Health Standards for Occupational Noise Exposure
Federal RegisterDec 17, 1996
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SUMMARY: This proposed rule would replace MSHA's existing standards for
occupational noise exposure in coal mines and in metal and nonmetal
mines with a single new standard applicable to all mines.
This action is part of the Agency's ongoing review of its safety
and health standards. The review found that the Agency's existing noise
standards, which had been promulgated more than 20 years ago, are
inadequate to prevent the occurrence of occupational noise-induced
hearing loss (NIHL) among miners. There remains a significant risk to
miners of material impairment of health from workplace exposure to
noise over a working lifetime. The risk becomes significant when
exposure exceeds an 8-hour time-weighted average of 85 dBA.
DATES: Comments must be received on or before February 18, 1997. Submit
written comments on the information collection requirements by February
18, 1997.
ADDRESSES: Comments on the proposed rule may be transmitted by
electronic mail, fax, or mail. Comments by electronic mail must be
clearly identified as such and sent to this e-mail address:
[email protected]. Comments by fax must be clearly identified as such and
sent to: Mine Safety and Health Administration, Office of Standards,
Regulations, and Variances, 703-235-5551. Send mail comments to: Mine
Safety and Health Administration, Office of Standards, Regulations, and
Variances, Room 631, 4015 Wilson Boulevard, Arlington, VA 22203-1984.
Interested persons are encouraged to supplement written comments with
computer files or disks; please contact the Agency with any questions
about format. Written comments on the information collection
requirements may be submitted directly to the Office of Information and
Regulatory Affairs, OMB New Executive Office Building, 725 17th Street,
NW., Rm. 10235, Washington, D.C. 20503, Attn: Desk Officer for MSHA.
FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director; MSHA;
Office of Standards, Regulations, and Variances; 703-235-1910.
SUPPLEMENTARY INFORMATION:
Comprehensive Summary
The proposal would retain the existing permissible exposure level
(PEL) but establish a new ``action level''. The action level would be
an 8-hour time-weighted average of 85 dBA; the PEL would remain an 8-
hour time-weighted average of 90 dBA.
Whenever a miner's noise exposure exceeds the action level, the
miner would receive special training in noise protection.
When the miner's noise exposure exceeds the action level, but is
below the PEL, the operator would be required to make annual
audiometric (hearing) examinations available to the miner through
enrollment in a hearing conservation program, and to provide properly
fitted hearing protection in three circumstances--before the initial
hearing examination, if a significant threshold shift in hearing acuity
is detected, and at any other time upon miner request. If it will take
more than 6 months for the initial examination because of the need to
wait for a mobile test van, or a significant threshold shift in hearing
acuity is detected, the operator would also be required to ensure the
miner uses the provided hearing protection.
If a miner's exposure exceeds the PEL, the proposal would require
that the mine operator use all engineering and administrative controls
which it is feasible for that mine operator to utilize to reduce noise
to the PEL. The proper combination of engineering and administrative
controls would be left to the discretion of the mine operator.
Should the use of all feasible engineering and administrative
controls not reduce a miner's noise exposure to the PEL, the operator
would have to use those controls to lower exposure to as close to the
PEL as is feasible. In addition, the operator would have to provide any
such miner properly fitted hearing protection, ensure the miner uses
such protection, and ensure the miner takes the annual audiometric
examinations. Should a miner's exposure exceed an 8-hour time-weighted
average of 105 dBA, the operator must ensure the miner is provided and
uses both a plug and a muff type protector.
MSHA recognizes that successful implementation of these new uniform
health rules will require training of MSHA personnel and guidance to
miners and mine operators, particularly small mine operators.
Accordingly, the Agency proposes that the final rule take effect one
year after the date of publication of the final rule, and solicits
comments on whether a phased-in approach would permit some elements of
the new rule to be implemented more quickly.
The Supplementary Information accompanying this notice is detailed.
Accordingly, to facilitate review and comment by the mining community,
this material begins with questions and answers summarizing key points
about the proposal. Included are two charts comparing the main features
of the proposal to existing standards in the mining industry and those
applicable to other industries under the Occupational Safety and Health
Act. Also included are MSHA's estimates of the impacts of the proposal
from the Agency's preliminary Regulatory Impact Analysis (RIA), copies
of which are available from the Agency.
I. Questions and Answers, Required Notices, and History
(A) Questions and Answers About Key Features of this Proposal
(1) What Are the Key Features of This Proposal?
MSHA has developed a proposal that it estimates can reduce by two-
thirds the number of miners currently projected to suffer a material
impairment of their hearing--but which it estimates can be implemented
at a cost of less than $9 million to the mining industry as a whole.
The focus of the proposal is on the use of the most effective means
to control noise--engineering controls to eliminate the noise, or
administrative controls (e.g. rotating miner duties) to minimize noise
exposure--whenever feasible.
Specifically, the proposal requires that an operator use all
feasible engineering or administrative controls to reduce noise to the
PEL--a TWA8 of 90 dBA. While MSHA has determined there is a
significant risk of harm at a TWA8 of 85 dBA, the Agency believes
that it may not be feasible at this time for the mining industry to
control noise to this level using engineering and administrative
controls.
The proposal would require that steps be taken when noise exceeds a
TWA8 of 85 dBA, the ``action level'', to prevent hearing loss.
Operators would have to provide special instruction in noise, make
annual hearing examinations available, and provide properly fitted
hearing protection--before the initial examination, if a significant
threshold shift in hearing acuity is detected, and at any other time
upon a miner's
[[Page 66349]]
request. If it will take more than 6 months to take the initial
examination because of the need to wait for a mobile test van, or if a
significant threshold shift is detected, an operator would also be
required to ensure that the miner uses the hearing protection.
The proposal also provides for supplemental protection in those
cases in which individual operators are unable to reduce noise to the
PEL through the use of all feasible engineering or administrative
controls. The operator must ensure any miner so exposed takes the
annual hearing examinations, must provide properly fitted hearing
protection to all miners so exposed, and must ensure the hearing
protection is used by all miners so exposed.
The focus on engineering and administrative controls would
significantly change the way noise is addressed in the coal mining
industry. Currently, hearing protectors generally are allowed when a
coal miner's noise exposure exceeds the PEL. The proposal would require
a coal mine operator to use all feasible engineering and administrative
controls to reduce exposure to the PEL--the practice currently required
in the rest of the mining industry. MSHA estimates that this change
alone can prevent 3 out of every 5 impairments projected to occur due
to occupational noise exposure in the coal mining industry.
While this change would cost the coal mining industry more money
for implementation of engineering controls, MSHA estimates these costs
would be significantly offset by the paperwork savings the coal mining
industry will accrue under the proposal. In particular, MSHA is
proposing to replace the costly, paperwork-intensive requirements for
biannual coal miner noise exposure surveys, supplemental noise surveys,
calibration reports, survey reports, and survey certifications with a
performance-oriented requirement that mine operators establish a
monitoring program that effectively evaluates miner exposures. MSHA
believes the existing requirements have not been effective.
Other parts of the proposal would change current practices
throughout the mining industry. No actions are currently required if
noise exposures are below the PEL. Moreover, the proposal requires, for
the first time, certain explicit protections if an operator cannot
feasibly reduce noise exposures to the PEL through the use of all
feasible engineering and administrative controls.
MSHA's proposal also incorporates revisions warranted by our
increased understanding of the effects of noise, to the extent that the
Agency determined such changes would be feasible for the mining
industry to implement. For example, to reflect that exposure to sound
levels above 80 dBA is now generally recognized as harmful, the
proposal would include exposure to such sound levels in determining a
miner's noise dose. Such adjustment will result in more miners than at
present being determined to have noise exposures over the PEL, but the
Agency has determined that the industry can feasibly accommodate this
change.
(2) Do I Need To Read This Entire Notice To Understand the Proposal?
The Agency hopes these questions and answers will provide the
information most of the mining community will want. Nevertheless, MSHA
is accompanying publication of this proposed rule with a detailed
discussion of the information it has considered in developing the
proposal. That way, those interested in a particular topic can have the
benefit of the Agency's thinking in developing their comments.
The information is divided into five parts. Part I includes a
review of the projected impacts of the proposal, including benefits,
costs and paperwork, taken from the Agency's preliminary RIA. Part II
is the Agency's analysis of the current risks to miners from
occupational noise exposure. Part III is a section-by-section
discussion of the elements of the proposal. Part IV is an analysis of
the technological and economic feasibility of the proposal and of key
alternatives considered by the Agency. Part V is a complete list of
publications referenced by the Agency.
(3) What Are the Projected Impacts of the Proposed Rule?
The estimated benefits and costs and paperwork requirements of the
proposed rule are summarized in the following table, ``Summary of Key
Impacts of MSHA's Noise Proposal,'' followed by a brief explanation.
The Agency's estimates, and a complete description of the methodology
used to obtain them, are contained in the Agency's preliminary RIA, a
copy of which can be obtained from the Agency.
Summary of Key Impacts of MSHA's Noise Proposal *
----------------------------------------------------------------------------------------------------------------
Coal Metal/nonmetal All mining
----------------------------------------------------------------------------------------------------------------
Benefits:
% hearing impairments avoided...................... 81 57 67
# miners saved from hearing impairment............. 15,300 15,300 30,600
Annual costs (in millions of dollars).................. $0.3 $8 $8.3
Paperwork burden hours added/saved..................... (88,740) 73,755 (14,985)
----------------------------------------------------------------------------------------------------------------
* Rounded.
The analysis of benefits compares the number of miners who are
projected to incur a material impairment of their hearing under the
current rule with the number of miners who are projected to incur such
an impairment under the proposed rule. Overall for the mining
community, the proposal would reduce the risk of material impairment by
67%. More than 30,000 miners otherwise expected to develop a material
impairment would be spared.
As displayed in the chart entitled ``Benefits of MSHA Noise
Proposal in Saving Miners From Hearing Impairment,'' the most
significant benefits are expected in the coal sector. Engineering and
administrative controls are expected to significantly reduce noise
exposures above the PEL. A significant benefit also accrues from the
establishment of an action level: based on the assumption that most
employees exposed to noise between the action level and the PEL will
elect to use hearing protection for the first time at such levels.
While the metal and nonmetal mining industry already uses engineering
controls above the PEL, additional benefits are anticipated in this
regard; primarily because the change in the way noise dose would be
measured under the proposal would require the use of engineering and
administrative controls in more cases than at present. Like coal, a
benefit in
[[Page 66350]]
this sector is anticipated from the establishment of an action level.
As indicated by this chart, MSHA projects that even after
implementation of the proposal some miners will continue to develop a
material impairment of hearing. This is of serious concern to the
Agency. The Agency believes, however, that the mining industry may not
be able at this time to feasibly take actions which would eliminate the
remaining risk (see response to Questions 9 and 13 on this point). MSHA
is seeking comments on this issue.
Benefits of MSHA Noise Proposal in Saving Miners From Hearing Impairment
------------------------------------------------------------------------
Miners
------------------------------------------------------------------------
Coal:
Current expected impairment.. 15% of miners........... 18,947
Saved by eng/admin controls.. 58% of projected 11,072
impairment.
Saved by hearing protectors.. 22% of projected 4,232
impairment.
Saved by proposal............ 81% of projected 15,304
impairment.
Remaining expected impairment 3% of miners............ 3,643
Metal and Nonmetal:
Current expected impairment.. 13% of miners........... 26,977
Saved by eng/admin controls.. 11% of projected 2,693
impairment.
Saved by hearing protectors.. 46% of projected 12,320
impairment.
Saved by proposal............ 57% of projected 15,283
impairment.
Remaining expected impairment 6% of miners............ 11,694
Mining Industry as a Whole:
Current expected impairment.. 14% of miners........... 45,924
Saved by eng/admin controls.. 31% of projected 14,035
impairment.
Saved by hearing protectors.. 36% of projected 16,552
impairment.
Saved by proposal............ 67% of projected 30,587
impairment.
Remaining expected impairment 5% of miners............ 15,377
------------------------------------------------------------------------
MSHA's estimates of cost follow a standard approach in which
initial costs of compliance (like equipment purchase costs) are
amortized over ten years at seven percent and added to costs that recur
each year. The assumptions on what controls would be needed, how many
hours have to be spent on particular tasks, and the costs of the
personnel performing various tasks are set forth in detail in the
Agency's preliminary RIA.
MSHA estimates that the proposed rule would increase the mining
industry's costs by approximately $8.3 million annually for the first
10 years. MSHA estimates the proposed rule will cost the coal mining
industry about $300,000 a year; because while there will be additional
costs under the proposal, they will be significantly offset by the
elimination of the requirements for biannual noise surveys of coal
miners. Costs to the metal and nonmetal industry would rise by about $8
million annually.
The most costly aspect of the proposed rule would be the provision
of audiometric examinations--about $3.6 million, with about $2 million
of that borne by the metal and nonmetal mining industry. The provision
of engineering controls is estimated to cost about $3.5 million, with
about $2.2 million of this borne by the coal mining industry--which
would no longer be permitted, as at present, to substitute hearing
protectors for engineering or administrative controls. MSHA's costing
assumptions are described in its preliminary RIA; comments on this
methodology are being solicited.
The table entitled ``Cost Impacts of MSHA Noise Proposal''
summarizes the net annual costs of the proposal's requirements. An
explanation of the requirements is included in the questions and
answers that follow.
Cost Impacts of MSHA Noise Proposal
----------------------------------------------------------------------------------------------------------------
Task Total cost M/NM cost Coal cost
----------------------------------------------------------------------------------------------------------------
Engineering Controls............................................ $3,475,700 $1,289,000 $2,186,700
Dose Determination.............................................. (1,928,550) 1,734,895 (3,663,445)
Notification.................................................... 45,910 28,085 17,825
Record of Noise Surveys, et al.................................. (1,653,565) .............. (1,653,565)
Administrative Controls......................................... 16,595 6,580 10,015
HPDs (provide, selection, fit).................................. 926,710 792,560 134,150
Training........................................................ 1,834,560 1,071,140 763,420
Audiograms (base, annual); notice to miners..................... 3,574,030 1,964,970 1,609,060
Audiometric Test Procedures..................................... 195,835 113,835 82,000
Evaluation of Audiogram......................................... 892,215 492,215 400,000
Follow-up Evaluation............................................ 145,780 78,865 66,915
Follow-up Corrective Measures................................... 99,440 52,455 46,985
Notification of Results......................................... 138,710 74,340 54,370
Access to Records............................................... 23,710 18,865 4,845
Transfer of Records............................................. 5,040 2,950 2,090
Contractors..................................................... 541,640 316,320 225,320
-----------------------------------------------
Total..................................................... 8,323,760 8,037,075 286,685
----------------------------------------------------------------------------------------------------------------
MSHA's estimates of paperwork burden hours reflect the requirements
and definitions in the Paperwork Reduction Act. Overall, the proposal
would decrease paperwork requirements in the mining industry by about
14,985 burden hours. This reflects a savings to the coal mining
industry of 88,740 burden hours, as a result of a proposal to eliminate
[[Page 66351]]
existing requirements for biannual surveys of coal miners and other
various reports. The metal and nonmetal mining sector would have a net
increase of about 73,755 burden hours. The chart entitled ``Paperwork
Impacts of MSHA Noise Proposal'' summarizes the projected paperwork
burdens.
Paperwork Impacts of MSHA Noise Proposal
----------------------------------------------------------------------------------------------------------------
Paperwork requirement and associated
Section tasks Coal M/NM Total
----------------------------------------------------------------------------------------------------------------
62.120............................ Evaluate miners' noise exposure; (140,545) 5,295 (135,250)
notify miner of overexposure,
prepare and post administrative
controls; give miners copy of
administrative controls.
62.130............................ Prepare and file a training 4,000 6,270 10,270
certification.
62.140............................ Perform audiograms, notify miners to 30,655 39,275 69,930
appear for testing and need to avoid
high noise.
62.150............................ Compile an audiometric test record, 3,930 5,245 9,175
obtain a certification.
62.160............................ Provide information and audiometric 9,340 12,015 21,455
test record, perform audiometric
retests.
62.170............................ Perform audiometric evaluations and 475 570 1,045
follow-up evaluations.
62.180............................ Prepare a training certification for 335 365 700
retrained miners, review
effectiveness of engineering and
administrative controls.
62.190............................ Inform miner of test results, inform 2,715 3,585 6,300
miner of STS.
62.200............................ Provide access to records............ 255 1,000 1,255
62.210............................ Transfer records..................... 100 135 235
All............................... (any discrepancies due to rounding).. (88,740) 73,755 (14,985)
----------------------------------------------------------------------------------------------------------------
(4) What Special Consideration Did MSHA Give to Alternatives for the
Smallest Mines?
MSHA estimates that as a result of this proposal, metal and
nonmetal mines with less than 20 miners would incur an average cost
increase of about $500 per year in annual costs and annualized first
year costs. Coal mines with less than 20 miners would have an average
savings per mine of about $30, reflecting the elimination of the
numerous survey and paperwork requirements in the current noise rules
for the coal sector.
MSHA compared the proposed costs for small mines in each sector to
the estimated revenues and profits for small mines in each sector. MSHA
did this at various size levels. In each case, the costs as a
percentage of revenue are less than 1%, and the costs do not appear to
have any appreciable impact on profits. Accordingly, for the purposes
of the Regulatory Flexibility Act, MSHA has certified that the proposed
rule does not have a significant economic impact on a substantial
number of small entities.
The limited impacts on small mines reflect decisions by MSHA not to
propose more costly regulatory alternatives. In considering regulatory
alternatives for small mines, MSHA must observe the requirements of its
authorizing statute. Section 101(a)(6)(A) of the Mine Act requires the
Secretary to set standards which most adequately assure, on the basis
of the best available evidence, that no miner will suffer material
impairment of health over his/her working lifetime. In addition, the
Mine Act requires that the Secretary, when promulgating mandatory
standards pertaining to toxic materials or harmful physical agents,
consider other factors, such as the latest scientific data in the
field, the feasibility of the standard and experience gained under the
Act and other health and safety laws. Thus, the Mine Act requires that
the Secretary, in promulgating a standard, attain the highest degree of
health and safety protection for the miner, based on the ``best
available evidence,'' with feasibility a consideration.
As a result of this requirement, MSHA seriously considered two
alternatives that would have significantly increased costs for small
mine operators--lowering the PEL to a TWA8 of 85 dBA, and lowering
the exchange rate to 3 dB. In both cases, the evidence in favor of
these approaches was strong. But in both cases, MSHA has tentatively
concluded that it may not be feasible for the mining industry to
accomplish these more protective approaches. The impact of these
approaches on small mine operators was an important consideration in
this regard.
Part IV of this preamble contains a full discussion of MSHA's
preliminary conclusions about these alternatives. The graph labeled
``Effect of Alternative Exchange Rates and PELs on Allowable Exposure
Times at Various Decibel Levels'' provides an indication of what the
Agency's decisions in this regard mean in practice.
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In accordance with the Small Business Regulatory Enforcement and
Fairness Act (SBREFA), MSHA is taking actions to minimize the
compliance burden on small mines. The proposed effective date of the
rule would be a year after final promulgation, to provide adequate time
for small mines to achieve compliance. MSHA will also mail a copy of
the proposed rule to every mine operator which primarily benefits small
mine operators. MSHA is committed to writing the final rule in plain
English so it can be readily understood by miners and mine operators.
The Agency has committed itself to issuance of a compliance guide, and
is inviting comment on whether compliance workshops or other such
approaches would be valuable. (These proposed actions are discussed in
more detail in other Questions and Answers.)
The approximately 350 small sand and gravel or crushed stone
operations run by State, local and tribal governments may also be
interested in MSHA's analysis on the impacts of the proposed rule on
such entities. Such an analysis is required by the Unfunded Mandates
Reform Act of 1995. Like other small metal and nonmetal mines, their
costs for prevention of hearing loss are expected to average about $500
per year. Benefits to these governmental entities include fewer hearing
impairments and reduced workers' compensation costs.
(5) Why Is the Proposed Rule Needed?
MSHA has concluded that the existing rules to protect miners from
workplace noise exposure must be revised because current noise
exposures continue to create a significant risk of material impairment
of health to miners. MSHA estimates that 14% of U.S. miners--about
46,000 of them--can be expected under current exposure conditions to
develop a material impairment of hearing during a working lifetime. The
figures are 15% (19,000) of U.S. coal miners and 13% (27,000) of U.S.
metal and nonmetal miners.
Generally, prolonged exposure to noise over a period of several
years causes permanent damage to the auditory nerve and/or its sensory
components: the higher the noise exposure the more rapid the loss. The
loss may be so gradual, however, that a person may not realize that he
or she is becoming impaired until a substantial amount of hearing is
lost. This damage, known as noise-induced hearing loss or NIHL, is
irreversible, and makes it difficult to hear as well as understand
speech. In addition to the personal and social costs of hearing loss,
the loss of the ability to understand speech can have a significant
impact on miner safety which is highly dependent upon good
communication.
The Agency has carefully analyzed the risk miners currently face of
incurring such harm. What follows is a short summary of MSHA's risk
analysis (the complete analysis is presented as part II of the
Supplemental Information accompanying this notice).
First, the Agency considered the various definitions of impairment
used in the risk analyses in the literature. Three definitions of
impairment have been widely recognized within the scientific community
as useful for the purposes of assessing risk. All three focus on the
risks of acquiring a 25 dB hearing ``level''--the deviation from
audiometric zero. The three accepted approaches differ in that they
examine hearing acuity at a different set of frequencies. For the
purpose of its analysis, MSHA chose the approach that measures hearing
acuity at those frequencies most relevant to the ability to understand
human speech. This is the approach developed in 1972 by the National
Institute for Occupational Safety and Health (NIOSH) and subsequently
used by the Occupational Safety and Health Administration
[[Page 66353]]
(OSHA): a 25 dB hearing level at 1000, 2000 and 3000 Hz. The Agency is
aware that NIOSH is now considering a revised approach that would
include hearing acuity at 4000 Hz, but believes it is inappropriate to
utilize that approach until peer review has validated its utility.
Next, the Agency reviewed the major studies on the level of risk at
different noise exposures. The data consistently indicate that the risk
of developing a material impairment of hearing, as a result of a
working lifetime of occupational exposure, becomes significant when
workplace noise exposures exceed an eight-hour time-weighted average
(TWA8) of 85 dBA. The table entitled ``Excess Risk Estimates''
presents estimates by NIOSH of how the excess risk of developing a
material impairment (using its 1972 definition) varies with exposure
over a working lifetime.
Excess Risk Estimates
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Exposure (TWA8)............. 1
00
Excess Risk................. 0 3% 15% 29% 43% 54%
----------------------------------------------------------------------------------------------------------------
MSHA also reviewed a large body of data on the effects of varying
industrial noise exposures on worker hearing. These studies are
supportive of the same conclusion. MSHA refined its picture of what
occurs at lower sound levels by reviewing a number of other studies,
particularly those of workers in other countries.
To confirm the magnitude of the risks of NIHL among miners, MSHA
asked NIOSH to examine a body of audiometric data collected over the
years tracking hearing acuity among coal miners. The analysis (Franks,
1996) supports the data from the risk studies. It indicates that 90% of
these miners have a hearing impairment by age 50 as compared with only
10% of the general population. Further, Franks stated that miners,
after working 20 to 30 years, could find themselves in life-threatening
situations because safety signals and ``roof talk'' could go unheard.
(For the purposes of the analysis, NIOSH used a definition of hearing
impairment including losses at 4000 Hz; MSHA conducted its own analysis
of the data without the 4000 Hz, and the results are generally
consistent with those of NIOSH).
MSHA also examined other sources of data that might provide direct
confirmation of the risks of hearing loss to miners--comments received
in response to the Agency's Advance Notice of Proposed Rulemaking
(ANPRM), (December 4, 1989, 54 FR 50209), the reports of hearing loss
provided to the Agency by mine operators pursuant to 30 CFR part 50,
and workers' compensation data. In each case, the available data are
too limited to draw any conclusions. The Agency is requesting the
public to provide further information along these lines.
To develop a profile of the mining population at risk, MSHA began
by gathering information on noise exposures in the U.S. mining
industry.
Current exposures appear to be gradually declining in the metal and
nonmetal industry, where engineering or administrative controls are the
primary means of miner protection against NIHL. But the data indicate
that all sectors of the mining industry continue to have a significant
number of overexposures.
Charts II-9 and II-10 display exposure trends based on inspector
samples. Only those samples that exceed the PEL are displayed. For
1995, 14.4% of samples from the metal and nonmetal mining industry, and
22.5% of samples from the coal industry, exceeded the PEL. (Because
they are 3-D graphs, the data points sometimes look lower than they
are; the actual data points can be found in part II, Tables II-9 and
II-10.)
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These figures actually understate truly harmful exposures because
the samples were taken in a way that did not count any exposures to
sound levels below 90 dBA. As discussed herein (see Question 9), MSHA
has concluded that exposures to sound levels above 80 dBA are harmful.
Accordingly, to get a better picture of present harmful miner
exposures, MSHA examined the results of a special survey taking
thousands of
[[Page 66354]]
samples that included sound levels as low as 80 dBA. The results
indicate that 36.8% of coal samples, and 26.9% of the metal and
nonmetal samples would exceed the PEL if the lower, but still harmful,
sound levels are counted in the dose measurement.
To derive a risk profile of miners, the Agency utilized the
exposure data from the survey and the excess risk estimates. (The
methodology for developing the miner risk profile is explained in
detail in the Agency's preliminary RIA. Among other adjustments to the
sample data, MSHA assumed coal miners were currently receiving some
protection from hearing protectors; as a result, the estimates of
miners at excess risk are lower than might be suggested by the
foregoing figures.) Based on its analysis, MSHA estimates that 14% of
U.S. miners--about 46,000 miners--can be expected under current
exposure conditions to develop a material impairment of hearing of
handicapping or disabling proportions during a working lifetime. The
figures are 15% (19,000) of U.S. coal miners as a group and 13%
(27,000) of U.S. metal and nonmetal miners.
The Agency is interested in receiving additional data with respect
to the risks of noise exposure to workers and to the mining population
in particular, as well as comments on its risk methodology and
analysis.
(6) Why Proceed Without Waiting for NIOSH To Issue a New Criteria
Document on Noise Exposure?
As MSHA was preparing this notice for publication, the National
Institute for Occupational Safety and Health (NIOSH) released for peer
review a draft criteria document for occupational noise exposure to
update the one issued in 1972.
A summary of that draft, prepared and released by NIOSH, is
included in the discussion of the rulemaking history in the
Supplementary Information accompanying this notice. NIOSH is
considering whether the evidence on noise since 1972 warrants a change
in its recommendations. In some cases NIOSH is considering reiterating
its prior recommendations, and in other cases it is considering
changing its recommendations.
MSHA has determined that it would not be appropriate to delay
publication of this proposed rule to await the possible issuance of a
new NIOSH criteria document. The NIOSH draft is still being peer
reviewed, and MSHA does not believe it would be appropriate to delay
acting based upon the uncertain timing of the document's redrafting and
release. Moreover, many of the issues covered in the NIOSH draft have
been considered by MSHA, as part of the Agency's review of all the
latest scientific information on noise.
Should a new criteria document be issued before MSHA promulgates a
final rule, it will of course consider the NIOSH recommendations. The
summary of the NIOSH draft included in this notice should provide ample
notice to the mining community of the position NIOSH may take in a new
criteria document.
(7) What Mines Are Covered by the Proposal?
The proposal would apply one set of rules uniformly to all mines.
Those who responded to MSHA's ANPRM generally agreed that consolidation
and simplification of multiple standards into one rule may help to
facilitate understanding of, and thus compliance with, the regulatory
requirements for controlling noise exposures.
(8) Are There Special Definitions Applicable?
To help mine operators and miners, the proposed rule would include
definitions of some technical terms universally used in noise
measurement. But the proposed rule also includes some terms used in a
way that differs from usage in certain other contexts--e.g., under the
OSHA standard.
In particular, MSHA is proposing a non-standard use of the term
``hearing conservation program'' or ``HCP.'' Most hearing conservation
programs include provision for hearing examinations, training and the
use of hearing protectors. Since audiograms would be new for the mining
industry, unlike the other components, the Agency thought it might be
less confusing to treat the components separately. Accordingly, under
the MSHA proposal, hearing protector and training requirements are
established independently, and a ``hearing conservation program'' is
defined as a generic reference to those sections of the proposal that
set forth the requirements for an audiometric testing program.
(9) How Is a Miner's Noise Dose To Be Determined Under the Proposal?
The proposal sets forth a formula for dose computation, which is to
be measured over a full shift, which corresponds to the readouts of
most currently used personal noise dosimeters.
The proposal would continue the use of a 5-dB exchange rate. The
exchange rate is a measure of how quickly the dose of noise doubles.
Accordingly, the measure is the rate determining how much a miner's
exposure must be limited to compensate for increasing dose. Using the
5-dB exchange rate, the exposure time permitted at a sound level of 90
dBA is half that permitted at a sound level of 85 dBA--a miner gets the
same noise dose in 4 hours at 90 dBA as at 8 hours at 85 dBA.
The Agency gave serious consideration to changing the exchange rate
from 5 dB to 3 dB, and is specifically seeking comment on this
important matter. There is a consensus in the recent literature that
noise dose actually doubles more quickly than measured by the 5-dB
rate; the consensus is for an exchange rate of 3 dB. Moreover, the
current 5-dB exchange rate incorporates an assumption that there is
significant time for hearing to recover from high sound levels. MSHA
has concluded that noise exposure under mining conditions does not
warrant such an assumption. A 3-dB exchange rate does not incorporate
this assumption.
Nevertheless, the Agency is proposing to retain the existing 5-dB
exchange rate because of feasibility considerations. Changing to a 3-dB
rate from a 5-dB rate would significantly reduce the amount of time
that miners could be exposed to higher sound levels without exceeding
the PEL. For example, MSHA estimates that the percentage of miners
whose exposure would be in violation of the PEL would just about double
if a 3-dB exchange rate is used. This means mine operators would have
to utilize controls to reduce exposures to the PEL much more
frequently. Moreover, more expensive controls would often be required;
if doses are doubling more quickly, the controls needed to reduce
overexposures to the PEL would have to be more effective. Furthermore,
if a 3-dB exchange rate is used, it is extremely difficult to reduce
the noise exposures to the PEL with currently available engineering or
administrative noise controls or a combination thereof. Accordingly,
moving the industry to a 3-dB exchange rate may not be feasible at this
time.
The sound levels to be included in a miner's dose are being
expanded. At present, only exposures to sounds of 90 dBA and above are
included in determining a miner's dose under MSHA's standards. (Thus,
90 dBA is considered the ``threshold.'') The proposed rule would
include exposure to sound levels as low as 80 dBA. The Agency has
concluded that capturing such sound levels is necessary if it
establishes an action level based on an eight-hour time-weighted
average of 85 dBA. Among other reasons, exposure of a miner to an
extended shift (e.g.,16
[[Page 66355]]
hours) at just over 80 dBA can result in an exposure that exceeds the
action level. OSHA uses this threshold for its action level, but a
higher threshold for the PEL; based on the comments received in
response to its Advance Notice of Proposed Rulemaking, MSHA concluded
it would be easier for the mining industry to use a single threshold
for both purposes.
While necessary, this change will generally result in higher dose
readings in both the coal and metal and nonmetal sectors than at
present. (See the discussion of exposure data in response to Question
5). In this case, however, MSHA has concluded that this change would
clearly be feasible for the industry.
The proposed regulation would not allow dose measurements to be
adjusted to reflect the effect of hearing protectors. This provision
would reinforce MSHA's intent to preclude the current practice in the
coal mining industry of not issuing a citation based upon a noise
exposure that exceeds the PEL when the miners are wearing hearing
protection. (See Question 11 for additional information on this topic.)
(10) What Controls Are Required Whenever a Miner's Exposure Exceeds the
Action Level?
The proposal would require that all miners exposed above the action
level be provided special instruction in the hazards of noise and
protective methods. The training is to be provided annually for as long
as exposure exceeds the action level. (The nature of this instruction,
how it is to be provided, and how it can be coordinated with other
required miner training are discussed in response to other questions.)
(11) What Additional Controls Are Required If a Miner's Exposure
Exceeds the Action Level but Is Below the PEL?
An operator will be required to enroll a miner whose exposure
exceeds the action level in a hearing conservation program (HCP). While
enrollment in the HCP would require the operator to make annual
audiometric testing available to the miner, miners exposed to noise
below the PEL would have the right to decline taking any annual
audiometric testing. The requirements for such testing are discussed in
more detail in response to other questions.
MSHA is seeking comments on how to minimize the burden on mine
operators of providing audiometric examinations for those miners with
only a temporary attachment to the mining work force (e.g., summer
employees), while recognizing the importance of detecting and tracking
hearing loss among those who switch jobs.
In addition, the operator must provide properly fitted hearing
protection in 3 cases: before the initial hearing examination, if a
significant threshold shift in hearing acuity is detected, and at any
other time upon miner request.
Both MSHA and OSHA normally require an employer or operator to
ensure that personal protective equipment is in fact used; an operator
can be cited for failure to enforce rules to this effect. In the case
of this proposal, however, MSHA is making two exceptions in that
regard. First, should the initial hearing examination take less than 6
months to provide, the operator will not be required to ensure the
provided hearing protection be worn. The operator is obligated to
ensure protector use if more time is needed for the baseline
examination (e.g., to wait for a mobile test van). Second, hearing
protection provided because of miner request does not generate an
operator obligation to enforce the use of the requested protection. At
exposure levels above the action level but below the PEL, the
proposal's goal is to encourage the use of hearing protection by
training, providing choice, and encouraging proper fit--but the
proposal would not require hearing protector use unless the miner has a
significant threshold shift or unless the miner has to wait more than 6
months for a baseline examination.
(12) What Controls Are Required If a Miner's Exposure Exceeds the PEL?
If a miner's noise dose exceeds the PEL, the proposal would require
the mine operator to use all feasible engineering and administrative
controls to reduce the miner's noise exposure to that level. The mine
operator has a choice of whether to use engineering controls,
administrative controls, or both; but if administrative controls are
utilized, a copy of the procedures involved must be posted, and copies
given to the affected miners.
Under the proposal, a consistent hierarchy of controls is
established for all mines. Mine operators must first utilize all
feasible engineering and administrative controls to reduce sound levels
to the PEL before (as explained in response to question 15) relying on
other controls to protect against hearing loss. This approach is
consistent with that currently in place for metal and nonmetal mines,
but would be a change for coal mines. In the coal mining industry, MSHA
inspectors do not cite for noise overexposures without first deducting
from the measured dose the attenuating value of hearing protectors
being worn by the miners exposed to excessive levels of noise. In
practice, this means that personal protective equipment is in most
cases accepted as a substitute for engineering and administrative
controls.
MSHA has conducted research on the attenuating value of hearing
protectors under actual mining conditions and has reviewed the
literature on this issue. MSHA is aware that NIOSH is considering new
approaches on how to establish a system that will accurately derate
hearing protector attenuation values for actual workplace conditions;
but the Agency's own research suggests that the attenuation of a
hearing protector is highly variable in practice, and that the amount
of attenuation cannot be predicted accurately. This is discussed in
part III of the Supplementary Information accompanying this notice.
MSHA has also considered the data showing declining noise exposures
in the metal and nonmetal industry, and contrasted this with the data
on the coal mining industry.
The Agency has concluded that, in practice, reliance upon hearing
protectors to reduce noise exposures simply does not provide effective
protection against hearing loss to miners. The Agency does not contend
that properly fitted and maintained hearing protectors are worthless;
on the contrary, the Agency is proposing to rely upon them as a
supplemental control, and has taken their value into account in
conducting its risk and benefit analyses. MSHA has concluded, however,
that hearing protectors should no longer be relied upon as a primary
means of control, and that this change can bring about dramatic
reductions in the rate at which coal miners would otherwise be expected
to incur hearing impairments.
(13) For an Individual Mine Operator, What Are ``Feasible'' Engineering
and Administrative Controls?
The proposal would require a mine operator to use only such
engineering controls as are technologically feasible, and to use only
such engineering and administrative controls as are economically
feasible for that mine operator. Those in the metal and nonmetal mining
industry are already familiar with the Agency's policies and practices
in this regard, but those in the coal mining industry may wish to take
note of the following few paragraphs.
The Federal Mine Safety and Health Review Commission (Commission)
has addressed the issue of what MSHA must consider, with regard to
MSHA's existing noise standard for metal and
[[Page 66356]]
nonmetal mines, when determining what is a feasible noise control for
enforcement purposes at a particular mine. According to the Commission,
a control is considered feasible when: (1) The control reduces
exposure, (2) the control is economically achievable, and (3) the
control is technologically achievable. See Secretary of Labor v.
Callanan Industries, Inc., 5 FMSHRC 1900 (1983), and Secretary of Labor
v. A. H. Smith, 6 FMSHRC 199 (1984).
In determining technological feasibility of a proposed control, the
Commission has ruled that a control is deemed achievable if through
reasonable application of existing products, devices, or work methods
with human skills and abilities, a workable engineering control can be
applied to the noise source. The control does not have to be ``off-the-
shelf;'' but, it must have a realistic basis in present technical
capabilities.
In determining economic feasibility, the Commission has ruled that
MSHA must assess whether the costs of the control are disproportionate
to the ``expected benefits'', and whether the costs are so great that
it is irrational to require its use to achieve those results. The
Commission has expressly stated that cost-benefit analysis is
unnecessary in order to determine whether a noise control is required.
According to the Commission, an engineering control may be feasible
even though it fails to reduce exposure to permissible levels contained
in the standard, as long as there is a significant reduction in
exposure. Todilto Exploration and Development Corporation v. Secretary
of Labor, 5 FMSHRC 1894 (1983). No guidance has been provided by the
Commission as to what level of reduction is considered significant.
However, the Commission has accepted the Agency's determination that a
3 dBA reduction is significant.
In the metal and nonmetal mining industry, MSHA has interpreted the
``expected benefits'' to be the amount of noise reduction achievable by
the control. MSHA generally considers a reduction of 3 dBA or more to
be a significant reduction of the sound level. Consequently, a control
that achieves relatively little noise reduction at a high cost could be
viewed as not meeting the Commission's test of economic feasibility.
Accordingly, consistent with the case law, MSHA has considered
three factors in determining whether engineering controls are feasible
at a particular metal and nonmetal mine: first, the nature and extent
of the overexposure; second, the demonstrated effectiveness of
available technology; and third, whether the committed resources are
wholly out of proportion to the expected results. Before a violation of
these requirements of the standard could be found, MSHA would have to
determine that a worker has been overexposed; that administrative or
engineering controls are feasible; and that the mine operator failed to
install or maintain such controls.
Part III of the Supplemental Information accompanying this notice
provides many examples of engineering controls that are feasible for
mine operators to utilize, and the Agency and the former Bureau of
Mines (USBOM) have available many other materials in this regard.
Nevertheless, the Agency welcomes information about particular
operations for which it may be particularly difficult to control noise.
(14) Is It feasible for the Coal Mining Industry, and for the Metal and
Nonmetal Mining Industry, To Provide the Controls Proposed To Be
Required When Noise Exposures Exceed the PEL?
Part IV of the Supplementary Information in this notice provides a
detailed discussion of the statute's requirements and the Agency's
analysis in this regard. The Agency has concluded that the coal mining
industry as a whole, and the metal and nonmetal mining industry as a
whole, can meet these requirements at a PEL set at a TWA8 of 90
dBA.
In fact, the Agency seriously considered lowering the PEL. As noted
in response to Question 5, MSHA has concluded that there is a
significant risk of material impairment from noise exposures at or
above a TWA8 of 85 dBA. MSHA believes, however, that such a change
may not be feasible at this time for the mining industry. Based on an
analysis of exposure survey data, MSHA has concluded that if the PEL
were a TWA8 of 85 dBA, about two-thirds of the mine operators in
the metal and nonmetal mining industry, and about three-quarters of the
mine operators in the coal mining industry, would need to use
engineering and administrative controls to reduce current exposures.
Moreover, the engineering controls needed to reduce those exposures
would be more expensive, because they would have to be capable of
reducing the exposures further than with a PEL set at a TWA8 of 90
dBA.
(15) What Supplemental Controls Are Required If a Miner's Exposure
Cannot Be Feasibly Reduced to the PEL?
If reducing the dose to this level with such controls is not
feasible, the proposal requires the mine operator to use such controls
to lower the noise exposure as much as is feasible.
In addition, in such cases, the proposal requires that the operator
take extra steps to protect miner hearing. The operator must ensure any
miner so exposed takes the annual hearing examinations, must provide
properly fitted hearing protection to all miners so exposed, and must
ensure the hearing protection is used by all miners so exposed.
MSHA believes that when a miner is exposed to such high levels of
noise because engineering and administrative controls are not feasible
for an operator, these supplemental obligations are necessary to
protect miner hearing. Hearing protectors are not without their
discomforts, but the risk of hearing loss at such exposure levels ought
to be a controlling factor. While audiometric testing is not an
invasive procedure, the Agency is concerned that there may be economic
pressures and personal reasons that may lead miners to decline to take
hearing examinations. The information generated by these tests is
necessary, however, to trigger investigation of potentially serious
flaws in the layers of noise controls required at these high exposure
levels. In addition, the Agency believes that miners operating under
such high noise conditions should be aware of the severity of any
hearing loss; in a mining environment, this knowledge could have
implications for the safety of the miner and the safety of others.
Comments on this provision are specifically solicited.
(16) Is There an Absolute Maximum Noise Dose?
Under the proposal, a miner, as at present, is never to be exposed
to sound levels exceeding 115 dBA. This is because sound at that level
provides the full dose permitted in a matter of minutes.
There is, however, no dose which the Agency would require to be
abated without regard to whether it is feasible for an individual mine
operator. The proposal does provide that should a miner's noise
exposure exceed a TWA8 of 105 dBA during any workshift, the mine
operator shall, in addition to taking all actions required to protect
miners exposed above the PEL, also require the miner to use dual
hearing protection, i.e., both a plug type and a muff type hearing
protector. A TWA8 of 105 dBA is a dose of 800% of the PEL, using a
5-dB exchange rate. In the notice accompanying this proposal, the
Agency presents information about the mining jobs at which the
exposures of this level are occurring, and requests comment on
[[Page 66357]]
whether there should be an absolute dose ceiling regardless of the
feasibility of control by an individual mine operator.
(17) What Are an Operator's Obligations Under the Proposal To Monitor
Noise Exposures?
The proposal would require mine operators to establish a system of
monitoring which effectively evaluates each miner's noise exposure.
This will ensure that mine operators have the means to determine
whether a miner's exposure exceeds any of the limitations established
by this section, as well as to assess the effectiveness of noise
controls. The proposed rule is performance oriented in that the
regularity and methodology used to make this evaluation are not
specified; MSHA's own measurements will enable it to check on the
effectiveness of an operator's monitoring program. Specific
requirements for biannual noise surveys, monitoring records,
supplemental noise surveys, calibration reports, survey reports, and
survey certifications now applicable to the coal sector would be
revoked, significantly reducing cost and paperwork burdens.
(18) When Must Miners Be Notified of Monitoring Results?
The proposal would require that miners be notified in writing
should their exposure exceed any of the levels specified by this
section--whether based on operator or MSHA evaluations of noise. Notice
would be required within 15 calendar days.
The proposal has been designed to ensure that miners are made aware
of the hazards they currently face. Miners exposed above the action
level should be notified of that fact so, for example, they can
consider the importance of using provided, properly fitted and
maintained hearing protectors. On the other hand, the proposal does not
require notification of a particular miner if an exposure measurement
indicates that the miner's exposure has not changed and the miner has
within the last year been apprised of the same information. No
notification is required if a miner's measurement is below the action
level--although operators might wish to provide such notification if
this indicates a reduction in noise exposure.
(19) What Rules Are There To Ensure That Required Hearing Protectors
Provide Effective Protection?
Whenever hearing protectors are to be provided, they must be
provided in accordance with specific requirements. The miner is to have
a choice from at least one earplug type and muff type protector; and,
in the event dual hearing protection is required, a choice of one of
each. Whenever the mine operator is required to ensure that hearing
protection is worn (the circumstances are noted in response to prior
questions), it is worn by the miner when exposed to sound levels
required to be integrated into a miner's dose measurement, i.e., any
sound levels above 80 dBA. The hearing protector is to be fitted and
maintained in accordance with the manufacturer's instructions. Hearing
protectors and necessary replacements are to be provided at no cost to
the miner. Finally, should the miner suffer a medical pathology of the
ear, the miner is to be allowed to select a different hearing protector
from among those offered by the mine operator.
MSHA has concluded that existing rating systems for hearing
protectors do not provide a reliable measure of effectiveness under
normal mining working conditions. The Agency believes that the best way
to ensure such devices can provide effective protection is to focus on
the conditions affecting hearing protector use.
(20) How Frequently Must Required Training Be Provided?
If a miner's noise exposure exceeds the action level, training is
to be provided annually. The training is to be provided when the miner
is first determined to have exceeded the action level and every 12
months thereafter that the miner continues to exceed that level.
Annual refresher training is necessary to reinforce the proper
procedures for the use and care of hearing protectors, and the
importance of administrative and engineering controls. Additionally, it
serves to re-emphasize the hazards of noise and the purpose for
audiometric testing for those miners exposed above the PEL. MSHA
received comments in response to its Advance Notice of Proposed
Rulemaking (ANPRM) that supported an annual training requirement.
Studies have shown that the effectiveness of an HCP is highly dependent
on the proper use of hearing protectors and the commitment of both
management and the employees, both of which can be enhanced by
training.
(21) What Specifications Are There With Respect to the Instruction To
Be Provided During Required Training?
Miners would receive instruction in hearing protection: (1) the
need for such protection, (2) selection and fitting, and (3) proper use
of such protectors. Miners would also receive instruction about hearing
conservation programs: as to the operation of that program and the mine
operator's noise control efforts. There are no special qualifications
for instructors, nor any specifications on the hours of instruction.
Training is required to be provided without cost to the miner. The mine
operator would be required to certify the completion of any training
required by this part, and maintain the most recent certification for a
miner at the mine site for as long as the miner is required to use
hearing protectors or be enrolled in an HCP, and at least 6 months
thereafter.
(22) Can the Required Training Be Covered During Part 48 Training?
Yes, but it may not always be feasible to do so.
MSHA considered whether the requirements of part 48, ``Training and
Retraining of Miners,'' were adequate to ensure the training required
under this part. The requirements of part 48 specify the initial and
annual retraining of all miners in a list of subjects, many specified
in the law itself (section 115 of the Mine Safety and Health Act). The
importance of this training is emphasized by statutory requirements for
the submittal of training plans, on the specification of the hours to
be devoted to the training, and on the qualifications of instructors.
Training is required on noise, but it is in general terms, covering the
purpose of taking exposure measurements and on any health control plan
in effect at the mine. Mine operators may provide additional training,
but the topics that need to be covered may make this impracticable
within the prescribed time limits.
After considering the available information about the importance of
training requirements, and based upon its experience in implementing
the requirements of part 48, MSHA has determined that the requirements
of part 48 do not provide adequate noise training for those miners for
whom exposure is clearly a problem. Most current part 48 training is
neither comprehensive enough to provide such miners with the level of
education needed for the proper use of hearing protection devices, nor,
in the case of noisy mines, detailed enough on methods to reduce sound
levels.
Nevertheless, MSHA believes compliance with this proposal can in
many cases be fulfilled at the same time as scheduled part 48 training.
The Agency does not believe special language in proposed part 62 is
required to permit this action under part 48, but welcomes comment in
this regard. Mine operators who can do so are free to fulfill their
noise training requirements by covering the topics in initial and
[[Page 66358]]
annual part 48 training, and may so certify on the separate form
required by this part. If incorporated into part 48, mine operators
would, however, be required to submit a revised training plan to the
appropriate district office for approval. Some mine operators, however,
may not be able to incorporate these topics in their part 48 plans.
Moreover, it is important to note that there are some circumstances in
which training required under the proposal will likely not fit within a
regular schedule, e.g., the training required when a miner's exposure
is determined to require selection of a hearing protector or a new
protector.
MSHA has endeavored to make the training requirements as simple as
possible. If conducted separately from part 48 training, there are no
specifications on trainer qualifications, no minimal training time, nor
any training plans. If, however, the training is incorporated into part
48, then all applicable part 48 requirements will have to be met.
(23) If a Mine Operator Is Required To Offer Audiometric Testing, When
Must a Baseline Audiogram Be Taken?
It is critical to obtain a baseline audiogram before exposure to
hazardous noise. If this is not possible, then the baseline is to be
obtained as soon as is reasonably possible.
Due to remote locations and intermittent operations of many mines,
MSHA determined that allowing six months (or 12 months if a mobile test
van is used) for offering the baseline audiogram was reasonable. The 12
month period would allow mine operators to schedule many baseline and
annual audiograms simultaneously, and thus, substantially reduce the
cost when mobile test vans are used. Miners enrolled in a hearing
conservation program would be provided hearing protection until such
time as the baseline audiogram is conducted. In the case of a miner who
has to wait more than 6 months for a baseline examination because of
the need for a mobile test van, and in the case of a miner whose
exposures cannot be reduced to the PEL through the use of all feasible
engineering and administrative controls, the operator would be required
to ensure the hearing protection is worn.
MSHA has also determined that a 14-hour quiet period should precede
the baseline audiogram to ensure a valid result. Moreover, unlike the
OSHA rule, MSHA's proposal would not permit the use of hearing
protectors as a substitute for a quiet period. The Agency has
determined this is necessary to ensure that a temporary threshold shift
in hearing acuity does not occur during the quiet period, rendering the
baseline audiogram inaccurate. Moreover, MSHA's research has not shown
a reliable method for predicting hearing protector attenuation under
actual working conditions. Under the proposal, miners are to be
notified of the importance of compliance with the quiet period. MSHA is
not proposing to require this quiet period for annual audiograms,
although it may be in the mine operator's interest to do so.
(24) What Qualification Requirements Are Proposed for Those Who Will
Take Audiograms?
MSHA would require that an ``audiologist'' be certified by the
American Speech-Language-Hearing Association or licensed by a state
board of examiners. ``Qualified technicians'' would be required to have
been certified by the Council for Accreditation in Occupational Hearing
Conservation (CAOHC) or another recognized organization offering
equivalent certification. CAOHC or equivalent certification would
assure that the technicians are qualified. MSHA is not proposing to
require qualifications for physicians.
(25) Does the Proposal Specify Audiometric Test Procedures?
MSHA proposes not to include specific procedural requirements for
conducting audiometric tests, calibrating audiometers, and qualifying
audiometric test rooms. Instead, MSHA proposes a performance-oriented
requirement that audiometric testing be conducted in accordance with
scientifically validated procedures. MSHA would specify the test
frequencies, but would allow the physician or the audiologist to use
professional judgement in choosing the appropriate testing procedure(s)
and require certification of the scientific validity of the procedures.
While this approach may require somewhat more in the way of
paperwork requirements, MSHA believes this is far preferable to the
alternative of a detailed specification standard, which could stifle
technology and impede improvements in methodology.
(26) What Test Records Must Be Maintained?
The proposal would also specify what records must be maintained at
the mine site and the retention duration. The proposed items included
in the audiometric test record--name, job classification, audiograms
and certifications as to the procedures used to take them, any exposure
determinations, and the results of any follow-up examinations--would
provide information essential for evaluating a miner's audiogram, among
other purposes.
The proposal would require that the audiometric records be retained
for at least six months beyond the duration of the miner's employment.
The six-month retention period at the mine site would assure that test
records are not destroyed during what might be normal breaks in
employment and remain available for use by the mine operator to conduct
further evaluations upon the miner's return. In practice, MSHA believes
that many mine operators will keep a miner's audiograms long after the
miner's employment ceases, for use if the miner should file a
subsequent workers' compensation claim for hearing loss.
(27) How Are Audiograms To Be Evaluated?
MSHA's proposal would require that the mine operator inform the
person evaluating the audiogram of the requirements of this part and
provide such person with copies of the miner's audiometric test
records. The mine operator would be responsible for having a physician,
audiologist, or qualified technician determine if an audiogram is
valid, and to determine if a standard threshold shift in hearing acuity
(STS) or reportable hearing loss has occurred. Time frames within which
these actions must occur are part of the proposal.
The proposal would permit, but not require, mine operators to
adjust audiometric test results by applying a correction for
presbycusis, the progressive loss of hearing acuity associated with the
aging process, before determining whether an STS or reportable hearing
loss has occurred, and it includes tables for this purpose. The
proposed adjustment for presbycusis is optional, however, if a mine
operator uses this approach, it must be applied uniformly to both the
baseline and annual audiograms in accordance with the procedures and
values listed in the proposed standard. Although this is the position
taken in the proposal, MSHA notes that NIOSH recently has advised
against the use of presbycusis correction factors. Moreover, the Agency
is concerned about locking-in particular presbycusis adjustment tables.
MSHA, therefore, requests additional comments on whether to use
presbycusis corrections for audiograms and, if so, how to
[[Page 66359]]
provide for such adjustment in a regulatory context.
(28) What Happens If an Audiogram Is Not Valid?
A prompt retest is required.
When a valid audiogram cannot be obtained due to a suspected
medical pathology of the ear, and the physician or audiologist
evaluating the audiogram believes that the problem was caused or
aggravated by the miner's exposure to noise or the wearing of hearing
protectors, a miner must be referred for a clinical audiological or
otological evaluation as appropriate at mine operator expense.
If the physician or audiologist concludes that the suspected
medical pathology of the ear which prevents obtaining a valid audiogram
is unrelated to the miner's exposure to noise or the wearing of hearing
protectors, the miner is to be advised of the need for an otological
evaluation; but in such cases, no financial obligation would be imposed
on the mine operator.
A mine operator would be required to instruct the physician or
audiologist not to reveal to the mine operator any specific findings or
diagnoses unrelated to the miner's exposure to noise or the wearing of
hearing protectors without the written consent of the miner.
(29) What Corrective Measures Are Required When a Standard Threshold
Shift in Hearing Acuity (STS) Is Detected?
STS is defined in this proposal, as in OSHA's standard, as a change
in a worker's hearing acuity for the worse, relative to that worker's
baseline audiogram, of an average of 10 dB or more at 2000, 3000, and
4000 Hz in either ear.
If the STS is determined to be permanent, a supplemental baseline
is established and this becomes the baseline for determining any future
STS. This definition is sufficiently restrictive to locate meaningful
shifts in hearing, yet not so stringent as to create unnecessary
follow-up procedures. The frequencies were chosen for this purpose to
ensure hearing losses are detected as soon as feasible. While NIOSH is
currently considering an approach that would not require averaging at
several frequencies, this remains under peer review; moreover, the
averaging of hearing levels at adjacent frequencies will reduce the
effect of testing errors at single frequencies.
MSHA's proposal would require that, unless a physician or
audiologist determines that an STS is neither work-related nor
aggravated by occupational noise exposure, mine operators would have 30
days after the finding of an STS to--
(1) Retrain the miner;
(2) Provide the miner with the opportunity to select a hearing
protector, or a different hearing protector if the miner has previously
selected one; and
(3) Review the effectiveness of any engineering and administrative
controls to identify and correct any deficiencies. The proposal also
requires that an operator ensure that a miner with an STS wear the
provided hearing protector.
A hearing loss of 10 dB from a miner's prior hearing level is of
enough significance to warrant intervention by a mine operator, unless
it is determined the loss is not work-related. If the controls in place
are effective, including the training, this loss should not be
occurring. It should be noted that the retraining required is to take
place within 30 days after the finding of the STS, and thus it is
unlikely mine operators can satisfy this requirement through their part
48 training programs.
MSHA's proposal does not include a provision for transferring a
miner who incurs repeated STS's. A miner transfer program would be
complex to administer, and would probably not be feasible in the metal
and nonmetal sector. This sector consists largely of smaller mines
which may be unable to feasibly rotate workers to other assignments on
a long-term basis.
(30) When Must MSHA Be Notified About Hearing Loss?
Pursuant to 30 CFR part 50, MSHA must be notified of any
``reportable'' hearing loss. There is currently no uniform definition
of this term. The proposed rule would establish a uniform definition
for reporting a miner's hearing loss--a change in hearing acuity for
the worse relative to the miner's baseline audiogram of an average of
25 dB or more at 2000, 3000, and 4000 Hz in either ear. MSHA intends
that a loss for any miner need not be reported again until there is an
additional 25 dB loss. Having a uniform definition will ease reporting
burdens on mine operators while promoting the development of an
improved data base on hearing loss in the mining community.
MSHA has two specific questions in this regard on which it is
seeking comment. First, MSHA would like comment on how to define
``reportable'' hearing loss for those operators who do not have
audiometric test data. Not all mine operators will be required to
obtain audiometric test data under the proposed rule; thus, such
operators may not be able to use a definition of reportable hearing
loss defined in this manner.
Second, MSHA is concerned that reporting only losses of 25 dB may
not provide MSHA a full picture of hearing loss in the mining industry.
A loss of 25 dB is used by many states as a basis for making disability
awards. Some have recommended that any STS (10 dB loss) should be
captured in a hearing loss data base. OSHA, which currently requires
any 25 dB loss to be captured in an employer's log, has proposed to
capture any 15 dB loss. MSHA accordingly solicits comment on this
point.
(31) When Must a Miner Be Notified of Audiometric Testing Results?
The proposal would require the mine operator, within 10 working
days of receiving the results of an audiogram, or receiving the results
of a follow-up evaluation, to notify the miner in writing of the
results and interpretations, including any finding that an STS or
reportable hearing loss has occurred. The notification would include an
explanation of the need and reasons for any further testing or
evaluation that may be required.
MSHA believes that informing miners of the results of their
audiometric tests in a timely manner is critical to the success of an
HCP. Immediate feedback upon completion of the testing provides the
greatest benefit.
(32) Who Has Access to Exposure and Test Records Maintained by Mine
Operators?
Authorized representatives of the Secretaries of Labor and Health
and Human Services would have access to all records required under this
part.
Moreover under the proposal, a miner or former miner, or his/her
designated representative with written consent, would have access to
all the records that the mine operator is required to maintain under
this part for that individual miner or former miner. Also, the miners'
representative is in all cases to have access, for miners they
represent, to noise training records and to notices required to be made
to miners exposed to noise above various levels.
The mine operator would have 15 days from receipt of a written
request to provide such access. The proposal would define ``access'' as
the right to examine and copy records. The first copy of any record
requested by a person is to be provided without cost to that person,
and any additional copies requested by that person are to be provided
at reasonable cost.
[[Page 66360]]
Upon termination of employment, mine operators would be required to
provide a miner, without cost, an actual copy of all his or her own
records (those required under this part).
The proposed standard would require mine operators to transfer all
records (or a copy thereof) required by this part to any successor mine
operator. The successor mine operator would be required to receive
these records and maintain them for the period required. Additionally,
the successor mine operator would be required to use the baseline
audiogram obtained from the original mine operator (or supplemental
baseline audiogram as appropriate) for determining an STS and
reportable hearing loss.
MSHA has no uniform records access provision. The provisions
proposed here are similar to those in other health standards proposed
in recent years by the Agency. The Agency welcomes comment on whether
it needs to make changes to facilitate the use of electronic
recordkeeping systems.
(33) How Does the Proposal Compare With the Existing Standards?
MSHA has prepared two charts comparing some of the key features of
the proposed standard to MSHA's existing standards. A comparison to
OSHA's noise standard is also provided since many mine operators and
others are familiar with that standard.
It is important the reviewers exercise some caution in using these
charts. The entries were ``shorthanded'' to fit into the chart.
Accordingly, other parts of this preamble should be consulted for
details. In comparing the proposed rule with OSHA's standard, for
example, reviewers interested in differences on the definition of a
hearing conservation program should consult the answer to Question 8;
those interested in differences on the threshold should consult the
answer to Question 9; those interested in differences on employer
obligations to ensure the wearing of provided hearing protections
should consult the answer to Question 11; and those interested in
differences about the use of hearing protection in lieu of a quiet
period before a baseline audiogram should consult the answer to
Question 23.
Care should also be taken in consulting the existing standards
themselves. The entries in the charts and the discussions in the
preamble reflect legal and/or policy interpretations of the various
standards that now determine their meaning, something that would not be
apparent from an examination of the text of the standards.
To conserve space, the following abbreviations are used in the
charts: HP (hearing protection), HCP (hearing conservation program),
STS (standard threshold shift), TWA8 (time-weighted eight-hour
average), dBA (decibel, A-weighted), PEL (permissible exposure limit);
``admin'' (administrative), kHz (kilohertz), and N/A (none or not
applicable).
Comparison Chart 1: Exposure/Dose Triggers
----------------------------------------------------------------------------------------------------------------
Existing metal/
TWA8 noise above Proposal nonmetal Existing coal OSHA
----------------------------------------------------------------------------------------------------------------
85 dBA................ Provide training on No action required... No action required.. Enroll employee in
noise; enroll miner HCP (must offer
in HCP (must offer annual hearing
annual hearing test); if more than
test); provide HP 6 months before
before baseline baseline audiogram
audiogram taken, if taken (mobile van),
STS detected or upon employee must be
request of miner; provided and wear
must ensure miner HP; employee must
uses HP if more than also be provided
6 months for and use HP if STS
baseline (mobile detected.
van) or STS detected.
90 dBA................ Use all feasible Use all feasible Use all feasible Use all feasible
engineering and engineering or engineering or engineering or
admin. controls to admin. controls to admin. controls to admin. controls to
reach; if can't reach; if can't reach * * * but can reach * * * but if
reach 90 using such reach 90 using such first reduce exposure less than
controls, use controls, then must exposure reading by 100 dBA, can first
controls to get as also provide HP. rated value of HP reduce reading by
low as possible, minus 7 unless value of HP
provide HP to all cited for failure attenuation =.50 x
miners, ensure HP to require HP use; (rated value of HP
used and ensure must enroll miners minus 7).
hearing tests taken. in HCP if cited.
105 dBA............... Dual HP must be Limited requirement n/a................. n/a.
provided and used. for dual HP.
----------------------------------------------------------------------------------------------------------------
Comparison Chart 2: Issues
----------------------------------------------------------------------------------------------------------------
Existing metal/
Issue Proposal nonmetal Existing coal OSHA
----------------------------------------------------------------------------------------------------------------
Monitoring...................... Operator must No requirement on Mine operator Employer must
establish system mine operator. required to conduct
of monitoring conduct periodic represent.
exposures. monitoring. personal sampling
if info suggests
noise exceeds
action level.
Notification of exposure level.. Notify miner of Not required...... Not required...... Notify employee if
measured exposure exposure exceeds
level if: (a) action level.
exposure changed,
or (b) even if
shows no change
if miner not
notified within
last year.
[[Page 66361]]
Threshold: lowest sound levels 80 dBA............ 90 dBA............ 90 dBA............ 80 dBA for
counted. monitoring & HCP
enrollment but 90
dBA for PEL.
Exchange rate................... 5 dB.............. 5 dB.............. 5 dB.............. 5 dB.
Ceiling......................... 115 dBA........... 115 dBA........... 115 dBA........... 115 dBA.
Training on hearing protector Annual if above Part 48 general Part 48 general Annual if exposure
selection & use. action level. discussion. discussion. exceeds TWA8 of
85 dBA.
Training on audiology & employer Annual if above No................ No................ Audiology only;
program. action level. annual if
enrolled in HCP.
Quiet period before aud. exam... 14 hours for n/a............... n/a............... 14 hours for
baseline baseline
audiogram; can audiogram; can
not use hearing use hearing
protectors. protectors.
Standard threshold shift........ 10 dB av. shift @ n/a............... n/a............... 10 dB av. shift @
2, 3, & 4 KHz. 2, 3, & 4 KHz.
Reportable hearing loss......... Must report 25 dB Reporting required Reporting required No reporting; must
av. shift @ 2, 3, but level not but level not record 25 dB av.
& 4 kHz, either defined. defined. shift @ 2, 3, & 4
ear. kHz, either ear;
1/96 proposal
would drop to 15
dB.
Employee access to records...... Yes............... No................ No................ Yes.
----------------------------------------------------------------------------------------------------------------
(34) Is MSHA Going To Write the Final Rule in Plain English so Miners
and Mine Operators Can Understand Their Obligations?
The text of the proposed rule can be found at the very end of this
notice. While the Agency endeavored to write clearly, it is interested
in suggestions to make the final rule as comprehensible as possible to
mine operators and miners.
MSHA has developed two examples, based on the proposed rule, to
illustrate some alternative approaches it could take.
The first example illustrates one way in which a rule's
organization can be reformulated so as to serve as a more useful
reference tool. This proposal's table of contents begins as follows:
62.100 Purpose and scope; effective date.
62.110 Definitions
62.120 Limitations on noise exposure
The alternative version presents the table of contents as a series
of practical questions that are likely to be asked by the mining
community. The sections have been subdivided so as to address questions
one at a time. In the mining industry, the Department of the Interior
has also experimented with this approach, e.g., proposed coalbed
methane regulations (60 FR 47920).
62.100 What is the purpose of requiring mine operators to limit
miner noise exposure?
62.101 What kinds of mining operations are covered by this
regulation?
62.102 When does this regulation take effect?
62.110 What is meant by various technical terms used in this
regulation?
62.120 How is a miner's noise dose calculated?
62.121 How is dose converted to 8-hour time-weighted averages?
62.122 Can a miner's dose measurement be adjusted to reflect the
type of hearing protection being worn by the miner?
62.123 What are a mine operator's obligations to evaluate miner
noise exposure?
62.124 When must miners and/or their representatives be notified of
measured exposures?
62.130 What must a mine operator do whenever a miner's noise dose
exceeds the action level?
62.131 What else must a mine operator do if a miner's noise dose
exceeds the action level but remains below the PEL?
62.132 What else must a mine operator do if a miner's noise dose
exceeds the PEL?
62.133 What is the highest sound level to which a miner may be
lawfully exposed?
The contents of several of these sections might be more clear if
presented in a tabular format. This would be particularly useful where
the mine operator may have choices or has to do more than one thing. An
example involves the controls required at the action level. The current
proposal, as it would appear in the Code of Federal Regulations, as
paragraph (b) of proposed Sec. 62.120, is:
(b) Action level. When a miner's noise exposure exceeds a
TWA8 of 85 dBA during any workshift, or equivalently a dose of
50%, the operator shall take the actions specified in paragraphs (b)
(1) and (2) of this section and, at the request of the miner, also
take the actions specified in paragraph (b)(3) of this section.
(1) An operator shall provide the miner training that includes
the instruction required by Sec. 62.130, at the time exposure
exceeds the action level and every 12 months thereafter that
exposure continues to exceed the action level.
(2) An operator shall enroll the miner in a hearing conservation
program which shall meet the requirements of Secs. 62.140 through
62.190. Moreover, the operator shall, with respect to any miner
enrolled in such program, provide hearing protection in accordance
with the requirements of Sec. 62.125 until such time as a baseline
audiogram has been obtained. If it takes more than 6 months to
conduct the baseline audiogram, or if the miner is determined to
have incurred an STS, the operator shall ensure that the hearing
protection is provided to the miner and worn by the miner.
(3) At the request of any miner, the operator shall provide
hearing protection to the miner in accordance with the requirements
of Sec. 62.125.
The alternative format would appear, using the revised numbering
and naming conventions from example 1, somewhat like the following:
62.131 What specifically must a mine operator do if a miner's noise
dose exceeds the action level?
If a miner's noise exposure exceeds a dose of 50% (a TWA8 of
85 dBA):
------------------------------------------------------------------------
You must Which means you
------------------------------------------------------------------------
(a) Provide training................... Provide a miner with the
training required by MSHA's
rules--
(1) When his or her exposure
exceeds the action level; and
(2) Every 12 months thereafter
that his or her exposure
continues to exceed the action
level.
[[Page 66362]]
(b) Enroll the miner in a hearing (1) Offer the miner annual
conservation program. audiometric examinations that
comply with MSHA's rules for
hearing conservation programs;
and
(2) Provide a miner with
hearing protection until a
baseline audiogram has been
taken; and in the event that
will take more than 6 months
due to the needs to wait for a
mobile test van, require the
miner to use the hearing
protector; and
(3) Provide a miner with
hearing protection, and
require its use, whenever an
STS is detected.
(c) At the request of a miner, provide Provide hearing protection in
the miner with hearing protection. accordance with MSHA's rules.
------------------------------------------------------------------------
MSHA's rules for training are discussed in Sec. 62.137. MSHA's rules
for hearing conservation programs are discussed in Secs. 62.140
through 62.190. MSHA's rules for hearing protection are discussed in
Sec. 62.135.
MSHA has not yet consulted with the Office of the Federal Register
on the specifics of such approaches; moreover, the examples noted above
should not be considered as necessarily accurately representing the
content of MSHA's proposed rule. These caveats notwithstanding, the
Agency is interested in the potential of these approaches, and would
welcome comment on these specific examples.
(35) Is MSHA Going To Provide Adequate Guidance Before Implementing the
Rule?
The Agency plans to take several steps toward this end.
First, the Agency is proposing that the new standard not take
effect until one year after the date of publication of the final rule.
This should provide time to train MSHA personnel and provide mine
operators with technical assistance and guidance. An alternative would
be to phase in the new requirements. The Agency believes some could be
phased in quickly, but wants to avoid confusion. The Agency requests
comment on whether a phased-in approach is appropriate and how it might
most effectively be designed.
In addition, the Agency is committed to issuing a compliance guide
for mine operators before a final rule takes effect. MSHA would welcome
suggestions on matters that should be discussed in such a guide.
MSHA would also welcome comments on other actions it could take to
facilitate implementation, and in particular whether a series of
workshops would be useful.
(36) Are There Special Enforcement Issues of Which the Mining Community
Should Take Note?
Question 13 addresses the question of what constitutes ``feasible''
engineering and administrative controls.
Operators in the mining industry are aware that the Agency has
traditionally not cited an operator for exceeding the PEL unless the
Agency's measurement of noise shows that it exceeds a TWA8 of 92
dBA. This provides adequate room to accommodate, in an enforcement
context, any technical questions about MSHA's measurements. MSHA's
citation policy does not, however, alter operator obligations of the
rule, including those based on operator exposure readings.
The Agency is interested in comment on whether the new final rule
should include a provision requiring operators to develop a written
plan in certain cases. At the present time, coal operators in violation
of the PEL must submit for approval a plan for the administration of a
continuing, effective program to assure compliance including provision
for reducing environmental noise levels, hearing protectors, and
audiograms. No such plans are provided in the metal and nonmetal
sector. The proposed rule, which would establish a uniform approach to
noise for both sectors, would eliminate the current coal requirement,
because MSHA does not believe such plans need to be created every time
an operator violates the PEL. The Agency recognizes, however, that
achieving effective compliance in some cases would be furthered by the
existence of a written plan. In particular, such plans may be
appropriate when there is a history of multiple noise violations, or a
failure to effectively abate. Such plans would include specific details
on how operators will comply with the final rule; a failure to comply
with the plan's specifications would be enforceable through MSHA's
normal citation/order process. Making explicit provision in the
standard for such plans would ensure clarity about the Agency's
enforcement policy on noise.
The Agency notes that in some cases the proposal would require
operators to ensure certain miners wear hearing protection that is
provided, and ensure certain miners take tests that are offered.
Comment is welcome on how Agency personnel could distinguish these
miners from others.
(B) Executive Order 12866
In accordance with Executive Order 12866, MSHA has prepared a
preliminary analysis of the estimated costs and benefits associated
with the proposed revisions of the noise standards for coal and metal
and nonmetal mines.
The preliminary RIA containing this analysis is available from
MSHA. MSHA welcomes comments on its analysis and methodology. The
proposal would cost approximately $8.3 million and would save 765
hearing impairment cases annually. The benefits are expressed in terms
of cases of hearing impairment that can be avoided and have not been
monetized. Although the Agency has attempted to quantify the benefits,
it believes that monetization of these benefits would be difficult and
inappropriate.
Based upon the economic analysis, MSHA has determined that this
rule is not an economically significant regulatory action pursuant to
section 3(f)(1) of Executive Order 12866. The Agency does consider this
rulemaking significant under section 3(f)(4) of the Executive Order for
other reasons, and has so designated the rule in its annual agenda.
This means that while the Office of Management and Budget was provided
an opportunity to review this proposal and the preliminary RIA (as
discussed in the History section of this preamble), specific
determinations of the costs and benefits are not required pursuant to
section 6(a)(3)(C) of the Executive Order.
(C) Paperwork Reduction Act
This proposed rule contains information collections which are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995 (PRA95). The title, description,
and respondent description of the information collection are shown
below with an estimate of the annual reporting burden. Included in the
estimate is the time for reviewing instructions, gathering and
maintaining the data needed, and completing and reviewing the
collection of information. With respect to the following collection of
information, MSHA invites comments on: (1) Whether the proposed
collection of information is necessary for proper performance of MSHA's
functions, including whether the information will have practical
utility; (2) the accuracy of MSHA's estimate of the burden of the
proposed collection of information, including the validity of the
methodology and assumptions used; (3) ways to enhance the quality,
utility, and
[[Page 66363]]
clarity of information to be collected; and (4) ways to minimize the
burden of the collection of information on respondents, including
through the use of automated collection techniques, when appropriate,
and other forms of information technology.
These estimates are an approximation of the average time expected
to be necessary for a collection of information. They are based on such
information as is available to MSHA.
Submission
The Agency has submitted a copy of this proposed rule to OMB for
its review and approval of these information collections. Interested
persons are requested to send comments regarding this information
collection, including suggestions for reducing this burden, to the
Office of Information and Regulatory Affairs, OMB New Executive Office
Bldg., 725 17th St. NW., Rm. 10235, Washington, DC 20503, Attn: Desk
Officer for MSHA. Submit written comments on the information collection
not later than February 18, 1997.
Description of Respondents
Those required to provide the information are mine operators and
individuals who are paid to perform tasks for the mine operator (e.g.,
physicians reporting the results of audiograms to the mine operator).
Description
The proposal contains information collection requirements in
Secs. 62.120, 62.130, 62.140, 62.150, 62.160, 62.170, 62.180, 62.190,
62.200, and 62.210. The following chart presents the paperwork
requirements by section.
Net Information Collection Burden Hours by Proposed Section
------------------------------------------------------------------------
Paperwork requirement and
Section associated tasks Hours
------------------------------------------------------------------------
62.120..................... Evaluate miners' noise (135,250)
exposure; notify miner of
overexposure; prepare and
post administrative controls;
give miners copy of
administrative controls.
62.130..................... Prepare and file a training 10,270
certification.
62.140..................... Perform audiograms; notify 69,930
miners to appear for testing
and need to avoid high noise.
62.150..................... Compile an audiometric test 9,175
record; obtain a
certification.
62.160..................... Provide information and 21,350
audiometric test record;
perform audiometric retests.
62.170..................... Perform otological evaluations 1,045
and provide information and
notice.
62.180..................... Prepare a training 700
certification for retrained
miners; review effectiveness
of engineering and
administrative controls.
62.190..................... Inform miner of test results; 6,300
inform miner of STS.
62.200..................... Provide access to records..... 1,255
62.210..................... Transfer records.............. 235
------------
Total................ .............................. (14,985)
------------------------------------------------------------------------
These paperwork requirements have been submitted to the Office of
Management and Budget (OMB) for review under section 3504(h) of the
Paperwork Reduction Act of 1995 (PRA 95). Respondents are not required
to respond to any collection of information unless it displays a
currently valid OMB control number.
The following chart summaries MSHA's estimates by section in
tabular form. Data is distributed by commodity. All numbers have been
rounded.
Net Information Collection Burden Hours by Commodity
------------------------------------------------------------------------
Metal/
Task Coal nonmetal
------------------------------------------------------------------------
62.120 Limitations on Noise Exposure......... (140,545) 5,295
62.130 Training.............................. 4,000 6,270
62.140 Audiometric Testing Program........... 30,655 39,275
62.150 Audiometric Test Procedures........... 3,930 5,245
62.160 Evaluation of Audiograms.............. 9,340 12,015
62.170 Followup Evaluation................... 475 570
62.180 Followup Corrective Measures.......... 335 365
62.190 Notification of Results............... 2,715 3,585
62.200 Access to Records..................... 255 1,000
62.210 Transfer of Records................... 100 135
-------------------------
Total (discrepancies due to rounding)... (88,740) 73,755
------------------------------------------------------------------------
Alternatively, the paperwork hours may be distributed between small
and large mines. The following table provides this analysis. Small
mines are those with less than 20 employees.
Net Information Collection Burden Hours by Mine Size
------------------------------------------------------------------------
Task Small Large
------------------------------------------------------------------------
62.120 Limitations on Noise Exposure......... (15,510) (119,740)
62.130 Training.............................. 2,965 7,305
62.140 Audiometric Testing Program........... 19,270 50,660
62.150 Audiometric Test Procedures........... 2,885 6,290
62.160 Evaluation of Audiograms.............. 6,185 15,170
62.170 Followup Evaluation................... 250 800
62.180 Followup Corrective Measures.......... 160 540
[[Page 66364]]
62.190 Notification of Results............... 1,935 4,365
62.200 Access to Records..................... 500 755
62.210 Transfer of Records................... 185 50
-------------------------
Total (discrepancies due to rounding)... 18,825 (33,805)
------------------------------------------------------------------------
Metal/nonmetal mines would incur 75,080 burden hours under the
proposal and coal mines would incur 55,675 hours. For metal/nonmetal
mines, the existing burden is 1,325 hours as defined and calculated
under PRA 95; this makes the net burden for metal/nonmetal mines 73,755
hours. For coal mines, the net burden is 88,740 fewer hours than the
existing burden as calculated under PRA 95. The proposal would result
in a net decrease of 14,985 burden hours associated with information
collection from that associated with the current requirements. It
should be noted that the existing burden hours are currently approved
in three separate paperwork packages and reflect burden hours
calculated under the provisions of the 1980 Paperwork Reduction Act
(PRA 80). MSHA is in the process of updating and combining these three
packages. The Agency's official paperwork submission accompanying this
proposal includes a chart comparing the existing burden hours under PRA
80, the existing burden hours under PRA 95, and the proposed burden
hours under PRA 95.
Additional detail is presented in the charts that follow. These
charts provide annual and annualized paperwork burden hours as measured
by PRA 95. Burden hours for tasks which predominantly would occur in
the first year only, dose determination and notification, are presented
in annualized form. Proposed Secs. 62.140(b)(3), 62.250 (b) and (c),
62.160 (a)(1) and (a)(3), 62.170 (b) and (c), 62.180(a), 62.190 (a)(1)
and (a)(2), 62.200(b) and 62.210(a) are anticipated to require the
paperwork burden of the mine operator providing instructions to the
clerical worker. This burden is included in the total hours per
regulation column.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Number of Maintenance
Regulation Number of Hours per Number of responses per Total hours and operating Annualized
respondents response responses respondent per regulation costs capital costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Metal and Nonmetal Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
62.120(f)(1)........................ 6,218 2.00 n/a n/a 3,530 $597,922 $1,315,604
62.120(f)(2)........................ 6,218 0.08 35,300 6 490 1,253 0
62.120(c)(1)........................ 18 1.75 18 1 25 0 0
62.120(c)(1)........................ 18 0.05 103 5 5 26 0
62.130(b)........................... 6,218 0.05 35,300 6 2,385 8,825 0
62.140(b)(1)........................ 2,430 1.00 13,779 6 13,780 413,370 0
62.140(b)(3)........................ 2,430 0.08 13,779 6 1,345 3,445 0
62.150(b)........................... 2,430 0.08 13,779 6 1,345 3,445 0
62.150(c)........................... 2,430 0.05 13,779 6 930 3,445 0
62.160(b)(1)........................ 300 1.50 1,720 6 2,585 86,000 0
62.160(a)(1)........................ 2,430 0.08 13,779 6 1,345 3,445 0
62.160(a)(3)........................ 2,430 0.05 13,779 6 930 3,445 0
62.170(a)........................... 15 2.00 90 6 180 22,500 0
62.170(b)........................... 15 0.08 90 6 9 23 0
62.170(c)........................... 15 0.08 90 6 9 23 0
62.180(a)........................... 320 0.05 1,808 6 90 452 0
62.180(c)........................... 15 2.00 15 1 20 0 0
62.190(a)(1)........................ 2,430 0.08 13,779 6 1,345 3,445 0
62.190(a)(2)........................ 320 0.08 1,812 6 180 1,461 0
62.200(b)........................... 60 0.10 4,374 12 440 1,094 0
62.210(a)........................... 361 0.25 361 1 125 0 0
Monitoring (existing)............... 1,705 2.00 n/a n/a 970 163,953 360,744
--------------------------------------------------------------------------------------------------------------------------------------------------------
Large Metal and Nonmetal Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
62.120(f)(1)........................ 1,023 5.00 n/a n/a 1,455 $98,372 $216,446
62.120(f)(2)........................ 1,023 0.08 75,700 75 875 2,687 0
62.120(c)(1)........................ 40 2.25 40 1 90 0 0
62.120(c)(1)........................ 40 0.05 2,972 70 150 726 0
62.130(b)........................... 1,023 0.05 75,700 75 3,885 18,925 0
62.140(b)(1)........................ 301 1.00 22,328 75 22,330 669,840 0
62.140(b)(3)........................ 301 0.08 22,328 75 1,820 5,582 0
62.150(b)........................... 301 0.08 22,328 75 1,820 5,582 0
62.150(c)........................... 301 0.05 22,328 75 1,150 5,582 0
62.160(b)(1)........................ 40 1.50 2,790 70 4,185 139,500 0
62.160(a)(1)........................ 301 0.08 22,328 70 1,820 5,582 0
62.160(a)(3)........................ 301 0.05 22,328 70 1,150 5,582 0
62.170(a)........................... 2 2.00 174 85 344 43,500 0
62.170(b)........................... 2 0.08 174 85 15 44 0
[[Page 66365]]
62.170(c)........................... 2 0.08 174 85 15 44 0
62.180(a)........................... 50 0.05 3,490 70 175 873 0
62.180(c)........................... 35 2.25 35 1 80 0 0
62.190(a)(1)........................ 301 0.08 22,328 75 1,820 5,582 0
62.190(a)(2)........................ 40 0.08 2,965 70 240 742 0
62.200(b)........................... 10 0.10 5,601 560 560 1,400 0
62.210(a)........................... 10 1.00 10 1 10 0 0
Monitoring (existing)............... 250 5.00 n/a n/a 355 24,040 52,895
--------------------------------------------------------------------------------------------------------------------------------------------------------
Small Coal Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
62.120(f)(1)........................ 1,255 2.00 n/a n/a 715 $120,681 $265,533
62.120(f)(2)........................ 1,255 0.08 9,020 7 120 320 0
62.120(c)(1)........................ 20 1.75 20 1 30 0 0
62.120(c)(1)........................ 20 0.05 173 7 10 43 0
62.130(b)........................... 1,255 0.05 9,020 7 580 2,255 0
62.140(b)(1)........................ 536 1.00 3,851 7 3,851 115,530 0
62.140(b)(3)........................ 536 0.08 3,851 7 360 963 0
62.150(b)........................... 536 0.08 3,851 7 360 963 0
62.150(c)........................... 536 0.05 3,851 7 250 963 0
62.160(b)(1)........................ 70 1.50 480 7 720 24,050 0
62.160(a)(1)........................ 536 0.08 3,851 7 360 1,926 0
62.160(a)(3)........................ 536 0.05 3,851 7 250 0 0
62.170(a)........................... 4 2.00 24 6 48 6,000 0
62.170(b)........................... 4 0.08 24 6 2 6 0
62.170(c)........................... 4 0.08 24 6 2 6 0
62.180(a)........................... 60 0.05 507 8 25 127 0
62.180(c)........................... 20 1.25 20 1 25 0 0
62.190(a)(1)........................ 536 0.05 3,851 7 360 963 0
62.190(a)(2)........................ 73 0.05 505 7 50 126 0
62.200(b)........................... 15 0.10 610 40 60 131 0
62.210(a)........................... 160 0.25 160 1 60 0 0
Monitoring (existing)............... 1,762 0.50 25,334 14 12,670 357,492 169,434
Audiograms (existing)............... 35 1.00 74 2 70 2,220 0
Supplemental Noise Survey........... 420 0.05 840 2 (120) 0 0
Supplemental Noise Survey........... 420 0.25 5,980 14 (2,990) 0 0
Written HCP......................... 90 6.00 90 1 (535) 0 0
Calibration Reports................. 1,762 0.25 1,762 1 (440) 0 0
Survey Reports...................... 1,762 0.05 1,762 1 (90) 0 0
Monitoring Records.................. 1,762 0.10 25,334 14 (2,530) 0 0
Survey Certificates................. 1,762 0.05 1,762 1 (90) 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Large Coal Mines
--------------------------------------------------------------------------------------------------------------------------------------------------------
62.120(f)(1)........................ 890 5.00 n/a n/a 1,265 $85,582 $188,306
62.120(f)(2)........................ 890 0.08 66,667 75 770 2,367 0
62.120(c)(1)........................ 45 2.25 45 1 75 1,309 0
62.120(c)(1)........................ 45 0.05 5,237 75 290 0 0
62.130(b)........................... 890 0.05 66,667 75 3,420 16,667 0
62.140(b)(1)........................ 334 1.00 25,007 75 25,007 750,210 0
62.140(b)(3)........................ 334 0.08 25,007 75 2,035 6,252 0
62.150(b)........................... 334 0.08 25,007 75 2,035 6,252 0
62.150(c)........................... 334 0.05 25,007 75 1,285 6,252 0
62.160(b)(1)........................ 40 1.50 3,126 80 4,690 156,300 0
62.160(a)(1)........................ 334 0.08 25,007 80 2,035 6,252 0
62.160(a)(3)........................ 334 0.05 25,007 80 1,285 6,252 0
62.170(a)........................... 3 2.00 196 65 392 49,000 0
62.170(b)........................... 3 0.08 196 65 16 49 0
62.170(c)........................... 3 0.08 196 65 16 49 0
62.180(a)........................... 400 0.05 3,908 35 195 977 0
62.180(c)........................... 40 2.25 40 1 90 0 0
62.190(a)(1)........................ 334 0.05 25,007 75 2,035 6,252 0
62.190(a)(2)........................ 40 0.05 3,322 80 270 831 0
62.200(b)........................... 10 0.10 1,934 194 195 484 0
62.210(c)........................... 40 1.00 40 1 40 0 0
Monitoring existing................. 1,134 0.50 169,424 150 84,710 230,077 239,932
Audiograms (existing)............... 6 1.00 542 90 540 0 0
[[Page 66366]]
Supplemental Noise Survey........... 293 0.05 43,712 150 (21,860) 0 0
Supplemental Noise Survey........... 293 0.25 293 1 (40) 0 0
Written HCP......................... 67 6.00 67 1 (405) 0 0
Calibration Reports................. 1,134 0.25 1,134 1 (280) 0 0
Survey Reports...................... 1,134 0.05 1,134 1 (60) 0 0
Monitoring Records.................. 1,134 0.10 169,424 150 (16,940) 0 0
Survey Certificates................. 1,134 0.05 1,134 1 (60) 0 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
(D) Regulatory Flexibility Act
In accordance with Sec. 605 of the Regulatory Flexibility Act
(RFA), the Mine Safety and Health Administration certifies that the
noise proposal does not have a significant economic impact on a
substantial number of small entities. MSHA considers small mines to be
mines with fewer than 20 employees. However, for the purposes of the
RFA and this certification, MSHA has also evaluated the impact of the
proposal on mines up to and including those with fewer than 500
employees. No small governmental jurisdictions or nonprofit
organizations are affected. Under the Small Business Regulatory
Enforcement Fairness Act (SBREFA) amendments to the RFA, MSHA must
include in the proposal a factual basis for this certification. The
Agency also must publish the regulatory flexibility certification
statement in the Federal Register, along with the factual basis,
followed by an opportunity for comment by the public. The Agency has
consulted with the Small Business Administration (SBA) Office of
Advocacy and believes that this analysis provides a reasonable basis
for the certification in this case.
MSHA specifically solicits comment on the Agency's determination in
this regulatory flexibility certification statement, including cost
data and data sources. To facilitate the public participation in the
rulemaking process, MSHA will mail a copy of the proposed rule,
including the preamble and regulatory flexibility certification
statement, to every mine operator.
Factual Basis for Certification
The Agency has used a quantitative approach in concluding that the
proposed rule does not have a significant impact on a substantial
number of small entities. The Agency performed its analysis separately
for two groups of mines: the coal mining sector as a whole, and the
metal and nonmetal mining sector as a whole. Based on a review of
available sources of public data on the mining industry, the Agency
believes that a quantitative analysis of the impacts on various mining
subsectors (i.e., beyond the 4-digit SIC level) may not be feasible.
The Agency requests comments, however, on whether there are special
circumstances that warrant separate quantification of the impact of
this proposal on any mining subsector, and information on how it might
readily obtain the data necessary to conduct such a quantitative
analysis. The Agency is fully cognizant of the diversity of mining
operations in each sector, and has applied that knowledge as it
developed the proposal.
Under the RFA, MSHA must use the SBA definition for a small mine of
500 employees or fewer or, after consultation with the SBA Office of
Advocacy, establish an alternative definition for the mining industry
by publishing that definition in the Federal Register for notice and
comment. The alternative definition could be the Agency's traditional
definition of ``fewer than 20 miners,'' or some other definition. As
reflected in the certification, MSHA analyzed the costs of this
proposal for small and large mines using both the traditional Agency
definition, and SBA's definition, as required by RFA, of a small mine.
The Agency compared the costs of the proposal for small mines in each
sector to the revenues and profits for each sector for every size
category analyzed. In each case, the results indicated that the costs
as a percent of revenue are less than 1%. Further, the costs do not
appear to have any appreciable impact on profits.
The following table summarizes the results of this analysis for
mines which employ fewer than 500 miners, at various sizes.
Small Mines: Costs Compared to Revenues and Profits
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total
Estimated Estimated Average estimated Estimated Cost as % Cost as %
costs revenue profit as % profits cost per of revenue of profit
(thous.) (millions) of revenue (millions) small mine
--------------------------------------------------------------------------------------------------------------------------------------------------------
Coal Mines:
Small =20............................................... 332 19,094 3.82 729 293 0.00 0.05
Small =50............................................... (300) 16,408 3.82 627 (709) 0.00 -0.05
Small =100.............................................. (545) 13,888 3.82 531 (2,684) 0.00 -0.10
Small =250.............................................. (391) 7,326 3.82 280 (5,140) -0.01 -0.14
Small =500.............................................. (95) 831 3.82 32 (8,660) -0.01 -0.30
M/NM Mines:
Small =20............................................... 3,600 26,071 4.55 1,186 2,324 0.01 0.30
Small =50............................................... 2,306 19,186 4.55 873 4,359 0.01 0.26
[[Page 66367]]
Small =100.............................................. 1,714 14,953 4.55 680 6,418 0.01 0.25
Small =250.............................................. 1,000 8,442 4.55 384 14,492 0.01 0.26
Small =500.............................................. 466 5,866 4.55 267 17,249 0.01 0.17
--------------------------------------------------------------------------------------------------------------------------------------------------------
In determining revenues for coal mines, MSHA multiplied coal
production data (in tons) for mines in specific size categories
(reported to MSHA quarterly) by the average price per ton (from the
Department of Energy, Energy Information Administration, Annual Energy
Review 1995). For metal and nonmetal mines, the Agency estimated
revenues for specific mine size categories as the proportionate share
of these mines' contribution to the Gross National Product (from the
Department of the Interior, former Bureau of Mines, Mineral Commodity
Summaries 1996). Average profit as a percent of revenue for both coal
mines and metal and nonmetal mines comes from Dun & Bradstreet
Information Services, Industry Norms & Key Business Ratios, 1993-94.
Based on the information in the Agency's preliminary Regulatory
Impact Analysis (summarized in the ``costs'' table in the Question and
Answer section of this preamble), the costs of the proposal for all
metal and nonmetal mines with fewer than 20 employees would be $4.6
million; the average cost of the proposal for a small metal and
nonmetal mine with fewer than 20 employees is about $500. The average
cost of the proposal for a small metal and nonmetal mine with fewer
than 500 employees is about $700. For small coal mines with fewer than
20 employees, the proposal is estimated to result in a small net
savings of about $30. This savings results from the proposed
elimination of a substantial paperwork burden that now exists in the
coal mine sector for monitoring miners' noise exposures. For small coal
mines with fewer than 500 employees, the proposal is estimated to
result in a small net cost of about $130.
Regulatory Alternatives Rejected
The limited impacts on small mines, regardless of size definition,
reflect decisions by MSHA not to propose more costly regulatory
alternatives. In considering regulatory alternatives for small mines,
MSHA must observe the requirements of its authorizing statute. Section
101(a)(6)(A) of the Mine Act requires the Secretary to set standards
which most adequately assure, on the basis of the best available
evidence, that no miner will suffer material impairment of health over
his/her working lifetime. In addition, the Mine Act requires that the
Secretary, when promulgating mandatory standards pertaining to toxic
materials or harmful physical agents, consider other factors, such as
the latest scientific data in the field, the feasibility of the
standard and experience gained under the Act and other health and
safety laws. Thus, the Mine Act requires that the Secretary, in
promulgating a standard, attain the highest degree of health and safety
protection for the miner, based on the ``best available evidence,''
with feasibility as a consideration.
As a result of this statutory requirement, MSHA seriously
considered two alternatives that would have significantly increased
costs for small mine operators--lowering the PEL to a TWA8 of 85
dBA, and lowering the exchange rate to 3 dB. In both cases, the
scientific evidence in favor of these approaches was strong. But in
both cases, for the purpose of this proposal, MSHA has concluded that
it may not be feasible for the mining industry to accomplish these more
protective approaches. The impact of these approaches on small mine
operators was an important consideration in this regard. Part IV of
this preamble contains a full discussion of MSHA's preliminary
conclusions about these alternatives. The public is invited to propose
other alternatives for consideration.
Paperwork Impact
In accordance with the Regulatory Flexibility Act and the Paperwork
Reduction Act of 1995 (PRA 95), MSHA has analyzed the paperwork burden
for small mines. While the proposal results in a net paperwork burden
decrease for all mines, it results in an increase in paperwork hours.
For mines with fewer than 20 miners the proposal would result in an
increase of about 18,800 hours, and with fewer than 500 miners it would
result in a decrease of about 14,985 hours. The bulk of the new hours
(greater than 80%) is derived from the audiometric testing program and
procedures. While mines with fewer than 20 employees in the coal and
metal and nonmetal sectors will have extra burden hours associated with
new requirements, the net burden hours for small coal mines are
actually reduced, because the proposal would eliminate current
requirements for biannual noise surveys and other miscellaneous reports
and surveys in that sector. However, at this size level, there are more
metal and nonmetal mines than there are coal mines. Thus, at this size
level, the proposal would result in a net gain in paperwork burdens.
As required by PRA 95, MSHA has included in its paperwork burden
estimates the time needed to perform tasks associated with information
collection. For example, the proposed rule requires a mine operator to
notify a miner if the miner's noise exposure exceeds the action level.
In order to determine if notification is necessary, the mine operator
must perform dose determination monitoring. Although completion of the
notification would take 0.05 hour on average, the time for dose
determination must be included in the burden estimate according to the
new paperwork law. The proposal's average paperwork burden per small
metal and nonmetal mine is 4.8 hours and per small coal mine is 6 hours
per year.
Other Relevant Matters
In accordance with the Small Business Regulatory Enforcement
Fairness Act (SBREFA), MSHA is taking actions to minimize the
compliance burden on small mines. As discussed in the ``Questions and
Answers'' section of this preamble, MSHA is committed to writing the
final rule in plain English, so that it can be easily understood by
small mine operators. The proposed effective date of the rule would be
a year after final promulgation, to provide adequate time for small
mines to achieve compliance. Also, as stated
[[Page 66368]]
previously, MSHA will mail a copy of the proposed rule to every mine
operator which primarily benefits small mine operators. The Agency has
committed itself to issuance of a compliance guide for all mines, and
has invited comment on whether compliance workshops or other such
approaches would be valuable.
MSHA is considering whether to continue to use ``fewer than 20
miners'' as the definition of a small mine for purposes of the
Regulatory Flexibility Act (RFA). For this rulemaking's Regulatory
Flexibility Analysis, the Agency is using fewer than 20 employees, in
addition to the SBA's definition of fewer than 500, as required by the
RFA. MSHA presently is consulting with the SBA Office of the Chief
Counsel for Advocacy in order to determine an appropriate definition to
propose to the public for comment in the future. For purposes of this
proposed rule on noise, MSHA has continued its past practice of using
``under 20 miners'' as the appropriate point of reference, in addition
to SBA's definition. Reviewers will note that the paperwork and cost
discussions continue to refer to the impacts on ``small'' mines with
fewer than 20 employees. The Agency has not established a definition of
``small entity'' for purposes of the final rule. Based on this
analysis, MSHA concludes that whatever definition of ``small entity''
is eventually selected, the proposed noise rule does not have a
significant economic impact on a substantial number of small entities.
(E) Unfunded Mandates Act
MSHA has determined that, for purposes of Sec. 202 of the Unfunded
Mandates Reform Act of 1995, this proposal does not include any Federal
mandate that may result in increased expenditures by State, local, or
tribal governments in the aggregate of more than $100 million, or
increased expenditures by the private sector of more than $100 million.
Moreover, the Agency has determined that for purposes of Sec. 203 of
that Act, this proposed rule does not significantly or uniquely affect
small governments.
Background
The Unfunded Mandates Reform Act was enacted in 1995. While much of
the Act is designed to assist the Congress in determining whether its
actions will impose costly new mandates on State, local, and tribal
governments, the Act also includes requirements to assist Federal
agencies to make this same determination with respect to regulatory
actions.
Analysis
Based on the analysis in the Agency's preliminary Regulatory Impact
Statement (summarized in the ``cost'' table in the Questions and
Answers section of this preamble), the cost of this proposed rule for
the entire mining industry is less than $10 million. Accordingly, there
is no need for further analysis under Sec. 202 of the Unfunded Mandates
Reform Act.
MSHA has concluded that small governmental entities are not
significantly or uniquely impacted by the proposed regulation. The
proposed rule will impact approximately 14,000 coal and metal and
nonmetal mining operations; however, increased costs would be incurred
only by those operations where noise exposures exceed the allowable
limits. MSHA estimates that approximately 350 sand and gravel or
crushed stone operations are run by state, local, or tribal governments
and would be impacted by this rule. MSHA anticipates that these
entities would be able to reduce noise exposure below the PEL via
engineering and administrative controls and would not need to use a
Hearing Conservation Program, thereby minimizing their costs. MSHA
estimates that increased costs for these entities would be about $500
per year which would be partially offset by reduced worker compensation
costs. Other tangible benefits include reduction in the number of cases
of hearing impairment in these entities.
When MSHA issues the proposed rule, the Agency will affirmatively
seek input of any state, local, and tribal government which may be
affected by the noise rulemaking. This would include state and local
governmental entities who operate sand and gravel mines in the
construction and repair of highways and roads. MSHA will mail a copy of
the proposed rule to approximately 350 such entities.
Following is MSHA's state-by-state listing of sand and gravel mines
owned or operated by state or local governments.
The Agency welcomes any corrections.
State/County Owned/Operated Sand and Gravel Operations
[As of 12/08/95]
------------------------------------------------------------------------
State County City
State owned owned owned
------------------------------------------------------------------------
ARIZONA...................................... 2 2 .......
ARKANSAS..................................... ....... 5 .......
CALIFORNIA................................... ....... 4 .......
COLORADO..................................... 4 27 .......
IDAHO........................................ ....... 13 .......
ILLINOIS..................................... ....... 2 .......
INDIANA...................................... ....... 5 .......
IOWA......................................... ....... 2 .......
KANSAS....................................... ....... 2 .......
MAINE........................................ 5 ....... .......
MARYLAND..................................... ....... ....... 6
MICHIGAN..................................... ....... 8 .......
MISSISSIPPI.................................. ....... 5 .......
MISSOURI..................................... ....... 8 .......
MONTANA...................................... 8 34 .......
NEBRASKA..................................... ....... 2 .......
NEVADA....................................... ....... 1 .......
NEW MEXICO................................... ....... 4 .......
NEW YORK..................................... ....... 15 95
OKLAHOMA..................................... ....... 2 .......
OREGON....................................... ....... 11 .......
PENNSYLVANIA................................. ....... ....... 1
SOUTH CAROLINA............................... ....... 1 .......
SOUTH DAKOTA................................. ....... 15 .......
TENNESSEE.................................... ....... 3 .......
TEXAS........................................ ....... 6 .......
UTAH......................................... 1 5 .......
VERMONT...................................... ....... ....... 11
WASHINGTON................................... ....... 9 .......
WISCONSIN.................................... ....... 20 1
WYOMING...................................... ....... 1 .......
--------------------------
Total 346.............................. 20 212 114
------------------------------------------------------------------------
(F) Rulemaking History
MSHA's noise standards in metal and nonmetal mines (30 CFR 56/
57.5050) and in coal mines (Secs. 70.500 through 70.511, and
Secs. 71.800 through 71.805) were first published in the early 1970's.
These standards, derived from the Walsh-Healey Public Contracts Act
occupational noise standard, adopted a TWA8 PEL of 90 dBA and a 5-
dB exchange rate.
Because of the differences between the standards for coal mines and
those for metal and nonmetal mines, members of the mining community
with operations in coal and metal and nonmetal requested that MSHA
revise its standards to provide one set of noise standards covering all
mines. Other mine operators with facilities regulated by both MSHA and
OSHA suggested that MSHA promulgate noise standards which are generally
consistent with OSHA standards. The United Mine Workers also requested
that the Agency reconsider the existing standards to address several
asserted deficiencies.
Based on these comments and the incidence of noise-induced hearing
loss (NIHL) among miners, the Agency published an Advanced Notice of
Proposed Rulemaking (ANPRM) on December 4, 1989 (54 FR 50209). In this
[[Page 66369]]
ANPRM, the Agency solicited information for revision of the noise
standards for coal and metal and nonmetal mines. The Agency received
numerous comments which are reflected in this proposal from mine
operators, trade associations, labor groups, equipment manufacturers,
and other interested parties.
A draft of the proposed rule and accompanying analyses was sent to
the Office of Management and Budget and to the Chief Counsel for
Advocacy of the Small Business Administration, in accordance with law
and Executive Order. Consultations with these two agencies were
completed within 90 days. No substantive changes to the proposal were
recommended during these consultations, nor were any made by MSHA. The
Agency did receive valuable advice on the presentation of its initial
Regulatory Flexibility Analysis and on displaying the results of its
paperwork analysis, so as to better highlight the Agency's compliance
with PRA 95 and SBREFA.
In the Spring of 1996, the National Institute for Occupational
Safety and Health (NIOSH) released for peer review a draft criteria
document for occupational noise exposure to update the one issued in
1972. As indicated previously (see response to Question 6 in
``Questions and Answers''), MSHA has determined that it would not be
appropriate to delay publication of this proposed rule to await the
issuance of the final NIOSH criteria document.
A summary of the draft criteria document, prepared by NIOSH, is
reprinted here verbatim for those in the mining community who have not
otherwise received copies. This summary should provide ample notice of
the position NIOSH may be taking in a new criteria document.
April 16, 1996--(NIOSH) Summary of Recommendations, Criteria for a
Recommended Standard: Occupational Noise Exposure
1. Hearing Impairment and Risk Assessment
The protection goal incorporated in most definitions of hearing
impairment has been to preserve hearing at critical audiometric
frequencies for speech discrimination. Hearing impairment as defined
by NIOSH in 1972 was an average of the hearing threshold levels
(HTLs) at the audiometric frequencies of 1000, 2000 and 3000 Hertz
(Hz) that exceeded 25 decibels (dB). The 4000-Hz audiometric
frequency has been recognized as being not only sensitive to noise
but also extremely important for hearing and understanding speech in
unfavorable or noisy listening conditions. Because listening
conditions are not always ideal in everyday life, and on the basis
of the American Speech Language-Hearing Association Task Force's
proposal made in 1981, NIOSH has modified its definition of hearing
impairment to include the 4000-Hz audiometric frequency for use in
assessing the risk of occupational NIHL. Hence, with this
modification, NIOSH defines material hearing impairment as an
average of the HTLs at 1000, 2000, 3000 and 4000 Hz that exceeds 25
dB.
Because of the prolific occupational use of hearing protectors
since the early 1980's, new data that can be used to determine dose-
response relationships for NIHL in U.S. workers are not known to
exist. NIOSH recently conducted a risk assessment on occupational
noise-induced hearing loss (NIHL) using the original definition of
hearing impairment and the hearing data from the 1972 criteria
document. Although the risk model used in the new assessment is
different from the risk model used in 1972, the excess risk
estimates derived in the new assessment are comparable to those
published in 1972. The excess risk at age 60 from a 40-year
occupational exposure to an average daily noise level of 85
decibels, a weighted network (dBA) is approximately 14%, versus the
16% published in 1972. With the new NIOSH definition of hearing
impairment, and based on the new risk assessment, the excess risk at
the 85-dBA REL is 8%. Thus, the new risk assessment did not revise
the excess risk at the 85-dBA REL upward, and although there is
still evidence of excess risk at exposure levels below 85 dBA, NIOSH
is recommending that the current REL be retained.
2. Exchange Rate
Health effect outcomes are dependent on exposure level and
duration. This relationship is called the ``exchange rate,'' which
is the increment in decibels that requires the halving of exposure
time. The most commonly used exchange rates are 3 dB and 5 dB. A 3-
dB exchange rate requires that noise exposure time be halved for
each 3-dB increase in noise level; likewise, a 5-dB exchange rate
requires that exposure time be halved for each 5-dB increase. NIOSH
now recommends the 3-dB exchange rate. The 1972 criteria document
recommended the 5-dB exchange rate, which is what OSHA and MSHA
currently enforce. There is more scientific, although not
unequivocal, support for the 3-dB exchange rate than for the 5-dB
exchange rate, which is not based on scientific data and is derived
from a series of over-simplifications of the original criteria. The
3-dB exchange rate is recommended by the International Organization
for Standardization (ISO), and it is now enforced by most European
countries and some provinces of Canada. In the U.S., there have been
recent ``converts'' to the 3-dB exchange rate: the U.S. Air Force in
1993; and the American Conference of Governmental Industrial
Hygienists and the U.S. Army in 1994.
3. Ceiling Limit
In the 1972 criteria document, NIOSH recommended a ceiling limit
of 115 dBA, which is retained in this draft criteria document.
Exposures to noise levels greater than 115 dBA would not be
permitted regardless of the duration of the exposure. This ceiling
limit is based on the assumption that above a critical intensity
level the ear's response to energy no longer has a relation to the
duration of the exposure, but is only related to the intensity of
the exposure. Recent research with animals indicates that the
critical level is between 115 and 120 dBA. Below this critical
level, the amount of hearing loss is related to the intensity and
duration of exposure; but above this critical level, the
relationship does not hold. For a noise standard to be protective,
there should be a noise ceiling level above which no unprotected
exposure is permitted. Given the recent data, 115 dBA is a
reasonable ceiling limit beyond which no unprotected exposure should
be permitted.
4. Hearing Protectors
One consideration for selecting a hearing protector would be its
noise reduction capabilities, which are expressed in terms of a
noise reduction rating (NRR). The NRR is a single-number,
laboratory-derived rating required by the Environmental Protection
Agency (EPA) to be shown on the label of each hearing protector sold
in the U.S. In the late 1970's and early 1980's, two NIOSH field
studies found that insert-type hearing protectors in the field
provided less than one-half the attenuation measured in the
laboratory, and since the 1970's, 22 additional studies of ``real-
world'' attenuation with a variety of hearing protectors have shown
similar results.
In calculating the noise exposure to the wearer of a hearing
protector, OSHA has implemented the practice of derating the NRR by
one-half for all types of hearing protectors. In the 1972 criteria
document, NIOSH recommended the use of the equivalent full NRR
value, but now it recommends derating the NRR by 25%, 50% and 70%
for earmuffs, formable earplugs and all other earplugs,
respectively. This derating scheme is not perfect and is intended
only as an interim recommendation. If the testing and labeling
requirements for hearing protectors are to be changed, EPA must
initiate the rulemaking procedures because it has the statutory
authority. Given that the funding for EPA's Office of Noise
Abatement and Control was eliminated in the early 1980's, this
change is unlikely to occur in the near future.
The draft also recommends that hearing protectors be worn for
any noise exposure over 85 dBA, regardless of exposure duration.
This measure is simplistic but extremely protective because its
implementation does not require the calculation of time-weighted-
average (TWA) exposures. This ``hard-hat'' approach, as opposed to
predicating the requirement on TWA exposures, is a departure from
what was recommended in 1972. It appears to be a prudent policy,
which the U.S. Army has been using for years, but there are no data
in the document to support this recommendation.
5. Exposure Level Requiring a Hearing Loss Prevention Program
In this draft document, the requirement for a hearing loss
prevention program (HLPP), which includes audiometry, worker
education, etc., is triggered by the exposure level of 82 dBA, 8-
hour TWA (i.e., \1/2\ of the REL). This level is essentially an
``action level''--a concept developed in the mid-
[[Page 66370]]
1970's to address interday exposure variability and later adopted
in the Standards Completion Program as \1/2\ of an exposure limit.
In the 1972 criteria document, which preceded the Standards
Completion Program, the requirement for a HLPP began at the REL of
85 dBA, 8-hour TWA.
6. Types and Frequency of Audiometric Examinations
In this draft document, the recommended types (i.e., baseline,
monitoring, confirmation and exit audiograms) and frequency of
audiometric examinations are different from those in the 1972
criteria document. The new recommendations are in line with current
practices in HLPPs.
7. Significant Threshold Shift
Significant threshold shift is a shift in hearing threshold
levels, outside the range of audiometric testing variability
(5 dB), that warrants follow-up action to prevent
further hearing loss. NIOSH recommends an improved significant
threshold shift criterion, which is an increase of 15 dB in hearing
threshold at 500, 1000, 2000, 3000, 4000, or 6000 Hz that is
repeated for the same ear and frequency in back-to-back tests. This
criterion is different from that in the 1972 criteria document, and
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