UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION PUBLIC HEARING ON TRAINING AND ) RETRAINING OF MINERS ENGAGED IN ) SHELL DREDGING OR EMPLOYED AT ) SAND, GRAVEL, SURFACE STONE, ) SURFACE CLAY, COLLOIDAL ) PHOSPHATE, OR SURFACE LIMESTONE ) MINES PROPOSED RULE ) REVISED AND CORRECTED COPY Pages: 1 through 161 Place: Washington, D.C. Date: May 27, 1999 UNITED STATES DEPARTMENT OF LABOR MINE SAFETY AND HEALTH ADMINISTRATION PUBLIC HEARING ON TRAINING AND ) RETRAINING OF MINERS ENGAGED IN ) SHELL DREDGING OR EMPLOYED AT ) SAND, GRAVEL, SURFACE STONE, ) SURFACE CLAY, COLLOIDAL ) PHOSPHATE, OR SURFACE LIMESTONE ) MINES PROPOSED RULE ) U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, D.C. Thursday, May 27, 1999 The hearing in the above-entitled matter commenced, pursuant to notice, at 8:05 a.m. PANEL: ROSLYN FONTAINE, Office of Standards, Regulations, and Variances, MSHA ROBERT STONE, Office of Standards, Regulations, and Variances, MSHA KATHY ALEJANDRO, Metal and Nonmetal Mine Safety and Health Administration KEVIN BURNS, Metal and Nonmetal Mine Safety and Health Administration ROD BRELAND, Western Operations Manager, MSHA ROBERT ALDRICH, Office of the Solicitor ATTENDEES: HUNTER PRILLAMAN, Coalition for Effective Miner Training and the National Lime Association JOE MAIN, United Mine Workers of America ELSA ROMAN, States Grants Program, University of Texas JIM SHARPE, Director of Safety and Health Services, National Stone Association JAMES TURNER, North Carolina Department of Labor I N D E X STATEMENT: Page KATHY ALEJANDRO, MINE SAFETY AND HEALTH 3 ADMINISTRATION HUNTER PRILLAMAN, COALITION FOR EFFECTIVE 8 MINER TRAINING AND THE NATIONAL LIME ASSOCIATION JOE MAIN, UNITED MINE WORKERS OF AMERICA 41 ELSA ROMAN, STATES GRANTS PROGRAM, UNIVERSITY 79 OF TEXAS JIM SHARPE, DIRECTOR OF SAFETY AND HEALTH 100 SERVICES, NATIONAL STONE ASSOCIATION JAMES TURNER, NORTH CAROLINA DEPARTMENT OF LABOR 146 P R O C E E D I N G S (8:05 a.m.) MS. ALEJANDRO: Good morning. My name is Kathy Alejandro, and I'm with Metal and Nonmetal 15th Health with the Mine Safety and Health Administration. On behalf of MSHA, I would like to welcome you to the last of four public hearings on MSHA's proposed regulations for miner safety and health training. These hearings are intended to give individuals in organizations, including miners and their representatives and mine operators, both large and small, an opportunity to present their views on the proposed training regulation, which was published in the Federal Register on April 14, 1999. These regulations would apply in those nonmetal surface mines where MSHA currently cannot enforce existing training requirements. I would like to take this opportunity to introduce members of the MSHA panel who are here with me this morning. To my far left is Robert Aldrich with the Office of the Solicitor. Next is Rod Breland, who is Western Operations Manager for the newly formed Educational Field Services Division within MSHA. Immediately next to me is Kevin Burns, who is also with Metal and Nonmetal Mine Safety and Health. And to my right is Robert Stone, who is with the Office of Standards, Regulations, and Variances in MSHA. Since 1979, MSHA has been guided by a rider to its appropriations. The restriction currently states that none of the funds appropriated shall be obligated or expended to carry out Section 115 of the Federal Mine Safety and Health Act of 1977 or to carry out that portion of Section 104(j)(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. In the omnibus budget passed by Congress on October 21, 1998, MSHA was directed to work with the affected industries -- mine operators, workers, labor organizations, and other affected and interested parties -- to promulgate final training regulations for the affected industries by September 30, 1999. The hearing will be conducted in an informal manner, and the court reporter will make a transcript of the proceedings. Anyone who wishes to speak at this hearing and has not signed up in advance should sign up on the speaker's list, which is currently located up here, but you'll have more than an adequate opportunity to speak, should you choose to do so later. We also ask that everyone who is here today, whether or not you wish to speak, sign the attendance sheet, which is located on the table immediately outside the auditorium as you come in. Anyone who wishes may also submit written statements and information to us during the course of this hearing which will be included as part of the lawmaking record. You may also wish to send us written comments after the hearing. The deadline for submission of written comments is June 16, 1999. And if you need the address for where to send these comments, please come up to us at a break and we'll give you that information. And if you're specifically interested in comments on certain aspects of the proposed rule -- although we encourage you to comment on any of the proposed provisions -- these issues were identified in the notice of hearing published in the Federal Register on April 14, 1999, and I will summarize them. Definition of miner, under the proposal: A person engaged in mining operations integral to extraction or production would be considered a miner. We're interested in whether this definition is appropriate. Workers who fit the definition of miner under the proposal would be required to receive comprehensive training, including new-miner training or newly hired experienced-miner training, as appropriate. Plan approval process: The proposal would require each operator to develop and implement a written training plan that includes programs for training new miners and newly hired experienced miners, training miners for new tasks, annual refresher training, and hazard training. Plans that include the minimum information specified in the proposal would be considered approved and would not be required to be submitted to MSHA for formal review. Miners and their representatives would also be given the opportunity to comment on the plan before it is implemented or to request us to formally review and approve the plan. We are interested in comments on whether the proposed approach is appropriate or whether any commenters believe a traditional plan-approval process similar to the process in existing Part 48 is needed to ensure the training plans meet minimum standards of quality. New-miner training: Under the proposal, no minimum number of hours of training is required for a new miner before he or she begins work under the close supervision of an experienced miner. Instead, the proposal requires instruction in four subject areas before the miner can assume work duties. We are interested in whether commenters agree with this approach or whether the final rules should establish a minimum number of hours of training that new miners must receive before they begin work. New-task training: This proposed rule would require miners to be trained for new tasks and for regular reassigned tasks that have changed. The new task training requirements in the proposal are very performance oriented and do not include detailed specifications for this training. However, we're interested in comments on whether the final rule should include more detail and guidance on the elements of an effective new-task training program, and if so, what area should be addressed. Training instructors: The proposal would not require a formal program for the approval of certification of instructors or establish rigid minimum qualifications for instructors. Instead, training must be provided by a competent person, which is defined in the proposal as a person designated by the operator who has the ability, training, knowledge, or experience to provide training to miners on a particular subject. Under this definition, the competent person must also be able to evaluate the effectiveness of the training. We are interested in comments on whether this approach is appropriate. Annual refresher training: Under the proposal, refresher training must include, at a minimum, instruction on changes at the mine that could adversely affect the miner's health or safety. The proposal includes a list of suggested topics that refresher training could cover, but these topics are not mandatory. We are interested in whether the final rule should include more detailed requirements and whether there are any other subjects that commenters believe should be required. Effective dates and compliance deadlines: We're interested in comments on how much time should be allowed for the mining community to come into compliance with the final rule. One possible approach would be phased-in compliance deadlines where some of the rule's requirements would go into effect at different stages. We understand that there will be a very large number of operations coming into compliance at the same time, and we wish to allow a reasonable amount of time for the transition. Costs and benefits of the proposed rule: We're interested in comments on all elements, including methodology, assumptions, and data, of our analysis of the costs and benefits of compliance with the proposed rule. I would now like to introduce the first speaker this morning. We ask that all speakers state and spell their name for the court reporter before beginning their presentation. Thank you very much. The first speaker on the list is Hunter Prillaman from the Coalition for Effective Miner Training and the National Lime Association. MR. PRILLAMAN: Good morning. That's Hunter Prillaman. Prillaman is P-R-I-L-L-A-M-A-N. As Kathy mentioned, I'm with the National Lime Association, but today I'm representing the Coalition for Effective Miner Training, or CEMT. The Coalition is made up of 18 members representing the overwhelming majority of producers and miners affected by the proposed rule. CEMT consists of two producing companies, 14 trade associations representing producers, and two labor unions. Since last summer, CEMT has been working with MSHA to develop a workable alternative to the Part 48 training requirements for the exempt industries. On February 1st, CEMT presented its draft alternative to MSHA. CEMT is pleased to observe that, in most respects, MSHA's proposed Part 46 is very similar to the CEMT draft. In particular, the proposed regulations embody a flexible performance-oriented approach that's crucial for the industries that will be covered by the rule. CEMT commends MSHA for recognizing the needs and concerns of these industries. We strongly urge MSHA to take the course and to promulgate a final rule that follows the flexible approach set out in the proposed rule. Members of CEMT do have some concerns with the proposed rule, and we believe that it can be improved in several respects. I'll only address a few of the more significant concerns here. Other issues of correction and clarification will be addressed in CEMT's written comments and in the written comments of its members. Probably the most significant issue is the lack of a proposed effective date or implementation schedule, and we think this is a very important issue. For many producers, especially small operations, compliance with Part 46 is going to require significant preparation, and many of them are going to need help setting up training plans that satisfy the rules. As a result, CEMT believes there should be a reasonable time between the promulgation of the final rule and the date upon which it becomes enforceable. We suggest at least a year will be needed to ensure broad understanding of the regulations and timely compliance. We prefer that the regulations not be phased in, because we think the process should be as simple as possible. CEMT is also concerned the proposed rule largely places an obligation on the producer-operator for providing site-specific hazard training to the employees of contractors. CEMT believes it's the employers of these individuals that should have the primary legal responsibility for training them, especially when the contractors' employees themselves are miners under the definition in Part 46. I know I did briefly cover CEMT's response to the specific questions that were raised in the notice establishing this hearing. First, CEMT agrees with MSHA's proposed definition of miner as a person engaged in actual mining operations. This contributes to the general approach in the proposal to provide training commensurate with the risk experienced by the person to be trained. With respect to the plan-approval process, CEMT does not believe that it's necessary to include provisions allowing miners or their representatives to trigger a formal submission and approval process. We believe that the ability of miners and their reps to inform MSHA directly that they believe a plan is inadequate provides sufficient protection for these interests. CEMT generally supports MSHA's approach to new- miner training, however, we're concerned by the narrow definition of "close supervision" given in the preamble. The requirement that a supervisor can do nothing other than supervise the trainee is unrealistic. This is particularly a problem if this definition applies to the requirement that a worker who has not yet received 24 hours of training must work under close supervision, because this could be for -- well, under the proposal, it could be for a 60-day period, and that's just simply not going to be possible. There seem to be two different applications of the term "close supervision." That's something we hope can be clarified. CEMT also has the same concern with the requirement for close supervision in task training. One other thing about new-miner training: We suggested in our draft that the new- miner training be completed within 60 working days. The proposal says 60 calendar days. We think that's a little short, although we recognize the concern that because of layoffs that the 60 working days could be a long period. We suggest something more like 90 calendar days, which would be approximately 60 working days for most ordinary operations. CEMT strongly supports MSHA's proposal that no formal approval for instructors be required. We believe that operators are in the best position to judge who can most effectively provide the needed training, especially training that's hands-on training. CEMT supports interest support on refresher training. With respect to the costs and benefits of the rule, these will vary widely across the industry. Fairly larger operations are more likely to have more robust training programs already in place, although there will still be some costs involved in preparing written plans and procedures that comply with the explicit requirements of Part 46. On the hand, there are small operations that do not belong to any of the trade associations in CEMT and who will need to be reached with information about what the rules are and how to comply. This will involve more costs for them and for those who are trying to educate them. As to benefits, CEMT believes that a flexible performance-oriented training requirement will benefit both operators and miners with improved health and safety and reduced costs and downtime. In sum, with the exception of the concerns raised today and those to be raised in our written comments, CEMT is very pleased with MSHA's proposed rule. We think that cooperative process that produced this proposal has been a win-win proposition for all the parties involved, including industry, MSHA, and labor. We hope the same spirit of cooperation will carry through to the final rule and beyond. Thank you. MS. ALEJANDRO: Thank you, Mr. Prillaman. I've got a question or two, and others up here with me will, as well. MR. PRILLAMAN: All right. MS. ALEJANDRO: In your comment that deadline for completion of new-miner training should be -- I guess, a coalition member earlier on in one of the earlier hearings indicated that the position was that it should be 60 working days. What is the definition of 60 working days? Are those the days that the individual miner actually works, the days that the operation actually works, Monday through Friday? MR. PRILLAMAN: Well, I had understood that it was the days that miner actually worked. MS. ALEJANDRO: The individual miner? MR. PRILLAMAN: We can see the concern with that, because if he's laid off for three months, that doesn't make sense. MS. ALEJANDRO: Well, I mean, it just seems like it would present both compliance and enforcement -- MR. PRILLAMAN: Yes. This is -- MS. ALEJANDRO: -- complications. MR. PRILLAMAN: -- this is an issue that's probably still being hashed out somewhat within CEMT, so maybe I should speak for the Lime Association when I say -- MS. ALEJANDRO: Okay. MR. PRILLAMAN: -- that some sort of compromise on this would probably be calendar days, but a little bit longer than 60 days so that it would encompass, you know, something like 90 days. If you look at 90 calendar days, somebody who's working full-time is going to work, you know, 60 or so days in that period of time. MS. ALEJANDRO: Okay. All right. MR. PRILLAMAN: So that would be one way of splitting that issue. MS. ALEJANDRO: Okay. That's all I have. Robert, do you have any questions? MR. ALDRICH: No. MS. ALEJANDRO: Rod? MR. BRELAND: Yes. I have a few, Mr. Prillaman. MR. PRILLAMAN: Okay. MR. ALDRICH: On the effective date, you were proposing one year, based on the fact you think it'll take a year for all the mining operations to gear up and -- MR. PRILLAMAN: I think that -- yes. I think that the level of knowledge of what's going on is not as wide as we would hope. You have to remember there are a lot of very small operations that are going to be swept into this rule that, as I mentioned -- many of them aren't even members of the trade associations that are here. They are going to have to be reached with this information. And indeed, a lot of those that are our members are going to require time to do this. The ones that are larger, you know, they probably have training programs in place. It won't take that long to switch them over, but for the great mass of small aggregate operations and other small mining operations, I think a significant amount of time is going to be needed. MR. BRELAND: Aren't the associations, though, aren't they widely broadcasting this information, as well, and sharing it presently? MR. PRILLAMAN: They are. They are, but the time for penetration -- and also I'm hoping that there's going to be efforts to help people get plans that are good solid plans in place before the enforcement date comes, and that's going to take some time. They have to be developed; they have to be disseminated. MS. ALEJANDRO: Yes. I mean, I think that MSHA clearly recognizes that getting the rule out is one part of it, but a probably more difficult part is going to be the implementation and making sure that everyone knows what their obligations are and assisting those who need it. And I think there are a lot of small operators who are going to need a significant amount of assistance, either from MSHA or state grantees or even larger operators. MR. BRELAND: Okay. Thank you. Now, another issue you brought up -- I was trying to stay up with you; you were going pretty fast on some of them -- but you had mentioned the legal responsibility for hazard training. MR. PRILLAMAN: Yes? MR. BRELAND: You believe it should be entirely the contractors'? MR. PRILLAMAN: I think, in practice, most of the time that training for contractors that don't have a significant presence at the site, it will probably be delivered by the operator. But we think the responsibility ought to be with the employee's employer if they are a contractor who works at the site. I particularly feel strongly about that when the contractor is a miner that meets the definition of a miner. A prime example would be someone who does -- a contractor who comes and does blasting. We think they ought to get their hazard training from their own employer. Now, we think that the operator of the site should have an obligation to provide information to that contractor about what are the site-specific hazards, which would then be part of the training would be given to the specific miner. But a lot of times contractors will use different employees at different times to do the work, and we think that they should have that primary responsibility. MR. BRELAND: What if a contractor's not getting the hazard training to their employees and their employees are, in fact, affecting maybe the safety of your employees? MR. PRILLAMAN: Well, I certainly think that a prudent operator would make sure that they are getting it. The question is who has the responsibility to do it and to pay for it. We think that the employer should. Now, I think in most cases, operators will insist that they -- that the contract employees have it before they are allowed on the site, but the issue is who's responsible for giving it, who has that ultimate responsibility under the law? MR. BRELAND: From this particular regulation, it seems that the operator -- in the past at least, MSHA has expected the operator to ensure that all miners that come on the site have received site-specific hazard training. But you're asking for this one to be different from the standpoint that the operator wouldn't be -- the mine production operator wouldn't be responsible for -- MR. PRILLAMAN: Yes. The principle that we're adhering to is that employees should get their training from their employers. MR. BRELAND: Okay. What about, like, service and maintenance people, how do you see them as definition of miner? MR. PRILLAMAN: Well, there's obviously some level at which, where the training is something like signage, or a card, or something like that, that it's going to be provided just -- umbrella. A lot of these people aren't going to require training under the proposal that you -- MR. BRELAND: For service and maintenance people that come in and do your -- MR. PRILLAMAN: In the mining area? MR. BRELAND: -- or, yes, in the mining area? MR. PRILLAMAN: Well, we think they too -- their employers should have the responsibility. I mean, I think it's a stronger argument if they are miners than in -- and it's more likely that the training for those people would actually be physically provided by the operator. The question is who is responsible for making sure that it's provided. MR. BRELAND: There's some discussion about the miners too, and the definition of miners. Again, I'm just trying to get more understanding of what people are proposing. But you're saying, CEMT is saying -- their proposal is that a miner is strictly involved in production, extraction, period. That's no support activity. That's not maintenance. That's not -- MR. PRILLAMAN: Right. Well, that's how we read the -- that's how we read the proposal. I mean -- MR. BRELAND: That's your position as well? MR. PRILLAMAN: -- we think that's pretty good. Well, I should say that we like the proposal. We're a little concerned about some language in the preamble about - - I think the example is given of some construction workers who come onto the site and are building a new crusher. We don't think those people are involved in mining activities, because there's no -- because they're not -- a crusher's not operational. We think a better example would be someone like a blaster. That's someone who is actually performing true mining operations, even though they are a contractor. MR. BRELAND: Well, I believe in the present program policy manual there's, like, nine examples of contractors that typically fit that, but that would include actually people that do haulage. MR. PRILLAMAN: Yes. MR. BRELAND: So -- MR. PRILLAMAN: I think -- MR. BRELAND: -- so would you consider people that do haulage miners? MR. PRILLAMAN: Well, I haven't really -- I would. MR. BRELAND: Okay. MR. PRILLAMAN: But I don't want to speak for CEMT on that. That's not something we've discussed, but I think that someone who is hauling in the mining area of the mine -- MR. BRELAND: Okay. Thank you. And then, you also talked about -- you mentioned something about the training plan and, near the end, you were going kind of fast, so I'm not sure I understood you. You didn't think that a miner should be able to trigger a review of the training? MR. PRILLAMAN: Yes. Well, not that he shouldn't be able to trigger a review. We don't think there should be any requirement for an advance-approval process. We just think it's an unnecessary complication. The way it's set up in the proposal is that you don't have to submit your plan for approval, although you can, but if the miner or miner's representative insists, then you have to submit it for approval. It has to be approved. We don't think that's necessary. If the miner doesn't like the plan, all he has to do is call up MSHA and say, "Hey, my employer has a plan that doesn't meet the regulation. Come and inspect." I don't think he really gets anything particularly out of requiring it to be approved in advance. We just think it's an unnecessary complication. He still has the ability to go directly to MSHA and say, "Hey, I don't like this," at any point, because you have to give the plan to the miners. MR. BRELAND: I think at one of the earlier sessions -- and I refer to my good friend, Kevin, here -- that I think he said that was a little bit like the bogeyman in the closet that there might be a problem perceived more than real, that if -- I think the intent of the miners being involved in the review and the training plan is trying to get the best training plan for all in the development of it -- MR. PRILLAMAN: I guess I have no problem with that, except I'm concerned about a place where you might have some adversarial relationships and you're going to tie up the plan, whereas I think it would be better to let the operator develop the plan, give the plan to the miners, and if the miners -- you know, they can participate and have an opportunity to comment on the plan, but if they don't like it, rather than prevent it from getting approved, they should just go to MSHA and say, "Hey, we don't like this plan." MR. BRELAND: Well, you know -- MS. ALEJANDRO: Yes. I mean, I don't think it's a situation where the miners would be preventing it from getting approved. It would be in front of, I mean, a neutral arbitrator. I don't know whether that's the right term, but if there are issues that cannot be resolved informally, there is a mechanism for miners and their representatives to be involved in the process and let their concerns be known to MSHA, so that that can be addressed in some fashion in the plan, before it's finalized or implemented. MR. PRILLAMAN: Well, I just think that that's an unnecessary complication. It's going to create an interim period where the status of your plan is uncertain, which could be a problem. It just seems to me that it would be better to have that period of time where they can comment on the plan, they see the plan, and if they still have those issues that you're talking about, well, MSHA can get involved on the inspection end. It's sort of like this is one of those issues where you have a choice between whether you want a safe harbor, approval in advance, or do you want the flexibility and a simpler process? And we think that the processes is the advantage. Rather than knowing for sure that your plan is approved, you sort of have to go ahead, but in the -- and take the risk that in an inspection, someone may not like it. But we think, in general, across the industry, that that will cause plans to get done faster and better. MR. BRELAND: Okay. MR. BURNS: On this issue, it just seems to me that what you're proposing, you know, isn't inclusive from the standpoint of including the miners in the process, unless it's on a voluntary basis. Part of what including that in the plan process is to let miners know that they do have this right and that they do have the opportunity to provide input. It doesn't say they have to send it for approval. It also says they can submit comments to the operator, so it -- part of what this rule is doing is making it clear to all miners that they do have a say in the plan. If the rule does not say that, there are a lot of miners that will not know that they have that right, and some of them -- some of them may not even know that they have the right to say something to MSHA, that the plan is inadequate. Others may feel that their back is to the wall, and their only recourse is to contact MSHA, which does not advance the process of putting together plans. So I think -- I just think the way it's proposed, it encourages dialog between all the parties, the people that are proposing how they want to train the miners and the miners that would like to propose how they think they should be trained. I just think that's what the rule is promoting, rather than promoting this opportunity for somebody to hold the process up. MR. PRILLAMAN: Well -- MR. BURNS: And I think if that does happen, if there's a rare occasion -- and I really do think that would be rare, as we have this plan approval process in Part 46 now, and I'm not aware of it being used, quite frankly. But if it is used on a rare occasion, I don't see where that outweighs the opportunity for -- to make sure it's clear to all miners that they have an opportunity to participate in the plan development process. MR. PRILLAMAN: I guess our view would still be that it's more complexity than is needed but -- MR. BURNS: Okay. MR. PRILLAMAN: -- even if you're going -- if you are going to do it, the one thing that I would say about it is that I don't think it would good for an operator to be in violation, because they've implemented a plan that meets the standards that -- at least the operator believes meets the standards, while this process is going on. I mean, you could certainly write it to say that the plan is conditionally approved, and it could be disapproved through this process. MR. BRELAND: Well, there's time frames that are being built into the proposal that allow for time for, obviously, the operators to submit for review to the miners; miners to have time to review and make comments. So that process is in there, really, and really, and if it goes to a review -- to MSHA for review, then, I guess, as Kathy was talking earlier, you could have a neutral party basically help bring it to some sort of acceptable understanding of what would be necessary. I think Kevin's right that the intent is inclusiveness, and the training is for the miners. Obviously, it seems logical that the miners would be involved in the development of the training. MR. PRILLAMAN: And we certainly have no objection to the provisions that require the plan to be provided to the miners, for them to have a time period to comment on the plan, et cetera. It's just it's the mechanism causing a triggering of a review process before approval that we don't like, so I hear your concern about wanting to get the miners involved, and we don't have a problem with that. It's this process that you can get caught up in that's -- MR. BRELAND: I was just really trying to make sure I understood what your concern was -- it's more that you're anticipating where there might be an adversarial relationship that can be an impedance to moving forward with the process. And you know, as Kevin said, he's not aware of -- and I'm not either. I have 23 years on the enforcement side that I didn't see that as being anything abused. MR. PRILLAMAN: That's -- I mean, that's one concern. The other concern is that we wouldn't want anybody to be -- there may be a time -- as long as the time periods prevent this --you wouldn't want to say, "Well, your plan looks good, but because you're in this approval process, you're now in violation, because it hasn't been approved." MS. ALEJANDRO: Well, how did that happen, though, I mean, because initially, I mean, there's going to obviously be some period of time for an operator to come into compliance, and that process would be going before the -- MSHA starts to enforce. And then, once a plan is in place and the operator decides they want to revise it, I mean, the plan that is in place would remain in place until it's superseded by a new plan, so, except at the initial stages -- MR. PRILLAMAN: Well, what that would mean is that you couldn't make the changes that you propose to make in your revised plan until you went through this -- till you got it approved by MSHA -- MS. ALEJANDRO: Right. MR. PRILLAMAN: -- which -- MS. ALEJANDRO: But you're not in a situation where you don't have a plan, where an operator would be in a position to be cited for not having a plan, because this process is ongoing. I mean, it might delay implementation of some changes that will be beneficial. MR. PRILLAMAN: Right. MS. ALEJANDRO: But on the other hand, I mean, an operator's not going to be in a position where he's going to be cited for not having an approved plan. So, I think we understand your -- MR. PRILLAMAN: Okay. MS. ALEJANDRO: -- concern about that provision. MR. BRELAND: Okay. The definition of supervision to you, it seems like you felt that the way that's written, that means that you're tying up a company's supervisor to supervise the actual training? MR. PRILLAMAN: That's -- MR. BRELAND: And I guess my question would be, or suggestion would be, if you had clarification -- if you get a qualified, experienced person that's in the observation of -- and not necessarily supervision -- we've had some other people bring that issue up -- MR. PRILLAMAN: Well it's -- MR. BRELAND: -- maybe that has a connotation that -- MR. PRILLAMAN: -- it pretty clearly says, at least in the preamble, that this person could be doing nothing but supervising that one trainee. And if you read the language literally, you couldn't even be supervising three people, so it's extremely narrowly worded. Maybe, that's not really intended. And it's -- the language, the term "close supervision" appears in, I think, three places. The first one is when it talks about, you can allow some work to be done as part of the initial free work, new-miner training, as long as that's done under close supervision. That's where it actually says that close supervision means that the person is -- that the supervisor is not doing anything but supervising the person. But we still think that's too narrow, even for that setting, because the work that the person is doing may not be really worthy of that level of supervision. But it's also used in two other places. It's used in task training, and it's also used and it talks about that if a new miner hasn't received all of his 24 hours of training yet, that he must work under close supervision for the 60 days, or whatever period. And that just can't mean that there's someone who's doing nothing but supervising the person, so we think there needs to be -- we think that definition needs to be broadened, but it also needs to be clarified. I don't think it really means the same thing in those two places. MS. ALEJANDRO: I mean, what's your feeling as far as they used the term "under task training"? MR. PRILLAMAN: Well, I mean, in general I think that the term "close supervision" ought to be defined to mean attentive supervision that's commensurate with the risks of the work being performed. You know, somebody is -- if the job that someone is doing is sweeping a floor, that's very different from someone operating a crusher, so the amount of supervision that's appropriate is going to vary, depending on the task. And we think that ought to be recognized in the rule. MS. ALEJANDRO: Yes. I'm just thinking that in our -- in the context of task training that that's an instance where you might want -- I mean, you probably would want someone to be right there keeping their eye on the person who's going through the paces of learning how to do a new task. MR. PRILLAMAN: Well, again, it depends on the -- MS. ALEJANDRO: It depends on the level of the hazard. MR. PRILLAMAN: Yes, it depends on the task. So, this is sort of a general issue of task training, as a new task can be anything from driving a huge haul truck to working with a pick and shovel. MR. BURNS: Well, would you be able to -- would CEMT be able to submit comments clearly clarifying, because this -- MR. PRILLAMAN: Yes. MR. BURNS: If I remember correctly, this term came right out of what was submitted to MSHA in part -- in your -- MR. PRILLAMAN: It's -- MR. BURNS: -- Part 46. MR. PRILLAMAN: -- the elaboration of it in the preamble that's the problem for us. MR. BURNS: But that's what I'm asking. MR. PRILLAMAN: Yes. That'll be -- MR. BURNS: It is a term that we pulled right out of that draft and if -- what I'm asking for is what you feel the proper clarification -- MR. PRILLAMAN: Yes. That'll be in our comments. MR. BURNS: -- and your viewpoint, and not that we're going to necessarily -- MS. ALEJANDRO: Right. MR. BURNS: -- I would like to see what -- MR. PRILLAMAN: Okay. MS. ALEJANDRO: And actually -- MR. BURNS: -- you meant by that. MS. ALEJANDRO: -- the steelworkers express some concern about the uses of that term, but for reasons that are slightly different from what you're raising. MR. BURNS: Yes. MS. ALEJANDRO: So, I mean, obviously that's a term that we probably want to take a closer look at. MR. PRILLAMAN: We'll give you more detail on all these in our written comments. MS. ALEJANDRO: Okay. MR. BRELAND: The fact is, I think, it's good to clarify in the preamble exactly what is meant by some of that, so if you have preamble discussion that's troublesome, then you should be -- MR. PRILLAMAN: Well, you have to test these terms against the real-world experience. MR. BURNS: Yes. That would be good. I mean, use as many examples as you feel necessary to clarify this issue and any other issue. I mean, I'd ask all commenters to do that. MS. ALEJANDRO: Yes. We need all the help we can get. MR. BURNS: You're an attorney, right? You understand the -- MS. ALEJANDRO: Plagiarizing? MR. BURNS: No. I mean, what -- UNIDENTIFIED SPEAKER: That's why they don't understand. MR. BURNS: -- terms mean -- and how they can change -- UNIDENTIFIED SPEAKER: You fight over these rules forever. MR. BURNS: -- as soon as possible. MR. BRELAND: Also, one additional question -- MR. PRILLAMAN: Okay. MR. BRELAND: -- on the 60-day versus 90 days and the calendar days versus workdays, two questions in that area. One, I wasn't sure that -- or I missed it anyway -- if you thought there was any amount of training that should be required before miners go to work. And then, secondly, you talked about the time frame and even the 90 days or 60 workdays, if somebody was working all the time, would be approaching four and a half or five months if they were working full-time. Do you really -- are you saying you think that's a reasonable amount of time to complete the other 24 hours? MR. PRILLAMAN: I'm not sure I understand. MR. BRELAND: The minimum time for a new employee. MR. PRILLAMAN: On the first question about the training required before they begin work, we think what you have in the proposal is good on that. MR. BRELAND: With no time limit, no specified minimum -- MS. ALEJANDRO: No minimum time. MR. PRILLAMAN: Yes. But the topics, we think the approach of identifying -- I think our list of topics were a little bit different, but we don't -- we think -- that's not a -- what the specific topics are, we think your list is good. You know, how much time is needed for those topics is going to vary, depending on the kind of operations, so we agree with your approach on that. We think that the topical approach is a sensible one. You know, if the topics aren't covered, then the people are going to be in violation, whatever the amount of time is. The second question, I'm not sure I understood. MR. BRELAND: Well, you talked about the 90 days to complete. You thought the 60 calendar days versus 60 working days and then you mentioned, well, maybe 90 days was what would be a reasonable -- MR. PRILLAMAN: Well, we had said 60 working days in the draft that we put it. Your proposal says 60 calendar days, and the concern was, well, working days could be -- it could take somebody all year to work 60 days. We recognize that. And again, on this one I'm not sure that CEMT has reached its view on this. I'm just telling you what I think on behalf of the Lime Association is 90 calendar days would probably work, because that would probably be 60 working days for most people. If you strongly prefer a calendar-day approach, I just think 60 calendar days is too short. MR. BRELAND: And the operation out there that's intermittent, that might work six weeks this year, you would include that, so if they came back with the same people next year, then they've been beyond the 90 calendar days, so they would have to have had their training when they, like, start up again seasonally? So you can see there's a real -- there could be a real issue with -- some people would never get their training. A lot of people would never get their training that worked seasonal if they had that much time. MR. PRILLAMAN: Well, that could be true, even if it's just 60 calendar days. MR. BRELAND: That's right. It could be. MR. PRILLAMAN: I don't know if there's -- I mean, that's always -- I mean, there's going to be these anomalies that are going to happen with people who only work a short amount of time. I don't know if there's any good way to address that. MR. BURNS: Yes. I guess I still have a few questions on -- I guess, I'm just trying to stick to the same issues, rather than wait -- and I'll ask you about this area. But it seems to me that right now under --there's five topics that are discussed that need to be addressed in this 60-day period -- or you're proposing 90 days -- many of which, you know, should be done rather -- earlier rather than later -- MR. PRILLAMAN: Uh-huh. MR. BURNS: -- okay, like instruction on the statutory rights of miners. I mean, they should know that rather early in their careers, so that they know they have the right to refuse to work in an unsafe area or in unsafe conditions. So, I mean, I think that's something that should be done earlier, rather than later. I just want to go through a couple of these and see -- MR. PRILLAMAN: Okay. MR. BURNS: -- what you -- and then, the review of the description of line of authority of supervisors and miners' representatives' responsibilities. That seems like that should be something that a work -- any worker would like to know. I mean, I'd like to know that when I came to MSHA, you know, what the various roles were. The third one is an introduction to the rules and procedures in the reporting of hazards. Again, that seems to be something that's, you know, sooner rather than later. And then, instruction and demonstration of the use and care of self-rescuers if appropriate in respiratory devices. Again, that's going to have to be done if someone is working in a dusty area or a noisy area, they are going to have to be trained how to use those before they go into those areas. So, I mean, that's something that has to be -- that's not something that's tied into a time period. That's more or less event activated. The only one that I can see that, perhaps, could require some time is a review of the first-aid methods. I mean, I can see an operator may feel more comfortable having the state grants come in and do -- you know, someone that's very qualified to do first-aid training, to do that, and it may take time to schedule that sort of work for one individual -- say, you only hire one person. I mean, that one I can see could take some more time, but all these other ones seem to be, you know, a sooner rather than later-type issue to me. And, again, my experience with deadlines is a lot of people just make deadlines. So, if we say -- if we say 90 days, there are people that will be doing a lot of things on the 89th day. MR. PRILLAMAN: Yes. I have a couple of responses. MR. BURNS: Okay. MR. PRILLAMAN: It's always hard to figure out what length of time to allow for things like this, but there are a couple of reasons why more time might be needed for some people. Number one is what you mentioned is a lot operations are not going to be using in-house trainers for a lot of these topics. They are going to be contracting with others to do the training, and they are going to want to do it on a -- they are going to want to train more than one employee at a time if they possibly can. So, they are not going to call in a trainer -- and there, sometimes they are going to try to do this training on a regular schedule, so allowing a little bit more time for them to schedule that is beneficial. Another one is just the issue of when are people working. They may not -- an operation that is a little more irregular it may be more difficult to get working days to do the training within a 60-day period, so a 90-day period allows you a little bit more room to find time to actually do the training. I would assume that most people will probably do the training as early as they can on these things, because they are ones that are safety issues, but there are factors that may make it difficult, especially for some smaller operations and more irregular operations, to get that training done, particularly if they have to do it on days -- they really can't do it on days that the person wouldn't otherwise be working, so that's a -- that's going to be an issue for some people. MR. BURNS: Okay. I think you know what I was -- MR. PRILLAMAN: Yes, I understand. And I understand your point, I believe. MR. BRELAND: I was done. MR. BURNS: You were done? One more and you were done. MR. BRELAND: Well, you kept interrupting the question. MR. BURNS: I think that's it. I think Rod's asked all the questions I had. The only other issue was this contractor issue. I think there seems to be -- and this is just a statement, and maybe if you can clarify in your comments more exactly what your concern is and how you feel it should be handled as far as -- MR. PRILLAMAN: Okay. MR. BURNS: -- these contractors. I mean, I understand that there are different kinds of contractors and that some very large mines deal with large trucking contractors who really are not their contractors. They have a contractual relationship with the customer, the construction company, and then they may even subcontract, so I can see that there can be a huge disconnect in some cases versus, you know, somebody that you use on a regular basis to come in and do welding or something, and it's two people working at that company. But if you could, clarify what exactly you're talking about and how you feel that should be delivered? The other thing is I sense that there's an issue of responsibility in that there's some misunderstanding concerning responsibility for training and responsibility for conditions or violations created by a contractor that could be the result of that contractor not understanding the hazards. There's nothing in this rule that would -- that's a whole separate issue -- MR. PRILLAMAN: Yes. MR. BURNS: -- under the Mine Act. If a contractor creates a hazard that impacts a mine operator's employees, there's nothing in this rule that says that the operator can or may be cited for that violation. MR. PRILLAMAN: Yes. I don't think that's really what -- MR. BURNS: Yes. Okay. MR. PRILLAMAN: -- our concern is. MR. BURNS: Okay, okay. MR. PRILLAMAN: I did want to clarify one point. We do think that the owner-operator or site operator should have the obligation to inform the contractor of the site hazards so that the contractor can inform employees. We're not saying, "Well, you don't have any obligation." We think that that responsibility should run to the contractor, rather than to the contractor employees. I think that's the distinction, but we'll sketch that out in more detail in the comments. MR. BURNS: Yes. I guess what I'm looking for -- and this was raised, I think, in one of the public -- one of the other hearings was some effort or some good-faith effort by the mine operator to ensure or to make sure that the contractor's doing the training that they've given them to provide to their employees, and how that would be -- how that can be done, I don't know. MR. PRILLAMAN: Right. I would suspect that in most cases it would be done contractually but -- MR. BURNS: You know, just so there's no disconnect, you know, because -- MR. PRILLAMAN: Okay. Well -- MR. BURNS: -- that's what I'm asking for. MR. PRILLAMAN: -- we'll wrestle with that also. MS. ALEJANDRO: You have anything else? MR. BURNS: No. MS. ALEJANDRO: Robert? MR. ALDRICH: No. MS. ALEJANDRO: Thank you very much, Mr. Prillaman. MR. PRILLAMAN: Thank you. MS. ALEJANDRO: Ros, do you want to come up? Ros Fontaine from the Office of Standards is a little bit late, and she's part of the committee, so she's going to approach the table. The next speaker is Joe Main from the United Mine Workers of America. MR. MAIN: Thank you. My name is Joe Main, J-O-E, M-A-I-N. I appreciate the opportunity to be here today to talk about something that I think is fundamentally important to the nation's miners. It's probably one of the most critical things that we can talk about in terms of those that seek and plummet in the workplace of a coal mine. And there's a lot of reasons for that. Before I get into the substance of what I want to talk about, there's just some observations that I need to make. I just came from a Senate hearing yesterday where we were complaining loudly about the delay in the rule-making process. And I have personally been working on rules that's been around for a dozen years now and still waiting and end. And I'm just totally amazed at the speed of lightning of which this rule can go through a system when rules affecting miners who were not trained, who were not appraised of conditions in the workplace became sick, who are dying because of that, and we can't get those rules that actually would help prevent them from being put in that situation, we can't get them out. I'm just -- I am amazed by this whole process, so as I come back and I go out of that world and then I look at the world of those miners we're talking about, about the first step of them entering the mining industry and the kind of training they are going to get to try to -- the kind of preparation they are going to get to keep from getting silicosis, crushed by a piece of equipment, being exposed to a solvent that could destroy their lungs. Like, one gentleman that was with me yesterday was exposed to solvent that has walking up two levels of steps is a terrible task for that individual now. Being exposed to diesel fumes -- I had one lady that was with us yesterday that's disabled from -- after breathing just ungodly diesel exhaust that's spewed out in the workplace that does make people sick. And for those that don't know NIOSH has defined, at least for the underground mining sector, that through risk assessments that that diesel exhaust contains particulate matter that, based on all the compositions, all the studies that they've looked at and established in a risk assessment has found that levels that were, less than what - - or were exposed to were more than, actually, than what the levels that they looked at found that upwards of 900 out of 1,000 of those miners would suffer lung canner over their lifetime of working in the mining industry. And that's sad, and that's like how do we get that information out to miners? We train them; we educate them; right. And we've got this real problem today, because we're not getting this information out, the training standards we have. So, I'm deeply troubled as an outset here when I look at this proposal as to what we're actually doing for these miners or doing to these miners as we develop a training model here. What is the purpose of the rule? I think that's one question that everybody has to ask themselves. If the rule is being developed to provide quality training in a structured manner to educate these miners of the real hazards they are about ready to get into as they enter the workplace and the hazards that exist as they're there for the retraining and task training, then you have to have a quality training rule that's designed with clear structure to it to make sure that those miners are specifically giving that kind of training that you desire them to get. If you don't do that, what you get is poor-quality training programs that's poorly structured that ill equips the miners to understand the hazards in the workplace. I think it's just that straight and simple. When I looked at the data on the -- that MSHA had supplied with the proposed rule, I had found that according to MSHA statistics that of the 200 miners killed in surface mines, 82 percent were killed in the very workplaces that we're talking about. That should be alarming to a lot of people to say we've got a serious problem here that requires serious attention. And then, I found that MSHA had concluded that the lack of training was a significant factor in those deaths. So that tells us that we've got to do something to make sure that these miners have quality training that's well structured that prepares them for the dangers in the workplace. I think, again, it's that simple. Now, we're not just talking about any industry here, folks, and I think we all have to realize that. It's -- we're talking about the mining industry that, by the Department of Health and Human Services findings last year and the report issued by the CDC cited the mining industry, based on deaths that occurred over a period of time, to be the most dangerous occupation in this country. And that led construction and forestry by a wide margin. I need to get a copy of that, and we'll have for the record to make sure that that's available to the folks that's working on this rule. So with that background, again, it says that we've got a serious problem here in this country. We've got to come to grips with that problem. One of the key issues here is that miners are not well trained enough to protect themselves from these hazards, and they are dying on the job. We don't know how many of them become sick. I mean, that's another problem in itself and that there's been a failure by the industry overall to report illnesses, which I think was flushed out here about a year ago when MSHA offered a grace period. And we're still waiting to get those results, but over 3,000 illnesses were reported to MSHA that were apparently free through that grace period by mine operators over a five-year period. And we do not believe that, by any stretch of the imagination, that is inclusive of all the illnesses that's out there. That's another problem in itself, but what it's telling us is that miners are not apparently able to protect themselves from these illnesses that are occurring in the workplace. Silicosis is a big one. There's a lot of publicity about it, rightfully so, and it needs the kind of attention that it's getting. It needs that kind of attention in the mind of the miner before he ever cranks up that first drill or goes out there with that first in- loader, because out there in that dusty bin before he gets exposed to that first batch of dust, they need to understand what the dangers are, what's needed to protect them, what the law is, what rights they have to seek help -- I mean, just as a simple issue. Miners working around equipment, I'd sure hate to think I was sending one of my kids to a mine, and I wanted to give them a very limited amount of training and say, "Okay, son, go over and run that bulldozer and, yeah, just be careful what you do. Yeah, I'll give you a general outline of how things work here and wind up having that poor boy go over a high wall, have a brake failure or a number of different hazards that can occur at a workplace that could kill him or somebody else. And I think that's again, what we're talking about. Would we want to put our children, our friends, our family into situations that we're creating here with this rule and have the confidence that those people who go into that environment are effectively trained and prepared to prevent hazards or prevent injury, illness, or deaths to themselves from the hazards that they run into? I think that's a fair question that we all need to ask in the back of our minds. The rules as structures are flexible, as pointed out, I think to the point that they, without question, provide the less protection than those that are covered by Part 48 of the Mine Act. They are, in our opinion, less protective than the standards guaranteed to miners in this country under Section 115 of the Act. The proposal which amends Part 48 is so-called more performance-oriented than what Part 48 is, and I think that is, too, to the extent that it takes away protections and opportunities for quality training that miners have both under the current application of Section 115 of the law and under Part 48. Now, while one may argue that since MSHA did not have the -- (inaudible) -- authority of specific mining operations during the period of the rider, those mines would not suffer a diminishing protection with the Part 48 or 46 Rule as proposed. One cannot successfully argue that the standards don't diminish the protections guaranteed under Part 48. They do. The other discussions, I think, that need to be had, too, with respect to the impact of this rule, even if you start pursuing the first line that I laid out, which is the rider not applying, I think there are some serious questions as to whether or not that theory could ever hold water. And for instance, if a miner wasn't training as required by Part 48 working at one of these sites where the rider applied and that miner was injured, does that miner have a right under the process of law to lay claim to that standard existing of which was violated by their employer of which he suffered or she suffered damage that they could use as a rule of authority? The answer is, absolutely yes. The only thing the legislation did was to bar MSHA, the Agency, from enforcing that standard, so there is a legal standard that's been in place for some time that has other applications. Now, if a miner was working at a work site where the prohibition was in place and that miner had a collective bargaining agreement, would not that miner go to that employer and say, under our collective bargaining agreement, there's this law that's in place of which you, employer, have an obligation to provide me at this work site, and if you do not do that, you're in violation of our collective bargaining agreement. Sure, we do that all the time. As a matter of fact, through the collective bargaining process, there is many, many times that there's claims laid to laws, whether it be to mine to health safety laws, wage-an-hour standard laws, other laws of which the agencies are never called in to enforce. It's the mere fact that there is a piece of standing legislation or law that is the decider of the case, and you don't need the Agency to be called in. So, I think there's some clear problems here, with respect to this whole idea about the no diminishing of this standard. And I think that the Agency has absolutely not cleared the air on exactly what their position is as to why this does not diminish the standard. And I think before this rule's done that the Agency has to come forth with their clear position why. I think, absent that, absent a clear reasoned position here that this standard is probably going to be subject to a legal test because of all the ramifications that's created by the rule, comments were noted in the preamble that some suggest that any plan which complied with the minimum requirements of Section 115 of the Mine Act be considered approved by the secretary. We surely do not support that view. The Mine Act has a greater intention than that, and I think that that has to be realized, or we wouldn't wind up with the standards in Part 48 that we have. And if the intent of the rule is to provide quality training to protect miners from hazards, surely plans should be more substance than paper-compliant. I mean, what are we doing here? Are we creating a quality training program? Are we creating some little vehicle to just clear some legal path, so we can say it meets the test in law? And I think as I've read the rule and the discussion on the rule, I'm deeply concerned that the path that was chose here was a matter of convenience, as opposed to a matter of substance as far as providing structured quality training to miners. Part 46 would not require training plans to be submitted to the Agency and only contains generalized plan requirements. And this is a major department in Part 48, and these are things that we're talking about that's in the current Part 48 Rule that are absent from the proposed Part 46, a plan just simply not required to be approved by the Agency under Part 46.3 in miners and representatives of the miners. And the representatives of mines, where they do exist, would have to file a plan of action to even cause that to occur. I was a little disturbed this morning to the debate that I heard, which gets me more concerned about where this whole training road is heading for when I hear the head of the coalition that apparently helped develop this talk very openly about wanting the preclusion of miners and miners' representatives from the plan approval process. I mean, I think that's totally outrageous, but it makes me worry about what the intent may be to do with this rule. I think the Mine Act has a clear underpinning in that it clearly wanted miner reps' participation. It clearly wanted miner participation in the process and to have the industry or those representing the industry proclaiming that that's not necessary, I say to those families of 200 people that died in this mining industry, I think they think it's darn important, and they would probably would have liked for their loved ones who have been since, or have since left this earth, to have had an opportunity to have had some involvement. Maybe, they'd be alive today, yet, at mines where there is no miners' representative -- and let's all get serious with each other -- we know this industry, I think, for those that's been around for quite some time, we have a lot of mines where miners are just intimidated and scared to death to speak out about anything, and if one thinks that some of these small mines where they are dominated by an employer that does not tolerate any talking back, as the saying goes, or any challenging, if there's anybody in this room thinks that those miners are going to say, hey, I'm filing a complaint with MSHA over here; I want this plan approved. To even trigger a plan approval, now I want to talk to you because you may know more about what's going on in the industry than I do about some of these operations, but I can tell you that is a real problem in this industry. And I think the design of this whole rule by passing an approval process is going to eliminate any ability in many cases of MSHA to have any control of guaranteeing quality training to miners, because if you just follow that simple lay-out of the plan in those five generalized areas, that means absolutely nothing about the substance of the quality and the structure of that training, and it flies through and they don't have that miner objection to it or that miner's rep to it, that plan's in place. And I don't think this follows clearly, in any way, shape or form, what the intent of the Mine Act. And I, with all due respect, believe that it just totally undercuts the provisions under Part 48 that demands that that plan be approved by MSHA. As a matter of fact, the plan process even skips any evaluation of plan provisions, as well. Under Part 48, there's provisions that require scrutiny by the district manager under the current rules to make sure that those plans are quality plans, to make sure if there's any revisions that are needed, they get done before that plan gets approved. That whole evaluation process is absent from this rule when you go straight from the operator to the implementation of the plan, the provisions of Part 46.4 (d), which allow various training methods including innovative training methods and alternative training technologies. There's a lot of questions as to what would fit this bill. I don't know what those are, and I don't think anybody sitting here at this table knows what those are going to be as they are applied two or three years from now. And it's sort of like taking this rule into such flexibility mode that's totally in this. And it's, you know, sort of like the kind of training that can be given the flexibility there. I'm deeply concerned about that for a lot of different reasons, but one in particular, and I see that the rule would give the mine operator the right to substitute training with OSHA training, with other state training, other federal training programs. And I go back to that basic miner who's getting ready to go to this mine, work at this mine, and it's like what is it that that miner really needs to know. That miner really needs to know about the hazards in that workplace of which they are about ready to be casted into, and they need to be educated on their rights, not under OSHA law, but under the Mine Act. They need to be appraised of the protections they have, not under a state mining law or a OSHA law, but the laws that apply particularly to that mine. They need to know about the hazards, not that it applies maybe if they are working at a cement or a gravel pit about the hazards associated with erecting the piece of steel at, you know, in a building. You know, they need to know about the hazards associated with that -- working in that pit. They need to know about the silicosis problems. They need to know about working around equipment, so I think that what's set up here is a very dangerous spin that allows, out of convenience, not quality for those plans, that training plan, the training programs to be so inferior that it may mean that they mean nothing to that miner. And I think that's wrong if we're after a quality plan that's well structured that really educates that miner on the true hazards and things that they need to know. The current standards require in the process that if MSHA determines that there's something missing in that plan, under Part 48 you can fix that. There's provisions there to do that. In the review process in both the underground and the surface standards, under this rule there is no such animal, and I think that is the lesser protection of what miners have under the current laws as they are applied under Section 115 of the Mine Act. And why is that important? Well, if you have a fatality at a mine site, if you have a situation where miners are exposed to a health hazard or a number of other things, it would be more than nice to have MSHA have the opportunity to go in to say, hold it, Mr. Operator, Ms. Operator, we're going to revise this plan to make sure these people are trained so this doesn't happen again. Or if they are exposed to chemicals or solvents in the workplace, whoa, we've, you know, we've had these illnesses here. We're changing these plans. You know, we're not going to allow you to just continue this plan, a training plan that does not address these problems. There has to be some control there. How will MSHA enforce this? As I read through the whole rule, I was left with the tunnel difficulty of what MSHA's planning on doing to go in and enforce this. Enforce what? There's such a moving target that's been established here in so many areas with the flexibility and with the enforcement guys would probably have to chase their tails around for a week just to try to figure out what they thought the standard may be, what the training may have been, how it was supposed to have been given, who it was supposed to have been given by. The way that the whole scheme is designed, it appears that it's designed to provide an opportunity for the mine operator to run their operations with very little interference or as less interference as possible, accommodating the production over the interest of the miner being fully and effectively trained. And I am deeply concerned about the, you know, the whole tone of the rule that seems to accomplish that. As far as not mandating formal instruction of training, I think that's a real problem. We have enough problems with the certified program under the Mine Act, and I was just informed of a story yesterday of a situation we had up in Pennsylvania where even with a certified instructor program, the certified instructor apparently decided they were going to do something else while miners were being trained. So, they put on some videos and I forget what the first one was, but it's "Braveheart" I think was the first training session they got, and the second one happened to be an x-rated flick. And this, as I understand, had been turned over to MSHA. And this is with the certified program, okay, where there is some more responsibility. Now, what do you do -- how do you deal with a competent-person training program? I mean, I'm lost here. I think in this situation, hopefully, MSHA does the right thing and pulls the certification here of an instructor who clearly violated the law. But how do you deal with a -- if your interest is making sure that you have quality people giving that training, and you find out that you don't have quality people there that really can't communicate, can't package, can't put the information together, how does the Agency deal with that? I think your hands are tied. We're not requiring formal hazard training invites increased training contractors to take over workplaces, and as I read through that rule, an interesting thing struck me. And unless I'm reading it wrong, which when I read all the orders the way they are, it appears that to satisfy hazard training at a work site, you can post signs. That's the way I read it, so hazard training is the people being formally advised of all the hazards. There's a sign over there tells you this; there's a sign over there that tells you that. There's a sign over there; read them and, you know, make sure you comply with those. Hazard trained; okay. Here we go. Is that what we want to do for hazard training at mines? I mean, is that how we want to prepare people coming on to be exposed to the hazards in the most hazardous workplace in this country? I think it's a little bit outrageous. The tie-in with the contractors, as I understand it, if the contractor does not have experienced miners, the contract employers don't have experienced-miner training under 46.11 (e), hazard training would be required. If they have it, it isn't required. Now, when they get it, there's some debate here, I guess, about who is going to actually give the training, although the preamble gave some discussions about allowing the contractor through the operator to actually, you know, provide the instruction. And that may make some sense in a real-world situation, but at the end of the day when I put all these pieces together, as I see it, what it means is if those people come on and they don't have the new experienced-miner training, they could get hazard trained, which is the sign- reading and willing to work. Now, there's this question about supervision, too, working with a miner that ties into all this, but in the real world, you could get around a lot of training costs and training programs if you decided to use that approach, which at the end of the day you may have a lot of contractors on the work site replacing, you know, more well-trained miners that would otherwise be there if you had a sound training program that set that as the basis. And as far as the time that it would take to train these miners that are new, I think there's two parts to that question. The first part is could any miner be cast in this most unsafe place in this country without having the 24-hour training? If you look at the Part 48 Rule, the answer is absolutely not, the standard that is required to be given to those miners before they are cast into that unsafe and unhealthy environment. Why? All the reasons I've described, all the hazards in the workplace, the high death rates, you know. This is the most dangerous occupation in the world. Why are we considering saying, okay, this sector here, we're going to treat them differently and we're going to let those monitors be cast into this unsafe workplace? I have a difficult time from a health and safety professional to understand what is the difference from this human being to this human being over here exposed to some of the same general kinds of hazards that miners are now covered under the Part 48 regs, so I believe that that should not be permitted. I believe the law has been sound through the course of time, and I worry about all these things that are happening here being impacting on the Part 48 Rule, because I can see this train coming down the track. If all these things are permitted here for these miners, what's the difference in these other miners? That question is coming at some point in time if this rule would ever get through. And it would serve to undercut, I think, the whole principles and the whole protections miners have under Part 48. Retraining, it appears that retraining is a vehicle that would be applied differently than the current Part 48 Rule in a couple of important areas. One area is that the topics are just flexible, you know; the flexibility is endless here. You know, pick whatever you want to do and train the folks; okay. Their training is itself modified in that, although we don't like it, there's a minimum 30-minute training requirement under Part 48. It should be much more than that. Again, if we're talking about some structured quality-time training for miners, as opposed to letting -- yes, what did he do? Okay; we'll count that as training, paper-compliance. Yes, he did that two weeks ago. We'll take that, you know, that time and count it for training. Under our rule, it's bad enough when you take away the required topics and you take away the 30 minutes. I can tell you what's going to happen throughout this industry. In a lot of mines where the rule would apply, there's going to be a documentation of just different events to satisfy not quality, structured training, but paper compliance with the rule. It's just as simple as that, and any of us that's been around the industry knows how some of these situations can occur, even under the Part 48 Rules should be very easily -- should very easily see through this rule to see what we're setting up here. I think retraining for any substantive purpose is gone under this proposal. There are several other issues that -- and I know of them as I go through here fairly quickly that we hope to be able to respond to the -- before the rule comment period closes. The definition of a miner is one of those, and I look at how many different defined miners are we going to have in the mining industry when we get done. Is this miner "a" or is this a miner "b"? What -- well, how come this miner gets to have this training before they are associated with this hazard and this miner over here, well, he works at this operation; they produce this kind of product, so they don't, you know, they don't need that training. I mean, I'm confused about this. I mean, what's the logic here? It's all getting back to a purpose of coming up with some product that provides flexibility; it provides opportunities to utilize workers at the benefit of production, as opposed to using them in a way that's -- they are well-prepared for those production purposes. This will, like, use them as a process of expediency to get the mining operations done. I can't read these things any different than that. We've had a basis of a training standard that's been in effect for all these years. We're about ready to just undercut the heck out of that standard. Like I say, I'll be sending more information and more comments as we get an opportunity to go through this and finalize it. And if you have any questions, I'll be more than happy to answer them. MS. ALEJANDRO: Thank you very much, Mr. Main. I have a general question. As I'm sure you know, I mean, the reason that the rider has been in effect all these years is because the industry was concerned that the Part 48 standards were too restrictive and were inappropriate for that segment of industry. And what we have heard in the course of going to our pre-proposal meetings in December and January and also at the hearings that we've held on this proposal is that there needs to be some flexibility built into a training rule that would apply to the currently exempt industries. And I guess I have a general question. I mean, is it your position that a departure from Part 48 to give flexibility in all instances is going to reduce protection? Or are there some places or ways in which flexibility can be given and performance-oriented requirements be established where reduction is not going to be a problem from your point of view? I mean, I think you know where I'm coming from. I mean, we're trying to accommodate the needs of this industry so that we can start to get miners trained who have not been trained. Is Part 48 the only way to go? Or are there some places where flexibility is appropriate and can work? MR. MAIN: In response to that question, I would say this, that you know I think that even under Part 48 there's those that have expressed the view that some of the things may be too rigid, as far as the topic areas and there is a need for some flexibility in the Part 48 Rule. MS. ALEJANDRO: Right. MR. MAIN: Okay. MS. ALEJANDRO: Right. MR. MAIN: And looking at it from that end and looking at, you know, what is needed again to provide a quality training program for miners that's well structured, that's meaningful, that gets there. I think along those lines, if we're just talking about the flexibility to give the opportunity to do different things in a very meaningful way, there would not be a problem, you know, with us with that. But when you take away any controls over that, any guarantees that there's going to be quality, there is a big problem. We would not support the abandonment of required training subjects under the Part 48 any more than we would under Part 44 if there was no quality-control device to make sure that miners got the right kind of topics and the right kind of training. MS. ALEJANDRO: You mean as far as -- I mean, maybe not necessarily setting specific topics, but having some over -- MR. MAIN: Yes. MS. ALEJANDRO: -- umbrella mechanism in the Agency to ensure that the result is -- MR. MAIN: Well, I think -- MS. ALEJANDRO: -- receptive? MR. MAIN: Yes. I would do it this way; one is I think there are specific things that have to be in training. MS. ALEJANDRO: You mean, specific topics? MR. MAIN: Specific topics that have to be in training. One of those is the miner's rights and the rights of the representatives so that they are fully -- MS. ALEJANDRO: Right. And, I mean, and those are actually requirements of the statutes. MR. MAIN: One of those is also an understanding of the mandatory standards of which they are going to work with pertinent -- to their mining operation. MS. ALEJANDRO: Right. MR. MAIN: One of those would be very pertinent to the specific hazards of the work areas that they are going into. And depending on, you know, with respect to health, I mean, I think we've grown up enough in this industry to realize we've got a lot of health problems here that there have to be issues directed, pertinent to the health exposures that those miners are faced with. I mean, those are just four quick ones that I think ought to be sort of mandatory subjects, and I don't care what kind of plan that you have. And I'm not saying that's the end of that, but you know at some point then you have the opportunity to do some flexible type of training there, but you have an evaluation approval process to make sure we're just not skinning the cat here, that we're really -- and that becomes the entry approval process that's totally absent from this, you know, process, unless you have a complaint filed. MS. ALEJANDRO: Okay. I mean, obviously, I mean you can get from the preamble that our objective was to allow flexibility for the training programs to be tailored to the specific operations, but what you're saying is that that is -- I mean, there's certain topics that should be mandatory. Topics beyond those can be selected by the operator, but there needs to be some kind of an overarching evaluation process to ensure that the plan is appropriate and effective. MR. MAIN: I think the problem with the first point that you laid out, your interest to give flexibility to that mine operator in developing that plan, stops short of saying one other thing and guaranteeing that we do have a process here in place that actually guarantees those miners a quality, structured training vehicle here that's going to educate them to prevent themselves from being injured. That part needs to say it throughout the rule, because I think that what the rule does is follow the lineage of the first part almost all the way through and forgets at times about that second part. MS. ALEJANDRO: Okay. All right. You are going to be submitting written comments you've indicated? MR. MAIN: In addition to the other several rules we're working on, yes, we're going to submit -- MS. ALEJANDRO: Okay. MR. MAIN: -- some time to do some written comments -- MS. ALEJANDRO: All right. MR. MAIN: -- on these. MS. ALEJANDRO: Thank you. I don't have any further questions. Robert Aldrich? MR. ALDRICH: No questions. MS. ALEJANDRO: Rod? MR. BRELAND: I have a couple of short ones I'd just like verification on. You talked several times about the evaluation methods and some factors. Are your comments going to have some suggestions in that area? You do some comparisons to existing Part 48, but then you also brought up, like, a recent problem with a certified instructor. MR. MAIN: The movie deal. MR. BRELAND: There are some problems with the -- well, there's a lot of discussion with the present rule, Part 48, on approval of instructors and approval of plans being, maybe, too automatic in some cases -- MR. MAIN: Yes. MR. BRELAND: -- or too generic, so I guess my question here is are some of the comments you're going to have going to be relating to evaluation factors? MR. MAIN: It may or may not. Well, it depends on how much time we have to devote to this rule to make sure -- I mean, our problem is we see so many fundamentally structural problems here that we're going to have to respond to, I would hope to be able to follow that up. But just for the record here now, which would carry as much weight as the written testimony would, I think there is a clear problem with the current Part 48 Instructor Program in that there is a -- there is the need for the Agency to do more to evaluate the quality of those programs that those instructors are giving to be able to remove people that are not providing the kind of quality training program that is intended under the Mine Act and under Part 48. In situations like this that I spoke of, I think there's -- anybody in their right mind would say, gee, we ought to relieve that person as a certified instructor if those are the correct facts of the case. It would not be really justice to miners here, you know, and there's a lot of other problems I think we've witnessed over the years of just different little things that were done or big things that were done where miners went in to get this paid-for time and wound up being nothing more than talking about baseball or football or, you know, things that had nothing to do with training. So the value was lost, and there's been times that we all know that there's been falsification of records where the training actually was not given. Getting back over to the point that I raised, too, I really worry about the structure of this training program where -- and take the new-miner training or the re-training that the standards are so liberalized, how do you account for anything? I mean, you go in as a training inspector, right, or an Agency training representative to try to figure out what's going on at this mine, with respect to this training program; okay. We see that Bill here has had his 8-hour training in the last 12 months. What was that training? And when you get to the bottom of it, if you ever can, in some situations you find, well, we have been working with Bill Smith here, and he was teaching them about what he was doing in his work about the hazards of silicosis. And we had him, you know, on and on and on, I mean, where it's just integrated into the work process where the time wasn't quality time paid on the side to be trained. It was production time. And the training was just a paper qualifier to just meet a standard of the law. I think you're going to have enormous problems with that ever guaranteeing the miners are actually properly trained. And how does a miner -- the plan's in effect; how does a miner get that plan changed? I mean, there's nothing in here that I see that allows that to happen. That's another problem with this system. MR. BRELAND: Okay. Thank you. Also, with all the discussion about contractors and definition of a miner, and I didn't really hear you address that in your comments, but I guess where would you define miners as it relates to the proposal? MR. MAIN: Well, I think, MSHA has spent a lot of time, Rod, trying to wrestle with what the definition of a miners is and we said, thank God, we've got it figured out, what, a year ago. And I set down here and it's like, wow, that didn't work. We're trying to refigure it out again. I think that, you know, the Agency has to find what a miner is, and if you get into this process of, out of convenience, trying to define miners in different ways to fit, you know, political purposes, whatever you want to call it, you risk just deteriorating this whole standard again. Part 48 should be the standard. I think you folks spend a lot of time trying to figure that out. You did, and no sense recreating the wheel. MR. BRELAND: Okay. Also, on the training before work, I didn't hear you say exactly. I believe you were implying that you think all training should be done prior to starting work, but I didn't hear -- MR. MAIN: Yes, I did say that. I must didn't say it clear enough. I think the Mining Act -- actually, the way we read the Mining Act actually requires that under Section 115. I think the rules that have been in effect have interpreted that to mean exactly that for, you know, since '78, and I think it is a standard that has such great importance to it that you've got to make a decision, either training means something to protect a person from harm's way or it doesn't. And when you're talking about the most dangerous occupation in this country, you want those folks to have the benefit of a standard that has been defined a certain way, applied a certain way to protect miners over the years where you do not or do you not want them to have it. And I think the dangers of things that I heard here this morning is that I can see -- you ever hear of what a 90-day wonder was? I was hired as a probationary employee. How many folks here were at any time in their lives? Okay. How many folks did you see going down the road? Now, that was based on a less economic impact. Now, I'm setting back here thinking, gee, how many 90-day wonders are we creating here in the mining industry by this rule? If you follow it through, a worker who is at risk of having the cost of the employer at the end of the 60 days, at the end of 90 days, 22 hours. Let's assume that this one commenter was correct; they can give this so-called training, in at least their belief, in two hours. What do they need them for to send in the workplace? I noticed that in the preamble. That means that that -- that's a 22-hour risk employee at the end of 60 days, pay-wise. I think this is a very, you know, troubling rule that we're setting so many precedents here that is not healthy for miner's training or the standards. MR. BRELAND: Well, the existing Part 48 Rule presently allows for what's called an 8/16 split, for better terms, where they allow 8 hours initial training and the other 16 completed in 60 days, and I think that's not been something that's been -- is serving that automatically, because it requires a district manager's review and approval. But that would allow, or did allow, for a review to make sure certain kinds of subjects, anyway, were covered prior to starting of work. This is -- MR. MAIN: For new miners? MR. BRELAND: Pardon? MR. MAIN: For new miners. MS. ALEJANDRO: Yes. MR. MAIN: Has there been a large number of those? MR. BRELAND: I think, maybe, metal sector, a lot more than in coal. MR. MAIN: We need to get this, because I wasn't aware that that was even an activity ongoing, because we've basically, in our arena that I've worked with, worked with the 24-hour rule. MS. ALEJANDRO: You mean, the 48 -- MR. MAIN: That's a pre-employment, the 24-hour, it's a pre-employment, you know, training rule. MR. BRELAND: There were a lot of occasions where it was, again, it was -- it had to be requested in advance, and there were factors that are in the rule that have to be considered. And that could be the incident of the operator or the contractor, whoever's requesting that, their instant rates, the history, and so forth. So there were factors, but you may want to take a look at that when you're considering your comments. MR. MAIN: I would be interested in any information that -- if I forward it right now, I can probably get it before the record goes. MR. BRELAND: Well -- MR. MAIN: From the information act, please if you would give me that information, we do need to take a look at it. MR. BRELAND: Okay. I better not ask any more questions. That's all I have. Thank you. MR. MAIN: Okay. Yes. We're going to try to do some comments that gets into more detail before the record closes so -- MS. ALEJANDRO: Kevin, do you have any questions? MR. BURNS: I guess just a couple and just answer them. I think one of your main questions or main issues is how does MSHA enforce this rule? And what happens if there's a poor training plan in place? The way it's written now under 46.3 (a), that would be the section that would be used to cite an operator for not having an effective training program. And the way to change the training program would be naturally, just like any citation, the operator would have to correct that training plan in order to abate that citation. So, that is the area where we address the issue of both training plans that aren't effective or training itself that is not effective. MR. MAIN: Forty-six point three -- MS. ALEJANDRO: (a). MR. MAIN: Point three (a), yes. I'll take a look at that one, too, Kevin. MR. BURNS: Yes. MR. MAIN: But I think that's going to be somewhat difficult, but we'll take a look at that. MR. BURNS: I mean, the other issue you raised is -- and I think this is part of being an effective training program. You know, anybody that comes to work at any place, but particularly a mine -- I mean, that's where I've been involved my entire working career -- needs to know; they need to know the hazards that they are going to be faced with at that mine. We had a gentleman from Florida that talked about, you know, right now under Part 48, there's nothing in -- he was kind of joking, but I think his point was good that there's nothing in there that requires any training on alligator awareness, yet, in Florida that's -- people should know that, because they are working in areas where there are alligators. And I would want to know that myself, so I think, you know, effective training should -- the new miners should know where all the alligators are. MR. MAIN: And you really need to know that when you're working for MSHA, too. MR. BURNS: Yes -- MR. MAIN: Okay. MR. BURNS: -- about alligators around. Well, if you know where some are that I don't know, I'd appreciate it. MR. MAIN: You may be looking at it. MR. BURNS: You know, so I think that is part of an effective program, and there's nothing that we can write, I don't think, that can tell every operator where all their alligators are, basically, and they need to do that themselves, but -- and they need to make sure that the miners know that, and that's part of an effective plan, in my view. MR. MAIN: I would agree with that, but I would say, though, with respect to the structure of training, if you don't sort of force some quality time out, a lot of times you're not going to get quality time, and I think that's a real concern. MR. BURNS: Yes. That issue, what you're talking about there, I believe is the problem of -- we've all had this -- where you call a meeting and it takes 5 or 10 minutes to start the meeting, because people are milling around doing what they need to do, saying hello to whoever it is that they haven't seen for awhile. And if someone is having a 15-minute training session and they started at 9:00 and ended at 9:15 and people are milling around till 9:10, then how effective was that training? And I would agree with you there. I mean, it's -- MR. MAIN: Yes -- it needs to be effective training, yes. All I'm saying, if you don't have any time limits to begin, you don't even have that opportunity to have the people milling around, you know. And I just see the opportunity for a lot of these training programs to be implemented along the -- on-the-job kind of training things that, you know, paper purposes, that's what they are accounted for when there's no structured time. It should be more than 30 minutes. There's absolutely no question about that, but even the 30-minute rule, when you've got that structured time go out the window, I think you risk letting any quality time all go out. MR. BURNS: Okay. And I do understand what you're saying about, you know, the individual -- where there's hard to document who got training, because it was, you know, maybe the guy was riding in the pick-up truck with a supervisor for 10 minutes, and somehow they plan to count that as part of their training. I mean, again, I wouldn't see that to be effective training, personally. I mean, that's not what we envisioned here, and I don't think, you know, there does have to be some structure to the program. MR. MAIN: If you look at the fact that there has been various, under Part 48, various criminal actions and other violations issued against this that has certified that there were miners who had absolutely no training at all. MR. BURNS: Right. MR. MAIN: They didn't, like, try to do -- that has been a problem that I think we have to recognize. And if you set the rules so liberal that you invite that, I think you're going to get it. MR. BURNS: And the only other thing was the whole thing with plans. I mean, I kind of look at these as being one in the same as mine maps. I mean, I've seen some of these coal mines that if it exploded, then the mine map looks very nice. But, you know, underground looks nothing like what the map looks like. And, again, you know a formalized plan is not a silver bullet, as you just explained. That doesn't necessarily mean that the training's going to be effective. I'm sure that plan, the issue you discussed where they put in "Braveheart," I'm sure their plan didn't call for that. MR. MAIN: Kevin, if I could say something. We -- MR. BURNS: You know, I'm saying that's not a silver bullet. MS. ALEJANDRO: Obviously, I mean, whatever the requirements may be in the rule, if we're not enforcing them, they are not going to be worth anything. MR. MAIN: That's correct. MR. BURNS: I think that it all comes down, you know, 43 (a) is a big part of it that it has to be effective. And one way to find -- the best way for me to find that out is to talk to the miners. MR. MAIN: But under this proposal, you ain't got much to work with under 43 (a), Kevin, I'm sorry to say. MR. BURNS: Okay. I'm going to look at that. I appreciate that. MR. MAIN: But I did want to make it clear in terms of the legal issues that's raised here, that they are very important and very -- (inaudible.) And there has been this finding, based on what we saw thus far, that it doesn't -- it does not meet the test that MSHA has laid out here that this will not diminish protections to the miners. We believe it does. And we believe it does in different ways, and we would clearly like to have MSHA's position as to how they define that it doesn't, because we haven't figured out where that fits -- MS. ALEJANDRO: Okay. MR. MAIN: -- at this stage. MS. ALEJANDRO: Robert? MR. ALDRICH: No questions. MS. ALEJANDRO: Ros? MS. FONTAINE: No questions. MS. ALEJANDRO: Thank you very much, Mr. Main. MR. MAIN: Thank you. We appreciate it. Thank you. MS. ALEJANDRO: All right. Why don't we take a 10-minute break, get back at 5 till 10. (Whereupon, a 10-minute recess was taken.) MS. ALEJANDRO: Are you ready? Okay; good. The next speaker on the list is Elsa Roman from the University of Texas at Austin. MS. ROMAN: Yes. My name is Elsa Roman, E-L-S-A, R-O-M-A-N. I'm with the States Grants Program in Texas. The comments I'm going to make today and the suggestions I'm going to make today are based on two foundations, one of them being the experience and observation that we have had in the mining industry for the last 14 years being part of the States Grant Program. And the other one is based on our perception of the reason for why this entire process is taking place. Our perception is that this process is taking place because of what has taken place in the industry over the last few years, which is an increased number of fatalities, accidents, and injuries. And based on that perception and our experience and what we read in the proposal, we see a huge gap in those two things. And my comments will be just -- will go down the line based on what you asked for comments on. The first one dealing with the definition of a miner, we do suggest that the definition include persons whose exposure is frequent and regular, as in Part 48. This is, again, based on the experience that we have had where people do not have to be involved in the integral part of the operation to be exposed to the hazards. And we do believe these people should go through new-miner training as the people who fall under the definition of miner. We do see a difference, however, in people such as Coke vendors, drivers just coming in to pick up loads. We do see a difference there where they would need only hazards training, but people who are on the mine site on a frequent and regular basis, our experience shows that they are exposed to the hazards just as the miner is, and therefore, need the same amount of training. The second point on the plan approval process, we do not necessarily believe that the plan approval process has to be like Part 48. What we would like to see more, though, is emphasis on the evaluation of the training plan. We do strongly suggest the inspectors review the plan as they come onto the operation, and we would like to have that -- we would suggest that an inspector review the plan the first time he or she is doing the inspection after the proposal actually takes effect. We also suggest the inspector be given authority to disapprove plans if during his or her inspection he perceives the plan not to meet the requirements as stated in the proposal. We also suggest that plans be inspected on an annual basis. In keeping with the proposal under the part, the annual refresher training requirement, it is suggested that operators provide training with regards to the changes that have taken place on the mine site. If changes have taken place on the mine site, and miners are being trained on those changes, then those changes have to be reflected in the training plan. And the inspector should -- we believe the inspector should evaluate those training plans, with respect to the changes that have taken place. Currently, we perceive there to be a problem under Part 48 within the training plan evaluation process. We -- our experience is that once the training plan's approved, it is put in a file and it doesn't come out ever to see the sun again. When people call us to do training for them, we ask them specifically what the training plan states, and they have to look for it; they have to dig for it so that tells us that these -- this is just a, you know, paperwork process. We really do emphasize the evaluation part of it to be more stringent within the Part 46 Rule. On the training plan, also, we suggest that the operator does have contractors on his or her site, and we feel strongly about this. We would like to see the operator -- we would like to see verbiage in the Part 46 final Rule indicating that the operator should request to see and review the training plan from that contractor and that the operator evaluate, one way or another, whether that plan has been put into effect, whether the people within the contractor's employ have actually received the training the contractor is stating they have had. Currently, we see a huge gap in contractor providing training to their employees versus operators providing training to the employees. Our experience is that contractors, in general -- not all, but in general -- are just not doing the training as required. Let's see. The third one dealing with new-miner training, I believe, we truly would like to see the same verbiage of Part 46 as in Part 48. However, if that does not take place, we would like to have the verbiage place even stronger emphasis in the section where it says the employee must be under close supervision of his or her immediate supervisor. That person on the job, if they truly are a new employee, they've not ever been exposed to the mining industry before has a tremendous amount of exposure to risk and danger. If they are not going to get as much training as they would under Part 48, then we would like to see something else take its place. And what we would like to see take place is that the individual be under observation so that they do not get themselves into a situation that could lead to a negative effect. We would like to suggest that miners' rights and first-aid also be included under the instruction -- under the subjects that are required before the individual begins work. And also, if the new miner is a contractor, we would like to suggest that Part 46 require that contractor provide all 24 hours' worth of training before that person gets on the site. And this, again, is based on our experience where many times the contractor is not on the site 60 days. They might be on the site 30 days, 45 days and leave. And because, currently under Part 48, they do not have to comply with all of the training until the 60-day period, many employees are not getting all of the training they should have. Under task training, we suggest it be modeled after Part 48. There is verbiage under Part 48, with regards to getting trained in the health and safety aspects of the job. We would like to see that same verbiage under Part 46. The next point dealing with the instructors, the competent instructors, this is a point that we feel quite strongly about. We suggest instructors be required to attend a formal program of instruction to prepare them to instruct adults. Currently, the proposal states that the individual needs to have the ability, the knowledge, the experience to provide training under selected topics or under certain subjects. We, in Texas, have an instructor's training course and for the last 14 years, a good 90 percent of the people coming through that course have tremendous knowledge, ability, and experience on the subject matter. Where they fail is in the ability to provide training, their skills in the training area. And, unfortunately, because those individuals are not strong in the training skills, their knowledge, their ability, their experience is not passed on to be used by others. So, we truly would like to see some type of program, formal program, that says people need to be prepared to instruct, not necessarily people who have the knowledge on the subject matter, but people who can instruct quality instruction. If the final rule stays as is, with regards to the competent person, then we would like to see the final rule provide some guidance to the operator on how they should determine whether that person is competent or not. What we are concerned with is that the operator appoint Susie because Johnny is not here today. We're concerned that the operator just pick someone who is available that day without regard to how able the individual is to provide training. We would like a definition of a competent person to address the ability to train adults, their abilities in communication skills, their ability in writing skills, because if someone is going to be doing training, they have to do things like putting together material. They have to put together a training outline. They have to put together training objectives. They have to evaluate, as is currently outlined in the proposal, whether the training was effective or not, so there are certain skills that individual has to have in order to be considered competent, at least as it's described currently in the proposal. We would also like to see addressed what requirements the operator has in preparing an individual to function in this competent capacity should the individual just select or choose someone or should that operator be required to provide some type of preparation for this individual to be regarded as competent. We would also like to see some guidance in the verbiage on how the competent person should evaluate the effectiveness of the training should that person be required to develop a form that he or she gives to the students after the class is over. Will MSHA put together a form to be used after each training session takes place? Will there be tests given after each class to be reviewed by the inspector whenever he or she is on the site to do the inspection? And also, what should be done with these evaluations? Should they be just put in a file drawer? Should they be used to evaluate whether that person maintains his or her competent status? And what if those evaluations show or communicate that the students do not perceive this individual to be competent, then what options are available to the operator to be within the verbiage of the final rule? If this section is left as is, some of those suggestions we have that you, the training specialist or the inspector, evaluate this competent person selected, the evaluation be made through interviews, the questions regarding the training plans, how that individual provides training, what the results of the training have been. We would like to see the specialist or inspector review the evaluations of the training provided. We would like to see the inspector or training specialist interview the students who have received the training. We would like to see MSHA provide this individual with material. The academy does have a manual on instructor training, so if we are going to leave it as is, competent person, then we must provide the support so that individual is a competent person. We would also suggest that if after an interview the representative from MSHA believes this individual is not competent, that this individual have the authority to revoke the competent status. And on this issue, last but certainly not least, we would also like to see competent be defined as someone who can provide instruction in that individual's, in the trainee's language. Every year that I've been involved with the States Grants Program, I find that there are more individuals within this country who need communication in other than English, so if I am going to select a competent person, then that competent person must be able to provide information in a way that the individual receiving it is going to understand. Within the proposal, there's a question as to whether the final rule should give option to the operator to comply with 48 in lieu of Part 46, and we would like to see that option be provided. There are many clients that we currently have who will fall under Part 46, but are currently in compliance with Part 48, and if they had that option, they probably would elect to stay with Part 48. As far as any refresher is concerned, we suggest Part 46 make annual refresher just like Part 48. Part 48 has a really good list of topics and subjects. If Part 48 is not adopted, then we suggest the topics suggested under Part 46 be made required and not just suggested, other than the changes that have taken place over the year. There's a list of topics suggested, and we'd like to see those made required. Within the cost analysis in the proposal, one of the costs that we perceive exists but is not addressed is the actual cost of the operator having people at the training, instead of out there in the production. That is the cost, other than just the meals and lodging and transportation and the training fee, if there is a training fee. There's also a cost associated with having your employees sitting there in a room getting instruction, as opposed to being out in the field producing whatever it is they are producing. Those were the comments and suggestions I bring from the States Grants Program in Texas. MS. ALEJANDRO: Thank you very much, Ms. Roman. I've got a couple of questions and others may, as well. I guess I'm looking for clarification. You suggested that the final rule include some provision for the plan to be evaluated or reviewed on an annual basis. Now, is that a review by the operator, by MSHA, by both? I guess I'm just looking for a little bit of detail, as far as how you see that working, how the final rule might address that. MS. ROMAN: Well, we would actually like to see an MSHA representative. Of course, the evaluation has to be made by the operator throughout the year, because if there are changes throughout the year, that operator must reflect those changes on the training plan. On an annual basis, however, we would like to see an MSHA representative, either the inspector or the training specialist actually review the plan and based on the annual refresher requirements, which state that you train people on the changes that have taken place throughout the year at your operation, we would like to see that inspector or trai