[Federal Register Volume 64, Number 71 (Wednesday, April 14, 1999)]
[Proposed Rules]
[Pages 18498-18528]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-8894]
[[Page 18497]]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Mine Safety and Health Administration
_______________________________________________________________________
30 CFR Parts 46 and 48
Training and Retraining of Miners Engaged in Shell Dredging or Employed
at Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or
Surface Limestone Mines; Proposed Rules
Federal Register / Vol. 64, No. 71 / Wednesday, April 14, 1999 /
Proposed Rules
[[Page 18498]]
DEPARTMENT OF LABOR
Mine Safety and Health Administration
30 CFR Parts 46 and 48
RIN 1219-AB17
Training and Retraining of Miners Engaged in Shell Dredging or
Employed at Sand, Gravel, Surface Stone, Surface Clay, Colloidal
Phosphate, or Surface Limestone Mines
AGENCY: Mine Safety and Health Administration (MSHA), Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
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
[[Page 18519]]
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 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.
We intend that task training would not be required for miners who
have performed the task before and who are able to safely perform the
task. However, you must first determine that task training is not
necessary, typically by having the miner demonstrate that he or she is
able to perform the task safely.
Several commenters recommended that the rule allow task training to
be credited toward new miner training requirements. We recognize that
new task training will be a fundamental and essential part of the
training for most new miners, who must be trained in the health and
safety aspects of the tasks they will be assigned. Allowing task
training to be used to satisfy new miner training requirements would be
consistent with this requirement. Paragraph (c) would therefore
specifically provide that new task training may be used to satisfy new
miner training requirements, as appropriate. Additionally, although
speakers at the public meetings did not specifically raise the issue,
we are interested in whether commenters support allowing new task
training to satisfy some portion of annual refresher training
requirements.
Section 46.8 Annual Refresher Training
Section 115(a)(3) of the Act requires all miners to receive at
least eight hours of refresher training no less frequently than once
every 12 months, but does not require that specific subjects be covered
as part of this training. In the Federal Register notice announcing the
public meetings, we requested comment on whether specific subject areas
should be covered during annual refresher training, and if so, what
subjects should be included.
Commenters strongly supported the concept of annual refresher
training. However, most commenters believed that the subjects covered
in refresher training should not be fixed, but instead should be
tailored to the safety needs of the miners at the particular operation.
Many commenters indicated that training topics should vary from year to
year.
Several commenters stated that although general guidelines
addressing possible training topics was a good idea, the final rule
should allow flexibility in choosing topics. One commenter stated that
refresher training should cover subject areas relevant to the biggest
safety problems at the mine over the preceding year. Another commenter
indicated that his operation took that approach and analyzed accidents
that occurred at the mine over the past year, basing its training
program on that analysis. One commenter stated that the idea that
annual refresher training is just boring, routine, and repetitious of
the same topics every year is dangerous, and that lifesaving critical
skills that are non- routine need to be refreshed because people
forget.
We are persuaded by commenters' recommendations that you have
flexibility in selecting topics for refresher training and have made a
preliminary determination that refresher training that addresses topics
relevant to the mine's methods of operation, equipment, accident and
illness history, etc., can be extremely effective. The proposal
reflects this determination.
Paragraphs (a) and (b) of proposed Sec. 46.8 provide that you must
provide each miner with no less than eight hours of refresher training
once every 12 months. The refresher training must include, at a
minimum, instruction on changes at the mine that could adversely affect
the miner's health or safety. We expect that these changes would
include such things as a modification in mine traffic patterns, new or
retrofitted equipment, a new blasting schedule, etc.
[[Page 18520]]
Paragraph (b) also includes a list of topics that may be covered as
part of the refresher training, but none of these topics would be
mandatory. The list of topics has been taken from part 48, and
includes, among others, transportation controls and communication
systems; ground control; water hazards, pits, and spoil banks;
illumination and night work; and explosives. We expect that you will
carefully select the areas that will be covered in the refresher
training at your mine, to ensure that your miners will receive
practical and useful instruction designed to effectively address the
safety and health conditions at your mine. However, we are interested
in comments on whether the final rule should include more detailed
requirements or guidance for refresher training programs. We are
specifically interested in whether the final rule should require
instruction on particular topics, similar to part 48, and if so, which
subjects should be included.
Some commenters recommended that the 12-month interval for training
should be calculated based on the months that a miner actually works as
a miner rather than on 12 calendar months. These commenters reasoned
that many miners only work at the mine site two or three months out of
the year, and that these miners should not have to receive the same
amount of training as miners who are continuously employed at a mine.
The proposal does not adopt this suggestion. The rationale for a
refresher training requirement is that the passage of time results in
the loss of important information. Congress determined that miners
should be retrained at a specified interval--no less frequently than
every 12 months'and there is nothing in the Act's legislative history
that suggests that Congress intended that refresher training be given
every 12 working months rather than calendar months. In extreme cases,
this interpretation might mean that some miners would receive refresher
training every two or three years, rather than once every year as
provided in the Act.
Section 46.9 Records of Training
This section of the proposal includes requirements for you to
record and certify that miners have received health and safety training
under this part.
Section 115(c) of the Mine Act provides that, upon completion of
each training program, each operator shall 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. The
Mine Act also provides that a certificate for each miner shall be
maintained by the operator and shall be available for inspection at the
mine site; and that a miner is entitled to a copy of his or her
training certificate when he or she leaves the operator's employ.
Finally, the Mine Act requires that each training certificate indicate
on its face in bold letters that false certification by an operator is
punishable under section 110(a) and (f) of the Act.
Recordkeeping was one of the issues identified by us in the Federal
Register notice announcing the public meetings. We specifically asked
for comments on whether records of training should be kept at the mine
site, or whether you should be allowed to keep these records at other
locations.
A number of speakers at the public meetings addressed the issue of
recordkeeping. Several speakers at the public meetings supported
flexibility in all aspects of record maintenance, stating that you
should be able to choose the record storage option that best suits your
operation. One commenter stated that paperwork should be kept at a
minimum, because if supervisors must spend too much time on paperwork,
they will not have enough time to address mine hazards or ensure that
miners are working safely. A number of commenters stated that you
should have the option of keeping records at a location other than the
mine site. These commenters believed that this would allow you to keep
records in computer format or at a central location, and pointed out
that the prevalence of electronic mail, computer networks, and fax
machines would permit those of you with records maintained away from
the mine site to provide copies of any record essentially
instantaneously, such as to an MSHA inspector during a regular
inspection.
One commenter stated that centralized record management was likely
to be more reliable and more cost-effective for many of you than a less
automated system. Other commenters stated that at many mine sites the
only place where records could be kept would be in a pickup truck,
because there was nothing that resembled a mine office on the sites.
Another commenter indicated that many of you have multiple mine sites,
and that often the smaller sites are not well-suited for record
maintenance, particularly if the records are computerized. Several
commenters, however, believed that training certificates belonged at
the mine site, and that such a requirement would not be particularly
burdensome.
The draft submitted by the Coalition would require that you certify
that required training has been provided, provide certificates of
training to miners, and maintain a copy of the training records during
employment and for a period of 12 months following termination of
employment. The Coalition draft also would provide that a miner who
leaves your employ would be entitled, upon request, to a copy of his or
her health and safety certificates.
Proposed paragraph (a) would provide that, upon a miner's
completion of each training program, you must record and certify that
the miner has received the training. Consistent with the Mine Act
requirement that certifications be kept on a form approved by the
Secretary of Labor, the proposal would allow training certifications to
be kept on MSHA Form 5000-23, which is the approved form used by
operators under part 48 regulations to certify that training has been
completed. However, this paragraph also would provide that you may use
any other form that contains the minimum information listed in
paragraph (b) in this section, and adopts the Mine Act provision that
false certification by an operator that training was given is
punishable under section 110(a) and (f) of the Act.
The requirements of this paragraph are intended to allow those of
you who may already be using MSHA Form 5000-23 for training
certifications to continue to use this form under the new rule.
However, in response to commenters requesting flexibility in complying
with recordkeeping requirements, the proposal would allow the use of
other forms that contain the minimum information specified in proposed
paragraph (b). Under this paragraph a form would be considered approved
by us if it contains the information listed in paragraphs (b)(1)
through (b)(5). Information required would include--
(1) The printed full name of the person who received the
training;
(2) The type of training that was received, the duration of the
training, the date the training was received, and the name of the
person who provided the training; and
(3) The mine name, MSHA mine identification number, and the
location where the training was given.
We took this approach in response to comments that supported the
elimination of some of the recordkeeping requirements under part 48.
This approach is similar to the approach taken for approved training
plans in proposed Sec. 46.3--formal approval of your recordkeeping
format would not be required so long as the record includes the minimum
information listed in the proposal. This is intended to provide you
with the flexibility to tailor your method of recordkeeping to the
particular
[[Page 18521]]
operation. We expect that in many cases the recordkeeping system will
be computer-based; others may choose to keep certifications on MSHA
Form 5000-23. Still others whose records are not computerized may
choose to use another paper-based form.
It should be noted that the information required under the proposal
is less inclusive than the information called for on MSHA Form 5000-23.
We believe that the information listed in the proposal would be
sufficient to allow us to determine compliance with the training
requirements. The information should also enable miners and their
representatives to determine that necessary training has been provided
for every miner, without placing an unnecessary recordkeeping burden on
you. However, we specifically invite comment on whether information is
needed beyond what is included in paragraph (b) to determine compliance
with training requirements, and why that additional information is
necessary. Similarly, we are also interested in whether any items of
information listed in paragraphs (b)(1) through (b)(5) are unnecessary,
and why. We also invite comments on whether the final rule should
require the exclusive use of MSHA Form 5000-23 for training
certifications or of a similar form that has been formally approved by
us, and why commenters believe such an approach is advisable or
necessary.
Paragraph (b)(4) incorporates the requirement in section 115(c) of
the Mine Act that each health and safety training certificate indicate
on its face that false certification that training was conducted is
punishable under Sec. 110(a) and (f) of the Mine Act. Section 110(a) of
the Act provides that an operator who violates a mandatory standard or
any other provision of the Act shall be assessed a civil penalty of up
to $50,000. Section 110(f) of the Act provides that a person who makes
a false statement, representation, or certification in records or other
documents filed or maintained under the Act may be subject to criminal
prosecution and fined up to $10,000 and imprisoned for up to 5 years.
Paragraph (b)(4) has been included in the proposal to ensure that
everyone who will be affected by the final rule or who will be
responsible for compliance is aware of the civil and criminal penalties
under the Mine Act for false training certification.
Finally, paragraph (b)(5) requires that the training certificate
also include a statement signed by the person responsible for training
that ``I certify that the above training has been completed.'' The
proposal would require the statement to be signed by the person who is
identified in the training plan, under proposed Sec. 46.3(b)(2), as
responsible for health and safety training at the mine. The proposal
would not require miners who have received training to initial or sign
the form; the proposal would also not require the signature of the
person who actually conducts the training, unless that person is
designated in the plan as responsible for health and safety training at
the mine.
This approach is taken in response to a number of commenters who
supported reduced recordkeeping requirements. The proposal reflects our
preliminary determination that a miner's initials or signature do not
enhance the likelihood that training requirements will be fulfilled.
However, we request comments on whether miners should be required to
sign their training certificates. We also request comment on whether
other persons besides the person responsible for training at the mine
should be allowed to sign the certificates.
Paragraph (c) adopts the requirement of section 115(c) of the Mine
Act that operators give miners copies of their training certificates at
the completion of each training program. We intend that miners receive
copies of their certifications after they have completed the required
24 hours of new miner training, eight hours of annual refresher
training, newly-hired experienced miner training, or new task training.
This would not prevent you from providing certificates to miners as
partial installments of required training are completed, particularly
when training is spread out over some period of time. We are interested
in whether the requirements of this paragraph will ensure that miners
will receive training certificates in a timely manner.
Under paragraph (c), you would also be required to give a miner a
copy of his or her training certificates when the miner leaves your
employ, upon the miner's request. This adopts the provision in section
115(c) of the Mine Act that miners are ``entitled'' to a copy of their
certificates when they terminate their employment with an operator. The
proposal interprets the statutory language to mean that a miner must be
provided a copy if he or she requests it, but that you do not have to
provide copies to miners who do not make such a request.
We anticipate that miners who are leaving for another job in the
mining industry or who intend to return to the mining industry at some
point in the future will request copies of their training records. This
will enable miners to document their training status under our
regulations at other mining operations. However, we also anticipate
that some miners will terminate their employment because they are
retiring or with no expectation of returning to mining. Because of
this, the proposal would not require that you provide these records to
the miner automatically. We do not believe that this provision is
unduly burdensome for the miner. However, we invite comment on whether
you should be required to provide such records automatically upon the
miner's termination of employment, or whether you should be required to
offer such records to the miner.
Paragraph (d) provides that you must make available at the mine
site a copy of each miner's training certificate for inspection by us
and for examination by miners and their representatives. This paragraph
also states that if training certificates are not maintained at the
mine site, you must have the capability to provide the certificates
upon request by us, miners, or their representatives. This is the same
approach taken for training plans under proposed Sec. 46.3. As
explained in the preamble discussion for that section, no time is
specified within which a copy of the records must be produced after a
request is made by us or by miners. If you elect to keep training
certificates away from the mine site, you must be able to produce
copies of the training certificates within a reasonable period of time.
In most cases, we would expect that the records could be produced in a
relatively short period of time, particularly if they are to be faxed
or e-mailed to the mine site. In those cases where a mine may not have
a formal office, a longer period of time to produce the records may be
allowed depending upon the individual circumstances.
Comments are invited on whether the final rule should require that
you maintain training certificates at the mine site. We also invite
comment on the suggestion that the most recent training certificates be
required to be kept at the mine site, allowing you to maintain other
certificates at another location. We are also interested in whether
commenters believe that the final rule should establish a deadline for
you to produce records that are maintained away from the mine site, or
whether the language in the proposal is adequate. One possible
alternative would be require the records to be produced within a
reasonable period of time, but in no case longer than one business day.
Paragraph (e) would require that you maintain copies of training
certificates
[[Page 18522]]
and training records for each currently employed miner during his or
her employment, and for at least 12 months after a miner terminates
employment. This provision is adopted from the draft of the Coalition.
Under this provision, you would be required to retain a miner's
training certificates while the miner continues to be employed by you.
At the termination of a miner's employment, you would be required to
maintain the miner's certificates for at least 12 months after that
employment has ended. This approach would allow us to determine
compliance with the training requirements in this part for both current
and recently departed miners. However, we request comment on whether a
shorter or longer period for record retention is appropriate, and
whether different record retention periods make sense for current and
former miners. For example, part 48 requires that training certificates
of currently employed miners be retained for at least 2 years, or for
60 days after termination of a miner's employment. Some commenters
advocated adoption of the part 48 time frames.
Section 46.10 Compensation for Training
This section of the proposal addresses when training under this
part must be conducted and the compensation that miners must receive
when they are undergoing training. This section adopts the provisions
of section 115 of the Mine Act that address compensation for miners who
attend required training.
The issue of normal working hours and compensation for training was
the subject of only one comment. A speaker at one of the public
meetings stated that the rule should include a specific provision that
adopted the statutory requirements in this area, to ensure that there
was no confusion or uncertainty about the requirements of the Act.
Section 115(b) of the Mine Act provides that health and safety
training shall be provided during normal working hours and that miners
shall be paid at their normal rate of compensation when they take such
training. Section 115(b) also requires that if training is given at a
location other than the normal place of work, miners shall be
compensated for the additional costs incurred in attending such
training.
Paragraph (a) of proposed Sec. 46.10 incorporates this statutory
requirement and would provide that health and safety training must be
conducted during normal working hours. As discussed earlier in this
preamble, the part 48 definition of ``normal working hours'' has been
included in the proposal in Sec. 46.2 and provides that normal working
hours means ``* * * a period of time during which a miner is otherwise
scheduled to work.'' The definition also indicates that training may be
conducted on the sixth or seventh working day provided that such work
schedule has been established for a sufficient period of time to be
accepted as the common practice. The proposed rule does not define the
term ``sufficient period of time.'' However, as discussed under the
preamble for Sec. 46.2, 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.
Paragraph (a) would also provide that persons attending such
training must be paid at a rate of pay that corresponds to the rate of
pay they would have received had they been performing their normal work
tasks. This provision has been adopted from part 48.
Paragraph (b) would require that if training is given at a location
other than the normal place of work, miners must be compensated for the
additional costs, such as mileage, meals, and lodging they may incur in
attending such training sessions. Although we anticipate that much of
the training provided under this part will be given at or near miners'
normal workplaces, in those cases where miners must travel to receive
required training, they are to be fully compensated for their expenses
of travel.
This section has been included in the proposal to ensure that you
and miners and their representatives are aware of the statutory
requirements concerning compensation. We are interested in comments on
whether these proposed provisions adequately address the issue of
compensation and the scheduling of training.
Section 46.11 Hazard Training
Under the proposal, persons who are not engaged in mining
operations integral to extraction or production, and who therefore do
not fall within the definition of ``miner'' under proposed Sec. 46.2,
would not be required to receive comprehensive training. Instead, these
persons would be required to receive site-specific hazard training. As
discussed earlier, proposed Sec. 46.2 defines ``hazard training'' as
information or instructions on the hazards a person could be exposed to
while on mine property, as well as applicable emergency procedures.
These may include site-specific risks such as unique geologic or
environmental conditions, traffic patterns, and restricted areas; and
warning and evacuation signals, emergency procedures, or other special
safety procedures.
As a practical matter, ``miners'' who are employees of a
production-operator would receive orientation at the mine site and
instruction in site-specific hazards and emergency procedures as part
of their comprehensive training. ``Miners'' who are employees of
independent contractors must also receive, in addition to comprehensive
training, site-specific hazard training at the mine sites where they
work. Under the proposal, hazard training must be given before persons
begin their work duties.
As indicated earlier in the discussion of the definition of
``miner'' in proposed Sec. 46.2, a number of commenters raised the
issue of workers whose presence at the mine site is infrequent or whose
activities at the mine site do not expose them to significant mining
hazards. These commenters strongly recommended that the proposed rule
not require these workers to receive comprehensive training. Instead,
they suggested that these workers be trained in the hazards that exist
at the mine site where they are working. Several commenters stated that
a distinction must be made between workers such as independent haulers
who come on to the mine site only to pick up a load of material and
then leave, and truck drivers who are working within the mine site and
who haul from the pit to the crushers.
Some commenters stated that whether or not a worker is employed by
a mining company or by an independent contractor should be irrelevant
in determining what type of training is appropriate. Several commenters
acknowledged that some contractor employees at their operations were
directly involved in the extraction or production process, and that it
would be appropriate to treat these employees as miners for purposes of
training. A number of commenters agreed that contractor employees who
are engaged in activities such as milling, extraction, or blasting
should be considered miners and should receive comprehensive training,
which would include, as appropriate, new miner training or newly-hired
experienced miner training.
Other commenters supporting this view stated that persons such as
clerical staff who do not go into the plant or quarry do not need
extensive safety and health training, and should therefore be excluded
from the rule's definition of ``miner.'' Another commenter indicated
that the rule must clarify what type of training must be given to
service
[[Page 18523]]
personnel, delivery people, and occasional mine visitors.
Commenters generally supported a requirement for site-specific
hazard training for those workers on mine property who did not receive
comprehensive training because their involvement in mining operations
and exposure to mine hazards is limited. Commenters also generally
supported a requirement for site-specific hazard training for
contractor employees who also receive comprehensive training because of
the nature of their activities at mine sites, but who move from job to
job and mine site to mine site and need initial orientation at every
new site before they begin work.
The draft proposal of the Coalition would require site-specific
hazard training for specific categories of persons, commensurate with
the associated risks, when the individuals are assigned work on mine
property. Hazard training would be required for construction workers;
individuals who enter mine property to service, maintain, assemble, or
disassemble mine extraction or production machinery; delivery, office
or scientific workers; customer truck drivers; staff or administrative
personnel; or others not engaged in extraction or production activities
as related to mining and milling. The Coalition draft would also
specifically exempt the listed persons from comprehensive training
requirements.
The Coalition draft would not require hazard training for outside
vendors, visitors, or office or staff personnel who do not work at the
plant location on a continuing basis and do not have access to the mine
site, or who are accompanied by someone familiar with hazards specific
to the mine site.
Consistent with the Coalition draft and with recommendations from
other commenters, the proposal would base training requirements on the
worker's activities at the mine. Under paragraph (a), persons who are
present at the mine site but who do not fall within the definition of
``miner'' in proposed Sec. 46.2 would be required to receive only site-
specific hazard training.
Paragraphs (a)(1) through (a)(4) list examples of persons who would
be required to receive hazard training, including scientific workers;
delivery workers and customers; occasional, short-term maintenance or
service workers or manufacturers' representatives; and outside vendors,
visitors, office or staff personnel who do not work at the mine site on
a continuing basis. This list is intended to provide examples of
individuals who fall within this category, but is not meant to be all-
inclusive. Our intention is that whether a person is a ``miner'' and
required to receive comprehensive training is determined by the
person's activities and exposure to mine hazards, not the person's job
title. For example, construction workers would be exempt from
comprehensive training requirements under the Coalition draft proposal.
However, under our proposed rule, whether a construction worker must
receive comprehensive training or site-specific hazard training would
depend on what activities the worker is engaged in at the mine site. As
discussed in greater detail below, hazard training would not be
required if a person is accompanied at all times by an experienced
miner.
The proposed rule, unlike the Coalition draft, would require hazard
training for outside vendors and visitors. We believe that a vendor or
visitor who will be in the vicinity of mine hazards, even for a limited
period of time, should receive hazard training unless accompanied by a
knowledgeable individual while at the mine site. However, commenters
should be aware that we do not intend that hazard training be required
for individuals who may come onto property owned by the mining
operation but who never travel in the vicinity of the mine site. For
example, the mine site would include areas where extraction or
production take place, such as the pit, quarry, stockpiles, mine haul
roads, or areas where customers travel or haul material. A soft drink
deliveryman who goes no farther than an office on mine property would
not be required to have hazard training. Similarly, we do not intend
that hazard training be required for office or staff personnel whose
offices are located some distance from the mine site and whose duties
never require their presence at the mine site. This is consistent with
commenters who stated that you should not be required to train persons
who will not be exposed to traditional mine or plant hazards. We
solicit comments on whether this approach is appropriate, and also
whether the language of the proposed rule adequately addresses this
issue.
Paragraph (b) would require that you also provide site-specific
hazard training to each person who is an employee of an independent
contractor, and who is working at the mine as a ``miner'' as defined in
proposed Sec. 46.2. Although these employees would receive
comprehensive training, they should also receive some form of site-
specific hazard training, as recommended by a number of commenters. One
commenter specifically stated that the rule should require hazard
training to familiarize contractors with hazards specific to mining and
an overview of company safety rules and the applicable regulations. As
a practical matter, we expect that many, if not most, independent
contractor employees will be required to receive hazard training under
paragraph (a), because they do not meet the definition of ``miner''
under proposed Sec. 46.2. However, employees of independent contractor
employees who do fall within the definition of ``miner'' also need
effective orientation to their new work environment before they begin
their job duties. Paragraph (b) would ensure that such training is
provided. Paragraph (b) would also provide that if these miners have
received newly-hired experienced miner training at the mine, and have
therefore been instructed in the hazards and conditions specific to the
mine, hazard training under proposed Sec. 46.11 would not be required.
Paragraph (c) would require you to provide hazard training before
the affected person is exposed to mine hazards. This is intended to
ensure that persons coming onto mine property will be provided with the
necessary information about the mine hazards they may encounter at the
mine site before they are exposed to them. We believe there is no
reason to allow any delay in providing hazard training; allowing
persons to be exposed to mine hazards before they receive hazard
training would defeat the purpose of the training. We expect that
hazard training will not be overly burdensome and can be effectively
provided to affected persons before they enter the mine site.
Under paragraph (d), you may provide hazard training through the
use of--
(1) Written hazard warnings;
(2) Oral instruction;
(3) Signs and posted warnings;
(4) Walkaround training; or
(5) Other appropriate means.
Commenters had varying opinions on how long hazard training should
last and what form it should take. One commenter stated that this
hazard training could last about 15 minutes and would cover the
conditions and hazards that the person would encounter at the job site.
Another commenter stated that it might take one or two hours to alert
the persons receiving the training of the site-specific hazards they
might encounter at the mine site, such as conditions or equipment in
the area that could cause an injury. One commenter from a large
facility stated that any contractor that comes onto the mine site
receives a one-hour safety rules and awareness orientation to
familiarize the
[[Page 18524]]
contractor with the company rules and regulations that apply at the
property. Finally, several commenters stated that adequately marked
roads and effective warning and directional signs may be sufficient
hazard training for some types of workers who are not involved with
mining or extraction or the milling process, such as truck drivers who
come onto the mine site only to pick up a load of material.
We intend that the proposed rule allow you the flexibility to
tailor hazard training to the specific operations and conditions at
your mines. Depending on the circumstances, you may provide hazard
training through informal but informative conversations; in other
cases, you may choose to provide some form of walkaround training by
guiding the person receiving training around the mine site, pointing
out particular hazards or indicating those areas where the person
should not go, or some combination of these methods.
We also intend that hazard training be appropriate for the
individual who is receiving it, and that the breadth and depth of
training may vary depending on the skills, background, and job duties
of the recipient. For example, it may be acceptable for you to provide
hazard training to customer truck drivers by handing out a card to the
drivers alerting them to the mine hazards or directing them away from
certain areas of the mine site. In other cases, adequate warning signs
on mine property may be sufficient to direct persons away from
hazardous areas. However, we expect that in a number of cases site-
specific hazard training should be more extensive, such as for
contractor employees who fit the definition of ``miner,'' and who have
received comprehensive training, but who need orientation to the mine
site and information on the mining operations and mine hazards.
Additionally, more extensive hazard training would be appropriate where
an equipment manufacturer's representative comes onto mine property for
a short period of time to service or inspect a piece of mining
equipment. Although this individual may not be on mine property for a
prolonged period, the person's exposure to mine hazards may warrant
training of a longer duration.
We seek specific comment on whether the flexibility that would be
allowed under paragraph (d) in providing hazard training is appropriate
and whether the language of the proposed rule is sufficiently
descriptive. We are also interested in whether there may be other
methods of providing hazard training that should be specifically
included as examples in the final rule.
Proposed paragraph (e) would provide that hazard training is not
required for any person who is accompanied at all times by an
experienced miner who is familiar with the hazards specific to the mine
site. The experienced miner referred to in paragraph (e) would not be
required to be the ``competent person'' defined in proposed Sec. 46.2
but should be sufficiently familiar with the mine's operations and its
hazards to ensure that the person accompanied is protected from danger
while at the mine site. This provision is intended to give you the
option to forego site-specific hazard training, most likely for one-
time visitors, and instead provide the person with a knowledgeable
escort. We expect that in many situations it may be easier or more
expedient for the person to be accompanied, such as a visitor who is
being taken on a mine tour and would already be escorted by
knowledgeable mine personnel. However, under the proposal, you may
choose to accompany any category of person in lieu of providing hazard
training.
Commenters should note that proposed Sec. 46.9 would only require
you to certify training for ``miners.'' As a result, the proposal would
not require you to make or maintain records of site-specific hazard
training for persons who do not fit within the definition of ``miner.''
We believe that a requirement for recordkeeping of this training,
particularly given the many operations that accommodate outside
customers on a regular basis, would be unnecessarily burdensome.
However, we expect that you will be able to demonstrate to inspectors
that you are in compliance with site-specific hazard training
requirements. For example, you could show the inspector the hazard
training materials that are used; copies of the flyers or handouts
containing hazard information that you distribute to persons on arrival
at the mine site; or visitor log books with a checklist that indicates
that hazard training was given to the visitors. Additionally, you could
point out the signs on mine property that warn of hazards or direct
persons away from dangerous areas. We are interested in comments as to
whether this approach is appropriate, or whether the final rule should
require some form of recordkeeping for the hazard training received by
all persons, not just miners.
Section 46.12 Responsibility for Training
This section of the proposed rule addresses the allocation of
responsibility for training between production-operators and the
independent contractors employing persons who work at the production-
operators' mine sites. The provisions of this section respond to the
concerns expressed by a number of speakers at the public meetings on
responsibility for ensuring that workers receive required training, and
are based in part on language in the draft proposal of the Coalition.
A number of commenters stated that the rule should make clear that
primary responsibility for training employees of independent
contractors is on the contractor. These commenters felt that the
contractor, not the production-operator, would be in the best position
to train his or her employees in the health and safety aspects of their
particular tasks. One commenter stated that the main reason a
production-operator hires an independent contractor is because the
production-operator does not have the expertise or equipment to do the
job safely, and that production-operators should not be compelled to
provide training for independent contractor employees beyond what is
necessary to address mine-specific hazards. Commenters were concerned
about situations where independent contractor employees should receive
comprehensive training, because they are engaged in extraction or
production or exposed to significant mine hazards. Commenters stated
that contractor employees frequently are not adequately trained, but
that it should not be the production-operator's responsibility to
provide this training. Commenters recommended that the rule
specifically require contractors to ensure that their employees have
the necessary training.
Commenters did agree that contractors need to be aware of the site-
specific hazards at the mine site and supported a requirement for
production-operators to provide site-specific hazard training to
contractor employees who come onto mine sites to perform services. This
section would address these concerns.
Because the part 46 definition of ``operator'' includes independent
contractors, the term ``production-operator'' is used in this section
and is defined in proposed Sec. 46.2 as ``any owner, lessee, or other
person who operates, controls, or supervises a mine.'' This is intended
to refer to the person or company who actually operates the mine as a
whole, as opposed to the independent contractor who performs services
there. Paragraph (a) provides that each production-operator is
primarily responsible for providing site-specific hazard training to
employees of independent contractors; paragraph (b) provides that
independent contractors who employ
[[Page 18525]]
``miners'' are primarily responsible for providing comprehensive
training to their employees. This would not prevent a production-
operator from arranging for the independent contractor to provide site-
specific training to the contractor's employees; some independent
contractors may also choose to arrange for the production-operator to
provide comprehensive training for the contractors' employees. However,
the primary responsibility for site-specific hazard training would
continue to rest on the production-operator, while primary
responsibility for comprehensive training of contractor employees would
continue to rest on the independent contractor.
Production-operators would also be required under paragraph (a) to
inform independent contractors of site-specific hazards associated with
the mine site and the obligation of the contractor to comply with our
regulations, including part 46. Independent contractors would be
responsible under paragraph (b) for informing the production-operator
of any hazards of which the contractor is aware that may be created by
the performance of the contractor's work at the mine. These provisions
are intended to ensure that production-operators and independent
contractors share information about hazards at the mine, so that their
employees may work safely.
The requirements of this section are consistent with our current
policy on independent contractors. Under that policy, independent
contractors are responsible for compliance with the Act and regulations
with respect to their activities at a particular mine. We also cite
independent contractors for violations committed by them and their
employees. However, neither this policy nor the provisions in this
section change production-operators' basic compliance responsibilities.
Production-operators are subject to all provisions of the Act and to
all standards and regulations applicable to their mining operations.
This overall compliance responsibility includes ensuring compliance by
independent contractors with the Act and regulations. One way for
production-operators to address this responsibility is to confirm when
contracting with independent contractors that the contractors'
employees will receive safety and health training, and to include this
as a provision in the contract.
We solicit comments on the allocation of training responsibility
between production-operators and independent contractors who employ
workers at mine sites.
Effective Date and Compliance Deadlines
We questioned a number of speakers at the public meetings on how
much time should be allowed for the mining community to come into
compliance with the final rule. Several speakers recommended that a
year after the date of publication of the final rule would provide a
sufficient period of time for affected operations to come into
compliance. Several other speakers indicated that six months past the
publication date would be adequate.
One possible approach would be phased-in compliance deadlines,
where certain of the rule's requirements would go into effect at
different stages. For example, the requirement that you develop and
implement a training plan might become effective six months after the
final rule is published, while the requirements for the various types
of miner training would take effect one year after publication.
We are seeking comments on how to approach this issue, specifically
on whether phased-in deadlines would be useful in facilitating
compliance, and what period of time will be needed for full compliance.
We have not yet determined what an appropriate effective date would be.
We understand that there will be a very large number of operations
coming into compliance simultaneously and wish to allow a reasonable
amount of time for the transition.
XI. References
Federal Metal and Nonmetallic Mine Safety Act, September 16, 1966.
Federal Coal Mine Health and Safety Act, December 30, 1969.
Federal Mine Safety and Health Act, November 9, 1977.
H.R. Rep. No. 105-825 for H.R. 4328, 105th Cong., 2d Sess. (1998).
Joint Industry and Labor draft proposed rule for Training and
Retraining miners engaged in Shell Dredging or employed at Sand,
Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface
Limestone Mines, February 1, 1999.
MSHA, Health and Safety Training and Retraining of Miners, Final
Rule, October 13, 1978 [43 FR 47454-47468].
MSHA, Notice of Public Meetings, November 3, 1998 [63 FR 59258].
MSHA, Experienced Miner and Supervisor training, Final Rule, October
6, 1998 [63 FR 53750].
Omnibus Appropriations Act for 1999, Pub. L. 105-277, October 21,
1998.
S. Rep. No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998).
Transportation Equity Act ``TEA-21'' (Pub. L. 105-178), June 9,
1998.
U.S. Geological Survey, U.S. Department of the Interior, Mineral
Industry Surveys, Crushed Stone and Sand and Gravel in the Third
Quarter of 1998, December 1998, pp. 1-5.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1996, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, February 1997, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1998, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Stone
(Crushed), Valentin V. Tepordei, January 1999, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and Gravel
(Construction), Wallace P. Bolen, January 1996, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and Gravel
(Construction), Wallace P. Bolen, February 1997, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and Gravel
(Construction), Wallace P. Bolen, January 1998, pp. 1-2.
U.S. Geological Survey, Mineral Commodity Summaries, Sand and Gravel
(Construction), Wallace P. Bolen, January 1999, pp. 1-2.
List of Subjects
30 CFR Part 46
Mine safety and health, Reporting and recordkeeping requirements,
Surface mining, Training programs.
30 CFR Part 48
Mine safety and health, Reporting and recordkeeping requirements,
Training programs.
Dated: April 6, 1999.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.
It is proposed to amend Chapter I of Title 30 of the Code of
Federal Regulations as follows:
PART 48--[AMENDED]
1. The authority citation for part 48 continues to read as follows:
Authority: 30 U.S.C. 811, 825.
2. Section 48.21 is amended by adding a new sentence to the end of
the section to read as follows:
Sec. 48.21 Scope.
* * * This part does not apply to training and retraining of miners
at shell dredging, sand, gravel, surface stone, surface clay, colloidal
phosphate, and surface limestone mines, which are covered under 30 CFR
part 46.
3. A new part 46 is added to subchapter H of Title 30 of the Code
of Federal Regulations to read as follows:
[[Page 18526]]
PART 46--TRAINING AND RETRAINING OF MINERS ENGAGED IN SHELL
DREDGING OR EMPLOYED AT SAND, GRAVEL, SURFACE STONE, SURFACE CLAY,
COLLOIDAL PHOSPHATE, OR SURFACE LIMESTONE MINES
Sec.
46.1 Scope.
46.2 Definitions.
46.3 Training plans.
46.4 Training program instruction.
46.5 New miner training.
46.6 Newly-hired experienced miner training.
46.7 New task training.
46.8 Annual refresher training.
46.9 Records of training.
46.10 Compensation for training.
46.11 Hazard training.
46.12 Responsibility for training.
Authority: 30 U.S.C. 811, 825.
Sec. 46.1 Scope.
The provisions of this part set forth the mandatory requirements
for training and retraining miners working at shell dredging, sand,
gravel, surface stone, surface clay, colloidal phosphate, or surface
limestone mines.
Sec. 46.2 Definitions.
The following definitions apply in this part:
(a) Act is the Federal Mine Safety and Health Act of 1977.
(b) Competent person is a person designated by the operator who has
the ability, training, knowledge, or experience to provide training to
miners on a particular subject. The competent person must also be able
to evaluate whether the training given to miners is effective.
(c)(1) Experienced miner is:
(i) A person who is employed as a miner on April 14, 1999;
(ii) A person who began employment as a miner after April 14, 1999
but before the effective date of the final rule and who has received
new miner training under Sec. 48.25 of this title or under proposed
requirements published April 14, 1999 which are available from the
Office of Standards, Regulations and Variances, MSHA, 4015 Wilson
Boulevard, Arlington VA 22203; or
(iii) A miner who has completed 24 hours of new miner training
under Sec. 46.5 of this part or under Sec. 48.25 of this title and who
has had at least 12 months of surface mining or equivalent experience.
(2) Once a miner is an experienced miner under this section, the
miner will retain that status permanently.
(d) Extraction or production is the mining, removal, milling,
crushing, screening, or sizing of minerals at a mine under this part.
Extraction or production also includes the associated haulage of these
materials at the mine.
(e) Hazard training is information or instructions on the hazards a
person could be exposed to while on mine property, as well as
applicable emergency procedures. These may include site-specific risks,
such as unique geologic or environmental conditions, traffic patterns,
and restricted areas; and warning and evacuation signals, emergency
procedures, or other special safety procedures.
(f) Independent contractor is any person, partnership, corporation,
subsidiary of a corporation, firm, association, or other organization
that contracts to perform services at a mine under this part.
(g) Miner is any person, including operators and supervisors, who
works at a mine under this part and who is engaged in mining operations
integral to extraction or production.
(h) New miner is a newly-hired miner who is not an experienced
miner.
(i) Normal working hours is a period of time during which a miner
is otherwise scheduled to work, including the sixth or seventh working
day if such a work schedule has been established for a sufficient
period of time to be accepted as the operator's common practice.
(j) Operator is:
(1) Any production-operator; or
(2) Any independent contractor whose employees perform services at
a mine.
(k) Production-operator is any owner, lessee, or other person who
operates, controls, or supervises a mine under this part.
(l) Task is a component of a job that is performed on a regular
basis and that requires job knowledge.
(m) We or us is the Mine Safety and Health Administration (MSHA).
(n) You is production-operators and independent contractors.
Sec. 46.3 Training plans.
(a) You must develop and implement a written plan, approved by us
under either paragraph (b) or (c) of this section, that contains
effective programs for training new miners and newly-hired experienced
miners, training miners for new tasks, annual refresher training, and
hazard training.
(b) A training plan is considered approved by us if it contains, at
a minimum, the following information:
(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.
(c) A plan that does not include the minimum information specified
in paragraphs (b)(1) through (b)(5) of this section must be approved by
the Regional Manager, Educational Field Services Division, or designee,
for the region where the mine is located. You also may voluntarily
submit a plan for Regional Manager approval. Miners and their
representatives may also request review and approval of the plan by the
Regional Manager.
(d) You must provide the miners' representative, if any, with a
copy of the plan at least 2 weeks before the plan is implemented or
submitted to the Regional Manager for approval. 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 of the miners at least 2
weeks before you implement the plan or submit it to the Regional
Manager for approval.
(e) Within 2 weeks following the 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.
(f) The Regional Manager must notify you and miners or their
representatives in writing of the approval, or status of the approval,
of the training plan within 30 days after the date on which you
submitted the training plan to us for approval.
(g) If you, miners, or miners' representatives wish to appeal a
decision of the Regional Manager, you must send the appeal, in writing,
to the Director for Educational Policy and Development, MSHA, 4015
Wilson Boulevard, Arlington, Virginia 22203, within 30 days after
notification of the Regional Manager's decision. The Director will
issue a decision within 30 days after receipt of the appeal.
(h) You must 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
[[Page 18527]]
must have the capability to provide the plan upon request by us,
miners, or their representatives.
Sec. 46.4 Training program instruction.
(a) You must ensure that each program, course of instruction, or
training session is:
(1) Conducted in accordance with the written training plan; and
(2) Presented by a competent person.
(b) You may conduct your own training programs or may arrange for
training to be conducted by: us, state, or other federal agencies;
associations of operators; miners' representatives; other operators;
contractors, consultants, manufacturers' representatives; private
associations; educational institutions; or other training providers.
(c) You may substitute equivalent training required by the
Occupational Safety and Health Administration (OSHA), or other federal
or state agencies, to meet requirements under this part, where
appropriate.
(d) Training may consist of classroom instruction, instruction at
the mine site, other innovative training methods, alternative training
technologies, or any combination.
(e) Employee safety meetings, including informal safety and health
talks and instruction, may be credited under this part toward either
new miner training, newly-hired experienced miner training, or annual
refresher training requirements, as appropriate, provided that you
document each training session in accordance with Sec. 46.9 of this
part.
Sec. 46.5 New miner training.
(a) Except as provided in paragraphs (e) and (f) of this section,
you must provide each new miner with no less than 24 hours of training
as prescribed by paragraphs (b) and (d) of this section. Miners who
have not received the full 24 hours of new miner training must work
under the close supervision of an experienced miner.
(b) You must provide each new miner with the following training
before the miner begins 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
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 plans 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.
(c) Practice under the close supervision of a competent person may
be used to fulfill the requirement for training on the health and
safety aspects of an assigned task in paragraph (b)(4) of this section,
if hazard recognition training specific to the assigned task is given
before the miner performs the task.
(d) Within 60 days after each new miner begins work, you must
provide the miner with the balance of the 24 hours of training,
including training in the following subjects:
(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;
(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.
(e) A new miner who has less than 12 months of surface mining or
equivalent experience and has completed new miner training under this
section or under Sec. 48.25 of this title within 36 months before
beginning work at the mine does not have to repeat new miner training.
However, you must provide the miner with training specified in
paragraph (b) of this section before the miner begins work.
(f) New miner training courses completed under Sec. 48.5 or
Sec. 48.25 of this title may be used to satisfy the requirements of
paragraphs (a), (b), and (d) of this section, if:
(1) The courses were completed by the miner within 36 months before
beginning work at the mine; and
(2) The courses are relevant to the subjects specified in
paragraphs (b) and (d) of this section.
Sec. 46.6 Newly-hired experienced miner training.
(a) Except as provided in paragraphs (c) and (d) of this section,
you must provide each newly-hired experienced miner with the following
training before the miner begins 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
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 plans 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.
(b) Except as provided in paragraphs (c) and (d) of this section,
within 90 days after each newly-hired experienced miner begins work,
you must provide the miner with annual refresher training under
Sec. 46.8 of this part, which 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.
(c) You must provide an experienced miner who returns to the same
mine, following an absence of 12 months or less, with training on any
changes at the mine that have occurred during the miner's absence that
could adversely affect the miner's health or safety. This training must
be given before the miner begins work. If the miner missed any part of
annual refresher training under Sec. 46.8 of this part during the
absence, you must provide the miner with the missed training within 90
days after the miner begins work.
(d) Miners who are employees of independent contractors and who
work at the mine on a short-term basis, such as drillers or blasters,
may receive either newly-hired experienced miner training at the mine
under paragraphs (b) and (c) of this section, or site-specific hazard
training at the mine under Sec. 46.11 of this part.
Sec. 46.7 New task training.
(a) 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. If changes have
occurred in a miner's regularly assigned task, you must provide the
miner with training that addresses the changes.
[[Page 18528]]
(b) Practice under the close supervision of a competent person may
be used to fulfill the requirement for task training under this
section.
(c) Task training provided under this section may be credited
toward new miner training, as appropriate.
Sec. 46.8 Annual refresher training.
(a) At least once every 12 months, you must provide each miner with
no less than 8 hours of refresher training.
(b) The refresher training must include instruction on changes at
the mine that could adversely affect the miner's health or safety, and
may include instruction on such subjects as: applicable health and
safety requirements, including mandatory health and safety standards;
transportation controls and communication systems; escape and emergency
evacuation plans, firewarning and firefighting; ground control; working
in areas of highwalls, water hazards, pits, and spoil banks;
illumination and night work; first aid; electrical hazards; prevention
of accidents; health; explosives; and respiratory devices.
Sec. 46.9 Records of training.
(a) Upon a miner's completion of each training program, you must
record and certify on MSHA Form 5000-23, or on a form that contains the
information listed in paragraph (b) of this section, that the miner has
completed the training. False certification that training was completed
is punishable under section 110(a) and (f) of the Act.
(b) The form must include:
(1) The printed full name of the person trained (first, middle,
last names);
(2) The type of training completed, the duration of the training,
the date the training was received, and the name of the competent
person who provided the training;
(3) The mine name, MSHA mine identification number, and location of
training (if an institution, the name and address of the institution).
(4) The statement, ``False certification is punishable under
section 110(a) and (f) of the Federal Mine Safety and Health Act,''
printed in bold letters and in a conspicuous manner; and
(5) A statement signed by the person designated as responsible for
health and safety training in the MSHA-approved training plan for the
mine that states, ``I certify that the above training has been
completed.''
(c) You must provide a copy of the training certificate to each
miner at the completion of each training program. When a miner leaves
your employ, you must provide each miner with a copy of his or her
training certificates upon request.
(d) You must make available at the mine site a copy of each miner's
training certificates for inspection by us and for examination by
miners and their representatives. If training certificates are not
maintained at the mine site, you must have the capability to provide
the certificates upon request by us, miners, or their representatives.
(e) You must maintain copies of training certificates and training
records for each currently employed miner during his or her employment
and for at least 12 months after a miner terminates employment.
Sec. 46.10 Compensation for training.
(a) Training must be conducted during normal working hours; persons
required to receive such training must be paid at a rate of pay that
corresponds to the rate of pay they would have received had they been
performing their normal work tasks.
(b) If training is given at a location other than the normal place
of work, persons required to receive such training must be compensated
for the additional costs, including mileage, meals, and lodging, they
may incur in attending such training sessions.
Sec. 46.11 Hazard training.
(a) You must provide site-specific hazard training to any person
who is not a miner as defined under Sec. 46.2 of this part but is
present at a mine site under this part, including:
(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.
(b) You must provide site-specific hazard training to each person
who is an employee of an independent contractor and who is working at
the mine as a miner, as defined in Sec. 46.2 of this part, unless the
miner receives newly-hired experienced miner training at the mine under
Sec. 46.6.
(c) You must provide hazard training under this section before the
affected person is exposed to mine hazards.
(d) You may provide hazard training through the use of written
hazard warnings, oral instruction, signs and posted warnings,
walkaround training, or other appropriate means.
(e) Hazard training under this section is not required for any
person who is accompanied at all times by an experienced miner who is
familiar with hazards specific to the mine site.
Sec. 46.12 Responsibility for training.
(a) Each production-operator has primary responsibility for
providing site-specific hazard training to employees of independent
contractors who are required to receive hazard training under
Sec. 46.11 of this part. Further, the production-operator must provide
information to each independent contractor who employs a person at the
mine on site-specific hazards associated with the mine site and the
obligation of the contractor to comply with our regulations, including
the requirements of this part.
(b) Each independent contractor who employs a miner, as defined in
Sec. 46.2, at the mine has primary responsibility for complying with
Secs. 46.3 through 46.10 of this part, including providing new miner
and newly-hired experienced miner training, new task training, and
annual refresher training. Further, the independent contractor must
inform the production-operator of any hazards of which the contractor
is aware that may be created by the performance of the contractor's
work at the mine.
[FR Doc. 99-8894 Filed 4-8-99; 9:52 am]
BILLING CODE 4510-43-P