Hazard Communication

DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Parts 56, 57, 77, and 120

RIN 1219-AA47

Hazard Communication

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

ACTION: Proposed rule; reopening of comment period.

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SUMMARY: This document concerns the factual basis for our (MSHA's)

certification that the proposed rule on hazard communication (hazcom

proposal) for the mining industry would have no significant impact on

small businesses; a preliminary determination that the hazcom proposal

would not significantly or adversely impact the environment; the health

of children; or State, local, and tribal governments; and an updated

analysis of the information collection and paperwork burden under the

Paperwork Reduction Act of 1995 (PRA 95). We are reopening the

rulemaking record for the limited purpose of receiving comments on

these items.

DATES: We must receive your comments by June 1, 1999.

ADDRESSES: You may use mail, facsimile (fax), or electronic mail to

send your comments to MSHA. Clearly identify comments as such and send

them--

(1) By mail to Carol J. Jones, Acting Director, Office of

Standards, Regulations, and Variances, MSHA, 4015 Wilson Boulevard,

Room 631, Arlington, VA 22203;

(2) By fax to MSHA, Office of Standards, Regulations, and

Variances, 703-235-5551; or

(3) By electronic mail to [email protected].

In addition, send your comments on the information collection

requirements to the Office of Information and Regulatory Affairs, OMB,

Attention: Desk Officer for MSHA, 725 17th Street NW., Room 10235,

Washington, DC 20503.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Background

On November 2, 1987, the United Mine Workers of America (UMWA) and

the United Steelworkers of America (USWA) jointly petitioned MSHA to

adapt the Occupational Safety and Health Administration's (OSHA's)

Hazard Communication Standard (HCS) to both coal and metal/nonmetal (M/

NM) mines and to propose it for the mining industry. They based their

petition on the need for miners to be better informed about the

chemical hazards in their workplace.

In response to this petition, we published an advance notice of

proposed rulemaking (ANPRM) on hazard communication for the mining

industry on March 30, 1988 (53 FR 10256); published the hazcom proposal

on November 2, 1990 (55 FR 46400); and held three public hearings in

1991. The record closed on January 31, 1992.

The hazcom proposal would require an operator to develop and

implement a hazcom program which includes--

(1) Evaluating the hazards of chemicals present at the mine and

maintaining a list of those determined to be hazardous;

(2) Labeling containers of hazardous chemicals;

(3) Preparing or obtaining material safety data sheets (MSDS's) for

each hazardous chemical;

(4) Training miners; and

(5) Providing access to the written materials.

An effective hazcom program increases both awareness and knowledge

of the hazards of chemicals in the workplace. Awareness and knowledge

of chemical hazards present in the workplace increase the likelihood

that a miner will take appropriate precautions when working with or

around chemicals. We believe that the use of these precautions will

help reduce the incidence of chemically-related, occupational injuries

and illnesses among miners.

Our hazcom proposal would integrate our existing labeling

requirements into a new, comprehensive, hazcom program. We based the

hazcom proposal on comments received in response to the ANPRM, as well

as on our experience in the mining industry. We also considered

relevant standards of other Federal agencies, including OSHA's

experience with its HCS, and applicable legislation. MSHA's hazcom

proposal is generally consistent with OSHA's HCS.

Although we are preparing the final rule, we first need to address

several regulatory mandates, some of which were not in existence when

we

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published our hazcom proposal in 1990. These statutory mandates and

Executive Orders require us to evaluate the impact of a regulatory

action on small mines; State, local, and tribal governments; and the

environment.

We recognize that the mining industry has changed since 1990 when

we developed the Preliminary Regulatory Impact Analysis (PRIA) and

published the hazcom proposal. Most of the changes, however, would

decrease the total impact of the hazcom proposal on the mining

industry. For example, the number of mines and miners has decreased

while the number of independent contractors has increased. We believe

that this change would decrease the impact of the hazcom proposal

because fewer mines and miners generally mean fewer total compliance

costs.

Additionally, independent contractors are more likely to have a

hazcom program because they are more likely to work in operations under

OSHA jurisdiction, as well as in mines under MSHA jurisdiction.

Similarly, some mine operators already have a hazcom program as company

policy, because the parent company also has operations in industries

subject to OSHA's HCS, or the mine is located in a State with an

individual State right-to-know law. We believe that these existing

hazcom programs decrease the economic impact of MSHA's hazcom proposal

on the mining industry.

Another change that affects the hazard communication environment is

increased public awareness due to the length of time that the OSHA HCS

has been in effect. There is an abundance of hazard communication

information, supplies, training, and training aids readily available to

the public off-the-shelf or through the Internet.

II. Specific Issues

A. Regulatory Flexibility Act and Small Business Regulatory Enforcement

Fairness Act

The Regulatory Flexibility Act (RFA) requires a regulatory agency

to evaluate each proposed rule and to consider alternatives so as to

minimize the rule's impact on small entities (businesses and local

governments). In the preamble to our hazcom proposal, we certified that

the hazcom proposal would not have a significant economic impact on a

substantial number of small mining operations. The preamble also

included a full discussion of our preliminary conclusions about

regulatory alternatives and invited the public to comment. The preamble

and PRIA, however, did not use the Small Business Administration's

(SBA's) definition of a small entity. Under the RFA, we must use SBA's

definition of a small entity in determining a rule's economic impact

unless, after consultation with SBA and an opportunity for public

comment, we establish another definition and publish the definition in

the Federal Register. For the mining industry, SBA defines ``small'' as

a business with 500 or fewer employees. To ensure that we comply with

the RFA requirements, this notice informs you of the hazcom proposal's

impact on ``small'' mines, using the SBA definition of a small entity,

and provides you with an opportunity to comment.

In 1996, Congress enacted the Small Business Regulatory Enforcement

Fairness Act (SBREFA) amending the RFA. SBREFA requires a regulatory

agency to include in the preamble to a rule the factual basis for that

agency's certification that the rule has no significant impact on a

substantial number of small entities. The agency then must publish the

factual basis in the Federal Register, followed by an opportunity for

public comment. Although SBREFA did not exist when we published the

hazcom proposal, we are now publishing the factual basis for our

previous certification that the hazcom proposal poses ``no significant

impact,'' to give you an opportunity to comment on it.

Factual Basis for Certification of ``No Significant Impact''

At the time we published the hazcom proposal, we defined a small

mine to be one that employed fewer than 20 miners. To determine the

costs for mines with 500 or fewer employees, we applied the same basic

methodology that we had used in the PRIA to estimate the costs for

mines with fewer than 20 employees. We used 1997 closeout data for

numbers of mines and miners and current data for the cost of materials

and labor.

Table I indicates the number of operations with 500 or fewer

employees and the total number of employees at these operations. We

substituted these figures for those that we had used in the original

1990 PRIA to estimate the impact on operations with fewer than 20

employees. We estimate that the annual cost of complying with the 1990

hazcom proposal for operations with 500 or fewer employees would be

about $5.54 million annually: $1.20 million for coal operations and

$4.34 million for M/NM operations.

Table I.--Annual Compliance Costs by Mine Size*

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No. of mines No. of miners Annual compliance cost

Mine size (employment) -----------------------------------------------------------------------------------

Coal M/NM Coal M/NM Coal M/NM

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Small (1-500)............... 6,558 14,306 112,864 178,303 $1,197,241 $4,344,381

Large (>500)................ 11 35 6,179 28,190 32,033 195,775

All Operations.............. 6,569 14,341 119,043 206,493 1,229,274 4,540,156

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*Includes independent contractors and their employees.

Whether these compliance costs impose a ``significant'' impact on

small entities depends on their effect on the profits, market share,

and financial viability of small mines. To address these issues, we had

to determine whether compliance with the hazcom proposal would place

small mines at a significant competitive disadvantage relative to large

mines or impose a significant cost burden on small mines.

The first step in this determination is to establish whether

compliance with the hazcom proposal would impose substantial capital or

first-year, start-up costs on small mines. Because financing is

typically more difficult or more expensive to obtain for small mines

than for large mines, initial costs may impose a greater burden on

small mines than on large mines. The hazcom proposal, however, does not

require engineering controls or other items requiring substantial

initial capital expenditure that would place small mines at a

competitive disadvantage relative to large mines.

The initial costs associated with the hazcom proposal are those

necessary to develop and implement a hazard communication program.

Based on our updated estimate of this cost on mines employing 500 or

fewer employees, we

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projected that the first-year, start-up costs would be about $900 to

$1,200 per operation. Because this cost is less than one percent of the

revenue for these mines, we believe that the hazcom proposal would not

impose substantial capital or first-year, start-up costs on small

mines.

The second step in this determination is to establish whether there

are significant economies of scale in compliance that would place small

mines at a competitive disadvantage relative to large mines. In the

PRIA, we investigated economies of scale by calculating whether

compliance costs are proportional to mine employment. As shown in Table

II, the annual compliance cost per miner would be about $11 for small

coal mines, $5 for large coal mines, $24 for small M/NM mines, and $7

for large M/NM mines. These compliance costs would be about twice as

great per miner for small coal mines than for large coal mines and over

three times greater per miner for small M/NM mines than for large M/NM

mines. Although we believe that this difference may be significant, it

is unlikely to provide strategic leverage because, as shown in Table

II, both small coal mines and small M/NM mines generate over 95 percent

of the revenues in their respective markets. Furthermore, as shown in

Table II, total compliance costs would be about 18 times larger, on

average, for a large coal mine than for a small coal mine and about 22

times larger, on average, for a large M/NM mine than for a small M/NM

mine.

Table II.--Compliance Cost per Miner and per Mine*

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Average compliance cost Average compliance cost Total revenues (in

per miner per mine millions)

Mine size (employment) -----------------------------------------------------------------------------

Coal M/NM Coal M/NM Coal M/NM

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Small (1-500)..................... $11 $24 $183 $304 $18,680 $22,370

Large (>500)...................... 5 7 2,912 5,594 1,980 2,630

All Operations.................... 10 22 187 317 20,660 25,000

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*Includes independent contractors and their employees.

The third step in this determination is to establish whether the

compliance costs impose a significant burden on small mines in absolute

terms. For this purpose, we examined compliance costs relative to

revenues per small mine (or, equivalently, for all small mines). As

shown in Table III, compliance costs represent only about 0.006 percent

of the value of coal mine production and only about 0.019 percent of

the value of M/NM mine production. Because the cost of the rule as a

percentage of revenue would be considerably less than one percent, we

believe that this result, in conjunction with the previous analysis,

provides a reasonable basis for the certification of ``no significant

impact'' in this case.

Table III.--Compliance Costs Compared to Revenue*

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Revenue per

Small mines (employing 1-500) Average cost mine Total cost Total revenue Cost as % of

per mine (millions) (millions) (millions) revenue

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Coal............................ $183 $2.848 $1.197 $18,680 0.006

M/NM............................ 304 1.564 4.344 22,370 0.019

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*Includes independent contractors and their employees.

B. Paperwork Reduction Act

When we published our hazcom proposal, the information collection

and paperwork requirements were not an information collection burden

under the 1980 Paperwork Reduction Act (PRA 80) because they were

third-party disclosures. On August 29, 1995, the Office of Management

and Budget (OMB) published a final rule in the Federal Register (60 FR

44978) implementing the new Paperwork Reduction Act of 1995 (PRA 95).

These OMB rules expanded the definition of ``information'' to clarify

that PRA 95 also covered Agency rules that required businesses or

individuals to maintain information for the benefit of a third-party or

the public, rather than the government. The requirements for

information collection and dissemination in the hazcom proposal are now

an information collection burden because of the expanded definition of

``information'' under PRA 95.

The collection of information contained in the hazcom proposal is

subject to review by OMB under PRA 95. We will submit the proposed

paperwork package to OMB for its review and approval under section

3507(o) of PRA 95. We describe the respondents and information

collection requirements below with an estimate of the annual

information collection burden. This estimate includes the time to

inventory chemicals, determine the hazards of chemicals present,

prepare or obtain labels or MSDS's as necessary, prepare training

materials and train miners, and provide copies of written materials.

We further invite comment on--

(1) Whether this collection of information is necessary to protect

miners;

(2) The accuracy of our estimate of the burden, including the

validity of our methodology and assumptions;

(3) Ways to enhance the quality, usefulness, and clarity of the

information; and

(4) Ways to minimize the burden on respondents, including the use

of automated collection techniques, when appropriate, and other forms

of information technology.

Description of requirements: The hazcom proposal is primarily an

information collection and dissemination rule. The information

collection and paperwork burden encompasses each section of this

proposed part. These requirements are summarized in Table IV below.

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Table IV.--Description of Information Collection Provisions

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Provision Information collection burden

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Written Hazard Communication Preparation, administration, and annual

Program. review determine hazardous chemicals

distribute written program when

requested.

Training Program............. Develop or obtain training courses and

materials conduct initial training for

miners administer re: training miners

about changing hazards.

Material Safety Data Sheets.. Develop for hazardous chemicals produced

maintain availability and accuracy

distribute to miners and reps,

employers, and customers.

Labeling Containers.......... Prepare for chemicals produced maintain

legibility and accuracy provide

information to customers.

Trade Secrets................ Provide confidential information when

needed.

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Description of respondents: The respondents are operators,

including independent contractors. We estimate that this provision

affects those operators who do not already have a hazcom program at

their mines. For the purpose of the hazcom proposal, we estimated that

5 percent of small mines and 10 percent of large mines voluntarily have

implemented all of the requirements in MSHA's hazcom proposal. In

addition, some mines have implemented all or part of the requirements

contained in the hazcom proposal to comply with State hazard

communication or right-to-know laws.

The percentage of mines complying with these State laws varies

depending on the type of mine and the specific provision. For example,

some mines may keep MSDS's and label containers, but do not have a

written program or conduct hazcom training for miners. Also, we assumed

that all independent contractors conduct some work at locations under

OSHA jurisdiction and would have an existing hazcom program. The

contractor's hazcom program, however, may need modification for a

particular mine. The magnitude of the burden for any individual mine

operator or independent contractor, therefore, will vary greatly by the

size, type, and location of the operation.

Information Collection Burden: The burden of the hazcom proposal is

greater initially, when developing and implementing the program.

Subsequent years, the burden is primarily for maintaining and

administering the program. Because this hazcom proposal would not

require any capital expenditures, we did not annualize these initial

costs. The total estimated first-year, start-up information collection

burden for the hazcom proposal is about 789,500 hours ($20.3 million

labor cost) plus an associated cost of about $3,757,000. The total

estimated annually recurring information collection burden for the

second year and each year thereafter is about 230,700 hours ($5.2

million labor cost) plus an associated annual cost of about $578,000.

Table V and Table VI summarize MSHA's estimate, by provision, of the

information collection burden on the mining industry for the first year

and annually thereafter.

Table V.--First-Year Information Collection Burden*

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Number of

Number of Number of responses Hours per Associated

Provision respondents responses per response Total hours costs**

respondent

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Written Program.................. 17,042 24,365 1.4 3.76 91,595 $397,748

Training......................... 20,910 57,775 2.8 4.54 262,229 2,718,403

Hazard Determination and MSDS's.. 20,910 1,441,459 69 0.23 334,216 578,095

Labels........................... 20,910 596,042 29 0.17 100,919 63,093

Trade Secrets.................... 147 147 1.0 4.00 586 0

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Total........................ 20,910 2,119,787 101 0.37 789,544 3,757,339

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* Discrepancies due to rounding.

** The cost associated with the information collection is for material, supplies, and copying expenses; it does

not include the labor cost for the burden hours.

Table VI.--Annual Information Collection Burden*

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Number of

Number of Number of responses Hours per Associated

Provision respondents responses per response Total hours costs**

respondent

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Written Program.................. 4,364 4,364 1.0 3.79 16,544 $38,573

Training......................... 4,440 11,113 2.5 4.61 51,282 7,502

Hazard Determination and MSDS's.. 20,910 952,722 46 0.13 125,517 339,631

Labels........................... 2,267 60,693 27 0.61 36,768 192,257

Trade Secrets.................... 147 147 1.0 4.00 586 0

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Total............................ 20,910 1,029,038 49 0.22 230,697 577,963

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* Discrepancies due to rounding.

** The cost associated with the information collection is for material, supplies, and copying expenses; it does

not include the labor cost for the burden hours.

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C. Environmental Assessment

The National Environmental Policy Act (NEPA) of 1969 (42 U.S.C.

4321 et seq.) requires each Federal agency to consider the

environmental effects of certain proposed actions. It requires further

that these agencies prepare an Environmental Impact Statement for major

actions significantly affecting the quality of the human environment.

We have reviewed the hazcom proposal in accordance with the

requirements of NEPA, the regulations of the Council on Environmental

Quality (40 CFR part 1500), and the Department of Labor's NEPA

regulations (29 CFR part 11). As a result of this review, we determined

that this hazcom proposal would have no significant environmental

impact.

D. Protection of Children From Environmental Health Risks and Safety

Risks

In accordance with Executive Order 13045, we have evaluated the

hazcom proposal for any potential environmental health and safety

effects on children and have determined that it would have no adverse

effects on children.

E. Consultation and Coordination With Indian Tribal Governments

In accordance with Executive Order 13084, we certify that the

hazcom proposal would not impose substantial direct compliance costs on

Indian tribal governments. We provided the public, including Indian

tribal governments which operate mines, the opportunity to comment on

the hazcom proposal and to participate in the public hearings.

F. Unfunded Mandates

The Unfunded Mandates Reform Act of 1995 requires Federal agencies

to consider the impact of proposed actions on State, local, and tribal

governments. The hazcom proposal would impact about 200 sand and gravel

or crushed stone operations that are run by State, local, or tribal

governments. We have determined that the hazcom proposal does not

include any Federal mandate that may result in increased expenditures

by State, local, or tribal governments of more than $100 million in the

aggregate, or increased expenditures by the private sector of more than

$100 million. Moreover, we have determined that the hazcom proposal

does not significantly or uniquely affect small governments.

III. Request for Comments

Since we published our hazcom proposal in 1990, Congress has passed

several legislative mandates and the President has issued several

Executive Orders affecting the promulgation of regulations. In

addition, we did not address a mandate that existed in 1990. With this

in mind, we are reopening the rulemaking record for a limited time to

provide the public an opportunity to comment on the hazcom proposal's

economic and environmental impact and paperwork burden. Allowing time

for additional public comments will not delay the promulgation of the

final rule.

I encourage all interested parties to take advantage of this

opportunity to provide information and express your concerns on the

specific issues discussed here. If not responding by electronic mail,

we would appreciate receiving your comments on a computer disk along

with the original hard copy. Contact us with any questions about

format.

You can obtain a copy of our hazcom proposal or PRIA by contacting

us at the address or telephone number provided at the beginning of this

notice.

Dated: March 23, 1999.

Marvin W. Nichols, Jr.,

Deputy Assistant Secretary for Mine Safety and Health.

[FR Doc. 99-7683 Filed 3-29-99; 8:45 am]

BILLING CODE 4510-43-P