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

SUMMARY: This proposed rule would amend 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 proposed rule would

implement the training requirements of section 115 of the Federal Mine

Safety and Health Act of 1977 (Mine Act) and provide for effective

miner training at the affected mines once Congress has removed the

appropriation's prohibition from MSHA's budget. At the same time, the

proposed rule would allow mine operators the flexibility to tailor

their training programs to the specific needs of their miners and

operations.

DATES: Submit comments on or before June 14, 1999.

ADDRESSES: Send comments on the proposed rule--

(1) By mail to MSHA, Office of Standards, Regulations, and

Variances, 4015 Wilson Boulevard, Room 631, Arlington, VA 22203;

(2) By facsimile to MSHA, Office of Standards, Regulations, and

Variances, 703-235-5551; or

(3) By electronic mail to [email protected]. If possible, please

supplement written comments with computer files on disk; contact the

Agency with any format questions.

Submit written comments on the information collection requirements

directly to the Office of Information and Regulatory Affairs, OMB, New

Executive Office Building, 725 17th Street, NW, Washington, DC 20503,

Attn: Desk Officer for MSHA; and to Carol J. Jones, Acting Director,

Office of Standards, Regulations, and Variances, MSHA 4015 Wilson

Boulevard, Room 631, Arlington, VA 22203; by facsimile to MSHA, at 703-

235-5551; or by electronic mail to [email protected].

FOR FURTHER INFORMATION CONTACT: Carol J. Jones, Acting Director,

Office of Standards, Regulations, and Variances, MSHA; 703-235-1910.

SUPPLEMENTARY INFORMATION:

I. Plain Language

We (MSHA) wrote this proposed 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 proposed rule, ``you'' refers to production-operators and

independent contractors because they have the primary responsibility

for compliance with MSHA regulations. In addition, we recognize and

appreciate the value of comments, ideas, and suggestions from labor

organizations, industry associations, and other parties who have an

interest in health and safety training for miners. We would appreciate

comments and suggestions from all parties on this proposed rule and on

our use of ``plain language.'' How could we improve the clarity of this

style?

II. Paperwork Reduction Act

This proposed rule contains collection of information requirements

that are subject to review by the Office of Management and Budget (OMB)

under the Paperwork Reduction Act of 1995 (PRA 95). The title,

description, and respondent description of the information collection

are shown below with an estimate of the annual reporting burden.

Included in the estimate is the time for reviewing instructions,

gathering and maintaining the data needed, and completing and reviewing

the collection of information. We invite comments on--

(1) Whether the proposed collection of information is necessary

for proper performance of our functions, including whether the

information will have practical utility;

(2) The accuracy of our estimate of the burden of the proposed

collection of information, including the validity of the methodology

and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of

information to be collected; and

(4) Ways to minimize the burden of the collection of information

on respondents, including through the use of automated collection

techniques, when appropriate, and other forms of information

technology.

These estimates are an approximation of the average time expected

to be necessary for a collection of information. They are based on such

information as is available to us.

Submission

MSHA has submitted a copy of this proposed rule to OMB for its

review and approval of these information collections. Interested

persons are requested to send comments regarding this information

collection, including suggestions for reducing this burden, directly to

the Office of Information and Regulatory Affairs, OMB, New Executive

Office Building, 725 17th Street, NW, Washington, DC 20503, Attn: Desk

Officer for MSHA; and to Carol J. Jones, Office of Standards,

Regulations, and Variances, MSHA, 4015 Wilson Boulevard, Room 631,

Arlington, VA 22203. Submit written comments on the information

collection no later than June 14, 1999.

Description of Respondents

Those required to provide the information are mine operators and

individuals who are paid to perform tasks for the mine operator (e.g.,

instructors).

Description of Information Collection Burden

The proposal contains information collection requirements in

Secs. 46.3, 46.5, 46.6, 46.7, 46.8, 46.9, and 46.11. The proposed rule

imposes first year total burden hours and costs of 239,188 hours and

$8,291,569. The first year burden hours and costs are composed by

summing the figures in Tables VII-1, VII-2, and VII-3. After the first

year, the annual burden hours and costs would be 226,685 hours and

$7,865,469, which is shown in Table VII-2

Table VII-1 presents one-time burden hours and costs by provision

and mine size.

[[Page 18499]]

Table VII-1.--Mine Operators' One-Time Burden Hours and Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mines (1-5) Mines (6-19) Mines (20) Totals

Prov. -------------------------------------------------------------------------------------------------------

Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

46.3............................................ 7,509 $256,290 3,277 $111,830 1,207 $42,250 11,993 $410,370

--------------------------------------------------------------------------------------------------------------------------------------------------------

Table VII-2 presents annual burden hours and cost by provision and

mine size.

Table VII-2.--Mines Operators' Annual Burden Hours and Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mines (1-5) Mines (6-19) Mines (20) Totals

Prov. ------------------------------------------------------------------------------------------------------------

Hrs. Costs Hrs. Costs Hrs. Costs Hrs. Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

46.5....................................... 41,007 $1,676,058 21,458 $1,016,502 4,860 $297,170 67,325 $2,989,730

46.6....................................... 7,898 284,341 4,240 152,627 978 35,192 13,116 472,159

46.7....................................... 5,599 201,579 7,980 287,297 7,111 256,008 20,691 744,884

46.8....................................... 34,551 1,243,839 15,433 555,582 5,461 196,582 55,445 1,996,003

46.9....................................... 2,765 73,267 5,876 155,725 5,704 151,164 14,346 380,156

46.11...................................... 25,208 579,773 22,005 506,115 8,550 196,650 55,763 1,282,538

------------------------------------------------------------------------------------------------------------

Total................................ 117,028 4,058,857 76,992 2,673,847 32,664 1,132,765 226,685 7,865,469

--------------------------------------------------------------------------------------------------------------------------------------------------------

Table VII-3 presents miners and miners' representatives one-time

burden hours and costs.

Table VII-3.--Miners and Miners' Representatives--One-Time Burden Hours and Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mines (-5) Mines (6-19) Mines (20) Totals

Prov. -------------------------------------------------------------------------------------------------------

Hrs. Costs hrs. Costs Hrs. Costs Hrs. Costs

--------------------------------------------------------------------------------------------------------------------------------------------------------

46.3............................................ 336 $7,728 146 $3,358 28 $644 510 $11,730

--------------------------------------------------------------------------------------------------------------------------------------------------------

Paragraph (a) of Sec. 46.3 requires you to develop and implement a

written training plan that contains effective programs for training new

miners and experienced miners, training miners for new tasks, annual

refresher training, and hazard training. The mines affected by this

provision are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that a mine supervisor, earning $36 per hour, would

take 2 hours to write a plan in mines that employ fewer than 20

persons, and 4 hours in mines that employ 20 or more persons. The one-

time costs are annualized using an annualization factor of 0.07.

Paragraph (b) requires the following information, at a minimum, to

be included in a training plan:

(1) The company name, mine name, and MSHA mine identification

number;

(2) The name and position of the person designated by you who is

responsible for the health and safety training at the mine. This

person may be the operator;

(3) A general description of the teaching methods and the course

materials that are to be used in providing the training, including

the subject areas to be covered and the approximate time to be spent

on each subject area;

(4) A list of the persons who will provide the training, and the

subject areas in which each person is competent to instruct; and

(5) The evaluation procedures used to determine the

effectiveness of training.

Paragraph (c) requires a plan that does not include the minimum

information specified in paragraph (b) to be approved by us. For each

size category, we estimate that 20 percent of you will choose to write

a plan and send it to us for approval. Thus, the mines affected by this

provision are--

(1) 672 mines that employ 5 or fewer workers;

(2) 293 mines that employ between 6 and 19 workers; and

(3) 57 mines that employ 20 or more workers.

MSHA estimates that it would take a clerical worker, earning $17

per hour, about 0.1 hours per mine to photocopy and mail the training

plan. The one-time costs are annualized using an annualization factor

of 0.07.

Paragraph (d) requires you to provide miners' representatives with

a copy of the training plan. At mines where no miners' representative

has been designated, you must post a copy of the plan at the mine or

provide a copy to each miner. The mines affected by this provision

are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that a clerical worker, earning $17 per hour, would

take 0.1 hours to photocopy the plan and either deliver or post the

plan. The one-time costs are annualized using an annualization factor

of 0.07.

Paragraph (e) provides that within 2 weeks following receipt or

posting of the training plan, miners or their representatives may

submit written comments on the plan to you, or to the Regional Manager,

as appropriate. The burden hours and costs of this provision are not

borne by you, but by miners and their representatives.

MSHA estimates that a miner or miners' representative would submit

comments for 5 percent of the affected mines in each size category. The

mines affected by this provision are--

(1) 168 mines that employ 5 or fewer workers;

(2) 73 mines that employ between 6 and 19 workers; and

(3) 14 mines that employ 20 or more workers.

MSHA estimates that a miner or miners' representatives, earning $23

per hour, would take 2 hours per affected mine to prepare written

comments. The one-time costs are annualized using an annualization

factor of 0.07.

[[Page 18500]]

Paragraph (g) allows you, miners, and miners' representatives to

appeal a decision of the Regional Manager in writing to the Director

for Education Policy and Development. The Director would issue a

decision on the appeal within 30 days after receipt of the appeal. The

mines affected by this provision are--

(1) 13 mines that employ 5 or fewer workers;

(2) 6 mines that employ between 6 and 19 workers; and

(3) 1 mine that employees 20 or more workers.

MSHA estimates that for 90% of you who would appeal a decision, a

mine supervisor would write the appeal. MSHA estimates that a mine

supervisor, earning $36 per hour, would take 4 hours to write the

appeal. The one-time costs are annualized using an annualization factor

of 0.07.

MSHA further estimates that for the remaining 10% of you who would

appeal a decision, an attorney (a third party) would write the appeal.

There are no mine operator burden hours in this case, because you would

pay the third party for its services. The attorney fee to handle an

appeal process is estimated to be $2,000 per appeal, and this cost is

annualized using an annualization factor of 0.07.

Paragraph (h) requires you to make available at the mine site a

copy of the current training plan for inspection by MSHA and for

examination by miners and their representatives. If the training plan

is not maintained at the mine site, you must have the capability to

provide the plan upon request by MSHA, miners, or their

representatives. The mines affected by this provision are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that a clerical worker, earning $17 per hour, would

take 0.1 hours to photocopy and file the training plan. The one-time

costs are annualized using an annualization factor of 0.07.

Paragraph (a) of Sec. 46.5 requires you to provide each new miner

with no less than 24 hours of training. Miners who have not received

the full 24 hours of new miner training must work under the close

supervision of an experienced miner. The mines affected by this

provision are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that for each mine, a mine supervisor, earning $36

per hour, would take 6 hours annually to prepare for the new miner

training. MSHA further estimates that the average number of training

sessions the mine supervisor would provide annually are--

(1) 0.46 sessions for mines that employ 5 or fewer workers;

(2) 0.64 sessions for mines that employ between 6 and 19

workers; and

(3) 0.82 sessions for mines that employ 20 or more workers.

On average, each training session is estimated to last 13.48 hours.

Additionally, we estimate that part of new miner training would be

provided off-site by a third party. You would pay the third party for

providing this part of the new miner training; thus you would incur

burden costs but no burden hours. The number of miners receiving off-

site training are--

(1) 1,537 miners in mines that employ 5 or fewer workers;

(2) 1,877 miners in mines that employ between 6 and 19 workers;

and

(3) 940 miners in mines that employ 20 or more workers.

The annual costs for off-site training are $130 per miner. This

consists of the following: a $35 training fee; $30 for transportation

to off-site training; $30 per diem for meals; and $35, on average, for

overnight lodging (We assume that half of the miners receiving off-site

training will require overnight lodging for one night at $70 per night,

or 0.5 x $70).

Paragraph (a) of Sec. 46.6 requires you to provide each newly-hired

experienced miner with certain training before the miner begins work.

The mines affected by this provision are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that it would take a mine supervisor, earning $36

per hour, 1 hour annually to prepare to give the experienced miner

training. MSHA further estimates that the average number of training

sessions the mine supervisor would provide annually are--

(1) 0.45 sessions for mines that employ 5 or fewer workers;

(2) 0.63 sessions for mines that employ between 6 and 19

workers; and

(3) 0.81 sessions for mines that employ 20 or more workers.

On average, each training session is estimated to last 3 hours.

Paragraph (a) of Sec. 46.7 requires that before a miner performs a

task for which he or she has no experience, you must train the miner in

the safety and health aspects and safe work procedures specific to that

task. If changes have occurred in a miner's regularly assigned task,

you must provide the miner with training that addresses the changes.

The mines affected by this provision are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that for each mine, a mine supervisor, earning $36

per hour, would take 0.25 hours annually to prepare for the task

training. MSHA further estimates that the average number of training

sessions the mine supervisor would provide annually are--

(1) 2.36 sessions for mines that employ 5 or fewer workers;

(2) 8.65 sessions for mines that employ between 6 and 19

workers; and

(3) 41.17 sessions for mines that employ 20 or more workers.

On average, each training session is estimated to last 0.6 hours.

Paragraph (a) of Sec. 46.8 requires that at least every 12 months,

you must provide each miner with no less than 8 hours of refresher

training. The mines affected by this provision in each size category

are--

(1) 3,361 mines that employ 5 or fewer workers;

(2) 1,467 mines that employ between 6 and 19 workers; and

(3) 285 mines that employ 20 or more workers.

MSHA estimates that for each mine, a mine supervisor, earning $36

per hour, would take 3 hours to prepare for the task training. MSHA

further estimates that the average number of training sessions the mine

supervisor would provide annually are--

(1) 0.91 sessions for mines that employ 5 or fewer workers;

(2) 0.94 sessions for mines that employ between 6 and 19

workers; and

(3) 2.02 sessions for mines that employ 20 or more workers.

On average, each training session is estimated to last 8 hours.

Paragraph (a) of Sec. 46.9 requires you, upon completion of each

training program, to record and certify on MSHA Form 5000-23, or on a

form that contains the required information, that the miner has

completed the training. False certification that training was

[[Page 18501]]

completed is punishable under Sec. 110(a) and (f) of the Act. For all

records required to be kept in Secs. 46.5, 46.6, 46.7, and 46.8, MSHA

estimates that for each mine, a mine supervisor, earning $36 per hour,

would take 0.05 hours to record and certify each miner's training

record. In addition, it would take a clerical worker, earning $17 per

hour, 0.05 hours to prepare, copy, and distribute the certificate.

The annual number of training records required to be kept under

Sec. 46.5 (New miner training) are--

(1) 1,537 in mines that employ 5 or fewer workers;

(2) 1,877 in mines that employ between 6 and 19 workers; and

(3) 940 in mines that employ 20 or more workers.

The annual number of training records required to be kept under

Sec. 46.6 (Newly-hired experienced miner training) are--

(1) 1,516 in mines that employ 5 or fewer workers;

(2) 1,856 in mines that employ between 6 and 19 workers; and

(3) 930 in mines that employ 20 or more workers.

The annual number of training records required to be kept under

Sec. 46.7 (New task training) are--

(1) 18,446 in mines that employ 5 or fewer workers;

(2) 41,273 in mines that employ between 6 and 19 workers; and

(3) 41,380 in mines that employ 20 or more workers.

The annual number of training records required to be kept under

Sec. 46.8 (Annual refresher training) are--

(1) 6,149 in mines that employ 5 or fewer workers;

(2) 13,758 in mines that employ between 6 and 19 workers; and

(3) 13,793 in mines that employ 20 or more workers.

During the public meetings, numerous commenters stated that records

should not have to be retained at the mine site. MSHA agrees and the

proposed 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 to the

authorized representative of the Secretary upon request within a

reasonable time, in most cases one day.

Although the proposed 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.

MSHA solicits comment on what actions would be required, if any, to

facilitate the maintenance of records in electronic form by those mine

operators who desire to do so, while ensuring access in accordance with

these requirements.

Paragraph (a) of Sec. 46.11 requires you to provide site-specific

hazard training to--

(1) Scientific workers;

(2) Delivery workers and customers;

(3) Occasional, short-term maintenance or service workers, or

manufacturers' representatives; and

(4) Outside vendors, visitors, office or staff personnel who do

not work at the mine site on a continuing basis.

The annual number of non-miners to be trained are--

(1) 50 non-miners in each of the 3,361 mines that employ 5 or

fewer workers;

(2) 100 non-miners in each of the 1,467 mines that employ

between 6 and 19 workers; and

(3) 200 non-miners in each of the 285 mines that employ 20 or

more workers.

No record is required for this type of training. The burden is for

the time the miner takes to provide the training. MSHA estimates that

for each mine, a miner, earning $23 per hour, would take 0.15 hours

annually, on average, to provide hazard training.

III. Executive Order 12866 and Regulatory Flexibility Act

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 proposed rule is

not an economically significant regulatory action pursuant to section

3(f)(1) of E.O. 12866. MSHA does consider the proposed rule to be

significant under section 3(f)(4) of the E.O. because of widespread

interest in the rule, and has submitted the proposal 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) 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 proposed 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 proposed rule on mines with 20 or more employees, mines

with 6-19 employees, and mines with 1-5 employees. MSHA has determined

that this proposed rule would not impose a substantial cost increase on

small mines.

MSHA has prepared a Preliminary Regulatory Economic Analysis (PREA)

and Regulatory Flexibility Certification Statement to fulfill the

requirements of E.O. 12866 and the Regulatory Flexibility Act. This

PREA is available from MSHA upon request and is posted on our Internet

Homepage at www.msha.gov.

Regulatory Flexibility Certification Statement

Based on MSHA's analysis of costs and benefits, the Agency

certifies that this proposed rule would 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 proposed 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. The Agency

welcomes comment on its approach in this regard.

Derivation of costs and revenues: In the case of this proposed

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

[[Page 18502]]

affected by this rulemaking, MSHA multiplied the production data (in

tons) by the price per ton of the commodity.

The Agency welcomes comment on sources that can help it more

accurately estimate revenues for the final rule or other rules confined

to this sector.

Results of screening analysis. As shown in Table V-1 with respect

to the nonmetal mines affected by this rule that have 1 through 5

workers, the estimated costs of the rule as a percentage of their

revenues are 0.30 percent. For nonmetal mines covered by this rule that

have 6 through 19 workers, the estimated costs of the rule as a

percentage of their revenues are 0.13 percent. For nonmetal mines

covered by this rule that have 20 or more workers, the estimated costs

of the rule as a percentage of their revenues are 0.03 percent.

Finally, for all nonmetal mines covered by this rule (which are mines

that have 500 or less workers), the estimated costs of the rule as a

percentage of their revenues are 0.09 percent.

In every case, the impact of the proposed compliance costs is

substantially less than 1 percent of revenues, well below the level

suggesting that the proposed 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 covered by this rule.

As required under the law, MSHA is complying with its obligation to

consult with the Chief Counsel for Advocacy on this proposed rule, and

on the Agency's certification of no significant economic impact on the

mines affected by this rule. Consistent with Agency practice, notes of

any meetings with the Chief Counsel's office on this proposed rule, or

any written communications, will be placed in the rulemaking record.

The Agency will continue to consult with the Chief Counsel's office as

the rulemaking process proceeds.

Table V-1.--Exempt Nonmetal Mines Covered by the Proposed Rule a

[Dollars in thousands]

----------------------------------------------------------------------------------------------------------------

Costs as

Employment size Estimated Estimated percentage of

costs revenues b revenues

----------------------------------------------------------------------------------------------------------------

(1-5)........................................................... 5,857 1,949,366 0.30

(6-19).......................................................... 5,883 4,555,543 0.13

(20 or more).................................................... 3,154 9,756,081 0.03

All Minesc...................................................... 14,894 16,260,990 0.09

----------------------------------------------------------------------------------------------------------------

a All mines covered by the proposed 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.

c Every mine affected by rule has 500 or fewer employees.

Compliance Costs

MSHA estimates that the total net cost of the proposed new 30 CFR

part 46 training requirements would be approximately $16.2 million

annually, of which about $14.9 million would be borne by mine

operations in the following surface nonmetal mining sectors: shell

dredging, sand, gravel, stone, clay, colloidal phosphate, and

limestone. 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 would incur

costs of approximately $17 million annually to comply with the proposed

rule, while those currently in compliance with the existing part 48

training requirements would derive savings of approximately $2.1

million annually.

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 PREA, 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

proposed 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 proposed 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 workers; 40 percent of mines with between 6 and

19 workers; and 20 percent of mines with 20 or more workers.

In 1997, there were 10,152 exempt mines covered by the proposed

rule. MSHA estimates that the average cost per exempt mine to comply

with the proposed rule would be approximately $1,500 annually. For the

5,297 exempt mines with 5 or fewer workers, MSHA estimates that the

average cost of the proposed rule per mine would be approximately

$1,100 annually. For the 3,498 exempt mines with between 6 and 19

employees, MSHA estimates that the average cost of the proposed rule

per mine would be approximately $1,700 annually. For the 1,357 exempt

mines with 20 or more employees, MSHA estimates that the average cost

of the proposed rule per mine would be approximately $2,300 annually.

These costs per mine may be slightly misleading insofar as the

exempt mines currently in compliance with part 48 training requirements

would also be substantially in compliance with the proposed rule and

would therefore incur no compliance costs. In fact, as noted above,

these mines would derive savings of approximately $2.1 million annually

as a result of the proposed rule. For the exempt mine operators

(including independent contractors that employ miners) not currently in

compliance with part 48 training requirements, the annual cost of

complying with the proposed rule would, on average, be approximately

$1,800 per mine operator with 5 or fewer workers; $4,400 per mine

operator with between 6 and 19 workers; and $15,500 per mine operator

with 20 or more workers.

Table IV-1 from the PREA summarizes the yearly costs of the

proposed rule by mine size and by provision.

[[Page 18503]]

Table IV-1.--Summary of Yearly Compliance Costs for the Proposed Rule *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mines with 1-5 Mines with 6-19 Mines with 20+ Total cost for Total cost for

Requirement/provision employees employees employees all mines other parties Total cost

--------------------------------------------------------------------------------------------------------------------------------------------------------

Sec. 46.3........................................ $18,567 $8,102 $3,013 $29,682 $841 $30,523

Sec. 46.5........................................ 2,431,069 1,943,402 762,385 5,136,856 ............... 5,136,856

Sec. 46.6........................................ 389,353 281,137 99,589 770,079 ............... 770,079

Sec. 46.7........................................ 225,783 450,693 441,197 1,117,672 ............... 1,117,672

Sec. 46.8........................................ 2,131,047 2,520,492 1,482,488 6,134,027 ............... 6,134,027

Sec. 46.9........................................ 81,563 173,352 168,280 423,195 ............... 423,195

Sec. 46.11....................................... 579,807 506,046 196,788 1,282,641 1,282,641 2,565,282

-----------------------------------------------------------------------------------------------------

Total....................................... 5,857,188 5,883,255 3,153,740 14,894,153 1,283,482 16,177,635

--------------------------------------------------------------------------------------------------------------------------------------------------------

* Source: Table IV-12, Table IV-17, Table IV-19, Table IV-20; Table IV-23, Table IV-25, and Table IV-26.

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 factors 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 the PREA show that the lack of training in exempt mines contributes

significantly to the disproportionate number of fatalities that occur

at such mines. From 1993 to 1997, there were 200 fatalities at surface

mines, of which 163 occurred at exempt mines. Thus, exempt mines

accounted for 82 percent of all fatalities at surface mines. 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 experience 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 have the

highest rates of noncompliance with part 48 training and, not

surprisingly, the highest fatality rates.

It is plausible to assert that at least some of these fatalities

may have been prevented if victims had received appropriate, basic

miner safety training. Similarly, MSHA believes that compliance with

the requirements of this proposed training rule would, in turn, reduce

the number of fatalities at exempt mines. As discussed in greater

detail in Chapter III of the PREA, MSHA estimates that compliance with

the proposed rule would prevent about 10 fatalities per year. Although

not quantified, MSHA further expects that better trained exempt miners

would have a positive impact on reducing mining accidents, injuries,

and illnesses. MSHA believes that this proposed rule would 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. 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.

There are 152 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 roads. We believe that all of

these state-owned mines are in compliance with the proposed rule's

provisions. The Agency specifically solicits comments and any data to

either support or refute this assumption.

V. Unfunded Mandates Reform Act of 1995

We have determined that, for purposes of section 202 of the

Unfunded Mandates Reform Act of 1995, this proposed 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 section 203 of that Act, this proposed 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 PREA, the net compliance cost

of this proposed rule for the surface nonmetal mine operators is about

$14.9 million per year. Accordingly, there is no need for further

analysis under section 202 of the Unfunded Mandates Reform Act.

MSHA has concluded that small governmental entities are not

significantly or uniquely impacted by the proposed regulation. MSHA

estimates that approximately 185 sand and gravel, surface limestone,

and stone operations are run by State, local, or tribal governments.

The Agency believes that all of these state-owned mines are in

compliance with the proposed rule's provisions.

When MSHA issues the proposed rule, we will affirmatively seek

input of any State, local, and tribal government which may be affected

by this

[[Page 18504]]

rulemaking. This would include state and local governmental entities

that operate sand and gravel, surface limestone, and stone operations

in the construction and repair of highways and roads. MSHA will mail a

copy of the proposed rule to approximately 185 such entities.

VI. 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 proposed rule on children. MSHA has

determined that the proposed rule would have no effect on children.

VII. Executive Order 13084 (Consultation and Coordination With

Indian Tribal Governments)

MSHA certifies that the proposed rule would not impose substantial

direct compliance costs on Indian tribal governments.

VIII. Statutory and Rulemaking Background

Until 1977, the metal and nonmetal mining industries and the coal

mining industry were covered by separate occupational health and safety

statutes. The Federal Coal Mine Health and Safety Act of 1969 (1969

Coal Act) governed the coal mining industry. The Federal Metal and

Nonmetallic Mine Safety Act of 1966 (1966 Metal Act) governed the metal

and nonmetal mining industries. The 1966 Metal Act was the first

federal statute directly regulating non-coal mines. The 1969 Coal Act

authorized promulgation of mandatory safety and health standards for

coal mines, but the safety and health regulations promulgated under the

1966 Metal Act for metal and nonmetal mines were largely advisory.

Passage of the Federal Mine Safety and Health Act of 1977 (1977

Act), 30 U.S.C. 801 et seq.--

(1) placed coal mines and metal and nonmetal mines under a

single statute;

(2) substantially increased the health and safety protections

afforded all miners, but particularly metal and nonmetal miners; and

(3) applied to all mining and mineral processing operations in

the United States, regardless of size, number of employees, or

method of extraction.

Thus, the Mine Safety and Health Administration (MSHA), the agency

charged with carrying out the mandates of the 1977 Mine Act, regulates

and inspects two-person sand and gravel pits, as well as large

underground coal mines and processing plants employing hundreds of

miners.

Neither the 1969 Coal Act nor the 1966 Metal Act contained

comprehensive requirements for health and safety training of miners.

However, in the 1977 Mine Act, Congress clearly recognized training as

an important tool for preventing accidents and avoiding unsafe and

unhealthful working conditions in the nation's mines. Consistent with

this determination, section 115 of the 1977 Act directed the Secretary

of Labor to promulgate regulations requiring that mine operators

subject to the Act establish a safety and health training program for

their miners.

MSHA published regulations in 30 CFR part 48 on October 13, 1978

(43 FR 47453), implementing section 115 of the 1977 Mine Act. At that

time, certain segments of the mining industry strongly believed that

the new training regulations were designed for large and highly

technical operations and, therefore, were inappropriate and impractical

for smaller surface nonmetal mines. Industry representatives expressed

their concern over the difficulties that many small nonmetal operators

would have in complying with part 48 and requested relief from its

comprehensive specifications.

In 1979, various segments of the metal and nonmetal mining industry

raised concerns with Congress regarding the appropriateness of applying

the requirements of part 48 to their operations. Congress responded by

inserting language in the Department of Labor's appropriations bill

that prohibited the expenditure of appropriated funds to enforce

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 our appropriations contained in

the Omnibus Appropriations Act for 1999, P.L. 105-277, signed by the

President on October 21, 1998. The 1999 training rider, however,

authorizes us to expend funds to propose and promulgate final training

regulations by September 30, 1999, for operations affected by the

prohibition.

IX. General Discussion

Crushed stone and sand and gravel account for the majority of

operations where we cannot enforce 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 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 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 117 million employee-hours in 1997.

Similarly, the number of employee-hours at sand and gravel operations

rose from approximately 65 million in 1991 to 72 million in 1997. Based

on hours reported for the first nine months of 1998, the total hours

worked for 1998 will exceed the total hours worked in 1997. Although

some of the increase in hours worked may result from longer workdays,

the data strongly suggest 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 also used as a

basic raw material in agricultural, and chemical and metallurgical

processes, it is used mostly by the construction industry. The

construction industry also 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.

On June 9, 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

[[Page 18505]]

produced by the surface nonmetal mining industry is anticipated to

increase substantially due to, in significant part, transportation

infrastructure construction resulting from the recent enactment of TEA-

21. TEA-21 builds on the initiatives established in the Intermodal

Surface Transportation Efficiency Act of 1991 (ISTEA), which was the

last major authorizing legislation for surface transportation. 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 ISTEA levels for such programs.

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,

such as from El Nino and La Nina, which 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 600 miners have been killed

in occupationally related incidents at mines where we cannot enforce

miner training requirements (``exempt mines''). 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 mining other commodities such as clay or colloidal

phosphate.

Our data indicate that, of the 200 miners involved in fatal

accidents at surface metal and nonmetal mines from 1993 to 1997, about

80% (163 miners) worked at exempt mines. During this same period, 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% 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 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 reasons 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 contractors who may be less familiar

with the dangers 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, for example, 80% of fatal accident victims at exempt mines

had not received health and safety training in accordance with part 48.

Safety and health professionals from all sectors of industry

recognize that training is a critical element of an effective safety

and health program. Training of new employees, refresher training for

experienced miners, and training for new tasks serve to inform workers

of safety and health 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 1977 Mine Act.

The legislative history to the 1999 Appropriations Act reveals

congressional concern with our inability to enforce training

requirements for the exempt industries. The Senate Report associated

with the Senate appropriations bill for fiscal year 1999 states:

The Committee has continued language carried in the bill since

fiscal year 1980 prohibiting the use of funds to carry out the

training provisions of the Mine Act with respect to shell dredging,

or with respect to any sand, gravel, surface stone, surface clay,

colloidal phosphate, or surface limestone mine. The Committee

recommends including this language for another year. However, the

Committee finds the agency's data regarding the number of untrained

workers in these industries who are exposed to the risks and hazards

associated with the mining environment disturbing. Therefore, the

Committee intends for fiscal year 1999 to be the last year this

provision will be contained in the bill.

S. Rep. No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998).

In the Conference Report to the Omnibus Appropriations Act for

1999, Congress recognizes the high priority that employee safety and

health training should have for the mining industry. However, Congress

also notes that both we and the industries affected by the rider

acknowledge that existing part 48 regulations do not address either the

industries' or miners' needs in the most effective manner. In the

Report, Congress reaffirms the priority to provide health and safety

training for miners and directs us to expeditiously develop appropriate

training regulations for miners working in these industries. The

Conference Report also specifies that we must submit a progress report

on the training regulations before appropriations hearings on our

fiscal year 2000 budget and that we work cooperatively with labor and

industry representatives to disseminate information on the revised

training requirements in the period between the publication of the

final rule and its effective date.

The Conference Report language specifically instructs us to:

* * * work with the affected industries, mine operators,

workers, labor organizations, and other affected and interested

parties to promulgate final training regulations for the affected

industries by September 30, 1999. It is understood that these

regulations are to be based on a draft submitted to MSHA by the

Coalition [for Effective Miner Training] no later than February 1,

1999.

H.R. Rep. No. 105-825 for H.R. 4328, 105th Cong., 2d Sess. (1998).

The Coalition for Effective Miner Training (Coalition) consists of

associations that represent industries currently exempt from miner

training requirements. Coalition members include:

American Portland Cement Alliance

China Clay Producers Association

Dry Branch Kaolin Company

Georgia Crushed Stone Association

Georgia Mining Association

Indiana Mineral Aggregates Association

National Aggregates Association

National Industrial Sand Association

National Lime Association

National Stone Association

North Carolina Aggregates Association

Arizona Rock Products Association

Construction Materials Association of California

Sorptive Minerals Institute

United Metro Materials

Virginia Aggregates Association

In 1998, the Coalition initiated a process to outline an

alternative regulatory approach to part 48 for miner training in the

exempt industries. This process included working with industry and

labor organizations during the course of the development of its

[[Page 18506]]

proposal. On February 1, 1999, the congressionally established

deadline, the Coalition presented us with a final joint industry/labor

draft proposed rule.

To facilitate the broadest possible input from the regulated

public, we held seven preproposal public meetings throughout the

country in December 1998 and January 1999 to solicit comments on

development of the miner training rule for exempt mines. We selected

meeting locations in California, Colorado, Georgia, Illinois, New York,

Oregon, and Texas 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. The public

was encouraged to comment on any issue related to miner safety and

health training at exempt mines. The Federal Register notice announcing

the schedule of public meetings (63 FR 59258, November 3, 1998) listed

key issues on which we were specifically interested in receiving

comments. The issues included:

Should certain terms, including ``new miner'' and

``experienced miner'' be defined?

Which subjects should be taught before a new miner is

assigned work, even if the work is done under close supervision?

Should training for inexperienced miners be given all

at once, or over a period of time, such as several weeks or months?

Should supervisors be subject to the same training

requirements as miners?

Should task training be required whenever a miner

receives a work assignment that involves new and unfamiliar tasks?

Should specific subject areas be covered during annual

refresher training? If so, what subject areas should be included?

Can the 8 hours of annual refresher training required

by the Mine Act be completed in segments of training lasting less

than 30 minutes?

Should the records of training be kept by the mine

operator at the mine site, or can they be kept at other locations?

Should there be minimum qualifications for persons who

conduct miner training? If so, what qualifications are appropriate?

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 of

the attendees made oral presentations at the meeting, offering their

views on effective miner training. In addition, we have received a

number of written comments on how to ensure effective miner safety and

health training.

Speakers at the public meetings and other commenters generally

emphasized the importance of developing a training rule that provides

you with the flexibility to tailor your miner training programs to your

particular operations and workforce. Several speakers underscored the

need for practical and workable training requirements to meet the needs

of the wide variety of mines that will be affected by the new training

rule. Others commented on training for employees of independent

contractors working on mine property, recordkeeping requirements, and

appropriate qualifications for persons who will provide training. In

addition, speakers at every meeting commented on the need for

consistent implementation of the final training rule and the increased

involvement of MSHA and the state grantees in providing training

assistance and materials.

X. Discussion of the Proposed Rule

A. Statutory Requirements

Section 115(a) of the 1977 Act authorizes the Secretary of Labor to

promulgate miner health and safety training regulations; section

115(a), (b), and (c) also include minimum requirements for miner

training programs. The training regulations proposed here for miners

working at shell dredging, sand, gravel, surface stone, surface clay,

colloidal phosphate, and surface limestone operations are consistent

with these minimum requirements, which provide among other things,

that:

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 certain specific

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 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 be 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 proposed 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. For example, the proposal

would give you the latitude to choose many of the topics addressed in

training and the amount of time to be spent on each topic. Also it

would allow you to keep training records in a format of your choice, as

long as the records include the minimum information specified in the

rule.

B. Summary of Proposed Rule

We currently anticipate that the part 46 final rule will be

consistent with existing part 48 training requirements, so that those

of you who have implemented a safety and health training program that

complies with part 48 would not have to alter your programs to comply

with proposed part 46. However, we request 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.

The proposed rule would require you to develop and implement a

written training plan that includes programs for training new and

experienced miners, training miners for new tasks, annual refresher

training, and hazard training. Plans that include the minimum

information specified in the proposal would be considered approved by

us and would not be required to be submitted to us for formal review,

unless you, the miners, or miners' representative requests it.

The proposal would require new miners to receive 24 hours of

training within 60 days of employment. Instruction in four specific

areas must be provided before the miner begins work--

[[Page 18507]]

(1) Introduction to the work environment;

(2) Recognition and avoidance of hazards at the mine;

(3) Escape and emergency evacuation plans in effect at the mine,

and firewarning signals and firefighting procedures; and

(4) Health and safety aspects of the tasks to be assigned.

The remainder of new miner training would be required to be

completed within 60 days, and would address, at a minimum, the subjects

specified in section 115 of the Mine Act.

Under the proposal, newly-hired experienced miners would receive

instruction, before beginning work, in the same four topics required to

be covered for new miners before they begin work. Newly-hired

experienced miners would receive annual refresher training within 90

days, including instruction on several specific topics.

Every 12 months, all miners would receive no less than eight hours

of refresher training, which at a minimum would address major changes

at the mine. Under the proposal, you would have the flexibility to

determine the other subject areas to be covered in refresher training.

The proposal would require new task training for every miner before

the miner is assigned to a task for which he or she has no previous

experience or which has changed. Site-specific hazard training would be

required for persons who do not fall within the definition of ``miner''

and who would therefore not be required to receive comprehensive

training (i.e., new miner training or newly-hired experienced miner

training, as appropriate). The proposal would also require site-

specific hazard training for employees of independent contractors who

have received comprehensive training but who need orientation in the

hazards of the mine where they will be working.

You would be required to certify that a miner has received required

training and retain a copy of each miner's certificate for the duration

of the miner's employment and for 12 months after the employment ends.

Under the proposal, you could 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 listed

in the proposal. You would also be required to maintain a copy of the

current training plan in effect at the mine. You would be allowed the

flexibility of keeping training records at the mine site or at a

different location, but would be required to provide copies of the

records to us and to miners and their representatives upon request.

Unlike part 48, we would not approve training instructors under the

proposal. Instead, training could be provided by a competent person--

someone with sufficient ability, training, knowledge, or experience in

a specific area, who would also be able to evaluate the effectiveness

of the training provided.

The proposal would adopt the Mine Act requirement that miners be

trained during normal work hours and compensated at normal rates of

pay. Miners would 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 proposal would allow you, where appropriate, to substitute

equivalent training required by OSHA or other federal or state agencies

to satisfy your training obligations under part 46.

Finally, the proposal would address responsibility for training and

would vest primary responsibility for site-specific hazard training

with the production-operator. Additionally, independent contractors who

employ miners required to receive comprehensive training under the

proposal would be primarily responsible for ensuring that their

employees satisfy these requirements.

C. Section-by-Section Discussion

The following section-by-section portion of the preamble discusses

each proposed provision. The text of the proposed rule is included at

the end of the document.

Section 46.1 Scope

This section provides that the provisions of part 46 set forth

mandatory requirements for the training and retraining of miners at all

shell dredging, sand, gravel, surface stone, surface clay, colloidal

phosphate, or surface limestone mines.

Corresponding changes for part 48 have been included in this

proposal and are intended to make clear to the mining community that

part 46 training requirements will apply at those mines which have been

subject to the congressional appropriations rider since fiscal year

1980. This section is consistent with a similar provision in the draft

proposal of the Coalition for Effective Miner Training.

Commenters should be aware that the language of the rider describes

the exempt operations in broad terms. It does not attempt to list each

type of operation that is included within the category listed. For

example, operations that produce marble, granite, sandstone, slate,

shale, traprock, kaolin, cement, feldspar, and lime are also exempt

from enforcement under the rider and would be affected by the

requirements of this rule.

Several commenters were of the opinion that the new training

regulations for mines that are currently exempt from enforcement should

be incorporated into part 48. However, to avoid confusion, we have

proposed these regulations under a separate part of Title 30 of the

Code of Federal Regulations.

Although the requirements of this proposed part would amend the

training requirements for surface miners in part 48, part 48 has not

been enforced at exempt mines for almost 20 years. The proposed rule

takes a more flexible and performance-oriented approach than similar

provisions in part 48. For example, the proposed rule would not require

our traditional approval of training plans; would give you greater

latitude in determining what subjects should be included in your miner

training programs and in recordkeeping; and would not mandate a formal

instructor approval program.

We are mindful of our statutory obligation not to reduce the

protections provided to miners under our existing standards. Under

section 101(a)(9) of the 1977 Act, ``[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.''

Although the proposal would allow greater flexibility to you in

training plan content and implementation, protection to miners would

not be reduced. Our approach in this proposal is to allow you, with the

assistance of miners and their representatives, to tailor your miner

training programs to the specific needs of your operations and

workforce. In this way, training received by miners would be relevant

to their workplace and would be effective in providing them with the

information and instruction that will enhance their ability to work in

a safe and healthful manner. Several commenters stated that the

flexibility to design their training programs to address the most

significant safety and health concerns at their mines would enhance the

overall benefits of training for their miners.

It should be noted that this proposal does not affect those mines

not subject to the rider, which would include all underground metal and

nonmetal mines, all surface metal mines, all coal mines, and a few

surface nonmetal mines, such as surface boron and talc mines. Operators

at those mines will continue to be responsible for complying with the

miner training provisions in part 48.

[[Page 18508]]

Section 46.2 Definitions

This section includes definitions for terms used in proposed part

46. These definitions are provided to assist the mining community in

understanding the requirements of the proposed rule. We are interested

in comments on whether the definitions, as proposed, are appropriate

and clearly expressed. Commenters should also identify any other terms

they believe should be defined in the final rule.

Act. All references to the ``Act'' in the proposal refer to the

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq.

Competent person. Under the proposal, training would be conducted

by a ``competent person'' designated by you. ``Competent person'' is

defined in the proposal as a person who has the ability, training,

knowledge, or experience to provide training to miners on a particular

subject. Under this definition, the competent person must be able to

evaluate whether the training given to miners is effective.

This definition does not specify the type or extent of ability,

training, knowledge, or experience needed for a person to be

``competent'' and, therefore, allowed to provide training under the

rule. This is consistent with the performance-oriented approach taken

in the proposal. As addressed in greater detail in the preamble under

Sec. 46.4, a number of commenters recommended that persons who provide

training receive, at a minimum, some instruction to ensure that they

are able to instruct miners effectively. The proposal does not adopt

this recommendation. Instead, we leave it to your discretion to

determine whether the person is competent to provide training to miners

in one or more subjects.

We specifically solicit comments on the definition of ``competent

person,'' whether the final rule should establish specific minimum

qualifications for training instructors, and whether the final rule

should require that training instructors be approved by us, similar to

the approach taken in the part 48 regulations.

Experienced miner. A number of commenters addressed the definition

of the term ``experienced miner.'' Several commenters suggested that

part 46 should adopt the definition of ``experienced miner'' in the

part 48 training regulations. Recent revisions to part 48 (63 FR 53750,

October 6, 1998) define ``experienced miner'' as a person with at least

12 months of experience who has completed new miner training. Other

commenters recommended that a miner be considered experienced if he or

she either has received new miner training or has accumulated at least

12 months of mining experience or the equivalent. One commenter stated

that the definition of experienced miner should allow miners with

experience to return to mining after an extended absence or lay-off and

still be considered experienced.

A miner would be ``experienced'' under the proposal if he or she

satisfies one of three definitions. First, paragraph (c)(1)(i) provides

that an experienced miner is a person employed as a miner on the date

of publication of this proposal. Most regularly employed miners would

be considered ``experienced'' under this definition, and therefore not

subject to the rule's new miner training requirements. This is similar

to the approach taken when part 48 first took effect in 1978, which

provided that all persons employed as miners on the rule's effective

date were experienced miners, regardless of the length of their mining

experience or the extent of their safety and health training. Under the

proposed definition, most miners working on the date of the proposed

rule will have accrued several months of experience by the publication

date of the final rule, and even more experience by the rule's

effective date.

Under the proposed definition, however, a miner with many years of

experience who happens to be out of work on the date of the proposed

rule would not be an ``experienced miner''. We are uncertain as to

whether this would have an adverse impact at some operations,

particularly in light of the intermittent and seasonal nature of many

operations that will be covered by the final rule. We are therefore

interested in whether commenters believe that the rule should address

this situation in some fashion and, if so, what specific provisions

should be included in the final rule to deal with this issue.

A miner would also be experienced under paragraph (c)(1)(ii) if he

or she begins employment at a mine after the date of publication of the

proposal but before the effective date of the final rule, and 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 would 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 more performance-oriented requirements of

proposed part 46, before the final rule takes effect. This provision is

not intended to require compliance with the proposed rule, but would be

a voluntary option for those of you who want to get an early start on

developing a training program and in complying with the rule.

Under paragraph (c)(1)(iii) a person 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 surface mining or equivalent experience would be an

experienced miner. This definition is more stringent than the approach

suggested by a number of commenters or in the Coalition draft, which

would define ``experienced miner'' as a person who either has 12 months

of experience or who has received the required 24 hours of new miner

training, but not both. The definition in the proposed rule reflects

our preliminary determination that an ``experienced miner'' should have

both training and work experience. Additionally, we also recognize that

it would be unduly burdensome and impractical to require all miners who

are currently working at affected mines to receive new miner training.

Many of these miners have extensive experience in the industry and

should not be treated as new inexperienced miners. Consistent with

this, under paragraphs (c)(1)(i) and (ii), the majority of miners who

have been trained or who have relevant work experience would be

considered experienced when the final rule goes into effect.

The proposal would allow a miner to accumulate the necessary 12

months of experience in non-consecutive months. This would respond to

the concerns of several commenters that the intermittent and seasonal

nature of many segments of the industry would make it difficult, if not

impossible, for most miners to accrue the necessary experience in one

continuous period.

The proposed definition would also allow equivalent experience to

be counted towards the 12-month requirement. We intend that equivalent

experience would include such things as work at a construction site or

other types of jobs where the miner has job duties similar to the

duties at the mine where he or she is employed. Commenters stated that

similar work experience should be considered if the work performed is

equivalent to the tasks that the person will perform at the mine.

Commenters stated that many experienced construction workers have

learned to work safely at construction sites that pose many of the same

types of hazards that they could be exposed to at a mine site. Under

the proposal, you would determine whether the miner's experience is

equivalent and therefore whether the miner is ``experienced.'' We

request comments on the acceptance of

[[Page 18509]]

equivalent experience under this paragraph in determining who is an

``experienced miner.''

Paragraph (c)(2) provides that an experienced miner will retain

that status permanently under part 46. This responds to several

commenters who indicated that it was not uncommon for miners to be away

from the mining industry for extended periods of time, either because

the miners took jobs in another industry, such as construction, or

because the miners had been laid off. These commenters recommended that

the rule make clear that an absence from work in the mining industry

would not result in miners losing their status as experienced miners.

This paragraph responds to these concerns and is also the approach

taken in the recent revisions to part 48. Once a miner attains the

status of an ``experienced miner,'' he or she would be considered

experienced permanently. However, under proposed Sec. 46.6, miners

returning to mine work would be required to receive newly-hired

experienced miner training and annual refresher training within 90 days

of beginning work.

Extraction or production. The definition of the term ``miner''

includes persons engaged in ``extraction or production.'' ``Extraction

or production'' is defined in this section as the mining, removal,

milling, crushing, screening, or sizing of minerals at a mine. This

definition also includes the associated haulage of these materials at

the mine. We request comments on whether this definition adequately

describes the activities that should be considered part of the

extraction and production processes at a mine.

Hazard training. The proposed definition of ``hazard training'' is

intended to provide examples of the type of instruction or information

that you might address in providing this training to miners under

proposed Sec. 46.11. ``Hazard training'' is defined as information or

instructions on the hazards a person will be exposed to while on mine

property, as well as on applicable emergency procedures. These hazards

and procedures may include site-specific risks such as unique geologic

or environmental conditions, traffic patterns, and restricted areas, as

well as warning and evacuation signals, emergency procedures, or other

special safety procedures. The purpose of this training is to ensure

that those persons who are unfamiliar with the mine and with the

hazards of the operation have been provided with enough information to

avoid exposure to these hazards.

Independent contractor. 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.''

Miner. The proposal would define ``miner'' for purposes of part 46

training more narrowly than the Mine Act, which defines ``miner'' in

section 3(g) as any individual working at a mine. This allows the

proposed rule to make a distinction between those ``miners'' who would

be required to receive comprehensive training (that is, new miner

training or newly-hired experienced miner training, as appropriate) and

those persons who would be required to receive hazard training.

A person would be considered a ``miner'' under the proposal if he

or she works at a mine under this part and is engaged in mining

operations integral to extraction or production. We gave serious

consideration to including as ``miners'' persons who are regularly

exposed to mine hazards, or maintenance or service workers who work at

the mine for frequent or extended periods, consistent with the

definition in part 48. However, we are seeking to include a definition

in the final rule that is clearer than the existing part 48 definition.

The definition of ``extraction or production'' includes the mining,

milling, crushing, screening, or sizing of minerals, as well as the

haulage of these materials. We intend that this definition include

workers whose activities are integral to the extraction or production

process, such as persons who are employed by the production-operator

and who provide daily maintenance of mining equipment on the mine site.

We do not intend to include workers who come onto mine property for

short periods of time to perform services that are not integral to

extraction or production, such as manufacturers' representatives who

may be at the mine site infrequently to perform warranty service on

mining equipment; this type of activity is usually conducted by a

person whose presence at the mine site and exposure to typical mine

hazards are limited. Although both types of workers perform maintenance

on equipment, the extent of their exposure to mining operations and

mine hazards is different, and the extent and type of training required

would also be different under the proposal. We intend that the

definition of ``miner'' include those workers whose activities are

related to the day-to-day process of extraction or production. We have

concluded that these are the types of workers who should receive

comprehensive training.

We believe this is one of the more significant distinctions that

should be made in this rule, and we solicit comment on this issue. We

are particularly interested in recommendations for final rule language

that would help to clarify the scope and application of this

definition. Specifically, we would like comments on whether the final

rule should include in the definition of ``miner'' persons whose

exposure to mine hazards is frequent or regular, regardless of whether

they are engaged in extraction or production, or who are employed by

the production-operator, similar to the approach taken in part 48.

Another possible approach would be to characterize a person's

activities more specifically in terms of how integral or essential they

are to extraction or production at the mine.

Under the proposal, mine operators and supervisors would also be

considered miners if they are engaged in extraction or production and

would be covered by the same training requirements. This is in response

to the statements by a number of commenters that there is no reason why

supervisors should not be subject to the same training requirements as

miners. Several commenters also recommended that training for

supervisors be tailored to address their supervisory responsibilities.

Although we agree that it would be appropriate for you to develop

special training programs for your supervisory personnel, the proposal

would not require it.

Commenters should be aware that we intend that the requirements of

this rule apply to construction workers who work at mines covered by

the rule. Section 115(d) of the Act directs the Secretary of Labor to

develop ``appropriate'' training regulations for construction workers.

We have determined that this statutory provision does not prohibit the

application of this part 46 standard to construction workers until we

promulgate a separate training rule for those workers. Therefore,

construction workers whose activities at the mine site are integral to

extraction or production would be considered ``miners'' under this rule

and must receive appropriate comprehensive training. For example,

construction workers building a new crusher in an active quarry would

be considered ``miners.'' All other construction workers at mine sites

would be required to receive site-specific hazard training. We solicit

comments on whether we should develop separate training standards

specifically for construction workers

[[Page 18510]]

employed at mine sites, and if so, what type of training would be

appropriate.

New miner. The proposal defines a new miner as a person who has

been newly hired who does not satisfy the definition of ``experienced

miner.'' The definition of experienced miner is discussed in detail

earlier in this section.

Normal working hours. Under proposed Sec. 46.10, training would be

conducted during ``normal working hours,'' as required by the Act.

``Normal working hours'' is defined in this section as a period of time

during which a miner is otherwise scheduled to work. This definition,

adopted from part 48, also provides that the sixth or seventh working

day may be used to conduct training, provided that the miner's work

schedule has been established for a sufficient period of time to be

accepted as a common practice. 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.

We are interested in comments on whether these proposed provisions

adequately address the issue of compensation and the scheduling of

training.

Operator. The proposed definition is consistent with the definition

of ``operator'' in section 3(d) of the Act, and would include 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. The term ``operator'' is

used throughout the proposed rule to refer to the person or entities

responsible for providing health and safety training under part 46.

However, separate definitions are provided for ``production-operator''

and ``independent contractor'' in proposed Sec. 46.2 to allow a

distinction to be made in proposed Sec. 46.12 between the two types of

operators and to address production-operators' and independent

contractors' responsibilities for training.

Production-operator. Production-operator is defined 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. As noted earlier, both would be

considered ``operators'' under the proposal.

Task. The proposal defines ``task'' as a component of a job that is

performed on a regular basis and that requires job knowledge. This

definition is intended to identify the type of job duties that would be

subject to the new task training requirements proposed under Sec. 46.7.

Under that section, a miner must be provided with training in a task

for which he or she has no previous experience, or which has been

modified.

We and us refer to the Mine Safety and Health Administration

(MSHA). We have written the proposal 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.

You refers to production-operators and independent contractors,

because they have primary responsibility for compliance with MSHA

regulations.

Section 46.3 Training Plans

This section of the proposal requires you to develop and implement

a training plan and also addresses our approval of training plans, how

and where a copy of the training plan must be maintained, and who has

access to the plan.

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].'' A number of commenters and speakers at the

public meetings supported flexible guidelines for plan content,

emphasizing the wide variety in size and type of mining operations that

will be covered by part 46 requirements. These speakers believed that

the most effective training plans would be those that can be tailored

to the particular operation, focusing, for example, on specific mine

processes or hazards, or on the accident and injury experience at the

mine. Other commenters stated that it had been their experience that

the traditional approval process often did not enhance or ensure the

quality of training plans. These commenters felt that resources saved

by a less formal plan approval process could be directed elsewhere with

greater benefits for miner safety and health.

A number of commenters who believed that traditional approval by us

would not improve the development of your training plans advocated some

form of ``automatic'' approval that would eliminate the need for

submission of a plan to us, saving time and reducing paperwork for both

you and us. These commenters suggested that the rule provide that if a

plan meets or exceeds reasonable standards, it would be considered

approved. Other commenters supporting this approach stated that

emphasis should be placed on assisting you in developing effective

training plans, rather than concentrating on unnecessary paperwork.

Some commenters stated that they had no problem with submitting plans

to us for initial approval, but were concerned about a requirement for

submission of plans to us for approval of small, essentially

nonsubstantive changes to the plan, such as the identity of the

instructors providing the training or the locations where training

takes place.

The draft proposal submitted to us by the Coalition would provide

that any training plan that complies with the minimum requirements of

section 115 of the Mine Act would be considered ``approved by the

Secretary.'' Section 115 of the Act requires both that the plan be

approved by us and that the plan comply with the minimum requirements

in section 115. We have determined that in order for a plan to be

considered approved by us, we must prescribe requirements in the

proposal and the final rule beyond the minimum required in the Mine

Act.

In response to these considerations, the proposal provides that a

plan would be considered ``approved by MSHA'' if it includes the

minimum information listed in paragraph (b). This is consistent with

the approach recommended by several commenters. Under this approach,

plans that include the information listed in this section would be

considered ``approved'' and would not be required to be submitted to us

for review. Inspectors and other MSHA personnel who review your plan at

the mine site would simply determine--

(1) That you, in fact, have developed a written training plan;

(2) That the written plan contains the minimum information

specified in paragraph (b) of proposed Sec. 46.3; and

(3) That the plan is being implemented consistent with the plan

specifications.

We have also included in the proposal an alternate process for plan

approval, for those cases where a plan you developed does not include

the minimum required information, where you may prefer to obtain

traditional approval, or where the miners or miners' representative

requests such approval.

Paragraph (a) provides that you must develop and implement a

written plan, approved by us under either paragraph (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 hazard training. Although the language in section 115 of

the Act does not explicitly state that a training plan must be in

writing, we believe that it is inherently required by

[[Page 18511]]

the Act. We have included the term ``effective programs'' in the

proposed rule to deal with instances where a training plan, as

implemented, is inadequate or deficient. In such cases, we intend to

determine how and why the training program falls short and assist you

in revising your plan to address the deficiencies. We also intend that

the plan be updated as needed, to reflect any changes in the mine's

training program, such as changes in courses, teaching methods,

instructors, methods of training evaluation, etc.

Paragraph (b) provides that a training plan is considered approved

by us if it contains the minimum information listed in paragraphs

(b)(1) through (b)(5). This information includes--

(1) The company name, mine name, and MSHA mine identification

number;

(2) The name and position of the person responsible for training

at the mine, which may be the operator;

(3) A general description of the teaching methods and course

materials to be used in the training, including the subject areas

that will be covered and the approximate time that will be spent on

each subject area;

(4) The persons who will provide training, and the subjects in

which each person is competent to instruct; and

(5) The evaluation procedures used to determine the

effectiveness of the training.

Our intention is that the information required will be sufficient

to allow us to make a preliminary determination of your compliance with

training requirements, without imposing an unnecessary paperwork or

recordkeeping burden. We are interested in comments on whether the

proposed approach will facilitate the development of effective training

plans.

The approach taken in the proposal for plan approval recognizes

that, while our review of your written training plan could provide an

initial check on the quality of the program, such review could not

ensure that the program is successful in its implementation. Rather

than expending our resources on the review and approval of training

plans at all of the mines affected by this rule, we would instead

direct those resources toward verification of the effectiveness of

training plans in their execution, and in assisting you in developing

and providing quality training to your employees. Similarly, you and

training providers would be able to focus on the development and

administration of training plans tailored specifically to your needs

rather than on traditional procedures to gain our approval.

Under this approach, you would be free to make revisions to

existing training plans without seeking our approval of those changes,

so long as the plan continues to include the minimum information

required. For example, you could change the identity of instructors,

the subjects addressed as part of the training, or the scheduling of

training, and you would not be required to submit these changes to us.

This would address the statements of many commenters that requiring our

approval of subsequent nonsubstantive plan changes was unduly

burdensome and unnecessary.

We specifically solicit comments on whether we should require

information in addition to that listed in paragraphs (b)(1) through

(b)(5) before we consider a plan approved. We are also interested in

comments on whether we should require less information than what is

proposed. Several commenters stated that the rule should require only

that the training plan specify subject matter and the timing of the

training, and that other information is unnecessary. We also solicit

comments on allowing you to develop plans that are considered approved

by us without traditional approval. We are particularly interested in

whether commenters believe that a traditional plan approval process,

similar to the process in part 48, is necessary to ensure that training

plans meet minimum standards of quality, and why this may be true.

Paragraph (c) provides that a plan that does not include the

minimum information listed in paragraphs (b)(1) through (b)(5) must be

approved by the Educational Field Services Division Regional Manager,

or designee, for the region in which the mine is located. The term

``Regional Manager'' refers to the Regional Manager in the Educational

Field Services Division (EFS) of the Directorate of Educational Policy

and Development (EPD). We will be moving the responsibility for the

approval of new and modified training plans from District Managers in

Coal and Metal and Nonmetal Mine Safety and Health to the EFS Regional

Managers or their designees. The EFS Division is divided into an

Eastern and a Western region.

Under this paragraph, you may also voluntarily submit a plan for

Regional Manager approval. We anticipate that the majority of plans

developed under this part would satisfy the requirements of paragraph

(b) and consequently would not be required to be submitted to us for

traditional approval. However, we also recognize that some of you may

develop effective training plans that do not fit squarely within the

requirements of paragraph (b), and you may therefore need to submit

your plans to us for approval. We also anticipate that some of you may

prefer to obtain our traditional approval, to ensure that there is no

question that your training plan satisfies minimum requirements. In

response, the proposal does include a provision that would address

these situations.

Paragraph (c) also allows miners and their representatives to

request our traditional approval if they choose. We expect that in most

cases miners and their representatives will bring any concerns they may

have about the training plan to your attention, and resolve it in that

manner. However, there may be a few instances where miners or their

representatives believe that direct involvement by us may be needed to

resolve issues or concerns, and the proposal would address those

situations.

Paragraph (d) would require you to furnish the miners'

representative, if any, with a copy of the training plan no later than

two weeks before the plan is implemented or submitted to the Regional

Manager. At mines where no miners' representative has been designated,

a copy of the plan must either be posted at the mine or a copy provided

to each miner at least two weeks before the plan is implemented or

submitted to the Regional Manager for approval. This is intended to

ensure that miners and their representatives are notified of the

contents of your training plan before it goes into effect or is

submitted to us for approval.

We recognize that at many mines, particularly small operations,

there may be no mine office and no appropriate place for posting the

plan. The proposal therefore would allow a copy of the plan to be

provided to each miner in lieu of posting. We are assuming that this

requirement would not place a large burden on you, because mines where

posting would be difficult or impractical would typically have a very

small number of miners. However, we are interested in whether this

assumption is correct, and we are also specifically interested in

comments on whether this paragraph provides a practical and workable

approach to informing miners and their representatives of training plan

content.

Although not explicitly stated in the proposal itself, we intend

that you must provide miners or their representatives with copies of

the training plan, and with the opportunity to submit comments or

request approval by us, whenever major revisions are made to the plan.

By ``major revisions'' we mean significant changes in course content or

training methods, not minor alterations such as the identity of

instructors or the duration of courses in certain subject areas. We

request comment on whether the final rule should specifically require

[[Page 18512]]

notification of miners of plan revisions, and what type of revisions

should require notification.

Under paragraph (e), miners and their representatives have two

weeks after the posting or receipt of the training plan to submit

comments on the plan to you, or to the Regional Manager if the plan is

before the Manager for approval. This is intended to provide miners and

their representatives with a means to provide input on the training

plan, either to you, if traditional approval is not being sought, or to

the Regional Manager who is reviewing and approving the plan.

Under paragraph (f), the Regional Manager must notify you and

miners, or their representative in writing of the approval, or the

status of the approval, of the training plan within 30 days after the

date on which the training plan was submitted to us for approval.

We are interested in comments on this process, specifically on

whether the proposal provides sufficient flexibility to you in

developing your plans, while at the same time ensuring that miners and

their representatives have been allowed meaningful participation in the

process.

We considered adopting the traditional approval procedures already

contained in part 48. We have instead proposed a more streamlined

version of existing part 48 approval procedures. This approach reflects

our expectation that the parties will be able to reach a satisfactory

resolution of any concerns about the plan without the need for specific

procedures. As indicated earlier, we anticipate that most of you will

not seek our formal approval of your training plans, and that in most

cases concerns of miners or their representatives will be resolved

informally. In those limited cases where we become directly involved in

plan approval, we intend for the Regional Manager to provide reasonable

notice to you and miners or their representatives of the status of plan

approval or perceived deficiencies in the plan and also to provide

parties with a reasonable opportunity to express their views or offer

solutions to the problem, without the need for detailed procedures.

Nonetheless, we solicit comments on whether a detailed plan

approval process, such as in Sec. 48.23, should be adopted in the final

rule, to apply to those cases where traditional plan approval is

sought.

Paragraph (g) provides you, miners, and miners' representatives the

right to appeal a Regional Manager's decision on a training plan to the

Director for Educational Policy and Development. Consistent with the

shifting of plan approval responsibility from Metal and Nonmetal Mine

Safety and Health to EFS, a Regional Manager's decision on a plan will

be reviewed on appeal by the Director for EPD.

Under this paragraph, an appeal must be submitted in writing within

30 days after notification of the Regional Manager's decision on the

training plan. The Director for EPD will issue a decision on the appeal

within 30 days after receipt of the appeal. We anticipate that this

provision will be rarely used and expect that when a disagreement

arises between us, you, and miners and their representatives about plan

design or content, it can be resolved without the need for intervention

of the Director for EPD. However, in those rare cases where the parties

are unable to come to terms on the content of a particular training

plan, the proposed rule would provide parties the option of seeking

review from the Director for EPD. As indicated, parties have 30 days in

which to file a written appeal of the Regional Manager's decision on a

plan, and the Director for EPD has 30 days from the date of appeal to

reach a decision.

Paragraph (h) would require you to make available at the mine site

a copy of the current training plan for inspection by us and for

examination by miners and their representatives. If the training plan

is not maintained at the mine site, you must have the capability to

provide the plan upon request to us, the miners, or their

representatives. Under this paragraph, you would have the flexibility

to maintain your training plan at a location other than the mine site,

provided that you are able to produce a copy of the plan upon request

to our inspectors or miners and their representatives. A number of

speakers at the public meetings indicated that there was no need for

plans or other training records to be kept at the mine site, given that

modern communications technology, such as electronic mail and fax

machines, allow virtually instantaneous transmission of documents from

one location to another. The proposal does not specify a time within

which a copy of the plan must be produced after a request is made by us

or miners; the expectation is that if you choose to maintain the plan

away from the mine site, you should have the capability of producing

the plan within a reasonable period of time. If you do not have such

capability, you must maintain the plan at the mine site. We have taken

this approach in the proposal for several reasons. It has been our

experience that we may complete an inspection at a surface mine in less

than one day. Although we wish to give you flexibility in

recordkeeping, we do not want this to result in an inspector having to

delay his or her departure from a mine site waiting for you to obtain a

copy of the training plan. Similarly, inspectors should not be put in

the position of having to return to a mine site the next day simply to

inspect a copy of the training plan that was unavailable during the

course of the inspection the day before. Additionally, miners and their

representatives should not be required to wait to inspect the training

plan in effect at the mine. We are interested in comments on whether

this is the most practical approach. One possible alternative would be

to require the plan to be produced within a reasonable period of time

after the request is made, but in no case longer than one business day.

A number of commenters focused on the type of assistance that we

should provide to facilitate compliance with the final rule after it is

published. Assistance, particularly for small operators, in developing

training plans appropriate for their operations, was the subject of

much comment. Several commenters suggested that we or other

organizations implement a ``cafeteria-type'' approach for plan

development, where you could choose among various training plan

components to tailor a plan to your particular operation. For example,

the plan options from which you might choose would include training

components on subjects or curriculum that are suitable for a small sand

and gravel operation, or for a typical limestone mine, or a shell

dredging operation.

We appreciate the commenters who are already giving thought to the

types of resources that would provide the greatest benefit to the

mining community in complying with the final training 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, not only

through our staff in Metal and Nonmetal Mine Safety and Health, but

also through our newly formed Educational Field Services Division; we

also expect state grantees to play a significant role in assisting you

in developing effective training plans and, at the same time, in

satisfying the requirements of the final rule.

To this end, we solicit comments 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. We are also considering including such model plans in a

compliance guide that we will be developing for the mining community

[[Page 18513]]

after publication of the final rule. We anticipate that other

organizations, including state grantees and large operators, also may

develop generic training plans and make them available to small

operators to assist in training plan development. We are interested in

commenters' suggestions for other types of compliance assistance that

would be useful to the mining community.

Section 46.4 Training Program Instruction

This section of the proposal--(1) would require you to ensure that

training given under this part is consistent with the written training

plan required under Sec. 46.3; (2) would require training to be

presented by a competent person; and (3) would allow you to arrange for

training to be provided by outside instructors. This section also

responds to comments, including the draft of the Coalition, that the

rule should allow the use of innovative training methods and should

accept equivalent training, provided to satisfy the requirements of the

Occupational Safety and Health Administration (OSHA) or other federal

or state agencies, to satisfy part 46 requirements. Finally, this

section would permit short safety and health talks and other informal

instruction to satisfy training requirements under this part, in

response to a number of comments.

Paragraph (a)(1) would clarify that training under part 46 must be

conducted in accordance with your written training plan. This is

intended to ensure that the training given under this part is

consistent with the approach outlined in your plan, and is part of an

organized scheme for comprehensive miner training.

Paragraph (a)(2) provides that the training must be presented by a

competent person. ``Competent person'' is defined in proposed Sec. 46.2

as a person designated by you who has the ability, training, knowledge,

or experience to provide training to miners on a particular subject.

Under this definition, the competent person must also be able to

evaluate the effectiveness of the training.

We asked for specific comments during the public meetings on

whether the rule should establish minimum qualifications for persons

who conduct miner training, and if so, what those qualifications should

be. Many commenters offered their views on this issue.

A number of commenters stated that the rule should impose no

minimum qualifications for trainers. Some indicated that many

supervisors and other employees at mining operations possess the

experience and skills necessary to train others effectively, and that

you should have broad latitude to use on-site trainers for some, or

all, of your training needs. Other commenters believed that it is

impossible to regulate the quality of instruction with minimum criteria

such as academic training, mining experience, years of training

experience, etc., and that an instructor certification program would

not guarantee the quality of instruction. One commenter was concerned

that restricting all training to a limited pool of certified

instructors would deprive you of the flexibility needed to develop

training plans responsive to the unique circumstances of each mining

operation. Another commenter stated that if training instructors are

required to be certified and to complete some type of formal training,

you could have great difficulty in finding people who can actually

deliver training in the necessary subject areas.

On the other hand, several commenters recommended that the approach

taken in part 48, which requires our approval of instructors, be used

as a guideline for addressing instructor qualifications under part 46.

Under part 48, instructors may be approved in several ways. For

example, instructors may take an instructor training course and

complete a program of instruction approved by us in the subject to be

taught; instructors may also obtain approval to provide training based

on written evidence of their qualifications and teaching experience.

In contrast, several commenters stated that the instructor approval

process under part 48 has had inconsistent results, at best. Another

commenter suggested that instructors should be certified by a

recognized professional organization in health and safety. Still others

recommended that if we do not require instructors to be approved, the

rule should require prospective trainers to go through a training

course so that they will know how to present training materials

correctly and effectively. Several commenters believed that instructors

should also be able to evaluate the effectiveness of the training they

are giving.

The proposal adopts the recommendations of many commenters that the

rule not require a formal program for the approval or certification of

instructors, or establish rigid minimum qualifications for instructors.

We are persuaded at this stage that a formal instructor approval

program would provide no real guarantee that training will be

effective, and that the benefits realized from a formal program would

not justify the additional administrative burden. We are also persuaded

by commenters who stated that there are many experienced and

knowledgeable people currently working in the industry who can provide

effective training in a wide variety of subject areas.

Contrary to the recommendations of several commenters, we have not

included a proposed requirement that trainers receive instruction in

how to provide training before they serve as instructors. Instead, we

would expect you to assess how well a person can communicate in

determining whether he or she is capable of providing training for your

miners. A person with extensive knowledge in a particular subject area

may not be a good choice as an instructor if he or she is unable to

convey the information to miners clearly and effectively.

The proposal would require that training be conducted by a

``competent person'' designated by you. The proposal would not

establish minimum academic or professional qualifications for these

persons. Instead, these persons would be required to have sufficient

ability, knowledge, training, or experience to enable them to provide

training to miners. They must also be able to evaluate in some fashion

whether the training has been effective. The proposal does not specify

how such an evaluation must be conducted, and we anticipate that the

method of evaluation will depend to a large extent on the type of

training being given. For example, a written test might be appropriate

in a traditional classroom setting, while a miner receiving new task

training may be asked to demonstrate to the trainer that he or she can

perform the task safely. The proposed rule would allow a significant

amount of discretion in this determination. In addition, we will be

available to provide assistance to you in determining the appropriate

training for your operation.

We are interested in comments on the approach taken in the proposal

for training instructors, particularly on our preliminary decision on

the merits of a formal instructor approval or certification program.

For example, one commenter recommended that we should focus our

attention on the evaluation of instructors who have not taken a course

on presentation skills, also known as ``train-the-trainer'' courses. We

are also interested in commenters'' views on whether the final rule

should require some minimum amount of formal training for instructors,

designed to ensure that the instructor has the communication skills

needed to provide effective training.

[[Page 18514]]

Paragraph (b) provides that you may conduct your own training or

may arrange for training to be conducted by federal or state agencies;

associations of operators; miners' representatives; other operators;

contractors, consultants, or manufacturers' representatives; private

associations; educational institutions; or other competent training

providers. This provision is similar to language in Sec. 48.24 and in

the Coalition draft proposal and would make clear that you may choose

from a variety of training providers in satisfying your training

responsibilities under part 46. We recognize that a wide variety of

effective miner training is available from many types of organizations

across the country. Under the proposal, you would be free to arrange

with outside training providers in satisfying your training

obligations. We expect that many small operators and independent

contractors, who may not have the resources for a formal in-house

training program, will elect to arrange with outside organizations to

provide some part of their training.

Paragraph (c) would allow the acceptance of training required by

OSHA or other federal and state agencies to satisfy the training

requirements under part 46. Under the proposal, this training must be

equivalent to what would be provided under part 46--that is, it must be

safety and health training that is relevant to the mining environment.

Acceptance of OSHA training was raised by a number of speakers at

the public meetings. Several speakers indicated that many operations

regulated by us, such as sand and gravel or crushed stone sites, are

also associated with an OSHA-regulated facility, such as a construction

site. Employees may be shared across several operations under the same

management. One speaker pointed out that in many cases the equipment at

these operations is interchangeable, the tasks are interchangeable, and

the workers are interchangeable. These employees may perform the same

duties at both sites and have been trained to work around the same

types of hazards. These speakers strongly urged us to accept the safety

and health training provided to comply with OSHA regulations to satisfy

training requirements under part 46. Several commenters also

recommended that we accept training that is provided to satisfy the

requirements of other regulatory agencies, and this recommendation is

reflected in the proposal. It should be noted that this training would

need to be documented under Sec. 46.9 to be accepted, not only to

establish the duration of the training but also the equivalency of the

training. We are persuaded at this point that acceptance of this

training is appropriate. However, we are interested in comments that

both support or take issue with this determination. We are also

interested in receiving comments on which federal and state agency

training requirements may be used to satisfy the requirements of part

46.

Paragraphs (d) and (e) are intended to provide you with flexibility

in satisfying your training obligations. Under paragraph (d), training

under part 46 could consist of classroom instruction, instruction at

the mine site, other innovative training methods (such as computer-

based training), alternative training technologies, or any combination

thereof. The recognizes that a combination of different training

methods can be extremely effective, and makes clear that we encourage

you to be creative in complying with your training responsibilities.

Several commenters recommended that the rule allow for training at

the mine site, particularly initial training for new miners. Another

commenter believed that training under the rule should not be limited

to traditional classroom instruction, but that a mix of different

approaches should be permitted. A number of commenters strongly

recommended that the rule be sufficiently flexible to accommodate

future technology and training advances. The proposal is responsive to

these recommendations.

We intend that the proposed rule allow new training technologies

developed in the future to be used to comply with part 46. We

anticipate that many of you will use a combination of different

approaches to provide training, including innovative technologies. On

the other hand, the classroom may serve as the most appropriate forum

for training on particular subjects.

Paragraph (e) would allow employee safety meetings, including

informal safety and health talks and instruction, to be credited toward

either new miner training, newly-hired experienced miner training, or

annual refresher training requirements, provided that you document the

training consistent with proposed Sec. 46.9. We requested comment in

the notice of meeting published in the Federal Register on whether

informal instruction lasting less than 30 minutes should be allowed to

satisfy training requirements under the rule. Part 48 currently

requires a training session to last at least 30 minutes, and several

commenters urged the inclusion in part 46 of this 30-minute

restriction. One commenter believed that a 15-minute minimum was

appropriate. Other commenters stated that some of the best training

occurs in sessions of less than 15 minutes, and that the rule should

not impose an arbitrary restriction on the length of training sessions.

A number of commenters indicated that short training sessions provided

throughout the year can be very effective.

We are persuaded by those commenters who advocate flexibility in

the length of training sessions, and this determination is reflected in

the proposal. However, we are interested in any rationale or evidence

from commenters that would support imposing a minimum duration on

training sessions.

Section 46.5 New Miner Training

This section includes minimum requirements for training new miners

when they begin work at a mine. This section lists subject areas that

training must cover, addresses which of those subjects must be taught

before new miners begin their work duties at the mine, and specifies

the minimum number of hours of instruction required by the Act for new

miner training.

Section 115(a)(2) of the Mine Act requires mine operators to

provide at least 24 hours of training to inexperienced surface miners.

This training must include instruction on specific topics.

The Federal Register notice announcing the public meetings

solicited comment on several issues related to new miner training.

Specifically, comments were requested on--

(1) The subjects that should be taught before a new miner begins

assigned duties;

(2) Whether training should be given all at once or over time,

or whether you should make this determination; and

(3) The advantages and disadvantages of spreading training over

an extended period.

While section 115 does not expressly require new miners to be

trained before they begin work, part 48 currently requires that the

full 24 hours of new miner training be given before miners are assigned

work at the mine, unless specifically permitted to do otherwise by the

District Manager. Even with District Manager approval, however,

operators under part 48 must provide a minimum of eight hours of

training to new miners before work duties begin.

Many speakers at the public meetings and many of those providing

written comments addressed how much of the 24 hours of new miner

training should be given before a miner is allowed to begin work. One

commenter stated that all of the subjects listed in section 115

[[Page 18515]]

of the Mine Act should be taught before a new miner is assigned work,

even if the work is done under close supervision. However, the majority

of commenters indicated that they believe it would be appropriate to

require at least eight hours of training before the miner begins work,

which is also the minimum number of hours specified under the

Coalition's proposal. Several commenters advocated a six-to eight-hour

training minimum before a miner begins work, and one commenter took the

approach that initial training could include two hours of instruction

on hazard recognition, personal protective equipment, and the company's

safety policy, followed by six hours of work closely supervised by an

experienced miner. However, a number of commenters, including those who

indicated approval of a minimum initial training requirement, also said

that setting a minimum number of hours for training may be excessive

for many mines. According to many commenters, effective initial

training could be completed in less than a mandated minimum depending

on the size of and conditions at the mine, tasks to be performed, and

experience of the miner. The commenters claimed that the key issue is

the quality and relevance of training and not the number of hours spent

providing initial training for a new miner.

In response to commenters and the Coalition's proposal, we

considered adopting an eight-hour minimum initial training requirement

in the proposal and also gave serious consideration to several other

approaches. These alternatives included a requirement that all 24 hours

of training be completed prior to the miner commencing job duties, or

that a minimum period of initial training be completed, such as two or

four hours, before the miner begins work. We also considered a two-hour

minimum period of initial training, which could be reduced, with our

approval, based on the size of the operation, complexity of the mine

site, and experience of the new hire. We also considered a requirement

that you provide instruction to the miner on specific topics before

beginning work, in lieu of a minimum time requirement for initial

training.

We have made a preliminary determination that requiring a minimum

number of hours to be spent on training before a miner begins work may

be unduly burdensome and unnecessary for many mines, particularly small

mines with few employees and limited equipment. Commenters indicated

that at many small operations, a thorough workplace orientation on the

mine and its hazards would not even require two hours. These commenters

recommended flexibility be given to you in determining the amount of

initial training that should be provided. We believe you are in the

best position to determine the amount of training that is needed for

new miners, depending on your particular operation.

We have determined that it is appropriate to require that new

miners be given instruction on certain subject areas prior to beginning

work, rather than to establish a minimum number of hours that must be

devoted to this training. The proposal would require training on four

specific topics for each new miner before he or she begins work at the

mine, with the balance of the 24 hours of training to be provided

within 60 days. By not requiring a minimum number of hours of initial

training for new miners, the proposal would provide flexibility to you

to tailor your training plans to focus on the unique needs of your

operations and workforce and to provide the most effective and relevant

training for the new miners at your mines. At the same time, by

requiring that specific subject areas be covered before new miners

begin work, the miners would receive training on relevant topics to

ensure that they are familiar with the operations and environment at

the mine, their job duties, and the hazards they may encounter at the

mine site.

We are interested in whether commenters agree with this approach,

or whether the final rule should establish a minimum number of hours of

training that new miners must receive before beginning work. One

possible approach would be to specify a minimum number of hours of

initial training that must be provided to miners based on mine size or

complexity of operation. For example, a large operation may be required

to provide eight hours of training, while a very small operation would

be required to provide one hour of training. We are interested in

comments on this alternative, particularly on the criteria that might

be used in determining how much initial new miner training must be

given, such as employment, type of operation, type and amount of

equipment, etc. Commenters who believe that a minimum number of hours

of training should be required should also specify what the minimum

number of hours should be.

Many speakers and commenters addressed how long the rule should

allow the balance of the 24-hour new miner training to be given. The

draft Coalition proposal would require that new miner training be

completed within 60 working days of the miner reporting to work at the

mine site. Most commenters favored a 60-day deadline for completion of

new miner training, but did not indicate whether the deadline should be

60 working days or 60 calendar days. One commenter expressed a

preference for spreading out the remaining training over a 90-day

period.

Some commenters pointed out that new miners can be overwhelmed with

too much information when they first come to work at a mine. These

commenters were opposed to providing training all at once. A few

commenters maintained that providing new miner training over an

extended period of time, with practical work experience between

training periods, improves and encourages miners' retention of

important training material.

Citing the rapid turnover of workers in the industry, other

commenters who favored training over an extended period of time were

concerned that operators would not recoup the substantial up-front

investment incurred for training if it were required to be given all at

once. This was offered as one reason to allow training to be given over

a longer period, up to 90 days or even six months; additionally, some

commenters maintained that it would be less burdensome in the long run

since they would not have to provide the balance of training to miners

whose employment at the mine lasted less than three months. Another

commenter believed that a six-month period would also be less

disruptive to the mining process since it would give you more

flexibility to schedule training during periods when operations would

be slowed or idle.

In contrast, there were a few commenters who pointed out several

disadvantages of spreading new miner training over a period of time.

The drawbacks mentioned were that the new miner may not receive a

timely general overview of all potential safety and health hazards,

which could result in a greater risk of injury. These commenters also

stated that training over a longer period of time could increase

recordkeeping and paperwork burdens and create scheduling problems.

After considering the comments received, we believe that there are

advantages to training new miners over an extended period of time,

including better retention of information by miners, and flexibility in

providing the training. We are sensitive to the economic hardships that

many smaller operators may experience due to their inability to hire or

spare employees for training purposes. In addition, training

[[Page 18516]]

may be more meaningful after a worker accrues some work experience at

the mine.

On the other hand, inexperienced or untrained miners should not be

permitted to work for long periods without being fully trained.

Therefore, we are proposing in paragraph (d) that you must provide the

balance of the 24 hours of new miner training within 60 days after the

new miner begins work at the mine. Under the proposal, the 60 days

would be calendar days, not working days as recommended by the

Coalition. We believe that a deadline measured in working days would be

impractical, particularly given the intermittent and seasonal work

schedules of many operations. It would not only present an

administrative burden to you, both for paperwork and for class

scheduling, but would also make enforcement extremely difficult.

However, we solicit comment on the 60-day deadline for the completion

of new miner training and are interested in suggestions for alternate

approaches.

Section 115(a)(2) of the Act requires new miner instruction on the

following topics:

* * * statutory rights of miners and their representatives under

the Act, use of the self-rescue and respiratory devices where

appropriate, hazard recognition, emergency procedures, electrical

hazards, first aid, walk around training, and the health and safety

aspects of the task to which the miner will be assigned.

A number of commenters and speakers at the public meetings

addressed the subjects that should be taught to new miners, without

indicating whether the courses should be taught before or after a new

miner begins work. The comments varied greatly. One commenter advocated

the elimination of required training subjects altogether and urged the

use of task training in lieu of new miner training. Several commenters

approved of providing training on the eight general subject areas

listed in section 115(a)(2) of the Act but did not endorse describing

the specific contents of courses to be taught, as is presently done in

part 48. Other commenters favored new miner training subjects as they

are presented in part 48, but believed that first aid training, in

particular, needs to be addressed in a different forum, citing the

significant amount of instruction needed to adequately cover the topic.

One commenter questioned the appropriateness of including training on

self-rescue devices for surface miners.

Several commenters recommended that the final rule list as required

topics the more general subjects found in section 115, rather than the

more detailed approach taken in existing part 48. They maintained that

a longer list of subjects with detailed course content would limit your

ability to provide meaningful training at the varied operations at

mines affected by the rider. Others suggested that criteria or

guidelines be provided to you to assist you in selecting new miner

training topics and in determining the time that should be devoted to

specific subjects. Suggested criteria included the size of the mine,

the history of accidents, injuries, and fatalities at the mine,

national trends in accidents and fatalities, and the experience and

knowledge of individual miners.

A number of commenters addressed the subjects that should be taught

before a new miner begins assigned work duties. The majority of

commenters and speakers agreed that some general orientation as well as

site- and task-specific training must take place before a miner begins

work at the mine. At the same time, many commenters maintained that you

need flexibility to tailor the training to the specific safety and

health needs of your miners and the unique conditions at your mines.

The Coalition's draft proposal would require eight hours of instruction

in the following subjects before a new miner could begin work:

walkaround training; hazard recognition; and the health and safety

aspects of tasks to which the new miner will be assigned. Commenters

most frequently mentioned the courses listed above. In addition, some

commenters recommended that training on escapeway and emergency

procedures be included in pre-work training.

In response to these comments, proposed paragraph (b) would require

that you train new miners in four areas before they begin work--

(1) An introduction to the work environment, including a visit

and tour of the mine, or portions of the mine that are

representative of the entire mine. The method of mining or operation

utilized must be observed and explained;

(2) Instruction on the recognition and avoidance of hazards,

including electrical hazards, at the mine;

(3) A review of the escape and emergency evacuation procedures

in effect at the mine and instruction on the firewarning signals and

firefighting procedures; and

(4) Instruction on the health and safety aspects of the tasks to

be assigned, including the safe work procedures of such tasks, and

the mandatory health and safety standards pertinent to such tasks.

Instruction of new miners in these four areas is intended to ensure

that miners are sufficiently familiar with the hazards at the mine,

that they can avoid exposing themselves and others to unnecessary risks

and can perform their job assignments safely, and that they are able to

respond to mine emergencies. We are requesting comment on whether the

subject areas required are appropriate, especially in light of the fact

that the proposal does not establish a minimum number of hours for pre-

work training.

Paragraph (c) of the proposal would allow new miners to practice

under the close supervision of a competent person to satisfy the

requirement for training on the health and safety aspects of an

assigned task. This provision is consistent with our current policy

under part 48, and is also included in the Coalition's draft proposal.

Our existing policy under part 48 allows a miner to perform an actual

task assignment at the mine site as long as there is continuous

supervision by an approved instructor, and training, not production, is

the primary goal. ``Close supervision'' would mean that the competent

person is in the immediate vicinity of the miner and is focusing his or

her complete attention on the actions of the miner being trained. A

miner would not be considered under ``close supervision'' if the

competent person is occupied with any other task or is not in close

proximity to the miner. Although the proposal would not require

training instructors to be approved by us, we believe that practice of

a task by a new miner under the close, individualized, supervision of a

``competent person,'' as that term is defined in proposed Sec. 46.2,

can be an effective training method and can be accomplished safely. We

gave consideration to allowing practice to be supervised by an

experienced miner rather than a competent person, but have determined

that the person supervising new miners and instructing them on the

health and safety aspects of their jobs must be qualified in the

particular subject matter, possessing the skills to teach that subject

and to evaluate whether the recipient of the instruction has understood

it. We solicit comments on whether it is reasonable to allow a new

miner to practice a task under the supervision of a ``competent

person'' to satisfy this pre-work training requirement.

Similarly, under paragraph (a), until the full 24 hours of new

miner training is received, a new miner must work under the close

supervision of an experienced miner. This is modeled after a similar

provision in Sec. 48.25(a), and is intended to ensure that the health

and safety of a new untrained miner are protected until new miner

training is completed. We are interested in comments on whether this

provision is

[[Page 18517]]

realistic, workable, and in the best interests of the miner.

Proposed paragraph (d) lists the remaining subject areas that must

be covered in new miner training within 60 days after the miner begins

work, and is derived from section 115 of the Mine Act and

recommendations from commenters and the Coalition's draft proposal.

These subjects include--

(1) Instruction on the statutory rights of miners and their

representatives under the Act;

(2) A review and description of the line of authority of

supervisors and miners' representatives and the responsibilities of

such supervisors and miners' representatives;

(3) An introduction to the mine's rules and procedures for

reporting hazards;

(4) Instruction and demonstration on the use, care, and

maintenance of self-rescue and respiratory devices, if used at the

mine; and

(5) A review of first aid methods.

The proposed rule provides some specification of the content of the

training on each subject area, beyond what is included in the Mine Act.

This detail is provided in the proposal to assist you and miners in

developing training plans. We are interested in comments on whether the

courses being proposed are sufficient, whether including specification

of the content of subject areas is helpful, or whether it decreases

your flexibility in developing training materials that best meet your

needs.

We would note that the requirement for first-aid instruction under

paragraph (d) would not require you to hire an approved first-aid

instructor or obtain first-aid teaching equipment to train new miners.

We understand that some miners and designated supervisors will receive

first-aid training under the requirements of 30 CFR parts 56, 57, 75,

and 77, and that an in-depth first-aid course for new miners may be

impracticable in many cases. However, first-aid instruction should

include a review of basic first-aid measures, such as contacting

emergency medical personnel, application of bandages, or the

circumstances where injured persons should not be moved.

A few commenters were concerned that miners who had completed new

miner training but did not have sufficient work experience for status

as an experienced miner would be required to repeat new miner training.

To minimize the likelihood that miners would have to repeat new miner

training unnecessarily, proposed paragraphs (e) and (f) would make

certain allowances for new miners who have not attained experienced

miner status for training purposes but who have completed new miner

training under part 46 or part 48. Under paragraph (e), miners who have

completed new miner training within the previous 36 months but who do

not have the 12 months of experience for experienced miner status would

not have to repeat new miner training if they begin work at a new mine.

This is similar to a recently revised provision in Sec. 48.25(d). We

have determined that it would be illogical and unnecessary to require

these miners to repeat 24 hours of new miner training each time they

begin work at a new mine covered by part 46, until they have accrued

the requisite 12 months of experience. However, miners would be

required to receive pre-work training under paragraph (b) on the same

four subjects that are required for both new miners and newly-hired

experienced miners, to ensure that they are familiar with the mine's

operations and practices before starting work.

We also recognize that, although a miner may not have completed new

miner training under part 46 or Sec. 48.25, he or she may have

completed training in particular subject areas as an underground miner

under Sec. 48.5, or as a surface miner under Sec. 48.25. In some cases,

the subject areas covered may be relevant to courses required for new

miners under part 46. Paragraph (f) would allow this training to be

credited toward new miner training. For instance, a miner may have

received new miner instruction at an underground mine on the statutory

rights of miners and their representatives; the use, care, and

maintenance of self-rescuers or respiratory devices; or on first aid

methods. In those cases, under proposed paragraph (f), it would be

acceptable to give credit for relevant training courses already taken

by the miner, provided that the courses were completed within the

previous 36-month period.

Although the proposal would allow credit for training in any

subject area, we request comment on whether credit for training given

at other mines should be limited to training in subject areas listed

under proposed paragraph (d), and not be given for subject areas listed

under paragraph (b), which have a very mine-specific orientation. For

example, it may be inadvisable to allow credit for hazard recognition

training or a review of the escape and emergency procedures given at

another mine, because this training may have very limited value or

application at the mine. On the other hand, a miner returning to the

same mine could be given credit for all training completed at that mine

within the previous 36-month period.

We encourage commenters to address whether the final rule should

allow such crediting and how it should be handled. Our intention in

paragraphs (e) and (f) of Sec. 46.5 is to--

(1) Be practical;

(2) Reduce the compliance burden and expense of redundant

training for you; and

(3) Still ensure that miners receive effective training.

Section 46.6 Newly-Hired Experienced Miner Training

This section of the proposed rule would address training

requirements for newly-hired ``experienced miners,'' as that term is

defined in Sec. 46.2. This section lists the subject areas that must be

addressed in training newly-hired experienced miners, before they begin

work at the mine, and requires that the miners receive annual refresher

training within a 90-day period after they begin work. This section

also includes separate training requirements for experienced miners who

are returning to the same mine after an absence of 12 months or less,

and for experienced miners who are employees of independent contractors

and who are on mine property for short durations.

Section 115 of the Mine Act does not expressly direct the Secretary

to promulgate training requirements for newly-hired experienced miners.

However, experienced miners should be thoroughly familiar with the

particular environment and hazards present at their mine before they

start work. The regulations in part 48 provide separate training

requirements for newly-hired experienced miners.

The draft proposal of the Coalition would require newly-hired

experienced miners to receive only site-specific hazard recognition

training before being assigned work duties, and annual refresher

training within 90 days of employment. The Coalition draft provides

that if a miner had received refresher training ``commensurate with the

hazards of the new job from a previous employer within the last year,''

the miner would be required to receive hazard recognition training.

Only a few commenters addressed newly-hired experienced miner

training. One commenter stated that experienced miners need the same

level of training as new miners so that poor safety habits can be

corrected. One commenter maintained that before work begins, a newly-

hired experienced miner should receive a safety orientation that

addresses both task- and site-specific subjects. Another commenter

maintained that appropriate task training should be provided before the

newly-hired experienced miner begins

[[Page 18518]]

work, and supported the requirement that refresher training be given to

newly-hired experienced miners within 30 days of employment if they are

not current with their refresher training. Several commenters addressed

situations where an experienced miner returns to mining after an

absence. One commenter stated that such a miner must be made aware of

improvements in the trade since the miner's absence. Another commenter,

referring to training requirements for newly-hired experienced miners

in part 48 and to an earlier draft proposal from the Coalition,

questioned the appropriateness of requiring only eight hours of

training for a person returning to mining work after an absence of five

years or more.

Paragraph (a) would require you to train newly-hired experienced

miners in four subject areas before they begin work. These required

subjects would include--

(1) An introduction to the work environment, including a visit

and tour of the mine, or portions of the mine that are

representative of the entire mine. The method of mining or operation

utilized must be observed and explained;

(2) The recognition and avoidance of hazards, including

electrical hazards, at the mine;

(3) The escape and emergency evacuation plans in effect at the

mine and instruction on the firewarning signals and firefighting

procedures; and

(4) The health and safety aspects of the tasks to be assigned,

including the safe work procedures of such tasks, and the mandatory

health and safety standards pertinent to such tasks.

The requirements of proposed paragraph (a) are identical to the

requirements proposed in Sec. 46.5(b) for training for new miners

before they begin work and would include both task- and site-specific

instruction. For the same reasons discussed in the preamble for

Sec. 46.5, the proposal specifies subjects and course materials that

are intended to ensure that a newly-hired miner is familiar with the

mine environment, operations, equipment, potential hazards, and

emergency procedures. These requirements are also intended to ensure

that newly-hired miners have sufficient instruction to perform work

assignments safely. We are interested in whether the subject areas that

would be required to be addressed for newly-hired experienced miners

before they begin work are appropriate or whether different subject

areas would be more relevant for experienced miners. Commenters should

note that proposed Sec. 46.6 would not specifically provide, as do the

requirements for new miner training, that a newly-hired experienced

miner could perform actual task assignments as ``practice'' to fulfill

the requirement for training on the health and safety aspects of an

assigned task. However, we are interested in whether this issue should

be addressed in the final rule.

Paragraph (b) directs you to provide annual refresher training to

newly-hired experienced miners within 90 days after their employment.

The proposal specifies that, at a minimum, the refresher training must

include--

(1) Instruction on the statutory rights of miners and their

representatives under the Act;

(2) A review and description of the line of authority of

supervisors and miners' representatives and the responsibilities of

such supervisors and miners' representatives;

(3) An introduction to your rules and procedures for reporting

hazards; and

(4) Instruction and demonstration on the use, care, and maintenance

of self-rescue and respiratory devices, if used at the mine.

The requirements of this paragraph are identical to those proposed for

new miners under Sec. 46.5(d), except that a review of first aid

methods would not be required for experienced miners. The proposal

would not require first aid instruction for newly-hired experienced

miners because it would be covered in new miner training and may be

reviewed during annual refresher training. This would not prevent you

from including first aid training for newly-hired experienced miners if

you choose. Again, we request comments on the suitability of the listed

subjects and whether the detailed description of the subject areas

would limit your flexibility in tailoring course materials to meet the

needs of newly-hired experienced miners. We are also interested in

whether the 90-day deadline to provide annual refresher training on the

required subjects is reasonable. We request that commenters explain the

reasoning behind their recommendations.

The proposal would not require a minimum number of hours for newly-

hired experienced miner training, in recognition of the wide range of

experience and skill among experienced miners. The approach taken in

the proposal is intended to allow you to determine the amount of

training that is appropriate for each newly-hired experienced miner,

based on your assessment of the miner's needs. The proposal would

require all newly-hired experienced miners to receive at least some

training in all of the required subject areas. However, a miner

transferring from one mine to another where the operations and

equipment in use are very similar may not need as much training in some

areas as another experienced miner whose previous experience has been

less relevant. We are interested in whether commenters advocate setting

a minimum number of hours for newly-hired experienced miner training,

or support training of a specified duration based on discrete criteria

such as mine size, mining methods, type of operations or equipment,

etc.

Paragraph (c) of proposed Sec. 46.6 would address training for a

newly-hired experienced miner returning to the same mine after an

absence of 12 months or less. This provision has been adopted from

recently revised provisions in Sec. 48.26. Under this paragraph, you

would not be required to provide such a miner with the training

required by paragraphs (a) and (b); instead, you would simply be

required to inform the miner, before the miner begins work, of changes

at the mine that occurred during the miner's absence that could

endanger his or her safety or health. You would also be required to

provide the miner with any annual refresher training that the miner may

have missed during his or her absence, within 90 days after the miner

starts work.

Under paragraph (d), employees of independent contractors who are

``miners'' under the proposed definition and who work at the mine on a

short-term basis would be required to receive either newly-hired

experienced miner training under paragraphs (a) or (b) or site-specific

hazard training under Sec. 46.11. This is based on a similar provision

in the definition of ``miner'' in existing Sec. 48.22(a)(1). The

language of the proposed rule itself reflects our assumption that this

provision would be applicable primarily to drillers and blasters who,

because of the nature of their work, are at a mine for a short period

of time before moving on to another job at another mine. We do not

believe that it makes practical sense to require miners who regularly

move from one mine to another to be treated the same as newly-hired

miners who remain at one mine site. Therefore, the proposal would not

require them to receive newly-hired experienced miner training whenever

they begin work at a new mine. However, we are interested in comments

on whether these are appropriate exceptions from the newly-hired

experienced miner training requirements.

Section 46.7 New Task Training

Section 115(a)(4) of the Mine Act provides that:

* * * any miner who is reassigned to a new task in which he has

had no previous

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work experience shall receive training in accordance with a training

plan approved by the Secretary * * * in the safety and health

aspects specific to that task prior to performing that task.

This section of the proposed rule would implement this statutory

provision by requiring you to provide miners with training for new

tasks and for regularly assigned tasks that have changed, before the

miners perform the tasks.

Commenters strongly supported a requirement for task training,

stating that employees need to be aware of the hazards and the risks

associated with the jobs or tasks that they are asked to perform and be

familiar with the systems, tools, equipment, and procedures required to

control these hazards. The proposed task training requirements are

intended to reduce the likelihood of accidents resulting from lack of

knowledge about the elements and the hazards of the task. This training

should ensure that miners receive necessary information before

performing the tasks that they are assigned, so that they can avoid

endangering themselves or other miners at the mine site.

Some commenters recommended that new task training requirements be

patterned after the requirements for task training in part 48. Under

part 48, for example, a program for new task training must include

instruction, in an on-the-job environment, in the health and safety

aspects and safe operating procedures of the task; supervised practice

during nonproduction times is also required.

Paragraph (a) of proposed Sec. 46.7 provides that, before a miner

performs a task for which he or she has no previous experience, you

must train the miner in the safety and health aspects and safe work

procedures specific to that task. Additionally, if changes have

occurred in a miner's regularly assigned task, you must provide the

miner with training that addresses the changes.

Unlike part 48, the proposal does not include detailed requirements

for task training. This is intended to allow you to design task

training programs that are suitable for your workforce and your

operation. We expect that effective new task training will include, at

a minimum, instruction in the elements of the task, including hands-on

training, and an explanation of the potential health or safety hazards

associated with the task and ways of minimizing or avoiding exposure to

these hazards. However, we are interested in comments on whether the

final rule should include more detail and guidance for you on the

elements of an effective new task training program, and what areas

should be addressed. We also solicit comments on whether new task

training requirements under the final rule should be modeled after the

requirements in part 48, as recommended by some commenters.

Several commenters stated that very effective and safe training in

a new task can include the miner practicing the task while under the

close supervision of a competent person, who instructs the individual

in how to perform the task in a safe manner. We believe that supervised

practice can allow the miner to gain experience at the new task and to

learn how to avoid the hazards presented by the performance of the

task. Consistent with this determination, paragraph (b) specifically

provides that practice under the close supervision of a competent

person may be used to satisfy new task training requirements. ``Close

supervision,'' as discussed in the preamble for new miner training

under proposed Sec. 46.5, would mean that the competent person is in

the immediate vicinity of the miner and is focusing his or her complete

attention

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