MSHA Proposed Rule
Hazard Communication [03/30/1999]
[PDF Version]
Volume 64, Number 60, Page 15144-15148
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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 comments@msha.gov.
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
