[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Rules and Regulations]
[Pages 53080-53134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25273]



[[Page 53079]]

_______________________________________________________________________

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; Final Rule

  Federal Register / Vol. 64, No. 189 / Thursday, September 30, 1999 / 
Rules and Regulations  

[[Page 53080]]



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: Final rule.

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

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

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

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

SUPPLEMENTARY INFORMATION:

I. Plain Language

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

II. Paperwork Reduction Act of 1995

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

BILLING CODE 4510-43-P

[[Page 53081]]

[GRAPHIC] [TIFF OMITTED] TR30SE99.030



BILLING CODE 4510-43-C

[[Page 53082]]

III. Executive Order 12866 and Regulatory Flexibility Analysis

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

Regulatory Flexibility Certification Statement

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

Factual Basis for Certification

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

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

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

[[Page 53083]]

Compliance Costs

    MSHA estimates that the total net cost of the final 30 CFR part 46 
training requirements will be approximately $17.94 million annually, of 
which about $16.55 million will be borne by mine operations in the 
following surface nonmetal mining sectors: shell dredging, sand, 
gravel, stone, clay, colloidal phosphate, and limestone.1 
Since fiscal year 1980, Congress has prohibited MSHA from enforcing 
existing MSHA health and safety training regulations in 30 CFR part 48 
at mines (``exempt mines'') in these sectors of the surface nonmetal 
mining industry. The exempt mines that are not currently in compliance 
with the existing part 48 training requirements will incur costs of 
approximately $17.43 million annually to comply with the final rule, 
while those currently in compliance with the existing part 48 training 
requirements will derive net savings of approximately $0.89 million 
annually.
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    \1\ The remaining $1.39 million in costs associated with the 
final rule will be borne primarily by non-miners who receive hazard 
awareness training, or by their empolyers.
---------------------------------------------------------------------------

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

    \2\ The net savings consist of $1.18 million in compliance costs 
and $2.07 million in savings. The $2.07 million in savings arise 
from paragraph (e) of $46.4, which allows all documented employee 
safety meetings, regardless of duration, to be credited toward 
training requirements. (Under the existing part 48 training 
requirements, employee safety meetings lasting less than 30 minutes 
may not be credited toward training requirements.) For details about 
these savings, see Table IV-32 and the text that precedes it.
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    Table IV-1 from the REA summarizes MSHA's estimate of the yearly 
costs of the final rule by mine size and by provision. These costs 
reflect first year costs of $18,140,889 and second year costs of 
$17,694,277.

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

Benefits

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

[[Page 53084]]

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

IV. Unfunded Mandates Reform Act of 1995

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

Background

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

Analysis

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

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

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

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

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

VII. Executive Order 12612: Federalism

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

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

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

IX. Executive Order 12875: Enhancing the Intergovernmental 
Partnership

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

[[Page 53085]]

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

X. Executive Order 12988: Civil Justice Reform

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

XI. Statutory and Rulemaking Background

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

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

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

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

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

XII. General Discussion

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

[[Page 53086]]

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

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

XIII. Discussion of the Final Rule

A. Statutory Requirements

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

[[Page 53087]]

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

B. Summary of the Final Rule

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

C. Effective Date

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

[[Page 53088]]

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

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

D. Implementation of the Final Rule

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

[[Page 53089]]

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

E. Section-by-Section Discussion

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

Section 46.1  Scope

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

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

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

[[Page 53090]]

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

[[Page 53091]]

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

----------------------------------------------------------------------------------------------------------------
                        Part 48                                                  Part 46
----------------------------------------------------------------------------------------------------------------
                       DEFINITION
 
 48.22(a)(1)(i) This definition of miners does not       46.2 The definition of miner includes any construction
 include construction workers..                           worker who is exposed to hazards of mining operations.
 
                  RECORDS OF TRAINING
 
(a) Upon a miner's completion of each MSHA approved      (a) You must record and certify on MSHA Form 5000-23,
 training program, the operator must record and certify   or on a form that contains the information listed in
 on MSHA Form 5000-23 that the miner has received the     Sec.  46.9(b), that each miner has received training
 specified training.                                      required under this part.
N/A....................................................  (b)(5) The record must include a statement signed by
                                                          the person designated in the MSHA-approved training
                                                          plan for the mine as responsible for health and safety
                                                          training, that states ``I certify that the above
                                                          training has been completed.''
(c) Copies of training certificates for currently        (h) You must maintain copies of training certificates
 employed miners must be kept at the mine site for 2      and training records for each currently employed miner
 years, or for 60 days after termination of employment.   during his or her employment, except records and
                                                          certificates of annual refresher training under Sec.
                                                          46.8, which you must maintain for only two years. You
                                                          must maintain copies of training certificates and
                                                          training records for at least 60 calendar days after a
                                                          miner terminates employment.
----------------------------------------------------------------------------------------------------------------

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

Section 46.2  Definitions

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

[[Page 53092]]

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

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

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

[[Page 53093]]

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

[[Page 53094]]

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

[[Page 53095]]

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

[[Page 53096]]

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

[[Page 53097]]

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

Section 46.3  Training Plans

    Section 46.3 of the final rule requires production-operators and 
independent contractors to develop and implement a training plan and 
also addresses MSHA approval of training plans, how and where a copy of 
the training plan must be maintained, and who has access to the plan. 
The requirements of section 46.3 apply to production-operators and 
those independent contractors who have employees who fit the definition 
of ``miner'' under final Sec. 46.2. These requirements have been 
adopted, with some changes, from the proposed rule.
    In developing the final rule, we have attempted to develop 
practical requirements for health and safety training programs at the 
wide range of mines covered by part 46. Section 115 of the Mine Act 
provides that mine operators shall have a health and safety training 
program that shall be ``approved by the Secretary [of Labor].'' The 
Mine Act does not set forth a specific method by which we must approve 
an operator's health and safety training plan. We believe, therefore, 
that the drafters of the Mine Act intended some flexibility concerning 
the procedures to be followed by us when implementing MSHA approval of 
health and safety training plans. We are also mindful that regulatory 
considerations under section 115 of the Mine Act must be balanced with 
the congressional intent expressed in section 103(e) of the Mine Act. 
This provision directs us not to impose an unreasonable burden on mine 
operators, especially those operating small businesses, when requesting 
information consistent with the underlying purposes of the Act. As a 
result, we believe that the Mine Act provides us with the discretion to 
approve health and safety programs by requiring something other than 
the operator's submission to us of a proposed training plan.
    While not establishing specific procedures to be followed, Congress 
did provide minimum requirements in section 115 of the Mine Act to 
guide us in determining what should be considered an approved health 
and safety training program. First, we interpret section 115(a) of the 
Act to require that each operator develop and implement an approved 
health and safety training program under which miners are provided 
certain minimum training as specified by section 115. For example, 
section 115 provides that ``new miners having no surface mining 
experience shall receive no less than 24 hours of training if they are 
to work on the surface'' and that any training must be provided 
``during normal working hours.'' As a result, an operator's training 
program can only be approved if the proposed training fulfills the 
operator's compliance obligations under section 115 of the Act. In 
addition, we believe that in order for an operator's training program 
to be approved, it must be in compliance with any minimum requirements 
established in training standards developed by us in accordance with 
section 115 of the Act. Accordingly, we believe the Mine Act provides 
us with the authority to include a requirement in the part 46 final 
rule that would consider an operator's health and safety training plan 
to be approved by MSHA without formal submission and review, provided 
such a plan comports with the minimum requirements of section 115 of 
the Mine Act as well as the provisions for approved plans set forth in 
this section of the final rule.
    Once the final rule goes into effect, we intend to have our 
inspectors review your health and safety training plans at the mine 
site during the normal inspection cycle. This will be accomplished in a 
manner similar to how our inspectors review other mine-specific plans 
for compliance. Inspectors and other MSHA personnel who review your 
plan would simply determine--
    (1) That you in fact have developed a written training plan;
    (2) That the written plan contains at a minimum the information 
specified in this section; and
    (3) That the plan is being implemented consistent with the plan 
specifications.
    Although final Sec. 46.3 allows you greater flexibility in training 
plan content and implementation, MSHA has determined that the new 
requirements do not reduce the protection afforded to

[[Page 53098]]

surface nonmetal miners under similar standards in existing part 48. 
While the means used under part 46 may be more flexible and 
performance-oriented than part 48, the ultimate result--the effective 
health and safety training of surface nonmetal miners--will be attained 
under the new standard. In addition, because miners are in a good 
position to evaluate the health and safety concerns at their workplace, 
the final rule includes requirements that provide for the notification 
and involvement of miners and their representatives in the development 
of approved training plans before implementation. We also wish to 
emphasize the enhanced health and safety benefits to miners resulting 
from final Sec. 46.3, which will allow us to focus our resources on 
verification of plan execution and assistance to you in providing 
effective training at your mines, rather than on a paper review and 
approval of training plans at our offices. Likewise, you and training 
providers can focus on the development of training plans that address 
the health and safety concerns at your operation, rather than on 
traditional procedures to gain our approval.
    Final Sec. 46.3(a) requires production-operators and independent 
contractors who have employees who are ``miners'' under the final rule 
to develop and implement a written plan, approved by us under either 
paragraph (b) or (c) of final Sec. 46.3, that contains effective 
programs for training new miners and newly hired experienced miners, 
training miners for new tasks, annual refresher training, and site-
specific hazard awareness training. We received few comments on this 
aspect of the proposal, and we have adopted this provision unchanged 
into the final rule.
    Final Sec. 46.3(b) provides that a training plan is considered 
approved by us if it contains--
    (1) The name of the production-operator or independent contractor, 
mine name(s), and MSHA mine identification number(s) or independent 
contractor identification number(s);
    (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 production-operator or independent contractor;
    (3) A general description of the teaching methods and the course 
materials that are to be used in each training program, including the 
subject areas to be covered and the approximate time to be spent on 
each subject area;
    (4) A list of the persons and/or organizations who will provide the 
training, and the subject areas in which each person and/or 
organization is competent to instruct; and
    (5) The evaluation procedures used to determine the effectiveness 
of training.
    Plans that include the information listed in this section are 
considered ``approved,'' and you are not required to submit the plan to 
us for traditional review and approval. The required information is 
virtually the same information that would have been required by the 
proposal, with a few minor changes, explained below.
    A number of commenters supported the proposed guidelines for plan 
content, emphasizing the wide variety in size and type of mining 
operations falling under part 46 requirements. These commenters stated 
that the most effective training plans are those that can be tailored 
to the particular operation, directed toward specific mine processes or 
hazards or on the accident and injury experience at the mine. These 
commenters favored the latitude that the proposed rule would give 
production-operators and independent contractors in developing training 
programs.
    A number of commenters addressed the minimum information that the 
proposal would require in the operator's written training plan. One 
commenter believed that it was unnecessary for the training plan to 
specify the approximate time that would be spent on a particular 
subject and recommended that the final rule not require it. This 
commenter contended that the time spent on a particular topic is unique 
to the persons attending a specific training session, because different 
groups learn at different rates.
    Commenters questioned the need for the plan to include the name of 
the persons providing the training and the subjects in which they are 
competent to instruct. These commenters recommended that the final rule 
not require this information. Other commenters contended that requiring 
instructors to be identified suggests that all training under part 46 
must be provided in a classroom setting and recommended that the final 
rule clarify that operators can use alternative and innovative training 
methods as well as classroom training.
    As stated in the preamble to the proposal, our intention is that 
the information that operators must include in their training plans 
will be sufficient to allow us to make a determination of your 
compliance with training plan requirements, without imposing an 
unnecessary paperwork or recordkeeping burden. Additionally, the 
training plan serves as an essential framework for the operator's 
training programs. We expect that operators will direct adequate time 
and resources to the development of their training plans. We intend 
that the flexible written plan requirements in the final rule will 
allow operators to devote the time saved from the reduction in 
administrative burden to be directed towards development of their 
training programs. Although part 46 gives operators flexibility in 
designing their training programs and attempts to minimize paperwork 
burdens, we do not intend that part 46 allow operators to deliver 
training to miners on an ad hoc basis. Although we strongly encourage 
operators to tailor their training programs to the needs of their 
particular operations, this does not mean that we advocate that 
operators change fundamental components of their miner training 
programs from one day to the next, at their convenience.
    We do not believe that it is unduly burdensome to require operators 
to indicate the approximate amount of time that will be spent on a 
particular subject area. As a practical matter, operators must 
determine how much time will be spent on a particular subject as part 
of the development of an effective training program. We would point out 
that the final rule, like the proposal, requires that the 
``approximate'' amount of time spent on a particular subject be 
included in the training plan. This provides operators with some leeway 
in organizing their training and also addresses the concern of one 
commenter that different groups learn at different rates of speed. For 
example, if an annual refresher training program includes a course in 
traffic hazards, the training plan could indicate that the course will 
last over a specified range of time, such as from one to two hours. For 
the same reasons, requiring a list of competent persons who will 
provide training is not unreasonably limiting. It would be acceptable 
under the final rule for the operator to include names of all potential 
instructors in a particular subject, even though the course will 
ultimately be taught by only one of the instructors listed. Further, we 
disagree with commenters who contend that requiring a list of 
instructors suggests that training must be conducted in a classroom 
setting. In fact, final Sec. 46.4(d) specifically provides that 
training methods may consist of classroom instruction, instruction at 
the mine, interactive computer technology or any other innovative 
training methods, alternative training technologies, or any combination 
of methods. Additionally, we believe that the final rule's requirements 
are sufficiently flexible to allow operators to

[[Page 53099]]

readily address new or emerging health and safety concerns at their 
operations. For these reasons, we have not adopted these commenters' 
recommendations in the final rule.
    Several commenters expressed concern that several of the 
informational requirements in Sec. 46.3(b) were inappropriate and too 
restrictive for new task training and site-specific hazard awareness 
training. Some of these commenters indicated that it was unrealistic to 
require an operator to foresee all of the types of task and hazard 
awareness training that may be needed for all job categories and to 
write them up in the plan. One commenter stated that an operator needs 
the flexibility to offer such training by the most qualified person 
available at the time the training is to be conducted, and that 
requiring an operator to indicate the identity of the competent person 
who will provide this training in the plan will restrict this 
flexibility. These commenters also contended that evaluation of 
training effectiveness, particularly hazard awareness training for 
vendors and visitors, would be difficult to accomplish without the 
needed flexibility. These commenters therefore recommended that the 
required documentation of site-specific hazard awareness training and 
new task training be limited to a statement of the training objectives 
and the method of instruction.
    We disagree that the plan information included in the proposed rule 
and adopted into the final rule is unduly restrictive for new task and 
hazard awareness training. As discussed above, it would be acceptable 
for an operator to include a list of potential instructors for a 
particular subject in the training plan, even though only one of the 
instructors will actually end up providing the training. Additionally, 
most operations covered by the final rule are small and typically 
operate with limited equipment, and the number of new tasks miners at 
these mines will be assigned is also limited. Including a list of these 
tasks in the training plan would not impose an unreasonable burden on 
production-operators and independent contractors at many mines. As 
mentioned above, the plan could identify several potential instructors 
for training in a particular task. Similarly, the plan could summarize 
the site-specific hazard awareness training that will be given based on 
the type of worker who will receive it. For example, the type of hazard 
awareness training given to independent contractors who are at the mine 
site to repair mining equipment would most likely differ in scope and 
content from the training given to truck drivers who come onto the mine 
site for brief periods to deliver supplies. The plan should provide a 
description of the training that will be given to different categories 
of workers. We believe that the final rule language affords operators 
adequate flexibility with regard to task and site-specific hazard 
awareness training. Consequently, we have not adopted the 
recommendation of these commenters that the final rule reduce the plan 
information requirements for these types of training.
    One commenter pointed out that if an operator arranges with an 
outside organization to provide some or all of the required training, 
the operator probably will not know the names of the instructors from 
the training organization who will provide the training. For these 
reasons, this commenter asserted, it would not be possible for the 
operator to indicate the names of the instructors in the training plan. 
We agree that in such situations production-operators or independent 
contractors will be unable to indicate the specific instructors who 
will provide training. We also agree that it is appropriate to allow 
flexibility in these cases. The final rule therefore provides that the 
plan may indicate the person or organization that will provide the 
training, as appropriate. This means, for example, if a production-
operator or independent contractor arranges for some portion of part 46 
training to be provided by XYZ Training Company, the plan may simply 
indicate that an instructor from that company will provide training in 
specified areas. You should be aware, however, that final Sec. 46.9 
requires that the training records and certificates for this training 
indicate the name of the person who provided the training. Obviously, 
the identity of the instructor will be known at the time that the 
training is provided, and recording this information should present no 
problem to the production-operator or independent contractor.
    One other commenter questioned the use of certain terms in the 
proposal, and asked whether there was a difference between a training 
``plan'' and a training ``program.'' This commenter observed that the 
proposal provided that the training plan must cover five different 
programs--(1) New miner training; (2) newly hired experienced miner 
training; (3) annual refresher training; (4) new task training; and (5) 
site-specific hazard awareness training. Each training program is in 
turn made up of one or more courses, with each course covering a 
subject area. This commenter suggested that if his observation is 
correct, then the information in paragraphs (b)(1) through (b)(5) 
should be required for each training ``program,'' not each training 
``plan.''
    This commenter's understanding of the scheme of the plan 
requirements is correct. In response to this comment, we have made a 
minor change in paragraph (b)(3). The final rule requires that the plan 
include a general description of the teaching methods and the course 
materials that are to be used in each ``training program.'' If the 
operator is using the same teaching methods and course materials for 
all programs, the operator need not describe each individually but may 
simply state that methods and materials will be used for all programs. 
The proposal would simply have required that this description be 
provided for methods and materials used in ``providing the training.''
    We have also made small clarifications in final Sec. 46.3(b)(1). 
Instead of requiring the ``company'' name, as under the proposal, the 
final rule requires the ``name of the production-operator or 
independent contractor.'' This paragraph now also references the MSHA 
independent contractor identification number in addition to the MSHA 
mine identification number. This is intended to be consistent with the 
fact that both production-operators and independent contractors with 
employees who are miners under the final rule are responsible for 
developing training plans for their employees. Section 46.3(b)(1) also 
indicates that there may be multiple mine names and MSHA identification 
numbers indicated on a plan. This may be true in cases where a 
production-operator operates several mines and has one training plan 
that covers all of the mines. Additionally, independent contractors 
typically provide services at multiple mines, and the language of the 
final rule addresses those instances where a training plan is relevant 
for more than one mine.
    The final rule, like the proposal, requires you to list or describe 
the evaluation procedures that you will use to determine the 
effectiveness of training. Evaluation of the effectiveness of training 
must be an integral part of the training process if accidents, 
injuries, and deaths resulting from unsafe conditions and work 
practices are to be reduced. We have retained a performance-oriented 
approach that allows you to select the method that you will use to 
determine that training has been effective. Possible evaluation methods 
include administering written or oral tests to miners, or a 
demonstration by a miner that he or she can perform all required duties 
or tasks

[[Page 53100]]

in a safe and healthful manner. You could also evaluate work practices 
to ensure that the miner retains and uses the skills, knowledge and 
ability to perform his or her duties safely. This evaluation could be 
accomplished by periodic work observations to identify areas where 
additional training may be needed. In addition, such observations, 
along with feedback from miners, could be used to modify and enhance 
the training program.
    The final rule, like the proposal, uses the term ``effective 
programs'' to deal with instances where a training plan, as 
implemented, is inadequate or deficient. If we determine that you have 
not implemented an effective training program, we will issue a citation 
for a violation of Sec. 46.3(a) that indicates how and why the training 
program fails to meet this requirement. In cases where the plan as 
designed falls short in some way, you must revise your plan to address 
the deficiencies that we have identified to abate the violation. In 
cases where the plan as designed is adequate but the plan is 
inadequately implemented, you must take steps to improve the quality of 
the implementation of the plan. In some cases, you may need both to 
revise your plan and address inadequacies in implementation. For 
example, if you have designated an individual as a ``competent person'' 
who in fact is incompetent to instruct, you must designate someone else 
to provide training as well as revise your plan to include the new 
competent person.
    Under final section 46.3(a), production-operators and independent 
contractors are responsible for maintaining an effective training plan 
at all times at their operation. As a result, it will be necessary for 
production-operators and independent contractors to monitor the 
implementation of training plans to determine whether it is effective 
and therefore in compliance with section 46.3(a) of the standard. We 
expect production-operators and independent contractors to modify 
ineffective or deficient segments of their training plan in order to 
bring them into compliance.
    The final rule reflects our determination that, while our review of 
your written training plan could provide an initial check on the 
quality of the written program, such review does not ensure that the 
program is successful in its implementation. This is the same approach 
taken in the proposal and was the subject of a number of comments. A 
number of commenters favored the implicit approval of a training plan 
that meets the minimum requirements in the rule, believing that this 
approach would allow operators to direct the time saved from the 
streamlined administrative process towards better plans and plan 
implementation. On the other hand, some commenters recommended that we 
maintain oversight of training plans through the plan submission and 
review process, to ensure that plans meet minimum standards of quality.
    The final rule adopts the approach taken in the proposal, and 
provides that a training plan is considered approved by us if it 
includes the minimum information specified in this section. This 
reflects our conclusion that it is not necessary for production-
operators and independent contractors to formally submit their training 
plans to us to achieve the protective purposes of the Mine Act. We 
believe that a training program can be effective if the operator 
develops and implements a health and safety training plan consistent 
with the requirements for an approved plan under this final rule. As we 
have indicated elsewhere in this preamble, we will provide compliance 
assistance to operators in developing effective training plans as our 
resources permit and will develop sample training plans that operators 
can use as the basis for their own mine-specific plans. Additionally, 
we will direct our resources toward verification of the effectiveness 
of training plans in their implementation. Similarly, operators and 
training instructors will be able to focus on the development and 
administration of training plans tailored specifically to mine 
operators' needs rather than on traditional procedures to gain our 
approval.
    The final rule adopts the proposed rule's alternate process for 
plan approval, for those cases where a plan you develop does not 
include the minimum required information, where you choose to obtain 
traditional approval, or where the miners or miners' representative 
requests such approval. Final Sec. 46.3(c) provides that a plan that 
does not include the minimum information listed in paragraphs (b)(1) 
through (b)(5) must be submitted for review and approval 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 MSHA's Directorate of Educational Policy and 
Development (EPD). The EFS Division is divided into an Eastern and a 
Western region. In response to requests from the mining community, the 
responsibility for the approval of training plans was moved from 
District Managers in Coal and Metal and Nonmetal Mine Safety and Health 
to the EFS Regional managers or their designees in 1997. Paragraph (k) 
of this section includes the titles, postal and e-mail addresses, and 
facsimile and telephone numbers of both EFS Managers.
    We anticipate that the majority of plans developed under this part 
will satisfy the requirements of paragraph (b) and consequently will 
not be required to be submitted to us for traditional approval. 
However, final Sec. 46.3(c) allows you to voluntarily submit a training 
plan for Regional Manager approval. We expect 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. This 
aspect of the final rule addresses those concerns. Only a few 
commenters addressed this aspect of the proposal, and these commenters 
were generally supportive of it. One commenter endorsed voluntary 
submission of training plans to us and predicted that it would be used 
by many mine operators.
    Final Sec. 46.3(c), like the proposal, also allows miners and their 
representatives to request our traditional approval if they choose. 
Several commenters were opposed to this provision, contending that it 
was unnecessary and potentially burdensome and could be subject to 
abuse. One commenter was concerned that a single request from a miner 
or a miners' representative could trigger our traditional review of a 
plan. This commenter maintained that miners and their representatives 
have direct and effective recourse if they believe a training plan is 
inadequate--they can contact us and request that the plan be reviewed 
by an MSHA inspector. This commenter was of the opinion that the 
possibility that the inspector may cite the operator for an inadequate 
plan is a strong incentive for compliance, and that it was therefore 
unnecessary to give miners the right to request MSHA review of a 
training plan.
    We disagree with those commenters who believe that miners' 
participation in the plan development and approval process is 
unnecessary. The Mine Act explicitly recognizes that miners have an 
important role in assisting mine operators in preventing unsafe and 
unhealthful conditions and practices in the nation's mines. The final 
rule appropriately allows miners and their representatives the right to 
request MSHA review of operators' training plans within two weeks of 
receiving the proposed plan from the mine operator in accordance with 
paragraph (e). The final rule clarifies the intent of the proposal that 
miners and their

[[Page 53101]]

representatives must request MSHA approval within the two-week period 
allowed for their review. The proposal was silent on when miners and 
their representatives must request MSHA approval, and the final rule 
addresses this omission.
    Contrary to the assertions of some commenters, we believe that 
miners should have a role in the process before the plan is 
implemented. We encourage operators to involve the miners at their 
mines as much as possible in the plan development process and solicit 
miners' input in determining the subject areas to be covered and 
emphasized in the various training programs.
    In most cases, we anticipate that miners and their representatives 
will bring concerns they may have about the training plan to your 
attention and that any concerns that miners or their representatives 
have will be resolved informally. However, there may be occasions when 
attempts at informal resolution of issues raised by miners or their 
representatives are unsuccessful. For these reasons, the final rule 
provides a mechanism for our direct involvement to resolve issues or 
concerns on the part of the miners or their representatives that cannot 
be resolved informally.
    The proposed rule provided miners and their representatives the 
right to request MSHA review of operators' training plans. However, 
commenters questioned how an operator would know that miners or their 
representatives had requested MSHA review of the operator's plan or, 
conversely, how miners and their representatives would know if the 
operator requested MSHA review. The proposed rule was silent on these 
issues. To address these concerns, we have included additional 
notification requirements in the final rule. The final rule requires 
miners or their representatives to notify the production-operator or 
independent contractor when they request our approval of the training 
plan. In addition, the final rule also requires you to notify the 
miners or miners' representative when you request our approval of your 
training plan. The final rule does not specify how this notice must be 
given. We expect that, in most cases, the party requesting MSHA 
approval will provide a copy of the request to the operator or the 
miners' representative, as appropriate. Where an operator requests MSHA 
approval and there is no designated miners' representative, posting of 
the request on the mine bulletin board would satisfy this requirement. 
These provisions will ensure that affected parties are informed when a 
training plan is submitted to MSHA for review and approval.
    Section 46.3(d) of the final rule, like the proposal, requires you 
to furnish the miners' representative, if any, with a copy of the 
training plan at least two weeks before the plan will be implemented 
or, if you request MSHA approval of your plan, at least two weeks 
before you submit the plan to the EFS Regional Manager for approval. 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 will be implemented or 
submitted to the Regional Manager for approval. This ensures that 
miners and their representatives are notified of the contents of your 
training plan before the plan goes into effect or is submitted to us 
for approval. This also provides them with an opportunity to comment on 
the proposed plan and suggest additions or improvements. This aspect of 
the proposal received little comment and has been adopted without 
change into the final rule.
    We recognize that at many mines, particularly small operations, 
there may be no miners' representative, and the mine may also lack a 
mine office and therefore have no appropriate place for posting the 
plan. Therefore, the final rule, like the proposal, allows an 
alternative method for notifying miners of proposed training plan 
contents. Under the final rule, operators may provide a copy of the 
plan to each miner in lieu of posting.
    Final Sec. 46.6(e) gives miners and their representatives two weeks 
after the posting or receipt of the proposed 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 provision has been adopted 
unchanged from the proposal. This will 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. This aspect 
of the proposal received little comment. Although some commenters 
questioned allowing miners and their representatives to request MSHA 
review and approval of an operator's training plan, no commenters took 
issue with giving miners and their representatives the opportunity to 
comment on a plan.
    Final Sec. 46.3(f) provides that 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 of 
receipt of a training plan submitted to us for approval, or 30 days 
from the receipt of the request by the miner or miners' representative 
that we review and approve the plan. This requirement has been adopted 
with minor changes from the proposal and ensures that affected parties 
are notified of the status of our review of the training plan.
    This aspect of the proposal received little comment. The proposed 
rule did not specify that the 30-day notification requirement would be 
triggered by a request by miners or their representatives for our 
review and approval of the plan, but the final rule clarifies this 
point. Additionally, the proposed rule would have provided that the 
notice be given within 30 days of the plan submission by the operator 
or the request for approval by miners or their representatives. We have 
modified the final rule slightly from the proposal to provide that the 
30 day time period will begin to run upon our receipt of the submission 
or request. This small change will make it easier for us to track and 
fulfill this notification requirement.
    As indicated earlier in this preamble, we anticipate that many of 
you will not seek our traditional 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 approval of a plan, 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. The 
notice will also provide parties with a reasonable opportunity to 
express their views or offer solutions to the problem, without the need 
for detailed procedures.
    A few commenters raised the issue of whether an operator could go 
ahead and implement a proposed plan pending formal approval by MSHA, in 
cases where the plan includes the minimum information required by 
Sec. 46.3(b). These commenters maintained that an operator should not 
have to delay implementation of safety-related changes while a plan is 
undergoing review. One commenter also questioned whether a plan would 
be deemed approved if the 30-day deadline has passed and we have not 
made a final decision on approval.
    Although we agree with commenters that improvements in training 
plans should be implemented as quickly as possible, we do not agree 
that the final rule should allow operators to implement plans that are 
before us for review and approval but that we have

[[Page 53102]]

not yet approved. To allow pre-approval implementation could make the 
approval process meaningless. In addition, such a provision would be 
inconsistent with the approval procedures contained in other MSHA 
regulations. Miners or miners' representatives who submit comments will 
expect MSHA to act on their concerns in the same manner that we do in 
other regulations. In other regulations a plan does not go into effect 
until we approve it. We assume that operators who are anxious to 
implement improved training plans would not seek our traditional review 
and approval of the plan in the first place, so this would not be an 
issue. Consequently, the situation referred to by commenters would most 
likely arise where the miner or miners' representative has requested 
our review and approval of the plan. We expect that a miner or miners' 
representative will request our review and approval because there is 
some concern or disagreement about one or more elements of the plan and 
the adequacy or effectiveness of the plan as proposed. In such cases, 
we believe that we should address the concerns or resolve the 
disagreement before the operator implements the plan. Similarly, we are 
not in favor of a provision that would deem a plan ``approved'' after a 
certain period of time has passed. Such a provision could mean that the 
concerns of miners or their representatives would not be addressed or 
considered through no fault of their own. We believe that this would be 
an unfair result, and we have not adopted such a provision in the final 
rule. We will direct our resources to ensure that we review the plans 
before us for approval as quickly as possible. We are committed to 
expeditious review, approval, and implementation of operators' training 
plans. For these reasons, the final rule does not allow plans to be 
implemented that are before us for review but that we have not yet 
approved.
    The requirements of Sec. 46.3(g) are new to the final rule, and we 
have included them in response to comments. This new paragraph (g) will 
only apply if you submit a plan to MSHA for approval. Under this 
paragraph, you must provide the miners' representative, if any, with a 
copy of the approved plan within one week after 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 of the plan to each 
miner within one week after approval. This responds to commenters who 
were concerned that the proposed rule did not specifically provide that 
operators must provide miners or their representatives with copies of 
the approved training plan.
    Section 46.3(h) of the final rule, like the proposal, provides you, 
miners, and miners' representatives the right to appeal the EFS 
Regional Manager's decision on a training plan to the Director for 
Educational Policy and Development. 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 final rule 
provides parties the option of seeking review by the Director for EPD 
of the Regional Manager's decision on a plan. 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 receipt of the appeal to reach a decision. This aspect of 
the proposal received little comment and is adopted without change into 
the final rule.
    Final Sec. 46.3(i), like the proposal, requires 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. Although the proposed rule 
was silent as to how quickly you must provide the plan upon request, 
the final rule specifies that the plan must be provided within one 
business day of the request. Under the final rule, you 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 
within one business day.
    Many commenters supported allowing the training plan to be 
maintained at a location away from the mine, observing that many small 
mines do not have a formal office. Commenters stated that flexibility 
in recordkeeping for these mines was appropriate. However, a few 
commenters recommended that a copy of the plan be kept at the mine 
site, even if it is in the glove compartment of the supervisor's truck. 
As indicated in the preamble discussion of final Sec. 46.9, addressing 
recordkeeping requirements, we recognize that many operations covered 
by the final rule do not have facilities suitable for extensive 
recordkeeping. Additionally, Sec. 103(e) of the Mine Act directs the 
Secretary of Labor not to impose an unreasonable burden on mine 
operators, especially those operating small businesses, when requesting 
information consistent with the underlying purposes of the Act. For 
these reasons, we have concluded that it is appropriate to allow mine 
operators some flexibility in maintaining their training plans. The 
final rule, like the proposal, allows you to maintain your training 
plan at a location other than at the mine site, provided that you can 
produce a copy upon request by us or miners or their representatives. 
Unlike the proposal, the final rule includes a deadline of one business 
day after the request for you to provide a copy of the plan. In the 
proposal, we solicited comments on whether the final rule should 
specify a deadline for an operator to produce a plan after a request 
has been made. A number of commenters recommended a deadline of one 
business day. We agree with these commenters that this would be 
reasonable, given the wide availability of overnight mail, electronic 
mail, and fax machines, and we have adopted this deadline in the final 
rule.
    The requirements of Sec. 46.3(j) have been added to the final rule 
in response to comments. Under this paragraph, you must follow the plan 
approval procedures of this section whenever you revise your training 
plan. In the preamble to the proposal, we indicated our intent that a 
training plan that underwent significant revisions would be required to 
go through the approval process of this section, just as though it was 
a new plan. However, the proposed rule did not include language that 
would have required this. A number of commenters strongly recommended 
that we include a provision in the final rule that addressed this.
    Several commenters questioned what the process should be when 
operators revise their training plans. One commenter indicated that 
obtaining formal MSHA approval every time a training plan is amended is 
a tedious task that in no way relates to protecting workers. Other 
commenters recommended that operators be allowed to easily revise the 
plan when changing information such as the time spent on

[[Page 53103]]

a particular subject or on the emphasis given to particular training 
subjects. These commenters indicated that refresher training needs to 
be flexible as operators determine the subjects that need to be 
emphasized within the workforce, and that the training plan should not 
have to be changed each time such adjustments are made. Other 
commenters questioned whether adding a new subject to the task training 
program would necessitate a modification of the training plan and 
reposting the plan or resubmitting the plan to MSHA for reapproval.
    We agree with those commenters who believe that it would be unduly 
burdensome to require operators to obtain traditional MSHA approval of 
their training plans even when they make minor revisions to their 
training plan. We attempted to develop a reasonable definition of 
``significant revision,'' so that it would be clear what type of 
revisions would require an operator to go through the approval process. 
However, we concluded that what constitutes a ``significant revision'' 
is extremely subjective and incapable of definition. For example, many 
people would probably not consider the addition or deletion of one or 
two training subjects from a training program to be a significant 
revision of the plan. However, in limited cases, particular subjects 
may be of concern to miners at the mine, and the miners may consider 
minor changes to the subjects covered by a plan significant. Changes in 
training methods or course materials may be of little consequence in 
most situations. On the other hand, a change from primarily classroom 
training to interactive computer-based training could be considered a 
significant change by the miners who will be receiving the training, 
and they should be notified of this change and have the opportunity to 
provide input. Because one type of revision may be significant in one 
set of circumstances but not particularly significant in another 
situation, we are reluctant to define ``significant revision'' in the 
final rule. We are concerned that if the final rule were to define the 
term, there may be instances where a change may not fall within the 
definition, but nonetheless is something that miners or their 
representatives would want to be notified of and have the opportunity 
to comment on. For these reasons, the final rule requires you to follow 
the procedures for approval in Sec. 46.3 whenever you make a revision 
to your training plan, including posting or providing copies of the 
proposed plan to miners, or submitting the plan to us for review and 
approval.
    We anticipate that operators who make minor revisions to their 
plans will follow the informal plan approval procedures in final 
Sec. 46.3(b) rather than request our traditional approval under 
Sec. 46.3(c), even if we have formally approved previous versions of 
your training plan. Obtaining traditional MSHA approval of your plan 
does not lock you into the traditional approval procedures hereafter. 
We expect that when you make minor changes to your plan miners or their 
representatives will have limited comments on the revisions. However, 
this process will ensure that miners are notified of plan changes that 
may appear unimportant, but that represent significant changes to the 
miners who are trained under the plan.
    The provisions of final Sec. 46.3(k) are new to the final rule and 
include the postal and e-mail addresses, phone numbers, and fax numbers 
of the Eastern and Western Regional Managers for our Educational Field 
Services Division. The information is included in the final rule as a 
convenience to mine operators, miners, and miners' representatives who 
wish to contact EFS representatives, submit training plans to those 
offices for review and approval, or obtain information or assistance 
from MSHA on miner training issues. We have also provided the address 
of MSHA's Internet Home Page to allow those of you with access to the 
Internet to obtain current information about the EFS organization.
    In the preamble to the proposal, we requested comment on whether we 
should include sample training plans as a nonmandatory appendix to the 
final rule. As indicated under the discussion in this preamble on 
implementation of the final rule, we have concluded that placing sample 
training plans in a regulatory appendix could restrict our flexibility 
in making future refinements and improvements to the sample plans. 
Instead, we will provide operators with sample plans as part of an 
overall compliance assistance and outreach effort for the mining 
community. To assist the mining community in complying with the 
training plan requirements in the final rule, we will post sample plans 
on our Internet Home Page at www.msha.gov. These plans can serve as the 
basis for operators' training plans tailored to their specific 
operations. Additionally, we are currently developing an interactive 
computer-based program that will assist operators in developing 
training plans appropriate for their specific operations.

Section 46.4  Training Plan Implementation

    Section 46.4 of the final rule, which has been adopted with minor 
changes from the proposal, requires that training given under this part 
be consistent with the written training plan required under Sec. 46.3 
and be presented by a competent person. Under this section, training 
may be provided by outside instructors and may include the use of 
innovative training methods. This section also allows credit for 
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, Sec. 46.4 
permits short health and safety talks and other informal instruction to 
satisfy training requirements under this part.
    Although Sec. 46.4 of the final rule will allow operators greater 
flexibility in training instruction and implementation, MSHA has 
determined that the new requirements will not reduce the protection 
afforded to surface nonmetal miners under similar standards in existing 
part 48. The flexibility included within final Sec. 46.4, permitting 
the option of presenting training in short durations and in various 
formats, will allow miners to more easily retain information and 
receive effective training in close proximity to their work and 
associated hazards. Additional health and safety benefits will result 
from the specific requirement in final Sec. 46.4(a)(3), which provides 
that training must be presented in language understood by the miners 
who are receiving the training.
    This section was originally entitled ``Training Program 
Instruction.'' However, one commenter, who supported our use of plain 
language in the proposal, suggested that a clearer and more appropriate 
title for this section would be ``Training Plan Implementation,'' given 
that this section addresses various aspects of plan implementation. We 
agree that suggested title is more descriptive and makes the final rule 
easier to understand, and we have adopted the commenter's suggestion in 
the final rule.
    Section 46.4(a)(1) of the final rule, like the proposal, requires 
that training provided under part 46 be conducted in accordance with 
the written training plan. No commenter addressed this aspect of the 
proposal, and it has been adopted without change into the final rule. 
This provision makes clear that training given to miners to satisfy the 
requirements of this part must be consistent with the training programs

[[Page 53104]]

outlined in your plan and the information included in the plan, such as 
course content and listed instructors.
    Paragraph (a)(2) of final Sec. 46.4 provides that the training must 
be presented ``by a competent person.'' A number of commenters 
recommended that the final rule allow training to be given ``under the 
direction of'' a competent person, to address those situations where a 
miner may receive training through an interactive computer program 
rather than through traditional face-to-face training from a live 
instructor. These commenters stated that this language would be 
consistent with the use of state-of-the-art training technologies that 
now exist and would give needed flexibility for the use of other 
training methods that may be developed in the future, where live 
instructors may not directly provide training to miners. Some of these 
commenters also indicated that inclusion of the suggested language in 
the final rule would allow other individuals to assist the competent 
person in providing training, even though those persons may not 
themselves meet the definition of ``competent person.''
    Although we agree with commenters that instructors should have the 
flexibility to use a wide variety of training methods and technologies 
in providing training under the final rule, we believe that the 
language proposed allows sufficient flexibility to use new and 
innovative training methods, and we have not adopted the recommendation 
of commenters on this issue. As we indicated in the preamble to the 
proposed rule, we strongly encourage the use of computer-based and 
other innovative training methods, where a ``competent person'' would 
facilitate the delivery of training rather than provide it directly. 
Section 46.4(d) of the final rule specifically allows the use of these 
types of training methods in part 46 training. However, we are 
concerned that if the final rule specified that training may be 
provided ``under the direction of'' a competent person, some operators 
could wrongly interpret it to mean that computer-based or any other 
type of electronic or interactive training method could serve as a 
total substitute for a human instructor and human interaction under 
part 46. We consider computer-based or other interactive training 
technologies to be training ``methods,'' to be employed by an 
instructor effectively and appropriately.
    We disagree with those commenters who believed that the language of 
the final rule should be amended to allow other individuals to assist 
the competent person in providing training, even though those persons 
may not themselves meet the definition of ``competent person.'' As a 
practical matter, a person who does not meet the definition of 
``competent person'' does not have the minimum qualifications to 
provide effective training. The final rule does not allow such a person 
to instruct miners, even if under the oversight or direction of a 
competent person.
    Like the proposal, the final rule does not require our approval of 
training instructors, but instead provides that training be given to 
miners by a ``competent person.'' ``Competent person'' is defined in 
final Sec. 46.2 as a person designated by the production-operator or 
independent contractor who has the ability, training, knowledge, or 
experience to provide training to miners in his or her area of 
expertise. Additionally, under this definition, the competent person 
must be able both to effectively communicate the training subject to 
miners and to evaluate whether the training is effective. The 
definition of ``competent person'' is addressed in greater detail under 
the preamble discussion of Sec. 46.2, the section that contains 
definitions of terms used in the final rule.
    Many commenters supported the proposed requirements for training 
instructors, stating that the final rule should neither impose rigid 
minimum requirements for instructors nor require MSHA approval of 
instructors. Several commenters indicated that the flexibility of the 
proposed provisions would allow operators to have access to more than 
adequate resources to ensure quality training for miners. Other 
commenters stated that the approach taken in the proposal would 
minimize unnecessary administrative burdens on mine operators and allow 
them to focus their efforts on the effectiveness of their training 
programs. Commenters maintained that this would allow operators to 
utilize the best training available, without worrying about whether the 
instructor has obtained formal approval from MSHA to provide the 
training. Other commenters stated that operators are in the best 
position to judge who can most effectively provide required training. 
One commenter stated that a formal instructor approval program would 
unnecessarily tie the hands of operators in crafting effective, 
specifically tailored training programs and would be unlikely to have a 
significant positive effect on the quality of training delivered. Still 
others asserted that it is impractical to require certification of 
instructors, given the widely dispersed operations in the aggregates 
industry.
    Several commenters observed that certifying an individual as an 
instructor does not guarantee that the person knows how to teach. 
Instead, commenters asserted that instructors should be judged on the 
basis of the effectiveness of the training they provide, not on their 
paper credentials. Along the same lines, one commenter noted that an 
individual with knowledge and experience in a particular subject may 
not be an outstanding speaker in the public arena, but nonetheless can 
be more effective in conveying information than an MSHA-approved 
instructor. One commenter favored the flexibility in the proposed rule, 
but recommended that federal and state agencies continue to provide 
training for instructors to assist the instructors in developing new 
training methods and techniques. Another commenter stated that there 
are many tools available to mine operators to ensure that training is 
effective, including support from trade associations and labor 
organizations, assistance from our Educational Field Services Division, 
videotapes, interactive training tools, literature, and, where 
appropriate, instructor training. This commenter endorsed the 
flexibility afforded mine operators in designating training instructors 
in the proposed rule and supported adopting such an approach in the 
final rule.
    Several commenters disagreed with the approach taken in the 
proposal and instead recommended formal MSHA approval of instructors. 
These commenters maintained that operators would be unable to determine 
whether someone was competent to provide training. Several of these 
commenters were also concerned about whether a person who had extensive 
substantive knowledge in one area would have the necessary 
communication skills to provide effective training to miners. Some of 
these commenters stated that if the existing instructor approval scheme 
in existing part 48 is in need of improvement, necessary adjustments 
should be made, but that some form of instructor approval should be 
adopted in the final part 46 rule to ensure the quality of training.
    Under existing part 48, instructors generally obtain our approval 
to provide training based on written evidence of their qualifications 
and teaching experience. Several commenters questioned whether these 
criteria ensured quality training. One commenter stated that becoming a 
polished instructor by meeting some criteria for MSHA instructor 
approval is secondary to the person being competent and knowledgeable.

[[Page 53105]]

    Some of the commenters who supported a formal instructor approval 
scheme similar to the part 48 approach recommended that if the final 
rule did not require our approval of instructors, trainers should, at a 
minimum, receive some form of communications training to ensure that 
they will present training materials correctly and effectively. Several 
commenters contended that a person who is going to conduct training 
needs not only substantive knowledge of the subject area but also the 
ability to convey the material effectively to the persons receiving the 
training. One commenter suggested that instructors be required to 
attend a formal program of instruction to prepare them to instruct 
adults.
    A number of commenters stated that the final rule should impose no 
additional qualifications for trainers beyond those that were included 
in the proposed rule. Some indicated that operators should have broad 
latitude to use on-site trainers for some, or all, of their 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.
    The final rule, like the proposal, does not require a formal 
program for the approval or certification of instructors, or establish 
extensive minimum qualifications for instructors. We are persuaded by 
those commenters who insisted that a formal instructor approval program 
would not guarantee that training will be effective and that any 
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, and that their abilities would not be 
enhanced by a formal instructor approval program.
    We are also persuaded by the statements of some commenters that a 
formal instructor approval program would place limitations on the pool 
of people who can provide effective training under the final rule, 
which could have an adverse impact on the successful implementation of 
the rule's requirements. The large majority of mines covered by the 
final rule are small operations, employing fewer than 20 people; a 
significant percentage of these mines have fewer than 5 employees. The 
flexibility of the final rule will enhance their ability to meet their 
training obligations. We expect that many small mines will arrange with 
outside training providers to conduct some portion of required 
training, supplemented by site-specific health and safety training 
provided by experienced miners who are competent to instruct in their 
areas of expertise.
    We have not included in the final rule a requirement that trainers 
receive instruction in how to provide training before they serve as 
instructors. We agree with the commenters who indicated that such a 
requirement would provide no real guarantee of the quality of training 
provided and would instead serve as an unnecessary hurdle for an 
individual with the knowledge and experience to provide effective 
training to qualify as a ``competent person'' under the final rule. 
Instead, the final rule's definition of the term ``competent person'' 
provides that the competent person must be able to effectively 
communicate the training subject to miners. We intended in the proposal 
that the ability to communicate effectively would be an essential 
element of being a ``competent person.'' However, because many 
commenters emphasized the importance of communications skills and 
expressed concerns about the lack of a reference to these skills in the 
proposal, we have included such a reference in the final rule. Under 
the final rule you must, therefore, make an assessment of 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. If a person has extensive knowledge in a subject area but 
has weak communication skills, you must either designate someone else 
as the competent person or take steps to enhance the person's skills, 
such as by arranging for the person to take a course in effective 
communication.
    Under the final rule, as under the proposal, a competent person 
must be able to evaluate whether the training given to miners is 
effective. Several commenters suggested that the final rule provide 
specific guidance in how the competent person should evaluate the 
effectiveness of training. One commenter questioned whether the final 
rule should require that a paper-based evaluation form be distributed 
to miners at the conclusion of the training session, to be reviewed by 
us at some later point. This commenter also asked whether the rule 
should require that students be interviewed after the fact to determine 
whether the training was adequate.
    Another commenter expressed concern over how a competent person who 
neither works at the mine site nor regularly visits the site will be 
able to evaluate the effectiveness of the training that has been given. 
This commenter suggested that the competent person have some mechanism 
to follow up to evaluate the effectiveness of the training either in 
person or through the operator.
    The final rule does not provide specifications for conducting such 
an evaluation, because the evaluation method will be determined to a 
large extent by the type of training 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 in a safe and healthful manner. We 
have concluded that the final rule is not the place to address the wide 
variety of appropriate evaluation methods that may be used. However, we 
intend to provide assistance to production-operators and independent 
contractors in all aspects of the final rule's requirements, including 
ensuring that the training provided to miners is effective.
    A few commenters questioned whether we would have the authority to 
revoke an individual's status as a ``competent person'' if we conclude 
that the person does not have the ability to deliver effective 
training. As a practical matter, because the final rule does not 
establish a formal instructor approval program, there is no basis for 
including formal rules to revoke such an approval. Instead, in cases 
where we determine that an instructor lacks the ability to provide 
effective miner training, we will cite the mine operator for a 
violation of Sec. 46.4 of the final rule, for failing to designate a 
person who is competent to provide required training. To abate the 
violation, the operator could either designate someone else to provide 
training, or take steps to address the deficiencies we identify in the 
abilities of the person providing the training.
    Section 46.4(a)(3) has been added to the final rule in response to 
comments. It provides that training must be presented in a language 
understood by the miners who are receiving the training. This provision 
has been added in response to several commenters who were concerned 
about language barriers that exist at mines across the country where 
miners are not fluent in English. These commenters stated that failure 
to address this issue would present a serious obstacle to effective 
training and that the final rule should be specific in

[[Page 53106]]

dealing with such situations. We agree with these commenters, and the 
final rule has adopted their recommendation. You should be aware that 
this requirement applies to both oral presentations and written 
materials. For example, if an instructor is giving oral presentations 
in Spanish to Spanish-speaking miners who are not fluent in English, 
any written materials that are used to supplement the oral presentation 
must also be in Spanish. Similarly, if warning signs at the mine serve 
as a component of the site-specific hazard awareness training, the 
signs must be in a language or languages that are understood by the 
persons who come onto the mine site.
    Section 46.4(b) has been adopted with a nonsubstantive change from 
the proposal and provides that you may conduct your own training or may 
arrange for training to be conducted by state or federal agencies; 
associations of production-operators or independent contractors; 
miners' representatives; consultants; manufacturers' representatives; 
private associations; educational institutions; or other training 
providers.
    The proposal used the term ``associations of operators.'' The final 
rule refers to ``associations of production-operators and independent 
contractors,'' in response to commenters who stated that the term 
``operator,'' referring to both production-operators and independent 
contractors, was ambiguous and a possible source of confusion. The 
final rule, therefore, includes a specific reference to both 
production-operators and independent contractors, to eliminate any 
possible misunderstanding. We have also deleted redundant references to 
``other operators'' and ``contractors'' that were included in the 
proposed rule, and have eliminated the specific reference to ``us.'' 
Although MSHA works to facilitate effective training, we typically do 
not provide miner health and safety training. This will avoid creating 
the impression in the final rule that MSHA will serve as a training 
provider.
    This provision makes clear that you may arrange with a wide variety 
of training providers to satisfy the requirements of the final rule. 
This aspect of the proposal received little comment, but those 
commenters who addressed this provision generally supported it. 
Although some production-operators and independent contractors, 
particularly larger companies with formal health and safety programs, 
may choose to provide all required training in-house, we expect that 
many operators will make arrangements with outside organizations to 
provide at least some portion of the required training. A wide variety 
of effective miner training is available from many types of 
organizations across the country, and this section of the final rule 
makes clear that you are free to contract with outside training 
providers to satisfy your training obligations. In addition, we will be 
available to assist you in determining what training is appropriate for 
your specific operations.
    Section 46.4(c) has been adopted from the proposal with some change 
and provides that training required by OSHA or other federal and state 
agencies may be used to satisfy the training requirements under part 
46, provided that the training is relevant to the subjects required in 
part 46. The final rule also specifies that you must document the 
training in accordance with Sec. 46.9 of this part. The final rule 
includes the added language that the training must be relevant to 
training subjects required in this part, to make clear that only some 
of the training used to satisfy OSHA requirements or the requirements 
of other agencies may be credited under part 46. This provision 
recognizes that many operations regulated by us, such as sand and 
gravel or crushed stone sites, are also associated with other 
facilities not regulated by MSHA, such as OSHA-regulated construction 
sites. In many instances, employees may be shared across several 
operations under the same management and may perform the same duties at 
both sites.
    The preamble to the proposed rule stated that training provided in 
accordance with Sec. 46.4(c) must be documented in accordance with 
Sec. 46.9 to be credited toward part 46 requirements. However, the 
proposed rule itself did not specifically require documentation. This 
requirement has been included in final Sec. 46.4(c) to ensure that you 
are aware of these recordkeeping obligations. This record must not only 
reflect the duration of the training but must also provide evidence of 
the relevance and equivalency of the training. We anticipate that 
miners will in many cases provide you with a record of the equivalent 
training that was made at the time that the training was given. In 
cases where such a record is not available, you must document the 
necessary information in accordance with Sec. 46.9.
    A number of commenters supported the acceptance of OSHA training 
under part 46, stating that much of the training given to satisfy OSHA 
requirements is relevant to hazards and conditions at the mines covered 
by this rule. One commenter expressed concern that accepting OSHA or 
other training to satisfy part 46 requirements could create serious 
problems, because those programs do not cover all of the subjects 
required under the Mine Act, such as the rights of miners and their 
representatives, or address MSHA health and safety standards. Although 
the commenter is correct in his assertion that such subjects typically 
would not be covered in OSHA or other types of non-MSHA training, this 
provision in no way is intended to relieve production-operators or 
independent contractors of their obligations to ensure that those 
subjects are covered as part of new miner and newly hired experienced 
miner training. A production-operator or independent contractor who 
uses OSHA training to satisfy part 46 requirements must ensure that 
miners receive instruction in all required subjects. As a practical 
matter, we expect that OSHA training and other types of training can be 
used to satisfy only a portion of part 46 requirements, because this 
training will be relevant only to some of the subjects required under 
the final rule.
    To illustrate how crediting would work, assume that you hire a new 
miner who worked in the construction industry and whose previous 
employer provided him with some health and safety training. You 
determine that the new miner has received four hours of training on 
first aid methods; one hour of training on instruction and 
demonstration on the use, care and maintenance of respiratory devices; 
six hours of training on the safe operation of a front-end loader; and 
four hours of instruction on the following subjects: electrical 
hazards, silica, fall prevention and protection, excavations, material 
handling and moving equipment.
    You would be able to credit the miner for four hours for the first 
aid training. Additionally, if the miner will be required to use a 
respirator that is the same type as the one for which he received 
training, you may credit the miner with one hour of training on this 
subject. Further, if the new miner will be operating the same type of 
front-end loader that he was trained on as one of his tasks, you may 
credit some, if not all, of the six hours of training. Finally, you 
would have to determine how much of the training on electrical hazards, 
silica, fall prevention and protection, excavations, material handling, 
and moving equipment are relevant to the miner's exposure to hazards at 
your mine. If you determine that all of the training is relevant, you 
could credit the new miner with four hours of training. In this example 
you would be able to credit the new miner with up to 15 hours of 
training.

[[Page 53107]]

    As mentioned above, you must document the previous training in 
order for it to be credited. One method of accomplishing this is 
obtaining documentation of the previous training. If this documentation 
is not available, you must create a written record that identifies the 
miner, the training which is being credited, when the training was 
given, the duration of the training, the training methods used, and the 
person who provided the training. Finally, you must ensure that this 
individual receives training in all of the other subject areas required 
to be covered under Sec. 46.5 (b) and (c).
    Section 46.4(d) adopts the proposed provision with a minor change 
and provides that training methods under part 46 may consist of 
classroom instruction, instruction at the mine, interactive computer-
based instruction or other innovative training methods, alternative 
training technologies, or any combination thereof. The final rule 
includes a specific reference to ``interactive computer-based 
instruction'' to make clear that we encourage the use of computer 
technology in satisfying training requirements under this part. This 
provision also recognizes that a combination of different training 
methods can be extremely effective. Commenters were generally 
supportive of this aspect of the proposed rule.
    One commenter stated that the most effective training will include 
a blend of classroom instruction and on-site workplace interaction. We 
anticipate that many of you will use a combination of approaches to 
provide training, including innovative technologies. The classroom may 
serve as the most appropriate forum for training on some subjects, such 
as instruction in first aid or the statutory rights of miners and their 
representatives. On the other hand, mine-site training in such areas as 
the hazards of certain equipment or mining operations also has a place 
in an effective training program.
    Final Sec. 46.4(e), like the proposal, allows employee safety 
meetings, including informal health and safety talks and instruction, 
to be credited toward new miner training, newly hired experienced miner 
training, or annual refresher training requirements. The final rule, 
also like the proposal, does not impose a minimum duration for training 
sessions. Several commenters recommended that the final rule adopt the 
requirement in part 48 that training sessions last at least 30 minutes. 
Other commenters suggested, in the alternative, that a 10- or 15-minute 
minimum be imposed. One commenter recommended that if the final rule 
allows short sessions to be credited toward training requirements, 
language should be included in the rule that spells out that only 
actual instruction be counted. This commenter was concerned that only a 
portion of a 15-minute session given to a group may be devoted to 
actual training, taking into account the time required to gather the 
group together and to focus their attention on the subject at hand. 
Many other commenters supported not requiring a minimum period of 
instruction, because in their view some of the best training occurs in 
sessions of less than 15 minutes. These commenters maintained that the 
rule should not impose an arbitrary restriction on the length of 
training sessions. Some commenters stated that trainees can and will 
retain information given to them in short concise sessions rather than 
in long classroom courses. One commenter stated that short safety 
meetings are often pointedly specific and can be given in close 
proximity to the particular work to which it relates. This commenter 
also stated that such training is often more memorable than material 
given in the context of lengthy classroom instruction.
    A number of commenters indicated that short training sessions 
provided throughout the year can be very effective. One commenter 
stated that safety meetings that cover only job assignments and the 
expectations for production for the week should not be used to satisfy 
the requirements under the rule. However, this commenter added that 
safety meetings that review safe work procedures for a specific job or 
a specific piece of equipment should count toward part 46 requirements, 
provided that the competent person takes steps to ensure that the 
training has been effective within a reasonable period of time after 
the training has been given. This commenter stated that there are 
various ways the competent person could conduct such an evaluation, 
including asking informal questions or watching miners perform a task.
    We are persuaded by those commenters who advocate flexibility in 
the length of training sessions, and this determination is reflected in 
the final rule. Final Sec. 46.4(e), like the proposal, requires that 
short training sessions that are used to satisfy part 46 requirements 
be documented in accordance with Sec. 46.9 of the final rule. This 
paragraph also provides that you must include only the portion of the 
session actually spent in training when you record how long the 
training lasted. This provision has been included in response to 
commenters who were concerned that a training session that is 20 
minutes in length might include only 10 minutes of actual instruction. 
This commenter was of the opinion that credit should be given only for 
the time spent in actual training. The added language in this paragraph 
responds to these concerns. For example, if safety talks are scheduled 
to last 20 minutes but in reality only 10 minutes of that time is spent 
in delivering an actual safety or health message, only 10 minutes may 
be recorded and credited to training under part 46. Additionally, if 
the session addresses other subjects besides those relevant to health 
and safety, such as operational or production issues, only that portion 
of the session that actually covers relevant health and safety subjects 
may be counted and recorded.
    Several commenters questioned when a record must be made of such 
training. For example, if short sessions are used to satisfy the eight-
hour annual refresher training requirement under Sec. 46.8, must mine 
operators document the training at the time that the training session 
is completed, or is the record required at the completion of the entire 
eight hours of training? We agree with commenters that this aspect of 
the proposal requires clarification, and final Sec. 46.9, which 
contains the recordkeeping requirements under the final rule, addresses 
this issue in detail.

Section 46.5  New Miner Training

    Final Sec. 46.5 reflects changes from the proposed rule. The final 
rule, unlike the proposal, requires that a minimum of four hours of 
training be given to new miners before they begin work at the mine. 
Additionally, the final rule adjusts the time periods in which you must 
provide new miner training and includes a table that presents when and 
what new miner training must be provided. The final rule also clarifies 
the oversight under which new miners must work before they complete the 
full 24 hours of new miner training.
    As in the proposal, final Sec. 46.5 includes minimum requirements 
for training new miners when they begin work at a mine, lists subject 
areas that the training must address, and identifies the subjects that 
must be covered before new miners begin work at the mine and no later 
than 60 days after employment begins. The final rule also specifies the 
minimum number of hours of instruction required by the Mine Act for new 
miner training and the circumstances where previous training may 
satisfy new miner training requirements.
    As in the proposed rule, Sec. 46.5(a) of the final rule requires 
that new miners receive a minimum of 24 hours of

[[Page 53108]]

training. A few commenters questioned the need for a full 24 hours of 
training for new miners at very small operations, citing the expenses 
associated with training, the lack of complexity of their operations, 
and the limited number of hazards that are present at very small 
surface mines.
    We recognize that there are expenses associated with providing new 
miner training. However, we believe that the cost of not providing 
effective training for new miners is considerable. As voiced by several 
commenters, prudent operators recognize that an investment in health 
and safety training for employees makes economic sense. Commenters 
pointed out that a safe and healthful workplace is typically a highly 
productive one. Attention to health and safety through effective worker 
training can minimize workers' compensation expenses and avoid 
extensive medical costs and elevated insurance rates that result from 
accidents and injuries. We do not agree with commenters who contended 
that there are fewer workplace hazards at exempt mines compared to 
other mines. Most significantly, we do not have the authority to reduce 
the 24-hour new miner training requirement. As noted in the preamble to 
the proposed rule, section 115(a)(2) of the Mine Act requires mine 
operators to provide at least 24 hours of training to inexperienced 
surface miners. It is beyond the scope of our rulemaking authority, and 
only within Congress' legislative powers, to reduce the 24-hour new 
miner training requirement. Consequently, we are committed to 
implementing the congressional directive of section 115(a)(2) of the 
Mine Act.
    Proposed Sec. 46.5(b) would have required that new miners be given 
instruction in certain subject areas prior to beginning work, but the 
proposal did not establish a minimum number of hours to be devoted to 
this initial training. Instead of requiring a minimum number of hours, 
the proposal delineated four subject areas on which new miners would 
receive pre-work training 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 solicited comment on 
the appropriateness of this approach, including whether a minimum 
number of hours should be devoted to initial training, or whether 
certain criteria, such as mine size or complexity or type of operation 
or equipment, should govern how much initial training is required. We 
also described alternative approaches that we considered in developing 
this provision, including requiring that miners receive the full 24 
hours of training, or a lesser amount such as two or four hours, before 
they begin work duties.
    A number of commenters supported requiring a minimum number of 
hours of training before new miners begin work. One commenter favored 
an eight-hour minimum of a combination of hazard awareness training and 
task-specific training before a miner begins work. Another commenter 
recommended that the final rule require a minimum number of hours of 
pre-work training and that the minimum number of hours be tied to mine 
size. This commenter provided as examples an eight-hour minimum for new 
miners at small mine operations, a 16-hour minimum at mines of moderate 
size, and the full 24 hours of pre-work training at large mines. 
Another suggested an eight-hour minimum pre-work training requirement 
for operations with five or more miners and a minimum of two hours for 
operations employing fewer than five miners. One commenter who 
supported an eight-hour minimum stated that small aggregate mines, for 
example, could meet the requirement by having the new miner perform 
tasks to which he or she will be assigned. A few commenters stated that 
all 24 hours of new miner training should be required for some miners, 
such as independent contractor employees, before they start work at a 
mine, because these miners are frequently not on the site long enough 
to receive adequate comprehensive training.
    Several commenters strongly advocated adoption of the 24-hour pre-
work training requirement in part 48 and cautioned against allowing 
initial training in periods shorter than eight hours. Under part 48, an 
operator must give new miners the full 24 hours of training before 
assigning miners work at the mine, unless the district manager 
specifically permits the operator to do otherwise. Even with district 
manager approval, however, part 48 requires operators to provide new 
miners with a minimum of eight hours of training in certain subjects 
before they begin work duties. One commenter, who supported a 24-hour 
pre-work training requirement, maintained that inexperienced miners can 
be overwhelmed, often tragically, by too many hazards at one time. 
Supporters of the part 48 approach were particularly concerned that not 
requiring a specific length of time for training prior to assigning 
work duties is inconsistent with the Mine Act and part 48 and would 
lead to abuse in favor of production expediency. According to these 
commenters, various factors, such as the hazardous nature of mining, 
the cyclical nature of work, frequent employee turnover, and the 
inexperience of new miners, reinforce the need for comprehensive and 
complete training before work duties commence. One commenter added that 
tracking the amount of training to fulfill the mandated 24-hour 
requirement would be complicated if fewer than eight hours of initial 
training were permitted at certain mines based on their size or 
complexity.
    Many commenters opposed any minimum initial training period 
requirement and asserted that it would be unduly burdensome and 
unnecessary to apply a minimum number of hours requirement at many 
mines, particularly at small mines with few employees and limited 
equipment. Several of these commenters endorsed the proposal's emphasis 
on a minimum curriculum requirement for new miners before they begin 
performing assigned job duties, rather than on the amount of time to be 
spent initially training new miners. Some commenters stated that by 
requiring a minimum course content, and not a minimum time for initial 
training, we would permit a more flexible approach to training that 
recognizes the wide variety of mines covered by part 46. This would 
allow mine operators to vary the length of individual training topics 
depending on their needs, mining operations, and experience of their 
new miners. According to the commenters, a ``one-size-fits-all'' miner 
training regulation could be costly and ultimately ineffective. One of 
these commenters maintained that the minimum curriculum requirement 
combined with the overall 24-hour new miner training requirement is, in 
fact, protective of the miner. A different commenter pointed out that 
specifying a minimum number of hours for initial training based upon 
mine size or complexity could have the unintended effect of depressing 
mine employment opportunities because operators would limit mine size 
to avoid stepping up to the next level of training requirements.
    We believe it is imperative that new miners are trained and 
familiar with the operations and environment at the mine, their job 
duties, and the fundamental hazards they may encounter at the mine site 
before they actually commence work duties. After reviewing and 
considering the comments received, we have concluded that the final 
rule should establish a minimum number of hours of pre-work

[[Page 53109]]

training. As noted elsewhere in this preamble, our fatal accident 
investigations show that a majority of miners involved in fatal 
accidents at mines that have been exempt from enforcement under the 
training rider had not received health and safety training that 
complied with part 48. Moreover, miners at smaller mining operations, 
many of which are covered by the final rule, also experience higher 
fatality rates than those at larger operations. We are concerned that 
by not establishing a minimum number of hours of pre-work training we 
may inadvertently encourage some operators to devote less than an 
appropriate amount of time and attention to the pre-work training 
subjects and essential orientation of new miners. As pointed out by 
some commenters, inexperienced miners who are unfamiliar with mining 
methods in general and with the mine site in particular are especially 
vulnerable to the hazards of their new work environment. We believe 
that these miners need fundamental and critical health and safety 
information relevant to their work sites at the earliest stage of their 
employment. In addition, the time spent presenting this information 
must be of a sufficient minimum duration to ensure that the training is 
thorough, meaningful, and effective to orient the new miner to his or 
her workplace and its health and safety hazards.
    We have determined, after reviewing the comments, that at least 
four hours of pre-work training is needed to provide a new miner with 
the knowledge and skills to work safely. For the most part, new miners 
do not possess the knowledge and skills they need to work at a mine in 
a safe and healthful manner. New miners need some formal and practical 
training and practice under observation to acquire the knowledge and 
master the skills they need to avoid endangering themselves or others.
    For example, a new miner needs to know how to stop the conveyor 
belts in use at the mine before he or she begins work there, so that 
the miner can stop the belt in the event of an emergency. If a co-
worker becomes entangled in a moving conveyor, quick action is 
essential to save the person's life. Unfortunately, some miners have 
lost their lives because a fellow miner did not know that he could pull 
the stop cord, located less than a foot away, to stop the belt and save 
his co-worker. New miners must also be aware that it is unsafe to walk 
close to storage piles or on top of surge piles. The miner also needs 
to be aware that he or she must exercise extra care around the mine 
site, because equipment operators' visibility is typically limited 
compared to the visibility of a driver in a car on a highway. New 
miners also need to be familiar with the mine's emergency procedures, 
including the location of the nearest telephone.
    Consequently, final Sec. 46.5(b) requires you to provide no less 
than four hours of training on the subjects specified before a new 
miner begins work at the mine. The four-hour pre-work training 
requirement is a minimum. Clearly, if your mining operation is large 
and complex, or if the new miner will be performing multiple tasks, 
more time may be necessary to present the pre-work training materials 
effectively and in accordance with your training plan. We believe that 
you are in the best position, with the assistance of miners and their 
representatives, to determine the correct amount of pre-work new miner 
training, beyond the four-hour minimum, that is warranted at your 
operation. You still have the flexibility to address specific problems 
that may exist at your mine and to vary the length of training time 
spent on each subject. In this way, you can provide the most effective 
learning situations for your new miners before they begin work. The 
length of time devoted to each subject may depend on such factors as 
the miners' prior experience and familiarity with the aspects of their 
new assignments, the mining methods used, the environmental conditions 
at the mine, the tasks to be performed, and the mine's health and 
safety procedures.
    We recognize that some operators of very small mines with limited 
equipment and facilities may be initially concerned that the four-hour 
minimum presents too large a burden and is unnecessary. However, these 
operators should be aware that final Sec. 46.5(e) permits you to 
satisfy some part of the pre-work training requirements by having the 
miner practice assigned tasks under controlled conditions.
    Proposed Sec. 46.5(b) would have required that operators provide 
instruction for 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 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.

    Proposed Sec. 46.5(d) also would have required that within 60 days 
after a new miner begins work at a mine, the balance of the 24 hours of 
new miner training would be provided on 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.

    In the final rule, we have added three subject areas that were 
proposed as post-work training subjects under Sec. 46.5(d)(1), (2), and 
(3), listed above, to the pre-work training requirements under final 
Sec. 46.5(b)(5), (6), and (7). These additional subjects include 
miners' rights; company rules and procedures for reporting hazards; and 
the hierarchy of authority of supervisors and miners' representatives 
and their associated responsibilities. We explained in the preamble to 
the proposed rule that instruction in the delineated initial subjects 
is intended to ensure that new miners--
    (1) Are sufficiently familiar with the hazards at the mine;
    (2) Can avoid exposing themselves and others to unnecessary risks;
    (3) Can perform their job assignments safely; and
    (4) Are able to respond to mine emergencies.
    After evaluating comments and testimony, we have concluded that 
these objectives are best served by requiring that instruction on the 
three additional subjects be given to new miners before they start work 
at the mine. Some commenters supported requiring instruction on the 
company safety policy and on miners' statutory rights as part of the 
pre-work training curriculum. They indicated that allowing operators up 
to 60 days to inform miners of this critical information was 
inappropriate and not protective of miners. To ensure that the health 
and safety of new miners is not compromised or jeopardized, we believe 
instruction on the three subject areas must be provided before a miner 
begins work at the mine. This information will ensure that a new miner 
knows what fundamental steps to take at the mine to prevent or respond 
to hazards, who the

[[Page 53110]]

management personnel and miners' representatives are at the mine, and 
what specific statutory rights protect the miner from an unsafe or 
unhealthful work environment.
    The subject areas for new miner training specified in the proposed 
rule, which were based on those mandated by section 115(a)(2) of the 
Mine Act, have been retained with minor modifications in the final 
rule. The topics are sufficiently broad to provide operators with the 
flexibility not only to introduce new miners to the mining industry but 
also to address particular conditions and practices that present safety 
and health hazards at their mines. In addition, as mentioned earlier, 
portions of final Sec. 46.5 are presented in a table format to make it 
easy for you to determine the subjects that you must cover for new 
miner training and when the subjects must be addressed.
    We received few comments on the appropriateness of the subject 
areas delineated in the proposal. Of those who commented on the pre-
work training subjects, several commenters supported the mandatory 
subject areas that were specified in the proposed rule. One of these 
commenters maintained that it was unacceptable to give operators total 
discretion on the subjects to be covered in new miner training. The 
commenter stated that to do so would leave many of these new miners, 
who are at high adverse occupational risk, unprepared for work at the 
mine.
    We believe that it is not enough for new miners to receive only a 
general orientation before they begin work. The initial training must 
also address potential hazards and risks that new miners may encounter 
at the specific mine site where they will work. As a result, we have 
clarified the language of Sec. 46.5(b) to provide that the pre-work new 
miner training in the specified subject areas must also address site-
specific hazards at the mine.
    Several other commenters suggested revisions in the language for 
the mandatory pre-work subjects. As a result, final provisions of 
Sec. 46.5(b)(1) through (b)(3) vary slightly from the proposed rule. 
One commenter recommended that Sec. 46.5(b)(1) include the term 
``walkaround training'' within the description of ``introduction to the 
work environment.'' We have inserted this term in the referenced 
paragraph to clarify that the visit and tour of the mine, which is part 
of the introduction to the work environment, is considered the 
``walkaround training'' specified in Sec. 115(a)(2) of the Mine Act. 
One commenter recommended that the words ``and observed'' be inserted 
after the word ``explained'' in proposed Sec. 46.5(b)(1) so that it 
would read that ``the method of mining or operation utilized must be 
explained and observed'' (emphasis added).
    As indicated in the preamble discussion in the proposed rule, we 
had intended that proposed Sec. 46.5(b)(1) would read essentially the 
same as the commenter has suggested. We inadvertently failed to include 
the language we had specified in the preamble in proposed 
Sec. 46.5(b)(1). Accordingly, the final rule includes the language that 
was mistakenly omitted from the proposal.
    Many commenters generally recommended that the final rule language 
include more illustrative examples to provide guidance to the regulated 
community. One commenter generally asserted that we should designate 
mandatory training subjects based on an analysis of accidents and 
injuries in our accident and injury database, which he indicated should 
show the subjects on which miners need training. Some commenters 
specifically recommended that final Sec. 46.5(b)(2) include examples of 
hazards, other than just electrical, that might be included as training 
subjects. In response to these commenters' suggestions, we have 
identified other types of common mine hazards derived from our accident 
and injury database as examples of subject areas that might be relevant 
for new miner training, including traffic patterns and control, mobile 
equipment (haul trucks and front-end loaders), and adverse ground 
conditions. We intend these examples to serve only as illustrations of 
possible subjects for new miner training. They are not mandatory 
topics.
    Proposed Sec. 46.5(b)(3) covered general subject areas associated 
with emergencies, such as ``escape and emergency evacuation plans in 
effect at the mine and instruction on the firewarning signals and 
firefighting procedures,'' that would be required before a new miner 
begins assigned work duties. One commenter stated that comprehensive 
first aid training should be addressed, while another commenter 
advocated that emergency medical procedures be covered during this 
initial training period. We believe that it is not necessary for miners 
to receive first aid training and/or a review of first aid methods 
before they start work. MSHA regulations at 30 CFR 56.18010 already 
require that an individual capable of providing first aid be available 
on all shifts, which ensures that a trained person is on site in case 
of emergency. For this reason, the final rule does not require first 
aid subjects to be covered as part of the pre-work training. On the 
other hand, instruction on emergency medical procedures at the mine 
will ensure that new miners will know from the beginning what steps 
must be taken in the event of a medical emergency. We have included 
this topic as part of pre-work training for new miners in paragraph 
(b)(3). Basically, training on emergency medical procedures could 
include, as appropriate, a briefing on what steps a miner should take 
in the event of a medical emergency, the identification of the people 
at the mine who have satisfactorily completed first aid training, the 
locations of first-aid equipment and supplies, arrangements that the 
mine operator has made for 24-hour emergency medical assistance (e.g., 
with local physicians, medical services, or hospitals, and with 
emergency transportation services), and where the information on these 
arrangements are posted at the mine.
    Proposed Sec. 46.5(c) would have allowed new miners to practice 
under the ``close supervision of a competent person'' to satisfy the 
Sec. 46.5(b)(4) requirement for training on the health and safety 
aspects of an assigned task, provided that hazard recognition training 
for the assigned task is given before the miner actually performs the 
task. Although we did not define the term ``close supervision'' in the 
proposed rule, we explained in the preamble that we considered it to 
mean that the ``competent person is in the immediate vicinity of the 
miner and focusing his or her complete attention on the actions of the 
miner being trained.'' We also stated that ``[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.''
    The term ``close supervision'' was also used in proposed 
Sec. 46.5(a), which would have required a new miner who had not 
completed the full 24 hours of new miner training to work ``under the 
close supervision of an experienced miner.'' Our rationale for this 
proposed requirement, which is modeled after a similar requirement in 
Sec. 48.25(a), was to protect the health and safety of a new untrained 
miner until the miner had completed new miner training.
    We received considerable comment on the use of the term ``close 
supervision'' in Sec. 46.5 (a) and (c) of the proposed rule. Generally, 
commenters did not object to the concept that inexperienced personnel 
should be closely supervised or have a mentor until they acquire the 
knowledge, experience, and skills to perform their assigned duties in a 
safe and healthful manner.

[[Page 53111]]

    A clear majority of commenters, however, provided unfavorable 
comment on the term ``close supervision,'' either disagreeing with our 
interpretation of how it would apply in proposed Sec. 46.5(a) and (c) 
or disagreeing with the use of the term altogether. One sentiment 
echoed by most commenters was that the description of ``close 
supervision'' in the proposed rule preamble was too restrictive and 
appeared to prohibit the experienced miner in proposed Sec. 46.5(a) and 
the competent person in proposed Sec. 46.5(c) from training or 
supervising several people at one time. One commenter indicated that 
the level of supervision required in Sec. 46.5(a) should be different 
from the level required in Sec. 46.5(c) and suggested that 
``appropriate supervision'' would be the more suitable term for 
purposes of the requirements in Sec. 46.5(a). Another commenter stated 
that some of the work assignments appropriate for new miners to 
practice under Sec. 46.5(c) may be relatively low-risk activities that 
do not warrant the undivided attention of a competent person.
    Similarly, commenters expressed specific concern with proposed 
Sec. 46.5(a) because of the impracticality of requiring an experienced 
miner to provide close supervision, as that term was described, of a 
miner who had not received the full 24 hours of new miner training. In 
some cases, commenters noted, for each miner trainee needing close 
supervision, the activities of one experienced miner could be 
restricted for up to 60 days under this provision. Several commenters 
pointed out that the greatest impact and burden of complying with these 
requirements would be on small operators, who have limited personnel 
and resources and cannot afford to dedicate personnel to supervise new 
miners in lieu of performing their normal work duties. One commenter 
indicated that operators' flexibility to provide quality training 
tailored to their needs would be weakened if they had to choose between 
providing 24 hours of new miner training quickly or assigning 
experienced miners to supervise the new miners for lengthy periods. 
Commenters also suggested more limited periods of time, ranging from 16 
to 40 hours, for a new miner to be closely supervised by an experienced 
miner under Sec. 46.5(a). One commenter maintained that continuous 
oversight of the new miner under Sec. 46.5(a) was necessary for a 
limited period of time, but after that, new miners should be able to 
work, but not alone or in an area where an experienced miner cannot see 
or hear the new miner. A few commenters characterized a situation where 
the new miner could work under a ``loose buddy system'' until the miner 
received adequate training to function safely and independently. Still 
another stated that new miners should be ``under observation'' so that 
negative effects do not result.
    A few commenters recommended that if the final rule adopts the term 
``close supervision,'' the rule should define the term so that people 
understand what is required without having to refer to the preamble. 
Some urged that either the term ``close supervision'' be more flexible 
and redefined, or another term or standard be adopted instead. Many 
commenters stated that the decision on how closely the miner trainee 
should be supervised should be within the discretion of the operator 
and based on the level of perceived risk, evaluating the hazards 
involved in performing work duties and the employee's work experience. 
Some commenters recommended that the final rule define ``close 
supervision'' as ``appropriate attention commensurate with the risks of 
the supervised activity.'' Another commenter suggested that the 
experienced miner (or competent person) should be ``close enough to the 
trainee so that they can communicate in a normal conversational tone'' 
while the new miner is performing tasks that may expose the miner to 
mining hazards. Some commenters objected to the term ``supervision'' 
since it could be incorrectly interpreted to mean that the rank-and-
file worker, who may be the designated competent person or experienced 
miner, was operating in a supervisory capacity or as an agent of the 
operator.
    We carefully considered the comments received and admit that our 
characterization of the term ``close supervision'' in the proposal was 
too narrow and did not afford the flexibility that operators need to 
provide effective new miner training. We also recognize that the term 
caused considerable confusion and disagreement among commenters. We do 
not agree, however, with many of the commenters' suggested alternatives 
because many of the alternatives are themselves vague or subjective.
    In Sec. 46.5(a) of the final rule, we adopt the proposed approach 
of requiring an experienced miner to provide adequate oversight until 
the new miner has received all 24 hours of new miner training. However, 
we do not use the term ``close supervision,'' adopting instead 
performance-based language. Until the training is completed, an 
experienced miner designated by the operator will be required to 
observe the new miner's work practices to ensure the miner is not 
jeopardizing his or her health or safety or the health or safety of 
others. We do not mean that the experienced miner must abandon his or 
her normal duties or be assigned to oversee only one new miner. 
However, in some situations, that may be necessary to ensure that this 
performance-based standard is met. The relevant portion of final 
Sec. 46.5(a) is revised to read as follows:

    Miners who have not received the full 24 hours of new miner 
training must work where an experienced miner can observe that the 
new miner is performing his or her work in a safe and healthful 
manner.

    For reasons similar to those stated above, we do not adopt in the 
final rule the term ``close supervision'' used in proposed 
Sec. 46.5(c), which we have redesignated Sec. 46.5(e) in the final 
rule. Instead, the final rule requires that practice to fulfill the 
requirement for training under Sec. 46.5(b)(4) on the health and safety 
aspects of an assigned task must be performed under the ``close 
observation'' of a competent person. We would like to emphasize that 
practice is only allowed to fulfill the Sec. 46.5(b)(4) training 
requirement and not all pre-work training requirements. We recognize 
that having the miner practice the actual assigned task may be an 
appropriate method of training for the health and safety aspects of the 
task, provided that training, and not production, is the primary goal 
of performing the task. This interpretation is consistent with 
Congress' intent that training include a period conducted in 
circumstances that duplicate actual mining facilities. Conference Rep. 
No. 95-461, 95th Cong., 1st Sess., 63 (1977).
    Proposed Sec. 46.5(d), which has been redesignated Sec. 46.5(c) in 
the final rule, listed the training subjects that new miners would be 
required to receive no later than 60 days after they begin work at the 
mine. As discussed earlier, proposed Sec. 46.5(d) would have required 
``review of first-aid methods'' within this 60-day time frame, and this 
requirement has been retained in Sec. 46.5(c) of the final rule. For a 
variety of reasons, a requirement of comprehensive first-aid training 
for many miners is impracticable. A comprehensive first-aid course may 
last eight hours or longer, a significant portion of the required 24 
hours of new miner training. There are a number of other areas that 
could be addressed during this time that will be of greater overall 
benefit to the health and safety of miners in the workplace. 
Additionally, one commenter was

[[Page 53112]]

concerned that some people are not physically, mentally, or emotionally 
equipped to perform first-aid procedures. Nevertheless, the commenter 
stated that a review of first-aid methods is valuable.
    As noted in the proposed rule preamble, you would not be required 
to hire an approved first-aid instructor or obtain first-aid teaching 
equipment to provide this instruction. Typically there are miners and 
designated supervisors at the mine who have already been trained in 
first aid under the requirements of 30 CFR part 56. One of these 
individuals could serve as a competent person to provide the first-aid 
review for new miners.
    A few commenters suggested that instruction on respiratory 
protection be required before a miner begins work at a mine. Although 
this is an important topic, the final rule does not require new miners 
to receive training in this subject before they start work. We have 
determined that allowing this training to take place after miners begin 
work is unlikely to adversely affect miners' health and safety. As a 
practical matter, part 48 allows operators to cover this subject after 
the miner begins work but within 60 days, in those cases where the 
district manager permits a production-operator or independent 
contractor to provide new miners with training after assignment of work 
duties. Additionally, if the miner must use respiratory protection 
while performing his or her duties, the operator must provide 
appropriate instruction in the use of the respirator under 
Sec. 46.5(b)(4) of the final rule, which requires that instruction on 
the health and safety aspects of the tasks assigned be provided to a 
new miner before the miner begins work. For that reason, we do not 
believe that every new miner needs instruction on respiratory 
protection before their work commences and have not included language 
to that effect in the final rule.
    As previously mentioned, Sec. 46.5(d) of the proposed rule would 
have required that the balance of statutorily-mandated new miner 
training be given within 60 days after the new miner begins work. For 
practical reasons outlined in the preamble, we explained that the 60 
days would be measured in calendar days, not working days, and we 
solicited comment on the proposed schedule and approach.
    Only a handful of commenters agreed with the proposed 60-calendar 
day time limit; the majority of commenters did not support the time 
period in the proposed rule. A few commenters opposed the 60-day time 
frame or any suggestions to extend the time frame. Instead, these 
commenters urged the adoption of a shorter time period. They endorsed 
either the full 24 hours of new miner training being given before the 
miner begins work duties, or a 30-day time period after the miner 
begins work within which to complete the remainder of the 24 hours of 
new miner training. One of these commenters stated that some employers 
might exploit a longer time period and deprive short-term miners of 
valuable training. One commenter echoed general concerns that, if the 
time frames are promulgated as proposed, part 46 will provide less 
protection for new miners than existing part 48.
    Most commenters who opposed the proposed 60 calendar-day period, 
however, suggested that either a 60 working-day or longer time period 
be allowed for completion of the mandated 24 hours of new miner 
training. One commenter who advocated a 60 working-day deadline 
appeared to believe, mistakenly, that we intended to require a 
production-operator or independent contractor to provide new miner 
training even when the proposed 60 calendar days occurred during a 
period that a miner was laid off and not working for the operator. This 
was not our intent. However, we want to make it clear that if this 
worker were rehired as a miner, an operator employing that miner would 
be required to provide new miner training in accordance with Sec. 46.5, 
although certain new miner training taken previously could be credited 
towards the new miner training requirements. This is discussed in 
greater detail below.
    A few commenters indicated their concern with recouping the 
substantial economic investment incurred for training if the balance of 
training were required to be provided within the proposed 60-day 
period. In justifying support for a 60- to 120-day time period, one 
commenter stated that the investment in training should be required 
closer to the time when the operator decides whether to permanently 
hire that miner. Another commenter, concerned with the employee 
turnover in the industry, made a similar argument and recommended 
increasing the 60-day time period to 6 months, or to stipulate that the 
training should be completed within six months or by the end of the new 
miner's probationary period, whichever comes first. Still others noted 
that a 60-day period would not be practical for miners who are employed 
intermittently. One of these commenters proposed a one-calendar-year 
time period for intermittent employees to complete the required 24 
hours of new miner training.
    For a number of reasons, the majority of commenters opposing the 
proposed 60-day period maintained that it was too short, especially for 
small operations. They either favored a 90 calendar-day time period to 
complete new miner training or stated that they would not object to 
such a requirement. Some asserted that it would be unduly burdensome 
for operators to schedule with outside training contractors within the 
proposed 60-day time period and then to provide such training several 
times within one year as new miners are hired. They argued that a 90 
calendar-day period was preferable and that in most cases would add up 
to approximately 60 working days. One commenter endorsed the 90 
calendar-day option since it seemed to balance the needs of employers 
to arrange for training and the needs of new miners to receive training 
in a timely manner.
    Under Sec. 46.5(c) of the final rule, you must provide training on 
the balance of the new miner subject areas required under the Mine Act 
(i.e., self-rescue and respiratory devices, and first aid review) no 
later than 60 days after a new miner begins work at the mine. In 
addition, after a miner has received the required minimum training in 
Sec. 46.5(b) and (c), Sec. 46.5(d) allows the operator up to 90 days to 
provide training on other subjects that promote occupational safety and 
health for their new miners and to count the amount of time spent on 
presenting that instruction towards fulfillment of the 24-hour new 
miner training requirement. Until the new miner receives the full 24 
hours of new miner training, the miner must work where an experienced 
miner can observe that the new miner is working in a safe and healthful 
manner.
    In this way, operators may select and present additional, 
appropriate instruction on subjects that will increase the knowledge 
and ability of each new miner to work safely, avoid injuries and 
illness, and respond to emergencies at the mine. Operators will also 
gain the added flexibility to spread the remainder of the 24 hours of 
new miner training over a longer period of time, if they wish, which 
should alleviate some of their concerns with scheduling training and 
meeting the 24-hour training requirement. At the same time, we believe 
this will provide necessary and meaningful training to new miners 
within a relatively short period after the worker accrues some work 
experience at the mine. We wish to reiterate that there are advantages 
to training new miners over a longer period of time. New miners, even 
if they have worked a short

[[Page 53113]]

period of time at the mine, will retain training information better 
because they will have some practical work experience and will 
recognize the relevance of the training material to their work duties.
    As in the proposed rule, both the 60-day and 90-day periods 
prescribed by the final rule are calendar days and not working days. As 
stated in the preamble to the proposal, a deadline measured in working 
days would be impractical, particularly given the intermittent and 
seasonal work schedules of many operations. A deadline measured in 
working days would not only present an administrative burden to you, 
both for paperwork and for class scheduling, but would also make 
enforcement extremely difficult for us.
    To minimize the likelihood that a miner would have to repeat new 
miner training unnecessarily, the final rule, like the proposal, allows 
training credit to be given where a new miner had not attained 
experienced miner status for training purposes but had previously 
completed new miner training under part 46 or 48. Under certain 
conditions, credit for relevant courses may be given towards the 24-
hour new miner training requirement under Sec. 46.5(a) and towards the 
mandatory subject requirements under Sec. 46.5(b) and (c) for that 
miner. Although we solicited comment in the proposed preamble on 
whether the final rule should allow such crediting and how it should be 
addressed, only one commenter specifically responded to our 
solicitation and endorsed the proposed approach, without suggesting any 
modifications. Accordingly, we have adopted the provisions of proposed 
Sec. 46.5(e) and (f) in the final rule, which we have redesignated 
paragraphs (f) and (g), respectively.
    Under Sec. 46.5(f) of the final rule, a miner who has completed new 
miner training under Sec. 46.5 or Sec. 48.25 within the previous 36 
months but who does not have the 12 cumulative months of experience for 
``experienced miner'' status is not required to repeat new miner 
training, with one exception. The operator is still required to provide 
this miner with pre-work training on the seven subjects specified in 
Sec. 46.5(b) to ensure that the miner has site-specific familiarity 
with the mine's operations and practices before work duties commence.
    Similarly, final Sec. 46.5(g) permits an operator to credit a new 
miner training course completed by a miner under Sec. 48.5 or 
Sec. 48.25, provided that the course was completed within a 36-month 
period prior to the miner beginning work at the mine and is relevant to 
subject areas specified in Sec. 46.5(b) and (c). For example, a new 
miner may have completed an hour of instruction at an underground mine 
on the statutory rights of miners and their representatives, and an 
hour on the use, care, and maintenance of self-rescuers or respiratory 
devices within the previous 36-month period. The final rule allows 
credit towards the 24-hour new miner training requirement, as well as 
toward the mandatory subject requirement, for the one hour spent on the 
miners' rights course. The final rule also allows credit for the one 
hour spent on the respiratory protective equipment course, but only if 
such equipment is used at the mine where the miner is currently 
employed.
    A few commenters indicated that it was not clear when new miner 
training requirements would apply to a miner who is employed by an 
independent contractor and moves from mine to mine performing services, 
or to a miner employed by a production-operator who works at multiple 
mines operated by the same production-operator. Commenters raised this 
question because we defined a new miner in the proposal as ``a newly 
hired miner who is not an experienced miner'' (emphasis added) but did 
not explain what we meant by ``newly hired.'' It was our intent that 
new miner status and new miner training requirements would apply when 
two conditions were met: first, when the miner does not fit the 
definition of ``experienced miner;'' and second, when the miner begins 
employment with a new employer. We acknowledge that our use of the term 
``newly hired'' in the proposed new miner definition did not expressly 
convey the second condition and, as explained elsewhere in this 
preamble, we have revised that definition. Under the final rule, the 
requirements of Sec. 46.5 are triggered when a miner, who is not an 
experienced miner, begins employment with a new employer, not 
necessarily when the miner starts work at a different mine. In other 
words, the final rule does not require a miner to receive new miner 
training each time the miner moves from mine to mine, if the miner 
remains continuously employed by the same production-operator or 
independent contractor.

Section 46.6  Newly Hired Experienced Miner Training

    Section 46.6 of the final rule, like the proposal, addresses 
training requirements for ``newly hired experienced miners'' as that 
term is now defined in Sec. 46.2. Section 46.6 lists the subject areas 
that must be covered in training newly hired experienced miners before 
they begin work at the mine and no later than 60 days after they begin 
work. Final Sec. 46.6 also contains less rigorous training requirements 
for newly hired experienced miners who are returning to the same mine 
after an absence of 12 months or less, and allows, under certain 
conditions, training credit to be given for practice of assigned tasks. 
As in final Sec. 46.5, which addresses new miner training, we have used 
a table to set forth the final rule's requirement. This is intended to 
make it easier for you to determine the training you must provide to 
newly hired experienced miners and when the training must be provided.
    We received numerous comments on proposed Sec. 46.6, many of which 
addressed issues that were similar to those raised in the context of 
new miner training under Sec. 46.5. One commenter raised a general 
issue concerning the term ``newly hired experienced miner.'' This 
commenter indicated that because the requirements for training under 
this section are triggered before and after an experienced miner begins 
work, the phrase ``newly hired'' is superfluous and should be deleted. 
The commenter also pointed out that recent amendments to part 48 
eliminated use of the term ``newly employed'' in Sec. 48.26 for similar 
reasons. We agree that it may be somewhat redundant to use the term 
``newly hired.'' However, the final rule defines ``newly hired 
experienced miner'' in Sec. 46.2 and retains the term in both the 
section heading for Sec. 46.6 and the regulatory text. We have taken 
this approach to emphasize and make clear that this section applies 
only to experienced miners at the time they begin employment with a 
production-operator or independent contractor.
    Proposed Sec. 46.6(a) would have required you to train newly hired 
experienced miners in four subject areas before they begin work but did 
not specify a minimum amount of time to be spent on this pre-work 
training. One commenter who addressed this aspect of the proposal 
supported minimum courses of pre-work instruction as in Sec. 48.26. 
Another commenter agreed that the final rule should not specify a 
minimum number of hours for training before the miner begins work, 
while another commenter recommended that emergency medical procedures 
be added to the list of pre-work training requirements. Several 
commenters strongly opposed any requirement for pre-work training for 
experienced miners, based on the commenters' concerns over the economic 
impact of such a requirement on small operations. Several commenters 
also maintained

[[Page 53114]]

that such training is not needed for workers who already have mining 
knowledge and experience. A few other commenters recommended that the 
final rule require only mine-specific hazard awareness training for 
experienced miners. Some of these commenters suggested that we should 
require only limited training on such subjects as company policies, 
safety and environmental response plans, hazard recognition and 
avoidance, and ``walkaround'' and task training.
    Although section 115 of the Mine Act specifically requires that 
miner training regulations address training for new miners, there is no 
express statutory directive that we promulgate training regulations for 
newly hired experienced miners. However, we have concluded that 
experienced miners should receive orientation on the mining environment 
in general and be instructed in specific potential hazards at a mine 
before they begin work there, and the final rule reflects this 
conclusion.
    For the same reasons outlined in today's preamble discussion on 
final Sec. 46.5(b) for new miners, we are requiring training on seven 
subject areas before newly hired experienced miners begin work at a 
mine. We believe that all miners beginning employment with a 
production-operator or independent contractor, whether experienced or 
not, should receive instruction in these critical areas. Unlike final 
training requirements for new miners, however, final Sec. 46.6 does not 
specify a minimum length of time that must be devoted to pre-work 
training for newly hired experienced miners. This conclusion is based 
primarily on the fact that experienced miners have far greater 
variability in their occupational experience, skills, and knowledge 
than untrained workers who are new to mining. The scope and amount of 
training needed by a newly hired experienced miner is more dependent on 
the occupational experience of the miner, the work duties that the 
miner will perform, and the methods of mining and workplace conditions 
at your mine. Clearly, if an experienced miner received training on a 
subject, such as the statutory rights of miners, within the last year, 
you would not need to spend as much time on that subject as you would 
for a new miner. Similarly, a newly hired experienced miner would not 
require much training on the health and safety aspects of an assigned 
task in which the miner has 15 years' prior experience. You are in the 
best position to assess the amount of training time needed to ensure 
the miner is adequately trained before he or she begins work at your 
mine, and the final rule is consistent with this. The final rule allows 
you to tailor the newly hired experienced miner training to the 
individual miners and concentrate the training on appropriate areas. 
For these reasons, it would be impractical and inappropriate for us to 
impose a minimum hour requirement for pre-work training for newly hired 
experienced miners.
    For the same reasons as those stated in the preamble discussion of 
final Sec. 46.5(b), the final rule includes instruction on emergency 
medical procedures as a required pre-work training subject under final 
Sec. 46.6(b)(3). In addition, we have revised the final rule from the 
proposal so that the pre-work training subject language in final 
Sec. 46.6(b)(1) and (2) for newly hired experienced miners is 
consistent with that in final Sec. 46.5(b)(1) and (2) for new miners 
(e.g., clarified that the mine tour in paragraph (b)(1) is 
``walkaround'' training, and provided examples of potentially hazardous 
conditions on which training may be given in paragraph (b)(2)).
    The proposal would have required you to provide annual refresher 
training to newly hired experienced miners on an accelerated schedule--
within 90 days after they begin their assigned work duties. The 
proposal would also have required that the refresher training cover 
four specified subjects.
    A few commenters supported the proposed requirement that miners 
receive annual refresher training within the 90-day period after 
employment. One of these commenters stated that MSHA accident and 
injury data show that a significant number of deaths and injuries occur 
during miners' initial periods of employment. In contrast, a 
significant number of commenters objected to the inclusion of annual 
refresher training as part of the training requirements for newly hired 
experienced miners. Many of these commenters also opposed the 90-day 
deadline for the training.
    One commenter who opposed the proposed requirements stated that 
experienced miners at mines covered by the rule should receive the same 
training within the same time periods as part 48 requires for 
experienced miners. Generally, Sec. 48.26 requires operators to give 
pre-work instruction on specified subjects for all experienced miners, 
except miners returning to the same mine following an absence of 12 
months or less. Part 48 also requires that experienced miners returning 
to mining after an absence of five years or more must receive this pre-
work training in no less than eight hours.
    One commenter recommended that the 90-day period in proposed part 
46 be increased to 120 days in the final rule to provide a greater 
opportunity for operators to train miners during the normal cycle of 
refresher training and to credit the eight-hour refresher requirement 
with smaller training sessions. However, given the high employee 
turnover rate in the mines covered by the final rule, most commenters 
maintained that the refresher training requirement would create 
significant scheduling problems for small- to medium-sized mine 
operators, who would be forced to hold multiple refresher training 
sessions. Commenters stated that small operators do not have the 
resources to provide an eight-hour annual refresher training course to 
each newly hired experienced miner on a schedule that varies from the 
normal refresher training cycle. In addition, commenters asserted that 
refresher training was not necessary if the miner had received 
refresher training at another mine within the previous year or if 
miners receive initial pre-work training coupled with task training.
    One commenter pointed out that it would not be efficient to require 
smaller and more frequent training sessions, which the commenter 
believed was the practical effect of the refresher training 
requirement. Another commenter noted that the proposed requirement 
would necessitate breaking up work crews on a frequent basis and 
assigning other workers to fill in for the absent miner being trained. 
This commenter believed this would have an adverse impact on safety at 
those workplaces.
    We have carefully considered the comments submitted on proposed 
Sec. 46.6(b) and agree that a requirement for eight hours of refresher 
training on an accelerated schedule for newly hired experienced miners 
would create unnecessary burdens for many operators, without providing 
a clear benefit to the health and safety of miners. For these reasons, 
the final rule does not adopt the proposed refresher training 
requirement for experienced miners. Instead, final Sec. 46.6(c) 
provides that newly hired experienced miners must receive training on 
self-rescue and respiratory devices if they are used at the mine. This 
is in addition to the pre-work training requirements under final 
Sec. 46.6(b), which must also address site-specific hazards at the 
mine.
    We do not agree with the commenter who recommended that experienced 
miner training requirements in part 46 be made identical to Sec. 48.26. 
As stated elsewhere in this preamble, the conditions and workforce at 
the mines

[[Page 53115]]

covered by part 46, as well as the resources available to small 
operations, are different from those at mines covered by part 48. The 
final rule requires initial training for these miners before they begin 
work, as well as training on additional subjects no later than 60 days 
after they begin work. This will ensure that these miners have the 
appropriate orientation and instruction before and shortly after they 
begin work, to prepare them to work in a safe and healthful manner at 
their new places of employment.
    As mentioned above, the final rule requires that newly hired 
experienced miner training on the specified subjects be completed no 
later than 60 days after the miner begins work. The 60-day deadline is 
consistent with a similar deadline for completion of the training 
subjects for new miners under final Sec. 46.5(c). This responds to some 
commenters who were concerned that it was confusing to have different 
deadlines for similar training for new miners and experienced miners. 
Additionally, under final Sec. 46.4(e), operators may credit short 
training sessions towards experienced miner training as long as they 
are documented properly.
    Some commenters recommended that the final rule include a provision 
for newly hired experienced miners similar to the proposed provision 
that 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. According to one 
commenter, there is no justification for requiring more of experienced 
miners if they can demonstrate through practice, to the satisfaction of 
a competent person, that they are familiar with the health and safety 
aspects of an assigned task. We agree with this commenter, and 
Sec. 46.6(d) of the final rule specifically allows experienced miners 
to practice as part of the training on the health and safety aspects of 
a task, under the close observation of a competent person. As discussed 
in the preamble for final Sec. 46.5(e), the final rule replaces the 
term ``close supervision'' with the term ``close observation.''
    Final Sec. 46.6(e) is new to the final rule and makes clear that 
the scope of training for newly hired experienced miners is not limited 
to the subjects listed in Sec. 46.6 (b) and (c). The courses listed in 
these paragraphs are only minimum courses of instruction. Operators 
should tailor their newly hired experienced miner training program to 
their specific mining operations and the needs of the individual 
miners.
    Final Sec. 46.6(f) adopts language that was proposed in 
Sec. 46.6(c). Under this provision, you are not required to provide the 
training specified under Sec. 46.6 (b) and (c) if the newly hired 
experienced miner returns to your mine after an absence of 12 months or 
less. The final rule requires, that, before the miner begins work, a 
competent person inform the miner of changes at the mine that occurred 
during the miner's absence that could endanger his or her safety or 
health. This provision was adopted from recent revisions to Sec. 48.26. 
A miner's absence of 12 months or less does not warrant requiring the 
miner to repeat experienced miner training at the same mine. Instead, 
the final rule treats the returning miner almost as though he or she 
never left. Consistent with this approach, the returning miner must 
receive any annual refresher training that was missed during his or her 
absence, no later than 90 days after the miner starts work. We received 
little comment on this aspect of the proposal. However, one commenter 
was concerned that miners who returned to a mine after an absence of 
more than 12 months would not be informed about changes at the mine 
that occurred during his or her absence. Although the final rule does 
not specifically require that a miner be informed of such changes, the 
final rule does require that any experienced miner returning to the 
same mine after an absence greater than 12 months receive newly hired 
experienced miner training under Sec. 46.6. We expect that this 
training would cover any changes at the mine that would have an impact 
on the miner's health or safety.
    Proposed Sec. 46.6(d) would have allowed miners who are employees 
of independent contractors and who work at the mine on a short-term 
basis, such as drillers or blasters, to receive either newly hired 
experienced miner training or site-specific hazard training. We 
received considerable adverse comment on this aspect of the proposal. 
One commenter believed that operators, given the choice, would always 
opt to provide contractors with hazard training, not the more extensive 
experienced miner training under Sec. 46.6. This commenter was 
concerned that contractors would receive little training under part 46. 
In fact, under the final rule, independent contractor employees who are 
``miners'' must receive comprehensive training, either as ``new 
miners'' under Sec. 46.5 or as ``newly hired experienced miners'' under 
Sec. 46.6. These workers must also receive appropriate task training 
under Sec. 46.7, annual refresher training under Sec. 46.8, and site-
specific hazard awareness training under Sec. 46.11.
    Several commenters correctly pointed out that these contractor 
employees are not ``newly hired'' because they are still employed by 
the same employer, in this case, the independent contractor. Commenters 
contended that these miners should receive only site-specific hazard 
awareness training for each mine where they work and not be required to 
repeat experienced miner training under Sec. 46.6 each time they move 
from mine to mine. For the same reason, other commenters requested that 
we clarify that miners who move among mines operated by the same 
company are not ``newly hired experienced miners'' for training 
purposes. Commenters noted that the proposed rule was unclear on 
whether the event that triggers newly hired experienced miner training 
is the miner beginning work at a new mine or the miner beginning 
employment with a new employer.
    We agree that it is unnecessary for miners to receive newly hired 
experienced miner training whenever they move from one mine to another, 
while remaining employed by the same employer, whether production-
operator or independent contractor. In response to these comments, the 
final rule includes a definition of the term ``newly hired experienced 
miner,'' and provides that experienced miners who move from one mine to 
another, such as drillers and blasters, but who remain employed by the 
same production-operator or independent contractor are not considered 
newly hired experienced miners.
    You should be aware that final Sec. 46.11, which addresses site-
specific hazard awareness training, requires you to provide miners who 
move from one mine to another mine while remaining employed by the same 
production-operator or independent contractor with site-specific hazard 
awareness training for each mine.

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 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 final rule implements this statutory provision 
by requiring operators to provide miners with training for new tasks 
and new health and safety information concerning assigned tasks before 
the miners perform the tasks. This section

[[Page 53116]]

generally adopts the proposed provisions, but includes several changes 
from the proposal in response to comments.
    In developing final Sec. 46.7, we have attempted to address the 
comments received and to develop practical requirements for effective 
health and safety training programs at the mines covered by this rule. 
Although Sec. 46.7 will allow you greater flexibility in the 
implementation of new task training to fit your specific mining 
operations and workforce, we have determined that the new requirements 
will not reduce protection afforded to surface nonmetal miners under 
similar standards in existing part 48. While the approach taken under 
part 46 may be less structured and more flexible than part 48, the 
ultimate result will be the effective health and safety training of 
surface nonmetal miners who are assigned new tasks or whose assigned 
tasks are modified and the modification has some impact on the health 
and safety risks encountered by the miner.
    The task training requirements in the final rule are intended to 
reduce the likelihood of accidents resulting from a miner's lack of 
knowledge about the potential hazards of a task. This section requires 
operators to provide miners with important health and safety 
information before they perform a new or modified task. This will 
ensure that miners are prepared to protect themselves and to avoid 
endangering other workers at the mine.
    Many commenters supported the task training requirements in the 
proposed rule. These commenters stated that employees need to be aware 
of the hazards and the risks associated with the jobs or tasks that 
they perform and be familiar with the systems, tools, equipment, and 
procedures required to control, reduce, or eliminate hazards. Several 
commenters noted that proper task training is the key to preventing 
injuries and fatalities.
    Some commenters recommended that new task training requirements be 
patterned after the requirements in part 48. Under part 48, a program 
for training on certain enumerated tasks 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. Other commenters were supportive 
of the performance-oriented requirements in the proposed rule.
    The final rule, like 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.
    Many commenters stated that effective task training includes a 
combination of different types of training, such as classroom 
instruction, demonstration by the competent person, practical hands-on 
training, and evaluation of the miner's ability to apply the training 
in the workplace. We agree with these commenters, and the flexibility 
provided in the final rule is intended to allow each operator to design 
and implement an effective task training program that is suitable for 
each miner.
    Final Sec. 46.7(a) and (b) adopt the requirements of proposed 
Sec. 46.7(a). The requirements in these two paragraphs were included in 
the proposal in a single paragraph but have been separated into two 
paragraphs in the final rule for clarity.
    Section 46.7(a) of the final rule requires you to provide any miner 
who is reassigned to a new task in which he or she has no previous work 
experience with training in the health and safety aspects and safe work 
procedures specific to that new task. This training must be provided 
before the miner performs the new task. This is adopted with a minor 
change from the proposed rule.
    The final rule provides that task training must be provided to any 
miner who is ``reassigned to a new task.'' The proposal would have 
required task training for a miner who was ``assigned'' to a new task. 
This terminology is used in the final rule in response to commenters 
who indicated they were confused about the relationship between new 
task training requirements in this section and new miner training 
requirements in proposed Sec. 46.5. This language is intended to 
clarify that task training requirements in this section supplement the 
new task training-referred to as ``instruction in the health and safety 
aspects of assigned tasks''--that miners must receive as part of new 
miner training and newly hired experienced miner training under 
Secs. 46.5 and 46.6. This change is made in response to several 
commenters who pointed out that operators must provide miners with 
instruction in ``health and safety aspects of the task'' as part of the 
24 hours of new miner training. These commenters questioned what the 
distinction was between that aspect of new miner training and task 
training under this section. Another commenter observed that the 
proposed rule seemed to suggest that new miner training must include 
training in the health and safety aspects of all tasks that he or she 
will perform in the first year of employment. This commenter emphasized 
that task training is an ongoing effort, conducted each time a miner 
will perform a task for the first time.
    Task training should in fact be an ongoing process, and neither the 
proposed rule nor the final rule requires a new miner to receive 
instruction, as part of new miner or newly hired experienced miner 
training, in every task he or she will perform in the first year. We 
agree that the final rule should clarify the relationship between task 
instruction for new miners under Sec. 46.5 and for newly hired 
experienced miners under Sec. 46.6, and new task training under 
Sec. 46.7. Training in the health and safety aspects of tasks for new 
miners under Sec. 46.5 and for newly hired experienced miners under 
Sec. 46.6 is the same type of training as new task training under this 
section. Newly hired miners must receive task training in the tasks 
they will perform, either as part of new miner training or newly hired 
experienced miner training, as appropriate. After miners have received 
this initial training and they are ``reassigned'' to a new task (from 
the task that they were initially assigned and for which they already 
received task training), final Sec. 46.7(a) requires task training in 
that newly assigned task before the miner performs it.
    Final Sec. 46.7(b) requires you to provide task training if a 
change occurs in a miner's task that affects the health and safety 
risks encountered by the miner. This requirement has been adopted with 
some change from the proposed rule. The final rule clarifies that a 
requirement for task training is triggered by changes that affect the 
health and safety risks encountered by the miner, rather than by a 
change in the assigned task. This means that task training is required 
whenever any change in the task could impact the health and safety 
conditions under which the miner works.
    Many commenters questioned what type of change in a task would 
trigger the requirement for task training. Although it would be 
impractical to compile a comprehensive list of such changes, we can 
provide a few examples. Task training is intended to ensure that miners 
receive new training before they are exposed to new health and safety 
hazards, so that they can avoid, control, or eliminate potential 
hazards as they perform their job. Such a change could involve a 
modification

[[Page 53117]]

to a piece of equipment that introduces new potential safety hazards 
for the miner that operates the equipment. For example, the controls on 
a loader may be modified, causing the loader to respond more quickly. 
The miners who operate this equipment must be informed of the 
modifications to the controls and must be given task training that 
allows them to become familiar and comfortable with the new controls 
before they begin to use the loader for work. Another example would be 
a change to a piece of equipment that increases the occupational noise 
or dust exposure levels for the miner who operates it. Before the miner 
is exposed to the increased noise or dust hazards, the operator must 
ensure that the miner is informed of the new health concerns and 
receives instruction in how to avoid, control or eliminate the new 
health concerns. In any case, if an operator is in doubt as to whether 
a change warrants additional task training, the operator should opt in 
favor of providing the training.
    Final Sec. 46.7(c) provides that you are not required to provide 
task training under paragraphs (a) and (b) to miners who have received 
training in a similar task or who have previous work experience in the 
task, and who can demonstrate the necessary skills to perform the task 
in a safe and healthful manner. The final rule, unlike the proposal, 
requires you to observe that the miner can perform the task in a safe 
and healthful manner to determine whether the miner needs task 
training. This is intended to prevent unnecessary or duplicative 
training, while ensuring that miners are adequately trained for 
unfamiliar tasks. For example, if an equipment operator is already 
trained in the health and safety aspects of loader operation, has been 
evaluated, and has demonstrated the ability to perform the duties of a 
loader operator, there is no reason to require the equipment operator 
to repeat task training.
    In the preamble to the proposed rule, we indicated that we intended 
that task training would not be required for miners who have performed 
a task before and who are able to safely perform the task. We noted 
that 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. A number of commenters questioned this 
statement in the preamble, believing that such a requirement would be 
too restrictive. These commenters were of the opinion that a miner's 
experience, references, or other information could provide a 
satisfactory basis for a conclusion that task training is not required. 
These commenters recommended that the final rule clarify that a 
demonstration is not required in all cases to determine whether task 
training is needed and that the basis of the determination is within 
the discretion of the operator.
    We do not agree with these commenters. Although a miner may be able 
to document prior work experience, this does not ensure that the miner 
has retained sufficient expertise in the task to make task training 
unnecessary. Under part 48, task training is not required if the miner 
has either been trained in the task or has performed the task, and has 
demonstrated safe operating procedures for the task within the last 12 
months. We agree with this approach, and the final rule reflects our 
conclusion that an actual demonstration of a miner's ability to perform 
a task safely and healthfully will guarantee that miners who need task 
training will receive it. A paper review would not adequately ensure 
that the miner has the current ability and knowledge to safely perform 
the task. Operators would also be able to evaluate whether training is 
needed on elements of the task that may be site-specific. For example, 
a miner who is reassigned to operate a particular piece of mobile 
equipment may have already operated the same type of equipment at 
another mine. However, the terrain of the area where the equipment will 
be operated at the current mine may warrant additional task training to 
ensure that the miner can safely operate the equipment in the new 
terrain. For these reasons, the final rule specifies that a miner must 
make such a demonstration before an operator can determine that task 
training is not needed. In making this determination, you must observe 
the miner performing the task to verify that the miner has the 
requisite knowledge and skills to perform the task safely.
    The requirements of final Sec. 46.7(d) have been adopted from the 
proposal with some changes and provide that practice under the close 
observation of a competent person may be used to satisfy task training 
requirements if hazard recognition training specific to the task is 
given before the miner performs the task. The proposal would have 
allowed practice under the ``close supervision'' of a competent person 
to be used to fulfill task training requirements. Commenters generally 
supported the concept of permitting hands-on practice to fulfill the 
requirement for task training. Commenters stated that very effective 
and safe training in a new or modified task can include the miner 
practicing the task while under the close observation of a competent 
person, who instructs the individual in how to perform the task in a 
safe manner. However, a number of commenters objected to the 
restrictive nature of the requirement that the practice had to be 
``under the close supervision of a competent person.'' Some commenters 
were concerned that in cases where the competent person was a fellow 
miner, the competent person would not have the authority to supervise 
or direct the work of the miner receiving the training. These 
commenters suggested a term other than ``supervision'' be used to 
describe the monitoring of the performance of the task. Other 
commenters took issue with the term ``close supervision'' as well as 
with the explanation of the requirement in the preamble to the 
proposal. These commenters believed that ``close supervision'' was not 
practical, because it suggested that the undivided attention of the 
person providing the training was necessary. Some commenters 
recommended that the person providing the training be the judge of how 
closely the miner needs to be supervised, depending on the person's 
understanding of the miner's knowledge and experience and of the risks 
involved in the task.
    The final rule, in response to commenters, allows practice under 
the ``close observation of a competent person'' to be used to fulfill 
some of the task training required by this section. This allows the 
miner to gain experience in the task and to learn how to avoid the 
hazards presented by the performance of the task in the surrounding 
environment. ``Close observation'' means that the competent person is 
in the immediate vicinity of the miner and is watching the actions of 
the miner being trained to make sure that the miner is performing the 
task in a safe and healthful manner. The nature of the task will 
determine the degree of attention that is needed, and the level of 
observation should be commensurate with the risks inherent in the task 
being performed. The competent person who is observing the miner should 
also be assessing the miner's proficiency in performing the task, as 
part of the training itself as well as the competent person's 
evaluation of whether the training is effective.
    The final rule includes the additional requirement that the miner 
must be provided with hazard recognition training for the task before 
he or she begins to practice the task. This is similar to the provision 
for practice for new miners in final Sec. 46.5(e). Without a 
requirement for the miner to receive this important information, the 
miner would learn by trial and error, an approach that

[[Page 53118]]

relies on mistakes (which can often involve accidents, injuries, and 
fatalities) for learning to occur. For example, if you assign a miner 
to operate a loader for the first time, you should explain that the 
loader can be tipped over much more easily than other vehicles the 
miner may have operated. The potential for the loader to tip over could 
be explained with the use of photographs, illustrations, or graphs. 
This tip-over potential cannot be safely taught through hands-on 
training, because it would require the miner to tip over the loader.
    The most effective training program will include a combination of 
training methods and be flexible enough to apply in different work 
environments and for miners with varying levels of education and work 
experience. Classroom training is one way that preliminary instruction 
can be provided as a prelude to practical hands-on training exercises.
    Final Sec. 46.7(e), like the proposal, allows you to credit task 
training provided under this section toward new miner training, as 
appropriate. Many commenters supported this aspect of the proposal, and 
it has been adopted unchanged into the final rule. We envision that 
crediting would occur when a new miner's work assignment changes during 
the first 90 days of employment. The miner would have received training 
in the health and safety aspects of assigned tasks before he or she 
begins work under Sec. 46.5(b)(4). If the miner is reassigned to a new 
task within the initial 90-day period, training in the new task given 
to comply with Sec. 46.7 could be credited toward the 24 hours of new 
miner training.
    Some commenters recommended that the final rule allow task training 
to be credited to newly hired experienced miner training. However, we 
have not included a specific provision for this in the final rule. 
Because the final rule does not specify a minimum number of hours for 
newly hired experienced miner training, there is no need to explicitly 
provide for task training to be credited toward newly hired experienced 
miner training.
    We solicited comment in the preamble to the proposal on whether the 
final rule should allow task training to be credited toward annual 
refresher training requirements. Although some commenters supported 
credit for task training to satisfy annual refresher training, other 
commenters strongly opposed it. These commenters stated that miners who 
were trained on a number of different tasks during the course of a year 
could accumulate enough hours of task training to satisfy the annual 
refresher requirement, yet the miner would not have received refresher 
training on other hazards and important health and safety concerns.
    We agree with those commenters who recommended against allowing 
task training to be credited towards annual refresher training. Task 
training is designed to ensure that the miner can perform a new or 
modified job in a safe manner and may only be relevant to a small 
portion of the miner's work at the mine. In contrast, refresher 
training is intended to reinforce previous training and enhance the 
miner's general knowledge and skills so that he or she can work in a 
safe and healthful manner at all times. For these reasons, the final 
rule does not allow crediting of task training toward the annual 
refresher training requirements.
    Finally, one commenter recommended that the final rule specify that 
task training must be conducted by a person who is experienced in the 
task. The final rule does not adopt this specific recommendation, 
because the final rule requires that training must be given by a 
``competent person,'' defined as a person with the ability, training, 
experience, or knowledge to provide training to miners in his or her 
area of expertise. We believe that this definition adequately addresses 
the necessary level of expertise, and, for these reasons, the 
requirement recommended by the commenter is not needed and has not been 
adopted in the final rule.

Section 46.8  Annual Refresher Training

    This section of the final rule addresses requirements for refresher 
health and safety training for miners. Section 115(a)(3) of the Mine 
Act requires all miners to receive at least eight hours of refresher 
training no less frequently than once every 12 months. The Act does not 
specify the subject areas that must be covered as part of this 
training. In the Federal Register notice announcing the public hearings 
for the proposed rule, we requested comment on whether the final rule 
should require that specific subject areas be covered by refresher 
training, and if so, what subjects should be required.
    Commenters generally supported the concept of annual refresher 
training. Commenters recognized that refresher training provides miners 
with an important review of information that helps them to minimize the 
health and safety risks at their workplaces. The annual refresher 
training requirements in the final rule are intended to reduce the 
likelihood of accidents and illnesses by reinforcing previous training 
and enhancing miners' ability to work in a safe and healthful manner.
    The final rule takes a performance-oriented approach to annual 
refresher training to allow operators, particularly small operators, to 
direct their training resources to subjects that are relevant to their 
workforce and operations. The proposed rule would have required that 
you provide each miner with no less than eight hours of refresher 
training at least once every 12 months. A few commenters believed that 
eight hours of training every year was an excessive requirement for 
many small operations and that this requirement appears to assume that 
all mining operations are large and complex. Another commenter 
recommended that the final rule require refresher training every 24 
months, not every 12 months.
    The Mine Act is very specific in its requirement that miners 
receive no less than eight hours of refresher training at least every 
12 months. We therefore have no discretion to adjust or reduce these 
minimum requirements.
    Several commenters maintained that the language in the proposed 
rule suggested that miners must receive all of their refresher training 
in one eight-hour session. One commenter stated that eight hours of 
refresher training on one day a year, or even over several days within 
a short period of time leaves a lot to be desired. This commenter 
favored shorter training sessions over a longer period of time. A 
number of commenters recommended that the final rule make clear that 
miners may receive refresher training in shorter sessions over the 12-
month period.
    We agree that providing refresher training in shorter installments 
over 12 months is an appropriate way for operators to satisfy refresher 
training requirements under the final rule. We did not intend the 
language of the proposed rule to leave you with the impression that 
such an approach would be unacceptable. We have attempted to clarify 
this in the final rule. The final rule does not adopt the language of 
the proposed rule that requires refresher training to be completed 
``once every 12 months.'' Instead, under final Sec. 46.8(a)(1), you 
must provide each miner with no less than eight hours of annual 
refresher training no later than 12 months after the miner begins work 
at the mine, or no later than March 30, 2001, whichever is later. 
Thereafter, final Sec. 46.8(a)(2) requires you to provide each miner 
with eight hours of training no later than 12 months after the previous 
annual refresher training was completed. Under the final rule, you must 
provide miners at your mine with annual refresher

[[Page 53119]]

training no later than 6 months after the rule has gone into effect, 
unless the miner is newly employed at the mine. In that case, the miner 
has 12 months from the date of employment to complete the first 
installment of refresher training.
    The deadline of six months after the rule's effective date for 
completion of annual refresher training is intended to ensure that 
there is no question as to when miners must receive the first 
installment of annual refresher training under the final rule. We 
considered allowing one year after the effective date for annual 
refresher training to be completed, which would be two years after 
publication of the final rule in the Federal Register. We determined 
that a one-year deadline beyond the effective date would result in a 
significant delay in miners receiving this training. We believe that it 
is important for those miners who may not have been receiving regular 
refresher training to be provided with this training as soon as 
practicable. However, we recognize that many operators need time to 
prepare for compliance with the final rule. For these reasons, we have 
allowed six months beyond the effective date for completion of the 
first eight-hour installment of refresher training.
    Under the final rule, you may provide annual refresher training in 
one eight-hour session once every 12 months. You may also satisfy the 
refresher training requirement by providing miners with smaller blocks 
of training over the entire year, so long as the total training time 
adds up to at least eight hours.
    Some commenters stated that the 12-month deadline should begin to 
run only after a miner has completed 24 hours of new miner training or 
an experienced miner has completed newly hired experienced miner 
training. For example, if a new miner begins work on the first of 
January 2001 and completes new miner training on March 31, 2001, these 
commenters believe that the deadline for the miner to complete eight 
hours of annual refresher training should be March 2002 rather than 
January 2002. Other commenters pointed out that such an approach would 
unnecessarily delay the annual refresher training for a new miner. We 
agree with commenters who were concerned about a delay in miners 
receiving annual refresher training, and we are not persuaded by 
commenters recommending that the 12-month period be extended, 
particularly for new miners in their first year at the mine. Timely 
refresher training serves to reinforce the initial training received by 
new miners, who are more vulnerable to accidents and injuries than 
experienced miners. For these reasons, final Sec. 46.8(a)(1) makes 
clear that all miners, whether new miners or newly hired experienced 
miners, must receive their first eight-hour installment of refresher 
training no later than 12 months after they begin work at the mine.
    The proposed rule would have required refresher training to cover 
instruction on changes at the mine that could adversely affect the 
miner's health and safety. Under the proposal, mine operators would 
have discretion to select other training topics, although the proposal 
did include a list of suggested training topics.
    Most commenters believed that the subjects covered in refresher 
training should not be mandated, but that operators should instead have 
the discretion to select subjects that are relevant to the health and 
safety needs of the miners at their particular mining operation. 
Several commenters indicated that they believed this flexibility could 
only enhance worker safety, not detract from it. Many of these 
commenters indicated that training subjects could vary from year to 
year, based on such factors as the mine's accident and injury 
experience.
    Final Sec. 46.8 (b) and (c) generally adopt the requirements of 
proposed Sec. 46.8(b). Section 46.8(b) of the final rule requires you 
to provide annual refresher training on changes at the mine that affect 
the health and safety risks encountered by the miners in performing 
their work. Commenters generally supported this requirement in the 
proposed rule. However, some commenters were concerned that information 
on changes at the mine should be provided to the miners as soon as the 
operator becomes aware of the change or before the operator implements 
a planned change. These commenters stated that this information should 
not be communicated to miners on a 12-month rotation. We agree with 
these commenters that operators should convey such information to 
miners as soon as possible. However, this information must be 
reiterated during refresher training to ensure that miners are 
adequately informed of changes in conditions that could affect their 
health or safety.
    Commenters generally recommended that we provide examples in the 
preamble to assist operators in understanding their compliance 
responsibilities. Some commenters questioned what type of changes would 
fall within the requirements Sec. 46.8(b) and must be addressed as part 
of refresher training. One example would be if you plan to change the 
traffic patterns at your mine. Other examples include the introduction 
of new or retrofitted equipment into the work environment, or a new 
blasting schedule.
    Final Sec. 46.8(c) clarifies that refresher training must also 
address other health and safety subjects that are relevant to mining 
operations at the mine. The proposal would simply have provided that 
training may include instruction on certain subjects and listed several 
examples. The final rule also includes a list of possible subjects, 
indicating that training may address these subjects. The language in 
the final rule has been amended slightly to clarify that the additional 
subjects are recommended but are not mandatory.
    In the preamble of the proposed rule, we stated that we expected 
that you would carefully select the subjects covered in refresher 
training at your mine, to ensure that your miners received practical 
and useful instruction that effectively addresses the health and safety 
conditions at your operation. We requested comments on whether the 
final rule should include more detailed requirements or guidance for 
refresher training programs. In addition, we specifically requested 
comments on whether the final rule should require instruction on 
particular topics, similar to part 48, and if so, which subjects should 
be included.
    Several commenters stated that, although general guidelines for 
possible training subjects were a good idea, the final rule should 
allow operators flexibility in choosing subjects. By allowing operators 
to identify the subjects to be covered, the relevance of the training 
to the work environment will be increased. The commenters stated that 
refresher training should cover subject areas relevant to the safety 
problems at the mine. One commenter suggested that the subjects listed 
in the proposal, which were derived from topics listed in part 48, 
should be covered at least once every three years as part of refresher 
training. Other commenters stated that the final rule should take the 
approach of part 48 and include a list of required courses of 
instruction. Several commenters recommended that the final rule list 
the courses included in part 48 and indicate that the courses would be 
mandatory ``where applicable.'' These commenters stated that the 
additional language would allow operators to forgo course subjects that 
are not applicable to their operation, giving them more time for other 
relevant subjects. Other commenters stated that a review of health and 
safety standards should be included in annual refresher training.

[[Page 53120]]

    We are persuaded by commenters' recommendations that the final rule 
afford operators flexibility in selecting subjects for refresher 
training. Refresher training that is tailored to address subjects 
relevant to the mine's methods of operation, equipment, accident and 
illness history, etc., can be extremely effective. The final rule 
reflects this determination and provides a performance-oriented 
approach that allows you to implement a refresher training program that 
will provide the most health and safety benefits to your miners.
    The performance-oriented approach to annual refresher training in 
the final rule is designed to allow you to develop and implement the 
type of training that will be most beneficial for your miners. We 
believe this approach will enable all production-operators and 
independent contractors to design and implement an effective annual 
refresher training program that maximizes the impact of the required 
training for their miners.
    The list of recommended subjects contained in final Sec. 46.8(c) 
includes subjects that were not included in the proposed rule. The 
final rule references subjects that address specific types of equipment 
and work activities that have been involved in the most serious 
accidents in the mines covered by the final rule. This list is derived 
from our analysis of the fatal, disabling, and lost time injury data 
from 1991 to 1998 for the mines covered by this rule. For example, the 
final rule recommends that refresher training address the hazards of 
mobile equipment, such as haulage trucks, service trucks, tractors, and 
front-end loaders, because that type of equipment has been involved in 
the most number of accidents. Equipment that follows mobile equipment 
in the greatest number of accidents includes conveyor systems; cranes; 
crushers; excavators; and dredges. We recommend that annual refresher 
training address the safe operation of this equipment if you use it at 
your mine or, if you are an independent contractor, your employees 
operate the equipment or are exposed to its hazards.
    The final rule includes other recommended training subjects that we 
identified based on our analysis of the injury data, including 
maintenance and repair; material handling; fall prevention and 
protection; and machine guarding. We intend to continue to analyze the 
accident and injury data to identify areas that should be covered as 
part of refresher training. In that way, we can develop relevant course 
materials that will be useful in the training given under the final 
rule.
    One commenter stated that it takes at least eight hours to provide 
comprehensive first aid training. This commenter advocated a separate 
requirement for first aid for all miners and recommended that the eight 
hours for annual refresher training be focused on other subjects. We 
acknowledge that comprehensive first aid training can require a 
significant amount of time, often at least eight hours according to 
commenters. However, for purposes of annual refresher training, the 
final rule allows you to provide miners with a review of first aid 
subjects, rather than extensive comprehensive first aid training. 
Further, the requirements of the final rule are minimum requirements, 
and the final rule does not prevent you from providing miners with more 
than the mandated eight hours of health and safety refresher training 
each year. In fact, we encourage you to provide as much training as 
possible to miners to enhance their abilities to perform their assigned 
duties without endangering themselves or others.
    A number of commenters raised the issue of whether the final rule 
should impose a minimum duration on refresher training sessions, such 
as 15 minutes or half an hour. This issue is also relevant to other 
types of training and is discussed in detail in the preamble discussion 
of final Sec. 46.4(e).
    Several commenters had general questions about the application of 
refresher training requirements. One commenter stated that he provides 
annual refresher training during a scheduled maintenance shutdown that 
occurs each year in April or May. He indicated that he would like to 
continue to provide training in this manner, even though miners could 
receive annual refresher training 13 months after the previous year's 
training. Our interpretation of the requirements of the Mine Act would 
not allow such a training schedule. Miners must receive annual 
refresher training no later than 12 months after the previous annual 
refresher training was completed, as required by final Sec. 46.8(a)(2).
    Another commenter stated that truck drivers that come to the mine 
to deliver or haul away materials should not be required to receive 
eight hours of refresher training every year. This commenter indicated 
that the drivers spend 10 minutes loading their trucks at the mine 
site, and one to two hours delivering the load, for a total of about 
one hour per day spent at the mine site.
    Although we are unable to give a definitive answer on this scenario 
since we may not have all of the facts, we can provide a general 
response. Delivery and customer or haul truck drivers, such as those 
described by the commenter, are not included in the definition of a 
``miner'' in the final rule. Because the annual refresher training 
requirements apply to miners, the drivers described by the commenter 
would not be considered miners, and you would not be required to 
provide them with eight hours of refresher training. However, you must 
provide the drivers with site-specific hazard awareness training under 
Sec. 46.11 of the final rule.

Section 46.9  Records of Training

    This section of the final rule requires you to record and certify 
that miners have received health and safety training under this part. 
The final rule adopts many of the proposed provisions, but includes 
several changes to address commenters' concerns.
    Like the proposal, the final rule requires production-operators and 
independent contractors to record and certify the training provided to 
miners and to provide miners with a copy of their training certificates 
at the completion of the training. Copies of a miner's training records 
and certificates must be provided to the miner at the termination of 
employment, upon the miner's request. The final rule adopts the 
flexible approach of the proposal and does not require that these 
records and certificates be maintained on a prescribed form, but allows 
operators the option of using alternate forms or methods to MSHA Form 
5000-23 for making and keeping these records. The final rule, like the 
proposal, also allows you to maintain training records and certificates 
away from the mine site, if you have the capability of producing them 
upon request. In response to comments, the final rule specifies when 
records of training must be made, certified, and provided to miners. 
Finally, the record retention period under the final rule has been 
changed from the proposal and responds partially to commenters who 
recommended that the final rule adopt the record retention requirements 
of part 48.
    Section 46.9 of the final rule, unlike the proposal, references 
both ``training records'' and ``training certificates.'' This 
terminology recognizes that there is a distinction between a record and 
a certificate. Operators are required to make records of miner training 
at specified intervals, but the final rule does not require that 
certain records be signed and certified by the person responsible for 
training at the mine until some time after the record has been made. 
For example, an operator who provides miners with one hour of

[[Page 53121]]

annual refresher training every month must record the training after 
each session, but is not required to certify the record until miners 
have received the full eight hours of refresher training. A training 
``record'' made under final Sec. 46.9(c) becomes a training 
``certificate'' after the training has been certified under 
Sec. 46.9(b)(5). To make clear that the provisions of final Sec. 46.9 
apply to both ``records'' and ``certificates,'' the final rule includes 
both terms, where appropriate.
    A number of commenters addressed the issue of recordkeeping. Many 
commenters supported the flexibility in recordkeeping allowed by the 
proposal, stating that recordkeeping requirements beyond those included 
in the proposal would be particularly excessive and onerous for small 
operators. Other commenters believed that the proposed recordkeeping 
requirements were too burdensome for small operators. One commenter 
recommended that recordkeeping requirements under the final rule be 
flexible and recognize that the offices of many small operators are 
their homes, and these operators typically do not maintain their 
records electronically.
    Final Sec. 46.9(a) requires you to record and certify that each 
miner has received training required under this part. Consistent with 
the Mine Act requirement that certifications be kept on a form approved 
by the Secretary of Labor, the final rule provides that training 
records and certificates may 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. If you choose to use Form 5000-23, 
you should be aware that the form was not specifically designed for use 
under part 46. For that reason, you should take care to include on that 
form all the information required by part 46. However, under the final 
rule, as under the proposal, you may also use any other format that 
contains the minimum information listed in paragraph (b) of this 
section.
    Commenters generally supported the proposal allowing operators the 
flexibility to choose the appropriate form for their training records. 
However, one commenter strongly opposed the use of MSHA Form 5000-23, 
stating that the form is confusing and fraught with ambiguity. This 
commenter recommended that Form 5000-23 be revised, and until that time 
it would not be technically feasible to use the form. Another commenter 
recommended revision of Form 5000-23 to make it more appropriate for 
the recordkeeping requirements of part 46 and also easier for small 
operators to use.
    Although we do not agree that Form 5000-23 is so confusing as to be 
unusable, the final rule does not mandate the form's use. An operator 
may elect not to use that form, and instead may adopt or develop any 
other form, so long as the information required by final Sec. 46.9(b) 
is included on the form.
    The requirements of final Sec. 46.9(a) allow those of you who may 
already be using MSHA Form 5000-23 for recording training to continue 
to use this form under the final rule. However, the final rule allows 
operators, particularly small operators who are less likely to have 
formal health and safety programs at their mines, the flexibility to 
use other formats that are compatible with the information requirements 
specified in paragraph (b). This provision has been adopted unchanged 
from the proposed rule. Under this paragraph, a form is approved by us 
if it contains the information listed in paragraphs (b)(1) through 
(b)(5), including--
    (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 
competent person who provided the training; and
    (3) The name of the mine or independent contractor, MSHA mine 
identification number or independent contractor identification number, 
and the location where the training was given.
    In response to comments, the final rule requires the ``printed full 
name'' of the person who received the training, but does not 
specifically require the first, middle, and last name, as the proposal 
would have required. One commenter was concerned that many miners used 
shortened forms of proper names or other nicknames to identify 
themselves and that some people never go by their first names and 
middle initials. Another commenter stated that the final rule should 
allow the use of the name on a miner's payroll record, even though it 
may not be the miner's full given name. These commenters believed that 
requiring that training records include all three given names was 
unnecessary and could result in confusion. In response, the final rule 
does not specifically require that the record include the trainee's 
first, middle, and last name. Instead, the miner's ``full name'' must 
be included. Our expectation is simply that the name indicated on the 
training form allows ready identification of the miner who received the 
training.
    Final Sec. 46.9(b)(3) requires, where appropriate, the training 
record to include the name of the independent contractor and MSHA 
independent contractor identification number. This requirement was not 
included in the proposal but has been added to the final rule to be 
consistent with the fact that independent contractors with employees 
who are miners as well as production-operators are responsible for 
training for their miner employees.
    Section 46.9(b)(4) of the final rule, like the proposal, also 
incorporates the provisions of section 115(c) of the Mine Act and 
requires that the form include the statement, printed on the form in 
bold letters and in a conspicuous manner, that ``false certification is 
punishable under section 110(a) and (f) of the Federal Mine Safety and 
Health Act.'' Section 110(a) of the Mine 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 $55,000. 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.
    Under Sec. 46.9(b)(5), the form must also include the statement ``I 
certify that the above training has been completed,'' signed by the 
person designated in the MSHA-approved training plan as responsible for 
health and safety training. This has been adopted without change from 
the proposal.
    In the proposed preamble, we solicited comment on whether miners 
should be required to sign their training certificates and whether 
other persons besides the person responsible for training at the mine 
should be allowed to sign the certificates. In response, one commenter 
stated that miners should not be required to sign certificates, but 
that operators or the operator's designee should be allowed to make the 
certification. Another commenter stated that the operator is ultimately 
responsible for providing training and should be responsible for 
certifying that training has been received.
    The final rule adopts the proposed requirement that the person 
designated by the operator as responsible for health and safety 
training certify that the training has been received as indicated in 
the record. Although the competent person who provides the training 
would have the knowledge to certify that the training reflected on the 
certificate was

[[Page 53122]]

provided, we agree with commenters who recommended that the operator or 
the operator's designee be responsible for training certification. For 
these reasons, the final rule provides that the individual who oversees 
health and safety training at the mine must verify and certify that 
required training has been provided.
    The final rule does not require our approval of your recordkeeping 
format. Your records must simply include the minimum information listed 
in the final rule. This allows operators to tailor their methods of 
recordkeeping to their particular operations. We expect that many 
operators will use a computer-based recordkeeping system. 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 final 
rule differs from the information called for on MSHA Form 5000-23. In 
some cases, the final rule requires more information than the form, in 
some cases, less. The required information will allow us to determine 
compliance with the training requirements. The information will also 
enable miners and their representatives to determine that necessary 
training has been provided for every miner.
    We will be available to assist you in determining whether alternate 
record formats are suitable for use in complying with the final rule. 
We will also provide MSHA Form 5000-23 training certificate forms upon 
request, for those of you who choose to use them in complying with part 
46. You may also obtain copies of Form 5000-23 from out Internet Home 
Page at www.msha.gov.
    The requirements of final Sec. 46.9(c)(1) through (5) have been 
added to the final rule in response to commenters who questioned when 
records and certificates of training must be made. One commenter 
observed that the proposed rule did not recognize the difference 
between a training record and a certificate of training and that 
requiring training certification and distribution of copies of the 
certificates for all attendees after a brief safety meeting would 
result in an unnecessary recordkeeping burden. This commenter stated 
that the time needed to issue the training certificates in such a 
situation could easily exceed the amount of time spent providing the 
training. Another commenter stated that the final rule should require 
operators to issue training certificates to miners only upon completion 
of the entire training program, and not each time incremental training 
is provided. Still another commenter recommended that the final rule 
should allow the maintenance of periodic training records in a form 
consistent with how the training records are kept and that 
certification should only be required for training programs that have 
been completed.
    The proposed rule did not clearly indicate when operators must make 
records of miner training and when they must provide training 
certificates to miners. Some of the comments on the proposed 
recordkeeping requirements led us to conclude that the proposal was not 
sufficiently clear on the timing of these requirements and that the 
final rule must detail the deadlines for both recordkeeping and 
certification, so there is no question as to when operators must take 
these actions. The final rule's recordkeeping requirements are also 
designed to allow us to verify that training has been received by 
miners by the appropriate deadline. Although these provisions are 
relatively extensive, we believe that this level of detail is needed to 
avoid confusion and assist operators in complying with their training 
responsibilities.
    Final Sec. 46.9(c)(1) clarifies when operators must make a record 
of new miner training under the final rule. A record of new miner 
training must be made under Sec. 46.9(b) no later than--
    (1) When the miner begins work at the mine;
    (2) 60 days after the miner begins work at the mine; and
    (3) 90 days after the miner begins work at the mine, if applicable.
    This means that you must make a record of new miner training that 
includes the information required in paragraphs (b)(1) through (b)(4) 
no later than these specified intervals. This will allow us to verify 
that a new miner has received required training before he or she begins 
work and also that training in all required subjects has been received 
by the 60-day deadline. Additionally, operators who provide training to 
new miners in other subjects to make up the 24 hours of required 
training must document this training no later than 90 days after the 
miner begins work. For example, if an MSHA inspector wants to verify 
that a new miner working at a mine has received all required pre-work 
training, the inspector will inspect the records required for new miner 
training under paragraph (c)(1)(i). However, the final rule does not 
require operators to certify these records and provide them to miners 
until a miner has completed new miner training. Specifically, final 
Sec. 46.9(d)(1) requires operators to certify new miner training 
records when the full 24 hours of training has been completed and also 
to provide miners with copies of their certificates at that time.
    The final rule takes a similar approach in Sec. 46.9(c)(2) for 
records of newly hired experienced miner training under Sec. 46.6 and 
requires operators to make records of training no later than--
    (1) When the miner begins work at the mine; and
    (2) 60 days after the miner begins work at the mine.
    Final Sec. 46.9(d) requires newly hired experienced miner records 
to be certified and provided to miners after the miners have completed 
all of the newly hired experienced miner training. This is similar to 
the requirement for certification of new miner training.
    Final Sec. 46.9(c)(3) requires operators to record new task 
training upon completion of the training, and final Sec. 46.9(c)(4) 
requires operators to make a record of annual refresher training upon 
completion of each training session. Consistent with the other types of 
training already discussed, records of annual refresher training are 
not required to be certified and provided to miners until the miner has 
received all eight hours of annual refresher training. For example, if 
an operator satisfies refresher training requirements for miners by 
providing a one-hour health and safety talk once a month, the operator 
must document each one-hour session upon its completion under 
Sec. 46.9(c)(4). However, operators are not required to ensure that 
these records are certified and copies provided to miners under 
Sec. 46.9(d) until after miners have received the full eight hours of 
training.
    Final Sec. 46.9(c)(5) provides that a record must be made upon 
completion of site-specific hazard awareness training provided to 
miners under Sec. 46.11. This clarifies the intent of the proposal, 
reflected in the preamble, that records of site-specific hazard 
awareness training would be required only for ``miners,'' not for those 
persons at the mine site who do not fall within this definition. 
Because it was obvious that this distinction was not clear to many 
commenters, we have included this provision in the final rule. 
Additionally, final Sec. 46.9(i) further clarifies this issue, which 
the preamble addresses in greater detail below. You must make a record 
of training under paragraphs (c)(1) through (c)(5) as prescribed in the 
following table:

[[Page 53123]]



             Recordkeeping Deadlines for Training Provisions
------------------------------------------------------------------------
       Type of training         When the record of training must be made
------------------------------------------------------------------------
New miner training...........  No later than when the miner begins to
                                perform work at the mine; 60 calendar
                                days after the miner begins work at the
                                mine, if applicable; and 90 calendar
                                days after the miner begins work at the
                                mine, if applicable.
Newly-hired experienced miner  No later than when the miner begins to
 training.                      perform work at the mine; and 60
                                calendar days after the miner begins
                                work at the mine, if applicable.
New task training............  Upon completion of new task training.
Annual refresher training....  After each session of annual refresher
                                training.
Site-specific hazard           Upon completion by miners of site-
 awareness training.            specific hazard awareness training.
------------------------------------------------------------------------

    Final Sec. 46.9(d)(1) through (d)(5), as already discussed, require 
operators to ensure that all records of training under paragraphs 
(c)(1) through (c)(5) have been certified under paragraph (b)(5) and a 
copy provided to the miner at the completion of the training. 
Paragraphs (d)(1) through (d)(5) clarify when the different categories 
of training are considered completed under the final rule and must be 
certified. These provisions are consistent with Sec. 115(c) of the Mine 
Act, which requires that operators give miners copies of their training 
certificates at the completion of each training program. The final rule 
specifies that certification and distribution of certificates to miners 
is required--
    (1) Upon completion of the 24 hours of new miner training;
    (2) Upon completion of newly hired experienced miner training;
    (3) At least once every 12 months for new task training, or upon 
the miner's request, if applicable;
    (4) Upon completion of 8 hours of annual refresher training; and
    (5) Upon completion of site-specific hazard awareness training 
provided to miners.
    The 12-month certification requirement for task training has been 
adopted into the final rule from our policy in this area under part 48. 
Under that policy, operators may provide miners with copies of their 
task training certificates at 12-month intervals. This is intended to 
reduce unnecessary paperwork. However, in the event that a miner wishes 
a copy of the certificate of the task training that he or she has 
received before the 12-month period has elapsed, the final rule 
provides that operators must provide a miner with a copy of the task 
training certificate upon request. You must certify records of training 
under paragraphs (d)(1) through (d)(5) and provide a copy to the miner 
as prescribed in the following table:

               Certification of Records and Copy to Miners
------------------------------------------------------------------------
                                   Record must be certified and copy
       Type of training                   provided to miner--
------------------------------------------------------------------------
New miner training...........  Upon completion of the 24 hours of new
                                miner training.
Newly hired experienced miner  Upon completion of newly hired
 training.                      experienced miner training.
New task training............  At least once every 12 months or upon
                                request by the miner.
Annual refresher training....  Upon completion of the 8 hours of annual
                                refresher training.
Site-specific hazard           Upon completion by miners of site
 awareness training.            specific hazard awareness training.
------------------------------------------------------------------------

    Final Sec. 46.9(e), like the proposal, adopts the statutory 
provision that false certification that training was completed is 
punishable under section 110(a) and (f) of the Mine Act. This aspect of 
the proposal received no comment and has been adopted without change 
into the final rule.
    Several commenters were opposed to requiring operators to provide 
copies of training certificates to miners automatically upon completion 
of a training program, stating that it would impose an unnecessary, 
impractical, and burdensome paperwork requirement. These commenters 
strongly recommended that the final rule require training certificates 
to be provided to miners only ``upon request,'' similar to the approach 
taken in the proposal for miners who leave an operator's employ. Other 
commenters specifically questioned the need for this requirement for 
records of task training, stating that to require a certificate to be 
prepared and provided each time task training is given would be 
administratively difficult and would result in a proliferation of 
certificates that would not be helpful to employees. These commenters 
recommended that operators be permitted to maintain records of task 
training without having to provide copies of the certified records to 
miners.
    The final rule does not adopt these recommendations. The Mine Act 
clearly requires operators to provide miners with copies of their 
training certificates upon completion of the training, and the 
requirements of the final rule are consistent with this statutory 
requirement. Additionally, the final rule clarifies that operators must 
provide miners with copies of their certificates only after all 
training of a particular type has been completed. This minimizes the 
recordkeeping and paperwork burden on operators, while fulfilling the 
statutory mandate.
    Under final Sec. 46.9(f), as under the proposed rule, you must give 
a miner a copy of his or her training records and certificates when the 
miner leaves your employ, upon the miner's request. This adopts the 
provision in Sec. 115(c) of the Mine Act that miners are ``entitled'' 
to a copy of their certificates when they terminate their employment 
with an operator. We interpret 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. 
Those commenters who addressed this aspect of the proposal supported 
this interpretation, and this provision is adopted from the proposal 
unchanged.
    As we indicated in the proposal, 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 part 46 at other mining operations. However, we 
also anticipate that some miners will

[[Page 53124]]

terminate their employment because they are retiring or otherwise have 
no expectation of returning to mining, and for these reasons the final 
rule does not require that you provide these records to the miner 
automatically.
    Final Sec. 46.9(g), like the proposal, requires you to make 
available at the mine site a copy of each miner's training records and 
certificates for inspection by us and for examination by miners and 
their representatives. Under this paragraph, you must also have the 
capability to produce the records and certificates upon request by us, 
miners, or their representatives, if you do not maintain these records 
at the mine site.
    Commenters generally supported the flexibility that the proposal 
would give operators to maintain training records at a location other 
than the mine site. One commenter contended that it would be highly 
impractical for many small operators to maintain training records at 
the mine site, because many mines have no offices or other places to 
maintain records. Another commenter indicated that some aggregate 
operations are so small that there are no office facilities, computers, 
fax machines, or even conventional telephones. This commenter 
recommended that the final rule allow the retention of training records 
where the operation's other business records are maintained. If the 
records were requested by us for examination or by miners or their 
representative, the commenter suggested that the operator could fax or 
e-mail them to the person who made the request. However, one commenter 
expressed concern about allowing training certificates to be maintained 
away from the mine site, because it could delay MSHA inspectors from 
identifying untrained miners, who could continue to be exposed to 
hazards while attempts are made to produce the miners' training 
records.
    Although the proposed rule would have allowed training certificates 
to be kept at a location away from the mine site, the proposal did not 
specify a time within which copies of the certificates must be produced 
after a request by us or by miners. We indicated in the preamble to the 
proposal that we expected that operators would be able to produce 
copies of training certificates within a reasonable time, which in most 
cases would be a relatively short period of time. We solicited comment 
on whether commenters supported imposing a deadline for operators to 
produce training certificates that are maintained away from the mine 
site. Many commenters who addressed this issue recommended that the 
final rule establish a deadline of one business day after the request 
for these certificates to be produced.
    Section 115(c) of the Mine Act provides that miner training records 
be ``maintained by the operator'' and ``available for inspection at the 
mine site.'' The clear purpose of section 115 is to ensure that 
training records can be inspected by us and examined by miners and 
their representatives to determine whether miners have received 
required training at a specific operation.
    The use of electronic information accessed by computers is an 
increasingly common business practice in general industry as well as in 
the mining industry. This type of technology can provide almost 
instantaneous communication and transfer of documents, even to remote 
locations. Electronic recordkeeping is typically more efficient and 
access to electronic records is often much faster than with traditional 
paper-based recordkeeping. As a result, we have concluded that if an 
operator's training records can be quickly accessed at the mine site by 
e-mail or fax machine, those records are ``available at the mine site'' 
for purposes of section 115(c) of the Mine Act. Allowing operators to 
maintain miner training records at a central location will promote the 
Mine Act's intent of flexibility in minimizing the paperwork burden and 
will further the objectives of the Paperwork Reduction Act of 1995.
    However, we have determined that allowing a specific deadline, such 
as one business day, for operators to produce training records and 
certificates could unduly delay us in verifying that miners have 
received required training. Under section 104(g)(1) of the Mine Act, 
miners who have not received training required under section 115 must 
be immediately withdrawn from the mine. For those reasons, the final 
rule does not allow operators a specific period of time in which to 
produce training records and certificates. Instead, our expectation is 
that operators will produce these documents upon request. However, if 
an operator does not have the ability at the mine site to quickly 
access records and certificates maintained elsewhere, the operator must 
maintain the records and certificates at the mine site so that they can 
be produced in a short period of time for inspection and examination.
    We do not believe that this requirement places an unreasonable 
burden on those operations where electronic access to records is not 
feasible. These are typically small operations with few employees and, 
as a result, a limited number of training records and certificates. 
Because of the small number of records, recordkeeping at the mine site 
is less problematic.
    Final Sec. 46.9(h) requires you to maintain copies of training 
records and certificates for each currently employed miner during his 
or her employment, except records and certificates of annual refresher 
training under Sec. 46.8, which you must maintain for two years. You 
must also maintain copies of training certificates and training records 
for at least 60 days after a miner terminates employment.
    Under the proposal, operators would have been required to maintain 
all of a miner's training records as long as the miner continued to be 
employed by the operator and for one year after the miner terminated 
his or her employment with that operator. A number of commenters 
questioned why the proposal would require such a long retention period 
for training records of currently employed miners. Commenters believed 
that this was quite burdensome in comparison to the two-year retention 
period of part 48 for currently employed miners and recommended that 
the part 48 retention periods be adopted in the part 46 final rule. 
Another commenter recommended that the final rule require that training 
records be kept a minimum of 12 months, regardless of whether the miner 
is still employed by the operator.
    We acknowledge that the retention period for records of currently 
employed miners in the proposed rule could result in a significant 
recordkeeping burden for miners who remain employed with the same 
operator over a period of many years. However, we use these records to 
verify that miners have received required training. It makes sense to 
require retention of records of new miner training, newly hired 
experienced miner training, and task training as long as the miner 
remains employed with the operator, not just for two years. This will 
allow us to determine that miners have received the necessary initial 
training and training in new or modified tasks, even several years 
after the training has been given. On the other hand, retention of 
records of annual refresher training would not be necessary for more 
than two years, which is the retention period under part 48. Typically, 
examination of records over the last 24 months will provide us with a 
sufficient basis to verify that an operator has complied with refresher 
training requirements. For these reasons, the final rule does not 
require you to retain refresher training records and certificates 
longer than two years.
    In response to comments, the final rule requires operators to 
maintain training records and certificates for at

[[Page 53125]]

least 60 days after the miner terminates his or her employment. This is 
consistent with existing part 48 requirements. As stated above, the 
proposal would have required operators to keep these records for one 
year after miners terminate their employment. We are persuaded by those 
commenters who advocated a 60-day retention period, which allows us to 
verify that required training has been given to all miners, including 
miners who recently terminated their employment, while minimizing the 
recordkeeping burden placed on operators.
    Finally, one other commenter recommended that training records for 
miners be retained for at least 36 months after they terminate their 
employment with the operator, to be consistent with Sec. 46.5, which 
allows new miner training courses to be credited towards the final 
rule's new miner training requirements for up to 36 months after the 
miner takes the courses. This commenter believed that a 36-month 
retention period would make it easier for miners to take advantage of 
this provision. Although this commenter makes a reasonable point, we do 
not believe it is necessary to impose a 36-month record retention 
period to address this situation. Instead of requiring a longer 
retention period in the final rule, we encourage miners to retain 
copies of their training records and certificates from previous 
employment. A miner who is terminating his or her employment with an 
operator and who wants evidence of prior training may obtain copies of 
his or her training records and certificates. The miner will then be 
able to document his or her prior training at the new mine.
    Paragraph (i) has been added to final Sec. 46.9 in response to 
comments that reflected commenters' confusion about the recordkeeping 
requirements for site-specific hazard awareness training. This 
provision states that you are not required to make a record of site-
specific hazard awareness training under Sec. 46.11 for persons who are 
not miners under Sec. 46.2. However, you must be able to provide 
evidence to us, upon request, that the training was provided, such as 
by producing the training materials that are used, the written 
information distributed to persons upon their arrival at the mine, or a 
visitor log book that reflects that site-specific hazard awareness 
training has been given. Many operators already maintain log books 
where they track visitors to the mine and make entries in the book that 
indicate that visitors have received appropriate site-specific 
training. This would be an effective and acceptable method of 
demonstrating compliance with the requirements for site-specific hazard 
awareness training under the final rule.

Section 46.10  Compensation for Training

    This section of the final rule addresses when training under this 
part must be conducted and how miners must be compensated when they 
receive training. This section, like the proposal, adopts the 
provisions of section 115 of the Mine Act that address compensation for 
miners who receive required training.
    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 final Sec. 46.10 incorporates this statutory 
requirement and provides 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 final rule 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 schedules have been established for a period of time to 
be accepted as the common practice. 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.
    Final Sec. 46.10(a), like the proposal, also provides 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, 
received little comment, and has been adopted unchanged from the 
proposal.
    Final Sec. 46.10(b) requires that miners be compensated for the 
additional costs, such as mileage, meals, and lodging they may incur in 
attending training sessions at a location other than the normal place 
of work. 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.
    Although commenters generally supported the proposed training 
compensation requirements, they requested clarification on a few 
issues. One commenter noted that training provided to miners after a 
long work day or on what would ordinarily be a day off would not be 
very effective. This commenter's concern reflects the rationale for the 
statutory requirement that training be conducted during normal working 
hours. Training provided to miners when they are tired after working an 
entire shift typically will be less effective than training provided 
when they are rested and alert.
    Several commenters questioned whether travel time to training at 
locations away from the mine must occur during normal working hours. 
These commenters indicated that they may need to schedule miners to 
work longer than their normal shifts on days that the miners receive 
training. For example, if a miner's normal work shift is eight hours, 
would the final rule prohibit the miner traveling an hour each way to 
attend an eight-hour training session, for a total of ten hours?
    We do not interpret the statute to mandate such a restrictive 
result. Under our interpretation, the final rule would not prohibit 
travel to an off-site training location outside of normal working 
hours, so long as the actual training occurs during normal working 
hours. However, a miner is entitled to compensation for travel to off-
site training. As a practical matter, we expect that little, if any, 
off-site training will require extensive travel.
    One commenter questioned whether mileage costs must be provided to 
miners who attend training at a site that is immediately adjacent to 
the mine site. This commenter stated that because the training location 
did not qualify as the normal place of work, a strict interpretation of 
this aspect of the proposal would require the miners to be compensated 
for mileage costs.
    We agree that the statute and this aspect of the final rule can be 
interpreted in such a way as to produce unreasonable results. However, 
our intention is to interpret and enforce the final rule in a 
reasonable manner. In the case described by the commenter, we expect 
that the costs incurred by miners in traveling to a training location 
in the vicinity of the normal place of work would be the same as their 
ordinary

[[Page 53126]]

costs of getting to work. Because the statute requires that miners be 
compensated for additional costs of attending off-site training, we 
would not require reimbursement for travel costs in such a case. 
However, miners must be reimbursed for mileage costs in the more 
typical case where miners must drive a number of miles beyond their 
normal place of work to an off-site training location.
    Finally, a few commenters noted that certain types of training may 
not be available during normal working hours. For example, miners who 
wish to take training from the Red Cross may need to take it at night. 
Although we are sympathetic to these commenters' concerns, the Mine Act 
specifically prohibits such a practice for training that is provided to 
satisfy part 46 requirements. We have no discretion to allow training 
to be provided outside of normal working hours if it is used to satisfy 
training requirements under this part. As a result, while we do not 
discourage the participation of miners in relevant safety and health 
training, such training must be conducted during normal working hours 
in order for it to be credited toward the minimum requirements of part 
46.

Section 46.11  Site-Specific Hazard Awareness Training

    This section of the final rule generally adopts the proposed 
provisions for site-specific hazard awareness training, but includes 
several changes from the proposal in response to comments. Under the 
final rule, like the proposal, persons who do not fall within the 
definition of ``miner'' under Sec. 46.2 are required to receive site-
specific hazard awareness training. The final rule also adopts, with 
some change, the proposed requirement that employees of independent 
contractors who are ``miners'' must also receive site-specific hazard 
awareness training at the mines where they work. Site-specific hazard 
awareness training must be given under the final rule before persons 
are exposed to mine hazards.
    Several commenters stated that the title of proposed Sec. 46.11 
should be changed to more accurately describe the type of training that 
is required by the section. Commenters observed that the training under 
this section is intended to make persons aware of site-specific hazards 
before they enter the mine site and are exposed to these hazards. These 
commenters believed that the meaning of the term ``hazard training'' 
was unclear and could be confused with task training. We agree with 
these commenters, and the title of this section has been change to 
``Site-Specific Hazard Awareness Training'' to more precisely identify 
the type of training that is required by this section of the final 
rule.
    Commenters generally supported the concept of providing site-
specific hazard awareness training to persons before they are exposed 
to mine hazards. Several commenters observed that the type of people 
who come to the mine site and the degree of their exposure to hazards 
varies tremendously. These commenters stated that the extent of hazard 
awareness training required by the final rule should vary greatly as 
well. Several commenters indicated that the type, duration, and 
delivery of this training should be commensurate with the hazards to 
which persons at the mine site are exposed.
    Paragraph (a) of the final rule adopts the requirements of proposed 
Sec. 46.11(c) and requires you to provide site-specific hazard 
awareness training before the affected person is exposed to mine 
hazards. We believe there is no reason to allow any delay in providing 
hazard awareness training. In fact, allowing persons to be exposed to 
mine hazards before they receive hazard awareness training would defeat 
the purpose of the training. We expect that hazard awareness training 
will not be overly burdensome and can be effectively provided to 
affected persons before they enter the mine site. We have moved this 
provision to the first paragraph of this section in the final rule to 
emphasize that site-specific hazard awareness training must be provided 
before the affected person is exposed to mine hazards.
    A number of commenters questioned whether operators must provide 
hazard awareness training to persons who are on mine property but who 
are not exposed to mine hazards. One commenter used as examples soft 
drink delivery personnel or other visitors who go no further than the 
office to perform their work. These commenters recommended that the 
final rule clarify that hazard awareness training is not required for 
individuals who come onto mine property but who do not travel or 
perform work in the portion of the property upon which extraction or 
production is conducted. Some of these commenters also recommended that 
the final rule clarify what constitutes a ``mine site'' as that term is 
used in Sec. 46.11.
    As discussed in the preamble for final Sec. 46.2, the final rule 
defines ``mine site'' as an area of the mine where mining operations 
occur. The final rule also defines ``mining operations'' to include 
activities such as mine development, drilling, blasting; maintenance 
and repair of mining equipment; and associated haulage of materials 
within the mine. For example, the mine site would include areas where 
mining operations take place, such as the pit, quarry, stockpiles, mine 
haul roads, or areas where customers travel or haul material. These 
definitions are intended to make clear that hazard awareness training 
is required for persons who are in the area of the mine property where 
mining-related activity takes place. Persons who are on mine property 
but who are never in the area of the property where mining operations 
occur are not required to receive hazard awareness training. For 
example, we do not intend that hazard awareness 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. However, office or staff personnel who travel occasionally 
about the mine site must receive hazard awareness training, unless they 
are accompanied by an experienced miner under final Sec. 46.11(f).
    Final Sec. 46.11(b) requires that you provide site-specific hazard 
awareness training to any person who is not a miner as defined in 
Sec. 46.2 but who is present at a mine site. This section also includes 
examples of such persons. Paragraphs (b)(1) through (b)(7) include 
examples of persons who are required to receive hazard awareness 
training, and the provisions of these paragraphs have been adopted with 
minor changes from the proposal. These persons include office or staff 
personnel; scientific workers; delivery workers; customers, including 
commercial over-the-road truck drivers; construction workers or 
employees of independent contractors who are not miners under 
Sec. 46.2; maintenance or service workers who do not work at a mine 
site for frequent or extended periods; and vendors or visitors. This 
mirrors the list included in final Sec. 46.2(g)(2) of persons who do 
not fall within the definition of ``miner'' and is discussed in greater 
detail in the preamble for that section. This list is intended to 
assist operators in determining the types of persons who must receive 
hazard awareness training, but is not meant to be all-inclusive.
    The final rule requires hazard awareness training for vendors and 
visitors who are present at a mine site. Some commenters stated that 
these individuals are not usually exposed to mine hazards, and 
therefore they should not have to receive hazard awareness training. 
However, other commenters stated that this training should be

[[Page 53127]]

provided to visitors and vendors before they are exposed to mine 
hazards. We agree with commenters who 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 awareness training.
    We have added the provisions of Sec. 46.11(b)(5) to the final rule 
to make clear that you must provide site-specific hazard awareness 
training to construction workers and employees of independent 
contractors who are not miners. This was the intent under the proposal, 
but language to that effect has been included in the final rule to 
ensure that there is no uncertainty about the requirements of final 
Sec. 46.11. As discussed earlier, we stated in the preamble to the 
proposal that construction workers would be covered by part 46. 
However, the proposed rule itself made no specific mention of 
construction workers. We have addressed that omission in the final 
rule.
    The provisions of final Sec. 46.11(c) have been adopted with some 
change from proposed Sec. 46.6(d) and take the place of provisions 
proposed under Sec. 46.11(b). Under final Sec. 46.11(c), you are 
required to provide miners, such as drillers or blasters, who move from 
one mine to another mine while remaining employed by the same 
production-operator or independent contractor with site-specific hazard 
awareness training for each mine. The provision of the final rule 
covers miners employed by both the independent contractor and the 
production-operator. The proposal would have required you to provide 
hazard training to each person who is an employee of an independent 
contractor and who is working at the mine as a miner, unless the miner 
has received newly hired experienced miner training at the mine. 
However, as explained in the preamble discussion of Sec. 46.6 and in 
response to comments, we have concluded that miners who move from mine 
to mine are not ``newly hired'' when the begin work at a new mine if 
they remain employed by the same employers, whether production-
operators or independent contractors. As a result, the final rule does 
not adopt the proposed option of newly hired experienced miner training 
for these miners.
    Commenters generally supported a requirement for site-specific 
hazard awareness training for miners if they move from mine site to 
mine site. Contract drilling and blasting personnel are only two 
examples of these types of miners. Although these employees must 
receive comprehensive training because they are ``miners'' under the 
final rule, they must also receive site-specific hazard awareness 
training at each new mine before they begin work at the mine. As a 
practical matter, we expect that many, if not most, independent 
contractor employees will receive hazard awareness training under final 
Sec. 46.11(b) because they do not meet the definition of ``miner'' 
under Sec. 46.2. However, employees of independent contractors who do 
fall within the definition of ``miner'' also need effective orientation 
to their new work environments before they begin their job duties. This 
is consistent with the observations of commenters who stated that some 
miners move from mine to mine while remaining employed by the same 
production-operator and that these miners need to receive site-specific 
hazard awareness training as a minimum before they begin to work at 
each new mine. We agree with these commenters and Sec. 46.11(c) 
specifically requires these miners to receive this training, whether 
employed by production-operators or independent contractors. This 
requirement recognizes that miners may encounter new or unfamiliar 
site-specific hazards as they travel from mine to mine.
    Final Sec. 46.11(d) has been adopted from the definition of 
``hazard training'' that was included in proposed Sec. 46.2. Commenters 
recommended that we move the definition of ``hazard training'' from 
Sec. 46.2 to Sec. 46.11, because Sec. 46.11 specifically addresses 
hazard awareness training requirements. Commenters believed that this 
would make it easier for the mining community to understand the 
requirements of Sec. 46.11. We agree with commenters that consolidation 
of this language in one place is more straightforward, and we have 
incorporated the language from the definition in proposed Sec. 46.2 
into Sec. 46.11 of the final rule. Site-specific hazard awareness 
training is defined in this paragraph as information or instructions on 
the hazards a person may be exposed to while on mine property, as well 
as on applicable emergency procedures. Paragraph (d) further provides 
that the training must address site-specific health and safety risks, 
such as unique geologic or environmental conditions, recognition and 
avoidance of hazards such as electrical and powered-haulage hazards, 
traffic patterns and control, restricted areas, warning and evacuation 
signals, evacuation and emergency procedures, or other special safety 
procedures. The proposal would have provided that the hazards may 
include site-specific risks and included a similar list.
    The final rule makes it mandatory that hazard awareness training 
cover site-specific risks. This is in response to commenters who 
pointed out that the purpose of the training is to ensure that persons 
who are unfamiliar with the mine and with the hazards of a particular 
operation have been provided with enough information to avoid exposure 
to hazards while they are at the mine. We recommend that you review the 
examples of hazards set forth in the final rule and ensure that the 
site-specific hazard awareness training addresses, at a minimum, all of 
the risks that are applicable at your mine.
    Under final Sec. 46.11(e), like proposed Sec. 46.11(d), you may 
provide site-specific hazard awareness training through the use of 
written hazard warnings, oral instruction, signs and posted warnings, 
walkaround training, or other appropriate means that alert affected 
persons to site-specific hazards at the mine.
    Commenters had varying opinions on how long hazard awareness 
training should last and what form it should take. Some commenters were 
concerned that the proposed rule allowed too much flexibility in how 
the site-specific hazard awareness information would be presented to 
affected persons. These commenters observed that, in some cases, 
operators could comply with the requirement for site-specific training 
exclusively through the use of warning signs, and that such training 
would be insufficient to protect persons who are unfamiliar with mining 
operations from the hazards that they may be exposed to at the mine. 
One commenter recommended that hazard awareness training include some 
form of personal instruction or interaction, such as walkaround 
training. Other commenters stated that the final rule should allow 
operators the flexibility to tailor their hazard awareness training to 
the specific conditions at their mine.
    The final rule, like the proposal, affords operators the discretion 
to tailor site-specific hazard awareness training to the unique 
operations and conditions at their mines. However, the training must in 
all cases be sufficient to alert affected persons to site-specific 
hazards. Depending on the circumstances and the type and degree of the 
person's exposure to mine hazards, you may provide hazard awareness 
training through informal but informative conversations. In other 
cases, you may choose to provide some form of walkaround training by 
guiding the trainee around the mine site, pointing out particular 
hazards or indicating those areas that the person should avoid, or by 
some combination of these methods.

[[Page 53128]]

    We also intend that hazard awareness training be appropriate for 
the individual who is receiving it and that the breadth and depth of 
training vary depending on the skills, background, and job duties of 
the recipient. For example, it may be appropriate for you to provide 
hazard awareness 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. More extensive hazard 
awareness training might be needed for an equipment manufacturer's 
representative who comes onto mine property to service or inspect a 
piece of mining equipment. Although this individual may not be on mine 
property for an extended period, the person's exposure to mine hazards 
may warrant more training. Appropriate hazard awareness training would 
typically be more comprehensive for contractor employees who fit the 
definition of ``miner'' because they are engaged in mining operations. 
These employees receive comprehensive training but also need 
orientation to the mine site and information on the mining operations 
and mine hazards.
    The final rule allows you the flexibility to tailor your hazard 
awareness training to the specific conditions and practices at your 
mine. However, in most cases, an effective site-specific hazard 
awareness training program will include a combination of the different 
types of training listed in this paragraph. For example, you may want 
to provide oral instructions on the site-specific hazards and give the 
affected person the opportunity to ask questions about the mine in 
addition to the use of written handout materials and/or signs and 
posted warnings. The flexibility provided in the final rule is intended 
to allow operators to design and implement effective site-specific 
hazard awareness training programs that are suitable for their mine 
sites and the persons affected.
    Under final Sec. 46.11(f), like proposed Sec. 46.11(e), you are not 
required to provide site-specific hazard awareness training to 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 is not a ``competent person'' as defined in Sec. 46.2, but the 
miner must be sufficiently familiar with the mine's operations and its 
hazards to ensure that the person the miner accompanies is protected 
from danger while at the mine site. This provision gives you the option 
of foregoing site-specific hazard awareness training, most likely for 
one-time visitors. We expect that, in many situations, it may be more 
expedient for the person to be accompanied, such as a visitor who is 
being taken on a mine tour.
    Several commenters supported this provision and recommended that it 
be adopted in the final rule. Other commenters took issue with this 
provision, stating that an escort may not prevent a person unfamiliar 
with the mining environment from being inadvertently exposed to mine 
hazards. Other commenters stated that they believed that providing a 
visitor with an escort while the visitor is at the mine site is the 
most effective way to protect the visitor from mine hazards. We agree 
that people unfamiliar with mining can be protected if they are 
accompanied by an experienced miner at all times. However, although not 
required, there may be circumstances where it is advisable to provide 
individuals with some oral instructions before they enter the mine 
site, even though they will be accompanied by an experienced miner.
    You should note that Sec. 46.9(i) of the final rule specifically 
provides that you are not required to make a record of site-specific 
hazard awareness training for persons who are not ``miners.'' However, 
as indicated in Sec. 46.9, you must be able to demonstrate to 
inspectors that you are in compliance with site-specific hazard 
awareness training requirements. This issue is addressed in greater 
detail under the preamble discussion for final Sec. 46.9.
    Finally, several commenters questioned whether government agents at 
the mine site would be covered by the site-specific hazard awareness 
training requirements in the final rule. The commenter pointed out that 
current MSHA policy for part 48 exempts government agents from hazard 
awareness training requirements. We intend that this issue be addressed 
in the same manner as it is under part 48. Although an argument could 
be made in favor of requiring government officials to receive hazard 
awareness training, we believe that these factors are outweighed by the 
need for these officials to be unimpeded in the exercise of their 
duties at the mine site. We expect that government agencies whose 
personnel visit mine sites will ensure that their employees receive 
adequate instruction and training so that the employees can carry out 
their duties in a safe and healthful manner.

Section 46.12  Responsibility for Independent Contractor Training

    Section 46.12 of the final rule generally adopts the provisions 
proposed for the responsibility of training, which address the 
allocation of responsibility for training between production-operators 
and independent contractors with workers at the production-operators' 
mine sites. Under the final rule, independent contractors are 
responsible for ensuring that their employees who are ``miners'' 
receive comprehensive miner training. This is based on our 
determination that the contractor, not the production-operator, is in 
the best position to train his or her employees in the health and 
safety aspects of their particular tasks. Similarly, production-
operators are primarily responsible for ensuring that independent 
contractor employees who work at the mine site receive required site-
specific hazard awareness training. This is consistent with the fact 
that production-operators are in the best position to provide necessary 
information about hazards at their operations. Final Sec. 46.12 also 
includes provisions that are intended to ensure that production-
operators and independent contractors share information with one 
another about hazards at the mine, so that all employees can work 
safely.
    Final Sec. 46.12(a)(1) provides that each production-operator is 
primarily responsible for ensuring that site-specific hazard awareness 
training is given to employees of independent contractors. Under the 
proposal, production-operators would have been primarily responsible 
for ``providing'' site-specific hazard training to employees of 
independent contractors.
    This aspect of the proposal was the subject of much comment. Many 
commenters objected to holding production-operators responsible for any 
aspect of training for independent contractor employees. These 
commenters maintained that it would be appropriate for the production-
operator to provide the independent contractor with information about 
site-specific hazards, but that responsibility for providing the actual 
training should rest with the independent contractor. One commenter 
asserted that production-operators do not always have control of people 
who come on and off site. Another commenter stated that a requirement 
that production-operators train contractor employees would require the 
production-operators to accept responsibility for a very large number 
of individuals who may visit the mine only on occasion or for 
relatively low-risk activity. This commenter was concerned that 
production-operators would have to redirect their attention to 
contractor employees, away from their own employees who may be working 
at higher risk jobs.

[[Page 53129]]

    Other commenters agreed with placing primary responsibility for 
site-specific hazard awareness training on production-operators. One 
commenter maintained that the production-operator is the only entity 
knowledgeable enough to ensure that independent contractor employees 
are aware of site-specific hazards at the mine site to which they may 
be exposed. Other commenters insisted that the proposal placed 
responsibility for training contractor employees where it belongs-on 
the production-operator for hazard awareness training and on the 
independent contractor for comprehensive training. Several commenters 
believed that the proposed requirements would enhance communication 
between production-operators and independent contractors.
    We continue to believe, as indicated in the preamble to the 
proposed rule, that it is appropriate to place primary responsibility 
for site-specific hazard awareness training on production-operators. 
Production-operators have overall responsibility for health and safety 
conditions at their mine sites and are in the best position to convey 
information about site-specific hazards to workers who come onto mine 
property. However, as we explained in the preamble to the proposed 
rule, final Sec. 46.12(a)(1) does not require production-operators to 
personally provide site-specific hazard awareness training to the 
employees of an independent contractor. For these reasons, the language 
of the final rule varies slightly from the language in the proposal. 
The final rule provides that production-operators are primarily 
responsible for ``ensuring'' that independent contractor employees 
receive required site-specific hazard awareness training. This is 
intended to clarify that production-operators do not need to provide 
the training themselves but must ensure that the training has been 
given. For example, one commenter recommended that the production-
operator and the independent contractor coordinate whether the 
production-operator will provide site-specific hazard awareness 
training information to independent contractor management, who would 
then train the contractor employees, or whether the production-operator 
will provide the information directly to the contractor employees. This 
is an acceptable approach under the final rule. Consistent with final 
Sec. 46.4, production-operators may provide independent contractors 
with site-specific hazard awareness information or training materials 
and arrange for the contractors to provide the training to the 
contractors' employees. However, production-operators retain the 
primary responsibility of ensuring that everyone who comes onto mine 
sites has received the necessary site-specific hazard awareness 
training.
    A few commenters appeared to misunderstand the requirements of 
proposed Sec. 46.12(a). For example, one commenter observed that 
production-operators often hire contractors because production-
operators often do not have the equipment or knowledge to do the job. 
In that instance, the commenter maintained, it would be wrong to expect 
the production-operator to provide comprehensive training to contractor 
employees when the production-operator may not be familiar with their 
work and the associated hazards. In response to this comment, we would 
like to clarify that the final rule, like the proposal, places primary 
responsibility on production-operators to ensure training for 
contractor employees only with regard to site-specific hazard awareness 
training. Final Sec. 46.12(b)(1), discussed below, explicitly provides 
that independent contractors are primarily responsible for providing 
their miner employees with any other training required under this part.
    Final Sec. 46.12(a)(2) adopts the proposed requirement that 
production-operators inform independent contractors of site-specific 
hazards associated with the mine and the obligation of the contractor 
to comply with our regulations, including part 46. This aspect of the 
proposal received little comment, and we have adopted it unchanged into 
the final rule.
    Final Sec. 46.12(b)(1) provides that independent contractors who 
employ ``miners'' are primarily responsible for providing comprehensive 
training to their employees (i.e., training under Secs. 46.5 through 
46.8). Virtually all commenters agreed with this aspect of the 
proposal. We would point out that this provision does not preclude 
independent contractors from arranging for the production-operator to 
provide comprehensive training to the contractors' employees. However, 
the primary responsibility for comprehensive training for contractor 
employees continues to rest on the independent contractor.
    A few commenters suggested that the final rule require production-
operators to verify that independent contractor employees have received 
all training required under part 46. As we indicated in the preamble to 
the proposal, the requirements of this section are consistent with our 
current policy on independent contractors, which provides that 
production-operators have overall compliance responsibility at their 
mines, which includes ensuring compliance by independent contractors 
with the Mine Act and regulations. 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 of this section change 
the production-operators' basic responsibilities for compliance with 
the Act. Production-operators are subject to all provisions of the Act 
and to all standards and regulations applicable to their mining 
operations. One way for production-operators to address this 
responsibility is to confirm when contracting with independent 
contractors that the contractors' employees will receive health and 
safety training and to include this as a provision in the contract. It 
may also be prudent for them to request and maintain evidence of 
independent contractors' compliance with training requirements.
    Under final Sec. 46.12(b)(2), as under the proposal, an 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. We did not receive any comments 
specifically addressing the provisions of this paragraph, and we have 
adopted it without change into the final rule.

XIV. References

    Conference Rep. No. 95-461, 95th Cong., 1st Sess., (1977).
    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 of 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, Notice of Public Hearings, April 14, 1999 [63 FR 18528].
    MSHA, Experienced Miner and Supervisor Training, Final Rule, 
October 6, 1998 [63 FR 53750].
    MSHA, Training and Retraining of Miners Engaged in Shell 
Dredging or Employed at

[[Page 53130]]

Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or 
Surface Limestone Mines, Proposed Rule, April 14, 1999, [64 FR 
18498-18528].
    Omnibus Appropriations Act for 1999, P.L. 105-277, October 21, 
1998.
    S. Rep. No. 105-300 for S. 2440, 105th Cong., 2d Sess., (1998).
    Transportation Equity Act ``TEA-21'' (P.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, U.S. Department of the Interior, Mineral 
Industry Surveys, Crushed Stone and Sand and Gravel in the First 
Quarter of 1999, June 1999, pp. 1-6.
    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: September 23, 1999.
J. Davitt McAteer,
Assistant Secretary for Mine Safety and Health.

    Accordingly, under the authority of 30 U.S.C. 811 and for the 
reasons set out in the preamble, MSHA is amending chapter I, 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 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:

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 plan implementation.
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  Site-specific hazard awareness training.
46.12  Responsibility for independent contractor 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 and other persons at shell dredging, 
sand, gravel, surface stone, surface clay, colloidal phosphate, and 
surface limestone mines.


Sec. 46.2  Definitions.

The following definitions apply in this part:

    (a) Act means the Federal Mine Safety and Health Act of 1977.
    (b) Competent person means a person designated by the production-
operator or independent contractor who has the ability, training, 
knowledge, or experience to provide training to miners in his or her 
area of expertise. The competent person must be able both to 
effectively communicate the training subject to miners and to evaluate 
whether the training given to miners is effective.
    (c) Equivalent experience means work experience where the person 
performed duties similar to duties performed in mining operations at 
surface mines. Such experience may include, but is not limited to, work 
as a heavy equipment operator, truck driver, skilled craftsman, or 
plant operator.
    (d)(1) Experienced miner means:
    (i) A person who is employed as a miner on April 14, 1999;
    (ii) A person who has at least 12 months of cumulative surface 
mining or equivalent experience on or before October 2, 2000;
    (iii) A person who began employment as a miner after April 14, 
1999, but before October 2, 2000 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, Virginia 22203; or
    (iv) A person employed as a miner on or after October 2, 2000 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 at least 12 
cumulative 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.
    (e) Independent contractor means any person, partnership, 
corporation, subsidiary of a corporation, firm, association, or other 
organization that contracts to perform services at a mine under this 
part.
    (f) Mine site means an area of the mine where mining operations 
occur.
    (g)(1) Miner means:
    (i) Any person, including any operator or supervisor, who works at 
a mine and who is engaged in mining operations. This definition 
includes independent contractors and employees of independent 
contractors who are engaged in mining operations; and
    (ii) Any construction worker who is exposed to hazards of mining 
operations.
    (2) The definition of ``miner'' does not include scientific 
workers; delivery workers; customers (including commercial over-the-
road truck drivers); vendors; or visitors. This definition also does 
not include maintenance or service workers who do not work at a mine 
site for frequent or extended periods.
    (h) Mining operations means mine development, drilling, blasting, 
extraction, milling, crushing, screening, or sizing of minerals at a 
mine; maintenance and repair of mining equipment; and associated 
haulage of materials within the mine from these activities.
    (i) New miner means a person who is beginning employment as a miner 
with a production-operator or independent contractor and who is not an 
experienced miner.

[[Page 53131]]

    (j) Newly hired experienced miner means an experienced miner who is 
beginning employment with a production-operator or independent 
contractor. Experienced miners who move from one mine to another, such 
as drillers and blasters, but who remain employed by the same 
production-operator or independent contractor are not considered newly 
hired experienced miners.
    (k) Normal working hours means 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 common practice of the 
production-operator or independent contractor, as applicable.
    (l) Operator means any production-operator, or any independent 
contractor whose employees perform services at a mine.
    (m) Production-operator means any owner, lessee, or other person 
who operates, controls, or supervises a mine under this part.
    (n) Task means a work assignment or component of a job that 
requires specific job knowledge or experience.
    (o) We or us means the Mine Safety and Health Administration 
(MSHA).
    (p) You means 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 
site-specific hazard awareness training.
    (b) A training plan is considered approved by us if it contains, at 
a minimum, the following information:
    (1) The name of the production-operator or independent contractor, 
mine name(s), and MSHA mine identification number(s) or independent 
contractor identification number(s);
    (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 production-operator or independent contractor;
    (3) A general description of the teaching methods and the course 
materials that are to be used in the training program, including the 
subject areas to be covered and the approximate time or range of time 
to be spent on each subject area.
    (4) A list of the persons and/or organizations who will provide the 
training, and the subject areas in which each person and/or 
organization 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 submitted 
to and approved by the Regional Manager, Educational Field Services 
Division, or designee, for the region in which the mine is located. You 
also may voluntarily submit a plan for Regional Manager approval. You 
must notify miners or their representatives when you submit a plan for 
Regional Manager approval. Within two weeks of receipt or posting of 
the plan, miners and their representatives may also request review and 
approval of the plan by the Regional Manager and must notify the 
production-operator or independent contractor of such request.
    (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, if 
you request MSHA approval of your plan, at least two weeks before you 
submit the plan 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 miner 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 under paragraph (d) of this section, 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 calendar days of the date we received 
the training plan for approval, or within 30 calendar days of the date 
we received the request by a miner or miners' representative that we 
approve your plan.
    (g) You must provide the miners' representative, if any, with a 
copy of the approved plan within one week after 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 miner within one 
week after approval.
    (h) 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 calendar days 
after notification of the Regional Manager's decision. The Director 
will issue a final decision of the Agency within 30 calendar days after 
receipt of the appeal.
    (i) You must make available at the mine 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, you must have the capability to provide the plan within one 
business day upon request by us, miners, or their representatives.
    (j) You must comply with the procedures for plan approval under 
this section whenever the plan undergoes revisions.
    (k) The addresses for the EFS Regional Managers are as follows. 
Current information on the EFS organization is available on MSHA's 
Internet Home Page at http://www.msha.gov.

Eastern Regional Manager

Educational Field Services, National Mine Health and Safety Academy, 
1301 Airport Road, Beaver, WV 25813-9426, Telephone: (304) 256-3223, 
FAX: (304) 256-3319, E-mail: [email protected]

Western Regional Manager

Educational Field Services, P.O. Box 25367, Denver, CO 80225-0367, 
Telephone: (303) 231-5434, FAX: (304) 231-5474, E-mail: 
[email protected]


Sec. 46.4  Training plan implementation.

    (a) You must ensure that each program, course of instruction, or 
training session is:
    (1) Conducted in accordance with the written training plan;
    (2) Presented by a competent person; and
    (3) Presented in language understood by the miners who are 
receiving the training.
    (b) You may conduct your own training programs or may arrange for 
training to be conducted by: state or federal agencies; associations of 
production-operators or independent contractors; miners' 
representatives; consultants; manufacturers' representatives; private 
associations; educational institutions; or other training providers.
    (c) You may substitute, as applicable, health and safety training 
required by the Occupational Safety and Health Administration (OSHA), 
or other federal or state agencies to meet requirements under this 
part. This training must be relevant to training subjects required in 
this part. You must document the

[[Page 53132]]

training in accordance with Sec. 46.9 of this part.
    (d) Training methods may consist of classroom instruction, 
instruction at the mine, interactive computer-based instruction or 
other innovative training methods, alternative training technologies, 
or any combination of training methods.
    (e) Employee health and safety meetings, including informal health 
and safety 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. In recording the duration of training, you must 
include only the portion of the session actually spent in training.


Sec. 46.5  New miner training.

    (a) Except as provided in paragraphs (f) and (g) of this section, 
you must provide each new miner with no less than 24 hours of training 
as prescribed by paragraphs (b), (c), and (d). Miners who have not yet 
received the full 24 hours of new miner training must work where an 
experienced miner can observe that the new miner is performing his or 
her work in a safe and healthful manner.

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
(b) Before a new miner begins work at the mine--         You must provide the miner with no less than 4 hours of
                                                          training in the following subjects, which must also
                                                          address site-specific hazards:
                                                            (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 (walkaround training). The method of mining or
                                                             operation utilized must be explained and observed;
                                                            (2) Instruction on the recognition and avoidance of
                                                             electrical hazards and other hazards present at the
                                                             mine, such as traffic patterns and control, mobile
                                                             equipment (e.g., haul trucks and front-end
                                                             loaders), and loose or unstable ground conditions;
                                                            (3) A review of the emergency medical procedures,
                                                             escape and emergency evacuation plans, in effect at
                                                             the mine, and instruction on the firewarning
                                                             signals and firefighting procedures;
                                                            (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;
                                                            (5) Instruction on the statutory rights of miners
                                                             and their representatives under the Act;
                                                            (6) A review and description of the line of
                                                             authority of supervisors and miners'
                                                             representatives and the responsibilities of such
                                                             supervisors and miners' representatives; and
                                                            (7) An introduction to your rules and procedures for
                                                             reporting hazards.
----------------------------------------------------------------------------------------------------------------
(c) No later than 60 calendar days after a new miner     You must provide the miner with training in the
 begins work at the mine--                                following subject:
                                                            (1) Instruction and demonstration on the use, care,
                                                             and maintenance of self-rescue and respiratory
                                                             devices, if used at the mine; and
                                                            (2) A review of first aid methods.
----------------------------------------------------------------------------------------------------------------
(d) No later than 90 calendar days after a new miner     You must provide the miner with the balance, if any, of
 begins work at the mine--                                the 24 hours of training on any other subjects that
                                                          promote occupational health and safety for miners at
                                                          the mine.
----------------------------------------------------------------------------------------------------------------

    (e) Practice under the close observation 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.
    (f) A new miner who has less than 12 cumulative 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 at the 
mine.
    (g) A new miner training course completed under Sec. 48.5 or 
Sec. 48.25 of this title may be used to satisfy the requirements of 
paragraphs (a), (b), and (c) of this section, if the course was 
completed by the miner within 36 months before beginning work at the 
mine; and the course is relevant to the subjects specified in 
paragraphs (b) and (c) of this section.


Sec. 46.6  Newly hired experienced miner training.

    (a) Except as provided in paragraph (f) of this section, you must 
provide each newly hired experienced miner with training as prescribed 
by paragraphs (b) and (c).

----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
(b) Before a newly hired experienced miner begins work   You must provide the miner with training in the
 at the mine--                                            following subjects, which must also address site-
                                                          specific hazards:
                                                            (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 (walkaround training). The method of mining or
                                                             operation utilized must be explained and observed;
                                                            (2) Instruction on the recognition and avoidance of
                                                             electrical hazards and other hazards present at the
                                                             mine, such as traffic patterns and control, mobile
                                                             equipment (e.g., haul trucks and front-end
                                                             loaders), and loose or unstable ground conditions;
                                                            (3) A review of the emergency medical procedures,
                                                             escape and emergency evacuation plans, in effect at
                                                             the mine, and instruction on the firewarning
                                                             signals and firefighting procedures;
                                                            (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;
                                                            (5) Instruction on the statutory rights of miners
                                                             and their representatives under the Act;
                                                            (6) A review and description of the line of
                                                             authority of supervisors and miners'
                                                             representatives and the responsibilities of such
                                                             supervisors and miners' representatives; and
                                                            (7) An introduction to your rules and procedures for
                                                             reporting hazards.
----------------------------------------------------------------------------------------------------------------

[[Page 53133]]

 
(c) No later than 60 calendar days after a newly hired   You must provide the miner with an instruction and
 experienced miner begins work at the mine--              demonstration on the use, care, and maintenance of
                                                          self-rescue and respiratory devices, if used at the
                                                          mine.
----------------------------------------------------------------------------------------------------------------

    (d) Practice under the close observation 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.
    (e) In addition to subjects specified in paragraphs (b) and (c) of 
this section, you may provide training on any other subjects that 
promote occupational health and safety for miners.
    (f) You are not required to provide a newly hired experienced miner 
who returns to the same mine, following an absence of 12 months or 
less, with the training specified in paragraphs (b) and (c) of this 
section. Instead you must provide such miner with training on any 
changes at the mine that 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 at the mine. 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 no 
later than 90 calendar days after the miner begins work at the mine.


Sec. 46.7  New task training.

    (a) You must provide any miner who is reassigned to a new task in 
which he or she has no previous work experience with training in the 
health and safety aspects and safe work procedures specific to that new 
task. This training must be provided before the miner performs the new 
task.
    (b) If a change occurs in a miner's assigned task that affects the 
health and safety risks encountered by the miner, you must provide the 
miner with training under paragraph (a) of this section that addresses 
the change.
    (c) You are not required to provide new task training under 
paragraphs (a) and (b) of this section to miners who have received 
training in a similar task or who have previous work experience in the 
task, and who can demonstrate the necessary skills to perform the task 
in a safe and healthful manner. To determine whether task training 
under this section is required, you must observe that the miner can 
perform the task in a safe and healthful manner.
    (d) Practice under the close observation of a competent person may 
be used to fulfill the requirement for task training under this 
section, if hazard recognition training specific to the assigned task 
is given before the miner performs the task.
    (e) Training provided under this section may be credited toward new 
miner training, as appropriate.


Sec. 46.8  Annual refresher training.

    (a) You must provide each miner with no less than 8 hours of annual 
refresher training--
    (1) No later than 12 months after the miner begins work at the 
mine, or no later than March 30, 2001, whichever is later; and
    (2) Thereafter, no later than 12 months after the previous annual 
refresher training was completed.
    (b) The refresher training must include instruction on changes at 
the mine that could adversely affect the miner's health or safety.
    (c) Refresher training must also address other health and safety 
subjects that are relevant to mining operations at the mine. 
Recommended subjects include, but are not limited to: 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 
conditions and control; traffic patterns and 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. Training is also 
recommended on the hazards associated with the equipment that has 
accounted for the most fatalities and serious injuries at the mines 
covered by this rule, including: mobile equipment (haulage and service 
trucks, front-end loaders and tractors); conveyor systems; cranes; 
crushers; excavators; and dredges. Other recommended subjects include: 
maintenance and repair (use of hand tools and welding equipment); 
material handling; fall prevention and protection; and working around 
moving objects (machine guarding).


Sec. 46.9  Records of training.

    (a) 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 each miner has received training required under this part.
    (b) The form must include:
    (1) The printed full name of the person trained;
    (2) The type of training, the duration of the training, the date 
the training was received, the name of the competent person who 
provided the training:
    (3) The name of the mine or independent contractor, MSHA mine 
identification number or independent contractor identification number, 
and location of training (if an institution, the name and address of 
the institution).
    (4) The statement, ``False certification is punishable under 
Sec. 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 in the MSHA-
approved training plan for the mine as responsible for health and 
safety training, that states ``I certify that the above training has 
been completed.''
    (c) You must make a record of training under paragraphs (b)(1) 
through (b)(4) of this section--
    (1) For new miner training under Sec. 46.5, no later than--
    (i) when the miner begins work at the mine as required under 
Sec. 46.5(b);
    (ii) 60 calendar days after the miner begins work at the mine as 
required under Sec. 46.5(c); and
    (iii) 90 calendar days after the miner begins work at the mine as 
required under Sec. 46.5(d), if applicable.
    (2) For newly hired experienced miner training under Sec. 46.6, no 
later than--
    (i) when the miner begins work at the mine; and
    (ii) 60 calendar days after the miner begins work at the mine.
    (3) Upon completion of new task training under Sec. 46.7;
    (4) After each session of annual refresher training under 
Sec. 46.8; and
    (5) Upon completion by miners of site-specific hazard awareness 
training under Sec. 46.11.
    (d) You must ensure that all records of training under paragraphs 
(c)(1) through (c)(5) of this section are certified under paragraph 
(b)(5) of this section and a copy provided to the miner--
    (1) Upon completion of the 24 hours of new miner training;
    (2) Upon completion of newly hired experienced miner training;

[[Page 53134]]

    (3) At least once every 12 months for new task training, or upon 
request by the miner, if applicable;
    (4) Upon completion of the 8 hours of annual refresher training; 
and
    (5) Upon completion by miners of site-specific hazard awareness 
training.
    (e) False certification that training was completed is punishable 
under Sec. 110(a) and (f) of the Act.
    (f) When a miner leaves your employ, you must provide each miner 
with a copy of his or her training records and certificates upon 
request.
    (g) You must make available at the mine a copy of each miner's 
training records and certificates for inspection by us and for 
examination by miners and their representatives. If training 
certificates are not maintained at the mine, you must be able to 
provide the certificates upon request by us, miners, or their 
representatives.
    (h) You must maintain copies of training certificates and training 
records for each currently employed miner during his or her employment, 
except records and certificates of annual refresher training under 
Sec. 46.8, which you must maintain for only two years. You must 
maintain copies of training certificates and training records for at 
least 60 calendar days after a miner terminates employment.
    (i) You are not required to make records under this section of 
site-specific hazard awareness training you provide under Sec. 46.11 of 
this part to persons who are not miners under Sec. 46.2. However, you 
must be able to provide evidence to us, upon request, that the training 
was provided, such as the training materials that are used; copies of 
written information distributed to persons upon their arrival at the 
mine; or visitor log books that indicate that training has been 
provided.


Sec. 46.10  Compensation for training.

    (a) Training must be conducted during normal working hours. Persons 
required to receive 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  Site-specific hazard awareness training.

    (a) You must provide site-specific hazard awareness training before 
any person specified under this section is exposed to mine hazards.
    (b) You must provide site-specific hazard awareness training, as 
appropriate, to any person who is not a miner as defined by Sec. 46.2 
of this part but is present at a mine site, including:
    (1) Office or staff personnel;
    (2) Scientific workers;
    (3) Delivery workers;
    (4) Customers, including commercial over-the-road truck drivers;
    (5) Construction workers or employees of independent contractors 
who are not miners under Sec. 46.2 of this part;
    (6) Maintenance or service workers who do not work at the mine site 
for frequent or extended periods; and
    (7) Vendors or visitors.
    (c) You must provide miners, such as drillers or blasters, who move 
from one mine to another mine while remaining employed by the same 
production-operator or independent contractor with site-specific hazard 
awareness training for each mine.
    (d) Site-specific hazard awareness training is information or 
instructions on the hazards a person could be exposed to while at the 
mine, as well as applicable emergency procedures. The training must 
address site-specific health and safety risks, such as unique geologic 
or environmental conditions, recognition and avoidance of hazards such 
as electrical and powered-haulage hazards, traffic patterns and 
control, and restricted areas; and warning and evacuation signals, 
evacuation and emergency procedures, or other special safety 
procedures.
    (e) You may provide site-specific hazard awareness training through 
the use of written hazard warnings, oral instruction, signs and posted 
warnings, walkaround training, or other appropriate means that alert 
persons to site-specific hazards at the mine.
    (f) Site-specific hazard awareness training 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 independent contractor training.

    (a)(1) Each production-operator has primary responsibility for 
ensuring that site-specific hazard awareness training is given to 
employees of independent contractors who are required to receive such 
training under Sec. 46.11 of this part.
    (2) Each production-operator must provide information to each 
independent contractor who employs a person at the mine on site-
specific mine hazards and the obligation of the contractor to comply 
with our regulations, including the requirements of this part.
    (b)(1) 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 
training, newly hired experienced miner training, new task training, 
and annual refresher training.
    (2) 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. 99-25273 Filed 9-29-99; 8:45 am]
BILLING CODE 4510-43-P