[Federal Register Volume 70, Number 250 (Friday, December 30, 2005)]
[Rules and Regulations]
[Pages 77716-77728]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-24624]



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Part VII





Department of Labor





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Mine Safety and Health Administration



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30 CFR Part 48



Shaft and Slope Construction Workers at Underground Mines and Surface 
Areas of Underground Mines; Final Rule

30 CFR Part 75



Low- and Medium-Voltage Diesel-Powered Electrical Generators; Final 
Rule

  Federal Register / Vol. 70, No. 250 / Friday, December 30, 2005 / 
Rules and Regulations  

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DEPARTMENT OF LABOR

Mine Safety and Health Administration

30 CFR Part 48

RIN 1219-AB35


Training Standards for Shaft and Slope Construction Workers at 
Underground Mines and Surface Areas of Underground Mines

AGENCY: Mine Safety and Health Administration (MSHA), Labor.

ACTION: Final rule.

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SUMMARY: We (MSHA) are revising certain provisions of our regulations 
addressing the training and retraining of miners. This final rule 
removes the training exclusion for shaft and slope construction 
workers. Shaft and slope construction workers will now receive training 
for new miners, training for experienced miners, task training, annual 
refresher training, and hazard training. The rule will provide shaft 
and slope construction workers with the same type of safety and health 
training afforded other miners.

EFFECTIVE DATE: This regulation is effective June 28, 2006, except that 
Sec. Sec.  48.3(o) and 48.23(o) are effective December 30, 2005.

FOR FURTHER INFORMATION CONTACT: Rebecca J. Smith, Acting Director, 
Office of Standards, Regulations and Variances, MSHA; 1100 Wilson 
Boulevard, Room 2350, Arlington, Virginia 22209-3939; telephone (202) 
693-9440; e-mail: [email protected]; or facsimile (202) 693-9441. 
The final rule is available on the Internet at http://www.msha.gov/REGINFO.HTM.

SUPPLEMENTARY INFORMATION: The preamble to this final rule discusses 
the proposed requirements for training shaft and slope construction 
workers, comments received on the proposed rule, our analysis of 
accident and injury data, and the section-by-section discussion of our 
final rule determinations. To help the reader, the preamble discussion 
follows this outline:

I. Background
II. Discussion of Final Rule
    A. Introduction
--Analysis of accident and injury data
--Comparative tasks and hazards
--Diverse small and mobile crews
--Applicability of part 48 training
    1. Miners' Rights
    2. Self-Rescue and Respiratory Devices
    3. Entering and Leaving the Mine; Transportation; Communications
    4. Introduction to the Work Environment
    5. Mine Map; Escapeways; Emergency Evacuation; Barricading
    6. Roof or Ground Control and Ventilation Plans
    7. Health
    8. Clean-Up; Rock Dusting
    9. Hazard Recognition
    10. Electrical Hazards
    11. First Aid
    12. Mine Gases
    13. Health and Safety Aspects of Tasks
    14. Other Courses Required by the District Manager
--Compliance Assistance
    B. Section-by-Section Analysis
    1. Sections 48.2(a)(1) and 48.22(a)(1) Definitions
--Clarification of terms
--Coverage of all construction workers and Subpart C
--Comprehensive training or hazard training
--Applicability of Part 48 subpart A training (Underground) and 
subpart B training (Surface)
    2. Sections 48.2(b)(4) and 48.22(b)(4) ``Experienced Miner''
--Qualifications and grandfather provision
    3. Sections 48.3 and 48.23 Training Plans
    a. Shaft and Slope Training Plans
    b. Training Plan Development, Submission and Approval
    c. Training Programs and Hours
    d. Crediting Prior Training and Experience
    e. Approved Instructors
    4. Sections 48.8 and 48.28 Annual Refresher Training
    5. Effective Date
III. Executive Order 12866
IV. Feasibility
V. Regulatory Flexibility Act Certification
VI. Paperwork Reduction Act of 1995
VII. Other Regulatory Considerations
    A. The Unfunded Mandates Reform Act
    B. National Environmental Policy Act
    C. The Treasury and General Government Appropriations Act of 
1999: Assessment of Federal Regulations and Policies on Families
    D. Executive Order 12630: Government Actions and Interference 
With Constitutionally Protected Property Rights
    E. Executive Order 12988: Civil Justice Reform
    F. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    G. Executive Order 13132: Federalism
    H. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use
    J. Executive Order 13272: Proper Consideration of Small Entities 
in Agency Rulemaking
VIII. Regulatory Text

I. Background

    On October 13, 1978, we promulgated regulations concerning the 
training and retraining of miners in Title 30 Code of Federal 
Regulations (CFR) part 48 (43 FR 47453), as provided for in section 115 
of the Federal Mine Safety and Health Act of 1977 (Mine Act), 30 U.S.C. 
825. Section 115(d) also provided that the Secretary of Labor 
promulgate ``appropriate standards for safety and health training for 
coal or other construction workers.'' Accordingly, we determined that 
certain underground mine construction workers were exposed to 
significant mining hazards in ongoing operations, and included those 
construction workers under the coverage of part 48 training standards 
published in 1978. However, we specifically excluded from the coverage 
certain other construction workers including shaft and slope 
construction workers.
    On September 30, 1999, we published a final rule, 30 CFR part 46, 
(64 FR 53080), containing training requirements for specific sectors of 
the mining industry, including shell dredging, sand, gravel, surface 
stone, surface clay, colloidal phosphate, and surface limestone mines. 
That rule covers, among other miners, construction workers who are 
exposed to hazards of mining operations.
    Following the January 2003 accident that occurred during shaft 
construction at the McElroy Mine, we reviewed mine fatality records 
from January 1982 through August 2003. The review indicated that miners 
performing shaft and slope construction work should receive the same 
training as other underground and surface miners. On July 16, 2004, we 
proposed to remove the part 48 training exclusion for shaft and slope 
construction workers (69 FR 42841). Under the proposed rule, shaft and 
slope construction workers would be treated like extraction and 
production miners and subject to the part 48 training requirements.
    The public was invited to submit comments. We held hearings in Salt 
Lake City, Utah on August 24, 2004, and Arlington, Virginia on August 
26, 2004. The hearing record remained open until September 14, 2004 for 
post-hearing comments. Eight persons presented oral comments at the 
hearings, and we received six written comments. Most of the commenters 
were from the shaft and slope construction industry. All of the 
comments have been considered in the development of this final rule.

II. Discussion of Final Rule

A. Introduction

    The final rule eliminates the part 48 training exclusion found in 
Sec. Sec.  48.2(a)(1)(i) and 48.22(a)(1)(i) for shaft and slope 
construction workers. ``Shaft and slope construction workers'' include 
``shaft and slope workers'' and ``workers engaged in construction

[[Page 77717]]

activities ancillary to shaft and slope sinking.'' Under this final 
rule, these miners will receive comprehensive safety and health 
training like other miners who are significantly exposed to mining 
hazards. Shaft and slope construction operators, like other mine 
operators, must train their miners according to an MSHA approved 
training plan.
    There is a clear need for this rule. As discussed in the preamble 
to the proposed rule (64 FR 42841), we reviewed mine accident fatality 
records from January 1982 through August 2003. In that period, there 
were 15 fatalities among miners performing shaft and slope construction 
work, including the shaft construction accident at McElroy Mine in West 
Virginia in January 2003 that took the lives of three miners. One 
commenter took exception to the inclusion in our fatality data of four 
miners who were fatally injured in capping a shaft at the Blacksville 
No. 1 mine in 1992. The commenter contended that this event involved 
construction work in and around a surface mine, and had nothing to do 
with the actual mining process or the development of the shaft. While 
it is true that the operator was closing a shaft, we believe that shaft 
construction can reasonably include such additional construction 
necessary to effect closure.
    Some commenters maintained that this rule is not appropriate for 
the shaft and slope construction industry. They said that the rule 
would be burdensome and our estimated costs were too low. In 
calculating the costs of the proposed rule, we used mining industry-
wide data as the basis for turnover rate, retention rate, and miners' 
level of experience. The commenters, however, disputed these 
assumptions as inaccurate for the shaft and slope sector. Based on 
their comments and our reanalysis of the data, we have recalculated the 
costs of the rule and, while having increased our cost estimates, we 
have concluded that the rule is economically feasible, as explained in 
Section III in this preamble and in the Regulatory Economic Analysis 
(REA).

Analysis of Accident and Injury Data

    Commenters were concerned about the appropriateness of the 40 hour 
new underground miner training requirement. In response to these 
comments, we further analyzed the accident rate data for new miners 
obtained from our part 50 database (Notification, Investigation, 
Reports and Records of Accidents, Injuries, Illnesses, Employment, and 
Coal Production in Mines) for the period January 1994 through March 14, 
2005. Mine operators and independent contractors, including shaft and 
slope construction operators, are required to file these reports.
    The purpose of this analysis was to further evaluate the need for 
comprehensive training. This analysis is a snapshot of a subset of the 
current shaft and slope industry. It is indicative of safety 
performance.
    There were 219,703 accidents reported in the period, January 1994 
to March 14, 2005. For comparative purposes we did a separate analysis 
of: (1) Employee accidents from all mining operations, (2) six shaft 
and slope construction companies, five of which, according to one 
commenter represented the majority of the shaft and slope industry, and 
(3) all independent contractors excluding the six shaft and slope 
construction companies. We eliminated all records where no data was 
entered in the field for ``Total Mining Experience.'' We counted all 
reported accidents of miners, shaft and slope construction workers, and 
independent contractors with one year or less of total mining 
experience. Table 1 outlines the results of our analysis:

             Table 1.--Reported Accidents--Miners With Less Than One Year of Total Mining Experience
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                                                                       Total
                              Class                                  accidents    1 year or less      Percent
                                                                     reported
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Mine Employees \1\..............................................         161,160          19,783           12.27
Independent Contractor Employees \2\............................          11,542           3,699           32.05
Shaft and Slope Employees.......................................             583             257          44.08
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\1\ Excludes independent contractors and the six shaft and slope construction companies.
\2\ Excludes shaft and slope construction companies.

    We found that in the mining industry, excluding all independent 
contractors, new miners account for 12.27% of the total reported 
accidents for that group. For independent contractors, excluding shaft 
and slope companies, new miners were involved in 32.05% of the total. 
By contrast, new shaft and slope construction workers accounted for 
44.08% of the total accidents reported for that group.
    We further reviewed the nonfatal days lost (NFDL) injury incidence 
rate for six shaft and slope construction companies, and compared their 
rates to the average rates for all underground and surface areas of 
underground coal mines and metal/nonmetal mines. These incidence rates, 
which represent the number of NFDL injuries per 200,000 miner hours, 
are calculated from the part 50 accident reports submitted to us and 
cover injuries of all miners, including experienced miners. The results 
are summarized in Table 2.

                                         Table 2.--NFDL Incidence Rates
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                                                                    Metal UG &       Coal UG &
                              Year                                  surf. at UG     surf. at UG    Shaft & slope
                                                                    operations      operations
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2003............................................................            3.98            6.44            9.45
2002............................................................            3.69            7.44           16.79
2001............................................................            3.82            7.32            9.72
2000............................................................            5.38            8.34           18.66
1999............................................................            5.82            8.16           20.26
1998............................................................            6.09            8.82           13.37
1997............................................................            5.48            8.28           10.44
1996............................................................            6.31             8.7           15.93

[[Page 77718]]

 
1995............................................................            5.79           10.18            13.7
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    The injury rate for shaft and slope construction is higher than the 
rest of the mining industry. The results from both tables 1 and 2 
indicate that shaft and slope work is dangerous and that shaft and 
slope miners should be provided the same comprehensive training as 
other miners.
    We received comments suggesting that the hazards shaft and slope 
construction workers face are distinguishable from those faced by other 
miners. To address these comments, we further reviewed the data from 
January 1994 through March 14, 2005 for the type of accident 
classifications these three groups had reported. Table 3 outlines the 
findings.

                                   Table 3.--Top Five Accident Classifications
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                                                                                                   Shaft & slope
                                                                      Mining        Independent    construction
                Ranking                  Accident classification    operations      contractors     operations
                                                                     (percent)       (percent)       (percent)
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1.....................................  Handling of Materials...           32.44           31.87           27.24
2.....................................  Slip or Fall Of Person..           18.19           20.74           17.90
3.....................................  Machinery...............           13.49           14.95           26.46
4.....................................  Handtools (nonpowered)..           12.46           11.68            6.23
5.....................................  Powered Haulage.........            8.74            9.33            5.45
----------------------------------------------------------------------------------------------------------------

    As indicated in Table 3, mining operations, independent 
contractors, and shaft and slope construction operations have the same 
top five accident classifications. While the comparative percentages 
may vary between mining sectors, the data generally indicate the 
similarities in accident types throughout mining, including shaft and 
slope construction.
    One commenter said that hazards from working at heights distinguish 
shaft and slope construction from other mining. Yet, the data in Table 
3 suggest that, to the extent slip and fall hazards correlate to 
heights, all miners experience about the same percentage of slip and 
fall accidents.

Comparative Tasks and Hazards

    In proposing the rule, we found that the tasks performed and 
hazards encountered by shaft and slope construction workers were 
similar to those of other miners already covered under the part 48 
training provisions. Commenters stated, however, that shaft and slope 
work is unique from mining and should have its own training 
requirements. They said that special training requirements for their 
industry should be incorporated under a new part 48, subpart C. 
Commenters said that shaft and slope construction work is like other 
mine construction work and differs from mining. Specifically, the 
commenters noted particular tasks and hazards characteristic of shaft 
and slope work, which takes place in a ``vertical environment.'' The 
commenters also cited hazards incident to heights, lifting, uneven 
ground, pinch points, chemicals, noise, mine gases, compressed air, 
hoisting, and electricity. But these hazards are found in other types 
of mining operations, where miners work in confined spaces, handle 
materials, work in proximity to mobile equipment, and with and around 
wire rope, and explosives and blasting and encounter falling or 
sloughing material from roof and ribs.
    The commenters also mentioned certain tasks specific to shaft and 
slope construction, including welding, hoisting, drilling, blasting, 
and mucking. While there may be some tasks that are more 
characteristic, in degree or kind, to shaft and slope work, similar 
tasks are conducted at other mining operations. For example, in many 
cases shotcreting and mucking done in shaft and slope work is like 
shotcreting and mucking done by ``muckers'' in other mining operations. 
Both shaft and slope construction operations and active mines drill, 
blast, and muck.

Diverse Small and Mobile Crews

    Commenters described a diverse shaft and slope construction 
industry, encompassing various locales, projects, mining methods and 
crews. The commenters were concerned that one type of training would 
not fit all.
    Mining operations, which are already subject to part 48, range from 
massive underground coal mines to small surface hard rock operations in 
remote areas. These mining operations employ a variety of mining 
methods and tasks, exposing miners to a broad array of safety and 
health hazards that are addressed under the flexible training approach 
of part 48. Similarly, part 48 applies to different types of mine 
operators in different settings, including a variety of independent 
contractors who are on mine property temporarily. Some mobile equipment 
operators, for example, travel to different sites, and may not have a 
formal office. For over 26 years, part 48 has successfully covered 
mining operations of varying sizes, locations, circumstances, and 
conditions.
    Commenters pointed to high turnover rates in certain types of shaft 
and slope construction operations, especially conventional underground 
work. They were especially concerned about the availability of trained 
labor in remote areas. Shaft and slope crews may be small, they said, 
and dependent upon all miners showing up ready to work for the project 
to progress on time.
    There are many independent contractors in mining working in small 
crews. It is our understanding that these mining operations may hire 
from a local labor force that has already received 32 hours of 
underground new miner training. The training may be provided through 
vocational-technical schools or cooperative programs. Typically, where 
state grant programs provide this training, they offer 32 hours of new 
miner training for underground mining at a reasonable cost or for no 
cost. With

[[Page 77719]]

32 hours of training completed, 8 hours of mine site training are given 
by the operator. These new miner training programs available to the 
industry have helped create the labor pool that operators may draw from 
quickly.
    We are mindful that causes for crew shortages extend beyond 
turnover and training, for example, sickness and personal emergencies. 
Short-term crew shortages commonly are handled by cross-shifting the 
miners.
    We expect training may facilitate a ready labor pool. Training 
could alert prospective miners about a job that is not right for them, 
causing them to withdraw from consideration. By taking the initiative 
to be trained, new miners may be less likely to prematurely leave a job 
for which they have invested an amount of time and possibly money prior 
to employment. Further, contractors may retroactively compensate miners 
for the training costs after working a specified period of time. This 
may reduce the high turnover rates experienced by the industry.
    We understand that small crews are particularly characteristic of 
raised bore drilling, which constitutes a small proportion of shaft and 
slope construction projects. We also understand that this type of shaft 
and slope work does not experience the turnover rate of conventional 
projects. Raised bore drilling is mainly from the surface; therefore, 
the 24-hour new miner training applies. This allows, with District 
Manager approval, for 8 hours of pre-work training, with the remaining 
16 hours to be done within 60 calendar days following assignment (known 
as the 8/16 split). This training conforms to the preferred approach 
advocated by commenters who give their miners 8 hours of orientation 
training and then proceed to train them incrementally following 
assignment.

Applicability of Part 48 Training

    Several commenters questioned the subject-matter applicability of 
part 48 training to shaft and slope construction work. They said that 
part 48 training was designed for ``miners'' and is not relevant or 
useful to shaft and slope construction workers. The commenters' primary 
concern, however, appears to be the 40 hour requirement (in existing 
Sec.  48.5) for new underground miners.
    We considered the relevance to shaft and slope construction 
operations of each of the courses required in the new miner training 
program under existing Sec.  48.5. Following is a discussion of the 
applicability of the existing Sec.  48.5 new miner training 
requirements to shaft and slope construction workers.
    1. Miners' rights--This course provides all miners with important 
information on supervisory responsibilities, company policies, and Mine 
Act rights impacting safety and health, such as protection in reporting 
hazardous conditions.
    2. Self-rescue and respiratory devices--These devices are important 
for all miners working in an underground mine, including drillers and 
blasters. The training can be vital for shaft and slope miners because 
their work area is essentially a ``one entry'' system. In addition, if 
the shaft and slope intersects with an existing mine, there is exposure 
to that mine's atmosphere.
    3. Entering and leaving the mine; transportation; communications--
While we recognize that some shaft and slopes are not complex, shaft 
and slope miners need to be instructed in how to safely enter, exit, 
and handle buckets, cages, or other conveyances, as well as hoists and 
cranes. Also important is their knowledge of the differences between 
transportation of personnel and material, as well as communication 
systems, such as how to operate the bell system and use a pager 
telephone. Instruction in the use of a workdeck is needed, especially 
when the workdeck is the secondary means of exit from a shaft.
    4. Introduction to the work environment--This course is mine-
specific, focusing on a representative part of the operation and mining 
method used. Mine operators cover this training during the mine-site 
training required by part 48. For shaft and slope work, it could 
emphasize the confined spaces involved and provide some appreciation of 
the associated hazards. The new miner could observe hoisting activities 
and became familiarized with the equipment, particularly pneumatic 
equipment used in shaft and slope work. We recognize that shaft and 
slope construction, like other mining, goes through different phases 
and that training for those environments can also be covered in 
subsequent annual refresher training and new task training.
    5. Mine map; escapeways; emergency evacuation; barricading--This 
course focuses on emergency procedures, which all types of operations 
must have. The confined spaces and limited means of access in shaft and 
slope construction can make an emergency even more significant. As with 
all mining operations, applicable training adapted to the particular 
operation is the objective.
    6. Roof or ground control and ventilation plans--This course covers 
key features regulating ground control and ventilation. At coal mines, 
these features are described in the plan submitted by the shaft and 
slope construction operator as required by 30 CFR part 77, subpart T 
(Slope and Shaft Sinking). Roof and ground conditions are constantly 
changing in shaft and slope work, and miners are regularly exposed to 
unsupported ribs during the drill-blast-muck-line shaft cycle. Miners 
need to be instructed in examination methods, so they can recognize 
failing or inadequate roof support and maintain adequate ventilation.
    7. Health--This course covers the purposes of taking exposure 
measurements, which is required as part of the shaft and slope 
construction plan for coal mines. Shaft and slope miners are commonly 
exposed to dust, noise, and chemicals. They are exposed to dust while 
drilling and mucking, and may be involved in activities that exceed 
noise action levels. The training also includes the operators' hazard 
communication program, which is vital for shaft and slope miners who 
work with and around oils, diesel fuel, concrete additives, and other 
hazardous chemicals.
    8. Cleanup; rock dusting--Cleanup is essential on a workdeck or 
elevated platform to remove tripping hazards and falls from elevations, 
and to prevent loose materials from falling and striking someone below. 
Water may make the workdeck extremely slick, and good housekeeping 
minimizes slipping hazards. The rock dust component of this training 
applies to those shaft and slope projects involving rock dusting. When 
shaft and slope development reaches a coal seam, the rock dusting 
program becomes important for miners who may spend considerable time in 
a ``coal environment.''
    9. Hazard recognition--This is key training in any safety and 
health program. Shaft and slope construction hazards, like those of 
other mining operations, involve working in confined spaces, handling 
materials, and working in proximity to mobile equipment. The hazards 
also include slips and falls, falling or sloughing materials from roof 
and ribs, hoisting and wire rope hazards, and methane. Other hazards 
characteristic of shaft and slope operations are hazards incident to 
height, compressed air, and working under suspended loads. The course 
especially mentions hazards relating to explosives. This is important 
training because blasting is a prominent feature of many shaft and 
slope projects.
    10. Electrical hazards--While the only electricity used underground 
may be the blasting cable, blasting may be a prominent feature of the 
work and may

[[Page 77720]]

be conducted around water. A number of sources of electricity are 
typically found on the surface. Surface operations commonly have an 
electrical substation. There are also circuit breakers for the fan, 
hoist, compressors, and other equipment that needs to be energized and 
de-energized. Anyone working in or around the hoist house, in 
particular, should be instructed on the electrical hazards. Commenters 
mentioned that they commonly face shock and electrical hazards in shaft 
and slope construction.
    11. First aid--This training applies to all mine environments and 
persons working on mine property. In shaft and slope construction, 
transporting an injured person can be problematic because of the 
difficulty in getting the person into a bucket or carrying the person 
out of a slope for which the means of egress is walking. Shaft and 
slope crews frequently are small, with only one person fully qualified 
to administer first aid. This increases the importance of first aid 
training for the other miners.
    12. Mine gases--Shaft and slope miners may work in methane and 
oxygen deficient atmospheres. Gases have been, and continue to be, a 
problem in some shaft and slope operations. Shaft and slope companies 
recognize this problem and, as applicable, are required to submit shaft 
and slope plans addressing methane and oxygen deficiency tests. There 
may be other workplace exposures, such as diesel equipment exhaust 
gases.
    13. Health and safety aspects of tasks--This course is practically 
oriented to the specific duties that new shaft and slope miners will be 
performing. As miners are assigned new tasks, they will also receive 
new task training, including health and safety aspects of those tasks.
    14. Other courses required by the District Manager--When additional 
training is required, it should be focused on the particular training 
needs of the operation. Circumstances may justify, for example, having 
special emphasis training on scaling, fall protection, rigging, 
compressed air, explosives, or hoisting.
    As described above, part 48 new miner courses are relevant and 
flexible to the needs of shaft and slope miners. The training serves as 
a general primer for introducing new shaft and slope construction 
miners to hazards they are likely to face and the ways those hazards 
can be effectively avoided. The training also provides an overview of 
mining methods, conditions, and circumstances that can be problematic 
to persons new to mining. Such training takes time to accomplish and we 
believe 40 hours is appropriate to prepare a new miner for the rigors 
and hazards of a dangerous underground environment.
    We also note that some shaft and slope projects occur around other 
mining operations. Other mine personnel may assist the shaft and slope 
workers. For example, ream cuttings from raised drill work commonly are 
removed by mine personnel. It is important that the shaft and slope 
construction workers be fully trained so that they do not present a 
hazard to themselves or to the other miners.
    Part 48 does not force operators to provide training that does not 
apply to their operations. We recognize that different mining 
operations have different training needs and should emphasize different 
aspects of the training. It is left primarily to the mine operator to 
provide training that is meaningful to the miners within the course 
framework of part 48. Part 48, in effect, requires that the subject 
matter be relevant to the particular mining operation. As one industry 
commenter observed, part 48 is a ``container that all sorts of types of 
training could go into.''
    A commenter questioned whether the absence of training contributed 
to fatalities. Section 115 of the Mine Act specifically recognized the 
role training plays in mine safety. While, in 1978, we promulgated part 
48 training regulations, in many cases part 48 training did not begin 
until late in 1979. In 1979 there were 267 mining related fatalities. 
Twenty-four years later, in 2003, the mining industry recorded 56 fatal 
accidents. Further, at underground and surface areas of underground 
mines there were 18,873 nonfatal days lost (NFDL) in 1979 and 3,043 in 
2003.
    As indicated in Table 3, operations that are required to conduct 
part 48 training have experienced a lower NFDL incidence rate. While we 
do not believe training was the only reason for the reduction in 
accidents, we believe it has played a significant role.
    We acknowledge that shaft and slope construction operators already 
provide some training. However, by requiring part 48 training for shaft 
and slope construction workers, we ensure they receive the same type of 
safety and health training as all other miners. Requiring part 48 
training assures that shaft and slope construction workers will receive 
the training they need on a timely basis from approved instructors.
    Section 101(a)(9) of the Mine Act provides that no promulgated 
standard shall reduce the protection afforded miners by an existing 
mandatory health or safety standard. By promoting consistent, 
comprehensive training for miners previously excluded, the final rule 
increases health and safety protections for miners, and is fully 
consonant with Section 101(a)(9).

Compliance Assistance

    We will offer compliance assistance to the shaft and slope 
construction operators. Our Educational Field Service will assist with 
the assessment of training needs and in developing training programs 
for shaft and slope construction operations. Additionally, other 
resources are available for developing training such as the American 
National Standards Institute criteria (ANSI Z490.1-2001) as suggested 
by one commenter.

B. Section-by-Section Analysis

1. Sections 48.2(a)(1) and 48.22(a)(1) Definitions Shaft and Slope 
Construction Workers as ``Miners''
    Existing Sec. Sec.  48.2(a)(1) and 48.22(a)(1) contain the 
definition of ``miner'' under part 48. We proposed to delete the 
exclusion contained in subparagraph (i), for ``shaft and slope 
workers'' and, for underground, ``workers engaged in construction 
activities ancillary to shaft and slope construction.'' The definition 
of ``miner'' for training purposes would include any person engaged in 
shaft or slope construction. The final rule is unchanged from the 
proposed rule.
    A commenter said that shaft and slope construction workers are not 
``miners'' and should not be subject to training requirements for 
miners.
    Section 3(g) of the Mine Act defines ``miner'' as any individual 
working in a mine. Additionally, Section 3(h)(1) of the Mine Act 
defines ``mine'' to include, among other things, any shafts, slopes, 
facilities, and equipment used in or to be used in mining. Section 
115(d) discusses rulemaking for mine construction workers. Congress 
recognized that construction work is a part of mining. The terms of the 
Mine Act encompass shaft and slope construction workers, both surface 
and underground, as ``miners.'' The Mine Act's implementing regulations 
and standards found in 30 CFR apply to shaft and slope and other 
construction operations. For example, the training requirements under 
30 CFR part 46 cover construction workers exposed to hazards of mining 
operations.

Clarification of Terms

    A commenter requested that the term ``shaft and slope workers'' 
appearing in the current exclusion be clarified. Another commenter 
asked what is intended by ``ancillary'' construction activities. Yet 
another commenter said

[[Page 77721]]

that ``shaft and slope construction'' should be defined, and another 
inquired about including preliminary work.
    In response, we have taken the terms from the current training 
exclusion, ``shaft and slope workers'' and, additionally for 
underground, ``workers engaged in construction activities ancillary to 
shaft and slope sinking,'' and referred to them as ``any person * * * 
engaged in shaft and slope construction,'' or ``shaft and slope 
construction workers.''
    Shaft and slope workers'' refers to miners involved in shaft and 
slope construction activities such as: drilling, blasting, mucking, 
loading, installing equipment in the completed shaft or slope, opening 
up the excavation, sinking and lining a hole, grouting the shaft, and 
installing panning, shaft steel, and the fan over the shaft or hoist.
    In addition to the construction activities listed above, ``shaft 
and slope construction work'' encompasses construction incidental to 
sinking the shaft or slope and is commonly performed by shaft and slope 
contractors. On the surface, this includes construction such as 
building a hoist house or installing a permanent hoist. In the 
underground context, this construction was referenced in the existing 
rule as ``ancillary'' construction activities and includes construction 
such as the building of equipment housing or mine shaft facilities.
    Shaft and slope construction activities pertain to the various 
types of shaft and slope operations, including conventional, raised 
bore drilling, and blind drilling, as applicable. The approach is 
functional; thus a company may do any number of activities and be 
considered involved in shaft and slope construction work. A shaft and 
slope construction company may contract with other companies to do some 
of these activities, in which case all of the companies would be 
performing shaft and slope construction work. Shaft and slope 
construction work does not include preliminary work, such as road 
building, timbering, and site clearance, typically not performed by 
shaft and slope construction operations.

Coverage of All Construction Workers and Subpart C

    Commenters said that special training requirements should be 
developed and applied to all mine construction workers, not just shaft 
and slope construction workers, and contained in a new subpart C to 
part 48. Some commenters stated that the Mine Act requires separate 
training standards for construction workers.
    In addressing these comments we point to Section 115(d) of the Mine 
Act, which authorizes us to issue ``appropriate'' construction training 
standards. There is no statutory requirement for training standards 
that apply exclusively to mine construction workers. As we previously 
stated, the part 46 miner training requirements apply to construction 
workers at covered operations. Likewise, as explained in this preamble, 
experience has shown that shaft and slope construction workers perform 
work and face hazards similar to other miners and should receive 
similar training. Moreover, most shaft and slope construction workers 
perform work underground, and the Mine Act acknowledges that such 
construction workers may not be practicably differentiated from other 
underground miners. Indeed, the legislative history of the Mine Act 
evidences a congressional belief that underground construction workers 
generally face the same hazards as do other underground miners.
    A commenter said that the part 48 training exclusion should be 
eliminated for all mine construction workers, not just those engaged in 
shaft or slope construction.
    We have analyzed the accident and injury data for shaft and slope 
construction workers and we believe it supports the need to eliminate 
the training exclusion for them. However, we are not prepared at this 
time to expand the rulemaking to cover other construction workers. Any 
rulemaking for other mine construction workers is reserved for future 
consideration consistent with Section 115(d) of the Mine Act.

Comprehensive Training or Hazard Training

    We proposed to apply the comprehensive training requirements of 
part 48 to all shaft and slope construction workers. Consequently, they 
would receive new miner, experienced miner, task, and annual refresher 
training, as applicable. One commenter suggested that only hazard 
training would be appropriate for persons working on-site for five days 
or less. Like extraction and production miners, shaft and slope 
construction workers face hazards that are significant. The final rule 
accordingly requires all shaft and slope construction workers to 
complete comprehensive training without regard to the amount of time 
spent on-site. However, we recognize that shaft and slope construction 
companies may contract out some maintenance and service jobs. In 
keeping with existing requirements, such maintenance or service 
contractors, who are not at the mine for frequent periods or extended 
periods of more than five days, would receive hazard training, and not 
be required to receive comprehensive training.
    Further, the final rule, like the proposed rule, applies the short-
term specialized contractor provision in Sec. Sec.  48.2(a)(1) and 
48.22(a)(1) to shaft and slope construction workers who move from site-
to-site. Such miners who have received experienced miner training could 
receive hazard training at each new site. There was no comment on this 
provision and the final rule remains unchanged.

Applicability of Part 48 Subpart A Training (Underground) and Subpart B 
Training (Surface)

    Many shaft and slope construction workers work underground. Subpart 
A training would apply to them. Commenters pointed out that there are 
some types of shaft and slope construction operations, such as blind 
drilling operations, where the miners are only on the surface. In those 
cases, subpart B training would apply.
    Most shaft and slope construction workers perform both surface and 
underground work. There are shaft and slope miners who, for example, 
mobilize a project by building surface facilities in preparation of 
shaft sinking, and then proceed to work underground. Commenters asked 
whether both subpart A training and subpart B training would apply, and 
if new miners falling under both sections would have to take a possible 
total of 64 hours of training before being assigned work duties. 
Additionally, a commenter asked whether those individuals who completed 
the training would be considered both experienced underground and 
surface miners.
    A new miner training program of 40 hours would suffice for these 
miners, but only to the extent that the miners are specifically hired 
to work both on the surface and underground. This training would not 
apply, for example, to surface miners who are only subject to subpart B 
training, and are later reassigned to work underground (these miners 
would then have to take training for new underground miners).
    The focus of the training is flexible and should reflect the needs 
of the miners. As underground activities are emphasized, we anticipate 
that the training will focus on the underground duties, with some 
surface training. For example, initial practical orientation at the 
beginning of a project could contain instruction germane to an 
underground environment, such as fall protection,

[[Page 77722]]

rigging, and familiarization of equipment, tools, and safety 
procedures, such as bell signals. These miners will be considered 
underground miners for training purposes. After they complete the 
training, they can work at surface areas of a shaft or slope 
construction site or underground. Once these miners have worked 12 
months at a shaft or slope construction site or in an underground mine, 
they will be considered experienced underground miners for life.
2. Sections 48.2(b)(4) and 48.22(b)(4) ``Experienced Miner'' 
Qualifications and Grandfather Provision
    Existing Sec. Sec.  48.2(b) and 48.22(b) define ``experienced 
miner'' as: (1) A miner who has completed MSHA-approved new miner 
training or training acceptable to MSHA from a State agency, and who 
has had at least 12 months of mining experience; (2) a supervisor who 
is certified under an MSHA-approved State certification program and who 
is employed as a supervisor on October 6, 1998; or (3) an experienced 
miner on February 9, 1999.
    We proposed to amend 48.2(b) and 48.22(b) to add a new paragraph 
(b)(4) specifying that miners employed as shaft and slope construction 
workers on the effective date of the final rule are ``experienced 
miners.''
    Commenters said that the proposed rule was too limited and did not 
recognize the transient nature of shaft and slope construction work. 
They suggested an additional grandfather provision for miners who have 
six months experience within the 24 month period before the effective 
date of the rule. We agree. The final rule specifies that shaft and 
slope construction workers, either who are employed on the effective 
date of this rule, or who have six months of shaft or slope 
construction experience within the 24 month period before the effective 
date, are ``experienced miners.'' The final rule makes clear that an 
``experienced miner'' status for surface or underground purposes is 
accorded to current surface workers or underground workers, 
respectively. This grandfather provision is intended to recognize 
previous experience of those miners who are already employed in shaft 
and slope construction.
    One commenter suggested the grandfather provision be expanded to 
include all shaft and slope construction workers regardless of when 
they were employed. The commenter also recommended that Occupational 
Safety and Health Administration (OSHA) training in the previous 12 
months and 12 months cumulative experience should qualify shaft and 
slope construction workers as ``experienced.''
    We do not believe that such expansion of the grandfather and 
``experienced miner'' provisions for shaft and slope construction is 
justified. The grandfather provision should be limited to those miners 
who currently are or recently have been a part of shaft and slope 
construction. We are mindful, however, that shaft and slope 
construction is no less dangerous than extraction and production and 
other mine contract work. The experienced miner requirements for shaft 
and slope construction workers generally should be like those of other 
miners. Moreover, the training they receive needs to be appropriate for 
mining.
    Some commenters were concerned that the status of being an 
``experienced miner'' may not be permanent for shaft and slope 
construction workers. Consistent with the current rule, the final rule 
provides that once a miner is an ``experienced miner,'' that miner is 
always an ``experienced miner'' for training purposes.
    The final rule retains the approach of the current rule under which 
there are two basic ways of becoming an ``experienced miner'': Through 
the grandfather provision, or through a combination of training and 
experience. Once a shaft and slope construction worker is an 
``experienced miner'' for underground or surface purposes, that status 
carries over to other underground or surface mining operations, 
respectively. Similarly, an experienced miner coming from another type 
of mining operation is considered an experienced miner for shaft and 
slope construction.
3. Sections 48.3 and 48.23 Training Plans

a. Shaft and Slope Training Plans

    Sections 48.3 and 48.23 require each mine operator to have an MSHA-
approved plan containing programs for new miner training, experienced 
miner training, new task training, annual refresher training, and 
hazard training. The standards contain the specific requirements for 
filing, approval and disapproval of training plans, and commencement of 
training.
    We proposed a new paragraph (o) that would require shaft and slope 
construction operators to have an approved training plan. This was 
implementing language, allowing a reasonable amount of time for 
operators to obtain an approved plan. The final rule retains this 
provision.
    Several commenters expressed concern that this would mean they 
would be required to have a new plan developed and approved for each 
new project. Like other independent contractors that are mobile and 
work at different sites, the shaft and slope construction operators can 
have one training plan for all of their project sites.
    Some shaft and slope construction operators work in different MSHA 
districts, and commenters were concerned about varying interpretations 
affecting approval from the districts. A plan approved in one MSHA 
district is considered approved in all other MSHA districts.
    Commenters also said that shaft and slope construction operators 
should have the option to have their own plan or use the plan of other 
mine operators. Consistent with the existing rule and practice for 
other mine operators, shaft and slope construction operators may opt to 
have their own plan or use the plan of another operator or programs of 
a cooperative, provided that the plan adequately addresses hazards 
characteristic of the shaft and slope construction work (existing 
Sec. Sec.  48.4 and 48.24).

b. Training Plan Development, Submission, and Approval

    We proposed in the new paragraph (o) to allow current shaft and 
slope construction operators 120 days from the date the final rule is 
published, unless extended by us, to submit a training plan. There were 
no adverse comments on the proposed provision, and the final rule 
remains unchanged. The shaft and slope construction operators are 
subject as well to existing plan development requirements of notice and 
posting under Sec. Sec.  48.3(d)/48.23(d).
    Some commenters were concerned about the applicability of the 
training plan requirements to the schedule of shaft and slope 
construction projects. One commenter indicated the requirements of plan 
development, such as the two week notice to miners' representatives, 
would be impractical. Another commenter supported the 120 day timeframe 
but said that we should waive this provision on a case-by-case basis to 
accommodate new shaft and slope construction projects started on short 
notice.
    We believe the requirements are reasonable. They have been applied 
successfully to other independent mine contractors who acquire work on 
short notice. Miner input into training will be no less valuable in 
shaft and slope construction than in other mining operations. Shaft and 
slope construction contractors can use one plan to basically cover all 
projects and do not need to

[[Page 77723]]

constantly create new plans as they move from mine to mine.
    Under the proposed rule, new operators must have a training plan 
prior to commencing operations. This is consistent with the requirement 
for other mining operations. We did not receive any comments on this 
provision. We have added the date of 180 days after the rule's 
publication to clarify what is meant by a ``new'' operator. Otherwise, 
the provision remains unchanged in the final rule.
    For a new shaft and slope construction operation that begins work 
after the publication date and before [insert date 180 days after the 
date of publication] we will allow the same number of days as existing 
operators to submit a plan (120 days), commencing from the work 
starting date.

c. Training Programs and Hours

    Under the proposed rule, the required training plan would contain 
programs for training new miners, training experienced miners, task 
training, annual refresher training, and hazard training. The final 
rule retained these requirements.
    The new miner training requirements drew numerous comments. They 
said that the requirements of 40 hours for underground and 24 hours for 
surface are excessive and unduly focus on classroom instruction.
    Those hour requirements are in the current rule covering other 
mining operations and are taken from section 115(a) of the Mine Act. 
Congress felt they were appropriate for new miners entering into a 
hazardous environment. New shaft and slope construction miners, like 
other miners, work in a dangerous environment and are exposed to 
potentially lethal hazards. These miners must receive the amount of 
training necessary for them to adequately cope with the hazards of 
their job.
    While many mine operators take advantage of classroom instruction, 
there is no requirement for classroom training. The regulations provide 
that the training must duplicate the actual mining conditions to the 
extent practicable and approximately 8 hours of training is to be 
conducted at the mine.
    Commenters stated that the part 48 new miner training places too 
much emphasis on training before assignment to duties. They said that 
training is more effectively done in intervals while on-the-job. One 
commenter remarked about the short attention span of workers. 
Commenters said they have, for example, 4 to 8 hours of orientation 
training, task training over a number of shifts with recorded 
supervisor observations, and safety training at periodic meetings.
    Constructing a shaft or slope can present a work environment where 
hazards may not be easily identified without advance training. Shaft 
and slope construction workers, like other miners, are not necessarily 
presented hazards one at a time, but may be exposed to several hazards 
at once (unstable ground, tripping, gases, and mobile equipment, for 
example). New shaft and slope construction workers, like other new 
miners, should not be subject to work hazards before they are fully 
trained. The Mine Act contemplates that a significant amount of 
training, particularly new miner training, be done in sessions set 
aside for training rather than simply ``on-the-job'' with attendant 
exposure to job hazards.
    Part 48 training also includes training after assignment to work 
duties as well as training in intervals. The training for surface 
miners permits the 24 hours of new miner training to be split. Eight 
hours can be given to the miner at the mine site immediately before 
being assigned work duties, and then 16 hours of training thereafter. 
In both underground and surface training, miners can take periods of 
annual refresher training (Sec. Sec.  48.3(c)(7) and 48.23(c)(7) and 
Sec. Sec.  48.8(e) and 48.28(e)). Additionally, they receive new task 
training, as applicable, which may include supervised equipment 
operation on-the-job. If operators want to provide additional training, 
they are free to do so. The flexible framework of part 48 allows 
operators to provide beneficial training beyond what is required.

d. Crediting Prior Training and Experience

    One commenter, citing our approach for training under part 46, said 
that previous training and experience should be taken into account and 
applied toward meeting the requirements for new miner training and 
annual refresher training. The commenter indicated that new shaft and 
slope construction workers may already have had some task experience 
and training, particularly OSHA training, which would remain relevant 
to their mining jobs. Another commenter claimed that tunneling is 
relevant experience for mining. And another commenter said that past 
training from other contractors should be credited.
    While we want to avoid undue duplication of training, we are 
mindful that a mining environment may present unique circumstances and 
hazards. Those aspects of mining are usually best addressed in training 
designed specifically for mining. Having instructors approved to teach 
mining courses provides a qualitative factor not available in other 
training.
    On the other hand, there are subjects, such as first aid, that are 
more generic in nature and essentially apply in any type of work 
environment. We are aware that shaft and slope construction workers 
previously may have received some occupational training that is 
relevant to mining.
    Balancing these considerations, we may grant partial credit in 
certain instances. Generic training courses such as first aid will be 
credited (this includes qualifications obtained more than a year 
before, but which are still current). Other training, particularly from 
OSHA and state OSH sources, may be considered for credit upon 
application.
    We recognize that some jobs are similar whether in a mining or non-
mining environment. We already allow operators to credit pertinent 
prior experience for some miners in order to meet the experience 
requirements under existing Sec. Sec.  48.5 and 48.25.
    Likewise, we will allow shaft and slope construction operators to 
credit relevant job experience. Operators should evaluate the 
experience as to the similarity of work environment, the hazards 
encountered, and the work skills and practices used.

e. Approved Instructors

    Consistent with existing part 48, much of the training required by 
the final rule must be conducted by MSHA-approved instructors 
(Sec. Sec.  48.3(i) and 48.23(i)). A commenter said that it will be 
extremely impractical for construction companies to get their own 
personnel ``MSHA approved'' as instructors in a timely manner, when 
they may only perform one or two jobs at a mine in the entire business 
life-cycle. The commenter said that the rule should allow ``competent 
persons'' and OSHA instructors to conduct the training. This would 
allow for comparable expertise and take into account the realities of 
shaft and slope construction work, which often demands the availability 
of varying crews at remote locations.
    It has been our experience under part 48, however, that mine 
operators, including small operators and those working in remote areas, 
generally have been able to obtain approved instructors when needed. 
Approved instructors have been readily available through three sources: 
Operators' staffs, state grantees, and private vendors. Even small mine 
operators have become

[[Page 77724]]

approved instructors themselves, available to train employees as 
necessary. Some commenters indicated they have staff training 
resources.
    We have approved thousands of instructors. There are various ways 
described in Sec. Sec.  48.3(l) and 48.23(l) of becoming an approved 
instructor. Many instructors are approved based on expertise, and that 
can include shaft and slope construction. If the demand is there, we 
anticipate even more individuals will seek certification as 
instructors.
4. Sections 48.8 and 48.28 Annual Refresher Training
    We proposed to amend existing paragraph (d) to require all shaft 
and slope construction workers employed on the effective date of the 
final rule to receive annual refresher training no later than 12 months 
from the effective month of the rule. There were no comments on the 
proposed provision, and therefore, it remains unchanged in the final 
rule.
    This will establish an annual refresher training cycle for shaft 
and slope construction workers. To maintain this training cycle, shaft 
and slope construction operators may complete the annual refresher 
training during the last calendar month of the miners' annual refresher 
training cycle.
5. Effective Date
    Under the proposed rule, the rule would be effective 180 days after 
publication except for Sec. Sec.  48.3(o) and 48.23(o). Those sections, 
requiring submission of a training plan, would be effective on the date 
of publication. We did not receive any comments on the proposed 
effective date, and it remains unchanged in the final rule.

III. Executive Order 12866

    Executive Order (E.O.) 12866 as amended by E.O. 13258 requires that 
regulatory agencies assess both the costs and benefits of intended 
regulations. We have fulfilled this requirement for the final rule, and 
have determined that the final rule will not have an annual effect of 
$100 million or more on the economy. Therefore, it is not an 
economically significant regulatory action pursuant to section 3(f)(1) 
of E.O. 12866.
    The rule will provide shaft and slope construction workers with the 
same type of safety and health training afforded other miners. Shaft 
and slope construction workers will now receive training for new 
miners, training for experienced miners, task training, annual 
refresher training, and hazard training, as applicable. The affected 
mining sectors and costs and benefits of the final rule are discussed 
below. A full discussion of the economic impacts of the final rule is 
provided in the Regulatory Economic Analysis which is provided on our 
webpage at www.msha.gov, under Rules and Regulations.

Mining Sectors Affected

    This final rule extends part 48 training to coal and metal and 
nonmetal shaft and slope construction workers who work in underground 
mines or at surface areas of underground mines. Based on the second 
quarter of 2003 data, the final rule will cover about 690 full-time 
equivalent shaft and slope construction workers. Of this total, about 
570 (or 83%) are employed by coal contractor firms, while the remaining 
120 (or 17%) are employed by metal and nonmetal contractor firms. All 
of these contractor firms are large by our standards, employing 20 to 
500 people. The final rule covers more shaft and slope construction 
workers than the number reported above because the number discussed 
above only represents the number of full-time equivalent employees. For 
instance, if a contractor hires 4 new shaft and slope miners, and three 
quit, the contractor firm would have paid the cost to train all 4 new 
hires, although only one remains employed. The one remaining miner is 
reported in the number of shaft and slope construction workers.
    Hence, the final rule covers both currently employed shaft and 
slope construction workers and all the newly hired shaft and slope 
construction workers.

Benefits

    Safety and health professionals from all sectors of the shaft and 
slope construction 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 further 
teaches miners health and safety principles and safe operating 
procedures in performing their work tasks. Training becomes more 
important with the influx of new and less experienced miners and mine 
operators; longer work hours to meet demands; and increased demand for 
contractors who may be less familiar with the dangers on mine property.
    There were 15 shaft and slope construction worker fatalities and an 
estimated 1,819 NFDL injuries from 1982 to 2005.\1\ This is equivalent 
to 0.69 fatalities and 86.64 NFDL injuries annually for shaft and slope 
construction workers. We further analyzed the incidence rates of six 
shaft and slope construction contractors, five of which represent the 
majority of the industry. We used the number of the industry's 
fatalities as the basis for determining the industry-wide accident and 
injury rates.
---------------------------------------------------------------------------

    \1\ MSHA does not have a separate system identifier for shaft 
and slope contractors in its accident database. However, because 
MSHA conducts an accident investigation of each mine fatality, we 
are able to tabulate the total number of shaft and slope fatalities 
from 1982-2005. To estimate the number of NFDL injuries for all 
shaft and slope contractors from 1982-2003, we used the ratio of 
NFDL injuries to fatalities for the six known shaft and slope 
construction companies and multiplied them by the total number of 
shaft and slope fatalities from 1982 through August 2003.
---------------------------------------------------------------------------

    In support of our 1999 part 46 final rule, we estimated the effect 
of metal and nonmetal miner training using data on injury and fatality 
rates for mines that conducted training versus those that did not. On 
average, mines that conducted training had fatality rates that were 60 
percent lower and days-lost injury rates that were 26 percent lower, 
relative to mines that did not conduct training. We noted that the 
mines with training tended to be larger and safer (independent of 
training) and assumed that only half of the observed lower injury and 
fatality rates was due to training itself. Therefore, for part 46, we 
estimated that miner training will reduce fatality rates by 30 percent 
and injury rates by 13 percent.
    Applying these same rates to shaft and slope construction worker 
training, we estimate that the final rule will prevent approximately 
0.2 fatalities and 11 NFDL injuries annually.

Compliance Costs

    All cost estimates are presented in 2003 dollars. The total yearly 
costs of the final rule are estimated to be about $555,000 for all coal 
contractor firms and $118,000 for all metal and nonmetal contractor 
firms. In addition, as a result of this rule, coal contractor miners 
are estimated to incur yearly costs of about $96,000, and metal and 
nonmetal contractor miners to incur yearly costs of about $20,000 for 
training prior to employment.

IV. Feasibility

    We have concluded that the requirements of the final rule are both 
technologically and economically feasible. This final rule is not a 
technology-forcing standard and does not involve activities on the 
frontiers of scientific knowledge. In addition, it

[[Page 77725]]

does not require the purchase of any machinery or equipment to 
implement these training plans as prescribed in part 48. Therefore, we 
have concluded that this final rule is technologically feasible.
    The total costs of the final rule are about $555,000 annually for 
all coal contractor firms and $118,000 annually for all metal and 
nonmetal contractor firms. We had to combine these coal and metal and 
nonmetal contractor firms together to estimate the yearly revenues 
because these contractor firms are not generally limited to one 
industry, and they could do shaft and slope construction work at both 
coal and metal and nonmetal mines. These compliance costs are well 
under 1 percent (about 0.19 percent) of the yearly estimated revenues 
of $357 million for these contractor firms. We believe this is 
convincing evidence that the final rule is economically feasible.

V. Regulatory Flexibility Act Certification

    Pursuant to the Regulatory Flexibility Act of 1980 as amended, we 
analyzed the impact of the final part 48 rule on small businesses. 
Further, we made a determination with respect to whether or not we can 
certify that the final rule does not have a significant economic impact 
on a substantial number of small entities that are covered by this 
rulemaking. Under the Small Business Regulatory Enforcement Fairness 
Act (SBREFA) amendments to the Regulatory Flexibility Act (RFA), we 
must include in the rule a factual basis for this certification. If the 
final rule were to impose a significant economic impact on a 
substantial number of small entities, then we must develop an initial 
regulatory flexibility analysis.

Definition of a Small Mine

    Under the RFA, in analyzing the impact of a final rule on small 
entities, we must use the SBA definition for a small entity, 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. We have not taken such an 
action, and hence are required to use the SBA definition.
    The SBA defines a small entity in the mining industry as an 
establishment with 500 or fewer employees (13 CFR 121.201). All of the 
underground coal and metal and nonmetal contractor firms affected by 
this rulemaking fall into this category, and so can be viewed as 
sharing the special regulatory concerns which the RFA was designed to 
address.
    Traditionally, we have also looked at the impacts of our final 
rules on a subset of mines with 500 or fewer employees--those with 
fewer than 20 employees, which the mining community refers to as 
``small mines.'' These small mines differ from larger mines not only in 
the number of employees, but also, among other things, in economies of 
scale, in material produced, in the type and amount of production 
equipment, and in supply inventory. Therefore, their costs of complying 
with the final rule and its impact on them will also tend to be 
different. It is for this reason that ``small mines,'' as traditionally 
defined by the mining community, are of special concern to us.
    This analysis complies with the legal requirements of the RFA for 
an analysis of the economic impacts on ``small entities'' while 
continuing our traditional look at ``small mines.'' We conclude that we 
can certify that the final part 48 rule does not have a significant 
economic impact on a substantial number of small entities that are 
covered by this rulemaking.

Factual Basis for Certification

    Our analysis of economic impacts on ``small entities'' begins with 
a ``screening'' analysis. The screening compares the estimated 
compliance costs of a final rule for small entities in the sector 
covered by the rule to the estimated revenues for those small entities. 
When estimated compliance costs are less than 1 percent of the 
estimated revenues (for the size categories considered), we believe it 
is generally appropriate to conclude that there is no significant 
economic impact on a substantial number of small entities. When 
estimated compliance costs exceed 1 percent of revenues, it tends to 
indicate that further analysis may be warranted.

Derivation of Costs and Revenues

    Both coal and metal and nonmetal contractor firms would incur costs 
to comply with this final rule. We examined the relationship between 
costs and revenues for the coal and metal and nonmetal contractor 
sectors as two independent entities, rather than combining them into 
one category. However, we had to combine these two entities to perform 
impact analysis in this section for the following reasons. Most of the 
23 coal and metal and nonmetal contractor firms affected by this final 
rule are privately owned and do not make their financial data available 
to the public. The only two contractor firms for which we were able to 
obtain financial data were listed as coal contractor firms.\2\ However, 
these contractor firms are not generally limited to one industry, and 
they could perform shaft and slope construction work at both coal and 
metal and nonmetal mines.
---------------------------------------------------------------------------

    \2\ The source of the financial data for these two contractor 
firms was the Thomas Registry, located online at 
www.thomasregistry.com. Thomas Register is an online resource for 
finding companies and products manufactured in North America.
---------------------------------------------------------------------------

    We used available financial data for the two publicly-traded, 
middle-sized contractor firms \3\ together with Industry Norms & Key 
Business Ratios \4\ and extrapolated the revenues to estimate revenues 
for the entire shaft and slope contractor industry. The financial data 
for each of the two contractor firms was a range of assets (i.e., $1 
million to $5 million; $25 million to $50 million). To be conservative, 
we chose to use the lower bound for the reported assets to calculate 
the average assets for a contractor firm. The next step was to use the 
assets to sales ratio for the mining industry from Industry Norms & Key 
Business Ratios \5\ to obtain an estimate of average revenues for each 
contractor firm. Then, we multiplied that revenue number by the 23 
contractor firms (from Table IV-2).
---------------------------------------------------------------------------

    \3\ Since there were no costs to either small coal or metal and 
nonmetal contractor firms that employ between one to 19 contractor 
employees, we did not perform separate impact analysis for that mine 
size category. To satisfy the requirements of SBREFA, we only have 
to consider a subset of the SBA's definition of ``small entities''--
contractor firms that employ 20-500 employees.
    \4\ Industry Norms & Key Business Ratios, pp. 8-10.
    \5\ The assets to sales ratio is calculated by taking the 
average assets to sales ratio (of 128.9%) for coal, metal and non-
metallic mineral operations, excluding fuel.
---------------------------------------------------------------------------

Results of Screening Analysis

    Our analysis of economic impacts on ``small entities'' begins with 
a ``screening'' analysis. The screening compares the estimated 
compliance costs of a final rule for small entities in the sector 
covered by the rule to the estimated revenues for those small entities. 
When estimated compliance costs are less than 1 percent of the 
estimated revenues (for the size categories considered), we believe it 
is generally appropriate to conclude that there is no significant 
economic impact on a substantial number of small entities. When 
estimated compliance costs exceed 1 percent of revenues, it tends to 
indicate that further analysis may be warranted.
    The combined estimated yearly cost of the final rule for both coal 
and metal and nonmetal contractor firms is about $673,000 as compared 
to estimated annual revenues of about $357 million

[[Page 77726]]

for the affected firms.\6\ Costs as percentage of revenues are well 
below one percent (0.19 percent for coal and metal and nonmetal 
contractor firms) and, therefore, we conclude that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \6\ One concern about the robustness of the screening analysis 
is that it is based on (available) financial data for only 2 of the 
23 contractor firms. If the assets and revenues for these two 
contractor firms were non-representative of the other contractors 
and in particular significantly over-estimated average contractor 
firm assets and revenues, then it is possible that actual revenues 
for all the contractor firms would be insufficient to pass the 
screening analysis. To address this concern, we obtained employment 
data, from web pages and MSHA testimony, for several of the 
corporations controlling the contractor firms. For the two 
contractor firms for which we have financial data, employment was 
50-99 employees and 100-249 employees. For two other contractor 
firms, total employment was 50-150 employees and up to 300 
employees. We found that another contractor firm was owned by 
Germany's largest mining contractor, with over $2 billion in 
completed projects in the Americas in recent decades. Just for these 
five firms, extrapolating the employment and project information to 
estimate revenue, we were able to estimate sufficient revenues to 
pass the screening analysis.
---------------------------------------------------------------------------

VI. Paperwork Reduction Act of 1995

    The part 48 rule has four provisions: Sec. Sec.  48.3 and 48.23; 
and Sec. Sec.  48.9 and 48.29 that impose a paperwork burden 
requirement. This final rule does not require a new type of training 
plan. It requires shaft and slope contractor firms to comply with the 
paperwork burden requirements as specified in Sec. Sec.  48.3 and 
48.23, and Sec. Sec.  48.9 and 48.29. The reporting of this paperwork 
burden requirement is approved under OMB control number 1219-0009. 
Total first year burden hours consist of two components: first year 
burden hours and annual burden hours in year one. Total first year 
costs are equal to the total annualized costs in the first year plus 
total annual costs in year one. Contractor firms working in coal mines 
would incur about 296 paperwork burden hours in the first year with 
associated burden hours costs of $4,091; contractor firms working in 
metal and nonmetal mines would incur about 72 paperwork burden hours in 
the first year with associated burden hours costs of $1,081. Of the 296 
paperwork burden hours in the first year for contractor firms working 
in coal mines, only 132 hours were first-year only burden hours, with 
associated costs of $5,229 (which is equivalent to $366 of annualized 
costs) of the 72 paperwork burden hours in the first year for 
contractor firms working in metal and nonmetal mines, only 28 hours 
were first-year only burden hours, with associated costs of $1,101, 
which is equivalent to $77 of annualized costs (from Table VII-1 in the 
REA). Contractor firms working in coal mines would incur about 183 
annual burden hours starting in year two with associated costs of 
$4,425; contractor firms working in metal and nonmetal mines would 
incur about 49 annual burden hours starting in year two with associated 
costs of $1,164.

VII. Other Regulatory Considerations

A. The Unfunded Mandates Reform Act

    This final rule does not include any Federal mandate that may 
result in increased expenditures by State, local, or tribal 
governments; nor does it increase private sector expenditures by more 
than $100 million annually; nor does it significantly or uniquely 
affect small governments. Accordingly, the Unfunded Mandates Reform Act 
of 1995 (2 U.S.C. 1501 et seq.) requires no further agency action or 
analysis.

B. National Environmental Policy Act

    We have reviewed this final rule in accordance with the 
requirements of the National Environmental Policy Act (NEPA) of 1969 
(42 U.S.C. 4321 et seq.), the regulations of the Council on 
Environmental Quality (40 U.S.C. part 1500), and the Department of 
Labor's NEPA procedures (29 CFR part 11). This final rule is 
categorically excluded from NEPA requirements because it involves 
educational activities which have no possibility of significant 
environmental impact (29 CFR 11.10(a)(1)(vi)). Accordingly, we have not 
conducted an environmental assessment nor provided an environmental 
impact statement.

C. The Treasury and General Government Appropriations Act of 1999: 
Assessment of Federal Regulations and Policies on Families

    This final rule has no affect on family well-being or stability, 
marital commitment, parental rights or authority, or income or poverty 
of families and children. Accordingly, section 654 of the Treasury and 
General Government Appropriations Act of 1999 (5 U.S.C. 601 note) 
requires no further agency action, analysis, or assessment.

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

    This final rule does not implement a policy with takings 
implications. Accordingly, Executive Order 12630, Governmental Actions 
and Interference with Constitutionally Protected Property Rights, 
requires no further agency action or analysis.

E. Executive Order 12988: Civil Justice Reform

    This final rule was written to provide a clear legal standard for 
affected conduct and was carefully reviewed to eliminate drafting 
errors and ambiguities, so as to minimize litigation and undue burden 
on the Federal court system. Accordingly, this final rule meets the 
applicable standards provided in section 3 of Executive Order 12988, 
Civil Justice Reform.

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

    This final rule has no adverse impact on children. Accordingly, 
Executive Order 13045, Protection of Children from Environmental Health 
Risks and Safety Risks, as amended by Executive Orders 13229 and 13296, 
requires no further agency action or analysis.

G. Executive Order 13132: Federalism

    This final rule does not have ``federalism implications,'' because 
it does not ``have substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.'' Accordingly, Executive Order 13132, Federalism, requires 
no further agency action or analysis.

H. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This final rule does not have ``tribal implications,'' because it 
does not ``have substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes.'' Accordingly, Executive 
Order 13175, Consultation and Coordination with Indian Tribal 
Governments, requires no further agency action or analysis.

I. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy, Supply, Distribution, or Use

    This final rule is not a ``significant energy action,'' because it 
is not ``likely to have a significant adverse effect on the supply, 
distribution, or use of energy'' ``(including a shortfall in supply, 
price increases, and increased use of foreign supplies).'' Accordingly, 
Executive Order 13211, Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use, requires no 
further agency action or analysis.

[[Page 77727]]

J. Executive Order 13272: Proper Consideration of Small Entities in 
Agency Rulemaking

    We have thoroughly reviewed this final rule to assess and take 
appropriate account of its potential impact on small businesses, small 
governmental jurisdictions, and small organizations. We have determined 
and certified that this final rule will not have a significant economic 
impact on a substantial number of small entities. We took appropriate 
account of comments received relevant to the rule's potential impact on 
small entities. Accordingly, Executive Order 13272, Proper 
Consideration of Small Entities in Agency Rulemaking, requires no 
further action or analysis by us.

VIII. Regulatory Text

List of Subjects in 30 CFR Part 48

    Mine safety and health, Reporting and recordkeeping requirements, 
Training programs and mining.

    Dated: December 23, 2005.
David G. Dye,
Acting Assistant Secretary for Mine Safety and Health.

0
For reasons set out in the preamble, Chapter I of Title 30 of the Code 
of Federal Regulations is amended as follows:

PART 48--[AMENDED]

0
1. The authority citation for part 48 continues to read as follows:

    Authority: 30 U.S.C. 811, 825.

0
2. Section 48.2 is amended by revising paragraphs (a)(1) introductory 
text and (a)(1)(i) and by adding paragraph (b)(4) as follows:


Sec.  48.2  Definitions.

* * * * *
    (a)(1) Miner means, for purposes of Sec. Sec.  48.3 through 48.10 
of this subpart A, any person working in an underground mine and who is 
engaged in the extraction and production process, or engaged in shaft 
or slope construction, or who is regularly exposed to mine hazards, or 
who is a maintenance or service worker employed by the operator or a 
maintenance or service worker contracted by the operator to work at the 
mine for frequent or extended periods. This definition shall include 
the operator if the operator works underground on a continuing, even if 
irregular basis. Short-term, specialized contract workers, such as 
drillers and blasters, who are engaged in the extraction and production 
process or engaged in shaft or slope construction and who have received 
training under Sec.  48.6 (Experienced miner training) of this subpart 
A may, in lieu of subsequent training under that section for each new 
employment, receive training under Sec.  48.11 (Hazard training) of 
this subpart A. This definition does not include:
    (i) Workers under subpart C of this part 48, engaged in the 
construction of major additions to an existing mine which requires the 
mine to cease operations;
* * * * *
    (b) * * *
* * * * *
    (4)(i) A person employed as an underground shaft or slope 
construction worker on June 28, 2006; or
    (ii) A person who has six months of underground shaft or slope 
experience within 24 months before June 28, 2006.
* * * * *

0
3. Section 48.3 is amended by revising paragraph (a) introductory text 
and adding paragraph (o) as follows:


Sec.  48.3  Training plans; time of submissions; where filed; 
information required; time for approval; method for disapproval; 
commencement of training; approval instructors.

    (a) Except as provided in paragraph (o) of this section, each 
operator of an underground mine shall have an MSHA-approved plan 
containing programs for training new miners, training experienced 
miners, training miners for new tasks, annual refresher training, and 
hazard training for miners as follows:
* * * * *
    (o) Each operator engaged in shaft or slope construction shall have 
an MSHA-approved training plan, as outlined in this section, containing 
programs for training new miners, training experienced miners, training 
miners for new tasks, annual refresher training, and hazard training 
for miners as follows:
    (1) In the case of an operator engaged in shaft or slope 
construction on December 30, 2005, the operator shall submit a plan for 
approval by May 1, 2006, unless extended by MSHA.
    (2) In the case of a new shaft or slope construction operator after 
June 28, 2006, the operator shall have an approved plan prior to 
commencing shaft or slope construction.

0
4. Paragraph (d) of Sec.  48.8 is revised to read as follows:


Sec.  48.8  Annual refresher training of miners; minimum courses of 
instruction; hours of instruction.

* * * * *
    (d) All persons employed as shaft or slope construction workers on 
June 28, 2006 must receive annual refresher training within 12 months 
of June 2006.
* * * * *

Subpart B--[Amended]

0
5. Section 48.22 is amended by revising paragraphs (a)(1) introductory 
text and (a)(1)(i) and by adding paragraph (b)(4) as follows:


Sec.  48.22  Definitions.

* * * * *
    (a)(1) Miner means, for purposes of Sec. Sec.  48.23 through 48.30 
of this subpart B, any person working in a surface mine or surface 
areas of an underground mine and who is engaged in the extraction and 
production process, or engaged in shaft or slope construction, or who 
is regularly exposed to mine hazards, or who is a maintenance or 
service worker employed by the operator or a maintenance or service 
worker contracted by the operator to work at the mine for frequent or 
extended periods. This definition shall include the operator if the 
operator works at the mine on a continuing, even if irregular, basis. 
Short-term, specialized contract workers, such as drillers and 
blasters, who are engaged in the extraction and production process or 
engaged in shaft or slope construction and who have received training 
under Sec.  48.26 (Experienced miner training) of this subpart B, may 
in lieu of subsequent training under that section for each new 
employment, receive training under Sec.  48.31 (Hazard training) of 
this subpart B. This definition does not include:
    (i) Construction workers under subpart C of this Part 48;
* * * * *
    (b) * * *
* * * * *
    (4)(i) A person employed as a surface shaft or slope construction 
worker on the June 28, 2006; or,
    (ii) A person who has six months of surface shaft or slope 
experience within 24 months before June 28, 2006.
* * * * *

0
6. Section 48.23 is amended by revising paragraph (a) introductory text 
and adding paragraph (o) as follows:


Sec.  48.23  Training plans; time of submission; where filed; 
information required; time for approval; method for disapproval; 
commencement of training; approval of instructors.

    (a) Except as provided in paragraph (o) of this section, each 
operator of a surface mine shall have an MSHA-approved plan containing 
programs for training new miners, training experienced miners, training 
miners for new tasks, annual refresher training,

[[Page 77728]]

and hazard training for miners as follows:
* * * * *
    (o) Each operator engaged in shaft or slope construction shall have 
an MSHA-approved training plan, as outlined in this section, containing 
programs for training new miners, training experienced miners, training 
miners for new tasks, annual refresher training, and hazard training 
for miners as follows:
    (1) In the case of an operator engaged in shaft or slope 
construction on December 30, 2005, the operator shall submit a plan for 
approval by May 1, 2006, unless extended by MSHA.
    (2) In the case of a new shaft or slope construction operator after 
June 28, 2006, the operator shall have an approved plan prior to 
commencing shaft or slope construction.

0
7. Paragraph (d) of Sec.  48.28 is revised to read as follows:


Sec.  48.8  Annual refresher training of miners; minimum courses of 
instruction; hours of instruction.

* * * * *
    (d) All persons employed as shaft or slope construction workers on 
June 28, 2006 must receive annual refresher training within 12 months 
of June 2006.
* * * * *
[FR Doc. 05-24624 Filed 12-29-05; 8:45 am]
BILLING CODE 4510-43-P