) Each operator shall develop and implement a written safety
program for surface mobile equipment that contains the elements in this
subpart, no later than July 17, 2024.
(b) Each operator shall designate at least one responsible person
to evaluate and update the written safety program, no later than July
17, 2024.
Sec. 77.2103 Requirements for written safety program.
(a) The operator shall develop and implement a written safety
program that includes actions the operator will take to:
(1) Identify and analyze hazards and reduce the resulting risks
related to the movement and the operation of surface mobile equipment;
(2) Develop and maintain procedures and schedules for routine
maintenance and non-routine repairs for surface mobile equipment;
(3) Identify currently available and newly emerging feasible
technologies that can enhance safety at the mine and evaluate whether
to adopt them; and
(4) Train miners and other persons at the mine necessary to perform
work to identify and address or avoid hazards related to surface mobile
equipment.
(b) The responsible person shall evaluate and update the written
safety program at least annually, or as mining conditions or practices
change that may adversely affect the health and safety of miners or
other persons, as accidents or injuries occur, or as surface mobile
equipment changes or modifications are made.
(c) The operator shall solicit input from miners and their
representatives in developing and updating the written safety program.
Sec. 77.2104 Record and inspection.
(a) The operator shall make the written safety program available
for inspection by authorized representatives of the Secretary and
provide a copy upon request.
(b) The operator shall make the written safety program available
for inspection by miners and their representatives and, at no cost,
provide a copy upon request.
[FR Doc. 2023-27640 Filed 12-19-23; 8:45 am]
BILLING CODE 4520-43-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.