1219-0144_RIN-1219-AB66(court) SS 05-20-09

Final Rule RIN 1219-AB66

Mine Rescue Teams

SUPPORTING STATEMENT FOR

PAPERWORK REDUCTION ACT SUBMISSIONS

Final Rule: Mine Rescue Teams – §§ 49.12, 49.16, 49.18, 49.50, and 75.1501.

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 of each regulation mandating or authorizing the collection of information.

The Mine Improvement and New Emergency Response Act of 2006 became effective on June 15, 2006 (MINER Act). The goal of the MINER Act was “to improve the safety of mines and mining.” To accomplish this goal, the MINER Act included provisions to improve mine emergency response time, improve mine rescue team effectiveness, and increase the quantity and quality of mine rescue team training. Section 4 of the MINER Act required MSHA to publish regulations on mine rescue teams. Because the mine rescue team provisions contained in Section 4 of the MINER Act applied only to underground coal mines, this rule will affect only those mines and the mine rescue teams that cover them.

MSHA published a final rule revising the Agency’s requirements for mine rescue teams for underground coal mines on February 8, 2008. The United Mine Workers of America challenged the final rule in the U.S. Court of Appeals for the District of Columbia Circuit (Court). On February 10, 2009, the Court vacated the rule’s provisions allowing mine-site and state-sponsored teams to train at small mines annually, rather than semi-annually, and State employees who are members of state-sponsored teams to substitute certain job duties for participation in one of two mine rescue contests required annually. The Court also vacated MSHA’s conclusion in the preamble that State employees who are members of state-sponsored teams may participate in a mine rescue contest by serving as judges. See Int’l Union, United Mine Workers of Am. v. Dep’t of Labor, 554 F.3d 150 (D.C. Cir. 2009).

Consistent with the Court’s decision, MSHA is revising the mine rescue team rule to require mine-site and state-sponsored teams to train at small mines semi-annually, rather than annually, and State employees who are members of state-sponsored teams to participate in two mine rescue contests annually, rather than one contest annually and substituting experience for participation in the second contest. MSHA estimates that the 2009 revision will require the formation of additional mine rescue stations and teams. This, in turn, will result in an increase in the burden hours and costs for records of training for additional mine rescue team members, and records of inspection and maintenance of additional mine rescue team equipment for the additional new mine rescue stations.

The 2008 mine rescue team rule added burden to existing information collection requirements and imposed two new information collection requirements. All information collection requirements in §§ 49.12 – 49.19 of the rule are renumbered existing information collection requirements formerly in §§ 49.02 – 49.09.

• § 49.16 required certification of inspection and testing of breathing apparatus, and a record of any corrective action taken. OMB had approved this requirement, formerly in § 49.6, under OMB Control Number 1219-0078. The 2008 mine rescue team rule separated the requirements for underground coal mines from those for underground metal and nonmetal and moved the requirement for coal mine rescue teams to § 49.16. The total paperwork burden will increase because of additional mine rescue stations established in response to this 2009 revision.

• § 49.18 required a record of each new mine rescue team member’s training. OMB had approved this requirement, formerly in § 49.8, under OMB Control Number 1219-0078. The 2008 mine rescue team rule separated the requirements for underground coal mines from those for underground metal and nonmetal, and moved the requirement for coal mine rescue teams to § 49.18. The total paperwork burden will increase because of additional coal mine rescue teams formed in response to this 2009 revision.

• Consistent with the MINER Act, § 49.50 imposed an annual paperwork burden for underground coal mine operators to certify that each designated coal mine rescue team meets the requirements of 30 CFR part 49 subpart B. This annual paperwork burden will offset, in small part, the requirement in § 49.12 for a statement describing the mine’s method of compliance with 30 CFR Part 49 to the extent that the certification could be used as a substitute for the statement required by § 49.12.

• § 75.1501 required mine operators to certify that each responsible person, designated to take charge in a mine emergency involving fire, explosion, or gas or water inundation, has completed the required mine emergency response training. The 2008 mine rescue team rule added subjects to the training of responsible persons and required that they be trained annually. OMB had approved related paperwork requirements in § 75.1501 under OMB Control Number 1219-0054.

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.

The respondents for the paperwork provisions of this rule are underground coal mine operators. The records will be used by coal mine operators, supervisors, and employees, and State and Federal mine inspectors to provide assurance that each mine operator and mine rescue team is prepared for a mine emergency. The records show that the mine rescue team equipment has been examined and tested and is in good working order. The training records show that the mine rescue team members and the responsible persons at the mine are competent to respond to a mine emergency involving a fire, an explosion, or a gas or water inundation. The records greatly assist those who use them in making decisions that will ultimately affect the safety of all persons working underground.

This information collection will help assure that properly trained mine rescue teams are readily available to save endangered miners in life-threatening situations. In addition, the training requirements in this information collection will help assure the safety of the mine rescue team itself.

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.

The mine rescue team rule does not specify how records must be kept, and mine operators may retain the records by whatever method they choose. They could be kept in a bound book or stored electronically, provided they are secure and not susceptible to loss or alteration. The mine rescue team rule requires some hand-written annotation in the form of a signature and date certifying that the mine rescue equipment inspections and tests were done and that the responsible person has completed mine emergency response training.

The certifications of inspections and training are to be kept at the mine rescue station or, for responsible persons, at the mine. MSHA has developed an optional form for the mine operator to use for certification of mine rescue teams that may be downloaded or submitted electronically through MSHA’s website. No other improved information technology has been identified that would reduce the burden.

4. Describe efforts to identify duplication. Show specifically why any similar information already available cannot be used or modified for use for the purpose(s) described in 2 above.

To avoid duplication, MSHA will allow the mine operator to use the annual certification that each designated coal mine rescue team meets the requirements of 30 CFR part 49 to substitute for the statement describing the mine’s method of compliance with 30 CFR part 49 in approved OMB Control Number 1219-0078 as required by § 49.12. The annual statement prepared for § 49.12 cannot substitute for the certification required by § 49.50 because § 49.12 does not require comparable information.

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.

In accordance with the Regulatory Flexibility Act at 5 U.S.C. 605(b), MSHA determined that the mine rescue team rule will not have a significant adverse economic impact on a substantial number of small entities. Nevertheless, the mine rescue team rule included alternatives for small anthracite coal mines to provide smaller mine rescue teams and less equipment. To minimize paperwork burden on small mines, MSHA developed an optional form for the mine operator to use for certification of mine rescue teams. This form may be downloaded or submitted electronically through MSHA’s website.

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.

If the information collections discussed in Question 1 were not conducted, MSHA would be unable to assure that mine rescue team members received the appropriate training and that mine rescue equipment was properly maintained. A reduction in the frequency of inspections and tests could jeopardize the safety of mine rescue team members, as well as trapped or injured miners they are trying to help. Section 101(a)(9) of the Mine Act prohibits any regulatory action that would reduce the protection afforded miners by an existing standard. In addition, Section 4 of the MINER Act specified that mine rescue teams be certified.

Reduction or elimination of the requirements for additional training of the responsible person in mine emergency response, and certifying the training, could result in inadequate training and increased hazards to miners during a mine emergency.

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, rant-in-aid, or tax records for more than three years;

• 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.

This collection of information is consistent with the 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 the information collection requirements in the preamble to the proposed rule on September 6, 2007 and held four public hearings concerning the proposed rule. The final rule was published on February 8, 2008. As a result of the Court decision on February 10, 2009, MSHA finds that there is "good cause" under 5 U.S.C. 553(b)(B) of the Administrative Procedures Act (APA) to issue this final rule without prior public notice and comment. Further, in accordance with the Court’s decision, MSHA has determined that there is "good cause" to except this action from the 30-day delayed effective date requirement under 5 U.S.C. 553(d)(3) of the APA. The public will be given an opportunity to comment on the public burden impact by means of a separate notice published in the Federal Register pursuant to emergency review procedures under the Paperwork Reduction Act of 1995 (See 5 C.F.R. § 1320.13). The public will also have an opportunity to comment when the information collections are resubmitted under standard clearance procedures pursuant to 5 C.F.R. § 1320.12, “Clearance of collections of information in current rules.”

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

MSHA will not provide payments or gifts to the respondents identified by this collection.

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

There is no assurance of confidentially provided to respondents. Mine rescue team records are maintained at the mine rescue station and MSHA inspectors review the records during inspections. Certifications of mine rescue teams are submitted to MSHA.

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.

This collection of information contains 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.

All information collection requirements in §§ 49.12 – 49.19 of the mine rescue team rule are renumbered from information collection requirements formerly in §§ 49.02 – 49.09.

§ 49.16 Equipment and Maintenance Requirements.

Section § 49.16(b) requires a person trained in the use and care of breathing apparatus to inspect and test the apparatus at intervals not exceeding 30 days and certify by signature and date that the inspections and tests were done. When the inspection indicates that a corrective action is necessary, the corrective action must be made and the person must record the corrective action taken. The certification and the record of corrective action must be maintained at the mine rescue station for a period of one year and made available upon request to an MSHA inspector.

This requirement imposes a paperwork burden on the 28 mine rescue stations that were estimated to be created in response to the 2008 mine rescue team rule and will imposed a paperwork burden on the four additional mine rescue stations estimated to be created in response to this 2009 revision. The mine rescue team rule requires that each mine rescue station have at least 12 breathing apparatus; so four additional mine rescue stations will require 48 additional breathing apparatus. MSHA estimates that it takes an average of 6 minutes (0.1 hours) to certify and file the certification for each apparatus. MSHA further estimates that, on average, each apparatus requires corrective action six times a year and that it takes approximately 15 minutes (0.25 hours) to record and file each corrective action. MSHA’s experience is that team members inspect, maintain, and certify the apparatus and record the corrective actions. Table 1 shows the burden hours and cost associated with the requirement in § 49.16(b).

 

§ 49.18 Training for Mine Rescue Team Members.

Under § 49.18, a record of training for each team member must be kept on file at the mine rescue station for a period of one year. This requirement imposed a paperwork burden on the 68 mine rescue teams that were estimated to be created in response to the 2008 mine rescue team rule and will imposes a paperwork burden on the 28 additional mine rescue teams (28 teams x 6 members per team = 168 new team members) estimated to be created in response to the 2009 revision. MSHA estimates that the trainer needs approximately 12 minutes (0.20 hours) to make, file, and maintain a record of training for each new team member. Table 2 summarizes the burden hours and cost associated with the recordkeeping requirement of this section.

 

§ 49.50 Certification of Mine Rescue Teams.

Section 49.50 requires that for each mine rescue team designated to provide mine rescue coverage at an underground coal mine, the mine operator must send the District Manager an annual statement certifying that each team meets the requirements of 30 CFR part 49 subpart B as listed in Table 49.50: Criteria to Certify the Qualifications of Mine Rescue Team. Each underground coal mine operator has to certify two mine rescue teams. MSHA estimates that it will take a mine supervisor approximately 30 minutes (0.5 hours) to certify two mine rescue teams, and a clerical employee one minute (0.167 hours) to send the certification to MSHA. Table 3 shows the paperwork burden hours and the cost to certify mine rescue teams.

 

§ 75.1501 Emergency Evacuations.

Section 75.1501(a) requires that the mine’s responsible person have current knowledge about the mine’s Emergency Response Plan (ERP), the Mine Rescue Notification Plan, and the Mine Emergency Evacuation and Firefighting Program of Instruction. It also requires that the responsible person be trained annually in mine emergency response coordination and communication. The information collection burden associated with these requirements was approved under OMB Control Number 1219-0054.

MSHA believes that there will be a backup for the responsible person for each shift because there will be times when the responsible person cannot be at the mine site. The operator must certify by signature and date after each responsible person has completed the training and keep the certification at the mine for one year. It will take a mine supervisor approximately 90 seconds (0.025 hours) to certify the training and it will take a clerical employee half a minute (0.00833 hours) to file the training certification. Table 4 presents the annual burden hours and cost associated with the certification of a responsible person and a backup person in accordance with this section.

 

SUMMARY OF PAPERWORK BURDEN HOURS AND RELATED COSTS

Table 5 provides a summary of the annual paperwork burden hours and associated costs. Table 6 provides a summary of the annual number of responses.

 

 

13. 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 13 and 15.)

• 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.

§ 49.50 Certification of Mine Rescue Teams.

The mine rescue team rule requires all underground coal mine operators with underground miners to certify that each of the mine’s two designated rescue teams meet the requirements of § 49.50. To meet the this requirement, the mine operator must send the District Manager an annual statement certifying that each team meets the requirements in Table 49.50: Criteria to Certify the Qualifications of Mine Rescue Team. MSHA estimates that it would cost $1 for postage and handling to send the certification of mine rescue teams to MSHA. The total burden cost for 653 underground coal mines would be $653.

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.

The rule does not result in any increased costs to MSHA or any other Federal agency.

15. Explain the reason for any program changes or adjustments reporting in Items 13 or 14 of the OMB Form 83‑I.

On February 10, 2009, the United States Court of Appeals for the District of Columbia Circuit (Court) held that MSHA’s Mine Rescue Teams rule, issued on February 8, 2008, is inconsistent with Section 4 of the MINER Act in three respects. MSHA is issuing this final rule to revise the existing rule in accordance with the MINER Act, consistent with the Court’s decision. This final rule revises MSHA’s existing standards for mine rescue teams for underground coal mines resulting in an increase of 216 responses and 163 burden hours.

16. For collections of information whose results will be published, outline plans for tabulation, and publication. 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.

MSHA does not intend to publish the results of this information collection.

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.

MSHA is not seeking approval to not display the expiration date or OMB approval number for this collection of information.

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:

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.

This collection of this information does not employ statistical methods.

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