# Training and Retraining of Miners Engaged in Shell Dredging or Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines

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URL: https://www.frixlaw.com/law-library/documents/fr%3A99-25273

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** September 30, 1999
- **Citation:** 64 FR 53080

## Text

SUMMARY: This final rule amends MSHA's existing health and safety
training regulations by establishing new training requirements for
shell dredging, sand, gravel, surface stone, surface clay, colloidal
phosphate, and surface limestone mines. Congress has prohibited MSHA
from expending funds to enforce training requirements at these mines
since fiscal year 1980. This final rule implements the training
requirements of section 115 of the Federal Mine Safety and Health Act
of 1977 and provides for effective miner training at the affected
mines. At the same time, the final rule allows mine operators the
flexibility to tailor their training programs to the specific needs of
their miners and operations.

EFFECTIVE DATE: This regulation is effective October 2, 2000.

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director,
Office of Standards, Regulations, and Variances, MSHA; 4015 Wilson
Boulevard, Room 631, Arlington, VA 22203; Ms. Jones may be reached at
[email protected] (Internet E-mail); 703-235-1910 (voice); or 703-235-
5551 (facsimile).

SUPPLEMENTARY INFORMATION:

I. Plain Language

We (MSHA) wrote this final rule in the more personal style
advocated by the President's executive order on ``plain language.''
``Plain language'' encourages the use of--
personal pronouns (we and you);
sentences in the active voice;
a greater use of headings, lists, and questions, as well
as charts, figures, and tables.
In this final rule, ``you'' refers to production-operators and
independent contractors because they have the primary responsibility
for compliance with MSHA regulations. We received several comments on
the use of plain language. Commenters generally supported the use of
plain language, but suggested that using ``you'' to refer to two
entities was somewhat confusing. In response, the Agency uses the terms
``production-operators'' and ``independent contractors'' where the use
of the term ``you'' could be confusing.

II. Paperwork Reduction Act of 1995

The information collection requirements contained in this final
rule have been submitted to the Office of Management and Budget (OMB)
for review under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-
3520), as implemented by OMB in regulations at 5 CFR Part 1320. The
Paperwork Reduction Act of 1995 (PRA 95) defines collection of
information as ``the obtaining, causing to be obtained, soliciting, or
requiring the disclosure to third parties or the public of facts or
opinions by or for an agency regardless of form or format'' (44 U.S.C.
3502(3)(A)). Under PRA 95, no person may be required to respond to, or
may be subjected to a penalty for failure to comply with, these
information collection requirements until they have been approved and
MSHA has announced the assigned OMB control number. The OMB control
number, when assigned, will be announced by separate notice in the
Federal Register. In accordance with Sec. 1320.11(h) of the
implementing regulations, OMB has 60 days from today's publication date
in which to approve, disapprove, or instruct MSHA to make a change to
the information collection requirements in this final rule.
Recordkeeping requirements in the final rule are found in
Secs. 46.3, 46.5, 46.6, 46.7, 46.8, 46.9, and 46.11. MSHA did not
receive any comments on the methodology or assumptions used. Comments
received on specific provisions of the proposed rule are addressed in
the section-by-section discussion of Sec. 46.9 ``Records of Training.''
The final rule provides that records are not required to be maintained
at the mine site, and therefore can be electronically filed in a
central location, so long as the records are made available upon
request to the authorized representative of the Secretary and to miners
or their representatives.
Although the final rule does not require backing up the data, some
means are necessary to ensure that electronically stored information is
not compromised or lost. MSHA encourages mine operators who store
records electronically to provide a mechanism that will allow the
continued storage and retrieval of records in the year 2000. Table 1
provides, by section, the paperwork requirements for Year 1 and then
for every other succeeding year. Table 2 provides, by section, the
annual paperwork requirements starting with the first year. Table 3
provides, by section, the paperwork requirements for Year 1 and then
for every other succeeding year for miners and their representatives.
Table 4 provides, by section, the annual paperwork requirements for
miners and their representatives. Mine operators will incur a total of
233,594 burden hours at a cost of about $7.6 million in the first year,
and in every other succeeding year (i.e., 3, 5, 7, 9). Mine operators
will incur 220,776 burden hours at a cost of $7.1 million in years 2,
4, 6, 8, etc. The first year burden hours and costs are composed by
summing the figures in Tables 1, 2, 3, and 4.

BILLING CODE 4510-43-P

[[Page 53081]]

[GRAPHIC] [TIFF OMITTED] TR30SE99.030

BILLING CODE 4510-43-C

[[Page 53082]]

III. Executive Order 12866 and Regulatory Flexibility Analysis

Executive Order (E.O.) 12866 requires that regulatory agencies
assess both the costs and benefits of intended regulations. Based upon
the economic analysis, we have determined that this final rule is not
an economically significant regulatory action pursuant to section
3(f)(1) of E.O. 12866. MSHA does consider the final rule to be
significant under section 3(f)(4) of the E.O. because of widespread
interest in the rule, and has submitted the final rule to OMB for
review.
The Regulatory Flexibility Act (RFA) requires regulatory agencies
to consider a rule's impact on small entities. Under the RFA, MSHA must
use the Small Business Administration's (SBA's) definition for a small
mine of 500 or fewer employees or, after consultation with the SBA
Office of Advocacy, establish an alternative definition for the mining
industry by publishing that definition in the Federal Register for
notice and comment. In this rule, none of the affected mines have 500
or more employees. Therefore for the purposes of the RFA, all of the
affected mines are considered small. MSHA has analyzed the impact of
the final rule on mines with 20 or more employees, mines with 6-19
employees, and mines with 1-5 employees. MSHA has determined that this
rule will not impose a significant cost increase on a substantial
number of small mines.
MSHA has prepared a Regulatory Economic Analysis (REA) and
Regulatory Flexibility Certification Statement to fulfill the
requirements of E.O. 12866 and the Regulatory Flexibility Act. This REA
is available from MSHA upon request and is posted on our Internet Home
Page at www.msha.gov.

Regulatory Flexibility Certification Statement

Based on MSHA's analysis of costs and benefits, the Agency
certifies that this rule will not impose a significant economic impact
on a substantial number of small entities.

Factual Basis for Certification

General approach: The Agency's analysis of impacts on ``small
entities'' begins with a ``screening'' analysis. The screening compares
the estimated compliance costs of the rule for small mine operators in
the affected sector to the estimated revenues for that sector. When
estimated compliance costs are less than 1 percent of estimated
revenues (for the size categories considered) the Agency believes it is
generally appropriate to conclude that there is no significant impact
on a substantial number of small entities. When estimated compliance
costs approach or exceed 1 percent of revenue, it tends to indicate
that further analysis may be warranted.
Derivation of costs and revenues: In the case of this rule, because
the compliance costs must be absorbed by the nonmetal mines affected by
this rule, the Agency decided to focus its attention exclusively on the
relationship between costs and revenues for these mines, rather than
looking at the entire metal and nonmetal mining sector as a whole.
In deriving compliance costs there were areas where different
assumptions had to be made for small mines in different employment
sizes in order to account for the fact that the mining operations of
small mines are not the same as those of large mines. For example,
different assumptions for mine size categories were used to derive
compliance costs concerning: the number of persons trained per mine and
the number of training sessions a mine would have annually. In
determining revenues for the nonmetal mines affected by this
rulemaking, MSHA multiplied the production data (in tons) by the price
per ton of the commodity.
Results of screening analysis. As shown in Table V-1 from the REA,
with respect to the nonmetal mines covered by this rule that have 1 to
5 workers, the estimated annual costs of the rule as a percentage of
their annual revenues are 0.32 percent. For nonmetal mines covered by
this rule that have between 6 and 19 workers, the estimated annual
costs of the rule as a percentage of their annual revenues are 0.14
percent. For nonmetal mines covered by this rule that have 20 or more
workers, the estimated annual costs of the rule as a percentage of
their annual revenues are 0.04 percent. Finally, for all nonmetal mines
covered by this rule (all of which have 500 or fewer workers) the
estimated annual costs of the rule as a percentage of their annual
revenues are 0.10 percent.
In every case, the estimated compliance costs are substantially
less than 1 percent of revenues, well below the level suggesting that
the rule might have a significant impact on a substantial number of
small entities. Accordingly, MSHA has certified that there is no such
impact for small entities that mine the commodities that are affected
by this rule.
As required under the law, MSHA has complied with its obligation to
consult with the Chief Counsel for Advocacy at the Small Business
Administration on this rule, and on the Agency's certification of no
significant economic impact on the mines affected by this rule.

Table V-1.--Exempt Nonmetal Mines Covered by the Final Rule a
[dollars in thousands]
----------------------------------------------------------------------------------------------------------------
Costs as
Employment size Estimated Estimated percentage of
costs revenues b revenues
----------------------------------------------------------------------------------------------------------------
1-5............................................................. 6,197 1,950,102 0.32
6-19............................................................ 6,384 4,556,847 0.14
20 or more...................................................... 3,975 9,756,081 0.04
All Mines c..................................................... 16,556 16,263,030 0.10
----------------------------------------------------------------------------------------------------------------
a All mines covered by the final rule are surface mines.
b Data for revenues derived from U.S. Department of the Interior/U.S. Geological Survey. Mining and Quarrying
Trends, 1997 Annual Review. 1997. Tables 2 and 3. Revenues for the three U.S. colloidal phosphate mines
estimated using average revenues of the other exempt mines in the same size categories covered by the final
rule.
c Every mine affected by the rule has 500 or fewer employees.

As required under the law, MSHA complied with its obligation to
consult with the Chief Counsel for Advocacy on this rule, and on the
Agency's certification of no significant economic impact on the mines
affected by this rule.

[[Page 53083]]

Compliance Costs

MSHA estimates that the total net cost of the final 30 CFR part 46
training requirements will be approximately $17.94 million annually, of
which about $16.55 million will be borne by mine operations in the
following surface nonmetal mining sectors: shell dredging, sand,
gravel, stone, clay, colloidal phosphate, and limestone.1
Since fiscal year 1980, Congress has prohibited MSHA from enforcing
existing MSHA health and safety training regulations in 30 CFR part 48
at mines (``exempt mines'') in these sectors of the surface nonmetal
mining industry. The exempt mines that are not currently in compliance
with the existing part 48 training requirements will incur costs of
approximately $17.43 million annually to comply with the final rule,
while those currently in compliance with the existing part 48 training
requirements will derive net savings of approximately $0.89 million
annually.
---------------------------------------------------------------------------

\1\ The remaining $1.39 million in costs associated with the
final rule will be borne primarily by non-miners who receive hazard
awareness training, or by their empolyers.
---------------------------------------------------------------------------

Over the past 20 years, MSHA has consistently categorized a mine as
being small if it employs fewer than 20 workers and as being large if
it employs 20 or more workers. For the purposes of this Regulatory
Economic Analysis (REA), however, MSHA has identified three mine size
categories based on the number of employees, which are relevant to the
estimation of the cost of the final rule: (1) Mines employing 5 or
fewer workers; (2) mines employing between 6 and 19 workers; and (3)
mines employing 20 or more workers. These mine categories are important
because they are believed to have significantly different compliance
rates for existing part 48 training requirements. For this final rule,
MSHA estimates that the following percentages of exempt mines by size
category are currently not in compliance with existing part 48
requirements: 60 percent of mines with 5 or fewer employees; 40 percent
of mines with between 6 and 19 employees; and 20 percent of mines with
20 or more employees.
In 1997, there were 10,152 exempt mines covered by the final rule.
MSHA estimates that the average cost per exempt mine to comply with the
final rule will be approximately $1,600 annually. For the 5,297 exempt
mines with 5 or fewer employees, MSHA estimates that the average cost
of the final rule per mine will be approximately $1,200 annually. For
the 3,498 exempt mines with between 6 and 19 employees, MSHA estimates
that the average cost of the final rule per mine will be approximately
$1,800 annually. For the 1,357 exempt mines with 20 or more employees,
MSHA estimates that the average cost of the final rule per mine will be
approximately $2,900 annually.
These costs per mine may be slightly misleading insofar as the
exempt mines currently in compliance with existing part 48 training
requirements will also be, for the most part, in compliance with the
final rule and will therefore incur only relatively modest compliance
costs. In fact, as previously stated, these mines would derive net
savings of approximately $0.89 million annually as a result of the
final rule.2 For the exempt mine operators (including
independent contractors that employ miners) not currently in compliance
with existing part 48 training requirements, the annual cost of
complying with the final rule will, on average, be approximately $1,900
per mine operator with 5 or fewer workers; $4,500 per mine operator
with between 6 and 19 workers; and $15,800 per mine operator with 20 or
more workers.
---------------------------------------------------------------------------

\2\ The net savings consist of $1.18 million in compliance costs
and $2.07 million in savings. The $2.07 million in savings arise
from paragraph (e) of $46.4, which allows all documented employee
safety meetings, regardless of duration, to be credited toward
training requirements. (Under the existing part 48 training
requirements, employee safety meetings lasting less than 30 minutes
may not be credited toward training requirements.) For details about
these savings, see Table IV-32 and the text that precedes it.
---------------------------------------------------------------------------

Table IV-1 from the REA summarizes MSHA's estimate of the yearly
costs of the final rule by mine size and by provision. These costs
reflect first year costs of $18,140,889 and second year costs of
$17,694,277.

Table IV-1.--Summary of Yearly Compliance Costs for the Final Rule *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Mines with 1-5 Mines with 6- Mines with Total cost for Total cost for
Requirement provision employees 19 employees 20+ employees all mines other parties Total cost
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 46,3.............................................. $158,780 $71,467 $28,827 $259,074 $7,628 $266,702
Sec. 46.5.............................................. 2,436,253 1,953,064 774,018 5,163,335 .............. 5,163,335
Sec. 46.6.............................................. 426,676 313,628 113,382 853,686 .............. 853,686
Sec. 46.7.............................................. 351,365 828,761 1,183,662 2,363,787 .............. 2,363,787
Sec. 46.8.............................................. 2,139,686 2,540,586 1,527,819 6,208,091 .............. 6,208,091
Sec. 46.9.............................................. 45,449 92,781 88,338 226,568 .............. 226,568
Sec. 46.11............................................. 581,912 509,544 200,597 1,292,053 1,292,053 2,584,105
Sec. 46.12............................................. 56,860 74,440 57,896 189,196 85,744 274,940
-----------------------------------------------------------------------------------------------
Total............................................... 6,196,980 6,384,271 3,974,539 16,555,790 1,385,425 17,941,215
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Source: Table IV-20, Table IV-25, Table IV-27, Table IV-30, Table IV-33, Table IV-35, Table IV-36 and Table IV-37.

Benefits

Safety and health professionals from all sectors of industry
recognize that training is a critical element of an effective safety
and health program. Training informs miners of safety and health
hazards inherent in the workplace and enables them to identify and
avoid such hazards. Training becomes even more important in light of
certain conditions that can exist when production demands increase,
such as: an influx of new and less experienced miners and mine
operators; longer work hours to meet production demands; and increased
demand for contractors who may be less familiar with the dangers on
mine property.
Although there may be some differences in production technology and
the production environment between the exempt mining industry and other
surface nonexempt mining industries, the data presented in Chapter III
of this document indicate that the lack of training in exempt mines
contributes significantly to the disproportionate number of fatalities

[[Page 53084]]

that occur at such mines. Chapter III points out that in the period
from 1993 to 1997, there were 200 fatalities at surface mines. Of
these, 163 occurred at exempt mines. Thus, exempt mines accounted for
82 percent of all fatalities at surface mines during this period.
During the same period, however, employees at exempt mines accounted
for only 64 percent of the total number of hours worked at surface
mines.
One of the major reasons that exempt mines have experienced a
higher fatality rate than the surface mining industry as a whole is
that smaller operations, those which employ fewer than 20 workers, make
up the vast majority of exempt mines. These small operations, as a
group, have the highest rates of noncompliance with part 48 training
requirements and also the highest fatality rates.
It is plausible to assert that at least some of these fatalities
might have been prevented if victims had received appropriate miner
safety training. Similarly, MSHA believes that compliance with the
requirements of this final training rule will, in turn, reduce the
number of fatalities at formerly exempt mines. As discussed in greater
detail in Chapter III of this document, MSHA estimates that compliance
with the final rule will prevent about 10 fatalities and 557 injuries
per year. MSHA believes that this final rule will make training more
responsive to the needs of the industry and more effective for
individual miners, thereby raising the compliance rate and reducing
mine injuries and fatalities.

IV. Unfunded Mandates Reform Act of 1995

We have determined that, for purposes of section 202 of the
Unfunded Mandates Reform Act of 1995, this rule does not include any
federal mandate that may result in increased expenditures by State,
local, or tribal governments in the aggregate of more than $100
million, or increased expenditures by the private sector of more than
$100 million. Moreover, the Agency has determined that for purposes of
Sec. 203 of that Act, this rule does not significantly or uniquely
affect these entities.

Background

The Unfunded Mandates Reform Act was enacted in 1995. While much of
the Act is designed to assist the Congress in determining whether its
actions will impose costly new mandates on State, local, and tribal
governments, the Act also includes requirements to assist federal
agencies to make this same determination with respect to regulatory
actions.

Analysis

Based on the analysis in the Agency's REA, the yearly compliance
costs (annualized costs plus annual costs) resulting from the final
rule will be approximately $17.9 million, of which about $16.6 million
will be borne by the affected nonmetal operators. Accordingly, there is
no need for further analysis under Sec. 202 of the Unfunded Mandates
Reform Act.
MSHA has concluded that small governmental entities would not be
significantly or uniquely impacted by the regulation. The final rule
will affect 10,152 surface nonmetal mining operations. MSHA data
indicate that there are 185 nonmetal mines affected by this rule that
are state or local government owned.
When MSHA issued the proposed rule, the Agency affirmatively sought
input of any state, local, and tribal government which may be affected
by the training rulemaking. This included state and local governmental
entities who operate sand and gravel mines in the construction and
repair of highways and roads. MSHA mailed a copy of the proposed rule
to these entities. The Agency received comments from several state
agencies and local government entities. No tribal government entity
commented on the proposed rule. A speaker at the Pittsburgh public
hearing on the proposed rule asserted that (in New York State, at
least) there were many mines operated by local governments not counted
or inspected by MSHA and not in compliance with existing part 48
training requirements. Even if this assertion were true, MSHA's
analysis of regulatory impacts indicates that the cost of the final
rule will range from only $1,900 per mine to $15,800 per mine not
currently in compliance with existing part 48 training requirements.
MSHA believes that these costs do not significantly or uniquely impact
these small government entities. MSHA will mail a copy of the final
rule to approximately 185 such entities.
We have determined that, for purposes of Sec. 202 of the Unfunded
Mandates Reform Act of 1995, this rule does not include any federal
mandate that may result in increased expenditures by State, local, or
tribal governments in the aggregate of more than $100 million, or
increased expenditures by the private sector of more than $100 million.
Moreover, the Agency has determined that for purposes of Sec. 203 of
that Act, this rule does not significantly or uniquely affect these
entities.

V. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

In accordance with E.O. 13045, MSHA has evaluated the environmental
health and safety effects of the final rule on children. MSHA has
determined that the final rule will have no effect on children.

VI. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments

MSHA certifies that the final rule will not impose substantial
direct compliance costs on Indian tribal governments.

VII. Executive Order 12612: Federalism

Executive Order 12612, regarding federalism, requires that
agencies, to the extent possible, refrain from limiting state policy
options, consult with states prior to taking any actions which would
restrict state policy options, and take such actions only when there is
clear constitutional authority and the presence of a problem of
national scope. Because this final rule does not limit state policy
options, it complies with the principles of federalism and with
Executive Order 12612.

VIII. Executive Order 12630: Government Actions and Interference
With Constitutionally Protected Property Rights

This final rule is not subject to Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, because it does not involve implementation of a policy
with takings implications.

IX. Executive Order 12875: Enhancing the Intergovernmental
Partnership

Executive Order (E.O.) 12875 requires executive agencies and
departments to reduce unfunded mandates on State, local, and tribal
governments; to consult with these governments prior to promulgation of
any unfunded mandate; and to develop a process that permits meaningful
and timely input by State, local, and tribal governments in the
development of regulatory proposals containing a significant unfunded
mandate. E.O. 12875 also requires executive agencies and departments to
increase flexibility for State, local, and tribal governments to obtain
a waiver from Federal statutory or regulatory requirements.
MSHA estimates that there are 185 sand and gravel, surface
limestone, and stone operations that are run by State, local, or tribal
governments for the construction and repair of highways and

[[Page 53085]]

roads. When MSHA issued the proposed rule, the Agency affirmatively
sought input of any state, local, and tribal government which may be
affected by the training rulemaking. This included state and local
governmental entities who operate sand and gravel mines in the
construction and repair of highways and roads. MSHA mailed a copy of
the proposed rule to these entities. The Agency received comments from
several state agencies and local government entities. No tribal
government entity commented on the proposed rule.

X. Executive Order 12988: Civil Justice Reform

The Agency has reviewed Executive Order 12988, Civil Justice
Reform, and determined that this rulemaking will not unduly burden the
Federal court system. The regulation has been written so as to provide
a clear legal standard for affected conduct, and has been reviewed
carefully to eliminate drafting errors and ambiguities.

XI. Statutory and Rulemaking Background

Section 115 of the Federal Mine Safety and Health Act of 1977 (Mine
Act), 30 U.S.C. 801 et seq., directed the Secretary of Labor to
promulgate regulations requiring that mine operators subject to the
Mine Act establish health and safety training programs for their
miners. MSHA issued final miner training regulations in 30 CFR part 48
on October 13, 1978 (43 FR 47453). At that time, some industry
representatives expressed concern over the appropriateness of applying
the requirements of part 48 to smaller, less technical surface nonmetal
mining operations. They also maintained that many small nonmetal
operators would have difficulties in complying with part 48.
In 1979, various segments of the metal and nonmetal mining industry
raised these concerns with Congress and requested relief from the
comprehensive specifications of part 48. In response, Congress inserted
language in the Department of Labor's appropriations bill that
prohibited the expenditure of appropriated funds to enforce miner
health and safety training requirements at approximately 10,200 surface
nonmetal work sites. Congress has inserted this language into each
Department of Labor appropriations bill since fiscal year 1980. This
language specifically prohibits the use of appropriated funds to:

* * * carry out Sec. 115 of the Federal Mine Safety and Health
Act of 1977 or to carry out that portion of Sec. 104(g)(1) of such
Act relating to the enforcement of any training requirements, with
respect to shell dredging, or with respect to any sand, gravel,
surface stone, surface clay, colloidal phosphate, or surface
limestone mine.

This language remains in place under MSHA's appropriations
contained in the Omnibus Appropriations Act for 1999, Pub. L. 105-277,
signed by the President on October 21, 1998. The congressional
appropriations rider for fiscal year 1999, however, authorized us to
expend funds to propose and promulgate final training regulations by
September 30, 1999, for operations affected by the prohibition
(``exempt mines''). The 1999 rider also directed us to work with the
affected industry representatives, mine operators, workers, labor
organizations, and other interested parties to promulgate the training
regulations and to base the regulations on a draft submitted to MSHA no
later than February 1, 1999, by the Coalition for Effective Miner
Training (Coalition).
The Coalition is comprised of producers, associations that
represent producers, and three labor organizations. Coalition members
are:

American Portland Cement Alliance
Arizona Rock Products Association
Construction Materials Association of California
China Clay Producers Association
Dry Branch Kaolin Company
Georgia Crushed Stone Association
Georgia Mining Association
Indiana Mineral Aggregates Association
International Brotherhood of Teamsters
International Brotherhood of Boilermakers, Iron Shipbuilders,
Blacksmiths, Forgers, and Helpers
Laborers-AGC Education and Training Fund
National Aggregates Association
National Industrial Sand Association
National Lime Association
National Stone Association
North Carolina Aggregates Association
Sorptive Minerals Institute
United Metro Materials, Inc.
Virginia Aggregates Association

On November 3, 1998, we published a Federal Register notice (63 FR
59258) announcing seven preproposal public meetings. These meetings
were held in California, Colorado, Georgia, Illinois, New York, Oregon,
and Texas in December 1998 and January 1999 to receive comments from
the public on development of the training rule for miners at exempt
mines. We selected the meeting locations to provide as many miners,
miners' representatives, and mine operators, both large and small, with
the opportunity to attend at least one of the meetings and present
their views. More than 220 individuals, including representatives from
the Coalition, labor, contractors, mining associations, State agencies,
small and large operators, and trainers, attended the meetings. Many
attendees made oral presentations of their views on effective miner
health and safety training. We also received a number of written
comments on pertinent training issues.
The Coalition presented us with a final joint industry/labor draft
proposed rule on February 1, 1999, the congressionally established
deadline. We considered this draft, along with written comments and
oral testimony received during the preproposal period, in developing a
proposed rule, which we published in the Federal Register on April 14,
1999 (64 FR 18498). The notice of proposed rulemaking also included
language that would amend existing part 48 to specify that mines
covered under part 46 are not subject to part 48 training requirements.
The notice of public hearings on the proposed rule appeared in the
Federal Register on the same day as the proposal (64 FR 18528). In May
1999, we held four public hearings in Florida, California,
Pennsylvania, and Washington, D.C., to receive public comment on the
proposal. The rulemaking record closed on June 16, 1999. The agency
received many comments concerning training and retraining of miners. We
held 7 informational meetings around the country to seek input from the
mining community. In response, we received a total of 30 written and
electronic comments. In addition, 67 speakers provided oral comments.
After publication of the proposed rule, we received 136 written and
electronic comments, and 15 speakers provided oral comments. We
received comments from various entities including mine operators,
organized labor groups, such as United Steelworkers of America, United
Mine Workers of America, International Union of Operating Engineers,
State agencies and local municipalities, colleges and universities, and
the Coalition.

XII. General Discussion

Crushed stone and sand and gravel account for the majority of
operations where we have been prohibited from enforcing training
requirements. The United States Geological Survey, United States
Department of the Interior (USGS), derives domestic production data for
crushed stone and sand and gravel from voluntary surveys of U.S.
producers. USGS makes these data available in quarterly Mineral
Industry Surveys and in annual Mineral Commodities Summaries. Annual
crushed stone tonnage ranks first in the nonfuel minerals industry,
with annual sand and gravel tonnage ranking second. USGS data show that
domestic

[[Page 53086]]

production of sand and gravel and crushed stone increased every year
between 1991 and 1999, an indication of the continuing strong demand
for construction aggregates in the United States. The most recent USGS
data show that sand and gravel production increased approximately 14
percent and crushed stone production increased approximately 7 percent
in the first three months of 1999, as compared to the first three
months of 1998.
The number of hours worked at sand and gravel and crushed stone
operations has been increasing steadily since 1991. In 1991, the hours
worked at crushed stone operations totaled approximately 104 million
employee-hours, rising to 121 million employee-hours in 1998.
Similarly, the number of employee-hours at sand and gravel operations
rose from approximately 65 million in 1991 to 75 million in 1998. Based
on hours reported for the first three months of 1999, the total hours
worked for 1999 will exceed the total hours worked in 1998. Although
some of the increase in hours worked may be attributable to longer
workdays, the data show that the aggregates industry workforce is
growing.
Crushed stone and sand and gravel are essential and used widely in
all major construction activities, including highway, road, and bridge
construction and repair projects, as well as residential and
nonresidential construction. Although crushed stone is used mostly by
the construction industry, it is also used as a basic raw material in
agricultural and chemical and metallurgical processes. The construction
industry is by far the largest consumer of sand and gravel.
Consequently, the level of construction activity largely determines the
demand for, and resulting production levels of, these aggregate
materials.
In 1998, President Clinton signed the Transportation Equity Act for
the 21st Century, commonly known as ``TEA-21'' (Pub. L. 105-178), which
authorizes highway, highway safety, transit, and other surface
transportation programs for the fiscal years 1998 to 2003. The demand
for materials produced by the surface nonmetal mining industry is
anticipated to increase substantially due to, in significant part,
transportation infrastructure construction resulting from the enactment
of TEA-21. As the largest public works legislation in the nation's
history, appropriating almost $218 billion for highway and transit
programs, TEA-21 provides a 40 percent funding increase over the levels
for such programs established by the Intermodal Surface Transportation
Efficiency Act of 1991, which was the last major authorizing
legislation for surface transportation.
In addition to the passage of TEA-21, other factors may also
contribute to the continued growth in construction activity and, thus,
the demand for aggregate materials. These include a healthy U.S.
economy in general, low interest rates, and adverse weather conditions
that have damaged and destroyed homes, roads, and bridges in various
parts of the country.
Since fiscal year 1980, the year in which the congressional
appropriations rider took effect, more than 650 miners have been killed
in occupationally related incidents at mines where we cannot enforce
miner training requirements. The rider affects approximately 10,200
surface nonmetal mines and 120,000 miners. Approximately 9,200 of these
sites are surface aggregate operations (sand and gravel and crushed
stone); the remainder are surface operations that mine other
commodities such as clay or colloidal phosphate.
Our data indicate that, of the 243 miners involved in fatal
accidents at surface metal and nonmetal mines from 1993 to 1998, about
80 percent (199 miners) worked at exempt mines. During this same
period, exempt mines accounted for only 64 percent of the number of
hours worked at surface mines. From 1993 to 1997, the annual number of
fatal accidents at exempt mines almost doubled (from 24 fatalities in
1993 to 45 fatalities in 1997). In each of the years 1996 and 1997, 90
percent of fatalities at surface metal and nonmetal mines occurred at
operations affected by the appropriations rider.
A large proportion of exempt mines are smaller operations, which
experience a higher fatality rate than larger operations. For example,
of the 9,200 surface aggregate mines, approximately 4,900 employ five
or fewer miners, and approximately 8,100 employ fewer than 20 miners.
Long-term data show that mines with fewer than six employees are three
times as likely to experience fatalities as mines with 20 or more
workers. Also, mines with between six and 19 employees are more than
two times as likely to have fatal accidents as operations with larger
workforces.
Several other factors may contribute to the number of fatal
accidents, including--
(1) An influx of new and less experienced miners and mine
operators;
(2) Longer work hours to meet production demands; and
(3) Increased demand for independent contractors, who may be less
familiar with the hazards on mine property.

All of these factors are also more likely to exist when production
activity accelerates to meet increases in demand.
We believe that some of these fatalities may have been prevented if
victims had received appropriate, basic miner safety training. Our
fatal accident investigations show that the majority of miners involved
in fatal accidents at mines affected by the rider had not received
health and safety training that complied with the requirements of part
48. In 1997, 80 percent of fatal accident victims at exempt mines had
not received health and safety training in accordance with part 48. In
1998, this increased to 86 percent.
Safety and health professionals from all sectors of industry
recognize that training is a critical element of an effective health
and safety program. Training of new employees, refresher training for
experienced miners, and training for new tasks serve to inform workers
of health and safety hazards inherent in the workplace and, just as
important, to enable workers to identify and avoid those hazards.
Congress clearly recognized these principles by specifically including
training provisions in the Mine Act.

XIII. Discussion of the Final Rule

A. Statutory Requirements

Section 115(a) of the Mine Act authorizes the Secretary of Labor to
promulgate miner health and safety training regulations. Section
115(a), (b), and (c) set forth minimum requirements for miner training
programs. These requirements include:
Each operator must have a health and safety program
approved by the Secretary of Labor;
Each approved training program for new surface miners must
provide for at least 24 hours of training in specified courses,
including:
The statutory rights of miners and their representatives under the
Act;
Use of self-rescue and respiratory devices, where appropriate;
Hazard recognition;
Emergency procedures;
Electrical hazards;
First aid;
Walkaround training; and
The health and safety aspects of the task to which the miner will
be assigned;
Each approved training program must provide for at least
eight hours of refresher training every 12 months for all miners;
Miners reassigned to new tasks must receive task training
prior to performing that task;
New miner training and new task training must include a
period of

[[Page 53087]]

training as closely related as is practicable to the miner's work
assignment;
Training must be provided during normal working hours;
During training, miners must be paid at their normal rate
of compensation and reimbursed for any additional cost for attending
training;
Upon completion of each training program, each operator
must certify, on a form approved by the Secretary, that the miner has
received the specified training in each subject area of the approved
health and safety training plan;
A certificate for each miner must be maintained by the
operator and available for inspection at the mine site;
A copy of the certificate must be given to each miner at
the completion of the training;
When a miner leaves the operator's employ, the miner is
entitled to a copy of his or her health and safety training
certificates;
False certification by an operator that training was given
is punishable under section 110(a) and (f) of the 1977 Mine Act; and
Each health and safety training certificate must indicate
on its face, in bold letters, printed in a conspicuous manner, that
such false certification is so punishable.
The final training rule takes a performance-oriented approach,
where possible, to afford currently exempt operations, particularly
small operations, the flexibility to tailor miner training to their
particular needs and methods of operation.

B. Summary of the Final Rule

The final rule requires you to develop and implement a written
training plan that includes programs for training new and newly hired
experienced miners, training miners for new tasks, annual refresher
training, and site-specific hazard awareness training. Plans that
include the minimum information specified in the final rule are
considered approved by us and are not required to be submitted to us
for formal review, unless you, the miners, or miners' representative
requests it.
The final rule requires new miners to receive 24 hours of new miner
training, with a minimum of four hours of training in specific areas
before they begin work; instruction in additional subjects no later
than 60 days after beginning employment; and the balance of new miner
training no later than 90 days after beginning employment.
Under the final rule, newly hired experienced miners must receive
instruction in the same subjects required for new miners before they
begin work, and in one additional subject no later than 60 days after
beginning work.
Every 12 months, all miners must receive no less than eight hours
of refresher training that addresses relevant occupational health and
safety subjects. The refresher training must include instruction on
changes at the mine that could adversely affect the miners' health or
safety. You have the flexibility to determine other health and safety
subjects addressed in refresher training, although the final rule
identifies a number of recommended subjects.
The final rule requires training for every miner before the miner
is reassigned to a task for which he or she has no previous experience.
Training must also be given when a miner's task has changed. The
training must cover the health and safety aspects and safe work
procedures specific to the task. Site-specific hazard awareness
training is required for persons who do not fall within the definition
of ``miner'' and who are therefore not required to receive
comprehensive training (i.e., new miner training or newly hired
experienced miner training, as appropriate). The final rule also
requires site-specific hazard awareness training for miners employed by
production-operators and independent contractors who move from mine to
mine as a regular part of their employment. These miners are required
to receive comprehensive training but also need orientation in the
hazards at the mines where they will be working.
You are required to certify that a miner has received required
training and retain a copy of each miner's training records and
certificates for the duration of the miner's employment, except that
you must keep certificates of annual refresher training for at least
two years. You must keep training records and certificates for miners
who have terminated their employment with you for at least 60 days
after the employment ends. You may use our existing form for the
certification (MSHA Form 5000-23) or maintain the certificate in
another format, so long as it contains the minimum information required
in the final rule. You are also required to maintain a copy of the
current training plan at the mine or have the capability to produce it
upon request within one business day. You may keep training records and
certificates at the mine site or at a different location, but must
provide copies of the records to us and to miners and their
representatives upon request.
We do not approve training instructors under the final rule.
Instead, training must be provided by a competent person--someone with
sufficient ability, training, knowledge, or experience in a specific
area, who is also able to communicate the subject of the training and
evaluate the effectiveness of the training provided.
The final rule adopts the Mine Act requirement that miners be
trained during normal work hours and compensated at normal rates of
pay. Miners must also be reimbursed for incidental costs, such as
mileage, meals, and lodging, if training is given at a location other
than the normal place of work.
The final rule also allows you, where appropriate, to substitute
equivalent training required by OSHA or other federal or state agencies
to satisfy your training obligations under part 46.
The final rule addresses responsibility for training and gives
primary responsibility to the production-operator for ensuring that
site-specific hazard awareness training is given to employees of
independent contractors who are required to receive such training.
Additionally, independent contractors who employ miners required to
receive comprehensive training under the final rule are primarily
responsible for ensuring that their employees are given training that
satisfies these requirements.

C. Effective Date

Although the proposed rule did not specify an effective date, we
solicited comment in the preamble to the proposal on how much time
should be allowed for the mining community to come into compliance with
the final rule. In the preamble, we stated that we recognized that a
very large number of operations would attempt to come into compliance
at the same time, and we wanted to allow a reasonable period of time
after the final rule's publication for a smooth transition. We also
indicated that speakers at the seven preproposal public meetings had
recommended compliance periods ranging from six months to a year after
the final rule is published. We questioned whether phased-in compliance
deadlines, where certain part 46 requirements would go into effect at
different stages, would facilitate compliance.
We received many comments on this issue. Only a few commenters
favored phased-in compliance deadlines. One commenter suggested that
the final rule designate a six-month preparation period during which
operators could develop their training plans, establish recordkeeping
systems, experiment with

[[Page 53088]]

training methods, and enroll trainers in instruction courses. This
commenter believed that, after the six-month period, the rule should
take effect and be enforceable, except that no citations would be
issued for violations under this part during the first regular MSHA
inspection. Other commenters believed that phased-in compliance
deadlines would only serve as a source of confusion or impose
unnecessary administrative burdens. These commenters strongly
recommended against adoption of phased-in deadlines in the final rule.
Several commenters favored a six-month effective date, stating it
would provide adequate time for compliance if MSHA and state agencies
were available to assist operators in such areas as the development of
training plans and training materials. One commenter indicated that
many operators in his state were already in compliance with existing
part 48 and that these operators would need to take little action to
comply with part 46. One commenter believed that operators should be
required to comply with the final rule no later than 90 days after it
is published in the Federal Register, while another suggested a 24-
month compliance deadline. However, the vast majority of commenters
favored a one-year period before the final rule would take effect and
become enforceable. One commenter who supported a one-year compliance
period stated that many small operators will require assistance in
preparing plans and in locating appropriate trainers and training
materials. Other commenters advocated a one-year compliance period
because they believed it would ensure that the mining community would
be able to implement the final rule in a rational manner. Another
commenter who advocated a one-year deadline stated that we needed to
allow sufficient time for development of training materials appropriate
for the mines affected by the final rule. This commenter also believed
that significant time was needed to ensure that operators, many of whom
are not currently providing training, were familiar with the new
requirements in the final rule.
We have concluded that a one-year effective date, without interim
compliance deadlines, will ensure that production-operators,
independent contractors, and others affected by the final part 46 rule
will have sufficient time to become familiar with the rule's
requirements and take steps to come into compliance. Many operators,
particularly larger mine operators, are currently in compliance with
the majority of part 48 requirements and would need little time to
ensure that their training programs are consistent with the provisions
of the final rule. However, we are concerned that many small operations
affected by this rule have limited or no training programs currently in
place. These small operators typically also have limited resources from
which to develop and implement new training programs. We recognize that
we have an essential role to play in compliance assistance and outreach
effort in the coming year, particularly to small operators. This is
discussed in greater detail below under the heading ``Implementation of
the Final Rule.''
The final rule takes effect one year after the rule's publication
in the Federal Register, giving the mining community an adequate period
of time in which to come into compliance with the rule's requirements.
You must comply with Sec. 46.3(a) and Sec. 46.8(a) as prescribed in the
following table:

Compliance Dates for Production-Operators/Independent Contractors
------------------------------------------------------------------------
Training plans Compliance date
------------------------------------------------------------------------
You must develop and implement a written October 2, 2000.
plan, approved by us under either Sec.
46.3(b) or (c), that contains effective
programs for training new miners and
newly hired experienced miners, training
miners for new tasks, annual refresher
training, and site-specific hazard
awareness training..
------------------------------------------------------------------------
Annual refresher training Compliance dates
------------------------------------------------------------------------
You must provide each miner with no less (1) No later than 12 months
than 8 hours of annual refresher after the miner begins work
training--. at the mine, or no later
than March 30, 2001,
whichever is later; and (2)
Thereafter, no later than
12 months after the
previous annual refresher
training was completed.
------------------------------------------------------------------------

D. Implementation of the Final Rule

Many commenters observed that effective compliance assistance is
critical to the successful implementation of the final rule, and that
small operations in particular are in need of assistance from state and
federal agencies to be able to fulfill their training responsibilities.
A number of commenters addressed the type of assistance that we should
provide to facilitate compliance with the final rule.
We appreciate the commenters suggestions about the types of
resources that would provide the greatest benefit to the mining
community in complying with the final rule. We acknowledge that
compliance assistance for the mining community will be a key element in
the successful implementation of the final rule. We intend to provide
extensive compliance assistance to you as our resources permit, not
only through our staff in Metal and Nonmetal Mine Safety and Health,
but also through our newly formed Educational Field Services Division
in the Directorate of Educational Policy and Development. We also
expect recipients of federal funds through our State Grants program to
play a significant role in assisting you to develop effective training
plans and, at the same time, to satisfy the requirements of the final
rule.
We solicited comments in the preamble to the proposal on whether we
should include examples of model training plans, appropriate for
different types and sizes of mining operations, in a nonmandatory
appendix to the final rule. One of the few commenters who addressed
this issue supported including examples of training plans in a
nonmandatory appendix. Another commenter recommended that we should
encourage mine operators to contact agencies that are designed to
provide compliance assistance services, such as our Educational Field
Services Division and state grantees, instead of providing them as part
of the final rule. This commenter believed that operators would receive
more effective compliance assistance in plan development by reaching
out to appropriate agencies for guidance. This commenter was concerned
that including sample plans as an appendix to the regulation would make
it less likely that operators would contact these agencies for
assistance. We agree with this commenter, and we are also concerned
that placing sample plans in a regulatory appendix could restrict our
flexibility in making future refinements and improvements to the sample
plans. We have concluded that it is more appropriate to provide mine
operators with sample plans as part of an overall compliance assistance
and outreach effort that we will initiate for the mining community
after publication of the final

[[Page 53089]]

rule. We anticipate that other organizations, including state grantees
and large operators, also may develop sample training plans and make
them available to small operators to assist in training plan
development.
A number of commenters who addressed implementation of the final
rule advocated increased funding for our State Grants program. Under
this program, authorized by section 503(a) of the Mine Act, we
distribute federal funds to 43 states and the Navajo Nation to
supplement their mining health and safety programs. Grants are made to
the state agency responsible for miners' health and safety to support
health and safety programs, and most of these funds are used to support
health and safety training courses. State grantees play an essential
role in workplace health and safety by providing effective training to
thousands of miners across the country. MSHA's current budget includes
$5 million for the States Grants program. Our budget request for fiscal
year 2000 would increase that sum to $6.1 million, an increase of 22%.

E. Section-by-Section Discussion

This portion of the preamble discusses each final provision
section-by-section. The text of the final rule is included at the end
of the document.

Section 46.1 Scope

This section adopts with minor changes proposed Sec. 46.1 and
states that the provisions of part 46 set forth mandatory requirements
for the training and retraining of miners and other persons at all
shell dredging, sand, gravel, surface stone, surface clay, colloidal
phosphate, and surface limestone mines. Additionally, Sec. 48.21, the
existing scope section in part 48, is amended by this final rule to
specifically exclude mines that now are covered by the training
requirements of part 46. Part 46 requirements supersede the
requirements of part 48 at those mines that have been subject to the
congressional appropriations rider since fiscal year 1980.
The final rule states that the provisions of part 46 contain the
mandatory requirements for training and retraining of ``miners and
other persons'' at the mines covered by the final rule. Proposed
Sec. 46.1 would have provided that the training requirements of part 46
were for ``miners working'' at the covered mines. This adjustment in
the final rule language recognizes that the final rule's requirements
for site-specific hazard awareness training also apply to persons who
are not miners and who may not in fact work at the mine, such as
visitors or delivery personnel.
We have promulgated these regulations under a separate part of
Title 30 of the Code of Federal Regulations to minimize confusion about
which training requirements apply at what mines. We were concerned that
if we promulgated these regulations as a subpart to existing part 48,
it would make it more difficult for the mining community to distinguish
between the two sets of requirements. The few commenters who addressed
this issue generally favored the placement of these regulations under a
new part.
As explained in the preamble to the proposed rule, the mining
community should recognize that the list of the types of mines where
part 46 will now apply, set forth in this section of the final rule,
mirrors the language of the congressional budget rider and describes
the affected operations in broad terms. The list of mines in this
section does not detail every type of operation that falls within the
scope of these requirements. For example, part 46 training requirements
supersede part 48 requirements at operations that produce marble,
granite, sandstone, slate, shale, traprock, kaolin, cement, feldspar,
and lime, although these operations are not specifically included in
the list of mines in this section.
As stated in the proposed preamble, part 48 remains in effect at
all underground metal and nonmetal mines, all surface metal mines, and
a few surface nonmetal mines, such as surface boron and talc mines.
Operators at those mines continue to be responsible for complying with
the provisions of part 48.
The final rule takes a flexible and performance-oriented approach
to miner health and safety training requirements. This recognizes that
the mines that were subject to the congressional budget rider and that
are now governed by part 46 are different in size and type from many of
the mines under part 48. When the rider was first included as a
restriction to our budget appropriations for fiscal year 1980, some
mining industry representatives contended that the part 48 regulations
were inappropriate for the smaller and less complex operations that are
covered by this final rule. There was concern in the industry that the
part 48 requirements would be extremely burdensome and costly to
implement, forcing many small operations to curtail production during
training periods or go out of business altogether. Industry
representatives also contended that the part 48 regulations were
neither tailored to fit the needs of the various types of mining
operations nor flexible enough to be adaptable to those needs.
Additionally, the legislative history of the Mine Act reflects
Congress' concern that ``miner training may strain the financial
resources of many small operators.'' Conference Report No. 95-461, 95th
Cong., 1st Sess., 63 (1977).
In recognition of these concerns, we have developed this rule with
small businesses in mind. Almost 9,000 of the approximately 10,000
mines affected by the rule have fewer than 20 employees. All of the
operations fall well within the Small Business Administration's
definition of small business, which for the mining industry is a mine
with 500 or fewer employees. Many of these smaller operations typically
do not have a formal health and safety program in place.
A few commenters raised the issue of whether the performance-
oriented requirements of the final rule provide less protection to
miners than the existing training requirements in part 48, contrary to
the mandate of the Mine Act. However, most commenters from industry and
labor supported the proposed rule. In addition, the National Institute
for Occupational Safety and Health (NIOSH) supported the proposed rule,
stating the following:

The National Institute for Occupational Safety and Health
(NIOSH) supports MSHA in its effort to establish new training
requirements for shell dredging, sand, gravel, surface stone,
surface clay, colloidal phosphate, and surface limestone mines. We
believe that the proposed Part 46 regulations should provide
numerous opportunities for effective training. We also support the
performance-oriented approach taken by MSHA to make training
responsive to the needs of small operators by tailoring miner
training to their operations, thus making the training more
meaningful and, as a result, reducing the number of injuries and
fatalities.

Section 101(a)(9) of the Mine Act provides that ``[n]o mandatory
health or safety standard promulgated under this title shall reduce the
protection afforded miners by an existing mandatory health or safety
standard.'' We interpret section 101(a)(9), consistent with the
interpretation adopted by the U.S. Court of Appeals for the D.C.
Circuit, to require that all of the health or safety benefits resulting
from a new standard must be at least equivalent, taken together, to all
of the health or safety benefits resulting from the existing standard.
We have concluded that, especially in a time of rapid technological
advancement and constantly changing mining methods, a more restrictive
interpretation would frustrate Congress' intent to ``provide

[[Page 53090]]

more effective means and measures for improving the working conditions
and practices in the Nation's coal or other mines in order to prevent
death and serious physical harm * * *.'' Section 2(c) of the Mine Act,
30 U.S.C. section 801(c).
The requirements of this final rule amend the training requirements
in part 48 for more than 10,000 surface nonmetal mines, requirements
that we have been prohibited from enforcing at these mines for almost
20 years. We carefully considered the requirements of the final rule in
light of the statutory requirement that no new standard shall reduce
the protection afforded miners by our existing mandatory health and
safety standards. Although the final rule will allow you greater
flexibility in training development and implementation, MSHA has
determined that the new requirements will not reduce the protection
afforded to surface nonmetal miners under existing part 48. While the
means used under part 46 may be more flexible and performance-oriented
than part 48, the ultimate result--the effective safety and health
training of surface nonmetal miners--will be attained under the new
standard.
The final rule is intended to provide production-operators and
independent contractors with the necessary flexibility to devise
training programs that best suit their operations and employees. This
also recognizes that a large number of the mines affected by the final
rule are very small operations, many of which are sand and gravel
operations with limited equipment and facilities. These mines
frequently are small in size, employ few workers, use less complex
equipment, and consist of relatively uncomplicated mining operations.
The type of training appropriate for miners at such mines will differ
from miner training at a large mine or processing facility with highly
specialized and sophisticated equipment and hundreds of employees. The
final rule allows operators, with the assistance of miners and their
representatives, the latitude to tailor miner training programs to the
specific needs of their operations and workforces.
We also wish to emphasize the enhanced safety and health benefits
that result from the reduction in administrative burdens on operators
under the final rule, which will allow them to concentrate on ensuring
that effective training is being given at their specific operations.
For example, the final rule does not require the traditional submission
and review of training plans to gain our approval. Instead, operators
may choose to develop training plans that are considered approved by us
if they meet certain minimum requirements in the final rule. This
approach will allow us to focus our resources on verification of plan
execution and assistance to you in providing effective training at your
mines, rather than on a paper review and approval of more than 10,000
training plans at our offices. Likewise, you and training providers
would be able to focus on the development of training plans that
address the safety and health concerns at your specific operations,
rather than on traditional procedures to gain our approval.
The flexibility included within several sections of the final rule,
offering the option of presenting training in short durations and in
various formats, will allow miners to more easily retain information
and receive effective training in close proximity to their work and
associated hazards. Under existing part 48 requirements for annual
refresher training, training sessions must last a minimum of 30
minutes. Under the part 46 final rule, training sessions may be of any
duration and can be conducted at the work site near potential safety
and health hazards. This approach would allow miners to receive
training at a time and location close to where the training is needed.
Additional safety and health benefits will also result from the
specific requirement in part 46 that provides that training must be
presented in language understood by the miners who are receiving the
training. The final rule also includes specific provisions which
require production-operators to provide information about site-specific
hazards to independent contractors who perform work at their mine.
Similarly, the final rule provides that independent contractors must
inform production-operators of any hazards they might present at the
work site. In addition, unlike existing part 48, the requirements of
this final rule would apply to construction workers who perform work at
mine sites and are faced with similar hazards presented to other
miners.
The final rule also includes a requirement for task training when a
miner is reassigned to a task in which he or she has no previous work
experience, or when a change occurs to the safety and health risks
encountered by the miner while performing his or her tasks. Part 48
only applies to changes in ``regularly assigned tasks,'' and therefore
would not provide for task training for the one-time assignment of
tasks, such as emergency repairs. Accident and injury data show that
miners under the scope of the final rule are routinely injured while
performing such emergency repair tasks, even though it may be a one-
time task. In addition, the part 46 final rule provides that a miner
must be able to demonstrate that he or she can perform a new task in a
safe and healthful manner, even if the miner has had previous
experience or training in the task. Under part 48, a miner is allowed
to perform the new task if he or she has experience or received
training within the previous 12 months. Specific knowledge and skills
can be lost or diminished significantly if they are not used. For these
reasons, the final rule requires miners to demonstrate that they have
retained the needed knowledge and skills to perform the task safely.
In developing the final rule, we have also attempted to develop
practical requirements for effective safety and health training
programs at mines covered by the rule. For example, the final rule does
not require instructors to receive formal approval by MSHA, but instead
provides that ``competent persons'' designated by the production-
operator or independent contractor may instruct miners in subjects in
the areas of the competent persons' expertise.
Additionally, the final rule recognizes the difficulty that some
small operators may have in providing all 24 hours of new miner
training before a miner starts work. Many operators indicated that it
is not practical for all of this training to be provided before the
miner is assigned job duties. In addition, commenters stated that
training can be more effective if it is given over a two-or three-month
period.
The final rule requires that a new miner receive a minimum of four
hours of training in specific subjects before the miner begins work.
The amount of time needed for this training will depend on the size and
complexity of the mine where the training is given. In some cases this
training may require eight hours or more to adequately introduce new
employees to the work environment and mine site hazards, such as at a
larger mine with complex operations. In other cases, no more than the
required minimum of four hours of pre-work training may be needed to
cover the necessary subjects at a very small mine with only a couple of
employees and a few pieces of equipment.
The requirements of the final rule are sufficiently consistent with
existing requirements in part 48, so that those of you who currently
comply with part 48 will have to make little adjustment in your
existing training programs to comply with the part 46 rule. As
mentioned above, part 46 includes

[[Page 53091]]

several different requirements from part 48 which will result in the
enhanced safety and health of workers at the mines covered by the final
rule. These differences include such things as the application of
training requirements to construction workers, the retention of certain
training records for longer durations, and the requirement that
training must be presented in language understood by the miners who are
receiving the training. Certain provisions may require you to make
adjustments to your existing training programs, for example:

----------------------------------------------------------------------------------------------------------------
Part 48 Part 46
----------------------------------------------------------------------------------------------------------------
DEFINITION

48.22(a)(1)(i) This definition of miners does not 46.2 The definition of miner includes any construction
include construction workers.. worker who is exposed to hazards of mining operations.

RECORDS OF TRAINING

(a) Upon a miner's completion of each MSHA approved (a) You must record and certify on MSHA Form 5000-23,
training program, the operator must record and certify or on a form that contains the information listed in
on MSHA Form 5000-23 that the miner has received the Sec. 46.9(b), that each miner has received training
specified training. required under this part.
N/A.................................................... (b)(5) The record must include a statement signed by
the person designated in the MSHA-approved training
plan for the mine as responsible for health and safety
training, that states ``I certify that the above
training has been completed.''
(c) Copies of training certificates for currently (h) You must maintain copies of training certificates
employed miners must be kept at the mine site for 2 and training records for each currently employed miner
years, or for 60 days after termination of employment. during his or her employment, except records and
certificates of annual refresher training under Sec.
46.8, which you must maintain for only two years. You
must maintain copies of training certificates and
training records for at least 60 calendar days after a
miner terminates employment.
----------------------------------------------------------------------------------------------------------------

In the preamble to the proposed rule, we solicited comment on
whether the final rule should specifically allow you the option of
complying with the requirements of part 48 in lieu of part 46. Only a
few commenters addressed this issue. One commenter stated that giving
mine operators the option of complying with part 48 would adversely
affect implementation of the rule. This commenter indicated that
allowing such an option would make our enforcement of training
requirements more difficult. Another commenter supported this option,
stating that many of the operators who are covered by the final rule
currently comply with part 48 and should be allowed to continue to do
so.
The final rule does not allow operators the option of complying
with part 48 in lieu of the requirements of part 46. We have concluded
that providing such an option would provide less effective training and
protection for the miners working at your mines. Part 46 requires
training for construction workers and it takes a proactive approach
toward the training of independent contractor employees that come onto
mine property. We believe that these provisions, along with other
enhancements included in part 46, will result in improved safety and
health for the construction workers, independent contractor workers,
and miners who work near these individuals at the mine. For these
reasons, we have not adopted this compliance option in the final rule.
However, the final rule does allow production-operators and independent
contractors to substitute relevant training given under part 48 for
training required under part 46.

Section 46.2 Definitions

This section of the final rule includes definitions of certain
terms used in part 46. We are providing these definitions to assist the
mining community in understanding the requirements of the rule.
We have adopted most of the definitions included in the proposal
into the final rule. In some cases, we have made changes to the
definitions to respond to concerns of commenters. We explain these
changes in the preamble discussion for each term.
Act. Section 46.2(a) states that all references to the ``Act'' in
the final rule mean the Federal Mine Safety and Health Act of 1977, 30
U.S.C. 801 et seq.
Competent person. Under the final rule, a ``competent person'' must
conduct the training required under this part, and final Sec. 46.2(b)
adopts the proposed definition of this term, with some changes. The
final rule defines ``competent person'' as a person designated by the
production-operator or independent contractor who has the ability,
training, knowledge, or experience to provide training to miners in his
or her area of expertise. The competent person must be able both to
communicate the training subject effectively to miners and to evaluate
whether the training given to miners is effective.
The final definition of ``competent person'' is similar to the
definition included in the proposed rule, but we have made several
changes in the final definition in response to commenters. Instead of
providing that the ``operator'' designate the competent person, as in
the proposal, the final rule provides that the ``production-operator or
independent contractor'' designate the competent person. Although the
proposal would have defined the term ``operator'' to include both
production-operators and independent contractors, we have concluded,
based on comments, that the final rule definition should refer
specifically to both. This emphasizes that independent contractors are
``operators'' under the Mine Act and are responsible for providing
effective training to their employees under the requirements of the
final rule. Use of both terms also eliminates any confusion that the
use of the generic term ``operator'' may create. The proposed
definition also did not include a specific reference to the competent
person's ability to communicate. The final rule includes this
requirement in response to commenters who believe that communication
skills are critical to effective training.
Many commenters generally supported the proposed definition of
``competent person.'' They stated that instructors should not have to
satisfy extensive qualification requirements or obtain MSHA approval
before providing training to miners. A number of commenters indicated
that the flexible provisions proposed would allow operators to have
access to more than adequate resources to ensure quality training for
miners.

[[Page 53092]]

Several commenters recommended that we insert language in the
definition of ``competent person'' that requires instructors to have
knowledge of mining and of the specific hazards miners face on the job.
These commenters believed that this language would enhance the quality
of training. Another commenter suggested that the definition include a
requirement that the competent person have at least one year of mining
experience.
We considered adopting these recommendations in the final rule. We
have concluded, however, that such requirements would not guarantee
quality instruction and may unnecessarily restrict otherwise qualified
persons from providing training under the final rule. We agree with the
views of one commenter who stated that there may be some situations
where mining experience could enhance the quality of training, but that
persons without such experience could still be competent in educating
people and communicating necessary subjects to them. A wide variety of
subjects will be relevant to health and safety conditions at the
various mine sites covered by this rule. Persons who have expertise in
certain relevant areas, but who lack actual mining experience or
experience applicable to mining, can be effective instructors in their
specialized areas. For example, the final rule requires that you
instruct new miners and newly hired experienced miners in the statutory
rights of miners. A requirement that the person who teaches this
subject have either actual mining experience or mine-specific knowledge
would serve no purpose. Someone without mining experience but with a
legal background, such as a paralegal or an attorney familiar with the
provisions of the Mine Act, could provide effective instruction on that
subject. In the same vein, someone without mining experience but with a
medical background, such as a nurse practitioner or an emergency
medical technician, could provide effective instruction in first aid.
Finally, an individual with expertise in electrical hazards on specific
types of equipment that are used in both mining and non-mining
applications could provide appropriate training on those hazards, even
if that person has no mine-specific experience.
Several commenters stated that there are certain skills a person
must have in order to be considered competent. One commenter stated
that a person who conducts training should have not only substantive
knowledge of the subject area but also the ability to effectively
communicate the information to the persons receiving the training. Some
commenters recommended that the definition of ``competent person''
address communication skills, such as lecturing and writing, and the
ability to train adults. Several commenters recommended that, at a
minimum, persons designated to provide training receive specific
instructor training to ensure that they are able to teach miners
effectively. Other commenters stated that the proposed definition was
appropriate and that the final rule should not require specific
training for instructors. These commenters maintained that production-
operators and independent contractors were in the best position to
determine who was capable of providing training and that the final rule
should give them flexibility and latitude in designating competent
persons. A number of commenters also stated that formal instructor
training would not guarantee quality training.
As under the proposed rule, the definition in the final rule does
not specify the type or extent of ability, training, knowledge, or
experience needed for a person to be ``competent'' and, therefore,
qualified to provide training under the final rule. This is consistent
with the overall performance-oriented approach taken in the final rule.
We agree with commenters who were concerned that more stringent
requirements could seriously limit the pool of potential instructors,
without any assurance that these requirements enhance the quality of
the training provided. However, this approach places the responsibility
on production-operators and independent contractors to ensure that
their employees receive adequate health and safety training under the
final rule. Production-operators and independent contractors must
assess whether the person who will provide training has the requisite
expertise, communication skills, and ability to evaluate the training.
The final rule does not adopt the recommendation of some commenters
that the definition of ``competent person'' specifically require
training in effective instruction or communication. However, in
response to commenters who indicated that communication skills were
essential for good training, the final rule definition of ``competent
person'' includes language requiring that the competent person be able
to effectively communicate the training subject to miners.
The final rule, like the proposal, also requires that the competent
person have the ability to evaluate whether the training given to
miners is effective. As addressed in greater detail in the preamble
discussion for Sec. 46.4, the final rule does not specify how the
competent person should conduct such an evaluation. Instead, as part of
our outreach efforts, we intend to provide compliance assistance to you
to help you to identify competent persons to provide training for your
miners.
One commenter stated that the ``competent person'' should be able
to demonstrate the ability to identify hazards and should have the
authority to take prompt corrective measures to eliminate existing or
potential hazards. The definition suggested by this commenter is
similar to the definition of ``competent person'' under OSHA
regulations at 29 CFR 1926.32(f). OSHA regulations define ``competent
person'' as--

* * * one who is capable of identifying existing and predictable
hazards in the surroundings, or working conditions which are
unsanitary, hazardous, or dangerous to employees, and who has
authorization to take prompt corrective measures to eliminate them.

You should not confuse the OSHA definition of ``competent person''
with the same term under this final rule. Under OSHA regulations, a
``competent person'' is not only responsible for worker training, but
also must have the authority to correct workplace hazards. Our final
rule, like existing part 48, limits instructors' responsibilities to
providing training to miners and does not require the instructor to
have the authority to eliminate workplace hazards. Correction of
hazards remains the responsibility of the production-operator and the
independent contractor.
Equivalent experience. Final Sec. 46.2(c) defines ``equivalent
experience'' as work experience where the person performed duties
similar to duties performed in mining operations at surface mines. The
proposed rule included this term in several provisions but did not
define the term. Several commenters questioned what constituted
equivalent experience, stating that the final rule should provide mine
operators with guidance in determining the kinds of experience that
would be considered equivalent, in such areas as construction or public
utility work. In response to these comments, the final rule provides
examples of the types of experience that may be equivalent, such as
work as a heavy equipment operator, truck driver, skilled craftsman, or
plant operator. We intend that these examples serve to illustrate the
types of work that may be counted as equivalent experience under the
final rule, but these examples are not an exhaustive list. As we stated
in the preamble to the proposal,

[[Page 53093]]

``equivalent experience'' includes such things as work at a
construction site or other types of jobs where the miner has duties
similar to the duties at the mine where he or she is employed, in a
work environment similar to the mine environment.
Experienced miner. A number of commenters addressed the proposed
definition of ``experienced miner.'' Like the proposal, final
Sec. 46.2(d) provides that a miner is ``experienced'' if he or she
satisfies one of several criteria. The final rule adopts the criteria
included in the proposal and, in response to comments, adds a provision
that a miner with 12 months of cumulative surface mining or equivalent
experience on or before the effective date of the final rule is an
``experienced miner.''
Section 46.2(d)(1)(i) of the final rule, like the proposal, brings
within the definition of ``experienced miner'' any person employed as a
miner on April 14, 1999--the date that the proposed rule was published
in the Federal Register. Most regularly employed miners will be
``experienced'' under this definition, and therefore not subject to the
new miner training requirements in Sec. 46.5 of the final rule. This is
similar to the approach taken in 1978 when part 48 went into effect.
The definition of ``experienced miner'' in part 48 included all persons
employed as miners on the effective date of the regulation, regardless
of the length of their mining experience or the extent of their health
and safety training. Most miners who were employed on April 14, 1999,
even those at intermittent operations, will have accrued at least
several months of experience by the rule's effective date.
Under final Sec. 46.2(d)(1)(ii), a person will be considered an
``experienced miner'' if he or she has at least 12 months of cumulative
surface mining or equivalent experience on or before the effective date
of the final rule. In the preamble to the proposed rule, we pointed out
that a miner with many years of experience who happened to be out of
work on April 14, 1999, would not be an ``experienced miner'' under the
proposal. We solicited comment on whether this would have an adverse
impact at some operations, particularly those that operate on an
intermittent or seasonal basis. Many commenters responded, expressing
their concern that the proposed definition would mean that miners with
extensive mine employment would not be considered experienced and would
be required to receive new miner training. In contrast, a miner who was
employed on one specific day--April 14, 1999--would be considered
experienced and subject to less comprehensive training requirements.
These commenters strongly recommended that the final rule include
miners who had accrued at least 12 months of experience before the
effective date of the final rule within the definition of ``experienced
miner.'' We agree with the point made by these commenters, and the
final rule adopts the suggestion of these commenters. Additionally, the
final rule clarifies the intent of the proposal that the 12 months of
experience are cumulative and may be accrued in non-consecutive months.
This recognizes that many operations affected by this rule operate
seasonally or intermittently, and that it is not uncommon for miners to
work several months on and several months off. These patterns of
employment make it difficult, if not impossible, for many miners to
accrue 12 months of experience in one continuous period.
Commenters supported this interpretation, but strongly recommended
that the language of the rule itself specifically provide that miners
may accrue experience in non-consecutive months. We agree with
commenters that this interpretation should be clarified, and the final
rule provides that the requisite experience must total at least 12
``cumulative'' months.
The final rule, like the proposal, allows equivalent experience to
be counted toward the required 12 months of cumulative experience. We
recognize that the operations and equipment at many of the mines
covered by this final rule are very similar to the operations and
equipment used at many non-mining operations, such as road construction
sites. Although commenters generally supported credit for equivalent
work under the definition of ``experienced miner,'' one commenter
recommended against such credit. This commenter contended that credit
for equivalent experience would not enhance miner health and safety
because many injuries and deaths occur among newly hired experienced
miners. We acknowledge that miners who are unfamiliar with a new mine
site, even those with extensive experience, may be at risk of injury.
To address such concerns, Sec. 46.6 of the final rule requires newly
hired experienced miners to receive specified training. This training
is intended to ensure that experienced miners are thoroughly familiar
with the particular environment and hazards present at a mine that is
new to them.
Several commenters recommended that the final rule provide guidance
on what constitutes equivalent experience. In response, the term
``equivalent experience'' has been defined in Sec. 46.2 as ``work
experience where the person performed duties similar to duties
performed in mining operations at surface mines.'' This definition is
described in more detail elsewhere in this section of the preamble.
Under the final rule, operators must determine the extent of the
miner's experience, and also whether any non-mining experience is
equivalent. The final rule imposes no specific requirements for
tracking or recording the accumulated experience. It is the
responsibility of production-operators and independent contractors to
determine the miner's experience, based on the miner's work and
training history.
Paragraph (d)(1)(iii) of final Sec. 46.2 includes within the
definition of ``experienced miner'' a person who began employment at a
mine after April 14, 1999, the date of publication of the proposal, but
before the effective date of the final rule, and who has received new
miner training consistent with the requirements proposed under
Sec. 46.5 or with existing requirements for surface miners at
Sec. 48.25. This is similar to a provision included in the proposal and
is intended to provide flexibility to those of you who are already
providing training to your miners under part 48, or who wish to provide
training under the requirements of proposed part 46 before the final
rule takes effect. This provision is not intended to require compliance
with the proposed rule, but was proposed as a voluntary option for
those of you who wanted to begin developing a training program before
the publication of the final rule.
This aspect of the proposed rule received little substantive
comment. However, the final rule clarifies which miners are affected by
this provision. Under the final rule, this paragraph will apply to
miners who began employment as miners after April 14, 1999, but before
the effective date of the final rule. You should be aware that a miner
who began employment between these dates may otherwise be considered
``experienced'' under paragraph (d)(1)(ii) because he or she will
accrue 12 months of experience by the rule's effective date. Miners who
have not accrued the necessary experience and who do not otherwise fall
within the definition of ``experienced miner'' must receive new miner
training under the final rule.
Final Sec. 46.2(d)(1)(iv) provides that a person employed as a
miner on or after the effective date of the final rule who has
completed 24 hours of new miner training under either Sec. 46.5 or
Sec. 48.25 and who has at least 12 months of

[[Page 53094]]

cumulative surface mining or equivalent experience would be an
``experienced miner'' under the final rule. As discussed earlier, the
use of the term ``cumulative'' in the final rule is intended to make
clear that the necessary experience need not have been gained in
consecutive months, but can be accumulated over a period of time. Also
as discussed earlier, the final rule reflects the intent of the
proposal and clarifies that this provision applies to miners who are
employed as miners on or after the effective date of the final rule.
Several commenters recommended that the final rule define the term
``experienced miner'' as a person who either has 12 months of
experience or has received the required 24 hours of new miner training,
but not both. These commenters believed that either training or
experience provided a sufficient basis to consider a miner
``experienced'' under the final rule.
As we indicated in the preamble to the proposed rule, we have
concluded that an ``experienced miner'' should have both training and
work experience. Nothing offered by commenters has persuaded us
otherwise. However, we continue to recognize that many miners currently
working at mining operations affected by the final rule have extensive
experience in the industry and should not be treated as inexperienced
miners when the final rule takes effect. The final rule therefore
provides that a miner will be considered experienced on the rule's
effective date if he or she either has accrued a certain level of
mining experience or has received specified health and safety training.
This recognizes that there will be a period of transition for the
mining community on the effective date of the final rule and is
intended to facilitate compliance. The definition in the final rule,
like that in the proposal, allows equivalent experience to be counted
towards the 12-month requirement.
Final Sec. 46.2(d)(2) is adopted without change from the proposal
and provides that an experienced miner retains that status permanently
under part 46. This is consistent with recent revisions to part 48.
This aspect of the proposal received little comment, but was generally
supported by those commenters who addressed it. This provision applies
in those situations where a miner is returning to work in the mining
industry after being away, either because the miner took a job in
another industry, such as construction, or because he or she had been
laid off. Once a miner attains the status of an ``experienced miner''
under the final rule, he or she is considered experienced permanently.
However, you should be aware that final Sec. 46.6 requires that newly
hired experienced miners complete newly hired experienced miner
training no later than 60 days after beginning their employment.
Independent contractor. Final Sec. 46.2(e), like the proposal,
defines ``independent contractor'' as a person or entity that contracts
to perform services at a mine under this part. This is consistent with
the language of the Act, which includes independent contractors who
perform services or construction at a mine within the definition of the
term ``operator.'' This aspect of the proposal received little comment,
except that several commenters found that the proposal's use of the
term ``operator'' to refer to both production-operators and independent
contractors was confusing. In response to these comments, the final
rule use both ``production-operator'' and ``independent contractor,''
where appropriate, to avoid any misunderstanding.
Mine Site. Section 46.2(f) of the final rule defines the term
``mine site'' for purposes of part 46 as ``an area of the mine where
mining operations occur.'' The final rule defines the term ``mining
operations'' as ``mine development, drilling, blasting, extraction,
milling, crushing, screening, or sizing of minerals at a mine;
maintenance and repair of mining equipment; and associated haulage of
materials within the mine from these activities.'' The proposed rule
used the term ``mine site'' but did not define it. At some mines, there
may be portions of mine property where no mining operations occur and
where mining hazards are limited or nonexistent, such as an office
building that is on mine property but is isolated from mining
activities. This situation may be more common at larger mines with more
extensive operations. The term ``mine site'' does not include such
areas within its definition.
Miner. The term miner is defined in final Sec. 46.2(g)(1)(i) as any
person, including any operator or supervisor, who works at a mine and
is engaged in mining operations. This definition specifically includes
within its scope independent contractors and employees of independent
contractors who are engaged in mining operations. Section
42.2(g)(1)(ii) also clarifies that the definition of ``miner'' includes
any construction worker who is exposed to hazards of mining operations.
The definition of ``miner'' in the final rule differs from the
definition in the proposal, which would have defined ``miner'' as a
person engaged in mining operations integral to extraction or
production. The proposed rule defined ``extraction or production'' as
the mining, removal, milling, crushing, screening, or sizing of
minerals, as well as the haulage of these materials, a narrower range
of activities than the term ``mining operations'' under the final rule.
Many commenters supported the proposed definition of ``miner,''
stating that it was consistent with the overall approach of the
proposal to provide training commensurate with the risks experienced by
the person to be trained. The definition of ``miner'' in the final rule
is intended to address the concerns of several commenters that the
proposed definition was not sufficiently inclusive. Some of these
commenters stated that workers are killed and disabled at mine sites
every year even though they do not directly participate in the
extraction and production process. Several commenters recommended that
the final rule define ``miner'' to include persons who are regularly or
frequently exposed to mine hazards. These commenters were concerned
that limiting comprehensive training to those engaged in activities
that were integral to extraction or production would mean that some
workers exposed to hazards would not have the proper training and would
be unable to recognize the hazards and protect themselves. One
commenter pointed out that individuals who enter mine property to
service, maintain, assemble, or disassemble mine extraction or
production equipment are at risk, but it was not clear that the
proposed definition of ``miner'' would include these workers.
We intend that the definition of ``miner'' include persons who are
engaged in activities related to day-to-day mining operations. The
final rule defines ``miner'' in terms of the activities the individual
performs at the mine, which are activities that would expose workers to
hazards associated with mining operations. We intend that workers who
provide regular maintenance of mining equipment on the mine site be
considered ``miners'' under the final rule. However, the proposed rule
was not clear on this point. To address this, the definition of
``mining operations'' in the final rule specifically includes
maintenance and repair within its scope, and those workers who maintain
and repair equipment would be ``miners.''
You should be aware, however, that Sec. 42.2(g)(2) provides that
maintenance and service workers who do not work at a mine site for
frequent or extended periods are excluded from the definition of
``miner.'' This means that maintenance and service workers who

[[Page 53095]]

come onto mine property infrequently or for short periods of time, and
whose exposure to mine hazards is consequently limited, are not
considered ``miners'' for purposes of part 46.
The final rule, like the proposal, specifically includes operators
and supervisors within the definition of ``miner'' if they are engaged
in mining operations; operators and supervisors who fall within the
definition are covered by the same training requirements in the final
rule as rank-and-file miners. Commenters were generally supportive of
this aspect of the proposal and stated that the type of training that
workers receive should depend on the types of work they are performing
and the hazards that they encounter in performing that work, not on
their job titles. The final rule also clarifies the intent of the
proposal that independent contractors and independent contractor
employees who are engaged in mining operations are also ``miners''
under the final rule. This clarification responds to several commenters
who were concerned that the proposed rule did not make clear that
independent contractors are included within this definition.
Final Sec. 46.2(g)(1)(ii) provides that ``miner'' also means any
construction worker who is exposed to hazards of mining operations.
Although the proposed rule itself was not explicit that construction
workers exposed to mining hazards were included, we stated in the
proposed preamble that the requirements of this rule would apply to
construction workers who work at mines covered by the rule. To ensure
that there is no question under the final rule as to the status of
construction workers, the final definition of ``miner'' specifically
references construction workers.
Our intention under the proposal was that construction workers who
were engaged in activities integral to extraction and production would
be considered ``miners.'' We provided an example in the proposed
preamble of a construction worker who might be a miner under the
proposal. In this example the construction worker was building a new
crusher in an active quarry. A number of commenters seriously
questioned this example, stating that until the crusher is operational,
extraction and production activities have not begun, and the
construction worker would not be a ``miner'' under the definition in
the proposed rule. We agree with commenters that this example may not
be consistent with the language in the proposed rule. These comments
highlight the fact that construction workers, because of the nature of
their work, are not typically engaged in mining operations, such as in
the example in the preamble to the proposal. However, construction
workers who are at an active mine site will be exposed to significant
hazards of mining. Construction workers are also typically at the mine
site for extended periods because of the nature of their work, unlike
many other employees of independent contractors. For these reasons, the
final rule now provides that construction workers who are exposed to
hazards of mining operations are considered ``miners'' under the final
rule. This means that construction workers who work in an active mine
site are considered ``miners'' and must receive comprehensive training
(i.e., new miner training or newly hired experienced miner training, as
appropriate). Construction workers who are not ``miners'' must receive
site-specific hazard awareness training under Sec. 46.11(b). We
solicited comment in the preamble to the proposal on whether we should
promulgate separate training standards for construction workers. Most
commenters who addressed this issue opposed the development of separate
training requirements for construction workers and supported the
application of the final rule to those workers. These commenters
maintained that it was appropriate to include construction workers
under the training regulations that apply to other workers at mine
sites, pointing out that many of the serious injuries and fatalities in
the aggregates industry involve contract construction workers. Only one
commenter expressed strong opposition to applying the requirements of
the final rule to construction workers. This commenter asserted that
including construction workers under the final rule was directly
contrary to the Mine Act's statutory language directing MSHA to
promulgate appropriate training standards specifically governing
construction workers at mine sites. This commenter also maintained that
construction workers should not be subject to mandatory training
requirements until MSHA promulgates separate regulations under section
115(d) of the Mine Act.
We do not agree that the Mine Act mandates that training
requirements for construction workers at mines must be developed as
separate standards. As we indicated in the preamble to the proposal,
the Mine Act does not prohibit the application of part 46 requirements
to construction workers. Section 115(d) of the Mine Act simply directs
the Secretary of Labor to ``promulgate appropriate standards for safety
and health training for coal or other mine construction workers.''
There is nothing in the statutory language that requires independent
training requirements that apply exclusively to mine construction
workers.
Final Sec. 46.2(g)(2) is adopted from the proposal with a minor
change and further clarifies that the definition of ``miner'' does not
include scientific workers, delivery workers, customers, vendors,
visitors, or maintenance or service workers who do not work at a mine
site for frequent or extended periods. The proposed rule would have
excluded ``occasional, short-term maintenance or service workers'' as
well as ``manufacturers' representatives'' from the definition of
miner. The final rule adopts language that we use in our policy under
part 48 to characterize maintenance and service workers who are not
regularly exposed to mine hazards and who are therefore not required to
receive comprehensive training. We determined that it would be more
straightforward to adopt existing terms into the final rule rather than
attempt to define new terms--i.e., ``occasional'' and ``short-term''--
that we intend to mean essentially the same thing. We intend that the
terms ``frequent'' and ``extended'' have the same meaning as under part
48. That is, ``frequent'' exposure is a pattern of exposure to mine
hazards occurring intermittently and repeatedly over time. ``Extended''
exposure means exposure to mine hazards of more than five consecutive
work days. Consequently, maintenance or service workers who are not at
a mine site for frequent or extended periods would not be ``miners''
under the final rule.
Upon further consideration and in response to commenters, we have
not adopted the proposed blanket exclusion of ``manufacturers'
representatives'' from the definition of ``miner''. Instead, under the
final rule, whether or not a manufacturer's representative is a
``miner'' depends on the circumstances of each case. A manufacturer's
representative is a ``miner'' if he or she is engaged in mining
operations at mine sites--such as maintaining or repairing equipment--
for frequent or extended periods. Manufacturers' representatives who
are frequently at mine sites but who are not engaged in mining
operations would not be ``miners'' under this definition. For example,
a manufacturers' representative who is merely marketing mine equipment

[[Page 53096]]

would not be a miner, even if he or she is at a mine site on a daily
basis.
Several commenters suggested that the final rule provide examples
of the types of workers who are considered ``miners.'' Commenters
believed that examples would greatly benefit operators in determining
who is a ``miner'' under the final rule. Although we agree that
examples would provide clarification, we believe that this guidance is
best provided in the compliance materials that we will be developing to
assist production-operators and independent contractors in complying
with the final rule.
Mining operations. As indicated in the preamble discussion of the
definition of ``miner,'' the final rule defines ``miner'' as a person
engaged in mining operations, and final Sec. 46.2(h) defines ``mining
operations''. The proposal would have defined ``miners'' as workers
engaged in mining operations integral to ``extraction and production.''
This definition would also have specifically included the associated
haulage of these materials at the mine. The proposed rule would have
defined ``extraction or production'' as ``the mining, removal, milling,
crushing, screening, or sizing of minerals at a mine.''
``Mining operations'' was not defined in the proposal, and, as
discussed above, essentially replaces the proposed definition of
``extraction or production''. ``Mining operations'' is a slightly
broader definition that includes mine development, drilling, blasting,
extraction, milling, crushing, screening, or sizing of minerals at a
mine; maintenance and repair of mining equipment; and associated
haulage of materials within the mine from these activities. This change
responds to commenters who were concerned that the proposed definition
of ``miner'' was too narrow and that workers who were exposed to
significant mining hazards, such as maintenance workers, would not be
included within the definition. The definition of ``mining operations''
specifically includes maintenance and repair of mining equipment, as
well as haulage of materials within the mine site. Because the
enumerated activities are broader than ``extraction and production,''
they are referred to in the final rule by the term ``mining
operations.''
One commenter stated that the haulage of processed materials from
stockpiles to offsite customers should be excluded from the definition
of ``extraction or production.'' The commenter believed that this would
therefore exclude delivery drivers and customer drivers from the
definition of ``miner.'' In fact, we intended to exclude customers and
delivery personnel from the definition of ``miner.'' To clarify this
point, the definition of ``mining operations'' includes the haulage of
materials within the mine. Haulage of materials away from the mine is
not included in the final rule's definition of ``mining operations,''
and persons who perform only this type of work do not fall within the
definition of ``miner.'' Section 42.2(g)(2) also indicates that
commercial over-the-road truck drivers may be considered ``customers''
under the final rule and excluded from the definition of ``miner.''
The definition of ``mining operations'' includes ``mine
development'', to make clear that certain activities preliminary to
extraction would be included. These activities include such things as
drilling, mining and developmental work on both newly discovered and
established mineral deposits. We have historically considered this
phase of activities part of the extraction phase of mining and thus
subject to our jurisdiction. However, this would not include
exploratory drilling, reconnaissance, search, or prospecting that takes
place off of an existing mine site and that is conducted in the search
of the initial discovery of mineral deposits.
New miner. Section 46.2(i) of the final rule adopts the proposed
definition of ``new miner'' with minor changes. The final rule defines
a new miner as a person who is beginning employment as a miner with a
production-operator or independent contractor and who is not an
experienced miner. As discussed elsewhere in the preamble, the final
rule substitutes the terms ``production-operator or independent
contractor'' for the broader term of ``operator,'' to make it
consistent with the wording of the definition in the final rule for
``newly hired experienced miner.''
Newly hired experienced miner. The definition of this term is
similar to the definition of ``new miner''. ``Newly hired experienced
miner'' was not defined in the proposed rule, but is defined in
Sec. 46.2(j) of the final rule as an experienced miner who is beginning
employment with a production-operator or independent contractor.
Commenters questioned whether certain miners, such as those
employed by an independent contractor who move from mine to mine, would
be considered new miners or newly hired experienced miners. We agree
with these commenters that the proposed rule was not clear on this
distinction, and the definition of ``newly hired experienced miner''
specifically provides that experienced miners who move from one mine to
another, such as drillers and blasters, but who remain employed by the
same production-operator or independent contractor are not considered
newly hired experienced miners and do not need training under Sec. 46.6
of the final rule. However, final Sec. 46.11 specifically requires that
these miners receive site-specific hazard awareness training for each
mine.
Normal working hours. Section 46.10 of the final rule, like the
proposal, requires that training be conducted during ``normal working
hours.'' Final Sec. 46.2(k) adopts the proposed definition of ``normal
working hours'' and provides that ``normal working hours'' means a
period of time during which a miner is otherwise scheduled to work.
This definition is based on a similar provision in part 48 and also
provides that the sixth or seventh working day may be used to conduct
training, provided that the miner's work schedule has been in place
long enough to be accepted as a common practice. This aspect of the
proposed rule did not receive much comment, and the final definition is
adopted with a minor change from the proposal. The final rule
references ``production-operator and independent contractor'' rather
than ``operator.'' As discussed earlier, this change is intended to
eliminate any confusion that may have been caused by the use of the
term ``operator'' in the proposal.
As discussed under Sec. 46.10 of the preamble, we intend that the
schedule must have been in place long enough to provide reasonable
assurance that the schedule change was not motivated by the desire to
train miners on what had traditionally been a non-work day.
Comments received on the proposed definition raised the issue of
whether travel to an off-site location and the training conducted at
that location must be conducted during normal working hours. These
issues are addressed under the preamble discussion for final
Sec. 46.10.
Operator. Operator is defined in Sec. 46.2(l) of the final rule to
mean both production-operators (defined in this section as owners,
lessees, or other persons who operate or control a mine) and
independent contractors who perform services at a mine. This definition
is consistent with the definition of ``operator'' in section 3(d) of
the Act. The term ``operator'' is used throughout the preamble to refer
to the person or entities responsible for providing health and safety
training under part 46. However, we use the terms ``production-
operator'' and ``independent contractor'' in the final rule to
distinguish between the two

[[Page 53097]]

types of operators and to emphasize that independent contractors also
have responsibility for training.
Production-operator. Final Sec. 46.2(m) defines ``production-
operator'' as any owner, lessee, or other person who operates,
controls, or supervises a mine covered by this part. This would mean
the person or entity that actually operates the mine as a whole, as
opposed to an independent contractor who provides services. Commenters
were generally silent on this aspect of the proposal. This definition
is derived from the definition of ``operator'' in section 3(d) of the
Mine Act and is adopted without change from the proposal into the final
rule.
Task. Final Sec. 46.2(n) defines ``task'' as a work assignment or
component of a job that requires specific job knowledge or experience.
The proposal would have defined ``task'' as a component of a job that
is performed on a regular basis. One commenter pointed out that a task
may or may not be performed on a regular basis and questioned why that
limitation was included in the proposed definition. The commenter was
concerned that there could be instances where a miner is assigned to
perform a task on a one-time basis, but a literal reading of the
proposed definition of ``task'' suggests that task training would not
be required in such a situation. We agree with this commenter, and the
wording in the final rule has been clarified accordingly.
This definition identifies the type of job duties that would be
subject to the new task training requirements under final Sec. 46.7.
Under that section, a miner must be provided with training when
reassigned to a task for which he or she has no previous experience, or
when the miner's assigned task is changed.
We and us. These terms are adopted in the final rule to refer to
the Mine Safety and Health Administration (MSHA). We have written the
final rule in the more personal style advocated by the President's
executive order on ``plain language,'' which, among other things,
encourages the use of personal pronouns. Commenters generally supported
the use of plain language in both the regulatory language and the
preamble, and ``we'' and us'' are used throughout the final rule and
preamble to refer to MSHA.
You. The final rule, like the proposal, uses the term ``you'' to
refer to production-operators and independent contractors, consistent
with ``plain language'' concepts. However, a number of commenters
indicated that using ``you'' to refer both to production-operators and
independent contractors created some confusion. In response to these
comments, we have limited our use of ``you'', both in the final rule
language and the preamble, to instances where it is unlikely to be
misunderstood or unclear.
The final rule, unlike the proposal, does not include a definition
of ``hazard training.'' ``Hazard training'' was defined in the proposal
as information or instructions on the hazards a person could be exposed
to while on mine property, as well as on applicable emergency
procedures. In response to comments, the concepts that were outlined in
the proposed definition have been consolidated into final Sec. 46.11,
the section of the final rule that specifically addresses site-specific
hazard awareness training. A separate definition for ``hazard
training'' is not needed as a result, and the proposed definition has
not been adopted in the final rule.

Section 46.3 Training Plans

Section 46.3 of the final rule requires production-operators and
independent contractors to develop and implement a training plan and
also addresses MSHA approval of training plans, how and where a copy of
the training plan must be maintained, and who has access to the plan.
The requirements of section 46.3 apply to production-operators and
those independent contractors who have employees who fit the definition
of ``miner'' under final Sec. 46.2. These requirements have been
adopted, with some changes, from the proposed rule.
In developing the final rule, we have attempted to develop
practical requirements for health and safety training programs at the
wide range of mines covered by part 46. Section 115 of the Mine Act
provides that mine operators shall have a health and safety training
program that shall be ``approved by the Secretary [of Labor].'' The
Mine Act does not set forth a specific method by which we must approve
an operator's health and safety training plan. We believe, therefore,
that the drafters of the Mine Act intended some flexibility concerning
the procedures to be followed by us when implementing MSHA approval of
health and safety training plans. We are also mindful that regulatory
considerations under section 115 of the Mine Act must be balanced with
the congressional intent expressed in section 103(e) of the Mine Act.
This provision directs us not to impose an unreasonable burden on mine
operators, especially those operating small businesses, when requesting
information consistent with the underlying purposes of the Act. As a
result, we believe that the Mine Act provides us with the discr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A99-25273. Public record. Not legal advice.