Washington, D.C. - The Health Education Labor and Pensions committee passed a bill sponsored by Sen. Mike Enzi on Nov. 3.

Under Enzi's bill, which passed 11-7 with bipartisan support, MSHA would have to obtain advice and recommendations from an appointed review panel of small mine operators and provide a public, written report on the findings. The report would be submitted in the rule making process. This is the same rulemaking process that is followed by the Occupational Health and Safety Administration (OSHA) and the Environmental Protection Agency (EPA).

At an Employment, Safety and Training Labor Subcommittee hearing Enzi held in May, small operators said they feel they have no real opportunity to comment on MSHA's proposed rules. The hearing was held in order to find ways of achieving greater safety and health by increasing cooperation between MSHA and mine operators. MSHA panels would facilitate conversations on safety between small operators and the agency - leading to safer mines.

Sen. Enzi's statement follows.

Statement

Senator Michael B. Enzi

(S. 1114) The "Small Mine Advocacy Review Panel Act"

November 3, 1999

Thank you, Mr. Chairman. To have safe work sites, we need an understanding of what safety rules mean, how they are to be implemented, and what results should be expected. This is the cooperation that should exist between small operators and the Mine Safety and Health Administration (MSHA).

Last May, I introduced S. 1114, the "Small Mine Advocacy Review Panel Act." This is a bipartisan bill as supported by my colleague, Senator Bingaman. We both work very closely with the mining community in our home states and I appreciate his support. I would add that this bill also has the support of the U.S. Small Business Administration Office of Advocacy.

The 1996 Small Business Regulatory Enforcement Fairness Act or SBREFA established small business advocacy review panels at an early state in the rulemaking process for EPA and OSHA. For proposed rules that are anticipated to have a "significant economic impact on a substantial number of small entities," the EPA and OSHA must collect advice and suggestions from small businesses prior to issuing any proposed rule. The panel's findings and comments of small businesses are made public as part of the rulemaking record when the proposed rule is published. The objective of these panels is to not give small businesses special access, but to provide a remedy for the disproportionate regulatory burdens born by small businesses.

S. 1114 is simple. It would give small operators a formal voice in the development of regulations, particularly at the early stages of regulatory development by extending SBREFA panels to all MSHA rulemakings. The Employment, Safety and Training Subcommittee held a hearing last May on S. 1114, where small operators shared their frustration with MSHA's rulemaking process because they feel they have no real opportunity to comment on MSHA's proposed rules. MSHA panels would facilitate conversations on safety between small operators and the agency - leading to better rules and safer mines. That is the premise of this bill.

Two MSHA rules could have benefitted from a SBREFA panel process at MSHA: the Noise rule and the Diesel Particulate Matter rule. The Noise rule does not allow personal protective equipment (i.e. ear plugs, ear muffs) until after the operator has exhausted all feasible engineering and administrative controls - even though MSHA law and OSHA's rule allow for PPE protection. The unions also oppose this proposal's lack of flexibility and common sense. The DPM rule would require a 95 percent emission reduction for engines used in coal mines - far exceeding regulatory EPA and OSHA policies. The DPM proposal also lacks required science, contradicts the agency's statutory obligations, and mandates alterations in mining processes and equipment that are both economically and technically infeasible. Both of these proposals have small business organizations currently raising significant concerns which could have been addressed at the pre-proposal stage. If this had been done in both of these two proposals, current opposition and concerns could most likely have been lessened or eliminated.

Opponents argue that S. 1114 would further delay the rulemaking process. First, SBREFA panels are convened and concluded within a 60 day period. That's it. Up to 60 days. Second, since SBREFA's enactment, EPA has held 14 panels and OSHA has held 3. All have helped improve rulemaking by addressing small business concerns at the pre-proposal stage. As for the concern that small mines make up the vast majority of mines covered by MSHA, I say all the more reason to formally apply these panels to the agency's rulemaking process.

SBREFA panels are administered by the US Small Business Administration's Office of Advocacy. Jere Glover, Chief Counsel of Advocacy, supports S. 1114 and has stated that if SBREFA panels are extended to MSHA, Advocacy will need at least one additional person and at least $100,000 in economic analysis funding. I've met with Jere have told him that I'll work to ensure that no economic shortfalls occur at Advocacy if S. 1114 is enacted. As for MSHA's cost, the panel process consists of holding a conference call with small mines. That's it - a phone call.

In terms of MSHA, I point to the May 16 testimony of Assistant Secretary of Labor at MSHA, Davitt McAteer, who testified that the agency supports the "notion, the idea, of involving small operators. . . ." and that the agency's current process does this "by holding pre-proposal meetings and public meetings on a number of regulations. . . ." and, "put out the regulation to each mine operator, and invite them to come to our meetings. . . ." When asked if S. 1114 would preclude MSHA from continuing that process. McAteer responded, "No, there is not."

Mr. Chairman, this is a sensible bill that deserves a unanimous vote.