1219-0065 ROCIS final

1219-0065
Supporting Statement
30 CFR § 44.9, 44.10, and 44.11 Petitions for Modification of Mandatory Safety Standards – Pertains to all
mines.
A. Justification
1.

Explain the circumstances that make the collection of information necessary. Identify any
legal or administrative requirements that necessitate the collection. Attach a copy of the
appropriate section of each statute and regulation mandating or authorizing the collection of
information.

Section 101(c) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. § 811(c), provides
that a mine operator or a representative of miners may petition the Secretary of Labor (Secretary) to
modify the application of a mandatory safety standard. A petition for modification may be granted if the
Secretary determines (1) that an alternative method of achieving the results of the standard exists and that
it will guarantee, at all times, no less than the same measure of protection for the miners affected as that
afforded by the standard, or (2) that the application of the standard will result in a diminution of safety to
the miners affected.
Under 30 CFR § 44.9, mine operators must post a copy of each petition for modification concerning the
mine on the mine's bulletin board and maintain the posting until a ruling on the petition becomes final.
This applies only to mines for which there is no representative of miners.
Under 30 CFR § 44.10, detailed guidance for filing a petition for modification is provided for the operator
of the affected mine or any representative of the miners at that mine. The petition must be in writing,
filed with the Director, Office of Standards, Regulations and Variances, and a copy of the petition served
by the filing party (the mine operator or representative of miners) on the other party.
Under 30 CFR § 44.11(a), the petition for modification must contain the petitioner's name and address; the
mailing address and mine identification number of the mine or mines affected; the mandatory safety
standard to which the petition is directed; a concise statement of the modification requested and whether
the petitioner (1) proposes to establish an alternate method in lieu of the mandatory safety standard, or
(2) alleges that application of the standard will result in diminution of safety to the miners affected, or (3)
requests relief based on both grounds; a detailed statement of the facts that show the grounds upon
which a modification is claimed or warranted; and, if the petitioner is a mine operator, the identity of any
representative of miners at the affected mine.
2.

Indicate how, by whom, and for what purpose the information is to be used. Except for a new
collection, indicate the actual use the agency has made of the information received from the
current collection.

Promptly upon receipt of a petition, MSHA publishes a notice in the Federal Register advising interested
parties that they may provide comments or other relevant information on the proposed modification.
Thereafter, MSHA conducts an investigation to determine the merits of the petition for the purpose of
deciding whether or not to grant it and, if granted, whether there is a need for any additional terms or
conditions.

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3.

Describe whether, and to what extent, the collection of information involves the use of
automated, electronic, mechanical, or other technological collection techniques or other forms
of information technology, e.g., permitting electronic submission of responses, and the basis
for the decision for adopting this means of collection. Also, describe any consideration of
using information technology to reduce burden.

MSHA accepts but does not require electronic submission of petitions for modification. Approximately
6% of the submissions were submitted electronically over the last 3 year period. In order to comply with
the Government Paperwork Elimination Act, mine operators may retain the records in whatever method
they chose, which may include utilizing computer technology.
4.

Describe efforts to identify duplication. Show specifically why any similar information
already available cannot be used or modified for use for the purposes described in Item 2
above.

A petition for modification is unique to each mine. There is no similar or duplicate information that
could be used. The specific information required in a petition is readily available to the petitioner.
5.

If the collection of information impacts small businesses or other small entities (Item 5 of
OMB Form 83-I), describe any methods used to minimize burden.

This information does not have a significant impact on small businesses or other small entities.
However, MSHA has made available on our web-site various sources of information, such as “Technical
Assistance,” “Best Practices,” and an “Accident Prevention” site. To assist with compliance, these
provide tips and general information on a number of various topics.
6.

Describe the consequence to Federal program or policy activities if the collection is not
conducted or is conducted less frequently, as well as any technical or legal obstacles to
reducing burden.

Each petition for modification must be investigated by MSHA on a mine-by-mine basis and a decision
reached on the merits. A mine operator may only request modification of one mandatory safety standard
for each petition. However, a mine operator may file a petition for more than one mine by showing that
identical issues of law and fact exist for each mine.
7.

Explain any special circumstances that would cause an information collection to be conducted
in a manner:
•

requiring respondents to report information to the agency more often than quarterly;

•

requiring respondents to prepare a written response to a collection of information in fewer
than 30 days after receipt of it;

•

requiring respondents to submit more than an original and two copies of any document;

•

requiring respondents to retain records, other than health, medical, government contract,
grant-in-aid, or tax records for more than three years;

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•

in connection with a statistical survey, that is not designed to produce valid and reliable
results that can be generalized to the universe of study;

•

requiring the use of a statistical data classification that has not been reviewed and approved
by OMB;

•

that includes a pledge of confidentiality that is not supported by authority established in
statute or regulation, that is not supported by disclosure and data security policies that are
consistent with the pledge, or which unnecessarily impedes sharing of data with other
agencies for compatible confidential use; or

•

requiring respondents to submit proprietary trade secret, or other confidential information
unless the agency can demonstrate that it has instituted procedures to protect the information's
confidentiality to the extent permitted by law.

30 CFR 44.9 requires that an operator of a mine for which there is no representative of miners post a copy
of each petition on the mine bulletin board and maintain the posting until a ruling on the petition
becomes final. Otherwise, the requirements under these standards are consistent with the general
information collection guidelines in 5 CFR § 1320.5.
8.

If applicable, provide a copy and identify the data and page number of publication in the
Federal Register of the agency's notice, required by 5 CFR 1320.8(d), soliciting comments on
the information collection prior to submission to OMB. Summarize public comments received
in response to that notice and describe actions taken by the agency in response to these
comments. Specifically address comments received on cost and hour burden.
Describe efforts to consult with persons outside the agency to obtain their views on the
availability of data, frequency of collection, the clarity of instructions and recordkeeping,
disclosure, or reporting format (if any), and on the data elements to be recorded, disclosed, or
reported.
Consultation with representatives of those from whom information is to be obtained or those
who must compile records should occur at least once every 3 years -- even if the collection of
information activity is the same as in prior periods. There may be circumstances that may
preclude consultation in a specific situation. These circumstances should be explained.

MSHA published a 60-day preclearance Federal Register notice on July 27, 2009 (Volume 74, Number 142,
Pages 37061-37062), soliciting public comments regarding the extension of this information collection.
One comment from the United Mine Workers of American was received, recommending that our current
method of collection and posting petitions remain unchanged.
9.

Explain any decision to provide any payment or gift to respondents, other than remuneration
of contractors or grantees.

MSHA does not provide payments or gifts to respondents.
10.

Describe any assurance of confidentiality provided to respondents and the basis for the
assurance in statute, regulation, or agency policy.

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There is no personal information requiring confidentiality. No assurance of confidentiality is provided.
11.

Provide additional justification for any questions of a sensitive nature, such as sexual
behavior and attitudes, religious beliefs, and other matters that are commonly considered
private. This justification should include the reasons why the agency considers the questions
necessary, the specific uses to be made of the information, the explanation to be given to
persons from whom the information is requested, and any steps to be taken to obtain their
consent.

There are no questions of a sensitive nature.
12.

Provide estimates of the hour burden of the collection of information. The statement should:
•

Indicate the number of respondents, frequency of response, annual hour burden, and an
explanation of how the burden was estimated. Unless directed to do so, agencies should not
conduct special surveys to obtain information on which to base hour burden estimates.
Consultation with a sample (fewer than 10) of potential respondents is desirable. If the hour
burden on respondents is expected to vary widely because of differences in activity, size, or
complexity, show the range of estimated hour burden, and explain the reasons for the
variance. Generally, estimates should not include burden hours for customary and usual
business practices.

•

If this request for approval covers more than one form, provide separate hour burden
estimates for each form and aggregate the hour burdens in Item 13 of OMB Form 83-I.

•

Provide estimates of annualized cost to respondents for the hour burdens for collections of
information, identifying and using appropriate wage rate categories. The cost of contracting
out or paying outside parties for information collection activities should not be included here.
Instead, this cost should be included in Item 13.

According to MSHA records, an average of 80 petitions for modification is received per year for coal and
metal and nonmetal mines. It is estimated that approximately 64 of those petitions are prepared by mine
operators. MSHA does not anticipate a significant increase or decrease in the number of petitions for
modification received over the next 3 years. MSHA estimates that it takes a mine operator on average
approximately 40 hours to prepare a petition for modification.
Burden hours:
64 petitions x 40 hours/petition

= 2,560 hours

Burden hour cost – mine management personnel: (salary cost are estimated based on data taken from the
U.S. Coal Mine and Metal and Industrial Mineral Mine Salaries, Wages, and Benefits 2007 Survey
Results).
2,560 hours x $68.93 per hour
(Coal = $75.02; M/NM = $62.84; avg. = $68.93)

= $176,460.80

MSHA is of the opinion that the burden on mine operators to post copies of the petition for modification
at the mine is minimal and has assigned no cost burden to these requirements.
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TOTAL BURDEN HOURS
TOTAL BURDEN HOUR COSTS
13.

= 2,560 hours
= $176,460.80

Provide an estimate of the total annual cost burden to respondents or recordkeepers resulting
from the collection of information. (Do not include the cost of any hour burden shown in
Items 12 and 14.)
•

The cost estimate should be split into two components: (a) a total capital and start-up cost
component (annualized over its expected useful life); and (b) a total operation and
maintenance and purchase of services component. The estimates should take into account
costs associated with generating, maintaining, and disclosing or providing the information.
Include descriptions of methods used to estimate major cost factors including system and
technology acquisition, expected useful life of capital equipment, the discount rate(s), and the
time period over which costs will be incurred. Capital and start-up costs include, among other
items, preparations for collecting information such as purchasing computers and software;
monitoring, sampling, drilling and testing equipment; and record storage facilities.

•

If cost estimates are expected to vary widely, agencies should present ranges of cost burdens
and explain the reasons for the variance. The cost of purchasing or contracting out
information collection services should be a part of this cost burden estimate. In developing
cost burden estimates, agencies may consult with a sample of respondents (fewer than 10),
utilize the 60-day pre-OMB submission public comment process and use existing economic or
regulatory impact analysis associated with the rulemaking containing the information
collection, as appropriate.

•

Generally, estimates should not include purchases of equipment or services, or portions
thereof, made: (1) prior to October 1, 1995, (2) to achieve regulatory compliance with
requirements not associated with the information collection, (3) for reasons other than to
provide information or keep records for the government, or (4) as part of customary and usual
business or private practices.

MSHA estimates that approximately 16 petitions for modification are prepared by independent legal
counsel, and that it takes approximately 16 hours to prepare a petition. The average hourly rate of
independent counsel is estimated to be $125 per hour. MSHA estimates that approximately 75 petitions
are submitted by mail, with the remaining 5 submitted electronically. MSHA is of the opinion that the
burden on mine operators to submit a petition for modification electronically is minimal and has assigned
no cost burden.
16 petitions x 16 hours per petition

= 256 hours

256 hours x $125 per hour

= $32,000

Estimated mailing costs for petitions for modification:
75 petitions x $4.77 per petition

= $357.75

TOTAL COST BURDEN
October 2009

= $ 32,357.75

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14.

Provide estimates of annualized cost to the Federal government. Also, provide a description of
the method used to estimate cost, which should include quantification of hours, operational
expenses (such as equipment, overhead, printing, and support staff), and any other expense
that would not have been incurred without this collection of information. Agencies also may
aggregate cost estimates from Items 12, 13, and 14 in a single table.

MSHA estimates that the initial processing and preparation of a Federal Register notice announcing that a
petition for modification has been filed by a mine operator takes an MSHA administrative staff person
approximately three hours to prepare:
80 notices x 3 hours a notice

= 240 hours

240 hours x $26.90 per hour
(hourly base wage of MSHA administrative staff [GS 11/5] person)

= $6,456

The cost for publication of the notice of receipt and summary of petitions granted in the Federal Register
is approximately $166 per column. Petition-related notices average 3 petitions per column.
80 petition notices x 0.333 column per notice x $166 per column

= $4,422.24

Of the 80 petitions for modification that are received, MSHA estimates that approximately 55% (44) are
approved. The cost to MSHA of publishing notices of approved petitions is as follows:
44 petition notices x 0.333 column/notice x $166 per column =

$2,432.23

The investigation and preparation of the investigative report for each petition for modification filed with
MSHA takes an inspector (GS 12/5) approximately 40 hours. Travel expenses are not included because
inspectors are frequently at the mines.
80 investigations x 40 hours per investigation
3,200 hours x $32.25 per hour (base hourly wage
for a GS 12/5 mine inspector)
Mailing costs:
80 investigative reports x $4.77 per report

= 3,200 hours
= $103,200
= $381.60

MSHA estimates that review of the petition for modification and investigative report, and preparation of
a proposed decision takes a government Specialist (GS 13/5) approximately 24 hours per petition (due to
their complexity) for half of the petitions submitted and approximately 2.5 hours per petition for the
remaining petitions.
40 petitions x 24 hours
40 petitions x 2.5 hours

= 960 hours
= 100 hours
1,060 hours

1,060 hours x $38.35 per hour
(hourly base wage rate of Specialist)
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= $40,651.00

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Additionally, MSHA estimates that review of the petition for modification and investigative report and
review of MSHA’s proposed decision takes a government staff attorney (GS 14/5) approximately 2.5
hours per petition for half of the petitions and approximately 8 hours for the remaining petitions.
40 petitions x 8 hours
40 petitions x 2.5 hours

= 320 hours
= 100 hours
420 hours

420 hours x $ 45.32 per hour
(hourly base wage of a staff attorney)

= $19,034.40

Total Cost to the Federal Government
15.

= $176,577.47

Explain the reasons for any program changes or adjustments reporting in Items 13 or 14 of the
OMB Form 83-I.

There has been a decrease in the number of respondents (from 94 to 80), responses (from 94 to 80), and
hours (from 2,960 to 2,560). This decrease is due to fewer mine operators submitting petitions for
modification. One reason the submission of petitions has decreased is the promulgation of final
regulations, such as the Fire Extinguishers in Underground Coal Mines.
The total cost burden to the mine operators also decreased (from $40,000 to $32,357) mainly as a result of
the decrease in submitted petitions for modification, and slightly due to some petitions (5 of 80)
submitted electronically instead of through the USPS mail service.
16.

For collections of information whose results will be published, outline plans for tabulation,
and publication and address any complex analytical techniques that will be used. Provide the
time schedule for the entire project, including beginning and ending dates of the collection of
information, completion of report, publication dates, and other actions.

There are no statistical aspects.
17.

If seeking approval to not display the expiration date for OMB approval of the information
collection, explain the reasons that display would be inappropriate.

There are no forms on which to display the expiration date.
18.

Explain each exception to the certification statement identified in Item 19, "Certification for
Paperwork Reduction Act Submission," of OMB 83-I.

There are no certification exceptions identified with this information collection.
B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL METHODS
The agency should be prepared to justify its decision not to use statistical methods in any case where
such methods might reduce burden or improve accuracy of results. When Item 17 on the Form OMB
83-I is checked “Yes,” the following documentation should be included in the Supporting Statement
to the extent that it applies to the methods proposed:
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1.

Describe (including a numerical estimate) the potential respondent universe and any sampling
or other respondent selection method to be used. Data on the number of entities (e.g.,
establishments, State and local government units, households, or persons) in the universe
covered by the collection and in the corresponding sample are to be provided in tabular form
for the universe as a whole and for each of the strata in the proposed sample. Indicate
expected response rates for the collection as a whole. If the collection had been conducted
previously, include the actual response rate achieved during the last collection.

2.

Describe the procedures for the collection of information including:
•

Statistical methodology for stratification and sample selection,

•

Estimation procedure,

•

Degree of accuracy needed for the purpose described in the justification,

•

Unusual problems requiring specialized sampling procedures, and

•

Any use of periodic (less frequent than annual) data collection cycles to reduce burden.

3.

Describe methods to maximize response rates and to deal with issues of non-response. The
accuracy and reliability of information collected must be shown to be adequate for intended uses.
For collections based on sampling, a special justification must be provided for any collection that
will not yield “reliable” data that can be generalized to the universe studied.

4.

Describe any tests of procedures or methods to be undertaken. Testing is encouraged as an
effective means of refining collections of information to minimize burden and improve utility.
Tests must be approved if they call for answers to identical questions from 10 or more
respondents. A proposed test or set of tests may be submitted for approval separately or in
combination with the main collection of information.

5.

Provide the name and telephone number of individuals consulted on statistical aspects of the
design and the name of the agency unit, contractor(s), grantee(s), or other persons(s) who will
actually collect and/or analyze the information for the agency.

The collection of this information does not employ statistical methods.

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Federal Mine Safety & Health Act of 1977,
Public Law 91-173,
as amended by Public Law 95-164*
An Act
SEC. 101. (c) Upon petition by the operator or the representative of miners, the Secretary may modify the
application of any mandatory safety standard to a coal or other mine if the Secretary determines that an alternative
method of achieving the result of such standard exists which will at all times guarantee no less than the same
measure of protection afforded the miners of such mine by such standard, or that the application of such standard to
such mine will result in a diminution of safety to the miners in such mine. Upon receipt of such petition the
Secretary shall publish notice thereof and give notice to the operator or the representative of miners in the affected
mine, as appropriate, and shall cause such investigation to be made as he deems appropriate. Such investigation shall
provide an opportunity for a public hearing at the request of such operator or representative or other interested party,
to enable the operator or the representative of miners in such mine or other interested party to present information
relating to the modification of such standard. Before granting any exception to a mandatory safety standard, the
findings of the Secretary or his authorized representative shall be made public and shall be available to the
representative of the miners at the affected mine. The Secretary shall issue a decision incorporating his findings of
fact therein, and send a copy thereof to the operator or the representative of the miners, as appropriate. Any such
hearing shall be of record and shall be subject to section 554 of title 5 of the United States Code.

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