1219-0150 Supporting Statement 9-2015

1219-0150 SUPPORTING STATEMENT 9-2015.doc

Pattern of Violations

OMB: 1219-0150

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Information Collection Title: Pattern of Violations

OMB Control Number: 1219 -0150

Collection Instrument(s): None

General Instructions

A Supporting Statement, including the text of the notice to the public required by 5 CFR 1320.5(a)(i)(iv) and its actual or estimated date of publication in the Federal Register, must accompany each request for approval of a collection of information. The Supporting Statement must be prepared in the format described below, and must contain the information specified in Section A below. If an item is not applicable, provide a brief explanation. When the question “Does this ICR contain surveys, censuses or employ statistical methods” is checked "Yes", Section B of the Supporting Statement must be completed. OMB reserves the right to require the submission of additional information with respect to any request for approval.

Specific Instructions

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 103(h) of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 813(h), authorizes the Mine Safety and Health Administration (MSHA) to collect information necessary to carry out its duty in protecting the safety and health of miners. Further, Section 101(a) of the Mine Act, 30 U.S.C. 811 authorizes the Secretary to develop, promulgate, and revise as may be appropriate, improved mandatory health or safety standards for the protection of life and prevention of injuries in coal and metal and nonmetal mines.

The Mine Act places the ultimate responsibility on mine operators for ensuring the safety and health of miners. The legislative history of the Mine Act emphasizes that Congress reserved the pattern of violations (POV) provision for mine operators who demonstrated a disregard for the safety and health of miners through a recurring pattern of significant and substantial (S&S) violations. MSHA was to use the POV provision in situations where other enforcement provisions of the statute had been ineffective at bringing the mine into compliance with safety and health standards.

This collection encourages chronic violators to comply with the Mine Act and MSHA’s safety and health standards.

30 CFR 104.2(a)(8) provides that MSHA will consider mitigating circumstances in determining whether to issue a POV Notice. Among the items MSHA could consider is an approved corrective action program to reduce S&S violations accompanied by positive results.

The Department notes the posting requirement in section 104.3(b) is not an information collection for purposes of the Paperwork Reduction Act, as the agency has provided the information for purposes of disclosure to the public. See 5 CFR 1320.3(c)(2).

MSHA expects that most mine operators, who compare their compliance record with the POV criteria on MSHA’s website and determine that they are approaching a POV level, would work with MSHA to bring their mines into compliance to avoid being issued a POV notice, which could result in the temporary closure of the mine or sections of the mine. MSHA expects that these operators will submit a written corrective action program to the District Manager for approval.

This collection is designed to encourage operators to take proactive measures to bring their mines into compliance. MSHA believes that an operator who implements a corrective action program is demonstrating a commitment to complying with MSHA’s standards and regulations, and restoring safe and healthful conditions for miners.

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 are mine operators. Mine operators, miners, and state and federal mine inspectors use the written corrective action programs to monitor the progress and effectiveness of the operators’ efforts to restore the mine to a safe and healthful condition. This program encourages operators to take proactive measures to find and fix the root causes of violations before they become a hazard to miners. The collection signals to operators that the mere abatement of violations as they are cited is insufficient.

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 collection does not specify how the written program is to be kept or how it is to be submitted to MSHA. Operators can keep the program in the traditional manner (print/hard copy) and submit it through the mail, or store and submit it electronically. MSHA encourages mine operators to store records electronically to allow for frequent retrieval and updating. No information technology has been identified that would further reduce the paperwork burden.

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.

The corrective action program addresses specific conditions at an individual mine over a limited period of time. No other duplicative information exists.

5. If the collection of information impacts small businesses or other small entities, describe any methods used to minimize burden.

The information collection provisions apply to all operations, both large and small. Congress intended that the Secretary enforce the law at all mining operations within its jurisdiction regardless of size and that information collection and recordkeeping requirements be consistent with efficient and effective enforcement of the Mine Act. [See Rep. No. 181, 95th Cong., 1st Sess. 28 (1977)]. Section 103(e) of the Mine Act directs the Secretary of Labor not to impose an unreasonable burden on small businesses when obtaining any information under the Act. MSHA took the burden on small mines into consideration when developing the collection.

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.

Because mining conditions are constantly changing, miners could be exposed to hazards or violations of health and safety standards that develop as mining progresses. MSHA believes that the development of a corrective action program is necessary to ensure that operators maintain safety and health conditions in their mines to protect miners. Reduction in these requirements may result in unsafe conditions developing or remaining uncorrected, thus jeopardizing the safety and health of miners.

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;

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 a 60-day Federal Register notice on September 23, 2015 (80 FR 57399). MSHA received no comments.

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

MSHA provides no payments or gifts to the respondents.

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

MSHA provides no assurance of confidentiality to respondents.

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.

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 under Item 13.

Section 104.2(a)(8) – Approved Corrective Action Programs as a Mitigating Circumstance

The Agency estimates that mine operators would disclose most mitigating circumstances (e.g., a change in mine ownership or notice that a mine is inactive) to MSHA as a routine business practice or under the Agency’s regulation in 30 CFR part 41 – Notification of Legal Identity. Were a POV notice is imminent, it imposes no unique burden under the PRA. See 5 CFR 1320.3(b)(2). However, development of a corrective action plan does impose burden under the PRA.

MSHA currently has 105 mines that developed and implanted MSHA-approved corrective action programs since section 104.2(a)(8).was established. MSHA believes this number will decrease by 5% in each subsequent year. The average number of mines over 3 years is 100 [(105+100+95)/3]. Information collection requirements related to mitigating circumstances under section 104.2(a)(8).

MSHA expects that developing such a program with meaningful and measurable benchmarks will take about 128 hours of a supervisor’s time, at a composite wage rate for both surface and underground coal and M/NM mines of $79.66 per hour; and 8 hours of a miners’ time at a composite wage rate for both surface and underground coal and M/NM mines of $34.21 per hour. Wage rates used here come from U.S. Coal Mines Salaries, Wages, and Benefits – 2012, U.S. Metal and Industrial Mineral Mine Salaries, Wages, and Benefits - 2012 Survey Results, Survey Results,compiled by Krista Noyes Salzer, InfoMine USA, Inc., 2012. Pay Rates updated from 2012 to 2014 using percent change of 3.8% derived from the BLS Employment Cost Index CIU2010000405000I, total compensation for private industry workers in construction, extraction, farming, fishing, and forestry occupations, Index http://data.bls.gov/timeseries/CIU2010000405000I.

Burden Hours:

  • 100 mines x 128 supervisor hours per mine = 12,800 hrs

  • 100 mines x 8 miner hours per mine = 800 hrs

Total Burden Hours = 13,600 hrs

Burden Hour Costs:

  • 12,800 hrs x $79.66/hr = $1,019,648

  • 800 hrs x $34.21/hr = $ 27,368

Total Burden Cost = $1,047,016

13. Provide an estimate of the total annual cost burden to respondents or record keepers resulting from the collection of information. (Do not include the cost of any hour burden already reflected on the burden worksheet).

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.

Costs for copying supplies and postage for mailing the program and revisions are estimated to be $100 per program. While MSHA is encouraging electronic submission, it is not required. For purposes of this calculation MSHA estimated that all operators submitting a corrective action program will submit the program by mail.

Total Annual Cost Burden:

  • 100 mines x $100 per mine = $10,000

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.

Annual Cost to the Federal Government for Review and Approval of Operators’ Corrective Action Programs

MSHA estimates that a safety and health specialist would take an average of 16 hours initially plus 8 hours after the operator revises the program in response to MSHA comments to review a corrective action program for the District Manager. A clerical person would spend a total of 2 hours preparing the specialist’s comments, making copies, and sending the comments, and then the approved program, back to the mine operator. The burden hours would be 26 hours per program. MSHA estimates that the average health and safety specialist earns $51.52per hour at the GS-12 pay level and the average clerical person earns $37.72per hour at the GS-9 pay level. The Wage rates shown above come from Office of Personnel Management (OPM) December, 2014 data cube http://www.fedscope.opm.gov/ and the annual average salary was multiplied by a benefits scaler of 1.36 to include benefits. The final hourly wage rate was derived by dividing the adjusted annual average salary by 2087.

Total Annual Burden Hours:

  • 100 programs x 24 hr/program = 2,400 hours

  • 100 programs x 2 hr/program = 200 hours

Total Burden Hours = 2,600 hours

Total Annual Burden Hour Costs:

  • 2,400 hours x $51.52 = $123,648

  • 200 hours x $37.72 = $7,544

Total Burden Hour Cost = $131,192

15. Explain the reasons for any program changes or adjustments reported on the burden worksheet.

Respondents: There has been a decrease of respondents (from 249 to 100). This is due to a high Agency estimate to what the Agency currently experiences and can be attributed in part to improved compliance as a result of actions taken by MSHA such as impact inspections.

Responses: There has been a decrease of responses (from 249 to 100). This is due to the decrease in respondents.

Burden Hours: There has been a decrease of 20,264 burden hours (from 33,864 to 13,600). This is due to a high Agency estimate to what the Agency currently experiences and can be attributed in part to improved compliance as a result of actions taken by MSHA such as impact inspections.

Cost: There has been a decrease in annual cost of $14,900 (from $24,900 to $10,000). This is due to a high Agency estimate to what the Agency currently experiences and can be attributed in part to improved compliance as a result of actions taken by MSHA such as impact inspections.

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 associates no forms with this information collection.

18. Explain each exception to the topics of the certification statement identified in "Certification for Paperwork Reduction Act Submissions."

There are no certification exceptions identified with this information collection.

B. Collection of Information Employing Statistical Methods

This collection of information does not employ statistical methods.

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