Safety Standards for Underground Coal Mine Ventilation

SUMMARY: MSHA is proposing to amend the examination interval for

preshift examinations of underground coal mines by requiring preshift

examinations to be conducted at 8-hour intervals. After MSHA

promulgated a comprehensive revision of its ventilation standards in

March of 1996, the United States Court of Appeals for the District of

Columbia Circuit (Court) reviewed the validity of the rule. On June 17,

1997, the Court issued an order invalidating, on procedural grounds

only, the provision relating to the interval for preshift examinations.

This proposed rule would be essentially the same as the standard that

was promulgated in 1996 and invalidated by the Court on procedural

grounds. The proposed rule would clarify both when a preshift

examination would be required and the length of the shift covered by

the preshift examination.

DATES: Comments must be submitted on or before September 14, 1998.

Submit written comments on the information collection no later than

September 14, 1998.

ADDRESSES: 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: MSHA, Office of

Standards, Regulations, and Variances, 703-235-5551. Send mail comments

to: MSHA, Office of Standards, Regulations, and Variances, 4015 Wilson

Boulevard, Room 631, Arlington, VA 22203-1984. Commenters are

encouraged to submit comments to MSHA on a computer disk along with

their original comments in hard copy. Submit written comments on the

information collection requirement to MSHA at the address above and to

the Office of Information and Regulatory Affairs, Office of Management

and Budget, New Executive Office Bldg., 725 17th St. NW., Rm. 10235,

Washington, DC 20503, Attn: Desk Officer for MSHA.

FOR FURTHER INFORMATION CONTACT: Patricia W. Silvey, Director, Office

of Standards, Regulations, and Variances, MSHA: 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Paperwork Reduction Act

This proposed rule contains an information collection which is

subject to review by the Office of Management and Budget (OMB) under

the Paperwork Reduction Act of 1995 (PRA 95). 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 to conduct an additional preshift examination, the

time to make a record, the time to obtain a countersignature from the

mine foreman or equivalent mine official, and the time to file the

form.

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 the functions of the Agency,

including whether the information will have practical utility; (2) the

accuracy of the estimate by MSHA 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

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.

Description

Section 75.360(a)(1) would require that a certified person

designated by the operator make a preshift examination within 3 hours

preceding the beginning of any 8-hour interval during which any person

is scheduled to work or travel underground. Presently Sec. 75.360(f)

requires a record of the results of each preshift examination,

including a record of hazardous conditions and their locations found by

the examiner during each examination and of the results and locations

of air and methane measurements. The record must also include a

notation that the hazardous conditions found during the preshift

examination were corrected. This record must be countersigned by the

mine foreman or equivalent mine official by the end of the mine

foreman's or equivalent mine official's next regularly scheduled

working shift. The mine operator has the option of conducting a portion

of the additional preshift examination concurrently with the on-shift

examination. In this instance, the additional preshift examination

essentially would consist of the examination of outby areas not covered

by an on-shift examination such as travelways, work areas, and

electrical installations. Because large mines generally have longer

outby travelways and more outby work areas and electrical installations

to be examined than small mines, the additional time to perform the

preshift examination would take longer in large mines. MSHA estimates

that it would take an examiner an additional hour to conduct an

additional preshift examination in a large underground coal mine and an

additional 45 minutes in a small underground coal mine. An examiner

would take about 30 minutes to make the record in a large mine and

about 15 minutes in a small mine, and the mine foreman or equivalent

mine official would take about 10 minutes to review and countersign the

record in a large mine and about 5 minutes in a small mine.

Description of Affected Mines

The affected mines are underground coal mines. MSHA estimates that

this provision annually would affect 127 underground coal mines (75

with fewer than 20 employees and 52 with 20 or more employees).

Information Collection Burden

Based on MSHA's traditional definition of ``small mine'' as one

with fewer than 20 employees, the total estimated burden for all

affected mines would be 78,001 hours, and compliance costs associated

with such hours would be $2,182,000. Under MSHA's traditional

definition, total burden to small mines would be 13,000 hours at a cost

of $361,000. Specifically, small mines' burden hours and costs consist

of: 9,000 hours related to conducting the additional preshift

examination at a cost of $243,000; 3,000 hours related to making the

record at a cost of $81,000; and 1,000 hours related to reviewing,

countersigning and filing the record at a cost of $37,000. The total

burden to large mines would be 65,001 hours at a cost of $1,821,000.

Large mines' burden hours and costs consist of: 39,000 hours related to

conducting the preshift examination at a cost of $1,053,000; 19,500

hours related to making the record at a cost of $527,000; and 6,501

hours related to reviewing, countersigning and filing the record at a

cost of $241,000.

Using the SBA definition, when a ``small mine'' is defined as a

mine with 500 or fewer employees, 126 of the 127 affected mines are

considered small. Under this definition, 76,751 of the 78,001 burden

hours are related to small mines. The costs related to the 76,751

burden hours are $2,147,000. Of the

[[Page 38067]]

76,751 burden hours: 47,250 hours are related to conducting the

additional preshift examination at a cost of $1,276,000; 22,125 hours

are related to making a record at a cost of $598,000; and 7,376 hours

are related to reviewing and countersigning the record at a cost of

$273,000. Burden hours to the one large mine affected would be 1,250

hours at a cost of $35,000.

Under Sec. 3507(o) of PRA 95, the Agency has submitted a copy of

this proposed rule to OMB for its review and approval of the

information collection. Interested persons are requested to send

comments regarding these burden estimates or any other aspect of this

information collection, including suggestions for reducing this burden

to: (1) the Office of Information and Regulatory Affairs, OMB, Attn:

Desk Officer for MSHA, New Executive Office Bldg., 725 17th St. NW.,

Rm. 10235, Washington, DC 20503; and (2) Patricia W. Silvey, Director,

Office of Standards, Regulations, and Variances, MSHA, 4015 Wilson

Boulevard, Room 631, Arlington, VA 22203.

II. Background

The preshift examination is a critically important, fundamental

safety practice in the mining industry. It has historically been a

primary means of determining the effectiveness of an underground coal

mine ventilation system, and of detecting hazardous conditions and

practices. The preshift examination has proven to be particularly

effective because it provides a thorough safety check before work

commences underground on the shift for which the examination is

conducted. A preshift examination can detect developing hazards as well

as existing hazards.

The Federal Mine Safety and Health Act of 1977 (Mine Act) contains

interim mandatory safety standards that address preshift examinations.

Interim standard Sec. 303(d)(1) requires that preshift examinations be

conducted ``within 3 hours immediately preceding the beginning of any

shift * * *.'' MSHA adopted this provision as a permanent safety

standard in its regulations for underground coal mines, promulgating it

in 1978 as 30 CFR 75.303(a).

Section 303(d)(2) of the Mine Act is another interim standard that

addresses preshift examinations. It provides that no person, other than

certified persons designated to conduct the examination, is permitted

to enter any underground area, except during any shift, unless a

preshift examination of such area has been made within 8 hours prior to

the person entering the area. Under this provision, miners already

working on a shift for which a preshift has been completed may remain

working underground during the subsequent preshift examination being

conducted for the oncoming shift. In 1978, MSHA adopted this provision

as a permanent safety standard in its regulations for underground coal

mines as 30 CFR 75.303(b).

The general practice in the mining industry at the time the Mine

Act was enacted was for coal miners to work in shifts of 8 hours. Thus,

the effect of the preshift examination requirement was that examiners

conducted preshift examinations every 8 hours. Since 1977, overlapping

work shifts and work shifts of various lengths (novel work shifts) have

become common, making it necessary for MSHA to address this issue in

its 1992 revisions to the ventilation standards for underground coal

mines.

MSHA revised its preshift examination standards as part of a final

rule for ventilation standards and retained the requirement that

preshift examinations are to be conducted ``within 3 hours preceding

the beginning of any shift.'' However, in its preamble discussion to

the 1992 ventilation final rule (57 FR 20893), MSHA interpreted this

language to mean that if the mine used regular shifts that were longer

than 8 hours in length, the preshift examination would apply to the

entire length of the shift. The 1992 revisions continued to allow work

to proceed underground during the preshift examination for the oncoming

shift.

In 1994, the Agency proposed a new preshift examination rule in an

attempt to clarify and standardize the application of certain

provisions of the 1992 preshift examination rule. In the comments

submitted to MSHA during the 1994 rulemaking, a segment of the mining

community expressed concern that because of novel work schedules,

preshift examinations were not being conducted frequently enough to

assure safe working conditions. A second concern expressed was that

conducting preshift examinations at intervals longer than 8 hours would

reduce the protection afforded miners under the Mine Act. A final

concern expressed was that MSHA introduced confusion into the preshift

examination requirements when it interpreted the acceptable intervals

for preshift examinations. Another segment of the public argued that by

the language of Sec. 303(d)(2) Congress tacitly accepted shifts longer

than 8 hours with only one preshift examination required. The same

segment of the public argued that a practice had built up over a period

of time allowing not only longer shifts but also ``excursions'' where

miners work over 8 hours under specific conditions. Finally, commenters

representing both labor and industry recommended that MSHA adopt a rule

requiring preshift examinations for each 8 hour period that miners are

underground.

In response to these comments, the Agency substituted the phrase

``8-hour interval'' for the phrase ``beginning of any shift'' when it

promulgated the 1994 proposed rule as a final rule in 1996. The 1996

standard thus required a preshift examination, ``* * * within 3 hours

preceding the beginning of any 8-hour interval during which any person

is scheduled to work or travel underground * * *''. MSHA also

acknowledged in the preamble to the final rule (61 FR 9791) that, in

accordance with longstanding practice, unplanned short excursions past

the 8-hour period that occur infrequently are accepted without an

additional preshift examination.

In the preamble to the 1996 final rule (61 FR 9791), MSHA discussed

its rationale for adopting an 8-hour preshift examination rule. MSHA

stated that:

* * * MSHA agrees with commenters that evolution within the industry

in shift scheduling has presented a number of questions and

controversies regarding the standard which must be resolved to

assure that proper preshift examinations are conducted within

suitable time frames. Based on comments, the final rule adopts a

modification to clarify and standardize the application of the

preshift examination in recognition of the use of novel shifts while

maintaining the protection of the existing standard. * * *

Underground working schedules of three 8-hour shifts per day

were virtually standard when the previous rule was implemented.

Currently a substantial number of mining operations have work shifts

of more than 8 hours. Other operations stagger or overlap shifts

providing for continuous underground mining activities. Some mines

that operate around the clock schedule persons to begin shifts at

one- or two-hour intervals. In such cases, controversies and

misunderstandings have developed regarding application of the

current standard.

In adopting an 8-hour preshift requirement, the Agency also agreed

(61 FR 9791) with comments suggesting that ``the original legislation

of the Mine Act envisioned that preshift examinations would be

conducted for each 8-hour interval that persons worked underground.''

MSHA reached this conclusion both from the traditional practice at the

time of the legislation and from the language of Sec. 303(d)(2) of the

Mine Act.

On June 17, 1997, the United States Court of Appeals for the

District of

[[Page 38068]]

Columbia Circuit, in National Mining Association v. Mine Safety and

Health Administration and Secretary of Labor (MSHA), 116 F.3d 520,

(D.C. Cir. 1997) issued an order granting a petition for review on the

National Mining Association's challenge of 30 CFR 75.360(a) relating to

preshift examinations. The court acknowledged that the approach used by

MSHA in adopting the 8-hour time interval for the preshift examination

was a reasonable one,1 but invalidated the provision on

procedural grounds due to lack of sufficient notice to the parties in

the rulemaking (supra 116 F.3d 520, 530). The effect of the decision

was to reinstate the portion of the previous regulation that requires a

preshift examination to be conducted prior to the beginning of any

shift. MSHA published a Federal Register document on June 30, 1997 (62

FR 35085) conforming the language of the existing standard to the

Court's order.

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\1\ The Court stated, ``At the least, 30 CFR 75.360(a)(1) is a

reasonable interpretation of open-ended statutory language. * * * We

see no reason why we should not think of 30 CFR 75.360(a)(1) as just

such an `improved mandatory safety standard[]' issued in light of

changed circumstances in the mining industry.'' (116 F.3d 520, 530)

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MSHA continues to believe that it is necessary to address the

issues surrounding the preshift examination interval. The standard must

provide for sufficient protection, be clear in its recommendations, and

be properly implemented to ensure safe working conditions in

underground coal mines. Accordingly, MSHA encourages all parties to

fully express their viewpoints during this rulemaking to assist the

Agency in promulgating a final rule that most appropriately addresses

the safety of our nation's underground coal miners.

III. Discussion

Section 75.360 Preshift Examination at Fixed Intervals

Existing Sec. 75.360(a)(1) of the MSHA ventilation standards

provides

Except as provided in paragraph (a)(2) of this section, a

certified person designated by the operator shall make a preshift

examination within 3 hours preceding the beginning of any shift

during which any person is scheduled to work or travel underground.

No person other than certified examiners may enter or remain in any

underground area unless a preshift examination has been completed

for the shift.

Proposed paragraph (a)(1) would modify the existing language of

Sec. 75.360(a)(1) to require preshift examinations at fixed 8-hour

intervals. It would replace the word ``shift'' with the phrase ``8-hour

interval''. In addition, the proposed rule would add the sentence,

``The operator shall establish the 8-hour intervals of time subject to

the required preshift examinations.''

The Agency believes that, considering the speed at which

underground conditions can change, a reasonable period must be

identified after which another examination is necessary. For example,

methane, an explosive gas naturally occurring in coal mines, commonly

builds up over time, especially in newly mined areas. Methane may also

accumulate in other areas, such as where water accumulation interferes

with mine ventilation. A preshift examination should result in the

detection of this explosive gas and the timely correction of the

condition before it reaches a hazardous level. Also, the roof and ribs

tend to deteriorate over time in outby entries used as travelways and

on the sections of a mine where miners are assigned to work. Roof

pressures and subsequent falls can damage ventilation controls,

resulting in hazardous conditions. Equipment damaged by a roof fall,

including belt haulage systems or trolley wire systems, can lead to

mine fires or explosions. A preshift examination provides a vehicle to

detect these developing hazards.

MSHA has reviewed the history of fatalities that have occurred at

underground coal mines since 1990 to determine if any of the fatalities

occurred more than 8 hours after the start of the shift, and therefore

may have been prevented had the proposed rule been in place. MSHA has

placed in the rulemaking record 32 fatal accident reports of MSHA

investigations conducted since 1990 in which the accident was

identified as occurring more than 8 hours into the shift. At least six

of the reports, representing seven fatalities, address instances where

an additional preshift examination might have identified the hazards

that resulted in the fatalities and allowed an opportunity for

corrective action.2 This is approximately 3 percent of the

total number of fatalities which occurred at underground coal mines

during this time period.

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\2\ The accidents are: Linda Enterprise, Inc., #31-A mine, March

23, 1990, 1 fatality; Waco Limited Partnership No.1, No. 2 mine,

December 18, 1995, 1 fatality; Miller Branch Enterprises, Inc., No.

1 mine, 1 fatality; MAG Inc., Alloy Deep Mine #2, October 2, 1993, 1

fatality; M&D Coal Co., Inc., No. 3 mine, August 15, 1996, 1

fatality; and Day Branch Coal Co., Inc., No. 9 mine, May 11, 1994, 2

fatalities.

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In reviewing these accident reports, MSHA recognizes the difficulty

in determining whether an additional preshift examination would have

prevented a specific fatality from occurring, particularly since prior

examinations had in some cases failed to identify the hazardous

conditions or practices. However, MSHA does not concede that subsequent

examinations will necessarily fail in their purpose simply because one

or more previous examinations may have been inadequate. A preshift

examination conducted at 8-hour intervals would provide an opportunity

for the examiner to identify hazardous conditions or practices that may

have been overlooked in an earlier examination. It should also be noted

that the conditions in a mine may have further deteriorated after 8

hours into the shift, and that the same examiner or a different

examiner conducting the additional preshift examination might have

identified the hazard and caused appropriate actions to be taken to

correct the condition and protect the safety of the miners.

It is not the intent of the Agency that the preshift examination be

a continuous examination without a beginning or an end. Once a preshift

examination has been conducted, an additional preshift examination

would not be necessary during the 8-hour interval covered by the

preshift examination simply because persons start to work after the

beginning of the normal shift start time. Under the proposed rule,

persons could enter or leave the mine, regardless of their shift

schedule, during any established 8-hour period for which a preshift

examination has been conducted. However, another preshift examination

must be completed prior to the beginning of the next 8-hour interval if

any persons, other than examiners, remain in the mine during the next

8-hour interval or are scheduled to enter the mine during the oncoming

interval. For example, if the established time interval for the 8-hour

preshift examination covers the period from 8:00 a.m. to 4:00 p.m., no

one except mine examiners may enter the mine or remain underground

after 4:00 p.m. unless a preshift examination has been conducted for

the 8-hour interval beginning at 4:00 p.m. As with the existing

standard, no person other than examiners may enter any underground area

that is subject to a preshift examination prior to the completion of

the preshift examination for that area. Also, supplemental examinations

continue to be required under Sec. 75.361 before anyone enters areas of

the mine that had not had a preshift examination.

The proposal would require one preshift examination at mines that

operate with only one 8-hour shift per day. If the mine uses regular

shifts that

[[Page 38069]]

are longer than 8 hours in length, the preshift examination would cover

an 8-hour interval. The proposal would require three preshift

examinations where persons are underground for more than 16 hours per

day. For example, at a mine operating two 10-hour shifts per day, the

proposed rule would require three examinations per day. As with the

existing standard, the proposed rule would not require examinations for

designated 8-hour periods when no one enters the mine. Also consistent

with the existing standard, no one, except other designated preshift

examiners, may accompany a preshift examiner during the examination.

MSHA recognizes that the proposed rule may cause some mine

operators to perform additional examinations that are not currently

required. For example, some mines operate single or multiple extended

shifts of up to 14 hours each. Mines that are not currently conducting

preshift examinations at 8-hour intervals during extended shifts would

be impacted by the proposed rule. The proposed rule would require

additional preshift examinations at these mines. During the 1996 MSHA

ventilation rulemaking and subsequent litigation, a segment of the

mining community expressed the view that extended and novel work shifts

are being used more frequently by mine operators and that the time

interval for preshift examinations should not be limited to 8 hours.

The Agency solicits comments on the benefits and hazards associated

with an alternative approach to preshift examinations that would permit

an 8\1/2\, 9, or up to a 10-hour interval for preshift examinations.

The Agency specifically solicits comments on any benefits and hazards

that may be associated with this alternative approach.

Earlier comments suggested that the longstanding MSHA practice of

accepting certain excursions beyond the 8-hour preshift examination

time interval should be continued. MSHA has permitted excursions in the

past when miners are required to stay beyond an 8-hour shift to catch

up on production, perform mechanical repairs, install roof support, or

as a result of a mantrip delay. The Agency solicits comments on:

whether any excursions should be permitted beyond 8 hours without an

additional examination; the maximum length of any such excursion; and

the safety impact of such an excursion.

A commenter has stated that requiring preshift examinations every 8

hours creates overlaps and confusion with State laws, specifically the

laws of West Virginia. While MSHA is not barred from promulgating

otherwise appropriate safety and health standards because they may

result in additional responsibilities for operators, neither does the

Agency desire to impose requirements that are confusing or unduly

burdensome.

A commenter in the 1996 ventilation rulemaking also suggested that

the regulation should stipulate specific times for examinations, such

as 12:00 midnight, 8:00 a.m., and 4:00 p.m. as the beginning of the 8-

hour intervals for which preshift examinations would be required. MSHA

believes there is no safety or health benefit to be gained through

prohibiting operators from adopting other 8-hour intervals, e.g., 10:00

p.m., 6:00 a.m., and 2:00 p.m., to accommodate their individual

operations and the proposed standard would therefore allow operators

the flexibility to establish their own shift schedules. For example, an

operator may elect a starting time of 11:00 a.m. for a weekend project,

provided the preshift examination is conducted within the 3 hours prior

to the beginning of the shift.

As proposed, the preshift examination would be conducted within 3

hours preceding the beginning of any 8-hour interval. For accuracy, the

title of Sec. 75.360 would be changed from ``Preshift examination'' to

``Preshift examination at fixed intervals.'' The text of the proposed

standard and the preamble discussion of the standard would continue to

refer to the examination as the ``preshift examination.'' Because of

the history of the term and the widespread understanding in the

industry of the safety checks required by a preshift examination, MSHA

is proposing to continue the use of the term ``preshift examination''

in the body of the standard and to continue to refer to the examination

as the preshift examination.

IV. Executive Order 12866 and Regulatory Flexibility Act

Executive Order 12866 requires that agencies assess both the costs

and benefits of proposed regulations. MSHA has determined that this

proposed rule does not meet the criteria of a significant regulatory

action and, therefore, has not prepared a separate analysis of costs

and benefits. All of the compliance costs of this proposed rule are

paperwork related costs. Thus, the derivation of the compliance costs

that are summarized in this document are contained in the paperwork

package that was submitted to the Office of Management and Budget.

Copies of the paperwork package are available upon request from MSHA,

Office of Standards, Regulations, and Variances (703-235-1910).

Benefits

A timely preshift examination in underground coal mines is a

primary method of assuring safety to miners. Coal miners rely on the

preshift examination to provide protection and often take it for

granted that an adequate examination has been conducted.

There is a potential for multiple fatalities in an underground coal

mine when explosive quantities of methane exist or when a roof

deteriorates and falls. It is extremely difficult to specifically

quantify safety benefits related to a particular safety factor such as

a preshift examination. Due to the hazardous environment that miners

work in, an unsafe condition or work practice could jeopardize the

well-being of all miners underground.

As discussed earlier, MSHA has identified seven fatalities,

associated with six mining accidents that have occurred since 1990,

which could potentially have been prevented if the requirements of the

proposed rule were followed. This is approximately 3 percent of the

total number of fatalities which occurred at underground coal mines

during this time period.

During this same period of time there were 59,000 injuries for all

underground coal mines. Although the reports of the accidents do not

permit us to make a precise analysis of the causes of all the injuries,

if we were to extrapolate using the same 3 percent that we used for

fatalities the Agency predicts that 1,770 injuries might have been

prevented. MSHA believes that if a preshift examination had been

conducted at the intervals that would be established by the proposed

rule, it is reasonable to expect that the examiners would have

identified at least some of the hazardous conditions or practices

resulting in the injuries and fatalities. MSHA realizes that in some

cases this assumes that the additional preshift examinations would have

identified hazardous conditions or practices that earlier examinations

failed to recognize. However, an additional examination would afford

the mine operator with another opportunity to identify hazards. MSHA

believes that this position is reasonable and that subsequent

examinations could discover hazardous conditions or practices, even

though earlier examinations may have been inadequate. Furthermore, the

requirement that a preshift examination be conducted during every 8-

hour interval is not unreasonable in light of the fact that within such

a time period it is possible that conditions in a mine

[[Page 38070]]

can deteriorate. It was in this spirit that Congress originally enacted

the interim preshift examination standards which envisioned such

examinations occurring for each 8-hour shift.

Therefore, MSHA has found it prudent to take a conservative

approach and propose an 8-hour interval for preshift examinations to

provide adequate protection for miners. This proposed rule should

decrease the occurrence of fatalities, injuries, and accidents in

underground coal mines.

Compliance Costs

MSHA estimates that approximately 127 underground coal mine

operators would need to conduct an additional preshift examination.

Based on a small mine definition of fewer than 20 employees, about 75

of the mines are small mines and 52 are large mines. The mine operator

has the option of conducting a portion of the additional preshift

examination concurrently with the on-shift examination. Therefore, the

compliance costs of the additional preshift examination essentially

consist of the cost of the examination of outby areas not covered by an

on-shift examination, such as travelways, work areas, and electrical

installations.

The proposed rule is estimated to cost about $2,182,000 per year,

of which small mine operators (those with fewer than 20 employees)

would incur about $361,000 per year and large mine operators would

incur $1,821,000 per year.

V. Regulatory Flexibility Act (RFA) and Small Business Regulatory

Enforcement Fairness Act (SBREFA)

The RFA requires regulatory agencies to consider a rule's impact on

small entities. Under the SBREFA amendments to the RFA, MSHA must use

the Small Business Administration (SBA) definition for a small mine of

500 or fewer employees or, after consultation with the SBA Office of

Advocacy, establish an alternative definition for the mining industry

by publishing that definition in the Federal Register for notice and

comment. MSHA traditionally has considered small mines to be those with

fewer than 20 employees. For the purposes of the RFA and this

certification, MSHA has analyzed the impact of the proposed rule on all

affected mines with 500 or fewer employees, as well as on those with

fewer than 20 employees.

The Agency has provided a copy of this proposed rule and regulatory

flexibility certification statement to the SBA Office of Advocacy. In

addition, MSHA will mail a copy of the proposed rule, including the

preamble and regulatory flexibility certification statement, to all

mine operators and miners' representatives.

Regulatory Flexibility Certification

In accordance with section 605 of the RFA, MSHA certifies that this

proposed rule would not have a significant economic impact on a

substantial number of small entities. No small governmental

jurisdictions or nonprofit organizations are affected.

Under the SBREFA amendments to the RFA, MSHA must include a factual

basis in the proposed rule for this certification. The Agency also must

publish the regulatory flexibility certification in the Federal

Register, along with its factual basis, followed by an opportunity for

comment by the public.

Factual Basis for Certification

The underlying data in Table I shows that the compliance costs of

this proposed rule does not exceed 1 percent of the estimated revenues

of the underground coal mines affected by this proposed rule. When

small underground coal mines affected by this proposed rule are defined

as those that employ fewer than 20 employees, then small mines account

for about $361,000 of the total compliance costs and estimated revenues

of such mines are approximately $50.2 million. Thus compliance costs as

a percent of estimated revenues for the affected mines are 0.72

percent. When small underground coal mines affected by this proposed

rule are defined as those that employ 500 or fewer employees, then

small mines account for $2,147,000 of the total compliance costs and

estimated revenues of such mines are approximately $641,237,000. In

this case compliance costs as a percentage of estimated revenues for

the affected mines are 0.33 percent.

Table I.--Costs and Revenues For Affected Underground Coal Mines

------------------------------------------------------------------------

Estimated

Proposed revenues of Costs as

Section 75.360(a)(1) rule costs affected percent of

(thous.) mines revenues

(thous.)

------------------------------------------------------------------------

Small Mines (<20)................ $361 $50,200 0.72

Small Mines (500)................ $2,147 $641,237 0.33

------------------------------------------------------------------------

This proposed rule would not have a significant impact on a

substantial number of small entities that are affected by this rule.

VI. Unfunded Mandates and Executive Order 12875

For purposes of the Unfunded Mandates Reform Act of 1995, as well

as E.O. 12875, this proposed rule does not include any Federal mandate

that may result in increased expenditures by State, local, and tribal

governments, or increased expenditures by the private sector of more

than $100 million.

VII. Executive Order 13045

In accordance with Executive Order 13045, MSHA has evaluated the

environmental health or safety effect of the proposed rule on children.

The Agency has determined that the proposal will have no effect on

children.

List of Subjects in 30 CFR Part 75

Mine safety and health, Reporting and recordkeeping requirements,

Underground coal mining, Ventilation.

Dated: July 8, 1998.

J. Davitt McAteer,

Assistant Secretary for Mine Safety and Health.

Accordingly, it is proposed to amend part 75, subchapter O, chapter

I, title 30 of the Code of Federal Regulations as follows:

PART 75--MANDATORY SAFETY STANDARDS--UNDERGROUND COAL MINES

1. The authority citation for part 75 continues to read as follows:

Authority: 30 U.S.C. 811.

[[Page 38071]]

2. In subpart D of Part 75, in Sec. 75.360, revise the section

heading and paragraph (a)(1) to read as follows:

Sec. 75.360 Preshift examination at fixed intervals.

(a)(1) Except as provided in paragraph (a)(2) of this section, a

certified person designated by the operator shall make a preshift

examination within 3 hours preceding the beginning of any 8-hour

interval during which any person is scheduled to work or travel

underground. No person other than certified examiners may enter or

remain in any underground area unless a preshift examination has been

completed for the established 8-hour interval. The operator shall

establish 8-hour intervals of time subject to the required preshift

examinations.

* * * * *

[FR Doc. 98-18687 Filed 7-13-98; 8:45 am]

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