Safety Standard for Preshift Examinations in Underground Coal Mines

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 75

RIN 1219-AB10

Safety Standard for Preshift Examinations in Underground Coal

Mines

AGENCY: Mine Safety and Health Administration, (MSHA) Labor.

ACTION: Final rule.

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SUMMARY: We (MSHA) are amending the examination interval for preshift

examinations of underground coal mines by requiring that mine operators

conduct preshift examinations at 8-hour intervals. The rule clarifies

when a preshift examination is required and the length of the shift

covered by the preshift examination.

EFFECTIVE DATES: This final rule is effective on October 18, 1999.

Submit all written comments on the information collection burden no

later than October 18, 1999.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director;

Office of Standards, Regulations, and Variances; telephone 703/235-

1910; fax 703/235-5551.

SUPPLEMENTARY INFORMATION:

I. Background

The preshift examination is the mine operator's fundamental tool

for assessing the overall safety condition of the mine. During the

preshift examination, which includes all areas where miners are

scheduled to work or travel during the shift, the examiner focuses on

discovering both existing and developing hazards, such as methane

accumulation, bad roof and water accumulation, and determining the

effectiveness of the mine ventilation system. The examination has

proven to be particularly effective in the discovery and correction of

hazardous conditions and practices before they lead to injuries or

fatalities. Because conditions in the underground mining environment

can change rapidly, recurring examinations are necessary to assure

safety of the miners underground. A timely preshift examination assures

the safety of the environment on a routine basis.

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

interim mandatory safety standards that address preshift examinations.

The interim standards in the Mine Act that relate to preshift

examinations, Secs. 303(d)(1) and 303(d)(2), appear as interim

mandatory safety standards in the Federal Coal Mine Health and Safety

Act of 1969. In 1970, the Bureau of Mines of the United States

Department of the Interior, a predecessor of the Mine Safety and Health

Administration at that time, adopted these interim standards as safety

standards in Title 30 of the Code of Federal Regulations (CFR). Interim

standard Sec. 75.303(d)(1) required that preshift examinations be

conducted ``[w]ithin three hours immediately preceding the beginning of

any shift.'' We adopted this provision as a mandatory safety standard

in our regulations for underground coal mines, promulgating it in 1978

as former 30 CFR 75.303(a).

Section 303(d)(2) of the Mine Act, the other interim standard

addressing preshift examinations, provided 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 where a preshift examination 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 mandatory safety standard in its regulations for

underground coal mines as former 30 CFR Sec. 75.303(b).

At the time the Mine Act was enacted, coal miners worked in shifts

of 8 hours as a general practice. The effect of the preshift

examination requirement in this environment was for examiners to

conduct preshift examinations every 8 hours. Since the Mine Act was

enacted, overlapping work shifts and work shifts of various lengths

(novel work shifts) have become common, making it necessary for MSHA to

address the frequency of preshift examinations. Currently, a number of

mines work shifts of up to 12 hours in length.

In 1992, we revised our preshift examination requirements as part

of our final rule for ventilation standards. We retained the

requirement that preshift examinations must be conducted ``within 3

hours preceding the beginning of any shift.'' However, in our preamble

discussion to the 1992 final ventilation rule, we interpreted this

language to mean that if the mine used regular shifts longer than 8

hours, the preshift examination applied to the entire length of the

shift (57 FR 20893).

In 1994, we proposed a new preshift examination rule in an attempt

to clarify and standardize the application of certain provisions of the

1992 preshift examination rule (59 FR 26356). In the comments submitted

to us 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 commenter expressed concern that conducting

preshift examinations at intervals longer than 8 hours would reduce the

protection afforded miners under the Mine Act. The commenter also

stated that MSHA introduced confusion into the preshift examination

requirements in interpreting the acceptable intervals for preshift

examinations.

Another segment of the public argued that the language of

Sec. 303(d)(2) of the Mine Act indicates that Congress tacitly accepted

shifts longer than 8 hours with only one preshift examination required.

The same segment of the public argued that we allowed a practice to

evolve over a period of time which permitted not only longer shifts but

also ``excursions'' over 8 hours under specific conditions. During

these so-called excursions, miners would remain underground for short

periods to handle unplanned situations that developed during the shift.

As an example, an excursion might be used to perform mechanical repairs

or install roof support. Finally, commenters representing both labor

and industry recommended that we adopt a final rule requiring preshift

examinations for each 8-hour period that miners are underground.

When we promulgated the 1994 proposed rule as a final rule in 1996,

(61 FR 9764) we addressed the comments and revised the existing

standard. We substituted the phrase ``8-hour interval'' for the phrase

``beginning of any shift.'' The 1996 rule required a preshift

examination, ``* * * within 3 hours preceding the beginning of any 8-

hour interval during which any person is

[[Page 45166]]

scheduled to work or travel underground. * * *'' We also acknowledged

in the preamble to the final rule that, in accordance with longstanding

practice, unplanned short excursions past the 8-hour period that occur

infrequently are accepted without an additional preshift examination

(61 FR 9791).

In the preamble to the 1996 final rule, we discussed our rationale

for adopting an 8-hour preshift examination rule. We stated that:

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. . . . 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. (61 FR

9791).

In adopting an 8-hour preshift examination requirement, we agreed

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'' (61 FR 9791). We

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 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), acknowledged that the approach used by MSHA

in adopting the 8-hour interval for the preshift examination was a

reasonable one. The Court stated, ``At the least, 30 CFR

Sec. 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 Sec. 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). However, the Court invalidated the

provision on the procedural ground that we failed to provide sufficient

notice to the parties in the rulemaking that we were contemplating

requiring a preshift examination every 8 hours. The effect of the

decision was to reinstate the portion of the previous standard that

requires a preshift examination to be conducted prior to the beginning

of any shift. We published a Federal Register notice on June 30, 1997

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

Court's order.

On July 14, 1998, in response to the Court's National Mining

Association decision, we published a proposed rule addressing the

existing preshift examination requirements (63 FR 38066). Instead of

requiring a preshift examination at the beginning of each shift, the

Agency proposed that a preshift examination be conducted at 8-hour

intervals. Specifically, we proposed:

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. (63 FR 38071).

In the preamble to the proposed rule, we stated, ``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'' (63 FR 38068).

II. Discussion of Sec. 75.360(a)(1)

The final rule modifies existing Sec. 75.360(a)(1) to require

preshift examinations at fixed 8-hour intervals. The final rule is

substantively identical to the proposed rule. The word ``shall'' is

changed to ``must'' in the final rule in accordance with the style

advocated by the President's Memorandum on Plain Language. Existing

Sec. 75.360(a)(1) 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.

The rule replaces the word ``shift'' with the phrase ``8-hour

interval''. In addition, the rule adds the sentence, ``The operator

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

preshift examinations.'' The final rule advances the overall safety at

underground coal mines and does not reduce the protection afforded by

the existing standard.

Considering the speed at which underground conditions can change,

preshift examinations are necessary after a reasonable but defined

period of time. As an 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, if

present, and the timely correction of the condition before it reaches a

hazardous level. Also, the roof and ribs tend to deteriorate over time

throughout the mine, including 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 mechanism

to detect these developing hazards.

We have 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. We placed

in the rulemaking record 32 fatal accident reports of MSHA

investigations conducted since 1990. In each report the accident was

identified as occurring more than 8 hours into the shift. At least 6 of

the reports, representing 7 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. The accidents are: Linda Enterprise, Inc.,

31-A mine, March 23, 1990, 1 fatality; Miller

Branch Enterprises, Inc., No. 1 mine, December 4, 1991, 1 fatality;

M.A.G. Incorporated, Alloy Deep Mine 2, October 2, 1993, 1

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

fatalities; Waco Limited

[[Page 45167]]

Partnership No. 1, No. 2 mine, December 18, 1995, 1 fatality; and M&D

Coal Co., Inc., No. 3 mine, August 15, 1996, 1 fatality. We note that

the rule being finalized was in effect between June 1996 and July 1997.

However, the rule was not being followed at the M&D No. 3 mine at the

time of the August 15, 1996, accident.

The final rule applies to all underground coal mines, including

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

regular shifts that are longer than 8 hours in length, the preshift

examination would cover an 8-hour interval; an additional examination

is required for over 8 hours. The rule requires three preshift

examinations where persons are underground for more than 16 hours per

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

final rule requires three examinations per day. As with the existing

standard, the final rule does 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 preshift examiners during an examination before miners

reenter the mine.

Once a preshift examination has been conducted, an additional

preshift examination is not 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

final rule persons can 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. 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 have not had a preshift examination. In accordance with prior

practice, miners already working on a shift for which a preshift

examination has been completed may remain working underground during

the subsequent preshift examination being conducted for the oncoming

shift.

We recognize that the final rule may cause some of the mine

operators to perform additional examinations that are not currently

required. As an example, some small mines operate 1 shift per day. Many

of these mines plan to work 8 hours at the face. Allowing for travel

time and lunch, the mines may work a single 8\1/2\ or 9 hour shift on a

regular basis. Under the final rule, 2 preshift examinations are

required.

In the preamble to the proposed rule, we encouraged all parties to

express their views fully on the proposal and submit comments on the

proposed preshift examination rule. Also, we specifically solicited

comments in a number of areas, such as whether excursions should be

permitted, and the safety benefits gained by requiring a mine that

operates a single 8\1/2\ or 9 hour shift per day to conduct 2 preshift

examinations.

We received comments from a total of 4 commenters: 2 mining

associations, 1 mining company, and 1 labor organization. One commenter

advocated MSHA's approach of conducting a preshift examination at 8-

hour intervals, stating that Congress intended preshift examinations to

be conducted at 8-hour intervals, that it is essential that the

requirements for preshift examinations be clear and unambiguous, and

that the issue of the frequency of preshift examinations is vitally

important for safety and health. This commenter opposed any excursions

beyond the 8-hour interval except for life threatening situations. The

other 3 commenters stated that we must be more flexible in our approach

to determining preshift examination intervals. Two commenters stated

that mine plans should incorporate preshift examination requirements

specific to each mine. Three commenters pointed out that because of

State laws, there are instances where additional and unnecessary

preshift examinations are required. These commenters favored a preshift

examination that covered an entire shift, regardless of its duration.

Two of the commenters pointed out that technological advances, such as

mine-wide monitoring systems used in some mines, have made mines safer

than they were at the time Congress passed the Mine Act. Two commenters

stated that many examinations occur during a shift. Consequently, these

commenters felt that preshift examinations that lasted the duration of

the shift, whether 8, 10, or 12 hours, should be acceptable in mines

using technological advances such as mine-wide monitoring systems.

We have carefully considered each of the comments and have

determined that, with minor non-substantive changes, it is appropriate

to adopt and publish the proposed rule as the final rule. The Agency

has concluded that, considering the speed at which the underground

conditions can change, there must be a defined, reasonable period after

which another examination is necessary. The history of fatalities at

underground mines since 1990 demonstrates that as many as 7 lives could

have been saved if the 8 hour interval rule had been in place. As one

commenter stated, repeating language from the preamble to the proposed

rule:

[t]he 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 mining operation, 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 preshift examination at 8-hour intervals is a clear and easily

understood requirement that has an historical basis in legislative

history. We are not persuaded by commenters that, due to technological

improvements in modern mining as well as the training that modern

miners receive, there is a need to deviate from the frequency of

preshift examinations envisioned by Congress. The fact that mines may

be somewhat safer today than they were in the past does not change the

fact that the hazards still exist. Miners and operators must be

vigilant in dealing with methane accumulation, roof and rib

deterioration and water accumulation, as well as other hazards.

Progress in safety due to modern mining and monitoring systems has not

lessened the need for preshift examinations at 8-hour intervals, which

we believe will result in increased miner safety. As we have noted

previously, we have identified 7 fatalities that might have been

prevented if preshift examinations had occurred at 8-hour intervals.

Technological advances that enhance safety, such as atmospheric

monitoring systems, should supplement the proper use of preshift

examinations rather than change the frequency of the examination.

Through a longstanding practice, we have permitted excursions

beyond the normal scheduled shift for preshift examinations. In this

final rule, we will permit miners to stay on the section or in the work

area for up to an additional 15 minutes beyond an 8-hour shift to

conclude the mining cycle at an appropriate point, perform mechanical

repairs, install roof support, or as a

[[Page 45168]]

result of a mantrip delay. We will continue to interpret the final rule

to allow such excursions. One commenter addressed this issue. The

commenter to the proposed rule objected to any excursion except for

life-threatening situations. The commenter added that, to prevent

abuse, if other excursions are permitted, the rule should be specific

in defining the circumstances under which excursions are permitted. We

agree with the commenter that an excursion for a life-threatening

situation does not require an additional preshift examination. We also

believe that there are good reasons for excursions for other

circumstances: a machinery breakdown which requires miners to walk from

the mine, or a roof control problem requiring immediate attention

before the miners leave the mine. Some flexibility is appropriate to

account for unanticipated circumstances. We continue to believe that

short excursions of up to 15 minutes should be permitted. Also, an

infrequent excursion of up to 30 minutes is acceptable under an

unanticipated circumstance such as a mechanical breakdown. While, by

their nature, these infrequent excursions are unpredictable, we expect

that excursions would be necessary on the average of no more than once

a week.

Two commenters recommended that the rule should provide enough

flexibility to improve safety and provide a better utilization of

resources. The commenters gave an example of an operator who has

established 3-hour intervals spaced 8 hours apart to preshift examine

the face areas of the mine. According to these commenters, the same

operator at the same mine should be able to examine belts, travelways,

and other areas during another, different series of 3-hour intervals

spaced 8 hours apart. We agree that this is an acceptable flexible

approach that does not diminish safety. The final rule permits this

approach. However, we note that after an idle period, a full preshift

examination must be completed before miners reenter the area.

We received 2 comments which suggested that the mine ventilation

plan could be used to provide for flexibility in scheduling preshift

examinations, particularly in cases where an inconsistency might exist

with State requirements for examinations. These commenters favored a

preshift examination that covered an entire shift regardless of its

duration. We believe that a uniform requirement for an examination

every 8 hours best serves the purposes of miner safety and health. Use

of the plan approval process to essentially adopt a longer preshift

examination interval would not be appropriate.

A commenter pointed out that the Pennsylvania Bituminous Coal Mine

Act requires a preshift examination in a gassy mine within the 3 hours

immediately preceding the beginning of a coal-producing shift. The

commenter stated that there are currently 2 mines in Pennsylvania that

work 2 shifts of 12 hours, and these only on weekends. Considering the

interaction of the MSHA and the Pennsylvania rules, these mines and

possibly several others in Pennsylvania, may be required to conduct 4

preshift examinations instead of the 3 examinations otherwise conducted

during a 24 hour period. We believe that the requirement for preshift

examinations at 8 hour intervals is appropriate and do not believe that

the hazardous environment in underground coal mines allows for an

exemption in this case. In addition, the history of fatalities that

have occurred since 1990 in shifts longer than 8 hours does not support

a preshift examination at 12 hour intervals.

Another commenter stated that the proposed preshift requirement

would adversely impact safety by requiring the section foreman,

supervising a production crew, to examine outby areas during production

shifts in excess of 8 hours. The safety of the production crew at the

face would be unmonitored during this time. This situation might arise

in a 1-shift mine with a single certified person onsite. We agree that

in this circumstance, having the foreman on the section and available

to supervise the production crew provides a safety benefit. However, we

also believe that an examination of outby areas is necessary to assure

that any hazardous conditions are identified and corrected in a timely

manner. When an additional preshift examination is necessary, the on-

section portion of the examination can be conducted concurrently with

the on-shift examination. Any certified person designated by the

operator may conduct the examination of the outby areas and a vehicle

can be used to expedite the examination and to minimize any absence

from the section. Also, in such a circumstance, we will accept an

examination of outby areas by the certified person during egress from

the mine where the examiner travels ahead of the crew, examining while

traveling. If a hazard is encountered, the examiner must be able to

stop the crew before they reach the hazard. This approach preserves the

certified person's presence on the section during the work period and

provides for the outby portion of the examination before miners travel

through the area. We note that this is only applicable before an idle

period. If a crew is scheduled to enter the area, a preshift

examination must be completed before the next 8-hour interval begins.

For accuracy, we are changing the title of Sec. 75.360 from

``Preshift examination'' to ``Preshift examination at fixed

intervals.'' The text of the final rule and the preamble discussion of

the standard 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, we are continuing to use the term ``preshift

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

examination as the preshift examination.

III. Paperwork Reduction Act

This final rule contains an information collection requirement

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

under the Paperwork Reduction Act of 1995 (PRA 95). It is identical to

the information collection requirement in our proposed rule. We did not

receive any comments on the proposed information collection

requirement. OMB has approved the information collection requirement

and assigned to it OMB control number 1219-0125. The approval

expiration date is October 31, 2001.

IV. Executive Order 12866 Regulatory Planning and Review

Executive Order (EO) 12866 requires that agencies assess both the

costs and benefits of intended regulations. We have determined that

this rule would not have an annual effect of $100 million or more on

the economy and, therefore, that this rulemaking is not a significant

regulatory action for purposes of this EO. Although the final rule

applies to all underground coal mines, it will cause 127 underground

coal mines to incur compliance costs (or approximately 13 percent of

all underground coal mines). Of the 127 mines, 75 are small mines

(mines with fewer than 20 employees), and 52 are large mines (mines

with 20 or more employees). The total estimated annual compliance cost

of the final rule is $2,218,731. Small and large underground coal mines

will have annual compliance costs of $377,192 and $1,841,539,

respectively.

The total 1997 revenues for the underground coal mine industry are

estimated to be about $7.6 billion. The final rule's estimated annual

cost is less than 0.03 percent of annual estimated

[[Page 45169]]

revenues for all mines (all underground coal mines) which are covered

by the rule. We do not expect this rule to have a significant economic

impact on the underground coal mining industry.

V. Regulatory Flexibility Act and Small Business Regulatory

Enforcement Fairness Act (SBREFA)

Under SBREFA, in analyzing the impact of a final rule on small

entities, MSHA must use the Small Business Administration (SBA)

definition for a small entity or, after consultation with the SBA

Office of Advocacy, establish an alternative definition for the mining

industry by publishing that definition in the Federal Register for

notice and comment. We have not taken such an action and, therefore,

are required to use the SBA definition. MSHA traditionally has

considered small mines to be those with fewer than 20 employees. The

SBA defines a small mining entity as an establishment with 500 or fewer

employees (13 CFR 121.201). Almost all underground coal mines fall into

this category. For these small underground coal mines, as defined by

SBA, we conducted a screening analysis by comparing their estimated

cost of complying with the final rule to their estimated revenues. When

estimated compliance costs are less than 1 percent of estimated

revenues, we believe it is generally appropriate to conclude that there

is no significant economic impact on a substantial number of small

entities. When estimated compliance costs exceed 1 percent of estimated

revenues, it tends to indicate that further analysis may be warranted.

We estimate compliance costs for small underground coal mines covered

under this rule (using the SBA definition) to be $2,182,721 and their

revenues to be approximately $6.916 billion (as shown on Table 1).

Therefore, the costs of complying with the final rule for small

underground coal mines are approximately 0.03 percent of their

estimated revenues.

With respect to this final rule, 126 of the 127 underground coal

mines that will incur compliance costs fall under SBA's definition.

When the 126 underground coal mines that are immediately affected by

this rule are separately considered, the costs of complying with the

final rule for such mines are 0.3 percent of their revenues (as shown

on Table 2).

In either case, the rule's costs as a percentage of estimated

revenues are well below the 1 percent level. Accordingly, we certify

that the final rule will not have a significant impact on a substantial

number of small entities (mines with 500 or fewer employees).

Table 1.--Estimated Revenues of Underground Coal Mines Covered by the Rule

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

Average Total estimated

Mine size (employees) Number of mines production per revenues (in

a mine (tons) a millions) b

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

500........................................... 959 398,221 $6,916

> 500..................................................... 9 4,196,324 684

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

Total................................................. 968 ................ 7,600

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

a Sources: Based on MSHA's database and MSHA's CM441 Coal Report 1997 cycle 1997/184.

b Total revenues = n x t x p, where n is the number of mines in that size class; t is the average tons of coal

produced annually by a mine in that size class; and p is the price per ton of coal. The 1997 price per ton of

coal was $18.11 (Source: DOE/EIA Annual Energy Review, p. 203).

Table 2.--Estimated Revenues for Underground Coal Mines Affected by the Rule

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

Average Total estimated

Mine size (employees) Number of mines production per revenues (in

a mine (tons) a millions) b

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

20 & a Based on MSHA's CM441 Coal Report 1997 cycle 1997/184.

b Total revenues n x t x p, where n is the number of mines in that size class; t is the average tons of coal

produced annually by a mine in that size class; and p is the price per ton of coal. The 1997 price per ton of

Coal was $18.11 (Source: DOE/EIA Annual Energy Review, p. 203).

VI. Executive Order 12875 Enhancing the Intergovernmental

Partnership; and the Unfunded Mandates Reform Act of 1975

Executive Order (EO) 12875 requires executive agencies and

departments to reduce unfunded mandates on State, local, and tribal

governments; to consult with these governments prior to promulgation of

any unfunded mandate; and to develop a process that permits meaningful

and timely input by State, local, and tribal governments in the

development of regulatory proposals containing a significant unfunded

mandate. EO 12875 also requires executive agencies and departments to

increase flexibility for State, local, and tribal governments to obtain

a waiver from Federal statutory or regulatory requirements.

We offered governments an opportunity to provide meaningful and

timely input, at the proposed rule stage, through the promulgation of

the proposal for notice and comment. No state, local government or

tribal government commented or requested a waiver of regulatory

requirements.

Much of the Unfunded Mandates Reform Act of 1995 is designed to

assist the Congress in determining whether its actions will impose

costly new mandates on State, local, and tribal governments. It also

includes requirements to assist Federal agencies to make this same

determination with respect to regulatory actions.

We have determined that, for purposes of Sec. 202 of the Unfunded

Mandates Reform Act of 1995, this final rule 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, we have determined that for purposes of

Sec. 203 of that Act, this final rule does not significantly or

uniquely affect these entities.

[[Page 45170]]

We have prepared an estimate of the cost of the rule in our

submission to OMB for approval of the information collection

requirements in the rule. We will furnish a copy of this estimate to

you upon request. A summary of the cost is contained in the preamble to

this rule.

VII. Executive Order 13045 Protection of Children from

Environmental Health Risks and Safety Risks

In accordance with Executive Order 13045, we have evaluated the

environmental health or safety effect of the rule on children. We have

determined that the rule will have no effect on children.

VIII. Executive Order 13084 Consultation and Coordination with

Indian Tribal Governments

We certify that the final rule does not impose substantial direct

compliance costs on Indian tribal governments. Further, we provided the

public, including Indian tribal governments which operated mines, the

opportunity to comment during the proposed rule's comment period. No

Indian tribal government applied for a waiver or commented on the

proposal.

IX. Executive Order 12612 Federalism

Executive Order 12612 requires that agencies, to the extent

possible, refrain from limiting state policy options, consult with

states prior to taking any action which would restrict state policy

options, and take such actions only when there is a clear

constitutional authority and the presence of a problem of a national

scope. Since this rule does not limit state policy options, it complies

with the principles of federalism and with Executive Order 12612.

X. Executive Order 12630 Government Actions and Interference with

Constitutionally Protected Property Rights

This rule is not subject to Executive Order 12630 because it does

not involve implementation of a policy with taking implications.

XI. Executive Order 12988 Civil Justice Reform

The Agency has reviewed Executive Order 12988 and determined that

this rulemaking will not unduly burden the Federal court system. The

regulation has been written to so as to provide a clear legal standard

for affected conduct, and has been reviewed carefully to eliminate

drafting errors and ambiguities.

List of Subjects

30 CFR Part 75

Mine safety and health, underground coal mining, ventilation.

Dated: August 11, 1999.

Marvin W. Nichols Jr.,

Deputy Assistant Secretary for Mine Safety and Health.

Accordingly, 30 CFR, chapter I, is amended 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.

2. In subpart D of Part 75, the section heading of Sec. 75.360 and

paragraph (a)(1) are revised 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 must 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 must

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

examinations.

* * * * *

[FR Doc. 99-21448 Filed 8-18-99; 8:45 am]

BILLING CODE 4510-43-P