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19474 Federal Register / Vol. 68, No.

76 / Monday, April 21, 2003 / Proposed Rules

responsibility and authority to ensure hearing, must, unless already having Signed in Washington, DC on April 16,
that the hearing progresses at a done so, provide the complete text of 2003.
reasonable pace and in an orderly the testimony and the documentary John L. Henshaw,
manner. evidence as specified above in the Assistant Secretary of Labor.
To ensure that interested parties sections titled DATE and ADDRESSES. The [FR Doc. 03–9697 Filed 4–18–03; 8:45 am]
receive a full and fair informal hearing Agency will review each submission BILLING CODE 4510–26–P
as specified by 29 CFR part 1911, the and determine if the information it
ALJ has the authority and power to: contains warrants the amount of time
Regulate the course of the proceedings; requested. If OSHA believes the DEPARTMENT OF LABOR
dispose of procedural requests, requested time is excessive, it will
objections, and comparable matters; allocate an appropriate amount of time Mine Safety and Health Administration
confine the presentations to matters
to the presentation, and will notify the
pertinent to the issues raised; use 30 CFR Parts 56 and 57
participant of this action, and the
appropriate means to regulate the
reasons for the action, prior to the RIN: 1219–AA98 (Phase 6)
conduct of the parties who are present
at the hearing; question witnesses, and hearing. The Agency may limit to 10
permit others to question witnesses; and minutes the presentation of any Seat Belts for Off-Road Work Machines
limit the time for such questions. At the participant who fails to comply and Wheeled Agricultural Tractors at
close of the hearing, the ALJ will substantially with these procedural Metal and Nonmetal Mines
establish a post-hearing comment period requirements; in such instances, OSHA
AGENCY: Mine Safety and Health
for parties who participated in the may request the participant to return for
Administration (MSHA), Labor.
hearing. During the first part of this questions at a later time.
ACTION: Proposed rule; request for
period, the participants may submit Please note that you may not attach comments.
additional data and information to materials such as studies or journal
OSHA, while during the second part of articles to testimony or documentary SUMMARY: MSHA is issuing a proposed
this period, they may submit briefs, evidence faxes if they are more than 10 rule that would update the Agency’s
arguments, and summations. pages long. If you wish to include such requirements for operator restraint
Notice of Intention to Appear to materials, you must submit three copies systems (seat belts) for off-road work
Provide Testimony at the Informal to the OSHA Docket Office at the machines and wheeled agricultural
Public Hearings. Interested parties who address listed above. When submitting tractors at metal and nonmetal mines.
intend to provide oral testimony at the such materials to the OSHA Docket The existing standards require seat belts
informal public hearings must file a Office, you must clearly identify your for off-road work machines to meet the
notice of intention to appear by using comments by name, date, Docket requirements of the Society of
the procedures specified above in the Automotive Engineers’ (SAE) consensus
Number, and subject so that we can
sections titled DATES and ADDRESSES. standard SAE J386–1985, and seat belts
attach the materials to your faxed or
This notice must provide the: Name, for wheeled agricultural tractors to meet
mailed comments.
address, and telephone number of each the requirements of SAE J1194–1983.
individual who will provide testimony; Certification of the Record and Final Since MSHA promulgated these
capacity (e.g., name of the Determination After the Informal Public standards, however, the SAE has revised
establishment/organization the Hearing. Following the close of the them to reflect technological advances
individual is representing; the hearing and post-hearing comment in seat belt design and materials. Seat
individual’s occupational title and period, the presiding ALJ will certify the belts meeting the specifications of
position) in which each individual will record to the Assistant Secretary of earlier versions of these SAE standards
testify; approximate amount of time Labor for Occupational Safety and are no longer routinely installed by
required for each individual’s Health; the record will consist of all of manufacturers. The proposed rule
testimony; specific issues each the written comments, oral testimony, would permit seat belts to meet the
individual will address, including a and documentary evidence received requirements of the more recent
brief statement of the position that the during the proceeding. However, the revisions of the SAE J386 and SAE
individual will take with respect to each ALJ does not make or recommend any J1194 standards.
of these issues; and any documentary decisions as to the content of the final DATES: Submit comments by May 21,
evidence the individual will present, standard. Following certification of the 2003.
including a brief summary of the record, OSHA will review the proposed The incorporation by reference of
evidence. provisions in light of all the evidence
OSHA emphasizes that the hearings certain publications in this rule is
received as part of the record, and then approved by the Director of the Federal
are open to the public, and that will issue the final determinations based
interested parties are welcome to attend. Register as of the effective date of the
on the entire record. final rule.
However, only a party who files a
proper notice of intention to appear may Authority ADDRESSES: Clearly identify comments
ask questions and participate fully in as such and submit them either
the proceedings. While a party who did John L Henshaw, Assistant Secretary electronically to ; by facsimile to 202–
not file a notice of intention to appear of Labor for Occupational Safety and 693–9441; or by regular mail or hand
may be allowed to testify at the hearing Health, U.S. Department of Labor, 200 delivery to MSHA, Office of Standards,
if time permits, this determination is at Constitution Avenue, NW., Washington, Regulations, and Variances, 1100
the discretion of the presiding ALJ. DC 20210, directed the preparation of Wilson Blvd., Room 2352, Arlington,
Hearing Testimony and Documentary this document. It is issued under section Virginia 22209–3939. Comments are
Evidence. Any party requesting more 6(b) of the Occupational Safety and posted for public viewing at http://
than 10 minutes to testify at the Health Act of 1970 (29 U.S.C. 655), www.msha.gov/currentcomments.
informal public hearing, or who intends Secretary of Labor’s Order No. 5–2002 FOR FURTHER INFORMATION CONTACT:
to submit documentary evidence at the (67 FR 65008) and 29 CFR part 1911. Marvin W. Nichols, Director; Office of

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Federal Register / Vol. 68, No. 76 / Monday, April 21, 2003 / Proposed Rules 19475

Standards, Regulations, and Variances, B. Regulatory History manufacturer or importer, and shall state
MSHA; Phone: 202–693–9442; FAX: compliance with SAE J386 JUN85, Part II.
Existing standards §§ 56/57.14130
202–693–9441; E-mail: nichols- derived from standards promulgated by Since 1988, however, SAE has
marvin@msha.gov. MSHA’s predecessor, the Mining updated SAE J386 twice and SAE J1194
SUPPLEMENTARY INFORMATION: Enforcement and Safety Administration three times, each time reaffirming the
(MESA) in 1977. Like these existing previous version or incorporating
I. Introduction standards, the standards under MESA advances in safety technology. Seat belts
Copies of the SAE publications required seat belts to meet specific SAE and assemblies currently manufactured
incorporated by reference may be requirements that were incorporated by for off-road work machines and haulage
examined at any Metal and Nonmetal reference. MSHA’s requirements for seat trucks comply with SAE J386–1997 and
Mine Safety and Health District Office; belts at metal and nonmetal mines those currently manufactured for
at MSHA’s Office of Standards, remained substantively unchanged until tractors comply with SAE J1194–1999.
Regulations, and Variances, 1100 1988. Seat belts meeting the superceded SAE
Wilson Boulevard, Room 2349, In 1984, MSHA issued a proposed J386–1985 or SAE J1194–1983 standards
Arlington, Virginia 22209–3939; or at rule (49 FR 49201) revising the loading, are no longer available, except through
the Office of the Federal Register, 800 hauling, and dumping standards at special orders at considerable cost.
North Capitol Street, NW., Suite 700, metal and nonmetal mines. MSHA had Consequently, because manufacturers
Washington, DC. Copies may be considered removing the incorporation no longer construct or label seat belts in
purchased from the Society of by reference provisions relating to seat accordance with the outdated SAE
Automotive Engineers, 400 belts and accompanying roll-over standards, mine operators have
Commonwealth Drive, Warrendale, protective structures (ROPS) on difficulty complying with MSHA’s
Pennsylvania 15096–0001. equipment and replace them with existing standards.
performance criteria (49 FR 49201 and Equivalent Protection. MSHA bases its
This proposed rule would only requirements for roll-over protective
update §§ 56/57.14130, paragraph (h), 49203). At that time, however,
commenters urged MSHA to retain the structures (ROPS) and operator restraint
Seat belts construction. MSHA is not systems (seat belts) on technical
updating §§ 56/57.14130, paragraph incorporation by reference and update
it. documents developed by the SAE, a
(b)(2), which also incorporates by nationally and internationally
reference SAE J1194–1983, because In 1988, MSHA promulgated final
§§ 56/57.14130 for ROPS and seat belts recognized consensus standards setting
paragraph (b)(2) addresses the organization. ROPS and seat belts
construction of roll-over protective for certain off-road work machines. The
final rule (53 FR 32496 and 32524) provide a predictable level of
structures (ROPS), not seat belts. The performance when their construction
construction of ROPS is beyond the updated the references to SAE J386–
1985 and SAE J1194–1983 to reflect the meets the specifications of SAE’s
scope of this rulemaking. consensus standards. For example,
most current revision. The final rule
A. Proposed Rule, Direct Final Rule, and also added a provision, §§ 56/57.14131, SAE’s testing of seat belt assemblies
Significant Adverse Comments requiring that seat belts on haulage verifies that the strength and
trucks meet the same SAE requirements construction under the 1993 and 1997
Elsewhere in this issue of the Federal revisions of SAE J386 meet the
as MSHA required for seat belts on off-
Register, we are publishing a direct final minimum requirements set forth by the
road work machines.
rule that is substantively identical to society. Engineers and safety
this proposed rule. We are publishing II. Discussion of Seat Belt Requirements professionals agree that SAE J386
this companion proposed rule under Existing standards §§ 56/57.14130(h) performance and test requirements
§ 553 of the Administrative Procedure and 56/57.14131(c) require that seat provide a safe operator restraint system
Act to speed notice and comment belts for off-road work machines meet for off-road work machines commonly
rulemaking should we withdraw the the requirements set forth in the Society used in mining. This proposed rule
direct final rule. of Automotive Engineers’ (SAE) would expand compliance alternatives
MSHA has determined that this consensus standard J386–1985. Existing to accommodate advances in seat belt
rulemaking is suitable for a direct final standards §§ 56/57.14130(h) also require technology without reducing protection
rule because we do not expect that that seat belts for agricultural tractors for miners.
updating the metal and nonmetal seat meet SAE consensus standard J1194– Expanded Compliance Alternatives.
belt standards, to include the revised 1983. These SAE consensus standards Newly manufactured replacement seat
SAE consensus standards, will elicit any are incorporated by reference. belts for off-road work machines and
significant adverse comments. A Paragraphs §§ 56/57.14130(j) and 56/ wheeled agricultural tractors, as well as
significant adverse comment is one that 57.14131(d) contain the required those installed on new off-road
explains (1) why the direct final rule is information about the Federal Register’s machines or tractors, meet the
inappropriate, including challenges to approval of the incorporation by specifications in the most recent SAE
the rule’s underlying premise or reference and the addresses for consensus standards. The immediate
approach, or (2) why the direct final examining or obtaining copies. availability of replacement seat belts
rule will be ineffective or unacceptable Compliance Difficulties. MSHA ‘‘off-the-shelf,’’ as opposed to those
without a change. In determining enforcement of its seat belt standards requiring a special order, speeds
whether a comment necessitates relies on the labeling of seat belts in replacement, minimizing equipment
withdrawal of the direct final rule, we accordance with the SAE standards. For down time and the enticement to use
would consider whether the comment example, SAE J386–1985 states off-road work machines without
warrants a substantive response in a compliant seat belts. Also, allowing the
4.1.5 Marking (Labeling) Each seat belt
notice and comment process. use of seat belts meeting other revisions
assembly and/or each section of belt
All interested parties should comment assembly shall be permanently and legibly of the SAE standards, rather than only
by May 21, 2003, because we will not labeled with year of manufacture, model or the most recent, would allow mine
initiate an additional comment period. style number, and name or trademark of operators to use the supply of

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19476 Federal Register / Vol. 68, No. 76 / Monday, April 21, 2003 / Proposed Rules

replacement seat belts they already have have no adverse economic impact on proposed rule would not unduly burden
on hand. the metal and nonmetal mining the Federal court system. We wrote the
Enhanced Safety. The proposed rule industry. To the contrary, cost savings proposed rule to provide a clear legal
would improve safety by updating would be associated with not having to standard for affected conduct and have
MSHA’s standards to allow the use of special order discontinued, older seat reviewed it to eliminate drafting errors
advances in seat belt technology belts and not having to replace those and ambiguities.
addressed in the newer industry seat belts already installed. The
consensus standards. Many safeguards proposed rule also would eliminate the E. Executive Order 13045: Protection of
and improved engineering are integral burden of preparing and responding to Children From Environmental Health
design features on new products. For petitions for modification. The Risks and Safety Risks
example, the more recent revisions of advantage of being able to obtain seat In accordance with Executive Order
the SAE consensus standards address belts ‘‘off-the-shelf’’ would allow mine 13045, we have evaluated the
developments, such as tether straps and operators to replace damaged seat belts environmental health and safety effects
three and four point systems, which are more quickly, thus reducing machinery of this proposed rule and have
not included in the 1983 or 1985 and equipment down time which could determined that it would have no
revisions. Up-to-date standards are result in lost production. adverse effects on children.
consistent with the goals of the Federal
Mine Safety and Health Act of 1977, IV. Other Regulatory Considerations F. Executive Order 13132: Federalism
Executive Order 12866, and the A. Paperwork Reduction Act In accordance with Executive Order
Regulatory Flexibility Act. This proposed rule would not contain 13132, we have reviewed this proposed
III. The Regulatory Flexibility Act, any information collections subject to rule and have determined that it would
Executive Order 12866, and the Small review by the Office of Management and not have ‘‘federalism’’ implications.
Business Regulatory Enforcement Budget (OMB) under the Paperwork
Reduction Act. Although the SAE G. Executive Order 13175: Consultation
Fairness Act
requires seat belts to have a label and Coordination With Indian Tribal
In accordance with Executive Order Governments
(E.O.) 12866, we have analyzed the indicating compliance with a specific
estimated costs and benefits associated SAE consensus standard, these labels In accordance with Executive Order
with this proposed rule, and have are prepared and attached by the seat 13175, we certify that this proposed rule
included our Preliminary Regulatory belt manufacturer. Both mine operators would not impose substantial direct
Economic Analysis (PREA) in this and MSHA use these labels to determine compliance costs on Indian tribal
preamble. This proposed rule would not whether the seat belts comply with the governments.
be an economically significant appropriate SAE consensus standard.
H. Executive Order 13211: Actions
regulatory action under § 3(f)(1) of E.O. B. Unfunded Mandates Reform Act of Concerning Regulations That
12866. 1995 Significantly Affect Energy Supply,
In accordance with § 605 of the
This proposed rule would affect about Distribution, or Use
Regulatory Flexibility Act (RFA), we
220 small metal and nonmetal mines
certify that this proposed rule would not In accordance with Executive Order
operated by governmental jurisdictions
have a significant economic impact on 13211, we have reviewed this proposed
mostly to provide aggregates for the
a substantial number of small entities. rule and have determined that it would
construction and repair of highways and
Under the Small Business Regulatory not have a significant adverse effect on
roads. We have determined, for
Enforcement Fairness Act (SBREFA) the supply, distribution, or use of
purposes of § 202 of the Unfunded
amendments to the RFA, we must Mandates Reform Act of 1995, that this energy, and no reasonable alternatives
include the factual basis for this proposed rule would not include any to this action would be necessary.
certification in the proposed rule. Federal mandate that may result in
Accordingly, we are publishing the I. Executive Order 13272: Proper
increased expenditures by state, local, Consideration of Small Entities in
factual basis for our preliminary or tribal governments in the aggregate of
regulatory flexibility certification Agency Rulemaking
more than $100 million, or increased
statement in the Federal Register, as expenditures by the private sector of In accordance with Executive Order
part of this preamble, and are providing more than $100 million. We also 13272, MSHA has thoroughly reviewed
a copy to the Small Business determined, for purposes of § 203, that the proposed rule to assess and take
Administration (SBA), Office of this proposed rule would not appropriate account of its potential
Advocacy. We also will mail a copy of significantly or uniquely affect these impact on small businesses, small
the proposed rule, including the entities. governmental jurisdictions, and small
preamble and certification statement, to organizations. As discussed previously
metal and nonmetal mine operators and C. Executive Order 12630: Government in this preamble, MSHA has determined
miners’ representatives and post it on Actions and Interference With that this proposed rule would not have
our Internet Home Page at Constitutionally Protected Property a significant economic impact on a
www.msha.gov. Rights substantial number of small entities.
Factual basis for certification. This This proposed rule would not be
proposed rule would provide at least the subject to Executive Order 12630 List of Subjects
same level of protection for miners at a because it would not involve 30 CFR Part 56
lower cost for mine operators. It would implementation of a policy with
affect all 11,641 metal and nonmetal ‘‘takings’’ implications. Incorporation by reference, Mine
mines, 85.3% (9,928) of which employ safety and health, Surface mining.
fewer than 20 miners and 99.8% D. Executive Order 12988: Civil Justice
Reform 30 CFR Part 57
(11,618) of which employ 500 or fewer
miners (PEIR, CY 2001). It would not In accordance with Executive Order Incorporation by reference, Mine
include any additional costs and would 12988, we have determined that this safety and health, Underground mining.

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Federal Register / Vol. 68, No. 76 / Monday, April 21, 2003 / Proposed Rules 19477

Dated: April 14, 2003. CFR part 51. Copies of these may be 1993, or 1997), which are incorporated
Dave D. Lauriski, examined at any Metal and Nonmetal by reference.
Assistant Secretary of Labor for Mine Safety Mine Safety and Health District Office; (d) The incorporation by reference of
and Health. at MSHA’s Office of Standards, these publications is approved by the
For the reasons set out in the Regulations, and Variances, 1100 Director of the Federal Register in
preamble, and under the authority of the Wilson Boulevard, Room 2349, accordance with 5 U.S.C. 552(a) and 1
Federal Mine Safety and Health Act of Arlington, Virginia 22209–3939; or at CFR part 51. Copies of these
1977, MSHA is proposing to amend the Office of the Federal Register, 800 publications may be examined at any
chapter I, parts 56 and 57 of title 30 of North Capitol Street, NW., Suite 700, Metal and Nonmetal Mine Safety and
the Code of Federal Regulations as Washington, DC. Copies may be Health District Office; at MSHA’s Office
follows: purchased from the Society of of Standards, Regulations, and
Automotive Engineers, 400 Variances, 1100 Wilson Boulevard,
PART 56—[AMENDED] Commonwealth Drive, Warrendale, Room 2349, Arlington, Virginia 22209–
1. The authority citation for part 56 Pennsylvania 15096–0001. 3939; or at the Office of the Federal
continues to read as follows: Register, 800 North Capitol Street, NW.,
PART 57—[AMENDED] Suite 700, Washington, DC. Copies may
Authority: 30 U.S.C. 811. be purchased from the Society of
2. Section 56.14130 is amended by 4. The authority citation for part 57
Automotive Engineers, 400
revising paragraphs (h) and (j) to read as continues to read as follows:
Commonwealth Drive, Warrendale,
follows: Authority: 30 U.S.C. 811. Pennsylvania 15096–0001.
§ 56.14130 Roll-over protective structures 5. Section 57.14130 is amended by [FR Doc. 03–9658 Filed 4–18–03; 8:45 am]
(ROPS) and seat belts. revising paragraphs (h) and (j) to read as BILLING CODE 4510–43–P
* * * * * follows:
(h) Seat belts construction. Seat belts § 57.14130 Roll-over protective structures
required under this section shall meet DEPARTMENT OF LABOR
(ROPS) and seat belts for surface
the requirement of SAE J386, ‘‘Operator equipment.
Restraint System for Off-Road Work Mine Safety and Health Administration
* * * * *
Machines’’ (1985, 1993, or 1997), or
(h) Seat belts construction. Seat belts 30 CFR Parts 71 and 75
SAE J1194, ‘‘Roll-Over Protective
required under this section shall meet
Structures (ROPS) for Wheeled RIN 1219–AA98 (Phase 9)
the requirement of SAE J386, ‘‘Operator
Agricultural Tractors’’ (1983, 1989,
Restraint System for Off-Road Work
1994, or 1999), as applicable, which are Standards for Sanitary Toilets in Coal
Machines’’ (1985, 1993, or 1997), or
incorporated by reference. Mines
SAE J1194, ‘‘Roll-Over Protective
* * * * * Structure (ROPS) for Wheeled
(j) Publications. The incorporation by AGENCY: Mine Safety and Health
Agricultural Tractors’’ (1983, 1989, Administration (MSHA), Labor.
reference of these publications is 1994, or 1999), as applicable, which are
approved by the Director of the Federal ACTION: Proposed rule; request for
incorporated by reference.
Register in accordance with 5 U.S.C. comments.
552(a) and 1 CFR part 51. Copies of * * * * *
(j) Publications. The incorporation by SUMMARY: MSHA is proposing to remove
these publications may be examined at
any Metal and Nonmetal Mine Safety reference of these publications is an application and approval
and Health District Office; at MSHA’s approved by the Director of the Federal requirement from existing mandatory
Office of Standards, Regulations, and Register in accordance with 5 U.S.C. standards. Currently, MSHA must
Variances, 1100 Wilson Boulevard, 552(a) and 1 CFR part 51. Copies of approve sanitary toilets for use in
Room 2349, Arlington, Virginia 22209– these publications may be examined at underground coal mines, and MSHA
3939; or at the Office of the Federal any Metal and Nonmetal Mine Safety and the National Institute for
Register, 800 North Capitol Street, NW., and Health District Office; at MSHA’s Occupational Safety and Health
Suite 700, Washington, DC. Copies may Office of Standards, Regulations, and (NIOSH) must jointly approve sanitary
be purchased from the Society of Variances, 1100 Wilson Boulevard, toilets for use in surface coal mines.
Automotive Engineers, 400 Room 2349, Arlington, Virginia 22209– MSHA and NIOSH base their approval
Commonwealth Drive, Warrendale, 3939; or at the Office of the Federal on criteria drawn from the American
Pennsylvania 15096–0001. Register, 800 North Capitol Street, NW., National Standard Institute’s (ANSI’s)
3. Section 56.14131 as amended by Suite 700, Washington, DC. Copies may American National Standard for
revising paragraphs (c) and (d) to read be purchased from the Society of Sanitation—Nonsewered Waste-
as follows: Automotive Engineers, 400 Disposal Systems—Minimum
Commonwealth Drive, Warrendale, Requirements. MSHA is proposing to
§ 56.14131 Seat belts for haulage trucks. Pennsylvania 15096–0001. amend its standards to state which
* * * * * 6. Section 57.14131 is amended by sanitary toilets meet the standard in
(c) Seat belts required under this revising paragraphs (c) and (d) to read order to eliminate the need for an
section shall meet the requirements of as follows: application for approval and its
SAE J386, ‘‘Operator Restraint System associated paperwork burden. This
for Off-Road Work Machines’’ (1985, § 57.14131 Seat belts for surface haulage action would also directly inform
1993, or 1997), which are incorporated trucks. manufacturers, mine operators, miners,
by reference. * * * * * and miners’ representatives about which
(d) The incorporation by reference of (c) Seat belts required under this sanitary toilets meet the standard.
these publications is approved by the section shall meet the requirements of Removing the application requirements
Director of the Federal Register in SAE J386, ‘‘Operator Restraint System would have no substantive effect on the
accordance with 5 U.S.C. 552(a) and 1 for Off-Road Work Machines’’ (1985, sanitation standards.

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